Raghbir Kaur Thr Lrs & Anr v. Union of India

RAJIV SAHAI ENDLAW, J. JULY 25, 2018 'pp'

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 25th July, 2018 + RSA 106/2018 & CM No.29346 (for stay). RAGHBIR KAUR THR LRS & ANR ..... Appellants Through: Mr. Bharat Bhushan Bhatia with Mr. Akshay Bhatia, Mr. Swapnil Aeron and Mr. Vivek Singh, Advs. versus UNION OF INDIA ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.29347/2018 (for exemption). 1. Allowed, subject to just exceptions. 2. The application stands disposed of. RSA 106/2018 & CM No.29346 (for stay). 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment [dated 18th April, 2018 in RCA/DJ No.113/17 of the Court of the Additional District Judge- 03 (West)] allowing the First Appeal under Section 96 of the CPC preferred by the respondent Union of India (UOI) against the judgment and decree [dated 27th January, 2017 in Suit No.607282/2016 of the Court of Civil Judge-07, West District, Tis Hazari Courts, Delhi] of mandatory injunction directing the respondent UOI to substitute the name of the two appellants/plaintiffs Raghbir Kaur and Davinder Kaur in place of name of Mehar Singh, as lessee of the land underneath the property no.5-B/36, Tilak Nagar, New Delhi, under the respondent/defendant UOI. 4. The counsel for the appellants/plaintiffs has been heard and the copies of the entire relevant Trial Court record filed along with the memorandum of appeal perused, to gauge whether any substantial question of law arises. Merely because the First Appellate Court has interfered with the judgment and decree of the Suit Court, will not convert this Second Appeal into a First Appeal, for it to be entertained on any other parameters. 5. The appellants/plaintiffs instituted the suit, from which this appeal arises, pleading (i) that the leasehold rights in the land underneath the property no.5-B/36, Tilak Nagar, New Delhi were granted by the respondent/defendant UOI in favour of Shri Mehar Singh Giani, who died on 28th June, 1994 leaving four sons and three daughters as his only natural heirs, his wife having predeceased him; (ii) the said Mehar Singh Giani left a registered Will dated 1st February, 1994 bequeathing the property aforesaid in favour of the appellant/plaintiff no.1 and Manohar Singh being the daughter-in-law and son respectively of the deceased Mehar Singh Giani; (iii) Manohar Singh died, leaving the appellant/plaintiff no.2 Davinder Kaur as his widow; (iv) thus the two appellants/plaintiffs became owners of the two half portions bequeathed under the Will of Mehar Singh Giani; (v) the appellant/plaintiff no.1 applied for grant of probate of the aforesaid Will of late Shri Mehar Singh Giani and in which all the other natural heirs of Mehar Singh Giani were impleaded as respondents; (vi) that inspite of service of notice and publication, none of the other natural heirs of Mehar Singh Giani appeared in the Probate Case; (vii) that the two appellants/plaintiffs, at the time of appellant/plaintiff no.1 filing Probate Case, were having inter se differences and subsequently, before the Mediation Centre, Tis Hazari Courts, they arrived at a settlement and the Probate Case was disposed of in terms of the said Settlement; (viii) that the appellants/plaintiffs then applied to the respondent/defendant UOI for mutation of the leasehold rights in the land underneath the property, from the name of Mehar Singh Giani, to their joint names; (ix) that the respondent/defendant UOI asked the appellants/plaintiffs to submit no objection affidavits of the other natural heirs; and, (x) that the said demand of the respondent/defendant UOI was without any justification. Hence, the suit for mandatory injunction directing the respondent/defendant UOI to substitute the appellants/plaintiffs in place of Mehar Singh Giani as lessees of the land underneath the property. 6. The respondent/defendant UOI contested the suit by filing a written statement, inter alia pleading (i) that on 2nd Septem