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A.N. Kaul vs Neerja Kaul & Anr on 3 July, 2018

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Date of decision: 3rd July, 2018
+ C.R.P. 189/2017
A.N. KAUL ….. Petitioner
Through: Mr. Pradeep Dhingra Mr. Mohit
Nandwani, Advs.
Versus
NEERJA KAUL ANR ….. Respondents

Through: Mr. Sandeep Mittal, Ms. Ashwarya
Chander Mr. Abhimanyua Walia,
Advs.

CORAM:

HON’BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This Civil Revision Petition under Section 115 of the Code of Civil
Procedure, 1908 (CPC) impugns the order (dated 25th April, 2017 in CIS
No.11745/16 of the Court of Additional District Judge-04 (South-East),
Saket Courts, New Delhi) of dismissal of the application of the petitioner /
plaintiff under Order XII Rule 6 of the CPC.

2. The petition came up first before this Court on 29th August, 2017
when notice thereof was ordered to be issued. The counsels were heard on
12th October, 2017 and orders reserved.

3. The petitioner/plaintiff instituted the suit, from which this petition
arises, for recovery of possession and mesne profits with respect to property
no.B-237/B, Greater Kailash – I, New Delhi from the two respondents /
defendants being the daughter-in-law and the granddaughter of the
petitioner/plaintiff, pleading (i) that the petitioner / plaintiff is the owner in
possession of property no.B-237/B, Greater Kailash – I, New Delhi; (ii) that
the respondents / defendants are in possession of rooms on first floor of the

C.R.P. 189/2017 Page 1 of 17
said property; (iii) that the defendant no.1 is a citizen of United States of
America (USA), permanently settled in USA and was married to the son of
the petitioner / plaintiff, also settled in USA; (iv) the son of the petitioner / plaintiff and the
respondent / defendant no.1 have in October, 2006, taken divorce from the Court in
USA; (v) that the respondent / defendant no.2 is the granddaughter of the
petitioner / plaintiff but has fallen into bad company; (vi) that the petitioner /
plaintiff purchased the subject property in the month of July, 1964; (vii) that
the petitioner / plaintiff, from 1982 till 2008, let out the first floor of the
property to different tenants; (viii) while the petitioner / plaintiff was in USA
with his son, the respondents / defendants trespassed into the property and
took away all the original documents of title to the property; (ix) that the
Income Tax Returns filed by the petitioner / plaintiff show the rental income
of the first floor of the property assessed to the petitioner / plaintiff; (x) that
the petitioner / plaintiff allowed the respondent / defendant no.2 as his granddaughter, to stay
as a guest in one room on the first floor of the property; (xi) thereafter, the
respondent / defendant no.1, who was also settled in USA, started visiting
the first floor of the property; and, (xii) that the respondents / defendants are
in illegal occupation of the front portion of the first floor of the property
comprising of three rooms, one kitchen, two bathrooms.

4. The two respondents/defendants filed separate written statements contesting the
suit, pleading (i) that the respondents/defendants have been living in the
property since 1980-81 and the suit for recovery of possession is barred by
time; (ii) that the respondent / defendant no.1 was not aware of the divorce
decree pleaded by the petitioner / plaintiff and the said divorce decree if any
is not conclusive, being not on the merits of the case and being founded on
breach of Hindu Marriage Act, 1955 in force in India; (iii) that

C.R.P. 189/2017 Page 2 of 17
the suit had not been correctly valued for the purposes of court fees and
jurisdiction and the court fees had not been paid on the correct market value
of the property; (iv) that the respondent / defendant no.1 had undertaken the
construction of the first floor out of the money given by her father at the time
of marriage to the son of petitioner / plaintiff and the respondents /
defendants as such have a right to stay in the first floor; (v) that the
respondents / defendants, prior to institution of this suit, have instituted a suit
claiming rights in the property and which suit is pending in the Court of the
Civil Judge, Delhi; (vi) that the petitioner / plaintiff did not contribute any
money to the first floor of the property and when the respondent / defendant
no.1 constructed the same from her self-earned money, the petitioner /
plaintiff assured the respondent / defendant no.1 that in future the petitioner /
plaintiff shall never create any hindrance in the peaceful possession and
enjoyment of the property by the respondent / defendant no.1 and it was on
the basis of the said assurance that the respondent / defendant no.1 spent her
monies on the construction of the first floor of the property; (vii) that the
petitioner / plaintiff in the past has made attempts to forcibly remove the
respondents / defendants from the property; (viii) the petitioner / plaintiff has
been a US citizen for over a decade; (ix) that the respondent / defendant no.1
put her signatures on the ‘Quit Claim Deed’ just to buy peace for herself and
her daughter; (x) the respondent / defendant no.1 made payments against
electricity bill and water bills of the property; and, (xi) that the petitioner /
plaintiff purchased the subject property out of funds from selling the
property in Rajender Nagar which was allotted by the Government of India
in lieu of an ancestral property in Lahore at the time of partition and also
from the funds derived from sale proceeds of ancestral properties in

C.R.P. 189/2017 Page 3 of 17
Kashmir; thus the respondent / defendant no.2, as a granddaughter of the
petitioner / plaintiff, has a share in the property which is an ancestral
property.

5. The respondent / defendant no.2 along with her written statement also
filed a Counter Claim seeking partition of the property.

6. I have hereinabove reproduced only portions of the pleadings, which
are otherwise verbose, which are relevant for the present purposes.

7. The petitioner / plaintiff filed an application under Order XII Rule 6 of
the CPC for decree of ejectment on admissions.

8. The learned Additional District Judge has dismissed the said
application, reasoning that there was no admission in the written statement of
the defendants for a decree on admissions to be passed; on the contrary, the
defendants in their written statement have denied that they were inducted as
tenants or licencees under the petitioner / plaintiff; the defendants have also
pleaded the property to be ancestral and the defendant no.2 to be a co-owner,
and the merits of the rival claims are not to be assessed at the stage of Order
XII Rule 6 of the CPC.

9. I have considered the contentions of the counsels.

10. The reasoning given in the impugned order, of the petitioner / plaintiff,
in the absence of express admission, being not entitled to a decree on
admissions is indeed faulty and without considering a series of judgments of
this Court. In Ashoka Estate Pvt. Ltd. Vs. Dewan Chand Builders Pvt. Ltd.
159 (2009) DLT 233, reiterated in judgment dated 14th September, 2017 in
C.R.P. No. 190 of 2015 titled Vireet Investments Pvt. Ltd. Vs. Vikramjit

C.R.P. 189/2017 Page 4 of 17
Singh Puri and again reiterated in Bhupinder Jit Singh Vs. Sonu Kumar
2017 SCC OnLine 11061, it was held (i) that the plaintiff, if otherwise found
entitled to a decree on admission, cannot be deprived thereof by astute
drafting of the written statement and/or by taking pleas therein which have
no legs to stand upon; (ii) the Court is to read the pleadings of the parties
meaningfully; (iii) issues are to be framed on ‘material’ and not on all
propositions of law and fact; (iv) a plea, which on the face of it is found by
the court to be untenable, does not require the framing of any issue. In
Adarsh Kumar Puniyani Vs. Lajwanti Piplani 2015 SCC OnLine Del
14022 it was held that material propositions of law or fact would mean such
issues which are relevant and necessarily arise for deciding the controversy
involved; if a plea is not valid and tenable in law or is not relevant or
necessary for deciding the controversy involved, the Court would not be
bound and justified in framing issue on such unnecessary or baseless pleas,
thereby causing unnecessary and avoidable inconvenience to the parties and
waste of valuable Court time. Reliance was inter alia placed on Abbot India
Ltd. Vs. Rajinder Mohindra (2014) 208 DLT 201 holding that once it is
found that there was no defence, merely because a bogey thereof is raised at
the stage of framing of issues or upon the respondents/plaintiffs filing an
application under Order XII Rule 6 of the CPC, would not call for framing of
an issue. It was further held in Bhupinder Jit Singh supra that issues are to
be framed only on material propositions of law or fact requiring trial and not
on all propositions of fact or law which may be contained in the pleadings
and which are not material i.e. on the outcome whereof the outcome of the
suit does not depend. The Court is not obliged to, on finding pleas to have
been raised in the written statement, mechanically frame issues thereon. If

C.R.P. 189/2017 Page 5 of 17
issues were to be framed in such manner, the same would be in disregard of
the word ‘material’ in Order XIV Rule 1 of the CPC. The enquiry thus to be
made at the time of framing of issues is, whether the pleas raised in the
written statement, purportedly in defence to the claim in the plaint, have any
material bearing to the outcome of the suit and if it is found that irrespective
of the findings thereon, the plaintiff would be entitled to the relief, the parties
are not to be put to trial in the suit. Similarly in Zulfiquar Ali Khan Vs.
Straw Products Ltd. 87 (2000) DLT 76, it was observed that it is a notorious
fact that to drag the case, a litigant often takes all sorts of false or legally
untenable pleas and it was held that legal process should not be allowed to be
misused by such persons and only such defence as give rise to clear and
bona fide dispute or triable issues should be put to trial and not illusory or
unnecessary or mala fide based on false or untenable pleas, to delay the suit.
It was yet further held that the Court is not bound to frame an issue on
unnecessary or baseless pleas, thereby causing unnecessary and avoidable
inconvenience to the parties and waste of valuable Court time. Reference in
this regard may also be made to Kawal Sachdeva Vs. Madhu Bala Rana
2013 SCC OnLine 1479 and to P.S. Jain Co. Ltd. Vs. Atma Ram Properties
(P) Ltd. (2013) 205 DLT 302.

11. Not only so, Order XV of the CPC empowers the Court to, upon
finding that the parties are not on an issue of any question of law or fact,
pronounce judgment at once. Thus even if there is no express admission in
the written statement but an intelligent reading of the written statement
shows the propositions or pleas taken to be not material and no issue to be
arising therefrom, the Court is still entitled to pass a decree forthwith.

C.R.P. 189/2017 Page 6 of 17

12. To be fair to the counsel for the respondents / defendants, he also did
not, perhaps in the light of the consistent judgments, some of which are
mentioned above, controvert the said position. The arguments of the counsel
for the respondents / defendants were two fold. Firstly, that the plea of the
respondent / defendant no.2 in her written statement of the property being
ancestral, was a material plea, on success whereof the suit of the petitioner /
plaintiff would be dismissed inasmuch as the respondent / defendant no.2 as
the granddaughter of the petitioner / plaintiff also has a 1/6th share in the
property. The second contention was that it was the plea of the respondent /
defendant no.1, that she had been permitted by the petitioner / plaintiff to
raise construction of the first floor with her own money and the said licence
granted by the petitioner / plaintiff to the respondent / defendant no.1 was
irrevocable. Reliance was placed on Section 60(b) of the Easements Act,
1882.

13. The concept of ancestral property, as existed under the ancient Hindu
Law, was done away with on coming into force of the Hindu Succession Act,
1956. Thereafter, the ancient Hindu Law survived only under Section 6 of
the Hindu Succession Act and not otherwise. The ancient Hindu Law
discriminated between the male descendents and the female descendents.
Section 6 provided that when a male Hindu dies after the commencement of
the Succession Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the property shall devolve
by survivorship upon the surviving members of the coparcenary and not in
accordance with the Succession Act. Under the ancient Hindu Law only the
male descendant could be the members of the coparcenary. Section 6, so
preserving ancient Hindu Law, was however amended by the Hindu

C.R.P. 189/2017 Page 7 of 17
Succession (Amendment) Act, 2005, to do away with the discrimination as
existed under ancient Hindu Law, between grandsons and granddaughters.
Section 6 as amended provides that with effect from the Hindu Succession
(Amendment) Act, 2005, in a joint Hindu family, governed by Mitakshara
law, the daughter of a coparcener shall by birth, become a coparcener in her
own right in the same manner as the son and have the same rights in the
coparcenary property as she would have had if she had been a son.

14. The plea of the respondent / defendant no.2, who is the granddaughter
of the petitioner / plaintiff, is that because the petitioner / plaintiff purchased
the subject property out of monies realized on sale of a house in Rajender
Nagar and of properties in Kashmir allotted against properties left behind in
Lahore, the properties in the hands of the petitioner / plaintiff are ‘ancestral’
and she has a share in the same.

15. However, Section 6 of the Hindu Succession Act, even post
amendment, saves the ancient Hindu Law only with respect to Mitakshara
coparcenary property i.e. coparcenary property governed by Mitakshara
Law. There is no plea in the written statement of the respondent / defendant
no.2, of the existence of any coparcenary. The only plea is, of the petitioner /
plaintiff having purchased the property from the monies from sale of
properties inherited by him from his father. However as aforesaid, on the
coming into force of the Hindu Succession Act, the properties inherited by
the petitioner / plaintiff from his father would be his personal individual
properties and in which the son of the petitioner / plaintiff or the grandson or
granddaughter of the petitioner / plaintiff would have no share.

C.R.P. 189/2017 Page 8 of 17

16. There is no plea in the written statement, of the date of demise of the
father of the petitioner / plaintiff i.e. whether the same is of a date before
coming into force of the Hindu Succession Act or thereafter. I thus enquired
from the counsel for the respondents / defendants, the date / year of demise
of the father of the petitioner / plaintiff.

17. The counsel for the respondents / defendants again fairly stated that no
instruction even on this aspect was taken.

18. The same shows the casual manner in which the plea of the
respondent / defendant no.2 having a share in the property has been taken in
the written statement and in the Counter Claim.

19. Need to elaborate the law on this aspect is not felt. In the recent past,
there have been plethora of judgments of this Court in other similar suits
where such misconceived pleas have been taken. Reference in this regard
can be made to Surender Kumar Vs. Dhani Ram AIR 2016 Delhi 120
wherein it has been held as under:-

“5. The Supreme Court around 30 years back in the judgment
in the case of Commissioner of Wealth Tax, Kanpur and
Others Vs. Chander Sen and Others, MANU/SC/0265/1986 :
(1986) 3 SCC 567, held that after passing of the Hindu
Succession Act, 1956 the traditional view that on inheritance
of an immovable property from paternal ancestors up to three
degrees, automatically an HUF came into existence, no longer
remained the legal position in view of Section 8 of the Hindu
Succession Act, 1956. This judgment of the Supreme Court in
the case of Chander Sen (supra) was thereafter followed by
the Supreme Court in the case of Yudhishter Vs. Ashok
Kumar, MANU/SC/0525/1986 : (1987) 1 SCC 204 wherein the
Supreme Court reiterated the legal position that after coming
into force of Section 8 of the Hindu Succession Act, 1956,

C.R.P. 189/2017 Page 9 of 17
inheritance of ancestral property after 1956 does not create an
HUF property and inheritance of ancestral property after
1956 therefore does not result in creation of an HUF property.

6. In view of the ratios of the judgments in the cases of
Chander Sen (supra) and Yudhishter (supra), in law
ancestral property can only become an HUF property if
inheritance is before 1956, and such HUF property therefore
which came into existence before 1956 continues as such even
after 1956. In such a case, since an HUF already existed prior
to 1956, thereafter, since the same HUF with its properties
continues, the status of joint Hindu family/HUF properties
continues, and only in such a case, members of such joint
Hindu family are coparceners entitling them to a share in the
HUF properties.

7. On the legal position which emerges pre 1956 i.e before
passing of the Hindu Succession Act, 1956 and post 1956 i.e
after passing of the Hindu Succession Act, 1956, the same has
been considered by me recently in the judgment in the case of
Sunny (Minor) Anr. vs. Sh. Raj Singh Ors.,
MANU/DE/3560/2015 : CS(OS) No. 431/2006 decided on
17.11.2015. In this judgment, I have referred to and relied
upon the ratio of the judgment of the Supreme Court in the
case of Yudhishter (supra) and have essentially arrived at the
following conclusions:-

(i) If a person dies after passing of the Hindu Succession
Act, 1956 and there is no HUF existing at the time of the
death of such a person, inheritance of an immovable
property of such a person by his successors-in-interest
is no doubt inheritance of an ‘ancestral’ property but the
inheritance is as a self- acquired property in the hands
of the successor and not as an HUF property although
the successor(s) indeed inherits ‘ancestral’ property i.e a
property belonging to his paternal ancestor.

(ii) The only way in which a Hindu Undivided
Family/joint Hindu family can come into existence after
1956 (and when a joint Hindu family did not exist prior
to 1956) is if an individual’s property is thrown into a

C.R.P. 189/2017 Page 10 of 17
common hotchpotch. Also, once a property is thrown
into a common hotchpotch, it is necessary that the exact
details of the specific date/month/year etc of creation of
an HUF for the first time by throwing a property into a
common hotchpotch have to be clearly pleaded and
mentioned and which requirement is a legal requirement
because of Order VI Rule 4 CPC which provides that all
necessary factual details of the cause of action must be
clearly stated. Thus, if an HUF property exists because
of its such creation by throwing of self-acquired
property by a person in the common hotchpotch,
consequently there is entitlement in coparceners etc to a
share in such HUF property.

(iii) An HUF can also exist if paternal ancestral
properties are inherited prior to 1956, and such status
of parties qua the properties has continued after 1956
with respect to properties inherited prior to 1956 from
paternal ancestors. Once that status and position
continues even after 1956; of the HUF and of its
properties existing; a coparcener etc will have a right to
seek partition of the properties.

(iv) Even before 1956, an HUF can come into existence
even without inheritance of ancestral property from
paternal ancestors, as HUF could have been created
prior to 1956 by throwing of individual property into a
common hotchpotch. If such an HUF continues even
after 1956, then in such a case a coparcener etc of an
HUF was entitled to partition of the HUF property.

9. I would like to further note that it is not enough to aver a
mantra, so to say, in the plaint simply that a joint Hindu family
or HUF exists. Detailed facts as required by Order VI Rule 4
CPC as to when and how the HUF properties have become
HUF properties must be clearly and categorically averred.
Such averments have to be made by factual references qua
each property claimed to be an HUF property as to how the
same is an HUF property, and, in law generally bringing in
any and every property as HUF property is incorrect as there

C.R.P. 189/2017 Page 11 of 17
is known tendency of litigants to include unnecessarily many
properties as HUF properties, and which is done for less than
honest motives. Whereas prior to passing of the Hindu
Succession Act, 1956 there was a presumption as to the
existence of an HUF and its properties, but after passing of the
Hindu Succession Act, 1956 in view of the ratios of the
judgments of the Supreme Court in the cases of Chander Sen
(supra) and Yudhishter (supra) there is no such presumption
that inheritance of ancestral property creates an HUF, and
therefore, in such a post 1956 scenario a mere ipse dixit
statement in the plaint that an HUF and its properties exist is
not a sufficient compliance of the legal requirement of
creation or existence of HUF properties inasmuch as it is
necessary for existence of an HUF and its properties that it
must be specifically stated that as to whether the HUF came
into existence before 1956 or after 1956 and if so how and in
what manner giving all requisite factual details. It is only in
such circumstances where specific facts are mentioned to
clearly plead a cause of action of existence of an HUF and its
properties, can a suit then be filed and maintained by a person
claiming to be a coparcener for partition of the HUF
properties.

11. I may note that the requirement of pleading in a clear cut
manner as to how the HUF and its properties exist i.e whether
because of pre 1956 position or because of the post 1956
position on account of throwing of properties into a common
hotchpotch, needs to be now mentioned especially after
passing of the Benami Transaction (Prohibition) Act, 1988
(hereinafter referred to as ‘the Benami Act’) and which Act
states that property in the name of an individual has to be
taken as owned by that individual and no claim to such
property is maintainable as per Section 4(1) of the Benami Act
on the ground that monies have come from the person who
claims right in the property though title deeds of the property
are not in the name of such person. An exception is created
with respect to provision of Section 4 of the Benami Act by its
sub-Section (3) which allows existence of the concept of HUF.
Once existence of the concept of HUF is an exception to the

C.R.P. 189/2017 Page 12 of 17
main provision contained in sub-Sections (1) and (2) of
Section 4 of the Benami Act, then, to take the case outside sub-
Sections (1) and (2) of Section 4 of the Benami Act it has to be
specifically pleaded as to how and in what manner an HUF
and each specific property claimed as being an HUF property
has come into existence as an HUF property. If such specific
facts are not pleaded, this Court in fact would be negating the
mandate of the language contained in sub- Sections (1) and (2)
of Section 4 of the Benami Act.

12. This Court is flooded with litigations where only self-
serving averments are made in the plaint of existence of HUF
and a person being a coparcener without in any manner
pleading therein the requisite legally required factual details
as to how HUF came into existence. It is a sine qua non that
pleadings must contain all the requisite factual ingredients of
a cause of action, and once the ratios of the judgments of the
Supreme Court in the cases of Chander Sen (supra) and
Yudhishter (supra) come in, the pre 1956 position and the post
1956 position has to be made clear, and also as to how HUF
and its properties came into existence whether before 1956 or
after 1956. It is no longer enough to simply state in the plaint
after passing of the Hindu Succession Act 1956, that there is a
joint Hindu family or an HUF and a person is a coparcener in
such an HUF/joint Hindu family for such person to claim
rights in the properties as a coparcener unless the entire
factual details of the cause of action of an HUF and each
property as an HUF is pleaded.

13. In view of the above, actually the application filed under
Order VII Rule 11 CPC in fact is treated as an application
under Order XII Rule 6 CPC, inasmuch as, it is observed on
the admitted facts as pleaded in the plaint that no HUF and its
properties are found to exist. There is no averment in the
plaint that late Sh. Jage Ram inherited property(s) from his
paternal ancestors prior to 1956. In such a situation,
therefore, the properties in the hands of late Sh. Jage Ram
cannot be HUF properties in his hands because there is no
averment of late Sh. Jage Ram inheriting ancestral property(s)
from his paternal ancestors prior to 1956. There is no

C.R.P. 189/2017 Page 13 of 17
averment in the plaint also of late Sh. Jage Ram’s properties
being HUF properties because HUF was created after 1956
by late Sh. Jage Ram by throwing properties into a common
hotchpotch. I have already elaborated in detail above as to
how an HUF has to be pleaded to exist in the pre 1956 and the
post 1956 positions and the necessary averments which had to
be made in the present plaint. The suit plaint however grossly
lacks the necessary averments as required in law to be made
for a complete cause of action to be pleaded for existence of
an HUF and its properties.”

20. The aforesaid paragraphs of Surender Kumar supra were reproduced
again in Sagar Gambhir Vs. Sukhdev Singh Gambhir (2016) 231 DLT 247,
appeal whereagainst was dismissed by the Division Bench vide judgment
reported as Sagar Gambhir Vs. Sukhdev Singh Gambhir
MANU/DE/0541/2017.

21. I have rather, in Kamlesh Devi Vs. Shyam Sunder Tyagi 2017 SCC
OnLine Del 12701, Aditya Prasad Dube Vs. Shobha Dube 2018 SCC
OnLine Del 6567 Saurabh Sharma Vs. Om Wati 2018 SCC OnLine Del
9186 also observed that notwithstanding the change in law having been
brought more than half a century ago, the citizens as well as the Advocates
seem to remember the law of prior thereto than of the time since they took
birth and / or started practice of law.

22. The counsel for the respondents / defendants had no other submissions
to make in this respect.

23. As far as the plea of Section 60(b) of the Easements Act is concerned,
it provides that a licence, though revocable, is not so where the licensee
acting upon the licence has executed a work of a permanent character and
incurred expenses in its execution.

C.R.P. 189/2017 Page 14 of 17

24. However, before dealing with the said plea, I may highlight that the
said plea in the written statement of the respondent / defendant no.1 is an
admission of the ownership and title of the petitioner / plaintiff to the
property inasmuch as if the petitioner / plaintiff was not the exclusive owner
of the property, the question of his granting any licence or of the respondent /
defendant no.1 acting under licence from him would not arise.

25. I have in Ambika Soni Vs. Union of India 2015 SCC OnLine Del
10761 relying on Gesture Hotels Foods Pvt. Ltd. Vs. New Delhi
Municipal Council AIR 2014 Del 143(DB), with reference to the aforesaid
Section 60(b) and referring to Section 64 of the Easements Act held that the
only remedy of such a licensee is to claim damages for unlawful revocation
of the licence and not to continue in occupation of the premises.

26. Moreover, a title in immovable property can be created only by a
registered instrument. Though the Division Bench of this Court in Asha M.
Jain Vs. Canara Bank (2001) 94 DLT 841, taking into consideration the
large scale transfer of properties in the city of Delhi by instruments other
than registered Conveyance Deed, held that title can be deciphered therefrom
also but Supreme Court in Suraj Lamp Industries Pvt. Ltd. Vs. State of
Haryana (2009) 7 SCC 363 and (2012) 1 SCC 656 expressly overruled the
said judgment and held that no title in the property could be created save by
a registered Conveyance Deed. Section 60(b) of the Easements Act cannot in
my opinion be construed as a mode of creation of title to the property and
any such interpretation by the Courts would be to the detriment of the
revenue under the Stamp Act, 1899 and the Registration Act, 1908.

C.R.P. 189/2017 Page 15 of 17

27. The learned Additional District Judge, in the impugned order, did not
consider the matter in the correct perspective and is found to have dealt with
the application under Order XII Rule 6 of the CPC for judgment on
admissions in a mechanical manner. In fact, Supreme Court in T.
Arivandandam Vs. T.V. Satyapal (1997) 4 SCC 467, Azhar Hussain Vs.
Rajiv Gandhi (1986) 1 SCC 573, I.T.C. Ltd. Vs. Debts Recovery Appellate
Tribunal (1998) 2 SCC 70, Shipping Corporation of India Ltd. Vs.
Machado Brothers (2004) 11 SCC 168 and Liverpool and London S.P. and
I Association Ltd. Vs. M.V. Sea Success I (2004) 9 SCC 512 has gone to the
extent of holding that the Courts are required to sift through the pleadings
carefully and to ensure that suits making only a semblance of a case or a
defence do not clog up the time of the Courts at the cost of other deserving
matters. It has been held that suits which are found by the Court to be
deadwood and having no chance of success, should be thrown out at the
threshold.

28. The Revision Petition thus succeeds and is allowed.

29. The impugned order is set aside.

30. Resultantly, the application of the petitioner / plaintiff under Order XII
Rule 6 of the CPC succeeds, thereunder as well as under Order XV of the
CPC.

31. Axiomatically the petitioner / plaintiff is entitled to a decree for
recovery of possession as sought on admissions.

32. The learned Additional District Judge, before whom the suit is
pending, to on receipt of a copy of this order, proceed to draw up the decree.

C.R.P. 189/2017 Page 16 of 17

No costs.

The Revision Petition is disposed of.

RAJIV SAHAI ENDLAW, J.

JULY 03, 2018
‘pp/gsr’

C.R.P. 189/2017 Page 17 of 17

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