IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No(s). OF 2018
(Arising out of SLP (C ) No. 17152 of 2015)
SMT. BHAGIRATHI Appellant(s)
RAJINDER SINGH ANR. Respondent(s)
O R D E R
1. Heard learned counsel for the parties.
2. Leave granted.
3. The suit bearing No.203 of 1999 (renumbered as 388 of 2014) for
recovery of possession and damages, use and occupation charges and for
permanent injunction was filed by Ms. Vedwati before the Court of the Senior
Civil Judge, Delhi on 08.08.2014.
4. Late Gopi Chand was the owner of the property No.C42/2 in Survey
No.585, in the Abadi of village Ghonda Gujran Khadar, presently known as
Gamri Extension, Shahdara, Delhi, admeasuring 600 sq. yards, which was
purchased by him vide sale deed dated 19.2.1971. He had sold the portion of
the land measuring 320 sq. yard and retained the remaining portion of 280
sq. yards for himself. He died on 01.08.1980 leaving behind his six legal
Signature Not Verified
Digitally signed by
representatives beside the plaintiff; his two sons, namely; Rajinder Singh and
Harish Chand and four daughters, namely; Kamla, Vimla, Neelam, and Rajani.
All the four daughters relinquished their rights in the property in favor of
mother Smt. Vedwati vide relinquishment deed and again registered
relinquishment deed which was executed on 11.4.1996. Thus, Ms. Vedwati
became the absolute owner of the property in question, which consists of nine
rooms. The Defendant No.1 Rajinder Singh was allowed to stay in the suit
property as licensee by paying the license fee at the rate of Rs.20/ per month
to be paid to the plaintiff. Defendant No.2 Bhagirathi, being the wife of
Defendant No.1 continued to stay in the suit property. The license fee was
not paid by Defendant No.1, hence, notice dated 6.4.1996 was served and the
suit for permanent injunction restraining defendants from creating third party
rights, from making an alteration in the property and restraining from
disposing of the property in an illegal manner was prayed. In suit, prayer was
made for possession also.
5. The respondent failed to appear before the trial court and the suit
was dismissed initially exparte vide judgment dated 18.01.2003 which order
was set aside and the case was remanded to the trial court vide order dated
26.4.2010 by the First Appellate Court. The defendants were permitted to file
their written statement and the suit was ordered to be decided de novo.
Defendant No.1 never appeared before the court. Defendant No.2 instead of
filing written statement moved an application under Section 10 of the Code of
Civil Procedure, 1908 (for short, “the CPC”) which was dismissed vide order
dated 26.4.2011. The right of the defendants to file their written statements
was closed and their defense was struck off, vide order dated 21.5.2011.
Orders in this regard dated 21.5.2011 and 26.4.2011 were challenged in CMM
No.713 of 2011, which was dismissed by the High Court of Delhi on
18.4.2012. The review was filed against the order dated 18.4.2012 in the
High Court which was also dismissed on 30.4.2012.
6. Aggrieved thereby the special leave petition was filed in this court
that too was dismissed on 03.03.2014. Thus, the order striking off the
defense of the defendants attained finality.
The trial court has framed following issues:
“1. Whether the defendants were the licensee in the suit
property under the plaintiff, and if so, whether their license
was duly terminated?
2. Whether the plaintiff is entitled to decree a possession as
3. Whether the plaintiff is entitled to a decree for
permanent injunction as prayed for?
4. Whether the plaintiff is entitled to damage/use and
occupation charges @ Rs.500/ w.e.f. April 1999 till the date
of filing of the i.e. Rs.1000/ along with interest @ 24% per
annum as prayed for?
5. Whether the plaintiff is entitled to any further
damages/use and occupation charges till the vacation of the
suit property and, if so, at what rate?
7. The trial court decreed the suit on 8.8.2014. First Appeal bearing
RCA No.26 of 2014 was filed before the Additional District Judge08,
(Central) Tis Hazari Courts, Delhi, that was dismissed on 18.4.2015. The
second appeal bearing R.S.A. No.192 of 2015 was filed before the High Court
of Delhi at New Delhi, which also met the same fate and hence, the present
appeal has been filed by defendant No.2 Ms. Bhagirathi, the daughter in law.
8. The main question urged by the learned counsel appearing for the
appellant is that by virtue of the provisions under Section 28 of the Hindu
Adoption and Maintenance Act, 1956 and the provisions contained under
Section 39 of the Transfer of Property Act, 1882, there would be charge on the
property even after the relinquishment to the extent of share of the husband
available to the deserted wife and considering the aforesaid provisions, later
on there is an order dated 15 th March 2018 passed by the Family Court
regarding maintenance in separate proceedings.
9. Learned counsel appearing on behalf of the aforesaid respondents
has submitted that finding has been recorded in this regard and no case of
interference is made out.
10. After hearing learned counsel appearing for the parties, we are of the
opinion that whether there will be charge on the property after
relinquishment by the husband in favour of the mother, was the question
which was not raised in present case and no issue was framed by the trial
court; as such any observation made in the impugned judgment and order by
the trial court, first appellate court or by the High court, in this case, shall not
come in the way of independent proceedings that have been instituted and
the order of maintenance has been passed, that would be examined
independently. However, on merits, the finding recorded on aforesaid aspect
are diluted and set aside and shall not be treated as binding for any other
case. The case involving aforesaid question has to be decided independently.
11. With the aforesaid clarification, we are not inclined to entertain the
appellant as against the order of eviction that has been passed in the present
12. With the aforesaid observation and modification, the appeal stands
MARCH 20, 2018
ITEM NO.2 COURT NO.10 SECTION XIV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 17152/2015
(Arising out of impugned final judgment and order dated 18-05-2015
in RSA No. 192/2015 passed by the High Court Of Delhi At New Delhi)
SMT. BHAGIRATHI Petitioner(s)
RAJINDER SINGH ANR. Respondent(s)
Date : 20-03-2018 This petition was called on for hearing today.
HON’BLE MR. JUSTICE ARUN MISHRA
HON’BLE MR. JUSTICE NAVIN SINHA
For Petitioner(s) Mr. Krishan Pal Mavi, AOR
Mr. B.P. Mishra, Adv.
For Respondent(s) Mr. Akhil Sachar, Adv.
Ms. Niharika Ahluwalia, Adv.
Ms. Jasmine Damkewala, AOR
UPON hearing the counsel the Court made the following
O R D E R
The appeal is disposed of in terms of the signed
Pending application, if any, also stand disposed of.
(NEELAM GULATI) (JAGDISH CHANDER)
COURT MASTER (SH) BRANCH OFFICER
(SIGNED ORDER IS PLACED ON THE FILE)