The respondent filed an application under Order XII Rule 6 of the Code of Civil Procedure for passing a decree in her favour on the ground that a suit for partition, which had earlier been filed by the appellant on the same ground i.e. that the suit property was a HUF property, had been dismissed by the District Court vide judgment dated 8.9.2003 and affirmed by the High Court vide judgment dated 12.9.2011 and the respondent companytended that the same amounted to an unequivocal admission by the appellant that the respondent was entitled to possession.
Appellant defendant further pleaded that though there was a dispute regarding his ownership and possession, the same was settled between all the family members vide companypromise deed dated 22.10.1997.
We have heard learned companynsel for the parties.
Coming back to the instant case there is numberdispute that the plaintiff respondent filed the suit for possession of the suit property and also for recovery of Rs.5,55,000/ and future damages at the rate of Rs.
The trial companyrt dismissed the application vide judgment dated 7.6.2013.
Hence, the present appeal by special leave by the defendant son.
The High Court numbered that the only new plea taken by the defendant in his written statement was that he was a companyowner vide companypromise deed dated 22.10.1997 and held that this plea was barred on the grounds of companystructive res judicata having number been raised earlier in the partition suit filed by the defendant.
The trial companyrt further held that for passing a decree under Order XII Rule 6 CPC, the defendant had to make an unequivocal and unqualified admission.
5,55,000/ and future damages Rs.15,000/ per month is companycerned, admittedly this question has number been decided either in the earlier suit or in this suit.
In that view of the matter, decreeing the entire suit on the basis of ownership of the plaintiff respondent already decided in the earlier suit, the decree for recovery of damages ought number to have been passed by the High Court.
Aggrieved by the judgment of the trial companyrt, the respondent filed a revision petition before the High Court.
The trial companyrt held that though the judgment dated 8.9.2003 of the District Court and judgment dated 12.9.2011 of the High Court had rejected the plea of the appellant that the suit property was a HUF property, these findings were made in a suit for partition whereas the present suit was filed for recovery of possession and damages.
The High Court accordingly set aside the order passed by the trial companyrt and decreed the suit.
In the plaint it was specifically pleaded that the ownership right in the suit property has already been decided in favour of the respondent and against the appellant by judgment and decree dated 8.9.2003 and the appeal filed by the appellant was also dismissed vide judgment dated 12.9.2011.
The appellant herein has number made such an admission regarding his liability to pay the damages claimed by the respondent.
However, in the instant case, at the time of admission of this Special Leave Petition, the following order was passed on 12.11.2014 In the event the petitioner deposit a sum of Rs.5,00,000/ Rupees Five Lakhs in the account of his mother Respondent, numberice shall be issued only companyfining to the question as to whether the decree passed under the provisions of Order XII Rule 6 CPC is justified.
The High Court while allowing the appeal and decreeing the suit with companyts held that the pleas taken by the appellant defendant regarding the companytribution made by his grandfather, father and himself in the purchase of the suit property had been rejected by the High Court vide judgment dated 12.9.2011 and the same will operate as res judicata.
The plaintiff respondent claimed title in the suit property and averred that the appellant is in unauthorized occupation of the suit property without any authority or justification.
15,000/ per month.
The aforesaid affidavit accompanied by the certificate of the fees of the companynsels be filed by the petitioner within a period of four weeks and companyts be paid thereafter within a period of four weeks.
Y. EQBAL, J. Leave granted.
This appeal by special leave is directed against the judgment and order dated 28.8.2014 of the High Court of Delhi allowing the revision petition preferred by the respondent plaintiff against the order of the trial companyrt which has dismissed her application in a suit for recovery of possession and damages with respect to a portion of the property being in unauthorized occupation of the appellant defendant.
The factual matrix of the case is that the plaintiff respondent filed a suit against the defendant appellant who is her son, for recovery of possession and damages alleging that she had purchased the suit property out of her own fund and she is the absolute owner, but part of the property was under the illegal occupation of the appellant defendant, who opposed the suit companytending that the suit property was a Hindu Undivided Family property having been purchased in the name of the respondent using the funds of his grandfather, father and himself and number purchased by the respondent as she was a housewife having numberincome.
