Sushil Rattan Kapahi vs Shiv Kumar Kapahi And Ors.
1995 Latest Caselaw 480 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The main suit is for partition and the plaintiff claims I /2 share in the suit property which is of an extent of 369.44 sq. yds. I do not want to deal with the facts in detail because the suit itself was filed in 1987 in the lower Court. Subsequently, it was returned on account of question of jurisdiction and the suit came to be numbered in this Court as Suit No. 1054/94 and I am dealing with the prima facie contentions of the parties for the purpose of I.As.

(2) I.A.4482/94 is for injunction and the relief is in the following terms :- "It is, therefore, respectfully prayed that by an ex-parte order the defendants Nos. 1 and 2 be restrained from alienating and/or parting with possession, disposing of creating any third interests in respect of the property bearing No. 70, measuring369.44 sq. yds. in Motia Khan, Dump Scheme, M.M. Road, now known as Rani Jhansi Road. That by an ex-parte order the defendant Nos. I and 2 be further restrained from raising any construction and/or alteration in respect of the property bearing No. 70, measuring 369.44 sq. yds. in Motia Khan, Dump Scheme, M.M. Road, now known as Rani Jhansi Road." I.A.9908/94 has been filed by the first defendant for rejecting the plaint under Order 7 Rule 11 CPC. I.A. 9909/94, filed by the first defendant for a direction .to the plaintiff to deposit a sum of Rs. 25,000.00 every month for discharging a liability of the firm to Dda on account of the penalty to be imposed for not raising the construction over the plot in question.

(3) I.A.1630/95 is filed by the first defendant for vacating the injunction granted in I.A. 4482/94.

(4) I.A.4383/95 is filed by the plaintiff under Order I Rule 10 Civil Procedure Code . to implead State Bank of India because the first defendant had mortgaged the property to the State Bank of India and the State Bank of India may bring the entire hypotheca for Realizing the amount borrowed by the first defendant.

(5) The suit property was allowed to a partnership on 3.12.1956 by the Delhi Development Authority. The partners were Shiv Kumar, first defendant and his brother Ram Rattan. The property belonged to the partnership. Plaintiff is the son of Ram Rattan. On 13.7.1962RamRattandied. The first defendant Shiv Kumar and the legal representatives of Ram Rattan including the plaintiff brought up a dissolution deed on 24.4.1963 in and by which 50% was given to the branch of Ram Rattan and 50% was taken by Shiv Kumar. The plaintiff son of Ram Rattan, it is stated was working in the partnership of Shiv Kumar, apparently with his sons. Plaintiff was only an employee. According to the plaintiff, he ceased to be the employee of first defendant in or about 1983 and according to the first defendant he ceased to be employee in 1992 itself.

(6) The main contention of the learned Counsel for the first defendant is that the plaintiff and the other legal representatives of Ram Rattan did not act in terms of the dissolution deed dated 24.4.1963 by paying the dues to the Dda and all the amounts payable to the Dda were paid only by the first defendant and in the yearl969 first defendant had entered into an agreement with Dda by which the Dda had agreed to confer on him permanent right in the property. In the year 1969 itself he created encumbrances asserting his absolute title to the property. The further contention of the learned Counsel for the first defendant is that assuming Ram Rattan branch had 50% in the property which remains only a plot with small construction. The first defendant has prescribed title by ouster and the heirs of Ram Rattan were well aware of the documents executed by the Dda in favor of the first defendant in 1969 because that document was registered and under Section 3 of the Transfer of Property Act registration is noticed to the legal heirs of Ram Rattan and 26 years after the document in his favor with the Dda the plaintiff cannot claim any right. The learned Counsel for the first defendant also contended while the dissolution deed dated 24.4.1963 would mention that actual physical possession of 50% was given to the branch of Ram Rattan, in the plaint it is stated that no physical possession was given to them and, therefore, there is an admission on the part of the plaintiff that possession continued with the first defendant and that would strengthen the case of the first defendant relating to the plea of ouster. The suit has been pending since 1987 and no construction has been made in the property and the suit has to be posted for trial shortly. Suppose I dismiss the application for injunction and permit the first defendant to put up construction and the first defendant spending a huge sum of money put up construction should this Court 462 at the time of trial of this case grant for relief to the plaintiff. I find it very difficult to visualise the situation. One of the questions would be decided is whether the plaintiff once admittedly having title had lost it and if the suit is decreed the branch of Ram Rattan would not be adequately compensated in terms of money. Prima facie, I am of the view that the first defendant cannot at this stage defeat the rights of the plaintiff on the basis of house tax. I am also of the view that it cannot be contended by the first defendant that the document by the Dda in 1969 in favor of the first defendant would clothe him with absolute right of the plaintiff as heirs of Ram Rattan are extinguished. I, therefore, feel that there should be an injunction in I.A. 4484/94 pending the disposal of the suit. Accordingly, IA.1630/95 for vacating the injunction is dismissed.

(7) I.A.9908/94 for rejecting the plaint, I have gone through the petition and I do not find any justification at all in entertaining the application. Therefore, IA.9908/94 is dismissed. No costs.

(8) IA.9909/94, as stated above, is for direction to the plaintiff to deposit a sum of Rs. 25,000.00 . That is a matter to be considered only at the time of the trial and the first defendant being the uncle of the plaintiff should have taken all steps to safeguard the interest of the children of his brother and he is not at all justified in claiming absolute title to the property. I, therefore, reject I.A.9909/94. No costs.

(9) I.A.4383/95, as stated above, it is for impleading State Bank of India. It is not disputed that the first defendant had mortgaged the property to the State Bank of India. Therefore, State Bank of India is necessary and proper party to the proceedings because State Bank of India, in the event of the suit being decreed, cannot proceed against the other 50% of hypotheca, owned by the heirs of Ram Rattan. I, therefore, allow IA.4383/95 and direct the impleadment of State Bank of India as a party defendant to the suit. No costs.

(10) Amended Memo of Parties be filed within three days and notice be issued to the State Bank of India for 1st of August 1995. Issues will be framed immediately after the State Bank of India files the written statement.

(11) In view of the fact that the matter is pending for long time, this Court has to taken up the suit for trial because as contended by the learned Counsel for the first defendant parties have to pay the dues to the Dda and unless matter is finally determined, the parties may loose the property itself if the Dda would cancel the allotment. I, therefore, post the matter for trial on December 1995. All the above I.As are disposed of.