Delhi High Court
Jagan Nath vs Mahinder Kaur And Paramjit Singh on 4 January, 1996
Equivalent citations: 1996 (36) DRJ 108
Author: K Ramamoorthy
Bench: K Ramamoorthy
JUDGMENT
K. Ramamoorthy, J.
(1) A. 11937/95 This application is filed by the plaintiff to bring on record the L/R of Smt. Mahinder Kaur who was the widow of late Kartar Singh, original defendant in the suit. According to the plaintiff, Smt. Mahinder Kaur died on 22.9.95. The son of Mohinder Kaur Paramjit Singh i.s already on record and he is recorded us the L/R of Smt. Mahinder Kaur. The petition is ordered. Amended Memo of Parties shall be taken on record.
(2) IA.5004/88 This application was filed by defendant Kartar Singh for stay of further proceedings in suit No. 1836/88 in view of suit No. 1600/88, filed by Kartar Singh against Jagan Nath plaintiff pending on the file of this Court.
(3) Suit No. 1836/88 has been filed by Jagan Nath for partition and separate possession of the premises hearing No. J-86. Main Market, Rajouri Garden, New Delhi.
(4) The case of Kartar Singh was that he had filed suit No. 1600/88 seeking specific performance against Jagan Nath for the purchase of his half share and, therefore. once Kartar Singh succeeds in the suit there will he no need for any partition of the property as claimed in soil No. 1836/80. According to Kartar Singh his suit is earlier in point of time and, therefore, the proceedings in suit No. 1836/88 should he stayed under section 10 Civil Procedure Code
(5) The claim of Jagan Nath for half share in the property is not disputed and as a matter of fact that is the basis of the suit in suit No.1600/88. Therefore. I do not find any merit in the petition filed by the defendant Kartar Singh for the stay of suit No. 1836/88. Accordingly. IA.5004/88 is dismissed.
(6) IA. 10300/90 This I.A. is filed by Jagan Nath plaintiff in suit No. 1836/88 under Order 12 Rule 6 Civil Procedure Code for passing of a preliminary decree of partition on the ground that the defendant had admitted the plaintiff's 50% share in the suit property.
(7) In reply to the above petition. Kartar Singh has stated that in view of the fact that the plaintiff himself had agreed to sell his half share by agreement dated 24.7.86 and when the suit for specific performance, is pending and part of evidence has already been recorded in that suit, the plaintiff cannot ask for a preliminary decree. According to the defendant there is no admission with reference to the hall share of the plaintiff.
(8) In the written statement filed by Kartar Singh the right of the plaintiff is admitted but what is stated is that there is an agreement for sale in and by which the plaintiff had agreed to sell his share to the defendant.
(9) In the light of the admitted case of the parties that plaintiff is entitled to 50% share there can be no objection to the passing of a preliminary decree and declaring the right of the plaintiff to alf share in the property. Even it the defendant Kartar Singh succeeds in his soil, the right of Jagan Nath to the hall share cannot be denied by the defendant. As a matter of fact, the very basis of the soil for specific performance is that Jagan Nath had agreed to sell his hall share to the defendane. It this Court decrees the suit No. 1600/88 then the half share of Jagan Nath would go to the defendant. Therefore, I do not find any impediment in law in passing a preliminary decree. Accordingly, there shall be a preliminary decree in suit No. 1836/88 declaring half share in the suit property of the plaintiff. IA.10300/90 is allowed.
(10) IA.11937/95 filed by plaintiff to bring on record the L/Rs of Smt. Mahinder Kaur is allowed. IA.5004/88 filed by defendant for slay of suit No. 1836/88 is dismissed. IA. 10300/90 filed by 11 1for passing a preliminary decree in suit No. 1836/88 is allowed.
