Simret Katyal vs Varinder Katyal
1996 Latest Caselaw 80 Del

JUDGMENT

S.D. Pandit, J.

(1) Smart Katyal has filed the present suit to get a decree for partition.

(2) Plaintiff is the widow of late Harinder Katyal whereas defendant Varinder Katyal is the real brother of the said late Harinder Katyal. Both the brothers were owning certain properties and had also joint business but disputes had arisen between them which resulted into Harinder filing a petition under Section 20 of the Arbitration Act and defendant Varinder filing Suit No. 2009/85 to get a decree of partition and dissolution of partnerships between him and late Harinder Katyal. During the pendency of the said suit Harinder Katyal died and, thereafter the present plaintiff is brought on record as legal representative of said Harinder Katyal as he had died leaving behind him his widow as his only heir.

(3) Thereafter the present plaintiff and defendant filed a joint application under Order XXIII Rule of the Code of Civil Procedurebearing No.IA.3938/90 in the said suit in order to pass a decree in terms of the Memorandum of Understanding arrived between the plaintiff and defendant, which was annexed as Annexure 'A' to the said Application. After recording the statements of the parties on oath and on finding that the compromise was arrived at by the parties of their own sweet will the suit was decreed on 17.5.1990 by ordering that the Memorandum of Understanding dated 30.4.1990 should form part of the decree and a decree in terms of the compromise application be drawn and hence.. the earlier round of litigation between the parties had come to an end.

(4) Plaintiff has now come before the Court with the case that as per the Memorandum of Understanding between the parties dated 30.4.1990 the open space on the first floor and the second floor of the said building was kept common and joint and that a portion of the said open space be partitioned by allowing her half share of the same. Before the present suit,which is filed on 20.2.1992, the present plaintiff had filed Civil Suit No. 1731 /91 on 16.8.1991 to get a decree of perpetual injunction against the present defendant in respect of the same property.

(5) The claim of the plaintiff is resisted by the defendant by filing the written statement. The main contention raised on behalf of the defendant is that in view of the decree passed in the Suit No. 2009/85 on 17.5.1990 there was a complete partition of the property in question, viz. House No. 21, Bungalor Road, Delhi and, therefore, the present suit is barred by the principles of resjudicata. it is further contended that the plaintiff had brought Civil Suit No. 1731/91. While filing the said Suit the plaintiff had not obtained leave of the Court under Order Ii Rule 2 of the Code of Civil Procedure and, therefore, the plaintiff's present suit is barred. It is also contended that plaintiff's application that she was getting water to her premises from the water tank on the terrace is false and she has means to get water to her premises. Therefore, in these circumstances, it is contended that plaintiff's suit be dismissed.

(6) In view of the pleadings between the parties my learned Predecessor had settled issues and out of those issues he had ordered that Issue Nos. 2 to 4 be treated as preliminary issues and the finding on the said issues be recorded Accordingly Rule 2 Civil Procedure Code or the principles there of ? No. 3. Whether the present suit is barred in view of allegations made in para 3 of the preliminary objections of the written statement? Yes. 4. Whether any portion of the property in question remains joint property of the parties? No.

(7) Before proceeding to consider the dispute between the parties it is necessary to mention here at the cost of repetition that the present defendant had filed Suit No. 2009/95 against the husband of the present plaintiff for dissolution of the partnership firms and rendition of account. During the pendency of the said suit plaintiff's husband had died and she was brought on record. After the death of plaintiff's husband parties had negotiated and they had arrived at a settlement and understanding and in consequence of the same they executed Memorandum of Understanding on 30.4.1990 and thereafter they filed a joint application under Order Xxiii Rule 3 of the Code of Civil Procedure by annexing the Memorandum of Understanding as Annexure 'A' to the application and to pass a decree in terms of the compromise application and Annexure 'A'. It is not in dispute that the Court had recorded the statement of both the parties on oath and after satisfying that the compromise was voluntarily arrived at between the parties and a decree in terms of the Memorandum of Understanding and Annexure 'A' has been passed. It is necessary to mention here that as per the amended provisions of Order Xxiii Rule 3 of the Code of Civil Procedure a proviso has been inserted that it is open for a Court to pass a decree in respect of an agreement and compromise between the parties even in case if the property was not originally the subject matter of the suit. It is also necessary to mention here that plaintiff is not disputing in her petition the claim of the said Memorandum of Understanding as well as the passing of the decree which includes the Memorandum of Understanding as a part of the decree.

(8) Learned Counsel for the defendant vehemently urged before me that the present suit of the plaintiff is hit by the provisions of Order Ii Rule 2 of the Code of Civil Procedure in view of the fact that in the earlier suit brought by the present plaintiff bearing Suit No. 1731/91 plaintiff had not sought a decree for partition. It is not in dispute that in Suit No. 1731/91 plaintiff had not sought a decree for partition. Suit No. 1731/91 is brought for getting a decree of perpetual injunction to restrain the defendant from alleged obstruction of the common use of certain portion of the property in question. The cause of action had arisen because of the get partition and separate possession only in case if he finds that there is denial of his joint title or he finds it is dangerous for him to continue that joint possession and joint user. As against this, in an injunction the party is entitled to sue whenever there is any obstruction in exercising his legal rights of possession or enjoyment. Merely because there is obstruction in enjoyment and possession it is not necessary for the party to go for partition. Therefore, I am unable to accept the contention of the learned Counsel for the defendant that the plaintiff suit is hit by Order Ii Rule 2 of the Code of Civil Procedure.

(9) The real crux of this matter is as to whether as per the Memorandum of Understanding dated 30.4.1990 there is a complete partition of the property in question or not. It is settled law that when a Court has to consider a document the Court has to read the document as a whole and the Court is not to take into consideration a sentence here and there and to come to a positive conclusion. Therefore, in order to decide the controversy between the parties it is necessary to take all the terms of the Memorandum of Understanding between the parties, which has formed part of the decree. The said Memorandum shows that in para Nos.1 to 8 they have effected the partition of the joint properties between them. It would be appropriate to quote the understanding between the parties in the own words regarding partition effected by them and those paras 1 to 8 read as under :

1.SK shall take over the business of Universal Popultary & Bleedings Farm together with all assets and liabilities except for the following :- (a) Amount owing by the firm to the Union Bank of India in respect of various facilities that had been granted to the firm which liability has been agreed to be taken over by Vk who will be entitled to directly deal with and settle or enter into any arrangements with the Union Bank of India and shall keep Sk harmless and indemnified in respect of the said liability or such amount in respect thereof as Vk may settle or agree upon with the said Bank. (b) compensation in respect of lands belonging to the firm and/or its erstwhile partners that had been acquired and/or any enhancement thereof as per the orders of the Court of the Additional District Judge, Delhi or such orders as may be ultimately passed in relation thereto shall be shared equally between Sk and Vk and each of the two parties hereto shall cooperate with and assist each other in realisation of the said amount of compensation and provide such writings or documents jointly and/or saveraly as may be required in connection with the same.

2.(a) Vk shall take over the entire business of the firm Bhagwan Dass & Co., Kashmere Gate, Delhi together with all assets and liability & Co. at Nicklson Road, Delhi and presently allotted to Mr. J.S. Tyagi, Manager of the Firm shall continue to be held and considered as in the Joint Tenancy of Sk and Vk and Shri Tyagi shall be entitled to reside therein for so long as he continues to be with Bhagwan Dass & Co. or till such time Vk permits and/or agrees to his continuing in occupation and after the same is vacated by Shri Tyagi the parties will mutually agree upon its user or disposal.

3.Shares held by the deceased Shri Harinder Katyal in Mahavir Ice Factory Pvt. Ltd. and Kumar Ice Factory Pvt. Ltd. have devolved upon and shall best in Sk who shall be exclusively entitled to the same. Vk is also a share holder and shall continue to hold and be entitled to the share held by him and neither party shall claim any interest therein.

4.Shares in Bhagwan Dass & Co. Pvt. Ltd. that were held by late Shri Harinder Katyal have devolved upon and shall be registered in the name of S.K. Vk shall continue to hold the shares presently held by him in the said Company.

5.Property No. 21, Bungalow Road, Delhi was jointly owned by late Shri Harinder Katyal and Vk and consequent upon the demise of Shri Harinder Katyal its share has devolved upon SK. Sk and Vk have agreed that ground floor portion of the said property together with half share in the open lawn in front and half share in the Courtyard in the rear which is presently in SK's occupation shall belong to and be held by Sk exclusively and the other constructions on the 1st Floor and Barsati Floor portion of the said property together with half share of the lawn in front and half share in the Courtyard at rear presently in occupation of Vk shall be vested in and belong to Vk absolutely and forever.

It is, however, agreed that Vk will at his own cost construct on the rear portion of the rear Courtyard falling in SK's share a garage-cum- servant quarter block for her independent and exclusive use and till such time the said constructions are carried out and provided Sk will be entitled to make use of a garage and the servant room in the existing garage-cum-servant block in the rear Court-yard in the portion belong- ing to VK. Parties have also agreed that the room used as Pooja Room with the front Varandah abutting it on the Ground Floor portion shall vest in and belong to VK. 6.It is agreed and understood that Sk will assume all responsibilities in respect of all suits, proceedings, litigation, notices or business dealings in respect of any liability claim of any nature which exists or may arise in respect of Universal Popultary Breeding Farm other than the liability of Union Bank of India which is to be liquidated by Vk as per Clause l(a).

7.It is also agreed and understood that Vk shall be responsible for and assume responsibility for dealing with litigation pending between the erstwhile firm of Universal Popultary & Breeding Farm and the Union Bank of India as also in respect of all suits proceedings, litigation or notices involving or concerning the firm of Bhagwan Dass & Co. or pertaining to its assets and liabilities and shall keep Sk harmless and indemnified in respect of the same.

8.Both Sk and Vk have agreed that they shall have these understandings confirmed and recorded in the pending proceedings pertaining to the two firms that had been instituted either by Late Shri Harinder Katyal or by Vk and have the said proceedings disposed of, compromised and settled in terms of the understandings herein recorded.

(10) From the above terms of the document it would be quite clear that whenever a party intended to keep a property joint that they had specifically mentioned so in the Memorandum of Understanding and they have also further mentioned as to how and in what manner the said joint property is to be subsequently divided by the parties. If the said terms as regards the property in question, viz. property No. 21, Bungalow Road, Delhi, is taken into consideration then it would be quite clear that not only details are given as regards division of the said property in the said compromise and there is no mention of keeping that property out of the bungalow in common. There is also no subsequent para in the said Memorandum of Understanding mentioning therein that the property in question is kept common. It must be also remembered that when the parties are effecting partition they will have complete partition effected in respect of the properties between them. If the above terms are also seen then it would be quite clear that they have done so. No doubt, two properties are kept common but they are kept common because they were not in their possession and they were in possession of third person and they were also net owners of them but they had some rights in respect of those properties and, therefore, as they had become impartible between them at the time of Memorandum of Understanding they had kept them common.

(11) Learned Counsel for the plaintiff vehemently urged before me that in the said Memorandum of Understanding between the parties while allotting the property of the present defendant what has been mentioned is that the other construction on first floor and barsati floor of the said property alone are allotted to the defendant. But it is very pertinent to note that the word 'alone" which he issuing is nowhere mentioned in the Memorandum of Understanding. It is not also barsati floor will go alongwith the constructed portion because of the construction including the open construction on the first floor and second floor are allotted to the defendant.

(12) No doubt from the report of the Commissioner on record it is quite clear that there is one cement tank on the first floor and from that cement tank water is available to the bathroom of the plaintiff. But merely because water is coming from the tank on the first floor it could not be said that that portion of the first floor is kept common between the parties. It is quite obvious that when the upper portions of the building are given to the defendant, the defendant must give the facility to the plaintiff of getting water from the water tank on the first floor of the building. No doubt as per the report of the Commissioner plaintiff could fix a tank in her open portion allotted to her but merely because that possibility is there the defendant cannot deprive the plaintiff of her right to take water from the water tank on the first floor which the plaintiff must maintain and allow the plaintiff to take water from die tank unless the plaintiff voluntarily gives up that right or facility.

(13) Thus, in my opinion, in view of the clear terms of the Memorandum of Understanding between the parties no portion out of the property in question, viz. House No. 21, Bungalow Road, Delhi, is kept common between the parties. Consequently, the present suit is barred on account of the decree of partition passed in the earlier suit between the parties.

(14) Thus, I answer Issue No. 2 & 4 in the negative whereas Issue Nos.3 is answered in the affirmative. In view of these findings, the present suit is not tenable. I, therefore, dismiss the suit but in the circumstances of the case I direct the parties to bear their own costs.