Subhash Choudhury & Ors. vs Nahar Singh & Ors.
2000 Latest Caselaw 1252 Del

ORDER

Manmohan Sarin, J.

1. By this order, I would be disposing of I.A. 10759/91, moved by the plaintiffs under Order 39 Rules 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908. Plaintiffs have filed this suit for partition. By the present application, they are seeking a restraint on the defendants 1, 2 and 11 to 14 from disposing of, transferring, selling, alienating or parting with possession in any manner property, ad-measuring 1700 sq.yards, falling in Khasra Nos.175, 176, 177 and 178, Sudhora Kalan, Delhi, bearing municipal No.1523 AB to 1528 AB, Shastri Nagar, New Delhi, during the pendency of the suit.

2. For a proper appreciation of the dispute involved in this suit for partition, it would be necessary to notice the family lineage.

Nainsukh Dass had three sons, Chaman Singh, Manohar Lal and Prabhu Singh. The joint property had devolved upon Chaman Singh and Prabhu Singh while Manohar Lal had separated out. The present dispute is between the descendants of Chaman Singh, who are plaintiff Nos.1 to 3 and Defendants Nos.3 to 4 and 6 to 10. While descendants of Prabhu Singh are defendant Nos.1 to 2 and 11 to 14.

3. Plaintiffs claim that Chaman Singh and late Prabhu Singh, both sons of late Shri Nain Sukh Dass, were the owners of land ad- measuring 2700 sq.yards, falling in khasra nos.175, 176, 177 and 178, Sudora Kalan, Delhi. Presently, the said property is said to be bearing municipal nos.1523 AB to 1528 AB, Shastri Nagar, New Delhi. Plaintiffs, who are descendants of Shri Chaman Singh, admit that late S/Shri Chaman Singh and Prabhu Singh had, out of the land jointly owned by them, viz. 2700 sq.yards, sold about 01 bigha, i.e. approximately 1008 sq.yards of land, to defendants 1 & 2 by a registered sale deed dated 21.1.1966. Defendants 1 & 2 happen to be no other than the son and daughter of Prabhu Singh, viz. Nahar Singh and Vidhya Rani.

4. Plaintiffs case is that the balance 1700 sq.yards are held jointly by the plaintiffs and the other defendants. It is averred that plaintiffs' father and grandfather having expired, Shri Prabhu Singh was the elder in the family, who was managing the joint property. Some constructions were also raised and some tenants were inducted, who were paying the rent. Some of the tenants are stated to be paying the rent to the plaintiffs and the others to Shri Prabhu Singh and his son and descendants. Plaintiffs also claim that Prabhu Singh, vide General Power of Attorney and Agreement to Sell dated 27.11.1987, stealthily, in collusion with defendants 1 & 2 sold 250 sq.yards of land. Again, about 246 sq.yards of land was sold vide an Agreement to Sell and General Power of Attorney dated 18.2.1988. Plaintiffs claim that they learnt of these only in December 1989 and when they protested to Prabhu Singh and his son and defendants 11 to 14. The latter assured them that plaintiffs need not have any apprehension or worry on this account since these sales only transferred about 500 sq.yards out of a total of 1700 sq. yards and the said defendants being entitled to half, the share of the plaintiffs and descendants of Chaman Singh still stood totally protected. The plaintiffs, being dissatisfied, demanded partition of the property, but defendant No.1 refused. Hence, the present suit for partition. During the pendency of the suit, plaintiffs seek protection of the corpus of the property, which is claimed to be joint property.

5. Written statement has been filed on behalf of the contesting defendants, viz. defendants 1, 2 and 11 to 14. The said defendants claim the suit to be a false one. It is averred that, admittedly, the predecessor-in-title of the petitioners, viz. Chaman Singh and defendants' father Prabhu Singh had jointly, by a registered Sale Deed sold 1000 sq.yards of land to defendant Nos.1 and 2. The said sale deed was duly witnessed by plaintiff No.1. It is also denied that there is any joint property left. It is claimed that Shri Chaman Singh, predecessor-in-title of the plaintiffs and defendants 3 to 10 and Shri Prabhu Singh, father of defendants 1 & 2 and predecessor-in-title of defendants 11 to 14 had partitioned their land vide a registered partition deed dated 11th of April, 1966, wherein the land and property stated therein was partitioned between Shri Chaman Singh and Prabhu Singh. It is claimed that after the partition of the said areas, the plaintiffs and defendants 3 to 10 and the descendants of Prabhu Singh have been separately dealing with their properties and the constructions made in their individuals rights. The plaintiffs, in their replication, have denied the execution of the said partition deed, which the defendants claim has been witnessed even by plaintiff No.1.

6. Defendants have also pointed out that as regards the properties in their possession, defendants 1 & 2 and 11 to 14 have been receiving the rents from the tenants and had instituted a number of proceedings, which have been filed on record. In these proceedings the tenants were even defended by the same counsel who happens to be the counsel for the plaintiffs in this suit. Similarly, it is claimed that plaintiffs had been receiving the rents from the tenants in respect of the property falling to their share in their own rights.

7. Normally, in a suit for partition, the corpus of the property is to be protected during the pendency of the suit. In the instant case, I find that the injunction is opposed on the ground that the land was already partitioned by a registered partition deed. The plaintiffs and descendants of Chaman Singh, i.e. defendants 3 to 10, have been dealing with the properties that had fallen to their share on partition in their own right and receiving the rents directly from the tenants. This fact is admitted in the plaint also. In fact, in the replication, the plaintiffs have averred that there was forcible induction of tenants by the respondents and thereupon the plaintiffs also, seeing such behavior, started Realizing rents exclusively from some of the tenants.

8. No documents or correspondence has been placed on record by the plaintiffs to show that they had protested against forcible induction of any of the tenants by the defendants or to the latter dealing with the joint properties as their own. However, the contentions raised by the plaintiffs in the replication do indicate that the plaintiffs and the contesting defendants, after the partition/division of the property, acted upon the partition and dealt with the properties in their individual rights. Further, it is also an admitted case that 1000 sq.yards of land was sold to defendants 1 & 2 by the predecessor-in-title of the plaintiffs and defendants 3 to 10 and Shri Prabhu Singh, predecessor-in-title of defendants 1, 2 and 11 to 14.

9. The contesting defendants have set up a registered partition deed, to which there is only a bald denial. Learned counsel for the plaintiff, while assailing the partition deed, submits that plaintiffs and their predecessor-in-title did not receive 2.5 bighas of land. According to the counsel, if Prabhu Singh had received 1500 sq.yards and plaintiffs' predecessor-in-title had received 2500 sq.yards as per the partition deed, where has the land which fell to the share of the plaintiffs gone? It is not for the defendants to explain this position or answer the said question. Plaintiffs' case must stand on its own legs and it is for the plaintiffs to show a prima facie case for grant of injunction. There is a presumption as to the authenticity and genuineness of the registered partition deed, which partitioned the land/property between the parties. Moreover, the fact that defendants 1 & 2 and descendants of Prabhu Singh had been litigating with the tenants in their own right. The plaintiffs had similarly been dealing with their tenants. These are facts which strongly point out towards partition and division of the property. In these circumstances, I find that plaintiffs have failed to make out a prima facie case for grant of an injunction or restraint or a fetter on the right of defendants 1, 2 and 11 to 14 to alienate the properties in their possession. The plaintiff has to rest content with the doctrine of Lis pendens, as applicable.

10. IA.10759/91 has no merit and is dismissed.

11. The findings given in this order are for the purposes of disposal of the interim applications only and are based on a prima facie view of the pleadings and documents on record. These will not affect the trial of the suit on merits.