Smt. Bimla And Anr. vs Smt. Kalawati And Ors.
2003 Latest Caselaw 316 Del

JUDGMENT

S. Mukerjee, J.

1. This is a civil suit for partition and for separate possession of properties falling in the share of the plaintiffs.

2. The plaintiffs are two daughters of late Shri Amir Singh, who is stated to have died interstate on 13th May, 1994.

3. There are five properties which are forming the subject matter of the claim for partition in the present suit. The details thereof are as under:-

i 62, Gautam Nagar Road, Yusaf Sarai, New Delhi.

ii 161-G, Gautam Nagar (Gujjar Dairy), New Delhi.

iii 86, Gautam Nagar Road, Yusaf Sarai, New Delhi.

iv 85, Gautam Nagar Road, Yusaf Sarai, New Delhi.

v 79, Gautam Nagar Road, Yusaf Sarai, New Delhi.

4. Out of the above, in relation to the properties at Serial No. (i), (ii) & (iii) above, it is the admitted stand of all the parties during arguments that these properties were belonging to Shri Amir Singh. Therefore, the only question which arises in relation to these properties is whether there is any bar to the plaintiffs claiming partition and separate possession of their share in these properties, under Section 23 of the Hindu Succession Act.

5. Accordingly, as far as these three properties are concerned, the prayer for ad-interim injunction, as prayed for by the plaintiffs cannot be seriously opposed. Parts of these properties are admitted to be with the tenants. The location of these properties is in a commercial/converted into commercial area. The apprehension of the plaintiffs regarding the possibility of creation of further third party rights, is neither far-fetched nor unfounded.

6. Therefore, as regards these properties it is directed that till hearing and disposal of the main suit, all parties shall maintain status-quo as regards the ownership, possession, user and construction of these three properties. In case any part of the premises is surrendered back to or recovered back by any one amongst the parties to the suit, or by persons claiming through or under them, then that possession shall be placed at the disposal of this Court, and no new person shall be inducted. Nor will any document be executed nor any act of commission or omission be done or omitted, which has the effect of bettering the rights of any or all of the tenants/licenses/occupants of the said three properties.

7. All amounts received by way of rentals or other charges from the occupants/tenants/licenses, shall be retained by the plaintiffs or defendants, as the case may be, in a designated bank account and shall not be spent or utilized without prior permission of this Court.

8. As regards the other two properties, the position is somewhat different. The property No. 85 is shown in the name of defendant No. 8 as in the records of the MCD for the purposes of house tax, while in relation to the property No. 79, Gautam Nagar Road, Yusaf Sarai, the said defendant No. 8 has a sale deed in his favor dating back to the year 1969.

9. The question is whether there should be interim injunction in relation to these two properties as well. To my mind, the plaintiffs are not entitled to grant of the interim injunction on the materials as at present available on record, in relation to these two properties for the following reasons:-

(a) Property No. 85, Gautam Nagar Road is borne in the name of Shri Dharam Singh, defendant No. 8. The contention of the plaintiffs is that actually the payment had been made by Late Shri Amir Singh. Reliance is placed by the affidavit given by the sellers of the properties confirming that it was Shri Amir Singh who made the payment to them.

(b) Thus plaintiffs would first have to establish that Shri Amir Singh had actually made the payment, and then it would also have to be considered whether in that eventuality the transaction is to be treated as a benami transaction or not.

(c) Moreover, the settled position under the Municipal records is that defendant No. 8 is shown as the recorded owner. The said defendant No. 8 is also in exclusive possession of the said property.

(d) For all these reasons, and also since the plaintiffs have not been able to show any record establishing the ownership or similar rights of Shri Amir Singh, no ad-interim No injunction can be granted in relation to the property No. 85, Gautam Nagar Road.

(e) As regards the property No. 79, Gautam Nagar Road is concerned, the defendant No. 8 has placed on record the sale deed in his favor dating back to the year 1969. After the sale deed came on record, a considerable period of time has passed. Till date no proceedings have been taken towards declaring the sale deed to be void or unenforceable. For these reasons no injunction can be granted in relation to the property No. 79, Gautam Nagar, New Delhi.

(f) Certain rights in property No. 85, Gautam Nagar Road have been claimed by applicant in IA No. 7490/02 on the basis of some other sale deed in his favor in relation to the same property. I.A. No. 7490/02 was allowed on 10th October, 2002 and the applicant was directed to be imp leaded as defendant No. 10. However no injunction can be granted in relation to this property at the instance of that applicant also, for the reason that the applicant in I.A. No. 7490/02, has made no such prayer. Secondly the applicant in IA No. 7490/02 has merely relied on one notice dated 8.1.1968 issued by MCD allegedly calling upon the father of this applicant to pay to MCD certain mentioned amount on account of Tax, whereas defendant No. 8 has filed on record, property tax bills in relation to this property and also receipts showing payment of such tax by this defendant No. 8. Moreover if defendant No. 10 has an independent claim, that will have to be independently agitated by said defendant No. 10 adopting independent proceedings.

10. In view of the above, I.A. No. 3790/1998 (U/o 39 R 1-2 CPC) being the initial injunction applicant of the plaintiffs and I.A. No. 9070/2001 (U/o 39 R 4 CPC) being application of defendant No. 8 for vacation of injunction, are both disposed of, by confirming the grant of ad-interim injunction as detailed in Paras 5, 6 and 7 above but only, in relation to the first three properties out of total five properties referred to in para 2 above, and till final disposal of the main suit.

11. As regards the remaining two properties bearing Nos. 79 and 85, Gautam Nagar Road, Yusuf Sarai, the prayer for ad-interim injunction, is declined as plaintiffs have failed to establish the first of the three mandatory requirements viz strong prima facie case. The injunction granted earlier is vacated in relation to these two properties. Parties are left to bear their costs. Both applications stands disposed of.

12. All observations and/or findings as set out above, are purely prima facie in nature and confined to the present stage of ad-interim injunction. Suit be listed before Joint Registrar for completion of pleadings on 12.5.2003.