Narain Das vs Koramal
2009 Latest Caselaw 2371 Del

*          HIGH COURT OF DELHI : NEW DELHI

+             IA No.4893/2005 in CS (OS) No.316/2005

%                       Judgment reserved on :    6th February, 2009

                        Judgment pronounced on : 8th April, 2009

Narain Das                                             ...Plaintiff
                        Through : Mr. Rajat Aneja, Adv.

                        Versus

Koramal                                               .... Defendant
                        Through : Mr. Ramesh Chandra, Sr. Adv. with
                                  Ms. Geeta Mahrotra, Adv. for D-1
                                  Ms. Reeta Kaul, Adv. for D-2 & 3

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                    Yes

2. To be referred to Reporter or not?                                 Yes

3. Whether the judgment should be reported                            Yes
   in the Digest?

MANMOHAN SINGH, J.

1. The present suit has been filed by the plaintiff seeking the

relief of declaration, partition, rendition of accounts, permanent and

mandatory injunction.

2. The plaintiff and defendant are real brothers and the present

dispute is in respect of Shop bearing No. 215, Mohan Singh Market,

INA, New Delhi which is in joint possession of both the parties.

3. The present application being I.A.No.4893/05 under Order

VI Rule 17 read with Order 1 Rule 10 CPC has been filed by the

plaintiff for amendment of plaint. In Para 7 of the application, it is

stated that it has come to the knowledge of the plaintiff that after filing

the suit that there is a decision taken by the Government to refurbish the

whole market of Mohan Singh Place where the shop is situated for

which purpose all the shops in the market will be taken over by the Land

and Development office and thereafter a new market will be constructed

in assistance with the DDA and thereafter possession will be delivered

to the applicant.

4. The records of the Land and Development office and the

Directorate of estates does not mention the name of the plaintiff in

respect of the shop in question as it contains only the defendant's name

as shown in the record although the plaintiff is the owner to the extent

of half share. It is stated that in the light of the above said facts, it has

become imperative on the part of the plaintiff to implead Land and

Development Office, Nirman Bhawan, New Delhi as well as Directorate

of Estates under the Ministry of Urban Affairs and Employment, Union

of India, New Delhi and DDA as proposed additional defendants 2 to 4

it has become necessary because of its involvement and subsequent re-

allotment of the shops in the market.

5. In this scenario, the plaintiff wants to amend the cause title of

the plaint by impleading the aforesaid parties as defendants 2 to 4 with a

view to safeguard and protect the rights of the plaintiff in the suit shop.

6. The plaintiff by virtue of this amendment propose to

incorporate Para 5A, 6A, 16A and prayer clause (vi) and sub clause (f),

as the same have been necessitated on account of subsequent

development which had taken place during the pendency of the above

noted suit.

7. This application has been opposed by the defendant on

various grounds including that the plaintiff and defendant are joint

owners in equal share. The case of the defendant is that the defendant

has allowed the plaintiff to sell men's wear in a portion of the shop as

his licensee. The said license was revoked in February 2005 and the

plaintiff was called upon to remove all his belongings from the said

shop and wind up the affairs of his business upto 31 st March, 2005. The

plaintiff has no right, title and interest of any kind whatsoever in the

shop in dispute.

8. The defendant has also stated that to the knowledge of the

defendant no such decision has been taken in respect of Mohan Singh

market situated near INA market. The market of Mohan Singh Palace is

situated at Kharag Singh Marg, New Delhi. Learned counsel for the

defendant states that the defendant is the owner of the shop in dispute

and the plaintiff has no right, title or interest in the shop in dispute.

9. The plaintiff has admitted in the plaint that the defendant has

been shown to be the owner of the shop in dispute in the records of the

Directorate of Estates. Learned counsel for the defendant has argued

that by virtue of the provisions of Benami Transactions Prohibition Act,

1988 no suit, claim or action to enforce any right in respect of any

property held Benami against a person in whose name the property is

held, shall lie by and on behalf of the person claiming to be the real

owner of such property. In view of the said Act, the plaintiff cannot

assert any right as joint owner of the shop in dispute.

10. I have considered the rival submissions of the parties. The

reply to this application has also been filed by the Deputy Land and

Development Officer of Land and Development office. It is contended

in the reply filed by the Land and Development office that the shop in

question was originally allotted to Sh. Nathu Ram in 1968.

11. The allotment in his name was cancelled with effect from 1 st

October, 1970 on account of arrears of payment. On 13 th August, 1975

Sh. Kora Mal (defendant herein) applied for regularization and

allotment of the shop in his name on partnership basis which was

entered between Sh. Nathu Ram and Kora Mal, defendant herein and

Smt. Kamlesh with effect from 3rd December, 1968.

12. The said partnership was dissolved on 5 th November, 2008

and the shop remained in the occupation of Kora Mal and Kamlesh till

21st May, 1969 Thereafter Smt.Kamlesh relinquished her share in favour

of Kora Mal who became the sole occupant of the shop till 21 st May,

1969. The said allotment as per reply cannot be regularized in his name

due to unauthorized construction in the premises.

13. The ownership right was granted in the name of Kora Mal

vide letter dated 25th March, 1998 issued by the Directorate of Estates.

14. Learned counsel for defendant No.1 has also argued that

there was no privity of contract between the plaintiff and the Directorate

of Estates and, therefore, the application is highly misconceived and is

not maintainable.

15. In the above said facts and without going to the merits of the

case, I am of the opinion that the application is not maintainable as the

present dispute is between the two brothers wherein the plaintiff is

alleging that he is in occupation of part of the shop in dispute and

admittedly the plaintiff has no title in his favour. There is also no

contract between the plaintiff and Directorate of Estates and in case any

decision is taken by the Directorate of Estates to demolish the market

and re-allocate the same in future it is the defendant who, if necessary,

would take the appropriate remedy if need arises.

16. I feel that in order to decide the controversy between the

parties, the proposed defendants 2 to 4 are not necessary parties and the

amendment sought in the plaint is necessary to determine the real

controversy between the parties. Prima facie. it appears that the present

application has been filed by the plaintiff in order to delay the matter

and/or with some other motive in order to strengthen the claim of co-

ownership in the property by involving the Government Departments. It

appears from the record that by filing this application, the proceedings

in this suit have been delayed for about four years otherwise the main

matter would have been decided by this time. Under these

circumstances, the application filed by the plaintiff is not bona fide and

not maintainable and the same is dismissed with costs of Rs.20,000/- to

be deposited by the plaintiff with the Delhi Legal Services Authority,

Delhi High Court, New Delhi within four weeks from today.

CS (OS) No.316/2005

17. List this matter before the Joint Registrar for

admission/denial of documents on 1 st May, 2009. No further

adjournment in this regard will be granted. For framing of issues before

this Court, list the matter on 1st July 2009.

MANMOHAN SINGH, J APRIL 08, 2009 SD