Delhi High Court
Vakil Chand Jain vs Prakash Chand Jain on 7 September, 2009
Author: S. Muralidhar
IN THE HIGH COURT OF DELHI AT NEW DELHI
CS(OS) 1942/2001
VAKIL CHAND JAIN ..... Plaintiff
Through: Mr. J.N. Aggarwal, Advocate.
versus
PRAKASH CHAND JAIN ..... Defendant
Through: Mr. Sanjay Jain, Senior Advocate with
Mr. Keshav Ranjan and Mr. Sarfaraz Ahmed and
Ms. Ruchi Jain, Advocates
CORAM:
HON'BLE DR. JUSTICE S. MURALIDHAR
1.Whether reporters of the local newspapers
be allowed to see the judgment? No
2.To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
07.09.2009
S. Muralidhar, J.(open court)
1. By this judgment some of the preliminary issues framed in the present suit
are dealt with.
2. The Plaintiff and the Defendant are brothers. Their father late Shri Badri
Nath Jain, along with their eldest brother Shri Tilak Chand Jain migrated to
Delhi from Rawalpindi in 1947. It is stated that late Shri Badri Nath Jain
deposited the valuables brought by him in a bank locker in the Charter Bank
situated below Jain Sthanak in Chandni Chowk, Delhi in the name of the
eldest brother Tilak Chand Jain. Thereafter the other members of the family,
including the mother of the Plaintiff and the Defendant, the other brother
CS (OS) No.1942 of 2001 page 1 of 18
Shri Nathu Ram Jain and their sister Satya Jain came to Delhi. According to
the Plaintiff, he was the first member of the family to start earning.
Subsequently, Tilak Chand Jain and Nathu Ram Jain also started earning.
According to the Plaintiff, all the sons handed over to their respective
incomes to their father because the family was a joint Hindu family.
3. The father of the parties established a hosiery factory to begin with, in the
residence and later shifted the factory to a residential flat in Kamla Nagar,
Delhi. The Plaintiff states that while still pursuing his studies he helped his
father part-time in the business. Later the Plaintiff took up employment with
the National Physical Laboratory.
4. It is stated that in 1953 the eldest brother Tilak Chand Jain was made a
member of the Vardhman Co-Operative House Building Society („Society‟)
by the father of the parties for the purposes of obtaining a residential plot.
The father late Shri Badri Nath Jain also paid for another plot in the Society.
This amount was credited to the account of Tilak Chand Jain. It is stated
that Badri Nath Jain died of heart attack in February 1957 and till then the
payments for the two plots in the Society were made by him. The family of
the Plaintiff remained a joint one till the year 1962 when the Plaintiff‟s only
sister got married. By then all the brothers were married. Since a three-
room rented flat in which they were living was not considered adequate for
all of them, a part of the family decided to move to a government flat and the
mother of the parties i.e. wife of late Shri Badri Nath Jain, decided to effect
an oral partition of the family properties. It is stated that she divided the
household goods amongst the four sons and permitted them to keep their
CS (OS) No.1942 of 2001 page 2 of 18
incomes with themselves after starting their separate kitchens. While Nathu
Ram Jain along with Prakash Chand Jain (Defendant) moved to a
government flat, Shri Tilak Chand Jain and Shri Vakil Chand Jain (Plaintiff)
along with their mother remained in the old rented flat and started two
kitchens. It is claimed that the sister Satya Jain did not wish to take any
share from the family assets. It is stated that in September 1963, the mother
distributed the joint family assets except jewellery, among her four sons and
also paid cash to the Defendant for his marriage expenditures.
5. According to the Plaintiff, in the above distribution of the assets, the two
memberships in the Society were partitioned with the consent of all the
brothers. The first membership in the name of Tilak Chand Jain was agreed
to be shared and owned equally by him and Nathu Ram Jain. The second
membership was to be shared and owned equally by the Plaintiff and the
Defendant. The mother passed away in November 1963. It is stated that
initially the relationship among the brothers were very good. On his part the
Plaintiff who got a government accommodation in 1966 handed over the
possession of the room in the rented flat vacated by him to the Defendant. It
is stated that till her death it was the mother who was paying the Society for
the two flats from the joint family funds. At one point of time, the Society
pointed out that one member could not have two plots. In terms of the joint
decision of the family, an application signed by all the four brothers was
submitted in the Society to enroll the Defendant as a second member against
payments already made to the Society in the name of Tilak Chand Jain for
the second plot.
CS (OS) No.1942 of 2001 page 3 of 18
6. The Plaintiff claims that he kept paying to the Defendant his share of
payments due to the Society in respect of the membership in the name of the
Defendant. Para 9 of the plaint details the payments made by the Plaintiff to
the Defendant from 1st January 1979 to 10th April 1992 towards membership
of the Society. It is claimed that the Plaintiff thus contributed more than the
Defendant in making payment for the Society plot. The Society allotted a
plot bearing No. 11, Arihant Nagar, Delhi-110026. According to the
Plaintiff, both he and the Defendant decided to jointly build a house thereon.
The building plan submitted to the Delhi Development Authority („DDA‟)
was for two equal and vertically symmetrical portions in the anticipation that
both the Plaintiff and the Defendant would be living in their respective
portions. The DDA, however, did not sanction this plan and made changes
in it in order to make the building asymmetrical. According to the Plaintiff,
the building was nevertheless constructed in a symmetrical manner in
violation of the approved plan.
7. It is stated that the Plaintiff took active part in the construction, contacted
the building contractors, material suppliers, the Delhi Vidyut Board, and
made most of the payments to the chowkidars, contractors and casual
labourers. It is stated that the Plaintiff on getting his retirement dues, made
further payments to the Defendant by means of four cheques dated 17th
August 1993, 7th September 1993, 26th October 1993 and 24th January 1994
in the aggregate sum of Rs.3 lakhs. It is claimed that in order to decide the
portions to be owned by the Plaintiff and the Defendant, an informal draw of
lots was held on 18th February 1994 in the house and the presence of Tilak
Chand Jain. The Plaintiff got the right portion, marked in red in the site plan
CS (OS) No.1942 of 2001 page 4 of 18
and the Defendant, the left portion shown in blue.
8. The Plaintiff has also placed on record, the entire details of the
expenditure incurred by him in the construction of the building as the suit
property. According to the Plaintiff, the Defendant is liable to pay him a
sum of Rs.1,20,000/- "if the account of the expenditure of the building is
settled on equal basis." According to the Plaintiff, he celebrated the house
warming (Grah Pravesh) ceremony of his portion on 19th February 1994 and
the Defendant of his portion on 19th April 1995. The Plaintiff claims that he
and the Defendant have ever since been residing in their respective portions.
It is claimed by the Plaintiff that they shared the house tax payable for the
property equally and he has given the details of the payments made by him
on that score for the years 1996, 1997 and 1998.
9. The Plaintiff states that in view of the joint ownership of the property he
and other members of the family approached the Defendant to get the name
of the Plaintiff included as co-sub-lessee in the DDA records to avoid any
dispute in future between the legal heirs of the Plaintiff and the Defendant.
It is stated that as per the DDA rules, the formality of a gift deed from the
donor was required. In order to comply with this requirement, the
Defendant applied to the President of India as lessor through the DDA on
10th August 1998 seeking permission to gift half of the sub-lease hold rights
in the plot to the Plaintiff. The DDA, by a letter dated 16th November 1998,
asked the Defendant to fulfill the formalities for including the name of the
Plaintiff in the ownership of the property. It is stated that even while the
Plaintiff got papers organised, the Defendant in December 1998 suddenly
CS (OS) No.1942 of 2001 page 5 of 18
changed his mind and refused to complete the formalities for inclusion of the
name of the Plaintiff as a co-sub-lessee in the DDA records.
10. After the notice sent by the Plaintiff to the Defendant on 24th July 2000
asking him to complete the formalities was replied by the Defendant on 30th
July 2000 with a refusal, the Plaintiff filed a suit bearing Suit No. 204 of
2000 in the court of the learned District Judge, Delhi. In that suit, the
Plaintiff filed an application for withdrawal with permission to file a fresh
suit before an appropriate court on the same cause of action. This was on
the ground that the said court did not have the pecuniary jurisdiction to try
the case. By an order dated 18th May 2001, the learned Additional District
Judge („ADJ‟) dismissed the suit as withdrawn with the liberty as prayed for.
The Plaintiff was asked to pay the Defendant the costs of Rs.1500.
Thereafter the present suit was filed on 15th September 2001 seeking:
"(a) a decree of declaration that the Plaintiff is a joint owner of
the property at 11, Arihant Nagar, Delhi-110026 (suit property)
with equal share of the membership of the Society as the
absolute owner of the right portion of the suit property as
depicted in the site plan enclosed with the plaint measuring 87
sq. yards as well as a joint owner in common use and
enjoyment of the green colour portion measuring 26 sq. yards.
(b) for a permanent decree of partition by metes and bounds of
the joint portion shown in green colour and for a final decree of
partition for the separate allotment and enjoyment of the half
portion of the suit property shown in green colour in the site
plan and in the alternative a decree of permanent injunction
restraining the Defendant from alienating, transferring or
creating third party interest in the suit property in the portions
CS (OS) No.1942 of 2001 page 6 of 18
shown in red and green colour in the site plan.
(c) a decree against the Defendant for recovery of Rs.1,20,000
together with interest at the rate of 18% pendente lite."
11. By an interim order dated 18th September 2001 while directing summons
to issue in the suit, this Court directed in the IA No. 8708 of 2001 under
Order XXXIX Rules 1 & 2 CPC that no third party interest shall be created
in the suit property. The Defendant has filed, inter alia, IA No.9248 of 2001
under Order VII Rule 11 CPC seeking dismissal of the suit. In the written
statement, the Defendant pointed out that the Plaintiff had paid a fixed court
fee of Rs. 19.50 for the relief of declaration under Article 17 Schedule 2 of
the Court Fees Act despite the fact that this was not a mere suit for
declaration but also for a consequential relief. It is, accordingly, pointed out
that since the valuation of suit property is shown as Rs.25 lakhs in para 3 of
the plaint, on account of the Court Fee being deficient, this suit is liable to be
dismissed under Order VII Rule 11 CPC.
12. It is thereafter submitted that under Section 4 of the Benami Transactions
(Prohibition) Act, 1988 („Benami Act‟) the suit is barred. The relief of
injunction is also barred under Section 41(j) of the Specific Relief Act, 1963
(„SRA‟). The claim for the sum of Rs.1,20,000/- was barred by limitation. It
is then submitted that in Suit No. 204 of 2000, the Plaintiff had only claimed
the relief of partition and therefore had impliedly given up other reliefs.
Therefore, the present suit praying for reliefs in addition to the relief for
partition was barred under Order II Rule 2 CPC. It is submitted that since the
cause of action in both suits is identical and is shown to have arisen on 10th
CS (OS) No.1942 of 2001 page 7 of 18
August 1998, and since the Plaintiff was permitted to withdraw the earlier
suit only to the extent of filing a fresh suit on the same cause of action, the
Plaintiff was precluded from filing a suit praying for additional reliefs.
13. On merits, it is denied that the property was a joint family property as
alleged. The money received by the Defendant from the Plaintiff as detailed
in para 9 of the plaint is stated to be in the nature of reimbursement of the
expenses incurred by the Defendant in buying household goods. As regards
the payment of Rs.4 lakhs, while the Defendant states that the Plaintiff
helped him as his elder brother in the construction of the building, and gave
the said sum of Rs.3 lakhs in the form of a loan which stood repaid by the
Defendant subsequently. As regards the Plaintiff staying in one half portion
of the suit property, the Defendant contends that the Plaintiff who was in
dire need of shelter had assured the Defendant that he would be residing the
property for a short period and would shift therefrom although he had been
paid back the entire amount which he had lent to the Defendant towards the
completion of the construction. As regards the draft gift deed submitted on
10th August 1998 to the DDA, the Defendant claims that he had signed it
hastily in an emotional state of mind and he had no intention of gifting half
of the property to the Plaintiff. He maintains that he cannot be compelled to
execute a gift deed in favour of the Plaintiff.
14. In the replication, the averments in the plaint are reiterated. It is denied
that the suit is not maintainable, as alleged by the Defendant.
15. On the basis of the pleadings the following issues were framed by this
CS (OS) No.1942 of 2001 page 8 of 18
Court on 15th April 2005:
"1. Whether the suit pertaining to prayers 1 and 2 is
barred under the Benami Transactions (Prohibition) Act,
1988? OPD
2. Whether the suit is barred under Order II Rule 2 in
view of the Plaintiff having filed Suit No. 204/2000?
OPD
3. Whether the plaint has been affixed with deficient
court fee and whether the plaintiff is obliged to pay ad
valorem court fee? OPD
4. Whether the suit pertaining to prayer 3 is barred by
limitation? OPD
5. To what relief is the Plaintiff entitled?
6. If Plaintiff is entitled to the reliefs prayed for what
consequential directions would be required to be issued?
7. Relief."
16. It was further directed by this Court that issues 1 to 4 were agreed to be
treated as preliminary issues.
17. The submissions of Mr. J.N. Aggarwal, learned counsel for the Plaintiff
and Mr. Sanjay Jain, learned Senior counsel for the Defendant have been
heard on the preliminary issues.
18. Mr. Jain submits that the suit is barred under Order II Rule 2 CPC for the
reasons already mentioned hereinbefore. According to him, the permission
granted to the Plaintiff in terms of Order XXIII Rule 1 CPC was to file a
CS (OS) No.1942 of 2001 page 9 of 18
fresh suit on the same cause of action. The only relief sought in Suit No.
204 of 2000 was for partition and it was on the same cause of action i.e. the
event of 10th August 1998 when a draft gift deed was submitted to the DDA
by the Defendant. Since liberty was granted to the Plaintiff only to this
extent, any attempt at seeking any further relief, as has been done in the
present suit, would be barred by the principle of constructive res judicata. It
is even urged that the relief of a bare declaration of title without a
consequential relief, was impermissible in terms of Section 34 SRA. Even if
the Plaintiff were to now amend the plaint to seek a consequential relief,
then the requisite Court fee would not have been paid and therefore the suit
would in any way be barred in law.
19. According to Mr. Jain, the Plaintiff ought to have sought a decree of
mandatory injunction directing the Defendant to execute a gift deed in terms
of the draft gift deed submitted to DDA on 10th August 1998. However,
since in any event the Defendant could not be compelled to execute a gift
deed in respect of the property which was self-acquired, such a relief could
not be granted. According to Mr. Jain, since the Plaintiff himself states that
the partition of the family took place during the life time of the mother in
September 1963 itself, the question of the Plaintiff and Defendant thereafter
being the joint owner of the plot in the Society thereafter cannot and did not
arise.
20. It is further submitted that the Benami Act precludes the filing of a suit
by a person who claims that although the title documents to the property are
not in his name, he should be recognized as a joint owner since the person in
CS (OS) No.1942 of 2001 page 10 of 18
whose name the property stands was holding it on behalf of the claimant as
well. As regards the prayer for recovery of money, it is submitted that since
even according to the Plaintiff the last of the payments was made in 1995 by
the Plaintiff, the suit filed in 2001 was barred by limitation. Mr. Aggarwal
submits that the earlier Suit No. 204 of 2000 did not run its full course and
was permitted to be withdrawn at an earlier stage long before it went to trial.
Therefore the question for the relief sought in the present suit being barred
by the principle of constructive res judicata does not arise. He submits that
a suit for partition would, in any way, lead to the determination of an issue
whether the property is capable of being partitioned and whether the Plaintiff
is entitled to any share. This is, in fact, what would be determined vis-a-vis
the prayer for a declaration of title. Therefore, the prayer for a decree of
declaration as made in the present suit is not inconsistent with the prayer for
the partition of the suit property. As regards the Court fees, it is submitted
that since the Plaintiff is in possession of the portion to which he is laying a
claim, there is no need for him to pay the complete Court fees at this stage
when partition is yet to take place.
21. Mr. Aggarwal maintains that the question whether the property is a joint
family property or purchased out of joint family funds is an issue that would
have to await the conclusion of the trial. Such questions cannot possibly be
examined at the present stage as a preliminary issue. He places reliance on
the decision of this Court in Mahinder Singh v. Pardaman Singh AIR 1992
Delhi 357 and Sarabjit Singh Anand v. Manjit Singh Anand 2008 IV AD
(Delhi) 89. Mr. Aggarwal adds that in terms of the proviso to Section 4 of
the Benami Act, the Plaintiff had a valid defence that the suit property was
CS (OS) No.1942 of 2001 page 11 of 18
either a family property belonging to a Hindu undivided family or a property
held by the Defendant on account of the fiduciary capacity. This again
according to him can be determined only at the stage of trial.
22. As regards the claim for recovery of money, it is submitted that the
prayer should in fact be construed as a prayer for rendition of accounts in
which event it would not be barred by limitation.
23. The submissions of learned counsel have been considered.
24. The earlier Suit No. 204 of 2000 had only one prayer. It was a suit for
partition and the prayer was for a decree "directing partition by metes and
bounds of half share of the Plaintiff in the property." The decision of the
joint family in 1963 that the two memberships of the property of the Society
would be shared equally by the four brothers was mentioned. The fact that
the Plaintiff took active part in the constructions, made payments to the
contractors and that the Defendant took money from the Plaintiff by cheques
during construction time, was paying for construction work, was also
mentioned.
25. The grounds on which the Plaintiff sought to withdraw that suit was that
the Court of the learned ADJ did not have pecuniary jurisdiction to try it.
By an order dated 18th May 2001 the suit was dismissed as withdrawn "with
permission to the Plaintiff to file a fresh suit in an appropriate court of law
on the same cause of action." The cause of action paragraph in both plaints
indicates that the cause of action arose on 10th August 1998 when the
CS (OS) No.1942 of 2001 page 12 of 18
Defendant sent a request to the DDA to permit him to gift half of the sub-
lessee rights to the Plaintiff and thereafter but did not complete the
formalities as required by the DDA.
26. Order II Rule 2 CPC requires, however, the earlier suit to include "the
whole of the claim which the Plaintiff is entitled to make in respect of the
cause of action". The Plaintiff may relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any court. Under Order II
Rule 2(2) CPC where a Plaintiff omits to sue in respect of any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or
relinquished. In other words, the earlier suit filed had to have run its full
course. In such a suit the Plaintiff is expected to make all the claims in
respect of a cause of action. It does not envisage a situation like the present
one where the suit filed stands withdrawn without the suit running its full
course.
27. In terms of Order 23 Rule 1 CPC it is possible for a Plaintiff to withdraw
a suit reserving to himself liberty to file a fresh suit on the same cause of
action. That is what has happened in the present case. Therefore, the filing
of a fresh suit on the same cause of action in the present case cannot be said
to be impermissible in law. The question is whether the Plaintiff here was
precluded from seeking any further relief in respect of the same cause of
action i.e. the one which arose on 10th August 1998. There is nothing in the
order dated 10th February 2001 passed by the learned ADJ that precludes the
Plaintiff from seeking any other relief in respect of the same cause of action
in the fresh suit. It is possible that several reliefs can be sought from a cause
CS (OS) No.1942 of 2001 page 13 of 18
of action. It is only when the suit which is filed at the first instance has run
its full course that it can be said that the Plaintiff will thereafter stand
precluded from filing a fresh suit seeking any further relief. That, however,
is not the position here.
28. The rationale behind Order II Rule 2 CPC also appears to have an
apparent linkage with the principles on which Section 11 CPC operates. The
principles could be either of res judicata itself or of constructive res
judicata. For both these principles to be attracted, the issue that arises
substantially in a suit will have to be heard finally and decided by a court.
Even if one were to accept the submissions of Mr. Jain, learned Senior
counsel for the Defendant, that it is not necessary that the Court should
frame an issue which is "directly or substantially an issue", the requirement
of Section 11 CPC is that such issue should have "been heard and finally
decided by such court." A suit which has been permitted to be withdrawn at
a stage much before any issue is framed, can hardly be said to be a suit
finally heard and decided by a court. Even factually in the present case a
perusal of the order dated 18th May 2001 in Suit No.204 of 2000 shows that
the suit has hardly progressed. Soon after the written statement was filed, the
Plaintiff realised that the court of the learned ADJ lacked the jurisdiction to
try the suit. In those circumstances, the Plaintiff applied to withdraw the suit
reserving the liberty to file a fresh suit. In the considered view of this
Court, neither the principle of constructive res judicata nor res judicata is
attracted to the present case. The principles governing Order II Rule 2 CPC
would also not bar the Plaintiff in the present case from claiming the relief
of declaration or injunction in addition to the relief of partition.
CS (OS) No.1942 of 2001 page 14 of 18
29. Viewed from another angle, the relief of declaration as sought for by the
Plaintiff is actually superfluous. Even if one were to omit this relief from the
prayers in the suit, in order to succeed in the prayer for partition, the Plaintiff
would nevertheless have to prove:
(a) that the property is capable of being partitioned;
(b) that the Plaintiff has a share in the property;
(c) that such share can be ascertained and granted either by metes and
bounds or by sale of the property.
30. Therefore, in effect, the Court will have to decide whether the Plaintiff
has any right, title or interest to a share in the property as claimed by him.
This Court, therefore, does not find any inconsistency in the pleas for a
decree of declaration and a decree for partition sought for by the Plaintiff in
the instant case.
31. For the aforementioned reasons, preliminary Issue No.2 i.e "Whether the
suit is barred under Order II Rule 2 in view of the Plaintiff having filed Suit
No. 204/2000?" is decided in favour of the Plaintiff and against the
Defendant. It is held that the suit is not barred under Order II Rule 2 CPC.
32. Issue No.4 is whether the prayer for recovery of money in the sum of
Rs.1,20,000 against the Defendant is barred by time. The plaint when read as
a whole shows that even according to the Plaintiff the last of the payments
made by the Defendant was sometime in 1995. There can be no manner of
doubt that the claim for money in the present suit filed on 12th September
2001 is barred by time. It is not possible to accept the submissions of
CS (OS) No.1942 of 2001 page 15 of 18
learned counsel for the Plaintiff that the prayer for recovery of money should
in fact be read as a prayer for rendition of accounts. Accordingly, this issue
is decided in favour of the Defendant and against the Plaintiff.
33. In that view of the matter, the prayer in the suit for recovery of money
will stand rejected on the ground that it is barred by limitation.
34. There are two other issues that arise to be considered as preliminary
issues. One is whether the prayers in the suit for declaration and partition are
barred under Section 4 of the Benami Act (Issue No. 1). The other is
whether the plaint has been correctly valued for the purposes of Court fee.
(Issue No. 3)
35. Section 4(3) of the Benami Act is an exception to Section 4(1) which
prohibits a suit, claim or action to enforce any right in respect of any
property held benami against the person in whose name the property is held.
The first exception as provided in sub-section (3) is that the property should
be held by a coparcener in a Hindu undivided family for the benefit of the
coparceners in the family. It is possible that on the basis of the pleadings in
the present case, the Plaintiff has not specifically pleaded the continued
existence of any Hindu undivided family of which he and the Defendant are
coparceners. He, however, has pleaded that payments in respect of the suit
property were made to the Society out of the joint family funds. He has
further pleaded that the property was held for his benefit in the name of the
Defendant. Under Section 4(3) (b), a second exception has been carved out.
Where the person in whose name the property is held is a trustee for another
CS (OS) No.1942 of 2001 page 16 of 18
person standing in a fiduciary capacity, and the property is held on behalf of
the claimant for whom he is such a trustee or towards whom he stands in
such capacity, then Section 4(1) would not constitute a bar to seeking a
declaration as to title.
36. In order that the Plaintiff is able to show that any of the exceptions to
Section 4 as contained in Section 4(3) are attracted, he will have to lead
evidence. For instance, the Plaintiff claims that the payments made by him
to the Defendant were part payments to the Society for the membership
which was to be in their joint names. The Defendant pleads that the money
paid to him by the Plaintiff for the construction of the house was for
reimbursement of the expenditure incurred by him. There is no
documentary evidence placed on record by either party to substantiate these
submissions. Therefore, in order to prove either case, both parties would
have to lead evidence.
37. The position that emerges is that in order to decide Issue No.1, evidence
will necessarily have to be led at the trial. This is also the tenor of the
judgments of this Court in Mahinder Singh and Sarabjit Singh. In the
considered view of this Court, Issue No.1 although may be seen as a
preliminary issue, cannot be decided without evidence being led.
38. Likewise, Issue No.3 regarding valuation of the suit for the purposes of
court fees will also hinge upon the evidence led. If the Plaintiff is able to
show that he is in possession of a portion of the suit property shown in red in
the site plan, then the court fee would have to be calculated accordingly.
CS (OS) No.1942 of 2001 page 17 of 18
This, of course, will further hinge upon the Plaintiff being able to prove that
the suit property was jointly owned by him and the Defendant. Looked at
from any angle without evidence being led, issue No. 3 also cannot be
decided.
39. In conclusion, this Court holds that:
(i) Issue No.2 is decided against the Defendant and in favour of the Plaintiff
and it is held that the suit is not barred under Order II Rule 2 CPC.
(ii) The prayer for recovery of money against the Defendant is barred by
limitation and is therefore rejected.
(iii) Issue Nos. 1 and 3, although preliminary issues, cannot be decided at
this stage without evidence being led. These issues will accordingly be
decided along with other issues at the final stage.
40. For the aforementioned reasons, the case now be listed before the
learned Joint Registrar on 10th November 2009 on which date the Plaintiff
will file the affidavit by way of examination of chief of its witnesses. The
learned Joint Registrar is requested to fix a schedule for the completion of
the recording of the evidence.
41. List before the Court thereafter for arguments.
S. MURALIDHAR, J
SEPTEMBER 07, 2009
dn
CS (OS) No.1942 of 2001 page 18 of 18
