Shri Harish Kumar Bhateja vs Shri Bhagwan Dass & Ors.
2011 Latest Caselaw 3155 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 06.07.2011

+           CS(OS) No. 1114/2008

SHRI HARISH KUMAR BHATEJA             ..... Plaintiff
              Through: Mr. Rajeev Saxena, Adv.

                     versus


SHRI BHAGWAN DASS & ORS.              ..... Defendant
              Through: Mr. S.P. Pandey, Adv. for D-1 to
             10.
             Ms. Gita Dhingra, Adv. for D-11 & 12.
             Mr. R.K. Bedi, Adv. for D-13 & 14.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether Reporters of local papers may
   be allowed to see the judgment?                          No.

2. To be referred to the Reporter or not?                   No.

3. Whether the judgment should be reported                  No.
   in Digest?

V.K. JAIN, J. (ORAL)

IA 7014/2008 (u/O 39 R 1 & 2 CPC)

1. This is a suit for partition of property No.H-10,

Kirti Nagar, New Delhi. The case of the plaintiff is that the

aforesaid property was owned by an HUF of which he is a

member, along with his father, brother, uncles and cousins.

The case of the plaintiff is that the sale consideration for the

aforesaid property was paid from the funds of the HUF,

though the Title Deed was executed in the sole name of his

grandfather. The HUF, according to the plaintiff, was

headed by his grandfather late Sh. Kesho Dass. In the

lifetime of Sh. Kesho Dass, defendant No.11 Baldev Raj filed

a civil suit being 607/1973 seeking a declaration that the

aforesaid property which had been acquired in the name of

late Sh. Kesho Dass was an HUF property. Vide judgment

and decree dated 18th November 1974 Sh. Ravi Kumar, then

Civil Judge, Delhi passed a decree for declaration declaring

the aforesaid property as HUF property. The plaintiff, who

claims to be a member of the aforesaid HUF, is seeking

1/18th share in the aforesaid property. IA 7014/2008 has

been filed seeking injunction against sale, transfer,

assignment and parting with possession of the suit property

during pendency of the suit.

2. The suit has been contested by defendants No.1 to

10. Their plea is that the aforesaid property was the self

acquired property of late Sh. Kesho Dass, who had

bequeathed it to his daughter-in-law Smt. Vimal Bhateja,

wife of Sh. Bhagwan Dass and the plaintiff has no right, title

or interest in the aforesaid property. Defendants No.13 and

14, on the other hand, are supporting the plaintiff and claim

that the aforesaid property was an HUF property and was

declared as such by the Court of Sh. Ravi Kumar, then Civil

Judge, Delhi.

3. Defendants No.13 and 14 have placed on record a

certified copy of the judgment dated 18th November 1974

passed by Sh. Ravi Kumar, then Sub-Judge 1st Class, Delhi

declaring therein that property No.10, Block H, Kirti Nagar,

New Delhi was an HUF property and Sh. Kesho Dass, who

was defendant No.1 in the suit, had no exclusive right, title

or interest in that property to alienate it to anyone to the

exclusion of other members of the HUF. A certified copy of

the decree passed by the Court pursuant to the aforesaid

judgment has also been placed on record.

4. The contention of the learned counsel for

defendants No.1 to 10 is that the documents filed by

defendants No.13 and 14 are forged documents and no such

decree was ever passed by the Court. He also states that

this suit is a counter blast to the suit already filed by his

clients, which is pending before the learned Additional

District Judge, Delhi.

5. At this stage, there is no material on record on the

basis of which it can be said that the documents filed by

defendants No.13 and 14 are forged documents. It was

contended by the learned counsel for defendants No.1 to 10

that the copies of the judgment and decree sheet filed by the

plaintiff are different from the copies filed by defendants

No.13 and 14. I have compared the photocopies filed by the

plaintiff with the certified copies filed by defendants No.13

and 14 and I have not been able to notice any discrepancy

in the two sets of copies. Prima facie, these documents

appear to be genuine certified copies of the judgment and

decree dated 18th November 1974, passed by Sh. Ravi

Kumar, then Sub-Judge 1st Class, Delhi. If the suit

property is an HUF property in terms of the aforesaid

judgment and decree, obviously late Sh. Kesho Dass had no

right to bequeath whole of it to his daughter-in-law and he

could have bequeathed only his share in the aforesaid

property.

6. Since plaintiff has made out a prima facie case,

showing the suit property to be an HUF property and he

claims to be a member of the HUF having 1/18 th share in

the property, it would only be appropriate that the suit

property is preserved during pendency of the suit and no

third party interest is created therein. It is settled

proposition of law that in a suit for partition, the property

subject matter of the suit needs to be preserved during

pendency of the suit, if a prima facie case is made out in

favour of the plaintiff. If the injunction is not granted and

consequently the contesting defendants are able to sell,

transfer or alienate the suit property either wholly and in

part or part with its possession, that may negate the decree

which may be passed in favour of the plaintiff and it may be

difficult for the plaintiff to execute such a decree in view of

creation of third party interest and delivery of possession to

a third party. The parties to the suit are, therefore, directed

to maintain status quo with respect to title and possession

of the suit property during pendency of the suit.

The application stands disposed of.

IA 7443/2009 (u/S. 151 CPC)

Dismissed as not pressed.

IA 13920/2009 (u/S. 151 CPC)

Heard. Since certified copy of the judgment and

decree dated 18th November 1974 has already been filed by

defendants No.13 and 14, the purpose of passing the order

dated 30th May 2008 requiring the plaintiff to file the

original/certified copy of the order has been fulfilled.

Mr. Pandey states that the record of the suit is not

available in District Court being old record. The question

whether the record is available or not, has no relevance at

this stage, since the authenticity or otherwise of the certified

copies filed by defendants No.13 and 14 has to be finally

decided only after recording of evidence.

The application stands disposed of.

(V.K. JAIN) JUDGE JULY 06, 2011 Ag