Anita Jain & Ors vs Rajinder Jain
2011 Latest Caselaw 5813 Del

i.13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                            RFA No.698/2010

%                                                    29th November, 2011
ANITA JAIN & ORS                                   ..... Appellants
                             Through:   Mr. Kushhal Mohal with
                                        Mr. S.C.Chawla, Advs.
                    versus

RAJINDER JAIN                                      ..... Respondent

Through: Mr. Shiv Charan Garg with Mr. Imran Khan, Advs.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of this Regular First Appeal filed

under Section 96 of the Code of Civil Procedure (CPC), 1908 is to the

impugned judgment of the Trial Court dated 24.5.2010. By the impugned

judgment, the Trial Court decreed the suit of the respondent/plaintiff for

partition with respect to the suit property being a shop No.10, AL Market,

Shalimar Bagh, Delhi. It was held that the respondent/plaintiff is a half

owner of the suit shop and therefore entitled to partition and other reliefs qua

this shop.

2. The facts of the case are that the subject shop was allotted

admittedly in favour of two brothers, i.e. respondent/plaintiff/Sh. Rajinder

Jain and Sh.Ram Chander Jain who is the late husband of the appellant no.1.

This shop was purchased in an auction from the Delhi Development

Authority on 5.1.1985 for `3,11,000/-, the costs being shared by the

respondent/plaintiff and the husband of the appellant no.1. The possession

of the shop was got by both the brothers on 6.4.1985 and whereafter both the

brothers started running business in this shop. From April, 1995, it was said

that the husband of the appellant no.1 was exclusively carrying out the

business in the shop by ousting the respondent/plaintiff from the shop.

Earlier, the respondent/plaintiff had filed a Civil Suit no.420/1993 for

declaration and injunction and in which suit, a decree was passed on

23.9.1998 declaring the respondent/plaintiff as the co-owner of the suit shop

along with Ram Chander Jain, husband of the appellant no.1. Admittedly,

this decree has become final as no challenge was laid to the same by filing

an appeal. Sh. Ram Chander Jain, the husband of the appellant no.1 died on

25.11.1998. Since the request of the respondent/plaintiff to partition the suit

shop was declined, a legal notice dated 4.3.2004 was issued by the

respondent/plaintiff to the appellants/defendants and whereafter subject suit

came to be filed. To complete the narration of facts, it is necessary to refer

to the fact that the respondent/plaintiff had also filed another suit before the

Civil Court seeking implementation of a family settlement of the year 1993,

however, this suit was opposed by the appellants/defendants, and the said

suit was dismissed by giving a finding that the oral settlement was not

proved and hence cannot be acted upon.

3. The appellants/defendants contested the suit by stating that the

suit was barred under Order 2 Rule 2 CPC and that there was a family

settlement dated 18.10.1993 whereby there is no cause of action to file the

subject suit. It was claimed that as per the settlement dated 18.10.1993, the

appellants/defendants had become exclusive owners of the suit shop.

4. After the pleadings were complete, the Trial Court framed the

following issues:

"Issues

1. Whether suit of the plaintiff is barred under Order 2 Rule 2 CPC being hit by Section 11 CPC? (OPD)

2. Whether plaintiff has no cause of action to file the present suit because of family settlement dated 18.10.93? (OPD)

3. Whether plaintiff is entitled to the relief claimed for in the plaint? (OPP)

4. Relief."

5. Issue no. 1 with respect to the suit being barred under Order 2

Rule 2 CPC was already held against the appellants/defendants by a detailed

order dated 14.5.2007, and which order has become final. So far as the issue

no.2 of the respondent/plaintiff not having a cause of action in view of the

alleged family settlement dated 18.10.1993 is concerned, the Trial Court has

observed that firstly this family settlement cannot be relied upon in view of

the decree passed by the Civil Court dated 23.9.1998 declaring the

respondent/plaintiff and the husband of the appellant no.1 as equal co-

owners of the suit property. As already stated, this decree has become final.

There was also a subsequent family settlement dated 29.11.1998, Ex.PW1/2,

which provided for sale of the suit shop and sharing the sale proceeds

equally between the parties. In any case, once there is a decree which has

become final, the parties would consequently become equal co-owners of the

suit property. Similar is the finding of the Trial Court while dealing with

issue no.3 pertaining to entitlement of the reliefs claimed by the

respondent/plaintiff.

6. Learned counsel for the appellants sought to argue before this

Court that the appellants/defendants had become owners of the suit shop by

virtue of a family settlement dated 18.10.1993. This argument, in my

opinion, has no merit because as the Trial Court has rightly held that there

was a decree by a Civil Court dated 23.9.1998 in Civil Suit No.420/1993

which has become final holding the respondent/plaintiff and the husband of

the appellant no.1 as equal co-owners of the suit property. In any case,

another suit which was filed by the respondent/plaintiff relying upon the

family settlement of 1993, but, the appellants/defendants contested this

second civil suit by disputing the family settlement and this second suit was

dismissed in 2004 with the finding that the family settlement of 1993 being

oral cannot be acted upon.

7. No other issue is pressed or arises.

8. The Trial Court thus rightly found the respondent/plaintiff as a

half owner of the suit shop and hence entitled to partition etc of the same.

There is no merit in the appeal, which is accordingly dismissed, leaving the

parties to bear their own costs.

VALMIKI J. MEHTA,J NOVEMBER 29, 2011 ak