Pankaj Kumar vs Prem Parkash & Ors.
2012 Latest Caselaw 4393 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.2653/1995

%                                                           July 25, 2012

PANKAJ KUMAR                                                ...... Plaintiff
                            Through:     None.


                            VERSUS


PREM PARKASH & ORS.                                    ...... Defendants
                 Through:                Mr. J.K. Sharma, Advocate for
                                         defendant No.1.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.

No one appears for the plaintiff although it is 2.45 pm. I have therefore

heard the counsel appearing for the defendant no.1.

2. The present suit for partition was filed seeking partition of the

properties stated in Schedule A to the plaint. Incidental relief of injunction

was also sought. The properties which are mentioned in Schedule A are as

under:-

"1. Property No. 47/35, Punjabi Bagh, New Delhi

2. Flat No. 406, 4th Floor, Ganga Block, Ganga Darshan Apartments, Haridwar.

3. Plot No. B-30, Green Field Colony, Faridabad

4. Shop-cum-Godown No. 1729, Naya Bazar, Delhi

5. Shop No. 1829/ Khari Baoli, Delhi

6. Shop No. 1855, Khari Baoli, Delhi

7. Godown No. 620, G. B. Road, Delhi

8. Agricultural lands situated in Bahadurgarh (details to be furnished by the defendants)

9. Agricultural lands situated in village Palla, Delhi (details to be furnished by the defendants)

10. Properties at Bangalore (details to be furnished by the defendants)

11. Shares, Debentures, Bonds, Policies, Fixed Deposits, Securities, Jewelleries and other movable properties, good will of the joint family business, actionable claims etc.

12. Any other property/properties movable/immovable which may be later found out belonging to the joint family."

3. Counsel appearing for defendant no.1 states that the real bone of

contention was the property no.1 in Schedule A at Punjabi Bagh, New Delhi,

and with respect to which, it is said that an earlier suit was filed by the

defendant no.1 against the plaintiff herein and which suit was decreed by

Additional District Judge on 31.08.2002 thereby holding the present defendant

no.1 (and the plaintiff in that suit) to be the owner of the property at Punjabi

Bagh. Counsel for the defendant no.1 states that the present plaintiff had filed

an appeal being RFA No. 792/2002 which was dismissed by this Court vide

judgment dated 30.11.2011. It is argued that an SLP preferred in the Supreme

Court by the present plaintiff against the judgment dated 30.11.2011 has also

now been dismissed. I may note that on 03.07.2012, I had passed an order

making reference to the SLP filed in the Supreme Court.

4. The net effect, it is argued on behalf of defendant no.1, is that the

judgment in the earlier suit filed by the defendant no.1 herein (plaintiff in the

said suit for possession) holding the defendant no.1 herein as owner of the

property No. 47/35, Punjabi Bagh, New Delhi will be res judicata against the

plaintiff. I agree. I have gone through the judgment dated 30.11.2011 passed

in RFA 792/2002. Para 4 of the judgment dated 30.11.2011 refers to the

finding of the present defendant no.1 (plaintiff in the said suit) to be the owner

to the property 47/35, Punjabi Bagh, New Delhi. I, therefore, hold that the

subject suit so far as the Punjabi Bagh property is concerned, would be liable

to be dismissed on account of bar of res judicata.

5. So far as rest of the eleven properties which are stated in Schedule A are

concerned, counsel for the defendant no.1 states that neither has the plaintiff

filed any proof of either of the said properties at Serial Nos. (2) to (12) as

being the properties of the defendant no.1 or they being the properties of an

alleged HUF. In fact, counsel for the defendant no.1 states that he would very

happily take ownership interest in any of these eleven properties, however,

there are no such properties in existence, and the suit was misconceived so far

as these properties are concerned. I accept the arguments of the counsel for the

defendant no.1 and hold that there are no HUF properties as mentioned at Sl.

Nos. 2 to 12. I note that with respect to immovable properties at Serial Nos. 8

to 10 in Schedule A, there are no particulars at all given of the details of such

immovable properties. The properties at Serial No.11 are really movable in

the nature of shareholding etc once again of which no particulars have been

filed or proved. Details mentioned at Serial No. 12 are of allegedly any other

property pertaining to the joint family and, therefore, such properties

mentioned in Serial No. 12 are of no legal effect.

6. In the present case the following issues were framed on 26.07.2005:-

"1. Whether the plaintiff has divisible share in the properties mentioned in Schedule A with the plaint? If so, what is the share of the plaintiff and whether the plaintiff is entitled for partition of those properties? OPP

2. Whether the stipulation in the partnership deed dated 01.04.1997 can be construed the last will of Smt. Champa Devi as averred in Para 11 of the plaint? If so, to what effect? OPP

3. Whether the property mentioned in Schedule A with the plaint are self-acquired properties of defendant No.1 as alleged in para 3 of the preliminary objections in the written statement. OPD

4. Whether the suit has been properly valued for the purposes of court fee and jurisdiction and appropriate court fee has been paid by the plaintiff? OPP

5. Whether the suit of plaintiff is maintainable despite dismissal of suits No. 362/94 and 1525/93 by the District Courts? OPP

6. Whether the suit of the plaintiff is barred by constructive res judicata as alleged in para 6 of the preliminary objections in the written statement? OPD

7. Whether late Smt. Champa Devi executed her last, legal and valid will dated 08.10.1997 as alleged by the defendant? If so, to what effect? OPP

8. Relief."

7. In view of the aforesaid discussion, issue Nos. 1 & 3 would stand

decided by holding the same against the plaintiff and dismissing the suit

qua the properties mentioned in Schedule A to the plaint.

8. So far as the Issue No. 7 is concerned, the said issue is with

regard to the Will dated 08.10.1987 of Smt. Champa Devi, mother of the

defendant no.1, and that issue also has been decided in the earlier suit filed

by the defendant no.1 herein against the plaintiff herein and which suit has

already been decreed in favour of the plaintiff therein and who is the

defendant no.1 herein. Para 4 of the judgment dated 30.11.2011 in RFA

792/2002 refers to the Will of Smt. Champa Devi having been proved and

exhibited as Ex. PW1/3 in the said suit. Issue No. 7 also is accordingly

held against the plaintiff on the principles of res judicata. Issue No.2 will

also get decided in terms of decision on Issue No.7, and this issue is also

accordingly decided against the plaintiff.

9. So far as Issue Nos. 4 and 5 are concerned, counsel for the

defendant no.1 says that in view of the other issues being decided against

the plaintiff, he does not press these issues though otherwise the suit was

not properly valued for court fees and jurisdiction besides also the fact that

earlier suits filed by the plaintiff as stated in Issue No.5 have been

dismissed. These issues are accordingly decided in favour of the plaintiff.

10. In view of the findings given on Issue Nos. 1, 2, 3, 6 and 7, the

suit of the plaintiff would stand dismissed, leaving the parties to bear their

own costs. Decree sheet be prepared.

VALMIKI J. MEHTA, J JULY 25, 2012 mb