Sudershan Kumar Jain vs Sh. Kuldip Kumar Jain & Anr
2013 Latest Caselaw 1180 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                          Date of decision: 8th March, 2013.

+                                CS(OS) 1088/2008

SUDERSHAN KUMAR JAIN                                         ..... Plaintiff
               Through:                 Mr. T.K. Tiwari & Mr. Shakti Kant
                                        Patnaik, Advs.

                                 Versus

SH. KULDIP KUMAR JAIN & ANR.                    ..... Defendants
                  Through: Mr. Y.P. Ahuja, Adv. for D-1.
                           Ms. Anshu Aggarwal, Adv. for D-2
                           Mr. Rahul Srivastava, Adv. for Ms.
                           Suparna Srivatava, Adv. for MCD.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

IA Nos.7459/2011 (of plaintiff and D-1 u/O 23 R-3 CPC), 3500/2012 (of
D-2 u/O 23 R-3&3 A CPC & u/S 44 of the Evidence Act), IA
No.3501/2012 (of D-2 u/S 151 CPC) & 13551/2012 (of D-2 u/O 40 R-1&2
CPC) in CS(OS) No.1088/2008

1.

Plaintiff has filed this suit, (i) for partition of shops bearing No.4277,

4278, 4279, 4281, 4282, 4283 and Katra property bearing No.4280, Main

Bazar, Paharganj, New Delhi; (ii) for injunction restraining defendant No.1

from raising any construction in property No.4280 and from alienating /

transferring / parting with possession of the same; and, (iii) for rendition of

accounts against the defendant No.1, pleading that the plaintiff and the two

defendants are brothers and that as per the Memorandum of Family

Settlement dated 16th October, 1987, the plaintiff has half share in shops

No.4277, 4278, 4279, 4281, 4282, 4283 and 1/3rd share in property of Katra

bearing No.4280, with the remaining one half share in the shops belonging

to the defendant No.1 and the remaining 2/3rd share in the house property

consisting of Katra bearing No.4280 belonging to the defendants No.1 & 2

equally.

2. The two defendants filed a joint written statement pleading that they

had no objection if the properties are divided in terms of Family

Settlement dated 16th October, 1987. It was however alleged that the plaintiff

had raised unauthorized construction above shops bearing No.4277, 4278,

4279, 4281, 4282, 4283 and Counter Claim No.4/2013 was filed for

demolition of the said unauthorized construction.

3. I.A. No.85/2009 was filed by the plaintiff and I.A. No.7300/2009 was

filed by the defendants, both under Order XII Rule 6 of Civil Procedure

Code (CPC), 1908. A perusal of the order sheet of the suit shows, that the

counsel for the plaintiff and the counsel for the two defendants, jointly

sought adjournments on 6th November, 2009; on the next date i.e. 9th

February, 2010, it was recorded that the parties were negotiating the

possibility of settlement; vide order dated 20th July, 2010, the parties were

directed to appear in person; on 21st July, 2010 when the parties were

present in person, it was recorded that there was possibility of amicable

settlement as the parties had agreed that they would sit together and sort out

their disputes amicably; on subsequent date i.e. 4th August, 2010, again the

parties appeared in person and the order records that the settlement could not

take place as both the parties were blaming the other for unauthorized

construction; accordingly, this Court directed the Standing Counsel for

Municipal Corporation of Delhi (MCD) present in Court to have the

properties inspected and to have the unauthorized construction if any found

demolished; on the next date of hearing, it was informed that demolition

action had been initiated.

4. On 1st December, 2010, applications of the plaintiff as well as the

defendants under Order XII Rule 6 were taken up for consideration and

finding that as per Memorandum of Family Settlement dated 16 th October,

1987, three shops go to the share of the plaintiff and the remaining three

shops go to the defendant No.1 and the property No.4280 is to be divided

equally amongst the plaintiff, defendant No.1 and defendant No.2 and that

there was no dispute with respect to this factual position, a preliminary

decree for partition was passed declaring the plaintiff to be entitled to three

shops, defendant No.1 to be entitled to the remaining three shops and each of

the plaintiff and the two defendants to be having 1/3rd share each in property

No.4280. However it was observed, that a decree for partition by metes and

bounds could not be passed so long as the unauthorized construction was not

removed and for which the defendants had filed a counter claim.

Accordingly, issues were framed in the counter claim and the same put to

trial.

5. On 18th January, 2011 again, the counsel for the plaintiff and the

counsel for the defendants stated that the parties were attempting out of

Court settlement and sought adjournment.

6. However, on the next date of hearing i.e. 23rd March, 2011, a new

counsel appeared for the defendant No.2 Mr. Bharat Bhusan and stated that

as per her instructions there was no settlement; however the counsel for the

plaintiff and the defendant No.1 appearing in person stated that they were in

the process of reducing the terms of settlement into writing.

7. Thereafter, I.A. No.7459/2011 under Order XXIII R-3 CPC was filed

by the plaintiff and the defendant No.1 seeking, a final decree of partition,

with shops No.4277, 4278 and 4279 falling to the share of the plaintiff and

shops No.4281, 4282 and 4283 falling to the share of the defendant No.1.

8. The defendant No.2 filed a reply to the said application alleging

collusion between the plaintiff and the defendant No.1 and pleading that the

Family Settlement dated 16th October, 1987 had not been acted upon and the

plaintiff and the two defendants had amended and modified the Family

Settlement dated 16th October, 1987 vide Memorandum of Family

Settlement dated 16th June, 2000, in which, (i) the first floor of Katra

property No.4280 and first floor above shops No.4281, 4282, 4283 and the

roof of the first floor above gallery had fallen to the share of the plaintiff and

the plaintiff has taken exclusive possession of shop No.4282 and godown

built behind shops No.4282 and 4281 towards eastern side and the second

floor roof rights above the godown on the first floor; (ii) the rear portion of

Katra property No.4280 had fallen to the share of the defendant No.2; and,

(iii) shop No.4283, godown behind western part of godown and shop

No.4283 and shops No.4277, 4278, 4179, 4281 and the remaining part of

Katra property No.4280 had fallen to the joint share of the two defendants. It

was further pleaded that a further Settlement dated 5 th September, 2000 had

taken place between the two defendants but which is with the defendant

No.1 only. It was yet further pleaded that the plaintiff had filed a suit to

declare the Settlement dated 5th September, 2000 as a nullity and the same

was so declared by the Court without any adjudication. It was yet further

pleaded that the Memorandum of Family Settlement dated 16th June, 2000

was also retained by the plaintiff.

9. Needless to state that the counsel for the plaintiff contested the

aforesaid version of the defendant No.2.

10. The defendant No.2 also filed I.A. No.3500/2012 under Order XXIII

Rule 3A CPC and Section 44 of the Evidence Act for setting aside /

modification / alteration of the preliminary decree on similar pleas.

11. I.A. No.3501/2012 has been filed by the defendant No.2 for stay of

operation of the preliminary decree and I.A. No.13551/2012 has also been

filed by the defendant No.2 for appointment of a Receiver to take custody of

the stocks etc. of business in the name of M/s Abhay Vastra Bhandar and

M/s Abhay Vastra Bhandar Pvt. Ltd.

12. Counsels for the plaintiff, defendant No.1 and defendant No.2 have

been heard.

13. Before proceeding to deal with these applications, it may be

mentioned that the unauthorized construction in the form of second and third

floors above the shops was demolished by the MCD. However, the

complaint of the defendant No.2 was that the demolition action was only in

the form of puncturing of the roof and damaging of some partition walls and

otherwise the structure continues to exist. Vide order dated 21st January,

2013, directions were issued for removal of the remaining structure also and

in view of the said development, the counter claim was disposed of.

14. The counsel for the defendant No.2 has argued deceit and deception

by the defendant No.1 and sought setting aside of the preliminary decree for

partition.

15. The counsel now appearing only for the defendant No.1 and earlier

appearing for both the defendants states that he has been representing both

the defendants in proceedings for eviction against the tenants also and it is

the defendant No.2 who has changed his position by engaging a new

counsel.

16. As aforesaid, the preliminary decree for partition has already been

passed on the basis of the applications filed by the plaintiff as well as by

both the defendants under Order XII Rule 6 of CPC. The application of the

defendants under Order XII Rule 6 CPC is under the signatures of both the

defendants and accompanied with affidavit of the defendant No.2 only. No

plea of any Family Settlement dated 16th June, 2000, as now taken by the

defendant No.2, was taken in the written statement or at any earlier point of

time.

17. As far as the plea of collusion between the plaintiff and the defendant

No.1 is concerned, the same cannot be accepted. The defendants though in

the written statement admitted the Memorandum of Family Settlement dated

16th October, 1987 but filed a counter claim for demolition of the

unauthorized construction raised by the plaintiff. It is not as if the said

counter claim was to pay only lip service. Directions were obtained from the

Court to MCD for demolition of the said unauthorized construction and

which as aforesaid stands demolished. The defendant No.1, who has got the

two floors constructed by the plaintiff demolished, cannot be believed to be

in collusion with the plaintiff. Similarly, it cannot be said that the Advocate

for the defendants was acting under the instructions of the defendant No.1

only.

18. It is also significant that the preliminary decree passed by this Court is

not on compromise but on admissions. The counsel for the defendant No.2 is

unable to show as to how the defendant No.2, before the Court which has

already passed the decree on admissions, can seek setting aside of the same.

19. As far as the plea of the defendant No.2 pertaining to the

Memorandum of Family Settlement dated 16th June, 2000 is concerned, the

defendant No.1 as well as the plaintiff in their replies have denied the same.

Though the defendant No.2 has filed a photocopy of the same before this

Court but the counsels for the plaintiff and the defendant No.1 have denied

that the same attained finality or was acted upon. Rather, they have during

the hearing shown that no reference thereto was made even in the suit filed

by the plaintiff for setting aside of the Settlement dated 5 th September, 2000,

which was consequential to the Memorandum of Family Settlement dated

16th June, 2000. It is argued that the decree in the earlier suit declaring the

Settlement dated 5th September, 2000 a nullity, has attained finality.

20. Though the counsel for the defendant No.2 has sought to invoke

Section 44 of the Indian Evidence Act, which permits a plea of a judgment

having been obtained from fraud or collusion, but only in a proceeding

where such judgment is relevant. The preliminary decree for partition in this

suit, which is alleged to have been obtained by fraud or collusion, was

passed in this suit only and this Court has no jurisdiction to set aside the

same.

21. The applications filed by the defendant No.2 are thus misconceived.

As far as the prayer for appointment of a Receiver is concerned, the same is

beyond the purview and ambit of the suit, which as aforesaid is confined

only to partition of the immovable properties, and is not concerned with any

business of the parties qua which Receiver is sought to be appointed.

22. I.As. No.3500/2012, 3501/2012 and 13551/2012, of the defendant

No.2 are accordingly dismissed.

23. I.A. No.7459/2011 of the plaintiff and defendant No.1 dividing the

shops between themselves is allowed and a final decree for partition of

shops No.4277, 4278, 4279, 4281, 4282, 4283 is passed, with shops

No.4277, 4278 and 4279 falling to the share of the plaintiff and shops

No.4281, 4282 and 4283 falling to the share of the defendant No.1.

CS(OS) 1088/2008

24. As far as Katra property No.4280 is concerned, Mr. Amitabh Narain,

Advocate (Mob.9818200333) is appointed as Court Commissioner to visit

the said property and if a site plan thereof is not provided by any of the

parties, to have a site plan of the same prepared and to, in consultation with

the parties, suggest the feasibility if any of the division by metes and bounds

of the said property between the plaintiff and the two defendants.

25. The fee of the Court Commissioner is fixed at Rs.60,000/- to be borne

equally by the plaintiff and the two defendants. If any of the parties fail to

pay the said fee, liberty is given to the other parties to pay the same subject

to right of recovery of the same from the share of property of the other party

with interest @ 12% per annum.

26. The parties are directed to cooperate with the Court Commissioner.

Out of the pocket expenses of the Court Commissioner shall also be borne

equally by the parties.

27. It is made clear that if the parties do not cooperate with the Court

Commissioner, this Court will be left with no option but to presume that the

Katra property No.4280 is not divisible by metes and bounds and to pass a

final decree for partition of the same by sale and division of the sale

proceeds, after meeting the out of pockets expenses of sale / auction,

between the three parties.

28. List on 18th July, 2013 awaiting the report of the Court Commissioner.

RAJIV SAHAI ENDLAW, J MARCH 08, 2013 bs..