Dr. Tej Inder Singh Saluja vs Dr. Tej Mohan Singh Saluja & Anr.
2014 Latest Caselaw 2724 Del

*                  HIGH COURT OF DELHI AT NEW DELHI

+                 I.A. Nos.7059/2010, 9724/2009 & 7858/2009 in
                            C.S. (OS) No.1126/2009

                                           Decided on : 27th May, 2014

DR. TEJ INDER SINGH SALUJA              ...... Plaintiff
               Through: Mr. K.B. Upadhyay, Advocate.

                         Versus

DR. TEJ MOHAN SINGH SALUJA & ANR.         ...... Defendants
              Through: Mr. L.D. Adlakha, Advocate for D-1.
                       Mr. Dinesh Garg & Ms. Surbhi Sharma,
                       Advocates for D-2.

CORAM:
HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This order shall dispose of three applications being I.A.

No.7059/2010 filed by the plaintiff under Order VI Rule 17 CPC; I.A.

No.9724/2009 filed by defendant No.2 under Order 39 Rule 1 & 10 CPC;

and I.A. No.7858/2009 filed by the plaintiff under Order 39 Rule 1 & 2

CPC.

2. Briefly stated the facts of the case are that property No.D-46, Hauz

Khas, New Delhi, was the property of Smt. Harbans Kaur, which is

measuring 217.78 square yards comprising of ground floor, first floor and

the second floor. The second floor is partly constructed. Smt. Harbans

Kaur died on 2.5.1994 leaving behind two sons, namely, Dr. Tej Inder

Singh Saluja, the plaintiff herein and Dr. Tej Mohan Singh Saluja,

(defendant No.1). It has been stated in the plaint that both the plaintiff

and defendant No.1 being the real brothers have half undivided share in

the suit property which has not been partitioned by them till date. It has

been stated that the ground floor and some portion of the first floor as

well as the entire second floor of the suit property is in possession of the

plaintiff while as the defendant No.1 is residing at 14/2, first floor, East

Patel Nagar, New Delhi and some of his goods and the goods of his father

are lying in a part of the first floor of the suit property. It has been stated

that the plaintiff had a genuine apprehension that defendant No.1 might

sell his undivided unspecified share in the suit property without getting it

partitioned and consequently, he had given public notices in 'Rashtriya

Sahara' & 'The Hindu' on 7.9.2008 and on 8.9.2008 respectively warning

the public at large that the property is undivided and nobody should deal

with the same.

3. So far as defendant No.2 is concerned, it has been alleged that he

has allegedly purchased 50 per cent, that is, half of the undivided share in

the suit property from defendant No.1 vide sale deed dated 21.5.2009 for

a sum of Rs.43 lacs. Since the original documents of the suit property are

with defendants and both the defendants, were threatening to dispossess

the plaintiff from the suit property, therefore, the plaintiff was constrained

to file the suit for permanent injunction.

4. The suit had come up for hearing on 10.6.2009 and the parties were

directed to maintain status quo with regard to the title and the possession

of the suit property as an interim measure. The aforesaid interim order

is continuing although an application under Order 39 Rule 1 & 10 CPC is

still pending adjudication.

5. The defendant Nos.1 and 2 have filed their written statement. The

defendant No.1 has raised an issue of maintainability of the suit on the

ground that ad valorem court fees has not been paid and material facts

have been suppressed. It has been admitted by defendant No.1 that he

has sold his share in the suit property for a sum of Rs.43 lacs to defendant

No.2 and executed a registered sale deed on 23.5.2009. It has also been

stated that the plaintiff is running his dental clinic on the ground floor and

residing on the first floor with his family. The suit property was stated to

have been partitioned by the father of the parties during his lifetime by

virtue of which the defendant No.1 was given the first floor and 50% of

the second floor while as the plaintiff was given the ground floor and 50

per cent portion of the second floor. It has also been stated by him that

the present suit has been actuated by the plaintiff only with a desire to

grab the entire property and since defendant No.1 has sold the property,

therefore, the suit itself is bad on account of misjoinder of parties.

6. So far as defendant No.2 is concerned, it is stated that he is the

purchaser of 50 per cent of the share in the suit property from defendant

No.1. The defendant No.1 in his legal notice dated 20.5.2004 has

specifically taken a plea that the suit property was partitioned after the

death of their mother Smt. Harbans Kaur and the entire property was

apportioned as under :

"ground floor by the plaintiff, first floor by defendant No.1 and second floor jointly by the plaintiff and defendant No.1."

7. It has been stated that the plaintiff in his reply dated 29.5.2004 sent

to defendant No.1 has admitted as under :-

"a) The property stands partitioned as per the Will of the father and as per mutual understanding

b) As per mutual understanding, the property was partitioned giving the plaintiff the ground floor plus 50 per

cent of the second floor and defendant No.1 getting the first floor and 50 per cent of the second floor."

8. It has been stated that as the property was partitioned, therefore,

defendant No.1 was well within his rights to have sold first floor and 50

per cent of the second floor to defendant No.2, who has put his lock on

the portion which is under his occupation. It has been alleged that on

30.5.2009, the plaintiff broke open the locks of defendant No.2 and

entered unauthorizedly on the first floor and 50 per cent of the second

floor belonging to him and thereafter, he has chosen to file the present

suit.

9. The defendant No.2 has also setup a counter-claim for claim of

damages from the plaintiff with effect from 30.5.2009 at the rate of

1,25,000/- per month (although the present rate is stated to be Rs.2 lacs)

when he forcibly occupied the portion falling to the share of defendant

No.1 which was purchased by him.

10. On these pleadings of the parties, the issues are yet to be framed

and an effort was made to arrive at a settlement between the parties so

that the dispute between them is brought to a rest; however, the meeting

which had taken place, did not bring about any fruitful result.

11. By virtue of the present order, three applications are being decided.

The first application is I.A. No.7059/2010 filed by the plaintiff under

Order VI Rule 17 read with Section 151 CPC seeking amendment of the

plaint. The plaintiff, after having chosen to file the suit for permanent

injunction, has chosen to file this application seeking permission to

amend the plaint so as to challenge the sale deed dated 21.5.2009

purported to have been executed by defendant No.1 in favour of

defendant No.2. This plea is sought to be incorporated in the plaint by

the plaintiff on the ground that Section 22 of the Hindu Succession Act,

1956 confers a right of pre-emption in favour of a co-owner and it has

been stated that as the plaintiff is the co-owner of the suit property to the

extent of 50 per cent while as the other 50 per cent is owned by his

brother, therefore, he has a preferential right to purchase the share

belonging to his brother. It has been stated that the wife of defendant

No.1 has already expired and he did not have any issue from the marriage

and, therefore, the plaintiff was entitled to purchase the share of

defendant No.1 and wants to incorporate a plea in this regard in the

plaint. The plaintiff has also taken the plea that by virtue of Section 44

of the Transfer of Property Act, 1882, the defendant No.2 could at best

claim partition of the suit property and since the case of the plaintiff is

that the suit property has not been partitioned, therefore, he could not be

made as a party in the present suit. On the basis of the aforesaid

averments, the plaintiff is seeking the cancellation of sale deed dated

21.5.2009 purported to have been executed by defendant No.1 in favour

of defendant No.2.

12. The law regarding amendment of the pleadings is very liberal and

the court may, during the pendency of any proceeding unless and until the

trial has started, permit a party to amend the plaint or the written

statement, as the case may be, provided the incorporation of the plea or

the facts which are sought to be brought on record are necessary for the

complete adjudication of the real dispute between the parties.

Conversely, this is also true that under the garb of this plea by the

amendment of the plaint, a party cannot be permitted to change the very

basic nature of the suit in case, the original suit does not contain any

pleading in this regard. Reliance in this regard is placed on Municipal

Corporation for Greater Bombay vs. Lala Pancham of Bombay & Ors.;

AIR 1965 SC 1008 and Phul Rani & Ors. Vs. Naubat Rai Ahluwalia; AIR

1973 SC 2110.

13. In the instant case, the plaintiff had originally filed a suit for

permanent injunction wherein the factum of defendant No.1 having sold

the property to the defendant No.2 is admitted by him. Therefore, this

was a fact which was within his knowledge right from the beginning. It

could not be said that this fact was detected by him later in point of time,

the plaintiff has consciously chosen only to file and claim the relief of

permanent injunction against defendant Nos.1 and 2 on the ground that he

is apprehending that he will be forcibly dispossessed.

14. The amendment which is sought to be incorporated by the plaintiff

is changing the very basic nature of the suit when there are no pleadings

or foundation with regard to the case sought to be built by them with

regard to the purchase of the share of defendant No.1. Therefore, such an

amendment need not be allowed, as any amount of cost would

compensate the defendant. Therefore, in my considered opinion, in case

the plaintiff is permitted to incorporate the plea of Section 22 of the

Hindu Succession Act, 1956, giving him the alleged right of pre-emption

qua the half share of his brother and thereby assail the sale deed

purported to have been executed by him in favour of defendant No.2, this

will not only change the basic nature of the suit from permanent

injunction to cancellation of a sale deed but it would also delay the trial

further. Therefore, I feel that the amendment application of the plaintiff

being I.A. No.7059/2010 deserves to be disallowed.

15. The second question is with regard to the grant of mesne

profits/damages on account of user of the premises by the plaintiff to

defendant No.2. The plaintiff's case is that he is in lawful possession of

the suit property as he is the co-owner and there are judgments given by

various courts where it has been observed that unless and until it is shown

that the party is in unlawful possession of the suit property, a direction for

payment of damages/mesne profits by such a person does not arise. It is

accordingly contended that as the plaintiff is not in unlawful possession,

he cannot be directed to pay any amount.

16. I do not agree with this contention of the plaintiff that he does not

deserve to be put to terms for being in possession of the entire suit

property. He has in fact usurped 50 per cent of the property belonging to

defendant No.1 which has been admittedly sold by him to defendant No.2

after breaking open the locks of defendant No.2 as alleged by him. One

he who claims an equitable relief, must also do the equity. In the instant

case, the plaintiff has come to the court claiming equitable relief of

permanent injunction against defendants yet the record shows that the

plaintiff himself is acting in a unfair manner. This is on account of the

fact that his claim in the plaint is for partition by metes and bounds, as it

is alleged that it has not taken place though in the reply to the notice of

defendant No.1 the plaintiff has admitted that an oral settlement had taken

place during the lifetime of their father by virtue of which, the plaintiff

was to get full ground floor and 50 per cent of the second floor while as

defendant No.1 was to get full first floor and 50 per cent of the second

floor. After having admitted this fact in his reply dated 29.5.2004, it is

not open to the plaintiff to aver in the plaint that there has been no

partition by metes and bounds. As a matter of fact, this clearly shows that

the plaintiff is taking contradictory stand. It has been brought to the

notice of the court that so far as the ground floor of the suit property is

concerned, the same is being utilized by the children of the plaintiff, both

of them are dentists and are using the ground floor for their professional

purposes while as the first floor is being used by them for residential

purposes. The defendant No.2 has stated, after receiving the possession

of the first floor that at the time of purchase he had put his lock on the

door but the same was broken by the plaintiff and the possession was

taken. The first floor of the suit property is admitted to be partly in

occupation of the plaintiff while as in the other half, it has been stated

that only furniture and articles belonging to their parents are lying which

is not a prima facie correct stand taken by the plaintiff.

17. The defendant No.2 has clearly shown that the sale transaction was

entered into by defendant No.1 in favour of defendant No.2 on 21.5.2009

and he was handed over the possession of the suit property and it is only

when defendant No.2 had put his lock and keys on the suit property that

the locks were broken and the possession was taken over by the plaintiff.

It is, therefore, prima facie clear that the plaintiff is in occupation of the

entire first floor illegally. It is only a ruse by the learned counsel for the

plaintiff to rake up an issue regarding his liability to pay the rent on the

ground that he is not in unlawful possession. I feel the plaintiff cannot be

permitted to use 50 per cent share of defendant No.1 which has been sold

to the defendant No.2 and at the same time contend that as he is not in

part and lawful possession of the suit property, therefore, no interim order

under Order 39 Rule 10 CPC deserves to be passed.

18. The defendant No.2 along with his counter-claim has also filed an

application claiming mesne profits/damages at the rate of Rs.1,25,000/-

from the plaintiff because he is using the premises which lawfully

belongs to defendant No.2. I prima facie feel that as the plaintiff is using

the entire suit property which admittedly includes 50 per cent of the

property belonging to defendant No.2, therefore, he must be put to terms

lest later on it becomes difficult to retrieve the mesne profits/damages

from defendant No.1 once the suit is decided on merits. The defendant

No.2 in his application under Order 39 Rule 10 CPC has stated that the

market rate of somewhat similar property would fetch a rent of

Rs.1,50,000/- per month and, therefore, the plaintiff be directed to deposit

the mesne profits at the rate of Rs.75,000/- per month in the court in order

to balance the equities.

19. The learned counsel for the plaintiff has relied upon the judgments

passed in Sonjoy Chatterjee vs. Solil Chatterjee; R.F.A. No.217/2013;

Ranbir Singh vs. Attar Singh; 65 (1997) DLT 617 (DB); Harish

Ramchandani vs. Manu Ram Chandani & Ors.; 91 (2001) DLT 480; and

Udekar vs. Chandra Shekhar Sahu; AIR 1961 Orissa 111 (V 48 C 48).

20. In Ranbir Singh's case (supra), the co-sharer was already in

possession of the property exclusively while as in the instant case the

plaintiff had admitted in the reply to the notice given by the defendant

No.1 that the partition had already taken place and the defendant No.1 has

got the first floor and 50% share in the second floor of the suit property

which was transferred by him to the defendant No.2. The defendant No.2

had put his lock on the second floor of the suit property which was

broken and the possession was taken to the detriment of the defendants

and thus the facts are different on the basis of the same. Similarly, the

judgments in R.F.A.No.217/2013, Harish Ramchandani's case (supra)

and Udekar's case (supra) are also distinguishable from the facts of the

present case essentially on the question of partition having already taken

place and the plaintiff having usurped the possession illegally.

21. Therefore, prima facie I feel that the application filed by defendant

No.2 under Order 39 Rule 10 CPC deserves to be allowed as he is being

kept away from user of the property by the plaintiff on frivolous pleas

with a view to grab the entire property. Therefore, the plaintiff is directed

to deposit a sum of Rs.75,000/- on each and every month with the

Registrar General of this court on or before 7th of each English calendar

month from the month of May, 2014 and shall continue to do so for every

English calendar month. The amount on deposit shall be kept in a fixed

deposit and it shall be subject to the final outcome of this suit. Ordered

accordingly.

22. So far as the third application being I.A. No.7858/2009 under

Order 39 Rule 1 & 2 CPC which has been filed by the plaintiff is

concerned, it has been prayed that the defendants be restrained from

creating any third party interest in respect of the suit property. This court

has already passed an order on 10.6.2009 that the parties shall maintain

status quo with regard to the possession and title of the suit property.

This order can continue except that the order of status quo of possession

is blanket while as the plaintiff can be dispossessed in respect of the first

floor which has fallen to the share of defendant No.2 in respect of which

he can seek appropriate remedy to retrieve possession in accordance with

law. With this modification in the order dated 10.6.2009, the application

stands allowed.

C.S. (OS) No.1126/2009

List for further proceedings on 14th August, 2014.

V.K. SHALI, J.

MAY 27, 2014 'AA'