Delhi High Court
Shiv Narain Mittal vs Chander Bhan Mittal on 28 May, 2014
$~02.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 406/2010
% Judgment dated 28.05.2014
SHIV NARAIN MITTAL ..... Plaintiff
Through : Mr.S.C. Singhal, Adv.
versus
CHANDER BHAN MITTAL ..... Defendant
Through : Mr.Mukesh Kumar, Adv.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
I.A.17627/2013
1.
This is an application filed by plaintiff under Order XII Rule 6 read with
Section 151 CPC for passing a preliminary decree.
2. Plaintiff has filed the present suit for partition and injunction, with respect
to the plot of land bearing no.21/43, Shakti Nagar, New Delhi.
3. As per the plaint, parties to the present suit are close relations, being real
brothers. The abovestated plot of land was purchased by late Sh.Ajudhiya
Prasad Gupta, father of the parties, in the name of both his sons i.e. the
plaintiff and the defendant. At the time of execution of the sale deed on
18.4.1955 both the sons were living at Village Rohtak. It has further been
averred in the plaint that the plot of land was purchased in the joint name
of one, Sh.Ram Narain Singla, who has 50% share in the said plot of land
and, thus, the plaintiff claims 1/4th share in the said plot of land measuring
254.07 sq. yards. After the purchase of the plot, the same was divided
between Sh.Ram Narain Singla on the one part and the plaintiff and
defendant jointly on the other part. Thus, present suit pertains to the plot
of land measuring 127.03 sq. yards. The plaintiff claims half share in the
plot of land measuring 127.03 sq. yards.
4. It is the case of the plaintiff that the parties were living jointly. The father
of the parties constructed the ground floor and one room on the first floor
prior to the year 1960 and parties started living together, however, their
parents used to visit them. It is further the case of the plaintiff that after
marriage of the plaintiff the family was in need of additional
accommodation and thereafter the entire first floor was constructed with
one room on the second floor with open bath room and toilet.
5. Learned counsel for the plaintiff submits that the plaintiff sought partition
by metes and bounds, which was declined by the defendant, which has led
to the filing of the present suit.
6. It may be noticed that written statement and Counter Claim have been
filed by the defendants. The stand taken by the defendant in the Counter
Claim was that the entire sale consideration for the purchase of the plot of
land was paid by the defendant out of love and affection for the plaintiff.
The pleas in paras 3 and 4 of the counter claim read as follows:
"3. That the entire consideration of the sale deed was paid by
the Defendant and the name of the Plaintiff was given out of
love and affection for the Plaintiff.
4. That the father of the parties was having no means and
thus, the question of purchasing the aforesaid property by the
father of the parties, as has been claimed by the Plaintiff does
not arise".
7. Issues were framed on 24.10.2011. Issue nos.2 and 5 were to be treated as
preliminary issues. Issue nos.2 and 5 read as under:
2. Whether the counter-claim of the defendant is barred by
time? OPD
5. Whether the counter-claim for declaration for cancellation of
the sale deed dated 18.4.1955 is hit by Section 34 of the
Special Relief Act and also is barred by Section 4 of the
Benami Transaction Act? OPP
8. Issue no.2 was deleted by order dated 22.8.2012 and on 23.10.2013 issue
no.5 was decided in favour of the plaintiff.
9. Counter Claim of the defendant was rejected by the order dated
23.10.2013 on the ground that the same was barred by Section 4 of
Benami Transaction (Prohibition) Act, 1988, and also in terms of the
proviso to Section 34 of Specific Relief Act. An appeal filed by the
defendant before the Division Bench also stands dismissed vide Order
dated 2.5.2014. In these circumstances, learned counsel for the plaintiff
submits that a preliminary decree may be passed as the only defence
raised by the defendant stands rejected.
10. Learned counsel for the defendant submits that the defendant is
contemplating filing of Special Leave Petition to assail the Order dated
2.5.2014 passed by the Division Bench. Counsel further submits that not
only the plot in question was purchased by the defendant, out of his funds,
but the super-structure was also erected by the defendant and, thus, a
preliminary decree cannot be passed.
11. I have heard learned counsel for the parties and also perused the orders
dated 23.10.2013, whereby the Counter Claim filed by defendant was
dismissed, and Order dated 2.5.2014, whereby the appeal filed by the
defendant was dismissed by the Division Bench. Having regard to the fact
that the counter claim of the defendant is rejected and appeal filed against
the said judgment also stands dismissed, the only defence, which was
raised by the defendant, is no more available to the defendant.
Consequently, a preliminary decree is passed, defining the share of both
the parties to be 50%, each, in the plot in question.
12. Learned counsel for the plaintiff submits that Mr.G.P. Thareja, retired
ADJ, was appointed as a Local Commissioner in this matter to record the
evidence of the parties, however, evidence could not be recorded but
plaintiff has already paid to Mr.Thareja a sum of Rs.50,000/-. Counsel for
the plaintiff prays that Mr.G.P. Thareja may be appointed as a Local
Commissioner to suggest the modes of partition and his fees should be
fixed at Rs.50,000/-, to be shared by both the parties equally.
13. Accordingly, as prayed, Mr.G.P. Thareja, former ADJ, is appointed as a
Local Commissioner to suggest the modes of partition with respect to the
suit property. The fees of the Local Commissioner is fixed at Rs.50,000/-
which already stands paid to him by the plaintiff, to be shared by both the
parties equally, besides all out of pocket expenses. Plaintiff would be
entitled to 50% of the fees to be adjusted at the time when costs are
awarded.
14. Application stands disposed of.
CS(OS) 406/2010
15. List on 16.9.2014 to await the report of the Local Commissioner.
16. Let a copy of this order be sent to the Local Commissioner.
G.S.SISTANI, J
MAY 28, 2014 msr /pdf
