Delhi High Court
Davinder Singh vs Ravinder Singh & Ors on 24 September, 2014
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 2624/2010
% Date of decision :24th September, 2014
DAVINDER SINGH ..... Plaintiff
Through Mr.Karam Chand Dhiman, Adv.
versus
RAVINDER SINGH & ORS ..... Defendant
Through Mr.P.D.Gupta with Mr.Ashish
Gupta, Advs.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J. (ORAL)
1. Plaintiff has filed the present suit for permanent injunction, possession,
damages and relief of partition. Plaintiff and defendant no.1 are real
brothers and defendant nos.2 & 3 are sisters of plaintiff and defendant
no.1.
2. Counsel for the defendants submits that during the pendency of the suit
the cause of action has vanished and the present suit should be dismissed.
3. It may be noticed that a categorical assertion was made in the written
statement that during the life time of the father of the parties, the suit
property was sold and transferred to the defendants for valuable
consideration and necessary documents such as duly registered
Agreement to Sell, Will etc were executed by the father. Having regard to
the averments so made and the documents relied upon by the defendants,
plaintiff instituted a suit being CS(OS) 1689/2013 (hereinafter referred to
as the second suit) for declaration and permanent injunction. A certified
copy of the plaint of the said suit has been handed over in court in which
following reliefs were sought:-
i) A decree of permanent injunction may be passed in favour of the
plaintiff and against the defendants thereby restraining the
defendants, their legal heirs, successors, agents, assigns,
administrators from selling, alienating, transferring, mortgaging
and creating third party interest or parting with possession of the
suit property bearing No.2408, HUDSON LANE, KINGSWAY
CAMP, DELHI-110009 in the interest of justice.
ii) Pass a decree of declaration that the Agreement to Sell dated
15.03.2007, Will dated 15.3.2007, Receipt dated 15.03.2007 and
Possession Letter dated 15.03.2007 in respect of property bearing
No.2408, Hudson Lane, Kingsway Camp, Delhi-110009 is null and
void in the interest of justice.
iii) A decree of payment of cost of the present suit may also be
awarded in favour of the plaintiff and against the defendants.
4. Issues were framed in the second suit and the plaintiff was directed to lead
evidence. Despite repeated opportunities neither list of witnesses nor
affidavit by way of evidence was filed by the plaintiff. Resultantly, right
of the plaintiff to file evidence was closed on 21.11.2013. The matter
(second suit) was listed before this court on 13.5.2014, 8.8.2014,
21.8.2014 and 4.9.2014 and thereafter on 5.9.2014 the suit was dismissed
as the plaintiff did not lead evidence to support the averments made in the
plaint.
5. Learned counsel for the defendants submits that in view of dismissal of
the second suit wherein plaintiff has challenged Agreement to Sell, Will
and other documents and the said suit having been dismissed, present suit
would also not survive and there would be no cause of action in favour of
the plaintiff.
6. Learned counsel for the plaintiff submits that the present suit would very
much be maintainable for the reason that simply by an agreement to sell,
no title would be conferred on the defendants by the deceased father. It is
also contended that since the defendants did not seek specific performance
of the agreement to sell executed by the father during his lifetime, the sale
would not be complete.
7. It would be useful to reproduce paragraph 2 of the preliminary objection
of the written statement:
"2. That the plaintiff has no right, title or interest of any nature
whatsoever in the suit property i.e. property bearing 2408, Hudson
Lane, Kingsway Camp, Delhi-110 009 and as such is not entitled to
seek partition thereof. Deceased Amar Singh was the exclusive
owner in possession of the ground floor and first floor of the suit
property and in his life time itself, i.e. on 15.3.2007 he sold and
transferred the suit property to the defendants for a valuable
consideration and executed necessary documents in this regard such
as Agreement to Sell, Receipt and Will etc. The Agreement to Sell
executed in this behalf was duly registered in the office of Sub-
Registrar VI at No.2218 in Additional Book No.I Volume 784 on
pages 115 to 121 on 15.3.2007. It is also not out of place to
mention here that while executing the documents for effectually
transferring the suit property in favour of the defendants, the
deceased father of the parties also executed his last Will dated
15.3.2007. The plaintiff is very much aware of the transfer of the
suit property by late Amar Singh during his life in favour of the
defendants for valuable consideration and that all necessary
documents had also been executed in this behalf. All these facts
have been deliberately concealed by the plaintiff from the
knowledge of this Hon'ble Court and as such the suit is liable to be
dismissed with costs."
8. During the course of hearing, learned counsel for the plaintiff was asked
that in case the agreement to sell by which the deceased father sold the
property to the defendants was a nullity then why the second suit was
instituted. No satisfactory reply has been received.
9. In my view having regard to the written statement filed in the present suit
wherein a categorical stand has been taken and having regard to the fact
that suit filed by the plaintiff seeking a declaration with respect to the
documents on the basis of which said property stands sold to the
defendants by the deceased father of the defendants having been
dismissed, the present suit for partition would not be maintainable as the
plaintiff had himself challenged the aforesaid documents.
10. Further in my view to continue proceedings in the present case would be
meaningless in view of the written statement filed by the defendants and
as held by the Supreme Court in a number of judgments that vexatious
litigation should be nipped in the bud. [See T. Arivandandam v. T.V.
Satyapal reported at (1977) 4 SCC 467]
11. Resultantly, present suit is dismissed as no further cause of action remains
in favour of the plaintiff.
G.S.SISTANI, J
SEPTEMBER 24, 2014
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