Shri Sanjive Shukla vs Shri Rajiv P. Shukla And Ors
2015 Latest Caselaw 3027 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CS(OS) 86/2007
                                                  Decided on 16.04.2015

IN THE MATTER OF:
SHRI SANJIVE SHUKLA                                      ..... Plaintiff
                        Through: Mr. Ashok Agarwal, Advocate with
                        Mr. Anuj Kapoor, Advocate

                        versus

SHRI RAJIV P. SHUKLA AND ORS.                     ..... Defendants
                     Through: Mr. Amit Mahajan, Advocate with
                     Mr. Sidhartha Das, Advocate for D-1 and D-2.
                     Mr. Amit Sanduja, Advocate for Mr. Sunil
                     Malhotra, Advocate for D-3.
                     Mr. D.K. Singh, Advocate for Ms. Purnima
                     Maheswari, Advocate for D-5

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J. (Oral)

I.A.7577/2013 (by the plaintiff u/S 44 of the Transfer of Property Act r/w Section 151 CPC)

1. The present application has been filed by the plaintiff in a suit for

partition in respect of a flat situated in the World Trade Centre, Babar

Road, to the extent of 50% and a residential premises situated at

D-30, Anand Vihar, Indraprastha Extension-II to the extent of 25%

therein. The flat situated in the World Trade Centre is owned by the

Family Trust and stated to have been sub-licensed, whereas the

residential premises is owned by the father of the parties.

2. The plaintiff has also sought a decree of perpetual injunction

against the defendants in respect of the aforesaid two immovable

properties, apart from rendition of accounts in respect of the rents and

other benefits collected by them from the aforesaid properties.

3. By this application, the plaintiff has prayed for directions to the

Police Station: Anand Vihar for evicting some trespassers/squatters

and taking possession of the residential premises and sealing the

same.

4. The plaintiff is a permanent resident of Canada and has

instituted the present suit against the defendants No.1 to 3, his

siblings on 15.01.2007. Summons were issued in the suit on

17.01.2007, on which date, it was directed that till the next date of

hearing, the defendants are restrained from transferring, alienating or

parting with possession of the aforesaid two immovable properties.

Appearance was entered by the contesting defendants No.1 to 3, who

had filed their written statement in April, 2007 stating inter alia that

the defendant No.1 had sold/transferred his 1/4th share in the property

at Anand Vihar in favour of one Shri Suresh Vij, for consideration upon

execution of an Agreement to Sell dated 11.12.2006.

5. Later on, two applications were filed by Shri Suresh Vij and Shri

Sanjay Mahajan under Order I Rule 10 CPC, praying inter alia for being

impleaded in the present suit on the ground that they are subsequent

bonafide purchasers of the residential property (I.A 1461/2007 and

1465/2007). Replies in opposition to the said applications were filed by

the plaintiff. Vide order dated 29.04.2009, the aforesaid applications

were dismissed with the observation that the present suit instituted by

the plaintiff is one for partition of immovable properties and the Court

is required to adjudicate as to whether the parties, who are related to

each other being siblings, are entitled to a share in the immovable

properties left by their parents. It was observed that in case the

applicants had acquired any right pursuant to the Agreement to Sell

dated 11.02.2006/29.08.2006, then they should take appropriate

independent proceedings before a competent court for adjudication of

their rights and that by impleading them in the present suit for

partition, the Court cannot change the nature of the proceedings from

a suit for partition to a suit for declaration. It was also observed that

in case the applicants are impleaded in the present suit, the Court

would have to go into the question as to whether the defendants have

any right or title in the suit properties or not and therefore, the right

of the applicants to have the aforesaid issue decided, lies in an

independent proceeding that may be taken by them. With these

observations, the aforesaid applications were dismissed. The Court is

informed that the said order has attained finality as none of the parties

had filed an appeal against the same.

6. Thereafter, on 23.01.2012, a preliminary decree was passed in

respect of the Anand Vihar property by holding that the plaintiff and

the defendants No.1 to 3 are entitled to 1/4th share each therein.

Further, counsel for the plaintiff and the defendants No.1 to 3 had

stated that it is not possible to divide the aforecited property by metes

and bounds and the same ought to be sold. They had however

requested that in the first instance, they be permitted inter se bidding.

7. In view of the aforesaid submission made by the counsels for the

parties, the plaintiff and the defendants No.1 to 3 were directed to

give their respective bids in sealed covers for the same to be opened

on the next date of hearing. It is a different matter that the bids given

by the plaintiff and the defendants No.1 to 3 in sealed covers were

finally opened after three years on 11.02.2015, on which date, it had

transpired that the plaintiff had made a bid of `4 crores for the

residential property whereas the defendants No.1 and 2 had offered a

bid of `6 crores. At that stage, Mr. Agarwal, learned counsel for the

plaintiff had stated that since the bid was submitted by the plaintiff

about two years ago, i.e., on 03.10.2012, he may be permitted to

obtain fresh instructions from his client with regard to the defendants

No.1 and 2's bid and also for giving a counter offer in respect of the

said property.

8. Leave, as prayed for, was granted to the counsel for the plaintiff

and the suit is listed today in the category of 'Directions' for counsel

for the plaintiff to report instances. Today, learned counsel for the

plaintiff insists that the present application may be considered and

decided in the first instance.

9. Learned counsel for the plaintiff refers to Section 44 of the

Transfer of Property Act to contend that no part of the suit property

could have been sold by the defendants as the siblings in the present

suit have joint possession and enjoyment of the residential house. He

states that the proceedings in the suit have been botched up by the

previous counsel engaged by the plaintiff and immediately after he

was engaged by the plaintiff, he had filed the present application on

25.04.2013, for seeking directions to the local police to evict the

trespassers/squatters, who are in unauthorized possession of the

residential property.

10. A reply in opposition to the application has been filed by the

defendants No.1 to 3 who have stated inter alia that the present

application is liable to be dismissed on the ground that even if the

facts narrated by the plaintiff in the application are accepted as

correct, at best it gives a cause of action to him to institute a separate

suit against the trespassers of the residential premises but it does not

entitle him to seek the reliefs of the nature prayed for in the

application. In other words, it is contended that the plaintiff cannot be

permitted to club two separate causes of action in the present suit

filed for partition of immovable properties.

11. It is stated by Mr. Mahajan, learned counsel for the defendants

No.1 and 2 that the defendants have already made an averment in

their written statement to the effect that the defendant No.3 had

executed an Agreement to Sell dated 11.12.2006 in respect of 1/4 th

undivided share in the residential premises in favour of Mr. Suresh Vij

and the other defendants have also entered into separate Agreements

to Sell in respect of their respective 1/4th share therein. He submits

that in view of the fact that the purchasers of part of the suit premises

had filed two applications for impleadment in the present suit, which

came to be dismissed on 24.4.2009 due to the stiff opposition by the

plaintiff, it does not lie in his mouth to seek their eviction in the

present suit.

12. The law on the question as to whether in a suit for specific

performance of a contract for sale of a property instituted by a

purchaser against the vendor, a third party to the contract claiming to

have an interest over the contracted property is entitled to be arrayed

as a defendant in the suit, is well settled. As held in the case of Kasturi

Vs. Iyyamperumal and others reported as AIR 2005 SC 2813, the

twin tests that must be satisfied for determining the question as to

who is a necessary party in a suit for specific performance are that

firstly, there must be a right to some relief against such a party in

respect of the controversies involved in the proceedings and secondly,

that no effective decree can be passed in the absence of such a party.

13. In the aforecited case, the Supreme Court had carefully

considered the provisions of Section 19 of the Specific Relief Act and

opined that the guiding principle is that the presence of a party is

absolutely necessary to adjudicate the controversies involved in a suit

for specific performance of a contract for sale, as, the only question

that is required to be adjudicated in such a suit is the enforceability of

the contract entered into between the contracting parties. An applicant

whose interest is adverse to the defendant ought not to be impleaded

in a suit for specific performance for the reason that if a person

seeking addition is added in such a suit, it is natural that the scope of

the said suit would be enlarged far beyond the relief sought by a

contracting party.

14. Thus, it is clear that the scope of the relief in a suit for partition

cannot be changed to a suit for eviction and possession by impleading

third parties, who are neither necessary nor proper parties to the

original suit. It was while keeping in mind the aforesaid settled law

that the order dated 29.04.2009 came to be passed in I.As

No.1461/2007 and 1465/2007, applications filed by the interveners for

seeking impleadment. The said order has admittedly attained finality

as neither the plaintiff, nor the defendants or the intervenors have

challenged the same in appeal. Once the predecessor Bench has

declined to implead the interveners as parties in the present suit, by

this application, the plaintiff cannot be permitted to convert a partition

suit into a suit for declaration, eviction, possession, etc. Therefore,

any relief prayed for by the plaintiff in the present application for

directions to the local police to evict the trespassers/squatters has to

be turned down. The Court declines to convert the present suit for

partition into a suit for declaration, eviction, possession, etc., that too,

after a preliminary decree has already been passed in the suit as long

back as on 23.01.2012. In case a cause of action has arisen in favour

of the plaintiff, it is for him to seek his remedies against the said third

parties in independent proceedings.

15. For the aforesaid reasons, the prayer made in the present

application is declined and the application is dismissed. However,

liberty is granted to the plaintiff to seek his remedies against the

alleged trespassers of the residential premises at Anand Vihar, as may

be available to him in law.

                                                       (HIMA KOHLI)
APRIL 16, 2015                                            JUDGE
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