Urmila Devi And Ors. vs Dropadi Devi And Ors.
2015 Latest Caselaw 7892 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          CS(OS) No.2270/2010

%                                                      14th October, 2015

URMILA DEVI AND ORS.                                        ..... Plaintiffs
                                    Through:    Mr. Lalit Gupta, Advocate.

                           versus

DROPADI DEVI AND ORS.                                       ..... Defendants
                                    Through:    Mr. Sumeet Verma, Advocate
                                                for defendant Nos.1 to 5.
                                                Mr. Vikas Chopra, Advocate
                                                for defendant No.6.
                                                Mr. Pradeep Kumar, Advocate
                                                for defendant Nos.7, 8 & 10 to
                                                14.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)


1.

This is a suit filed by the three plaintiffs. Suit is for declaration,

partition, cancellation of documents, prohibitory injunction and mandatory

injunction. The suit property is property being A-266, New Subzi Mandi,

Azadpur, Delhi. The reliefs in the suit are essentially in two parts. One part

pertains to the relief against defendant nos.1 to 4 with the defendant no.5 and

the other part pertains to defendant nos.7, 8 and 10 to 14. The three groups

are basically the successors-in-interest of partners of a partnership firm M/s

Ram Gopal Banwari Lal. Plaintiffs are successors-in-interest of the partner

Sh. Banwari Lal. The partnership firm M/s Ram Gopal Banwari Lal initially

had two partners, as per its names, and thereafter two other partners Sh.

Chander Bhan and Sh. Ram Nath were inducted in the year 1967. On

31.3.1971, the fourth partner Sh. Ram Nath retired and consequently w.e.f

5.4.1971 partnership was reconstituted with 36% share in the property being

of Sh. Ram Gopal, 36% share was of Sh. Banwari Lal and the balance 28%

share was of Sh. Chander Bhan. With respect to the suit property on

28.9.1972, a perpetual lease was executed by the competent authority in

favour of the partnership firm called as M/s Ram Gopal Banwari Lal, but

which at the relevant time had three partners, namely Sh. Ram Gopal, Sh.

Banwari Lal and Sh. Chander Bhan. Plaintiffs are successors-in-interest of

the partner Sh. Banwari Lal whereas defendant nos.1 to 4 are the successors-

in-interest of partner Sh. Ram Gopal. Defendant no.5 is the purchaser of the

share of the defendant nos.1 to 4 under the documentation dated 9.3.2009

and which have been mentioned in para 3. XV. of the plaint. Other

defendants, namely defendant nos.7 and 8 and 10 to 14 are the successors-

in-interest of the third partner Sh. Chander Bhan.

2. The case laid out in the plaint is that the suit shop is an

undivided property and therefore defendant nos.1 to 4 had no rights to

execute the documentation dated 9.3.2009 in favour of the defendant no.5.

In this suit, it is stated that Sh. Chander Bhan, who was not the original

partner of the partnership firm M/s Ram Gopal Banwari Lal, did not have

any rights in the suit shop, inasmuch as perpetual lease deed was executed

by the competent authority of the suit property in the name of M/s Ram

Gopal Banwari Lal i.e the perpetual lease was only in the name of the

original two partners, and that Sh. Chander Bhan who came in later as a

partner did not have any share in the suit shop. The successors-in-interest of

Sh.Chander Bhan have filed a counter claim in the suit claiming rights in the

suit shop on the ground that as per the perpetual lease deed even Sh.

Chander Bhan had rights in the suit shop.

3. As per the written statement filed by defendant nos.1 to 5, it is

pleaded that the plaintiffs have concealed the factum of execution of the

Settlement Agreement-cum-Award passed by the Arbitral Tribunal of The

Potato & Onion Merchants Association (Regd.) on 7.2.1981. As per this

Award/Order dated 7.2.1981 of the Arbitral Tribunal of Potato & Onion

Merchants Association (Regd.), where the suit shop is located, and which

was functioning for the market, Sh. Banwari Lal who is predecessor-in-

interest of the plaintiffs was a party to these proceedings, a half specific

portion was by partition given to the successors-in-interest of late Sh. Ram

Gopal, namely Smt. Dropadi Devi and Smt. Shanti Devi. Smt. Dropadi

Devi is the defendant no.1 in the present suit and defendant nos.2 to 4 are the

successors-in-interest of Smt. Shanti Devi. As per the Award dated 7.2.1981,

Smt. Dropadi Devi and Smt. Shanti Devi received a specific portion of the

suit shop as their share. This Order dated 7.2.1981 which is referred and

relied upon by defendant nos.1 to 5 in the written statement is not disputed

by the plaintiffs in their replication.

4. A reference to the Order dated 7.2.1981 of the Arbitral Tribunal

shows that Smt. Dropadi Devi and Smt. Shanti Devi, as successors-in-

interest of Sh. Ram Gopal, were given 50% share rights in the suit shop and

this portion falling to their share was described by the Award dated 7.2.1981

as "small room on the first floor in the shop, half platform on the ground

floor towards main road and half godown in the basement of the suit shop".

5. Once therefore partition has already been taken place and Smt.

Dropadi Devi and Smt. Shanti Devi who are the defendant nos.1 to 4 in the

present suit, were in lieu of their share given specific portion of the suit

shop, then, as against them the suit for partition will not lie inasmuch as the

share of the defendant nos.1 to 4 has already been partitioned and given to

them under the Award dated 7.2.1981. Once the defined share by partition

by metes and bounds has already been given to defendant nos.1 to 4 with

respect to their rights in the suit property, there cannot be any suit for

partition that the property continues to be undivided and therefore has to be

partitioned. Defendant nos.1 to 4 having received a specific portion under

the partition/Award dated 7.2.1981. Hence these defendant nos.1 to 4 were

entitled to sell their specified share to defendant no.5.

6. The following reliefs are claimed in the suit:-

"a) Decree of Declaration declaring the transaction as executed by defendant no.1 to 5 various documents as described in para XV in the plaint as null and void as in breach of right of preemption of the plaintiff being the co-owners to the extent the same described a divided shares in the hands of defendants no.1 to 4 as mentioned in the said documents being excessive in portion in possession even as their own case of the defendant and also due to being in violation of Perpetual Lease Deed dated 28.9.1972.

b) In consequences of the aforesaid declaration, it is therefore, most humbly prayed that the Hon'ble Court may kindly be pleased to direct the registrar of documents to cancel the documents registered with the registrar of the documents, Pritampura, New Delhi referred in para no.XV of the plaint.

c) Pass Preliminary decree of partition in favour of the plaintiff no.1 to 3 for half undivided shares and the defendant no.1 to 4 have jointly the remaining half undivided share;

d) Pass final decree of partition thereby dividing the suit property No.A-266, New Sabzi Mandi, Azadpur, Delhi with a equal right having an equal market value.

e) Pass a decree of permanent injunction restraining defendant no.6 from granting any license in favour of the defendant no.5 carrying out the trade activity from the suit thereof until acquire a valid title with divided or specific portion of the suit property.

f) Cost of the suit may also be passed in favour of the plaintiffs and against the defendants and

g) Pass such other/further order as this Hon'ble Court may deem fit and proper in the interest of justice."

7. A reading of the relief clauses shows that essentially the suit

was filed only with respect to the share of late Sh. Ram Gopal, which was

succeeded by the defendant nos.1 to 4, and seeking reliefs against the

defendant nos.1 to 5. In view of above discussion, the suit is dismissed

against defendant nos.1 to 5 as the reliefs which are prayed cannot be

granted because the suit property/shop was already divided, defendant nos.1

to 4 had been given a specific defined portion on partition as per the Award

dated 7.2.1981, and it is this specific share and portion which was sold by

the defendant nos.1 to 4 to the defendant no.5, however, the counter claim of

the successors-in-interest of Sh. Chander Bhan will continue as the same is

opposed by the plaintiffs.

8. The suit is accordingly disposed of.

9. Counter claim being CC No.50/2011 will continue and which

counter claim will continue on behalf of successors-in-interest of Sh.

Chander Bhan and against the successors-in-interest of Sh. Banwari Lal.

Counsel appearing for sister of plaintiff nos.2 and 3 who had not been

impleaded earlier states that an application has been filed for impleading this

sister Ms. Neha Gupta as a party to the proceedings and who will now be a

defendant in the counter claim being CC No.50/2011.

10. Accordingly, list the CC No.50/2011 before the Joint Registrar

on 19th October, 2015.

OCTOBER 14, 2015                                  VALMIKI J. MEHTA, J.
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