Vijay Gupta vs Rajinder Gupta & Anr
2015 Latest Caselaw 8113 Del

$~11.
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 2077/2014
      VIJAY GUPTA                                      ..... Plaintiff
                           Through: Mr.Anuj Gupta, Advocate with
                           Ms. Rashmi Bansal, Advocate and plaintiff in
                           person.

                           versus

      RAJINDER GUPTA & ANR                       ..... Defendants
                    Through: Mr. V.K. Kalra, Advocate for D-1.

      CORAM:
      HON'BLE MS. JUSTICE HIMA KOHLI

                           ORDER

% 28.10.2015

1. The present suit for permanent and mandatory injunction has

been instituted by the plaintiff against his two brothers. The plaintiff

and the defendants No.1 and 2 are the children of Shri R.S. Gupta and

Smt. Kailash Wati. Apart from the plaintiff and the defendants No.1

and 2 (three sons), Shri R.S. Gupta and Smt. Kailash Wati had seven

daughters. Shri R.S. Gupta had expired on 26.04.2003 and

Smt.Kailash Wati had expired on 18.11.2001. Smt. Kailash Wati,

mother of the parties was the owner of the suit premises bearing

No.28, Block No.24 (No.24/28), Shakti Nagar, Delhi.

2. It is the case of the plaintiff that the mother had executed a

registered will dated 16.09.2000, in respect of her immovable

properties including the suit premises, wherreunder she had divided

the suit premises in a particular manner. Learned counsel for the

plaintiff states that the manner in which the suit premises had been

partitioned by the mother is reflected in the site plan filed by him at

page 45 of the list of documents. He states that as per the will dated

16.09.2000 executed by the mother, the suit premises has already

been mutated in the municipal records in favour of the plaintiff and the

defendants No.1 and 2.

3. The cause of action for instituting the present suit in the year

2014, is based on an allegation that the defendant No.1 was trying to

sell the entire suit premises and he had threatened the plaintiff that he

would dispossess him. Summons were issued in the suit on

18.07.2014, on which date the defendant No.1 was restrained from

creating any third party rights in respect of the portion marked in

'green' on the second floor of the suit premises as shown in the site

plan filed with the plaint. Thereafter, appearance was entered by the

defendants No.1 and 2. Written statements have been filed by both

the defendants.

4. None is present on behalf of the defendant No.2 today.

However, counsel for the plaintiff state that the grievance of the

plaintiff is mainly directed against the defendant No.1. He submits that

the defendant No.2 who is supporting the plaintiff, has admitted the

execution of the will dated 16.09.2000 by the mother and he does not

oppose the relief prayed for by the plaintiff. After admission/denial of

documents was conducted, the suit is listed today for framing of

issues.

5. Counsel for the defendant No.1 states at the outset that the

defendant No.1 has propounded a will dated 25.10.2001 executed by

the mother of the parties and has filed a probate petition in the Tis

Hazari Courts for seeking probate of the said will. All the parties

including the plaintiff herein have entered appearance in the said

petition, which is pending adjudication. He further states that

defendant No.1 disputes the submission made by the other side that

any threat to dispossess the plaintiff was made by him and states that

the defendant no.1 has no objection to the suit being decreed in terms

of prayer clause (c) of the plaint.

6. As far as the remaining reliefs prayed for in the plaint are

concerned, learned counsels for the parties jointly state that the same

be kept open as much would depend on the outcome of the pending

probate petition.

7. The parties agree that the suit may be decreed in terms of

prayer clause (c) and the plaintiff be permitted to take out fresh

proceedings with regard to the reliefs in prayer clauses (a) and (b) of

the plaint after the probate petition is decided.

8. Accordingly, the defendant No.1 is restrained from dispossessing

the plaintiff from the portions in his possession in the suit premises, as

reflected in the site plan enclosed at page 45 of the list of documents

filed by the plaintiff, except in accordance with law. Both the parties

agree that till the probate petition is decided, they shall maintain

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

Decree sheet be drawn accordingly.

9. For the remaining reliefs, the parties shall be at liberty to seek

their remedies against each other, after the disposal of the pending

probate petition filed by the defendant No.1.

HIMA KOHLI, J OCTOBER 28, 2015 rkb/ap