Delhi High Court
Sh Anil Kumar vs Sh Rajbir Singh & Ors on 26 July, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 298/2016 and I.A. Nos. 7274/2016 (under Order XXXIX
Rule 1 and 2 CPC), 12803/2016 (under Order XXIII Rule 3 CPC) and
13633/2016 (Additional facts)
% Decided on: 26th July, 2017
SH ANIL KUMAR ..... Plaintiff
Represented by: Mr. Raj Bahadur Singh,
Advocate.
versus
SH RAJBIR SINGH & ORS ..... Defendants
Represented by: Mr. Rajesh Gupta, Advocate
for defendant Nos. 1, 4 to 10.
Mr. Abhimanyu Singh Khatri,
Advocate for defendant Nos. 2
and 3 with defendant Nos. 2
and 3 in person.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
MUKTA GUPTA, J. (ORAL)
1. The present suit was filed by Anil Kumar son of late Balkishan with
the following prayers:
"(a) Pass a decree for declaration in favour of the plaintiff
against the defendants No. 1 to 6, thereby declaring that
the defendants No. 1 to 6 are bound by the terms and
conditions as contained in the Mutual Family Partition
dated 29.07.1994, and further declare that the defendants
No. 1 to 6 have not any kind of right, title, interest, privity
or concern with respect to the land of Khasra No.
23//7/2(02-08), 16(04-16), 25(04-12) total measuring 11
bighas 16 biswas situated in the revenue estate of village
Mabarikpur Dabas, Delhi, in the interest of justice;
(b) Pass a decree of permanent injunction in favour of the
plaintiff against the defendant Nos. 1 to 6, thereby
defendant No. 1 to 6 be restrained permanently from
creating any kind of interference and hindrance to the
peaceful possession of the plaintiff with respect to the
land of Khasra Nos. . 23//7/2(02-08), 16(04-16), 25(04-
12) total measuring 11 bighas 16 biswas situated in the
revenue estate of village Mabarikpur Dabas, Delhi.
(c) Pass a decree of declaration, thereby declared that the
defendant No. 1 to 6 are only entitled to the enhanced
compensation amount if any in lieu of the acquired land
belonging to them in accordance with said mutual family
partition dated 29.07.1994, in the Land Acquisition Case
No. 65A/2013 titled as " Sh. Niranjan Singh & Ors.
Versus Union of India & anr." and Land Acquisition
Case No. 89A/2013 titled as "Rajbir Singh & Ors. versus
Union of India & Anr." and Land Acquisition Case No.
30A/2013 titled as "Inder Dev Vs. Union of India" which
cases are presently pending in the court of Sh.Manish
Gupta, ADJ-01, North-West, Rohini Courts Complex,
Delhi, in the interest of justice.
(d) Cost of the suit be also awarded in favour of the plaintiff
and against the defendants;"
2. The suit properties belonged to late Shri Todar who was survived by
three sons Juglal, Kamle and Ghanshyam. The property thereof devolved on
the sons and grandsons of Juglal, Kamle and Ghanshyam in the 1/3rd ratio.
The family tree is depicted in para -4 in I.A. No. 12803/2016 as under:
Sr. Recorded co- Son of Share Family
No. owner Holding Branches
1. Rajbir Singh
(Def. No. 1)
2. Birender Singh Om Prakash 1/3rd share in 1st Branch
(Def. No.2) equal parts
3. Dharmender
(Def. No. 3)
4. Niranjan Singh Chander 1/6th part
(Def. No. 7)
5. Suresh Kumar
(Def. No. 8)
6. Anil Kumar
(Plaintiff) Bal Kishan 1/6th share in 2nd Branch
7. Sunil Kumar equal parts
(Def. No. 9)
8. Praveen Kumar
(Def. No. 10)
9. Inder Dev Zile Singh
(Def. No.5) 2/9th share in
10. Hem Chander Ghanshyam equal parts 3rd Branch
(Def. No. 4)
11. Narender Singh Iswar Dutt. 1/9th share
(Def. No.6)
3. The parties to all the three branches entered into a mutual family
partition dated 29th July, 1994 wherein defendant Nos. 1, 2 and 3 sons of late
Om Prakash were the first party and together took 1/3 rd share. As per the
terms of settlement the following lands came to the share of the first, second
and third party respectively:
"1. That the first party hereto will hold, use, enjoy, the land
bearing Khasra Nos. 16/13, 18 (1-3rd share out of these KH.
Nos.), Kh. Nos. 24/20/1, 20/2 and 21, 31/5, 3/6, 7, 15 and 23 of
village Mubarikpur Dabas, Delhi, without any objections,
claims or titles of the other parties.
2. That the second party hereto will hold, use, enjoy, the
land bearing Khasra Nos. 3/14, 24 and 1/3 rd share out of 16/7
and 18, Kh. Nos. 23/7/2, 16, 25 and 31/4 of village Mubarik
Pur Dabas, Delhi, without any objections, claims or titles of
the other parties.
3. That the third party hereto will hold, use, enjoy, the land
bearing Khasra Nos. 3/16, 25, 17/1, 17/2 and 18 and 1/3rd
share of Kh. Nos. 16/8 and 18 and Kh. Nos. 23/6/2, 14, 15 and
24/11, situated in village Mubarik Pur Dabas, Delhi, without
any objections, claims or titles of the others."
4. On the basis of this mutual family partition dated 29th July, 1994, Anil
Kumar who was one of the co-owners of the second party filed the present
suit impleading the remaining co-owners of the second party and members
of the first and third party. On the filing of the suit and pursuant to the
summons being issued, parties entered into a settlement and an application
under Order XXIII Rule 3 CPC was filed being I.A. No. 12803/2016 which
was accompanied by the affidavit of the plaintiff and all the defendants
including defendant Nos. 2 and 3. The vakalatnama in favour of the counsel
was also signed by all the defendants including defendant Nos. 2 and 3. I.A.
No. 12803/2016 was followed by filing another application being I.A. No.
13633/2016 pursuant to order dated 18th October, 2016 passed by this Court
since the mutual family partition dated 29th July, 1994 was also required to
be made a part and parcel of the application under Order XXIII Rule 3 CPC.
I.A. No. 13633/2016 was also accompanied by the affidavits of the plaintiff
and all the defendants including defendant Nos. 2 and 3. Considering the
background facts and to have a holistic compromise decree passed, this
Court vide order dated 9th February, 2017, directed formal detailed
statements of each of the party to be recorded. Pursuant thereto the plaintiff,
defendant Nos. 1 and 4 to 10 appeared before the learned Joint Registrar and
got recorded their statements affirming the contents of the two applications
and the mutual family partition dated 29th July, 1994. However, defendant
Nos. 2 and 3 did not appear despite repeated adjournments when Mr.
Abhimanyu Singh Khatri, Advocate appeared on their behalf on 11 th April,
2017 for the first time and disputed the settlement arrived at between the
parties. Hence the matter was listed before the Court.
5. Today defendant Nos. 2 and 3 are present in Court. Copies of their
Aadhar Card are taken on record and they are duly identified by Mr.
Abhimanyu Singh Khatri, Advocate who has filed a vakalatnama on their
behalf. Though initially disputing the mutual family partition when this
Court insisted on recording of the statement of defendant Nos. 2 and 3, both
defendant Nos. 2 and 3 state that a mutual family partition was arrived at
between the parties on 29th July, 1994, copy whereof is placed as Annexure
PX at pages 27 to 29 of I.A. No. 13633/2016 renumbered pages being 60 to
62 and they had signed the said settlement. Defendant No. 3 Dharmender,
states that he had signed the said mutual family partition in English and the
mutual family partition bears his signatures in English. Defendant No. 3
admits his signatures on the copy of mutual family partition deed dated 29th
July, 1994 placed on record. Defendant No. 2 Birender Singh also identifies
his signature on the mutual family partition deed dated 29th July, 1994.
Defendant Nos. 2 and 3 state that they also want partition of the suit
properties as per the mutual family partition deed dated 29th July, 1994
however, their grievance is that they are not getting their shares as per the
mutual family partition dated 29th July, 1994, though they admit having
received compensation from the Government pursuant to the acquisition.
Defendant Nos. 2 and 3 state that they will also be bound by their affidavits
in support of I.A. No. 12803/2016 under Order XXXIII Rule 3 CPC and I.A.
No. 13633/2016 under Section 151 CPC.
6. Defendant Nos. 2 and 3 have signed the order sheet in
acknowledgment of their statements made before this Court today.
7. In view of the fact that the plaintiff and the defendants are agreeable
for the decree in the suit in terms of the mutual family partition dated 29 th
July, 1994 and para-5 of I.A. No. 12803/2016, the suit is decreed declaring
the shares of the plaintiff and the defendant Nos. 1 to 6 to be governed by
the terms and conditions contained in the mutual family partition, 29 th July,
1994, further declaring that the parties to the suit are restrained from
creating any kind of hindrance, interference to the peaceful possession of the
respective portions of the suit properties coming into the share of other
parties. The suit is decreed in terms of the mutual family partition deed
dated 29th July, 1994 and para-5 of I.A. No.12803/2016. The contents of the
mutual family settlement and para 5 of I.A. No. 12803/2016 will
incorporated in the decree sheet. Suit and the applications are disposed of
accordingly.
(MUKTA GUPTA)
JUDGE
JULY 26, 2017
'yo'
