Delhi High Court
Vipula Chandhok & Others vs Kulbir Singh Chandhok & Others on 5 April, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 5th April, 2018
CS(OS) 134/2018
VIPULA CHANDHOK & OTHERS .... Plaintiffs
Through: Mr. M. Dutta & Mr. Sumeher
Baja, Advs.
Versus
KULBIR SINGH CHANDHOK & OTHERS ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
IA No.4397/2018 (for exemption)
1. Allowed, subject to just exceptions.
2. The application is disposed of.
CS(OS) 134/2018 & IA No.4398/2018 (u/O XXXIX R-1&2 CPC)
3. The six plaintiffs viz. i) Vipula Chandhok, ii) Gundeep Singh
Chandhok, iii) Paramdeep Singh Chandhok, iv) Tanveerdeep Singh
Chandhok, v) Gurcharan Singh Chandhok, and, vi) Ravinder Singh
Chandhok, have instituted this suit against the five defendants viz. a)
Kulbir Singh Chandhok, b) Amardeep Singh Chandhok, c) Karandeep
Singh Chandhok, d) Armaan Singh Chandhok, and, e) Jasmit Singh
Chandhok, for the reliefs of declaration of two sale deeds as null, void,
non est and illegal, one executed by defendant no.2 in favour of
defendant no.1 and the other executed by defendant no.3 in favour of
defendant no.4 and both with respect to different portions of ground
floor of property No.B-39, Greater Kailash Part-I, New Delhi and for
cancellation of the said sale deeds.
CS(OS) No.134/2018 Page 1 of 5
4. The gravamen of the cause of action of the plaintiffs is that the
defendants no.2 and 3 who have executed the sale deeds with respect
to identifiable portions of the ground floor of the property, were/are
only the owners of undivided share in the entire property along with
the plaintiffs and thus could not have executed the sale deeds of
identifiable portions of the property.
5. The counsel for the plaintiffs draws my attention to the order
dated 25th August, 2015 in FAO(OS) No.402/2015 titled 'Kulbir Singh
Chandhok & Anr. Vs. Amardeep Singh Chandhok & Ors' in which
the defendants no.1 and 4 herein are said to be the appellants and
wherein the defendants have admitted to being the owners of 1/3 rd
undivided share in the property. It is contended that the defendants
no.2 and 3 being the owners of undivided share in the property have
wrongly executed the sale deeds of separate / identifiable / distinct
portions of the property.
6. I have enquired from the counsel for the plaintiffs, whether the
plaintiffs are desirous of partition of the property or do not want the
property to be partitioned.
7. The counsel for the plaintiffs states that the plaintiffs are
desirous of seeking partition of the property. Subsequently, it is stated
that in fact some of the plaintiffs have already applied for
impleadment / transposition in CS(OS) No.2672/2013 which has been
filed amongst defendants inter se for partition of the ground floor of
the property amongst themselves. Therefrom it appears that the sale
deeds are not of identified or distinct portions but of undivided share.
CS(OS) No.134/2018 Page 2 of 5
On enquiry, it is stated that the two sale deeds of the ground floor
were with respect to undivided share but in the ground floor but there
had been no partition of the entire property comprising, besides of
ground floor, also of first and second floors and it has been wrongly
stated in the impugned sale deeds that there has been a floorwise
partition of the property.
8. I have enquired from the counsel for the plaintiffs that if the
plaintiffs also want partition of the property, whether not the proper
remedy for the plaintiffs is to sue for partition of the property. It has
further been enquired from the counsel for the plaintiffs as to what is
the cause of action for the plaintiffs to seek declaration and
cancellation of the sale deeds so executed inasmuch as if the plaintiffs
in the suit for partition are able to establish that there has been no
partition of the entire property and the defendants who have executed
the sale deeds were not entitled to execute the sale deeds of the ground
floor, the said sale deeds would not affect the right and title of the
plaintiffs to have partition.
9. Though in my opinion, owing to the aforesaid, there is no need
for the plaintiffs to seek relief of declaration and cancellation qua the
sale deeds and the only relief which the plaintiffs can claim is of
partition but even if the counsel for the plaintiffs is of the opinion that
it is essential for the plaintiffs to seek such declaration and
cancellation as is claimed in this suit, the same should be done in a
composite suit for partition and for declaration and cancellation. When
the plaintiffs themselves are desirous of partition, there is no need for
CS(OS) No.134/2018 Page 3 of 5
multiplication of the suits amongst the parties with respect to the same
property / right. It is such multiplication which leads to suits
remaining pending before the Courts for long and the disputes being
never settled.
10. The counsel for the plaintiffs refers to para no.7 of Suhrid
Singh Alias Sardool Singh Vs. Randhir Singh (2010) 12 SCC 112 to
contend that it is open to the plaintiffs to seek such declaration and
cancellation.
11. Reliance on Suhrid Singh Alias Sardool Singh supra is
misconceived. The said judgment was on an issue of court fees and it
is well settled principle that a judgment is a precedent on what is in
issue before the Court and not on other matters. The said judgment is
nowhere concerned with the right of the co-owner to seek declaration
and cancellation of a sale deed executed by another co-owner with
respect to identifiable / distinct portion of the property.
12. The suit is therefore not found to be maintainable for the
aforesaid reason and is disposed of with liberty to the plaintiffs to, if
of the opinion that the sale deeds qua which this suit has been filed
affect the rights of the plaintiffs, seek a relief therefor in a suit for
partition of the property which the counsel for the plaintiffs states that
the plaintiffs will take a call whether to file a fresh suit or to take the
chance in the pending suit.
CS(OS) No.134/2018 Page 4 of 5
13. However, it is deemed appropriate to refund the court fees paid
by the plaintiffs less Rs.15,000/-.
14. Accordingly, a certificate entitling the plaintiffs to refund of the
court fees paid less Rs.15,000/- be issued and handed over to the
counsel for the plaintiffs.
No costs.
Dasti.
RAJIV SAHAI ENDLAW, J.
APRIL 05, 2018
'gsr'
