Smt. Anita Vig & Anr vs Sh. Joginder Khanna & Ors
2018 Latest Caselaw 5137 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Date of decision: 29.08.2018
+      CS(OS) 323/2017
       SMT. ANITA VIG & ANR                            ..... Plaintiffs
                     Through            Ms.Bhawna Chopra Rustogi, Adv.

                           Versus

       SH. JOGINDER KHANNA & ORS              ..... Defendants
                     Through Mr.Naveen Dabas, Adv. for D-1
                             Mr.Gaurav Kakar, Adv. for D-2.
                             Mr.Abhimanyu Singh Khatri, Adv.
                             with Mr.Ankit Panwar, Adv. for D-
                             4/MCD North
                             Mr.Kaushik Mishra, Adv.for D-5.
                             Mr.Dhruv Tamta, Adv. for DDA

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (ORAL)

IA No. 1898/2018

1. This application is filed under Order 7 Rule 11 CPC seeking rejection of the plaint by defendant No.5.

2. The brief facts of this case have already been stated by this court in its order dated 12.02.2018 which reads as follows:-

"2. The plaintiffs, being the sisters of the defendants no.1 and 2 viz. Joginder Khanna and Pawan Khanna, have instituted this suit for i) declaration that the Conveyance Deed dated 26th July, 2001 executed by defendant no.3 Delhi Development Authority (DDA) in favour of defendant no.1 with respect to freehold rights in land underneath the property No.1368, ad-measuring

160 sq. yds. situated at Dr. Mukherjee Nagar, Delhi is null and void; ii) declaration that the perpetual Lease Deed dated 14th November, 2000 executed by defendant no.4 Municipal Corporation of Delhi (MCD) in favour of defendants no.1&2 in regard to Shop No.AG-392, Sanjay Gandhi Transport Nagar, Delhi is null and void; iii) permanent injunction restraining the defendants from dealing with the properties; and, iv) partition of the two properties aforesaid.

3. It is the case of the plaintiffs that the defendants no.1&2 being the brothers of the plaintiffs have fraudulently got the title to the properties left by the parents transferred to their own name and have mortgaged the property at Dr. Mukherjee Nagar, Delhi with the applicant / defendant no.5 viz. HDB financial Services Ltd.

4. The applicant / defendant no.5 seeks rejection of the plaint on the ground of dismissal on 23rd May, 2017 of the earlier suit filed by the plaintiffs for declaration and injunction with respect to the Dr. Mukherjee Nagar, Delhi property."

3. Learned counsel appearing for defendant No. 5/applicant has vehemently argued that the present suit is barred under Order 2 Rule 2 CPC in view of the fact that the earlier suit filed by the plaintiff was based on the same cause of action, namely, seeking title to the property situated at Dr. Mukherjee Nagar, Delhi and also seeking a declaration that the Conveyance Deed dated 26.07.2001 executed by DDA in favour of defendant No.1 is null void. He has relied upon judgment of this court in Ashok Aggarwal and Mr.Bhagwan Das Arora, ILR (2000) II 527 and of the Division Bench of the Allahabad High Court in Mohd. Khadil Khan & Anr. vs. Mahboob Ali Kian & Ors. , AIR (29) 1942 All. 122

4. A perusal of the first plaint filed by the plaintiffs would show that the suit was filed for declaration and permanent injunction. It had been prayed in the suit that a decree of declaration be passed declaring the document,

namely, Conveyance Deed regarding the property situated at Dr.Mukherjee Nagar, Delhi as null and void. A decree of permanent injunction was also sought against the defendants restraining defendant No.1 therein from transferring or parting with possession of any portion of the suit property. On 23.05.2017 the trial court had noted that the plaintiff admits that they are not in physical possession of the suit property. It concluded that the suit would not be maintainable without seeking possession. Based on this, the court also noted that any declaration in the absence of the relief of possession is barred by the proviso to Section 34 of the Specific Relief Act. Based on the said observations, the trial holding the suit to be a misuse of the legal process, dismissed the suit.

5. Now by the present suit the plaintiffs seek relief of declaration regarding the said Dr.Mukherjee Nagar property and also seeks declaration that perpetual Lease Deed executed by defendant No.4 in favour of defendants No.1 and 2 regarding the property being Shop No.AG-392, Sanjay Gandhi Transport Nagar, Delhi be declared as null and void. A decree of partition and possession is also sought of the said two properties. It is manifest that in the first suit that was filed no relief of partition had been sought by the plaintiff.

6. I may first look at the Order 2 Rule 2 CPC, which reads as follows:

"Order 2. Suit to include the whole claim ..............

(2) Relinquishment of part of claim. --Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished."

7. I may note that this court has already held that the relief for partition of a property is a continuing cause of action. In Sri Kishan v. Shri Ram Kishan & Ors., 159 (2009) DLT 470, this court held that right to enforce partition is a legal incident of a co-ownership and the right to seek partition is a continuing cause of action. Merely because a co-owner files a suit for partition and then abandons it does not deprive him of his right to seek partition. This court held as follows:

"17. The right to enforce partition is a legal incident of a co- ownership and as long as such co-ownership subsists, the right to seek partition continues. The mere fact that a co-owner files a suit for partition and then abandons or withdraws it will not deprive him of his right to seek partition of the joint property. The substantive right of a co-owner to seek partition of the joint property will not be extinguished by the provisions of Order XXIII Rule 1. If the plaintiff brings a suit for partition and then, for any reason, decides not to enforce the right immediately and withdraws the suit, then he would be deemed to have chosen to continue the ownership in common for some time more till he would find it necessary again to seek its termination. A suit which is barred by withdrawal of the claim under Order XXIII Rule 1(3) is one which is based on the same cause of action but a suit for partition and separate possession of the share which may be brought subsequently will be on a cause of action arising upon a demand subsequently made and refused [See Radhe Lal v. Mulchand MANU/UP/0362/1924 : AIR 1924 ALL 905].

18. A Division Bench of this Court in Jai Devi and Ors. v. Jodhi Ram and Ors. MANU/DE/0162/1970 : 6(1970)DLT549 has held that the bar of second suit contemplated in Order XXIII, Rule 1(4) is not applicable to a partition suit, as the cause of action in such a suit is a recurring one. In the said case the husband of the appellant therein, Mr. Babu Ram had filed a suit in the Court of Subordinate Judge Ist Class, Delhi for

partition of the joint family properties. An application was moved in the said suit by the plaintiff stating that he intended to withdraw the suit and did not want to pursue the same. Liberty was not reserved by the plaintiff either in his application or in his statement in Court to institute a fresh suit in respect of the subject matter of the suit nor was permission granted by the Court to withdraw with liberty to institute a fresh suit. Thereafter the wife of the plaintiff and his sons filed a suit for the partition of the same properties. One of the issues before the Court was whether the subsequent suit was barred by Order XXIII Rule 1 of the Code of Civil Procedure. The Court observed:

(13) Coming to the merits of the appeal the only Issue which require determination is whether the suit out of which the present appeal has arisen was barred by Order 23, Rule 1 of the Code of Civil Procedure. The learned Subordinate Judge came to the conclusion that where a party withdraws a suit without seeking permission to bring a fresh suit on the same cause of action or abandons a part of the claim, he is precluded from claiming the abandoned relief or from bringing a fresh suit on the same cause of action. This proposition, as a general proposition, is correct but it does not apply to suits for partition. In 1967 (1) Mlj 175 in re : Bajah V. Maheswara Rao v. Bajah V. Bajeswara Rao it has been held that:

So far as a suit for partition or a suit for redemption is concerned, it is axiomatic that, when the plaintiff withdraws his suit, he will be entitled to file a fresh suit as the cause of action is recurring cause of action. Even if the plaintiff is not granted permission, under Order 23, Rule 1, Civil Procedure Code, he will nevertheless have a right to file a suit for partition at any time he pleases.

(14) To the same effect are the cases reported in AIR 1944. Sindh 192; AIR Mad 112; MANU/TN/0048/1935 : AIR 1935 Mad 909 and MANU/UP/0362/1924: AIR 1924 All

905. We may only mention one other case reported in AIR

1950 FC In re : Thota China Subha Rao and Ors. v. Mattapalli Raju and Ors. where it has been observed: Provisions like Order 9, Rule 9 or Order 23, Rule 1 will not debar the mortgagor from filing a second suit for redemption because, as in a partition suit the cause of action in a redemption suit is a recurring one.

(15) Even though, therefore, liberty was not reserved while withdrawing the earlier suit, the present suit would not be barred by Order 23, Rule 1 of the Code of Civil Procedure."

8. In the present case, no relief of partition was sought by the plaintiff in the first suit. Now partition is being sought for the two properties. It is clear that the cause of action of the first suit and the cause of action of the second suit is entirely different. Even otherwise, as noted the relief of partition gives rights to continuing cause of action. Hence, there can be no reason to hold that the suit is barred under Order 2 Rule 2 CPC.

9. Apart from the above, it may be noted that if a suit for declaration of title is followed by a Suit for possession then there is no bar in filing the second suit for possession.

10. Reference in this context may also be had to the judgment of the Full Bench of Allahabad High Court in Darbo v. Kesho Rai, (1879) ILR 2 ALL 356, where the court held as follows:

"In so far as the appellant claims possession of property to which she formerly claimed a declaration of title, we are of opinion that the suit is clearly not barred; she is seeking a different relief, and the relief she formerly sought was refused her in respect of this property, on the ground that the court ought not to exercise its discretionary power of awarding a declaration of title when relief can be obtained by an ordinary

suit for possession."

11. In this context reference may also be had to Mulla on CPC (18th Edition): where the learned author held as follows:-

"(viii) The dismissal of a suit for a declaration of title under s.42 of the Specific Relief Act, 1877, (Now replaced by the Specific Relief Act, 1963) on the ground that the plaintiff, not being in possession, ought to have asked for possession also, is no bar to a subsequent suit for a declaration of title and for possession. So also, when A filed a suit for a declaration that, he was the adopted son of the last owner, and alleged in the plaint that he was in possession of the properties and the court held that his adoption was established, but that he was not in possession, and therefore, dismissed the suit as barred under s. 42 of the Specific Relief Act, 1877 (Now replaced by the Specific Relief Act, 1963). Being one for a bare declaration, it was held that a second suit for possession was not barred under this rule."

12. In view of the above, it becomes quite clear that the legal position is that if the first suit is filed for declaration of title and the second suit is filed for possession the second suit would not be barred under Order 2 Rule 2. Given this established legal position, it is clear that the first suit for declaration of title that was filed by the plaintiff would not bar the second suit filed for partition and possession.

13. In view of the above, it is clear that second suit filed by the plaintiffs cannot be said to be barred by law or that the same is liable to be dismissed under Order 2 Rule 2 CPC. There is no merit in the present application and the same is dismissed.

JAYANT NATH, J.

AUGUST 29, 2018/rb Corrected and released on 24.9.2018