Rajeev Chhabra vs Surinder Khurana & Ors
2018 Latest Caselaw 852 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                         Date of decision: 5th February, 2018.
+      CS(OS) 120/2017 & IAs No.3101/2017 & 3676/2017 (both u/O
       XXXIX R-1&2 CPC)

       RAJEEV CHHABRA                                                 ..... Plaintiff

                           Through:     Mr. Sanjay Sharma,            Adv.      with
                                        plaintiff-in-person.

                                 Versus

       SURINDER KHURANA & ORS                                   ..... Defendants

                           Through:     Mr. Joginder Sukhija and Mr. Amitesh
                                        Giroti, Advs.

CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     The plaintiff Rajeev Chhabra has instituted this suit against the three
defendants namely (i) Surinder Khurana; (ii) Anjana Khurana; and, (iii) Arun
Khurana, for (a) partition of property No.A-1/261, Paschim Vihar, New
Delhi; (b) for possession with respect to 50% share in the ground floor, 50%
share in the first floor of the said property; and, (c) for permanent injunction
restraining the defendants from dealing with the property.
2.     The suit was entertained, though no ex-parte relief sought, granted.
3.     Pleadings have been completed and the suit is ripe for framing of
issues and for consideration of the application for interim relief.
4.     A perusal of the plaint shows the case of the plaintiff to be (a) that the
defendant No.1 is an old acquaintance of the plaintiff; (b) that the plaintiff
was interested in acquisition of a residence for himself and mentioned the
said fact to the defendant No.1, who is engaged in real estate business; (c)


CS(OS) 120/2017
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 that the defendant No.1 proposed to the plaintiff, purchase of property
aforesaid jointly by the plaintiff and the defendant No.1; (d) that the said
property comprised of ground and first floor only and the defendant No.1
represented to the plaintiff that the parties, after jointly acquiring the
property will re-develop the same and equally share the newly built up
property; (e) that MoUs dated 5th November, 2014 & 10th November, 2014
were executed in this regard; (f) that sale deeds were got executed as
suggested by the defendant no.1; (g) that the plaintiff and the defendants
No.2&3 are entitled to have equal share in the property; (h) that the MoUs
also provided that if the property is not re-developed, as aforesaid, it will be
sold out in 'as it is condition' and the sale consideration amount will be
divided between the plaintiff and the defendant No.1 in equal ratio.
5.     The counsel for all the three defendants contends (i) that the plaintiff
instituted this suit after withdrawing the earlier suit being Suit No.Civ-DJ
611176/16 of the Court of Sh. Mahavir Singhal, Additional District Judge
(West), Delhi with liberty to sue for specific performance and in the
alternative for partition; (ii) that the plaintiff has however filed this suit only
for the relief of partition and not for the relief of specific performance; (iii)
that the property aforesaid comprises of ground floor, first floor and open
terrace above; (iv) that the ground floor of the property was purchased by
defendant No.2 vide sale deed in his name; (v) that the first floor of the
property was purchased by defendants No.2&3 vide sale deed in their
favour; (vi) that terrace with right of construction thereon till the sky was
purchased by the plaintiff vide sale deed in his favour; (vii) that the
defendant No.1 is the husband of the defendant No.2 and a cousin of the
defendant No.3; (viii) that since there are separate sale deeds in respect of



CS(OS) 120/2017
                                                                          Page 2 of 4
 the plaintiff and defendants No.2&3 with respect to different portions of the
property, the suit for partition is misconceived; (ix) reliance is placed on
Tahil Naraindass Vazirani Vs. Ravinder Kaur Sandhu 2013 SCC OnLine
Del 3073.
6.     The counsel for the plaintiff though not disputed the factum of
separate sale deeds with respect to different portions of the property but has
contended that the defendants No.2&3 have filed a suit against the plaintiff
in the District Court for declaration of Memorandum of Understanding
(MoU) dated 5th November, 2014 and MoU dated 10th November, 2014 as
null and void and which has led the plaintiff to institute the present suit.
7.     Merely because the defendants No.2&3 may have filed a suit against
the plaintiff, even if dishonestly, would not vest a right in the plaintiff to
maintain a suit for a relief which has no basis in law. The remedy of the
plaintiff is to defend the misconceived suit.
8.     Merit is found in the contention of the counsel for the defendants, of
the suit in the form in which it has been filed being not maintainable. As
long as the sale deeds of different portions of the property exist between the
parties, the plaintiff cannot seek the relief of partition, as it cannot be said
that there is any common or joint property of the parties which can be
partitioned.
9.     On the contrary, if the intent of the plaintiff is to enforce the MoUs
aforesaid, as it appears to be, the remedy of the plaintiff is to sue therefor i.e.
either by enforcing re-development of the property or in the alternative sale
of the property with the sale proceeds being shared as provided therein.
10.    I may mention that the plaintiff in the present suit has not even sought
any relief with respect to the sale deeds, of the same not representing the



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 correct state of affairs.
11.    Thus, the suit is dismissed but with liberty to the plaintiff to sue for
appropriate relief.
12.    In the facts, no costs.



                                              RAJIV SAHAI ENDLAW, J.

FEBRUARY 05, 2018 Bs..

CS(OS) 120/2017