Delhi High Court
Ram Narain vs Mahavir Singh & Others on 11 January, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1591/2015
RAM NARAIN ..... Plaintiff
Through Mr.Ankit Jain with Mr.Ankit
Gupta, Advocates.
versus
MAHAVIR SINGH & OTHERS ..... Defendants
Through Ex parte
% Date of Decision: 11th January, 2018
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J: (ORAL)
I.A.No.442/2018
1. Present application has been filed under Order XII Rule 6 read
with Section 151 CPC on behalf of the plaintiff.
2. On the last date of hearing i.e. 05th December, 2017, as none
was present for the defendants, they were proceeded ex parte.
Consequently, no notice is required in the present application and the
same is taken up for hearing.
3. Present suit has been filed for declaration and permanent
injunction. The prayer clause in the present suit is reproduced
hereinbelow:-
(a) a decree for declaration declaring the plaintiff as exclusive
owner of the portion shown in Red Colour in the Site Plan
attached, i.e., Rear portion of the property bearing No.A-3,
Naraina Vihar, New Delhi - 110028 by virtue of family
settlement between the plaintiff and Late Sh. Rai Singh the
predecessor-in-interest of the Defendants.
(b) a decree for permanent injunction restraining the
Defendants, their agents and servants from
stopping/interfering in the right of the plaintiff to construct
boundary wall on his portion of the property fully shown in
Red Dotted Line in the site plan in property No.A-3, Naraina
Vihar, New Delhi-110028.
(c) Cost of the suit may also be awarded in favour of the Plaintiff
and against the Defendants.
Any other Order as this Hon'ble Court may deem fit and
proper in view of the facts and circumstances of the case may
also be passed in favour of the Plaintiff and against the
Defendants."
4. It is pertinent to mention that the present suit has been filed on
the basis of the allegation that the suit property was a joint property of
the parties and the same was mutually partitioned by a Deed of Family
Settlement dated 23rd September 1980 between the plaintiff and his
deceased brother late Sh.Rai Singh.
5. The cause of action pleaded is that the defendants are not
allowing the plaintiff to enclose the portion of the suit property which
had fallen to his share as per the Family Settlement, as shown in red
colour in the site plan.
6. The defendants, who are the nephews and nieces of the plaintiff,
in paragraph 5 of their written statement have stated that the plaintiff
is deliberately trying to construct a wall in a portion which falls in the
share of the defendants. Para 5 of the written statement filed by
defendant nos.1, 2(b) and 3 is reproduced hereinbelow:-
"5. That the plaintiff has not come to the Hon'ble Court with
clean hands as matter of fact the present suit has been filed by
the plaintiff for the partition of a property wherein both the
plaintiff as well as defendants are the leasee of the DDA as the
DDA had allotted the suit property in the name of the plaintiff,
and father of the defendant no.1 and 3 and the grandfather of
the defendant no.2-B namely Late Sh. Rai Singh and were
allotted the House No.A-3, Naraina Vihar, New Delhi
measuring 800 sq. yards by the DDA vide File No.F5(100) 71
and accordingly the Lease deed was executed by the DDA in
the joint name of Sh. Ram Narayan and Rai Singh vide
Registration no.2,616 Addl. Book No.1 Vol. no.1205 pages 149
to 159 dated 31.03.1970 and the possession of the same was
handed over to the said Sh.Ram Narayan and Sh. Rai Singh by
the DDA and the property still stands in the name of the
allottee on lease basis and as per the lease deed the property
cannot be parted by meets and bounds without the prior
permission of the DDA."
7. On 05th December, 2017 when the matter had come up for
framing of issues, learned counsel for the plaintiff had stated that the
plaintiff was not claiming an inch of land beyond the portion falling in
his share.
8. The plaintiff along with the present application has enclosed an
affidavit in which it is stated as under:-
".........
2. That the deponent/plaintiff undertakes that the plaintiff, his
heirs, successors will not encroach even an inch of land
beyond the portion which had been allotted to the plaintiff in
the family settlement between the plaintiff and Shri Rai Singh
and that the wall will be raised by the plaintiff only on the
basis of the eastern line to the wall of the defendants and not
making any encroachment on the portion of the defendants
as per plan......"
9. The Supreme Court in Uttam Singh Duggal & Co. Ltd. Vs. United
Bank of India & Ors., (2000) 7 SCC 120 has held as under:-
"In the Objects and Reasons set out while amending the said
Rule, it is stated that "where a claim is admitted, the court
has jurisdiction to enter a judgment for the plaintiff and to
pass a decree on admitted claim. The object of the Rule is to
enable the party to obtain a speedy judgment at least to the
extent of the relief to which according to the admission of the
defendant, the plaintiff is entitled". We should not unduly
narrow down the meaning of this Rule as the object is to
enable a party to obtain speedy judgment. Where the other
party has made a plain admission entitling the former to
succeed, it should apply and also wherever there is a clear
admission of facts in the face of which it is impossible for the
party making such admission to succeed."
10. Keeping in view the aforesaid mandate of law as well as the fact
that the Family Settlement has not been denied by the defendants and
the plaintiff is not claiming an inch of land beyond what has fallen to
his share and also the fact that the defendants have been proceeded ex
parte, this Court decrees the present suit in accordance with prayer (a)
and (b) of the plaint. Registry is directed to prepare a decree sheet
accordingly.
The next date of hearing i.e. 08th February, 2018 stands
cancelled.
MANMOHAN, J
JANUARY 11, 2018
KA
