Naresh Verma vs Ashok Chander Kalra & Ors
2018 Latest Caselaw 2700 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                       Reserved on: 11th April, 2018
                                        Pronounced on: 02nd May, 2018
+      CS(OS) 1885/2014
       NARESH VERMA                                        ..... Plaintiff
                   Through:            Mr.Ashim Shridhar, Advocate.

                            versus

    ASHOK CHANDER KALRA & ORS              ..... Defendants
                  Through: Mr.Rajeev Verma, Mr.Kartik
                           K.Sood, Advocate for defendant
                           no.1 with defendant no.1 in
                           person.
CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

IA No.18728/2015

1. The application is moved under Order 12 Rule 6 CPC by the plaintiff seeking a preliminary decree of partition in view of the admissions of the defendant. It is alleged late Sh.Khushal Chand Kalra during his lifetime had purchased property bearing Plot No.1, Road No.48, Punjabi Bagh, New Delhi-110026 vide a sale deed dated 30.11.1964. He passed away intestate on 19.06.1982 and hence the property devolved upon all his legal heirs; his wife having pre-deceased him.

2. It is alleged by the learned counsel for the plaintiff that few years after the death of the father of the parties a dispute arose qua use and

occupation of rooms of the suit property amongst defendant nos. 1 to 3, hence defendants no. 2 and 3 filed Suit No.321/1986 in the Court of Sub Judge, Delhi.

3. Yet another suit viz., CS No. 101/10/1989 was also filed before the Civil Judge Delhi and the plaintiff relies upon admissions of defendant No.1 in these proceedings.

4. The defendant No.1 though in his written statement filed in the present suit before this court alleges of an oral settlement of April, 1990 whereby the subject property fell to his share and whereas two shops, gold and other assets went to the share of other legal heirs but admittedly the defendant no.1 had filed a written statement in CS 101/10/1989 wherein he failed to disclose of any oral settlement. Para 5 of such written statement is as under:

"That para No.5 of the plaint is admitted upto the extent that Shri Kushal Chand KaIra left behind him three sons and four daughters as alleged. It is. however, submitted that since the father of defendant expired intestate (without any Will) so the daughters have also become the co-owners with the plaintiff and defendant in all the properties, movable and immovable left by late Shri Kushal Chand Kalra and as such the suit is bad for non-joinder of necessary parties and in the absence of the daughters, no orders could be passed regarding any issue."

5. It is argued the said suit No.101/10/1989 was disposed of in the year 2014 but the written statement was never amended by defendant no.1 till its disposal and had there being any oral settlement in April 1990 the defendant No.1 ought to have disclosed the same by amending his written statement.

6. The said suit was dismissed as infructuous on dated 18.11.2014.

7. The learned counsel for the plaintiff has also filed a certified copy of the reply dated 31.08.2004 of defendant no.l to application under Order 39 Rule 1 and 2 CPC. Paras 7 and 9 are relevant :

"7. In reply to para 7 of the application it is respectfully submitted that earlier suit no.321/86 titled as Lovlesh Chander Kalra Pradeep Chander Kalra vs. Ashok Chander Kalra for permanent injunction decided by Ld.Sub-Judge IInd class Sh. Nand Kishore as then he was on 28.5.86 who was pleased to dismiss the interim application and usit on preliminary issues:

1. Whether the suit in present form is maintainable?OPP.

2. Relief.

9. That Ld.Sub-Judge as then was pleased to hold that the suit property was undivided and every co-owner has a right to use every inch of the property and hold that plaintiff has no right to restrain the defendant from disturbing possession of other co-owner as the property has not been divided and they have common rights and suit is not maintain ability and same was dismissed. That the above said finding became final. Since the application u/o 7 Rule 11 CPC has already been argued and case was fixed for order, first and second application being false, frivolous, abuse of process of law which are liable to be rejected with this short ground.

9. Para 9 of the application is matter of record. The suit is barred u/s 11 CPC. It is well settled law that if the earlier suit had been dismissed, therefore, neither the present suit nor any contempt application is maintainable. It is, respectfully submitted that it is the plaintiffs who have been harassing the respondent unnecessarily by filing false, & frivolous suits & applications which are to be dismissed with heavy costs. Law is very clear that owner of property (individual co owner of property has every right to enjoy his property as desired by him. By the judgment and decree of earlier suit which became final, suit and application deserve dismissal."

8. Thus it was argued by the learned counsel for the plaintiff that since there are admissions in the pleadings of defendant no.1 a decree under Order 12 Rule 6 CPC be passed.

9. However the learned counsel for the respondent says that the admissions in the pleadings are not to be treated similar to the admissions made in the documents and the admissions made by the party to the lis is

admissible against him proprio vigore as held in Gautam Sarup vs. Leela Jetly and Others (2008) 7 SCC 85. Besides it is the contention of the defendant that despite the subject premises, the father of the parties has also left two shops bearing no. 23 and 69, Rajindra Market, Tis Hazari, Delhi; house no. IV/170 Tezab Mill, Bhola Nath Nagar, Shahdara, Delhi; stock of automobile parts lying in aforesaid shops; cash, in flow, kept and maintained in aforesaid shops; 200 tolas of gold in the shape of jewellery; 500 pieces of silver coins of George period; 4 diamond rings; 3 kg. of silver jewellery and ornaments; cash more than 3 lakhs etc which also needs to be partitioned.

10. I may say earlier also an application under Order 12 Rule 6 CPC was filed by the plaintiff but was withdrawn on 05.05.2015 without any liberty sought to file similar application in future, hence the present application, even otherwise, is not maintainable on this score. Further the written statement in suit No.101/10/1989 was filed on 21.02.01990 whereas the alleged oral settlement is of April 1990 hence the defendant no.1 could not have noted this fact in his written statement. The fact such written statement was never amended till the suit was dismissed on 18.11.2014 may be taken as an inadvertence or negligence on part of defendant No.1 but cannot be read as an admission against him.

11. Further in his reply dated 31.08.2004 the defendant no.1 in paras 7 and 8 has simply noted the decision of the learned Sub-Judge viz, the co- owner has liberty to enjoy every inch of the property. The reference to an order of the learned Sub-Judge in his reply would not tantamount to admission per-se so as to entitle the plaintiff, a decree at this stage. Even

otherwise, the long course of dealing between the parties viz the alleged enjoyment of peaceful possession of the property by defendant no.1 without being challenged by any other legal heirs for a period of more than 20 years, may entitle defendant no.1 to raise a presumption of alleged verbal settlement/family arrangement etc. and hence at this stage the allegations and counter allegations on merit cannot be looked into as need evidence on these aspects. The application is therefore dismissed. No order as to costs.

CS(OS) 1885/2014, IA No. 23697/2015

12. List on 28.08.2018.

YOGESH KHANNA, J MAY 02, 2018 DU/CD