Brigadier Shyam Prasad vs Arun Prasada & Ors
2018 Latest Caselaw 6181 Del

                                                                 SINDHU KRISHNAKUMAR

                                                                 23.10.2018 19:26

$~13
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                              Date of Decision: 10th October, 2018
+                 CS (OS) 3452/2014
     BRIGADIER SHYAM PRASAD                             ..... Plaintiff
                  Through: Mr. Manish Vashisht, Mr. Sameer
                             Vashisht, Mr. Shivank Diddi, Mr.
                             Kapil Gupta & Mr. Manashway Jha,
                             Advocates (M-9818280821).
                  versus
     ARUN PRASADA & ORS                          ..... Defendants
                  Through: Mr. Bhaskar Tiwari, Advocate for D-
                             1 (M-8882817042).
                             Mr. Chitvan Singhal, Advocate for D-
                             2 (M-9920814714).
                             Mr. Rikky Gupta, Advocate for D-3
                             & 6 (M-9811062591).
     CORAM:
     JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

I.A. 6594/2015 (U/O XXXII Rule 3)

1. As Defendant No.3 has since passed away, the application stands infructuous.

I.A. 22359/2014 (for directions)

2. I.A. is not pressed at this stage. I.A. is disposed of. I.A. 21491/2015 (U/O VI Rule 17 CPC)

3. This is an application seeking amendment of the plaint to add the prayers relating to user and occupation charges and mesne profits.

4. The brief background is that the Plaintiff and Defendant No.1 are brothers. The house No.12, Anand Lok, New Delhi was admittedly owned by the parents. The plot is ad measuring 793.3 sq. yds. However, the present suit relates to 452.5 sq. yds. of the said plot in respect of the remaining area.

There is an earlier suit pending between the parties being C.S. (O.S.) No. 1113/2008. The case of Defendant No.1 in the said suit and in the present suit is that the Plaintiff has no title in the suit property and is not entitled to any share in the suit property as he relies upon a Will and a codicil executed by the mother. The Plaintiff claimed constructive possession at the time when the suit was filed, in para 18. Defendant No. 1, however, did not admit that the Plaintiff is in constructive possession, and challenged the title of the Plaintiff itself inasmuch as para 2 of the written statement clearly states that the Will dated 9th November, 1992 and the codicil dated 24th February, 2000 completely took away any rights of the Plaintiff in the suit property. Thus, the competing stands are that while the Plaintiff states that he is in constructive possession, the Defendant states that Plaintiff has no share in the property. The earlier suit and testamentary case are pending and are at an advanced stage. The amendment being sought for occupation charges and mesne profits is in view of the fact that Defendant No.1 is in exclusive possession and has also rented out the property. The Plaintiff seeks to add the following paras to the plaint:

"The defendant no.1 is liable to pay the occupation charges to the remaining co-owners of the suit property as he is in an unlawful occupation of the property against the wishes of the remaining co- owners. That the suit property is situated in the posh area of South Delhi and the rent is quite high in that area. The property is on the main road and is situated just opposite to Niti Bagh. The property is also in close proximity of commercial area of South Extension. The property is strategically located and is in very close proximity of the areas like Greater Kailash, Asiad village, Hauz Khas to name a few. It is a matter of common knowledge that the rents are very

high in that area and the property of similar nature can fetch a monthly rent of approximately Rs. 5-6 Lacs. As defendant is occupying the property to the exclusion of remaining co-owners by disputing their title, he is liable to pay damages and mesne profits" after the demise of Mrs Dayavati from the month of October 2013 at least at the rate of Rs 200000/-( Rupees Two lakhs per month.)"

"That for the purpose of damages and mesne profits of the suit is valued at Rs 5000000/- (Rupees Fifty Lakh) on which a court fee of 51200/- (Rupees Fifty One Thousand Two Hundred) has been affixed."

Further, the Plaintiff seeks to add prayer CC, which is as follows

"CC - "Pass a decree for damages and mesne profits to the tune of Rs 5000000/- (Rupees Fifty Lakhs Only) with effect from October 2013 till the month of October 2015 and decree for future mesne profits be also passed which have accrued during the pendency of the suit after an enquiry".

5. Ld. Counsel for Defendant No. 1 submits that the Plaintiff's prayers are self-destructive inasmuch as once the Plaintiff pleads constructive possession of the suit property, he is not entitled to mesne profits as per the Division Bench judgment of this Court in Bhagwan Kishan Gupta v. Rani Gupta and Ors. RFA (OS) 35/2011 (Decided on 15th November, 2011). Ld. Counsel also relies on Manmohan Batra v. Bharat Bhushan Batra and Ors. RFA No. 865/2003 (Decided on 8th May, 2012) to argue that if the Plaintiff does not claim to be in possession of the property, partition itself cannot be sought and only possession can be sought by the Plaintiff. Then, the Plaintiff would have to file a suit for possession. He submits that the

nature of the suit is being changed inasmuch as the suit for partition is now being converted into a suit for possession.

6. The prayer in the original plaint reads as under:

"a. For partition of the 1/6th undivided share from a total undivided area of 452.5 sq. yds in plot No. 12, Anand Lok, New Delhi by metes and bounds. Incase the suit property is not capable of being partitioned by metes and bounds then the same be sold by way of auction and the sale proceeds be disturbed to the Plaintiff as per his share.

b. For declaration that the alleged Will dated 09.11.1992 and the alleged Codicil dated 24.02.2000 are null and void and shall not be binding on the Plaintiff.

c. Pass a decree for rendition of accounts against the Defendant no.1 in respect of shares, debentures, FDR's and Bank Accounts possessed by Late Smt. Dayavati and the Plaintiff be given his 1/6th share from the amounts so ascertained after the inquiry for rendition of accounts.

d. Award costs of the suit to the Plaintiff and against the Defendant No.1; and e. Pass such other order that this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."

7. A perusal of the above prayers shows that the Plaintiff has sought partition for 1/6th undivided share by metes and bounds. This in effect means that the Plaintiff is seeking physical possession of 1/6th share in the suit property. The mere absence of the word 'possession' in the relief does not mean that the relief of possession has not been sought. This is the settled possession in law as has been held by Full Bench of this Court in Indu Singh & Anr. v. Prem Chaudhary & Ors 2018 (170) DRJ 1[FB] is set out

herein below:

"3(i) What is 'partition' is not defined either in the Partition Act or in the Stamp Act or in the Code of Civil Procedure. Normal dictionary meaning of the word 'partition' is to divide i.e. bring about the division of the property/properties. The expression 'partition' therefore is understood in common parlance as being in the nature of physical division of the property/properties, and which legally is called as partition by metes and bounds."

8. Thus, the Defendant No. 1's stand that the nature of the suit is being changed is incorrect. The judgment relied upon by Defendant No. 1 in Man Mohan Batra v. Bharat Bhushan Batra and Ors. (supra) was rendered in the unique facts of the said case, where the relief for possession was held to be barred by limitation. The question as to whether mesne profits can be claimed or not, would be a question to be considered on merits and not at the stage of amendment of the plaint. The Defendant No. 1 is permitted to take a plea that the Plaintiff, having pleaded to be in constructive possession and seeking partition, cannot claim mesne profits. At the stage of considering the amendment application, the Court cannot rule on the question as to whether the relief is maintainable. For the said purpose, the Defendants' rights to file its defense and raise objections therein are left open.

9. The suit is at initial stage. The legal representatives of the deceased Defendant No.3 have been impleaded on 26th April, 2018. The issues are yet to be framed in the matter. Objections of the Defendants are left open. The amendment is allowed. I.A. is disposed of.

CS(OS) 3452/2014

10. The amendment is accordingly allowed subject to payment of

Rs.10,000/- as costs. Let the amended plaint be filed within two weeks. Let the amended written statement be filed within four weeks thereafter.

11. List on 12th December, 2018.

PRATHIBA M. SINGH JUDGE OCTOBER 10, 2018 Rahul