Swatantra Suneja vs Anil Kumar & Ors
2019 Latest Caselaw 1729 Del

$~10.
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+     CS(OS) 352/2016
      SWATANTRA SUNEJA                                       ..... Plaintiff
                      Through: Mr. Prasanta Varma and Ms. Shalu
                                  Goswami, Advs.
                               versus
      ANIL KUMAR & ORS                                  ..... Defendants
                      Through: Mr. Ajay Arora, Adv. for D-1.
                                  Mr. Deepak Sharma, Adv. for D-2.
                                  Mr. Kapil Dutta, Adv. for D-3.
      CORAM:
      HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                      ORDER

% 28.03.2019 IA No.1050/2018 (of the defendant no.2 under Order VII Rule 11 of the CPC).

1. The defendant no.2, in this suit for partition of three immovable properties namely (a) Property bearing Khasra No.531, Mundka Delhi -110 041 measuring 2000 sq. yds.; (b) Property bearing No.134 (Khasra No.50/25), Timber Market Swarn Park, Mundka, Delhi -110 041; and, (c) Factory No.B-59, Phase-2 Mangolpuri Industrial Area Delhi measuring 200 sq. mtrs. consisting of Ground, First and Second floors seeks rejection of the plaint on three grounds i.e. (i) limitation; (ii) the common predecessor having died in the year 1995 i.e. prior to the amendment w.e.f. September, 2005 of the Hindu Succession Act, 1956; and, (iii) the jurisdiction of this Court being barred by the Delhi Land Reforms Act, 1954.

2. Qua the ground of limitation, the counsel for the defendant no.2/applicant on enquiry states that Article 58 of the Schedule to the Limitation Act, 1963 applies. However upon being asked as to how the same, prescribing limitation for a suit for declaration, would apply to a suit

for partition, the counsel instead of replying refers to Sangita Rehan Vs. Surinder Kishan Grover 218 (2015) DLT 305. A Single Judge of this Court therein was concerned with a suit for partition filed after 36 years after the demise of the common predecessor and after the property, of which partition was sought was sold. Relief thus, also of setting aside of the Sale Deed was sought. It was in the said context that Article 58 of the Schedule to the Limitation Act was applied and the plaint rejected under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). However that is not the position over here. This suit, though filed in the year 2016 by a daughter against who died in the year 1995, but her brothers, mother and sister for partition of properties left by the father as per the averments contained in the plaint, the properties have remained joint and the plaintiff claims to have in August, 2014 learnt of the brothers having got executed a Relinquishment Deed from the mother in July, 1999 with respect to her share in the property.

3. There is no limitation for a suit for partition inasmuch as there is no compulsion on the heirs of a common predecessor to seek partition, unless a case for ouster is made out. Reference in this regard may be made to Vidya Devi Vs. Prem Prakash (1995) 4 SCC 496 and Anita Kumari Gupta Vs. Ved Khushan 2014 SCC OnLine Del 2895 (DB). It is not the case of the plaintiff that the defendants, for a period of over 12 years prior to the institution of the suit, have been claiming adversely to the plaintiff and only in which situation could it have been said that the suit as per averments in the plaint itself is barred by time. Thus, no ground for rejection of the plaint on the ground of limitation is made out.

4. As far as the second ground urged is concerned, the amendment of the year 2005 to the Hindu Succession Act only entitles to daughters to a share

in coparcenary property. The suit filed by the plaintiff as per averments in the plaint is not for partition of any coparcenary property but claiming share in the properties as a Class-I heir of the deceased. The said ground also has been invoked without any basis.

5. As far as the last ground, of jurisdiction of this Court being barred by the Delhi Land Reforms Act is concerned, the counsel for the defendant no.2/applicant admits that the same would not bar the suit insofar as for partition of the factory premises. With respect to the other two properties, the counsel for the defendant no.2/applicant on enquiry whether agricultural activity is being carried thereon, states that the other two properties are open pieces of land. It has been held in Nilima Gupta Vs. Yogesh Saroha (2009) 156 DLT 129, Anand J. Datwani Vs. Geeti Bhagat Datwani (2013) SCC OnLine Del 1706 and Jeet Singh Vs. Dashrath Yadav (2017) SCC OnLine Del 7718 that if the agricultural land has been converted for other purposes, it cannot be subject matter of partition before the Revenue Authorities. When no agricultural activity, according to the defendant no.2/applicant also is being carried on on the other two properties, the question of the suit for partition with respect thereto being not barred by Delhi Land Reforms Act does not arise. In fact I have enquired whether the area of the other two properties has been urbanised and the counsel for the defendant no.2/applicant answers in the affirmative.

6. The counsel for the defendant no.2/applicant also agrees that once the area has been urbanised the bar of Delhi Land Reforms Act would not come.

7. The counsel for the defendant no.2/applicant now urges that no court fees has been paid.

8. A perusal of the plaint does not show the plaintiff to have admitted

any ouster or exclusion from the properties for it to be said that the plaintiff is required to pay ad valorem court fees. Reference in this regard can be made to judgment dated 2nd February, 2012 in FAO(OS) No.183/2006 titled Sonu Jain Vs. Rohit Garg.

9. There is thus no merit in the application.

10. Dismissed.

CS(OS) 352/2016.

11. The suit is ripe for framing of issues.

12. On the pleadings of the parties, the following issues are framed:

(i) Whether the area of property bearing Khasra No.531, Mundka, Delhi acquired by late Sh. Chaman Lal Arora was 2000 sq. yds. as pleaded by the plaintiff or 500 sq. yds. as pleaded by the defendants? OPPr

(ii) Whether the area of property No.134, Timber Market Swarn Park, Mundka, Delhi acquired by Sh. Chaman Lal Arora was 2000 sq. yds. as claimed by the plaintiff or 500 sq. yds. as claimed by the defendants? OPPr

(iii) Whether there was any Family Settlement between the parties with respect to property bearing Khasra No.531, Mundka, Delhi and factory No.B-59, Phase-II, Mangolpuri Industrial Area, Delhi and under the said Family Settlement, the said properties vested exclusively in the defendant no.1 and the parties have acted on the basis of the said Family Settlement and if so, to what effect? OPD

(iv) Whether the plaintiff and the other defendants joined in mutation of factory No.B-59, Phase-II, Mangolpuri Industrial

Area, Delhi in the name of the defendant no.1 and if so, to what effect? OPD

(v) Whether the defendant no.1 has already sold the factory No.B-

59, Phase-II, Mangolpuri Industrial Area, Delhi and if so to what effect? OPD

(vi) Whether the claim in suit is barred by time? OPD

(vii) Whether the plaintiff and the defendant no.4 executed affidavits by way of no objection for defendant no.1 to sell the property bearing Khasra No.531, Mundka, Delhi and if so, to what effect? OPD

(viii) Whether the property No.134, Timber Market Swarn Park, Mundka, Delhi was acquired by Sh. Chaman Lal Arora as Karta of his HUF and the suit for partition thereof is barred by law? OPD

(ix) Whether the document dated 11th July, 1994 is the validly executed last Will of deceased Chaman Lal Arora and if so, to what effect? OPD

(x) Whether the appropriate court fees has been paid on the reliefs claimed in the plaint and if so, to what effect? OPP

(xi) What are the respective shares of each of the parties in each of the three properties? OPP

(xii) Whether the plaintiff has any locus to seek the relief of declaration with respect to Relinquishment Deed dated 21 st July, 1999? OPP

(xiii) Relief.

13. No other issue arises or is pressed.

14. The parties to file their list of witnesses within 15 days.

15. The plaintiff to file affidavits by way of examination-in-chief on or before 31st July, 2019.

16. Option given of having evidence recorded on commission has been declined.

17. The witnesses of whichsoever defendant, be cross-examined first by the counsel for the remaining defendants and thereafter by the counsel for the plaintiff.

18. List before the Joint Registrar on 15th May, 2019 for scheduling dates of trial.

RAJIV SAHAI ENDLAW, J MARCH 28, 2019 'pp/gsr'..

(corrected & released on 11th May, 2019)

Note: Since there has been delay in correcting and releasing this order, the time of 15 days for filing list of witnesses be counted from 13th May, 2019.