Delhi High Court
Naseema vs Munavvar Ali & Ors on 1 November, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 1st November, 2019
+ CS(OS) 190/2019
NASEEMA ..... Plaintiff
Through: Mr. Rukhsar Ahmad, Adv.
Versus
MUNAVVAR ALI & ORS. ..... Defendants
Through: Mr. Saurabh Jhamb, Adv. for D-1&6.
with defendant No.1 in person.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The plaintiff has instituted this suit for partition of two immovable
properties i.e. (1) property no. D-23, Main Road Brahampuri, Chauhan
Banger, Delhi 110053 admeasuring 334 sq. yrds. and (2) property no. C-
98/34, Khasra No. 189, Gali No.1, Main Road Brahampuri, Chauhan
Banger, Delhi - 110053 measuring 180 sq. yrds, claiming that the said two
properties belonged to the father and mother of the plaintiff and the five
defendants.
2. The suit came up first before this Court on 3 rd April, 2019 when
summons thereof were ordered to be issued and the plaintiff as well as the
defendants were restrained from alienating, encumbering or parting with
possession of the two properties and from demolishing, constructing or
carrying out works of any nature whatsoever over the said properties. The
said ex parte order was made absolute after the appearance of the
defendants, on 21st August, 2019.
CS(OS) 190/2019 Page 1 of 6
3. The plaintiff in the present suit seeks "half the share of brothers" in
the father's property and "equal shares to brothers" in the mother's property.
4. The defendants no. 1 and 6 filed a written statement inter alia
pleading that the present suit is not maintainable because an earlier suit filed
by the plaintiff, for partition of both the properties of which partition is
claimed in the present suit, claiming 1/7th share in each of the two properties,
is pending consideration before the Court of Shri Brijesh Kumar Garg,
Additional District Judge, District North-East, Karkardooma Courts, Delhi.
5. The defendants no. 2 to 5 also in their written statement took the same
plea.
6. The suit came up for framing of issues on 21st August, 2019, when
though the counsel for the defendants no. 1 and 6 contended that the suit was
barred by Section 10 of the CPC, but finding that none of the defendants had
placed before this Court the pleadings in the earlier suit, it was held that
without the pleadings in the earlier suit, the said aspect could not be
adjudicated and on the pleadings of the parties, the following issues were
framed in the suit:
(I) Whether late Sh. Abdul Ali, father of the plaintiff and the
defendants, was the owner of built up property bearing No. D-23, Main
Road Brahampuri, Chauhan Banger, Delhi admeasuring 334 sq. yds.?
OPP
(II) Whether defendant no.1 Munavvar Ali is the owner in his own
right of 74 sq. yds. in property no. D-23, Gali No.16, Chauhan Banger,
Brahampuri, Main Road, Delhi and the said property is not open to
partition? OPD-1
CS(OS) 190/2019 Page 2 of 6
(III) Whether the previously instituted suit for partition of the
properties for partition of which the present suit has been filed, is
pending and if so, the effect thereof? OPD-1 to 6
(IV) Whether the plaintiff, for reasons pleaded, has no share in the
estate of her father? OPD-1 to 6
(V) Whether the father of the parties has gifted any of the properties
owned by him to the defendant no.1 and if so, to what effect? OPD-1
(VI) What are the shares, if any of the respective parties in property
no. D-23, Gali No.16, Chauhan Banger, Brahampuri, Main Road,
Delhi, whether admeasuring 334 sq. yds. or admeasuring 260 sq. yds.
and in property No.C-98/34, Khasra No.189, Gali no.1, Main Road,
Brahampuri, Chauhan Banger, Delhi admeasuring 100 sq. yds.? OPPr
(VII) Relief.
and the parties relegated to evidence.
7. The defendant No.1 has now filed IA.No.15174/2019 under Section
151 of the CPC seeking stay of this suit and has alongwith the application
filed certified copies of the pleadings and orders in the earlier suit and which
disclose the plaintiff herein alongwith the defendants no. 2 to 5 herein to
have filed the suit pending in the District Court, for partition of both the
properties of which partition is sought in the present suit, claiming 1/7th
share therein.
8. The counsel for the plaintiff appears on advance notice.
9. None appears for the defendants no. 2 to 5.
10. For the reason of the facts stated hereinbelow, need to call for a reply
CS(OS) 190/2019 Page 3 of 6
from the plaintiff to the application does not arise.
11. The counsel for the plaintiff on inquiry, why the second suit for
partition was filed, states that the defendants no. 2 to 5 herein, without
authority of the plaintiff, have included the plaintiff herein as a plaintiff in
the earlier suit and the plaintiff herein nowhere joined in instituting the
previous suit and did not sign any pleading or vakalatnama therein. It is also
stated that the plaintiff, on learning of the previous suit, has appeared therein
and sought time to file requisite applications. It is further argued that the
District Court does not have pecuniary jurisdiction to entertain the suit
pending before it.
12. The question, whether the previously instituted suit, purporting to be
on behalf of the plaintiff, was indeed filed by the plaintiff or not and /or
whether the Court where the previously instituted suit is pending has
pecuniary jurisdiction to entertain the suit or not, have to be decided in the
previously instituted suit only and cannot be made subject matter of the
present suit. All that can be said is that as long as the suit previously
instituted by the plaintiff for the same reliefs as claimed in this suit is
pending consideration, the present suit is not maintainable and had the
factum of pendency of the previously instituted suit been known to the court
on the date when this suit came up for admission, the suit would not have
even been admitted.
13. Even if the Court where the previously instituted suit is pending does
not have pecuniary jurisdiction, on the plaintiff taking the said plea, the
plaint therein would be returned with permission to file before this court and
it is that suit which would be entertained.
CS(OS) 190/2019 Page 4 of 6
14. As far as the plea, of the plaintiff of having not joined in institution of
the previously instituted suit, is concerned, even if the plaintiff had not
joined as plaintiff therein, would have been impleaded as a defendant and
the position would have been the same i.e. that during the pendency of one
suit for partition, a second suit for partition of the same properties does not
lie.
15. In a suit for partition, each party enjoys the same status i.e. of plaintiff
as well as the defendant and it is immaterial whether impleaded as a plaintiff
or as a defendant. Reference, if any required, may be made in this regard to
Chandra Mohan Ramchandra Patil & Ors. Vs. Bapu Kayappa Patil
(Dead) & Ors., (2003) 3 SCC 552; Mahender Kumar Lamba Vs. Satender
Prakash Lamba, 2006 SCC OnLine Del 1124; and, Om Prakash Vs. Amit
Chaudhary & Ors., 2019 SCC OnLine Del 9311.
16. For this reason, even though the counsel for the plaintiff, after being
unsuccessful in his arguments, now seeks time to file reply to the
application, need to accede to the said request is not felt. The remedies if
any of the plaintiff are in the previously instituted suit. This court can only
grant liberty to the plaintiff to, in the event of previously instituted suit
coming to an end without adjudication, for any reason whatsoever, and in
which case the law permits the plaintiff to file fresh suit, to so file a fresh
suit for partition.
17. The application thus succeeds and is disposed of.
18. In view of the aforesaid facts, there is no need to stay the proceedings
in the present suit inasmuch as the relief claimed in this suit is identical to
that claimed in the previously instituted suit purported to be on behalf of
CS(OS) 190/2019 Page 5 of 6
plaintiff and adjudication of previously instituted suit would decide not
merely some of the issues but all issues in the present suit, making the
present suit not maintainable. This suit, on the date of filing thereof, was not
maintainable.
19. The suit is dismissed with liberty aforesaid.
20. No order as to costs.
21. The date fixed of 29th November, 2019 before the Joint Registrar is
cancelled.
RAJIV SAHAI ENDLAW, J.
NOVEMBER 01, 2019
M
