SMT. RUMA KAPOOR vs SHRI GULSHAN KHULLAR & OTHERS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 07thFebruary, 2024
Pronounced on: 14th February, 2024
+ CS(OS) 1120/2008 & I.A. 19025/2015
SMT. RUMA KAPOOR ….. Plaintiff
Through: Mr. Nitin Soni, Advocate.
versus
SHRI GULSHAN KHULLAR & OTHERS ….. Defendants
Through: Mr. S.C. Singhal, Advocate for D-1 and 9.
Mr. Pravin Sharma, Ms. Kanika Sharma, Mr. Prannav Sharma & Ms. Kavita Sharma, Advocates for D-3.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA
% J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 13710/2023 (u/O XXXIX Rule 2A and Section 151 of CPC, 1908 by D-1 for attachment of property of plaintiff for disobedience of Order dated 30.05.2008)
I.A. 21424/2023 (u/O XXXIX Rule 4 & Section 151 of CPC, 1908 by plaintiff for modification of Order dated 30.05.2008 in light of subsequent Order dated 13.02.2017)
1. Briefly stated, the plaintiff has filed the Suit for Partition of Property bearing No. G-88, Preet Vihar, Delhi claiming share to the extent of 7/10 in the same, along with 1/5th share in Shop No. 1831/7, Naraina Bazar, Bhagirath Place, Chandni Chowk, Delhi and in the movable assets left behind by Late Shri M.M. Khullar, father of the plaintiff and the defendant No. 1.
2. Along with the Plaint, the plaintiff had moved an Application bearing No. 7033/2008 under Order XXXIX Rules 1 and 2 and Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as CPC, 1908) for restraining the defendants from creating third-party interest in the joint properties which were the subject matter of the Suit, till the disposal of the Suit and to maintain status quo regarding possession and title viz-a-viz., the aforesaid two suit properties.
3. The defendant Nos. 1 and 2 filed their Written Statement denying the averment that Late Shri M.M. Khullar had died intestate, but claimed that he had left the registered Will dated 19.06.2004 by virtue of which the properties were bequeathed to the defendant No. 1.
4. It was further claimed that after the demise of Late Shri M.M. Khullar, the properties were orally partitioned between the plaintiff and the defendant No. 1. The first and the second floors fell to the share of the plaintiff while the entire basement, ground floor and annexe portion fell to the share of defendant No. 1. The roof remained common to be shared by all. The status quo order was passed on 30.05.2008 and was made absolute vide Order dated 31.07.2009.
5. The defendant No. 1 in his Application under Order XXXIX Rule 2A of CPC, 1908 has reiterated the factual background of the suit and asserted that the plaintiff has specifically pleaded that in the property mentioned, the plaintiff is occupying the first floor of the property and the second floor is with her tenant and the defendant no. l along with defendant no.2 (who is mother of the parties) are occupying ground floor and basement of the property.
6. It is asserted that the plaintiff had filed the Application bearing No. I.A. 246/2010 seeking permission to let out the garage on the ground floor in the Annexe block for her to get an independent source of income for the purpose of her support. It is claimed that the defendant No. 1 refuted her assertions in his Reply and claimed that under the garb of such permission, she was trying to grab the said portion of the suit property. The defendant No. 1 in the Reply to the application as well as in his Written Statement, denied that the plaintiff was in possession of the garage. The application was disposed of vide Order dated 22.09.2010 by this Court by observing that the plaintiff wanted to withdraw the application as there were no averments in the Plaint to the effect that the garage on the ground floor was in constructive possession of the plaintiff through a tenant inducted by her. The application was accordingly dismissed as withdrawn.
7. The defendant No. 1 has thus, asserted that the garage and the above annexe has been in continuous possession of defendant No. 1 since beginning and even the partition document executed between the plaintiff and Late Shri M.M. Khullar confirms this fact. By virtue of said document, the plaintiff is the owner of first and second floors along with common staircase from ground floor with proportionate share in the land underneath, while the share of Late Shri M.M. Khullar was defined as entire basement, ground floor and garage on the ground floor and one room set on the first floor and second floors along with the construction over the garage of the suit properties.
8. The defendant No. 1 has asserted that there is ample evidence to prima facie establish that the possession of the garage was with the defendant No. 1. Though recently, on or about 19.06.2023 the plaintiff along with her son had illegally and unlawfully trespassed in the garage and was showing the same to the third party for the purpose of letting.
9. It is asserted that the plaintiff the status quo order had breached the order by illegally entering into the garage. The defendant No. 1, therefore, made a prayer that the property of the plaintiff be attached for disobedience of the Order dated 30.05.2008.
10. The plaintiff in her detailed Reply to the application had submitted that the Suit Property No. G-88, Preet Vihar, Delhi, was owned equally by the plaintiff and her father, Late Shri M.M. Khullar. The present suit relates to the share of her father, Late Shri M.M. Khullar amounting to 50%, which devolved in equal 50% share upon the plaintiff and the defendant No. 1 on the demise of Late Shri M.M. Khullar.
11. The annexe/garage portion on the ground floor was always in the possession of the plaintiff and was being used by her husband and son. The electricity connection in the said portion is in the name of her husband.
12. Moreover, the site plan that was filed along with the Plaint also depicted the garage on the ground floor to be in the possession of the plaintiff. The plaintiff has explained that though the garage was shown in the possession of plaintiff in the site plan, but inadvertently, this fact was not expressly mentioned in the Plaint about which she came to know later.
13. The plaintiff has asserted that it was revealed subsequently that the ground floor and basement of Property No. G-88, Preet Vihar, Delhi had been sold by defendant No. 1 to his wife (who has been added as defendant No. 9), much prior to the institution of the Suit on 24.03.2009.
14. It has also been found by her that the shops situated in Old Delhi had also been sold by defendant No. 1 prior to the institution of the present Suit.
15. In the light of the newly discovered facts, the plaintiff sought amendment of the Plaint in regard to her possession over the garage/annexe in question which has been allowed vide Order dated 13.02.2017.
16. The plaintiff has asserted that the garage has always been in her possession and the defendant No. 1 is merely trying to take advantage of the inadvertent error on the part of the previous counsel of the plaintiff.
17. It is asserted that the plaintiff is an old lady of 83 years of age and has no independent source of income. The plaintiffs son is not working and she along with her daughter-in-law had decided to utilise portion of garage to generate some income to support them. The plaintiff, instead of giving portion of garage on rent, has taken a franchise and the possession of the garage continues to be with her.
18. It was, therefore, asserted that the application is without any merit and is liable to be rejected.
19. The defendant No. 1 in his Rejoinder has reiterated his assertions made in the application and asserted that the plaintiff was not in physical possession on the garage portion on the day of filing the suit and at the time of amendment of the plaint the plaintiff has falsely introduced the said plea which was denied by the defendant no. 1.
20. The plaintiff vide her Application under Order XXXIX Rule 4 of CPC, 1908 has sought that the Order dated 30.05.2008 be modified to the incorporate the status of property as reflected in the amended Plaint which was allowed vide Order dated 13.02.2017.
21. The defendant No.1 and 9 vide their Reply to the application of the plaintiff under Order XXXIX Rule 4 of CPC, 1908 has asserted that the application is not maintainable as the variation can only be sought based on change in circumstances which has not been pleaded.
22. It is further asserted that the plaintiff is in breach of Order dated 30.05.2008 and that the present application is liable to be dismissed.
23. Submissions heard.
24. The Suit for Partition of property, including G-88, Preet Vihar, Delhi, had been filed by the plaintiff against the defendant No. 1/Gulshan Kumar, her brother. The status quo Order in respect of Possession and Title of the suit property was made on 30.05.2008.
25. The question which arises is whether the plaintiff was not in possession of the garage at the time of institution of the Suit and grant of status quo Order dated 30.05.2008 and whether she has taken the possession of the garage in violation of the status quo Order dated 30.05.2008.
26. The first aspect which is noticeable is that in the Plaint, while defining that she was in possession of first and second floor along with roof and the defendant No. 1 was in possession of the entire basement ground floor and one room set on first and second floor over the garage, the plaintiff did not inadvertently mention that she was also in possession of the garage on the ground floor. However, the site plan which has been annexed with the Plaint, the correctness of which was not questioned by the defendants, clearly reflects that the garage on the ground floor had been shown as in possession of the plaintiff.
27. Pertinently, in the Replication that was filed on 28.04.2009 to the Written Statement of the defendants, it had been specifically in Paragraph-1 of the Reply to Preliminary Submissions and the Reply on merits, that aside from the first and second floor, the plaintiff is also in possession of the garage on the ground floor which is being used as a shop by her.
28. The plaintiff had, therefore, consistently taken a plea of being in possession of the garage on the ground floor.
29. Admittedly, the plaintiff moved the Application No. I.A. 246/2010 seeking permission to rent out the garage. Therein also, the plaintiff stated that the tenant vacated the garage and she may be permitted to re-let it. Her assertion in the said application was that she was in constructive possession of the shop through the tenant.
30. Pertinently, the plaintiff has also been permitted to amend her Plaint on 13.02.2017, and hence, even if there was no specific mention of the garage being in possession of the plaintiff in the original Plaint, but this in any way cannot be construed to mean that she did not possess the garage, in the light of the site plan and the Replication filed to the Written Statement.
31. It is evident that the plaintiff has always been in possession of the garage portion and has not violated the status quo Order dated 30.05.2008 by opening her franchise in the said portion. Accordingly, there is no disobedience of the status quo Order dated 30.05.2008 as has been claimed by the defendant No. 1.
32. For the same reason, there is no requirement for modification of the status quo Order dated 30.05.2008 to include the garage portion as the status Quo would also be applicable to the garage portion on the ground floor as mentioned in the amended plaint as well.
33. In light of the above discussion, the Application under Order XXXIX Rule 2A and Section 151 of CPC, 1908 filed on behalf of the defendant No. 1 and the Application under Order XXXIX Rule 4 and Section 151 of CPC, 1908 filed on behalf of the plaintiff are hereby dismissed, as being without merit.
CS(OS) No.1120/2008
34. The hard copy of the original Plaint has been handed over on 07.02.2024 in the Court by the plaintiff. The Registry is directed to take the same on record.
I.A. 19025/2015
35. Be listed before the learned Joint Registrar on 04.03.2024.
(NEENA BANSAL KRISHNA)
JUDGE
FEBRUARY 14, 2024
S.Sharma
CS(OS) 1120/2008 Page 1 of 8