SH YOGESH KUMAR vs SH RAJESH KUMAR & ORS

2024-03-19 Information

$~14

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th March, 2024
+ CS(OS) 59/2016

SH YOGESH KUMAR ….. Plaintiff
Through: Counsel for plaintiff.

versus

SH RAJESH KUMAR & ORS ….. Defendants
Through: Mr. Sahil A.Garg, Mr. Honey Gola, Mr. Shourya Godara, Mr. Tushar & Mr. Dipesh Singhal, Advocates for D-4 & D-5.
CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T (oral)
CC 18/2019

1. This is an Order on the Maintainability of the Counter Claim.
2. The present Counter-Claim No. 18/2019 has been filed on behalf of the answering defendants/counter-claimant Nos. 4, 5 and 7 to 15 seeking Partition, Separate Possession, Permanent Injunction and Use and Occupation Charges/Damages and for Declaration that Mutation No. 3761 dated 05.12.1991, is null and void.
3. Admittedly, Shri Sher Singh, Predecessor-in-Interest of the parties to the present Suit, was the owner of the self-acquired Property i.e., House No. 820/16, Basai Road, Gurgaon, comprised Khewat No. 142/108, Khatoni No. 194, Killa No. 980/126 (0-0-16), 1/2 share in Khewat No. 143/109, Khatoni No. 195, Killa No. 979/679/495/125 (0-1-4) and Khewat No. 390/355, Khatoni No. 442, Killa No. 1487/981/1/126 (0-0-16), total area measuring 319 sq. yards as per Jamabandi for the year 1987-1988 situated within the Revenue Estate of Village Hidayatpur Chavni, District Gurgaon, Haryana.
4. Shri Sher Singh died intestate on 07.05.1994 and was survived by his three sons i.e., Shri Balbir Singh, Shri Nand Kishore and Shri Mahabir Singh. Shri Balbir Singh who is now represented by his legal heirs i.e., defendant No. 4/Shri Lokmani, defendant No. 5/Shri Narender, defendant No. 7/Shri Hari Om and defendant No. 15/Shri Tejbhan. Shri Nand Kishore, who is now represented by defendant No. 2/Shri Dinesh Kumar, plaintiff/Yogesh Kumar, defendant No. 3/Shri Sanjay Kumar, defendant No. 17/Smt. Sunita, defendant No. 18/Smt. Geeta and defendant No. 19/Smt. Sabarmati. Shri Mahabir Singh (defendant No. 16) who is now represented by defendant No. 16(a)/Smt. Sumitra Sharma, 16(b) Smt. Nirmala Sharma and 16(c)/Shri Kuldeep Sharma.
5. Shri Balbir Singh, the predecessor of counter-claimant/plaintiff, died on 19.10.2011 leaving behind the counter-claimant/plaintiff, answering defendants and his legal heirs who jointly inherited 1/3rd share of Late Shri Balbir Singh in the suit property.
6. Defendant No. 7 Hari Om has claimed that after the filing of the present Suit, he approached the Revenue Officials at Gurgaon for collecting necessary records in respect of the suit property and it then transpired that the plaintiff and the defendant Nos. 1 to 3 had deceitfully and fraudulently in collusion with the Revenue Officials, with criminal intent had got the entire property transferred by way of Mutation No. 3761 sanctioned on 05.12.1991 by showing themselves as sons of Late Shri Sher Singh, when in fact, they are the sons of deceased Shri Nand Kishore and grandsons of Late Shri Sher Singh. The mutation also mentions about some Court Order but no particulars are mentioned therein.
7. The counter-claimants have claimed that they are jointly entitled to 1/3rd share in the suit property and hence, have filed the present Counter Claim No. 18/2019 for Declaration declaring Mutation No. 3761 dated 05.12.1991 as null and void and to make a Declaration in favour of the Counter-Claimants, to partition the suit property in the three equal parts and also pass a Decree of Permanent Injunction, aside from granting Permanent Injunction and Damages.
8. The defendant Nos. 1 to 3 in their Written Statement have explained that the defendant Nos. 1 to 3 and the plaintiff are the real brothers having respective 66.66 sq. yards each in the Suit Property bearing No. MCD No. 210A, land measuring 0-8 biswas (equal to 400 sq. yards) comprised Khasra No. 483/5, 484 Min, situated in Village Shahpur Jat, Tehsil Hauz Khas, Mehrauli, New Delhi-110049 and it has remained the joint property as it has never been partitioned by metes and bounds.
9. The defendant Nos. 4, 5 and 7 to 15 in their Written Statement have taken a plea that Late Shri. Sher Singh during his lifetime, was the absolute owner of the suit property at Gurgaon and the issue of his ownership of the said property was adjudicated on merits in the Civil Suit No. 1089/1984 filed by the plaintiff and the defendant Nos. 1 to 3 which was allowed vide Judgment/Decree dated 30.11.1984 by the Court of Shri J.S. Jangara, HCS, Sub-Judge I Class, Gurgaon in their favour declaring them as the owner of the suit property situated at Gurgaon. Hence, the issue of ownership has been adjudicated finally on merit by the court of competent jurisdiction, which has not been challenged ever in any court.
10. The present Counter-Claim of the counter-claimant/(defendants in the main Suit) is barred by principle of res judicata under Section 11 of the Code of Civil Procedure 1908 (hereinafter referred to as CPC, 1908). Therefore, the present Counter-Claim is liable to be rejected under Order VII Rule 11 of CPC, 1908.
11. Further, defendant No. 4/Lokmani, defendant No. 5/Narender and defendant No. 7/Hari Om who are the Counter Claimants, had filed the Civil Suit No. 220/2018 in the Court of Shri Manish Kumar, Civil Judge (Senior Division), Gurugram, Haryana for Declaration, Cancellation, Partition and Separate Possession to challenge the Judgment/Decree dated 30.11.1984 passed by the Court of Shri J.S. Jangara, HCS, Sub-Judge I Class, Gurgaon and the Mutation No. 3761 dated 05.12.1991 sanctioned in favour of the defendant Nos. 1 to 4 therein, as null and void and ab initio. However, the said Suit was unconditionally withdrawn by the counter-claimants vide Order dated 17.03.2018 without seeking any liberty to file a fresh Suit.
12. Submissions heard on the maintainability of the Counter Claim from all the Parties to the Suit.
13. The present Counter-Claim is based on exactly the same cause of action as its earlier Civil Suit No. 220/2018 in the Court of Shri Manish Kumar, Civil Judge (Senior Division), Gurugram, Haryana. Though the counter-claimants have claimed that there was a fraud committed by the plaintiff in connivance with the defendant Nos. 1 to 3 but they have already sought the remedy of challenging the Judgment/Decree dated 30.11.1984 and have withdrawn the suit unconditionally.
14. Therefore, the Judgment/Decree dated 30.11.1984 has attained finality whereby declaring the plaintiff and the defendant Nos. 1 to 3 to be the owners of the suit property situated at Gurgaon. The Counter Claimants are barred by principle of Res judicata to now reagitate the title which has been finally determined. They cannot now seek any reliefs of Declaration of ownership or partition in respect of the suit property of which the plaintiff and defendant no.1 to 3 have been declared as the owners by a binding judgement dated 30.11.1984 of a Civil Court, which has attained finality.
15. Likewise, the counter-claimants cannot now challenge the Mutation No. 3761 dated 05.12.1991 once they have withdrawn their earlier Suit No. 220/2018. Moreover, the relief of challenging the Mutation has not only become barred by withdrawal of the earlier Suit No. 220/2018, but also is barred by limitation.
16. The present Counter-Claim filed by the counter-claimants is, therefore, not maintainable and is hereby rejected.
CS(OS) 59/2016 & I.A. 1966/2016, I.A. 1967/2016. I.A. 4682/2021, I.A. 4706/2021

17. List before the Joint Registrar for recording of evidence of the parties on 25.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE
MARCH 19, 2024
S.Sharma

CS(OS) 59/2016 Page 1 of 5