SHRI NIRANJAN KUMAR BANSAL vs SHRI LAJPAT RAI JAGGA & ORS.

2024-03-20 Information

* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th January, 2024
% Pronounced on: 20th March, 2024

+ CS(OS) 557/2019

SHRI NIRANJAN KUMAR BANSAL ….. Plaintiff
Through: Mr. Ajay Gupta, Advocate.

versus

SHRI LAJPAT RAI JAGGA & ORS. ….. Defendants
Through: Mr. Kirti Uppal, Sr. Advocate with Ms. Shaini Bhardwaj, Mr. Aditya Sharma & Mr. Prateek Solanki, Advocates for D-1 to D-3.
Mr. Lovekesh Aggarwal, Advocate for D-5 and 6.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 1677/2023 (u/O VII Rule 11 r/w Section 151 of CPC, 1908)

1. By way of present application, the applicants/defendant Nos. 1 to 3 seek Rejection of the Plaint.
2. It is submitted in the application that the plaintiff has filed the present Suit for Partition with Consequential Relief of Permanent Injunction with respect to his alleged share of 26:11:25 sq. yds., in the Property bearing Municipal No. 772, situated at Gali Talayya, Katra Neel, Chandi Chowk, Delhi-110006, measuring about 304 sq. yards (hereinafter referred to as the suit property).
3. It is also submitted that the plaintiff has deliberately concealed that he had earlier filed the Suit No. CS DJ 6/2015 (renumbered as CS DJ/13847/2016) for Declaration, Possession and Permanent Injunction in the year 2015, against the defendants and the North Delhi Municipal Corporation (NDMC), claiming itself to be the owner of half portion of 52:22:50 sq. yards (i.e. 26:11:25 sq. yds.) of the suit property and the plaintiff has now filed the Suit for Partition based on the alleged Sale Deed dated 24.04.2003, through which he had claimed his ownership of his share in the previous suit as well.
4. It is further asserted that the plaintiff in the previous suit has taken a plea that the suit property was a plot which was lying vacant but the applicants/defendant Nos. 1 to 3 came in adverse possession and the plaintiff had further claimed that the suit property was a vacant plot which he used to visit off and on. He asserted that the suit property was in physical possession of the NDMC and that the plaintiff had falsely and fraudulently misrepresented to NDMC that he was the owner of the suit property and had been collecting the rent from the defendants.
5. The plaintiff thus, admitted the physical possession of the applicants/defendant Nos. 1 to 3, who also had specifically stated in their Written Statement, that they were in adverse possession of the entire suit property since 2000 and that the Suit was barred by limitation.
6. The plaintiff, subsequently, withdrew his previous Suit unconditionally vide Order dated 31.05.2019. Thereafter, the present Suit has been filed wherein the plaintiff in addition to seeking Declaration and Possession and has also sought the partition of the suit property in the half portion of the suit property measuring 52:22:50 sq. yards (i.e. 26:11:25 sq. yds.). Thus, though in the present Suit, main relief claimed is of Partition and Permanent Injunction, but from the perusal of the Prayer clause, it is evident that the relief of Declaration and Possession in respect of the suit property on the basis of alleged Sale Deed dated 24.04.2003, has also been claimed as was claimed in the earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016).
7. It is further asserted that the plaintiff, in order to create a cause of action, has concocted a story that when he requested for partition in June-July, 2019, the defendants allegedly refused and thereby giving him a right to file the present Suit.
8. The applicants/defendant Nos. 1 to 3 have contended that since the earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/13847/2016) had been withdrawn unconditionally, therefore, the present Suit is barred by law and is liable to be rejected in view of Order XXIII Rule 1(4) of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC, 1908).
9. The applicants/defendant Nos. 1 to 3 have further asserted that the present Suit is barred under Order II Rule 2(3) of CPC, 1908 inasmuch as the plaintiff could have sought the relief of Partition in the earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016) which he failed to do and also did not seek the liberty of the Court under Order XXIII Rule 1 CPC, at the time of withdrawal of earlier Suit. The present Suit is, therefore, not maintainable.
10. The third ground for rejection of the Plaint is that defendant Nos. 1 to 3 are in continuous, hostile occupation and physical possession of the suit property since 2000 which is evident from the earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016) filed in respect of the suit property. Therefore, the relief of Declaration is barred by limitation.
11. Furthermore, the Declaration is based on an alleged Sale Deed dated 24.04.2003 and is also beyond the period of limitation.
12. It is further asserted that the plaintiff was never in possession of the suit property and all the reliefs against answering applicants/defendant Nos. 1 to 3 have become barred by time.
13. The fourth plea taken is that the plaintiff has sought the Relief of possession in respect of the half portion of 52:22:50 sq. yards (i.e. 26:11:25 sq. yds.) of the suit property thereby establishing that he is not in possession of the suit property at the time when the Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016) was filed. Therefore, the plaintiff is liable to pay ad valorem court fee which he has failed to pay.
14. The present Suit is, therefore, liable to be rejected under Order VII Rule 11 (c) of CPC, 1908. A prayer is, therefore, made that the Suit of the plaintiff be rejected.
15. The plaintiff in his Reply has explained that there was no concealment of facts on the part of the plaintiff. The cause of action in the present Suit is for partition, which is a continuing right.
16. Furthermore, while withdrawing the earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016), there was no requirement to seek liberty to file a subsequent Suit as the previous Suit was only for Declaration while in the present Suit, the plaintiff is also seeking the relief of partition which is a continuous cause of action.
17. It is further submitted that there is no deficiency of court fee as the plaintiff is in constructive possession of the suit property. It is, therefore, submitted that there is no merit in the present application which is liable to be rejected.
18. The applicants/defendant Nos. 1 to 3 in their Rejoinder reiterated their assertions as contained in the present application.
19. Submissions heard.
20. To understand the averments made in the application, it is pertinent to note the facts as alleged in the Plaint.
21. The plaintiff has stated that the suit property was previously owned by M/s Kali Charan & Sons, H.U.F. and its Karta sold the undivided portions vide four different registered Sale Deeds dated 11.09.2000.
22. The undivided portion admeasuring 101.70 sq. yards of the suit property was sold to the applicants/defendant Nos. 1 to 3. The second undivided portion admeasuring 98.42 sq. yards was purchased by defendant No. 4/ Shri Gurdeep Singh Chawla. The third undivided portion measuring 52:22:50 sq. yards was purchased by defendant No. 5/ from the Karta of M/s Kali Charan & Sons, H.U.F. The remaining fourth undivided portion admeasuring 52:50:50 sq. yards was purchased by one Narender Kumar Sehgal; half of this undivided portion i.e. 26:11:25 sq. yds. was further sold by Narender Kumar Sehgal to Defendant No. 6. The remaining half undivided portion (i.e. 26:11:25 sq. yds.) was sold by Sh. Narender Kumar Sehgal to the plaintiff by virtue of a registered Sale Deed dated 24.04.2003, and thus, the plaintiff has become the owner of the said portion.
23. According to the plaintiff, he had sought partition of the suit property in June, 2019 and on 15.07.2019, but the defendants refused to partition the suit property and hence, the present Suit for Partition and Declaration has been filed on behalf of the plaintiff.
24. The applicants/defendant Nos. 1 to 3 in the Written Statement have admitted that the suit property, which belonged to M/s Kali Charan & Sons, H.U.F., has been sold as explained the plaintiff in his Suit, by virtue of four Sale Deeds. It is, however, asserted that only the symbolic possession was given to the subsequent buyers, while the applicants/defendant Nos. 1 to 3 remained in the actual physical possession which has matured into an absolute title by way of adverse possession. It is asserted that the physical possession as narrated in the site plan did not correspond to the reality.
25. It is only the applicants/defendant Nos. 1 to 3 who have always been in possession of the entire suit property. The defendant No. 4/Gurdeep Singh Chawla acting as a Power of Attorney Holder on behalf of M/s Kali Charan & Sons, H.U.F. had handed over the actual physical possession of the suit property for some consideration to the applicants/defendant Nos. 1 to 3. The applicants/defendant Nos. 1 to 3 got the property vacated from MCD which was a tenant. The applicants/defendant Nos. 1 to 3 took physical possession of the portions of the suit property in the year 2000 itself i.e., immediately after the execution of the Sale Deed.
26. The defendant No. 1 started using a portion of the suit property in the year 2002, while the rest of the portion was being used by MCD and paying the rent to the applicants/defendant Nos. 1 to 3 since July, 2002.
27. It is claimed that the defendant No. 1 was exclusively in possession of the suit property through the tenants i.e., MCD, now NDMC, till 31.03.2012 when the NDMC handed over the physical possession of the suit property to the defendant No. 1 which is now being used by him for his own use.
28. The applicants/defendant Nos. 1 to 3 have further asserted that the defendant No. 4 Gurdeep Singh Chawla, who was the owner of 98.42 sq. yards of the suit property, had filed the Suit No. 1841/2012 against the applicants/defendant Nos. 1 to 3, wherein it was claimed that the applicants/defendant Nos. 1 to 3 are in illegal possession of the suit property and were illegally collecting the rent. The plaintiff moved an application for impleadment which implies that he was also throughout aware of the possession of the suit property being with defendant No. 1.
29. The defendant No. 1/Lajpat Rai Jagga also filed a Civil Suit bearing CS No. 67/2012 for Specific Performance and Permanent Injunction against the defendant No. /Gurdeep Singh Chawla before the learned Additional District Judge, Tis Hazari Courts, New Delhi. However, eventually the matter was settled between the defendant No. 1 and the defendant No. 4 vide Settlement Agreement dated 06.10.2015 and on payment of Rs. 1,40,00,000/-, two Sale Deeds, both dated 01.08.2017, were executed in favour of the defendant No. 1 by the defendant No. 4/Gurdeep Singh Chawla and his wife Ms. Harjeet Kaur.
30. The applicants/defendant Nos. 1 to 3 were already owners of 101.70 sq. yards of the suit property and by subsequent Sale Deeds, they acquired the remaining area of 104 sq. yards.
31. The applicants/defendant Nos. 1 to 3 have asserted that they had acquired the title to the suit property by way of adverse possession in the year 2012 and are in continuous and hostile occupation since 2000.
32. From the respective pleadings of the parties, there is no challenge that initially the suit property was owned by M/s Kali Charan & Sons. H.U.F. The applicants/defendant Nos. 1 to 3 are claiming to have purchased the various parts of the suit property from time to time through Sale Deeds from the erstwhile owners.
33. The plaintiff is also asserting his right to (i.e. 26:11:25 sq. yds.) by virtue of a Sale Deed dated 24.04.2003 executed in his favour by Shri Narender Kumar Sehgal, the erstwhile owner of 52:22:50 sq. yds. of the suit property.
34. It emerges that being the co-owners and having undivided shares as mentioned in the respective pleadings, the plaintiff is entitled to seek partition which he has sought to do by way of present Suit.
35. The earlier Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016) that was filed, was essentially for Declaration of his Title in the portion of undivided suit property on the basis of the Sale Deed dated 24.04.2003. However, the plaintiff may have withdrawn the said Suit, but the defendants have not questioned the Sale Deed dated 24.04.2003 executed in favour of the plaintiff. Additionally, the plaintiff has now filed the present Suit for Partition on the basis of the said Sale Deed in his favour. The Suit can neither said to be barred under Order XIII Rule 1 (4) of CPC, 1908 as the Suit No. CS DJ 6/2015 (renumbered as CS DJ/1384/2016) was for different relief of Possession and Declaration. The right of partition is a continuous right as has been rightly asserted by the plaintiff.
36. The bar of Order II Rule 2 of CPC, 1908 is also, therefore, not attracted in the present case, for the same reasons.
37. The applicants/defendant Nos. 1 to 3 may be setting up a title in the entire suit property by way of adverse possession, but it is required to be proved by them by way of evidence that their possession was open, adverse and hostile to the plaintiff.
38. The Plaint thus, discloses a cause of action for maintaining the Suit for Partition.
39. In view of the foregoing discussion, there is no merit in the present application, which is hereby dismissed.
CS(OS) 557/2019 & I.A. 15135/2019
40. List before the Joint Registrar for completion of pleadings and admission/denial of the documents, if any, on 30.04.2024.

(NEENA BANSAL KRISHNA)
JUDGE

MARCH 20, 2024
S.Sharma

CS(OS) 557/2019 Page 1 of 9