Order 6

Order Details: COPY OF ORDER
Pdf Text: Civ Suit 5/23
Smt. Indra Jain Vs. Prabhakar Jain
06.10.2023
Present: Ms. Ruksana, proxy counsel for the plaintiff.
Mr. Dheeraj Singh, Ld. counsel for defendant no. 1.
Defendant no. 2 in person.
1. Vide this order I shall decide the application filed by
the defendent no. 1 under Order VII R 11 CPC seeking rejection
of the present plaint. Before going into the merits of the
application, it is necessary to briefly discuss the facts of the
present case.
2. Present case has been filed by the plaintiffs, who are
the relatives of the defendants. Plaintiffs are the wife and son of
the deceased brother of the defendants respectively. The present
suit has been instituted with regard to two immovable properties
i.e., property bearing no. T-368, gali no. 10, Gautam Puri,
Shahdara, Delhi and property bearing no. C-389, gali no. 13,
Usmanpur, Delhi. Aforesaid suit properties were registered in the
name of late Smt. Usha Rani Jain, who was the mother-in-law of
the plaintiff no. 1 and mother of the defendants. As per the plaint,
late Smt. Usha Rani Jain, who was the owner of the aforesaid
properties had died intestate on 19.11.2022. It is stated that
earlier during her lifetime, it was mutually decided among the
family members in the year 2000 that both the properties will be
divided among all the legal heirs, after the death of both the
parents. It is the grievance of the plaintiff that after the death of
her mother-in-law late Usha Rani Jain, the defendants have
threatened the plaintiff that she has no right, title or interest in the
suit properties and in case she dares to visit the same, she will
Contd....
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face dire consequences. It is further stated that plaintiff being the
widowed daughter-in-law of the deceased owner of the suit
properties and plaintiff no. 2, being the grand son of the deceased
owner is entitled to ¼th share in the suit property and defendants
are denying their right in the same, therefore, the present suit has
been filed seeking relief of declaration to the effect that they are
co-owners in the suit property. Further, relief of permanent
injunction is sought restraining the defendants from creating any
third party interest in the suit property. Defendants are stated to
be in possession of the suit property at present.
3. By way of WS, defendant no. 1 has stated himself to
be the absolute owner of both the suit properties by virtue of a
Will executed by their late mother dated 22.06.2021. Defendant
no. 2 and 3 through their joint WS have stated that both of them
are the true owners of the suit property bearing no. T-368, gali
no. 10, Gautam Puri, Shahdara, Delhi by virtue of a Will dated
11.04.2017 executed by their mother.
4. By way of the present application, defendant no. 1
states that the present plaint is not maintainable as the same has
been filed without any cause of action and it is based on
fabricated and concocted facts. It is further stated that the plaint
is not properly valued as the properties are having market value
of more than 80 lakhs, but the plaintiff has valued the present suit
for the purpose of declaration @ Rs.130/- only. It is argued by
Ld. counsel for defendant no. 1 that in the garb of the present suit
for declaration, plaintiffs are seeking relief of partition for which
the present suit is under valued.
Contd....
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5. I have heard the counsel for the parties and perused
the record carefully. Clearly, the ownership of the suit property is
disputed. There are contesting claims of ownership over suit
properties. Plaintiff have alleged that that suit properties are joint
family properties. However, both the defendants have alleged
that they are the owners of the suit properties by virtue of
respective Wills executed by their late mother. The question of
ownership is a contested issue which shall be decided after
leading evidence by both the parties. The question whether the
suit for declaration-qua-ownership in the suit properties to the
extent of ¼th share, without seeking relief of partition is
maintainable was discussed by Hon’ble High Court of Madhya
Pradesh in case titled as Karelal and others Vs. Gyanbai
widow of Keshari Singh and others (Second Appeal No.
436/2002) and Karelal and others Vs. Gyanbai widow of
Keshari Singh and others (Second Appeal No. 434/2002). The
relevant observation is cited below:-
“The appeals have been admitted on the following
substantial question of law by order dated
10.03.2003:-
"Whether without claiming the relief of partition,
suit for mere declaration is maintainable?"
(12) In the present case, the relationship of the
parties has not been denied by the appellants /
defendants.
The Supreme Court in the case of C. Mohd. Yunus
Vs. Syed Unnissa reported in (1962) 1 SCR 67 has
held as under:-
"6.In our view, the suit as framed was maintainable.
The management of the institution is vested in the
trustees. The four families, it is true, are by tradition
entitled to perform and officiate at certain ceremonies
and also to share in the income. A suit for declaration
with a consequential relief for injunction, is not a suit
for declaration simpliciter: it is a suit for declaration
Contd....
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with further relief. Whether the further relief claimed
in a particular case as consequential upon a
declaration is adequate must always depend upon the
facts and circumstances of each case. In Kunj Behari
Prasadji Purshottam Prasadji v. Keshavlal Hiralal it
was held that Section 42 of the Specific Relief Act does
not empower the court to dismiss a suit for a
declaration and injunction and that an injunction is a
further relief within the meaning of Section 42 of the
Specific Relief Act."
(14) The High Court of Delhi in the case of Sri
Kishan Vs. Shri Ram Kishan and others by order
dated 1-5-2009 passed in CS (OS) No. 94/2006 has
held as under:-
"17. The right to enforce partition is a legal incident of
a co-ownership and as long as such co-ownership
subsists, the right to seek partition continues. The mere
fact that a co- owner files a suit for partition and
then abandons or withdraws it will not deprive him of
his right to seek partition of the joint property.
(17) Thus, it is clear that even in a suit for partition,
the rights of the parties are to be determined and
thereafter, the property has to be separated by metes
and bounds. Unless and until the entitlement of a
party is not declared, no further steps can be taken.
However, one thing is clear that right to seek
partition is a recurring cause of action and a person
may file another suit for partition even after having
withdrawn the first suit without any liberty as the
principle of res judicata would not apply as the
subsequent suit shall be based on the different cause
of action. Similarly, if a co-sharer who is denied his
title as a co-sharer, if files a suit for declaration of
title and permanent injunction with no intention to
get the property separated, he may file the suit for
declaration of title and permanent injunction
without seeking further relief for partition. A co-
sharer cannot be compelled to file a suit for
partition even if he is not interested in separation of
the property by metes and bounds.
(20) Accordingly, under the facts and circumstances
of the case, this Court is of the considered opinion
that the suit for declaration of title and permanent
injunction filed by the plaintiffs, seeking a
declaration to the effect that they are the co-sharer
in the property in dispute and seeking the relief of
permanent injunction against the remaining co-
sharers would be maintainable.
Contd....
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6. Further, in case titled Budh Singh and another v.
Charanjeet Kaur @ Harcharan and others in CR 1479-2023
the Hon’ble High Court of Punjab and Haryana observed that ad-
valorem court fees is not to be paid by the plaintiff in a suit filed
for declaration of joint ownership and possession of the suit
property with consequential relief of permanent injunction.
7. In view of the present facts and circumstance and the
law discussed above, no ground is made out for rejection of
present plaint as it discloses a valid cause of action which needs
to be adjudicated. Accordingly, the present application under
Order VII R 11 CPC stands dismissed and disposed of
accordingly.
8. Put up for arguments on application under order
XXXIX R 1 & 2 CPC and framing of issues on 28.11.2023.
9. Meanwhile, defendants are restrained from creating
any third party interest in the suit properties bearing no. T-368,
gali no. 10, Gautam Pur, Shahdara, Delhi and property bearing
no. C-389, gali no. 13, Usmanpur, Delhi till the next date of
hearing.
Tania Singh
ACJ-cum-ARC-cum-CCJ
North-East/Karkardooma Courts
Delhi/06.10.2023
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