2019 NearLaw (DelhiHC) Online 123
Delhi High Court

JUSTICE PRATHIBA M. SINGH

MAHIPAL SINGH Vs. JAI PAL SINGH & ORS.

CS (OS) 702/2014

9th January 2019

Petitioner Counsel: Ms. Megha Gurung
Respondent Counsel: Mr. Piyush Kaushik

The said suit was filed by Shri Jai Pal Singh on 5th July, 2005 seeking partition of one property being C-98, Khasra No174, Main Road, Braham Puri, Chauhan Bangar, Matke Wali Gali, Delhi-110053.
It is submitted that Jai Pal during the life time of Sultan Singh and his mother in collusion with each other sold the five bighas of land situated in Khasra No174, Main Road, Bharam Puri, Gali Matke Wali, Chauhan Bangar, Delhi for which the said Jai Pal Singh, Sultan Singh and mothet Ram Bai had no legal right to sold the aforesaid property since the name was in the name of late Sh.
It is wrong and denied that after the death of Shri Sultan Singh, the said Jai Pal in collusion with his mother sold five shops in property noC-98 in Khasra No174, Gali Matke Wali, Chauhan Bangar, Delhi.
It is submitted that Plaintiff No1 have never sold the shops as alleged and those shops does also not belong to the suit property because that five shops were existed in the other portion of Khasra no174 Gali Matke Wali, Chauhan Bangar, Delhi and property in which existence of five shops has been referred by the defendants are situated just opposite of back Gali known as Shri Sultan Singh Gali and is not concerned with the present property in question and it is further wrong and denied that any such concealment has been made in the plaint for any purpose.
b. Pass a decree for permanent injunction in favour of the plaintiff against the defendants thereby restraining the defendants, his legal heirs, representatives from creating any third party interest from encroaching the share of the plaintiff and from raising illegal construction over the share of the plaintiff without partition property No 140 Gali Khajoori Wali, Old Ghonda, Delhi and also restrained the defendants to sell, transfer and parting with possession of the properties bearing No 651, Rajput Mohalla, Gali Khaj oor Wali, Old Ghonda Delhi and property bearing No 153, Rajput Mohalla, Gali Khajoor Wali, Old Ghonda, Delhi as per attached site plan without due process of law.
List for hearing on 26th March, 2019.

Cases Cited :
Para 2: Jai Pal Singh & Anr Vs. Nand Ram Singh and Ors., Suit 95/2005

JUDGEMENT

Prathiba M. Singh, J.:-

I.A. 10571/2014 (u/O VII Rule 11 CPC)

1. The present suit for partition was instituted on 17th February, 2014 seeking partition of various properties as mentioned in the prayer. Learned counsel for Defendant No.1 has filed an application under Order VII Rule 11 CPC being I.A.10571/2014 on the ground that the suit is not maintainable as the same is barred by limitation.

2. The submission of learned counsel for the Defendant is that Defendant No.1 had preferred Civil Suit 95/2005 titled Jai Pal Singh & Anr v. Nand Ram Singh and Ors., in which the Plaintiff, Shri Mahipal Singh, was Defendant No.2. The said suit was filed by Shri Jai Pal Singh on 5th July, 2005 seeking partition of one property being C-98, Khasra No.174, Main Road, Braham Puri, Chauhan Bangar, Matke Wali Gali, Delhi-110053. In the said suit, Shri Mahipal Singh had filed his written statement pleading that there are five other properties which had to be partitioned between the parties. In the replication, Shri Jai Pal Singh had taken a stand that those properties were already partitioned between the parties. The said suit came to be concluded by means of a settlement between the parties wherein the Court, after recording the settlement, had disposed of the suit.

3. He further submits that another suit being Suit No.28/2011 was also filed by Shri Mahipal Singh seeking partition. This suit was instituted in 2010. However, vide order dated 9th July, 2012, the said suit was dismissed. He, thus, submits that initially, Shri Jai Pal Singh had already submitted in the replication in the first suit that the properties were already partitioned and hence the cause of action for any suit for partition arose at that time in 2005. He further submits that even when the compromise was entered into in the first suit, no objection was ever raised in respect of any outstanding disputes between the parties. He also relies on an application under Order XXIII Rule 3 CPC filed in the said suit. He thus submits that the cause of action arose in 2005, the second suit was filed in 2010. Thus, the present suit filed in 2014 is barred by limitation.

4. On the other hand, learned counsel for the Plaintiff submits that in the first suit after Shri Jai Pal Singh took the stand that the properties stood partitioned, settlement negotiations were going on. Though the application under Order XXIII Rule 3 came to be filed, in the mediation report, it is made clear that the settlement in the mediation proceedings related only to the property which were the subject matter of the said suit and no other property. She further submits that the Plaintiff, Shri Mahipal Singh, had instituted the second suit within the limitation period after the recordal of settlement in the first suit i.e. on 29th February, 2008. She further submits that after withdrawing the second suit in 2010, the present suit came to be filed in 2014 as the Plaintiff had suffered a paralytic attack. On these grounds, she submits that the suit is not barred by limitation.

5. This Court has perused the pleadings in the first suit. In the written statement, therein, the Plaintiff in this suit, Shri Mahipal Singh, clearly avers as under: -
“4. That the contents of para no.4 of the plaint are absolutely false, wrong and hence, denied. It is denied that the plaintiffs have their 1/5 share each in the property in question and portion specially in red colour in the in the site plan in possession of the plaintiffs but property under partition was not properly portioned with meets and bounds and as per proper measurement of area. On the contrary plaintiff have filed in correct site plan only with the sole intention to take forcibly possession upon the suit property. It is further submitted that as matter of fact no proper court has been filed by the plaintiffs. It is further submitted that there are four properties without partition amongst the legal heirs of Late Sh. Heera Lai and Sh. Ram Bai, whose particulars are as under:-
a. Built up property no.153, Rajpoot Mohalla, Ghonda, Maujpur, Delhi measuring about 225 sq yards are in exclusive possession of Jai Pal Singh.
b. Built up property no.140, Rajpoot Mohalla, Ghonda, Delhi measuring 45 sq yards. It I pertinent to mention that the above property was earlier 126 sq yards, but except 45 sq yards of this property, the other portion had been acquired by the Govt. under a plan for construction of road.
c. Built up property 336, Rajpoot Mohalla, Ghonda, Delhi.
c. Built up property 336, Rajpoot Mohalla, Ghonda, Delhi.
It is submitted that Jai Pal during the life time of Sultan Singh and his mother in collusion with each other sold the five bighas of land situated in Khasra No.174, Main Road, Bharam Puri, Gali Matke Wali, Chauhan Bangar, Delhi for which the said Jai Pal Singh, Sultan Singh and mothet Ram Bai had no legal right to sold the aforesaid property since the name was in the name of late Sh. Heeta Lal. It is further submitted that after the death of Sh. SultanSingh the said Jai Pal in collusion with his mother sold five shops in property no.C-98, in Khasra no.174, Gali Matke Wali, Chouhan Bangar, Delhi. It is further submitted that all these facts mentioned herein have been deliberately concealed by the plaintiffs from this Hon’ble Court just to take undue advantages of their own wrongs. It is further submitted that the said Jai Pal being the elder son of late Sh. Heera Lal have taken undue advantage and embezzled all moveable and immovable properties of his late father and mother.”

6. In the replication, the Defendant, Shri Jai Pal Singh clearly avers that these properties were already partitioned.
“4. That the contents of para no.4 of the written statement are wrong and denied. It is wrong and denied that the plaintiff have filed incorrect site plan only with the sole intention to take forcibly possession upon the suit property. It is submitted that the reference given regarding the other four properties by the defendants are not concerned with the present suit and all submission regarding the reference of other four properties are made unnecessary just for the purpose of delaying in the process and in this way defendants are trying to entangle other properties which is already mutually partitioned between the defendants and plaintiff and no such controversy is there between the plaintiffs and defendants but defendants are trying to involve unnecessarily in the present suit, although no such relief has been sought by the plaintiffs against the other respective properties of the defendants or property of the plaintiffs which is being enjoyed by the parties separately. And properties mentioned in sub paras A to D are wrongly mentioned without any cause, unnecessarily for the purpose of lingering on the present suit and no such relief or objection can be raised by the defendants without filing any counter claim regarding the property mentioned in sub paras A to D and contentions given in sub paras A to D are raised unnecessarily and having no legal force regarding the present suit.
That the answering sub para of para no.4 are wrong and hence denied in verbatim. It is submitted that all allegations leveled by the defendants against the plaintiff no.1 are false, having no concern with the present suit because all this objections raised by the defendants are false and vague and raised for the purpose of confusing and misleading the contents of present suit before this Hon’ble Court. It is wrong and denied that after the death of Shri Sultan Singh, the said Jai Pal in collusion with his mother sold five shops in property no.C-98 in Khasra No.174, Gali Matke Wali, Chauhan Bangar, Delhi. It is submitted that Plaintiff No.1 have never sold the shops as alleged and those shops does also not belong to the suit property because that five shops were existed in the other portion of Khasra no.174 Gali Matke Wali, Chauhan Bangar, Delhi and property in which existence of five shops has been referred by the defendants are situated just opposite of back Gali known as Shri Sultan Singh Gali and is not concerned with the present property in question and it is further wrong and denied that any such concealment has been made in the plaint for any purpose. It is submitted that all allegations levelled against the plaintiff no.1 are false and having no weightage and just create for the purpose of showing unnecessarily misconduct of the plaintiff no.1 towards the defendants/real younger brothers. The averments made in the corresponding para of the plaint are reaffirmed and reiterated as true and correct.”

7. Further, a perusal of the application under Order XXIII Rule 3 CPC, the parties had clearly stated that no more disputes were left between the parties. The relevant portion of the application is set out herein below: -
“2. That the applicants are plaintiffs and the defendants in the above noted case and both have settled their disputes between them amicably out of court with the intervention of some respectable persons of the locality and now there is no more disputes left between the parties and a compromise deed/family settlement has also been executed between the parties.
3. That the plaintiffs do not want to proceed this case more in future against the defendants.
4. That the parties shall be bound to abide by all the terms and conditions mentioned in the compromise/family settlement deed attached.”

8. This application is signed by Shri Mahipal Singh and is accompanied by an affidavit which has also been signed by him. Thereafter, there is no doubt that in the mediation proceedings, it was recorded as under: -
“10. It is further agreed that we shall not file any case against each other relating to the partition of the present property.”

9. Thus, there is some merit in the Plaintiff’s submission that the settlement entered into in the said proceedings was in respect of the property which was subject matter of the said suit i.e. property bearing No.C-98, Khasra No.174, Main Road Brahmpuri, Gali Matke Wali, Chauhan Bangar, Delhi. Plaintiff, thereafter, filed suit no. 28/2011 before the District Judge, Karkardooma Courts, Delhi seeking partition and permanent injunction.

10. In the said suit being No.28/2011, the Plaintiff had sought partition of following three properties.
1) H. No.140, Rajput Mohalla, Khajoor Wali Gali, Old Ghonda, Delhi-110051 measuring 49.77 Sq. Yards;
2) Property bearing No.651, Rajpur Mohalla, Khajoor Wali Gali, Old Ghonda, Delhi-110051 measuring 229.15 Sq. Yards and
3) H. No.153, Rajput Mohalla, Khajoor Wali Gali, Old Ghonda, Delhi-110051 measuring 228.66.

11. The Defendants filed a written statement in the sad suit, a copy of which was handed over in Court. In the said written statement the Defendants pleaded as under:
“The defendants are agreed and having no objection for the partition of properties bearing no.140 and 651 and further property bearing no.153 Rajput Mohalla is under exclusive ownership and possession of wife of defendant no.1 and the plaintiffs and defendants are having no legal rights for the partition of the same. The documents of transfer in favour of wife of defendant no.1 are annexed herewith.”

12. thus, the Defendants admitted that they have no objection in agreeing for partition of properties bearing numbers 140 and 651. However, in view of the issue as to the pecuniary jurisdiction raised by the Defendants, the Plaintiff withdrew the said suit on 9th July, 2012 with liberty to file a fresh suit on the same cause of action. Accordingly, the present suit has been filed for partition and permanent injunction. The reliefs prayed for in the present suit are as under:
“a. Pass a decree for partition in favour of the plaintiff and against the defendants thereby partitioning of l/5th share in the suit property i.e. H. No. 140 Rajput Mohalla, Khajoor Wali Gali, Old Ghonda, Delhi 110051 measuring 49.77 sq. yards and (ii) bearing No. 651, Rajput Mohalla, Khajoor Wali Gali, Oid Ghonda, Delhi 110051 measuring 229.15 sq. yards, (iii) H. no 153, Rajput Mohalla, Khajoor Wali Gali, Old Ghonda, Delhi 110051 measuring 228.66 sq. yards, so total become 507. 58 sq. yards and as such the share of the plaintiff is 101.516 sq. yards by metes and bounds by appointing a Local Commissioner and grant one fifth share to the plaintiff by separation of his share of the plaintiff and the possession of the same be delivered to the plaintiff in the interest of justice.
b. Pass a decree for permanent injunction in favour of the plaintiff against the defendants thereby restraining the defendants, his legal heirs, representatives from creating any third party interest from encroaching the share of the plaintiff and from raising illegal construction over the share of the plaintiff without partition property No. 140 Gali Khajoori Wali, Old Ghonda, Delhi and also restrained the defendants to sell, transfer and parting with possession of the properties bearing No. 651, Rajput Mohalla, Gali Khaj oor Wali, Old Ghonda Delhi and property bearing No. 153, Rajput Mohalla, Gali Khajoor Wali, Old Ghonda, Delhi as per attached site plan without due process of law.
c. Award cost of the suit.”

13. The question that arises is as to whether the plaint in the present suit can be rejected under Order VII Rule 11 CPC as being barred by limitation and in view of provisions of Order II Rule 2 CPC.

14. Insofar as the issue of limitation is concerned, the present suit came to be filed on 17th February, 2014. The period during which the earlier suit remained pending will have to be excluded. Further, the stand of the Plaintiff is that two of the properties are exclusively in the possession of the Defendants and only one of the properties is in possession of the Plaintiff. The earlier settlement was only with respect to one property. In the written statement filed in suit being No.28/2011, which was withdrawn as on 3rd December, 2011, the Defendants had no objection for partition of the properties bearing No.140 & 651. Thus, refusal of partition i.e. the cause of action has arisen after 3rd December, 2011. The suit was withdrawn on 9th July, 2012 and thereafter, the present suit came to be filed on 17th February, 2014. Without evidence being led as to who is in possession of various properties and as to when the partition was sought and refused, it cannot be held that the suit is barred by limitation.

15. Accordingly, the application under Order VII Rule 11 CPC is rejected. Insofar as the question as to whether the suit is barred under Order II Rule 2 CPC is concerned, an issue would be framed in respect of the same, to be adjudicated at the final hearing. Pleadings of the earlier suit would have to be placed on record for determining this issue.

16. I.A. is dismissed.

I.A. 4487/2014 (u/O XXXIX Rules 1 & 2 CPC) & CS(OS) 702/2014

17. All parties to maintain status quo as to title and possession. Insofar as the issue under Order II Rule 2 CPC is concerned in respect of the same, an issue will be framed and decided at the time of final hearing.

18. List for hearing on 26th March, 2019.