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High Court Of Delhi|07 November, 2012


Date of decision: 7th November, 2012
+ CS(OS) 2695/2011 % SATYA GUPTA Plaintiff Through: Mr. Anuj Gupta, Advocate with Mr. Abhay Ram Gupta, Attorney of the plaintiff.
versus GUNEET SINGH Defendant Through: Mr. Shailender Negi, Advocate for Mr. N.S.Negi, Advocate.
1. Mediation between the parties has failed. The counsel for the parties state that this suit for partition of immovable property is ripe for framing of issues.
2. The undisputed facts are that:
i) One Shri Jai Narain Gupta and one Shri Raj Kumar Aggarwal were the owners of the ground floor built on half portion admeasuring 120.575 square yards of property No.14/10, Shakti Nagar, Delhi-110007;
ii) The father of the defendant was a tenant of the said ground floor, paying half of the rent to Shri Jai Narain Gupta and remaining half rent to Mr. Raj Kumar Aggarwal;
iii) Shri Jai Narain Gupta died on 01.01.1998 and the plaintiff is the daughter-in-law of Shri Jai Narain Gupta;
iv) That after the demise of Shri Jai Narain Gupta, the father of the defendant and after his demise the defendant, was paying the share of the rent of Shri Jai Narain Gupta to the plaintiff;
v) That subsequently the defendant stopped paying rent claiming to have acquired the half share of Shri Raj Kumar Aggarwal in the property.
3. The plaintiff claims to have acquired half share of Shri Jai Narain Gupta in the premises, under his Will. The defendant in his written statement has disputed the Will of Shri Jai Narain Gupta in favour of the plaintiff and pleaded that there are other heirs also of Shri Jai Narain Gupta and rent was being paid to the plaintiff for the benefit of all the legal heirs. However, no particulars of the other heirs have been given. The husband and attorney of the plaintiff Mr. Abhay Ram Gupta identified by his counsel is present in Court; on enquiry he states that the wife of Shri Jai Narain Gupta had pre-deceased him and Shri Jai Narain Gupta, besides him had no other child; he confirms the Will of Shri Jai Narain Gupta in favour of his wife. The counsel for the defendant on enquiry today also, states that he is not in a position to controvert the said position.
4. The question which thus arises is, whether in the aforesaid state of pleadings, an issue needs to be struck on the aforesaid aspect. Issue, under Order XIV Rule 1(1) arises when a material proposition of fact or law is affirmed by one party and denied by the other. Order XIV Rule 1(2) defines material propositions as those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. The Court, under Order XIV Rule 1(5) is required to, after reading the plaint and the written statement and after examination under Rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what material propositions of fact or of law the parties are at variance, and to thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. Under Order XIV Rule 1(6) the Court is not required to frame and record issues where the defendant makes no defence. Order XIV Rule 3 further enables the Court to frame the issues from all or any of the following materials : –
(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;
(c) the contents of documents produced by either party.
Order XV provides that, where it appears that the parties are not at issue on any question of law or of fact, the Court may at once pronounce judgment.
5. The Apex Court in T. Arivandandam Vs. T.V. Satyapal (1977) 4 SCC 467 held that the reading by the Court of the pleadings should be meaningful not formal and it is the duty of the Court to ensure that bogus litigation is shot down at the earliest stage. Similarly in Liverpool & London S.P. and I Association Ltd Vs. M.V. Sea Success I (2004) 9 SCC 512 it was held that the Courts should not unnecessarily protract the hearing of suit and should interpret the provisions in such a manner so as to save expenses, achieve expedition and avoid the Court’s resources being used up in cases which will serve no useful purpose. It was further held that a litigation which in the opinion of the Court is doomed, should not be allowed to be used as a device to harass.
6. Applying the aforesaid principles, I proceed to consider as to what a plaintiff in a suit for partition, to be entitled to a preliminary decree for partition, is required to prove. In my opinion all that is required to be proved is, that all parties having share in the immovable property of which partition is sought are before the Court and as to what are their shares. If technical pleas of territorial jurisdiction, valuation etc. are raised, of course they will have to be decided.
7. Seen in this light, it is not disputed by the defendant in the written statement that Shri Jai Narain Gupta and Shri Raj Kumar Aggarwal were the only owners of the property of which partition is claimed. It is not further disputed that the defendant is the successor-in-interest of Shri Raj Kumar Aggarwal. As far as the share of Shri Jai Narain Gupta is concerned, it is also not disputed that he has died. The plaintiff as aforesaid claims to be his only heir under a Will of Shri Jai Narain Gupta. The defendant however claims that Shri Jai Narain Gupta has left behind “other legal heirs also”. The defendant as aforesaid, however has not stated as to who are the other legal heirs. On the contrary, the son of Shri Jai Narain Gupta who is the husband of the plaintiff, as aforesaid, has stated that he is the only natural heir of Shri Jai Narain Gupta and affirmed the Will in favour of his wife i.e. the plaintiff.
8. The key question which arises is whether the red herring which the defendant has let loose, of other legal heirs of Shri Jai Narain Gupta, without specifying who, or giving their particulars, invites framing of an issue. In my opinion, no.
9. Order 6 Rule 2 requires a pleading to contain material facts on which the party pleading relies, for his claim or defence and Order 6 Rule 4 and Order 8 Rule 2 require the defendant to raise by his pleadings all matters which show the suit to be not maintainable.
10. Order 8 Rule 3 provides that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff and requires the defendant to specifically deal with the each allegation of fact of which he does not admit. Order 8 Rule 4 prohibits a defendant from denying an allegation of fact evasively and requires a defendant to answer the point of substance.
11. Thus when the plaintiff in the plaint pleaded that she and the defendant are the only owners of the property, it was incumbent upon the defendant to say as to who else is the owner of the property and the statement of the defendant that Shri Jai Narain Gupta through whom the plaintiff claims, has left other legal heirs is found to be evasive. Once the plea is evasive, it cannot be a material plea on which an issue arises. I am thus of the opinion that no issue arises from the plea of the defendant of Shri Jai Narain Gupta having left other legal heirs.
12. Once it is established that the plaintiff and the defendant are the only owners of the property and the equal share of predecessor of each of them is not disputed, a preliminary decree for partition, holding the plaintiff and the defendant to be each having one half undivided share each in the property has to necessarily follow, and is passed.
13. The defence set up by the defendant, of the tenancy rights of his father in the premises having been inherited by him alongwith his sisters and mother who are not parties to this suit and of the plaintiff owing to the said tenancy being not entitled to the relief of partition though may be material for the final decree of partition is not material as far as the passing of the preliminary decree is concerned.
14. However, it appears that the said defence also may not call for any evidence. On inquiry, the counsel for the defendant has stated that the two sisters of the defendant are married and not residing in the suit premises and are residing in their matrimonial home. The mother of the defendant is however stated to be residing in the suit premises. The defendant sufficiently represents the interest even if any of his sisters and mother. There is no plea of any collusion between the plaintiff and the sisters/mother of the defendant. Attention of the counsel is invited to the following judgments:
A. Kumar Jagdish Chandra Sinha Vs. Mrs. Eileen K. Patricia D'Rozarie (1995) 1 SCC 164 and Rani Devi (Smt) Vs. Bhole Nath (1992) 1 SCC 61 and Surayya Begum Vs. Mohd. Usman (1991) 3 SCC 114 on the aspect of rights of married daughters of the tenant;
B. Pramod Kumar Jaiswal Vs. Bibi Husn Bano (2005) 5 SCC 492 and Imambi Vs. Azeeza Bee MANU/SC/1671/1999 on the aspect of effect of purchase by a tenant of a share in the tenancy premises.
Both the counsels seek time to address on the aforesaid aspect i.e. whether before passing of the final decree any evidence is required to be led and if not as to what course is to follow.
15. Before parting, it may be recorded that the plaintiff, besides the relief of partition, also seeks the relief of mandatory injunction directing the defendant to handover possession of 1/2 portion of the property to the plaintiff and of permanent injunction to restrain the defendant from creating third party interest or carrying out any addition / alteration in property. The said reliefs do not require any issues as the relief of mandatory injunction is covered by the relief of partition and the relief of permanent injunction, after partition, would be infructuous.
16. In accordance with para 14 above, list on 30th January, 2013. Registry to, in the meanwhile, draw up a preliminary decree for partition. Costs shall be assessed at the time of passing the final decree.
NOVEMBER 07, 2012
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High Court Of Delhi

07 November, 2012