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High Court Of Delhi
RAM NARAIN - Appellant
Versus
VED PARKASH - Respondent
Interim Application 4553 of 1994
Decided On : 11/08/1994
PARTITION - ORAL PARTITION - JOINT PROPERTY - POSSESSION - INJUNCTION - ORAL PARTITION ACTED UPON - CO-OWNER - CONSTRUCTION - DISCRETIONARY RELIEF - BALANCE OF CONVENIENCE - BUILDING BYE LAWS - NEIGHBOUR - UNAUTHORISED CONSTRUCTION - RELIEF BEYOND PRAYER - CIVIL PROCEDURE CODE, 1908 - ORDER 39 RULES 1 AND 2 - DELHI MUNICIPAL CORPORATION ACT, 1957.
Fact of the Case:
Plaintiff sought partition of a property situated in Abadi Area/Laldora of Village Mangolpur Kalan, Delhi, alleged to be owned jointly by the parties. The defendants claimed that the property was partitioned long back and they were in actual and physical possession of their respective portions. The plaintiff alleged that the defendants were trying to raise construction on a vacant plot without his consent.
Finding of the Court:
The court found that the parties had partitioned their properties by oral understanding and had been acting upon the same, though the partition was not through a decree of the court. The court also found that the plot in question was not lying vacant and that the defendants were in exclusive possession of it. The court held that the plaintiff was not entitled to the discretionary relief of injunction as he had not come to the court with clean hands and had suppressed material facts.
Issues: 1. Whether the parties had partitioned their properties by oral understanding? 2. Whether the plot in question was lying vacant? 3. Whether the defendants were in exclusive possession of the plot in question? 4. Whether the plaintiff was entitled to the discretionary relief of injunction?
Ratio Decidendi: 1. The court held that the parties had partitioned their properties by oral understanding and had been acting upon the same, though the partition was not through a decree of the court. The court relied on the admission of the plaintiff in his reply to the defendants' application, the site plan filed by the plaintiff, and the documentary evidence placed on record by the defendants. 2. The court held that the plot in question was not lying vacant. The court relied on the documentary evidence placed on record by the defendants, such as the Lal Dora Certificate of the Sub Divisional Magistrate, Kotwali, the electricity bill paid, the house tax certificates and bills paid, and the list of tenants occupying the earlier built-up area on the plot. 3. The court held that the defendants were in exclusive possession of the plot in question. The court relied on the documentary evidence placed on record by the defendants, such as the house tax receipts issued by M.C.D., the rent receipts regarding rent received from the tenants, and the lal dora certificate. 4. The court held that the plaintiff was not entitled to the discretionary relief of injunction as he had not come to the court with clean hands and had suppressed material facts. The court relied on the fact that the plaintiff had admitted in his reply to the defendants' application that there was an understanding between the parties in respect of the joint properties, but had not explained what that understanding was, and that the plaintiff had concealed the factum of mutual understanding in the plaint.
Final Decision: The court allowed the defendants' application and vacated the interim relief already granted.
( 1 ) SHRI Ram Narain has sought for partition of the property situated in Abadi Area/laldora of Village Mangolpur Kalan, Delhi alleged to be owned jointly by the parties. The facts in brief are that after the death of the father of the plaintiff, the property devolved on the plaintiff and his brother Jai Narain and after Jai Narain s death on his legal heirs (defendants herein ). The said property has always been jointly owned. It has not been divided so far. In fact the plaintiff and the defendants have got equal share in the entire properties shown in the plan. The plaintiff is alleged to be in occupation of vacant plot measuring 300 sq. yards, built up property of 750 sq. yards and another built up plot of 550 sq. yards shown as b , d and e on the plan. Whereas defendants are shown to be in occupation of the old house measuring 350 sq. yards, built up area measuring 350 sq. yards, built up plot measuring 550 sq. yards Thus, according to plaintiff, he is in actual physical possession of 1600 sq. yards whereas the defendants occupies 1250 sq. yards. According to the plan, there is a vacant plot measuring 750 sq. yards mark e on the site plan. This the plaintiff alleges the defendants are trying to raise construction by building shops and godown on the same. Part of this plot belongs to plaintiff as it is a joint property and being co- owner without his consent the defendants could not have raised the construction on the same. It is in this back ground that the present application seeking injunction against the defendants had been filed. Ad interim injunction directing the parties to maintain status quo with regard to property marked e shown in the site plan was ordered.
( 2 ) BY this application, the defendants want the said interim order to be vacated, inter alia, on the grounds that property stood partitioned long back. The said partition was acted upon and therefore, the parties are in actual and physical possession of their respective portions. Moreover, the plot in question marked e on the site plan had all along been in the physical possession of the defendants. Defendants demolished the already existed building and structure in under to rebuilt pacca construction in order to carve out proper shops as has been done by the plaintiff on his adjacent plot marked d on the site plan It is alleged that the plaintiff has not come to the Court with clean hands. He has wrongly alleged that the plot marked e was lying vacant. In fact, the plaintiff knew all along that on plot e there were built up shops which had been let out by the defendants to defferent tenants earlier and now they were renovating/reconstructing the same on the same plot. The partition took place about 30 years ago It was then agreed between the parties that henceforth the parties could construct building on their plots according to their need. it has been denied that the area under the old house is 350 sq yards. In fact, as per the Municipal Corporation record the area is about 200 sq. yards. The father of the defendants constructed the shops and small residential house on the plot mark e way back in the year 1980-81. It is only the old construction which was demolished in the beginning of February, 1994 and the defendants were trying to reconstruct the same. The physical possession of plot has through out been with the defendants. Because of this injunction, irreparable loss has been caused to the defendants, the construction already raised is getting ruined. Only roof is to be laid. Plaintiff contested this application and denied that the partition has already taken place. He being the co- owner without his consent the defendant could not raise construction on the plot. On the date of filing of the suit, plot Marked e in the site plan was vacant and, therefore, was in joint possession. He denied that the partition took place about 30 years ago.
( 3 ) I have heard the learned counsel for the parties and perused the record. In
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