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2008 Supreme(Del) 50
IN THE HIGH COURT OF DELHI AT NEW DELHI
ANIL KUMAR J.
SHRI PARKASH CHANDER BHALLA ......... PLAINTIFF
Versus
SHRI SUDESH CHANDER BHALLA and ORS.......... DEFENDANTS
CS(OS) No.3198 of 1988, CS(OS) No.503 of 1990
Decided on : January 18, 2008
Through:Mr. Sujoy Chander Kumar, Advocate
Through:Mr. V.K. Makhija, Sr. Advocate with Mr. Akshay Makhija, Advocate for LRs of Defendant No.1 Mr. D.N.Goburdhan Advocate for Defendant no.2 Ms. Shubhangi Tuli, Advocate for defendant No.3. Mr. Vikas Chopra, Advocate for defendant No.4.
Headnote:Benami Transaction (Prohibition) Act, 1988 Section 3 - Defendant plea that he is benami owner of the 50% share in property - Held that Defendant cannot be allowed to raise the plea that the joint family is the benami owner of this Anand Niketan Property.
Court Fees Act, 1870 Section 7 (iv) (b) - Suit for partition - If the plaintiff is not in possession of the properties, he is liable to pay ad-valorem court fees on his share under Section 7 (iv) (b) of~ If the plaintiff is in possession of any portion of the properties to be partitioned, the plaintiff is liable to pay fixed Court fees under Article 17(6) of second schedule II of the Act.
Specific Relief Act, 1963 . Section 6,- If the plaintiff is in possession of a room, he cannot be dispossessed without due process of law unless it is established that he is not entitled to retain the possession - Decree of permanent injunction is passed in favour of the plaintiff and against the defendant directing the defendant Nos. 1 to 4 not to dispossess plaintiff from Room marked Y without due process of law.
ANIL KUMAR, J.
1. This judgment will dispose of plaintiffs suit, CS (OS) 3198 of 1998 for partition of properties of Late Shri Hans Raj Bhalla, Property bearing No.22, Park Area, Karol Bagh, New Delhi and a plot of land bearing Khasra No.440 (measuring 563.59 square yards) situated at the main road, opposite plot No.T-3, Industrial Area, Bahadurgarh, District Rohtak, Haryana and the moveable properties of late Shri Hans Raj Bhalla stipulated in the schedule annexed with the plaint. After filing of the suit, an award was given in respect of some of his properties which became final and therefore, suit remains for the partition of the Property bearing No.22, Park Area, Karol Bagh, New Delhi and the moveable properties. Suit no. CS(OS) 503 of 1990 is a suit for permanent injunction seeking a restrain against Sh.Suresh Chand Bhalla, defendant No.1 that he and his family members be restrained from interfering with the peaceful possession of the plaintiff in respect of two rooms, bath on the ground floor and from making any changes/construction/addition/alterations in the suit premises. CS(OS) 3198 of 1988
2. This is the suit for partition of the properties of Late Shri Hans Raj Bhalla, Property bearing No.22, Park Area, Karol Bagh, New Delhi and a plot of land bearing Khasra No.440 (measuring 563.59 square yards) situated at the main road, opposite plot No.T-3, Industrial Area, Bahadurgarh, District Rohtak, Haryana and the moveable properties of late Shri Hans Raj Bhalla stipulated in the schedule annexed with the plaint. After filing of the suit, an award was given in respect of some of his properties which has become final and therefore, this suit remains for the partition of the Property bearing No.22, Park Area, Karol Bagh, New Delhi and moveable properties. The defendant no.2 has also sought partition of the property at Anand Niketan which is in the name of defendant no.4 contending that it is a joint family property which was acquired from the funds of HUF and therefore, has sought partition of said property also.
3. The plaintiff and defendants No.1 to 4 are brothers, sons of late Shri Hans Raj Bhalla. The defendants No.5 to 8 are the sisters of the plaintiff and defendants No.1 to 4. Shri Hans Raj Bhalla, father of the plaintiff and defendants, died on 11th February, 1977. During his life time he executed a will on 25th April 1973 whereby he gave life interest in his property to his wife, Smt. Sita Devi Bhalla, who was allowed to receive rent with profits of the said immovable properties during her life time.
4. The defendant no.5, Smt. Raj Vohra refused to accept the summon of the suit and she was proceeded ex-parte on 31st January, 1989 after plaint dated 14th December, 1988 was filed and summons were issued to the defendants on 21st December, 1988. Defendant nos. 7 and 8, Mrs. Kanwal Khanna and Smt. Dolly Bhatia respectively were proceeded ex-parte on 9th February, 1989 and Defendant no.6, Smt. Krishna Talwar, was proceeded ex-parte on 7th March, 1990. The other defendants have contested the suit.
.5. Plaintiff averred that Smt. Sita Devi Bhalla died on 15th April, 1988 and the rights in the immovable properties, 22, Park Area, Karol Bagh, New Delhi devolved upon the plaintiff and defendants No.1 to 4 in equal shares. Plaintiff pleaded that in April 1987, defendant No.1 taking advantage of old age and illness of Smt. Sita Devi tried to dispossess the plaintiff from the portion in possession of the plaintiff, necessitating filing a suit against defendant No.1 seeking restraint against him from dispossessing the plaintiff. In the said suit no. 503 of 1990 titled Shri Prakash Chander Bhalla Vs Shri Sudesh Chander Bhalla and ors. filed by the plaintiff, a temporary injunction was granted and ultimately after the death of Smt. Sita Devi Bhalla, plaintiff applied for possession of the room, however, it was ordered that the plaintiff will lock the room and deposit the keys in the Court which plaintiff contended, that he
