IA No.13523/2008 (of D-1 to 3 u/O 7 R-11 CPC)

1. The plaintiff, on 15th September, 2008 has filed this suit, (i) for declaration that the Compromise Decree dated 31st May, 1984 in Suit No.335/1982 of this Court has become unexecutable and unenforceable in law and is of no consequence; (ii) for partition of property No.17, Rajdoot Marg, Chanakyapuri, New Delhi, claiming a 50% share therein; and, (iii) for permanent injunction restraining the defendants from dealing with the said property or disturbing the possession of the plaintiff thereof, pleading:

(a) that the father of the plaintiff and the defendant No.4 Smt. Ravinder Kumari and of the predecessor of the defendants No.1 to 3 was the owner of property No.17, Rajdoot Marg, Chanakyapuri, New Delhi admeasuring 375 sq. yds. and died intestate leaving the plaintiff, the defendant No.1 and the predecessor of the defendants No.1 to 3 as his only legal heirs;

(b) that the plaintiff instituted Suit No.335/1982 in this Court for partition of the aforesaid property and of the other estate left by the father, claiming 1/3rd share therein and impleading the defendant No.4 and predecessor of the defendants No.1 to 3 as defendants thereto;

(c) that though initially the predecessor-in-interest of the defendants No.1 to 3 (who was the brother of the plaintiff) contested the said suit, ultimately a compromise application was filed therein and the said suit was disposed of on 31st May, 1984 in terms of the compromise;

(d) that under the said compromise, the predecessor of the defendants No.1 to 3 got 2/3rd share in the said property and defendant No.4 got the remaining 1/3rd share in the said property, as the plaintiff released her 1/3rd share in the property and it was also agreed that the stamp duty for the decree shall be borne by the parties equally;

(e) that the statement of the plaintiff in the aforesaid suit relinquishing her 1/3rd share in the property in favour of the predecessor of the defendants No.1 to 3 could not have extinguished the claim to the extent of 1/3rd share of the plaintiff in the said property as neither the said compromise was ever got registered nor any final decree upon stamp paper was ever prepared or registered; in fact, no stamp papers for passing the decree were filed;

(f) that the plaintiff had agreed to relinquish her 1/3rd share in the property on the assurance of the predecessor of the defendants No.1 to 3 that the property would be sold and 1/3rd sale proceeds would be paid to the plaintiff but the same was not done inspite of repeated requests and reminders of the plaintiff;

(g) that the predecessor-in-interest of the defendants No.1 to 3 expired on 9th December, 2005 and though the plaintiff called upon the defendants No.1 to 3 also to fulfil the promise and assurance made by their predecessor, but they refused;

(h) that the property though was in occupation of a tenant after the consent order dated 31st May, 1984 but fell vacant in the year 2008;

(i) that the defendant No.4 is crippled and is not able to manage her 1/3rd share in the said property and to protect herself against the defendants No.1 to 3 appointed the plaintiff as her attorney in respect of her 1/3rd share;

(j) that in the meanwhile 12 years lapsed from the consent order dated 31st May, 1984, without the stamp papers for engrossment of the decree thereon being deposited and the decree became unexecutable and unenforceable in law as held in Dr. Chiranji Lal Vs. Hari Das (2005) 10 SCC 746;

(k) that the defendant No.4, in order to compensate the plaintiff, vide Relinquishment Deed dated 26th August, 2008 relinquished half of her 1/3rd share in favour of the plaintiff vide registered Relinquishment Deed dated 26th August, 2008;

(l) that the plaintiff is in actual and legal possession of the property;

(m) that the plaintiff is now the owner of 50% share of the property i.e. her own 1/3rd share and half of the defendant No.4's 1/3rd share.

2. The suit came up before this Court