The court emphasized that a party cannot be allowed to change the nature of the suit through an amendment if the original suit did not contain any pleading in that regard. The court also held that the plaintiff, who claimed equitable relief, must act equitably and cannot unlawfully occupy the property while seeking relief.

V.K. Shali, J.

1. This order shall dispose of three applications being I.A. No.7059/2010 filed by the plaintiff under Order VI Rule 17 CPC; I.A. No.9724/2009 filed by defendant No.2 under Order 39 Rule 1 & 10 CPC; and I.A. No.7858/2009 filed by the plaintiff under Order 39 Rule 1 & 2 CPC.

2. Briefly stated the facts of the case are that property No.D-46, Hauz Khas, New Delhi, was the property of Smt. Harbans Kaur, which is measuring 217.78 square yards comprising of ground floor, first floor and the second floor. The second floor is partly constructed. Smt. Harbans Kaur died on 2.5.1994 leaving behind two sons, namely, Dr. Tej Inder Singh Saluja, the plaintiff herein and Dr. Tej Mohan Singh Saluja, (defendant No.1). It has been stated in the plaint that both the plaintiff and defendant No.1 being the real brothers have half undivided share in the suit property which has not been partitioned by them till date. It has been stated that the ground floor and some portion of the first floor as well as the entire second floor of the suit property is in possession of the plaintiff while as the defendant No.1 is residing at 14/2, first floor, East Patel Nagar, New Delhi and some of his goods and the goods of his father are lying in a part of the first floor of the suit property. It has been stated that the plaintiff had a genuine apprehension that defendant No.1 might sell his undivided without getting it partitioned and consequently, he had given public notices in ‘Rashtriya Sahara’ & ‘The Hindu’ on 7.9.2008 and on 8.9.2008 respectively warning the public at large that the property is undivided and nobody should deal with the same.

3. So far as defendant No.2 is concerned, it has been alleged that he has allegedly purchased 50 per cent, that is, half of the undivided share in the suit property from defendant No.1 vide sale deed dated 21.5.2009 for a sum of Rs.43 lacs. Since the original documents of the suit property are with defendants and both the defendants, were threatening to dispossess the plaintiff from the suit property, therefore, the plaintiff was constrained to file the suit for permanent injunction.

4. The suit had come up for hearing on 10.6.2009 and the parties were directed to maintain status quo with regard to the title and the possession of the suit property as an interim measure. The aforesaid interim order is continuing although an application under Order 39 Rule 1 & 10 CPC is still pending adjudication.

5. The defendant Nos.1 and 2 have filed their written statement. The defendant No.1 has raised an issue of maintainability of the suit on the ground that ad valorem court fees has not been paid and material facts have been suppressed. It has been admitted by defendant No.1 that he has sold his share in the suit property for a sum of Rs.43 lacs to defendant No.2 and executed a registered sale deed on 23.5.2009. It has also been stated that the plaintiff is running his dental clinic on the ground floor and residing on the first floor with his family. The suit property was stated to have been partitioned by the father of the parties during his lifetime by virtue of which the defendant No.1 was given the first floor and 50% of the second floor while as the plaintiff was given the ground floor and 50 per cent portion of the second floor. It has also been stated by him that the present suit has been actuated by the plaintiff only with a desire to grab the entire property and since defendant No.1 has sold the property, therefore, the suit itself is bad on account of misjoinder of parties.

6. So far as defendant No.2 is concerned, it is stated that he is the purchaser of 50 per cent of the share in the suit property from defendant No.1. The defendant No.1 in his legal notice dated 20.5.2004 has specifically taken a plea that the suit property was partitioned after the death of their mother Smt. Harbans Kaur and the entire property was apportioned as under :

“ground floor by the plaintiff, first floor by defendant No.1 and