The main legal point established in the judgment is that the relief in a suit for partition cannot be changed to a suit for eviction and possession by impleading third parties who are neither necessary nor proper parties to the original suit.

Hima Kohli, J. (Oral):--

I.A.7577/2013 (by the plaintiff u/S 44 of the Transfer of Property Act r/w Section 151 CPC)

1. The present application has been filed by the plaintiff in a suit for partition in respect of a flat situated in the World Trade Centre, Babar Road, to the extent of 50% and a residential premises situated at D-30, Anand Vihar, Indraprastha Extension-II to the extent of 25% therein. The flat situated in the World Trade Centre is owned by the Family Trust and stated to have been sub-licensed, whereas the residential premises is owned by the father of the parties.

2. The plaintiff has also sought a decree of perpetual injunction against the defendants in respect of the aforesaid two immovable properties, apart from rendition of accounts in respect of the rents and other benefits collected by them from the aforesaid properties.

3. By this application, the plaintiff has prayed for directions to the Police Station: Anand Vihar for evicting some trespassers/squatters and taking possession of the residential premises and sealing the same.

4. The plaintiff is a permanent resident of Canada and has instituted the present suit against the defendants No. 1 to 3, his siblings on 15.01.2007. Summons were issued in the suit on 17.01.2007, on which date, it was directed that till the next date of hearing, the defendants are restrained from transferring, alienating or parting with possession of the aforesaid two immovable properties. Appearance was entered by the contesting defendants No. 1 to 3, who had filed their written statement in April, 2007 stating inter alia that the defendant No. 1 had sold/transferred his 1/4th share in the property at Anand Vihar in favour of one Shri Suresh Vij, for consideration upon execution of an Agreement to Sell dated 11.12.2006.

5. Later on, two applications were filed by Shri Suresh Vij and Shri Sanjay Mahajan under Order I Rule 10 CPC, praying inter alia for being impleaded in the present suit on the ground that they are subsequent bonafide purchasers of the residential property (I.A 1461/2007 and 1465/2007). Replies in opposition to the said applications were filed by the plaintiff. Vide order dated 29.04.2009, the aforesaid applications were dismissed with the observation that the present suit instituted by the plaintiff is one for partition of immovable properties and the Court is required to adjudicate as to whether the parties, who are related to each other being siblings, are entitled to a share in the immovable properties left by their parents. It was observed that in case the applicants had acquired any right pursuant to the Agreement to Sell dated 11.02.2006/29.08.2006, then they should take appropriate independent proceedings before a competent court for adjudication of their rights and that by impleading them in the present suit for partition, the Court cannot change the nature of the proceedings from a suit for partition to a suit for declaration. It was also observed that in case the applicants are impleaded in the present suit, the Court would have to go into the question as to whether the defendants have any right or title in the suit properties or not and therefore, the right of the applicants to have the aforesaid issue decided, lies in an independent proceeding that may be taken by them. With these observations, the aforesaid applications were dismissed. The Court is informed that the said order has attained finality as none of the parties had filed an appeal against the same.

6. Thereafter, on 23.01.2012, a preliminary decree was passed in respect of the Anand Vihar property by holding that the plaintiff and the defendants No. 1 to 3 are entitled to 1/4th share each therein. Further, counsel for the plaintiff and the defendants No. 1 to 3 had stated that it is not possible to divide the aforecited property by metes and bounds and the same ought to be sold. They had however requested that in the first instance, they be permitted inter se bidding.

7. In view of t