Back
2019 Supreme(Del) 1645
IN THE HIGH COURT OF DELHI
SANJEEV NARULA, J.
Rameshwar Dayal Gupta - Plaintiff
Versus
Mange Ram Gupta – Defendant
CS(OS). No. 252 of 2018, CC. No. 31 of 2018, I.A. No. 7267 of 2018
Decided On : 03-07-2019
For the Plaintiff :Samar Bansal, Manan Shishodia, Pevahuti Pathak, Advocates.
For the Defendant :Rajneesh Kumar Sharma, Advocate.
Admissions in written statement and documents are crucial in establishing ownership and entitlement to partition. The Memorandum of Understanding does not preclude the claim for partition.
Headnote:
Partition - Preliminary Decree - CPC 1908 - Order 12 Rule 6 - Perpetual Lease Deed - Memorandum of Understanding - B-7/33, Safdarjung Enclave, New Delhi- 110029 - 31.12.1968 - 08.05.2014
Fact of the Case:
Plaintiff seeks preliminary decree for partition of a residential house jointly owned with the Defendant. Defendant denies ownership and claims expenses incurred. Plaintiff relies on admissions in written statement and documents to support the claim.
Finding of the Court:
The Court finds that the Plaintiff and Defendant are joint owners of the property based on admissions in the written statement and documents. A preliminary decree is passed declaring both parties to have 50% undivided share in the suit property. A Local Commissioner is appointed to suggest the mode of partition before passing a final decree.
Issues: Dispute over ownership and entitlement to partition of the suit property.
Ratio Decidendi: Admissions in the written statement and documents, including the Perpetual Lease Deed and Memorandum of Understanding, establish joint ownership and entitlement to partition. The Memorandum of Understanding is not a Partition Deed and does not preclude the claim for partition.
Final Decision: Preliminary decree passed declaring both Plaintiff and Defendant to have 50% undivided share in the suit property. Appointment of a Local Commissioner to suggest the mode of partition before passing a final decree.
JUDGMENT :
I.A. 12997/2018 (application on behalf of the Plaintiff under Order 12 Rule 6 CPC)
1. By way of the present application, the Plaintiff seeks a preliminary decree on the basis of the admissions made by the Defendant.
2. Briefly stated, the facts of the case are that, Plaintiff has filed the present suit inter alia, seeking a decree of partition of the residential house bearing No. B-7/33, Safdarjung Enclave, New Delhi- 110029, consisting of a super structure of built up Ground Floor, First Floor and Barsati Floor and land underneath admeasuring approximately 425 square yards (hereinafter referred to as "Suit Property"). The suit was initially filed against his two brothers i.e. Mange Ram Gupta and Rajinder Prasad Gupta as Defendant Nos. 1 & 2 and against the legal heirs of his pre-deceased brother namely (i) Alka Gupta (ii) Sidharth Gupta and, (iii) Aishwarya Gupta, as Defendant Nos. 3 to 5. However, vide order dated 23rd May 2018, Defendant Nos. 2 to 5, were deleted from the array of Defendants.
3. The case as set up in the plaint is that, Plaintiff and Defendant are the co-owners of the suit property by virtue of perpetual lease deed dated 31st December 1968, having equal 50% undivided share each therein. The said property was jointly purchased from their self acquired funds. Late Shri Shambhu Dayal Gupta had four sons – the Plaintiff, the Defendant, Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta. The aforenoted brother namely Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta were allowed to reside in certain portions of the suit property as gratuitous licensees along with their respective families. Suits for eviction were filed against Defendant Nos. 2 to 5. In the pleadings of the said suits, Defendant No. 1 admitted that Plaintiff owned 50% undivided share in the suit property. The parties executed a Memorandum of Understanding (MOU) dated 8th May 2014 agreeing to cooperate in their effort to legally evict the said Defendants. After obtaining the possession of the said portion of the suit property from them, the Defendant with is now denying the title of the Plaintiff and has refused to partition the suit property.
4. In the present application, it is contended that the Defendant has made unequivocal admissions in the written statement and the Plaintiff is entitled to a preliminary decree of partition declaring the Plaintiff and Defendant to be entitled to 50 percent share each in the suit property. It is further contended that the Defendant in his affidavit of admission/denial of the documents filed before this Court, has admitted the following documents:
(i) Perpetual Lease Deed dated 31.12.1968 in joint names of Plaintiff and Defendant.
(ii) Occupancy Certificate dated 31.03.1972.
(iii) Joint electricity bills.
(iv) Joint water bills.
(v) Memorandum of Understanding dated 08.05.2014 between Plaintiff and Defendant.
5. The Plaintiff urges that in view of the admissions made in the pleadings and also of the documents noted above, the parties should not be relegated to a lengthy and expensive trial and that it would be in the interest of justice that a preliminary decree be passed declaring the extent of shares of the parties along with the consequential directions for appointment of Local Commissioner.
6. The Defendant in his reply has opposed the prayer made in the application and has alleged that the Plaintiff has not presented true facts. He contends that no admissions have been made in the written statement that would entitle the Plaintiff to seek the relief under the provisions of Order 12 Rule 6, CPC 1908. It is also contended that the Plaintiff has selectively quoted and relied upon clauses from the MoU and has failed to disclose that he has not honoured the commitments made therein and that the said document was executed at his behest. The property in question came to be allotted pursuant to a suc
