The main legal point established in the judgment is the recognition of an oral partition in 1995, dividing the property between the parties, and the determination that the suit was not barred by limitation.

JUDGMENT :

Neena Bansal Krishna, J

1. A family litigation was commenced by the plaintiff Sh. Suraj Bhan Arya, for Partition, Declaration and Permanent and Mandatory Injunction against his three brothers Sh. Pooran Chand Arya, Sh. Kishan Singh Arya, Sh. Lakhan Singh Arya, sister Smt. Murti Devi and mother Smt. Ramkali who are the defendants in respect of house bearing no. 18, Masihgarh, New Delhi-110025 constructed on a plot of 600 sq. yards of which the father Late Sh. Kishan Lal was the exclusive owner and in possession.

2. The plaintiff and the defendants were married and happily living together with their respective families. The case of the plaintiff is that in the year 1995, plaintiff and defendant nos. 1 to 3 by mutual agreement had occupied one portion each of the property in question without their being any actual and final division of the property. By virtue of this Arrangement, defendant no. 4 sister and defendant no. 5 mother did not get the possession of any part of the property, though as per the law of inheritance and succession, they were entitled to a share in the property being Class I legal heirs. Shri Kishan Lal during his lifetime had constructed two shops, in addition to the four shops that already existed on the outer side of the house for an additional income. The plaintiff and the three defendants kept one shop each. Two shops were retained by late Sh. Kishan Lal for his own sustenance and survival, which were later bequeathed by late Sh. Kishan Lal to his grandson, Khushal Singh Arya, son of the plaintiff as he was taking care of late Sh. Kishan Lal and defendant no. 5 during their lifetime. The plaintiff has asserted that defendant no. 5, the mother, lived with Sh. Khushal Arya, son of the plaintiff all through her life.

3. It is further asserted that as per the Family Arrangement, the gali which was 6 feet wide and about 80 feet in length which connected to the main road, had the main gates of the portions of plaintiff and defendant nos. 2, 3 and 4, opening in it for free ingress and egress. The defendant no. 1 had gotten more area in his share, and thus agreed not to use the gali and had a separate entry to his portion. The plaintiff demolished his shop in order to get more access to the main road, and to have sufficient parking for the ground floor.

4. It is asserted that pursuant to this Arrangement between the parties, they have been in occupation of their respective shares for about 16 years. Somewhere in May, 2011, defendant no.1 without informing other parties and without obtaining their consent, arbitrarily, malafidely and to the prejudice of the interest of the plaintiff and other defendants, had entered into a Collaboration Agreement with one builder to develop and convert his part of portion into a multi-storey building. The defendant no.1 indented to construct the market on the lower floors and flats on the upper floors with an open balcony and windows opening towards the gali which was otherwise agreed to in exclusive use of plaintiff and defendant nos. 2 and 3.

5. Being aggrieved by this illegal and unauthorized construction undertaken by defendant no. 1, a Civil Suit for Permanent Injunction was filed in the Court of Senior Civil Judge, Saket Courts, New Delhi. The defendant no. 1 appeared and did not deny the factum of construction undertaken by him, but asserted falsely and wrongly that all the defendants were owners of their respective shares as the property had been partitioned and divided by their father during his lifetime, and each of them were in possession of their separate portion. A General Power of Attorney was executed in favour of defendant no. 1 and was witnessed by the son of the plaintiff. However, mere perusal of GPA reveals that it is a fabricated document. The learned Civil Judge declined to grant interim injunction by observing that there appeared to be specific demarcation of the property and it was not construed to be in joint possession.

6. An Appeal bearing MCA No. 45