JUDGMENT

Valmiki J. Mehta, J. (Oral)

C.M. No. 53698/2018 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

RFA No. 1027/2018 and C.M. No. 53697/2018 (stay)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 28.09.2018 by which the trial court has dismissed the suit for injunction, mesne profits etc. filed by the appellant/plaintiff. In the suit there were a total of four defendants. Respondent no.1/Defendant no.1 was the brother of the appellant/plaintiff. Respondent nos. 2 and 3/Defendant nos. 2 and 3 are the sisters of the appellant/plaintiff i.e. appellant/plaintiff and defendant nos.1 to 3 are brother and sisters. Defendant no. 4 in the suit was the purchaser of the suit property from defendant no. 1. The suit property is an LIG flat bearing no. BB-35C, Shalimar Bagh (West), Delhi. Respondent no. 5/Defendant no.5/Mr. Saleem Raj Usmani was deleted from the array of defendants in terms of the Order of the trial court dated 03.06.2008. Therefore, there remained only four defendants in the suit as stated above.

3. The facts of the case are that it was pleaded by the appellant/plaintiff that the suit property was purchased by her father for an amount of Rs.4,38,000/- and the Power of Attorney dated 07.04.1994 was accordingly executed by the seller Ms. Abha Mathur in favour of the father of the appellant/plaintiff, namely Late Mr. Bal Kishan Johar. It was pleaded that the father Late Mr. Bal Kishan Johar died intestate, and therefore, the suit property will be co-owned to the extent of 1/4th share each by the appellant/plaintiff and respondent no. 1-3/defendant nos. 1-3. Hence, the suit seeking partition etc. was filed.

4. Respondent no. 1/Defendant no.1 appeared in the suit, but after filing the written statement, he withdrew the same, as recorded in the Order of the trial court dated 21.05.2015. Respondent nos.2 and 3/defendant nos.2 and 3 were also proceeded ex-parte in the suit vide Order of the trial court dated 23.10.2010. The suit was mainly contested by the respondent no.4/defendant no.4 pleading that the suit property was not owned by the father/Late Mr. Bal Kishan Johar of the appellant/plaintiff and the respondent no. 1-3/defendant nos. 1-3, but the suit property was exclusively owned by the respondent no. 1/defendant no.1 in terms of the Documentation dated 07.04.1994 executed by the erstwhile owner Ms. Abha Mathur in favour of the respondent no.1/defendant no.1. This documentation included Agreement to Sell, Power of Attorney, Will, Affidavit etc. It was pleaded that the respondent no. 1/defendant no.1 had transferred the suit property to respondent no. 4/defendant no.4 in terms of the Agreement to Sell dated 08.05.2007 under which a consideration of Rs.2,00,000/- was paid to the respondent no.1/defendant no.1 by the respondent no.4/defendant no.4 and who had received the actual, physical, vacant possession of the suit property. The registered GPA was also executed by the respondent no.1/defendant no.1 in favour of the respondent no.4/defendant no.4 on the same date i.e. 08.05.2007. The suit was therefore prayed to be dismissed.

5. After the completion of pleadings, the trial court framed the following issues:

"1. Whether suit of plaintiff is bad for non-joinder and mis-joinder of necessary parties? OPD

2. Whether plaintiff has suppressed material facts or has not come with clean hands and is not entitled for relief as prayed for? OPD

3. Whether plaintiff is entitled for decree of declaration, partition, permanent and mandatory injunction, mesne-profits and damages as prayed for? OPP

4. Relief.

Additional issues