A suit for injunction regarding property rights can proceed despite prior partition decrees, as long as the issues are distinct.

JUDGMENT

Prathiba M. Singh, J. (Oral)--This hearing has been done in physical Court. Hybrid mode is permitted in cases where permission is being sought from the Court.

CM APPL. 46581/2021 (for exemption)

2. Allowed, subject to all just exceptions. Application is disposed of.

CRP 101/2021 & CM APPLs. 46582/2021 & 46583/2021

3. The present petition challenges the impugned order dated 30th November, 2021 in CS No.807/17 titled Pavan Arya v. Ramesh Arya. Vide said order, the application under Order VII Rule 11 CPC, filed by the Defendant/Petitioner (hereinafter "Petitioner"), was dismissed. This litigation is between two brothers, Pavan Arya and Ramesh Arya, and the suit herein was instituted by the Plaintiff/Respondent (hereinafter "Respondent") in 2017 concerning the same property bearing No.A-135, Priyadarshini Vihar, New Delhi (hereinafter "suit property").

4. Between the members of the Arya family, there was another suit for partition filed in 2018, by the Petitioner. This partition suit which was filed before the Delhi High Court was decreed vide order dated 5th September, 2019 in CS(OS) 520/2018 titled Ramesh Arya v. Pawan Arya & Ors., in the following terms:

"Thus, a preliminary decree for partition of property No.A-135, Priyadarshini Vihar, New Delhi is passed, declaring the plaintiff Ramesh Arya, defendant no.1 Pavan Arya, defendant no.2 Satish Arya and defendant no.7. Anju Nijhawan to be having 1/5th undivided share each therein and the defendants no.3 Raj Kumari Arya, defendant no.4 Sunil Arya, defendant no.5 Saurabh Arya and defendant no.6 Sonali Arora together having remaining 1/5th undivided share in the property.

38. Preliminary decree for partition be drawn up.

39. While the counsel for the plaintiff and the counsel for the defendants no.1,2,6 and 7 on enquiry state that the property is not partible by metes and bounds, the counsel for the defendants no.3 to 5 states that he will have to study the plan to answer the question.

40. Considering the size and construction of the property and the number of shareholders in the property, the property is not found to be partible by metes and bounds and it is not deemed necessary to issue a commission or to await the response of the defendants no. 3 to 5 to the query made.

41. The counsel, when appears in the Court, ought to have been ready with the said aspect in view of the admitted position as emerged.

42. Thus, a final decree for partition of property No.A-135, Priyadarshini Vihar, New Delhi is also passed, of sale thereof and of distribution of sale proceeds amongst the parties as per their shares in the preliminary decree for partition.

43. It is however made clear that the parties shall be entitled to make inter se bids, with the party/s bidding the highest, acquiring the share/s of other/s against payment of consideration, execution of requisite documents and delivery of possession.

44. If any of the party/s fails to deliver possession of the portion of the property in his/her possession/occupation to the purchaser or to the highest bidder, such party/s shall be liable to be dispossessed from the property as if in pursuance to a decree for recovery of possession of immovable property.

45. Till the execution of the decree, all the parties are restrained from alienating, encumbering or parting with possession of and/or creating any third party right in and/or from making any additions, alterations, constructions, demolitions in the property.

46. The parties to bear their own costs.

47. Final decree for partition be drawn up."

5. The suit out of which the present petition arises, is a suit for permanent and mandatory injunction, filed in 2017, prior to the suit