Suit for Possession--Seeking of possession of particular floor/area in a property which cannot be partitioned without partition of title is permissible

JUDGMENT :

Amol Rattan Singh, J.

These two appeals arise out of two suits consolidated and heard together from the stage of the trial itself, they having been filed by the plaintiff in one against the plaintiff in the other, qua the same property; the parties to the lis being siblings, i.e. one brother and two sisters.

The brother, i.e. Arvind Kapoor, is seen to have instituted his suit first, on 14.03.2003, impleading his two sisters as defendants therein, with one sister, i.e. Sangeeta Chopra (nee Kapoor), having instituted her suit on 27.04.2004, impleading Arvind Kapoor and the other sibling, i.e. Kumud Kapoor, as defendants.

The bone of contention, as is subject matter of the lis, is the property of the parties left behind by their mother who died on 10.02.2000, the main dispute being with regard to the house left by her, i.e. house no.2174, Sector 44-C, Chandigarh, measuring 8 marlas (about 200 non-standard' sq. yards).

However, in Arvind Kapoors' suit, he also sought a 1/3rd share in the bank accounts and jewellery of the mother; with him further seeking a declaration that the family settlement relied upon by his sisters, dated 13.06.2000, was obtained by fraud and that he had been discriminated in the distribution of property therein, with such settlement being null & void and not binding on him.

2. As already stated, both the suits were consolidated and heard together, with the suit filed by the sister, i.e. by Sangeeta Chopra, taken to be the 'main suit' and the evidence led in that suit having been accepted as the evidence in both.

Vide her suit, Sangeeta Chopra sought a declaration that she is the owner of the first floor of the said house and that she be given possession of the said property alongwith mesne profits/damages, as the brother, i.e. Arvind Kapoor, had illegally occupied it since November 2003. The other sister, i.e. Kumud Kapoor who was impleaded as a defendant in both the suits, filed a written statement in each, conceding the claim of Sangeeta Chopra on the basis of the aforementioned family settlement dated 13.06.2000, which was shown to be a registered document.

3. The issues framed in the consolidated suits were as follows:-

"1. Whether the plaintiff is entitled to the declaration as prayed for? OPP

2. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP

3. Whether the plaintiff is entitled to recover the mesne profits/damages, if so, to what and at what rate? OPP

4. Whether the present suit is liable to be stayed under Section 10 CPC as alleged? OPD

5. Whether no cause of action arose to the plaintiff to file the present suit against the defendant as alleged? OPD

6. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction if so what is the exact valuation? OPD

7. Whether the settlement dated 13.06.2000 is a result of fraud, misrepresentation, null and void and is not binding on defendant No.1?

8. Whether the plaintiff is entitled to possession of 1st floor of house No.2174, Sector 44-C, Chandigarh? OPD

9. Whether the defendant No.1 is entitled to inherit 1/3rd share of House no.2174, Sector 44-C, Chandigarh? OPD1

10. Whether the defendant no.1 is entitled to permanent injunction restraining the plaintiff and defendant no.2 from interfering in the peaceful possession and enjoyment of defendant no.1 and from dispossessing forcibly without process of law? OPD1

11. Relief."

4. Subsequently, Sangeeta Chopra modified her claim by not seeking a declaration of ownership but only one seeking possessory rights of the first floor of the house, because as per the statutory provisions applicable (essentially the Punjab Capital (Development & Regulation) Act, 1952 and Rule 14 of the Chandigarh (Sales of Sites and Buildings) Rules 1960), fragmentation of any site or building was not permissible and therefore she could not legally seek ownership of a single floor.

5. To prove her claim, she examined, other than herself, a Junior Assistant from the office of the Estate O