Rameshwar Dayal Gupta vs Mange Ram Gupta

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Sanjeev Narula, J",,,

I.A. 12997/2018 (application on behalf of the Plaintiff under Order 12 Rule 6 CPC),,,

By way of the present application, the Plaintiff seeks a preliminary decree on the basis of the admissions made by the Defendant.",,,

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.",,,

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 â€" 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.",,,

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.,,,

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.,,,

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 successful bid before the Delhi Development Authority (hereinafter referred to as „DDA‟) and this itself does not confer ownership,,,

of the suit property in the Plaintiff. Further, Plaintiff has also not shared the cost of the land, construction, ground rent, property taxes etc and",,,

expenses towards the maintenance of the suit property. However, the Defendant has incurred substantial expenses towards the same and the Plaintiff",,,

is liable to pay an amount of Rs. 22,87,239/-, for which a counter claim has been filed by the Defendant. It is also averred that by virtue of the",,,

aforenoted MoU, the suit property has already been partitioned and both the Plaintiff and Defendant continue to reside in the portions demarcated in",,,

Clause 6 of the MoU dated 8th May 2014 without any interference.,,,

The Court has heard the learned counsels for the parties at sufficient length. From the reading of the written statement and the reply to the,,,

application, it undoubtedly emerges that the suit property is in joint names of Plaintiff and Defendant. The suit property was purchased under an",,,

auction held by DDA for residential plots under the scheme for “Large Scale Acquisition, Development and Disposal of Land in Delhiâ€. After the",,,

payment of the premium amount, the balance installments and on completion of other formalities, the perpetual lease deed dated 31st December 1968",,,

comprising the suit property was executed jointly in favour of the Plaintiff and Defendant as lessees. In this manner, Plaintiff and Defendant became",,,

the joint owners of the suit property. From the reading of the written statement, it also emanates that there is no dispute between the parties that",,,

earlier a portion of the suit property was in occupation of the other brothers of the parties and that suits had been filed for recovery of possession of,,,

the said portion of the suit property. In the said suits, compromise decree/judgment dated 23rd November 2017 were passed whereby Defendant Nos.",,,

3 to 5, legal heirs of deceased, Shri Surinder Gupta and Defendant No. 2 agreed to vacate the portion of the suit property occupied by them.",,,

Defendant also does not deny that an MoU dated 8th May 2014 was executed, wherein it was agreed that both of the parties would cooperate in their",,,

efforts to legally evict the remaining Defendants i.e. Defendant Nos. 2 to 5 and also to amicably partition the property by physical division or other,,,

means once the eviction proceedings were successfully concluded. The MoU dated 8th May 2014, inter alia reads as under:",,,

“1. This document is an understanding, now reduced to writing for future records and reference to the parties and their legal heirs.",,,

First Party is Mr. Mange Ram Gupta S/o late Sh Shambhu Dayal Gupta and Second Party is Mr. Rameshawasr Dayal Gupta S/o late Sh Shambhu,,,

Dayal Gupta (collectively referred by parties hereinafter).,,,

Both the parties as already agreed and reiterate again that they have equal shareholding in the property at B-7/33, Safdarjung Enclave, land",,,

admeasuring 425.5 SqYrds and built up portions i.e., Ground Floor, First Floor, Second Floor, and common areas, such as driveway on right hand side,",,,

RCC water tank on ground floor etc. That both the parties contributed equal amount of money in purchasing the land and thereafter developing the,,,

property.,,,

Both the parties willingly and without any coercion confirm that they will never contest and dispute their equal share in any court of law and decide,,,

mutually to provide privacy, use of all the facilities and enjoyment of mutual rights to each other of the above property and also undisputedly agree that",,,

Relevant/Corresponding paragraph of the Plaint,Admissions made in the written statement,,

Para 7: Consequently, bid for leasehold rights in the suit property was

placed in the name of Plaintiff alone, who was declared successful

bidder for the land comprising suit property by the DDA vide

communication dated 25.10.1964 for a premium of Rs. 21,000/-.","Para 4: That the contents of para no. 6-7 are a matter of record and do

not require any comments.",,

Para 9: That after payment of the premium and completion of other

formalities. Perpetual Lease Deed dated 31.12.1968 for the land

admeasuring approximately 425 square yards comprising the suit

property, was executed by the President of India (acting as Lessor)

jointly in favour of the Plaintiff and Defendant No. 1 (as Lessees), on

the usual terms and conditions. In this manner, Plaintiff and Defendant

No. 1 became joint owners of the suit property, which is their self

acquired property purchased out of their own funds, and is not in any

manner a joint or family property.

Para 10: Possession of the suit property was also handed over by DDA

to Plaintiff and Defendant No. 1 on 31.12.1968, contemporaneous with

execution of the Perpetual Lease Deed, vide Letter of Possession o

even date.","Para 5: That the contents of para no. 9 and 10 are a matter of record

however it is denied that the President of India executed the Lease

Deed in favour of the Plaintiff and Defendant No.l jointly but the fact is

that the said Lease Deed was executed by the Under Secretary on

behalf of Lieutenant Governor of Delhi and not by the President of

India. The aforementioned facts shows that the plaintiff is unaware

about the execution of Lease Deed and further reflects that he has not

taken any interest or efforts towards the allotment of said property and

further during the time of even construction.

f",,

Para 13: The Plaintiff and Defendant No.1 applied for and obtaine

water and electricity connections for the suit property in their joint

names in 1971. Plaintiff also has had a landline telephone connection in

his portion of the suit property since 1977. Suit Property also stands

mutated in joint names of Plaintiff and Defendant No. 1 in records o

Municipal Corporation of Delhi.","dPara 8: That the contents of para no. 13 are wrong and denied unless

specifically admitted hereinafter. It is denied to the extent that the

plaintiff had landline telephone connection in his alleged portion of the

suit property since 1977. It is further submitted that since the allotment

fof suit property was in the joint names therefore the mutation was done

in the joint names of plaintiff and Defendant No. l in the records of

Municipal Corporation of Delhi. Even at this juncture the plaintiff did

not pay the property tax regularly with the Municipal Corporation of

Delhi. The copies of payment of house tax by the defendant no.l is

annexed with the written statement.",,

Para 20: Consequently, although they were reluctant to take legal action

against family members. Plaintiff and Defendant No. 1 were

constrained to initiate proceedings for eviction of the said Defendant

Nos. 2-5.

Para 21: Defendant No. 1 issued legal notices to Defendant No. 2 an

Defendant Nos. 3-5 calling upon them to hand over possession of","Para 11: That the contents of para no. 20 to 26 are wrong and denied.

It is submitted that the proceedings for eviction of Defendant Nos. 2 to

5 were initiated by Defendant No. 1 alone. The entire efforts were

done by Defendant No. 1 in getting the decree/judgment in his favour

and nothing has been done by the plaintiff. The aforementioned facts

dcan be ascertained from the contents of notice dated 09.11.2006 sent

by the Defendant No. 1 and also from the pleadings of the plaint filed",,

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,"portions of the suit property under their occupation. Although the Legal

Notices were sent only in the name of Defendant No. 1, they were sent

with the knowledge and consent of Plaintiff, as is clear from perusal of

Memorandum of Understanding dated 08.05.2014 by which Plaintiff

authorised Defendant No. 1 to take all necessary actions to retrieve

possession of the suit property from other Defendants on his behalf.

Para 22: Since Defendant Nos. 2-5 did not hand over possession to

Plaintiff and Defendant No. 1 despite receipt of legal notices

Defendant No. 1 filed two Civil Suits for possession, injunction and

recovery of misuse charges/damages on 30.05.2007 &31.05.2007

against Defendant No. 2 and Defendant Nos. 3-5 respectively. These

suits were instituted and prosecuted in the Tis Hazari District &

Sessions Court, New Delhi.

Para 23: While the Plaintiff was not arrayed as a party in the

abovementioned Civil Suits, as stated above he gave permission to

Defendant No. 1 to do so and had assured Defendant No. 1 that he

would provide assistance in any manner required. In this regard, it is

necessary to submit that in order to formalise the understanding

between Plaintiff and Defendant No. 1 that Defendant No. 1 was

prosecuting the two civil suits in Tis Hazari District Court against

remaining Defendants on behalf of both co-owners, and also to lay

down an agreed methodology to clearly demarcate the respective

portions of the composite suit property that would fall to their respective

shares. Plaintiff and Defendant No. 1 executed a joint Memorandum o

Understanding (hereinafter referred to as ""Memorandum"") dated

08.05.2014 whereby they agreed to co-operate in the effort to legally

evict remaining Defendants and also to amicably partition the property

by physical division or other means, once the eviction proceedings were

successfully concluded.

Para 24: It is further necessary to state that the Defendant No. 1 has

unequivocally admitted in his plaints and affidavits towards evidence in

lieu of examination-in-chief in both abovementioned civil suits that the

suit property is owned jointly by Plaintiff and Defendant No. 1, each

having 50% undivided share therein. The said Suits are entirely

premised on the fact that the other two brothers, namely Defendant No.

2 and Late Sh. Surinder Kumar Gupta (through his legal heirs

Defendant Nos. 3-5), have no right, title or interest, which vests

exclusively in Plaintiff and Defendant No. 1. Unfortunately, as will be

subsequently averred. Defendant No. 1 is now resiling from this stand

taken by him on affidavit in the previous suits, and is denying title of the

Plaintiff, for reasons best known to him, leading to the filing of the

present suit.

Para 25: It is further pertinent to mention that in the course of

proceedings in the earlier abovementioned Civil Suits, Defendant Nos

2-5, inter alia, sought to raise a spurious defence that the suits were not

maintainable by a single co-owner and did not have the support of the

Plaintiff, who as stated above, had not been arrayed as a party in those

suits. To answer these frivolous objections, and in discharge of his

responsibilities undertaken vide Memorandum dated 08.05.2014,

Plaintiff herein tendered evidence in both aforesaid Civil Suits affirming

his 50% undivided ownership of the suit property and fully supporting

prayer for eviction of the Defendant Nos. 2 to 5. Plaintiff herein also

entered the witness box as a Plaintiff's Witness on behalf of Defendant

No. 1 herein, where he was cross examined by counsel for Defendant

Nos. 2 to 5, however he steadfastly deposed the same facts as averred

in the present plaint and affirmed the same under cross examination.

Para 26: That both aforesaid Civil Suits were finally argued and

reserved for judgment. However, at the stage of passing of judgment.

Defendant Nos. 2 to 5 chose to settle the two cases. Vide order dated

23.11.2017 passed by the Court of Sh. Harish Kumar, ADJ-1

(Central), Tis Hazari District Court, parties agreed that Decrees for

Possession of the portions of the suit property occupied by Defendant

Nos. 2 to 5 be passed in favour of the Defendant No. 1, who was the

sole Plaintiff in those suits. It was further agreed that Defendant No. 2

would hand over possession of portion of Ground Floor occupied by him

on or before 23.05.2018, while Defendant Nos. 3 to 5 would hand over

possession of second floor occupied by them on or before 23.08.2018,

failing which they would be liable to pay damages of Rs. 30,000/- per

month for illegal use and occupation, and the decrees would become

executable. Needless to say, while the decree for possession was

passed in favour of the Defendant No. 1 alone as he was the sole

Plaintiff in those suits, the possession of the same would be accepted by","by the Defendant No. 1. It is matter of trial court records of the suits

filed by the Defendant No. 1 that the Defendant No. 2 to 5 therein took

objection that the plaintiff was not party to said suit and fact of the

matter is that the plaintiff refused to become the co-plaintiff in the said

suit just to escape the burden of attending the day to day hearings in the

said suits and further to escape the burden of engaging of advocates

and financial burden & collection of evidences in support of said suits.

The Defendant No. 1 has made expenses towards the filing of suit and

,handling the suit before the District Court. The entire professional fees

of advocates appeared from time 1 *0 to time had been paid by the

Defendant No. 1 and plaintiff never paid or contributed a single penny

in payment of professional fees etc. The Defendant No.l on all the

occasions appeared in the suits and remained personally present in all

the hearing of such suits. It is further submitted there were in totality 76

hearings of the suit before the trial court and Defendant No.l personally

attended along with his son on each and every date of such hearings.

The plaintiff appeared in the suit only once that too as a witness to

prove the pleadings of the suit. It is submitted that the said suits were

filed in the year 2007 and the MOU was entered in the year 2014 so it

is not possible for the plaintiff by virtue of said MOU dated 08.05.2014

to authorise the Defendant No.l to take all necessary actions to retrieve

the possession of suit property from the Defendant No. 2 to 5 on his

behalf. It is further wrong and denied that the legal notice to vacate the

suit premises was given with the knowledge and consent of the plaintiff.

It is submitted that the plaintiff from the inception of Lease Deed in the

fyear 1964 remained as stranger in the suit property and never ever

participated or contributed in any manner whatsoever in respect of the

suit property. The MOU entered into between the Plaintiff an

Defendant No.l was nothing but the agreement to partition the property

and modalities with respect to the portions to be evicted after the

disposal of suits pending before the trial court. It is matter of fact that

the plaintiff has intentionally and mischievously failed to honour some of

the clauses i.e. clause 5 & 7 of said MOU till date and it is Defendan

No.l who single handedly took entire initiative for maintenance and up

keep of the common areas and other make repairs in the suit property.

It is further matter of record of trial court proceedings in the two suits

that the plaintiff refused to became the co-plaintiff in that suit and due

to which the proceedings were delayed and the plaintiff only after

partitioning the suit property in the manner as provided in MOU dated

08.05.2014 agreed to help the Defendant No.1 in becoming one of the

witness to verify and depose the facts mentioned in the said suits. That

clause 9 of the said MOU itself reflect the attitude and conduct of the

plaintiff which specifically states that ''That it is agreed that second

party will fully cooperate and pursue the court proceedings alongwith

the first party is already initiated for getting evacuated the disputed

portion under possession of Rajinder Prasad Gupta and Mrs. Alka

Gupta and render his evidence as and when asked for by the first party.

.Both the parties will share equal expenses on professional fees, court

fees and other charges etc."" Thus the aforementioned clause clearly

reflects that the plaintiff was more interested in getting the partition of

the suit property then to contest the suits filed before the Trial Court.

Thus once the partition is already affected and it was mutually agreed

by virtue of clause 4 of the MOU that both the parties willingly and

without any coercion confirm that they will never contest and dispute

their equal share in any court of law but the plaintiff has filed the instant

suit against the intent and spirit of said MOU and more specifically be

stated as partition deed. It is submitted that the contents of preliminary

objections may be read as reply to the contents of paras under reply

and the same are not repeated herein for the sake of brevity.

3","d

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him as a trustee on behalf of both coowners including the Plaintiff

herein, as that had been his consistent stand throughout the suit.",,,

,"Para 12: It is wrong to say that Defendant No. 1 claimed to be the

owner of the entire suit property.",,