$~11 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision :
4. h July, 2019 + CS (OS) 243/2019 NAMITA SHARMA & ANR. ..... Plaintiffs Through: Mr. Anshul Mittal and Mr. Harshit Advocates. Vashisht, (M:9899220567) Versus JAG MOHAN AHUJA & ORS. ..... Defendants Through: Counsel (attendance slip not given) CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J.
(Oral) I.As. 6600/2019 (u/O XXXIX Rules 1 & 2 CPC) & 8417/2019 (u/O XXXIX Rule 4 CPC) 1. Present suit has been preferred by the Plaintiffs namely Ms. Namita Sharma and Naval Khanna. The Plaintiffs are the children of Late Shri Daulat Ram Ahuja. The Plaintiffs seek permanent injunction and partition of two properties i.e. (a) E-285, Naraina Vihar, New Delhi-110028 admeasuring 300 sq. yards and (b) shop bearing No.6045, Gali Matke Wali, Sadar Bazar, Delhi.
2. Late Shri Daulat Ram Ahuja had a brother namely Mr. Jag Mohan Ahuja, who is Defendant No.1. The Plaintiffs themselves had three brothers namely Mr. Naveen Ahuja, Mr. Sunil Ahuja and Mr. Parveen Ahuja. Defendant No.1 is the uncle (chacha) of the Plaintiffs. Defendant No.2 is CS (OS) 243/2019 Page 1 of 5 the brother of the Plaintiffs. Defendant Nos.3-5 are family members of Shri Sunil Ahuja who is since deceased. Defendant Nos.6- 8 are family members of Shri Parveen Ahuja who is also since deceased. Defendant Nos.9-10 are the subsequent purchasers/builders, who have entered into a property development agreement with Defendant No.1.
3. The case of the Plaintiffs is that as per the Will of their grand mother namely Smt. Ram Pyari, the shop at Sadar Bazar was exclusively bequeathed in favour of their father. The residential house at Naraina, was purchased from the family business, run from the Sadar Bazar shop by the name M/s. Ram Chand Manak Chand. The said property was developed and all the family members resided therein. The residence was allotted in a DDA auction and was purchased by the grand mother Smt. Ram Pyari along with the father of the Plaintiffs namely Shri Daulat Ram Ahuja. Defendant No.1 was given a share in the said property.
4. Shri Daulat Ram Ahuja expired on 13th December, 1986 without any Will and thus left behind his wife, three sons and two daughters i.e. the Plaintiffs. Two brothers expired thereafter and on 8th March, 2006, Smt. Shakuntala Ahuja passed away. The Plaintiffs are married and sometime in May, 2018, they came to know that Defendant No.1 in collusion with other Defendants had entered into a property development agreement for re- construction of the residential property. Defendant No.1 has also paid various sums to the other Defendants to part with their shares in his favour and have thus executed a Deed of Declaration in favour of Defendant no.1. Two floors have, in fact, been sold in favour of Defendant Nos.9 & 10 and hence the present suit was filed seeking injunction and partition. CS (OS) 243/2019 Page 2 of 5 5. On 6th May, 2019, the following order was passed by this Court. “Issue notices in the application to the Defendants in respect of the residential property, if Defendant No.1 intends to sell any portion of the share in the residential property in Naraina Vihar, he shall seek prior permission of this Court. Insofar as the shop at Sadar Bazar is 11. concerned, status quo shall be maintained by all the parties as to title and possession, till the next date.” 6. An application under Order XXXIX Rule 4 CPC has been filed by Defendant No.1 on the ground that the Plaintiffs are guilty of concealment of material facts. It is submitted by ld. counsel for Defendant No.1 that the Naraina Vihar property is, in fact, a self-acquired property of Defendant No.1. This is evidenced by means of the perpetual lease deed dated 10th March, 1967 executed by the Delhi Administration. In fact, a conveyance deed dated 23rd April, 2002 has already been entered into and Defendant No.1 is, thus, the absolute owner of the said property. It is submitted that Shri Daulat Ram Ahuja i.e. father of the Plaintiffs was a witness to the perpetual lease. This fact was well within the knowledge of the Plaintiffs, who have deliberately concealed the same from this Court.
7. It is further submitted on behalf of Defendant No.1 that the property development agreement dated 6th April, 2019 has already been entered into by Defendant No.1. The payment to the other Defendants was merely because of the fact that other Defendants are the families of the nephews of Defendant No.1, who were residing in the said property. The same was not in recognition of any title in their favour but only out of love and affection by the uncle to his nephew’s families and the same cannot be construed as vesting any title in favour of other Defendants. CS (OS) 243/2019 Page 3 of 5 8. The application under Order XXXIX Rule 4 CPC was served in advance upon the ld. counsel for the Plaintiffs. However, the Plaintiffs did not appear. On 31st May, 2019 notice was issued through counsels. Even today, none appeared on behalf of the Plaintiffs in the first round, thereafter ld. counsel for the Defendant no.1 was asked to send a message to ld. counsel for the Plaintiffs and the matter was passed over, at which stage, ld. counsel for Plaintiffs put in appearance. He confirms that he has received an advance copy of the application and that he is ready to address submissions.
9. Parties have been heard. There is no doubt that the perpetual lease and the conveyance deed are in favour of Defendant No.1. As per Clause 13 of the property development agreement, Defendant No.1 is the sole and exclusive owner of built up Second Floor and Third Floor with exclusive terrace roof rights. Clause 13 is extracted herein below:-
"“That the First Part above named shall be the sole and exclusive owner of the built up Entire Second Floor, and Entire Third Floor, measuring 250.9 Sq Mts (each), with exclusive terrace roof rights, along with half share of parking at stilt are (below ground floor) out of freehold property bearing No.E-285, alongwith proportionate undivided, indivisible and impartiable ownership rights of the underneath land of the said property, with super structure, in Block E, situated at NARAINA VIHAR, New Delhi-110028” 10. As per the property development agreement entered into by Defendant No.1 with Defendant Nos.9 & 10, broadly, the upper ground floor and first floor have gone to the builder and second and third floors with roof rights have fallen to the share of Defendant No.1. In view of the fact that the other floors have been already sold to the builder and the Defendant CS (OS) 243/2019 Page 4 of 5 no.1, prima facie has a Perpetual lease and a Conveyance deed executed in his favour, it is clarified that Defendant No.1 shall stand restrained from creating any third party interest in respect of only his share in the suit property as per clause 13 i.e., Second floor and Third floor with terrace roof rights of the property bearing No.E-285, Naraina Vihar, New Delhi-110028. The possession of the property shall also not be parted with by Defendant No.1 without permission of this Court. This order shall, however, not hinder Defendant No.1 from renting/leasing out his share in the suit property.
11. Both the I.As. are disposed of accordingly. CS (OS) 243/2019 12. List before the Joint Registrar on the date already fixed i.e. 5th July, 2019 PRATHIBA M. SINGH JUDGE JULY04 2019/dk CS (OS) 243/2019 Page 5 of 5