$~ * IN THE HIGH COURT OF DELHI AT NEW DELHI RESERVED ON : December 16, 2014 DECIDED ON : January 30, 2015 + CS(OS) 624/2008 HARI RAM GUPTA & ORS. Through : ..... Plaintiffs Mr.Ankur Gosain, Advocate. VERSUS MUNICIPAL CORPORATION OF DELHI & ANR. ..... Defendants Through : Mr.Rajinder Mathur, Advocate for Defendant No.2 CORAM: HON’BLE MR. JUSTICE S.P.GARG S.P.GARG, J.
IA Nos. 613/2012 (u/O XII R6CPC) 1. The plaintiffs have instituted the instant suit for possession, mandatory and permanent injunctions against the defendants. Defendant No.3 is a proforma party. The relief sought is primarily against defendant No.2. It is averred in the plaint that a portion measuring approximate 127 sq.yards in property bearing No.F-144, Main Bazaar, Laxmi Nagar, Delhi was purchased by the plaintiffs No.1 & 2 along with defendant No.3 from one Smt.Parbati Devi vide an Agreement dated 28.05.1992 and other documents. The said portion has been shown in ‘blue’ colour in the site plan attached. Smt.Parbati Devi, during her lifetime sold the remaining portion of the said property measuring approximate 85 sq.yards to defendant No.2 on 28.05.1992. The defendant No.2 in turn sold a portion of the said 85 sq.yards property i.e. approximately 31.5 sq.yards (i.e. 4.5 ft. x 63 ft.) shown in ‘yellow’ colour in the site plan to the plaintiffs No.1, 2 and defendant No.3 vide agreement deed dated 28.05.1992 and other documents. The defendant No.3 sold his 1/3rd undivided share in the said 127 sq.yards of land as well as in the 31.5 sq.yards of land to the plaintiff No.3 on 20.07.2006 vide an Agreement to Sell and other documents. The plaintiffs, thus, became owner of 158.5 sq.yards out of the total 212 sq.yards of the property in question. Remaining portion of 53.5 sq.yards belongs to the defendant No.2. The portion shown in ‘blue’ and ‘yellow’ colours are owned by the plaintiffs and the portion in red colour, in the site plan attached, is owned by defendant No.2.
2. In the written statement, defendant No.2 contested the claim of the plaintiffs and narrated his own version regarding purchase of the property in question from Smt.Parbati Devi for amalgamation to develop the entire land as a market. Both the parties were known to each other. The defendant No.2 alleged that on 21.03.1992, an MOU was entered into between the plaintiff No.1 and defendant No.2 in consultation with plaintiffs No.2 & 3 and it was mutually proposed that plaintiff No.1 may purchase from Smt.Parbati Devi the rest of the property measuring 127 sq.yards to develop the entire property as a market. Agreement dated 16.04.1992 was executed containing the terms and conditions of the said MOU between the plaintiff No.1 and defendant No.2. It is further alleged that on 28.05.1992 on the asking of the plaintiff No.1 certain documents i.e. Agreement to Sell, GPA, Will, receipt for ` 50,000/- were executed by defendant No.2 in respect of 31.5 sq.yards out of his portion of the said property in favour of the plaintiffs No.1 and 2 and defendant No.3. The plaintiff No.1 assured the defendant No.2 that he would also execute similar documents in his favour with a view to amalgamate both the portion of the said property No.F-144, Main Bazaar, Laxmi Nagar, Delhi for the purpose of developing it into a market. He further assured him that the said set of documents were not to be acted upon individually. No consideration was passed from the plaintiff No.1 to defendant No.2. Simultaneously, plaintiff No.1 also executed an Agreement to Sell, GPA, Will, etc. dated 28.05.1992 in his favour in respect of 43.33 sq.yards representing his portion in his favour. Will dated 28.05.1992 executed by plaintiff No.1 in favour of defendant No.2 was got registered. Pursuant to the Agreement dated 16.04.1992, the plaintiff No.1 started incurring expenditure for preparing the formalities for commencement of the construction w.e.f. 19.11.1992. In March, 1993, defendant No.1/MCD sealed the said building. The building work remained suspended till 2006. On the suggestion of plaintiff No.1, in 2006, the defendant No.2 agreed to divide the property in equal shares. Since then the defendant No.2 is in possession of his half portion measuring 15” x 63” (southern side).
3. Various orders on different interim applications were passed after the institution of the suit. The suit reached to the stage for settlement of the issues. During the proceedings, the Court also appointed Local Commissioner by an order dated 31.07.2009 to visit the suit property. The report of the Local Commissioner is on record.
4. IA No.14809/2008 (under Order XII Rule 6 read with Section 151 CPC) was filed on behalf of the plaintiffs to pass a judgment and decree against the defendant No.2 in terms of prayers (a) and (b) of the plaint and disposed of by an order dated 6.4.2010. The order records that the learned counsel for the plaintiffs restricted his prayer for a decree of possession in the captioned application only to the extent of area marked in ‘blue’ colour. By the detailed order, suit of the plaintiff was decreed to the extent of the portion marked in ‘blue’ colour as indicated in the site plan appended at page 63 of the documents. The defendant No.2 challenged the order unsuccessfully in RFA (OS) No.48/2010. By an order dated 27.08.2010, the Division Bench of this Court dismissed the appeal. Special Leave Petition was also dismissed by the Supreme Court vide order dated 22.11.2010.
5. Subsequently, the defendant No.2 amended the written statement which is on record.
6. The instant application almost on similar facts has been filed on 11.01.2012 to decree the suit for possession regarding the portion shown ‘yellow’ in the site plan attached. The application is contested by the defendant No.2.
7. I have heard the learned counsel for the defendant No.2 and have examined the written notes filed by the plaintiffs and defendant No.2. The plaintiffs have not given any plausible reasons to move the instant application under Order XII Rule 6 CPC when in the earlier IA No.14809/2008 decided by an order dated 06.04.2010, the learned counsel for the plaintiffs restricted his prayer for decree of possession in the portion marked in ‘blue’ colour only. The observations of the Division Bench of this Court in RFA (OS) No.48/2010 decided on 27.08.2010 are relevant to note :
“7. Indubitably admissions can be inferred from the Written Statement reading the statements as an integrated whole and not truncated and distorted parts. Conscious of the fact that the admission by the Defendant has to be unequivocal and unambiguous, we are required to find out whether the preliminary objections raised by the Appellant/Defendant, go to the very root of the suit and are likely to non suit the Respondents/Plaintiffs if these were found against the Plaintiffs, resulting in a decree under Order XII Rule 6 CPC not being passed in their favour. In our view the averment that the two portions were to be amalgamated for the purpose of constructing a market do not go to the root of the matter disentitling the Respondent Nos. 1 and 2 to the ownership and possession of (18‟x 63‟) i.e.127 sq. yds. portion marked as blue. The learned Single Judge has passed no decree qua the yellow portion and rightly so as the Appellant does not admit the ownership and possession thereof in favour of Respondent Nos.
1. In the present case as per the admission of the Appellant the MOU has not fructified. No claim has been made by the Appellant to enforce the MOU. Thus, the only option for the parties is to deal with their portions of the property independently.
8. Great emphasis has been laid by the learned counsel for the Appellant on the reliance of the learned Single Judge in the impugned Order on its earlier Order dated 31st July, 2009 recording the admission of the Appellant. We find no infirmity in the same. In fact, the Order dated 31st July, 2009 was passed appointing a Local Commissioner on the Application of the Respondent Nos. 1 to 3 under Order XII Rule 6 CPC. In our opinion, the judgments relied upon by the learned counsel for the Appellant have no relevance as in the present case there is a clear admission of the Appellant with regard to the ownership and possession of 127 sq. yds. portion of the plot being with the Respondent Nos. 1, 2 and 5 and the dispute if any is to the portion marked yellow (4½‟ x 63‟) and the purpose for which the property was purchased that is to amalgamate the two portions and construct a market thereon by sharing in equal proportions. All these three averments are clearly severable and independent of each other.”
(Emphasis supplied) 8. To claim relief under Order XII Rule 6, there must be clear and unequivocal admission in the written statement. Written statement is to be taken in its entirety and the plaintiffs cannot be permitted to rely on a part of the alleged admission ignoring the other. The defendant No.2 has raised number of questions/pleas which go to the very root of the matter and are to be determined after affording opportunity to the parties to adduce evidence. The qualifying statement of the defendant No.2 does not fall in the category of admissions to attract Order XII Rule 6 in the instant case.
9. In the light of above discussion, I find no merit in the IA and it is dismissed. CS(OS) 624/2008 List before the Roster Bench on 6.2.2015. (S.P.GARG) JUDGE JANUARY30 2015 / tr