Madras High Court
Unknown vs Lal Chand Public Charitable Trust And ... on 22 December, 2010
Author: S.Rajeswaran
Bench: S.Rajeswaran
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22/12/2010 CORAM THE HON'BLE MR. JUSTICE S.RAJESWARAN O.A.Nos.439 and 470 of 2010 and A.Nos.4261 and 4262 of 2010, A.No.4794 of 2010 in C.S.No.398 of 2010 COMMON ORDER
O.A.No.439 of 2010 has been filed to grant an ad interim injunction restraining the respondents/defendants from putting up any unauthorised construction in the suit schedule mentioned property pending disposal of the above said suit.
2. O.A.No.470 of 2010 has been filed to grant an ad interim injunction restraining the respondents/defendants from alienating or encumbering over the suit schedule mentioned property pending disposal of the above said suit.
3. A.No.4261 of 2010 has been filed by the respondents/defendants to vacate the interim order dated 15.06.2010 granted in O.A.No.439 of 2010 in C.S.No.398 of 2010.
4. A.No.4262 of 2010 has been filed by the respondents/defendants to vacate the interim order dated 22.04.2010 granted in O.A.No.470 of 2010 in C.S.No.398 of 2010.
5. A.No.4794 of 2010 has been filed to pass a judgment and decree under XII Rule 6 C.P.C. Based on the admission made by the respondents/defendants in their reply notice dated 16.06.2009.
6. For the sake of convenience the parties are referred to as per their ranking in the suit.
7. The plaintiff filed the above suit for the following reliefs
(i)By partitioning the suit schedule mentioned property by metes and bounds by allotting separate possession of 1/5th share to the plaintiff herein;
(ii)By appointing an Advocate Commissioner to partition the suit property by metes and bounds;
(iii)By granting a permanent injunction restraining the defendants herein from alienating or encumbering over the suit schedule mentioned properties;
(iv)By directing the defendants to render true and correct account of income derived from the Schedule mentioned properties;
8. The plaintiff and defendants 2 to 4 are brothers and sisters. The first defendant is the mother of the plaintiff. Their father purchased the suit schedule property in the year 1973 out of his own income under a Registered Sale Deed dated 15.06.1973. the plaintiff being the eldest son contributed to a considerable extent in developing the suit property. The plaintiff's father died intestate on 21.03.1991 at Chennai leaving behind the plaintiff and the defendants as surviving legal heirs. The plaintiff was taking care of the joint family expenses. The compassionate appointment given by the Southern Railway was also relinquished by the plaintiff, in favour of his brother K.Ramu. After the father's death, the property of the father devolved upon equally among the plaintiff and the defendants and the plaintiff is entitled to an undivided 1/5th share in the suit schedule property. On seeing the attitude of the defendants, the plaintiff sought for partition of the property. But, the defendants were evading the same. On 03.06.2009, a lawyer notice was issued by the plaintiff to the defendants for partition of the suit property. Though the said notice was replied by the defendants to call for a meeting, they were not ready for any talks thereafter. The plaintiff sent a remined on 26.09.2009. However, during first week of April 2010, the defendants have started putting up unauthorised constructions in the suit property. They are also making arrangement to alienate and encumber the suit property. Hence, the above suit has been filed for the aforesaid prayer by the plaintiff.
9. Along with the suit the plaintiff filed O.A.No.439 of 2010 for an order of interim injunction restraining the defendants from putting up any unauthorised construction in the suit schedule property.
10. This Court on 15.06.2010 passed an order of status quo in respect of putting up further construction as it was represented that the construction was already constructed in respect of the portions in which the defendants are residing.
11. The plaintiff has also filed O.A.No.470 of 2010 for an order of interim injunction restraining the defendants from alienating or encumbering the suit schedule property. This Court on 22.04.2010 after hearing the learned counsel for the defendants recorded his submissions that he would advise the defendants not to alienate the suit schedule property. The recording of the undertaking by the learned counsel still holds good.
12. The defendants entered appearance and filed A.No.4261 of 2010 to vacate the interim order dated 15.06.2010 granted in O.A.No.439 of 2010 and filed A.No.4262 of 2010 to vacate the interim order dated 22.04.2010 granted in O.A.No.470 of 2010.
13. In the counter affidavit filed by the defendants in support of the vacate injunction applications, the first defendant/mother has stated that as the building is an old one it requires certain additional construction and further being an old lady she needed an additional room with a toilet on the terrace. However, she stated that at this point of time there was no necessity to sell the suit property and the interim application has been filed on a mere apprehension.
14. When all these four applications are pending the plaintiff filed A.No.4794 of 2010 under Order 12 Rule 6 CPC to pass a Judgment and Decree based on the admission made by the defendants in their reply notice dated 16.06.2009.
15. In the affidavit filed in support of this application, the plaintiff relied upon the reply notice sent by the defendants to the plaintiff's notice dated 03.06.2009 wherein it was stated that they are ready and willing to give the plaintiff 1/5th share in the suit schedule property.
16. This was resisted by the defendants by filing a counter wherein it was stated that the first defendant was sentimentally attached to the property and she did not have any other place to live. It is further stated that rendering accounts does not arise and as such triable disputed questions of fact are involved in the suit.
17. I have heard the learned counsel appearing for the applicant/plaintiff and the learned counsel appearing for the defendants. I have also gone through the documents available on record.
18. The learned counsel for the plaintiff submits that the defendants have clearly admitted the share of the plaintiff in the suit schedule property and therefore he need not go through the cumbersome procedures of trial and he is entitled to get a speedy justice under Order 12 Rule 6 CPC. In support of his submissions the learned counsel very much relied on the judgment of the Hon'ble Supreme Court reported in 2010 (4) SCC 753 (Kapahi and others vs. Lal Chand Public Charitable Trust and another).
19. Per contra the learned counsel for the defendants pleads that the plaintiff old mother is residing in the property and her sentiments should be respected by the plaintiff and could seek for partition only after her demise. On merits, he submits that as a mother she can maintain a claim of maintenance against the plaintiff and there are enough statutes under which she can proceed against for her maintenance and protection. He further urges that the remedy contemplated under Order 12 Rule 6 CPC is only discretionary and not mandatory and considering the plight of first defendant this Court should refuse to exercise the discretion in favour of the plaintiff. The learned counsel further points out that prayer (iv) in paragraph 12 of the plaint is to direct the dependents to render true and correct account of income derived from the properties and this claim of income is very much disputed and therefore a full trial should be conducted by this Court instead of passing a decree under Order 12 Rule 6 CPC. In support of his submissions he relied on three judgments which are as follows:
1.2010 (2) SCC 77 (Narendra Kante v. Anuradha Kante and others)
2.AIR 2004 ORISSA 152 (Lalita Sahoo and others vs. Rania Das and others) 3.2007 (97) DRJ 687 (Express Towers Pvt. Ltd. and another vs. Mohan Singh and others)
20. I have considered rival contentions carefully with regard to facts and citations.
21. The case of the plaintiff is that the suit schedule property is the self acquired property of his father who died intestate on 21.03.1991. Therefore he along with the defendants alone are entitled to the same equally. Hence he claims 1/5th share in the suit schedule property. It is his further case that before filing the suit he sent a notice dated 03.06.2009 calling for partitioning the property. A reply dated 16.06.2009 was sent by the defendants admitting the share of the plaintiff. On the basis of this unambiguous admission made in the reply notice dated 16.06.2009 the plaintiff filed A.No.4794 of 2010 for the aforesaid relief.
22. To decide this application it is necessary to refer to Order 12 Rule 6 CPC which reads as follows
6. Judgment on admissions: (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other questions between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.
HIGH COURT AMENDMENT (MADRAS): Re-number the existing Rule 6 as sub-rule 6(1) and insert the following as sub-rules (2) and (3).
(2) The Court may also of its own motion make such order or give such judgment as it may consider just, having due regard to the admissions made by the parties.
(3) Whenever an order of judgment is pronounced under the provisions of this rule, a decree may be drawn up in accordance with such order or judgment and bearing the same date as the day on which the order of judgment was pronounced.
The amendment made in Rule 6 by the Madras High Court has now been incorporated in the new Rule as substituted by the Amendment Act, 1976.
23. A perusal of Order 12 Rule 6 CPC makes it very clear that the Court may at any stage of the suit either on the application of any party or of its own motion and without waiting for the determination of any other questions between the parties give such judgment as it may think fit when admission of facts have been made either in the pleadings or otherwise, whether orally or in writing.
24. What is important under Order 12 Rule 6 CPC is that unequivocal and unambiguous admission must be made by a party either in the pleadings filed before the Court or in any other document. This provision was introduced by Amendment Act 104 of 1976 in the interest of speedy justice.
In 2010 (4) SCC 753 (cited supra) the Honble Supreme Court observed as follows:
"37. The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about "which there is no controversy" (see the dictum of Lord Jessel, the Master,ef JRolls, in Thorp v. Holdsworth2 in Chancery Division at p. 640).
38. In this connection, it may be noted that Order 12 Rule 6 was amended by the Amendment Act of 1976. Prior to amendment the Rule read thus:
"6. Judgment on admissions. Any party may at any stage of a suit, where admissions of fact have been made, either on the pleadings, or otherwise, apply to the court for such judgment or order as upon such admissions he may be entitled to, without waiting for the determination of any other question between the parties; and the court may upon such application make such order, or give such judgment, as the court may think just."
39. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. It is thus clear that the amendment was brought about to further the ends of justice and give these provisions a wider sweep by empowering the Judges to use it "ex debito justitiae", a Latin term, meaning a debt of justice. In our opinion the thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment.
40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the prpvision of Order 12 Rule 1 is limited to admission by "pleading or otherwise in writing" but in Order 12 Rule 6 the expression "or otherwise" is much wider in view of the words used therein, namely: "admission of fact ... either in the pleading or otherwise, whether orally or in writing".
45. Order 12 Rule 6 of the Code has been very lucidly discussed and succinctly interpreted in a Division Bench judgment of the Madhya Pradesh High Court in ShJkharchand v. Bari BaP. G.P. Singh, J. (as His Lordship then was) in a concurring judgment explained the aforesaid Rule, if we may say so, very authoritatively at p. 79 of the Report. His Lordship held: (AIR para 19) "... I will only add a few words of my own. Rule 6 of Order 12 of the Code of Civil Procedure corresponds to Rule 5 of Order 32 of the Supreme Court Rules (English), now Rule 3 of Order 27, and is almost identically worded (see Annual Practice, 1965 Edn., Part I, p.569). The Supreme Court Rule came up for consideration in Ellis v. Allen. In that case a suit was filed for ejectment, mesne profits and damages on the ground of breach of covenant against sub-letting. Lessee's solicitors wrote to the plaintiff's solicitors in which fact of breach of covenant was admitted and a case was sought to be made out for relief against forfeiture. This letter was used as an admission under Rule 5 and as there was no substance in the plea of relief against forfeiture, the suit was decreed for ejectment under that Rule. Sargant, J. rejected the argument that the Rule is confined to admissions made in pleadings or under Rules 1 to 4 in the same order (same as ours) and said:
The Rule applies wherever there is a clear admission of facts in the face of which it is impossible for the party making it to succeed.' Rule 6 of Order 12, in my opinion, must bear the same construction as was put upon the corresponding English rule by Sargant, J. The words 'either on the pleadings or otherwise' in Rule 6 enable us not only to see the admissions made in pleadings or under Rules 1 to 4 of the same order but also admissions made elsewhere during the trial." (emphasis added)
46. This Court expresses its approval of the aforesaid interpretation of Order 12 Rule 6 by G.P. Singh, J. (as His Lordship then was). Mulla in his commentary on the Code has also relied on the ratio in Shikharchand for explaining these provisions.
47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word "pleading" under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word "pleading" has been suffixed by the expression "or otherwise". Therefore, a wider interpretation of the word "pleading" is warranted in understanding the implication of this Rule. Thus the stand of the Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12 Rule 6 in view of clear words "pleading or otherwise" used therein especially when that petition was in the suit filed by the Trust.
48. However, the provision under Order 12 Rule 6 of the Code is enabling, discretionary and permissive and is neicier mandatory nor it is peremptory since the word "may" has been used. But in a given situation, as in the instant case, the said provision can be applied in rendering the judgment."
25. In the light of the settled position of law, now let me consider whether the plaintiff has made out a case for getting a judgment under Order 12 Rule 6.
26. From the records I find that the plaintiff sent a notice dated 03.06.2009 calling upon the defendants to partition the suit schedule property and to allot 1/5th share to him. To this notice dated 03.06.2009 a reply notice was sent by the defendants wherein at paragraph 4 it was stated as follows:
"4. My clients further state that it is your client who was dodging to come forward for a mutual partition of the said property. Anyhow now my clients are ready and willing to give your clients 1/5th share in the above said property left by your client and 2 to 4 of my clients father and first of my clients husband."
27. From the above reply it is very clear that the defendants (all of them signed the reply notice dated 16.06.2009) admitted unequivocally and unambiguously the plaintiff is entitled to 1/5th share in the suit schedule property, which is sufficient in my opinion to pass a judgment in this case, under Order 12 Rule 6 CPC with regard to all the reliefs prayed for by the plaintiff except the relief rendering true and correct account of income derived from the schedule mentioned properties. Once the relationship of the parties, the nature of the property and the share of each party is admitted unambiguously, it is not necessary for this Court to undertake full trial to decide these admitted facts.
28. In this case, not only the defendants admitted the share of the plaintiff in the reply notice dated 16.06.2009 but also in the pleadings filed before this Court.
29. In the common counter affidavit filed by the defendants in A.No.439 of 2010 and 470 of 2010, the defendants stated that the partition could be done only after his life time and further added that the first defendant at no point of time mentioned that plaintiff is not having a share in the property. She further stated that the plaintiff could claim his share only after her life time and not before that.
30. From the above pleadings also the defendants admitted that the plaintiff is entitled to his share as claimed by him.
31. Now let me consider the decision relied on by the learned counsel for the defendants to oppose the application filed under Order 12 Rule 6 CPC.
32. In 2010 (2) SCC 77 (cited supra) the Honble Supreme Court observed as follows:
"21. In support of his aforesaid submission, Mr.Ranjit Kumar firstly relied on the decision of the three-Judge Bench in Kale vs. Dy. Director of Consolidation in which the question of registration of a family arrangement had fallen for consideration. Their Lordships held that a family arrangement may be even oral in which case no registration is necessary. Registration would be necessary only if the terms of the family arrangement are reduced into writing but there also a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made, either for the purpose of recording or for information of the Court for making necessary mutation. In such a case, the memorandum itself does not create or extinguish any right in the immovable properties and, therefore, neither does it fall within the mischief of Section 17(2) of the Registration Act, 1908 nor is it compulsorily registrable.
23. Learned counsel urged that as had been held by this Court in Mandali Ranganna vs. T.Ramachandra, while considering an application for grant of injunction, the Court has not only to take into consideration the basis elements regarding existence of a prima facie case, balance of convenience and irreparable injury, it has also to take into consideration the conduct of the parties since grant of injunction is an equitable relief. It was observed that: (SCC p.8, para 22) "22.... A person who had kept quiet for a long time and allowed another to deal with the property exclusively, ordinarily would not be entitled to an order of injunction."
Mr.Ranjit Kumar also referred to the recent decision of this Court in Kishorsinh Ratansinh Jadeja vs. Maruti Corpn., in which the observation made in Mandali Ranganna case was referred to with approval.
28. Now, coming to the question of balance of convenience and inconvenience and irreparable loss and injury, it has to be kept in mind that respondent 10 has already acquired rights in respect of the share of respondents 8 and 9 to the suit property and in the event an interim order is passed preventing development of the portion of the property acquired by him, he would suffer irreparable loss and injury since he would not be able to utilise the proeprty till the suit is disposed of, which could take several years at the original stage, and, thereafter, several more years at the appellate stages.
29. The appellant herein has been sufficiently protected by the order of the High Court impugned in this appeal. While respondent 10 has been permitted to carry out construction activities over the disputed land, he had been restrained from alienating or transferring the property or from creating any third party right therein during the pendency of the suit."
33. From the above it is very clear that the above judgment deals with deed of family settlement and the principles to be applied while granting interim relief under Order 39 Rule 1 and 2. Therefore this decision is not at all helpful to the case of the defendants.
34. In AIR 2004 Orissa 152 (cited supra) the Orissa High Court observed as follows:
"4. It appears from the impugned order and learned counsel for the plaintiffs-petitioners states that plaintiffs have instituted the suit inter alia claiming for partition of the suit schedule land on the basis of existing relationship with the defendants and in her written statement, the defendant No. 1 has not only admitted about such relationship thereby conceding to the rights of the plaintiffs to claim for partition, but also said defendant has admitted about alienating two acres, out of the suit properties to a stranger purchaser and therefore, a decree under Order 12, Rule 6, CPC can be passed by granting a decree of injunction against the defendant No. 1 not to act upon that sale transaction and to bound all persons claiming under that sale deed not to assert any right. Learned counsel for the petitioners states that learned Civil Judge (Senior Division), Dhenkanal without properly appreciating such fact situation, the admission of the defendant No. 1 and the provision of law under Order 12, Rule 6, CPC has wrongly rejected the application filed by the plaintiffs and therefore, he has failed to exercise the jurisdiction vested in him correctly and lawfully.
5. It appears from the impugned order that learned Civil Judge has noted that though the relationship between the parties is admitted by the defendant No. 1 so also about the sale transactions but the defendant No. 1 resisted to the aforesaid claim of the plaintiffs on the plea of ouster which she has advanced as a plea in her written statement. Learned Civil Judge has also noted the contention of the defendant No. 1 that though she executed the sale deed but the receipt has not been handed over to the purchaser because of the non-payment of the full consideration money and that fact situation does not entitle plaintiffs for a decree under Order 12, Rule 6, CPC.
6. Considering contention of the plaintiffs petitioners and the above noted reasons assigned by learned Civil Judge, this Court finds that the impugned order does not suffer from illegality or jurisdictional error. Since the defendant No. 1 has pleaded ouster of the plaintiffs and thereby claims right, title and possession over the suit land, exclusively to herself therefore, there cannot be any decree of permanent injunction under Order 12, Rule 6, CPC, when different issues arising in the suit are yet to be decided."
35. Though this is a judgment rendered in the context of passing a judgment under Order 12 Rule 6 CPC, the facts are totally different and this judgment is not applicable to the facts of the present case.
36. In 2007 (97) DRJ 687 (cited supra) the Division Bench of Delhi High Court held as follows:
14. Under Order XII, Rule 6 of the Code, a decree can be passed or a suit can be dismissed when admissions are clear and unambiguous and no other interpretation is possible. The Court also is vested with a right to ask for independent corroboration of facts, even when denial in the pleadings is not specific. Right to pass a judgment or order under Order XII, Rule 6 of the Code is discretionary and not mandatory. It may not be safe and correct to pass a judgment under Order XII, Rule 6 of the Code when a case involves disputed questions of fact and law which require adjudication and decision. Even when a party has made an admission, the Court need not dismiss or allow the suit. Judgment on the basis of admissions is not a matter of right but a matter of discretion for the Court. Similarly relief of specific performance is a discretionary relief. The discretion, whether or not a decree for specific performance of an immovable property should be passed, is to be exercised or rejected by taking into account several factors and circumstances. Conduct of the parties is also to be examined. In this regard it may be stated that the appellants have taken possession of the property from the Income Tax Department and the respondent nos.1 and 2 had not given possession of the property to the appellants. Section 20 of the Specific Relief Act reads as under:
20. Discretion as to decreeing specific performance (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.
(2) The following are cases in which the court may properly exercise discretion not to decree specific performance
(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or
(b) where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;
(c) where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.
Explanation 1. Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of Clause (a) or hardship within the meaning of Clause (b).
Explanation 2. The question whether the performance of a contract would involve hardship on the defendant within the meaning of Clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.
(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.
(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.
15. The above Section was referred to by the Supreme Court in Jai Narain Parasrampuria v. Pushpa Devi Saraf and it was held that conduct of both the parties has to be examined before passing a decree for specific performace or awarding compensation. Reference was made to several Texts on equity and equitable remedies and circumstances/cases where damages can be awarded in substitution for an order of specific performance. The court also examined the question what should be the quantum and measure of compensation. In the said case, as the parties were guilty of serious misconduct and both of them had abused process of law by filing frivolous litigations and had suppressed material facts, the Supreme Court declined to grant decree of specific performance and directed that compensation should be paid. In the said decision, several earlier decisions of the Supreme Court have been referred to. In the case of Nirmala Anand v. Advent Corporation (P) Limited, the Supreme Court affirmed the principle that grant of decree of specific performance lies in the discretion of the court and decree will not follow as it is legal to do so. Several facts have to be taken into consideration including conduct of the parties, facts and circumstances of the case, though ordinarily a plaintiff would not be denied relief of specific performance only on account of abnormal increase in prices during the pendency of litigation. However, equities have to be balanced and the question, who is defaulting party and whether any party is trying to take undue advantage over the other as also question of hardship has to be gone into and examined. Totality of circumstances have to be considered and in a given case phenomenal increase in prices during the pendency of litigation can be one of the considerations besides many others for refusing a decree of specific performance."
37. In the above judgment, the Delhi High Court held that under Order 12 Rule 6 CPC a decree can be passed only when admissions are clear and unambiguous and further no other interpretations are possible. Judgment under Order 12 Rule 6 CPC is not a matter of right but a matter of discretion for the Court. There is no controversy about the well settled legal principles and in the above judgment the Delhi High Court refused to exercise its discretion in a suit for specific performance of sale agreement.
38. This judgment will not apply to the facts of the present case as this is a suit filed by the plaintiff for partition and the defendants have clearly admitted the share of the plaintiff as claimed by him.
39. Though arguments are advanced by the learned counsel for the defendants by submitting that the first defendant is entitled to proceed against the plaintiff under various enactments like Hindu Adoption and Maintenance Act, 1956, Maintenance and Welfare of Parents and Senior Citizen Act 2007, etc., they are not relevant for the purpose of deciding this application for directing the application filed under Order 12 Rule 6 CPC and it is always open to first defendant mother to proceed against the plaintiff in accordance with law.
40. In the result I am satisfied that the plaintiff has made out a case under Order 12 Rule 6 CPC for passing a judgment and accordingly a preliminary decree is passed in favour of the plaintiff with regard to partitioning the suit schedule property by metes and bounds by allotting separate possession of 1/5th share to the plaintiff.
41. In so far as the decree for permanent injunction is concerned, the same need not be granted in view of the specific undertaking given by the defendants in the common counter affidavit filed in O.A.No.439 and 470 of 2010 that the question of alienating the suit property is not possible and there is no need or necessity to sell the property. It was further stated at paragraph 8 of the common counter affidavit that she never even thought of selling the property to third party during her life time. In the affidavit filed in support of vacate injunction applications also, the first defendant has stated that they did not have the necessity to sell the suit schedule property.
42. Recording the above said averments, this Court is not granting the decree for permanent injunction.
43. In so far as the prayer for rendering true and correct account of income derived from the suit schedule property is concerned, for this relief alone, the suit is kept pending and it is open to the plaintiff to agitate this relief alone on merits and in accordance with law.
44. In the result a preliminary decree is passed under Order 12 Rule 6 CPC for partition and separate possession of plaintiffs 1/5th share in the suit schedule property.
45. In view of the preliminary decree granted, all the other applications are closed. No costs.
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