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Delhi District Court

Sunder Lal And Another vs Shyam Lal on 9 February, 2011

                                                                      ID No.02401C0623512007


            IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT 
           JUDGE (CENTRAL­13) : TIS HAZARI COURT : DELHI


                                               Suit No.191/2010                                                             


Sunder Lal  and another                                               ........Plaintiff


versus


Shyam Lal                                                            ........Defendants


O R D E R

1. By this order, I shall dispose of the application under Order 11 of Code of Civil Procedure, 1908 (CPC) moved by the plaintiffs.

2. Brief facts relevant for disposal of the application are that the plaintiffs filed a suit for partition, mesne profit and permanent injunction against the defendants and stated that the plaintiffs and the defendant are the real brothers and co­owners in the joint hindu family property bearing no. 52/68, Gali No.20, Nai Basti, Anand Parbat, New Delhi as shown green in the site plan (the suit property). The father of the plaintiffs and the defendant executed a registered Will dated 08.10.1985 whereby he bequeathed the suit property in favour of his sons i.e. the plaintiffs and the defendant herein and debarred his four daughters from the same. The suit property remained the joint family property and the parties have been enjoying the joint possession. In July, 2006 the plaintiff no.1 along with his family members shifted to ground floor of the suit property and requested the defendant to hand over the remaining portion of the suit property as per the said Will. That time, the plaintiff no.1 came to know that the defendant has allowed a portion of the suit property to be occupied by 10 to 15 people and is generating income out 1 Sunder Lal & anr. vs. Shyam Lal of the same. However, the defendant refused to give the share of the plaintiff no.1 despite specific request. In the circumstances, the plaintiff filed the present suit and also moved the present application.

3. The defendant filed the reply and prayed that the application be dismissed.

4. I have heard the Ld. Counsels for the parties and have perused the material available on record.

5. Vide the present application the plaintiff supplied the following interrogatories to the defendant :

i) Which portion are being used by how many persons with full particular such as name and details of their family alongwith site plan showing which portion (rooms) is occupied by whom and number of persons using a single room.
ii) The date from which the said persons occupied the rooms and charges which they have been paying to the defendant.
iii) Total amount earned till date by the defendant.

6. In WS and reply to the application, the defendant admits that he has let out a portion of the suit property to the several persons and has been getting rent from them. However, he has not disclosed the names of the said person and the amount realized by him from them on the ground that the answer to the said interrogatories shall adversely affect his case. Counsel for the defendant pleaded that it is the plaintiff who has to prove the said facts by leading the evidence. As mentioned above, the defendant has not denied that a portion of the suit property has been let out by him and he is 2 Sunder Lal & anr. vs. Shyam Lal receiving the rent out of the same. As such, the interrogatories confined to the details of the tenants and the rent tendered by them. It is no where the case of the defendant that interrogatories are scandalous or irrelevant to the present case. Hence, it can be held that all of the interrogatories are relevant. The answer would enable the court to determine the dispute between the parties as well as resolve the rival contentions as set up in the plaint and the written statement and the same shall also save the time and the cost.

7. In view of the foregoing discussions, the application under order 11 of CPC is allowed. The defendant is directed to answer in affidavit under separate heading each of the interrogatories with specific details. The defendant is directed to file the affidavit within 10 days of this order. ANNOUNCED IN THE OPEN COURT On 9th of February, 2011.

(PANKAJ GUPTA) ADJ(CENTRAL­13)/DELHI.

09.02.2011 3 Sunder Lal & anr. vs. Shyam Lal ID No.02401C0623512007 IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT JUDGE (CENTRAL­13) : TIS HAZARI COURT : DELHI Suit No.191/2010 Sunder Lal and another .........Plaintiffs versus Shyam Lal ........Defendant O R D E R

1. By this order, I shall dispose of the application under Order 39 Rule 1 and 2 of Code of Civil Procedure, 1908 (CPC) moved by the plaintiffs.

2. Brief facts relevant for disposal of the application are that the plaintiffs filed a suit for partition, mesne profit and permanent injunction against the defendants and stated that the plaintiffs and the defendant are the real brothers and co­owners in the joint hindu family property bearing no. 52/68, Gali No.20, Nai Basti, Anand Parbat, New Delhi as shown green in the site plan (the suit property). The father of the plaintiffs and the defendant executed a registered Will dated 08.10.1985 whereby he bequeathed the suit property in favour of his sons i.e. the plaintiffs and the defendant herein and debarred his four daughters from the same. The suit property remained the joint family property and the parties have been enjoying the joint possession despite the fact that the plaintiffs are government employees and mostly remain out of station due to nature of their job. Subsequently, a series of litigations initiated by the parties herein against the tenants occupying the portion of the suit property for their ejectment. Since, the plaintiffs mostly remained out of Delhi due to nature of job, hence, the plaintiff no.2 executed 4 Sunder Lal & anr. vs. Shyam Lal a Special Power of Attorney in favour of wife of the defendant to contest the case against Sharbati Devi and Munni Devi on 23.04.2009. In the said proceedings, all the parties admitted the fact of execution of the Will by their father. The suit property was also got mutated on the basis of the said Will on 17.05.1991. In July, 2006, the plaintiff no.1 along with his family members shifted to ground floor of the suit property and requested the defendant to hand over the remaining portion of the suit property as per the said Will. That time, the plaintiff no.1 came to know that the defendant had allowed a portion of the suit property to be occupied by 10 to 15 people and is generating income out of the same. However, the defendant refused to give the share of the plaintiff no.1 despite specific request. On 14.02.2007, the plaintiff no.2 visited Delhi and requested the defendant to give his share however, he refused to give the same. In these circumstances, the plaintiff moved the present application to restrain the defendant from creating any third party interest in the suit property till the disposal of the suit.

3. In WS as well as reply to the application, the defendant denied the very fact of the said Will and stated that it is a forged and fabricated. He also denied that the plaintiffs have any share in the suit property and stated that the plaintiffs and other LRs of his deceased father had been ousted from the suit property and had left with no right, titled and interest in the suit property. It is also stated that the plaintiff no.1 had been residing in a tenanted premises and when the said premises was vacated by him for the purpose of repair, the defendant allowed him to occupy two rooms in the suit property. He admits that a portion of the suit property has been let out to some tenants. Hence, it is prayed that the application be dismissed.

4. I have heard the Ld. Counsels for the parties and have perused 5 Sunder Lal & anr. vs. Shyam Lal the material available on record.

5. Admittedly, the plaintiffs and the defendant are real brothers.

6. The question arises whether the plaintiffs have a prima facie case in their favour. Case of the plaintiffs is that being the legal heirs of Shri Panchu Ram and also registered Will dated 08.10.1985 executed by him, the parties are co­owners with respect to the suit property. The defendant out rightly disputed the fact of the execution of the Will and pleaded that the same is a forged and fabricated document. On the contrary, the case of the defendant is that the plaintiffs have been ousted from the suit property and had left with no right, title and interest in the suit property. Admittedly, the parties are Hindu by religion. The defendant has not mentioned the date, month and year when the plaintiffs were ousted from the suit property and by whom and in what mode. Even no document is filed to substantiate the same. So far as the execution of Will dated 08.12.1985 is concerned, counsel for the plaintiff pleaded that in one of the litigations initiated by the plaintiffs against Sharbati Devi and Munni Devi, the plaintiff no.2 executed a Special Power of Attorney in favour of the wife of the defendant namely, Smt. Bimla Devi on 23.04.2003. In the said proceedings, the said attorney filed an affidavit wherein she admitted the fact of execution of the said Will. The plaintiffs have filed the certified copy of the Will dated 08.10.1985. Perusal of the said Will clearly reveals that the suit property was bequeathed in favour of the plaintiffs and the defendant as per the site plan attached thereto. Perusal of the affidavit filed by Bimla, wife of the defendant in E.no.47/2003 titled as "Madan Lal vs. Sarbati Devi and Ors." reveals that in para 4 of the affidavit the deponent therein admitted the execution of the said Will and deposed that Shri Panchu Ram bequeathed the suit property in favour of the 6 Sunder Lal & anr. vs. Shyam Lal plaintiffs and the defendant. In para 5 of the affidavit, she also deposed that they also honoured the said Will and accordingly, the suit property was got mutated in their name. In para 6 of the affidavit, she also deposed that the parties also got settled in their respect portions, as per the said Will. Her statement was also recorded to that effect on oath. Perusal of the WS filed by the defendant in the suit titled as "Lachho Devi vs. Bhola Shanker & another" reveals that in para 5 of the WS, the defendant mentioned the fact of registered Will dated 08.10.1985 executed by his father whereby he bequeathed the suit property in favour of their son i.e. the parties herein. The mutation order also reveals that the suit property was jointly mutated in the name of the parties herein. The defendant has not disputed the facts of the earlier proceedings and the WS and affidavit filed by him and/or his wife therein. It is not the case of the defendant that the said WS and the affidavit were not in his knowledge. In view of the foregoing discussions, it can be held that the father of the plaintiffs and the defendant executed a registered Will dated 08.10.1985 vide which he bequeathed the suit property in favour of his sons as mentioned therein. Further, the parties also acted upon the same and thereby the suit property was got mutated in their favour. As such, a prima facie case exists in favour of the plaintiffs and against the defendant.

11. The defendants have admitted that he has let out a portion of the suit property to the several persons and has been getting rent from them. However, he has not disclosed the names and the amount realized by him from them. In view of the foregoing discussions, I am of the opinion that the balance of convenience also lies in favour of plaintiffs and against the defendant. Further, the plaintiffs shall suffer irreparable loss and injury, if the application is not allowed.

7 Sunder Lal & anr. vs. Shyam Lal

12. Therefore, the application is allowed.

13. It is made clear that the observations made herein shall not be construed as expression on merits of the case at the time of final disposal of the suit.

ANNOUNCED IN THE OPEN COURT On 9th of February, 2011.

(PANKAJ GUPTA) ADJ(CENTRAL­13)/DELHI.

09.02.2011 8 Sunder Lal & anr. vs. Shyam Lal 9 Sunder Lal & anr. vs. Shyam Lal