Delhi District Court
Smt.Somwati & Anr vs Sh.Hari Babu & Ors on 1 September, 2012
IN THE COURT OF SH. PRANJAL ANEJA, CIVIL JUDGE 06 (NORTH)
TIS HAZARI COURTS, DELHI
Suit no. 1160/2011/2005
Smt.SOMWATI & Anr. .......... Plaintiffs
VS.
Sh.HARI BABU & Ors. ......... Defendants
Order :
1.This order of mine shall dispose of the application u/o 39 rule 1 & 2 r/w 151 CPC dt.30.07.2012, filed on behalf of the plaintiff.
2. For disposal of the present application, the brief facts of the case necessary to be seen in order to decide the present application are that the plaintiff has filed the present suit for partition & declaration. That the plaintiff's father Late Sh.Ram Vilas died intestate leaving behind the plaintiffs and the defendants as his legal heirs and the plaintiff's father left behind the suit properties bearing No.G728, Mangol Puri, Delhi and also at Ojhani, Gram Adoli, Dist. Badayun, UP and also some cash property and all the original documents of the properties and details of immovable properties are with the defendants. That the defendants in collusion with each other have allegedly entered into an agreement by which they have settled the fixed assets left by the plaintiffs' father between themselves allegedly to one undated compromise deed in plaintiffs' absence. That the plaintiffs were never aware of these proceedings and defendants have no right to enter into such agreement. The defendants also filed one false suit bearing no.227/2003 titled as Hari Babu Vs. Ram Rati which was disposed off on 27.09.2003 in which they settled the same on the basis of compromise between the defendants interse and plaintiffs' were not made a party to the said suit. That another suit number 398/2004 titled as Hari Babu Vs. Rajender Babu was filed regarding the property in question without making the plaintiffs a party. That the plaintiffs have moved an application under Order 1 rule 10 CPC in the said suit to be made a party. That the plaintiffs are owners of 40% of the properties left by their father. That the proceedings in the suit no.227/2003 are liable to be declared as null & void.
3. It is stated in the present application that the defendants were also the coowners of the suit property are contemplating to change the nature and identity of the suit property by raising illegal & unauthorized construction and/or by making additions, alterations & structural changes therein in order to defeat the lawful claim of the plaintiffs. Hence, it is expedient in the interest of justice that the defendants be restrained from doing so during the pendency of the suit.
4. No written reply to the present application has been filed on behalf of any defendant. However, in the WS filed on behalf of defendant no. 1, the averments of the plaint have been denied. In the WS of defendant no.2 & 3, it is admitted by them that the father of the parties expired and left behind the said properties, but they have no knowledge about the cash and original documents of the properties. It is further stated in their respective WS that the defendants had already expended upon the marriages of the plaintiffs in lieu of their share in the properties and now they have no right in the said properties. The rest of the averments of the plaint have been denied.
5. The present suit is for partition of the immovable and movable properties and for declaration of the decree dt.27.09.2003 passed in a previous suit amongst the defendants as null & void. The plaintiffs as sisters have filed this present suit against their brothers & mother for the partition of the properties of their deceased father, who allegedly died intestate. From the pleadings of the defendants they have simply denied the averments of the plaintiffs. In the WS of defendants no.2 & 3 it is stated that the plaintiffs do not have any 40% share in the properties as the defendants have already expended upon the marriages of the plaintiffs in lieu of their share in the properties and now they have no right in the said properties. Thus, the defendants in one way have stated that the share of plaintiffs existed in the properties, but the same has been expended/given to them in their marriages. The onus to prove this fact/averment therefore, lies upon the defendants to be fulfilled during the trial. The issues have been framed in the present suit and therefore, it is also necessary to prevent any wasting/damaging/alienation etc. of the suit properties. The plaintiffs have stated in the present application that the defendants are contemplating to change the nature and identity of the suit property by raising illegal & unauthorized construction and/or by making additions, alterations & structural changes therein in order to defeat the lawful claim of the plaintiffs. Thus, in view of the above discussion, the suit property is necessary to be prevented from being alienated, altered etc. during the pendency of suit. However, it is further noticed that one of the immovable property comprising of the suit property is situated in Ojhani, Gram Adoli, Dist. Badayun, UP which falls outside the territorial jurisdiction of this court. Therefore, no injunction can be granted in respect of the same.
6. Thus, the application of the plaintiffs stands allowed only with respect to property bearing no.G728, Mangol Puri, Delhi. The defendants are therefore restrained from raising illegal & unauthorized construction and/or by making additions, alterations & structural changes in the property no.G728, Mangol Puri, Delhi till the final disposal of the present suit subject to any further order of this court to this effect.
Nothing observed in this order shall amount to an expression of opinion on the merits of this case.
(PRANJAL ANEJA) CIVIL JUDGE06, NORTH DELHI/01.09.2012 Announced in the open court Dated: 01.09.2012 Suit no.1160/2012 01.09.2012 Present: None Vide separate order, the application under Order 39 rule 1 & 2 CPC stands partly allowed.
Put up for DE on 17.09.2012.
(PRANJAL ANEJA) CIVIL JUDGE06, NORTH THC/DELHI/01.09.2012