Delhi District Court
8. In Anathula Sudhakar vs . P. Buchi Reddy, (2008) 4 on 22 April, 2017
IN THE COURT OF SH. DEEPAK SHERAWAT, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE(WEST): DELHI
SUIT NO. 9605/16
Neeraj Chugh
S/o Late Om Prakash Chugh
R/o A-97 Shardapuri, Ramesh Nagar,
New Delhi - 110015. ....Plaintif
Versus
1. Dev Kumari
D/o Late Sunder Dass Chugh
2. Ved Prakash Chugh
3. Surender Parkash
4. Sudhir Parkash Chugh
All sons of late
Sunder Dass Chugh
5. Kamla ) Daughters of
6. Poonam ) Late Sunder Dass
7. Sanjay Parkash Chugh
All R/o 1/27, Ramesh Nagar,
New Delhi.
8. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk
Delhi - 06. ....Defendants
Date of filing of the suit : 12.07.2011
Date of reserving order : 22.04.2017
Date of pronouncement : 22.04.2017
Suit No. 9605/16 Page no. 1/5
ORDER
1. Vide this order, I shall decide the preliminary issue framed on 15.09.2016 :
"Whether the suit is maintainable without the relief of partition and possession?OPP"
2. The case of the plaintif is that the suit property bearing no. 1/27, Ramesh Nagar, New Delhi is an ancestral property owned by grandfather of the plaintif Sh. Sundar Dass Chugh, who was having three issues from the first marriage and eight issues from the second marriage all of whom are entitled to equal share in the suit property after the demise of Sh. Sundar Dass Chugh on 14.02.2010. However, defendants, who are issues from second marriage have demolished the existing structure and with intend to deprive the plaintif of a share in the suit property, want to reconstruct the same unauthorizedly and despite complaints to the MCD no action has been taken.
3. In the written statement, the defendants have stated that the plaintif has no right or title in the suit property. They have stated that Sh. Sundar Dass Chugh vide Will dated 16.09.1988 had bequeathed the suit property to her second wife/mother of the defendants, who in turn devised the suit property in favour of the defendants by executing a Will dated 23.12.1998. It is further stated by them that the suit property was constructed by their mother.
Suit No. 9605/16 Page no. 2/54. The defendant no. 9/MCD in its written statement has stated that unauthorized construction has been raised in the suit property which has been booked on 23.08.2011.
5. I have heard arguments and perused the record.
6. The suit property is admittedly an ancestral property and the plaintif has not claimed to be in possession of the same. Since defendants are raising construction after demolition of suit property, it can be assumed that they are having the possession of the suit property. As per the plaintif, the suit property has also not been divided among the legal heirs. Under these circumstances, the present suit wherein the plaintif has merely sought relief of injunction is not an efficacious remedy and the plaintif should also have sought the relief of partition and possession which is not only the proper relief in view of the facts of the case but also a necessary to prevent to be multiplicity of the litigations.
7. The present suit for injunction is therefore squarely hit by provisions of clause (h) of Section 41 of Specific Relief Act which lays down that an injunction cannot be granted if an equally efficacious remedy can certainly be obtained by any other usual mode of proceedings. In the present case, the relief by way of possession and partition is an equally efficacious relief as that of an injunction to restrain the defendant from raising construction. The right of possession and partition is available to the plaintif and by seeking the proper relief in this respect, the plaintif is certain to obtain the necessary relief. In case of dispute regarding undivided ancestral properties, the proper relief, specially where the Suit No. 9605/16 Page no. 3/5 plaintif is not in possession of the suit property, is a suit for partition and possession coupled with relief of injunction.
8. In Anathula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594 it was held that :-
"Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
9. In the present case, the defendants have disputed the right or title of the plaintif in respect of the suit property thereby raising a cloud on his title and the plaintif should have dispelled such cloud by seeking relief of title along with possession or partition. Further, the defendants have claimed their exclusive ownership on the basis of two Wills executed by their grandfather and their mother and the plaintif should have also sought appropriate relief in respect of the aforesaid Wills.
10. Accordingly, the suit is not maintainable and the preliminary issue is decided against the plaintif and therefore,
11. In view of findings on the preliminary issue, the present suit is hereby dismissed.
Suit No. 9605/16 Page no. 4/512. Decree sheet be prepared accordingly.
13. File be consigned to Record Room.
Announced in the open Court today the 22nd April 2017 (DEEPAK SHERAWAT) JSCC-cum-ASCJ-cum Guardian Judge (West),Delhi 22.04.2017 Suit No. 9605/16 Page no. 5/5