Delhi High Court - Orders
Ashok K Nath vs Smt Krishna Gupta & Ors on 17 January, 2022
Author: Vipin Sanghi
Bench: Vipin Sanghi, Jasmeet Singh
$~8.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ FAO(OS) 20/2020
ASHOK K NATH ..... Appellant
Through: Ms. Manmeet Arora, Advocate.
versus
SMT KRISHNA GUPTA & ORS ..... Respondents
Through: Mr. S.N. Choudhri & Ms. Sukanya
Choudhri, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
HON'BLE MR. JUSTICE JASMEET SINGH
ORDER
% 17.01.2022
1. We have heard learned counsel for the parties.
2. The present appeal is directed against that portion of the impugned order dated 18.12.2019 passed by the learned Single Judge in I.A. No.13376/2019 preferred by the appellant/ defendant No.5 by which the learned Single Judge while allowing the said application of the appellant - permitting the appellant to lease out the property in question, has placed a condition that the entire amount realised from the tenant as rent shall be deposited in the Court.
3. The submission of learned counsel for the appellant is that even if the submission of the respondent/ plaintiff, that the property in question had not been partitioned by metes and bounds between the defendant No.1 and Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:18.01.2022 15:39 defendant No.4 in the suit, i.e. Rajender Nath & Co. HUF and Ram Chander Nath HUF, the share of the plaintiff could, at the highest, be 25%. Learned counsel for the appellant submits that the other siblings of the plaintiff i.e. defendants No.2 and defendant No.3 have, in fact, filed affidavits and admitted the partition by metes and bounds in respect of the property in question.
4. So far as the order granting permission to the appellant to lease out the land in question is concerned, the same has been accepted by the respondent/ plaintiff and, therefore, no objection to the same can be entertained at this stage.
5. The only issue is with regard to the rent which would be realised on such letting. Our attention has been drawn to the plan placed on record which shows the present status with regard to the use and occupation thereof. While the appellant claims that the present status is also a reflection of actual partition by metes and bounds, this is disputed by the respondent/ plaintiff.
6. Be that as it may, in our view, it would not be fair to require the appellant to deposit the entire amount realised towards rent in Court, as directed by the learned Single Judge. It cannot be disputed that the siblings of the respondent/ plaintiff are in use & occupation of the portion marked Blue in the plan. The appellant and the plaintiffs are cousins inasmuch, as, their respective fathers were brothers. The respondent/ plaintiffs have also stated that they are claiming through their father, as members of the father's HUF. However, they claim that since the partition of the larger parcel of land - jointly held by their father's HUF and their uncle's HUF (to which the appellant has succeeded) - has not taken place, the impleadment of Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:18.01.2022 15:39 defendant No.4 HUF was essential so that the larger parcel of land could be partitioned by metes and bounds and, thereafter, they could get their share as coparceners of their father's HUF i.e. defendant No.1. Learned counsel for the respondent/ plaintiffs submits that the case of the respondent/ plaintiffs is that all the properties remained joint and have not been partitioned.
7. In our view, the interest of the respondent/ plaintiffs can be sufficiently secured, if the appellants are required to deposit 25% of the rent realised from letting out of the portions marked Green in the plan placed on record as Annexure A2 along with the deed of partition set up by the appellant.
8. We, accordingly, modify the impugned order to the aforesaid extent. All other terms & conditions set out in the order shall continue to remain in force. The deposit of 25% of the rent shall be made within a week of receipt of the rent from the tenant for the entire Green portion let out.
9. The appeal stands disposed of in the aforesaid terms.
VIPIN SANGHI, J JASMEET SINGH, J JANUARY 17, 2022 N.Khanna Signature Not Verified Digitally Signed By:BHUPINDER SINGH ROHELLA Signing Date:18.01.2022 15:39