Delhi District Court
Sh. Murari Lal Sharma (Now Deceased) vs Sh. Narender Pal Gupta on 18 July, 2011
Murari Lal Sharma (now deceased) through L.R's v.
Narender Pal Gupta and Ors.
IN THE COURT OF SH. SANJAY SHARMA, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 302/08
Unique Case ID No.02401C0116662002
Sh. Murari Lal Sharma (now deceased)
Through his L.R.'s
(i) Sh. Ramesh Chand Sharma
S/o Late Murari Lal Sharma
R/o E/10-C, Dilshad Garden,
New Delhi - 95.
(ii) Sh. Naresh Chand Sharma
S/o Late Murari Lal Sharma
R/o 8561, Model Basti,
East Park Road, New Delhi - 5.
(iii) Sh. Yogesh Chand Sharma
S/o Late Murari Lal Sharma
R/o 8561, Model Basti,
East Park Road, New Delhi - 5.
(iv) Sh. Rajesh Sharma
S/o Late Suresh Chand Sharma
S/o Late Murari Lal Sharma
R/o P-7/A-2, Dilshad Garden,
New Delhi - 95.
(v) Smt. Kusum Sharma
W/o Sh. Shashi Sharma
D/o Late Murari Lal Sharma
R/o 60, Bhagirathi Apartments,
Rohini, New Delhi - 85.
(vi) Smt. Santosh Sharma
W/o Sh. Lalit Vatsa
D/o Late Murari Lal Sharma
R/o A/44, Muktanand Park,
Jamphalbari, Ahemdabad,
Gujrat. ......Plaintiffs
Versus
1. Sh. Narender Pal Gupta
S/o Sh. Ram Kumar,
R/o 8555, First Floor,
Model Basti, Near Filmistan Cinema,
New Delhi - 110005.
Suit No.302/08 Page 1 /37
Murari Lal Sharma (now deceased) through L.R's v.
Narender Pal Gupta and Ors.
2. Sh. Har Parshad Sharma
S/o Late Pt. Sohan Lal,
R/o 8556, Model Basti,
Near Filmistan Cinema,
New Delhi - 110005.
3. Sh. Har Parshad Sharma
S/o Late Pt. Sohan Lal,
R/o 8556, Model Basti,
Near Filmistan Cinema,
New Delhi - 110005.
3. Sh. Virender Kumar Sharma
S/o Late Pt. Kishori Lal,
R/o 1197, Maliwara,
New Delhi - 110006.
4. Sh. Sunil Kumar Sharma
S/o Sh. Virender Kumar Sharma
R/o 1197, Maliwara,
New Delhi - 110006.
5. Sh. Vijay Kumar Sharma
S/o Late Pt. Mangal Chand,
R/o E - 84, Sector - 7,
New Raj Nagar,
Ghaziabad, U.P.
6. Sh. Vinod Kumar Sharma
S/o Late Pt. Mangal Chand,
7. Sh. Surender Kumar Sharma
S/o Late Pt. Mangal Chand,
8. Sh. Devender Kumar Sharma
S/o Late Pt. Mangal Chand,
All R/o House No.2459, Gali Naiwara,
Chawri Bazar,
Delhi - 110006. Defendants
Date of filing of the suit : 18.03.2000
Date of reserving order : 10.06.2011
Date of pronouncement : 18.07.2011
JUDGMENT
Suit No.302/08 Page 2 /37
Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
1. In this suit for declaration and permanent injunction, the plaintiff is seeking a declaration against the defendant no.1 and 4 that the portion over the property no. 8562 to 8564 on the first floor with stair case bearing Municipal no. 8561, East Park Road, Model Basti, Near Filmistan Cinema, New Delhi (Hereinafter 'the suit property') as shown in Brown colour in the site plan Ex.PW-5/2 is an undivided Hindu family property and the defendant no.1 has no right to use and occupy the suit property, and a decree of injunction restraining the defendant no.1 and his family members from using and occupying the suit property and causing any disturbance to plaintiff's use and occupation of the suit property.
2. Pt. Sohan Lal, Pt. Kishori Lal and Pt. Mangal Chand were real brothers and joint owners of the properties bearing Municipal No. 8555 to 8564, Model Basti, Near Filmistan Cinema, New Delhi - 110005. They had purchased the said properties vide registered sale deed dated 25.03.1939. They had mutually partitioned the said properties vide registered partition deed dated 15.03.1955. The portion shown in Green colour in the site plan Ex.PW-5/1 had come to the share of Pt. Sohan Lal, the portion shown in Pink colour in the site plan Ex.PW-5/1 had come to the share of Pt. Kishori Lal and the portion shown in Yellow colour in the site plan Ex.PW-5/1 had come to the share of Pt. Mangal Chand. The stair case no. 8556 on the back side of the said properties had come to exclusive share of Pt. Sohan Lal and the stair case no.8555 had come to the share of Pt. Kishori Lal. The stair case no. 8561 was jointly shared by Pt. Sohan Lal and Pt. Mangal Chand for using their respective portions on the first floor Suit No.302/08 Page 3 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
and second floor towards the East Park Road. It is stated that portions on the first and second floor are dwelling houses.
3. On 10.02.1959, Pt. Mangal Chand had sold his share in the said properties (as shown in Yellow colour in the site plan Ex.PW-5/1) to Pt. Kishori Lal and as such, Pt. Kishori Lal had become owner of the portions shown in Yellow Colour and Pink Colour in the site plan Ex.PW-5/1. In the year 1967, Pt. Kishori Lal had partitioned his properties between his two sons namely Sh. Hazari Lal Sharma and the defendant no.3, and the portion owned by Pt. Kishori Lal i.e. property no.8555 and 8562 to 8564 had come to the share of the defendant no.3 and as such, the defendant no.3 had become exclusive owner of the property no.8555 and 8562 to 8564. On 17.03.1965, Pt. Sohan Lal had expired and thereafter, the plaintiff and the defendant no.2 had partitioned the properties owned by Pt. Sohan Lal and the property no. 8556, 8557 and 8560 with one room on the second floor (over the property no. 8559) had come to the share of the defendant no.2 and the property no. 8558, 8559 (shops) with portions on the first and second floor having joint passage from the stair case no.8561 had come to the share of the plaintiff. The portions on the first and second floor are dwelling houses and the plaintiff and the defendant no.2, and their family members are in occupation thereof. Vide sale deed dated 04.08.1992, the defendant no.3 had sold his entire share in the properties no. 8562 to 8564, first floor and second floor of the property no. 8555 and half share in the stair case no. 8561 to the defendant no.4 and as such, the defendant no. 4 had become exclusive owner of the shares earlier owned by Pt. Kishori Lal and Pt. Mangal Chand. On 30.10.1996, the defendant no.4 had sold his entire portion on Suit No.302/08 Page 4 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
the second floor to Smt. Asha Gupta and given her passage from the back side through stair case no. 8555 vide sale deed.
4. According to the plaintiff, the defendant no.4 had closed the passage from the stair case no.8561 leading to the second floor prior to the said transfer and thereby, the stair case no. 8561 leading to second floor and third floor was left for exclusive use and occupation of the plaintiff and his family members only. Vide sale deed dated 17.03.1999, the defendant no.4 had sold his entire portion on the first floor of the property no.8555 and half share in the stair case no.8561 to the defendant no.1. The defendant no.1 was already a tenant in a portion on the said first floor of the property no. 8555 and using the stair case bearing no. 8555 only. After 17.03.1999, the defendant no.1 has occupied the entire portion on the said first floor and using the said portion.
5. The case of the plaintiff is that the stair case no. 8561 remained an undivided property. After partition in the year 1955, the stair case no. 8561 was being used jointly by Pt. Sohan Lal and Pt. Mangal Chand. The status of the stair case remained undivided even after Pt. Mangal Chand had sold his portion to Pt. Kishori Lal and it was being used jointly by Pt. Sohan Lal and Pt. Kishori Lal. After death of Pt. Sohan Lal in the year 1965 and partition of his properties by Pt. Kishori Lal, the stair case no.8561 was being used by the plaintiff and the defendant no.3 and thereafter, the defendant no.3 had sold his portion to the defendant no.4, the stair case no. 8561 was being used by the plaintiff and the defendant no.4 jointly as an undivided property. The stair case no. 8561 Suit No.302/08 Page 5 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
remained an undivided family property for the use of family members/successors of common ancestors in occupation of the portions on the first floor and second floor over the properties no. 8558 to 8560 and 8562 to 8564.
6. The case of the plaintiff is that the defendant no.4 had sold the second floor of his entire portion to Smt. Asha Gupta with only passage from the stair case no. 8555, the stair case no. 8561 leading to the first floor only remained undivided family property and was being used jointly by the plaintiff and the defendant no.4 whereas the stair case no. 8561 leading to the second floor and above remained in exclusive use and occupation of the plaintiff and his family members only.
7. According to the plaintiff, the defendant no.4 had sold the portion on the first floor including the portion over the property no.8562 to 8564 towards East Park Road which was previously owned by Pt. Mangal Chand with the right to use the stair case no.8561 to the defendant no.1 illegally and with ulterior motive to disturb the plaintiff and his family members. The defendant no.1 has occupied the said portion. The said portion is an undivided property and therefore, the defendant no.1 is not entitled to occupy it being a stranger to the family.
8. The case of the plaintiff is that the stair case no.8561 in the said properties is meant for the use of the portions of Pt. Sohan Lal and Pt. Mangal Chand. The stair case no. 8561 is an undivided Hindu family property. The stair case no. 8561 has not been divided/ partitioned at any time though the other portions in the said properties were partitioned and transferred amongst members of family of common Suit No.302/08 Page 6 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
ancestors. It is stated that transfer/sale of the share earlier owned by Pt. Mangal Chand is illegal and against the provisions of Law. The defendant no.4 had no right to handover the possession of the said share of Pt. Mangal Chand to the defendant no.1. The use and enjoyment of the stair case no. 8561 being an undivided property is confined to the members of the family. 9. It is further case of the plaintiff that the stair case no. 8561 is still an undivided dwelling property and a stranger transferee is debarred from exercising his right to joint possession. It is stated that the stair case no.8561 can be looked upon as a dwelling house belonging to an undivided family as the members of the family have not divided it and are in enjoyment and possession thereof to the exclusion of the stranger transferee. The defendant no.4 can transfer his exclusive share in the said properties in his occupation, and the portions which are undivided and jointly used by the family members, cannot be used and occupied by the defendant no. 1 being a stranger to the family of the plaintiff and the defendant no.2 to 8.
10. The Grievance of the plaintiff is that the defendant no.1 though having his separate stair case no. 8555 for using his portions, is using the stair case no. 8561 with the intent to disturb the plaintiff and his family members. The plaintiff had requested the defendant no.1 not to use the stair case no. 8561 and the portion which was previously owned by Pt. Mangal Chand and cause any disturbance to the plaintiff and his family in the use and enjoyment of the plaintiff and his family in respect of their portions. The defendant no.1 has not given any response to his requests and therefore, the Suit No.302/08 Page 7 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
defendant no.1 is liable to be restrained from using the portion previously owned by Pt. Mangal Chand along with stair case no. 8561 as shown in Brown Colour in the site plan Ex.PW-5/2. The said portion is an undivided Hindu family property. The defendant no.1 has no right to use the staircase no. 8561 being a stranger to the family of the plaintiff and therefore, the plaintiff filed the present suit for declaration and permanent injunction against the defendant no.1 and 4.
11. In his written statement, the defendant no.1 contended that the plaintiff has filed the present suit in collusion with the defendant no.2 to 8, and suppressed true facts and pleaded false facts and therefore, he is not entitled to discretionary relief of declaration and permanent injunction. The suit is barred by the provisions of the Specific Relief Act. The suit has not been properly valued for the purposes of court fees and jurisdiction. The plaintiff is liable to pay ad- valorem court fees on the market value of the suit property. The defendant no.1 is in possession of the suit property which was purchased by him for Rs.2,00,000/- and therefore, the plaintiff is liable to pay Court Fees for the relief of declaration at least, on the value Rs.2,00,000/-. The plaintiff has no cause of action and the suit is barred by time.
12. On merits, the defendant no.1 denied the allegations made in the plaint. It is denied that the stair case no.8561 was meant for exclusive use and occupation of the plaintiff and his family members, and it is an undivided property.
13. According to the defendant no.1, the stair case no. 8561 was being used by the defendant no.4 exclusively. The defendant no.4 was entitled to sell his portion. The defendant Suit No.302/08 Page 8 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
no.4 had sold his portion for his bonafide need. It is denied that the defendant no.1 has no right to use the stair case no. 8561 being a stranger. It is stated that the defendant no.1 is entitled to use the stair case no. 8561. It is stated that the cause of action is illusory. The defendant no.1 is entitled to use and enjoy the property purchased by him for valuable consideration. It is stated that the plaintiff is not entitled to the declaration and permanent injunction, as prayed. The suit is false, frivolous and abuse of the process of law.
14. In his written statement, the defendant no.2 stated that he is in possession of the property no.8557 and 8558 with floors up to the top of the building with separate stair case no.8556, and two shops no.8560 on the ground floor with one room and kitchen on the second floor over no.8558 and 8559. It is stated that the plaintiff and the defendant no.2 had partitioned the properties as per Will dated 08.01.1961 executed by their father Pt. Sohan Lal. It is stated that the three shops bearing no.8558 and 8559 on the ground floor and two rooms and one kothari at the first floor over no.8558 to 8560, and one room at second floor over the shops no. 8560 adjoining the stair case no.8561 had come to the share of the plaintiff. The plaintiff and the defendant no.2 are in occupation of their respective portions along with their family members.
15. In his written statement, the defendant no.5 stated that the plaintiff and the defendant no.2 had partitioned the properties of Pt. Sohan Lal as per his Will dated 08.01.1961. He has supported the case of the plaintiff.
16. In the replication to the written statement of the Suit No.302/08 Page 9 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
defendant no.1, the plaintiff controverted the contentions of the defendant no.1 and re-affirmed the averments made in the plaint. It is stated that the stair case no.8561 was left for exclusive use and enjoyment of the plaintiff and his family members as two gates towards stair case no.8561 were closed by the defendant no.4 when he had sold the second floor to Sh. Vinay Kumar Gupta and presently, the stair case no.8561 for the second floor and third floor of the property is being used by the plaintiff and his family members.
17. According to the plaintiff, the defendant no.1 was a tenant in respect of one room, kitchen and bath only, and he was allowed to use stair case no. 8555 for using his portion. It is denied that the stair case no.8561 was being used by the defendant no.4 only. It is stated that the stair case no.8561 was being used jointly by the plaintiff and the defendant no.
4. It is stated that the plaintiff is a stranger to the family of the plaintiff and the defendant no.2 to 8. The defendant no.1 in collusion with the defendant no.4 has been shown a tenant in the sale deed dated 17.03.1999 whereas he was residing elsewhere.
18. On the basis of pleadings of the parties, following issues were framed on 04.05.2010.
1. Whether the plaintiff is entitled for the decree of declaration against the defendant no.1 and 4 in respect of the property over the property no.8562 to 8564, as prayed? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction against the defendant no.1 in respect of use of stair case in property no.8561, East Park Road, Model Basti, New Delhi, as prayed?
OPP Suit No.302/08 Page 10 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
3. Whether the suit is barred by the provisions of the Specific Relief Act? OPD1
4. Whether the suit has been properly valued for the purposes of Court Fee and Jurisdiction? OPD1
5. Whether the suit is time barred? OPD1
6. Whether the plaintiff has not disclosed any cause of action against the defendant no.1? OPD1
7. Relief.
19. In the evidence, the plaintiffs examined Sh. Naresh Chand Sharma (PW-5) and Sh. Sunil Sharma/the defendant no.4 (PW-6). PW-1 to PW-4 had brought the record from the office of Sub-Registrar and Department of Delhi Archives whereas the defendant no.1 (DW-1) besides examining himself examined his neighbour Sh. Anil Gupta (DW-2)
20. Ex.PW-1/1 is the certified copy of the registered sale deed dated 29.10.1996 executed by the defendant no.4 in favour of Smt. Asha Gupta in respect of second floor of the property no. 8555 measuring 121.55 square yards, Model Basti, New Delhi - 5 with common stairs in the property no. 8555. Ex.PW-2/1 is the certified copy of the partitioned deed dated 15.03.1955 and registered on 08.07.1955. Ex.PW-3/1 is the certified copy of the sale deed dated 10.02.1959. Ex.PW-4/1 is the certified copy of the sale deed dated 04.08.1992 executed by Sh. Virender Kumar/the defendant no.3 in favour of his son Sh. Sunil Sharma/the defendant no.4 in respect of the entire property no.8555 and 8562 to 8564, Model Basti, Near Filmistan Cinema, Delhi. Ex.PW-5/1 is the Suit No.302/08 Page 11 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
site plan of the property no.8555 to 8564, Model Basti, Delhi
- 5. Ex.PW-5/2 is the site plan of the suit property. Ex.PW-6/1 is the sale deed dated 17.03.1999 executed by Sh. Sunil Sharma/the defendant no.4 in favour the defendant no.1 in respect of the suit property.
21. I have heard arguments of Sh. P. P. Tiwari, Adv. for the plaintiffs and Sh. B. S. Yadav, Adv. for the defendant no.1 and perused the written arguments and case law filed on record.
22. On careful consideration of the evidence in the light of the pleading of the parties and relevant statutory provisions, issue-wise finding is as under:
ISSUE NO.1, 2 and 6:
23. Issue no.1, 2 and 6 are inter-linked and hence, they are taken up together for determination.
24. The plaintiff filed an application u/sec. 4 of the Partition Act, 1893 (Hereinafter 'the Act') for purchasing the portion shown in Brown colour in the site plan Ex.PW-5/2 originally belonged to Pt. Mangal Chand. He relied on Ghantesher Ghosh v. Madan Mohan Ghosh JT 1996 (8) SC 410.
25. Ld. Counsel for the plaintiff argued that the stair case no. 8561 is an undivided property attached with dwelling portion over the property no. 8558 to 8660, and 8562 to 8564 (shares of Pt. Sohan Lal and Pt. Mangal Chand). He argued that the defendant no.1 being a stranger to the family of the plaintiff and the defendant no.2 to 8, is not entitled to joint possession. He relied on the partition deed dated 15.03.19555 Ex.PW-2/1, Sale deed dated 10.02.1969 Ex.PW-3/1 and Sale deed dated 04.08.1992 Ex.PW-4/1 to Suit No.302/08 Page 12 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
contend that the stair case no.8561 has been an undivided property having dwelling portions over the said properties since 25.03.1939 and used jointly by the plaintiff and the defendant no.4, and their predecessors - in - interest for using their dwelling houses at the first floor and second floor over the property no. 8558 to 8560, and property no. 8562 to 8564 respectively facing East Park Road. He argued that the defendant no.4 had closed the stair case no. 8561 leading to the second floor of the property no. 8555 at the time of sale of the said floor to Smt. Asha Gupta on 30.10.1996 vide Ex.PW-1/1 and the stair case no. 8561 leading from first floor to third floor was left for exclusive use of the plaintiff and his family members.
26. Ld. Counsel for the plaintiff argued that the defendant no.1 is not mentioned as a tenant in respect of the first floor of the property no.1 in the Sale deed dated 04.08.1992 Ex.PW-4/1. He argued that in the sale deed dated 17.03.1999 Ex.PW-6/1, the defendant no.1 and 4 have been shown as resident of first floor of the property no.8555 on the front page of the sale deed Ex.PW-6/1 whereas the defendant no.1 has been shown in occupation of one room, kitchen and bath at the page 5 of the sale deed. He argued that the defendant no.4 had sold the first floor of the property no. 8555 and (first floor of undivided property no. 8561 having drawing/dining hall over shops no.8562 to 8564 with the right to use the stair case no. 8561 through two doors for downstairs and upstairs from the said drawing/dining hall as shown in brown colour in the site plan Ex.PW-5/2) to the defendant no.1. He argued that the stair case no. 8561 is still an undivided property as it has not been partitioned. He argued that portion shown in Brown colour in the site plan Ex.PW-5/2 is Suit No.302/08 Page 13 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
an undivided dwelling house, and possession and enjoyment thereof is confined to the members of the family. He argued that the defendant no.4 had no right to give possession of the said portion to a stranger to the family. He argued that the defendant no.1 being a stranger is debarred from exercising the right of joint possession. He relied upon Bhim Singh and Anr. v. Ratnakar Singh, AIR 1971 Orissa 198 and Boto Krishna Ghose v. Akhoy Kumar Ghose, AIR 1950 Cal 111.
27. Ld. Counsel for the plaintiff argued that the plaintiff is ready to purchase the portions purchased by the defendant no.1 and offered Rs.4,00,000/- being double amount of the sale consideration as stated in the sale deed Ex.PW-6/1.
28. Ld. Counsel for the defendant no.1 argued that the plaintiff is exercising his rights of pre-emption in the suit. He argued that Section 44 of the Transfer of Property Act ('the T. P. Act') is not applicable in Delhi. He argued that infact, the plaintiff is seeking injunction for restraining the defendant no.1 from using the stair case no. 8561. He argued that no issue of declaration in respect of the stair case no. 8561 was framed, and the legality of the sale of joint rights of ownership and possession in respect of the stair case no. 8561 is not in dispute. He argued that no declaration can be made in respect of the portion over and above the property no. 8555, 8562 to 8564 as it was exclusively owned and possessed by the defendant no.4. He argued that relief of permanent injunction in respect of the stair case cannot be granted in the absence of relief of declaration in respect of the stair case no. 8561. He argued that in the absence of relief of declaration in respect of stair case no. 8561, the Suit No.302/08 Page 14 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
defendant no.1 is entitled to enjoy the stair case no. 8561 along with other co-sharers. He argued that the properties along with the stair case no. 8561 were divided several times and there is no undivided dwelling house is in existence. He argued that the plaintiff has stated that the defendant no.4 is the exclusive owner of his portions and entitled to sell the said share. He argued that the stair case no. 8561 opens in the drawing room of the defendant no.1 and therefore, the defendant is entitled to use it for proper use and enjoyment of his property. He argued that the suit property is not an undivided property. He argued that there is no undivided family in existence. He argued that stair case cannot be a dwelling house as it does not have independent status apart from the main house. He argued that stairs are integral part of the divided house.
29. In so far as argument of Ld. Counsel for the defendant no.1 that section 44 of the T. P. Act is not applicable in Delhi is concerned, it can be stated that The Transfer of Property Act, 1882 was made applicable to the Union Territory of Delhi (except sec. 129) by notification in the Gazette of India, dated 17.11.1962. Moreover, the Delhi High Court in the case of Harinder Pal Singh Chawla v. Nirmal Daniere & Ors. 51 (1993) DLT 191 considered the application of sec. 44 of the T. P. Act and sec. 4 of the Partition Act, 1893. Therefore, there is no merit in the contention of Ld. Counsel for the defendant no.1 that sec. 44 of the T. P. Act is not applicable in Delhi.
30. In so far as contention of Ld. Counsel for the defendant no.1 that the relief of declaration in respect of stair case no. 8561 cannot be granted in the absence of an issue in that Suit No.302/08 Page 15 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
regard and therefore, legality of sale of joint rights of stair case no. 8561 is not under challenge, it can be stated that the plaintiff has made a specific prayer that the portions over property no.8562 to 8564 on the first floor with stair case no. 8561 be declared an undivided family property and prayed injunction restraining the defendant no.1 from using and occupying the portions, as stated above, with the stair case no. 8561, East Park Road, Model Basti, Near Filmistan Cinema, Delhi. The plaintiff in as many as 15 paragraphs of the plaint has stated that the said stair case is undivided property attached for the use of portions on the first and second floor of the properties above the properties no. 8558 to 8560, and 8562 to 8564 (portions previously owned by Pt. Sohan Lal and Pt. Mangal Chand). The defendant no.1 was well aware of the case of the plaintiff that the plaintiff is claiming the stair case no.8651 attached for the use of the said portions as an undivided property.
31. In his written arguments, the defendant no.1 categorically stated that the plaintiff is seeking declaration that the property covered by the sale deed dated 17.03.1999 as an undivided family property and the defendant no.1 has no right to use and occupy it. Therefore, the defendant no.1 cannot draw benefit by the absence of the word 'stair case no. 8561' in the issue no.1. Moreover, the issue no.1 for the relief of permanent injunction specifically relates to the stair case no. 8561. Thus, the contention of the defendant no.1 hereby rejected. It can be noticed that in Bhim Singh and anr. V. Ratnakar Singh & Ors., AIR 1971 Orissa 198; the plaintiff filed a suit for permanent injunction restraining the stranger - transferee from jointly possessing the dwelling house. The Trial Court held that the stranger - transferee Suit No.302/08 Page 16 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
were not entitled to joint possession with the plaintiff in respect of the suit property and decreed ejectment of the defendants. Before the High Court, it was contended that the plaintiff sued for injunction only. The learned trial Judge, however, has decreed ejectment of the transferee defendants. Hon'ble High Court held that "Once it is held that the plaintiff is entitled to protection under the second part of Section 44 of the Transfer of Property Act and the stranger purchasers are liable to be restrained, it would follow that even if the defendants have been put in possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment. The remedy of the stranger purchaser is actually one of partition. Until then, he is obliged to keep out from asserting joint possession." Therefore, the provision being a benevolent provision and it must be liberally construed. Such a technical approach as contended by Ld. Counsel for the defendant no.1 cannot be accepted.
32. Ld. Counsel for the plaintiff argued that the portion of the property no.8561 having drawing/dining hall at first floor over the shop no. 8562 to 8564 towards East Park Road as shown in Brown colour in the site plan Ex.PW-5/2 is a dwelling house belonging to an undivided family and the defendant no.1 being a stranger to the family of the plaintiff and the defendant no.2 to 8 has no right to use and occupy the said portion. He argued that the plaintiff no.2 is a co- sharer of the undivided family and undertakes to buy the suit property at Rs. 4,00,000/- or as per market value fixed by this Court. He argued that Section 4 of the Partition Act is applicable to suit for permanent injunction filed by one of the co-sharer of the undivided family for restraining the stranger Suit No.302/08 Page 17 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
- transferee from using and occupying the dwelling house. He relied on Ghantesher Gosh v. Madan Mohan Ghosh & Ors., JT 1996 (8) SC 410 in support of the application under Section 4 of the Partition Act, 1893.
33. The Statement of Objects and Reasons for enacting the Partition Act, 1893 is reproduced as under:-
"It is also proposed in the Bill to give the Court the power of compelling a stranger, who has acquired by purchase a share in a family dwelling house when he seeks for a partition, to sell his share to the members of the family who are the owners of the rest of the house at a valuation to be determined by the Court. This provision is only an extension of the privilege given to such shareholders by Section 44, paragraph 2 of the Transfer of Property Act, and is an application of a well known rule which obtains among Muhammadans everywhere and by custom also among Hindus in some parts of the country.
34. The underlying objective of the Partition Act was to extend the privilege already available to a co-sharer in a family dwelling house as per Section 44 of the T. P. Act to the effect that a stranger to the family who becomes the transferee of an undivided share of one of the co-owners in a dwelling house belonging to undivided family could not claim a right of joint possession or common or part enjoyment of the house with other co-owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co-sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of the common dwelling house by the remaining co-owners being Suit No.302/08 Page 18 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
members of the same family sharing a common hearth and or home.
35. Section 4 of the Act is as under:-
"4. Partition suit by transferee of share in dwelling - house.
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member, of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section."
36. On perusal of the afore-noted provision, the following conditions must be satisfied:
(1) A co-owner having undivided share in the family dwelling house should effect transfer of his undivided interest therein; (2) The transferee of such undivided interest of the co-owner should be an outsider or stranger to the family; (3) Such transferee must sue for partition and separate possession of the undivided share transferred to him by the concerned co-owner;
(4) As against such a claim of the stranger transferee, any member of the family having undivided share in the dwelling Suit No.302/08 Page 19 /37 Murari Lal Sharma (now deceased) through L.R's v.
Narender Pal Gupta and Ors.
house should put forward his claim of pre-emption by undertaking to buy out the share of such transferee; and (5) While accepting such a claim for preemption by the existing co-owner of the dwelling house belonging to the undivided family, the Court should make a valuation of the transferred share belonging to the stranger transferee and make the claimant co-owner pay the value of the share of the transferee so as to enable the claimant co-owner to purchase by way of pre-emption the said transferred share of the stranger transferee in the dwelling house belonging to the undivided family so that the stranger transferee can have no more claim left for partition and separate possession of his share in the dwelling house and accordingly can be effectively denied entry in any part of such family dwelling house.
37. In Ghantesher Ghosh v. Madan Mohan Ghosh and others (supra); Hon'ble Supreme Court considered the question whether Section 4 of the Partition Act, 1893 can be pressed in service in execution proceedings arising out of a final decree for partition against a stranger transferee of a share belonging to another erstwhile co-owner of the said dwelling house.
38. In the said case, one of the co-owner of the dwelling house filed a suit for partition against the co-owners and a final decree after a preliminary decree was passed. Before the execution of the final decree, the plaintiff had gifted her undivided interest in the dwelling house to a stranger to the joint family. The stranger - appellant had filed execution petition for execution of the final decree obtained by his predecessor - in - interest. Before the division of the dwelling Suit No.302/08 Page 20 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
house by metes and bounds, the respondent - co-sharer had filed an application under sec. 4 of the Partition Act for enforcing his claim of pre-emption against the appellant stranger transferee. Executing Court held that the application was not maintainable after the final decree in the partition suit. In the revision, the Calcutta High Court had taken the view that the said application was maintainable as the final decree had not satisfied by actual division of the property by metes and bounds. Hon'ble Supreme Court in the para no.9 of the said judgment has held that 'It is true that amongst other conditions, Section 4 requires for its applicability that such stranger transferee must sue for partition and only in that eventuality the right of pre-emption envisaged by Section 4 can be made available to the other contesting co-owners." Hon'ble Supreme Court has interpreted the words 'transferee sues for partition' and held that the "suing for partition" would not necessarily mean filing of a suit in the first instance by the transferee. If a transferee seeks to execute any final decree for partition in favour of his transferor co-owner, he can be said to have initiated a suit for partition. It was held that Section 4 can be pressed in service by any of the co-owners of the dwelling house belonging to undivided family till the decree for partition is fully executed.
39. In Srilekha Ghosh (Roy) v. Partha Sarathi Ghosh, AIR 2002 SC 2500; Hon'ble Supreme Court held that "The condition for application of the statutory provision is that a dwelling house belonging to an undivided family must have been transferred to a person who is not a member of such family and such transferee sues for partition. If this pre-
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condition is satisfied then if any member of the family being a shareholder undertakes to buy the share of such transferee the Court is to make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder."
40. In the case of Gautam Paul v. Debi Rani Paul and others (2000) 8 SCC 330; Hon'ble Supreme Court held that "Except for S. 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of pre-emption, under S. 4, is exercised the conditions laid down therein have to be complied with. As seen above, one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/ outsider does nothing after purchasing the share. In other words, S. 4 is not giving a right to a co-sharer to pre-empt and purchase the share sold to an outsider anytime he/she wants. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co- sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of S. 4.
41. It is therefore, evident that in the absence of the suit for partition by the stranger transferee of a dwelling house belonging to an undivided family, the application under Sec. 4 is not maintainable. Whether the suit property is a dwelling house belonging to an undivided family shall be considered while dealing with sec. 44 of the T. P. Act.
42. Ld. Counsel for the plaintiff argued that the defendant Suit No.302/08 Page 22 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
no.1 inducted a stranger to undivided family of the plaintiff and the defendant no.2 to 8. He argued that the defendant no.1 is a stranger to the family of the plaintiff and the defendant no.2 to 8, and therefore, the defendant no.1 is not entitled to joint possession. He argued that the possession and enjoyment of the stair case no. 8561 and the portions over the shop no. 8562 to 8564 (originally owned by Pt. Mangal Chand) is confined to the family of the plaintiff and the defendant no. 2 to 8. He argued that the defendant no.4 was not legally authorized give possession of the suit property to the defendant no.1. He argued that the portion shown in Brown colour in the site plan is still an undivided family property. He argued that the defendant no.1 is debarred from exercising right of joint possession which is main incidence of undivided family. He argued that sale of the portion on the first floor above property no. 8562 to 8564 (originally belonged to Pt. Mangal Chand) with the right to use the stair case is illegal, and contrary to sec. 44 of the T. P. Act. He argued that the stair case no. 8561 attached for the use of the portions of Pt. Sohan Lal and Pt. Mangal Chand, is an undivided property. He argued that the portion shown in brown colour in the site plan has not been divided and therefore, it is an undivided property and the defendant no.1 be restrained from using and occupying the said portion and stair case no. 8561.
43. The edifice of the case of the plaintiff is founded on the Section 44 of the Transfer of the Property Act, 1882, which is reproduced as under:
44. Transfer by one co-owner. - Where one of two or more co-owners of immovable property legally competent Suit No.302/08 Page 23 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
44. Section 44 of the T. P. Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. The legislative intent is to insulate domestic peace of members of an undivided family in occupation of a dwelling house. The whole object therefore, is to provide for peaceful enjoyment of the property and to secure privacy.
45. In D. C. Dhiman v. Official Liquidator (1994) 1 Cal LT 378, it was held that "A co-owner can resist a third party who has purchased a share in the undivided dwelling house."
46. In Ghantesher Ghosh v. Madan Mohan Ghosh and others (supra); Hon'ble Supreme Court observed "that a stranger to the family who becomes the transferee of an undivided share of one of the co-owners in a dwelling house belonging to undivided family could not claim a right of joint possession or Suit No.302/08 Page 24 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
common or part enjoyment of the house with other co- owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co- sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of the common dwelling house by the remaining co-owners being members of the same family sharing a common hearth and or home."
47. In Bhim Singh and another v. Ratnakar Singh and others AIR 1971 Orissa 198; It was held in the para no.12 of the judgment that 'In order to find out whether any relief under Section 44 of the Act can be had by the plaintiff, it would be necessary to ascertain whether the disputed property constituted a dwelling house and whether the same belonged to an undivided family. It would also be necessary to find out as to whether the transferee defendants are or are not members of the undivided family.
48. In Dorab Cawasji Warden v. Coomi Sorab Warden AIR 1990 SC 867, it was held that "In order to attract the second paragraph of this section the subject-matter of the transfer has to be a dwelling house belonging to an undivided family and the transfer is a share in the same to a person who is not a member of the family."
49. Full Bench of the Allahabad High Court in Sultan Begam v. Debi Prasad, (1908) ILR 30 All 324 (FB) considered the meaning of the words ''dwelling house belonging to an undivided family' occurring in section 44 of the T. P. Act and observed that the object is to prevent a Suit No.302/08 Page 25 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
transferee of a member of a family who is an outsider from forcing his way into a dwelling house in which other members of his transferor's family have a right to live, and that the words 'undivided family' must be taken to mean 'undivided qua the dwelling house in question, and to be a family which owns the house but has not divided' it."
50. In Nil Kamal Bhattachariya v. Kamakshya Charan Bhattacharjya AIR 1928 Cal 539, The principle enunciated in Sultan Begam v. Debi Prasad (supra) (supra) was followed and held that it was an undivided family since the house had not been divided by metes and bounds among them selves.
51. In Sivaramayya v. Venkata, AIR 1930 Mad 561; it was held that "The words 'undivided family' are not restricted to mean a family joint in status but include a family divided in status but undivided qua the property."
52. In Boto Krishna Ghose v. Akhoy Kumar Ghose, AIR 1950 Cal 111; It was held that "undivided" family" meant simply a family not divided qua the dwelling -house, in other words, a family which owns a dwelling house and has not divided it. It does not mean Hindu joint family or even joint family. The members need not be joint in mess. The essence of the matter is that the house itself should be undivided amongst the members of the family who are its owners. The emphasis is really on the undivided character of the house.
53. Accordingly, the issue before us is whether the suit property is a dwelling house, whether it belonged to an undivided family and whether the defendant no.1 is a stranger transferee.
Suit No.302/08 Page 26 /37Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
54. It is evident from careful scrutiny of the evidence on record that the property no.8555 to 8564, measuring 221 square yards Model Basti, Near Filmistan Cinema, New Delhi
- 110005 was purchased by three brothers namely Pt. Sohan Lal, Pt. Mangal Chand and Pt. Kishori Lal vide Sale deed dated 25.03.1939. The plaintiff and the defendant no.2 are sons of Pt. Sohan Lal, the defendant no.3 is the son of the Pt. Kishori Lal and the defendant no.4 is his grandson. The defendant no.5 to 8 are sons of Pt. Mangal Chand. It is further evident that Pt. Sohan Lal, Pt. Kishori Lal and Pt. Mangal Chand had mutually partitioned the said properties on 15.03.1955 vide Partition Deed Ex.PW-2/1. The relevant portion of the said partition deed is extracted below:
"We have only this property joint. Our mess is separate since long. We have no other joint property movable or immovable. We do not wish to keep this property as joint and want to partition this property forever due to family circumstances. We have separate businesses. Only the said property is joint and we do not want to kept this property as joint. We have mutually assessed the value of the said properties at Rs.30,000/-. I Pt. Sohan Lal have taken the property valued at Rs.14,000/- which is shown in Green colour in the site plan and have become owner in possession thereof. I Pt. Kishori Lal have the property valued at Rs.11,000/- which is shown in Pink Colour in the site plan and have become owner in possession thereof. I Pt. Mangal Chand have taken the property valued at Rs. 5,000/- which is shown in Yellow colour in the site plan and have become owner in possession thereof. Pt. Sohan Lal and Pt. Kishori Lal shall pay Rs.4,000/- and Rs.1,000/- to Pt.Suit No.302/08 Page 27 /37
Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
Mangal Chand being excess value of their share at the time of registration of the partition deed. In this manner, share of each party is satisfied with mutual consent and all the parties have become owner in possession of their respective share so partitioned.
55. The partition deed Ex.PW-2/1 further reads:
"Each party shall have the absolute right to transfer his share in any manner. None of the parties has any concern whatsoever with the properties which has fallen to the share of the another party nor shall have in future."
56. Therefore, in view of amicable partition of the dwelling house by Pt. Sohan Lal, Pt. Kishori Lal and Pt. Mangal Chand undivided family had ceased to exist. Therefore, the family of the plaintiff and the defendant no.2 to 8 cannot be said to be an undivided family. After the said partition, Pt. Kishori Lal had become exclusive owner of the property no.8555 and Pt. Mangal Chand had become exclusive owner of the property no.8562 to 8564 with common use of the stair case no.8561 with Pt. Sohan Lal. There was complete partition by metes and bounds between predecessor - in - interest of the plaintiff and the defendant no.2 to 8. The suit property does not belong to an undivided family. From 15.03.1955, it was a divided house. The plaintiff had no interest in the suit property. The plaintiff is not a co-sharer of the suit property. Even the plaintiff and the defendant no.2 has divided their portions after death of Pt. Sohan Lal.
57. To add further, it is the admitted case of the plaintiff as pleaded in the para no.3, 4 and 6 of the plaint that Pt. Mangal Chand had sold his share as shown in Yellow colour in Suit No.302/08 Page 28 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
the site plan Ex.PW-5/1 vide sale deed dated 10.02.1959 Ex.PW-3/1 to Pt. Kishori Lal and as such, Pt. Kishori Lal had become owner of the portions as shown in Pink colour and Yellow colour in the site plan Ex.PW-5/1. The plaintiff stated that Pt. Kishori Lal had partitioned his entire properties in the year 1967 between his sons Sh. Hazari Lal Sharma and the defendant no.3 and the portions owned by Pt. Kishori Lal had come to the share of the defendant no.3 and as such, the defendant no.3 had become exclusive owner the property no.8555, 8562 to 8564. The plaintiff stated that the defendant no.3 had sold the said portions to his son/the defendant no.4 vide sale deed dated 04.08.1992 Ex.PW-4/1 and as such, the defendant no.4 had become exclusive owner of the property no.8555, 8562 to 8564.
58. It would be relevant to take note of cross-examination, the plaintiff (PW-5) "Except 8561, all the brothers became exclusive owner of their portions after the partition dated 15.03.1955. The defendant no. 4 sold the second floor portion to of the property no.8555 to Smt. Asha Gupta. The first floor portion of the property no.8555 and joint portion of 8561 has been sold by the defendant no.4 to the defendant no.1. The defendant no.4 has also sold the ground floor of the property no.8555. The defendant no.4 became exclusive owner of the share of Lt. Pandit Kishori Lal and Late Pandit Mangal Chand by purchase except the property no.8561 which is a stair case in joint ownership of LR's of Pt. Sohan Lal and the defendant no.4. It is correct that the families of Pt. Sohan Lal, Pt. Kishori Lal and Pt. Mangal Chand were divided in the year 1955."
59. The plaintiff (PW-5) admitted in his cross-examination Suit No.302/08 Page 29 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
that Pt. Mangal Chand had sold his share i.e. shops no. 8562 to 8564 as well as upper floors situated above the said shops and his share in the property no.8561 to Pt. Kishori Lal. He stated that thereafter, Pt. Mangal Chand had ceased to have any right, title or interest therein. The plaintiff in the para no. 11 of the plaint stated that the defendant no.4 can sell his exclusive share in the properties in his occupation.
60. Therefore, the claim of the plaintiff that the portion over the property no.8562 to 8564 on the first floor facing East Park Road, previously owned by Pt. Mangal Chand, with stair case no.8561, East Park Road, Model Basti, Near Filmistan Cinema, New Delhi as shown in Brown colour in the site plan Ex.PW-5/2 is an undivided property fails. The defendant no.4 was the exclusive owner of the property no. 8555, 8562 to 8564, East Park Road, Model Basti, Near Filmistan Cinema, New Delhi and he could sell the first floor of the said portion to the defendant no.1. One thing can be noticed here. The defendant no.4 had sold the second floor of the property no.8555, 8562 to 8564 to Smt. Asha Gupta vide sale deed 30.10.1996 Ex.PW-1/1 but the plaintiff maintained silence in respect of the said transfer.
61. The plaintiff is not a co-sharer of the suit property i.e. first floor of the property no.8562 to 8564 sold by the defendant no.4. The suit property belonged to the defendant no.4. The plaintiff had no undivided interest therein. The plaintiff is not entitled to the benefit of Section 44 of the T. P. Act. The suit property is not a dwelling house belonging to an undivided family and therefore, the plaintiff is not entitled to relief of declaration and injunction, as prayed.
62. Faced with this situation, Ld. Counsel for the plaintiff Suit No.302/08 Page 30 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
heavily relied upon the partition deed Ex.PW-2/1 that "the stair case towards east side would be common to Pt. Sohan Lal and Pt. Mangal Chand and they will carry out repairs thereof jointly with common funds." He argued that the stair case no.8561 had come to joint share of Pt. Sohan Lal and Pt. Mangal Chand. He argued that the stair case no. 8561 has been an undivided property throughout. He relied upon Boto Krishna Ghose v. Akhoy Kumar Ghose (supra) that "undivided family" means simply a family not divided qua the dwelling house, in other words, a family which owns a dwelling house and has not divided it." He argued that the members of the family may have partitioned all their other joint properties and may have separated in mess and worship, but they would still be an undivided family in relation to the dwelling house so long as they have not divided it amongst themselves. He argued that the stair case no. 8561 has not been divided/ partitioned. He argued that the stair case no. 8561 has been jointly used the plaintiff and the defendant no.4 and their predecessor - in - interest for using their respective portions over the property no. 8558 to 8560, and 8562 to 8564. He argued that the stair case no. 8561 can be looked upon as a dwelling house. He relied upon the definition of dwelling house in the afore-stated judgment that "The family dwelling house consists of the house itself and all necessary appurtenances required for beneficial enjoyment of the house, neighboring homestead plots, including the bari and even a tank attached to the residential house in a compact manner have been included in the meaning of 'dwelling house'. He argued that the stair case no. 8561 being a dwelling belonging to an undivided family.
63. The main grievance of the plaintiff, as culled out from a Suit No.302/08 Page 31 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
meaningful reading of the plaint surfaced during the course of arguments, is that he is seeking an injunction restraining the defendant no.1 from using the stair case no. 8561. The plaintiff has un-necessarily included the portions over the first floor of the property no. 8562 to 8564 despite the fact that the plaintiff was aware that the defendant no.4 was the exclusive owner of the said portions which he has sold to the defendant no.1 vide sale deed dated 17.03.1999. The relief of injunction is a discretionary and equitable relief. The plaintiff has not approached the court with clean hands. The plaintiff can be non-suited on this ground alone.
64. Be that as it may, let us proceed to consider the merits of the arguments submitted by Ld. Counsel for the plaintiff.
65. The word 'dwelling house' is neither a term of a art nor just a word synonymous with residential house. It means a house or houses fully occupied by the members of a family. This section protects only a dwelling house, which means a house wholly inhabited by one or more members of the undivided family. It presupposes the existence of a house inhabited by members of an undivided family. The plaintiff and the defendant no.2 have also partitioned their share by metes and bounds. Stair case of a divided house cannot have separate entity apart from the house. Stair case is an integral part of the house. It cannot have separate entity apart from the house. It is an amenity for the use and occupation of the house, and not a house by itself. The stair case forming part of an undivided dwelling house would fall under the definition of dwelling house. Stair case leading to divided portions of different houses cannot be treated as a dwelling house itself.
Suit No.302/08 Page 32 /37Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
66. There was complete severance of the joint status and the partition by metes and bounds on 15.03.1955. The house was divided and the co-sharers had become exclusive owners of their portions. Stair case no. 8555 had come to exclusive share of Pt. Kishori Lal. Stair case no. 8556 had come to exclusive share of Pt. Sohan Lal. The stair case no. 8561 was jointly used by Pt. Sohan Lal and Pt. Mangal Chand and their successor - in - interest for the use and enjoyment of their respective partitioned portions. The stair case of a divided house cannot be considered as a dwelling house belonging to an undivided family.
67. One thing can be noted herein. The plaintiff is claiming the stair case no. 8561 as an undivided property up to first floor only whereas he is claiming exclusive right to use the stair case leading to third floor from the first floor. It does not stand to reason as to why the plaintiff is claiming exclusive right of use of the stair case no. 8561 leading to third floor from first floor when the stair case no. 8561 has not been partitioned.
68. In so far as contention that the defendant no.1 has a separate entrance through stair case no. 8555 but he is using the stair case no. 8561 to disturb the peace of the family of the plaintiff is concerned, it can be stated that the plaintiff is also having another separate stair case no. 8556 for the use and enjoyment of his portions on the first and second floor of the property.
69. At this stage, it would be apposite to take note of the observations of the Hon'ble High Court of Delhi in the case of Harinder Pal Singh Chawla v. Nirmal Daniere & Ors., 51 Suit No.302/08 Page 33 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
(1993) DLT 191:
"Now after a hundred years have passed since the Partition Act, 1893, the concept of purdah has become almost extinct. People have started living in flats in multi-storeyed buildings, have commons walls, ceilings walls, ceilings and sharing various commons facilities. Such restriction cannot be applied on transfer of such flats. The whole concept has undergone a sea-change. In the present day social set up this concept ought to be continued to cases where there has been no partition of the family of the dwelling house. From a strictly legal point of view till there is partition of a property each co-sharer has interest in the entire property which ought to be protected. So where parties have specific shares in family dwelling house which is yet to be partitioned, these provisions can be pressed into service."
70. It is evident that that the suit property does not belong to any undivided family but it belongs to the defendant No.
1. The provision of Section 44 of the T. P. Act and Sec. 4 of the Partition Act apply to a dwelling house owned by an undivided family. In the present case, the suit property was owned solely by the defendant no.4 and not by an undivided family. For this reason also the application under Section 4 is not maintainable in law, and accordingly dismissed.
71. Therefore, sec. 44 of the T. P. Act is also not applicable. The plaintiff had no legal right in the suit property. The plaintiff had no cause of action to file the present suit. The plaintiff is not entitled to relief of declaration and permanent injunction, as prayed.
72. Accordingly, the issue no. 1, 2 and 6 are decided in Suit No.302/08 Page 34 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
favour of the defendant no.1 and against the plaintiff. ISSUE NO.3 AND 4:
73. The defendant no.1 in its written statement contended that the suit is barred by the provisions of the Specific Relief Act and the suit should have been valued at Rs. 2,00,000/- for relief of declaration being the sale consideration of the sale deed dated 17.03.1999.
74. Ld. Counsel for the defendant no.1 argued that the plaintiff should have filed a suit for possession instead of suit for injunction. He argued that the plaintiff is liable to pay court fees on the value of the sale deed dated 17.03.1999 for the relief of declaration.
75. By way of the present suit for declaration and permanent injunction, the plaintiff is enforcing a statutory right conferred by sec. 44 of the T. P. Act. It is one thing to say that the plaintiff has not been to prove his case and it is another thing to say that the suit is not maintainable for want of relief of possession and the plaintiff is liable to pay court fees on the value of the sale deed dated 17.03.1999. Issue of the maintainability of the suit and payment of the court fees is decided on the averments made in the plaint. In the case of Bhim Singh and another v. Ratnakar Singh and others, AIR 1971 Orissa 198, the plaintiff had filed a suit for permanent injunction for restraining the defendants stranger transferee from jointly possessing the dwelling house belonging to an undivided family. In the said case, the trial court had ordered ejectment of the defendants. Hon'ble Calcutta High Court affirmed the decree of the trial court and held that "even if the defendants have been put into Suit No.302/08 Page 35 /37 Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
possession or have come jointly to possess they can be kept out by injunction. The effect of that injunction would necessarily mean ejectment'.
76. Similar view was taken in Udayanath Sahu v. Ratnakar Bei, AIR 1967 Orissa 139 and Ramaswami Pillai v Subramania Pillai, AIR 1967 Orissa 156.
77. Accordingly, the suit for declaration and injunction filed by the plaintiff is maintainable. The plaintiff was not required to seek possession nor liable to pay court fees on the value of the sale deed dated 17.03.1999. Therefore, the issue no.3 and 4 are decided in favour of the plaintiff and against the defendant no.1.
ISSUE NO.5:
78. The defendant no.1 in its written statement contended that the suit is barred by time. The defendant no.1 neither stated nor argued as to how the suit is barred by time. The defendant no.4 had sold the suit property vide sale deed dated 17.03.1999 and the suit was filed on 18.03.2000 within one year from the said sale and accordingly, it is held that the suit is within time.
79. Accordingly, the issue no.5 is decided in favour of the plaintiff and against the defendant no.1.
Relief:
80. In view of the finding on the issue no.1, 2 and 6, the suit for declaration and permanent injunction filed by the plaintiff against the defendants is hereby dismissed with costs.
Suit No.302/08 Page 36 /37Murari Lal Sharma (now deceased) through L.R's v. Narender Pal Gupta and Ors.
81. Decree sheet be drawn accordingly.
Announced in the open court SANJAY SHARMA)
Today on 18.07.2011 JSCC-cum-ASCJ-cum
Guardian Judge (West),
Delhi
Suit No.302/08 Page 37 /37