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Krishan Kumar Vats vs Shobha Ram Vats & Ors on 13 February, 2023

Author: Chandra Dhari Singh

Bench: Chandra Dhari Singh

                 $~24
                 *    IN THE HIGH COURT OF DELHI AT NEW DELHI
                 +    CS(OS) 97/2023

                          KRISHAN KUMAR VATS                                    ..... Plaintiff
                                      Through:              Mr.Awnish Kumar, Advocate with
                                                            Plaintiff in person

                                             versus

                          SHOBHA RAM VATS & ORS.                               ..... Defendants
                                      Through:

                       CORAM:
                       HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
                                          ORDER

% 13.02.2023 I.A. No. 2699/2023 (for condonation of delay)

1. The present application under Section 151 of the Code of Civil Procedure, 1908 has been filed by the plaintiff seeking condonation of delay of 8 days in re-filing the CS(OS) 97/2023.

2. Heard.

3. In view of the averments made in the application, the application is allowed and the delay of 8 days in re-filing the present petition bearing CS(OS) No. 97/2023 is condoned.

4. The application is disposed of.

I.A. 2698/2023 (for Exemption) Subject to the plaintiff filing the clear, original and legible/typed copies of any dim documents on which the plaintiff may seek to place reliance, within four weeks from today, exemption is granted for the present.

The application is disposed of.

CS(OS) 972023

1. The present suit has been filed by the plaintiff seeking the following reliefs:

" a) Declare Gift Deed dated 13.07.2021 of entire ground floor and entire third floor in the suit property bearing number 242-C, Hari Nagar Ashram, New Delhi registered before sub-registrar V (1) vide registration number 2829 in book number 1, volume no. 1612 on page 100 to 119 executed by defendant no. 1 in favour of defendant no. 3 as null, void and inoperative;

b) Declare Will dated 28.06.2021 of the entire first floor and entire second floor in the suit property bearing No. 242-C, Hari Nagar Ashram, New Delhi-110014 executed by defendant no. 1 in favour of defendant no. 3 as null, void and inoperative;

c) Pass a decree of Partition of the suit property bearing No. 242-C, Hari Nagar Ashram, New Delhi- 110 014 equally among all the parties to this suit and further to appoint a Local Commissioner to partition the suit property by metes and bounds.

d) Pass a Decree of possession in favour of the plaintiff and the defendants after partition of the suit property by metes and bounds.

e) Pass a Decree of permanent injunction in favour of the plaintiff and against the defendant No. 1 and 3, their agents, associates, representatives thereby restraining the said defendants from interfering in the peaceful ownership and possession of their respective portions of the suit property.

f) Pass a decree of mandatory injunction thereby directing the defendant No. 1 and 3 to restore the possession of the plaintiff to his 1/7th share in the suit property after partition.

g) Pass a decree of mandatory injunction in favour of plaintiff and against defendant No. 1 and 3, restraining Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:14.02.2023 19:21:07 their legal heirs, associates, friends, agents etc. from creating hindrances and obstructions for use and enjoyment of suit property.

h) Costs of the suit may also be awarded in favour of the plaintiff and against the defendants No. 1 and 3.

i) Any other or further order/relief which this Hon'ble Court deem fit and proper under the circumstances of the case may also be passed in favour of the plaintiff and against the defendants no. 1 and 3, in the interest of justice."

2. The learned counsel appearing for the plaintiff submits that the present suit for declaration, partition, permanent and mandatory injunction is filed on behalf of the plaintiff's 1/7th share in the suit property bearing No. 242-C, Hari Nagar Ashram, New Delhi-110014, which is an ancestral property, wherein the plaintiff along with the defendant Nos. 1, 3, 5 and 6 are in occupation and possession, whereas defendant Nos. 2 and 4 are also entitled for their respective shares in proportion to the share of the plaintiff.

3. It is submitted on behalf of the plaintiff that the parties to this lawsuit are coparceners of the Hindu Joint Family, and the defendant No. 1 was the Karta of the aforementioned Hindu Joint Family, however, the members of the joint family have divided in disarray and finances due to the intransigence of the defendants No. 1 and 3.

4. It is submitted on behalf of the plaintiff that the defendant No. 1 in Civil Suit No. CS SCJ 72/2022 filed by the defendant No. 5 before the Civil Judge, South East, Saket Courts, New Delhi, seeking injunction against disconnection of electricity, as the BSES has issued notice to the defendant No. 5 for disconnection based on the complaint of the defendant No. 1.

5. It is submitted on behalf of the plaintiff that on 8th March, 2022, the defendant No. 1 in the aforementioned civil suit filed his written statement as a defendant, in which he attested to the execution of a gift deed dated 13 th July, 2021 in favour of the defendant No. 3. The plaintiff then got a certified copy of the aforementioned Registered Gift Deed for the ground and first floors and learned of a Will executed by defendant No. 1 in favour of defendant No. 3 for the second and third floors of the subject property.

6. It is submitted on behalf of the plaintiff that the plaintiff being aggrieved by the disposition of the suit property in its entirety in favour of only defendant No. 3 by Gift Deed and Will is illegal, false, and the gift deed as well as the Will are sham documents which do not create any right, title, or interest in favour of defendant No. 1 or defendant No. 3 exclusively without partitioning the suit property among all co-sharers.

7. Learned counsel for the plaintiff submits that contrary to the rights of the plaintiff and other defendants in the Hindu Joint Family property, defendants No. 1 and 3 are contemplating legal action to strip the plaintiff and other defendants of their legitimate ownership and possession of the suit property.

8. Heard the learned counsel for the plaintiff and perused the record.

9. Let the plaint be registered as a suit.

10. Issue summons in the suit.

11. The written statement(s) shall be filed within thirty days from the receipt of summons. Along with the written statement(s), the defendants shall also file affidavit of admission/denial of the documents of the plaintiff.

12. Liberty is given to the plaintiff to file replication(s), if any, within thirty days from the receipt of the written statement(s). Along with the Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:14.02.2023 19:21:07 replication(s) filed by the plaintiff, affidavit of admission/denial of the documents of the defendants be filed by the plaintiff.

13. List before the Joint Registrar on 15th March, 2023, for completion of service and pleadings.

14. List before the Court on 22nd August, 2023.

I.A.2697/2023 (O-XXXIX R-1 & 2 of CPC)

1. The present application has been filed by the plaintiff seeking the following reliefs:

" a. Pass an ad-interim injunction in favour of the applicant/plaintiff and against the defendant no. 1 and 3, thereby restraining the defendants, their associates, representatives etc. from selling, transferring or alienating or creating third party interest in the suit property.

b. Further may be pleased to pass an ad-interim injunction in favour of the plaintiff and against the defendant No. 1 and 3 from creating any hindrance to the plaintiff, his family members from egress and ingress and also peaceful possession and beneficial enjoyment of the portion of the property in which the plaintiff and his family members are presently in occupation and possession of the suit property till the disposal of the suit.

c. Any other relief which this Hon'ble Court may deem fit under the facts and circumstances of the case may also be granted in favour of the plaintiff and against the defendant no.1 and 3, in the interest of justice."

2. Learned counsel appearing on behalf of the plaintiff submitted that the suit property is an ancestral property, but defendant No. 1 and defendant No. 3 have fraudulently executed a Gift Deed and Will in favour of Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:14.02.2023 19:21:07 defendant No. 3 without the knowledge and approval of the plaintiff and other defendants.

3. It is submitted on behalf of the plaintiff that according to the plaintiff's information, the defendant No. 3 is actively attempting to close the transaction for the transfer of the suit property within the first week of the month of December 2022 by inviting potential purchasers and builders to visit and view the suit property.

4. It is submitted on behalf of the plaintiff that the defendant No. 1 attempted to illegally strip the plaintiff and the other defendants of their rightful ownership and possession of the suit property by executing the gift deed in favour of the defendant No. 3. If the defendant Nos. 1 and 3 are not prevented by an ex-parte ad-interim injunction from selling, transferring, alienating, or creating any interest in the suit property, the plaintiff and the other defendants will be entitled to possession of the suit property.

5. Heard, the learned counsel appearing for the plaintiff.

6. Issue notice.

7. Notice be issued to the defendants through all modes.

8. Reply(ies) be filed within four weeks.

9. Rejoinder(s) thereto, if any, be filed within two weeks thereafter.

10. A prima facie case is made out on behalf of the plaintiff. Consequently, till the next date of hearing, status quo with regard to title and possession shall be maintained in respect of the suit property.

11. It is further directed that the defendants shall not interfere with the use, occupation and possession of the plaintiff in the suit property.

12. Compliance of Order XXXIX Rule 3 of the Code of Civil Procedure, 1908 (CPC) be done within five days.

13. List before the Joint Registrar on 15th March, 2023 for completion of service and pleadings.

14. List before the Court on 22nd August, 2023.

CHANDRA DHARI SINGH, J FEBRUARY 13, 2023 SV/UG Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:14.02.2023 19:21:07