CS(OS)/298/2016 of SH ANIL KUMAR Vs SH RAJBIR SINGH & ORS

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ CS(OS) 298/2016 and I.A. Nos. 7274/2016 (under Order XXXIX Rule 1 and 2 CPC), 12803/2016 (under Order XXIII Rule 3 CPC) and 13633/2016 (Additional facts) Rule 1 and 2 CPC), 12803/2016 (under Order XXIII Rule 3 CPC) and 13633/2016 (Additional facts)

SH ANIL KUMAR

Represented by:

versus

Decided on: 26[th] July, 2017

..... Plaintiff

Mr. Raj Bahadur Singh, Advocate. Advocate.

SH RAJBIR SINGH & ORS

..... Defendants

Represented by: Mr. Rajesh Gupta, Advocate for defendant Nos. 1, 4 to 10. Mr. Abhimanyu Singh Khatri, Advocate for defendant Nos. 2 and 3 with defendant Nos. 2 and 3 in person. for defendant Nos. 1, 4 to 10. Mr. Abhimanyu Singh Khatri, Advocate for defendant Nos. 2 and 3 with defendant Nos. 2 and 3 in person.

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

MUKTA GUPTA, J. (ORAL)

1.The present suit was filed by Anil Kumar son of late Balkishan with

the following prayers:

“(a) Pass decree for declaration in favour of the plaintiff against the defendants No. 1 to 6, thereby declaring that the defendants No. 1 to 6 are bound by the terms and conditions as contained in the Mutual Family Partition dated 29.07.1994, and further declare that the defendants No. 1 to 6 have not any kind of right, title, interest, privity or concern with respect to the land of Khasra No. 23//7/2(02-08), 16(04-16), 25(04-12) total measuring 11 bighas 16 biswas situated in the revenue estate of village Mabarikpur Dabas, Delhi, in the interest of justice; against the defendants No. 1 to 6, thereby declaring that the defendants No. 1 to 6 are bound by the terms and conditions as contained in the Mutual Family Partition dated 29.07.1994, and further declare that the defendants No. 1 to 6 have not any kind of right, title, interest, privity or concern with respect to the land of Khasra No. 23//7/2(02-08), 16(04-16), 25(04-12) total measuring 11 bighas 16 biswas situated in the revenue estate of village Mabarikpur Dabas, Delhi, in the interest of justice;

(b) Pass decree of permanent injunction in favour of the plaintiff against the defendant Nos. 1 to 6, thereby defendant No. 1 to 6 be restrained permanently from creating any kind of interference and hindrance to the peaceful possession of the plaintiff with respect to the land of Khasra Nos. . 23//7/2(02-08), 16(04-16), 25(04-12) total measuring 11 bighas 16 biswas situated in the revenue estate of village Mabarikpur Dabas, Delhi. plaintiff against the defendant Nos. 1 to 6, thereby defendant No. 1 to 6 be restrained permanently from creating any kind of interference and hindrance to the peaceful possession of the plaintiff with respect to the land of Khasra Nos. . 23//7/2(02-08), 16(04-16), 25(04-12) total measuring 11 bighas 16 biswas situated in the revenue estate of village Mabarikpur Dabas, Delhi.

(c) Pass decree of declaration, thereby declared that the defendant No. 1 to 6 are only entitled to the enhanced compensation amount if any in lieu of the acquired land belonging to them in accordance with said mutual family partition dated 29.07.1994, in the Land Acquisition Case No. 65A/2013 titled as “ Sh. Niranjan Singh & Ors. Versus Union of India & anr.” and Land Acquisition Case No. 89A/2013 titled as “Rajbir Singh & Ors. versus Union of India & Anr.” and Land Acquisition Case No. 30A/2013 titled as “Inder Dev Vs. Union of India” which cases are presently pending in the court of Sh.Manish Gupta, ADJ-01, North-West, Rohini Courts Complex, Delhi, in the interest of justice. defendant No. 1 to 6 are only entitled to the enhanced compensation amount if any in lieu of the acquired land belonging to them in accordance with said mutual family partition dated 29.07.1994, in the Land Acquisition Case No. 65A/2013 titled as “ Sh. Niranjan Singh & Ors. Versus Union of India & anr.” and Land Acquisition Case No. 89A/2013 titled as “Rajbir Singh & Ors. versus Union of India & Anr.” and Land Acquisition Case No. 30A/2013 titled as “Inder Dev Vs. Union of India” which cases are presently pending in the court of Sh.Manish Gupta, ADJ-01, North-West, Rohini Courts Complex, Delhi, in the interest of justice.

(d) Cost of the suit be also awarded in favour of the plaintiff and against the defendants;”and against the defendants;”

2.The suit properties belonged to late Shri Todar who was survived by three sons Juglal, Kamle and Ghanshyam. The property thereof devolved on the sons and grandsons of Juglal, Kamle and Ghanshyam in the 1/3[rd] ratio. The family tree is depicted in para -4 in I.A. No. 12803/2016 as under:

3.The parties to all the three branches entered into mutual family partition dated 29[th] July, 1994 wherein defendant Nos. 1, 2 and 3 sons of late Om Prakash were the first party and together took 1/3[rd] share. As per the terms of settlement the following lands came to the share of the first, second and third party respectively:

“1. That the first party hereto will hold, use, enjoy, the land bearing Khasra Nos. 16/13, 18 (1-3[rd] share out of these KH. Nos.), Kh. Nos. 24/20/1, 20/2 and 21, 31/5, 3/6, 7, 15 and 23 of village Mubarikpur Dabas, Delhi, without any objections, claims or titles of the other parties.

2. That the second party hereto will hold, use, enjoy, the land bearing Khasra Nos. 3/14, 24 and 1/3[rd] share out of 16/7

and 18, Kh. Nos. 23/7/2, 16, 25 and 31/4 of village Mubarik Pur Dabas, Delhi, without any objections, claims or titles of the other parties.

3. That the third party hereto will hold, use, enjoy, the land bearing Khasra Nos. 3/16, 25, 17/1, 17/2 and 18 and 1/3[rd]share of Kh. Nos. 16/8 and 18 and Kh. Nos. 23/6/2, 14, 15 and 24/11, situated in village Mubarik Pur Dabas, Delhi, without any objections, claims or titles of the others.”

4.On the basis of this mutual family partition dated 29[th] July, 1994, Anil Kumar who was one of the co-owners of the second party filed the present suit impleading the remaining co-owners of the second party and members of the first and third party. On the filing of the suit and pursuant to the summons being issued, parties entered into settlement and an application under Order XXIII Rule 3 CPC was filed being I.A. No. 12803/2016 which was accompanied by the affidavit of the plaintiff and all the defendants including defendant Nos. 2 and 3. The vakalatnama in favour of the counsel was also signed by all the defendants including defendant Nos. 2 and 3. I.A. No. 12803/2016 was followed by filing another application being I.A. No. 13633/2016 pursuant to order dated 18[th] October, 2016 passed by this Court since the mutual family partition dated 29[th] July, 1994 was also required to be made part and parcel of the application under Order XXIII Rule 3 CPC. I.A. No. 13633/2016 was also accompanied by the affidavits of the plaintiff and all the defendants including defendant Nos. 2 and 3. Considering the background facts and to have holistic compromise decree passed, this Court vide order dated 9[th] February, 2017, directed formal detailed statements of each of the party to be recorded. Pursuant thereto the plaintiff, defendant Nos. 1 and 4 to 10 appeared before the learned Joint Registrar and

got recorded their statements affirming the contents of the two applications and the mutual family partition dated 29[th] July, 1994. However, defendant Nos. 2 and 3 did not appear despite repeated adjournments when Mr. Abhimanyu Singh Khatri, Advocate appeared on their behalf on 11[th] April, 2017 for the first time and disputed the settlement arrived at between the parties. Hence the matter was listed before the Court.

5.Today defendant Nos. 2 and 3 are present in Court. Copies of their Aadhar Card are taken on record and they are duly identified by Mr. Abhimanyu Singh Khatri, Advocate who has filed vakalatnama on their behalf. Though initially disputing the mutual family partition when this Court insisted on recording of the statement of defendant Nos. 2 and 3, both defendant Nos. 2 and 3 state that mutual family partition was arrived at between the parties on 29[th] July, 1994, copy whereof is placed as Annexure PX at pages 27 to 29 of I.A. No. 13633/2016 renumbered pages being 60 to 62 and they had signed the said settlement. Defendant No. 3 Dharmender, states that he had signed the said mutual family partition in English and the mutual family partition bears his signatures in English. Defendant No. 3 admits his signatures on the copy of mutual family partition deed dated 29[th]July, 1994 placed on record. Defendant No. 2 Birender Singh also identifies his signature on the mutual family partition deed dated 29[th] July, 1994. Defendant Nos. 2 and 3 state that they also want partition of the suit properties as per the mutual family partition deed dated 29[th] July, 1994 however, their grievance is that they are not getting their shares as per the mutual family partition dated 29[th] July, 1994, though they admit having received compensation from the Government pursuant to the acquisition. Defendant Nos. 2 and 3 state that they will also be bound by their affidavits

in support of I.A. No. 12803/2016 under Order XXXIII Rule 3 CPC and I.A. No. 13633/2016 under Section 151 CPC.

6.Defendant Nos. 2 and 3 have signed the order sheet in acknowledgment of their statements made before this Court today. 7.In view of the fact that the plaintiff and the defendants are agreeable for the decree in the suit in terms of the mutual family partition dated 29[th]July, 1994 and para-5 of I.A. No. 12803/2016, the suit is decreed declaring the shares of the plaintiff and the defendant Nos. 1 to 6 to be governed by the terms and conditions contained in the mutual family partition, 29[th] July, 1994, further declaring that the parties to the suit are restrained from creating any kind of hindrance, interference to the peaceful possession of the respective portions of the suit properties coming into the share of other parties. The suit is decreed in terms of the mutual family partition deed dated 29[th] July, 1994 and para-5 of I.A. No.12803/2016. The contents of the mutual family settlement and para 5 of I.A. No. 12803/2016 will incorporated in the decree sheet. Suit and the applications are disposed of accordingly.

JULY 26, 2017 ‘yo’

(MUKTA GUPTA) JUDGE