Full Text
HIGH COURT OF DELHI
CS(OS) 445/2021 & I.A. 12135/2021 & I.A. 42119/2024
MR. RAJESH JAIN .....Plaintiff
Through: Mr. Ankit Jain, Mr. Rishabh Jain, Ms. Apurva Tyagi, Ms. Radhika Bansal and Ms. Divyanshu Rathi, Advocates
Through: Mr. Lalit Gupta, Mr. Priyansh Jain, Mr. Leebo Bose, Mr. Anmol Ghai and Mr. Ankit Singh, Advocates for D-1
Mr. Asheesh Jain, Mr. Adarsh Kumar Gupta and Ms. Pooja Bhardwaj, Advocates for D-2.
Mr. Pradeep Bhardwaj, Advocate for D-3.
Date of Decision: 23rd October, 2024
MANMEET PRITAM SINGH ARORA, J (ORAL):
ORDER
1. This is an application filed by the plaintiff under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (‘CPC’) seeking judgment on admissions of defendant no. 1 made in the written statement.
2. Mr. Ankit Jain, learned counsel for the applicant/plaintiff stated that the plaintiff by way of the present suit has, inter-alia, sought partition of the suit properties being (i) property bearing no. 151, Veer Nagar, Jain Colony, New Delhi-110007 (‘Veer Nagar property’) and (ii) property bearing no. 2683-84, half at 13, Sadar Thana Road, New Delhi-110006 (Sadar Thana property’) by metes and bounds along with decree of possession qua the said properties.
3. He stated that it is admitted on record that the plaintiff, defendant no. 1 and defendant no. 2 are the only persons entitled to the Veer Nagar property, which has devolved upon them after the death of their father, late Shri Ajit Prasad Jain. In this regard, he relied upon the relinquishment deed dated 21.02.2006 executed by Smt. Trishla Jain (wife of late Shri Ajit Prasad Jain) and Smt. Ujjwal Jain (daughter of late Shri Ajit Prasad Jain) in favour of the plaintiff, defendant nos. 1 and 2.
4. He stated that the order dated 31.07.2024 passed in these proceedings records that defendant nos. 2 and 3 have admitted the case of the applicant/plaintiff herein and defendant no. 1 is effectively the only contesting party to the present suit.
5. He stated that the Veer Nagar property was owned by late Shri Ajit Prasad Jain and late Shri Surender Kumar Jain, both having a 50% share each. He stated that the said property stood partitioned between the said two brothers and there was a separate 2½ storey structure in the rear portion which fell to the share of late Shri Surender Kumar Jain. He stated that the front portion fell to the share of late Shri Ajit Prasad Jain. And, the plaintiff, defendant no. 1 as well as defendant no. 2 are entitled to separate possession of the existing structure in the said front portion as per the written statement of defendant no. 1.
6. He stated that defendant no. 1 in the written statement has pleaded that there was an oral partition between the plaintiff, defendant no. 1 and, defendant no. 2 with respect to the Veer Nagar property and the said property was partitioned in the following manner: (i) ground floor fell to the share of the applicant/plaintiff; (ii) second floor and one room on the third floor fell to the share of defendant no. 1; and (iii) the first floor along with two rooms on the third floor fell to the share of defendant no. 2.
7. He stated that defendant no. 1 in the written statement has further pleaded that since Veer Nagar property has already been partitioned by metes and bounds, and the plaintiff, defendant no. 1 and, defendant no. 2 have taken exclusive possession of their respective portions; ttherefore, nothing survives for adjudication qua the said property. He stated that defendant no. 1 has also relied upon the fact that the plaintiff, defendant no. 1 and defendant no. 2 are filing their independent and respective return of the house tax and depositing tax for their respective portions in the said property.
8. He stated that after duly considering defendant no. 1’s written statement of defendant no. 1, the plaintiff, without prejudice to the case presented in the plaint, expresses his willingness to accept the terms of the family settlement propounded by defendant no. 1 qua the Veer Nagar property.
9. He stated that, therefore, a decree of preliminary and final partition along with the decree of possession and permanent injunction qua Veer Nagar property be passed in favour of the plaintiff based on the assertions made in the written statement of defendant no. 1 with respect to plaintiff’s share in the Veer Nagar property i.e., the ground floor of the said property.
10. He stated that the plaintiff abides by the declaration of the undivided shares of the parties in the land beneath Veer Nagar property as per the preliminary decree dated 31.07.2024 passed in CS (OS) 456/2023. He stated that however, the contest is on the mode of partition of the superstructure on the Veer Nagar property.
11. In reply, Mr. Lalit Gupta, learned counsel for the nonapplicant/defendant no. 1 stated that the reliefs sought in this application cannot be granted on two principal grounds. Firstly, the plaintiff is bound by the stand taken in the plaint, wherein the plaintiff has categorically asserted that the Veer Nagar property is undivided. Secondly, the plaintiff cannot selectively rely on a part of the written statement and ignore the other part of the written statement. He stated that the suit has been filed for two properties i.e. the Veer Nagar property and the Sadar Thana property. He stated that in the written statement defendant no. 1 has relied upon the family settlement with regards to partition of both the properties i.e., the Veer Nagar property and the Sadar Thana property. He stated that the plaintiff cannot be allowed to mischievously to rely upon the family settlement qua Veer Nagar property while disputing the family settlement qua Sadar Thana property. He stated that the plaintiff has sought a judgment in this application only in respect of the front portion of the Veer Nagar property, i.e., 50% whereas, there is not even a whisper with regard to any back portion, i.e., remaining 50%.
12. He stated that initially, when the plaint was filed, the plaintiff herein had wrongly claimed partition for the entire Veer Nagar property, which admeasure 233 sq. meters. He stated that the Veer Nagar property was owned by late Shri Ajit Prasad Jain with his brother late Shri Surender Kumar Jain in equal shares. He stated that plaintiff, defendant no. 1 and defendant no. 2 are the legal heirs of late Shri Ajit Prasad Jain.
13. He stated that the 50% share in the Veer Nagar property owned by late Shri Surender Kumar Jain was sold by his legal heirs in the year 2017. He stated that 25% share in the said property was sold to Shri Pankaj Jain s/o Mr. Jitender Jain, while the other 25% share was sold to Jitender Jain (HUF) vide two separate registered sale deeds, both dated 27.04.2017. He stated the said fact is a matter of record in CS (OS) 456/2023.
14. He stated that all documents executed and registered by the legal heirs of late Shri Surender Kumar Jain and the legal heirs of late Shri Ajit Prasad Jain records that the Veer Nagar property was undivided. He stated that plaintiff and defendant no. 2 herein are parties to the relinquishment deed dated 21.02.2006 executed by Smt. Trishla Jain and Smt. Ujjwal Jain, which also records that the Veer Nagar property is undivided.
15. He stated that in this suit i.e. CS (OS) 445/2021 only 50% of Veer Nagar property, which was owned by late Shri Ajit Prasad Jain is the subject matter of the present suit. He stated however, that in CS (OS) 456/2023, the entire Veer Nagar property which includes the 50% share of late Shri Surender Kumar Jain is the subject matter.
16. He stated that a preliminary decree declaring the respective shares of the parties in the Veer Nagar property already stands passed in CS (OS) 456/2023 on 31.07.2024, which records the consent of the plaintiff and defendant no. 2 herein to sell their undivided share through bidding. He stated that filing of the captioned application amounts to resiling from the order dated 31.07.2024.
17. He stated that the superstructure standing on the Veer Nagar property is more than 50 years old and re-construction of the superstructure is imperative.
18. In reply, Mr. Ashish Jain, learned counsel for defendant no. 2 stated that defendant no. 2 in his written statement has stated that the Veer Nagar property is undivided between plaintiff, defendant no. 1 and defendant no. 2. He stated that defendant no. 2 has not taken a stand with respect to the plea of oral partition set up by defendant no. 1 in his written statement. He stated that it is a clear admission by defendant no.1 herein in his written statement [filed in the captioned suit] that the Veer Nagar property has already been partitioned; however, defendant no. 1 has taken a contradictory stand in his written statement filed by him in CS(OS) 456/2023, wherein he has stated that no formal partition of the Veer Nagar property had taken place and that it remained undivided among its owners. He stated that defendant no. 2 is in agreement with the stand taken by the plaintiff in the present application and submitted that defendant no. 2 has expressed his wilingness to accept the terms of the oral family settlement qua the Veer Nagar property as propounded by defendant no.1 in his written statement.
19. This Court has considered the submissions of the parties and perused the record.
20. The captioned suit i.e., CS(OS) 445/2021 has been filed seeking partition of the estate of late Shri Ajit Prasad Jain. The parties to the suit are admittedly, the Class-I legal heirs of late Shri Ajit Prasad Jain and it is admitted that Shri Ajit Prasad Jain died intestate on 02.01.2006.
21. The subject matter of the captioned suit are two (2) immovable properties - (i) Veer Nagar property and (ii) Sadar Thana property; however, the present application is concerned with Veer Nagar property only.
22. Late Shri Ajit Prasad Jain owned 50% share in the Veer Nagar property admeasuring 233 sq. yards and, therefore, he was the owner of 116.[5] sq. yards in the said property.
23. It has come on record that remaining 50% of the Veer Nagar property was owned by late Shri Surender Kumar Jain, the brother of late Shri Ajit Prasad Jain. It has also been pleaded that late Shri Ajit Prasad Jain occupied the front portion whereas late Shri Surender Kumar Jain occupied the rear portion of the Veer Nagar property. This fact is relevant as the 100% of the Veer Nagar property is the subject matter of partition in CS(OS) 456/2023 and the proceedings in the said suit will be adverted to in subsequent paragraphs.
24. Thus, captioned suit CS(OS) 445/2021 only seeks partition inter-se the Class-I legal heirs of late Shri Ajit Prasad Jain qua 50% share in the Veer Nagar Property.
25. It is admitted that late Smt. Trishla Jain[1] (wife of late Shri Ajit Prasad Jain) and Smt. Ujwal Jain (defendant no. 3 herein and the daughter of late Shri Ajit Prasad Jain) have executed a relinquishment deed dated 21.02.2006 qua their respective shares in the Veer Nagar property in favour of the plaintiff, defendant no. 1 and defendant no. 2 herein. In this manner, the entire 50% share of late Shri Ajit Prasad Jain in Veer Nagar property, devolved upon, the plaintiff, defendant no. 1 and, defendant no. 2 herein in equal shares.
26. In the plaint of the captioned suit CS(OS) 445/2021, the plaintiff has categorically affirmed on oath that the Veer Nagar property is undivided and the parties to the suit are in the joint possession of the said property. In the plaint, the plaintiff has specifically averred[2] that defendant no. 1 has misappropriated the biggest portion of the Veer Nagar property for his family’s exclusive use to the prejudice of the plaintiff and defendant no. 2. It is further averred in the plaint that the plaintiff was constrained to issue a legal notice on 05.07.2021 calling upon the defendants for partition of the estate of late Shri Ajit Prasad Jain and vide reply dated 22.07.2021, defendant no. 1 has raised a false plea of oral partition to deprive the plaintiff of his rightful share in the suit properties. In the plaint, the plaintiff was also aggrieved by the construction being carried out in the Veer Nagar property by defendant no. 1 and it was this last act, which constrained the plaintiff to file the captioned suit.
27. Defendant no. 2 filed his written statement admitting the claims made by the plaintiff that Veer Nagar property is undivided and disputing any oral partition between the parties. Since deceased in the year 2007 Refer to relevant paras i.e., para no. 7(xv)
28. Defendant no. 1 filed his written statement opposing the reliefs sought in the plaint and stated that the super-structure on the Veer Nagar property, which fell to the share of late Shri Ajit Prasad Jain already stands partitioned between the plaintiff, defendant no. 1 and, defendant no. 2. In the written statement, defendant no. 1 has enlisted the separate portions in the superstructure of the Veer Nagar property, which are in the possession of the plaintiff, defendant no. 1 and, defendant no. 2. Relying upon the said averment the defendant no. 1 has opposed the present suit on the ground of lack of cause of action. With respect to Sadar Thana property, as well, defendant no. 1 has contended that the said property stands physically partitioned between the parties.
29. The plaintiff in this application has only relied upon the averments made by defendant no. 1 with respect to partition by metes and bounds of the Veer Nagar property and has not accepted defendant no.1’s contention with respect to partition by metes and bounds of the Sadar Thana property. In this application filed on 08.10.2024, the plaintiff has sought a decree in terms of the pleadings of defendant no. 1 qua the Veer Nagar property with respect to plaintiff’s specific portion in the Veer Nagar property
30. However, previously and during the pendency of the captioned suit i.e., CS(OS) 445/2021, a separate suit i.e., CS (OS) 456/2023 was filed by one Mr. Pankaj Jain for the partition of the entire Veer Nagar property. In the said suit, it was disclosed that the 50% share owned by late Shri Surender Kumar Jain in the Veer Nagar property has been sold by his Class-I legal heirs to one Mr. Pankaj Jain and Jitender Jain HUF by two separate sale deeds, both dated 27.04.2017. Mr. Pankaj Jain is the son of Mr. Jitender Jain i.e., defendant NO. 1 herein and Jitender Jain HUF is an HUF controlled by defendant no. 1 herein, as its Karta. Pertinently, there is no dispute with respect to the sale of 50% share owned by late Shri Surender Kumar Jain in favour of Mr. Pankaj Jain and Jitender Jain HUF.
31. CS(OS) 456/2023 was listed before this Court on 31.07.2024. During the hearing, on the basis of the admissions of the parties and documents placed on record, a preliminary decree regarding the undivided shares of the plaintiff, defendant no. 1, defendant no. 2, Mr. Pankaj Jain and Jitender Jain HUF in the Veer Nagar property was passed by this Court. The undivided shares of the parties were determined in the order dated 31.07.2024 as under:- Parties in CS(OS) 456/2023 Parties in the present suit i.e., Share in the land of the suit property i.e. Veer Nagar property Mr. Pankaj Jain, Plaintiff Not a party 25% Jitender Jain (HUF), Defendant No. 1 Not a party 25% Mr. Jitender Jain, Defendant No. 2 Defendant No. 1 16.67% Mr. Anil Jain, Defendant No. 3 Defendant No. 2 16.67% Mr. Rajesh Jain, Defendant No. 4 Plaintiff 16.67%
32. On the said date, the parties further agreed to inter-se bidding for the sale and purchase of the shares in the Veer Nagar property. The relevant portion of the order dated 31.07.2024 read as under: -
and 4.
14. Defendant nos. 3 and 4 states that they are willing to consider the said offer and reserve the right to bring a third-party buyer so that the valuation is the best market valuation available.
15. Learned counsel for plaintiff, defendant nos. 1 and 2 state that they have no objection to the bidding of the suit property, however, subject to the plaintiff and defendant nos. 1 and 2 getting a right to match the offer made and revise it to a higher price.
16. To enable the parties to be present for inter se bidding, list on 11.09.2024 along with CS(OS) 445/2021.”
33. The matter was thereafter, adjourned on 11.09.2024 to enable the parties to arrive at a mutual settlement regarding the sale of the Veer Nagar property. However, the settlement talks were unsuccessful due to disagreements over the sale price and in the aforesaid background, the plaintiff has filed the present application.
34. In addition, the plaintiff herein declined from making a bid for the suit property on 14.10.2024.
35. By way of this application, the plaintiff has sought to resile from his previous statement made under oath in the plaint regarding the Veer Nagar property. In the plaint, the plaintiff has stated that the Veer Nagar property is undivided and has prayed for partition by metes and bounds. Furthermore, on 31.07.2024 during the arguments in CS(OS) 456/2023, the plaintiff submitted before this Court that he is ready and willing to sell his share in the Veer Nagar property for a fair market value. However, the plaintiff has now sought to materially alter his position and asserts that he is willing to accept the stand of defendant no. 1 that the Veer Nagar property has already been partitioned by metes and bounds among the plaintiff, defendant no. 1 and defendant no. 2 albeit without prejudice to his stand in the plaint. Additionally, the plaintiff now suggests that the parties to the present suit can continue to reside in their existing portions of the Veer Nagar property without needing any further orders.
36. In his plaint, the plaintiff has categorically alleged that there was no partition of Veer Nagar Property and has expressed a grievance that defendant no. 1 has taken possession of a larger portion of the super-structure on the Veer Nagar property. In the plaint, the plaintiff has also averred that he has been cornered into a small portion of the Veer Nagar property by defendant no. 1 to plaintiff’s detriment. Additionally, the plaintiff has objected to any further construction being undertaken by defendant no. 1 in the Veer Nagar property. The stand now being canvassed in this application is inconsistent with the stand taken in the plaint, which has been affirmed on oath as required by law. The plaintiff cannot be permitted to approbate and reprobate as this flip-flop of the plaintiff prejudices the adjudication of the suit.
37. In the considered opinion of this Court, the present application has been filed to resile from the stand taken in the order dated 31.07.2024, wherein, the plaintiff has unequivocally agreed to the sale of his share in the Veer Nagar property. The averment in the present application is a mere legal stratagem to bargain a higher price and not a bona fide pleading. It appears that the intent of the plaintiff is to turn the Court proceedings into negotiations, apparently seen in boardrooms, aiming to secure a better sale price for his share in the property in question.
38. This Court is of the opinion that permitting the plaintiff to change his unequivocal stand taken in the plaint that the suit property is undivided and granting the relief sought in the present application, so as to permit the plaintiff to resile from the order dated 31.07.2024 would constitute an abuse of the legal process.
39. The plaintiff has also relied upon the relinquishment deed dated 21.02.2006 executed by Smt. Trishla Jain (wife of late Shri Ajit Prasad Jain) and Smt. Ujjwal Jain (daughter of late Shri Ajit Prasad Jain) in favour of the plaintiff, defendant nos. 1 and 2 qua Veer Nagar Property, which records that the said property is undivided. Thus, the plaintiff is bound by the recitals of the said relinquishment deed and accordingly, he cannot make contrary assertions that the Veer Nagar property was partitioned by metes and bounds.
40. The super structure standing on the property is more than 50 years old. It has been stated before this Court that in view of the existing building byelaws re-development of the suit property would be the most viable mode of utilizing the property. In the plaint, the plaintiff has objected to any new construction by defendant no. 1. Under the existing bye-laws all co-owners have to jointly apply to the Municipal Corporation for a fresh sanction. In the facts of this case, since the plaintiff is opposing any fresh construction, the redevelopment of the property is not a possible mode of partition. Keeping in view the shares of the parties as recorded in order dated 31.07.2024, it is apparent that partition by metes and bounds is not possible and the sale of the property is the only viable mode for partition.
41. This Courts also finds merit in the submissions made by defendant NO. 1, specially, that the plaintiff cannot selectively accept part of defendant NO. 1’s stand qua the Veer Nagar property while disregarding defendant no. 1’s same stand qua the Sadar Thana property. Moreover, the plaintiff is not unconditionally accepting the stand of defendant no. 1 in the written statement, rather, he is accepting it without prejudice to the stand taken by him in the plaint. The pleadings in the plaint run absolutely contrary to the stand of defendant no. 1 qua the Veer Nagar property. If this Court were to accept the plaintiff’s conditional change of stance, it would be difficult for the Court to reconcile the pleadings, which could further prejudice the trial concerning the remaining estate of late Shri Ajit Prasad Jain. The course adopted by the plaintiff is, therefore, not commendable to this Court as it does not align with the principles of right and good conscience. As noted above, the present application is only a legal stratagem for extracting a better bargain price for the plaintiff’s share in the Veer Nagar property and is not bona fide.
42. The plaintiff’s prayer for permitting the plaintiff to now change his stance qua Veer Nagar property by allowing this application, indicates that plaintiff has scant regard for affidavits filed in the legal proceedings with respect to the stand taken therein and statements made before Court on 31.07.2024.
43. In addition, granting the prayer sought in this application would result in the partition of only the super structure standing in the front portion of the Veer Nagar property, leaving the rear portion of the Veer Nagar property unpartitioned and this judgment would create a conflict in passing the judgment in CS(OS) 456/2023, where the entire 100% of the Veer Nagar property is the subject matter. The legal documents executed between legal heirs of late Sh. Ajit Prasad Jain and late Sh. Surender Kumar Jain, who were the original owners, all record that the Veer Nagar property is undivided. This Court therefore, cannot accede to the prayers of the plaintiff as it will cause injustice to the remaining stakeholders.
44. The sole reason for this application is the plaintiff’s dissatisfaction with the sale price offered by defendant no. 1 during negotiations. However, this Court is unwilling to permit legal proceedings to be reduced to a charade by the plaintiff. Appropriate orders for sale of the Veer Nagar property shall be passed in CS(OS) 456/2023.
45. The defendant no. 2 as well has failed to abide by his stand taken in the written statement that the Veer Nagar property is undivided and has orally supported the reliefs sought by the plaintiff in this application. The oral submissions of defendant no. 2 are contrary to its written pleadings and is therefore liable to ignored.
46. In view of the aforesaid reasons, the captioned application is dismissed.
47. At the joint request of the parties, list the matter along with CS(OS) 456/2023 on 21.11.2024.