Full Text
HIGH COURT OF DELHI
KAVITA SHARMA ..... Plaintiff
Through: Mr. Nishant Dutta, Mr. Pradeep Bhardwaj and Mr. Kunal Sehrawat, Advocates
Through: Mr. Udit Gupta, Ms. Aditi Kapoor and Mr. Rakesh Kumar, Advocates.
JUDGMENT
CPC for Judgment on Admission)
1. The application under Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as „CPC‟), has been filed on behalf of the plaintiff for Judgment on Admission for Partition, Mandatory Injunction and Permanent Injunction.
2. The facts in brief are that the plaintiff, Ms. Kavita Sharma is the wife of late Sh. Rakesh Sharma who was the real brother of the defendant, Mr. Kamaljeet Sharma. Admittedly, the Suit property bearing No. B-18, Kirti Nagar, New Delhi (hereinafter referred to as suit property) was sold by its erstwhile owner, Shyam Sunder Vohra, Ms. Santosh Kumari and Ms. Anita Vohra, vide Registered Sale Deeds in favour of the plaintiff and the defendant. The details of the Sale Deeds are as under:- “(a) Ground Floor: Two Registered Sale Deeds, both dated 28.04.2000, were executed in favour of the plaintiff and defendant respectively transferring one half undivided share in favour of each of the two parties. (b) First Floor: Two Registered Sale Deeds, both 15.05.2000 were executed in favour of the plaintiff and defendant respectively transferring one half undivided share in favour of each of the two parties.
(c) Second Floor: One single Registered Sale
Deed, dated 13.06.2000 was executed in favour of plaintiff transferring the ownership and title for the entire Second Floor in favour of the plaintiff.”
(d) Basement: Sale Deed exclusively in the name of defendant.”
3. Thus, according to the aforementioned Sale Deeds, the plaintiff is the exclusive lawful owner by virtue of the aforesaid Sale Deed dated 13.06.2000 and is entitled to access of the entire second floor of the Suit property. Likewise, the defendant is the exclusive owner of the Basement of the subject property. Further, the plaintiff and defendant admittedly own half undivided share in the ground floor and the first floor of the Suit property as per Sale Deeds dated 28.04.2000 and 15.05.2000, respectively.
4. The plaintiff in the application has asserted that no substantive defence has been put forth by the defendant in the amended Written Statement dated 30.04.2022, regarding the co-ownership of the ground floor and the first floor of the suit property except that he has claimed that an Oral Family Settlement took place between the parties whereby the second floor of the Suit property was allegedly transferred to the defendant by the plaintiff. Admittedly, no documents were executed for mutation of the suit property in favour of the defendant. The defendant has not filed any Counter-Claim or initiated any independent proceedings seeking implementation of the alleged Oral Settlement. Moreover, the Original title documents continue to be in possession of the plaintiff, which would not have been so in case there was any alleged Oral Settlement between the parties.
5. Further, the defence of the defendant is barred in terms of Sections 91 and 92 of the Indian Evidence Act, 1872 since no written document has been executed between the family members recording this alleged Family Settlement. Reliance has been placed on the Case of Roop Kumar vs. Mohan Thedani (2003) 6 SCC 595 wherein the Apex Court held that Section 91 of the Indian Evidence Act which embodies “best evidence rule”, forbids proving of the contents of a writing otherwise than by producing the document itself. It declares a doctrine of substantive law, that in the case of a written contract, all the proceedings and contemporaneous oral expressions of the things are merged in the writing or displaced by it. It has been best described by Wigmore that the rule in no sense is a rule of evidence but of substantive law. It declares certain kinds of facts as legally ineffective in the substantive law, which results in forbidding the facts to be proved at all. Reference has also been made to the case of Promila Gulati vs. Anil Gulati MANU/DE/0425/2015.
6. Reliance has been placed on the case of S. Saktivel (Dead) by LRS. vs. M. Venugopal Pillai and Others (2000) 7 SCC 104 to assert that in terms of Section 92(4) of the Indian Evidence Act, no evidence of any Oral Agreement or Statement modifying the Contract or Agreement can be permitted when such a contract is required to be reduced into writing.
7. It is further asserted that a mere vague plea of Oral Agreement is liable to be rejected, as observed in the case of Dr. Suraj Munjal vs. Chandan Munjal and Ors. 2022 SCC OnLine Del 1717.
8. It is, therefore, submitted that the Judgment be passed on Admissions under Order XII Rule 6, CPC for Partition, Mandatory Injunction and Permanent Injunction.
9. The application is contested by the defendant, who in his Reply has taken the preliminary objection that the present Application is wholly misconceived and is a gross misuse and abuse of process of law. It is based on false submissions, contrary and contradictory stands and is a mean to mislead and misguide the Court. It is denied that there are any unequivocal, unambiguous and clear admissions made by the defendant, which would entitle the plaintiff for a decree as claimed. In fact, the disputed question of facts are involved and no relief can be granted under Order XII Rule 6 of CPC.
10. The defendant has claimed that even before the filing of the present Suit, the undivided share of the plaintiff in the Ground floor and First floor of the Suit property, has been attached in different Execution proceedings pending before the different courts at Tis Hazari Courts, Delhi.
11. Further, even the second floor of the Suit property stands attached in Execution Petition being Ex.P. No. 57/2017, titled as „Om Prakash vs. Kartik Kunal International and Ors.‟. The plaintiff in fact has given her „No Objection‟ for the attachment and sale of the second floor of the Suit property even though the valuation of the second floor is around Rs.2,62,42,500/-, which is much more than what is required to satisfy the liability of the Judgment Debtor No. 1 (plaintiff), in the said Execution. It is also asserted that the very fact that the plaintiff has agreed to the sale of the second floor, reflects that she is not the owner as no prudent person would agree to the sale of the property which is owned by her.
12. The defendant has further submitted that in Ex. No. 60455/2016, titled as „Gupta Fabrics vs. Kavita Sharma and Anr.‟, objections had been filed by the defendant asserting that he is in possession and is the owner of the second floor of the Suit property by virtue of the Oral Family Settlement dated 14.04.2015. The application was contested by the plaintiff by filing a detailed Reply. However, the Objections of the defendant were dismissed by the learned ADJ vide Order dated 20.03.2017. Aggrieved, the plaintiff had filed an Appeal in this Court vide EFA No. 15/2017 titled as „Kamaljeet Sharma vs. Kavita Sharma and Another.‟ The Appeal was finally disposed of vide Order dated 05.09.2017, by observing that the disputed questions of fact whereby the objector (the defendant herein) had claimed himself to be the owner of the Suit property on the basis of an Oral Family Settlement, cannot be decided only by reference to the pleadings. An opportunity must be given to the parties to lead the evidence in support of their respective cases.
13. This Order dated 05.09.2017, was never challenged and has attained finality. Though subsequently, the said Execution was settled and disposed of, but the Order of this Court in Appeal has become final that the title of the defendant in respect of the second floor, cannot be determined without recording of evidence, has become binding on the principle of res judicata. The defendant has thus, asserted that a substantial defence has been raised by him in his Written Statement and the application for Judgment on Admission, is liable to be dismissed.
14. The defendant has further contended that the plaintiff has concealed and suppressed the Order dated 05.09.2017, passed in EFA No. 15/2017, titled as „Kamaljeet Sharma vs. Kavita Sharma and Another". It is asserted that when the party seeking a relief, is found guilty of suppression and concealment of material facts, the Court has a duty to deny the relief to such person. Reference has been made to the case of Oswal Fats and Oils Limited vs. Additional Commissioner (Administration), Bareilly Division, Bareilly
15. The defendant has, in addition, taken a technical plea with respect to the maintainability of the plaint itself. It is asserted that while the amended plaint is supported by affidavit of Statement of Truth in the name of Ms. Kavita Sharma, the affidavit appended along with the amended Plaint, is of Mr. Kartik Sharma, son of the plaintiff and now allegedly a Power of Attorney Holder; Special Power of Attorney (for short ‘SPA’), in his name has also been filed in the present Suit. However, Para 1 of the Affidavit sworn by the son of the plaintiff, who is the alleged Attorney states that “I am the plaintiff in the present matter...”, even though he is a SPA holder.
16. The affidavit accompanying the amended plaint and the verification appended to it, have not been executed properly and the plaint has to be deemed to have been filed without verification, which implies that the Suit has not been instituted properly and is liable to be dismissed. Moreover, the Statement of Truth which is in the form of an Affidavit, verifying the contents of the amended Plaint, is invalid. It also suffers from the same defect of the Attorney Holder describing himself as “I am the plaintiff...” The two different affidavits in the name of two different persons, is sufficient to make the amended Plaint invalid. The amended Plaint miserably fails to comply with the requirements of Section 26(2) of CPC read with Order 4 Rule 1(2) and Order 4 Rule 1(3) of the CPC and read with Order 6 Rule 15(4) of CPC, which would consequentially entail dismissal of the Suit itself.
17. It is also asserted that the prayer made by the plaintiff is only of Partition, without the relief of Possession of the ground and first floors even though she is admittedly out of possession of the two floors in the Suit property. The relief of Mandatory Injunction is only in respect of access to common areas of the Suit property, but no relief has been claimed for Possession.
18. Likewise, the possession of the second floor of the Suit property is with the defendant, pursuant to the Oral Settlement dated 14.04.2015 and thus, the plaintiff cannot be granted any relief regarding the second floor of the suit property including the relief for access to common areas. Further, no relief as claimed by the plaintiff in respect of the second floor of the Suit property can be granted as it is already attached in the execution proceedings. Reliance has been placed on the case of Binatone Computers Pvt Ltd. vs Setech Electronics Ltd. 2009 (162) DLT 537, to assert that attachment of the property acts as a clog on the property and interferes in the owner exercising lawful rights with respect thereto and thereby causes loss/damage to the objector.
19. On merits, all the averments made in the application, are denied and it is submitted that the application is liable to be dismissed.
20. Submissions heard and record perused.
21. A preliminary objection has been taken by the defendant that the amended plaint has not been filed correctly. The title of the Plaint gives the name of Ms. Kavita Sharma as plaintiff but has been signed and verified by her son Mr. Kartik Sharma as her SPA Holder and has given his affidavit in support of the amended Plaint but the Affidavit of Statement of Truth has again been filed in the name of Ms. Kavita Sharma, which is not in accordance with Section 26(2) of CPC read with Order 4 Rule 1(2) and Order 4 Rule 1(3) of the CPC further read with Order 6 Rule 15(4) of CPC.
22. The perusal of the record shows that originally, the Plaint along with the accompanying verification and affidavits, had been filed by Ms. Kavita Sharma under her own signatures and there is no challenge to the original Plaint having been instituted or verified or supported by an Affidavit, in accordance with law.
23. The objections have been taken only to the amended Plaint dated 11.02.2021 wherein though the title of the Suit continues to be in the name of Ms. Kavita Sharma, the verification has been done by Mr. Kartik Sharma, son of Ms. Kavita Sharma as her SPA Holder. Likewise, the Affidavit filed along with the amended Plaint is in the name of Mr. Kartik Sharma.
24. Order IV, CPC, provides that a Suit is to be commenced by institution of a plaint in accordance with Order VI and VII, CPC, so far as applicable and in case plaint does not comply with the requirements specified therein, it shall not be deemed to be instituted.
25. Order VI Rule 14, CPC, provides the manner in which the pleadings is to be signed and Rule 15 thereof provides for the verification of the pleadings. The requisite Rules of Order VI, CPC, read as under:- “14. Pleading to be signed.—Every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf............
15. Verification of pleadings.—(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case. (2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true. (3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. [(4) The person verifying the pleading shall also furnish an affidavit in support of his pleadings.............”
26. Further, Order VII Rule 4 of the CPC further provides that when a plaintiff sues as a representative, the plaint shall show not only that he has an actual existing interest in the subject matter, but that he has taken steps (if any) necessary to enable him to institute a Suit.
27. In the present case, though the Suit had been originally filed by the plaintiff in her own name but subsequently, the amended Plaint has been instituted on 11.02.2021 and has been signed on behalf of and for the plaintiff by Mr. Kartik Sharma, her son, who has the SPA Holder dated 02.09.2019 in his favour, which was placed on record on 17.01.2020. Therefore, it cannot be said that the Plaint has not been properly signed.
28. Generally, a person who files the Suit and claims the reliefs, is shown as the plaintiff and if he is represented by his Power of Attorney Holder then the cause title would mention the name of the plaintiff represented by his Power of Attorney (POA) Holder. The present Suit was initially filed by the plaintiff and verified by the plaintiff, in her own name and suffered from no technical defect.
29. The confusion has arisen only in the amended Plaint wherein her son, the SPA Holder has started representing the plaintiff. The title of the Plaint, therefore, required no change as the claims and the relief claimed are those by the plaintiffs in her own individual capacity. The question is only of proper representation and technically it should have been reflected that the Plaint is being signed on behalf of the plaintiff by her SPA Holder, but this fact is clearly indicated and mentioned in the Verification appended to the amended Plaint. Moreover, the Affidavit dated 11.02.2021 along with the amended Plaint, is also furnished by Mr. Kartik Sharma defining himself as the Power of Attorney Holder of the plaintiff. Therefore, it cannot be said that the pleadings have not been signed or verified, in accordance with the Order VI of CPC, for and on behalf of the plaintiff.
30. It is pertinent to note that the Statement of Truth annexed along with the amended Plaint is in the name of Ms. Kavita Sharma but is signed by Mr. Kartik Sharma, wherein even though he has mentioned that he is an SPA holder, it is also stated that he is the plaintiff. The Affidavit of Statement of Truth may be suffering from technical defects and may not be in accordance with law, but it is a Civil Suit for Partition and Injunction and not a Commercial Suit and thus, the plaint is not required to be supported by an Affidavit of Statement of Truth.
31. The plaintiff may have by way of an abundant caution also annexed the Affidavit of Statement of Truth but is not a pre-requisite for institution of a Regular Suit. Any discrepancy in the Statement of Truth, therefore, cannot be considered to hold that the Suit has not been properly instituted. The objection taken by the defendant in regard to the proper institution and verification of the Suit is therefore, not tenable and it is held that the Suit has been instituted properly and has been signed by the SPA Holder of the plaintiff, in accordance with law.
32. Another objection taken on behalf of the defendant is that though the plaintiff has claimed Partition in respect of the ground and first floor as well of the second floor of the Suit property, but no relief of possession has been sought by her and her Suit is liable to be rejected on this ground itself.
33. Admittedly, the plaintiff and the defendant are the co-owners of the ground floor and the first floor. At this stage, it may be pertinent to examine whether the plaintiff continues to be in legal possession of the properties or if she has been ousted.
34. The meaning of ouster was explained in the case of Jagdish Pershad & ors vs Jyoti Pershad & ors, ILR 1975 Delhi 841. It was observed that when a joint owner seeks partition of the property, they merely seek a change in the mode of enjoyment of the said property, where a mere denial of right or title by the other co sharers does not amount to an ouster of the plaintiff.
35. To appreciate implication of denial of title in a suit property and the necessary ingredients of ouster, a reference may be made to the judgement of the Apex court in Nagabhushanammal (Dead) vs C.Chandikeswaralingam, (2016) SCC 434, which placed reliance on judgement in Vidya Devi vs Prem Prakash, (1995) 4 SCC 496 wherein the meaning and connotation of the term ‘ouster’ was expounded as follows:
36. As expounded above, the plaintiff’s right and title in the ground and first floor of the suit property is admitted and her ouster therefrom has also not been asserted in the Written Statement. Thus, even though the defendant may be in exclusive possession of the Ground and First floor, but the plaintiff admittedly being a co-owner, is in the legal/constructive possession of these two floors. Moreover, her claim of Partition by metes and bounds, would inherently include the relief of Possession. It cannot be said that merely because the relief of Possession has not been specifically sought, the Suit of Partition itself would become inadmissible.
37. Further, insofar as the second floor is concerned, the plaintiff is the exclusive owner and she has limited her right only to the Mesne Profits. She has not sought the Possession of the second floor; therefore, the objection taken by the defendant in this regard is also not tenable.
38. Having observed that the objections as taken by the defendant, are not tenable, it may be further analysed whether in the facts of the case, the defendant has made unequivocal, unqualified admissions entitling the plaintiff to a judgement on admissions.
39. The plaintiff has filed a Suit for Mandatory Injunction, Partition, Mesne Profits and Permanent Injunction. Partition of Ground floor and First floor of Suit Property:
40. It is admitted that the Suit property comprising of basement, ground floor, first floor and the second floor, has been purchased vide separate Sale Deeds. While the basement has been purchased exclusively by the defendant, the second floor was purchased in the name of the plaintiff. The first and the second floor have been purchased in undivided equal share, by the plaintiff and the defendant, through separate Sale Deed. The plaintiff has thus, sought Partition of the ground floor and first floor of the Suit property.
41. The defendant in his Written Statement has admitted that the plaintiff and himself are the co-owners, having equal undivided shares by virtue of the Sale Deeds executed in their favour in respect of ground and first floor. In view of the Admissions, it is held that the plaintiff and the defendant are entitled to half share each in the ground floor and first floor of the Suit property and the Preliminary Decree is accordingly passed. Relief of Mense Profits and Injunctions in respect of Second floor of the Suit Property:
42. The plaintiff has sought mesne profits from the defendant for his use and occupation of the second floor of the suit property of which she is admittedly the exclusive owner by virtue of a registered Sale Deed. The plaintiff has further made the following prayers in her plaint: “e. Pass a decree of permanent injunction in favour of the plaintiff and against the Defendant, his agents, employees, servants, transferees, successors in interest, assignees etc. restraining them from creating third party charge or interests therein by selling, transferring, alienating, parting with possession and/or by wrongfully mortgaging or taking loan on the entire property No. B-18, Kirti Nagar, New Delhi. e.(ii) Pass a decree of mandatory injunction in favour of the plaintiff and against the Defendant, his agents, employees, representatives, transferees, successors in interest, assignees etc. inter-alia passing a direction to grant access to the plaintiff and her representatives to the common areas of the suit property such as the staircase, main gate, driveway and all other common areas in Property No.B-18, Kirti Nagar, New Delhi.”
43. The defendant has admitted in his Written Statement that the Sale Deed in respect of the second floor of the Suit Property is in the name of the plaintiff, but has set-up a defence that he has become the owner and is in possession of the second floor of the Suit property pursuant to the Oral Settlement dated 14.04.2015 and thus, there is no question of granting any Mesne Profits in respect of the second floor of the Suit property.
44. The defendant has explained that the plaintiff is the wife of his deceased brother and the two brothers were very close and had highest respect for each other. In view of the good relations, the property No. B- 2/105, Paschim Vihar, New Delhi, was purchased in the name of the plaintiff in the year 1997 and thereafter, both the brothers along with their families started residing in that property. In the year 2006, Mr. Rakesh Sharma, the husband of the plaintiff along with his family shifted to B-4/14, Paschim Vihar, New Delhi and since then the defendant along with his family has been in exclusive possession of B-2/105, Paschim Vihar, New Delhi. Mr. Rakesh Sharma died on 12.11.2014 and his businesses were taken over by the plaintiff. But the business went into turbulent times as there were huge financial liabilities that were fastened upon her. Huge losses were suffered by the plaintiff, which could not be paid by her.
45. In order to pay her debts, the plaintiff started pressurising the defendant to sell the property bearing No. B-2/105, Paschim Vihar, New Delhi, which was jointly owned by them. However, since the defendant was residing in the said property along with his family for a number of years and also because his whole family would have been uprooted, he was not inclined to sell. Moreover, the property market was very low at that point of time and would not have fetched the right price.
46. With the intervention of the family elder Mr. Ravinder Pal Singh, an Oral Settlement was entered into between the parties on 14.04.2015, according to which it was decided that the Property No. B-2/105, Paschim Vihar, New Delhi, shall be sold and the ownership rights and possession of second floor of the Suit property shall be solely transferred and owned by the defendant. It was further agreed that this Oral Agreement shall be reduced into writing subsequently and necessary documents for transfer of ownership, shall be executed by the plaintiff in his favour. However, neither the Oral Settlement could be reduced into writing nor the necessary documents have been executed till date.
47. The defendant, however, believed that because the Oral Settlement was entered in the presence of the family members, its terms shall be adhered to and no one shall frustrate or violate the terms thereof. Pursuant to this Family Oral Settlement, the defendant was put in physical possession of the second floor by the plaintiff, who is aware that she is neither in possession of the second floor nor has she any right title and interest in the same. Since the defendant is the owner of the second floor, the plaintiff cannot claim any Mesne Profits in respect thereof. Moreover, the second floor already stands attached and thus, no relief as claimed by the plaintiff can be granted.
48. The plea of Oral Settlement though has been taken, but the defendant himself has stated in his Written Statement that under the Oral Settlement, it had been agreed that the terms of Oral Settlement shall be reduced into writing and that plaintiff shall execute the requisite documents in favour of the defendant but neither got done. However, as per his own admissions, neither the terms of Oral Settlement ever got reduced into writing nor were title documents executed in favour of the defendant. Further, the title documents of second floor continue to be in the possession of the plaintiff. Though the plaintiff has denied that any Oral Settlement as alleged by the defendant took place, but the assertions of the defendant himself reflect that the Oral settlement did not fructify. He may have been put in possession of the Suit property, but in the absence of any requisite title documents, he cannot claim to have become the owner of second floor of the Suit property, of which the plaintiff continues to be the owner by virtue of a Sale Deed. Be as it may, the parties may have agreed to transfer of the ownership but without any title documents, the defendant cannot claim to have acquired the status of owner in respect of the second floor.
49. It is also pertinent to refer to the averments of the defendant himself in the Written Statement that in various Execution proceedings, the plaintiff has agreed to the sale of second floor of the Suit property into satisfy the decrees against her. The defendant had admittedly filed objections in Ex.P. No. 57/2017, which were, however, dismissed with the observations that the disputed facts of law required evidence to be recorded. However, in the present Case, the defendant has unequivocally admitted that there exist no title document in his favour.
50. Pertinently, it is not a case of Oral Settlement for division of joint property since the second floor was exclusively owned by the plaintiff. Therefore, even if he has been put in possession pursuant to a Settlement, the plaintiff cannot be divested of her ownership rights unless the requisite Sale Deeds/Transfer Documents are executed in favour of the defendant.
51. The Supreme Court in the case of Suraj Lamp & Industries Private Limited vs. State of Haryana & Another (2012) 1 SCC 656 held that an immovable property could only be legally and lawfully transferred/conveyed by a registered Deed of Conveyance.
52. Further, the defendant himself has asserted that the plaintiff has agreed in various Execution proceedings for sale of the second floor of the Suit property, which shows that she has ceased to be an owner, is again not tenable. She could have agreed for the sale of the second floor of the property only because she was the owner. Had the defendant been the owner as has asserted by him, he would have filed an independent Suit for execution of the Oral Settlement and/or of the title documents, which is admittedly not the case, till date.
53. This averment of the defendant that the plaintiff has been projecting the second floor as her property in various Execution proceedings since 2015 and infact, the second floor has been attached in the Execution proceedings further affirms and confirms that she continues to be the owner of the second floor. Rather, the very fact that defendant till date has taken up no action for declaration of his ownership in the second floor, also reflects his admission that the plaintiff is the exclusive owner of the second floor of the suit property.
54. From the averments made in the Written Statement with corresponding admission by the plaintiff in the Replication, that the defendant had asked for permission to reside in the Second Floor of the Suit property, it is established that he was put in possession of the second floor of the suit property by the plaintiff. Thus, he is in the permissive possession of the second floor which has not been terminated by the plaintiff either by serving any Notice or otherwise. Significantly, the plaintiff has not sought possession of the second floor, which further reinforces that the right of defendant to continue in possession, has not been withdrawn. The defendant cannot be held to be in wrongful possession of the property which disentitles the plaintiff from claiming any mesne profits.
55. The defendant may be in physical possession but he cannot deny access to the plaintiff, to the common areas appurtenant to the second floor. Therefore, the defendant is directed to give access to the plaintiff, to the common areas appurtenant to the Suit property such as staircase, main gate, driveway of the Suit property. The Mandatory Injunction is, therefore, granted against the defendant, in the aforesaid terms.
56. Since the plaintiff is the owner of the second floor of the property, the defendant, his agents, employees, servants, transferees, successors in interest, assignees etc. are hereby restrained by way of Permanent Injunction from creating any third-party right, charge or mortgage or part with the possession of the second floor of the Suit property. Conclusion:
57. The application of the plaintiff under Order XII Rule 6, CPC, is accordingly, partly allowed. The plaintiff and the defendant are held entitled to equal half share in the ground floor and the first floor of the Suit property. The Preliminary Decree of Partition is hereby passed in the aforesaid terms.
58. The relief of Permanent Injunction and the Mandatory Injunction, as prayed for by the plaintiff, is also granted.
59. The relief of Mesne Profits in respect of second floor, is hereby dismissed. CS(OS) No. 359/2019
60. Be listed on 10.05.2024 for consideration of passing of final decree.
JUDGE APRIL 23, 2024