Om Dutt Sharma v. Renu Trehan & Anr.

NOW THIS RELINQUISHMENT DEED WITNESSETH AS UNDER:-

1. That the Releasor doth hereby release, relinquish, disclaim and give up all her rights, titles and interests in respect of her ½ undivided share in the said share in the said portion in the said property in favour of the Releasee absolutely and forever and without any monetary consideration.

2. That the Releasor assures the Releasee that her said share in the said share in the said portion in the said property hereby released is free from all kinds of encumbrances, such as sale, gift, mortgage etc.

3. That the Releasor now admits that she has been left with no right, title and interest in respect of her share in the said share in the said portion in the said property and the Releasee has become the absolute owner of the same with the right to transfer the same by way of sale, gift, mortgage, lease or otherwise.

4. That the Releasee can get the said share in the said portion in the said property transferred, mutated and substituted in his own name in the records of the MCD or any other concerned authority, as absolute owner on the basis this Relinquishment Deed or its certified true copy.”

6. Likewise, in the sale deeds, executed by the brother of the plaintiff, i.e. Mr. Rajinder Kumar Sharma, in favour of Smt. Renu Trehan (predecessor in interest of the present defendant no.1 i.e. Suruchi Trehan), it has been expressly recorded that the vendor has 1/3rd undivided share in the ground floor and first floor of the suit property. In this regard, specific reference is made to the following covenants in the separate sale deeds executed in respect of the ground floor and the first floor of the property in question: “AND WHEREAS in this way said (1.) Shri Ashok Kumar Sharma, (2) Shri Om Dutt Sharma and (3) Shri Rajinder Kumar Sharma, became the absolute owners of the property bearing No 1767, measuring about 122 sq. yds. Out of the aforesaid property bearing Municipal No.1766-1767, Gali No.54, Naiwala, Karol Bagh, New Delhi-110005, measuring about 244 sq. yds., Khasra No.759 (measuring 111 sq. yds,) and Khasra No. 760 (measuring 133 sq. yds.) and the mutation has been carried out in their names in the records of the Delhi Development Authority, vide Intkal/Mutation No. 11927 dated 25-08-2003.

AND WHEREAS out of the said property said (1) Shri Ashok kumar Sharma (2) Shri Om Dutt Sharma and (3) Shri Rajinder Kumar Sharma had already sold the Portion measuring about 41 sq yds. and now said. (1) Shri Ashok Kumar Sharma, (2) Shri. Om Dutt Sharma and (3) Shri Rajinder Kumar Sharma, are now left with remaining part property measuring about 81 sq. yds. of the said property and which is bounded as under:- WEST: PORTIION OF THE SAID PROPERTY ALREADY SOLD SOUTH: GALI NO. 54 AND.WHEREAS in the manner, aforesaid the Vendor is the absolute owner of the 1/3rd undivided share of the said property bearing Municipal NO. 1767, Gali No.54, Naiwala, Karol Bagh, New Delhi-110005, measuring about 81 sq. yds. (Total). **** **** ****

6 That the Vendor hereby declare that the said share in the said portion in the said portion in the said property hereby sold is the exclusive share in the said portion in the said property of the vender and that none else except the vendor has any right, title, interest, therein and the title which is hereby transferred, subsists and the vendor has full power, good title and absolute authority to transfer the same.

7 That the Vendor hereby further convenants with the Vendee that in case the said share in the said portion In the said property herby sold or any part thereof of lost to the vendee on account of any legal defect in the Vendor right to transfer the same or the possession or quiet enjoyment of the said share in the said portion in the said property by the vendee in any way disturbed on account of litigation started by anyone claiming title thereof or on account of some act or omission of the Vendor or anyone else claims title paramount to the vendor then the vendor will be liable for all the losses and damages, costs and expenses sustained by the vendee.

8 That the Vendor hereby agree that he will pay all kind of dues, demands, taxes, lease money, electricity and water charges etc. outgoing which are payable in respect of the said share in the said portion in the said property up to the date of registration of this Sale Deed and thereafter the same shall be paid by the vendee.

9 That the Vendee can get the said share in the said portion in the said property transferred, mutated and substituted in her own name in the records of the DDA/MCD or any other concern authority on the basis of this Sale Deed or its certified true copy.”

7. Learned counsel for the plaintiff has also drawn attention to the plaint in a Civil Suit (Old suit No. 392/2013; new suit no. 59855/2016), filed by Smt. Renu Trehan (predecessor in interest of the present defendant no.1) seeking certain injunction/s in respect of the first floor of the property in question (which suit is stated to be still pending), in which also it has been specifically averred as under:

8. Thus, there is no ambiguity regarding the respective undivided share of the parties in the suit property.

9. Learned counsel for the defendant no.1 has drawn attention to the averments in the written statement, filed on behalf of the defendant no.1, wherein it has been stated as under:

10. As such, it is the defendant no.1’s own case that she purchased 1/3rd share from the erstwhile owner of the property and was inducted in possession of the portion/s of the property which were in possession of her vendor. The said sale deed/s and the relinquishment deed/s relied upon by the defendant no.1 herself, belies any partition having been effected amongst the original co-owners. As noticed hereinabove, the defendant no.1’s title documents clearly reflect her ownership of 1/3rd “undivided share”. It has been admitted in the written statement filed on behalf of the defendant no.1 that the said defendant derives title only on the basis of the aforesaid sale deeds executed by Sh. Rajinder Kumar Sharma in her favour (relevant portion of which has been reproduced herein above), and which clearly state that what is sought to be transferred/conveyed to the said defendant is only the 1/3rd “undivided share” in the said property.

11. Learned counsel for the defendant no. 1 submits that the observation in the order dated 26.04.2019 came to be passed in the context of a settlement proposal. Ex facie, the said contention cannot be accepted. Even after 26.04.2019, vide order dated 30.08.2019, this court expressly recorded that “share of the parties have already been determined in the order dated 26.04.2019, in the ratio of 2/3: 1/3 for the plaintiff and defendant no.1 respectively”. No appeal was filed by the defendant no.1 against the said order. Even otherwise, the documents relied upon by the plaintiff (supra) leaves no manner of doubt as to the respective undivided share of the parties in the property in question.

12. In ING Vysya Bank Ltd. v. Vikram Hingorani,[1] it has been held as under: “34. It is the settled position in law that if on a meaningful and not a formal reading of the pleadings, it were to be found that there is nothing to be put to trial and that on the undisputed facts, the lis can be decided, the Court is not to unnecessarily, for the sake of complying with procedure, put the parties through the rigmarole of trial. A Division Bench of this Court in P.P.A. Impex Pvt. Ltd v. Mangal Sain Mittal 166 (2010) DLT 84 extended the principle laid down in T. Arivandandam v. T.V. Satyapal (1977) 4 SCC 467 in relation to a plaint, to the written statement also and held that a defence which is implausible and on a meaningful, not formal reading, is manifestly vexatious and meritless, clever drafting should not be allowed to create an illusion and such defences should not be needlessly permitted to go to trial. The Supreme Court also recently in Gian Chand Brothers v. Rattan Lal MANU/SC/0015/2013 reiterated that it shall not be sufficient for a defendant to deny generally the grounds alleged by the plaintiff, but he must be specific with each allegation of fact. It was further held that where 2014 SCC OnLine Del 478 there is evasive denial, the defendant cannot be permitted to lead evidence, when nothing is stated in the pleadings. Xxx xxx xxx

37. The CPC after completion of pleadings requires the Court to see whether any material issue of law or fact arise from the pleadings of the parties. If no material issue of law or fact to be adjudicated in trial arise, order 15 of the CPC requires the Court to pass a decree forthwith.”

13. In Pankaja Panda v. Leela Kapila,[2] [the said judgment has been upheld by a Division Bench of this court in Vikrant Kapila v. Pankaja Panda[3] ], it has been held as under:

33. Reference may also be made to the observations of a Division Bench of this Court in Savita Anand v. Krishna Sain, (2021) 276 DLT 468.

34. Order XII Rule 6 of the CPC vests this Court with the power to pass an order/judgment as it may think fit, on its own motion, where admissions of fact have been made by a party, either in the pleadings or otherwise. Relying upon the express language of Order XII Rule 6 of the CPC, a Division Bench of this Court in Keshav Chander Thakur v. Krishan Chander, (2014) 211 DLT 149 (DB) has held that there is no requirement in Order XII Rule 6 of the CPC for filing of a formal application. The Court can on its own motion without any application by a party proceed to pass a decree on admissions as stated in Order XII Rule 6 of the CPC. An analysis of the aforesaid judgments would show that a trial in the suit is not necessary when the parties are not at issue with regard to any disputed questions of fact. The Court has to read the pleadings of the parties carefully to determine whether or not admissions have been made therein. A pleading which is vague and unsubstantiated and does not raise a genuine defence does not require for the Court to frame an issue. The Court has to read the written statements in a meaningful manner to determine whether or not any defence has been raised on behalf of the defendants. The Court can apply principles of Order XII Rule 6 of the CPC as well as Order XV Rule 1 of the CPC to pass a decree in a suit without trial.”

14. As such, when the respective (undivided) share/s of the parties is writ large and is apparent from the documents filed by the defendant itself, it would be futile to relegate the parties to trial on the said aspect. The contention that the present suit is barred under Section 10 of the CPC is also bereft of any merit. Suit No. 598555/2016 filed by late Smt. Renu Trehan, was filed seeking decree of permanent injunction against the plaintiff herein, thereby restraining the plaintiff from causing any obstruction in the use of common passage and stairs and peaceful use, occupation, enjoyment and repairs, etc. of the suit property. Section 10 of the CPC only applies in cases where the whole of the subject-matter in both the suits is identical. The matter in issue in the present case is not “directly and substantially” in issue in the previously instituted suit by late Smt. Renu Trehan.

15. Further, as noticed hereinabove, a perusal of the plaint in Suit NO. 598555/2016 [annexed with the plaintiff’s document], does not detract from the position that the defendant no. 1 had purchased 1/3rd “undivided share” from the erstwhile owner of the property; even in the said suit there is also no averment regarding any partition having been effected amongst the original co-owners.

16. The present suit is also not barred by limitation. The right to seek partition of the property is governed by Article 113 of the Limitation Act, 1963 and as such a suit is to be brought within 3 years from the time when the right to sue accrues. For filing a suit for partition, the right to sue only arises when the said right to partition is denied by the other party. There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or, at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted[4]. In the present case, the averments made in the plaint clearly shows that the right of the plaintiff to claim partition can, at best, be seen as disputed by the defendant no. 1 on 20.02.2018, 06.03.2018, 27.03.2018 and 17.04 2018, when the plaintiff and the defendant no. 1 attempted to partition the suit property amicably through mediation in Suit No. 598555/2016, but failed. The written statement filed by the defendant no.1 wholly fails to aver as to when was the plaintiff put to notice of his entitlement to partition having being denied. The mere act of the defendant no. 1 filing a suit in 2011 to obtain an injunction against the plaintiff in respect of the suit property, does not establish that the right to sue accrued thereby to the plaintiff to file a suit for partition.

17. As such, the issues sought to be agitated vide IA No.12270/2023, do not arise for consideration in the factual context of the present case. IA No.12270/2023 is, accordingly, dismissed.

18. In view of the aforesaid, and particularly taking into account the order dated 30.08.2019, against which no appeal has been filed, a preliminary See: Krishna Pillai Rajasekharan Nair v. Padmanabha Pillai, (2004) 12 SCC 754, Nanak Chand v. Chander Kishore (1982) 22 DLT 11 (DB), S. Jaswant Singh (deceased by L. Rs.) v. S. Darshan Singh (deceased by L. R.) AIR 1992 Del 80. decree of partition is passed declaring that the plaintiff has 2/3rd undivided share in the suit property and the defendant no. 1 has 1/3rd undivided share in the suit property i.e. property bearing no.1767, Gali No.54, Naiwala, Karol Bagh, New Delhi-110005.

19. The Registry is directed to prepare a preliminary decree sheet, accordingly.

20. At this stage, before passing any further order/s on the basis of the report of the Local Commissioner appointed vide order dated 30.08.2019, respective counsel for the parties jointly submit that an attempt can be made to seek an amicable resolution of the matter through mediation.

21. Accordingly, the parties are referred to mediation under the aegis of the Delhi High Court Mediation and Conciliation Centre. Let the parties appear before the Mediation Centre on 17.08.2023 at 03.00 PM.

22. List for reporting of outcome of mediation on 12.09.2023.

SACHIN DATTA, J AUGUST 7, 2023