Lalit Mohan Mendiratta v. Gianinder Mendiratta and Ors.

1. The plaintiff has instituted this suit for partition of house No.A- 20, G.T. Road, out of Khasra No.38, situated in the area of village Bharola, colony known as Adarsh Nagar, Delhi constructed over land ad-measuring 400 sq. yds.

2. The defendants have filed their written statements and the suit is ripe for framing of issues.

3. The counsel for the defendants no.1 and 2 and the counsel for the defendant no.3 appear.

4. The counsel for defendants no.1 and 2, upon asking, states that the defence of the defendants no.1 and 2 is, that (i) the property belonged to the father of the parties; (ii) the father of the parties in his lifetime put the plaintiff and the defendant no.1 in possession of separate portions of the property, partitioning the property between 2019:DHC:3678 plaintiff and defendants no.1; (ii) while the defendant no.1 is in possession of the entire first floor and three out of five shops on the ground floor of the property, the plaintiff is in possession of the second floor of the property and two shops on the ground floor of the property; (iii)the defendants no.2 and 3, being the sisters of the plaintiff and defendant no.1, after demise of the father have executed a deed relinquishing their respective one-fourth undivided share in the property jointly in favour of the plaintiff and the defendant no.1; and,

(iv) the defendant no.3, in her separate written statement is supporting the plea of the defendant no.1, of the father in his lifetime having partitioned the property between the plaintiff and defendant no.1.

5. The counsel for the defendant no.3, on enquiry states that defendant no.3 in her written statement is supporting the plaintiff.

6. The question for adjudication is, whether an issue should be struck on the plea of the defendant no.1, supported by the defendant no.2, of the father of the parties in his lifetime having so partitioned the property between the plaintiff and the defendant no.1.

7. Admittedly, there is no document in this respect.

8. In my view, no issue is required to be struck on the aforesaid plea and there is no need to relegate the parties to trial, for the reasons hereafter appearing.

9. The counsel for the defendants no.1 and 2, inspite of again asking, has not been able to state any other issue which arises for consideration from their written statements.

10. I may mention, that IA No.3079/2019 of the defendant no.1 for amendment of the written statement is pending. However the counsel for the defendants no.1 and 2 himself states that the amendments sought are only to take legal pleas of, (i) the plaint not disclosing any cause of action and being liable to be rejected owing to the property having been already partitioned; (ii) the suit being bad for misjoinder of defendants no.2 and 3, who after the Relinquishment Deed have no share in the property; (iii) the suit not being properly valued for the purpose of court fees and jurisdiction; and, (iv) the plaintiff having instituted the suit to harass the defendant no.1.

11. Though the counsel for the defendants no.1&2 has not argued, but I find that the defendant no.1, by way of amendment also wants to take a plea of having made constructions to the property at his own costs, in the year 2000.

12. The said plea now sought to be taken by way of amendment is in withdrawal of the admission earlier made, of the entire property having been partitioned in the lifetime of the father. Moreover, the Relinquishment Deed obtained by the defendant no.1 from the defendants no.2 and 3, is again of a subsequent date and the plea now sought to be taken by way of amendment is contradictory thereto also.

13. Thus, the defendant no.1 is not found entitled to the amendment sought and in any case the amendment sought does not come in the way of the findings aforesaid.