Sher Singh & Ors. v. Jai Singh

1. This hearing has been done through video conferencing.

2. This matter has been listed on office note today. A letter has been received from Local Commissioner stating that there is confusion about the name of the village in which the subject property is situated in respect of which demarcation is to be carried out. She submits that the order dated 16th August, 2018 records the subject property as one being located in `Village Shahpur, District South Delhi’. However, the property that was pointed out to the Local Commissioner for conducting demarcation, is located in `Village Shahurpur’. Hence, a clarification has been sought by the Local Commissioner in this respect.

3. Ld. Counsels have been heard today. In the opinion of this Court, there appears to be a typographical error, in the order dated 16th August, 2018, it has been recorded that the subject property is located in Village Shahpur. The village name ought to have been recorded as Village Shahurpur. 2022:DHC:5885

4. The fact that this is a typographical error is clear from the order passed while dealing with the application under Order VII Rule 11. Order dated 24th August, 2016 clearly records the suit property to be located in Village Shahurpur. The relevant portion of the order reads: “IA No.4216/2016 (By the defendant under Order VII Rule 11 CPC)

1. Though notice on this application was issued on 31st May 2016 and learned counsel for the plaintiffs had entered appearance and ought time to file a reply, no reply has been filed so far.

2. The defendant has filed the present application for seeking rejection of the plaint on the ground that it is devoid of any cause of action. Mr. M.S. Vinaik, learned counsel for the defendant, draws the attention of the Court to prayer clause (i) of the plaint to state that the said prayer clause is bereft of material particulars relating to the immovable property, in respect whereof the plaintiffs have sought partition and injunction.

3. The aforesaid submission is borne-out from a perusal of the prayer clauses (i) and (ii) where the plaintiffs have failed to specify the Village in which the landholdings are situated. In para (i) of the prayer clause, the plaintiffs seek partition of "open land adjacent to the temple measuring 4600 sq. yds.", without specifying where it is situated. Similarly, in prayer clause (ii), the plaintiffs seek a restraint order against the defendants from trespassing "into land measuring 2.3.89 bighas out of Khasra No.264", without mentioning where the said Khasra lies.

4. Learned counsel for the plaintiffs alludes to the averments made in para 7 of the plaint to urge that both the immovable properties are situated in Village Shahurpur. However, no specific averment has been made in para 7 to the said effect. In fact, para 7 refers to Khasra Nos.346, 348, 353 and 403 situated in the revenue estate of Village Maidan Garhi.

3. Learned counsel for the plaintiffs states that he may be permitted to amend the prayer clauses of the plaint so as to clearly indicate as to where the immovable properties are situated. He, however, clarifies that the plaintiffs are not seeking any relief in respect of any land situated in Village Maidan Garhi and the relief prayed for in the plaint is only in respect of the landholdings situated in Village Shahurpur.

4. The plaintiffs shall file an amended plaint by clarifying the aforesaid position in the prayer clauses within two weeks from today, with an advance copy to the learned counsel for the defendant.

4. In view of the aforesaid clarification given by the learned counsel for the plaintiffs, the defendant is at liberty to deal with the immovable properties owned by him and situated in Village Maidan Garhi.

5. List on 17th January, 2017 to await the amended plaint, proposed to be filed by the plaintiffs.”

5. It is also seen from the record that an application was also filed under Order VI Rule 17, being IA No.2216/2017, by the Plaintiff seeking to amend paragraph nos.(i), (ii), and (iii) of the prayer clause in order to clarify the location of the subject property. The said application was considered by the Court on 21st July, 2017. Vide order dated 21st July, 2017, while allowing the said application for the amending the plaint, the Court has clearly recorded that the location of the suit property is in Village Shahurpur, District South Delhi. Pursuant to the said application being allowed, the amended plaint clearly mentions that the subject property is located in Village Shahurpur. The relevant portion of the order dated 21st July 2017 reads: “I.A.No. 2216/2017 filed on behalf of plaintiff under Order 6 Rule 17 CPC The plaintiff has filed the aforesaid I.A. under Order 6 Rule 17 CPC seeking to amend paras No.(i), (ii) & (iii) of the prayer clause in order to clarify the location of the suit properties. In the un-amended plaint the plaintiff has sought partition of the suit properties. Though, the area of the suit properties has been specified in the prayer clause, however, the specific location of the suit properties has not been given in the prayer clause. It is stated by the counsel for the plaintiff that by way of the instant amendment the plaintiff seeks to clarify the location of the suit properties which are located in Village Shahurpur, District South Delhi. No reply has been filed on behalf of the defendant. It is however, argued by learned counsel for the defendant that the plaintiff by way of the instant application is trying to change the nature of the suit in as much as the plaintiff is also seeking partition of the properties located at Village Maidan Garhi by seeking the present amendment. However, a perusal of the amended plaint filed along with the application reveals that the plaintiff has sought partition in respect of properties situated at Village Shahurpur, District South Delhi in its prayer clause and no prayer has been sought as regards Village Maidan Garhi. The contention of counsel for the defendant is accordingly misconceived. The plaintiff has also filed site plan of the suit properties which pertain to Village Shahurpur. Moreover in the order dated 24.08.2016 passed by the Hon'ble Court it is observed as follows:- "3. Learned counsel for the plaintiffs states that he may be permitted to amend the prayer clauses of the plaint so as to clearly indicate as to where the immovable properties are situated. He, however, clarifies that the plaintiffs are not seeking any relief in respect of an) land situated in Village Maidan Garhi and the relief prayed for in the plaint is only in respect of the landholdings situated in Village Shahurpur.

4. The plaintiffs shall file an amended plaint by clarifying the aforesaid position in the prayer clauses within two weeks from today, with an advance copy to the learned counsel for the defendant. In view of the above, it is evident that the plaintiff is not seeking any relief in respect of the land situated at Village Maidan Garhi and the plaintiff has confined its prayer only in respect of the land situated at Village Shahurpur. In such circumstances, the application filed by the plaintiff under Order 6 Rule 17 stands allowed. The amended plaint filed by the plaintiff is taken on record. IA stands disposed of.”

6. The reliefs sought in the amended plaint which was being considered for the purposes of order dated 16th August 2018 also read: “i. Partitioning the Open land adjacent to the temple measuring 4600 sq. yards (approximately) falling in Khasra no. 275/1-2 in Khata/khatauni No. 13/20 in the Village Shahurpur, District South Delhi, by metes and Bounds among the Plaintiffs and the Defendant according to the shares therein. ii. Restraining the Defendant from usurping or Trespassing the land measuring 2 Bighas 3.89 biswas(2-3.89 Bighas) out of Khasra no.264 falling in Khata/khatauni No.13/20 in the Village Shahurpur, District South Delhi, which is owned and belonging to the Plaintiff no. 1 and also from showing it into the layout of the small farms got prepared by the Defendant for selling the same to the third party. iii. Restraining the Defendant from converting the private road into a public road and to allow any person other than the family members to use the same; and iv. Cost of the suit may also kindly be awarded in favour of the Plaintiffs and against the Defendant;”