AMITA GUPTA Vs. DEV RAJ GUPTA

JUDGEMENT

(1.) THIS is an application for rejection of the plaint. The case of the plaintiffs, as set out in the plaint, is that late Shri Shiv Dayal Gupta, father of defendant and grandfather of the plaintiffs, was owner of plot No. 5-C/24, Rohtak Road, Delhi. Shri Shiv Dayal Gupta died when a house on the aforesaid plot of land was under construction. It is alleged that after completion of construction, the aforesaid house was sold and a business was started by the defendant for sale and purchase of plots of land. It is further alleged that out of the income which he earned from sale and purchase of plots of land, the defendant purchased plot No. W-49, Greater Kailash-I, New Delhi on 15 th February, 1971 and constructed a house on it. He also purchased another property bearing No. F-17, NDSE, Part-I, New Delhi from the income generated from the business of sale and purchase of plots. According to the plaintiffs, the defendant formed an HUF of which he, his wife and the plaintiffs were members and agricultural lands compromised in Village Ghitorni and Village Gadaipur as detailed in para 06 of the plaint were purchased. Out of them, 02 lands were purchased in the name of the HUF whereas the third land, according to the plaintiffs was purchased by the defendant in his own name. THIS is also the case of the plaintiffs that all the aforesaid properties were placed by the defendant in hotch-potch of the HUF which he was heading. The plaintiffs have now sought partition of the agricultural lands as well as house No. W- 49, Greater Kailash-I, New Delhi. The plaintiffs are seeking an injunction restraining the defendant from selling, transferring, alienating or otherwise parting with possession of the suit property.

(2.) THE first contention of the learned Counsel for the defendant is that since the lands, subject matter of this suit, are agricultural lands, Civil Court has no jurisdiction in the matter and the relief of partition can be claimed by the plaintiffs only from the Revenue Assistant in terms of the provisions of Delhi Land Reforms Act. As noted earlier, the case of the plaintiffs is that all the 03 agricultural lands are now in the zonal plan of urban villages and as per Master Plan-2021, they are eligible for residential use. While considering an application for rejection of the plaint under Order 7 Rule 11 CPC, the Court cannot take into consideration the plea taken by the defendant in the Written Statement and has to confine itself to the averments made in the plaint and the documents filed by the plaintiffs.

(3.) THE learned Counsel for the defendant has also relied on Section 41(h) of Specific Relief Act, which to the extent is relevant, provides that an injunction cannot be granted when equally efficacious relief can be obtained by any other usual mode of proceeding except in case of breach of trust. This is a suit, essentially for partition of the suit properties. In case, the plaintiffs are able to prove that they are the co-owners of the suit properties and a decree for partition is passed, there would be no question of the Court granting an injunction restraining the defendant from transferring, alienating or otherwise parting with possession of whole of the suit properties since in that case each of the co-owner will become exclusive owner of the property, which is allocated to him/her while passing a decree for partition by metes and bounds and thereafter, he/she will be entitled to deal with it in any manner he/she likes as its sole and exclusive owner. THE relief of perpetual injunction claimed by the plaintiff therefore, applies to be a superfluous relief, the suit being essentially for partition. THErefore, reliance of Section 41(h) of Specific Relief Act to my mind is wholly misconceived. For the reasons given in the preceding paragraphs, the application is devoid of any merit and is hereby dismissed. Considering the nature of suit and relationship between the parties, the plaintiffs being none other than the daughters of the defendant, I am of the view that this is a matter which should be referred to Delhi High Court Mediation and Conciliation Centre for making efforts for an amicable resolution of their disputes. THE parties are, accordingly, directed to appear before the Delhi High Court Mediation and Conciliation Centre at 4.00 pm on 15th September, 2011 to make an effort for an amicable resolution of their disputes. List before the Court on 20th October, 2011 for disposal of these applications, in case there is no settlement. Since, Mr. Jugal Wadhwa, Advocate is now appearing for the defendant, Mr. Mohit Gupta, Advocate is discharged from this case.