SUSHIL KUMAR Vs. HARBANS LAL

JUDGEMENT

(1.) THERE is no opposition to these applications which are accordingly allowed and the appeal is restored to its original number. CMs stand disposed of. The challenge by means of this regular first appeal under Section 96 of the Code of Civil Procedure, 1908, is to the impugned judgment and decree dated 31.1.1997 whereby the suit of the plaintiff/respondent has been partially decreed. The respondent/plaintiff has been granted the relief of partitioning of the second floor of the subject/suit property situated at E-30, Amar Colony, Lajpat Nagar-IV, New Delhi. The respondent/plaintiff was also granted the relief of injunction restraining the appellant/defendant from raising any further construction on the property.

(2.) THE dispute centers around the property bearing no. E-30, Amar Colony, Lajpat Nagar-IV, New Delhi between the parties who are brothers. The respondent/plaintiff filed a suit and as per the plaint, the respondent/plaintiff claimed that with respect to the subject property owned by the parties an Award was passed by an Arbitrator in the year 1963 and which Award was made a rule of the court by the court of Sub-Judge 1st Class, Delhi vide order dated 18.3.63. As per the Award, the ground floor portion was to belong to the appellant/defendant. The first floor was to be jointly constructed by the parties and was to belong to the respondent/plaintiff. There was nothing which was stated in the Award, which was made a rule of the court, with respect to the second floor of the property and above.

(3.) BEFORE proceeding to deal with the arguments as raised by the counsel for the parties, I must at this stage straightway put on record the fact that the counsel for the appellant has argued that the plaint as filed by the respondent/plaintiff can be decreed as a whole i.e., the plaintiff be granted his rights in terms of the 1963 Award and also partitioning of the second floor of the property. The counsel for the appellant argued that surely the plaintiff cannot ask for anything more than what is prayed for in the plaint, and that the appellant/defendant concedes to the reliefs being asked for in the plaint with respect to implementation of the 1963 Award and also of partitioning of the second floor. It has been argued that this court can take notice of the arguments now raised on behalf of the appellant in terms of Order 41 Rule 33 of the CPC and which reads as under:-