RAJINDER KUMAR Vs. R K BAJAJ

JUDGEMENT

(1.) . The plaintitiff has filed this suit seeking a decree of declaration that the judgment and decree dated 9.11.1989 passed in S. No. 2713/89 by this Court was obtained by collusion, fraud and is illegal and void and does not confer or create any right, title or interest in favour of defendants 1, 2 & 4 in property bearing No. A-167. Defence Colony.

(2.) . The allegations made in the plaint are that the plaintiff is a tenant on the ground floor of House No. A-167, Defence Colo .y since 1969, on monthly rent of Rs. 250.00. Bhagwan Dass was the original owner of the house and he sold it to Dev Raj Bajaj, detent. No. 3, vide sale deed d..ted 10.9.1969. The plaintiff attorned in favour of deft. 3 at the instance of the previous owner, and deft. 3, thereafter, started receiving monthly rent from the plaintiff. Deft. 3, immediately after the purchase of the premises in question, with ulterior motive and design and to coerce the plaintiff to quit from the premises filed an eviction petition in 1970 u/S 14(1) (b) & (g) of the Delhi Rent Control Act. In the petition, deft. 3 admitted that he was the purchaser of this property, by a registered sale deed. In 971, deft. 3 filed another eviction petition u/S 14 (1) (a) of Delhi Rent Control Act, which was dismissed. The matter did not rest there, and deft. also instituted an eviction petition u/S 14 (1) (e) of the Delhi Rent Control Act. In that petition also, he described himself as the owner of the property. The petition was dismissed. 2 b. The appeal filed by deft. 3 was also dismissed and the second appeal is pending in this court. It is further stated that another false petition was filed by deft. No. 3 seeking eviction of the plaintiff. In sum and subtance, the plea is that deft. No. 3 is making all possible efforts to evict the plaintiff from the premises in question, but he did not succeed. Deft. 3 designed a new plot/scheme to create a fresh ground/cause of action for filing eviction petition u/S 14-C of Delhi Rent Control Act. For creating such a cause of action a fraudulent and collusive suit was filed by deft. 1 against the other defendants seeking partition of the property No. A-167, Defence Colony. It may be stated that deft. 1 & 2 are the sons of deft 3 and deft. 4 is the wife of deft. 3.

(3.) In the partition suit, it was alleged that the property No. A-167, Defence Colony was HUF of Dev Raj Bajaj, deft. No. 3, and the other parties. The property has also been assessed as the property of HUF. Deft. 1 claimed share in the property. The suit was compromised and on the basis of that, a partition decree was passed by virtue of which, Dev Raj Bajaj (deft. 3) and Smt. Rajinder Kumar Bajaj (deft. 4) became exclusive owners of the ground floor of the said property. Rajiv Bajaj (deft. 1) became the exclusive owner of the first floor of the property and Arun Bajaj (deft. 2) became the exclusive owner of the second floor of the said house. In these premises, the partition decree is challenged on the grounds that the suit was filed solely with a view to create a ground for bonafide requirement ana a new cause of action in favour of deft. 3 as against the plaintiff to institute a fresh eviction petition. The suit was not maintainable in law by virtue of bar contained in Section 281 of the Income Tax Act; the suit was not maintainable as a son could not claim a partition of the property during the life time of his father, who admittedly was the karta of the HUF. The house No. A-167, Defence Colony, was never purchased from the funds of the HUF nor was the property of the HUP which is clear from the conduct and representations of deft. 3 stated in various eviction petitions, and legal proceedings initiated by the deft. 3 against the plaintiff since 1969, ever since the date of purchase of the property by him from the erstwhile owner. The judgment and decree in the partition suit was obtained by playing fraud on the Court. During the life time of Karta, the suit could not be filed for partition in law and the decree passed in the suit is nullity and non est. In these premises, aforesaid declaration is sought.