BHARAT WADHWA Vs. SUSHMA ARORA

JUDGEMENT

(1.) THOUGH the hearing on 22 nd May, 2013 commenced on the application of the plaintiffs for interim relief and for the purpose of elucidating the issues arising for adjudication, but doubts having arisen as to the very maintainability of the suit, the counsels were heard on the said aspect also and orders reserved.

(2.) THE two plaintiffs have instituted this suit pleading ­ (a) that Shri Om Prakash, paternal grandfather of the plaintiff No.2 Smt. Asha Wadhwa (plaintiff No.1 is the husband of the plaintiff No.2) was the owner of half portion i.e. 100 sq. yds. of property No.D-36, Moti Nagar, New Delhi admeasuring 200 sq. yds; (b) that Shri Om Prakash died in the year 1990 leaving behind four sons namely Shri Ram Kumar Budhiraja (defendant No.2 in this suit and who is/was the father of the plaintiff No.2), Shri Jeet Kumar Budhiraja (i.e. the predecessor of the defendant No.3 to 8 in this suit), Shri Budish Chand (i.e. the predecessor of the defendants 9 to 11 in this suit) and Shri Surinder (i.e. the predecessor of defendant No.12 in the suit) and one daughter (i.e. the defendant No.1 in this suit); (c) that Shri Om Prakash however vide registered Will dated 4th February, 1981 bequeathed the aforesaid portion of property D-36, Moti Nagar, New Delhi exclusively in favour of his son Ram Kumar Budhiraja (i.e. the defendant No.2 herein); (d) that the said defendant No.2 on 18 th May, 1998 executed a registered general power of attorney, a registered Will and an agreement to sell etc. with respect to the said property in favour of the plaintiff No.2 and put the plaintiff No.2 into possession of the said property and the plaintiff No.2 since then is in possession of the said property as owner thereof; that on 1 st May, 2011 the plaintiffs learnt from the defendant No.4 herein of a suit filed by the defendant No.1 in the District Court for partition of the said property and another property left by Shri Om Prakash; (e) that the plaintiffs on making further inquiries learnt that the defendant No.2 had in written statement filed in the said suit taken a plea of Shri Om Prakash having executed the Will dated 4th February, 1981 supra with respect to the said property in his favour; (f) however none of the defendants in the aforesaid suit for partition disclosed about the sale of the said property by defendant No.2 in favour of the plaintiff No.2 herein and the plaintiffs thus remained oblivious of the said suit; (g) that after the filing of the written statement in the said suit for partition, the defendant No.2 went missing since 22 nd November, 2006 and a complaint dated 26th November, 2006 to that effect was lodged with PS Uttam Nagar, Delhi; (h) that the factum of the defendant No.2 herein having gone missing was also not disclosed in the partition suit; (i) that for the said reason the defendant No.2 could not contest the suit for partition and could not lead evidence of the Will therein and in the said circumstances a preliminary decree for partition of the said property as well as the other property subject matter of that suit was passed on 6 th October, 2010; (j) that though the defendants No. 3 and 4 herein filed RFA No. 20/2011 against the said preliminary decree but the same was dismissed by this Court vide order dated 18th March, 2011; (k) that the plaintiffs thereafter filed an application for impleadment in the suit for partition but the said application was dismissed by the Court of the Additional District Judge where the proceedings for final decree in the suit for partition were pending, vide order dated 5th May, 2011; (l) that the plaintiffs filed CM(M) against the said order before this Court but which was dismissed as withdrawn on 31 st January, 2012. The plaintiffs thereafter filed this suit - for declaration that the judgment and preliminary decree dated 6th (a) October, 2010 in the suit for partition aforesaid is null and void; (b) for declaration that the plaintiffs are the owners of the said property; and, (c) for permanent injunction restraining the defendants from creating any third party interest in the property.

(3.) SUMMONS of the suit and notice of the application for interim relief were issued though no ex parte ad interim relief has been granted till now. The defendant No.1 has filed a written statement contesting the suit; the defendants No. 2 and 5 to 12 were proceeded against ex parte on 7th May, 2012; though the counsel for the defendants No. 3 and 4 had appeared and subsequently claimed to have filed written statement on behalf of the defendant No.4 but neither any written statement is found on record nor did the defendants No. 3 and 4 appear thereafter and they also were proceeded against ex parte on 6th March, 2013.