SHIV NARAYAN SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This order shall dispose of I.A.No. 1659/2004 under Section 151 of the Code of Civil Procedure,1973('CPC') as well as I.A.No. 1660/2004 under Section 152 read with Sections 151 and 153 CPC filed by the plaintiffs in their suit for partition which stood finally disposed of on 18th December,2003.

(2.) M/s Kuoni Travel (India) Limited, the defendant in the suit, filed its written statement and one of the pleas taken was that the suit for partition had been filed with mala fide motives as prior to the filing of the suit the plaintiffs had not informed it of their intentions to have the suit property partitioned and if that had been done it would have agreed for partition since there was no dispute that the plaintiffs were owners of 50% undivided share in the suit property and the defendant was also owner of 50% undivided share as had been claimed by the plaintiffs in the plaint. It was also claimed in the written statement by the defendant that as far as the relief of possession being claimed by the plaintiffs in respect of the portions where the defendant was in occupation as a statutory tenant of the plaintiffs is concerned, the plaintiffs were required to get that relief in other appropriate proceedings and not in this partition suit as its tenancy was protected under the Rent Act.

(3.) Since there was no real dispute between the parties regarding their shares in the suit property no issues were framed on any aspect of the matter including the plea of the defendant that relief of possession could not be claimed by the plaintiffs in this suit for partition in respect of the portions which were in its occupation as statutory tenant of the plaintiffs. So, on 22nd May, 2003, a preliminary decree of partition was passed on the basis of consent of both the parties holding both of them owners of 50% undivided share in the suit property. The relevant portion of the order passed on 22nd May, 2003 by the Court is reproduced below:-