NISHEET BHALLA Vs. MALIND RAJ BHALLA

JUDGEMENT

(1.) In this suit filed by the plaintiffs, relied of partition and permanent injunction is claimed. Plaintiff Nos. 1 & 2 are sons of late Cdr. Manu Raj Bhalla and plaintiff No. 3 is his widow. Defendant Nos. 1 & 2 are the brothers of Cdr. Manu Raj Bhalla and defendant No. 3 is his sister. Thus, father of plaintiff Nos. 1 & 2 (husband of plaintiff No. 3) and the defendants were/are brothers and sister. They are all children of Shri Bal Raj Bhalla. Shri Bal Raj Bhalla was allotted a plot of land bearing No. 48, Block-G measuring 233.33 sq. yards in Naraina Industrial Residential Scheme, New Delhi (hereinafter referred to as 'the suit property') on perpetual lease. He constructed a 2A1/2 storeyed building on the said plot of land. During his lifetime, he executed a will dated 26-5-1990 whereby he bequeathed the suit property in favour of his wife Smt. Swadesh Kumari Bhalla. Shri Bal Raj Bhalla died on 6-6-1990 and on his death the suit property devolved upon Smt. Swadesh Kumari Bhalla and DDA mutated the property in her name. While Smt. Swadesh Kumari Bhall was still alive, her eldest son namely Cdr. Manu Raj Bhalla died on 2-1-1993 leaving behind the plaintiffs is his only legal heirs. Within few months, Smt. Swadesh Kumari Bhalla also died on 23-5-1993. She died intestate and accordingly the suit property is inherited by the plaintiffs (claiming through Cdr. Manu Raj Bhalla) and defendants in four equal shares. Thus, plaintiff Nos. 1 to 3 have Vith undivided share in the suit property.

(2.) After the death of Smt. Swadesh Kumari Bhalla, DDA has mutated this property in the name of plaintiffs and defendants vide letter dated 16-12-1994. The plaintiffs accordingly claimed that they are owners of Vith undivided share in the property and on that basis decree of partition is prayed for demarcation of respective shares by metes and bounds. In the alternative, it is prayed that in case the property cannot be partitioned by metes and bounds, then the same be sold and plaintiffs be given their 1/4th share. Decree for permanent injunction is also sought against the defendants seeking restraint against them from parting with possession or creating any encumbrance or otherwise disposing the suit property. In the written statement filed on behalf of defendant No. 1 aforesaid facts pleaded in the plaint are not disputed. However, the maintainability of the suit is challenged on the ground that after the death of Cdr. Manu Raj Bhalla, his wife "plaintiff No. 3, has married Shri Anil Rajput and plaintiff Nos. 1 and 2 have also been adopted by Shri Anil Rajput. Therefore, plaintiffs have ceased to have any interest in the property. It is also stated that all pleas made in the plaint are to the effect that parties are in joint possession of the property, whereas the fact is that plaintiffs are not in possession of any portion of the suit property and the entire property is in possession of defendant Nos. 1 and 2. On this basis it is also pleaded that plaintiffs have not paid requisite court-fee.

(3.) Written statement on behalf of defendant Nos. 2 and 3 is also on the same lines. In this backdrop, defendant Nos. 2 and 3 have also filed application under Order VII, Rule 11 of CPC for dismissal of the suit/ rejection of the plaint. Though this application is filed on behalf of defendant Nos. 2 and 3, after the arguments were heard in this application, defendant No. 3 (sister) has filed IA No. 5481/2006 wherein she has prayed for transposing herself as the plaintiff and is now supporting the claim of the plaintiffs for partition and claiming therein her Vith share. By necessary implication defendant No. 3 is now not pressing the application under Order VII, Rule 11, CPC.