Anita Jain and Others vs Rajinder Jain

Valmiki J Mehta, J.—The challenge by means of this Regular First Appeal filed u/s 96 of the CPC (CPC), 1908 is to the impugned judgment of the Trial Court dated 24.5.2010. By the impugned judgment, the Trial Court decreed the suit of the respondent/plaintiff for partition with respect to the suit property being a shop No.10, AL Market, Shalimar Bagh, Delhi. It was held that the respondent/plaintiff is a half owner of the suit shop and therefore entitled to partition and other reliefs qua this shop.

The facts of the case are that the subject shop was allotted admittedly in favour of two brothers, i.e. respondent/plaintiff/Sh. Rajinder Jain and Sh.Ram Chander Jain who is the late husband of the appellant no.1. This shop was purchased in an auction from the Delhi Development Authority on 5.1.1985 for Rs. 3,11,000/-, the costs being shared by the respondent/plaintiff and the husband of the appellant no.1. The possession of the shop was got by both the brothers on 6.4.1985 and whereafter both the brothers started running business in this shop. From April, 1995, it was said that the husband of the appellant no.1 was exclusively carrying out the business in the shop by ousting the respondent/plaintiff from the shop. Earlier, the respondent/plaintiff had filed a Civil Suit no.420/1993 for declaration and injunction and in which suit, a decree was passed on 23.9.1998 declaring the respondent/plaintiff as the co-owner of the suit shop along with Ram Chander Jain, husband of the appellant no.1. Admittedly, this decree has become final as no challenge was laid to the same by filing an appeal. Sh. Ram Chander Jain, the husband of the appellant no.1 died on 25.11.1998. Since the request of the respondent/plaintiff to partition the suit shop was declined, a legal notice dated 4.3.2004 was issued by the respondent/plaintiff to the appellants/defendants and whereafter subject suit came to be filed. To complete the narration of facts, it is necessary to refer to the fact that the respondent/plaintiff had also filed another suit before the Civil Court seeking implementation of a family settlement of the year 1993, however, this suit was opposed by the appellants/defendants, and the said suit was dismissed by giving a finding that the oral settlement was not proved and hence cannot be acted upon.

The appellants/defendants contested the suit by stating that the suit was barred under Order 2 Rule 2 CPC and that there was a family settlement dated 18.10.1993 whereby there is no cause of action to file the subject suit. It was claimed that as per the settlement dated 18.10.1993, the appellants/defendants had become exclusive owners of the suit shop.

After the pleadings were complete, the Trial Court framed the following issues:

Issues

Whether suit of the plaintiff is barred under Order 2 Rule 2 CPC being hit by Section 11 CPC? (OPD)

Whether plaintiff has no cause of action to file the present suit because of family settlement dated 18.10.93? (OPD)

Whether plaintiff is entitled to the relief claimed for in the plaint? (OPP)

Relief.

Issue no. 1 with respect to the suit being barred under Order 2 Rule 2 CPC was already held against the appellants/defendants by a detailed order dated 14.5.2007, and which order has become final. So far as the issue no.2 of the respondent/plaintiff not having a cause of action in view of the alleged family settlement dated 18.10.1993 is concerned, the Trial Court has observed that firstly this family settlement cannot be relied upon in view of the decree passed by the Civil Court dated 23.9.1998 declaring the respondent/plaintiff and the husband of the appellant no.1 as equal co-owners of the suit property. As already stated, this decree has become final. There was also a subsequent family settlement dated 29.11.1998, Ex.PW1/2, which provided for sale of the suit shop and sharing the sale proceeds equally between the parties. In any case, once there is a decree which has become final, the parties would consequently become equal co-owners of the suit property. Similar is the finding of the Trial Court while dealing with issue no.3 pertaining to entitlement of the reliefs claimed by the respondent/plaintiff.

Learned counsel for the appellants sought to argue before this Court that the appellants/defendants had become owners of the suit shop by virtue of a family settlement dated 18.10.1993. This argument, in my opinion, has no merit because as the Trial Court has rightly held that there was a decree by a Civil Court dated 23.9.1998 in Civil Suit No.420/1993 which has become final holding the respondent/plaintiff and the husband of the appellant no.1 as equal co-owners of the suit property. In any case, another suit which was filed by the respondent/plaintiff relying upon the family settlement of 1993, but, the appellants/defendants contested this second civil suit by disputing the family settlement and this second suit was dismissed in 2004 with the finding that the family settlement of 1993 being oral cannot be acted upon.

No other issue is pressed or arises.

The Trial Court thus rightly found the respondent/plaintiff as a half owner of the suit shop and hence entitled to partition etc of the same. There is no merit in the appeal, which is accordingly dismissed, leaving the parties to bear their own costs.