Narain Das vs Koramal

Manmohan Singh, J.—The present suit has been filed by the plaintiff seeking the relief of declaration, partition, rendition of accounts, permanent and mandatory injunction.

The plaintiff and defendant are real brothers and the present dispute is in respect of Shop bearing No. 215, Mohan Singh Market, INA, New Delhi which is in joint possession of both the parties.

The present application being I.A. No. 4893/05 under Order VI Rule 17 read with Order 1 Rule 10 CPC has been filed by the plaintiff for amendment of plaint. In Para 7 of the application, it is stated that it has come to the knowledge of the plaintiff that after filing the suit that there is a decision taken by the Government to refurbish the whole market of Mohan Singh Place where the shop is situated for which purpose all the shops in the market will be taken over by the Land and Development office and thereafter a new market will be constructed in assistance with the DDA and thereafter possession will be delivered to the applicant.

The records of the Land and Development office and the Directorate of estates does not mention the name of the plaintiff in respect of the shop in question as it contains only the defendant's name as shown in the record although the plaintiff is the owner to the extent of half share. It is stated that in the light of the above said facts, it has become imperative on the part of the plaintiff to implead Land and Development Office, Nirman Bhawan, New Delhi as well as Directorate of Estates under the Ministry of Urban Affairs and Employment, Union of India, New Delhi and DDA as proposed additional defendants 2 to 4 it has become necessary because of its involvement and subsequent re-allotment of the shops in the market.

In this scenario, the plaintiff wants to amend the cause title of the plaint by impleading the aforesaid parties as defendants 2 to 4 with a view to safeguard and protect the rights of the plaintiff in the suit shop.

The plaintiff by virtue of this amendment propose to incorporate Para 5A, 6A, 16A and prayer Clause (vi) and Sub-clause (f), as the same have been necessitated on account of subsequent development which had taken place during the pendency of the above noted suit.

This application has been opposed by the defendant on various grounds including that the plaintiff and defendant are joint owners in equal share. The case of the defendant is that the defendant has allowed the plaintiff to sell men's wear in a portion of the shop as his licensee. The said license was revoked in February 2005 and the plaintiff was called upon to remove all his belongings from the said shop and wind up the affairs of his business upto 31st March, 2005. The plaintiff has no right, title and interest of any kind whatsoever in the shop in dispute.

The defendant has also stated that to the knowledge of the defendant no such decision has been taken in respect of Mohan Singh market situated near INA market. The market of Mohan Singh Palace is situated at Kharag Singh Marg, New Delhi. Learned Counsel for the defendant states that the defendant is the owner of the shop in dispute and the plaintiff has no right, title or interest in the shop in dispute.

The plaintiff has admitted in the plaint that the defendant has been shown to be the owner of the shop in dispute in the records of the Directorate of Estates. Learned Counsel for the defendant has argued that by virtue of the provisions of Benami Transactions Prohibition Act, 1988 no suit, claim or action to enforce any right in respect of any property held Benami against a person in whose name the property is held, shall lie by and on behalf of the person claiming to be the real owner of such property. In view of the said Act, the plaintiff cannot assert any right as joint owner of the shop in dispute.

I have considered the rival submissions of the parties. The reply to this application has also been filed by the Deputy Land and Development Officer of Land and Development office. It is contended in the reply filed by the Land and Development office that the shop in question was originally allotted to Sh. Nathu Ram in 1968.

The allotment in his name was cancelled with effect from 1st October, 1970 on account of arrears of payment. On 13th August, 1975 Sh. Kora Mal (defendant herein) applied for regularization and allotment of the shop in his name on partnership basis which was entered between Sh. Nathu Ram and Kora Mal, defendant herein and Smt. Kamlesh with effect from 3rd December, 1968.

The said partnership was dissolved on 5th November, 2008 and the shop remained in the occupation of Kora Mal and Kamlesh till 21st May, 1969 Thereafter Smt.Kamlesh relinquished her share in favour of Kora Mal who became the sole occupant of the shop till 21st May, 1969. The said allotment as per reply cannot be regularized in his name due to unauthorized construction in the premises.

The ownership right was granted in the name of Kora Mal vide letter dated 25th March, 1998 issued by the Directorate of Estates.

Learned Counsel for defendant No. 1 has also argued that there was no privity of contract between the plaintiff and the Directorate of Estates and, therefore, the application is highly misconceived and is not maintainable.

In the above said facts and without going to the merits of the case, I am of the opinion that the application is not maintainable as the present dispute is between the two brothers wherein the plaintiff is alleging that he is in occupation of part of the shop in dispute and admittedly the plaintiff has no title in his favour. There is also no contract between the plaintiff and Directorate of Estates and in case any decision is taken by the Directorate of Estates to demolish the market and re-allocate the same in future it is the defendant who, if necessary, would take the appropriate remedy if need arises.

I feel that in order to decide the controversy between the parties, the proposed defendants 2 to 4 are not necessary parties and the amendment sought in the plaint is necessary to determine the real controversy between the parties. Prima facie it appears that the present application has been filed by the plaintiff in order to delay the matter and/or with some other motive in order to strengthen the claim of co-ownership in the property by involving the Government Departments. It appears from the record that by filing this application, the proceedings in this suit have been delayed for about four years otherwise the main matter would have been decided by this time. Under these circumstances, the application filed by the plaintiff is not bona fide and not maintainable and the same is dismissed with costs of Rs. 20,000/- to be deposited by the plaintiff with the Delhi Legal Services Authority, Delhi High Court, New Delhi within four weeks from today.

CS (OS) No. 316/2005

List this matter before the Joint Registrar for admission/denial of documents on 1st May, 2009. No further adjournment in this regard will be granted. For framing of issues before this Court, list the matter on 1st July 2009.