Urmila Devi and Others vs Dropadi Devi and Others

Valmiki J. Mehta, J.—This is a suit filed by the three plaintiffs. Suit is for declaration, partition, cancellation of documents, prohibitory injunction and mandatory injunction. The suit property is property being A-266, New Subzi Mandi, Azadpur, Delhi. The reliefs in the suit are essentially in two parts. One part pertains to the relief against defendant nos.1 to 4 with the defendant no.5 and the other part pertains to defendant nos.7, 8 and 10 to 14. The three groups are basically the successors-in-interest of partners of a partnership firm M/s. Ram Gopal Banwari Lal. Plaintiffs are successors-in-interest of the partner Sh. Banwari Lal. The partnership firm M/s. Ram Gopal Banwari Lal initially had two partners, as per its names, and thereafter two other partners Sh. Chander Bhan and Sh. Ram Nath were inducted in the year 1967. On 31.3.1971, the fourth partner Sh. Ram Nath retired and consequently w.e.f 5.4.1971 partnership was reconstituted with 36% share in the property being of Sh. Ram Gopal, 36% share was of Sh. Banwari Lal and the balance 28% share was of Sh. Chander Bhan. With respect to the suit property on 28.9.1972, a perpetual lease was executed by the competent authority in favour of the partnership firm called as M/s. Ram Gopal Banwari Lal, but which at the relevant time had three partners, namely Sh. Ram Gopal, Sh. Banwari Lal and Sh. Chander Bhan. Plaintiffs are successors-in-interest of the partner Sh. Banwari Lal whereas defendant nos.1 to 4 are the successors- in-interest of partner Sh. Ram Gopal. Defendant no.5 is the purchaser of the share of the defendant nos.1 to 4 under the documentation dated 9.3.2009 and which have been mentioned in para 3. XV. of the plaint. Other defendants, namely defendant nos.7 and 8 and 10 to 14 are the successors- in-interest of the third partner Sh. Chander Bhan.

The case laid out in the plaint is that the suit shop is an undivided property and therefore defendant nos.1 to 4 had no rights to execute the documentation dated 9.3.2009 in favour of the defendant no.5. In this suit, it is stated that Sh. Chander Bhan, who was not the original partner of the partnership firm M/s. Ram Gopal Banwari Lal, did not have any rights in the suit shop, inasmuch as perpetual lease deed was executed by the competent authority of the suit property in the name of M/s. Ram Gopal Banwari Lal i.e the perpetual lease was only in the name of the original two partners, and that Sh. Chander Bhan who came in later as a partner did not have any share in the suit shop. The successors-in-interest of Sh.Chander Bhan have filed a counter claim in the suit claiming rights in the suit shop on the ground that as per the perpetual lease deed even Sh. Chander Bhan had rights in the suit shop.

As per the written statement filed by defendant nos.1 to 5, it is pleaded that the plaintiffs have concealed the factum of execution of the Settlement Agreement-cum-Award passed by the Arbitral Tribunal of The Potato & Onion Merchants Association (Regd.) on 7.2.1981. As per this Award/Order dated 7.2.1981 of the Arbitral Tribunal of Potato & Onion Merchants Association (Regd.), where the suit shop is located, and which was functioning for the market, Sh. Banwari Lal who is predecessor-in- interest of the plaintiffs was a party to these proceedings, a half specific portion was by partition given to the successors-in-interest of late Sh. Ram Gopal, namely Smt. Dropadi Devi and Smt. Shanti Devi. Smt. Dropadi Devi is the defendant no.1 in the present suit and defendant nos.2 to 4 are the successors-in-interest of Smt. Shanti Devi. As per the Award dated 7.2.1981, Smt. Dropadi Devi and Smt. Shanti Devi received a specific portion of the suit shop as their share. This Order dated 7.2.1981 which is referred and relied upon by defendant nos.1 to 5 in the written statement is not disputed by the plaintiffs in their replication.

A reference to the Order dated 7.2.1981 of the Arbitral Tribunal shows that Smt. Dropadi Devi and Smt. Shanti Devi, as successors-in- interest of Sh. Ram Gopal, were given 50% share rights in the suit shop and this portion falling to their share was described by the Award dated 7.2.1981 as "small room on the first floor in the shop, half platform on the ground floor towards main road and half godown in the basement of the suit shop".

Once therefore partition has already been taken place and Smt. Dropadi Devi and Smt. Shanti Devi who are the defendant nos.1 to 4 in the present suit, were in lieu of their share given specific portion of the suit shop, then, as against them the suit for partition will not lie inasmuch as the share of the defendant nos.1 to 4 has already been partitioned and given to them under the Award dated 7.2.1981. Once the defined share by partition by metes and bounds has already been given to defendant nos.1 to 4 with respect to their rights in the suit property, there cannot be any suit for partition that the property continues to be undivided and therefore has to be partitioned. Defendant nos.1 to 4 having received a specific portion under the partition/Award dated 7.2.1981. Hence these defendant nos.1 to 4 were entitled to sell their specified share to defendant no.5.

The following reliefs are claimed in the suit:-

"a) Decree of Declaration declaring the transaction as executed by defendant no.1 to 5 various documents as described in para XV in the plaint as null and void as in breach of right of preemption of the plaintiff being the co-owners to the extent the same described a divided shares in the hands of defendants no.1 to 4 as mentioned in the said documents being excessive in portion in possession even as their own case of the defendant and also due to being in violation of Perpetual Lease Deed dated 28.9.1972.

b) In consequences of the aforesaid declaration, it is therefore, most humbly prayed that the Hon''ble Court may kindly be pleased to direct the registrar of documents to cancel the documents registered with the registrar of the documents, Pritampura, New Delhi referred in para no.XV of the plaint.

c) Pass Preliminary decree of partition in favour of the plaintiff no.1 to 3 for half undivided shares and the defendant no.1 to 4 have jointly the remaining half undivided share;

d) Pass final decree of partition thereby dividing the suit property No.A-266, New Sabzi Mandi, Azadpur, Delhi with a equal right having an equal market value.

e) Pass a decree of permanent injunction restraining defendant no.6 from granting any license in favour of the defendant no.5 carrying out the trade activity from the suit thereof until acquire a valid title with divided or specific portion of the suit property.

f) Cost of the suit may also be passed in favour of the plaintiffs and against the defendants and

g) Pass such other/further order as this Hon''ble Court may deem fit and proper in the interest of justice."

A reading of the relief clauses shows that essentially the suit was filed only with respect to the share of late Sh. Ram Gopal, which was succeeded by the defendant nos.1 to 4, and seeking reliefs against the defendant nos.1 to 5. In view of above discussion, the suit is dismissed against defendant nos.1 to 5 as the reliefs which are prayed cannot be granted because the suit property/shop was already divided, defendant nos.1 to 4 had been given a specific defined portion on partition as per the Award dated 7.2.1981, and it is this specific share and portion which was sold by the defendant nos.1 to 4 to the defendant no.5, however, the counter claim of the successors-in-interest of Sh. Chander Bhan will continue as the same is opposed by the plaintiffs.

The suit is accordingly disposed of.

Counter claim being CC No. 50/2011 will continue and which counter claim will continue on behalf of successors-in-interest of Sh. Chander Bhan and against the successors-in-interest of Sh. Banwari Lal. Counsel appearing for sister of plaintiff nos.2 and 3 who had not been impleaded earlier states that an application has been filed for impleading this sister Ms. Neha Gupta as a party to the proceedings and who will now be a defendant in the counter claim being CC No. 50/2011.

Accordingly, list the CC No. 50/2011 before the Joint Registrar on 19th October, 2015.