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2006 DIGILAW 1945 (DEL)

SUNITA v. JEEVAN LAL

2006-10-19

REKHA SHARMA

body2006
REKHA SHARMA, J. ( 1 ) MS. SUNITA is seeking partition of property bearing No. 1470, Gali No. 7, wazir Nagar, Kotla Mubarak Pur, New Delhi and also a restraint order against the defendants from dispossessing her from the said property or from raising any illegal or unauthorised construction on the property or from creating any third party interest in respect thereto. ( 2 ) THE brief facts which have led to the filing of the suit are as under:-The suit property was originally purchased and constructed by late Shri prakash Lal Kapoor out of the joint family funds. The said Shri Prakash Lal kapoor died intestate in the year 1982 leaving behind the plaintiff, who is his grand daughter, his four sons and one daughter. The father of the plaintiff had pre-deceased his father. Three other sons of Shri Prakash Lal Kapoor, namely, shri Vinod, Shri Ashok Kumar, and Shri Vijay Kumar had died before the filing of the suit. The present suit, therefore, has been filed against the only surviving son of Shri Prakash Lal Kapoor; the widow and children of late Shri vinod; the widow and children of late Shri Ashok Kumar; Smt. Raj daughter of shri Prakash Lal Kapoor and Shri Siddharth Gupta. ( 3 ) IT is alleged in the plaint that some time in August, 2000, the defendants created such an atmosphere in the house that the plaintiff was left with no option but to shift out from the suit property in a rented accommodation at C-401, Timber Market, Kotla Mubarak Pur, New Delhi. However, in December, 2002 and May, 2003 she approached the defendants with a request for partition of the suit property but all she got were false assurances. It is further alleged that due to unavoidable reasons the plaintiff remained out of Delhi during the period from May, 2003 up to September, 2003. During her absence the defendants had entered into a Collaboration Agreement with Shri Siddharth Gupta who demolished the suit property and raised unauthorised construction thereon. The plaintiff requested the defendants to stop the unauthorised construction but to no avail. ( 4 ) IT is the case of the plaintiff that she being the daughter of late Shri jeevan Lal Kapoor is entitled to a share in the property through her father like all other shareholders and is, therefore well within her right to seek partition of the same. ( 4 ) IT is the case of the plaintiff that she being the daughter of late Shri jeevan Lal Kapoor is entitled to a share in the property through her father like all other shareholders and is, therefore well within her right to seek partition of the same. Pursuant to the service of summons of the suit there was appearance on behalf of defendant No. 1 for three dates of hearing but thereafter none appeared for him and as regards the other defendants none ever appeared for them. All the defendants were, therefore, proceeded against ex parte. ( 5 ) THE plaintiff in support of her case has filed her own affidavit by way of evidence. In her affidavit, she has reiterated the averments and allegations made in the plaint and has also proved on record the site plan of the property in dispute as Ex. PW. 1/a; her birth certificate as Ex. PW. 1/b; death certificate of her father as Ex. PW. 1/c; and photographs showing construction on the suit property as Ex. PW. 1/d. ( 6 ) HAVING regard to the fact that there is no rebuttal to the averments and allegations made in the plaint from the side of the defendants, while the plaintiff has reiterated the same by filing her own affidavit in support thereof, I have no reason to disbelieve the case set up by the plaintiff. I, therefore, pass a preliminary decree for partition of the suit property bearing no. 1470, Gali No. 7, Wazir Nagar, Kotla Mubarak Pur, New Delhi and appoint Shri yeeshu Jain, Advocate, 380, Lawyers Chambers-II, Delhi High Court, New Delhi (Mobile No. 9811394417) as Local Commissioner to determine the share of the plaintiff and the defendants in the suit property as also to ascertain whether the property is capable of being partitioned by metes and bounds and, if not, to suggest other modes of partition. The fee of the Local Commissioner is fixed at rs. 15,000/ -. ( 7 ) THE prayer of the plaintiff that the defendants should be restrained from dispossessing her from the suit property does not survive, as according to her own showing in the plaint, she had already shifted to another house. The fee of the Local Commissioner is fixed at rs. 15,000/ -. ( 7 ) THE prayer of the plaintiff that the defendants should be restrained from dispossessing her from the suit property does not survive, as according to her own showing in the plaint, she had already shifted to another house. The other prayer that the defendants should be restrained from carrying out construction on the property also cannot be acceded to because the suit was filed some time in the year 2003 and it is not known as to what is the present status of the construction on the property.