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2008 DIGILAW 1185 (DEL)

DHANPAT RAI v. SHAISH KUMAR

2008-12-19

SHIV NARAYAN DHINGRA

body2008
JUDGMENT: 1. The petitioners are aggrieved by an order dated 2nd February, 2008 whereby the learned Civil Judge while deciding an issue about maintainability of the suit for partition though observed that the plaint as well as the relief clauses were not in accordance with law, however, instead of rejecting the plaint he observed that since suit was instituted long ago, i.e., on 8th April, 1987, the plaintiff would suffer irreparable loss if the plaint was rejected so he gave plaintiff an opportunity to file an application for amendment of the plaint and reliefs. Hereinafter parties shall be referred as plaintiffs and defendants. Petitioners are defendants before the Trial Court. .2. A perusal of the plaint filed by the plaintiffs would show that the plaintiffs titled the suit as a suit for partition. However, in the body of the suit, the plaintiffs mentioned that their father who died in year 1968 left behind a .Will in respect of property no. B-IV/172, Amar Colony bequeathing 1/7th equal share on each of his son and one daughter, if she was still unmarried on the date of his death. However, the property had certain charges which were mentioned in the Will itself and it was provided in the Will that after his demise the property would be valued among his sons and out of his 7 sons, one who pays the charges and the balance consideration to rest of the sons and to unmarried daughter Medha Rani (if she was still unmarried) would get the property. 3. The plaintiffs alleged that it was agreed among all the brothers that the property in question would be purchased by the plaintiff no. 2 and plaintiff no. 2 was asked to discharge all the encumbrances of the property. He discharged the encumbrances and finally a document was prepared by defendant nos. 1 to 5 and it was settled that a sum of Rs. 1,20,000/- would be paid to rest of the legal heirs and the property would be transferred in the name of the plaintiff no. 2. The plaintiff no. 2 was ready and willing to preform his part of agreement but defendant nos. 1 to 5 requested plaintiff no. 2 that the transaction as per agreement should be completed after mutation was effected in the name of all the sons. Thereafter, the mutation was effected in the name of all sons. Defendants no. 2. The plaintiff no. 2 was ready and willing to preform his part of agreement but defendant nos. 1 to 5 requested plaintiff no. 2 that the transaction as per agreement should be completed after mutation was effected in the name of all the sons. Thereafter, the mutation was effected in the name of all sons. Defendants no. 1 to 5, after getting the mutation effected, made an application to LandDO seeking permission to sell their share. 4. Plaintiffs stated in the plaint that the ground floor of the property was in possession of plaintiff no. 2 and first floor of the property was given to one Sh. H.S. Kohli, who in turn inducted defendants no. 6 and 7 as tenants. The plaintiffs however were not clear in the pleadings and then pleaded that H.S. Kohli himself was inducted as a tenant by other brothers for a period of 3 years without consent of plaintiff no. 2. It is stated in the plaint that on 11th January, 1983, rest of the 6 brothers (except plaintiff no. 2) sought permission from LandDO for selling their shares and plaintiff no. 2 learnt about this permission when he filed a suit for injunction against his brothers praying for restraining them from transferring their shares. Initially an injunction was granted by the High Court in a Revision Petition filed by plaintiff against transferring shares which was ultimately vacated by the Court. Taking benefit of vacating the injunction, the defendants no.1 to 5 sold out their 1/7th share each in the property to defendants no. 6 and 7. Plaintiff no. 2 preferred an SLP before Supreme Court against the order of High Court but the 5/7th share in the property was already sold by the defendants no. 1 to 5 to defendant nos. 6 and 7. 5. Plaintiff no. 2 continued in occupation of ground floor and defendant nos. 6 and 7 were occupying first floor, as they had purchased 5/7th share of the property. Defendants no. 6 and 7 then started harassing plaintiff no. 2 and threatened to disturb his possession of the ground floor. Plaintiff no. 2 was working with Government of India and was posted at Madras, while his wife and children were living at ground floor of the property in question. The sale deed in respect of 5/7th share was executed on 8th January, 1987 in favour of defendants no. 2 and threatened to disturb his possession of the ground floor. Plaintiff no. 2 was working with Government of India and was posted at Madras, while his wife and children were living at ground floor of the property in question. The sale deed in respect of 5/7th share was executed on 8th January, 1987 in favour of defendants no. 6 and 7. 6. In the prayer clause, plaintiffs asked for a decree of partition praying that 5/7th share of the defendants be partitioned and defendants no. 1 to 5 (who are brothers of plaintiffs) be ordered to transfer this 5/7th share in favour of the plaintiff no. 2 on agreed consideration of Rs.1,20,000/-. 7. There is no dispute that the 5/7th share has already been sold to defendants no. 6 and 7 and plaintiff no.2 is in possession of entire ground floor which obviously would be much more than his share of the property. He sought direction for transfer of 5/7th share in his favour by defendants no. 1 to 5 who admittedly are now not the owners of the property. 5/7th share of property had been sold to defendants no. 6 and 7 who are in part possession of the first floor of the property. This sale in the property was made when the plaintiff failed to obtain an injunction against the sale of their share by rest of the brothers. The plaintiff has not prayed for cancellation of sale deed of 5/7th share in favour of defendants no. 6 and 7. No relief of partition against defendants no. 1 to 5 can be granted to the plaintiff as defendants no. 1 to 5 are no longer owners of the property. 8. The plaintiff no.2 relied upon an agreement to sell of which he has not mentioned what was the date. The plaintiff no.2 is seeking direction from the Court for transfer of property in his favour in pursuance of an agreement to sell. He is not seeking specific performance of this agreement due to legal impediments. A perusal of pleadings would show that mutation was done in 1980 and permission for transfer of shares was given in 1983. The plaintiff no.2 is seeking direction from the Court for transfer of property in his favour in pursuance of an agreement to sell. He is not seeking specific performance of this agreement due to legal impediments. A perusal of pleadings would show that mutation was done in 1980 and permission for transfer of shares was given in 1983. If we count limitation of 3 years either from 1980 or from January, 1983 as is the date mentioned by the plaintiff no.2, no relief of specific performance could be given to the plaintiffs since it had become barred by limitation. .9. I consider that the Trial Court should have devolved upon the issues raised by the petitioner herein. It is apparent that the laintiff/respondent had .deliberately kept the pleadings vague and had not sought the relief of possession, specific performance, cancellation of sale deed etc. because of the Court fee involved and issue of limitation involved. 10. It is settled law that a person has to claim all reliefs which arise out of a cause of action and if he does not claim any particular relief arisen out of cause of action that becomes barred under Order 2 Rule 2 CPC. The Court cannot help a litigant who deliberately, in order to save court fee and limitation, keeps the pleadings vague. The suit of the plaintiffs was pending since 1987. The objection regarding maintainability was taken by the defendants in the WS. If the plaintiffs wanted to amend the suit, nobody stopped the plaintiffs from making an application for amendment and amending the suit accordingly. But when the plaintiffs have not filed an application for amendment despite knowing vagueness in the plaint, the Court cannot but reject the suit on the issue of maintainability. The court cannot order the plaintiff to amend the suit when the plaintiff had not shown his willingness to do so for so many years. 11. The Trial Court, therefore, went wrong in not rejecting the suit on the ground of vagueness of pleadings and the non-availability of the relief. The petition is allowed. The order of the Trial Court is set aside. The suit is held to be not maintainable.