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2015 DIGILAW 1019 (DEL)

Sanjive Shukla v. Rajiv P. Shukla

2015-04-16

HIMA KOHLI

body2015
JUDGMENT : Hima Kohli, J. (Oral):-- I.A.7577/2013 (by the plaintiff u/S 44 of the Transfer of Property Act r/w Section 151 CPC) 1. The present application has been filed by the plaintiff in a suit for partition in respect of a flat situated in the World Trade Centre, Babar Road, to the extent of 50% and a residential premises situated at D-30, Anand Vihar, Indraprastha Extension-II to the extent of 25% therein. The flat situated in the World Trade Centre is owned by the Family Trust and stated to have been sub-licensed, whereas the residential premises is owned by the father of the parties. 2. The plaintiff has also sought a decree of perpetual injunction against the defendants in respect of the aforesaid two immovable properties, apart from rendition of accounts in respect of the rents and other benefits collected by them from the aforesaid properties. 3. By this application, the plaintiff has prayed for directions to the Police Station: Anand Vihar for evicting some trespassers/squatters and taking possession of the residential premises and sealing the same. 4. The plaintiff is a permanent resident of Canada and has instituted the present suit against the defendants No. 1 to 3, his siblings on 15.01.2007. Summons were issued in the suit on 17.01.2007, on which date, it was directed that till the next date of hearing, the defendants are restrained from transferring, alienating or parting with possession of the aforesaid two immovable properties. Appearance was entered by the contesting defendants No. 1 to 3, who had filed their written statement in April, 2007 stating inter alia that the defendant No. 1 had sold/transferred his 1/4th share in the property at Anand Vihar in favour of one Shri Suresh Vij, for consideration upon execution of an Agreement to Sell dated 11.12.2006. 5. Later on, two applications were filed by Shri Suresh Vij and Shri Sanjay Mahajan under Order I Rule 10 CPC, praying inter alia for being impleaded in the present suit on the ground that they are subsequent bonafide purchasers of the residential property (I.A 1461/2007 and 1465/2007). Replies in opposition to the said applications were filed by the plaintiff. 5. Later on, two applications were filed by Shri Suresh Vij and Shri Sanjay Mahajan under Order I Rule 10 CPC, praying inter alia for being impleaded in the present suit on the ground that they are subsequent bonafide purchasers of the residential property (I.A 1461/2007 and 1465/2007). Replies in opposition to the said applications were filed by the plaintiff. Vide order dated 29.04.2009, the aforesaid applications were dismissed with the observation that the present suit instituted by the plaintiff is one for partition of immovable properties and the Court is required to adjudicate as to whether the parties, who are related to each other being siblings, are entitled to a share in the immovable properties left by their parents. It was observed that in case the applicants had acquired any right pursuant to the Agreement to Sell dated 11.02.2006/29.08.2006, then they should take appropriate independent proceedings before a competent court for adjudication of their rights and that by impleading them in the present suit for partition, the Court cannot change the nature of the proceedings from a suit for partition to a suit for declaration. It was also observed that in case the applicants are impleaded in the present suit, the Court would have to go into the question as to whether the defendants have any right or title in the suit properties or not and therefore, the right of the applicants to have the aforesaid issue decided, lies in an independent proceeding that may be taken by them. With these observations, the aforesaid applications were dismissed. The Court is informed that the said order has attained finality as none of the parties had filed an appeal against the same. 6. Thereafter, on 23.01.2012, a preliminary decree was passed in respect of the Anand Vihar property by holding that the plaintiff and the defendants No. 1 to 3 are entitled to 1/4th share each therein. Further, counsel for the plaintiff and the defendants No. 1 to 3 had stated that it is not possible to divide the aforecited property by metes and bounds and the same ought to be sold. They had however requested that in the first instance, they be permitted inter se bidding. 7. Further, counsel for the plaintiff and the defendants No. 1 to 3 had stated that it is not possible to divide the aforecited property by metes and bounds and the same ought to be sold. They had however requested that in the first instance, they be permitted inter se bidding. 7. In view of the aforesaid submission made by the counsels for the parties, the plaintiff and the defendants No. 1 to 3 were directed to give their respective bids in sealed covers for the same to be opened on the next date of hearing. It is a different matter that the bids given by the plaintiff and the defendants No. 1 to 3 in sealed covers were finally opened after three years on 11.02.2015, on which date, it had transpired that the plaintiff had made a bid of Rs. 4 crores for the residential property whereas the defendants No. 1 and 2 had offered a bid of Rs. 6 crores. At that stage, Mr. Agarwal, learned counsel for the plaintiff had stated that since the bid was submitted by the plaintiff about two years ago, i.e., on 03.10.2012, he may be permitted to obtain fresh instructions from his client with regard to the defendants No. 1 and 2’s bid and also for giving a counter offer in respect of the said property. 8. Leave, as prayed for, was granted to the counsel for the plaintiff and the suit is listed today in the category of ‘Directions’ for counsel for the plaintiff to report instances. Today, learned counsel for the plaintiff insists that the present application may be considered and decided in the first instance. 9. Learned counsel for the plaintiff refers to Section 44 of the Transfer of Property Act to contend that no part of the suit property could have been sold by the defendants as the siblings in the present suit have joint possession and enjoyment of the residential house. He states that the proceedings in the suit have been botched up by the previous counsel engaged by the plaintiff and immediately after he was engaged by the plaintiff, he had filed the present application on 25.04.2013, for seeking directions to the local police to evict the trespassers/squatters, who are in unauthorized possession of the residential property. 10. He states that the proceedings in the suit have been botched up by the previous counsel engaged by the plaintiff and immediately after he was engaged by the plaintiff, he had filed the present application on 25.04.2013, for seeking directions to the local police to evict the trespassers/squatters, who are in unauthorized possession of the residential property. 10. A reply in opposition to the application has been filed by the defendants No. 1 to 3 who have stated inter alia that the present application is liable to be dismissed on the ground that even if the facts narrated by the plaintiff in the application are accepted as correct, at best it gives a cause of action to him to institute a separate suit against the trespassers of the residential premises but it does not entitle him to seek the reliefs of the nature prayed for in the application. In other words, it is contended that the plaintiff cannot be permitted to club two separate causes of action in the present suit filed for partition of immovable properties. 11. It is stated by Mr. Mahajan, learned counsel for the defendants No. 1 and 2 that the defendants have already made an averment in their written statement to the effect that the defendant No. 3 had executed an Agreement to Sell dated 11.12.2006 in respect of 1/4th undivided share in the residential premises in favour of Mr. Suresh Vij and the other defendants have also entered into separate Agreements to Sell in respect of their respective 1/4th share therein. He submits that in view of the fact that the purchasers of part of the suit premises had filed two applications for impleadment in the present suit, which came to be dismissed on 24.4.2009 due to the stiff opposition by the plaintiff, it does not lie in his mouth to seek their eviction in the present suit. 12. The law on the question as to whether in a suit for specific performance of a contract for sale of a property instituted by a purchaser against the vendor, a third party to the contract claiming to have an interest over the contracted property is entitled to be arrayed as a defendant in the suit, is well settled. 12. The law on the question as to whether in a suit for specific performance of a contract for sale of a property instituted by a purchaser against the vendor, a third party to the contract claiming to have an interest over the contracted property is entitled to be arrayed as a defendant in the suit, is well settled. As held in the case of Kasturi v. Iyyamperumal and others reported as AIR 2005 SC 2813 , the twin tests that must be satisfied for determining the question as to who is a necessary party in a suit for specific performance are that firstly, there must be a right to some relief against such a party in respect of the controversies involved in the proceedings and secondly, that no effective decree can be passed in the absence of such a party. 13. In the aforecited case, the Supreme Court had carefully considered the provisions of Section 19 of the Specific Relief Act and opined that the guiding principle is that the presence of a party is absolutely necessary to adjudicate the controversies involved in a suit for specific performance of a contract for sale, as, the only question that is required to be adjudicated in such a suit is the enforceability of the contract entered into between the contracting parties. An applicant whose interest is adverse to the defendant ought not to be impleaded in a suit for specific performance for the reason that if a person seeking addition is added in such a suit, it is natural that the scope of the said suit would be enlarged far beyond the relief sought by a contracting party. 14. Thus, it is clear that the scope of the relief in a suit for partition cannot be changed to a suit for eviction and possession by impleading third parties, who are neither necessary nor proper parties to the original suit. It was while keeping in mind the aforesaid settled law that the order dated 29.04.2009 came to be passed in I.As No. 1461/2007 and 1465/2007, applications filed by the interveners for seeking impleadment. The said order has admittedly attained finality as neither the plaintiff, nor the defendants or the intervenors have challenged the same in appeal. It was while keeping in mind the aforesaid settled law that the order dated 29.04.2009 came to be passed in I.As No. 1461/2007 and 1465/2007, applications filed by the interveners for seeking impleadment. The said order has admittedly attained finality as neither the plaintiff, nor the defendants or the intervenors have challenged the same in appeal. Once the predecessor Bench has declined to implead the interveners as parties in the present suit, by this application, the plaintiff cannot be permitted to convert a partition suit into a suit for declaration, eviction, possession, etc. Therefore, any relief prayed for by the plaintiff in the present application for directions to the local police to evict the trespassers/squatters has to be turned down. The Court declines to convert the present suit for partition into a suit for declaration, eviction, possession, etc., that too, after a preliminary decree has already been passed in the suit as long back as on 23.01.2012. In case a cause of action has arisen in favour of the plaintiff, it is for him to seek his remedies against the said third parties in independent proceedings. 15. For the aforesaid reasons, the prayer made in the present application is declined and the application is dismissed. However, liberty is granted to the plaintiff to seek his remedies against the alleged trespassers of the residential premises at Anand Vihar, as may be available to him in law.