IN THE HIGH COURT OF DELHI: NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment pronounced on: I.A. No.13124/2011 in CS (OS) No.

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1 IN THE HIGH COURT OF DELHI: NEW DELHI SUBJECT : CODE OF CIVIL PROCEDURE Judgment pronounced on: I.A. No.13124/2011 in CS (OS) No.1674/2011 SURENDRA KUMAR GUPTA Through Mr. J.S. Mann, Adv.... Plaintiff Versus BRIJ MOHAN GUPTA & ORS. Through Mr. R.L. Kohli, Adv. for Defendants No.2 to 5... Defendants CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J. 1. By this order, I propose to dispose of the application filed by defendants No.2 to 5 under Order VII, Rule 11 and Section 151 CPC. 2. The plaintiff has filed the present suit seeking following reliefs: (a) Decree may be passed in favour of the plaintiff and against the defendants declaring that plaintiff is entitled for whole of the 1/3rd share of Late Lal Chand amounting to Rs.5,67,33,333.33/- (Rupees Five crores Sixty Seven lacs Thirty Three Thousand Three Hundred Thirty Three and Thirty Three Paisa only) out of highest bid amount for Shop No.45-B and Shop No.67-A, Khan Market altogether totaling to Rs.17,02,00,000/- (Rupees Seventeen crores Two lacs only); and/or (b) Decree may be passed in favour of the plaintiff and against the defendants that for whole of the 1/3rd share of Late Lal Chand i.e. Rs.5,67,33,333.33/- (Rupees Five crores Sixty Seven lacs Thirty Three Thousand Three Hundred Thirty Three and Thirty Three Paisa only) be paid to the plaintiff in case, any claim from any of the other five legal heirs of Late Lal Chand is raised for their share the same may be rejected; and/or (c) Decree of permanent injunction may be passed in favour of the plaintiff and against the defendants thereby restraining the defendants from

2 claiming any money out of the 1/3rd share of Late Lal Chand amounting to Rs.5,67,33,333.33/- (Rupees Five crores Sixty Seven lacs Thirty Three Thousand Three Hundred Thirty Three and Thirty Three Paisa only) out of highest bid amount for Shop No.45-B and Shop No.67-A, Khan Market altogether totaling to Rs.17,02,00,000/- (Rupees Seventeen crores Two lacs only); and/or (d) Decree may be passed in favour of the plaintiff and against the defendants declaring that plaintiff is owner of 3rd Floor of Residential property No.208, Sarya Niketen, New Delhi and directing the defendant No.2 to revert back the possession of the same to the plaintiff; and/or (e) Cost of the suit may also be awarded in favour of the plaintiff and against the defendants. (f) Any other relief, which this Hon ble Court may deem fit and proper in the facts and circumstances of the case, may also be passed in favour of the plaintiff and against defendants. 3. The brief facts of the case are that the plaintiff and defendants No.1, 2 & 3 are the sons and defendant No.4 is the daughter, of Late Shri Lal Chand. Smt. Maha Devi who was initially impleaded in the suit as defendant No.1 was the widow of Late Shri Lal Chand who expired on The plaintiff and the defendants are the legal heirs and successors of the estate of Late Shri Lal Chand. 4. The three sons of late Shri Rati Ram, namely, Shri Lal Chand, Shri Ram Chander and Shri Moti Ram were the joint owners of two shops bearing Nos.67-B and 45-B, Khan Market, New Delhi and accordingly, they had 1/3rd share each in the above-mentioned two shops. In the suit filed by Shri Lal Chand against Shri Ram Chander and Shri Moti Ram, being Suit No.721/1980, a decree for partition was passed by this Court on wherein, it was held that the two shops of Khan Market were jointly owned by the then plaintiff and defendants No.1 & 2 having 1/3rd share each. 5. The appeal against the decree passed in Suit No.721/1980 was heard and decided by the Division Bench of this Court on In para-5 of the said judgment, it was held, the two shops cannot be partitioned by metes and bounds, we think it just and proper that Shop No.67-A and 45-B, Khan Market, New Delhi should be sold through public auction. All the parties to these proceedings including their Legal Representatives shall be entitled to bid in the public auction. In the last para of the said judgment, it

3 was held that the three branches i.e. legal heirs of Ram Chander, Moti Ram and legal heirs of Late Shri Lal Chand shall bear the expenses of publication and auction etc. equally. The said appeal was, thus, disposed of on The plaintiff herein filed a review application against the said judgment and decree passed by the Division Bench, being R.P. No.517 of 2010 in FAO(OS) No.8 of 2004, however, the same was dismissed vide order dated Therefore, the plaintiff filed an Special Leave to Appeal in the Supreme Court and the same was dismissed vide order dated In view of the order passed by the Division Bench on , the auction was held. Thereafter, the possession of the two shops was handed over to the auction purchaser and it was so recorded in the order dated passed by the Division Bench in FAO(OS) No.8 of 2004 that all the legal heirs and the owners made the statement before the Court that they were willing to assist the auction purchaser in filing an application before L&DO for the purposes of carrying out mutation in their favour and thereafter, for transfer of the property in favour of the auction purchaser. It was also recorded in the order that one of the LRs of Late Shri Lal Chand, i.e. Sh. Surender Gupta was not present before the Court at the time of passing of the order on It appears from the record that the plaintiff has filed the present suit on which was lying under objection and later on, the suit as well as the interim application were listed before the Court on when it was contended by the plaintiff that the defendants have no right in 1/3rd share of the amount which is lying deposited with the Registrar General of this Court after the said auction. The Court issued the summons in the main suit and notice in the interim application and also passed an ex parte order that the Registrar General would not disburse the 1/3rd share of the auction money in favour of either of the parties to the present suit. 10. In para-6 of the plaint, the plaintiff has admitted that there are six legal heirs of Late Shri Lal Chand, namely, (i) Mrs. Mahadevi Gupta (wife of Lal Chand, the then defendant No.1), (ii) Shri Brij Mohan Gupta, defendant No.2, (iii) Shri Ashok Gupta, defendant No.3, (iv) Shri Anand Prakash Gupta, defendant No.4, (v) Shri Surendra Gupta, plaintiff herein (all sons of

4 Late Shri Lal Chand) and (vi) Mrs. Sushma Goyal (married daughter of Late Shri Lal Chand, defendant No.5). They had already entered into a family settlement through the Relinquishment Deed dated As per the said family settlement, the division/distribution of commercial and residential properties of Late Shri Lal Chand was finally settled among his above said heirs. The plaintiff relied upon few clauses of the said Deed dated , the details of which are mentioned in para-7 of the plaint, the same are reproduced here as under:- (5) All the four sons are occupying individually separate floors, ground floor by Mr. Anand Prakash Gupta, first floor by Ashok Gupta, 2nd floor by Mr. Brij Mohan Gupta and 3rd Floor by Surendra Kumar Gupta. (6) Now a situation has arisen for settlement with regard to ownership and occupancy of the shop situated at 67-B, Khan Market, New Delhi and the residential property situated at 208, Satya Niketan, New Delhi Mr. Anand Prakash Gupta and Mr. Surendra Kumar Gupta do not want to continue the business jointly and in partnership. Therefore, the parties to this Deed have agreed and decided that Sh. Surendra Kumar Gupta shall get the shop to the exclusion of all other legal heirs who are relinquishing the rights/shares forever in the said property and in consideration of the same Sh. Surendra Kumar Gupta shall vacate and surrender the possession of the 3rd floor of property bearing No.208, Satya Niketan, New Delhi and relinquish his share/right whatsoever and forever in the entire said residential property. (7) The eldest son Sh. Brij Mohan Gupta just in order to put an end to the dispute/controversy has agreed to acquire the said 3rd floor of the residential property and distribute its mutually agreed cost/price to all other legal heirs. It has been mutually agreed that major share will go to Mr. Anand Prakash Gupta who is relinquishing his share/right in the business and who was entirely dependent on it. The second major share shall go to Sh. Ashok Gupta who is serving in a private organization in Delhi. The 3rd share as mutually agreed shall go to Smt. Mahadevi Gupta for her upkeep and maintenance. The balance left after distribution shall be retained by Sh. Brij Mohan Gupta. In consideration of all others legal heirs being properly, provided the said S/S Anand Prakash Gupta, Ashok Gupta and Smt. Mahadevi Gupta shall relinquish for ever their rights/shares in the entire 3rd Floor premises bearing No.208, Sarya Niketen, New Delhi in favour of Sh. Brij Mohan Gupta who shall then become the exclusive owner of the entire said 3rd Floor of the said property. (8) After this settlement Sh. Surender Kumar Gupta shall become exclusive owner and in possession of shop bearing No.67-B, Khan Market,

5 New Delhi Sh. Anand Prakash Gupta shall become the exclusive owner of the entire ground floor, Sh. Ashok Gupta of the entire first floor, and Sh. Brij Mohan Gupta shall become the exclusive owner of the entire 2nd floor and 3rd floor of the residential property bearing No.208, Sarya Niketan, New Delhi (9) Sh. Surender Kumar Gupta having become the owner of shop No.67- B, Khan Market, New Delhi will also take along with it all the assets and liabilities of the shop, stocks in trade, credits and all liabilities. All the pending and in fact any matter relating to that shop like, Income Tax, Sales Tax, Municipal Tax, House Tax, Advocate/Accountant work fees insurance of the shop dealing with bank etc. will be sorted by Mr. Surender Kumar Gupta alone. Mr. Radhey Shyam Mittal, 1720, Naiwala Karol Bagh, New Delhi is the Income Tax & Sales Tax advocate since inception of the firm and Sh. Surender Kumar Gupta shall consult him or anybody else with respect to all Tax matters. (10) The shop bearing No.67-B, Khan Market, New Delhi is the subject matter of litigation and a case is pending between legal heirs of Late Lal Chand Gupta on the one hand and S/S Ram Chander and Moti Ram (Uncles) on the other hand. The case is pending in the year 1982 on the request of parties and without prejudice to the decision of the Court. The Advocate is Bawa Shiv Charan Singh R/o 29, Babar Lane, New Delhi Sh. Surendra Kumar Gupta shall now handle the aforesaid pending case through the advocate and whatever be the outcome/decision of the High Court, it shall be binding only on Sh. Surendra Kumar Gupta and shall not in any way effect the rights/shares of the other parties in the residential property as settled by this Deed 11. The contention of the plaintiff in the suit is that the said Relinquishment Deed was acted upon by the legal heirs of Late Shri Lal Chand in the year 1994 itself and the possession of the commercial as well as residential properties before and after the above-mentioned Relinquishment Deed dated is as follows: Sl. No. Property Before After Shop No.67-B, S. Kr. Gupta Khan Market (Plaintiff) 2. Residential Property

6 No.208, Sarya Niketen, New Delhi Ground Floor Anand Gupta Anand Gupta (Def. No.4) (Def. No.4) 1st Floor Ashok Gupta Ashok Gupta (Def. No.3) (Def. No.3) 2nd Floor B.M.Gupta B.M.Gupta (Def. No.2) (Def. No.2) 3rd Floor S. Kr. Gupta B.M.Gupta (Plaintiff) (Def. No.2) The plaintiff submits that each and every term and condition of the above-mentioned Relinquishment Deed has been acted upon by the legal heirs of Late Shri Lal Chand Gupta and respective possessions have been taken by the parties in view thereof. Therefore, the plaintiff is now entitled to the 1/3rd share of the total amount of Late Shri Lal Chand Gupta which comes to Rs.5,67,33,333.33/ Upon service, the defendants filed the written statement as well as the present application under Order VII, Rule 11 CPC for rejection of the plaint. 14. The following are the main contentions of the defendants in the application under Order VII Rule 11 of Code of Civil Procedure, 1908 : (i) The suit filed by the plaintiff regarding the relief of declaration and injunction is barred by limitation. (ii) The suit of the plaintiff is barred by res-judicata under Section 11 CPC read with Explanation IV CPC. 15. I have heard the learned counsels for the parties. It is a matter of fact that the judgment dated was passed by the learned Single Judge wherein a preliminary decree for partition in respect of the suit property, i.e. two shops bearing No.67-B and 45-B, Khan Market, New Delhi was passed declaring the then plaintiff and then defendants No.1 & 2, three brothers i.e. his father and two uncles, Sh. Lal Chand, Sh. Ram Chander and Sh. Moti Ram respectively as the joint owners of the suit property having 1/3rd share each. Mr. Jagjit Singh, Advocate was appointed as Local Commissioner to suggest the ways and means to divide the above said two properties and the

7 business carried out from the shop bearing No.67-B, Khan Market, New Delhi (the real shop No. is 67-B, though it is mentioned at various places as 67-A). All the disputes between the brothers in Suit No.721/1980 and 197A/1979 were disposed of. The said judgment was challenged before the Division Bench and when the appeals were disposed of along with the pending applications, it was clearly mentioned that there was an opposition in the appeals from Surendra Kumar Gupta, the plaintiff herein, who is one of the legal heirs of Late Shri Lal Chand. It was recorded that neither Surendra Kumar Gupta, nor Late Shri Lal Chand has appealed against the judgment of preliminary decree which was passed on It was also recorded that the brothers of Surendra Kumar Gupta as well as his sister concurred in the sale of the property through auction. 16. It is a matter of record that after disposing of the appeal on , the plaintiff herein filed the review petition, i.e. R.P. No.517/2010 in FAO(OS) No.8/2004 which was also dismissed for the following reasons:- The grounds for review are that there has been failure to disclose material facts and that the family settlement had not been brought to the notice of the Court. A perusal of the order sought to be reviewed discloses that the Court was mindful of the interest of the present applicant. There is no error apparent on the face of the order. Review petition stands dismissed. 17. So, it is the admitted position that the decree passed by this Court on was not challenged by the plaintiff, till the time properties had already been auctioned. In a way, the present suit has been filed by the plaintiff after the expiry of more than 8 years and 4 months. The plaintiff is now referring the family settlement/ Relinquishment Deed executed by the other legal heirs of Late Shri Lal Chand in favour of the plaintiff. The factum of family settlement/ Relinquishment Deed has been denied by the defendants. 18. The case of the defendants No. 2 to 5 is that the family settlement has never been acted upon. Counsel appearing on their behalf submits that incase, the plaintiff was aggrieved by the decree already passed on , he should have challenged the decree passed in 2003 by referring the family settlement, by filing of suit within limitation for enforcement of clauses as referred by him now. As the present suit was filed after the expiry of eight years, the same is hopelessly barred by

8 limitation as under Article 58 of the Limitation Act, 1963, the period of limitation is 3 years when the rights are accrued. 19. I concur with the arguments of Mr. Kohli and it appears on the face of it that the suit has been filed after the expiry of 8 years and 4 months from the date of passing of the decree. No doubt, when there are two views about the objection of limitation, then it becomes a mixed question of law and fact, however, on a plain reading of the plaint, if court finds that on the face of it, the same is time barred by limitation, then, the benefit of limitation goes to the party who raised the objection. In the present case, it was clearly recorded in the order passed by the Division Bench that the family settlement was never brought to the notice of the Court when the Court decided the appeals on The Special Leave Petition against the said order was also dismissed by the Supreme Court on The said findings of Division Bench also fortified from the conduct of the plaintiff i.e. on one hand the plaintiff is relying upon an unregistered document of the family settlement which reads the property at Surya Niketan at 3rd Floor goes to his brother and on the other hand, he has made the prayer in the suit that a decree be passed declaring him to be the owner of the 3rd Floor of the property at Surya Niketan, New Delhi, which shows that the alleged family settlement dated , if any, was not to be acted upon, otherwise why the plaintiff would have claimed the declaration to this effect in the present suit. 20. It is the admitted position that the family settlement dated is an unregistered document and was not relied upon by the plaintiff in the earlier pending litigation till the time appeals were decided by the Division Bench. The said document has seen light of the day after the decision on appeal on , review was filed by him. The plaintiff has not filed the original family settlement before the Court alongwith plaint. There is no contention of the plaintiff that prior to execution of the alleged family settlement, there was any oral agreement between the parties regarding partition as alleged by the plaintiff. 21. The similar aspect has been dealt by the Supreme Court in the case of Tek Bahadur Bhujil vs. Debi Singh Bhujil and others, reported in AIR 1966 Supreme Court 292, the relevant para of which reads as under:- 12. Family arrangement as such can be arrived at orally. Its terms may be recorded in writing as a memorandum of what had been agreed upon between the parties. The memorandum need not be prepared for the purpose

9 of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what had been agreed upon so that there be no hazy notions about it in future. It is only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess. The document Exhibit 3 does not appear to be of such a nature. It merely records the statements which the three brothers made, each referring to others as brothers and referring to the properties as joint property. In fact the appellant, in his statement, referred to respondents 1 and 2 as two brother co-partners; and the last paragraph said: "We, the three brothers, having agreed over the above statement and having made our own statements in the presence of the Panch called by us, and signed and kept a copy of each of this document as proof of it." The document would serve the purpose of proof or evidence of what had been decided between the brothers. It was not the basis of their rights in any form over the property which each brother had agreed to enjoy to the exclusion of the others. In substance it records what had already been decided by the parties. We may mention that the appellant and respondent No. 1, even under this arrangement, were to enjoy the property in suit jointly and it is this agreement of theirs at the time which has later given rise to the present litigation between the two. The document, to our mind, is nothing but a memorandum of what had taken place and, therefore, is not a document which would require compulsory registration under Section 17 of the Registration Act. 22. As a matter of fact, in the present case the plaintiff wants to seek a declaration by enforcing the document of alleged family settlement, that too after 17 years which is barred by limitation as the same was within the knowledge of the plaintiff. His rights in relation to this alleged document again accrued when the decree for partition was filed in the year But, the plaintiff maintained his silence for more than eight years. He has only filed the present suit when the auction as per the order of Division Bench took place. Thus, it appears that now the plaintiff lacks of cause of action as the suit becomes barred by limitation. 23. The other aspect of the matter is that the suit is otherwise barred by law, on the principle of res-judicata under Section 11 read with Explanation-IV CPC. The said provisions are reproduced here as under:-

10 Section 11 Res judicata No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation-IV: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. 24. It appears from the pleadings in the suit and the documents filed, as well as from the application filed by the defendants that the decree for partition in respect of the two shops No.67-B & 45-B, Khan Market, New Delhi was passed on and it was held that the said two shops were jointly owned by the three brothers, namely, Shri Lal Chand, Shri Ram Chander and Shri Moti Ram. The plaintiff is one of the legal representatives of Late Shri Lal Chand. The Division Bench after hearing the submissions of the parties has clearly held in para-5 of the judgment that since the two shops could not be partitioned by metes and bounds, therefore, the directions were given that the said shops be sold in public auction. It was also recorded that both the parties to the proceedings including the legal representatives would be entitled to bid in the public auction. Therefore, it is clear that the rights of the suit property have already been determined. The plaintiff was fully aware of the said proceedings and even before the Appellate Court, the plaintiff raised objection. Not only that, the plaintiff herein filed the review petition against the said judgment and decree being RP No.517/2010 which was also dismissed by the Division Bench vide order dated by stating that the factum of family settlement was not brought to the knowledge of the Bench. The said judgment passed by the Division Bench was also challenged by the plaintiff herein. But, the Special Leave Petition was also dismissed by the Supreme Court vide order dated It appears from the above-mentioned factual position that the issues in the matter, which were raised by the parties, have been directly dealt with, and substantially and finally decided by the Court. Explanation IV is directly applicable to the facts of the present case. Therefore, there is force in the submissions of Mr. Kohli, learned counsel appearing on behalf of

11 defendants No.2 to 5. The plaintiff has no cause of action to file the present suit and hence, the plaint is liable to be rejected. 26. Under these circumstances, the present application filed by the defendants is allowed. Accordingly, the plaint of the suit filed by the plaintiff is rejected. The ex-parte injunction order granted on is vacated. All pending applications, if any, also stand disposed of. Sd/- MANMOHAN SINGH, J.

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