IN THE HIGH COURT OF DELHI: NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

Judgment pronounced on: 07.03.2012

I.A. No.13124/2011 in CS (OS) No.1674/2011

SURENDRA KUMAR GUPTA ..... Plaintiff

Through Mr. J.S. Mann, Adv.

Versus

BRIJ MOHAN GUPTA & ORS. ..... Defendants

Through Mr. R.L. Kohli, Adv. for Defendants

No.2 to 5

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

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-110021 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 25.12.2006. 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 13.02.2003

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 3.12.2010. 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

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

03.12.2010.

6. 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

15.12.2010.

7. Therefore, the plaintiff filed an Special Leave to Appeal in the Supreme

Court and the same was dismissed vide order dated 22.12.2010.

8. In view of the order passed by the Division Bench on 03.12.2010, 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

11.07.2011 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 11.07.2011.

9. It appears from the record that the plaintiff has filed the present suit on

27.06.2011 which was lying under objection and later on, the suit as well as

the interim application were listed before the Court on 14.07.2011 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

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 09.01.1994. 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 09.01.1994, 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-

110003 and the residential property situated at 208, Satya Niketan, New

Delhi-110021. 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-110021 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-110021 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,

New Delhi-110003. 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-110021.

(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-110005 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-110001.

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

09.01.1994 is as follows:-

-------------------------------------------------------------------------------------------

Sl. No. Property Before After

09.01.1994 09.01.1994

-------------------------------------------------------------------------------------------

1. Shop No.67-B, S. Kr. Gupta

Khan Market (Plaintiff)

2. Residential Property

No.208, Sarya Niketen,

New Delhi-110021

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)

-------------------------------------------------------------------------------------------

12. 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/-.

13. 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 13.02.2003 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

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 13.02.2003. 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 03.12.2010,

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

13.02.2003 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

13.02.2003, 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

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 03.12.2010. The Special Leave Petition against the

said order was also dismissed by the Supreme Court on 22.12.2010. 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 09.01.1994, 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 09.01.1994 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 3.12.2010, 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

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 2003. 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:-

“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 13.02.2003 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 15.12.2010 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 22.12.2010.

25. 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

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 14.07.2011 is

vacated. All pending applications, if any, also stand disposed of.

Sd/-

MANMOHAN SINGH, J.