V.K. Shali, J.@mdashThis order shall dispose of three applications being I.A. No. 7059/2010 filed by the plaintiff under Order VI Rule 17 CPC; I.A. No. 9724/2009 filed by defendant No. 2 under Order 39 Rule 1 & 10 CPC; and I.A. No. 7858/2009 filed by the plaintiff under Order 39 Rule 1 & 2 CPC.
2. Briefly stated the facts of the case are that property No. D-46, Hauz Khas, New Delhi, was the property of Smt. Harbans Kaur, which is measuring 217.78 square yards comprising of ground floor, first floor and the second floor. The second floor is partly constructed. Smt. Harbans Kaur died on 2.5.1994 leaving behind two sons, namely, Dr. Tej Inder Singh Saluja, the plaintiff herein and Dr. Tej Mohan Singh Saluja, (defendant No. 1). It has been stated in the plaint that both the plaintiff and defendant No. 1 being the real brothers have half undivided share in the suit property which has not been partitioned by them till date. It has been stated that the ground floor and some portion of the first floor as well as the entire second floor of the suit property is in possession of the plaintiff while as the defendant No. 1 is residing at 14/2, first floor, East Patel Nagar, New Delhi and some of his goods and the goods of his father are lying in a part of the first floor of the suit property. It has been stated that the plaintiff had a genuine apprehension that defendant No. 1 might sell his undivided unspecified share in the suit property without getting it partitioned and consequently, he had given public notices in ''Rashtriya Sahara'' & ''The Hindu'' on 7.9.2008 and on 8.9.2008 respectively warning the public at large that the property is undivided and nobody should deal with the same.
3. So far as defendant No. 2 is concerned, it has been alleged that he has allegedly purchased 50 per cent, that is, half of the undivided share in the suit property from defendant No. 1 vide sale deed dated 21.5.2009 for a sum of Rs. 43 lacs. Since the original documents of the suit property are with defendants and both the defendants, were threatening to dispossess the plaintiff from the suit property, therefore, the plaintiff was constrained to file the suit for permanent injunction.
4. The suit had come up for hearing on 10.6.2009 and the parties were directed to maintain status quo with regard to the title and the possession of the suit property as an interim measure. The aforesaid interim order is continuing although an application under Order 39 Rule 1 & 10 CPC is still pending adjudication.
5. The defendant Nos. 1 and 2 have filed their written statement. The defendant No. 1 has raised an issue of maintainability of the suit on the ground that ad valorem court fees has not been paid and material facts have been suppressed. It has been admitted by defendant No. 1 that he has sold his share in the suit property for a sum of Rs. 43 lacs to defendant No. 2 and executed a registered sale deed on 23.5.2009. It has also been stated that the plaintiff is running his dental clinic on the ground floor and residing on the first floor with his family. The suit property was stated to have been partitioned by the father of the parties during his lifetime by virtue of which the defendant No. 1 was given the first floor and 50% of the second floor while as the plaintiff was given the ground floor and 50 per cent portion of the second floor. It has also been stated by him that the present suit has been actuated by the plaintiff only with a desire to grab the entire property and since defendant No. 1 has sold the property, therefore, the suit itself is bad on account of misjoinder of parties.
6. So far as defendant No. 2 is concerned, it is stated that he is the purchaser of 50 per cent of the share in the suit property from defendant No. 1. The defendant No. 1 in his legal notice dated 20.5.2004 has specifically taken a plea that the suit property was partitioned after the death of their mother Smt. Harbans Kaur and the entire property was apportioned as under:
ground floor by the plaintiff, first floor by defendant No. 1 and second floor jointly by the plaintiff and defendant No. 1.
7. It has been stated that the plaintiff in his reply dated 29.5.2004 sent to defendant No. 1 has admitted as under:-
a) The property stands partitioned as per the Will of the father and as per mutual understanding
b) As per mutual understanding, the property was partitioned giving the plaintiff the ground floor plus 50 per cent of the second floor and defendant No. 1 getting the first floor and 50 per cent of the second floor.
8. It has been stated that as the property was partitioned, therefore, defendant No. 1 was well within his rights to have sold first floor and 50 per cent of the second floor to defendant No. 2, who has put his lock on the portion which is under his occupation. It has been alleged that on 30.5.2009, the plaintiff broke open the locks of defendant No. 2 and entered unauthorizedly on the first floor and 50 per cent of the second floor belonging to him and thereafter, he has chosen to file the present suit.
9. The defendant No. 2 has also setup a counter-claim for claim of damages from the plaintiff with effect from 30.5.2009 at the rate of 1,25,000/- per month (although the present rate is stated to be Rs. 2 lacs) when he forcibly occupied the portion falling to the share of defendant No. 1 which was purchased by him.
10. On these pleadings of the parties, the issues are yet to be framed and an effort was made to arrive at a settlement between the parties so that the dispute between them is brought to a rest; however, the meeting which had taken place, did not bring about any fruitful result.
11. By virtue of the present order, three applications are being decided. The first application is I.A. No. 7059/2010 filed by the plaintiff under Order VI Rule 17 read with Section 151 CPC seeking amendment of the plaint. The plaintiff, after having chosen to file the suit for permanent injunction, has chosen to file this application seeking permission to amend the plaint so as to challenge the sale deed dated 21.5.2009 purported to have been executed by defendant No. 1 in favour of defendant No. 2. This plea is sought to be incorporated in the plaint by the plaintiff on the ground that Section 22 of the Hindu Succession Act, 1956 confers a right of pre-emption in favour of a co-owner and it has been stated that as the plaintiff is the co-owner of the suit property to the extent of 50 per cent while as the other 50 per cent is owned by his brother, therefore, he has a preferential right to purchase the share belonging to his brother. It has been stated that the wife of defendant No. 1 has already expired and he did not have any issue from the marriage and, therefore, the plaintiff was entitled to purchase the share of defendant No. 1 and wants to incorporate a plea in this regard in the plaint. The plaintiff has also taken the plea that by virtue of Section 44 of the Transfer of Property Act, 1882, the defendant No. 2 could at best claim partition of the suit property and since the case of the plaintiff is that the suit property has not been partitioned, therefore, he could not be made as a party in the present suit. On the basis of the aforesaid averments, the plaintiff is seeking the cancellation of sale deed dated 21.5.2009 purported to have been executed by defendant No. 1 in favour of defendant No. 2.
12. The law regarding amendment of the pleadings is very liberal and the court may, during the pendency of any proceeding unless and until the trial has started, permit a party to amend the plaint or the written statement, as the case may be, provided the incorporation of the plea or the facts which are sought to be brought on record are necessary for the complete adjudication of the real dispute between the parties. Conversely, this is also true that under the garb of this plea by the amendment of the plaint, a party cannot be permitted to change the very basic nature of the suit in case, the original suit does not contain any pleading in this regard. Reliance in this regard is placed on
13. In the instant case, the plaintiff had originally filed a suit for permanent injunction wherein the factum of defendant No. 1 having sold the property to the defendant No. 2 is admitted by him. Therefore, this was a fact which was within his knowledge right from the beginning. It could not be said that this fact was detected by him later in point of time, the plaintiff has consciously chosen only to file and claim the relief of permanent injunction against defendant Nos. 1 and 2 on the ground that he is apprehending that he will be forcibly dispossessed.
14. The amendment which is sought to be incorporated by the plaintiff is changing the very basic nature of the suit when there are no pleadings or foundation with regard to the case sought to be built by them with regard to the purchase of the share of defendant No. 1. Therefore, such an amendment need not be allowed, as any amount of cost would compensate the defendant. Therefore, in my considered opinion, in case the plaintiff is permitted to incorporate the plea of Section 22 of the Hindu Succession Act, 1956, giving him the alleged right of pre-emption qua the half share of his brother and thereby assail the sale deed purported to have been executed by him in favour of defendant No. 2, this will not only change the basic nature of the suit from permanent injunction to cancellation of a sale deed but it would also delay the trial further. Therefore, I feel that the amendment application of the plaintiff being I.A. No. 7059/2010 deserves to be disallowed.
15. The second question is with regard to the grant of mesne profits/damages on account of user of the premises by the plaintiff to defendant No. 2. The plaintiff''s case is that he is in lawful possession of the suit property as he is the co-owner and there are judgments given by various courts where it has been observed that unless and until it is shown that the party is in unlawful possession of the suit property, a direction for payment of damages/mesne profits by such a person does not arise. It is accordingly contended that as the plaintiff is not in unlawful possession, he cannot be directed to pay any amount.
16. I do not agree with this contention of the plaintiff that he does not deserve to be put to terms for being in possession of the entire suit property. He has in fact usurped 50 per cent of the property belonging to defendant No. 1 which has been admittedly sold by him to defendant No. 2 after breaking open the locks of defendant No. 2 as alleged by him. One he who claims an equitable relief, must also do the equity. In the instant case, the plaintiff has come to the court claiming equitable relief of permanent injunction against defendants yet the record shows that the plaintiff himself is acting in a unfair manner. This is on account of the fact that his claim in the plaint is for partition by metes and bounds, as it is alleged that it has not taken place though in the reply to the notice of defendant No. 1 the plaintiff has admitted that an oral settlement had taken place during the lifetime of their father by virtue of which, the plaintiff was to get full ground floor and 50 per cent of the second floor while as defendant No. 1 was to get full first floor and 50 per cent of the second floor. After having admitted this fact in his reply dated 29.5.2004, it is not open to the plaintiff to aver in the plaint that there has been no partition by metes and bounds. As a matter of fact, this clearly shows that the plaintiff is taking contradictory stand. It has been brought to the notice of the court that so far as the ground floor of the suit property is concerned, the same is being utilized by the children of the plaintiff, both of them are dentists and are using the ground floor for their professional purposes while as the first floor is being used by them for residential purposes. The defendant No. 2 has stated, after receiving the possession of the first floor that at the time of purchase he had put his lock on the door but the same was broken by the plaintiff and the possession was taken. The first floor of the suit property is admitted to be partly in occupation of the plaintiff while as in the other half, it has been stated that only furniture and articles belonging to their parents are lying which is not a prima facie correct stand taken by the plaintiff.
17. The defendant No. 2 has clearly shown that the sale transaction was entered into by defendant No. 1 in favour of defendant No. 2 on 21.5.2009 and he was handed over the possession of the suit property and it is only when defendant No. 2 had put his lock and keys on the suit property that the locks were broken and the possession was taken over by the plaintiff. It is, therefore, prima facie clear that the plaintiff is in occupation of the entire first floor illegally. It is only a ruse by the learned counsel for the plaintiff to rake up an issue regarding his liability to pay the rent on the ground that he is not in unlawful possession. I feel the plaintiff cannot be permitted to use 50 per cent share of defendant No. 1 which has been sold to the defendant No. 2 and at the same time contend that as he is not in part and lawful possession of the suit property, therefore, no interim order under Order 39 Rule 10 CPC deserves to be passed.
18. The defendant No. 2 along with his counter-claim has also filed an application claiming mesne profits/damages at the rate of Rs. 1,25,000/- from the plaintiff because he is using the premises which lawfully belongs to defendant No. 2. I prima facie feel that as the plaintiff is using the entire suit property which admittedly includes 50 per cent of the property belonging to defendant No. 2, therefore, he must be put to terms lest later on it becomes difficult to retrieve the mesne profits/damages from defendant No. 1 once the suit is decided on merits. The defendant No. 2 in his application under Order 39 Rule 10 CPC has stated that the market rate of somewhat similar property would fetch a rent of Rs. 1,50,000/- per month and, therefore, the plaintiff be directed to deposit the mesne profits at the rate of Rs. 75,000/- per month in the court in order to balance the equities.
19. The learned counsel for the plaintiff has relied upon the judgments passed in Sonjoy Chatterjee vs. Solil Chatterjee; R.F.A. No. 217/2013;
20. In Ranbir Singh''s case (supra), the co-sharer was already in possession of the property exclusively while as in the instant case the plaintiff had admitted in the reply to the notice given by the defendant No. 1 that the partition had already taken place and the defendant No. 1 has got the first floor and 50% share in the second floor of the suit property which was transferred by him to the defendant No. 2. The defendant No. 2 had put his lock on the second floor of the suit property which was broken and the possession was taken to the detriment of the defendants and thus the facts are different on the basis of the same. Similarly, the judgments in R.F.A. No. 217/2013, Harish Ramchandani''s case (supra) and Udekar''s case (supra) are also distinguishable from the facts of the present case essentially on the question of partition having already taken place and the plaintiff having usurped the possession illegally.
21. Therefore, prima facie I feel that the application filed by defendant No. 2 under Order 39 Rule 10 CPC deserves to be allowed as he is being kept away from user of the property by the plaintiff on frivolous pleas with a view to grab the entire property. Therefore, the plaintiff is directed to deposit a sum of Rs. 75,000/- on each and every month with the Registrar General of this court on or before 7th of each English calendar month from the month of May, 2014 and shall continue to do so for every English calendar month. The amount on deposit shall be kept in a fixed deposit and it shall be subject to the final outcome of this suit. Ordered accordingly.
22. So far as the third application being I.A. No. 7858/2009 under Order 39 Rule 1 & 2 CPC which has been filed by the plaintiff is concerned, it has been prayed that the defendants be restrained from creating any third party interest in respect of the suit property. This court has already passed an order on 10.6.2009 that the parties shall maintain status quo with regard to the possession and title of the suit property. This order can continue except that the order of status quo of possession is blanket while as the plaintiff can be dispossessed in respect of the first floor which has fallen to the share of defendant No. 2 in respect of which he can seek appropriate remedy to retrieve possession in accordance with law. With this modification in the order dated 10.6.2009, the application stands allowed.
C.S. (OS) No. 1126/2009
List for further proceedings on 14th August, 2014.
