Kamal Sharma v. Praveen Kumar Sharma & Ors

GAURANG KANTH, J. NOVEMBER 18, 2022

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 18.11.2022 + KAMAL SHARMA ….APPELLANT Through: Mr. M.L. Sharma, Advocate versus PRAVEEN KUMAR SHARMA & ORS ...RESPONDENTS Through: CORAM: HON'BLE MR. JUSTICE GAURANG KANTH GAURANG KANTH J. (ORAL) C.M. No. 49527/2022 (Exemption) 1. Exemption allowed, subject to all just exceptions. 2. The application stands disposed of. RFA 581/2022 and C.M. No. 49526/2022 (Stay) 3. The Appellant in the present Appeal is assailing the Judgment & Decree dated 18.08.2022 passed by the ADJ-02, South East, Saket District Courts, New Delhi in CS DJ No. 7922/2016 titled as Praveen Kumar Sharma Vs Kamal Sharma & Ors ("Impugned judgement"). FACTS RELEVANT FOR THE CONSIDERATION OF THE PRESENT APPEAL ARE AS FOLLOWS: 4. The parties in the present Appeal are siblings, children of Late Sh. B.K Sharma. Respondent No.1 (Original Plaintiff) and Appellant (Original Defendant No.1) are real brothers. Respondent Nos.2 & 3 (Original Defendant Nos.2&3) are real sisters of Respondent No.1 and the Appellant. 5. Late Shri B.K Sharma was the owner of the property bearing House No.964, Arjun Nagar, Kotla Mubarakpur, New Delhi ("Suit property"), built up property on an area of 56 sqr. yards comprising of ground, first and second floors. Late B.K Sharma during his lifetime sold the ground floor of the said property. Hence at the time of his death, he was the owner of first and second floor of the suit property. Late B.K Sharma died intestate on 25.10.1995 leaving behind the Appellant and Respondents as his legal heirs. His wife predeceased him. 6. Late Shri B.K. Sharma was a lawyer by profession, and he was the licensee of Chamber No.142, Patiala House Court, New Delhi allotted by New Delhi Bar Association. Respondent No.1 is also a lawyer by profession and hence after the death of his father, Respondent No.1 became the licensee of the said chamber, i.e, Chamber No. 142, Patiala House Court, New Delhi. 7. After the death of Late Shri B.K Sharma, the Appellant and Respondent No.1 entered into a Family Settlement Deed dated 28.07.1996 (Exhibit PW1/3). As per the said Settlement Deed, the suit property was divided into two shares i.e. Respondent No.1 was allotted the second floor along with terrace and Appellant was allotted the first floor and one room over the terrace of the second floor. 8. Respondent No.1"s wife was allotted Government accommodation in the year 1998 and hence Respondent No.1 shifted to the Government accommodation. However he retained the possession of his part of the suit property. 9. Later Appellant and Respondent No.1 mutually agreed to inter change their respective shares/ parts in the suit property. Hence the Appellant came into possession of the second floor along with terrace and Respondent No.1 came into possession of the first floor and one room over the terrace of the second floor. 10. Respondent No.1 rented out his portion of the suit property to a tenant whereas the Appellant and his family were occupying their portion of the suit property, i.e, second floor along with terrace. 11. It is the case of Respondent No.1 that he visited the suit property on 09.07.2012 and found that the locks of his premises were changed by the Appellant. Matter was reported to the police. Later both the parties arrived at a compromise. The possession of Respondent No.1 was restored back qua his share of the suit property, i.e, the first floor and one room over the terrace of the second floor. 12. Again on 22.07.2012, Respondent No.1 went to the suit premises for renovation of his first floor. However, the Appellant and his family objected to the same. This led to a fight between both the siblings and hence, FIR No.159/2012 was registered against the Appellant and his family members with Police Station Kotla Mubarakpur on 22.07.2012 under Sections 323/341/448/34 IPC (Exhibit PW1/5). 13. It is the case of Respondent No.1 that the Appellant took forcible possession of Respondent No.1"s share of the suit pr