Aditya Prasad Dube & Ors v. Shobha Dube & Anr

RAJIV SAHAI ENDLAW, J.

NOVEMBER 14, 2017 Pk.. (corrected & released on 6th January, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 14th November, 2017. + C.R.P. 54/2015, CM no.6627/2015 (for stay), CM No.28473/2015 (u/O XXXIX R-4 CPC) & CM No.39175/2016 (u/S 151 CPC) ADITYA PRASAD DUBE & ORS ..... Petitioner Through: Mr. K.K. Sharma, Sr. Adv. with Mr. Pragyan Sharma, Mr. Rakesh Kumar, Ms. Gagandeep Chauhan and Mr. Avirar Agniotri, Advs. Versus SHOBHA DUBE & ANR ..... Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Pramod Kumar Dubey, Mr. Shiv Chopra, Ms. Namita Wali, Mr. Mayank Mishra, Advs. for R-1. AND + RFA 97/2016 TARUN DUBE ..... Appellant Through: Mr. K.K. Sharma, Sr. Adv. with Mr. Pragyan Sharma, Mr. Rakesh Kumar, Ms. Gagandeep Chauhan and Mr. Avirar Agniotri, Advs. Versus SOBHA DUBE & ORS. ..... Respondents Through: Mr. Sudhir Nandrajog, Sr. Adv. with Mr. Pramod Kumar Dubey, Mr. Shiv Chopra, Ms. Namita Wali, Mr. Mayank Mishra, Advs. for R-1. Mr. C.M. Goyal, Adv.for R-5/UOI. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Both these proceedings have been listed together and are taken up together for hearing and are being disposed of by this common judgment. 2. C.R.P. 54/2015 under Section 115 of the Code of Civil Procedure, 1908 (CPC for short) impugns the judgment and decree [dated 15th November, 2014 in Civil Suit No.160/2014 of the Court of Additional District Judge-04, Patiala House Courts, New Delhi] for recovery of possession of the portion shown in red colour in the site plan Ex.PW1/1 proved therein, of property No.28, Central Lane, Bengali Market, New Delhi, in the suit under Section 6 of the Specific Relief Act, 1963 filed by Sharad Dube against (i) Aditya Prasad Dube, (ii) Vimmi Dube, (iii) Tarun Dube, (iv) Sonali Dube, and (v) M.C. Gupta. The defendants in the Suit were also restrained by a decree for permanent injunction from locking the common front main gate and common front varandah door of the property and from creating third party rights in the red portion aforesaid. However, since the property then was in possession of a Receiver appointed by the Court vide order dated 2nd March, 2009 in the Suit, the Court Receiver was directed to hand over possession of the said red portion of the property to Sharad Dube. 3. C.R.P. 54/2015 has been preferred by i) Aditya Prasad Dube, ii) Tarun Dube, and iii) Sonali Dube only. Vimmi Dube who was also a defendant in the Suit from which the said C.R.P. arises, has since died and M.C. Gupta who was also a defendant in the Suit from which the C.R.P. arises, has chosen not to challenge the decree. 4. C.R.P. 54/2015 came up before this Court first on 13th April, 2015, when, while issuing notice thereof, Shobha Dube, wife of Sharad Dube who had since died, was restrained from creating any third party interest in the aforesaid red portion of the property. The said interim order has continued till now. 5. RFA 97/2016 impugns the order [dated 28th August, 2015 in CS No.112/2015 of the Court of Additional District Judge-06 (Central), Tis Hazari Courts, Delhi] of rejection of the plaint in the Suit filed by (i) Tarun Dube, (ii) Archana Beniwal, (iii) Arun Dube, (iv) Anil Prasad Dube, (v) Siddhartha Dube, (vi) Abhimanyu Dube, (vii) Rajeev Prasad Dube, (viii) Bharat Dube; and (ix) Ronnie Dube, against Sharad Dube, Aditya Prasad Dube, Kapil Dube and Government of India, for (i) declaration that the plaintiffs therein are co-owners of the aforesaid property; (ii) permanent injunction restraining the defendants in the Suit from illegally depriving the plaintiffs from their share in the said property, from creating any third party interest therein and from raising any construction on the property; (iii) for declaration that the Relinquishment Deeds, both dated 26th March, 2002, executed by Aditya Prasad Dube and Kapil Dube of their share in the aforesaid property in favour of Sharad Dube were got executed fraudulently and without any legal necessity and cancellation of the said Relinquishment Deeds; (iv) for recovery of possession of red p