Shri Satender Kumar Jain v. Smt. Nirmal Jain & Ors

RAJIV SAHAI ENDLAW, J.

April 09, 2019 "gsr".. (Corrected and released on 4th May, 2019).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th April, 2019 + CS(OS) 133/2018 & IAs No.4394/2018 (u/O XXXIX R-1&2 CPC), 4395/2018 (u/O XXVI R-9 CPC) & 10918/2018 (u/O VIII R-10 CPC) SATENDER KUMAR JAIN ..... Plaintiff Through: Mr. A.K. Singla, Sr. Adv. with Mr. N.K. Kantawala & Mr. Satyender Chauhan, Advs. Versus NIRMAL JAIN & ORS ..... Defendants Through: Mr. Ankit Jain, Mr. Sarvesh Rai and Mr. Siddhant Nath, Advs. for D-1. Mr. Paritosh, Adv. for D-2 with D-2 in person. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff has instituted this suit against (i) Nirmal Jain, (ii) Nikhil Jain, (iii) Seema Jain, and, (iv) Suhani Jain, for (a) recovery of possession of portion of immovable property No.A-24-A, Kailash Colony, New Delhi on the basis of title, (b) recovery of mesne profits in the sum of Rs.5 lacs for the period with effect from 22nd January, 2018 till the date of institution of the suit, and, (c) recovery of mesne profits, pendente lite and future. 2. The suit came up before this Court first on 5th April, 2018 when, while issuing summons / notice thereof, vide ex parte ad-interim order the defendants directed to maintain status quo with respect to possession and title of the property aforesaid and a commission issued to visit the portion of the property in possession of the defendants and to submit a status report along with photographs. The commission has been executed and report dated 23rd May, 2018 has been filed. 3. Separate written statements have been filed by the defendant no.1 on the one hand and by defendants no.2 to 4 on the other hand. 4. The counsel for the plaintiff, on 20th September, 2018 stated that "without admitting the allegations of defendants as made in their written statement, plaintiff does not wish to file replication to the written statement of defendants". 5. The suit is ripe for framing of issues. The senior counsel for the plaintiff however states that no issue arises for adjudication from the written statements of the defendants and the plaintiff is entitled to a decree forthwith at least qua the relief of possession, under Order XII Rule 6 and under Order XV Rule 1 of the CPC. The senior counsel for the plaintiff, the counsel for the defendant no.1 and the counsel for the defendants no.2 to 4 have been heard on the said aspect. 6. The plaintiff has instituted this suit pleading, that: (i) the plaintiff Satender Kumar Jain along with his brothers Devender Kumar Jain and Rakesh Kumar Jain purchased property No.A-24-A, Kailash Colony, New Delhi from one Smt. Baldevi Bhagat vide registered Sale Deed dated 30th December, 1975; (ii) the plaintiff and his two brothers aforesaid, after the death of their father Sunder Lal Jain continued to carry on several businesses acquired by succession and / or established by them by their own efforts, in various forms, jointly and / or individually; (iii) Smt. Phoolwati Jain, mother of the plaintiff and his two brothers aforesaid, died intestate on 16th April, 2004; (iv) in the year 2009, the plaintiff and his two brothers aforesaid, mutually entered into / reached an oral Family Settlement dividing / partitioning their shares in respect of movable and immovable properties including various companies and partnership firms; the said oral Family Settlement was acted upon and recorded vide registered Memorandum of Family Settlement dated 31st March, 2009; (v) in furtherance of the Family Settlement aforesaid, the entire property No.A-24-A, Kailash Colony, New Delhi fell to the exclusive share and ownership of plaintiff; (vi) the two brothers aforesaid of the plaintiff viz. Devender Kumar Jain and Rakesh Kumar Jain, acting in consonance with the Family Settlement, relinquished their share in the property aforesaid in favour of the plaintiff through registered Relinquishment Deed dated 31st March, 2009 and the property mutated in the exclusive name of the plaintiff in the records of Municipal Corporation of Delhi (MCD) on 10th June, 201