Harswaroop Sharma v. Gian Prakash Sharma and Ors

RAJIV SAHAI ENDLAW, J.

AUGUST 3, 2017 'pp'.. (Corrected and released on 23rd September, 2017).

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd August, 2017 + C.R.P. No.69/2017 & CM No.11147/2017 (for stay). HARSWAROOP SHARMA ..... Petitioner Through: Mr. Manish Kohli, Mr. Pranav Joshi, and Mr. Kush Bhardwaj, Advs. along with petitioner in person. versus GIAN PRAKASH SHARMA AND ORS ..... Respondents Through: Mr. R.K. Bhardwaj respondent no.2 in person. Mr. Lakshay Bhardwaj and Mr. Manish Gandhi, Advs. for R-3&4. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Revision Petition under Section 115 of the Code of Civil Procedure, 1908 (CPC) impugns the order (dated 2nd January, 2017 in Suit No.96542/16 (Old Suit No.48/16) of the Court of Civil Judge-08 (Central), Tis Hazari Court, Delhi) of dismissal of the application of the petitioner / defendant no.1 under Order VII Rule 11 of the CPC for rejection of the plaint. 2. The petition was entertained and notice thereof issued. 3. The counsels for all the respondents appear. 4. The counsels have been heard. 5. The suit from which this petition arises was filed by the respondents no.1 to 4 / plaintiffs who are the heirs of one Jai Lal against the petitioner / defendant no.1 and the predecessor of the respondents no.5&6 herein for the reliefs of (i) declaration that the respondents no.1 to 4 / plaintiffs are entitled to half share of one Ram Swaroop in mandir Shri Kalkaji for performance of puja sewa and realisation of tehbazari and other profits attached to the temple; and, (ii) permanent injunction restraining the petitioner / defendant no.1 and predecessor of respondents no.5&6 / defendant no.2 from interfering in the respondents no.1 to 4 / plaintiffs getting the said share. 6. The counsel for the petitioner / defendant no.1 has argued (i) that one Ram Swaroop whose heirs the parties are, had a share in the tehbazari and puja sewa and profits accruing therefrom in temple Shri Kalkaji; (ii) that the said Ram Swaroop died leaving three sons namely Tula Ram, Gauri Shankar and Jai Lal; (iii) that the respondents no.1 to 4 / plaintiffs are the heirs of Jai Lal and the petitioner / defendant no.1 is the son of Tula Ram and the respondents no.5&6 / defendant no.2 are the heirs of another son of Tula Ram; (iv) that after the demise of Ram Swaroop, each of his three sons had 1/3rd share in the share aforesaid of Ram Swaroop; (v) Gauri Shankar, one of the sons of Ram Swaroop died in the year 1981 leaving his wife as his only heir as he was issueless; (vi) that the wife of Gauri Shankar also died issueless in the year 2000; (vii) that the aforesaid 1/3rd share inherited by Gauri Shankar from his father Ram Swaroop was bequeathed by Gauri Shankar equally in favour of the petitioner / defendant no.1 and the predecessor of respondents no.5&6 / defendant no.2 vide a registered Will dated 28th September, 1979; (viii) that the petitioner / defendant no.1 and the predecessor of the respondents no.5&6 / defendant no.2 since the demise of Gauri Shankar, under the said Will, have been receiving the share of Gauri Shankar in mandir Shri Kalkaji; (ix) that the respondents no.1 to 4 / plaintiffs, in or about the year 2005 i.e. 24 years after the demise of Gauri Shankar, have filed the suit, from which this petition arises, claiming half share out of the share of Ram Swaroop on the premise that Gauri Shankar died issueless and thus Tula Ram and Jai Lal became entitled to the share of Gauri Shankar on his demise (however on enquiry it is told that Tula Ram was not alive on the date of death of Gauri Shankar and only Jai Lal was alive; in this light of the matter, in the event of Gauri Shankar dying intestate, it is only Jai Lal who would inherit his share and not the petitioner / defendant no.1 and the predecessor of respondents no.5&6 / defendant no.2); (x) that though the respondents no.1 to 4 / plaintiffs were fully aware of the Will of Gauri Shankar but have in the plaint not sought the relief of declaration of the said Will or cancellation of the Will; and, (xi) the suit fi