Ganga Mahesh Katiyar v. Sudershan Khanna & Ors

V.B.GUPTA, J. `ns"

* HIGH COURT OF DELHI: NEW DELHI CM (M) No. 1107/2010 & CM No.15576/2010 % Judgment reserved on: 17th September, 2010 Judgment delivered on: 27th September, 2010 Sh. Ganga Mahesh Katihar S/o Sh.Dipti Lal R/o B-2/227 Raghubir Nagar (Near Ghorewala Tample) New Delhi-110027 ….Petitioner. Through: Mr.Pramod Ahuja, Advocate. Versus 1. Smt. Sudershan Khanna W/o Sh. S.R. Khanna 9-B, 50 Saket Nagar, Bhopal MP. 2. Shri Ranjit S/o Sh. Jagbhusan B-2/277, Raghubir Nagar, (Near Ghorewala Tample) New Delhi-110027 ….Respondents Through: Nemo HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. Petitioner has filed this petition under Article 227 of the Constitution of India, challenging order dated 29.40.2010 passed by Additional District Judge, Delhi. Vide impugned order, trial court decided preliminary issues no.7 and 8 in favour of respondent no.1 (plaintiff in the trial court) and against petitioner (respondent no.1 in the trial court). 2. Brief facts which emerges from the record are that respondent no.1 claims herself to be the owner of suit property no.B-2/277, Raghubir Nagar, New Delhi, being the only daughter/ legal heir of Late Smt. Shanti Devi, owner of property, who died on 17.01.1981. Petitioner was inducted as tenant by Late Smt.Shanti Devi in the suit property in 1982. Daughter of respondent no.1, Smt.Sweety was married to petitioner on 15.10.1984, after which petitioner stopped paying rent. After the demise of Smt.Sweety on 25.10.1987, Poonam other daughter of respondent no.1, was also got married to the petitioner on 13.12.1987 and remained married to him, till the marriage was dissolved in the year 2006. Smt.Poonam alongwith petitioner, resided in the suit premises till the dissolution of marriage. Respondent no.1 claimed that thereafter, petitioner was allowed to stay in the suit property only till the time arrangement for alternate accommodation was made by him. Thus, petitioner was in permissive occupation of the suit property after the divorce. 3. Apprehending that petitioner may part with the suit property after divorce, respondent no.1 to assert her right, instituted a suit for Permanent and Mandatory injunction against petitioner and others. 4. In the written statement, petitioner for the first time claimed himself to be the owner of suit property by virtue of Will and GPA dated 14.8.1985 allegedly executed in his favour by Late Smt.Shanti Devi, who died on 17.1.1988. It was after his claim of ownership in the previous suit, that respondent no.1 filed the present suit for Possession, Declaration, Mesne Profits/ Damages and Permanent Injunction against petitioner and others. It was in the aforesaid circumstances, that previous suit for Mandatory and Permanent Injunction was withdrawn, admittedly without the leave of the court, after the present suit was instituted. 5. In the written statement filed by petitioner, preliminary objection of suit being barred under Order 2 Rule 2 CPC and limitation was taken. 6. Accordingly, following preliminary issues were framed :- (i) Whether suit of the plaintiff is barred under the principle of Order 2 Rule 2 CPC ? OPD – 1 (ii) Whether suit of the plaintiff is barred by limitation ? OPD -1 7. It is contended by learned counsel that petitioner has been enjoying the property in question for last about 28 years and has got a Will in his favour which was executed by deceased Smt.Shanti Devi. Respondent no.1 never came forward for exercising her right from 1982 till the death of Smt.Shanti Devi. 8. It is also contended that present suit filed before trial court is not maintainable, since it is hit by Order 2 Rule 2 of the Code of Civil Procedure (for short `Code"). On earlier occasion, respondent no.1 had filed a suit against petitioner on almost all and similar relief and on the same cause of action. The earlier