Chander Kant Beri & Anr v. Ravi Kant Beri & Anr

RAJIV SAHAI ENDLAW, J. MAY 13, 2019 'bs'..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 13th May, 2019. + CS(OS) 455/2018 & IA No.12498/2018 (u/O XXXIX R-1&2 CPC) CHANDER KANT BERI & ANR .... Plaintiffs Through: Mr. Shiv Prakash Pandey and Mr. Rabhav Pandey, Advs. Versus RAVI KANT BERI & ANR. …...Defendants Through: Mr. R.K. Sahni, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The two plaintiffs, Chander Kant Beri and his wife Kumkum Beri have instituted this suit, for (i) declaration that the plaintiffs are the owners in possession of the first floor of property No.71, Hargobind Enclave, Delhi with proportionate right of ownership of the land underneath; (ii) partition of the said property; and, (iii) permanent injunction restraining the two defendants i.e. Ravi Kant Beri and his wife Sangeeta Beri from alienating, selling or creating third party interest in the said property. 2. It is the case of the plaintiffs in the plaint, (i) that the defendant No.1 Ravi Kant Beri is the younger brother of the plaintiff No.1 Chander Kant Beri; (ii) that the father of the plaintiff No.1 and the defendant No.1 was employed with India Meteorological Department and the family was residing in the government accommodation; (iii) that on retirement of the father of the plaintiff No.1 and the defendant No.1 in the year 1984, the plaintiffs started residing in their own house at 79 H, Sheikh Sarai, New Delhi owned by plaintiff No.2 and the defendants along with their parents started residing in the house owned by defendant No.1 at 79G, Sheikh Sarai, New Delhi; (iv) that the father, as a member of the I.M.D. Cooperative Group Housing Society, was allotted House No.23, Ritu Apartments in Block A-4, HIG, Second Floor, Paschim Vihar, Delhi; (v) that the father was however keen to purchase a plot of land for building a house in which both of his sons i.e. the plaintiff No.1 and the defendant No.1 along with their families and the parents could reside together; (vi) that the father, impressed with the business acumen of the defendant No.1, in the year 1986, financed purchase by the defendant No.1 of a plot of land admeasuring 200 sq. yds. bearing No.71, Hargobind Enclave, Delhi in the name of the defendant No.2; (vii) that the defendant No.2 is a homemaker, without any income except for being shown as a director / shareholder in some shell companies floated by the defendant No.1 for the purpose of his business; (viii) that the father financed the purchase by defendant No.1 in the name of defendant No.2 of the plot aforesaid on the clear understanding that the house to be built thereon will be jointly owned and enjoyed by both brothers and their wives in equal share; (ix) that to implement this intent, the father authorised the defendant No.1 to sell Flat No.23, Ritu Apartments and invested the consideration amount received with respect thereto also towards the price of land already purchased at House No.71, Hargobind Enclave in the name of the defendant No.2 and for raising construction thereon; (x) that defendant No.1 sold both his house at No.79G, Sheikh Sarai, New Delhi and the house of the plaintiff No.2 at No.79H, Sheikh Sarai, New Delhi and the consideration so received was used by defendant No.1 towards adjustment of the price of land already purchased at House No.71 Hargobind Enclave and toward costs of construction thereon; (xi) that the defendants along with their children have been residing on the ground floor of House No.71, Hargobind Enclave and the plaintiffs along with their children have been residing on the first floor of the said house, from March, 1987 onwards; (xii) that on 1st March, 1987, oral family settlement and declaration was arrived at between the plaintiffs, defendants and their parents, that House No.71, Hargobind Enclave will be owned and enjoyed by the plaintiffs on the one hand and the defendants on the other hand, jointly and equally, with both having 50% share and right to occupy the same; (xiii) that the father, on 23rd February, 1989