Mr Sanjeev Gupta & Ors v. Mr Manoj Loharia

RAJIV SAHAI ENDLAW, J. MAY 15, 2018 "pp/gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 15th May, 2018. + SANJEEV GUPTA & ORS. ..... Plaintiffs Through: Mr. Lalit Gupta, Mr. Siddharth and Mr. Akshit. Katyaal, Advs. Versus MANOJ LOHARIA ..... Defendant Through: Mr. Nazim U. Ahmed, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The four plaintiffs namely (i) Sanjeev Gupta; (ii) Rajiv Gupta; (iii) Gaurav Gupta; and, (iv) Kamini Gupta have instituted this suit for, (a) declaration that they are the exclusive owners of plot of land ad measuring 150 sq. yds. out of Plot No.22, Block No.X situated in the layout plan of Naraina Warehousing Scheme, Loha Mandi, Naraina, New Delhi – 110 028 including leasehold rights in the said land and the construction thereon; (b) declaration that there exists a valid and legally binding oral Family Settlement between Hari Prakash Gupta, being the father of the plaintiffs no.1 to 3 and the husband of the plaintiff no.4 and the defendant and under the said Family Settlement, the defendant Manoj Loharia has been left with no right in the aforesaid property and that the said Family Settlement is binding on the defendant and his legal heirs; (c) for permanent injunction restraining the defendant from alienating, encumbering or parting with possession of the property; and, (d) for permanent injunction restraining the defendants from forcefully dispossessing the plaintiffs from the property aforesaid. 2. The suit was entertained and summons thereof ordered to be issued. The plaintiffs, though filed an application for interim relief along with the plaint, did not press the same perhaps to prevent scrutiny of the plaint at that stage and prevent immediate rejection/dismissal thereof. 3. The defendant has filed a written statement along with an application for condonation of delay in filing thereof and an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC). 4. Having gone through the plaint and being prima facie of the opinion that the suit, on the averments in the plaint, is not maintainable, I have enquired from the counsel for the plaintiffs and heard the counsel for the plaintiffs. 5. It is the case of the plaintiffs in the plaint, that (i) Plot No.22, Block No.X, Naraina Warehousing Scheme, Loha Mandi, Naraina, New Delhi ad measuring 300 sq. yds. was allotted by the Delhi Development Authority (DDA) to Ram Avtar Gupta father of the defendant and one Chander Sagar Gupta, as partners of M/s. Indian Iron Traders Corporation; (ii) Ram Avtar Gupta occupied the Western half of the aforesaid plot ad measuring 150 sq. yds. and Chander Sagar Gupta occupied the Eastern half of the aforesaid plot adjoining Plot No.X-21 ad measuring 150 sq. yds.; (iii) Ram Avtar Gupta had no funds even to raise any construction on his half portion towards the Western side and entered into an arrangement with his co- brother Hari Prakash Gupta whereunder actual physical possession of the said Western half portion of the property aforesaid was handed over by Ram Avtar Gupta to Hari Prakash Gupta and Hari Prakash Gupta raised construction thereon with his own funds; money was also paid by Hari Prakash Gupta to Ram Avtar Gupta; (iv) since the land was leasehold, Ram Avtar Gupta executed documents like General Power of Attorney (GPA) / Contract of Construction etc. all dated 25th October, 1976 in favour of Hari Prakash Gupta in respect of the Western half of the property; (v) Hari Prakash Gupta continued to use, enjoy and possess the aforesaid property in his own independent rights; (vi) after initial allotment, a Perpetual Lease Deed dated 5th February, 1981 was executed by DDA in favour of Ram Avtar Gupta and Chander Sagar Gupta and the said Perpetual Lease Deed was registered; (vii) subsequently, Ram Avtar Gupta and Chander Sagar Gupta got permission from DDA to transfer their respective rights in the property in favour of their respective sons and both executed Conveyance Deed dated 2nd April, 1982 in favour of their respectiv