JUDGMENT
S.K. Mahajan, J.
(1) This order will dispose of both the interlocutory applications. The first application has been filed by the plaintiff for an injunction for restraining the defendants from interfering in the enjoyment of the plaintiffs of the property owned by him and from raising any obstruction in the construction of partition wall in accordance with the partition deed dated 30th May, 1972 and from opening a separate entrance gate at point “XY” as shown in the plan annexed alongwith the plaint. Further injunction has been prayed for restraining the defendants from damaging or dismantling the construction which has already been raised by the plaintiff and to remove this from the portion shown red in the plan annexed with the plaint. The second application has been filed by the defendants for vacating ad interim ex-parte injunction.
(2) In short, the facts of the case are that father of the plaintiff and defendant No.1. who was the original owner of the property, had during his lifetime gifted the property bearing No.ll, Prithvi Raj Road, New Delhi in equal shares to the plaintiff and defendant No.l by a registered deed of gift dated 19th June, 1957. It is the case of the plaintiff that he and defendant No.l had partitioned the said property vide partition deed dated 30th May, 1972 duly registered with the Sub- Registrar. A plan was annexed alongwith the said partition deed in which the portions falling to the share of each of the said two parties were demarcated. It was agreed that the parties shall-own their respective portions absolutely and will not interfere m the portions of each other and that the.partition deed provided for construction of partition wall dividing the portions given to each of the said parties.
(3) The portion shown in red colour in the plan is stated to be in use of defendant No.l and his family members including defendant No.2 and his children and the portion shown in green colour in the said plan is stated to be in possession and use of the plaintiff. The plaintiff is a bachelor. It is alleged that though the partition deed was entered into between parties on 30th May, 1972, but no partition wall was constructed in accordance therewith. However, of late, as per allegations made by the plaintiff, the determinants wanted to usurp the portion of the properly which belonged to the plaintiff and as a result thereto, he decided to construct a partition wall in accordance with the deed of partition. Since there would have been no entrance to the portion under possession and use of the plaintiff, in case, the partition wall had been constructed, the plaintiff simultaneously with the construction of the partition wall intended to construct a separate entrance gate in his portion. He, vide letter dated 14th December, 1993, informed defendant No.l of his said intention of constructing the wall and entrance gate. On 15th December, 1993 the plaintiff commenced construction and constructed a separate entrance gate in his portion. He is also stated .to have constructed a three feet high wall upto almost the middle of the plot between point “X1- X2” and “X2- X3” as shown in the plan. The plaintiff is also stated to have constructed a wall between point “X4-X5”. As the wall was being constructed, defendant No.l is stated to have come to the plot on 16th December, 1993 alongwith large number of persons and interfered with the construction being carried on by the plaintiff. The said defendant is also alleged to have threatened the plaintiff that he would shoot him with his revolver. He is also alleged to have threatened the labourers engaged by the plaintiff. Complaint against the alleged threat is stated to have been made with the Assistant Commissioner of Police. The defendants are stated to have locked the new entrance gate constructed by the plaintiff and alleged to have taken away the keys with them. The defendants are stated to be threatening the plaintiff with dire consequences, complaint of which was also stated to have been lodged with the police. The water connection as well as telephone connections were also alleged to have been disconnected by the defendants and the visitors to the portion of the plaintiff were not allowed to enter by the security guards of the defendants. The defendants and the security guards were stated to be interfering with the construction raised by the plaintiff and they have also posted their guards in the varandah and lawns falling to the portion of the plaintiff. It is stated that as the construction of the wall was in accordance with deed of partition dated 30th May, 1972, the plaintiffs were within their rights to construct the same and the defendants did not have any reason to obstruct the construction of the wall or to demolish the wall which has already been constructed. It is also stated that possession of a portion of the premises which is with the defendants and is in that area which has been allotted to the plaintiffs, is liable to be given back to the plaintiffs and a mandatory injunction has been sought for their removal from the said portion. It is in these circumstances, the present suit has been filed for an injunction.
(4) An ex-parte order of injunction was passed on 20th January, 1994 whereby the defendants were restrained from interfering in the peaceful possession of the plaintiff over the property marked in green colour in the plan annexed with the plaint and they were also restrained from damaging ‘or demolishing the construction raised by the plaintiff in the said property. Before filing the written statement, defendant Nos.l and 2 filed IA.2094/94 under Order 39 Rule 4 for vacation of the ex-parte injunction granted against them. Written statement was subsequently filed by them to which replication has also been filed. Plaintiff has also filed reply to the aforesaid IA.2094/94 filed by the defendants.
(5) Case of defendant Nos.l and 2 is that they being co-owners of the property were entitled to enjoy each and every portion of the same and the plaintiff cannot have any exclusive right to use any portion of the property and consequently he did not have a right to construct any wall so as to exclude the defendants from the user of the portion which is alleged to have fallen to the share of the plaintiff on the partition having been effected in 1972. It is stated that no physical partition of the property can take place as the same is not enforceable in law being contrary to the terms of lease. The act of the plaintiff in putting up a wall and sub-divide the plot would, according to the defendants, deprive them of the user of the property which they were enjoying and it may also result in forfeiture of the lease by the Land and Development Office. It may also result in penal action against the defendants under the Ndmc Act, as the construction is stated to be totally illegal, unauthorised and without any sanction of law. So it is stated that the suit was barred by Order 7 Rule Ii Cpg allegedly not disclosing any cause of action and also being barred by law. On merits of the case it has been stated in the written statement that the partition deed of 30th May, 1972 was entered into between the parties only with a view to circumvent the provisions of the Wealth Tax Act, under a legal advice. Defendant No. I had further partitioned his share with his wife and son on 12th July, 1992 and the plaintiff donated a piece of land measuring 6796.50 sq.ft. on 28th July, 1972 to Shri Vishnu Name Bhargu Satsang Trust, Uttar Kashi. The property was consequently mutated in the name of the plaintiff, defendant Nos. 1 and 2 and Vishnu Name Bhargu Satsang Trust, Uttar Kashi subject to the condition that the property will neither be sub-divided nor sold without prior permission of the lessor in future. It is alleged that though the partition deeds were executed between the parties, however the same were never intended to be acted upon and there was no intention at any time on the part of the parties to partition the properties. No physical partition had taken place nor it could have taken place as there was a legal bar imposed by the Land and Development Office. Reference has been made to certain letters written by the plaintiff to the Land and Development Office wherein it had been stated that no physical partition or sub-division of the property have taken place. It is stated that the right of the plaintiff to construct a wall so as to divide the plot was illegal and the defendants had a right to stop construction of the said wall. It is also stated that parties had all along been using every portion of the property till the plaintiffs started construction of the partition wall. The wall, if constructed, is stated to be unauthorised which could result in penal action against the parties.
(6) The short question in this case is, as to whether by virtue of the partition deed dated 30th May, 1972 the property was actually partitioned by metes and bounds and whether the plaintiff has a right to construct a boundary wall so as to use his share of the property exclusively without interference from any person including the defendants. To appreciate the arguments advanced by the parties, it will be useful to read the terms of the partition deed which had been entered into between the parties on 30th May, 1972:-
“1.That in pursuance of the said decision to partition the said Bungalow it is hereby agreed that All That partition shown in red of Bungalow No.11, Prithvi Raj Road, New Delhi, with buildings, out-houses, garages, servants quarters, boundary walls fittings and fixtures and lease-hold rights in the land shown in red in the plan attached herewith is allotted to the First Party To Hold the same henceforth for himself, his wife and children.
2.That in further pursuance of the said decision it is agreed that All That portion shown in greed of Bungalow No.ll, Prithvi Raj Road, New Delhi, with buildings, boundary walls, fittings and fixtures and lease hold rights in the land shown in greed in the plan attached herewith is allotted to the Second party to hold the same for himself and as and when he marries, for himself, his wife and children.
3.That henceforth the First Party as Karta of his H.U.F. will be the exclusive owner of the portion shown in red of Bungalow No.ll, Prithvi Raj Road, New Delhi, with buildings, out-houses, garages, servants quarters, boundary walls, fittings and fixtures and will be the exclusive lessee of the land shown in red in . the Plan attached herewith.
In the same manner the Second party will henceforth be the exclusive lessee of the land shown in red in the plan attached herewith.
In the same manner the Second party will henceforth be the exclusive owner of the portion shown in green of Bungalow No.ll, Prithvi Raj Road, New Delhi, with buildings, boundary walls, fittings and fixtures and will be the exclusive lessee of the land shown in greed in the plan attached herewith.
4.It is hereby further agreed between the parties as follows:
I)That there is no encumbrance or charge on the property hereby partitioned and that if any encumbrance or charge is found to attach to any part of the said property then both the parties shall be liable for the same in equal shares.
II)That the property hereby allotted to each party shall be entered upon and henceforth held in severally from each other by such party without any interruption or disturbance by the other party or any one claiming through under or in trust for it.
III)That each party will be entitled to get his property mutated in leis name and they will help each other to get their shares mutated separately.
IV)That each party will be entitled to get the lease-hold rights in the land transferred in their respective names separately and will help the other in getting the same done and in assuring its peaceful possession and use.
V)That the parties will bear in equal shares and cost of constructing the partition wall marked A, B, C, D, E, F, R in the plan annexed herewith which when constructed will be commonly owned by the parties.
VI)That henceforth each party will be separately liable for payment of property taxes, etc. and the lease money for their respective shares.
VII)That each party will have his separate sewage line and will not be entitled to carry the same through the property allotted to the other party.
VIII)That the original Deed of Partition alongwith the map will remain with the First party. He will at the request of the second party produce the same wherever required for inspection or in evidence.”
(7) The contention of Mr.Sharma, appearing for the plaintiff, is that by virtue of the partition deed and specifically in view of clause 4 (V), the parties had a right to construct the partition wall at point A, B, C, D, E and F as shown in the plan which has been annexed alongwith the partition deed. Though this right had been given by virtue of this partition deed dated 30th May, 1972, however, as the parties were having cordial relations none of the parties felt the necessity of constructing the wall. The argument is that by not constructing the wall for a long period, from 1972 to 1993, will not deprive the plaintiff to construct a wall even after a lapse of 20 years, in case, it was necessary for preventing other persons from using the whole or any portion of the property which had fallen to his share by virtue of the said deed. There are three rooms, a small pooja room, study and dressing room, toilets on the ground floor besides a store room and a passage on the terrace which are admittedly being exclusively used by the defendants in the portion which had fallen to the share of the plaintiff by virtue of aforesaid deed of partition. Plaintiffs apprehension is that the defendants were trying to usurp that part of the property which had fallen to the share of the plaintiff. The plaintiff, therefore, decided to construct a wall so as to partition the property and according to him he had a right to construct such wall, the right having been given by the partition deed. The plaintiff, therefore, gave a notice on 14th December, 1993 to defendant No.l informing him that he had decided to put up a partition wall in accordance with the partition deed and also construct a separate entrance gate for entering his portion of the property. Defendant No.l was also requested to immediately vacate the rooms in that portion of the property which had fallen to the share of the plaintiff. The plaintiff thereafter started construction of the wall and on the interference of the defendants and threats given by them, the plaintiff approached this Court for an injunction. It is the case of the plaintiff that the property having once been divided, each co-owner is entitled to the exclusive use of his share of the property without any interference and the defendants cannot give any threat to stop construction nor they have any right to use any portion of the property which had fallen to the share of the plaintiff by virtue of the said partition deed.
(8) The argument of the defendants is two fold : (1) that the deed dated 30th May, 1972 does not partition the property and in any case it was never intended to be acted upon and, therefore, the plaintiff would not get any right under the said letters; and (2) till such time actual partition takes place each co-owner is entitled to enjoy the whole or any part of the property and they cannot be deprived of the user of any portion, which they were using earlier, by any act of the other co-owner. Reliance has been placed upon the letter dated 30th September, 1974 written by the plaintiff to the Land and Development Office in reply to the show-cause notice dated 24th August, a 1974. On 24th August, 1974 the Land and Development Office had given a show- cause notice to the plaintiff and defendant No.l informing them that the parties had sub- divided the plot by executing deed of partition on 30th May, 1972 and 12th July, 1972 and the settlement deed executed on 28th July, 1972. This was stated to be in violation of the master plan and the zonal plan and also attracted clause 12 of the lease deed. The said parties were, therefore, called upon to show cause why action be not taken to re-enter the premises in terms of clause 13 of the lease deed. In reply to show-cause notice, the plaintiff had given the reply dated 30th September, 1984 wherein it has been stated that there was no physical partition or sub-division in the property and, therefore, there was no violation of the master plan and the zonal plan. It has, therefore, been contended by the defendants that it was the case of the plaintiff himself in 1974, much after the execution of the partition deed, that there was no physical partition or sub-division in the property. Reliance has also been placed upon a letter dated 16th September, 1979 written by the plaintiff to the Land and Development Office wherein the plaintiff had sought clarification on certain points raised in the said letter for taxation purposes. This letter had been written in view of the restriction imposed by an earlier letter dated 5th November, 1977 received from Land and Development Office by the parties. In the said letter, the Land and Development Office while mutating the property in the name of the plaintiff and defendants as well as Mrs.Kamal Khosia and Shri Vishnu Name Bhargu Satsang Trust, Uttar Kashi had also informed them that the property now standing in the books of Land and Development Office in the name of the said persons jointly and severally will be subject to the condition that it will neither be sub-divided nor sold without prior permission of the Lessor in future. The argument, therefore, is that this condition having been imposed by the Land and Development Office at the time of mutating the property in the name of the persons who had applied for the same, the property cannot be sub-divided, without the prior permission of Land and Development Office and any action taken by the plaintiff to divide the property may result in forfeiture of lease and penal action against the lessee.
(9) It is admitted case of the parties that the property was mutated in the names of the parties by letter dated 5th November, 1977 and in the said letter there was a condition that the property will not be sub-divided without the prior permission of the Land and Development Office. Though partition deed was executed on 30th May, 1972 till December, 1993, when the plaintiff started construction of the partition wall, there was no interference in the user of the lawns of the property by any party. Three rooms in the portion which had fallen to the share of the plaintiff in terms of the partition deed dated 30th May, 1972, were also admittedly in possession of the defendants. The short question, therefore, is whether at this stage, the plaintiff can have a right to construct a partition wall so as to deprive the defendants from using a portion of the lawn which though, had fallen to the share of the plaintiff was being used continuously without any interference by the defendants right upto December, 1993 inspite of the partition deed having been executed in 1972. Further question is whether the plaintiff has a right to construct a separate gate for entry to his portion of the property.
(10) Prima facie, I am unable to agree to the contentions of learned counsel for the defendants that partition deed was not intended to be acted upon. After the partition deed was executed on 30th May, 1972, the parties in fact had acted upon the same. In case, parties had no intention to act upon this deed, defendant No.l would not have partitioned his share of the property with his wife and the son and the plaintiff would also not have donated a part of property, which had fallen to his share, to Shri Vishnu .Name Bhargu Satsang Trust, Uttar Kashi. At no point of time, any party had objected that as this partition deed dated 30th May, 1972 was not intended to be acted upon, the parties did not have any right to give their share of the property to other person, On the other hand, they jointly applied for mutation to the Land and Development Office. I am, therefore, prima fade) of the opinion that partition deed was intended to be acted upon by the parties.
(11) The question, however, still remains, whether the plaintiff can physically subdivide the property by raising the partition wall and constructing a separate gate. Even after the execution of the partition deed, the defendants were allowed to continue to use the property continuously without any interference upto December, 1993. Defendants are in fact still in possession of certain rooms in that part of the property, which in the partition deed has been allotted to the plaintiff. Though a prayer has been made that defendants should be directed to remove themselves from the said portion, however, I am afraid that such a relief may not be available to the plaintiff at this stage and the defendants, therefore, will be entitled to continue to use at least the constructed portion which has been shown red in the plan annexed with the plaint in the portion which had fallen to the share of the plaintiff. The parties have filed complaints against each other and the Sub- Divisional Magistrate is also seized of the matter under Section 145 of the Criminal Procedure Code . Complaint has also been made that the defendants are not permitting entry of not only of the plaintiff but also of his guests and visitors from the only gate which was existing in the property and the guards have been deployed by the defendants to stop all such persons from entering the property resulting in humiliation not only to the guests but also to the plaintiff. As the parties are at logger head and are threatening each’ other, I think, it would not be proper at this stage to allow the defendants to interfere with the construction of the gate for entrance of the plaintiff to his portion of the property. I am of the opinion that in case an injunction is not granted restraining the defendants from interfering with the construction of the gate, it may lead to more litigation and more complaints with the police. In case, plaintiff has an entrance exclusive to himself and his guests,some of the tension between the parties can be removed. Balance of convenience also demands that parties should have separate entry gates from the main road to their respective portions. In my opinion, gate opened by the plaintiff is indispensable for him to use his portion of the property.
(12) Plaintiff has already constructed wall from the front portion of the property to the building thereby dividing the front lawn. In case, a wall is constructed even at places which have been shown yellow in the plan so as to divide the building itself, I feel that the defendants would be deprived of the user of the portion shown red in the said plan. As I have already held above that, prima facie, the defendants have a right to continue to use the said portion and the plaintiff may not be entitled to get an order of removal of the defendants from the said portion at this stage, it will virtually amount to decreeing the suit of the plaintiff, in case, he is allowed to construct a wall from point “X.3” to the end of the building. The plaintiff therefore, in my opinion, prima facie, cannot construct any wall in the portion between “X.6 to X.7” so as to deprive the defendants from using the portion shown in red in the plan. By constructing a wall from point X.I-X.3 though the defendants have been deprived of the user of a portion of the lawn which was being used by them, I feel that in the larger interest of the partics, it will not be proper at this stage to direct the plaintiff to demolish the said portion of the wall nor the defendants can be permitted to demolish the said wall. It will be fair and reasonable, in my opinion, to let the wall remain in its present position as it was existing on the date of filing of the suit. In case, the defendants ultimately succeed in proving that the plaintiff did not have any right to construct this wall from point X.1-X.3, the same can be demolished by an order of the Court. In theory each co-owner is interested in every portion of the joint property and each has a right to be in possession of every part thereto, however, in practical it may not be possible to allow each co-owner to enjoy the whole of the property to the exclusion of the others and in case parties are not in a position to use the property jointly, it will be proper that they occupy different portions so as to avoid any disputes among thmselves. Presently, I am not going into the question as to what is the effect of the letter dated 5th November, 1977 written by the Land and Development Office whereby the parties have been asked not to sub-divide the property and as to whether construction of a wall from X.I-X.3 will amount, in fact, to actual subdivision of the property nor I am considering the question as to whether the said letter of 5th November, 1977 will become a part of the lease so as to make it statutory lease under the Government’s Grants Act as, prima fade, I am of the opinion that construction of the wall from X.I-X.3 will not amount to sub-division of the property. However, in case, the said wall is constructed to the end of the property it may amount to partitioning and subdivision of the property which may come within the mischief of the restrictions imposed by the Land and Development Office in their letter dated 5th November, 1977. To maintain the property in the position as it existed on the date of filing of the suit, I think, it will be necessary to direct the parties to maintain status quo as it existed on the date of filing of the suit. For almost more than 20 year since after the parties had signed the partition deed, no steps had been taken for actually dividing the property and at this stage, I feel that in the interest of justice and in the interest of the rights of the parties, they should not disturb the status quo as it is presently existing.
(13) In view of the discussions above, I pass an order of injunction restraining the defendants from either interfering with the gate opened by the plaintiff in his portion of the property at point ‘X-Y’ or interfering with the ingress and egress of the plaintiff and his guests and relatives from this gate to and from the property. I also restrain the defendants from demolishing the wall constructed from X.I to X.2 and X2 to X.3 shown in the plan annexed with the plaint. I, however, direct the parties to maintain status quo in respect of remaining part of the property.
(14) With these observations, the applications are disposed of with no order as to costs.