JUDGMENT
V.S. Aggarwal, J.
1. Plaintiff Sri Ram Malik is the son of Chander Bhan Malik. Chander Bhan Malik is the common ancestral and died in 31st August, 1989. He left behind his widow, defendant, No. 1 Smt. Sumitra Devi, three other sons Narinder Kumar Malik, defendant No. 2, Rajinder Kumar Malik, defendant No. 3 and Raj Kumar Malik, defendant No. 4 besides two daughters Santosh Katyal and Saroj Madan, arrayed as defendants 5 and 6.
2. The plaintiff has filled the present suit for partition, declaration, rendition of accounts, mesne profits and other reliefs, pleading, inter alia, that his father Chander Bhan Malik during his life time acquired and owned extensive properties both immovable and movable. It included the following properties:
“(i) Shop No. A-1041, New Subzi Mandi Azadpur, Delhi.
(ii) House No. 253, Sarai Pipal Thala, Khasra No. 738/215, bearing Khewat Khara No. 14/29, Area measuring 182 sq. yards, situated in the revenue estate of Pipal Thala, Delhi;
(iii) Residential Plot No. 2451, (measuring 160 sq. yards) situated at Hudson Lines, Kingsway Camp, Delhi-110019;
(iv) Shop No. A-290, situated at Azadpur, New Subzi Mandi, Delhi.”
3. The said properties were self-acquired properties of t he deceased. The deceased is alleged to have died intestate and plaintiff claims that he has 1/7th share in the properties. After the death of the father of the plaintiff property bearing No. A-1041 New Subzi Mandi, Azadpur is stated to be in possession of defendants 3 and 4. Property bearing No. 290 Azadpur, Subzi Mandi, Delhi is in possession of defendant No. 4 Property bearing No. 253 Sarai Pipal Thala, Delhi is in possession of defendants 1, 3 and 4 while property No. 2451, Hudson Lines, Kingsway Camp, Delhi till recently was a vacant plot. It was held by defendants as con sharers. Plaintiff was in constructive possession of these properties. It is asserted that on 23rd July, 2000 plaintiff found that there was some construction activity on the plot at Hudson Lines, Kingsway Camp. For the first time a will purported to have been executed by the father of the plaintiff was shown which as per the plaintiff is a forged document. When he visited the plot at Hudson Lines, Kingsway Camp, he met defendant No. 7 (Jeet Singh). Plaintiff apprehended that defendants, 1 2 and 6 have entered into some collaboration with defendant No. 7 for raising construction because defendant No. 7 is in the said business. Plaintiff ion these facts asserting that he has 1/7th share in the property and that defendants are setting up a will seeks partition of the property besides rendition of accounts and mesne profits.
4. Defendant No. 2 support the claim of the plaintiff.
5. Defendants, 1, 3, 4, 5, and 6 have field a joint written statement. They asserted that suit has not been properly valued for purposes of the court fee and jurisdiction. It was the claim laid that plaintiff is not possession of nay portion of property and therefore he is liable to pay the court fees ad valorem as per his share claimed and pleaded. It is admitted that father of the plaintiff was the owner of the property for 11 years. It is claimed that plaintiff never lay any claim for partition of the properties. The father of the plaintiff died leaving behind a will. On basis of the said will the property at Hudson Lines, Kingsway Camp fell to the share of the mother of the plaintiff. An agreement of sale was executed pertaining to the said property with defendant No. 7 and was witnessed by Rajinder Kumar Malik and Raj Kumar Malik, defendants. It is further asserted that defendants should not be restrained from setting up the construction.
6. Defendant No. 7 filled a separate written statement. It was pleaded that plaintiff has not come to the court with clean hands. Defendant No. 7 purchased property No. 2451 Hudson Lines, Kingsway Camp from defendant No. 1 by virtue of the agreement of sale of 19th May, 2000. The father of the plaintiff had executed a will and the property referred to above was bequeathed to the mother of the plaintiff. i.e. defendant No. 1. Otherwise also it is claimed that plaintiff has come to the court only when three stories have been set up and the 4th storey is in progress. It is denied that plaintiff is entitled to any ad interim injunction.
7. During the pendency of the suit the plaintiff prayed for restraining defendants, their agents from alienating transferring or creating any third party interest or making any construction or additions and alteration in the above said property vide IA 8450/2000. Defendant 7 had filed an application under Order 39 Rule 4 seeking vacation of the ex parte injunction order vide IA 9063/2000. Vide this common order both the above said petitions are liable to be disposed.
8. Learned counsel for the plaintiff urged that merely setting up of will does not tantamount to proving of the same. It has yet to be seen if it is a genuine document or forged will. He further contended that the will is not a genuine document. Plaintiff has 1/7th share of the property and therefore to protect the property ad interim injunction as such should be issued. In this regard he highlighted the fat that will of the father of the plaintiff was only got registered after seven years of his death and further that though the properties alleged to have sold by defendant No. 1 for Rs. 5 lakhs still now it is claimed that court fee should be paid following the whole of the property at Rs. one crore and fifty lakh to the extent of the share of the plaintiff. He highlighted the fact that property as such has not been sold. In the alternative he stated that plaintiff is ready to give a bank guarantee of Rs. 10 lakhs and subject to that ad interim injunction could well be granted. Neither of the contentions found favor with the learned counsel for the defendants. According to him, the civil suit was highly belated. Mutation has already been effected in favor of defendant No. 1 and plaintiff has been in our of possession all these years. It was further pointed that construction has gone a long way and therefore ad interim injunction should not be granted.
10. During the pendency of the suit this Court had appointed a local commissioner. He had visited the site and made a report. It was reported that brick work shown in the layout plan was virtually complete vis-a-vis ground floor, first floor and second floor. In the third floor only a roof had been set up with the part roof construction the linter work between ground floor and first floor and first floor and second floor is complete. Shuttering is in place providing support to the linter work.
11. In this regard before the plaintiff can held to be having a prima facie case certain salient facts cannot be ignored. The father of the plaintiff died in the year 1989. The plaintiff for 11 years did not file a suit for partition. It is one thing to say that the suit is within time but another thing to say whether there is undue delay in filing of the same for purpose of an interim injunction. In the present case it is obvious that suit is highly belated. The father of the plaintiff had died intestate and plaintiff, as is apparent from the nature of the pleadings, particularly in paragraph 7 of the plaint, is not in actual physical possession of any portion of the property. In other words, he allowed the time to lapse. In that view of the matter patently that suit must be taken to be highly belated for purpose of the present order.
12. This fact gets support form further facts on the record that mutation of the property even was effected in favor of defendant No. 1 in the records of municipality. Once the plaintiff was not in possession and other were in possession to the exclusion of the plaintiff prima facie at this stage it cannot be termed that the will so set up can be described to be forged. One would hasten to add that this is not an expression of opinion of the genuineness of the will. But for purposes of the present order the above fact clearly indicate that the plaintiff allowed the time to lapse and did not take any action in this regard particularly when he was even no in actual physical possession of any portion. In that view of the matter delay on the part of the plaintiff would defeat, for purpose of the present order, his right to seek the ad interim injunction.
13. It is correct that defendant No. 7 has not become the owner of the property but in his favor a general power of attorney and an agreement of sale is stated to have been executed. In pursuance of the same as referred to above and is a parent from the report of the local commissioner he had set up structure and construction is in progress. Relying upon the decision of this court in the case of Kuldip Singh Puri v. Surinder Singh Kalra and Anr. one can conveniently state that defendant No. 7 will have some interest in the property as an agent to set up the construction. In this regard, therefore the court has no hesitation in concluding that prima facie the plaintiff cannot be termed to be having a prima facie case.
14. Even the balance of convenience cannot be termed to be in favor of the plaintiff. This is for the reason that the plaintiff delayed the filing of the suit and as referred to above already a structure of three stories building has already come up. Brick work by an large has completed. This is also apparent from the photographs that have been placed on the record. At this stage stopping further construction would only put defendant No. 7 to a loss because it is he who has made substantial investment in the construction.
15. In this connection reference can well be made to the decision of Division Bench in the case of Satyawati Chaudhry v. O.P. Nangia and Ors. . In the cited case the defendant therein had made substantial investment and it was held that if stay is granted injury would be caused to the defendant. Construction was allowed to be done on an undertaking that it shall be demolished in case the suit is decreed against the defendants. Almost on similar facts in the case of Anwar Elahi v. Vinod Misra and Anr. the ad interim injunction was refused by passing certain directions which necessarily can be well repeated for the facts of the present case. Taking stock of these facts application for ad interim injunction filed by the plaintiff is dismissed and stay order so granted is vacated. But this is subject to the following conditions:
i) Defendant No. 7 would complete the construction only in accordance with the sanctioned plan of the local authorities;
ii) defendants shall not transfer, alienate or create a third party interest in the property;
iii) defendant No. 7 will give an under taking within two weeks of this order that he will set up the building subject to the condition that in case the suit is decreed he would remove the construction/superstructure.
16. With these directions both IAs are disposed of.
17. List for framing of issues on 22nd March, 2002.