You can pray for cancellation of the said instrument in your partition suit it will be taken care of.
Specific relief act sec. 31 to be added in partition suit for cancellation of instrument (sale deed)
I have filed partition suit against my brother and one builder, who purchased entire property from my brother and started apartment construction on said property. So also he collected some advance from prospective buyers to sell flats, he is constructing. I had applied for Stay but somehow it was rejected by TC but upheld by Appellate Court but again HC set aside the same. Now I wish to amend the orginal suit for below reasons. 1. While drafting the suit of partition it was mentioned that the suit is for Partition and interim reliefs. 3. Amendment - I wish to add that " the suit is for partition and interim reliefs "READ WITH Specific Performance Act section 31. According to above , can I add as above and if so, whether the suit will be maintainable or not ? for two reasons : 1) In partion suit " spectific relief Act has no roll 2) In specific relief Act has no roll in partition suit. Both are contidictory hence suit will not maintainable OR there will be no problem even the word is added as such "READ with specific Relief Act section 31 This will help me to pray for cancellation of instrument (sale deed) and will also help me to avoid further new suit under this act. please suggest correct amendment or highlight on new suit.
Asked 6 years ago in Civil Law
8 Answers
I think this all happening due to incompetency of your advocate. Neither plaint drafted carefully nor relief prayed.
This is for certain, to get injunction agasint builder, cancellation of sale must have prayed.
Specific performance suit with Partition, possession maintainable.
plaintiff in a suit of specific performance may ask for further reliefs mentioned in clauses (a) and (b) thereof. Clause (a) contains reliefs of possession and partition and separate possession of the property, in addition to specific performance. The mandate of sub-section (2) of Section 22 is that no relief under clauses (a) and (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed.
2) you can amend the plaint . No need to file separate suit
main relief sought is of partition
incidental and as an adjunct to the main relief, you can pray for other reliefs
setting aside the sale deed between your brother and builder by which even your share [of which you are claiming partition and separate possession] was sold off by your brother to builder
so the above is an ancillary relief to relief of partition
therefore you only need to make the necessary averments regarding cancellation of the sale deed in the plaint and then include a prayer in that behalf in your prayer clause
no need to write the words as stated in your question
the cancellation of sale deed will be in furtherance of your right to claim partition and separate possession, therefore that can be asked in the same partition suit itself, and a separate suit will not be required
the prayer to be included can read as below:
As an adjunct and incidental to the above prayer clause seeking partition and separate possession, this Hon'ble Court be pleased to declare the sale deed dated ______ executed between the defendants by which the Plaintiff's share was also sold without her consent, as null and void and thus direct the registration authority to cancel registration thereof and remove the same from registration records
There is no need to add this section.
Rather add ' for declaration;' in the heading and in the prayer seek for declaration that the dale deed is null and void and seek recovery of possession .
It will be better to fresh case under the S R Act because provisions of SR Act can't over ride the provisions of CPC but it is vice versa so for cancellation of sale deed file a fresh case and try to obtain stay in that very particular case because your case is very strong because unless and until the property has not been divided or partitioned how it can be sold out with out the consent of the coparceners.
In partition suit you are seeking partition and separate possession of your legitimate share in the property.
Since the builder is continuing to construct the proeprty and selling the flats, how many times you will make an amendment, will you be able to file an amendment petition each and every time he sells a flat seeking cancellation of the registered sale deed?
Moreover the construction or sale of flats is not binding on you hence in my opinion you may not have to seek the cancellation of the sale deed because it is a subsequent development which occurred after instituting the suit.
Dear
You should file for an application for amendment of plaint.
Because new suit for same subject matter will not be maintenable because same is not claimed by you in rejected plaint.
