Delhi District Court
Kuldeep Singh vs Sohan Singh on 31 August, 2023
IN THE COURT OF SH. KISHOR KUMAR, ADJ-04
(NORTH), ROHINI COURTS, DELHI
Suit No. 833/2016 (Old no. 358/2015)
Sh. Kuldeep Singh
S/o Late Sh. Harwant Singh
r/o D-66, Third Floor, Amar Colony,
Lajpat Nagar-IV, New Delhi-110024
...........Plaintiff
Versus
1. Sh. Sohan Singh
S/o Late Sh. Harwant Singh
R/o 9/7055, Ashok Gali, Gandhi Nagar
Delhi-110031
2. Sh. Wazir Singh (Since deceased)
Through his legal heirs
(a) Smt. Satvinder Kaur
W/o Late Sh. Wazir Singh
(b) Sh. Harpreet Singh
S/o Late Sh. Wazir Singh
(c) Sh. Ravinder Singh
S/o Late Sh. Wazir Singh
All R/o 110, Top Floor, Ram Nagar Ext.
New Delhi-51
3. Smt. Harbansh Kaur
W/o Sh. Parminder Singh
D/o Late Sh. Harwant Singh
Delhi-32
4. Smt. Surjeet Kaur
D/o Late Sh. Harwant Singh
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 1 of 25
R/o B-14/3, Krishna Nagar
Delhi-51
5. Smt. Jeet Kaur
W/o Sh. Joginder Singh
D/o Late Sh. Harwant Singh
R/o 991, Diyal Nagar,
Guhmar Mandi, Civil Line,
Ludhiana, Punjab
...........Defendants
Date of Institution : 07.12.2015
Date of final arguments : 09.08.2023
Date of decision : 31.08.2023
Final decision : 01.09.2023
JUDGMENT
1. This suit has been filed by the plaintiff against the defendants for partition of the properties bearing no. 9/7055, Ashok Gali, Gandhi Nagar, Delhi-31, measuring 100 sq yds. and built up property no. 299, Azad Market, Delhi measuring 9.4 sq yds. (hereinafter referred to as the suit property) Plaintiff is claiming his 1/6th share in the suit property as well as 1/6th share from the rent of Rs. 1,80,000/- per month with decree of permanent injunction to restrain the defendants from parting with the possession or creating any third party interest with respect to 1/6th portion of the suit properties.
2. In narrow compass, the facts are that Sh. Harwant Singh father of plaintiff and defendant no.1 to 5 was the owner of the suit properties. Sh. Harwant Singh got married to Ms. Sant Kaur and CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 2 of 25 out of the said wedlock seven children were born, out of which six remained alive. The management and affairs of the suit property Ashok Gali, Gandhi Nagar is being conducted by defendant no.1 who is receiving rent from the tenants and is also taking mesne profits and using the same for his own purpose. Similarly the management and affairs of the suit property situated at Azad Market is being conducted by defendant no.2 and he is taking benefits from the said property.
3. It is further alleged by the plaintiff that one of their sister Late Smt. Gurcharan Kaur also got married and was having children but since 2000 her whereabouts and whereabouts of her children, are not known. Sh. Harwant Singh died on 03.01.1995. Smt. Sant Kaur also died on 21.05.1998. One married daughter Smt. Gurcharan Kaur also died on 20.03.2000.
4. It is further stated by the plaintiff that during his lifetime, Sh. Harwant Singh constructed three shops in property situated at Ashok Gali, Gandhi Nagar. Out of three shops, two shops were let out to the tenants on a monthly rent of Rs. 1,80,000/-, the details of which is to be provided by defendant no.1. Defendant no.1 is collecting and keeping the amount of rent with him from the date of death of Late Sh. Harwant Singh till now. The plaintiff and other defendants have 1/6th share in the amount of rent. The parties are in joint possession of the suit properties.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 3 of 25
5. On 20.09.2015, plaintiff requested the defendants for partition of the suit properties and mesne profits but defendants refused to do so. Hence, the present suit.
6. Defendant no.1 filed written statement submitting that the suit property was purchased by father of the parties. All the expenses for construction of the property IX/7055, Ashok Gali, Gandhi Nagar, Delhi, had been incurred by defendant no.1 who is doing readymade garment business since 1972 by his own funds. The plaintiff has never been in possession of the suit properties since 1985 and he left the Ashok Gali Gandhi Nagar property in 1985. Other defendants also never resided in the suit property Gandhi Nagar, Delhi since the date of their respective marriages. It is only defendant no.1 who remained in possession of the property Gandhi Nagar, Delhi since his birth. The suit of the plaintiff is barred by limitation as plaintiff and defendant no.2 to 5 did not claim their rights since 1995 when the father of the parties died.
7. It is further stated by defendant no.1 that he is in possession of the suit property at Gandhi Nagar as owner. Defendant no.1 is paying the house tax of this property. The value of the suit property is more than Rs. 2 Crore. Rest of the case of the plaintiff has been denied being wrong and incorrect.
8. Defendant no.2 to 5 in their joint written statement have supported the case of the plaintiff.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 4 of 25
9. The plaintiff has filed replication to the written statement of defendant no.1 wherein he has denied the submissions of the defendant no.1 as contained in the written statements and has reaffirmed and reiterated the contents of the plaint.
10. On the basis of pleadings of the parties, following issues have been framed for trial on dated 10.02.2016:-
1. Whether the plaintiff is entitled to 1/6 th share in properties left behind by Sh. Harwant Singh? OPP.
2. If the above issue is decided in favor of the plaintiff, whether the plaintiff is entitled to decree of possession of his share as prayed? OPP.
3. Whether the plaintiff is entitled to decree of permanent injunction against the defendants as prayed? OPP.
4. Whether the suit of plaintiff is not maintainable as framed in view of the preliminary objections taken by the defendant no.1? OPD-1.
5. Whether the suit of plaintiff is barred by limitation ? OPD-1.
6. Whether the defendant no.1 is entitled to possession of suit property at Ashok Gali, Gandhi Nagar, Delhi, on the ground of adverse possession? OPD-1.
7. Whether this Court has no pecuniary jurisdiction in respect of the suit properties? OPD-1.
8. Relief.
11. Plaintiff to prove his case, has examined himself as PW1 by filing his affidavit in evidence Ex.PW1/1. He has relied on the CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 5 of 25 following documents:-
(1) Documents of ownership of property bearing no. 9/7055, Ashok Gali, Gandhi Nagar, Delhi-31 - Ex.PW1/A (colly) (2) Documents of ownership of property bearing no. 299, Azad Market, Delhi - Ex.PW1/B (colly)
12. Defendant no.1 examined himself as DW1 by way of his affidavit in evidence Ex.DW1/A. He has relied on the following documents:-
(1) Receipts of house tax and conversion charges paid by the defendant - Ex.DW1/1 (colly) (2) Electricity bills paid by the defendant - Ex. DW1/2
13. I have heard Ld counsel for the plaintiff, Ld counsel for defendant no.1 and have carefully gone through the record.
14. It has been argued by Ld. Counsel for the plaintiff that defendant no.1 has no defense at all and hence suit should succeed. The defendant no.1 has not led any evidence that value of the suit property is more than Rs.2 crore. Other defendants have supported the case of the plaintiff. Defendant no.1 has violated the interim order.
15. Ld. Counsel for defendant no.1 per contra has argued that plaintiff has ousted himself from the suit properties since 1985 and defendant no.1 is residing and occupying the suit property i.e. CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 6 of 25 Gandhi Nagar, Delhi in his own rights, having become owner of it on the basis of adverse possession. Suit is not maintainable for non-impleadment of necessary parties.
16. My issuewise findings are as under:-
Issue no. 5-
5. Whether the suit of plaintiff is barred by limitation ? OPD-1.
17. Onus of proving this issue is on defendant no.1. The defendant no.1 has taken defence in his written statement that the plaintiff has left out the suit property way back in the year 1985 and, therefore, the present suit filed by the plaintiff in the year 2015 is barred by limitation. However, this Court does not agree with this submission of defendant no.1 as for seeking partition, there is no limitation provided and one of the co-sharer or many can seek partition of the suit property at any time when they wish and cause of action accrues when his/their request is declined by the other side.
18. In the present case, plaintiff has pleaded that he requested defendant no.1 for partition on 29.09.2015 of the suit properties and mesne profits, but he refused. This way, the suit of the plaintiff is found to be not barred by limitation at all.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 7 of 25
19. Issue no.6 -
6. Whether the defendant no.1 is entitled to possession of suit property at Ashok Gali, Gandhi Nagar, Delhi, on the ground of adverse possession? OPD-1.
20. Onus of proving this issue has further been placed on defendant no.1. It has been submitted by defendant no.1 that the plaintiff is ousted from the suit property since the year 1985 and that defendant no.1 is only person in power control and possession of the suit property and business without any interference or interruption from any of the other co-shares and as such his possession and title has been perfected on the doctrine of adverse possession.
21. I have carefully gone through the pleadings of defendant no.1 as well as cross examination of PW1 done by Ld counsel for defendant no.1.
22. Suggestion has been given to PW1/plaintiff that defendant no.1 is in hostile adverse open and uninterrupted possession of the suit property prior to the death of their father. This Court is of the view that mere giving the suggestion to PW1 that defendant no.1 has perfected his title qua the suit property on the basis of adverse possession was not enough. Further, more and clear evidence was required to be led by defendant no.1 in this regard. The defendant has not led the evidence as to how his title has been perfected on the basis of adverse possession.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 8 of 25
23. It is settled law that possession of one co-sharer is possession of all co-sharers in law and it cannot be adverse to them, unless there is a denial of their rights to their knowledge by the person in possession and exclusive ouster following thereon for the statutory period.
24. In 'P. Lakshmi Reddy Vs. L. Lakshmi Reddy', AIR 1957 Supreme Court 314., it has been held that-
"It is well settled that in order to establish adverse possession of one co-heir as against the other, it is not enough to show that one out of them is in sole possession and enjoyment of the profits. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of co-heir is considered, in law as possession of all the co-heirs. When one co- heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co- heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs' title. It is settled rule of law that as being co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession."
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 9 of 25
25. In 'Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Mohiuddin Kamisul Quadri, (1971) 1 SCC 597, it is held that-
Possession by one co-owner is not by itself adverse to other co-owners. On the contrary, possession by one co-owner is presumed to be the possession of all the co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. In the present case there is no evidence to support this conclusion. Ouster is an unequivocal act of assertion of title. There has to be open denial of title to the parties who are entitled to it by excluding and ousting them.
In 'Vidya Devi v. Prem Prakash, (1995) 4 SCC 496.27.
From the underlined portion extracted above, it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case5 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession.
Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 10 of 25
(iii) exercise of right of exclusive ownership openly and to the knowledge of other co-
owner. Thus, a co-owner, can under law, claim title by adverse possession against another co- owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
26. Md. Mohammad Ali v. Jagadish Kalita, (2004) 1 SCC 271.
31. In Vidya Devi v. Prem Prakash, it is held that-
This Court upon referring to a large number of decisions observed: (SCC p. 505, paras 27-28) "27. ... It will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P. Lakshmi Reddy case4 which has since been followed in Mohd. Zainulabudeen v. Sayed Ahmed Mohideen. 28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co- owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 11 of 25
27. Govindammal v. R. Perumal Chettiar, (2006) 11 SCC 600.
10. In Mohaideen Abdul Kadir v. Mohd. Mahaideen Umma their Lordships held that no hard-and-fast rule can be laid down. But the following relevant factors may be taken into consideration: (i) exclusive possession and perception of profits for well over the period prescribed by the law of limitation; (ii) dealings by the party in possession treating the properties as exclusively belonging to him; (iii) the means of the excluded co-sharer of knowing that his title has been denied by the co-owner in possession. There may be cases, where, owing to long lapse of time, it may not be possible for the co-owner in possession to adduce evidence as to when the ouster commenced and how it was brought home to the knowledge of the excluded co-owner. In such a case the law will presume ouster as an explanation of the long peaceful possession of the co- owner in possession. In order to maintain the person in such possession the law presumes a lawful origin of the possession. Therefore, no hard-and-fast rule can be laid down from which it can be inferred that any co-sharer has ousted his co-sharer. That will depend upon facts of each case. Simply long possession is not a factor to oust a co-sharer but something more positive is required to be done. There must be a hostile open possession, denial and repudiation of the rights of other co-owners and this denial or repudiation must be brought home to the co-owners. Simply because a co-sharer gave notice claiming partition of the suit properties and possession and did not pursue the matter further, that will not be sufficient to show that the co-sharer has lost his/her CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 12 of 25 right.
28. Tanusree Basu v. Ishani Prasad Basu, (2008) 4 SCC 791. 17. Strong reliance has been placed by Mr Banerjee on a judgment of the Bombay High Court in Bhaguji Bayaji Pokale v. Kantilal Baban Gunjawate4 wherein it was held: (AIR p. 117, para 8) "8[7]. With regard to second substantial question of law i.e. the co-owner cannot claim an order of injunction against another co-owner with regard to the property owned jointly, the learned counsel for the appellants has relied upon the Apex Court's judgment in Mohd. Baqar v. Naim-un-Nisa Bibi5. The Apex Court has very categorically held in para 7 as under: (AIR p. 550) '7. ... The parties to the action are co-sharers, and as under the law, possession of one co-sharer is possession of all co-sharers it cannot be adverse to them, unless there is a denial of their right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.' " It was observed: (AIR p. 117, para 10) "10. ... Similarly, the legal position that the co- owner or co-sharer of the property can never claim ownership by adverse possession of the other share. This is also a well-settled law."
29. S.K. Lakshminarasappa v. B. Rudraiah, 2011 SCC OnLine Kar 3545 : ILR 2012 KAR 4129 : (2012) 4 AIR Kant R 424 81. In the light of the aforesaid undisputed facts and the judgments of the Apex Court, it is clear that unless the person asserting title by CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 13 of 25 adverse possession admits title of the plaintiff and denies his title openly, the basic requirement of adverse possession is not established. Similarly, if "the case of the defendant is that he was lawfully put in possession and he has become the absolute owner and he asserts title to the property by such valid transfer of title, the plea of adverse possession is not available to him. Similarly, if the purchaser from one of the members of the joint family or a co- owner, asserts adverse possession, then the law governing adverse possession between co-owners and members of a joint family is attracted. Unless there is a plea of ouster and unless the said plea is established by acceptable evidence, they cannot succeed on the plea of adverse possession. Therefore, as rightly held by the Trial Judge in this case, the defendants have failed to establish the plea of adverse possession which they have set-up. Therefore, we do not see any infirmity in the said finding recorded by the Trial Court.
30. Nagabhushanammal v. C. Chandikeswaralingam, (2016) 4 SCC 434. 24. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that: (SCC p. 505, para 28) "28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 14 of 25 openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co- owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law."
31. In view of the above facts discussed and the law relied, it is held that defendant no.1 has not been successful that he has became owner of suit property i.e. Gandhi Nagar on the basis of adverse possession.
32. This issue is accordingly decided against defendant no.1 and in favor of plaintiff.
Issue no.7 Whether this Court has no pecuniary jurisdiction in respect of the suit properties? OPD-1.
33. Onus of proving this issue has been placed on defendant no.1. Defendant no.1 in his written statement has taken objection that the present suit has not been properly valued by the plaintiff for the purpose of court fees and jurisdiction. However, it is seen that except taking this objection, defendant no.1 has not led and evidence in this regard. Further, defendant no.1 has stated in the written statement that the market value of the suit property is more than Rs.2 crore, however, except taking this objection, no evidence has been led by him in the shape of any sale deed for similar property, similarly situated at similar place, showing the value of it to be more than Rs.2 crore. Therefore, this issue is decided against CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 15 of 25 defendant no.1 and in favour of the plaintiff.
Issue no.4 Whether the suit of plaintiff is not maintainable as framed in view of the preliminary objections taken by the defendant no.1? OPD-1.
34. Onus of proving this issue is on defendant no.1. Defendant no.1 has taken various preliminary objections in his written statement. So far as one of the preliminary objections taken is that there is no cause of action in favour of the plaintiff and the suit is liable to be rejected.
35. Cause of action is bundle of facts which one has to prove on the anvil of trial. The plaintiff has filed the present suit for partition, possession and for rendition of account claiming mesne profits for his share, which he claims to be 1/6th from out of the suit property and the business being run by defendant no.1 from the suit property. Admittedly plaintiff is one of the co-sharer in the suit property. Every co-sharer has right to seek partition from the court if the same has been denied by another co-sharer. Therefore, from the facts of the case, it cannot be said that there are no cause of action in favour of the plaintiff. Hence, this objection of defendant no.1 regarding there being no cause of action in favour of the plaintiff, is not sustainable.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 16 of 25
36. Another preliminary objection taken by defendant no.1 in the written statement is relating to that entire construction has been raised by defendant no.1 over the suit property and he is doing ready made garment business since 1972 by his own funds. The court is of the opinon that if one of the co-sharer puts in his money in the suit property for his use or otherwise also, he does so at his own risk and perils. Spending money in a joint property by one of the co-sharer, would not oust or dis-entitle another co-sharer from claiming his right in the joint property. At the most the co-sharer investing money in the joint property, can seek recovery thereof from other co-sharer, as advised in law. Therefore, this preliminary objection of defendant no.1 also does not hold good.
37. Another preliminary objection taken by defendant no.1 is that plaintiff has never been in possession of the suit property since 1985. At the cost of repetition, it is held that even if there is long ouster of one of the co-sharer from the suit property, it would not be material for the other one, seeking partition. My observations while deciding issue no.6 may be referred to here.
38. Another preliminary objection taken by defendant no.1 is that defendant no.2 to 5 never claimed any right/title or interest in the suit property and therefore, the plaintiff is not entitled to partition. This preliminary objection of defendant no.1 is entirely misconstrued and illegal as sometime there may be situation that not all the stakeholders seek partition, this would not dis-entitle one CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 17 of 25 of the co-sharer, who is seeking partition.
39. Another objection taken by defendant no.1 is that after death of his father, he has been depositing the house tax of the suit property. Again this objection of defendant no.1 is not sustainable in the eyes of law as there are no title documents in favour of defendant no.1 in respect of suit property. House tax can be deposited by anyone in respect of any property but this would not make him owner of such property.
40. So far as objection of defendant no.1 relating to site plan is concerned, from the facts of the case, it cannot be said that the suit property is not identifiable. Where the suit property is identifiable by the parties, non-filing of the site plan will be a very hyper technical approach. Parties to the suit are very much aware of the location, dimension, position and directions of the suit property.
41. One another important objection has been taken by defendant no.1 in the written statement that plaintiff has not impleaded the legal heirs of late Smt. Gurbachan Kaur.
42. While replying on merits in the written statement, in para no.4, defendant no.1 has stated that plaintiff has not impleaded the legal heirs of late Smt. Gurbachan Kaur.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 18 of 25
43. While filing replication to the written statement of defendant no.1, the plaintiff maintained silence to the non-joining of the legal heirs of late Smt. Gurbachan Kaur, for the reasons best known to him.
44. PW1/plaintiff has been cross-examined by Ld. Counsel for defendant no.1. PW1 has deposed that there was no sister of him in the name of Gurucharan Kaur. It is correct that in his affidavit in evidence he has described in para no.5 of his affidavit the name of his sister as Gurucharan Kaur at Point C. She was having four daughters and her husband. It is correct that he has not impleaded Smt. Gurucharan Kaur, his sister and her four daughters along with her husband.
45. PW1 further deposed that he has not lodged any police report or also his brother-in-law Sh. Joginder Singh Arora of his lost report. I have no connectivity with my sisiter Gurucharan Kaur, however, she is residing somewhere in Rohini, Delhi.
46. It is seen from the record/memo of parties that the legal heirs of the admitted sister of the plaintiff late Smt. Gurucharan Kaur have not been impleaded in the present case, filed for partition. In para no.5 of his affidavit in evidence Ex.PW1/1, plaintiff has deposed that his sister late Gurucharan Kaur missing since 2000 and the whereabouts of her family are not known. However, in CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 19 of 25 view of the cross-examination of PW1, this statement of the plaintiff, is found to be incorrect when he deposes in the cross- examination that "I have no connectivity with his sister Gurucharan Kaur, however, she is residing somewhere in Rohini, Delhi".
47. Plaintiff/PW1 has further deposed on oath incorrectly before the court in his affidavit in evidence Ex.PW1/1 that his statement that Smt. Gurucharan Kaur has been missing is incorrect as she has already died.
48. In view of the above deposition of plaintiff/PW1, it stands proved on record that plaintiff is deposing falsely before the court regarding status of his another sister Gurucharan Kaur. It further stands culled out from his deposition that he is aware of the legal heirs of Smt. Gurucharan Kaur, where they reside but for the reasons best known to the plaintiff, he has not impleaded them. This conduct of plaintiff is sufficient enough to dis-entitle him to the relief of partition as prayed by him.
49. In para no.8 of the affidavit in evidence of DW1, Ex.DW1/A, the defendant has deposed that plaintiff has not impleaded the legal heirs of Gurucharan Kaur who was the Daughter of Late Sh. Harwant Singh.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 20 of 25
50. DW1/defendant no.1 has been cross-examined by Ld. Counsel for the plaintiff but no cross-examination of DW1 has been done by Ld. Counsel for the plaintiff on the aforesaid piece of evidence as deposed by DW1 that plaintiff has not impleaded the legal heirs of Smt. Gurucharan Kaur D/o late Sh. Harwant Singh. Even no suggestion has been given to DW by Ld. Counsel for the plaintiff that the suit of the plaintiff is not bad for not impleading Smt. Gurucharan Kaur and/or her legal heirs.
51. In a suit for partition, all the legal heirs must be impleaded for effective and judicious adjudication of disputes between the parties. All the legal heirs are necessary parties and for want of their impleadment, the suit deserves to be dismissed.
52. The governing provisions of law for impleadment of necessary party have been enunciated u/o I Rule 9 CPC.
53. Order I, Rule 9 CPC- mis joinder and non-joinder- no suit shall be defeated by reasons of the mis-joinder or non-joinder of parties and the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it:
Provided that nothing in this rule shall apply to non- joinder of a necessary party.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 21 of 25
54. As laid down in the principles of Hindu Law by Mullah, in paragraph no.332, in a suit for partition, the heads of all the branches are the necessary parties.
55. A necessary party is an indispensable person to a suit. An effective order cannot be passed without his presence as the relief would affect the rights of such a person. The proper party is a person in whose absence an effective order can be passed, but his presence as a party would assist and help the court to adjudicate effectively and completely. In simple words, without a necessary party, a decree cannot be passed, while in the absence of a proper party, a decree can be passed so far that it relates to the parties in dispute. For example, in a partition suit all the sharers are considered as necessary parties.
56. The absence of necessary parties means those parties from whom relief is being claimed are not present, due to which the court cannot passed any effective decree. In such circumstances, the suit can but does not have to be dismissed. If found legally justifiable, the court should grant the relief being claimed by the plaintiff by passing a decree between the parties actually before it, so long as that can be done legally and effectively. The defendant can plead non-joinder of parties by the plaintiff. However, he shall have to specify who those parties are and what their interest is in the suit. The defendant has to claim a non-joinder of the parties at the earliest, in the written statement. However, he has also required CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 22 of 25 to specify who are the parties who he wants should be impleaded, and the rights claimed by them. Similar view has been taken by the Supreme Court in Laxmishankar Harishankar Bhatt vs Yashram Vasta wherein their lordships held that "until and unless all the other co- owners are not impleaded, the suit shall not be maintainable".
57. The general principle of law is that the plea of non-joinder should be raised at the earliest available opportunity. However, an exception is partition suit, in which the plea of non-joinder of parties can be raised at any point of time. The reason for this, is laid down in Shan Mugham Vs. Saraswati, is that this materially affects the subject matter involved in the suit.
58. Coming to the facts of the present case, the defendant no.1 has taken specific plea in the written statement that one of the sister Smt. Gurucharan Kaur has not been impleaded as party to the present suit. The plaintiff on the other hand, in the replication, has kept mum regarding the impleadment of Smt. Gurucharan Kaur and her legal heirs, who are admittedly (by the plaintiff) residing somewhere in Rohini, Delhi. This has so come in the testimony/cross-examination of PW1. The plaintiff never made any efforts to make Smt. Gurucharan Kaur or her legal heirs as party to the present suit, for the reasons best known to the plaintiff. However, this is very fatal to his case.
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 23 of 25
59. Similarly, in Brij Kishore Sharma & Anr vs M/S. Ram Singh & Sons Supreme Court held that during pendency of the suit, one of the parties died and his legal representatives were not brought on record. In the opinion of the court, the legal representatives should have been brought on record and for want of them, the suit was held to be not maintainable. Recently, Hon'ble Supreme Court in Moreshar Yadaoroa Mahajan vs. Venkateshwar Sita Ram Bhedi on 27.09.2022, while referring to Mumbai International Pvt. Ltd. Vs. Regency Convention Centre and Hotel Pvt. Ltd & Ors. held that "a necessary party is a person who ought to have been joined as a party and in whose absence effective decree could not be passed at all by the court. If a necessary party is not impleaded, the suit itself is liable to be dismissed.
60. In view of the above discussions on the preliminary objections taken by defendant no.1 in the written statement, it is held that suit of the plaintiff is not maintainable for the reasons that one of the LR Smt. Gurucharan Kaur and/or her legal heirs have not been impleaded to the present suit filed for partition of the suit properties. This issue is accordingly disposed of.
Issue no.1, 2 and 3.
61. All these issues are taken together as they are inter- connected and can be decided simultaneously. However, it is held that in view of my observation while deciding Issue no.4, the plaintiff is not entitled to any relief as claimed by him. All these CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 24 of 25 issues are accordingly decided against the plaintiff and in favour of defendant no.1.
Relief:
In view of my observations on the issue as above, I find that suit of the plaintiff is not maintainable and is dismissed accordingly.
Decree sheet be prepared.
File be consigned to record room.
Note: The judgment is passed by me today though it was fixed for 31.08.2023 but since I have been transferred in view of order no. Endst No.6212-6245/G-1/Gaz.1A/DHC/2023 dt.29.08.2023, I have carried this file with me for the purpose of passing the judgment in terms of the above notification.
Digitally signed
KISHOR by KISHOR
KUMAR
KUMAR Date: 2023.09.01
17:54:11 +0530
Pronounced in the open court (Kishor Kumar)
on 01.09.2023 ADJ-04 (NORTH),
Rohini Courts, Delhi
01.09.2023
CS no. 833/16 Sh. Kuldeep Singh VS Sh. Sohan Singh & Anr. Page no. 25 of 25