Delhi District Court
Govindi vs Shakuntala Devi on 3 September, 2024
IN THE COURT OF DR. NEERA BHARIHOKE
DISTRICT JUDGE-06 (COMMERCIAL)
SOUTH EAST, SAKET COURTS,
NEW DELHI
CNR No. DLCT01-001721-2014
CS DJ No. 613905/2016
Smt. Govindi Devi
(since deceased) through her LRs:
1. Lajwanti - daughter
2. Tikaram - son
3. Shakuntala Devi - daughter
3. Rajesh Kumar - son
4. Poonam - daughter
All R/o H. No. 72/5478, Rehgarpura
Karol Bagh, New Delhi-110005.
...Plaintiffs
VERSUS
1. Shakuntala Devi W/o Late Sh. Prithviraj
2. Ms. Hem Lata D/o Late Sh. Prithviraj
3. Ms. Komal D/o Late Sh. Prithviraj
4. Ms. Urmila D/o Late Sh. Prithviraj
5. Sh. Mukesh S/o Late Sh. Prithviraj
All R/o Part of H.No. 72/5478, Rehgarpura,
Karol Bagh, New Delhi-110005.
....Defendants
Date of institution of the suit : 04.01.2014
Date on which judgment was reserved : 21.08.2024
Date of pronouncement of Judgment : 03.09.2024
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 1 of 27
JUDGMENT
SUIT FOR PARTITION, POSSESSION AND MESNE PROFIT
1. By way of this judgment, I shall decide the suit of the Plaintiff filed for Partition, Possession and Mesne Profit.
2. Shri Kajore Ram @ Kanjan Ram has been referred to by different spellings in the various documents. It is admitted case of the parties that these documents refer to the same person who was brother of Hem Chand. To maintain uniformity, brother of Hem Chand has been referred to as Kanjan Ram in the present judgment.
3. During the pendency of the suit, Plaintiff had expired on 03.08.2021 while the evidence of third witness of Defendant had been concluded. Her legal representatives were impleaded vide order dated 01.08.2023. To avoid confusion, she has been referred to as Plaintiff and not deceased Plaintiff.
CASE OF THE PLAINTIFF AS SET UP IN THE PLAINT
4. Brief facts of the case as stated by the Plaintiff in the plaint are that Late Shri Hem Chand, husband of the Plaintiff, was the owner of House No.72/5478, Regarpura, Karol Bagh, New Delhi
- 110005 constructed on the area measuring 75 Square Yards (hereinafter to be referred as the suit property) in terms of Lease CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 2 of 27 Deed dated 23.03.1954 and in terms of the agreement dated 05.11.1938 executed by Deputy Commissioner, Delhi behalf of Secretary of State and the said property is also recorded in the Revenue Record of Village Basti Raigar for the year 1975-76 with Khasra No.4673/438.
5. It has been submitted by the Plaintiff that her husband Late Shri Hem Raj was also co-owner alongwith Shri Kajore Ram @ Kanjan Ram of another portion i.e. part of suit property in terms of Revenue Record of Village Basti Raigar for the year 1975-76, situated in Khasra No.4674/438.
6. It has been submitted by the Plaintiff that that husband of the Plaintiff Late Shri Hem Raj was owner of half share of suit property total measuring 75 Square Yards i.e. 37 ½ Square Yards beside his independent ownership of part area measuring 75 Square Yards of suit property in terms of said lease deed dated 23.03.1954, in terms of agreement dated 05.11.1938 executed by Deputy Commissioner, Delhi on behalf of Secretary of State and same is also recorded in the Revenue Record of Village Basi Raiger, for the year 1975-76.
7. It has been submitted by the Plaintiff that aforesaid Shri Kanjan Ram @ Kajore Ram died on 13.09.2002 and his wife Smt. Dhanni Devi also expired on 04.12.2006. After the death of Shri Kanjan Ram and his wife Smt. Dhanni Devi, a relinquishment deed was executed on 16.01.2009 vide document CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 3 of 27 Registration No.356, in Additional Book No.1, Volume No.13070 on pages 171 to 173, in the office of Sub Registrar-III, New Delhi - 110005 in which Shri S. Jaman Lal S/o Late Shri Kanjan Ram and Smt. Kunti Devi, daughter of Shri Kanjan Ram relinquished their respective rights in the said portion construction on area measuring 37 ½ Square Yards, part of property constructed on area measuring 75 Square Yards, part of Khasra No.72/5478 of Khasra No.4674/438, Raigharpura, Karol Bagh, New Delhi - 110005 in favour of Shri Prithviraj, son of Shri Kanjan Ram. After the death of Shri Prithviraj, his legal heirs became the absolute owner of the area measuring 37 ½ Square Yards of the suit property, because the husband of the Plaintiff was co-owner of suit property beside property measuring 75 Square Yards of House No.5478/438, Raigherpura, Karol Bagh, New Delhi - 110005.
8. It has been submitted by the Plaintiff that Smt. Dhanni Devi (mother in law of Defendant no. 1) during her lifetime filed a suit for Declaration and Permanent Injunction vide Suit No.862/2003 and claimed declaration to declare her to be owner of undivided and unspecified property of area measuring 75 Square Yards in House No.72/5478, Khasra No.4674, Raigarpura, Karol Bagh, New Delhi - 110005 and claimed restraint order against the Plaintiff from selling and creating third party interest/charge in her half undivided and unspecified share measuring 37 ½ Square Yards, out of total area of 75 Square Yards in the said property. The said property is the same as suit property in the present suit.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 4 of 279. It has been submitted by the Plaintiff that after the death of Smt. Dhanni Devi on 04.12.2006, the Defendants herein were impleaded as Plaintiffs in the said Suit No.862/06/2003. The said suit was decided by Shri N.K. Malhotra, the then learned ASCJ/JSCC/GJ (N), Delhi vide its Judgment/Decree dated 19.12.2012. The said suit was dismissed as regards relief of Declaration, however, allowed relief of permanent injunction and restrained the present Defendant from selling portion of suit property i.e. Part of House No.72/5748, Raigarpura, Karol Bagh, New Delhi - 110005.
10. It has been submitted by the Plaintiff that without prejudice to his right to be absolute owner of House No.72/5478, Raigarpura, Karol Bagh, New Delhi - 110005, even as per pleas and contentions of Defendants. The Defendants are in unauthorized use and occupation of undivided and unspecified portion constructed on area measuring 37 ½ Square Yards of the said house and Defendants are legally liable to pay to the Plaintiff damages/mesne profits of said portion in use and occupation of Defendants.
11. It has been submitted by the Plaintiff that Defendants are legally liable to partition the suit property constructed on area measuring 75 Square Yards, part of House No.72/5478, Khasra No.4674/438, Raigarpura, Karol Bagh, New Delhi-110005 into two equal portions and to part with specified half portion CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 5 of 27 constructed on area measuring 37 ½ Square Yards of House No.72/5478, Raigarpura, Karol Bagh, New Delhi-110005 to the Plaintiff.
12. It has been submitted by the Plaintiff that Defendants failed to perform suit property constructed on area measuring 75 Square Yards, part of House No.72/5478, Khasra No.4674/438, Raigarpura, Karol Bagh, New Delhi - 110005 into two equal shares to the Plaintiff and the Defendants also failed to hand over half specified equal share of said property to the Plaintiff and also failed to pay to the Plaintiff for unauthorized use and occupation of portion of the Plaintiff by the Defendants.
13. It has been submitted by the Plaintiff that Plaintiff issued a legal notice dated 29.04.2013 through Registered AD/Speed Post but the Defendants did not reply the same. Hence, the present suit has been filed. Summons of the suit were sent to the Defendants.
CASE OF THE DEFENDANTS
14. Defendant no.1 to 5 have filed written statement. It has been submitted by the Defendants that Shri Binja Ram, who was father-in-law of the Plaintiff and grandfather of the deceased Shri Prithvi Raj was the sole and absolute owner of the property bearing No.71-72/5478, Raigarpura, Karol Bagh, New Delhi - 110005 which was purchased by him from his own funds from the Government Land Owning Agency against a valid sale CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 6 of 27 consideration. After purchasing the said property, said Shri Binja Ram made construction on the said property, who was having two sons namely Shri Kanjan Ram and Shri Hem Chand.
15. It has been submitted by the Defendants that Shri Binja Ram died intestate leaving behind his aforesaid two sons as his legal heirs. After his demise, 1/4th share in respect of the suit property have come into the share of Shri Kanjan Ram and the remaining 3/4th share came into the share of Shri Hem Chand i.e. husband of the Plaintiff. It has been submitted by the Defendants that during lifetime of Shri Hem Chand, he made a request to Shri Kanjan Ram that he was not able to arrange money to perform the marriage of his daughter and made a request to Shri Kanjan Ram to provide financial help against which he was ready to give 1/4th share out of 3/4th share as stated above to Shri Kanjan Ram and thereafter, they both will become the exclusive owners of half share each.
16. Defendants have submitted that Shri Kanjan Ram agreed to the said request of Shri Hem Chand and he managed a fund for the marriage of the daughter of the Plaintiff. The said decision was taken before the Panchayat executed on 23.07.1977 and all the Panchayat Members as well as Shri Kanjan Ram and Shri Hem Chand have duly put their respective signatures as well as thumb impression on the said decision. Not only this but Shri Hem Chand also executed 'declaration' in the form of 'affidavit' dated 26.12.1981. Defendants have submitted that thereafter CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 7 of 27 possession of the said 1/4th share of the said Hem Chand was also delivered to Kanjan Ram and thereafter they both became the exclusive owners of half share of entire property.
17. Defendants have submitted that unfortunately Kanjan Ram died leaving behind his legal heirs namely Sheela Devi (deceased), Prithvi Raj (deceased), Jamman Lal, Kunti as his children. Defendants have submitted that Jamman Lal and Kunti Devi are alive. However, they executed relinquishment deed in favour of Prithvi Raj. In view of the above, said Prithvi Raj has become the sole and absolute owner of1/2nd share of entire 150 sq yds of the suit property.
18. Defendants have further submitted that unfortunately Prithvi Raj died on 31.08. 2011 leaving behind the Defendants herein as his wife and children and besides them, there is no other legal heir of Prithvi Raj. After the demise of Prithvi Raj, the Defendants inherited the property of Prithvi Raj and they became the joint owners in respect of the above said 1/2 nd share of (Western Side) of the suit property.
19. Defendants have submitted that therefore the Plaintiff has no concern with the suit property in any manner whatsoever and as such the present fruit is false, frivolous, vexatious, misconceived and without any merits and is liable to be dismissed.
20. The Defendants have submitted that they/ Prithvi Raj/ Kanjan Ram were in peaceful exclusive possession and CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 8 of 27 uninterrupted possession of the Western Side of the suit property even before year 1959. Defendants have claimed ownership rights upon the suit property by adverse possession also.
21. Defendants have also stated that the present suit is barred by limitation also and that the suit has been filed only to harass and humiliate the Defendant and to extort money from them under the garb of the present suit.
22. Defendants have submitted that there is no cause of action against them and Plaintiff has concealed material facts from this Court and otherwise also has no locus standi to file the present suit.
23. Defendants have also submitted that no document has been supplied to them nor the site plan has been filed by the Plaintiff.
24. Defendants have submitted that Plaintiff is neither the owner nor the landlord of the suit property and has never been in possession of the suit property after selling out the same by husband of the Plaintiff to Kanjan Ram and that Plaintiff has no right, title or interest over the suit property of any kind.
25. Defendants have denied the submissions made in the plaint and have prayed for dismissal of the present suit.
26. No replication has been filed to the written statement.
27. Admission/denial of the documents between the parties was CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 9 of 27 not carried out. Vide order dated 09.07.2015, the following issues were framed:
1. Whether this court has pecuniary jurisdiction to try this suit? OPP
2. Whether the Plaintiff has not paid the requisite court fee? OPD
3. Whether the suit is barred by limitation? OPD
4. Whether the Plaintiff has not approached the court with clean hands? OPD
5. Whether the Defendants have acquired ownership rights upon the suit property by adverse possession? OPD
6. Whether the partition in respect of the suit property has already taken place? OPD
7. What is the share of each party to the suit in the suit property? OPP
8. Whether the Plaintiff is entitled to decree of partition as prayed in the plaint? OPP
9. Whether the Plaintiff is entitled to decree of possession as prayed in the plaint? OPP
10. Whether the Plaintiff is entitled to mesne profits as prayed in the plaint? OPP
11. Relief.
12. Costs.
PLAINTIFF'S EVIDENCE
28. After framing of issues, the matter was adjourned for recording evidence of Plaintiff and Plaintiff was examined as PW-1 and she tendered her evidence by way of affidavit vide Ex.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 10 of 27PW-1/1. She reiterated the contents of her plaint and has relied upon the following documents: -
a) Copy of the legal notice with postal record vide Ex. PW-1/A (colly.);
b) Certified copy of civil suit no. 862/06/03 decided on 19.12.2012 vide Ex. PW-1/B ;
c) Certified copy of Khatauni no. 4673/5274 and 4647/5274 of Delhi Improvement Trust vide Ex. PW-1/C;
d) Site plan vide Ex. PW-1/C;
29. After cross examination of Plaintiff as PW-1, Plaintiff also examined one more witness as PW-2 who was Kanoongo, S and S-1, Land Section, Vikas Sadan, Delhi to prove Khatauni No. 125, Khasra No. 4673/438 and 4647/438, Block-B, area 75 sq.yards each. PW-2 had brought the summoned record and was cross examined.
30. After recording evidence of Plaintiff and PW-2, including their cross examination, PE was closed vide order dated 28.02.2018.
DEFENDANT'S EVIDENCE
31. Thereafter Defendant no.2, Ms. Hem Lata was examined as DW-1. She tendered her evidence by way of affidavit vide Ex. DW-1/A and reiterated the contents of the written statement and has relied upon the following documents: -
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 11 of 27i) Panchayat decision dt. 27.03.1977 vide Ex. DW-1/1.
ii) Affidavit of Hem Chand dt. 26.12.1981 vide Ex. DW-1/2.
The original of these exhibits were seen and returned.
32. DW-1 was cross examined by learned Counsel for Plaintiff.
33. DW-2 Shri Mukesh Kumar, S/o Late Sh. Babulal, was examined. He was cross examined by learned Counsel for Plaintiff.
34. DW-3 Shri Mukesh Kumar, S/o Late Sh. Babulal, was examined. He was cross examined by learned Counsel for Plaintiff.
35. DW-4, Ms. Urmila, was examined. She was cross examined by learned Counsel for Plaintiff.
36. Plaintiff expired during the stage of Defendant's evidence. By that time, evidence of three witnesses of Defendant had already been concluded. Application under Order XXII Rule 3 CPC was filed which was allowed vide order dated 01.08.2023. Thereafter evidence of the fourth witness of Defendant (the last witness of Defendant) was recorded.
37. Vide order dated 18.12.2023, the Defendants' evidence was closed, and the matter was listed for final arguments.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 12 of 27ARGUMENTS ADVANCED BY BOTH SIDES
38. At the stage of the arguments, at joint request of the parties, Lease Deed dated 01.05.1956 executed by DIT was exhibited yes Ex..Z as it was a document relied upon and admitted by both of them.
39. Learned counsel for the Plaintiff stated that the deceased Plaintiff was the widow of Hem Chand. She expired during the stage of Defendant evidence and her children have been impleaded as her legal heirs. He also stated that the Defendants are the widow and children of Prithviraj. Prithviraj was the son of Kanjan Ram. Kanjan Ram and Hem Chand were real brothers.
40. Learned counsel for Plaintiff submitted that husband of the Plaintiff, namely Hem Chand was the owner of house no. 72/5478, Raigar Pura, New Delhi constructed on the area measuring 75 sq yds in terms of Lease Deed dated 23.03.1954 and in terms of the agreement dated 05.11.1938 executed by Dy. Commissioner, Delhi, on behalf of Secretary of State and the said property is recorded in revenue record of village Basti Raigar for the year 1975-76 as khasra no. 4673/438 (75 sq yds).
41. He further submitted that husband of the Plaintiff was the co-owner along with Kajore Ram @ Kanjan Ram of another CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 13 of 27 portion of property no. 72/5478, Raigar Pura, New Delhi on the area measuring 75 sq yds in terms of revenue record of village Basti Raigar for the year 1975-76 situated in khasra no. 4674/438 (75 sq yds).
42. Learned counsel for Plaintiff submitted that husband of the Plaintiff was owner of half share of property comprised in khasra no. 4674/438 (75 sq yds).
43. Learned counsel for Plaintiff submitted that earlier the mother-in-law of the Defendant no. 1, namely Dhanni Devi, had filed a suit bearing no. 862/06/03 praying for declaration that she be declared the owner of the suit property and for permanent injunction to restrain the Plaintiff from selling her share of 37 ½ square yards in property bearing no. 72/5478, Raigar Pura, New Delhi and it was dismissed by declining to grant the prayer of declaration sought by her. He submitted that after the dismissal of the said suit, the Plaintiff has filed the present suit for partition, possession and mesne profits.
44. He referred to the Ex. PW1/C i.e. Jamabandi of both properties pertaining to Khasra no. 4673/438 and khasra no. 4674/438 and submitted that in column 8, the area of the khasra is mentioned as 75 sq. yds and in column 5 of Jamabandi of Khasra no. 4674/438, it is clearly mentioned that Hem Chand and Kanjan Ram had equal shares in the property comprised in khasra no. 4674/438 which comes to be 37 ½ sq yds each.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 14 of 2745. Learned counsel for Plaintiff further argued that it is the case of the Defendants that Hem Chand had sold his 37 ½ sq yds share in this part of the suit property to Kanjan Ram and that it has already been held in the suit filed by mother-in-law of the Defendants herein which was filed by narrating the same facts which have been taken as defence by the Defendants in the present suit.
46. Learned counsel for Plaintiff further argued that the Defendants have relied on a Panchnama which is not a registered document and therefore cannot constitute/create any right in the 37 ½ sq yds of the property of which Hem Chand was the owner. He also argued that Defendants have relied on affidavit of Hem Chand which is neither notarized nor attested by Oath Commissioner.
47. Learned counsel for Plaintiff has prayed that in view of the documents tendered and exhibited by the Plaintiff, the suit deserves to be decreed.
48. Learned counsel for Defendant argued that 37 ½ sq yds of the property of which Plaintiff claims to be the owner has always been in the possession of the Defendant. He also argued that clause 12 of the Lease Deed dated 01.05.1956 executed by DIT in favour of Kanjan Ram and Hem Chand clearly shows that the lease given for property was for a fixed period of 20 years and therefore the lease stands terminated.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 15 of 2749. It was further argued on behalf of Defendants that the Defendants had filed a detailed written statement, and no replication was filed on behalf of Plaintiff and therefore the case of the Defendants is deemed to have been accepted by the Plaintiff.
50. Learned counsel for Defendant argued that all the witnesses of Defendant have proved that 37 ½ sq yds i.e. 50 % share of Hem Chand was given by him to Kanjan Ram.
51. He also said that no suggestion was given to the witnesses regarding non-registration of Ex. DW-1/1, which was not a Panchnama but a Faisla, which was in the nature of a family settlement and did not require registration.
52. Learned counsel for Defendant also argued that Ex. DW-1/1 Faisla (OSR) was duly proved as DW-2 identified signatures of his father Babu Ram on the Faisla and DW-3 deposed that Baburam was present there where the Faisla was executed. He argued that DW-3, the witness of the Defendant identified signatures of Hem Chand at point B as well as of Kanjan Ram at point C on the Faisla, Ex. DW-1/1.
53. Learned counsel for Defendant argued that there is no merit in the case of the Plaintiffs in view of the Ex. DW-1/1 and that the Plaintiff has no share of 37 ½ sq yds in the suit property and prayed for dismissal of the present suit.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 16 of 2754. I have heard the rival submissions of the parties and have carefully gone through the record.
ISSUE-WISE FINDINGS Issue no.1: Whether this court has pecuniary jurisdiction to try this suit?
55. Onus to prove this issue was placed on the Plaintiff although it should have been placed on the Defendant.
56. Learned Counsel for Defendant had argued that the Plaintiff filed the present suit for partition, position and for damages @ Rs.10,000/- per month for last three years in respect of suit property admeasuring 75 sq. yds and has valued the suit for purpose of court fees and jurisdiction at Rs.6,00,000/-whereas market value of the property was more than Rs.1,00,00,000/- at the time of filing of the suit.
57. It is noticed that Plaintiff had amended the plaint and had stated that the market value of the of the suit property is Rs.10,00,000/-and for partition and possession of the share of the Plaintiff, is about Rs.5,00,000/- and for the relief of mesne profits is Rs.3,60,000/-.
58. No evidence has been adduced by the Defendants in support of the value of the suit property to be more than Rs.10,00,000/-. Therefore, in the absence of evidence, the Defendant has failed to CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 17 of 27 prove their objection regarding lack of pecuniary jurisdiction. Therefore, issue no. 1 is decided in favor of the Plaintiff and against the Defendants.
Issue no. 2: Whether the Plaintiff has not paid the requisite court fee?
59. Onus to prove this issue was placed on the Defendant. In para 13 of the plaint, after giving the valuation of the suit by averring that market value of the of the suit property is Rs.10,00,000/-and for partition and possession of the share of the Plaintiff is about Rs.5,00,000/- and for the relief of mesne profits is Rs.3,60,000/-, The Plaintiff paid the ad valorem court fee of her share i.e. Rs.8,60,000/-, court fee of Rs. 8600/-has been paid by the Plaintiff.
60. No evidence has been adduced by the Defendants in support of their submissions of the Plaintiff not having paid the requisite court fee.
61. Therefore, issue no. 2 is decided against the Defendant and in favor of the Plaintiff.
Issue no. 3: Whether the suit is barred by limitation?
62. Onus to prove this issue was placed on the Defendant. In Para 2 of preliminary objections in the written statement, the Defendants have stated that the present suit is barred by limitation. No evidence has been adduced nor have any CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 18 of 27 arguments been advanced in support of the objection taken by the Defendants except a bald statement in the preliminary objections in the written statement. Therefore Defendants have failed to prove their objections of limitation. Therefore, issue no. 3 is decided against the Defendant and in favor of the Plaintiff.
Issue no. 4: Whether the Plaintiff has not approached the court with clean hands?
63. The onus to prove this issue was on the defendants. In Para 6 of preliminary objections in the written statement, the Defendants have stated that the Plaintiff has not approached the court with clean hands. No evidence has been adduced nor has any arguments been advanced in support of the objection taken by the Defendants except a bald statement in the preliminary objections in the written statement. Therefore, issue no. 4 is decided against the Defendant and in favor of the Plaintiff.
Issue no.5: Whether the Defendants have acquired ownership rights upon the suit property by adverse possession?
64. The onus to prove this issue was placed on the Defendants. The Defendants have relied on the testimony of PW-1, the Plaintiff, where during her cross examination conducted on 08.09.2016, PW1 stated that the Defendants are living in whole of the property bearing no.72/5478, Reghar Pura, Karol Bagh, Delhi and that the property is constructed three-storied and basement is also constructed. PW-1, the Plaintiff, had also stated CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 19 of 27 that Defendant no.1 is in the possession of the property from date of her marriage and that Defendant no. 2 to 5 are in possession of the property from the date of their birth.
65. It has been argued on behalf of Defendant that it is an admitted case of the Plaintiff that Defendants are in settled possession of the suit property and that even if the lease deed, Ex. Z, was executed by Delhi Improvement Trust in favour of Kanjan Ram and Hem Chand, the predecessors of the Defendants and Plaintiff respectively and that even if Lease Deed has expired since May 1970, the Defendants have become owners of the suit property by adverse possession.
66. The Mother-in-law of the Defendant, i.e. widow of Kanjan Ram and mother of Prithviraj, namely Dhanni Devi, had earlier filed a civil suit bearing no. 862/06/03 for declaration and permanent injunction. During the pendency of the suit, she expired and her legal heirs, who are Defendants in the present suit, were brought on record. It was prayed by the Plaintiffs who are Defendants in the present suit that a decree of declaration be passed declaring that Plaintiffs (Defendants herein) are the owner of the suit property i.e. house bearing no. 72/5478, Raigar Pura, Karol Bagh, New Delhi. It was also prayed that a decree of permanent injunction be also passed restraining the Defendant from selling her share of 37 ½ sq yds in the suit property. The relief for declaration was not granted by holding that the property was given on lease by Delhi Improvement Trust and the CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 20 of 27 Plaintiffs being tenants cannot claim adverse possession against their landlords, since their possession is permissive in nature. The said decision was not challenged by Defendants herein or by the Plaintiffs herein and thus achieved finality.
67. It is a settled law that tenants cannot claim adverse possession against their landlords, since their possession is permissive in nature. Delhi Improvement Trust has been succeeded by Delhi Development Authority and it has not been impleaded in the present Suit who has already been declared to be the owner of the suit property and therefore Defendant cannot set up a title adverse to Delhi Development Authority/Government. Further by virtue of Order II Rule 2 CPC, the suit in respect of this relief is barred by constructive res judicata. Therefore, the Defendant is not entitled to claim the right of ownership through adverse possession. Therefore, issue no. 5 is decided against the Defendants and in favor of the Plaintiff.
Issue no. 6: Whether the partition in respect of the suit property has already taken place?
68. The onus to prove this issue was placed on the Defendants. In civil suit bearing no. 862/06/03, the Plaintiff as well as the Defendants were the parties. While deciding the issue that whether the Plaintiff (Defendants herein) is the exclusive owner and landlady of the suit property, it has been held that the property is of Delhi Improvement Trust, i.e. DDA since DDA is CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 21 of 27 the successor of Delhi Improvement Trust. The suit property in that matter i.e. civil suit bearing no. 862/06/03 as well as the present matter is admittedly the same.
69. The Plaintiff has denied the execution of any affidavit of husband of the Plaintiff, Ex. DW-1/2 and document titled 'Faisla', Ex. DW-1/1 whereas the Defendants have relied on both these documents to allege that they have become owner of whole 75 sq yds of the suit property.
70. As regards the affidavit of husband of the deceased Plaintiff, Ex. DW-1/2, in the previous suit it has already been held that it is not attested by any authority thus it cannot be taken into consideration.
71. As regards the document titled 'Faisla', Ex. DW-1/1, the Defendants have stated that all the witnesses of Defendant have proved that 37 ½ sq yds i.e. share of Hemchand was given by him to Kanjan Singh and that no suggestion was given to these witnesses in regard to non-registration of Ex. DW-1/1, which was not a Panchnama but a Faisla, which was in the nature of family settlement and did not require registration.
72. Learned Counsel for Defendant also argued that Ex. DW-1/1 Faisla (OSR) was duly proved as DW-2 identified signatures of his father Babu Ram on the Faisla and DW-3 deposed that Baburam was present there where the Faisla was executed. He argued that DW-3, the witness of the Defendants, identified CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 22 of 27 signatures of Hem Chand at point B as well as of Kanjan Ram at point C on the Faisla, Ex. DW-1/1.
73. Learned counsel for Defendant argued that there is no merit in the case of the Plaintiffs in view of the Ex. DW-1/1 and that the Plaintiffs have no share of 37 ½ sq yds in the suit property.
74. Even if the case as set up by the Defendants is accepted to be correct, Ex. DW-1/1, Faisla, can at best be taken to be a proof of possession of the Defendants over the suit property because Ex. DW-1/1 is not a registered document and in absence of registration, as per Section 49 read with Section 17 of Registration Act, it cannot affect the property in question and thus neither the rights of Hem Chand extinguished over the portion of 37 ½ sq yds. of the suit property nor the rights of Kanjan Ram were created in respect of the 37 ½ % of the suit property who were the pattedars of these portions as already held in the previous suit bearing no. 862/06/03.
75. Therefore, the Defendant has failed to prove that the suit property was partitioned or that the partition of the suit property had already taken place. Therefore, issue no. 6 is decided against the Defendant and in favor of the Plaintiff.
Issue no. 7: What is the share of each party to the suit in the suit property?
76. The onus to prove this issue was on the plaintiff. Suit property is 4674/438, admeasuring 75 sq.yds. Hem Chand and CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 23 of 27 Kanjan Ram were real brothers. It is the case of the Plaintiff that the total area of the property is 150 square yards consisting of 4673/438(75 square yards) fell to share of Hem Chand and for the remaining 75 sq yds(suit property), the share of Hem Chand and Kanjan Ram was 37 ½ sq. yds each.
77. The case of the Defendants is that Hem Chand had given his share of 37 ½ sq yds to Kanjan Ram in view of Kanjan Ram having given him money for marriage of daughter of Hem Chand. It has already been held in the previous suit that the suit property is owned by Delhi Improvement Trust, i.e. DDA since DDA is the successor of Delhi Improvement Trust. It was also held that Hem Chand and Kanjan Ram were pattedar in both Jamabandis, Ex. PW-1/1. PW-2, the Kanungo, was examined and cross-examined on 16.05.2017. He deposed that as per jamabandi in regard to suit property, the property recorded in Ex. PW-2/B (i.e. of suit property admittedly situated in khasra no. 4674/438)), the suit property is undivided and is in equal share of Hem Chand and Kanjan Ram.
78. At the stage of final arguments, the Lease Deed dated 01.05.1956 was exhibited as Ex. Z as both the parties admitted of the same and it was exhibited on their request. The Lease Deed specifically records that it is a lease of 75 square yards situated at Bast Rehgar, Block B, 4674/438. Therefore, Ex. PW-2/B crystallized the lease rights of predecessors of the parties to be joint as it nowhere defines their individual rights. Therefore, after CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 24 of 27 the execution of Lease Deed, Ex. Z, (which was not brought to notice of the Learned Court which decided the suit bearing no. 862/06/03), the rights of the parties became joint and ceased to be 50% each in the suit property. The Lease Deed expired on 01.04.1970 but the parties are continuing in unauthorized possession of the suit property. Therefore, it is held that the share of each party is joint in the suit property. Therefore, issue no. 7 is decided accordingly.
Issue no. 8:Whether the Plaintiff is entitled to decree of partition as prayed in the plaint? and issue no. 9: Whether the Plaintiff is entitled to decree of possession as prayed in the plaint? are interconnected and being taken up together.
79. The onus to prove these issues was placed on the Plaintiff. The Plaintiff as well as the Defendants are in unauthorized occupation of the suit property. Their right of possession over the suit property was crystallized by Lease Deed, Ex.-Z.
80. Clause 4(d) of the Lease Deed debars the lessees (the parties herein) from subdividing the suit property or parting with the possession of suit property or transfer or sublease a part of suit property without first obtaining the consent of the lessor i.e. Delhi Development Authority as it is the successor of Delhi Improvement Trust.
81. Clause 5 of the Lease Deed debars the parties from making any alteration in the plan or elevation of the suit property or CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 25 of 27 attached buildings without the consent in writing of the lessor or such officer as lessor may appoint in this behalf.
82. The lease deed has expired but the parties to the suit have been in unauthorized possession of the suit property and their rights continue to be governed by the terms of the lease Deed, Ex. Z.
83. In view of these two clauses, the suit property cannot be divided and as the interest of both the parties is joint, the possession of any particular part of the suit property cannot be given to either side. Issue no. 8 and Issue no. 9 are therefore decided against the Plaintiff and in favor of the Defendants.
Issue no. 10: Whether the Plaintiff is entitled to mesne profits as prayed in the plaint?
84. The onus to prove this issue was on the plaintiff. As already held, while deciding the previous issues, possession of both the Defendants is unauthorized in the suit property. Therefore, neither of the two can claim mesne profits from each other. Rather it is the DDA, which is entitled to claim mesne profits from both parties. Issue no. 10 is, therefore, decided against the Plaintiff and in favor of the Defendants.
CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 26 of 27Relief & Costs.
85. In view of issue No.7 to 10 having been decided against the Plaintiff, the suit is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance. Digitally signed by NEERA NEERA BHARIHOKE Announced in the open BHARIHOKE Date:
2024.09.03 Court on 03.09.2024 10:13:37 +0530 (Neera Bharihoke) District Judge (Commercial-06) South East, Saket Courts Delhi 03.09.2024 Certified that this judgment contains 27 pages and each page bears my signatures. Digitally signed by NEERA NEERA BHARIHOKE BHARIHOKE Date: 2024.09.03 10:13:43 +0530 (Neera Bharihoke) District Judge (Commercial-06) South East, Saket Courts Delhi 03.09.2024 CS DJ No.613905/16 Govindi Vs. Shakuntala Devi & Ors. Page 27 of 27