Delhi District Court
Kalawati vs Jagannath on 18 May, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT, KARKARDOOMA
COURTS, DELHI
CS No. 476645/2015
CNR No. DLNE01-002462-2015
Kalawati
W/o Sh. Devki Nandan
D/o Late Deep Chand
R/o A-69, Gali No. 8, Jagatpuri,
Mandoli Road, Shahdara, Delhi. .....Plaintiff
Versus
1. Jagannath
2. Ghanshyam
3. Vinod
All sons of Late Deep Chand
All residents of H-19, Gali No. 1,
Shastri Park, Delhi.
4. Geeta
W/o Sh. Govind
R/o Gaushala Pathak, Prem Nagar,
Ghaziabad, Uttar Pradesh.
5. Radha @ Radhika
W/o Late Surendra Mohan
D/o Late Deep Chand
R/o H-19, Gali No. 1,
Shastri Park, Delhi.
6. Hemlata
W/o Sh. Om Parkash Mehra
D/o Late Deep Chand
R/o H-229/23-A, Mandawali Fazalpur,
Delhi. ..... Defendants
CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 1 of 13
Date of Institution : 09.12.2015
Date of Reserving Judgment : 17.05.2024
Date of Judgment : 18.05.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants seeking the partition and permanent injunction.
2. Brief facts, as stated in the plaint are that the plaintiff and defendants are real brothers and sisters. It is also stated that mother and father of plaintiff and defendants, Smt. Somti Devi and Sh. Deep Chand had died on 30.04.1989 and 01.10.1979 respectively leaving behind plaintiff and defendants. It is further stated that mother of plaintiff was the owner of property bearing House Number 19, Village Ghonda, Shastri Park, Shahdara, Delhi measuring 200 square yards vide registered sale deed registered as number 12047, book number 1, volume number 1407 on pages 20 to 21, dated 30.09.1965 in the office of Sub Registrar. It is further stated that some land out of abovesaid property was acquired by the Government for widening the Pusta Road and at present approximately 160 square yards plot of land is available out of the abovesaid property (hereinafter referred as suit property). It is further stated that defendant number 1 without dividing the property between legal heirs got demolished one portion and started construction work. It is further stated that raising of any structure on the suit property without division amongst legal heir is an attempt of defendant number 1 to deprive other legal heirs of their legal and legitimate rights. It is further stated that the plaintiff had already filed police complaint with Police Station Usman Pur, Delhi vide DD number 60B, dated 02.08.2015, but, no action was taken. It is further CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 2 of 13 stated that one of the sons of Late Somti Devi, namely, Moti Lal is missing since the year 1994 and he was issueless divorcee.
It is further stated that other two sons, namely, Sh. Hoti Lal and Sh. Roop Chand had relinquished their right, title, share and interest in the suit property by virtue of relinquishment deed dated 10.09.1992, in favour of plaintiff and defendant number 1, 2, 3 and 5. It is further stated that share of Moti Lal was also merged with the share of other legal heirs of Late Somti Devi. It is further stated that the plaintiff and defendant number 5 had asked other defendants to partition the suit property, but, defendant number 1 to 3 had flatly refused to do so and threatened the plaintiff that they would dispose off the suit property. It is further stated that the plaintiff wanted to peacefully resolve the matter as the same is family matter and wanted to divide the property equally amongst all the co-owners. It is further stated that the plaintiff alongwith defendant number 4 also got issued legal notice, dated 22.07.2015, which was duly served upon defendant number 1 to 3 and defendant number 5. It is further stated that despite receiving of legal notice defendants neither divided the suit property nor replied the legal notice. It is therefore requested that a preliminary decree of partition be passed in favour of plaintiff and against the defendants in respect of suit property alongwith a final decree of partition and permanent injunction.
3. A common written statement has been filed on behalf of defendant number 1 and 3 in which apart from denying the allegations, levelled in the plaint, it is stated by defendant number 1 to 3 that the plaintiff has concealed the true, material and relevant facts for filing the present suit. It is further stated that parents of parties had left behind six sons and four daughters. It is further stated that during their life time, parents of parties had already given the respective shares to their daughters that is plaintiff, CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 3 of 13 defendant number 4 and 5 and one Smt. Hemlata in the shape of money. It is further stated that the mother of parties was the absolute owner of suit property and she died intestate. After the death of parents of parties, defendant number 1 and his brothers were entitled to take their respective 1/6th share each in the property of their mother. It is further stated that on 10.09.1992 two brothers of defendant number 1, Sh. Roop Chand and Sh. Hoti Lal had sold out their shares in the property of their deceased mother to defendant number 1 for a total sale consideration amount of rupees 48,000/-. They both had executed General Power of Attorney, agreement to sell and receipt in favour of defendant number 1.
It is further stated that an affidavit was also prepared on the same day, that is 10.09.1992, by the plaintiff and other siblings that is Moti Lal, defendant number 2 Ghanshyam, defendant number 5 Vinod Kumar regarding the execution of documents in favour of defendant number 1 and regarding receipt of rupees 48,000/- by Sh. Hoti Lal and Sh. Roop Chand from the defendant number 1. It is further stated that after execution of documents by Sh. Hoti Lal and Sh. Roop Chand, defendant number 1 became the owner of three shares out of six shares in the property of his mother. It is further stated that the defendant number 5 was residing in the suit property as a licencee/permissive user of defendant number 1. Thereafter her intention became malafide and she had filed an application under section 12 of Protection of Women from Domestic Violence Act against the defendant number 1 and others. It is further stated that defendant number 5 also succeeded to get interim residence order, dated 04.05.2007 in her favour. It is further stated that it was later on, settled that the suit property be partitioned amongst the defendant number 1, 2, 3 and
5. It is further stated that defendant number 1 had five brothers, out of them, two brothers had already sold their shares to the defendant number 1 CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 4 of 13 and one brother Sh. Moti Lal was missing after the year 1993. It is further stated that the remaining three brothers that is defendant number 1 to 3 are the parties to the mediation settlement and accordingly, the defendant number 1, 2, 3 and 5 had complied the mediation settlement. It is further stated that on 17.01.2014, a family settlement was executed between the defendant number 1, 2, 3 and 5 and they partitioned the suit property measuring 150 square yards approximately in their favour as per site plan annexed to the family settlement. It is further stated that thereafter, defendant number 1, 2, 3 and 5 had raised their separate constructions on their respective shares/portions. It is stated that the alleged relinquishment deed is forged and fabricated. It is further stated that plaintiff has no right, title or interest in the suit property. It is further stated that as the plaintiff is not in possession of the suit property and thus not paid the ad-volerum Court fees. It is therefore requested that the suit of plaintiff be dismissed with heavy costs.
Separate but similar written statement has been filed by defendant number 2 in which apart from denying the allegations/contentions, levelled in the plaint, the averments made by defendant number 1 and 3 in their written statement were supported.
One more separate written statement has also been filed on behalf of defendant number 4 in which it is stated by defendant number 4 that she is entitled for 1/8th share in the suit property being one of legal heirs of Late Somti Devi and Late Deep Chand. It is further stated that defendant number 4 has no objection, if the suit property divides equally among the plaintiff and the defendants. It is further stated that the share of Sh. Moti Lal should be merged equally in the share of defendant number 4 as Sh. Moti Lal had not executed any document in favour of any of the legal heirs of Late Somti Devi and Late Deep Chand. It is further stated that the defendant number 4 is also in symbolic possession of the suit property and CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 5 of 13 she frequently visits the suit property without any hindrance.
Defendant number 5 had filed the separate written statement in which it is stated that the defendant number 5 is entitled for equal share in the suit property being one of the legal heirs of Late Somti Devi and Late Deep Chand. It is further stated that the defendant number 5 is having no objection, if the suit property divides equally among the plaintiff and the defendant. It is further stated that the share of Late Moti Lal should be merged equally among all the legal heirs as Sh. Moti Lal had not executed any documents in favour of any of the legal heir of Late Somti Devi and Late Deep Chand. It is further stated that the defendant number 5 is residing in the same property in her own share. It is further stated that the defendant number 2 Sh. Ghanshyam had already sold his share in the suit property in favour of defendant number 5 and hence, his share may kindly be merged in the share of defendant number 5, while deciding the share of the parties.
It is pertinent to mention here that vide order, dated 04.07.2016, Learned Predecessor of this Court had allowed an application under Order I Rule 10 of Code of Civil Procedure and Smt. Hemlata was impleaded as defendant. Accordingly, amended memo parties was ordered to be filed. Despite opportunities having being granted to the plaintiff, no replications to the written statements of defendants were filed.
4. On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled for decree of partition, as prayed in the suit? OPP
(ii) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
(iii) Relief.
CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 6 of 13
5. Thereafter, plaintiff has led her piece of evidence. Plaintiff got examined herself as PW1. She reiterated the facts as are mentioned by her in her plaint. She tendered her evidence by way of affidavit which is Ex.PW1/A and relied upon the following document i.e. copy of sale deed as Ex.PW1/1, copy of complaint, dated 15.11.2008 as mark A, copy of ration card as Mark B, copy of complaint, dated 04.08.2015 as Mark C, copy of complaint, dated 02.08.2015 as Mark D, copy of complaint, dated 17.06.2015 as Mark E, copy of legal notice as Mark F, copy of R/D as Mark G, copy of order, dated 17.08.2015 as mark H and site plan as Ex.PW1/2. PW1 was cross examined at length by Learned Counsel for defendants number 1 and 3, Learned Counsel for defendant number 2, 4 and 5 and Learned Counsel for defendant number 6.
After closing of plaintiff's evidence, defendants have led their piece of evidence. Defendant number 1 Sh. Jagannath in order to prove his case stepped into the witness box as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the documents i.e. copy of General Power of Attorney, dated 10.09.1992 executed by Sh. Hoti Lal and Sh. Roop Chand in favour of DW1 as Ex.DW1/1 (OSR), copy of agreement, dated 10.09.1992 executed among Sh. Hoti Lal, Sh. Roop Chand and DW1 as Ex.DW1/2 (OSR), copy of receipt, dated 10.09.1992 executed by Sh. Hoti Lal and Sh. Roop Chand in favour of DW1as Ex.DW1/3 (OSR), copy of affidavit of Sh. Hoti Lal, Vinod, Radha, Kalawati, dated 10.09.1992 as Ex.DW1/4 (OSR), copy of mediation settlement, dated 23.04.2012 as Ex.DW1/5, copy of Family Settlement, dated 16.01.2014 with site plan as Ex.DW1/6 (colly), copy of site plan filed by DW1 in his earlier suit as Mark A, copy of reply, dated 21.09.2015 to the notice of plaintiff as Ex.DW1/7 and it's postal receipts as Ex.DW1/8 (colly) and copy of election I Card of plaintiff as Mark B. DW1 CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 7 of 13 was cross examined at length by Learned Counsel for plaintiff. During the course of cross examination of DW1, he admitted that he had not given any share himself to the plaintiff in the suit property and that no physical partition of the suit property has even taken place on 10.09.1992. DW1 has also clarified that after the mediation settlement Ex.DW1/5, the property was divided amongst four people, namely, Jagannath, Radha Devi, Ghanshyam and Vinod and no share was given to the plaintiff in pursuance of mediation settlement.
Defendant number 3 Sh. Vinod was examined as DW2. DW2 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW2/A and relied upon the documents already exhibited as Ex.DW1/1 to Ex.DW1/6 in the evidence of DW1. DW2 was cross examined by Learned Counsel for plaintiff. During the course of his cross examination, DW2 has specifically submitted that no document in writing was executed when parents of DW2 gave the respective share to the plaintiff, defendant number 4, defendant number 5 and Smt. Hem Lata.
6. I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written arguments have been filed on behalf of plaintiff in which once again contents of plaint as well as the evidence by way of affidavit deposed by the plaintiff has been reiterated. It is clarified once again in the written submissions that the mother of parties who was the owner of the suit property had died intestate leaving behind ten legal heirs, namely, Smt. Kalawati (daughter), Sh. Jagannath (son), Sh. Ghanshyam (son), Sh. Vinod (son), Smt Geeta (daughter), Smt. Radha (daughter), Smt. Hemlata (daughter), Sh. Hoti Lal (son), Sh. Moti Lal (son) and Sh. Roop Chand (son), out of which Sh. Moti Lal is missing, while Sh. Roop Chand and Sh. CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 8 of 13 Hoti Lal have relinquished their shares. It is also stated that accordingly, Sh. Roop Chand, Sh. Hoti Lal and Sh. Moti Lal were not arrayed as parties in the present suit. It is further stated that it is the suit of plaintiff and plaintiff has admittedly got no share in the suit property till today which is clear from the cross examination of DW1 and DW2. It is stated that though defendant number 1 and 3 claimed that plaintiff, defendant number 4 and 5 were given shares by their parents at the time of marriage, but, not a single document was filed in support of their claim. It is also clarified that the suit property is undivided therefore, all the legal heirs have joint rights/in joint possession of the same and there is no need to seek the relief of possession as such by seeking the partition. During the course of oral submissions, Learned Counsel for plaintiff has submitted and clarified that the plaintiff has no objection, if the plaintiff be given her 1/10 th share in the suit property as admittedly plaintiff are ten brothers and sisters. It is also submitted by Learned Counsel for plaintiff that the plaintiff has always submitted that they are ten brothers and sisters. As out of six brothers, one was missing and two other had relinquished their shares earlier they were not arrayed as party, but, plaintiff has now absolutely no objection of receiving her 1/10th share in the suit property which admittedly she has not received till date.
Written submissions have also been filed on behalf of defendant number 1 and 3 in which it is stated that the plaintiff has got led only her evidence as PW1. In her evidence, PW1 has stated that she is not residing in the suit property since 2007 as she was turned out from the suit property by her brother. She further stated that she made complaint to the police when she was thrown out from the suit property in 2007, but, the complaint is not on record. She further stated in her evidence that she is not aware whether defendant number 1 had paid rupees 48,000/- to Sh. Hoti Lal and Sh. Roop Chand. She did not remember whether she had CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 9 of 13 signed any affidavit at that time or not. It is also stated that the plaintiff is neither in possession of the suit property nor she has claimed the same. It is also stated that the plaintiff has not arrayed all the legal heirs in her suit therefore, her suit is bad and ill conceived. Reliance is placed upon Anathula Sudhakar v P. Buchi Reddy (Dead) by LRs & Ors., Civil Appeal No. 6191/2001. This judgment do not apply to the facts and circumstances of the present case.
7. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the plaintiff is entitled for decree of partition, as prayed in the suit? and Issue number 2, that is, whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? Onus of proving both these issues is upon the plaintiff. Both these issues being interconnected and having the bearing upon each other are taken up together.
Firstly, it is to be noted that plaintiff has to establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. Further, burden of proof as mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. Whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 10 of 13 It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Adverting back to the facts of the present case, as now the plaintiff is seeking her 1/10th share (being ten brothers and sisters) in the suit property the legality of relinquishment deed, dated 10.09.1992, relied upon by the plaintiff need not to be discussed. With respect to the documents viz. General Power of Attorney, agreement to sell and recept, all dated 10.09.1992 allegedly executed by Sh. Hoti Lal and Sh. Roop Chand in favour of defendant number 1 qua the specific portion of theirs in the suit property, it can be safely said that these documents are not in accordance with legal mandate and as such their validity/enforceability is itself in question. Here, it is not out of place to emphasize that in Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana & Another (2012) 1 SCC 656, it has been clearly stated that SA/GPA/will transactions are not transfer or sales. Also, it needs to be pin pointed that the relevant provisions qua the Transfer of Property Act/Stamp Act/Registration Act viz. Section 53A and Section 54 of The Transfer of Property Act, 1882, Section 27 of the Stamp Act, 1899, Section 17 and Section 49 of The Registration Act, 1908 have not been followed and no documents in confirmation of these sections have been produced. Reliance is also placed upon Ameer Minhaj vs. Deirdre Elizabeth (Wright) Issar & Ors., (2018) 7 SCC 639, Balram Singh vs. Kela Devi, Civil Appeal No. 6733/2022 and M/s. Paul Rubber Industries Private Limited vs. Amit Chand Mitra & Anr., SLP (C) No. 15774/2022. Therefore, it can be CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 11 of 13 summarized/culled out that the aforesaid documents allegedly executed by Sh. Roop Chand and Sh. Hoti Lal relied upon by the defendant number 1 as such are not valid inasmuch as to transfer the right, title or interest in the suit property to the defendant number 1.
Further, admittedly plaintiff is not a party to the mediation settlement, dated 23.04.2012 or to the family settlement, dated 17.01.2014. Even otherwise, aforesaid family settlements including the affidavit, dated 10.09.1992 are not proved in accordance with Indian Evidence Act that is by producing witness in whose presence, it was executed or otherwise, so cannot be relied upon. It is to be noted that during the course of cross examination of DW1 and DW2, it is never mentioned that the defendants had given share to the plaintiff, except the mentioning of the fact that parents had already given the shares to their daughters including the plaintiff in support of which no relevant piece of the evidence has ever been produced before the Court by the defendants. Regarding the claim of defendants that all the parties/legal heirs have not been arrayed as parties to the present suit by relying upon the judgment that is Moreshar S/o Yadaorao Mahajan v Vyankatesh Sitaram Bhedi (D) Thr. Lrs. & Ors., Civil Appeal No. 5755-5756/2011, decided on 27.09.2002. It is to be noted that this case is different in the sense that the plaintiff in the present case right from the first date of filing of the plaint has never shied away from her duty to implicate all the legal heirs. During the course of final oral submissions, plaintiff has admittedly stated that her 1/10 th share be given to her as per law. Even in the written submissions filed by the plaintiff, this fact has been reiterated, accordingly in this case it is not the case that the plaintiff has sought something which she is not legally bound to seek. Again, defendants have never been able to disprove the factum of the constructive possession of the plaintiff. Therefore, in the totality of facts and circumstances and keeping in view the abovesaid discussion, both CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 12 of 13 these issues are decided in favour of plaintiff.
8. Accordingly, the suit of the plaintiff is decreed in the following terms:- (a) Plaintiff shall be entitled to 1/10 th each share in the suit property that is House Number 19, Village Ghonda, Shastri Park, Shahdara, Delhi. The preliminary decree of partition be passed accordingly. Defendants are directed to hand over the physical possession of 1/10 th each share in the suit property to the plaintiff. The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course.
(b) Further, the decree of permanent injunction is also passed in favour of plaintiff and against the defendants thereby defendants, their agents, servants, attorneys, legal heirs, etc. are restrained from selling, assigning, gifting, leasing, alienating or creating any third party interest in any manner or raising illegal construction in collaboration with builder in respect of suit property bearing House Number 19, Village Ghonda, Shastri Park, Shahdara, Delhi.
9. Preliminary decree sheet be prepared accordingly.
Digitally signed byMANU MANU VEDWAN VEDWAN Date: 2024.05.21 22:02:50 +0530 (Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 18th May, 2024 CS No. 476645/2015 Kalawati Vs. Jagannath & Ors. Page No. 13 of 13