Delhi District Court
Sh. Virender vs Smt. Savita on 12 April, 2019
IN THE COURT OF SHRI BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE05, SOUTH WEST
DWARKA COURTS, NEW DELHI
Civil Suit No: 911/17
IN THE MATTER OF
1. Sh. Virender
S/o Sh. Maman Singh
R/o House No. 122,
Village Daulatabad,
Tehsil District Gurgaon, (Haryana).
2. Sh. Jile Singh
S/o Sh. Medi Ram
R/o House No. 20,
New Roshanpura, Najafgarh,
New Delhi - 110043.
.......... Plaintiffs
versus
1. Smt. Savita
W/o Sh. Babu Ram
R/o V.P.O. Khaira,
Najafgarh, New Delhi - 110043.
2. Sh. Babu Ram
S/o Sh. Bishan Singh
R/o V.P.O. Khaira,
Najafgarh, New Delhi - 110043.
.......... Defendants
CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 1 of 28
Date of institution : 26.09.2017
Date when judgment reserved : 26.03.2019
Date of Judgment : 12.04.2019
SUIT FOR DECLARATION, PARTITION AND
PERMANENT INJUNCTION
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiffs for declaration, partition and permanent injunction against the defendants.
2. The case of the plaintiffs as set out in the plaint is summarized as under: 2.1. The Plaintiffs and defendant no.1 are joint owners and in joint possession of vacant plot measuring 1000 sq. yards in Khasra no. 164/1(010), 275(210) situated in the revenue estate of Village Khaira, Delhi State, Abadi known as extended Lal Dora plot of Village Khaira, Tehsil Najafgarh, New Delhi (hereinafter referred to as "suit property/suit land").
2.2. The plaintiffs have purchased undivided 1/6th share of CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 2 of 28 Smt. Ombati W/o Sh Ram Avtar R/o Village Khaira, New Delhi, the co sharer of defendant vide registered Sale Deed dated 02.03.2016 for a total sale consideration of Rs. 98,25,000/. After purchase of the suit property, the plaintiffs stepped into the shoes of Smt. Ombati and became cosharer of defendant no.1 in the suit property. 2.3. After the purchase of suit property, the plaintiffs and the defendant no.1 are in joint possession of the same and the plaintiffs are recorded in the revenue record of village Khaira vide order no. 580 dated 28.05.2016 in pursuance of order of Tehsildar concerned. 2.4. As per mutual agreement, the suit property is divided into two equal shares and plaintiffs have acquired possession of 1/6th share of the suit property admeasuring 500 sq. yards.
2.5. The defendant no.1 instead of complying the terms of the said settlement has been creating problems for the plaintiffs in their right, interest and enjoyment in the suit property and is not allowing the plaintiffs to construct their portion in their possession. The defendant no.1 has refused to recognize the purchase and settlement arrived at between the plaintiffs and defendants.
CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 3 of 28 2.6. The defendant no. 2 being the husband of defendant no.1 has also purchased a plot adjoining the suit property and has threatened the plaintiffs to exclude them from the suit property and wanted to dispossess them from the portion which has been occupied by the plaintiffs.
2.7. Therefore, the plaintiffs are no more interested to keep the suit property joint and they want to severe the joint status with regard to the suit property. The plaintiffs requested the defendants two months before to allot their 1/6th share but defendant no.1 avoided the same on one pretext or other and even she started construction over the suit property without the consent of the plaintiffs. Hence, the present suit.
3. The plaintiffs by way of present suit has prayed for following reliefs:
a) a decree of partition between the plaintiffs and the defendant no. 1 by metes and bunds of the suit property i.e. vacant plot measuring 1000 sq. yards in Khasra no. 164/1(010), 275(210) situated in the revenue estate of Village Khaira, Delhi State, Abadi known as extended Lal Dora plot of Village Khaira, Tehsil Najafgarh, New Delhi CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 4 of 28
b) a decree of declaration thereby declaring the plaintiffs as owners of half share in the suit property measuring 1000 sq. yards.
c) a decree of permanent injunction thereby restraining the defendants, their associates, agents, assignees, executors, administrators from interfering in the lawful possession of the plaintiffs in the suit property.
4. The defendants contested the suit by filing the joint written statement contending that: 4.1. The plaintiffs are neither the owners nor in possession of the suit property.
4.2. The defendants are owners and in physical possession of the property in question measuring 1000 sq. yards since 25 years and have never executed documents to create third party interest at any point of time.
4.3. The defendant no.1 is constructing the plot which is in her possession and the said plot was partitioned with other cosharer i.e. Smt. Ombati, who is wife of Sh. Ram Avtar, the real brother of defendant no.2. The property is divided as per family settlement since CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 5 of 28 long and therefore, defendants have every right to construct a residential accommodation in their own plot.
4.4. The defendants are having separate plot of 1000 sq. yards in the same khasra and defendant no.1 has no concern with the property of Smt. Ombati.
4.5. The plaintiffs have placed the forged and fabricated documents regarding purchase of the property owned by Smt. Ombati. It is denied that plaintiffs have purchased the undivided 1/6th share of Smt Omwati. It is also contended that the plaintiff never remained in possession of the land owned by Smt. Ombati.
4.6. The other contents of the plaint are stated to be wrong and denied and the defendants have prayed for dismissal of the suit.
5. No replication has been filed by the plaintiff to the written statement filed by the defendants.
6. From the pleadings of the parties, the following issues have been framed by the Ld. Predecessor vide order dated 07.11.2017 for adjudication : CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 6 of 28
(i) Whether the partition of the joint property has already taken place between defendant no.1 and Ombati? OPD.
(ii) Whether the plaintiff has never been in possession of her share of the suit property ? OPD.
(iii) Whether the suit property is the joint property of the plaintiff and defendant no.1 ? OPP.
(iv) If the answer to the aforesaid issue (issue no. iii) is in the affirmative, to what share the parties are entitled for ? OPP.
(v) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ? OPP.
(vi) Relief.
7. Vide order dated 26.03.2019, this Court while observing that no issue has been framed in this case with regard to contention of the defendants that suit is bad for non joinder of necessary parties, framed the following additional issue:
i) Whether the suit is bad for nonjoinder of the necessary parties ? OPD.
8. In order to prove their case, the plaintiff no. 1 (Sh. Virender) himself has stepped into the witness box as PW1 and filed his evidence CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 7 of 28 by way of affidavit which is Ex.PW1/1 reiterating the averments made in the plaint. During his deposition before the Court as PW1, the plaintiff no. 1 relied upon and exhibited the following documents: Ex. PW1/A : Site plan Ex. PW1/B : Copy of Sale deed dated 29.02.2016 Ex. PW1/C : Original Khatoni
9. It is relevant to point out that the plaintiff no. 2 (Sh. Jile Singh) has also filed his evidence by way of affidavit and his examinationin chief was also recorded on 01.12.2017 as PW2, however he could not be produced for his crossexamination and PE was closed without cross examination of PW2 Sh. Jile Singh on 30.07.2018 on the submission of the counsel for the plaintiff and the matter proceeded for defendant evidence. Later on, it was clarified by the Ld. Counsel for the plaintiffs that plaintiff no. 2 did not intend to be examined himself as a witness and accordingly examinationinchief of PW2 recorded on 01.12.2017 was discarded vide order dated 26.03.2019.
10. As against the evidence of PW1 (plaintiff no. 1), the defendant no. 2 (Babu Ram) produced himself in the witness box as DW1 as sole CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 8 of 28 witness on behalf of the defendants. He filed his evidence by way of affidavit Ex.DW1/A in consonance of averments made in the written statement.
11. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed on behalf of the defendants.
12. On the basis of material available on record, my issuewise findings are as under: Issue No. (i) Whether the partition of the joint property had already taken place between defendant no.1 and Ombati ?
13. The onus to prove this issue is on the defendants. From the pleadings of the parties and oral testimonies of PW1 (plaintiff no. 1) and DW1 (defendant no. 2), it has emerged out that the total land in Khasra No. 164/1(010), 275(210) situated in the revenue estate of Village Khaira, Delhi State, Abadi known as extended Lal Dora plot of Village Khaira, Tehsil Najafgarh, New Delhi is measuring 3000 sq. yards of which there are seven shareholders. The same is also evident from the Khatoni of Village Kharia, Delhi placed on record by the CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 9 of 28 plaintiff as Ex.PW1/C which has not been disputed by the defendants. The suit land measuring 1000 sq. yards is 1/3rd part of total land measuring 3000 sq. yards in the aforesaid khasras, which is jointly owned by the defendant no. 1 (Savita) and one Smt. Ombati as per the Khatoni Ex.PW1/C. Now, the plaintiffs have claimed to have purchased the share of Smt. Ombati in the suit land (1/6 th share in the total land of 3000 sq. yards) measuring 500 sq. yards vide registered Sale Deed dated 29.02.2016 registered on 02.03.2016 Ex. PW1/B and by virtue of the said purchase, they are now cosharer of defendant no. 1 in the suit land measuring 1000 sq. yards. The defendants have disputed the same and contended that they are the exclusive owners and in physical possession of the suit land measuring 1000 sq. yards which is separate land from the land of Smt. Ombati. It is also contended by the defendants that the land earlier jointly owned by the defendant no. 1 and Smt. Ombati was partitioned long back in a family settlement and now the defendant no. 1 has no concern with the plot of Smt. Ombati and they have separate plot of 1000 sq. yards in the same khasras of which they are exclusive owners and in possession of the same.
CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 10 of 28
14. The defendant no. 2 (Babu Ram) who is husband of defendant no. 1 (Savita) when appeared in the witness box as DW1 reiterated the aforesaid avements made in the written statement in his examinationin chief. In his crossexamination, the DW1 (defendant no. 2) stated that he has 500 sq. yards land in Khasra Nos. 164 & 275 in his name and the defendant no. 1 i.e. his wife Savita is also having 500 sq. yards in her name in the aforesaid khasras. He further categorically stated that the land in the name of defendant no. 1 is lying vacant and the same is still not partitioned and the same is still joint with the land of Kishan Kumar, Ram Avtar, Dharampal, Ranbir, Omwati, Savita and himself. Voluntarily, he stated that the land admeasuring 3000 sq. yards in the aforesaid khasra numbers is still undivided.
15. In this regard, PW1 (the plaintiff no. 1) though also stated in his crossexamination that the suit property which he has purchased was legally partitioned but in the same breathe he stated that he has not seen the partition documents at the time of purchase of the same. Not only this, in the later part of his crossexamination, PW1 contradicted his own statement of partition of suit land when he categorically stated that, CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 11 of 28 "It is correct that there was no settlement in respect of shares of the co sharer in the entire suit property of 3000 sq. yards". The Sale Deed Ex.PW1/B relied upon by the plaintiffs itself says that the plaintiffs have purchased the '1/6th undivided share of Smt. Ombati' out of total land measuring 3000 sq. yards in the above said khasras.
16. The aforesaid categorical admission of PW1 (plaintiff no. 1) and DW1 (defendant no. 2) makes it crystal clear that the land of 3000 sq. yards in the Khasra Nos. 164/1 (010) and 275 (210) of which there are seven cosharers/shareholders including the defendant no. 1 is a joint property of the said seven shareholders as shown in Khatoni Ex.PW1/C and same is still undivided and has yet not been partitioned. Therefore, the plea taken by the defendants in the written statement that the land of defendant no. 1 was partitioned with the land of her cosharer Smt. Ombati in a family settlement is without any merit. Even otherwise, the defendants have not been able to show that any such family settlement took place long back by which land of defendant no. 1 with her cosharer Smt. Ombati had been partitioned. Similarly, there is no iota of evidence on behalf of the defendants to substantiate their plea that they are having CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 12 of 28 separate plot of 1000 sq. yards in the aforesaid khasras which has no concern with the plot of Smt. Ombati. Rather from the cross examination of DW1 (defendant no. 2), it has come on record that the land of defendant no. 1 is still joint with the land of other cosharers of total land measuring 3000 sq. yards including Smt. Ombati. Hence, it cannot be said that partition of the joint land/property has already taken place between Smt. Ombati and defendant no. 1. Accordingly, this issue is decided against the defendants.
Issue no. (ii) Whether the plaintiffs have never been in possession of their share of the suit property?
17. The onus to prove this issue is again on the defendants. In the present case, the plaintiffs have pleaded that after purchase of 1/6th undivided share of Smt. Ombati, they stepped into the shoes of Smt. Ombati and became cosharer of defendant no. 1 in the suit land measuring 1000 sq. yards. The plaintiffs have further pleaded that after the purchase, they along with the defendant no. 1 are in joint possession of suit land and as per mutual settlement, the suit land was divided in two equal share and they have acquired possession of 1/6th share of the CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 13 of 28 suit property admeasuring 500 sq. yards.
18. The defendants in the written statement have not only disputed the ownership of the plaintiffs over the plot of land owned by Smt. Ombati but they have also specifically denied the possession of the plaintiffs over the said plot of land and claimed that the plaintiff have never been in possession of the same.
19. The plaintiff no. 1 as PW1 reiterated in his examinationin chief that they (the plaintiffs) along with defendant no. 1 are in joint possession of suit land after purchasing the 1/6th undivided share of land of Smt. Ombati, however, in his crossexamination, PW1 (plaintiff no.
1) categorically stated that he has never taken physical possession of the suit property. He further stated in the later part of his crossexamination that he did not see or inquire about the suit property prior to its purchase nor he saw the suit property after its purchase even. He further stated that he cannot tell the persons who are on four sides of the suit property.
20. These statements made by PW1 (plaintiff no. 1) in his cross examination clearly suggest that the plaintiffs have never visited the suit property before its purchase or even after its purchase nor they have seen CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 14 of 28 the suit property. In these facts, when the plaintiffs have never visited the suit property nor they have seen it, their claim of possession over the same has no legs to stand and the said claim of the plaintiffs proves to be false in view of categorical admission of the plaintiff no. 1 that he has never taken the physical possession of the suit property. The plaintiffs even have not produced any iota of evidence to show that any such mutual settlement took place between them and the defendants by which they came into possession of 500 sq. yards of suit land. Thus, the case of the defendants stands proved that the plaintiffs have never been in possession of the suit property. Accordingly, this issue is decided in favour of the defendants and against the plaintiffs.
Issue No. (iii) & Additional Issue No. (i) Whether the suit property is the joint property of the plaintiff and defendant no. 1 ?
& Whether the suit is bad for nonjoinder of the necessary parties ?
21. These issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. The onus to prove the issue no. (iii) is on the plaintiffs and to prove the CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 15 of 28 addition issue no. (i) is on the defendants.
22. The facts of the case are within the narrow compass. The case of the plaintiffs is that they are joint owners/cosharer along with defendant no. 1 of the suit land measuring 1000 sq. yards after purchasing the 1/6th share of Smt. Ombati in the suit land vide registered Sale Deed Ex.PW1/B and after the purchase they have stepped into the shoes of Smt. Ombati and became owners of 1/6th share of Smt. Ombati in the total land admeasuing 3000 sq. yards. It is further case of the plaintiffs that they have acquired the possession of their 1/6th share i.e 500 sq. yards in a mutual settlement arrived at between them and the defendant no. 1 and now the defendant no. 1 is not honouring the said mutual settlement and is creating obstruction in the peaceful possession and enjoyment of the plaintiffs in their portion and therefore, they do not want to keep the suit land joint with defendant no. 1 and are seeking partition of the same by metes and bounds by way of present suit.
23. While the defendants have contended that the plaintiffs are neither the owners nor in possession of the suit land. The defendants CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 16 of 28 have claimed their ownership over the suit land contending that it is a separate land from the land of Smt. Ombati. It is also claimed by the defendants that the land which was earlier jointly owned by defendant no. 1 and Smt. Ombati had already been partitioned in a family settlement and the suit land has no concern with the land of Smt. Ombati.
24. During course of the arguments as well as in the written arguments, Ld. Counsel for the defendants has vehemently argued that the plaintiffs have not been able to prove their ownership over the suit land or that Smt. Ombati has sold her undivided 1/6th share to them vide Sale Deed Ex.PW1/B. In this regard, the Ld. Counsel drew my attention towards the statement of PW1 (plaintiff no. 1) in his crossexamination where he stated that the suit property i.e. 1000 sq. yards in Khasra no. 164/1(010), 275(210) situated in the revenue estate of Village Khaira, Delhi State, Abadi known as extended Lal Dora plot of Village Khaira, Tehsil Najafgarh, New Delhi - 110018 was purchased by him from Smt.Ombati W/o Ram Avtar for the total sale consideration of Rs. 60 lacs which was paid in cash to Ombati. The Ld. Counsel has submitted CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 17 of 28 that in the Sale Deed Ex.PW1/B, on the basis of which the plaintiffs have claimed to have purchased the share of Smt. Ombati, the sale consideration amount has been shown as Rs. 98,25,000/ out of which Rs. 11,00,000/ has been paid by way of cheque and balance amount of Rs. 87,25,000/ has been paid in cash, and highlighting this discrepancy in the sale consideration amount and the mode of payment of the same, the Ld. Counsel for the defendants has claimed the sale deed Ex.PW1/B to have been forged and fabricated by the plaintiffs.
25. Of course, there is discrepancy with regard to the sale consideration amount as PW1 (the plaintiff no. 1) has stated in the cross examination that he purchased the property from Smt. Ombati for a sale consideration of Rs. 60 lacs which has been paid in cash to Smt. Ombati, while in the registered Sale Deed placed on record by the plaintiffs as Ex.PW1/B, sale consideration amount has been shown as Rs. 98,25,000/, however it cannot be ignored that the Sale Deed Ex. PW1/B placed on record by the plaintiffs is a registered document duly registered with the Sub Registrar IX, New Delhi. Only because there is discrepancy in telling the sale consideration amount by PW1 (the CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 18 of 28 plaintiff no. 1) in his crossexamination, it cannot be concluded that the sale deed Ex.PW1/B is forged and fabricated document.
26. It is pertinent here to note that in the whole crossexamination of PW1, the Ld. Counsel for the defendant has not given any suggestion that Smt. Ombati has not sold her 1/6th undivided share measuring 500 sq. yards to the plaintiffs or that she has not executed the Sale Deed Ex.PW1/B in favour of the plaintiffs. Even there is not a single suggestion to PW1 that Sale Deed Ex.PW1/B is forged and fabricated document. Furthermore, DW1 (the defendant no. 2) in his cross examination categorically stated that he came to know during the pendency of the present suit that Omwati has sold her share to the plaintiffs.
27. In these facts and circumstances and keeping in view of registered Sale Deed Ex.PW1/B executed between Smt. Ombati and the plaintiffs, it stands proved that the plaintiffs have purchased the vacant plot 1/6 undivided share of Smt.Ombati out of Khasra Nos. 164/1 (010), 275 (210) Total land measuring 3 bighas situated in the revenue estate of Village Khaira, Delhi State, Delhi, abadi known as Extended Lal Dora CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 19 of 28 of Village Khaira, Tehsil Najafgarh, New Delhi and they became owners of the 1/6th share of Smt. Ombati.
28. So far as the claim of plaintiffs that after the purchase they have acquired the possession of the aforesaid vacant plot 1/6th undivided share of Smt. Ombati as per mutual settlement arrived at between them and the defendant no. 1 is concerned, it has already proved on record under Issue No. (ii) that the plaintiffs have never been in possession of the said plot of land and said claim of the plaintiffs is false.
29. It has also come on record from the oral testimonies of PW1 (the plaintiff no. 1) and DW1 (defendant no. 2) as noted herein above under Issue No. (i) that the aforesaid land measuring 3000 sq. yards in Khasra No. 164/1 (010), 275 (210) situated in the revenue estate of Village Khaira, Delhi State, Delhi, abadi known as Extended Lal Dora of Village Khaira, Tehsil Najafgarh, New Delhi is still undivided and has yet not been partitioned among its shareholders/cosharers and is a joint property.
30. Admittedly, the suit land measuring 1000 sq. yards is 1/3rd part of total land measuring 3000 sq. yards in the aforesaid Khasras. The CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 20 of 28 Khatoni Ex.PW1/C placed on record by the plaintiffs which is not in dispute finds mention the name of shareholders/cosharers of the total land in the aforesaid Khasras with their respective share, as per which there are seven cosharers of the total land measuring 3000 sq. yards, namely, (1) Ranbir, (2) Krishan and (3) Dharampal (having 1/3rd share i.e. 1/9th share each), (4) Ombati and (5) Savita (having 1/3rd share i.e. 1/6th share each), (6) Babu Ram (1/6th share) and (7) Sher Singh (1/6th Share). The suit land is 1/3rd part of the total land of 3000 sq. yards in the name of Smt. Ombati and defendant no. 1 as per Khatoni Ex.PW1/C. It has already proved on record that the plaintiffs have purchased the 1/6th share of Smt. Ombati vide Sale Deed Ex.PW1/B and they became the cosharer of defendant no. 1 in the suit land measuring 1000 sq. yards.
31. The plaintiffs by way of present suit, inter alia, are seeking partition of the suit land which is admittedly 1/3 rd part of total land measuring 3000 sq. yards which is a joint property of its seven shareholders and still undivided and unpartitioned among its shareholders. As per Khatoni Ex.PW1/C, the defendant no. 1 (Savita) CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 21 of 28 and defendant no. 2 (Babu Ram) are cosharers of the joint property i.e. total land measuring 3000 sq. yards having 1/6 th share each i.e 500 sq. yards each in their name. This is so stated by DW1 (defendant no. 2) as well in his crossexamination when he stated that he has 500 sq. yards land in Khasra Nos. 164 & 275 in his name and his wife Savita is also having 500 sq. yards in her name in the aforesaid khasras. He also stated that Mr. Ram Avtaar is his younger brother and Smt. Omwati is the name of his wife who is also having 500 sq. yards land in her name in the aforesaid Khasras. The plaintiffs in the present case have only impleaded the defendants and have not impleaded the other five co sharers of the total undivided land measuring 3000 sq. yards as shown in Khatoni Ex.PW1/C.
32. In these facts, where the plaintiffs are seeking partition of the suit property (land measuring 1000 sq. yards) which is a part of joint property (total land measuring 3000 sq. yards) of seven shareholders including the plaintiffs and the defendants, question arises as to whether the present suit in the present form is maintainable without impleadment of other cosharers of the total land apart from the defendants. The CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 22 of 28 answer lies in negative.
33. In a suit for partition of a joint property, all its claimants/shareholders are necessary parties and they are required to be impleaded in such a suit. In the absence of all the claimants, no effective order or decree can be passed of partition of the joint property and the property cannot be partitioned by metes and bounds.
34. Similar is the position in the present case. In the absence of other cosharers as shown in Khatoni Ex.PW1/C of the joint land, the suit property cannot be partitioned by metes and bound. Even in the absence of other cosharers, the share of each shareholder is not identifiable.
35. Though the plaintiff has shown the suit property in the site plan Ex.PW1/A in red colour of which they along with the defendant no. 1 are cosharers. However, perusal of site plan Ex.PW1/A shows that the plaintiffs have not demarcated the portion of land measuring 500 sq. yards which was earlier owned by Smt. Ombati and which has come in their share vide Sale Deed Ex.PW1/B. From the site plan Ex.PW1/A, it is not deducible that which portion of suit land (i.e. land measuring 500 CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 23 of 28 sq. yards) is owned by the plaintiffs and which portion of suit land (i.e. land measuring 500 sq. yards) is owned by defendant no. 1. There is no demarcation at all of the land in Khasra No. 164/1(010), 275(210) situated in the revenue estate of Village Khaira, Delhi State, Abadi known as extended Lal Dora plot of Village Khaira, Tehsil Najafgarh, New Delhi, to determine as to which portion of land had fallen into the share of Smt. Ombati and which has been specifically purchased by the plaintiffs.
36. In this regard, PW1 (plaintiff no. 1) categorically admitted in his crossexamination that the site plan Ex. PW1/A does not bear the specification for the land of Omwati. He further admitted that the site plan does not clarify the portion of each of the 6 individuals. He further admitted that no share of defendant no. 1 Savita and defendant no. 2 has been shown in the site plan Ex. PW1/A.
37. In view of aforesaid position when the site plan Ex.PW1/A does not specify the land owned by Smt. Ombati, the portion of land measuring 500 sq. yards purchased by the plaintiffs from Smt. Ombati is not identifiable. The plaintiffs even have not shown the share of CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 24 of 28 defendants and other cosharerer of total land measuring 3000 sq. yards. In the absence thereof, I have no hesitation to hold that cosharers as shown in the Khatoni Ex.PW1/C apart from the defendants are necessary parties to the present suit without whom the share of each of the shareholder is not identifiable and partition of the joint property cannot be done effectively.
38. Order 1 Rule 9 CPC provides as under: Misjoinder and nonjoinder - No suit shall be defeated by reason of the misjoinder or nonjoinder of parties, and the Court may in every suit deal with the matter in controversy so far as regard the rights and interests of the parties actually before it :
(provided that nothing in this rule shall apply to nonjoinder of a necessary party)
39. The aforesaid provision makes it clear that the suit cannot be defeated by reason of misjoinder and nonjoinder of parties, however the proviso to Rule 9 clarifies that it will have no applicability to non joinder of a necessary party. A necessary party is one without whom no order can be effectively made. It is a fundamental law that all the parties which are necessary in the suit must be arrayed so that the real issues CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 25 of 28 between the parties can be determined. A party will be necessary defendant if there is a right to relief against him in respect of the suit matter and his presence is necessary for the factual and complete adjudication of all the questions involved in the suit.
40. Since the plaintiffs have failed to implead other cosharers of the joint land who are the necessary parties to the present suit being co sharers of the total land measuring 3000 sq. yards in Khasra No. 164/1(010), 275(210) out of which the plaintiffs have purchased 1/6th share of Smt. Ombati, the suit is bad in law for nonjoinder of necessary parties and is not maintainable in the present form without impleadment of other cosharers in the present suit and consequently the suit is bound to fail. Hence, additional issue no. (i) is decided in favour of the defendants and against the plaintiffs.
41. With regard to issue no. (iii), I am of the considered opinion that though the plaintiffs have been able to prove that they became co sharers along with defendant no. 1 of the suit land measuring 1000 sq. yards but in the absence of any demarcation or specification of share of each of the cosharer in the joint property, it is not ascertainable that CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 26 of 28 which portion of land belongs to whom and it cannot be said that the suit property out of the total land is the joint property of plaintiffs and defendant no. 1 only. Hence, this issue is decided against the plaintiffs.
Issue no. (iv) If the answer to the aforesaid issue (issue no. iii) is in the affirmative, to what share the parties are entitled for ?
42. I have already held under issue no. (iii) and additional issue no. (i) that the plaintiffs are cosharers along with defendant no. 1 in the suit land after purchasing the 1/6th share of Smt. Ombati in the suit land vide Sale Deed Ex.PW1/B and the plaintiffs and the defendant no. 1 are having equal share in the suit land measuring 1000 sq. yards, however in the absence of other cosharers of the joint land measuring 3000 sq. yards who have not been made party to the present suit, the share of the parties cannot be decided at this stage. Hence, this issue is decided accordingly.
Issue no. (v) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ?
43. As I have already held under issue no. (ii) that the plaintiffs are CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 27 of 28 not in possession of the suit property and in fact they have never been in possession of the suit property, the plaintiffs cannot be said to be entitled for permanent injunction as prayed for in the prayer clause. Hence, this issue is decided against the plaintiffs.
RELIEF
44. As a sequel to my findings under the additional Issue No. (i) and Issue No. (iii) & (v), the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
45. File be consigned to Record Room after necessary compliance. Announced in the open Court (Balwant Rai Bansal) th on 12 April, 2019 Addl. District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 911/17 Viender & Anr. vs. Savita & Anr. Page 28 of 28