Delhi District Court
Sh. Ashfaq Ahmed vs Sh. Shiv Prasad (Deceased) on 26 October, 2012
IN THE COURT OF MS. RUCHI AGGARWAL,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Unique ID No. 02401C0014191994
Suit No. 94/1994
Sh. Ashfaq Ahmed,
S/o Sh. Ishaq Ahmed,
R/o House NO. 1709, Gali Madarsa,
Mir Jumla, Bazar Lal Kuan,
Delhi.
PLAINTIFF.
Versus
1 Sh. Shiv Prasad (Deceased)
through LRs:
i) Sh. Leela Pat
ii) Sh. Des Raj
iii) Sh. Bhoj Raj
iv) Sh. Naval Kishore
v) Sh. Pradeep Kumar
Sons of Late Sh. Shiv Prasad.
vi) Ms. Beena Kumari
vii) Ms. Indra
viii) Ms. Renu
Daughters of Late Sh. Shiv Prasad
All R/o 3-C, SG Pocket, Dilshad Garden,
Delhi-95.
2 Sh. Bhagwan Dass S/o Late Sh. Mohan Lal
3 Sh. Madan Lal S/o Late Sh. Mohan Lal
4 Sh. Sewa Ram S/o Late Sh. Mohan Lal
Defendant nos. 2 to 4 R/o house No. 1715,
Basti Julahan, Sadar Nala Road, Delhi.
Suit No. 94/1994 Page 1 of 25
5 Sh. Kewal Krishan (deceased)
through LRs
i) Smt. Kamla Rani W/o Late Kewal Krishan
ii) Sh. Ved Prakash S/o Late Kewal Kishan
iii) Sh. Girdhari Lal S/o Late Kewal Krishan
iv) Sh. Hira Lal S/o Late Kewal Krishan,
v) Ms. Neetu D/o Late Kewal Krishan,
vi) Ms. Anita D/o Late Kewal Krishan,
R/o F-88, Wazirpur J.J. Colony, Delhi.
vii) Sh. Joginder Kumar S/o Late Kewal Krishan,
R/o Z-Block, Prem Nagar, Part-II, Naraina Vihar,
Kinari Nahar, Nangloi, Delhi-41.
viii) Sh. Chunni Lal S/o Late Sh. Kewal Krishan,
R/o Jhuggis Near Britania Factory, behind
Lawrence Road, Pump House, Delhi-110052.
ix) Smt. Gurmala D/o Late Sh. Kewal Krishan,
W/o Sh. Suresh Kumar, R/o 1073, Patli Gali,
Khari Kuan, Idgah Road, Sadar Bazar, Delhi.
x) Smt. Laxmi W/o Sh. Lalit Kumar D/o Late Kewal Krishan
R/o House No. AB-205, Amar Puri, Ram Nagar, Delhi-5.
xi) Smt. Meenu W/o Sh. Hari Ram D/o Late Kewal Krishan
R/o 2011, Basti Julehan, Sadar Bazar, Delhi.
6 Sh. Bhagwat Kishore S/o Sh. Mohan Lal,
R/o House No. M-38, Gali Dak Khana,
Anand Parbat, New Delhi.
7 Smt. Maya Devi W/o Sh. Nazir Chand,
R/o House No. E-45/1, Gali No. 7, Shastri Park,
Delhi.
Suit No. 94/1994 Page 2 of 25
8 Smt. Padma Devi W/o Sh. Padam Chand,
R/o K-35, J.J. Colony, Ashok Vihar, Delhi.
9 Sh. Bhim Sain (deceased)
through his LRs:-
i) Krishna Rani W/o Late Sh. Bhim Sain
ii) Vinod Kumar S/o Late Sh. Bhim Sain
iii) Karam Chand S/o Late Sh. Bhim Sain
iv) Bhagwat Swaroop S/o Late Sh. Bhim Sain
v) Gulshan Kumar S/o Late Sh. Bhim Sain
All R/o House No. 5/A-1, Gali No. 7,
Sant Nagar, Delhi-110009.
vi) Mrs. Chhama Rani D/o Late Sh. Bhim Sain
vii) Mrs. Bhawna D/o Late Sh. Bhim Sain
viii)Smt. Saraswati D/o Late Sh. Bhim Sain
All R/o House no. 5/A-1, Gali No. 7,
Sant Nagar, Delhi-110009. DEFENDANTS
Date of institution:15.02.1994
Date of reserving of judgment:09.10.2012
Date of pronouncement of judgment:26.10.2012
JUDGMENT
The plaintiff has filed the present suit against the defendants for possession.
Plaintiff's version:-
2. The plaintiff has stated in the plaint that he is the absolute owner of 8/9th share in the property bearing municipal Suit No. 94/1994 Page 3 of 25 no. VII/2141 (new) consisting of one room, tin shed, open courtyard on the ground floor with roof of the property, along with one room built on the roof of the said property as shown in red colour in the site plan annexed herewith and having a common passage and stairs shown in green colour with proportional land underneath out of the total land admeasuring 23 sq. yds. situated at Gali Peerji Wali, Mohalla Rodgaran, Lal Kuan, Delhi and bounded as under:-
North: Property no. VII/2142 and part of property no.
VII/2165-66.
South: Property no. VII/2140 and VII/2139
East: Common passage
West: Property no. VII/2165-66
3. He has further stated in his plaint that he had purchased the suit property from defendant nos. 1 to 8 vide registered Sale Deed which was registered on 03.03.1992 as document no. 1356, Addl. Book no. I, Vol. No. 5666 at pages 150 to 155.
4. The plaintiff has alleged that defendant nos. 1 to 6 and 9 are the brothers and defendant nos. 7 and 8 are their sisters.
5. The plaintiff has further alleged that at the time of purchase of the suit property the entire property was under the Suit No. 94/1994 Page 4 of 25 tenancy of M/s. Uneek Industries (India) and about two months after the purchase of the property, the said tenant handed over its vacant, physical and peaceful possession to the plaintiff on 30.04.1992. He has further contended that after taking the possession from the tenant, he put his own locks over the suit property.
6. It is the case of the plaintiff that on 06.07.1993, he was surprised to see that defendant nos. 1 to 8 were in occupation of the suit property and had put their locks on the same. It is further the case of the plaintiff that he rushed to police station, Hauz Qazi, Delhi to lodge a complaint but the police refused to register it and despite running from pillar to post, the plaintiff was unsuccessful in getting the complaint lodged.
7. It is also the case of the plaintiff that defendant no. 9 is also the brother of defendant nos. 1 to 8 and is living in property no. 2144 in the same gali and had an evil eye on the suit property. He had even filed a suit for permanent injunction against the plaintiff which is still pending in the court of Ms. Kamini Lau, the then Ld. Sub-Judge, Delhi to pressurise him to yield his illegal demands. He has further stated in the plaint that defendant no. 9 took possession of the room on the ground floor as marked 'A' in the site plan from defendant nos. 1 to 8 in Suit No. 94/1994 Page 5 of 25 the second week of January 1994. He has also stated that defendant nos. 1 to 8 had taken forcible possession of the suit property at the instance of defendant no. 9.
8. Since all the defendants are liable to vacate the suit property, the plaintiff has filed the present suit for possession against them.
Version of defendant nos. 1 to 3:-
9. Defendant nos. 1 to 3 have contended the suit of the plaintiff on the following grounds:-
(i) The plaintiff has no locus standi to file the present suit and therefore, the suit is not maintainable.
(ii) The plaintiff has no cause of action to file the present suit and therefore, the present suit is not maintainable.
(iii) That this court has no pecuniary jurisdiction to entertain the present case as the value was more than Rs. 2 Lacs at the time of filing of the suit and therefore, the suit is not maintainable.
(iv) The suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction.Suit No. 94/1994 Page 6 of 25
(v) That the suit of the plaintiff is barred by time.
(vi) It is the case of defendant nos. 1 to 3 that the property was agreed to be purchased by the plaintiff from defendant nos. 1 to 8 for a total consideration of Rs. 1,95,000/- but the plaintiff had paid only Rs. 25,000/- as part payment. The agreement and receipt dated 05.09.1990 were witnessed by two witnesses namely, Sh. Abdul Sattar and Shri Moti Lal. The agreement and the receipt were kept by the plaintiff and copies of the same were not supplied to the defendants.
(vii) It further the case of defendant nos. 1 to 3 that the alleged sale deed dated 03.03.1992 is illegal, invalid, collusive, forged and malafide as the same has been got registered by the plaintiff in the absence of the defendants and the plaintiff has not even paid the balance amount of Rs. 1,70,000/- and the defendants never handed over the possession of the suit premises to the plaintiff.
(viii) Defendant nos. 1 to 3 have further stated that the plaintiff had got the sale deed executed by defendant nos. 1 to 8 on 27.12.90 by concealing the true facts and content from the defendants and since the defendants are poor, simple and uneducated people, they signed the sale deed in good faith without knowing the contents of the sale deed and now the Suit No. 94/1994 Page 7 of 25 plaintiff is taking undue advantage of the simplicity and honesty of the defendants.
(ix) Defendant nos. 1 to 3 have further stated that the defendants have been in continuous undisturbed possession of the suit property.
10. On merits, defendant nos. 1 to 3 have denied all the allegations of the plaintiff and have stated that the suit of the plaintiff should be dismissed with special costs.
Version of defendant nos. 4 to 7:-
11. Defendant nos. 4 to 7 have contended the suit of the plaintiff on the following grounds:-
(i) The plaintiff has no locus standi to file the present suit and therefore, the suit is not maintainable.
(ii) The plaintiff has no cause of action to file the present suit and therefore, the present suit is not maintainable.
(iii) That this court has no pecuniary jurisdiction to entertain the present case and therefore, the suit is not maintainable.Suit No. 94/1994 Page 8 of 25
(iv) The suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction.
(v) That the suit of the plaintiff is barred by time.
(vi) It is the case of defendant nos. 4 to 7 that the property was agreed to be purchased by the plaintiff from defendant nos. 1 to 8 for a total consideration of Rs. 1,95,000/- but the plaintiff had paid only Rs. 25,000/- as part payment. The agreement and receipt dated 05.09.1990 were witnessed by two witnesses namely, Sh. Abdul Sattar and Shri Moti Lal. The agreement and the receipt were kept by the plaintiff and copies of the same were not supplied to the defendants.
(vii) It further the case of defendant nos. 4 to 7 that the alleged sale deed dated 03.03.1992 is illegal, invalid, collusive, forged and malafide as the same has been got registered by the plaintiff in the absence of the defendants and the plaintiff has not even paid the balance amount of Rs. 1,70,000/- and the defendants never handed over the possession of the suit premises to the plaintiff.
(viii) Defendant nos. 4 to 7 have further stated that the plaintiff had got the sale deed executed by defendant nos. 1 to 8 on 27.12.90 by concealing the true facts and content from the Suit No. 94/1994 Page 9 of 25 defendants and since the defendants are poor, simple and uneducated people, they signed the sale deed in good faith without knowing the contents of the sale deed and now the plaintiff is taking undue advantage of the simplicity and honesty of the defendants.
(ix) Defendant nos. 4 to 7 have further stated that the defendants have been in continuous undisturbed possession of the suit property.
(x) Defendant nos. 4 to 7 have also stated that defendant no. 9 had filed a suit against defendant no.s 1 to 8 for partition and vide order dated 15.05.1991, the property was partitioned.
12. On merits, defendant nos. 4 to 7 have denied all the allegations of the plaintiff and have stated that the suit of the plaintiff should be dismissed with special costs.
Version of defendant no. 9:-
13. Defendant no. 9 has contended the suit of the plaintiff on the following grounds:-
(i) That this court has no pecuniary jurisdiction to entertain the present case as the value of the suit property is more than Rs. 4 Suit No. 94/1994 Page 10 of 25 Lacs and therefore, the suit is not maintainable.
(ii) The suit of the plaintiff has not been properly valued for the purposes of court fees and jurisdiction.
(iii) That the suit of the plaintiff is barred by time.
(iv) It is the case of defendant no. 9 that the plaintiff had negotiated the sale of 8/9th share of the suit property with defendant nos. 1 to 8 but the sale did not materialise as the plaintiff played fraud upon defendant nos. 1 to 8 by not paying the agreed consideration. It is further the case of defendant no.
9 that the plaintiff, in collusion with the staff at the Sub- Registrar's office also got some documents registered without the presence of the executants.
(v) The defendant no. 9 has also denied that the suit property was ever in occupation of a tenant namely M/s Uneek Industries (India). It is his case that the suit property is a joint family property and that defendant no. 9 has been staying in the same since his birth in 1941.
14. On merits, defendant no.9 has denied all the allegations of the plaintiff and has stated that he has been in continuous possession of the suit property and therefore, the Suit No. 94/1994 Page 11 of 25 suit of the plaintiff should be dismissed with heavy costs.
15. Replications to the written statements have been filed by the plaintiff, wherein, he has denied the contents of the written statements and has reiterated and reaffirmed the contents of the plaint.
16. All the defendants were duly served. However, defendant no. 8 did not appear despite due service and was proceeded exparte vide order dated 24.05.1994. All the other defendants except defendant no. 9 also stopped appearing and were proceeded exparte vide order dated 22.03.2002. Thereafter, defendant no. 9 also did not appear and was proceeded exparte vide order dated 21.05.2002. However, he filed an application under Order 9 Rule 7 CPC for setting aside the exparte order which was allowed vide order dated 27.02.2003 and thereafter, the suit was contested by him.
17. From the pleadings of the parties, vide order dated 08.09.1995, following issues were framed:-
1. Whether the suit is properly valued for the purposes of C.F. and jurisdiction? OPP
2. Whether this court has no pecuniary jurisdiction? OPD Suit No. 94/1994 Page 12 of 25
3. Whether the suit is time barred? OPD
4. Whether any fraud has been committed on the defdt?
OPD
5. Whether the full consideration was not paid by the pltf to the defdt? OPD
6. Whether the pltf is entitled for the relief claimed? OPP
7. Relief.
18. The defendants had led their evidence before the plaintiff and in order to prove their case defendant nos. 1, 2 and 3 examined defendant no.1 as DW-1 and defendant no. 9 examined Sh. Bhagwat Swaroop as DW2. On the other hand, the plaintiff examined himself as PW-1 and Sh. Ilyas Ahmed as PW-2.
19. After conclusion of trial, final arguments were addressed by the Ld. Counsels for the plaintiff and defendant no.9.
20. I have carefully gone through the case file and given my considered thoughts to the arguments addressed by the Ld. Counsels for the plaintiff and defendant no.9. My findings on various issues are as under:-
Suit No. 94/1994 Page 13 of 25ISSUE NO. 1.
Whether the suit is properly valued for the purposes of C.F. and jurisdiction? OPP
21. Onus to prove this issue was on the plaintiff. PW1 deposed that "the suit property was purchased by the deponent for Rs.25,000/- in the year 1992 and the house is not in good condition and the area/land underneath land measuring 23 Sq. Yds. The present suit was filed in the year 1994. The property in suit was valued by the deponent at Rs.30,000/- which was the market value of the said house at that time." Even in his cross examination, he deposed that "the value of the suit property at the time when I filed the suit was around Rs. 30,000/-. I cannot produce any instance where the similar property was sold for Rs.30,000/-. It is further wrong to suggest that the value of the suit property at the time of filing of suit was around Rs.4 Lacs."
22. From the deposition of PW1, it is clear that the suit property was valued by him at Rs.30,000/-, however, he has not been able to prove that any similar property was sold at Rs. 30,000/-. However, it is the case of the defendants that the value of the property was much more than Rs.30,000/- and therefore the plaintiff has not properly valued the suit for the Suit No. 94/1994 Page 14 of 25 purposes of court fee and jurisdiction. Therefore, the onus to prove that the value of the property was more than Rs.30,000/- shifts upon them. However, even they have not led any evidence or placed on record any document to prove that the value of the property was much more than Rs.30,000/-.
23. It is a well established principle of law that the facts mentioned in the plaint are deemed to be true unless proved otherwise. Since, the plaintiff had mentioned that the value of the property was Rs.30,000/- and neither of the defendants has been able to prove otherwise, the plaintiff has been able to discharge his onus and accordingly this issue is decided in favour of the plaintiff.
ISSUE NO. 2.
Whether this court has no pecuniary jurisdiction? OPD
24. Onus to prove this issue was placed upon the defendant. Since issue no.1 has been decided in favour of the plaintiff and against the defendants and it has been concluded that the plaintiff has rightly valued the property at Rs.30,000/-, this court has the pecuniary jurisdiction and accordingly, this issue is decided in favour of the plaintiff and against the defendants.
Suit No. 94/1994 Page 15 of 25 ISSUE NO. 3Whether the suit is time barred? OPD
25. Onus to prove this issue was placed upon the defendant. However, the defendant has not led any evidence or placed on record any document to prove that the suit is time barred.
26. Perusal of record reveals that the suit was filed on 14.02.1994 and as per the plaint, the cause of action arose on 06.07.1993 when the plaintiff noticed unauthorised possession of the property by defendant nos. 1 to 8. It is further stated in the plaint that the cause of action again arose in the second week of January, 1994 when defendant no. 9 took illegal possession of the room Mark-A on the ground floor. As defendants have not led any evidence, proving that the cause of action arose on any other date to bring the suit outside the period of limitation, the defendants have not been able to discharge their onus and accordingly, this issue is decided against the defendants.
Suit No. 94/1994 Page 16 of 25 ISSUE NO. 4Whether any fraud has been committed on the defdt?
OPD
27. Onus to prove this issue was placed upon the defendant. In order to discharge its onus, DW-1 deposed that "
there was a transaction for the sale of suit property for consideration of Rs. 1,95,000/-. We received only Rs. 25,000/- out of the total consideration. The balance of Rs. 1,70,000/- was to be paid before the Sub-Registrar at the time of registration of sale deed. We never appear before the registrar for registration of the sale deed. We have also not received the balance amount of Rs. 1,70,000/-...no sale deed was ever registered before Sub-Registrar in our presence." It is the case of the defendants that since they did not get the sale deed registered with the Registrar, the plaintiff played fraud upon the defendants and got it executed in their absence. However, the defendants have only vaguely deposed that fraud has been committed upon the defendants and have not led any corroborative evidence or placed on record any document to prove that fraud has been committed upon them.
28. They have not even placed on record any document to prove that the total consideration was Rs. 1,95,000/- and there was still a balance of Rs. 1,70,000/- to be paid. He has Suit No. 94/1994 Page 17 of 25 not even proved that he and the other defendants had not accompanied the plaintiff to the office of the Registrar to get the sale deed executed. Therefore, the defendants have not been able to discharge their onus and accordingly, this issue is decided against them.
ISSUE NO. 5Whether the full consideration was not paid by the pltf to the defdt? OPD
29. Onus to prove this issue was upon the defendant. In order to discharge its onus, DW-1 deposed that " there was a transaction for the sale of suit property for consideration of Rs. 1,95,000/-. We received only Rs. 25,000/- out of the total consideration. The balance of Rs. 1,70,000/- was to be paid before the Sub-Registrar at the time of registration of sale deed. We never appear before the registrar for registration of the sale deed. We have also not received the balance amount of Rs. 1,70,000/-". However, defendants have not even placed on record any document to prove that the total consideration was Rs. 1,95,000/- and there was still a balance of Rs. 1,70,000/- to be paid. Perusal of Ex. DW-1/1 shows that the sale consideration was Rs. 25,000/- which has been admittedly received by the defendants. Therefore, the defendants have not Suit No. 94/1994 Page 18 of 25 been able to discharge their onus on the issue that full consideration has not been received by them and accordingly, this issue is decided against them.
ISSUE NO. 6Whether the pltf is entitled for the relief claimed? OPP
30. Onus to prove this issue was placed upon the plaintiff. The plaintiff reiterated the facts mentioned in the plaint and deposed that he is the owner of 8/9th share in the property bearing no. 7/2141. He also deposed that he had purchased this property vide registered sale deed which is Ex. DW-1/1 from defendant nos. 1 to 8 and had even taken the possession of the property from the tenants M/s Uneek Industries after the lapse of two months from the date of execution of the sale deed. He also deposed that the defendants took forcible possession of the property and therefore, they are liable to hand over 8/9th share of the property in question to the plaintiff.
31. On the other hand, it is the case of the defendants that they were not present when the sale deed was registered and it has been registered by the plaintiff by playing fraud upon the defendants. Since Ex. DW-1/1 is registered in favour of the plaintiff and the defendants are disputing the registration of the same, onus to prove that it was not got registered by them, Suit No. 94/1994 Page 19 of 25 shifts upon them. DW-1 has admitted that the sale deed was executed by them but has only denied its registration. However, he has not led any evidence to prove that it was not registered in their presence. The registered sale deed cannot loose its sanctity only on a bare averment that it was not registered in the presence of the vendors. This is more so in the light of the fact that the execution of this document is not denied and the sale consideration as mentioned in Ex. DW-1/1 is admitted to have been received by defendant nos. 1 to 8. Also, the defendants have not filed any suit for getting the said sale deed declared as null and void which means that they have no grievance against the same. Accordingly, DW-1 has not been able to prove that the sale deed was not registered in their presence and that it was got registered by playing fraud upon them. They have also not been able to prove that the entire sale consideration has not been received by them.
32. Another contention of defendant nos. 1 to 8 is that the property was never in possession of M/s Uneek Industries. However, the sale deed finds mention in para 2 at page 3 that the property under sale is in possession of tenant namely M/s Uneek Industries. This further proves the case of the plaintiff that M/s Uneek Industries was in possession of the suit property and disproves the case of the defendants that M/s Uneek Industries was never in the possession of the property. It is the Suit No. 94/1994 Page 20 of 25 case of the plaintiff that the possession of the entire property was obtained by him from M/s Uneek Industries and the defendants forcibly dispossessed the plaintiff and took the possession of the suit property. However, defendants have averred that they have been in continuous uninterrupted possession of the property and never had the occasion to dispossess the plaintiff. Although, the plaintiff has been able to prove that the property under sale was in possession of M/s Uneek Industries, but he has not placed on record any document or led any evidence to prove that the possession was obtained by them from M/s Uneek Industries. The plaintiff has also not been able to prove that the defendants had dispossessed the plaintiff and took forcible possession of the suit property. Therefore, this plea of the plaintiff fails.
33. However, since the possession at the time of the filing of the suit, is admitted to be with defendant nos. 1 to 8 and although it has not been proved that they had taken forcible possession from the plaintiff, their possession can still not be deemed to be legal as the property had already been sold to the plaintiff. Being the owner of the property, the plaintiff is entitled to recover the possession of the same from defendant nos. 1 to
8.
34. It is also an admitted position on behalf of the Suit No. 94/1994 Page 21 of 25 plaintiff that he had bought only 8/9th share of the suit property from defendant nos. 1 to 8. Moreover, even the sale deed mentions that only the property under sale i.e. 8/9th share is in possession of M/s Uneek Industries. It does not mention anything about the rest 1/9th share. Therefore, he cannot claim the 1/9th share of the said property from defendant no. 9. Accordingly, he is entitled to recover only 8/9th share in the suit property.
35. However, it is well established law that a third party stranger cannot be granted possession of undivided share in joint family property. Section 44 of the Transfer of Property Act lays down that "where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor's right to joint possession or other permanent or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liability affecting, at the date of the transfer, the share or the interest so transferred. Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house."
Suit No. 94/1994 Page 22 of 2536. This law was clarified in the judgment of Hon'ble Supreme Court of India in Ghanteshwar Ghosh Vs. Madan Mohan Ghosh AIR 1997 SC 471 wherein it was held that "it is obvious that by the time the Act came to be enacted, the legislature had in view the aforesaid parent provision engrafted in Section 44 of the T. P. Act to the effect that a stranger to the family who becomes the transferee of an undivided share of one of the co-owners in a dwelling house belonging to undivided family share of one of the co-owners belonging to undivided family could not claim a right of joint possession or common or part enjoyment of the house with other co-owners of the dwelling house. Implicit in the provision was the legislative intent that such stranger should be kept away from the common dwelling house occupied by other co-sharers. It was enacted with the avowed object of ensuring peaceful enjoyment of the common dwelling house by the remaining co-owners being members of the same family sharing a common heart and a home."
37. It is also held in Srilekha Ghosh(Roy) & Anr. Vs. Partha Sarthi Ghosh 2002 (6) SCC 359 that "Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members Suit No. 94/1994 Page 23 of 25 against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case, Section 4 of the Partition Act comes into play."
38. From the above discussion, it is clear that the third party stranger cannot be granted possession of undivided shares in a joint family property and to obtain possession, he needs to seek partition and then possession. In the present case, the plaintiff has nowhere averred that the suit property has been partitioned. Although, defendant nos. 4 to 7 have stated in their written statement that the property has been partitioned by metes & bounds, but nothing has been placed on record nor has any evidence been led to prove that the property has been partitioned by metes & bounds. In fact, PW1 in his cross examination has deposed that "I cannot tell after seeing the site plan attached with Ex.DW1/1 as well as Ex.PW1/1 as to of which portion I claim as 8/9th share possession in the present suit." He has not even specifically mentioned the portion of the property that falls to the share of defendant nos. 1 to 8 and consequentially, him. Since, partition has not been proved and no clear demarcation has been given by the plaintiff of the portion of the suit property that constitutes his 8/9th portion, no relief of possession can be granted.
Suit No. 94/1994 Page 24 of 2539. Even if the plaintiff had obtained the possession of the entire property, this court cannot grant him the possession of the entire property when he is not entitled to the same. Legally, he is only entitled to 8/9th share which too he can get only when the property has been partitioned. Accordingly, this issue is decided against the plaintiff.
RELIEF.
40. In view of my findings on various issues, as discussed above, the suit of the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
41. File be consigned to Record Room after due compliance.
Announced in the open (Ruchi Aggarwal)
court on 26.10.2012 Civil Judge, Central-02
Tis Hazari Courts,Delhi.
Suit No. 94/1994 Page 25 of 25