Delhi District Court
Sh. Ramesh Chandra vs Sh. Jai Narain on 31 May, 2019
IN THE COURT OF SHRI BALWANT RAI BANSAL,
ADDITIONAL DISTRICT JUDGE05, SOUTH WEST
DWARKA COURTS, NEW DELHI
Civil Suit No: 529/17
IN THE MATTER OF
Sh. Ramesh Chandra
S/o. Late Sh. Nihal Singh
R/o. Village & P.O. Khera Dabar,
New Delhi110073
.......... Plaintiff
Versus
Sh. Jai Narain
S/o. Late Sh. Nihal Singh
R/o. V.P.O Khera Dabar,
New Delhi110073
.......... Defendant
SUIT FOR PARTITION AND PERMANENT INJUNCTION
Date of institution : 01.06.2017
Date when judgment reserved : 07.05.2019
Date of Judgment : 31.05.2019
JUDGMENT:
1. Vide this judgment, I shall decide the present suit filed by the plaintiff for partition and permanent injunction against the CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 1 of 46 defendant.
2. The case of the plaintiff as set out in the plaint is summarized as under: 2.1. The parties to the suit are the real brothers and sons of late Sh. Nihal Singh. Deceased Sh. Ram Dayal was recorded bhumidar of land measuring 31 Bighas 6 Biswas in Khasra Nos. 82/1(418), 323(20), 29/23(317), 24(416), 25(209), 31/3(512), 4(416), 5(110) and 8/1(108), in the revenue estate of Village Khera Dabar, Tehsil Najafgarh, New Delhi. After death of Sh. Ram Dayal, the aforesaid land was mutated in the name of his two sons, namely, Sh. Nihal Singh and Sh. Umrao Singh. 2.2. Sh. Nihal Singh has two sons i.e. plaintiff and defendant.
Sh. Nihal Singh expired on 08.10.1995 and after his death, the plaintiff and defendant acquired onehalf share each in the land owned by deceased Sh. Nihal Singh and a mutation order was accordingly passed.
2.3. Sh. Nihal Singh, the deceased father of parties in the year 1980 was the owner and in possession of the following CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 2 of 46 residential properties :
i) House No. 9B, Block 1B, Dabri, Raghu Nagar, New Delhi110045 (hereinafter referred to as "property at Serial No. 1");
ii) Residential Plot in Khasra No. 57, Old Lal Dora, Village Khera Dabar, measuring 160 sq. yards, near Pole No. 327, with boundaries East: House of Sh. Bhim Singh (now with Sh. Naresh), West: Road 16 feet: North: Road 8 feet & South: House of Sh. Layak Ram (now with Sh.
Dharampal) (hereinafter referred to as "property at Serial No. 2");
iii) Residential Plot in Khasra No. 57, Old Lal Dora, Village Khera Dabar, measuring 300 sq. yards, near Pole No. 238, with boundaries East: House of Sh. Kashi Ram, West:
Road 16 feet: North: House of Sh. Layak Ram (now PVT.
gali of house of Kashi Ram) and South: House of
Sh. Sampat (now with Mr. Vijay S/o. Daya Ram)
(hereinafter referred to as "property at Serial No. 3");
iv) Residential Plot in Khasra No. 57, Old Lal Dora, Village Khera Dabar, measuring 278 sq. yards, near Pole No. 235, with boundaries East: House of Sh. Prithi/Sultan (Now with Sh. Dinesh), West: Road 16 feet: North: House of Sh. Sarjeet Singh& South: House of Sh. Bhim Singh (now CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 3 of 46 with Sh. Sonu), situated in village Khera Dabar (hereinafter referred to as "property at Serial No. 4);
v) 1 Bigha land in Khasra No. 323, extended Lal Dora, Village Khera Dabar, New Delhi (hereinafter referred to as "suit property").
2.4. Sh. Nihal Singh executed a Will dated 20.01.1980 by which he bequeathed the properties at Serial Nos. 1 and 2 exclusively in favour of defendant and the properties at Serial Nos. 3 and 4 exclusively in favour of plaintiff and the property at Serial No. 5 i.e. the suit property was divided in equal shares between the parties herein.
2.5. The property at serial no. 1 carried higher market value than the other properties in village Khera Dabar and since the defendant was given property at Serial No. 1, hence he was given plot of lesser measurement at Serial No. 2 and the plaintiff was given two plots of larger measurement at Serial Nos. 3 and 4 to balance the ratio of lands given to the parties by their father. CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 4 of 46 Thereafter, the suit property was divided equally between the parties.
2.6. The land in Khasra No. 323 i.e. property at Serial No. 5 consisted of 2 bighas of land and out of 2 bighas, one bigha of land came in joint ownership of the plaintiff and the defendant. Hence, the plaintiff is owner of 500 sq. yards of land in Khasra No. 323. However, now the defendant has turned dishonest and he wants to grab the entire suit property without giving legitimate share to the plaintiff. The defendant has constructed over certain portions of the suit property without consent of the plaintiff and despite strong protest of the plaintiff.
2.7. On 29.03.2016, the plaintiff requested the defendant to partition the suit property by metes and bounds, but the defendant clearly refused to partition the same. Thereafter also, the plaintiff several times requested the defendant to partition the suit property but to no avail. The defendant clearly refused to acknowledge one half share of the plaintiff in the suit property. Hence, the plaintiff is constrained to file the present suit.
CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 5 of 46
3. The plaintiff by way of present suit has prayed for following reliefs:
a) a preliminary decree of partition of the suit land measuring 1000 sq. yards in Khasra No. 323 in extended Lal Dora limit of Village Khera Dabar, Tehsil Najafgarh, New Dellhi 110073, thereby directing partition of the suit property in onehalf equal share to the parties;
b) a final decree of partition of the suit property by metes and bound in favour of the parties as per their share/entitlement,
c) a decree of permanent injunction thereby restraining the defendant, his servants, assigns, successors, etc. (i) from selling, mortgaging or creating third party interest in the suit property,
(ii) from handing over the possession of the suit property to any other persons before partitioning the same by metes and bounds, (iii) from dispossessing the plaintiff from the area as shown in green colour in the site plan which is in exclusive possession of the plaintiff and (iv) from raising any construction over the suit property shown in red colour in the site plan CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 6 of 46 without partition of the suit property by metes and bounds.
4. The defendant has contested the suit by filing the written statement contending that suit is not maintainable being bad in law for nonjoinder of necessary parties as the plaintiff has not impleaded the other coowners of the total land in Khasra No. 323 in the present suit. The defendant has admitted that after death of Sh. Nihal Singh on 08.10.1995, he and the plaintiff acquired onehalf share each in the land owned by Sh.Nihal Singh however, he contended that he is not aware about the Will executed by Sh. Nihal Singh and he came to know about the said Will after filing of written statement by him. It is contended that the said Will is false and fabricated. The defendant has admitted that out of total 2 bighas in Khasra No. 323, one bigha of land came in joint ownership of the parties, but he contended that as per the family settlement, the plaintiff was given 309 sq. yards of built up house near electric pole no. 43 situated in the Lal Dora abadi of Village Khera Dabar and another built up house measuring 278 sq. yards CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 7 of 46 in the same village and in lieu of the aforesaid two houses given to the plaintiff, the share of the plaintiff in Khasra No. 323 was given to the defendant as per the family settlement but now the plaintiff has become dishonest and wants to grab the said part in Khasra No. 323. It is stated that plaintiff was in possession of only 60 sq. yards of land in khasra no. 323 and rest of the portion of said khasra was/is in possession of the defendant and the plaintiff has no right in the other portion which is in possession of the defendant. The other contents are stated to be wrong and denied and the defendant has prayed for dismissal of the suit.
5. From the pleadings of the parties, following issues have been framed by the Ld. Predecessor vide order dated 03.08.2017 for adjudication :
1) Whether the area measuring 309 sq. yards of built up house near electric pole no. 43 situated in the Lal Dora abadi of village Khera Dabar and area measuring 278 sq. yards in the same village were the ancestral and joint properties of the plaintiff and defendant ? OPD.
2) If the answer to the aforesaid issue is in the affirmative, whether the aforesaid properties CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 8 of 46 were given to the plaintiff as per the family settlement ? OPD.
3) Whether the suit property is jointly owned property of the plaintiff and defendant and the same is partitionable ? OPD.
4) If the answer to the aforesaid issue is in the affirmative, as to what share the parties are entitled to in the suit property ? OPD.
5) Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ? OPP.
6) Relief
6. Vide order dated 11.10.2017 the following additional issues were framed:
1) Whether the Will dated 20.01.1980 was validly executed by the deceased father of the parties? OPP.
2) Whether the suit is bad for nonjoinder of the necessary parties ? OPD.
7. In order to prove his case, the plaintiff has examined six witnesses including himself as PW1. As PW1, the plaintiff has filed his evidence by way of affidavit which is Ex.PW1/A in consonance of averments made in the plaint. During his CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 9 of 46 deposition, the plaintiff relied upon and exhibited the following documents: Mark A : Photocopy of Khatoni showing ownership of parties and mutation in their favour Ex. PW1/2 : Copy of Will dated 20.01.1980 executed by late Sh. Nihal Singh Mark B : Reply dated 24.11.2012 in RTI from the office of SDM (Najafgarh) Ex. PW1/4 : Site plan showing suit property Ex. PW1/5 : Complaints dated 09.04.2016, (Colly) 11.04.2016, 12.04.2016, 15.02.2017 and reply by SDM (Najafgarh) signed by Tehsildar (running into 7 pages)
8. The plaintiff has also examined Sh. Mahender Singh as PW2 who is one of the attesting witness to Will dated 20.01.1980 executed by late Sh. Nihal Singh. He filed his evidence by way of affidavit wherein he has deposed regarding execution of Will Ex. PW1/2.
9. Another witness examined by the plaintiff as PW3 is Ct. Mahender Singh, DCP Office, Sector 19, Dwarka, New Delhi who brought the summoned record and proved the CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 10 of 46 complaint dated 09.04.2016 received in their office, one of the complaints in Ex.PW1//5 (Colly) and placed on record the copy of the said complaint as Ex.PW3/1.
10. PW4 is Ct. Ravinder Kumar from PS Jaffarpur Kalan, New Delhi who brought the summoned record and proved the complaint dated 15.02.2017 received at PS Jaffarpur Kalan, New Delhi which is already Ex.PW1/5 (Colly).
11. PW5 is Sh. Mukul Kumar Sharma who prepared the site plan Ex. PW1/4.
12. The last witness examined by the plaintiff as PW6 is Sh. Satbir Singh, Patwari, SDM Ofice, Najafgarh, Delhi who brought the summoned record i.e. Khatoni Register of Khasra No. 101/82 and placed on record copy of Khatoni for the year 2012 13 as Ex.PW6/1. He also brought office copy of complaint dated 15.02.2017 filed by the plaintiff in their office, letter dated 25.02.2017 issued by Tehsildar, Najafgarh, reply of RTI dated 24.11.2012 issued by their office (already Mark B) and placed on CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 11 of 46 record the copy of official proceedings in respect of RTI dated 24.11.2012 as Ex.PW6/2.
13. On the other hand, the defendant has examined himself as DW1 and filed his evidence by way of affidavit Ex.DW1/A in consonance of averments made in the written statement.
14. The defendant has also examined Sh. Ram Mehar as DW2 who also filed his evidence by way of affidavit Ex.DW2/A wherein he has deposed regarding family settlement as propounded by the defendant in his written statement.
15. I have heard the Ld. Counsel for the parties and perused the record carefully. I have also gone through the written arguments filed by both the parties.
16. On the basis of material available on record, my issue wise findings are as under: Issue Nos. (1) and (2) Whether the area measuring 309 sq. yards of built up house near electric pole no. 43 situated in the Lal Dora abadi of village Khera Dabar and CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 12 of 46 area measuring 278 sq. yards in the same village were the ancestral and joint properties of the plaintiff and defendant ?
and If the answer to the aforesaid issue is in the affirmative, whether the aforesaid properties were given to the plaintiff as per the family settlement ?
17. Both these issues are being taken up together as the same are interconnected and the discussion thereupon is going to be common. Onus to prove these issues is on the defendant.
18. From the pleadings of the parties, it is not in dispute that deceased Sh. Ram Dayal was recorded bhumidar of land measuring 31 Bighas 6 Biswas in Khasra Nos. 82/1(418), 323(2
0), 29/23(317), 24(416), 25(209), 31/3(512), 4(416), 5(110) and 8/1(108), in the revenue estate of Village Khera Dabar, Tehsil Najafgarh, New Delhi. It is also not in dispute that late Sh. Ram Dayal had two sons, namely, Sh. Nihal Singh (the father of the parties) and Sh. Umrao Singh and after the death of Sh. Ram Dayal, the aforesaid land was mutated in the name of his two sons. CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 13 of 46 Admittedly, Sh. Nihal Singh has two sons i.e. the plaintiff and the defendant. It is further not in dispute that Sh. Nihal Singh, the deceased father of parties in the year 1980 was the owner and in possession of the properties at Serial No. 1 to 5. It is also not in dispute that Sh. Nihal Singh expired on 08.10.1995 and after his death, the plaintiff and defendant acquired onehalf share each in the land owned by deceased Sh. Nihal Singh and a mutation order was also passed in this regard. Hence, there is no dispute that the area measuring 309 sq. yards of built up house near electric pole no. 43 situated in the Lal Dora abadi of village Khera Dabar and area measuring 278 sq. yards in the same village owned by late Sh. Nihal Singh were the ancestral and joint properties of the plaintiff and defendant.
19. However, the plaintiff has claimed that his deceased father Sh. Nihal Singh executed a Will dated 20.01.1980 by which he bequeathed the properties at Serial Nos. 1 and 2 exclusively in favour of defendant and the properties at Serial Nos 3 and 4 exclusively in his favour and the property at Serial No. 5 i.e. the CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 14 of 46 suit property was divided in equal shares between him and the defendant.
20. While the defendant in the written statement has denied execution of Will dated 20.01.1980 by his deceased father Sh. Nihal Singh and claimed the same to have been forged and fabricated by the plaintiff. Though the defendant has not denied the fact that the parties had joint ownership having equal share in the suit property i.e. one bigha land in Khasra No. 323 in extended Lal Dora Limit of Village Khera Dabar, Tehsil Najafarh, New Delhi - 110073, however he contended that as per family settlement, the plaintiff was given 309 sq. yards of built up house near electric pole no.43 situated in the Lal Dora abadi of village Khera Dabar and another built up house measuring 278 sq. yards in the same village and in lieu of the aforesaid two houses given to the plaintiff, he gave up his share i.e. one half share in the suit property in favour of the defendant and thus as per the family settlement, the defendant is absolute owner and in possession of the suit property.
CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 15 of 46
21. The onus was upon the defendant to prove that there was a family settlement by which the plaintiff gave up his share in the suit property in favour of the defendant in lieu of aforementioned two built up houses given to him.
22. The defendant in order to prove the family settlement has stepped into the witness box as DW1 and reiterated the aforesaid averments made in the written statement regarding family settlement in his examinationinchief. In the cross examination, DW1 (the defendant) stated that deceased father of the parties herein had four properties at the time of his death and out of which, three properties are situated in Old Lal Dora of Village Khera Dabar and one plot was in extended Lal Dora which falls in Khasra No. 323. He further stated that he does not know whether property/ House No. 9B, Block 1B, Dabri, Raghu Nagar, New Delhi was also owned by his deceased father. He further stated that the family settlement stated by him in para no. 3 of his affidavit was effected by his deceased father during his lifetime in the year 1979. He further stated that he was though present in the CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 16 of 46 said settlement, however he was not party to the subsequent measurement of the properties which were the part of the family settlement. He further stated that the said measurement was effected in the year 1980 by his deceased father, plaintiff herein and one Ranbir Singh S/o Sh. Umrao Singh. He further stated that as on date, Sh. Ranbir Singh is alive and he is their cousin brother and he has cordial relation with him. He further stated that he will have to talk to Ranbir Singh as to whether he can come before this Court for his deposition in his favour. He denied the suggestion that neither any family settlement was effected nor any measurement took place in pursuance to the settlement.
23. First of all, no such family settlement has been placed on record by the defendant. The aforesaid testimony of defendant further makes it clear that though he claimed to be present and party to the alleged family settlement but he was not party to the subsequent measurement of the properties which were part of the family settlement. Therefore, when the defendant was not part of the complete family settlement, the same cannot be said to have CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 17 of 46 duly been proved.
24. Further, the defendant also stated that one Sh. Ranbir Singh, who was his cousin brother was also present when the measurement was effected and as such said Sh. Ranbir Singh was the best witness who could have proved that a family settlement took place by which deceased father of the parties had given two built up houses to the plaintiff and in lieu of same, the plaintiff gave up his share in the suit property in favour of the defendant. But the defendant has not examined the said Ranbir Singh who was present at the time when the measurement was effected in the year 1980 which was part of the family settlement despite the fact that the said Ranbir Singh is his cousin brother and has cordial relation. By doing so, the defendant has withheld the best evidence in his possession and hence an adverse inference is liable to be drawn against the defendant. Reliance may be placed upon Gopal Krishan Ji Ketkar Vs. Mohd. Haji Latif & Ors. AIR 1968 Supreme Court 1413.
25. The defendant though has also examined Sh. Ram CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 18 of 46 Mehar as DW2 to prove the family settlement who in his examinationinchief has deposed that as per family settlement, the plaintiff was given 309 sq. yards of built up house near electric pole No. 43, situated in the lal dora abadi of village Khera Dabar and he was also given another built up house of area measuring 278 sq. yards in the same village and the share of the plaintiff in Khasra No. 323 was given to the defendant. In the cross examination, DW2 stated that he does not know as to which properties were owned by deceased father of parties herein. He admitted that he is not aware as to which properties of deceased Nihal Singh went to whose share amongst parties herein. The witness was confronted with para no. 3 of his affidavit Ex.DW2/A wherein it is stated that certain properties went to respective shares of parties herein and he was asked as to which statement made by him qua distribution of properties is correct to which he replied that statement made by him in his affidavit Ex. DW2/A is correct. DW2 further stated that he does not know as to whether any family settlement took place between the parties herein. The CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 19 of 46 witness was against confronted with para no. 3 of his affidavit Ex. Dw2/A wherein it was stated that a family settlement took place between the parties herein qua properties of deceased Sh. Nihal Singh) and a question was asked as to which statement made by him qua family settlement is correct to which he replied that statement made by him in the Court is correct. Therefore, when this witness does not know whether any family settlement between the parties took place, his statement in examinationinchief regarding the family settlement is liable to be rejected. Even this witness stated that he does not know as to regarding which property of deceased Nihal Singh, the present case pertains.
26. Therefore, from the testimony of DW2, the defendant has not been able to prove the family settlement as propounded by him in the written statement. No other witness has been examined nor any document has been placed on record by the defendant to prove that any family settlement as pleaded in the written statement took place between the parties and from the evidence led by the defendant, he has not been able to prove the family CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 20 of 46 settlement between the parties. Hence, Issue No. (1) is decided in favour of defendant and Issue No. (2) is decided against the defendant.
Additional Issue No. 1
Whether the Will dated 20.01.1980 was validly executed by the deceased father of the parties ?
27. As discussed under Issue Nos. 1 and 2 that there is no dispute so far the fact that late Sh. Nihal Singh, the deceased father of the parties was owner and in possession of 5 properties as mentioned in para no. 4 of the plaint. The plaintiff has pleaded that his deceased father late Sh.Nihal Sngh during his lifetime executed a Will dated 20.01.1980 by which he bequeathed the properties at Serial No. 1 and 2 in favour of defendant and the properties at Serial No. 3 and 4 in his favour and the property at Serial No. 5 which is the suit property was divided in equal shares between the parties and thus parties have one half equal share in the suit property as per the Will dated 20.01.1980. The defendant in the written statement has claimed the Will dated 20.01.1980 to have CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 21 of 46 been forged and fabricated by the plaintiff and he contended that no such Will was executed by his father. Therefore, the onus was upon the plaintiff to prove that the Will dated 20.01.1980 was validly executed by Sh. Nihal Singh.
28. The plaintiff has examined himself as PW1 and reiterated the averments made in the plaint in his examinationin chief and exhibited the copy of Will dated 20.01.1980 as Ex. PW1/2. In the crossexamination, PW1 (the plaintiff) stated that he does not know where the Will Ex.PW1/2 was got prepared. Voluntarily, he stated that he was away from home and in service at that time and the said Will was got prepared by his father. He stated that he was posted at Dev Lalli Maharashtra on 20.01.1980. He further stated that he does not have any document to show that he was on duty at the aforesaid place on 20.01.1980. He further stated that in May 1980, his father called him and his brother and showed them the Will dated 20.01.1980. He further stated that he got the original Will in the year 1992 from his father who had been ill at that time. He further stated that he was not aware at that time CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 22 of 46 that Will might be registered and he used the said Will for the first time at the time of institution of the present suit. He further stated that the Will Ex. PW1/2 mentions all the properties owned by his father at that time in addition to the properties mentioned in the Will. He again said the agriculture land is not mentioned in the Will Ex. PW1/2. He stated that he did not ask his father as to why he had not included the agriculture land owned by him in the said Will. He denied the suggestion that he did not ask about the same as his father never executed the said Will and the same has been fabricated by him. He stated that he did not show the said Will to the revenue authorities at the time of mutation of the properties inherited by him and his brother after the death of his father. He further stated that mutation proceedings took place in the year 1995 upon the application of the defendant duly signed by him. He admitted that he has not mentioned about the said Will in his complaints Ex. PW1/5 (Colly) made to various authorities. He denied the suggestion that document Ex.PW1/A (the same appears to be typographical mistake and it should have been Ex.PW1/2 CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 23 of 46 which is the Will dated 20.01.1980) is forged and fabricated and has been subsequently prepared and, therefore, it does not find mention in the aforesaid complaints.
29. The aforesaid crossexamination of the plaintiff clearly reflect that nothing material could be extracted by the Ld. Counsel for the defendant to shake his testimony that his father during his lifetime had executed the Will Ex.PW1/2.
30. Ld. Counsel for the defendant during course of the arguments though has vehemently argued that the plaintiff had not filed the Will Ex.PW1/2 alongwith the plaint nor he referred the same in the complaints made by him to the police nor had filed copy of the same at the time of mutation proceedings and it goes to show that the Will Ex.PW1/2 has been forged and fabricated by the plaintiff subsequently. To this, the Ld. Counsel for the plaintiff submitted that the Will could not have been used at the time of mutation of properties because the Will Ex.PW1/2 was not in respect of the agriculture land and the Will could not be filed alongwith the plaint due to bonafide omission, however the Court CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 24 of 46 had allowed the plaintiff to place on record the Will dated 20.01.1980 vide order dated 14.09.2017. He further submitted that the Will was produced before framing of issues and before leading of evidence by the parties and the plaintiff was allowed to produce on record the Will and therefore it does not make any difference if plaintiff had not filed the Will along with the plaint or at the time of making complaints to the police.
31. I find substance in the argument of Ld. Counsel for the plaintiff. Of course, the plaintiff had not filed the Will alongwith the plaint and subsequently he was allowed by this Court to place on record the same and the Will was filed by the plaintiff before framing of issues and starting of evidence. Therefore, merely because the plaintiff did not file the Will alongwith the plaint or at the time of making complaints to the police or at the time of mutation proceedings will not ipso facto make the said Will forged and fabricated or that same has been subsequently prepared by the plaintiff. The plaintiff was required to prove the Will Ex.PW1/2 by examining at least one of its CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 25 of 46 attesting witness in terms of section 68 of Indian Evidence Act.
32. The plaintiff has examined Sh. Mahender Singh as PW2, who is one of the attesting witness to the Will Ex. PW1/2. In his examinationinchief by way of affidavit Ex.PW2/A, PW2 has deposed that he is known to the parties and their deceased father Sh. Nihal Singh and he has attended various functions in the family of parties during and after death of Sh. Nihal Singh. He further deposed that deceased Nihal Singh had executed a Will dated 20.01.1980 Ex.PW1/2 which he had shown to him and he had signed the Will as one of the attesting witness in the presence of Sh. Nihal Singh and one Sh. Ram Mehar S/o Malkhan had also signed the said Will as one of the attesting witness in his presence and in presence of deceased Sh. Nihal Singh. He further deposed that at the time of signing the said Will, one Sh. Gajraj S/o Shri Jeet Ram R/o VPO Khera Badar was also present, however he had not signed the Will. He further deposed that as per his knowledge, Sh. Ram Mehar has already expired.
33. In the crossexamination of PW2, Ld. Counsel for CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 26 of 46 defendant could not extract anything material to impeach his testimony. He categorically stated that deceased Nihal Singh did not come to him on 20.01.1980 however, on that date he had visited his house as he regularly used to do so. He further stated that he had read contents of the Will Ex.PW1/2 and contents of the same were also read over to him and to other persons who were present at the relevant time. He further stated that he had not seen the title documents of property situated at Dabri. He further stated that he has not appeared as a witness before any other authority or court for plaintiff in respect of document Ex. PW1/1. He denied the suggestion that the Will Ex.PW1/2 was forged and the same has been prepared and signed by him after filing of the present suit.
34. The plaintiff has fulfilled the requirement of law to prove the Will Ex.PW1/2 by examining at least one of its attesting witness as provided under Section 68 of the Indian Evidence Act, whose testimony regarding execution of Will Ex.PW1/2 by late Sh. Nihal Singh remained unshaken in his crossexamination as CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 27 of 46 discussed in forgoing para.
35. On the other hand, the defendant in rebuttal has examined himself as DW1 and in his examinationinchief he has deposed that the plaintiff has not disclosed about the Will at the time of sanctioning of mutation in his name before the tehsildar and it shows that the Will is false and fabricated. However, in his crossexamination, DW1 (the defendant) categorically admitted that one house measuring 160 sq. yards near pole no. 327 in Old Lal Dora of village Khera Dabar came to his share as per Will. Voluntarily, he stated that the said property is near pole no. 17. He further admitted that two houses measuring 300 sq. yards and 278 sq. yards respectively in Old Lal Dora in Khasra No. 57 came to the share of plaintiff as per Will of his deceased father. He further admitted that as per revenue records, one bigha land in Khasra no. 323 of extended Lal Dora is still jointly owned by parties herein and as per Will, they have equal shares in the same. Voluntarily, he stated that the same is correct as per the revenue records. As such, the defendant in his crossexamination categorically CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 28 of 46 admitted the execution of Will Ex.Pw1/2 by his deceased father Sh. Nihal Singh.
36. Similarly, DW2 though denied the suggestion that properties of deceased Nihal Singh were distributed by Sh. Nihal Singh between the parties herein as per Will Ex.PW1/2 and voluntarily, he stated that the said Will is bogus and has been prepared subsequently. However, he stated that he does not know as to when the said Will was prepared. He further stated that he is saying that the Will Ex. PW1/2 is bogus and has been subsequently prepared as in villages, the fathers do not execute Wills and bequeath properties in favour of their kids verbally. However, this justification given by DW2 does not appear to be logical. He further stated that he does not know whether any resident of village Khera Dabur has ever executed any Will. Therefore, this witness could not say with certainty that no Will has ever been executed by any villager in his village and furthermore the reason assigned by this witness for the Will to be forged and fabricated does not appeal to the reason and completely CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 29 of 46 illogical.
37. It may be noted here that the defendant has tried to dispute the existence of property mentioned at Serial No. 1 i.e. property at Dabri when the Ld, Counsel for defendant suggested to PW1 that no property existed in the name of his father and brother at Dabri and the said story has been concocted by him. Though, the said suggestion was denied by the witness. Similarly, Ld. Counsel for the defendant had put a question to PW2 whether he had seen the title documents of property situated at Dabri. However, the suggestion and the question so put to PWs are misplaced because the defendant has not disputed the existence and ownership of father of the parties of the property situated at Dabri. In para no. 4 of the plaint, the plaintiff has categorically stated that deceased father of the parties Sh. Nihal Singh was the owner and in possession of 5 properties and at Serial No. 1, the plaintiff has mentioned the House No. 9B, Block 1B, Dabri, Raghu Nagar, New Delhi. In the written statement, in the reply on merits to para no. 4, the defendant has admitted the ownership of CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 30 of 46 Sh. Nihal Singh, the father of the parties in respect of all the 5 properties as mentioned in para no. 4 of the plot including the property at Serial No. 1 i.e. House No. 9B, Block 1B, Dabri, Raghu Nagar, New Delhi.
38. In view of aforesaid discussions, in my considered opinion, the plaintiff has successfully proved that deceased Sh. Nihal Singh had executed the Will Ex.PW1/2 by virtue of which property at Serial No. 1 and 2 came to the share of defendant and the properties at Serial No. 3 and 4 has fallen to the share of the plaintiff and the suit property came into joint ownership of the parties in which they have equal onehalf share. Hence, this Issue is decided in favour of the plaintiff.
Issue nos. 3 and 4 Whether the suit property is jointly owned property of the plaintiff and defendant and the same is partitionable ? .
and If the answer to the aforesaid issue is in the affirmative, as to what share the parties are entitled to in the suit property ?
CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 31 of 46
39. Both these issues are being taken up together being interlinked and they involve common discussions. The onus to prove these issues has been wrongly placed upon the defendant and same appears to be a typographical mistake because as per the tenor of the issues, the onus should have been placed upon the plaintiff because it is the case of the plaintiff that suit property is jointly owned by him with the defendant and therefore he is seeking partition of the suit property, while the defendant has claimed that suit property is exclusively owned by him as the plaintiff had given up his share in the suit property as per the family settlement took place between the parties. Though the said claim set up by the defendant has been negated by me under Issue No. 1and 2.
40. In view of my findings under Issue No. 1 and 2 and Additional Issue No. 1, since Will Ex. PW1/2 stands proved by virtue of which deceased Sh. Nihal Singh had bequeathed the properties at Serial No. 1 and 2 in favour of the defendant and CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 32 of 46 properties at Serial No. 3 and 4 in favour of the plaintiff and the suit property was equally divided between the plaintiff and defendant. I have also already held that the defendant has miserably failed to prove that there was any family settlement by which the plaintiff had given up his share in the suit property. Hence, it stands proved that the suit property is joint property of the parties in which both the parties have equal share i.e. onehalf share each and the plaintiff is entitled to have one half share in the suit property i.e. one bigha land in Khasra No. 323 in extended Lal Dora, Village Khera Dabar, New Delhi by way of decree of parition. The Issue Nos.(3) and (4) are decided accordingly.
Issue no. 5 Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for ?
41. The onus to prove this issue is on the plaintiff. The plaintiff in the plaint has asserted that the defendant has refused to acknowledge his onehalf share in the suit property and rather the defendant has threatened that in case plaintiff will ever demand any share in the suit property, he shall dispose of the suit property CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 33 of 46 and will induct some unscrupulous persons in the same and will not give legitimate share of the plaintiff to him and hence the plaintiff apprehends that defendant can sell, mortgage and create third party interest in the suit property without giving legitimate onehalf share of the plaintiff. The plaintiff has further pleaded that due to the aforesaid conduct of the defendant, he has apprehension that the defendant can dispossess him from the suit property and may also raise construction in the same which will lead to future disputes. The defendant has denied the same in the written statement.
42. The plaintiff when appeared in the witness box as PW1, he reiterated the aforesaid assertions regarding his apprehension that the defendant may sell or dispose of the suit property, dispossess him or raise construction in the suit property without giving his legitimate share, on which there is no cross examination at all. Since under Issue No. 3 and 4, I have already decided the share of the plaintiff and the defendant in the suit property and the suit property is liable to be partitioned among CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 34 of 46 them as per their share, therefore the defendant cannot sell, dispose of or create third party interest in the suit property or dispossess the plaintiff from the suit property or raise any construction in the suit property until it is partitioned by metes and bounds. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
Additional Issue No. (2) Whether the suit is bad for nonjoinder of the necessary parties ?
43. The onus to prove this issue is on the defendant who in the written statement has taken a plea that the suit is not maintainable being bad in law for nonjoinder of necessary parties as the plaintiff has not impleaded the other coowners of the land in question in the present suit.
44. The aforesaid plea taken by the defendant that the plaintiff has not impleaded the other cosharers of the land in question apart from the defendant stands proved from the witness examined by the plaintiff as PW6 Sh. Satbir Singh, Patwari, SDM CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 35 of 46 Office, Najafgarh, Delhi who brought Khatoni Register of Khata No. 101/82 and placed on record copy of Khatoni for the year 201213 as Ex.PW6/1.
45. In the crossexamination, PW6 admitted that the persons named in encircled X are the joint owners of the property mentioned in Column No. 4 and 5 of Khatoni Ex.PW6/1. He stated that the entries on document Ex.PW6/1 have been made by the Patwari concerned. He admitted that the record pertaining to Khatoni is maintained by the Patwari. He stated that the document Ex.PW6/1 is issued by him after going through the relevant record. He further stated that he does not know whether any partition has taken place between persons mentioned in encircled point X. He admitted that all the persons encircled in point X are the joint owner of the property mentioned in Column No. 4 and 5 of Ex. PW6/1. He categorically stated that as per Ex.PW6/1, Surjit, Jagdish, Ranbir, all sons of Sh. Umrao Singh have onesixth share each in Khasra No. 323 (20) and Jai Narain and Ramesh i.e. plaintiff and defendant have onefourth share each in said Khasra CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 36 of 46 number. He further stated that as per revenue record, all five persons are the coowners of property comprise in Khasra No. 323 (20).
46. The aforesaid testimony of PW6 Sh. Satbir Singh, Patwari, SDM Office, makes it clear that Khasra No. 323 comprises 2 bigha land and apart from the parties i.e. plaintiff and defendant, there are other cosharers of the said land in Khasra no.
323. The said fact has also been admitted by the plaintiff when he admitted in his crossexamination that in Khasra No. 323 extended laldora of Village Khera Dabur, total land is 2 bighas (approximately 2000 sq. yards) and besides him and defendant, there are other cosharers, namely, Sarjeet Singh S/o Late Sh. Umrao, Jagdish S/o late Sh. Umrao, Ranbir S/o Late Sh. Umrao in the aforesaid land of 2 bighas. He admitted that he has not made cosharers as party to this suit.
47. PW6 has also placed on record the copy of reply of RTI dated 24.11.2012 issued by the Office of SDM, Najafgarh along with official proceedings thereon as Ex. PW6/2. In the said CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 37 of 46 reply, it was informed that as per revenue record, the land bearing Khasra No. 323 (20) is recorded in the name of Sh. Surjeet Singh, Jagdish Singh, Ranbir Singh S/o Umrao Singh (equal 1/2 share), Jai Narain, Ramesh S/o Nihal Singh (equal 1/2 share)
48. It is also pertinent to note here that the plaintiff has also relied upon the complaints given to SDM, Najafgarh, New Delhi regarding illegal encroachment in his residential plot No. 323 measuring one bigha by his brother Sh. Jai Narain (defendant) which are Ex.PW1/5 (Colly). In one of the complaint which has been received by the Office of Sub Divisional Magistrate (Najfgarh) on 15.02.2017, the plaintiff had asserted that they are two brothers and during course of consolidation in their village, they were jointly allotted a residential plot bearing Khasra No. 323, total measuring (20) bigha in area alongwith his other three cosharers in which their share (of both brothers) is one bigha i.e. ½ share to each of them and some years ago, they have mutually partitioned the said plot in equal share but now his brother Sh. Jai Narain is trying for unnecessary encroachment in his share time CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 38 of 46 and again and the plaintiff had sought necessary action in this regard. However, in another complaint addressed to SDM (Najafgarh) dated 12.04.2016, which is a photocopy, the plaintiff had stated that his father owns a land in Khasra No. 323 measuring 1000 sq. yards in Village Khera Dabar and they are only two brothers i.e. the plaintiff himself and the defendant and till date the land has not been partitioned between them and in the aforesaid land of 1000 sq. yards, his brother Sh. Jai Narain is illegally encroaching the land and also raising illegal construction.
49. From the aforesaid correspondence relied upon by the plaintiff, testimony of PW6 and documents produced by him on record and categorical admission of the plaintiff, it has come on record that Khasra No. 323 comprises 2 bigha land i.e. 2000 sq. yards, in which there are 5 cosharers including the plaintiff and the defendant and the said land has yet not been partitioned. Out of total land of 2 bigha i.e 2000 sq. yards, the plaintiff by way of present suit is seeking partition of land measuring 1000 sq. yards which came to joint ownership of the plaintiff and the defendant as CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 39 of 46 per Will Ex.PW1/2.
50. The plaintiff in the present case has only impleaded the defendant and has not impleaded the other three cosharers of the total undivided land measuring 2000 sq. yards as shown in Khatoni Ex.PW6/1.
51. In these facts, where the plaintiff is seeking partition of the suit property (land measuring 1000 sq. yards) which is a part of joint property (total land measuring 2000 sq. yards) of five shareholders including the plaintiff and the defendant, 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 defendant. The answer lies in negative.
52. 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.
CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 40 of 46
53. Similar is the position in the present case. In the absence of other cosharers as shown in Khatoni Ex.PW6/1 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 including the share of the plaintiff.
54. Though the Ld. Counsel for the plaintiff has vehemently argued that the land has been partitioned and the plaintiff and defendant are jointly in possession of 1000 sq. yards and the plaintiff by way of present suit is seeking possession of his share i.e. 500 sq. yards by way of decree of parition and the said share is defined and is duly identifiable in the site plan filed by the plaintiff which is Ex.PW1/4. However, I am unable to accede to this argument of the Ld. Counsel for the plaintiff as the plaintiff has not been able to prove the site plan Ex.PW1/4.
55. In order to prove the site plan Ex.PW1/4, the plaintiff has examined Sh. Mukul Kumar Sharma, the draftsman who prepared the site plan Ex. PW1/4 as PW5. He deposed that he prepared the site plan Ex.Pw1/4 at the instructions of the plaintiff. CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 41 of 46 In his crossexamination, PW5 stated that he had not inspected the suit property at the time of preparation of the site plan. He further stated that he had never visited the suit property. He also stated that he does not remember the date on which the said site plan was prepared by him. He further stated that he is not having the licence of Draftsmanship from Delhi Government.
56. The aforesaid testimony of PW5 clearly shows that he had not inspected the suit property at the time of preparation of site plan Ex.PW1/4 nor he visited the suit property. He even does not remember the date of preparation of site plan. It clearly goes to show that the site plan Ex.PW1/4 was prepared only at the instance of the plaintiff without inspection of the suit property. Hence, site plan Ex.PW1/4 is not proved on record and it cannot be said that same shows correct position of the suit property, more particularly when the site plan filed by the plaintiff has been disputed by the defendant in the written statement.
57. Ld. Counsel for the plaintiff has also argued that the defendant has also filed the site plan of the suit property, though CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 42 of 46 same has not been exhibited by the defendant in his evidence and the same can be considered by this Court for identification of the suit property, in which the land measuring 1000 sq. yards belonging to the plaintiff and the defendant has been earmarked and the same is distinguishable from the remaining 1000 sq. yards land which is owned by other cosharers. Therefore, he would argue that there is no dispute regarding identification of the suit land i.e. 1000 sq. yards for which the plaintiff is seeking partition. Again, I am afraid to accept this contention of the Ld. Counsel for the plaintiff. First of all, the site plan filed by the defendant on record has neither been relied upon nor exhibited by the defendant in his evidence nor the same has been proved in accordance with law. Further, the plaintiff himself has disputed the site plan filed by the defendant and deposed in his examinationinchief that the site plan filed by the defendant is distorted, incorrect and denied. Therefore, when the plaintiff himself has disputed the correctness of the site plan filed by the defendant, though same has not been relied upon nor exhibited by the defendant, the plaintiff cannot CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 43 of 46 seek reliance on the said site plan and cannot be heard saying that the site plan filed by the defendant clearly shows that property is identifiable and same can be partitioned without impleadment of other cosharers of the total land.
58. In view of aforesaid discussion, I have no hesitation to hold that cosharers as shown in the Khatoni Ex.PW6/1 apart from the defendant 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.
59. 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)
60. 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 CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 44 of 46 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 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.
61. Since the plaintiff has failed to implead other co sharers of the joint land who are the necessary parties to the present suit being cosharers of the total land measuring 2000 sq. yards in Khasra No. 323 in extended Village Khera Dabar, New Delhi, out of which the plaintiff is seeking partition of 1000 sq. yards which came into joint ownership of the parties as per Will Ex.PW1/2, 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 for this reason only. Hence, Additional Issue No. (2) is decided in favour of the defendant CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 45 of 46 and against the plaintiff.
RELIEF
62. As a sequel to my findings under Additional Issue No. (2), the suit filed by the plaintiff is dismissed. No order as to cost. Decree sheet be prepared accordingly.
63. File be consigned to Record Room after necessary compliance.
Announced in the open Court (Balwant Rai Bansal) st on 31 May, 2019 Addl. District Judge05 (SouthWest) Dwarka Courts, New Delhi CS No. 529/17 Ramesh Chandra vs. Jai Narain Page 46 of 46