Delhi District Court
Ramesh Verma vs Kamlesh Dawar And Ors on 24 March, 2025
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 18/2021
CNR No. DLNE01-000369-2021
Ramesh Verma & Sons (HUF)
Through Karta Ramesh Verma
S/o Late Om Prakash Verma
R/o 133, Ground Floor,
Surya Niketan, Delhi. .....Plaintiff
Versus
1. Kamlesh Dawar
W/o Late Shyam Lal
2. Pulkit Dawar
S/o Late Shyam Lal
3. Atul Dawar
S/o Late Shyam Lal
All residents of C-4/340,
Third Floor/Top Floor,
Yamuna Vihar, Delhi. ..... Defendants
Date of Institution : 19.01.2021
Date of Reserving Judgment : 24.03.2025
Date of Judgment : 24.03.2025
AND
CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 1 of 23
CS/Counter Claim No. 15/2023
CNR No. DLNE01-003518-2021
1. Kamlesh Dawar
W/o Late Shyam Lal
2. Pulkit Dawar
S/o Late Shyam Lal
3. Atul Dawar
S/o Late Shyam Lal
All residents of C-4/340,
Third Floor/Top Floor,
Yamuna Vihar, Delhi. .....Counter claimants
Versus
Ramesh Verma & Sons (HUF)
Through Karta Ramesh Verma
S/o Late Om Prakash Verma
R/o 133, Ground Floor,
Surya Niketan, Delhi. .....Defendant
Date of Institution : 19.10.2021
Date of Reserving Judgment : 24.03.2025
Date of Judgment : 24.03.2025
JUDGMENT
1. Vide this common judgment, I shall dispose of two cases bearing CS No. 18/2021 and counter claim bearing CS Number 15/2023.
2. Plaint CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 2 of 23 2(a). Facts averred in case bearing CS number 18/2021. It is stated that the plaintiff and Late Shyam Lal had become the joint owners in the equal shares of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres by virtue of registered Sale Deed, dated 29.08.2013, duly executed by erstwhile owner, of abovesaid property, namely, Smt. Chandra Kali Devi wife of Sh. Lal Mani Mishra. It is stated that thereafter, plaintiff and Late Shyam Lal had got constructed the aforesaid property from ground floor/parking area uptill third floor/top floor out of their joint funds. As on today, the said property consists of ground floor/parking area, upper ground floor, first floor, second floor and third floor/top floor with roof. It is further stated that the plaintiff and Late Shyam Lal had already sold the upper ground floor, first floor and second floor with the proportionate rights in the land underneath of the said property to third parties by virtue of separate registered sale deeds duly executed by Late Shyam Lal and plaintiff starting from the year 2014 till the year 2015. It is further stated that after selling all the abovementioned floors, plaintiff and Late Shyam Lal were left with only one floor that is third floor/top floor with roof rights and proportionate rights in the land underneath of the said property. It is further stated that the plaintiff out of love and affection and on request of Late Shyam Lal permitted him and his family to occupy the plaintiff's share in the third floor/top floor of the said property with roof rights (hereinafter referred to as the suit property) since August 2015.
2(b). It is further stated that Sh. Shyam Lal had expired in January 2018 after which half share of Late Shyam Lal in the suit property devolved upon the defendants being the Class I legal heirs and as such the defendants became the owner of half share of Late Shyam Lal collectively and individually. It is further stated that the plaintiff after the death of Sh.
CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 3 of 23 Shyam Lal extended the licence given to Late Shyam Lal during his lifetime to the defendants at their request. It is further stated that in the month of January 2020, plaintiff had requested the defendants to hand over his half share of the property, to which the defendants had requested the plaintiff to give one more year. It is further stated that again plaintiff approached the defendants to give his half share, but, this time defendants refused the request of plaintiff to partition the property. Despite the repeated requests of plaintiff defendants had failed to hand over the physical possession of half share of plaintiff in the suit property. Defendants are therefore liable to pay use and occupation charges/damages at the rate of rupees 500/- per day excluding electricity and water charges for illegally occupying the half share of the plaintiff. It is therefore requested that a decree of partition alongwith decree of permanent injunction and decree of mesne profits be passed in favour of plaintiff and against the defendant.
3. Written statement 3(a). On the other hand, common written statement was filed on behalf of defendants in which apart from denying the allegations levelled in the plaint, it is stated by the defendants that the present suit is sheer bundle of lies and falsehood. It is stated that the defendant number 1 is the wife, while, the defendant number 2 and 3 are the sons of Late Shyam Lal, who had purchased the property bearing number C-4/340, Yamuna Vihar, Delhi alongwith the plaintiff because of good family as well as business relations between Late Shyam Lal and the plaintiff. The aforesaid property was purchased by both of them for a total sale consideration of rupees 51,00,000/-, out of which, plaintiff had paid a total amount of rupees 20,00,000/- into the account of erstwhile owner, on 02.09.2013. It is stated CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 4 of 23 that the remaining amount of rupees 31,00,000/- was paid by Late Shyam Lal that is an amount of rupees 10,00,000/- in the month of May 2013 in cash in equal ratio of rupees 5,00,000/- each alongwith an amount of rupees 21,00,000/- through account transfer into the account of erstwhile owner, on 16.08.2013. It is further stated that the complete expenses of construction work was also undertaken by Late Shyam Lal and thus plaintiff had not made any contribution in the purchase/construction of property except an amount of rupees 20,00,000/- which was given to erstwhile owner. It is further stated that at the time of the registration of documents, it was orally decided between plaintiff and Late Shyam Lal that after the completion of constructions of building, three floors would be sold. Out of the total sale consideration of those floors, plaintiff would get his invested amount as well as the profit in the ratio as he invested in the abovesaid property. It was also settled between Late Shyam Lal and plaintiff that Late Shyam Lal would get the top floor of property and the plaintiff would receive the payment in lieu of his share from the said third floor during the period of selling out the other remaining floors. 3(b). It is further stated that it was also agreed that the plaintiff would execute the necessary documents in respect of top floor in favour of Late Shyam Lal. It is further stated that after selling of the abovesaid three floors plaintiff had received an amount of rupees 29,75,000/- that is rupees 9,25,000/- at the time of selling out of second floor, on 16.10.2014, rupees 8,00,000/- at the time of selling of first floor, on 07.07.2014 and rupees 12,50,000/- from the sale consideration of upper ground floor, on 18.10.2014. It is further stated that Late Shyam Lal had paid an amount of rupees 29,75,000/- directly from the respective buyers of upper ground floor, first floor and second floor to the plaintiff which includes the sale consideration amount of top floor that is third floor of the property and CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 5 of 23 around an amount of rupees 2,15,000/- was basically the extra profit, gained by the plaintiff, but, plaintiff is not ready to acknowledge the same. It is further stated that during the lifetime of Late Shyam Lal, plaintiff used to give false assurances that he would execute the registry in favour of Late Shyam Lal, but, he never registered the documents of third floor in his favour. It is further stated that during his lifetime, Late Shyam Lal used to pay the electricity bills, water bills and house tax which all were in his name, he being the actual and absolute owner of the property in question. It is further stated that the plaintiff had already received the total sale consideration in respect of his share in the third floor of the property and now plaintiff has no right, title or interest left in the suit property. It is therefore, requested that the suit of plaintiff be dismissed.
4. Replication Replication to the written statement of defendants was filed by the plaintiffs which is essentially a reiteration of the averments made in the plaint and denial of the contentions in the written statement.
5. Issues On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled to decree of partition by metes and bounds to the extent of half share in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres in his favour and against the defendants? OPP
(ii) Whether the plaintiff is entitled to decree of possession of half share in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 6 of 23 measuring 68.75 square metres in his favour and against the defendants? OPP
(iii) Whether the plaintiff is entitled to decree of permanent injunction in his favour and against the defendants whereby defendants, their agents et cetera may be restrained from selling, transferring, parting with possession or otherwise creating any third party interest in the suit property? OPP
(iv) Whether the plaintiff is entitled to decree for mesne profits in his favour and against the defendants at the rate of rupees 500/- per day excluding electricity and water charges? OPP
(v) Whether the plaintiff is entitled to costs of the suit? OPP
(vi) Relief.
6. Plaintiff' evidence 6(a). Plaintiff has led his piece of evidence. Plaintiff has got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. He tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the documents that is site plan as Ex.PW1/1 and photocopy of sale deed, dated 29.08.2013 as Ex.PW1/2. PW1 was cross examined at length by Learned Counsel for defendants. During the course of his cross examination, PW1 has vehemently denied the suggestion put to him by Learned Counsel for defendants that he had paid only an amount of rupees 20,00,000/-, while, purchasing the property bearing number C-4/340, Yamuna Vihar, Delhi. PW1 also denied the suggestion that he had not contributed towards the construction of the abovesaid property.
Defendant's evidence 6(b). After closing of plaintiff's evidence, defendants have led their piece CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 7 of 23 of evidence. Defendant number 2 Sh. Pulkit Dawar has got examined himself as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/A. DW1 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW1 denied the suggestion put to him by Learned Counsel for plaintiff that the consideration amount after selling of three floors of property was equally shared between the plaintiff and his father.
Defendant number 3 Sh. Atul Dawar was examined as DW2. DW2 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW2/A. DW2 was also cross examined at length by Learned Counsel for plaintiff similarly as that of DW1.
7. Counter claim 7(a). Facts averred in counter claim bearing CS number 15/2023. It is stated in the counter claim that the defendant had filed the suit against the counter claimants based upon the false and fabricated facts. Counter claimant number 1 is the wife, while, counter claimant number 2 and 3 are the sons of Late Shyam Lal, who had purchased the property bearing number C-4/340, Yamuna Vihar, Delhi alongwith the defendant. It is stated that Late Shyam Lal and defendant had purchased the aforesaid property for an amount of rupees 51,00,000/-, out of which, rupees 21,00,000/- was paid by the defendant, while, the remaining amount of rupees 31,00,000/- was paid by Late Shyam Lal. It is further stated that an amount of rupees 10,00,000/- was paid in cash and an amount of rupees 21,00,000/- was paid through account transfer in the account of erstwhile owner, on 16.08.2013. It is further stated that apart from giving an amount of rupees CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 8 of 23 21,00,000/- , no further amount was ever given by the defendant either at the time of the purchasing of suit property or even at the time of construction of the same. It is further stated that it was orally decided between the parties that after construction of complete building, upper ground, first and second floors would be sold out. It is further stated that out of total sale consideration of that floors, defendant would get his invested amount as well as the profit in the ratio as he had invested in the abovesaid property.
7(b). It is further stated that it was also settled between Late Shyam Lal and defendant that Late Shyam Lal would get the top floor with himself and defendant would receive the payment in lieu of his share from the said third floor during the period of selling out the other remaining three floors. It is further stated that three floors were sold out to their respective buyers and the defendant received total amount of rupees 29,75,000/- that is rupees 9,25,000/- at the time of selling out of the second floor, on 16.10.2014, rupees 8,00,000/- at the time of selling of first floor, on 07.07.2014 and rupees 12,50,000/- from the sale consideration of upper ground floor, on 18.10.2014. It is further stated that Late Shyam Lal had paid an amount of rupees 29,75,000/-, directly from the respective buyers of the upper ground floor, first floor and second floor to the defendant which includes sale consideration amount of top floor that is third floor of property and around rupees 2,15,000/- extra profit gained by the defendant. It is further stated that during the lifetime of Late Shyam Lal, defendant kept on assuring him that he would execute the registered documents in his favour, but, never done the same. It is further stated that the counter claimants are regularly paying the electricity and water bills alongwith the house tax. It is therefore requested that a decree of mandatory injunction be passed in favour of counter claimants and against the defendant.
CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 9 of 23
8. Written statement to the counter claim 8(a). On the other hand, written statement was filed by the defendant in which apart from negating the contentions raised by the counter claimants in their counter claim and reiterating the contents of plaint in CS number 18/2021, it is stated that counter claim of counter claimants is not maintainable in the eyes of law as no relief of mandatory injunction could be granted to the counter claimants in view of section 41 (h) of the Specific Relief Act. It is also stated that the counter claim of counter claimants is also hit by section 91 and 92 of the Indian Evidence Act as the defendants by way of present counter claim are deposing the facts which are contrary to the contents of registered sale deed. It is further stated that such type of contentions are not permissible as no amount of oral evidence could be led to counter the contents of registered documents in law. It is further stated that Late Shyam Lal as well as the defendant had purchased the property in question by virtue of registered sale deed, dated 29.08.2013, which was duly constructed by both of them from their joint fund uptill third floor with roof. It is further stated that thereafter, Late Shyam Lal and the defendant sold the ground floor, first floor and the second floor of the aforesaid property and only one floor was left that is the third floor with roof rights in which both the parties have equal shares. It is further stated that Late Shyam Lal was granted licence by the defendant to be in the aforesaid third floor of the property. It is further stated that licence was extended to legal heirs of Late Shyam Lal. Though, later on, starting from January 2020, defendant had asked for the partition of the suit property by metes and bounds from legal heirs of Shyam Lal on various occasions, but, of no avail. It is therefore requested that the same be done as per law and counter claim of the counter claimants be CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 10 of 23 dismissed.
9. Replication Replication to the written statement of defendant was filed by counter claimants which is essentially a reiteration of the averments in the counter claim and denial of contentions in the written statement.
10. Issues On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiffs are entitled to mandatory injunction in their favour and against the defendant whereby, the defendant may be directed to execute sale deed in favour of the plaintiffs regarding the share in the suit property? OPP
(ii) Whether the suit of plaintiffs is maintainable in the present form or not? OPD
(iii) Relief.
11. Counter claimants' evidence 11(a). Counter claimants have led their piece of evidence. Counter claimant number 2 Sh. Pulkit Dawar has got examined himself as CCW1. He reiterated the facts as are mentioned by him in his counter claim. He tendered his evidence by way of affidavit which is Ex.CCW1/1 and relied upon the documents that is original receipt of rupees 10,000/-, dated 13.03.2013 as Ex.CCW1/A, original agreement for lift installation, dated 01.07.2014 as Ex.CCW1/B, original invoice, dated 13.09.2014 from 'Mega Lifts & Escalators' as Ex.CCW1/C, original invoice, dated 04.04.2015 from 'Mega Lifts & Escalators' as Ex.CCW1/D, original invoice, dated 11.04.2015 from 'Mega Lifts & Escalators' as Ex.CCW1/E, CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 11 of 23 original receipt of rupees 6,600/- payment made to BSES, dated 06.04.2015 as Ex.CCW1/F and original receipt of rupees 11,000/- payment made to BSES, dated 06.04.2015 as Ex.CCW1/G. CCW1 was cross examined at length by Learned Counsel for defendants. During the course of his cross examination, CCW1 admitted that his father and defendant had jointly purchased the property bearing number C-4/340, Yamuna Vihar, Delhi measuring 68.75 square metres vide sale deed, dated 29.08.2013 from it's erstwhile owner. CCW1 further admitted that he was in possession of the 4th floor/top floor of the property. 11(b). Counter claimant number 3 Sh. Atul Dawar was examined as CCW2. He reiterated the facts as are mentioned by him in his counter claim. Thereafter, he tendered his evidence by way of affidavit which is CCW2/1 and relied upon the documents already exhibited as Ex.CCW1/A to Ex.CCW1/G. CCW2 was cross examined by Learned Counsel for defendant on the similar points which were put to CCW1.
Defendant's evidence 11(c). After closing of counter claimants' evidence, defendant has led his piece of evidence. Defendant Sh. Ramesh Verma has got examined himself as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/1. DW1 was cross examined at length by Learned Counsel for counter claimants. During the course of his cross examination, DW1 submitted that he had given rupees 20,00,000/- through account, while, purchasing the old constructed property bearing number C-4/340, Yamuna Vihar, Delhi. DW1 voluntarily submitted that he had also made a further payment of rupees 4,50,000/- regarding the abovesaid property at the instance of father of counter claimant number 2 and 3. DW1 further CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 12 of 23 submitted that rupees 4,50,000/- were made to one Mr./Mrs. Kali. DW1 admitted that he had not filed any statement of account in respect of the payment received by him qua the selling of three floors in the property. DW1 submitted that he had received equal share of 50% towards the consideration in respect of the three floors sold in the property.
During the course of further cross examination, DW1 was shown the certified copy of the sale deed, dated 31.10.2014, regarding the sale of upper ground floor, wherein, DW1 admitted that he received rupees 12,50,000/- out of the total sale consideration. The document is exhibited as Ex.DW1/P1. DW1 further submitted that there was only an oral agreement/understanding/partnership/MOU for purchase, building and selling after re-constructing the same and no written instrument.
12. Arguments I have heard the arguments advanced on behalf of parties and perused the case file carefully.
12(a). Written submissions have also been filed on behalf of defendants in CS bearing number 18/2021/counter claimants in counter claim/CS bearing number 15/2023. It is submitted by Learned Counsel for defendants that same be read in counter claim as well. In the written submissions, apart from reiterating the contents of plaint, testimonies of witnesses produced on behalf of plaintiff as well as defendants, it is stated that the present suit was filed by the plaintiff for partition, possession, permanent injunction and mesne profits in respect of property bearing number C-4/340, Third Floor/Top Floor, Yamuna Vihar, Delhi, is devoid of any merits. It is stated that the the defendants had also filed a counter claim in the present suit asserting their rightful ownership over the suit property based on financial contribution, oral agreements and actual possession. It CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 13 of 23 is further stated that the plaintiff and Late Shyam Lal jointly purchased the suit property, on 20.08.2013 for a total sale consideration of rupees 51,00,000/-. Plaintiff merely contributed rupees 20,00,000/-, while, Late Shyam Lal paid the remaining amount of rupees 31,00,000/-. It is further stated that the claim of plaintiff over the entire third floor is thus legally untenable and contrary to the actual ownership arrangement. It is further stated that the entire cost of demolition and reconstruction of the property including the stilt parking and four floors (upper ground, first, second and third) was solely borne by Late Shyam Lal. This fact is corroborated by documentary evidence including the bank transactions, construction invoices and statements of independent witnesses. It is further stated that an oral agreement was entered into between the plaintiff and Late Shyam Lal wherein, it was agreed that the upper ground, first and second floor would be sold and the plaintiff would recover his investment alongwith profit in proportion to his share in the purchase amount. It was further agreed that the third floor/top floor would belong exclusively to Late Shyam Lal and the plaintiff would execute all the necessary transfer documents in his favour.
12(b). It is further stated that despite repeated assurances of Late Shyam Lal, plaintiff failed to execute the necessary documents for transferring the third floor to Late Shyam Lal. Plaintiff breached his obligation and now, after the demise of Late Shyam Lal in January 2018, plaintiff had maliciously filed the present suit to unjustify claim/ownership over the third floor. It is further stated that the defendants have been in continuous possession and ownership of the third floor since the demise of Late Shyam Lal. The electricity, water and house tax records are in the name of Late Shyam Lal and continue to be paid by the defendants for further establishing their absolute ownership and possession. It is further stated CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 14 of 23 that the plaintiff had already received his due share and profit and his claim over the third floor is legally unsustainable. It is also stated that PW1 in his cross examination had admitted that he did not maintain any account book regarding his alleged financial contribution towards the purchase of the suit property. It is also raised that PW1 had further admitted that he has no documentary proof regarding his investment in the construction of the property. It is also stated that PW1 had admitted that three floors of the property were sold to third parties, but, failed to prove that he retained any share in the top floor after the said sale. PW1 further admitted that he did not execute any written licence in favour of defendants' father to reside in the property and claims an oral agreement which is legally untenable. It is further stated that the DWs categorically denied that the plaintiff and his father equally contributed to the purchase and construction of the suit property. DW's confirmed that the three floors were sold by the plaintiff and the defendants' father, but, denied that the proceeds were equally divided, thus negating the plaintiff's claim of continued ownership. Thereafter, Learned Counsel for defendants has relied upon the judgments titled as Anil Rishi v Gurbaksh Singh (2006) 5 SCC 558, M.C. Chacko v State Bank of Travancore, (1970) 1 SCC 902, Khatri Hotels Pvt. Ltd. v Union of India, (2011) 9 SCC 126 and Baldev Singh v Darshani Devi, (2022) 3 SCC 853. All these judgments have been perused very carefully vis-a-vis facts of the case. They do not apply to the present facts and circumstances.
13. Reasons and analysis/finding After recording the gist of evidence led by plaintiff, let me record the findings on each issue.
13(a). Issue number 1 in civil suit, that is, whether the plaintiff is entitled CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 15 of 23 to decree of partition by metes and bounds to the extent of half share in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres in his favour and against the defendants? and Issue number 2 in civil suit, that is, Whether the plaintiff is entitled to decree of possession of half share in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres in his favour and against the defendants? Issue number 1 in counter claim, that is, whether the plaintiffs are entitled to mandatory injunction in their favour and against the defendant whereby, the defendant may be directed to execute sale deed in favour of the plaintiffs regarding the share in the suit property? and Issue number 2 in counter claim, that is, whether the suit of plaintiffs is maintainable in the present form or not? Onus of proving both issues in civil suit as well as issue bearing number 1 in the counter claim is upon the plaintiff, while, the issue bearing number 2 in the counter claim is upon the defendant. All these issues being interconnected and having the bearing upon each other are taken up together.
13(b). To start with, it needs to be stressed that the incidence of legal burden is clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 16 of 23 may be, was adduced by either side. Indian Evidence Act also works in consonance with this universally acceptable scheme. As, mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
13(c). Firstly, here admittedly sale deed, dated 29.08.2013, qua property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres, of which suit property is also a part exists in favour of plaintiff as well as Late Shyam Lal and same has been produced/exhibited/accepted. With respect to the documents, the word document has been defined in section 3 of the interpretation clause of the Evidence Act as " document means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of these means, intended to CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 17 of 23 be used, or which may be used for the purpose of recording that matter." The said definition has also been adopted in section 3 (18) of the General Clauses Act, 1897. Also, it is explicitly laid down in section 62 of the Evidence Act that primary evidence means the document itself produced. Concept of secondary evidence in cases of documents has also been elaborated in the same Act, though in subsequent sections. Basically, secondary evidence is that type of evidence which may be given under certain circumstances, in the absence of better evidence which the law requires to be given first. As a general rule, it is admissible only in absence of primary evidence. The expression "means and includes in section 63"
makes it clear that the five clauses referring to secondary evidence are exhaustive. Again, as per section 64, documents must be proved by primary evidence. A written document can only proved by the instrument itself. Whenever a transaction evidenced by a sale deed is required to be brought on record, the execution thereof has to be proved. Oral admission as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document, or unless the genuineness of a document produced is in question. Reliance is placed upon Cement Corporation of India Ltd. v Purya, (2004) 8 SCC 270, Murarka Properties Pvt. Ltd. v. Beharilal Murarka, AIR 1978 SC 300, Shakila Abdul Gaffar Khan vs. Vasant Raghunath Dhoble, (2003) SCC 749 (paras 12 and 29) and H. Siddiqui v A. Ramalingam, (2011) 4 SCC 240 (para 12) and H. Siddiqui (Dead) by LRs. v A. Ramalingam, (2011) 4 SCC 240 (para 12). 13(d). Secondly, qua the proof of the ownership over the suit property, registered documents must be given primary preference. In other words, it can be said that no right, title or interest in an immovable property can be conferred without the registered documents. Embargo, put on the CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 18 of 23 registration of the documents would not override the statutory provision so as to confer the title on the basis of unregistered documents. Reference may be made on Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr, 183 (2011) DLT 1 (SC), Ameer Minhaj vs. Deirdre Elizabeth (Wright) Issar & Ors., (2018) 7 SCC 639, Balram Singh vs. Kela Devi, Civil Appeal No. 6733/2022 and M/s. Paul Rubber Industries Private Limited vs. Amit Chand Mitra & Anr., SLP (C ) No. 15774/2022 and Shakeel Ahmed Vs. Syed Akhlaq Hussain, Civil Appeal No. 1598/2023, decided on 01.11.2023. Also, it is not out of place to say that it is fossilized in law, from the time of Tylor v Tylor (1875) LR1 Ch D 426 and Nazir Ahmed v. King Emperor 1938 SCC online PC 41 that if the manner of doing a particular act is prescribed under any statute, the Act must be done in that manner or not at all and all other methods of performance are necessarily forbidden. Adverting, to the facts of the present case, as already observed/mentioned/admitted that sale deed which is Ex.PW1/2 was executed in favour of Late Shyam Lal and the plaintiff qua the property in question. The suit property is one of the floors that is the third floor/top floor with the roof rights in the property in question that is C-4/340, Yamuna Vihar, Delhi. Till, this point there is no controversy between the parties that is property in question is jointly owned and except third floor/top floor all the remaining floors were already sold. Thereafter, allegations/counter allegations were made by plaintiff as well as defendants/counter claimants. As on one hand, plaintiff is claiming half share of third floor/top floor on the basis of aforesaid sale deed, on the other hand, defendants are claiming third floor/top floor exclusively on the ground of some oral agreement entered into between Late Shyam Lal and plaintiff as well as on the ground that the plaintiff has not contributed anything towards the construction of property in question.
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CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 19 of 23 13(e). As, according to defendants, plaintiff had already received his share from the sale consideration of remaining floors alongwith some extra amount and now he is not entitled to any share in the third floor/top floor. Though, it is to be mentioned that despite opportunities given neither in the main case nor even in their counter claim defendants were able to explain the exact amount involved in construction of floors of property in question and the exact total amount received by the parties after selling of all the floors except top floor and the mode of amount received whether in cash or otherwise. At the same time, it remains incomprehensible that what exact amount came into share of each of the parties and how the amount received by plaintiff allegedly disentitled him to have share of third floor/top floor especially, in light of the fact that there is no written subsequent agreement as well as no person other than defendants are there to depose regarding that alleged oral agreement. It is also stated by defendants that the plaintiff had not contributed even a single penny towards the cost of the construction of the property in question and in their counter claim being the counter claimants, they have relied upon the documents especially, receipt which is Ex.CCW1/A, agreement for installation of lift, Ex.CCW1/B, invoice, dated 13.09.2014 Ex.CCW1/C, again an invoice, dated 04.04.2015 Ex.CCW1/D, Ex.CCW1/E as well as payments made to BSES to prove that Late Shyam Lal had exclusively paid the money for the construction of the property. Undoubtedly, there are some of the invoices which were issued in the name of Late Shyam Lal, but, it is not wrong to say that these invoices as such failed to establish/prove that it is the Late Shyam Lal who had paid the alleged amount found mentioned in these aforesaid invoices, receipts et cetera. Therefore, in the overall circumstances and in light of above discussion, the burden of proof lying upon the plaintiff has been well discharged by CS No. 18/2021 Ramesh Verma Vs. Kamlesh Dawar & Ors.
CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 20 of 23 the plaintiff by proving/establishing the sale deed, dated 29.08.2013 which is Ex.PW1/2, the execution of which is admitted by the defendants as well alongwith the fact that the suit property is one of the portions of the property mentioned in the sale deed. On the other hand, the onus shifted upon the defendants with respect to the contentions/counter allegations raised by them especially with respect to the proof of the fact that inspite of the availability of the sale deed in question according to which, plaintiff as well as Late Shyam Lal are the owners in equal proportions of property in question, defendants are owners in exclusion of plaintiff has not been established/proved. Accordingly, issues bearing number 1 and 2 in the civil suit are decided in favour of plaintiff and against the defendants, while, issues bearing numbers 1 and 2 in counter claim are decided against the counter claimants.
13(f). Issue number 3 in civil suit, that is, whether the plaintiff is entitled to decree of permanent injunction in his favour and against the defendants whereby defendants, their agents et cetera may be restrained from selling, transferring, parting with possession or otherwise creating any third party interest in the suit property? The onus to prove this issue is upon the plaintiff. As, issues bearing numbers 1 and 2 in the civil suit have already been decided in favour of plaintiff, this issue is also decided in favour of plaintiff.
13(g). Issue number 4 in civil suit, that is, whether the plaintiff is entitled to decree for mesne profits in his favour and against the defendants at the rate of rupees 500/- per day excluding electricity and water charges? The onus to prove this issue is upon the plaintiff. Plaintiff has miserably failed to lead any relevant piece of evidence in that regard even after availing relevant opportunities to do the same. Neither, the same has ever been stressed nor explained by the plaintiff at any stage of the case.
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CS/Counter Claim No. 15/2023 Kamlesh Dawar & Ors. Vs. Ramesh Verma Page No. 21 of 23 Accordingly, this issue is decided against the plaintiff. 13(h). Issue number 5 in civil suit, that is, whether the plaintiff is entitled to cost of the suit? The onus to prove this issue is upon the plaintiff. Again, no relevant evidence has been led by the plaintiff to claim the costs nor pressed this issue during the course of his oral arguments. Accordingly, this issue is also disposed of.
14. Accordingly, in view of foregoing discussion of the case coupled with evidence adduced on record by plaintiff, the suit of plaintiff is decreed in favour of plaintiff and against the defendants in the following terms:- (a) Plaintiff and defendants shall be entitled to half (½) share in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres. The preliminary decree of partition be passed accordingly. The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course. (b) A decree of permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendants, their agents, assignees, attorneys, administrators, representatives et cetera or any other person action through and for and on behalf of the defendants from selling, transferring, parting with possession or otherwise creating any third party interest in the suit property that is third floor/top floor with roof rights of property bearing number C-4/340, Yamuna Vihar, Delhi, measuring 68.75 square metres.
15. Preliminary decree sheet be prepared accordingly.
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16. Further, in view of overall circumstances and also in light of foregoing discussion, the counter claim of counter claimants being devoid of merits and in light of above discussion is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly.
17. Put up for further proceedings/drawing of final decree on 30.04.2025.
18. File of counter claim be consigned to Record Room after necessary compliance MANU Digitally signed by MANU VEDWAN VEDWAN Date: 2025.03.24 16:21:33 +0530 (Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court
today i.e. 24th March, 2025
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