Delhi District Court
Unknown vs Sh. Trilok Chand (Corrected As Per Order on 12 January, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
New No. 12170/16
In re:
1.Sh. Paras Ram
S/o Munshi Ram
R/o H. No. 69, Village Jaunti, Delhi.
2. Krishan Kumar (since deceased)
Through his Lrs
A. Smt Savitri Devi
Widow of Late Sh. Krishan Kumar Sharma
B. Mahesh Kumar Vats Sons of Sh. Krishan
C. Rajesh Kumar Sharma Kumar Sharma
D. Vinod Kumar Sharma
E. Smt. Rekha Vats
F. Master Kunal Vats Trilok Chand, pre
(Minor Son) deceased son of
G. Miss. Dhanushree Vats Sh. Krishan
(Minor daughter) Kumar Sharma
All R/o C-10, Khazan Basti,
Village Nangal Raya,
New Delhi
(Minor through Smt. Rekha Vats,
their mother and next friend having no adverse interest the
minors)
H. Smt. Daya Wati
W/o Ramesh Parhar
D/o Krishan Kumar Sharma
R/o A-34, Brahmin Mohalla,
Ward No. 4, Kharkhoda,
District Sonepat,
Haryana.
3. Smt. Shanti
W/o Prem Kaushik,
R/o E-340, Shakurpur,
J. J. Colony, Delhi.
CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 1 of 26
4. Smt. Laxmi Devi
W/o Sh. Ram Dhan
R/o Village Saragthal,
Distt. Sonepat, Haryana ......... Plaintiffs
Versus
1. Sh. Trilok Chand (corrected as per order
S/o Late Ganga Sarup dated 01.06.2004)
2. Sh. Hans Raj
S/o Late Ganga Sarup
3. Smt. Premo
W/o Late Ganga sarup
All R/o Village Jaunti, Delhi.
4. Smt. Sunita Rani
W/o Sh. Harish Kumar
R/o Village Bhadhana,
P. O. Bhadhani, Jhajjar, Haryana
5. Sh. Sajjan Kumar (deceased)
Through his Legal Heirs
a) Smt. Omvati
b) Sh. Deepak Sharma
Both R/o 232/3, Haiderpur
Amedkar Nagar,
New Delhi-110088
c) Smt. Sushma
W/o Shri Hemant Kumar
R/o 220, Kewal Park,
New Delhi.
d) Smt. Seema
W/o Sh. Sandeep Kumar
R/o H. No. 394, Tajpur
New Delhi.
e) Smt. Rekha
CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 2 of 26
W/o Sh. Somesh Kumar
R/o B-6/347/1, Sector-6,
Rohini, New Delhi.
6. Smt. Tulsa
W/o Jai Narain
R/o Village Kami, Distt. Sonepat, Haryana.
7. Smt. Indro
W/o Laxmi Narain
R/o Vill. Pai, Distt. Sonepat, Haryana.
8. Shri Ashok Kuar Panditji
S/o Shri Om Prakash
R/o Vilalge Kharhar,
P. O. Khas District Jhajjar, Police Chowki Asauda
P. S. Bhadurgarh, Haryana
9.Smt Urmila
W/o Shri Randhir Singh
R/o Gali No. 1, Mathke Wali Gali
Uttam Nagar, Ward No. 16,
Seek Rathari Wali
Gohna, Sonepat .......Defendants
SUIT FOR PARTITION
Date of institution of present suit : 21.05.2004
Date of receiving in this court : 12.04.2016
Date of reserving order : 23.12.2016
Date of Judgment : 12.01.2017
JUDGMENT
The brief facts of the case are that Kishan Lal had four sons namely, Dani Ram, Chandgi Ram, Mauji Ram and Maunshi Ram. Dani Ram died issue less on 01.12.1969, Mauji Ram died in the year 1972, Chandgi Ram died on 12.07.1965 leaving behind four LRs namely Sajjan Kumar, defendant no. 5, Ganga Ram (since deceased), Smt. Indro CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 3 of 26 (defendant no. 7), Smt. Tulsa (defendant no. 6) and Smt Chand Bai(since deceased). Sh. Ganga Swarup one of the LR of Chandgi Ram died leaving behind defendant no. 1 to 4 i.e. Tilak Raj, Hans Raj, Smt. Premo and Ms. Kokan as LR. Smt. Chandgi Bai another LR of Sh Ganga Swarup had died leaving behind Ashok Kumar and Urmilla (defendant no. 8 and 9 respectively). Sh. Munshi Ram died on 11.09.1989 leaving behind four LRs namely Paras Ram, Krishan Kumar, Smt. Shanti and Smt. Laxmi Devi (plaintiff no. 1 to 4 respectively). It has been further mentioned that first of all Sh. Chandgi Ram died and his rights devolved upon the defendants and Chandgi Ram was having 25% share in the properties of the Shri Kishan Lal, their being fours sons of Kishan Lal. It has been further mentioned that thereafter Dani Ram died issue less and as per Hindu Succession Act, Class-II heirs, his rights devolved upon Mauji Ram and Mushi Ram and thereafter Sh. Mauji Ram died withtout leaving any first class legal heirs and therefore rights & share of Mauji Ram devolved upon Munshi Ram. Thus, share of Munshi Ram became 3/4th in the family properties i.e. properties left behind by Sh Kishan Lal. It has been further mentioned that Munshi Ram died leaving behind plaintiff no. 1 and 2 as sons and plaintiff 3 and 4 as daughters. As far as daughter of Munshi Ram are concerned, they did not claim any share in the properties of their father, however, they had been impleaded as co- plaintiffs to avoid any objection from the defendants. It has been mentioned that following were the joint properties of parties:-
(a) House in Old Lal Dora of Village Jaunti, Delhi and this house is occupied by the defendants,
(b) House no. 69, in Old Lal Dora of Village Jaunti, Delhi. It is stated that in this property, there is a built up house and is in possession of plaintiff no. 1 and rest of portion shown green is in possession of the plaintiff No. 2 which has been demolished and this property is more particularly shown Green in plan as Annexure B and the portion which is in possession of plaintiff CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 4 of 26 no. 1 is shown in red colour. It has been further mentioned that defendant no. 1, 3 and 5 have wrongly and illegally started raising construction on the green portion of the property no. 69 and defendants were already occupying more than their shares and they have no right to raise any construction on the portion shown green in property no. 69.
(c) Plot/property bearing no. 456, situated in Lal Dora of Village Jaunti, Delhi admeasuring 1750 Sq. yds. It has been mentioned that this plot was alloted for residence during the consolidation held in village Jaunti in the name of Sons of Kishan Lal. It has been mentioned that in this plot , the share of the plaintiffs was to the extent of 3/4th and the defendants was to the extent of 1/4th. This plot is in joint possession of parties.
2. It has been further mentioned that Sh. Ganga Sarup and Sajjan Singh sons of Late Shri Chandgi Ram had filed a suit for permanent injunction in respect of above said plot No. 456 against Krishan Kumar and Paras Ram and this suit was decided on 08.02.1994 wherein it was held that aforesaid plot was joint property of the said persons as partition had not taken place and so, restrained the present plaintiffs No.1 and 2 from dispossessing the Ganga Sarup etc. from the said suit property and from raising any construction. It has been rfurther mentioned that because of that decree of injunction this property was lying vacant and was not being put to any use. It has been further mentioned that the share of the plaintiffs is 3/4th and share of the defendants is 1/4th in all the above said three properties.
3. It has been further mentioned that plaintiff no. 2 was not in a position to live in this village as he had no place to live and the defendants being powerful persons were not only quarrelsome persons but also do not allow the plaintiff no. 2 and his sons to occupy any portion CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 5 of 26 of the properties. It is has been further mentioned that defendant no. 1, 3 and 5 started construction on 17.05.2004, whereupon the matter was reported to the police but the defendants were not desisting from their illegal activity and police asked the plaintiffs no. 1 and 2 to obtain orders from the court and so the plaintiffs filed the present suit. It has been further mentioned that properties in question had not been partitioned by metes and bounds and under these circumstances, it was not feasible to keep the properties joint. The defendants were not ready to partition the properties. It has been further mentioned that defendant no. 1, 3 and 5 on the contrary are trying to raise illegal constructions in spite of the protest from the plaintiff Nos. 1 and 2 and so the plaintiffs have no other remedy but to seek protection from the court. Hence, the present suit.
4. Upon being served with summons of the suit, all defendants filed written statement jointly and raised preliminary objections that the present case is not maintainable as the matter for which the present suit was filed was simply to prolong the case in question; that prayer for which this suit was filed had already been decided by the then Ld. Civil Judge; that the present suit was filed in order to prolong the case by raising unlawful claims and unlawful obstructions; that plaintiff had filed the present suit with malafide intention by suppressing the real and material facts from court and had filed the above said suit for malacious and illegal gains; that plaintiff had not come with clean hands before court. On merits it has been submitted that no house number regarding the area of land was mentioned and plaintiff no. 1 was in possession of the House No. 69 in Old Lal Dora of Village Jaunti Delhi and the rest of the house was having house No. 59 in Jounti village was in possession of defendant. It has been further mentioned that areas as shown in green was not in possession of plaintiff and actually it was under the possession of defendant No.1 namely Tilak Raj. It has been further submitted that after the demise, share of Sh. Dani Ram had been divided into three parts one CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 6 of 26 regarding defendants and other regarding two brothers and after the death of Sh. Mauji Ram, his share had to be divided among the defendants and Sh. Munshi Ram. It has also been submitted that share as mentioned was only fictitious share as treated by the plaintiffs. It has been further mentioned that plot was allotted for residence during the consolidation held in Village Jaunti in the name of the aforesaid four brothers i.e. the son of Kishan Lal. It has been also submitted that the contention about illegal construction was wrong and denied but actually the defendants was having physical control over the property. Rest of the contents of the plaint was denied by the defendants.
5. Subsequently, after plaintiff had led their evidence, vide order dt 20.01.2005 and 23.02.2005 defendant no. 3 and 5 respectively were allowed to filed written statement and accordingly on 29.04.2055 defendants No.3 and 5 filed common written statement which was adopted by defendant No.4 on 19.07.2005. Be that as it may, defendant no. 3 and 5 raised preliminary objection stating that suit for partition was not maintainable in respect of properties as mentioned in para 5 (a) and 5
(b) of the plaint as these two properties were not joint properties between the parties; that property mentioned in para 5 (a) of the plaint comprised in Khasra No. 41, Lal Dora of Village Jaunti, Delhi, bore Municipal No. 396; that property bearing no. 396 was inherited by four sons of Kishan Lal in equal shares; that Sh. Dani Ram was married but had no child from his wedlock and Mauji Ram was never married; that Munshi Ram and Dani Ram did not live in the village and Sh. Mauji Ram used to live with Sh. Chandgi Ram; that Dani Ram and Munshi Ram sold their shares to defendant no. 5 and the husband of defendant no. 3 vide sale deed dated 20.07.1966 duly registered with Sub Registrar of properties on 21.07.1966 by virtue of which they transferred their rights in the said property in favour of defendant no. 5 and the husband of defendant no. 3; that there was partition between the four brothers during their lifetime in CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 7 of 26 respect of other properties and it was agreed that share of Dani Ram would go to Sh. Mushi Ram and share of Sh. Mauji Ram would go to Sh. Chandgi Ram; that the father of plaintiff's and late Dani Ram having sold their interest in the plot and share of Mauji Ram having fallen to the share of Late Chandgi the plaintiff were left no right, title or interest mentioned in para 5(a) of the plaint and resident house of defendant no. 1, 3 and 5 as shown in the site plaint were standing on this plot for last number of years; that property bearing No. 69 old Lal Dora of village Jaunti, Delhi measuring 186 sq. yards has been wrongly and deliberately described as property no. 69 in fact there were two houses, one bearing House no. 59 shown in yellow colour in the site plan filed by defendant while other bore House no. 69 shown in red colour in the site plan; that initially there used to be one house when Kishan Lal was alive and after his death the house was inherited by his four sons and was partitioned between the brothers during their lifetime; that it was decided that the Munshi Ram would take the share of Dani Ram who was issue less and Chandgi Ram would take the share of Mauji Ram who was unmarried; that property was divided and partitioned between the parties and the house shown in the plan in red colour was constructed by the father of the plaintiffs bearing No. 69 and plaintiffs were owner in possession of House No. 69 having inherited by them from their father Sh. Munish Ram; that defendant no. 1, 3 and 5 had inherited the yellow portion shown in site plan bearing Municipal No. 59; that defendant no. 5 had further surrendered his share in the house no. 59 in favour of defendant No. 3 and defendant no. 5 had no right, title or interest in the House No. 59 which was in the ownership and possession of the successors of Late Ganga Sarup.
6. It has been further mentioned that this Court had no jurisdiction to try and entertain the suit for partition in respect of properties governed by provisions of Delhi Land Reforms Act; that suit properties were situated in Lal Dora/extended Lal Dora Abadi of Village Jaunti, Delhi CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 8 of 26 and provisions of Delhi Land Reforms Act bars the jurisdiction of Civil Court to grant partition in respect of properties; that court of Revenue Assistant/SDM had the jurisdiction to grant a relief prayed for by the plaintiffs; that suit was not valued properly for the purpose of court fee and jurisdiction; that plaintiffs had not come to the court with clean hands and plaintiffs had deliberately concealed the factum of execution of the sale deed by their predecessors in interest in respect of property i.e. House in Old Lal Dora of Village Jaunti, Delhi admeasuring 352 sq. yards; that factum of partition in respect of property no. 59 and 69 having taken place during the lifetime of four brothers had been concealed by the plaintiffs; that suit of the plaintiff was bad for non-joinder of necessary parties; that Smt. Chand Bai, daughter of Sh. Chandgi Ram had not been shown in the pedigree table; that Smt. Chand Bai was the married daughter of said Chandgi Ram and had died leaving behind three legal heirs namely Ashok, Smt. Urmila and Sh. Bijendra who died unmarried; that plaintiffs had deliberately omitted to implead them as parties. On merits it has been submitted that sale deed had been executed by Munish Ram and Dani Ram in respect of their share in house/plot no. 396 and share of Mauji Ram having fallen to the share of Chandgi Ram in oral partition and said Chandgi Ram had become the owner of property mentioned as House in Old Lal Dora of Vilalge Jaunti, Delhi admeasuring 352 sq. yards and property no. 59 of Village Jaunti; that the construction in plot no. 59 had been raised long time ago by Sh. Chandgi Ram and same was old thereafter defendant no. 1 had carried out vast renovations in House No. 59 has been in possession of the defendants. Rest of the contents of plaint was denied by the defendant no. 3 and 5.
7. Plaintiff filed replication to the written statement of defendant No.1 and thereby denying the contents of the written statement and reiterating the averment made in the plaint.
CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 9 of 26
8. On the pleadings of the parties, following issues were framed by the Ld. Predecessor vide order dated 12.10.2004:
1. Whether the suit is not maintainable in view of pleas taken by the defendant No. 1 in para no. 3 on merits in WS? OPD.
2. Whether the suit is not maintainable in view of preliminary objection no. 1 in WS? OPD.
3. Whether the plaintiff is entitled to preliminary decree of partition as prayed? OPP.
4. Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
5. Whether the plaintiff is entitled to final decree of partition as prayed? OPP.
6. Relief.
On 17.08.2005, following additional issues were framed by the Ld. Predecessor:-
2(a). Whether there was partition in the property among the four brothers who are ancestor of party in view of preliminary objection no. 1 of written statement of defendant no. 3 and 5? OPD.
2(b). Whether the suit is barred under the provisions of Land Reform Act? OPD 3 and 5.
2(c). Whether the suit is not valued properly for the
purposes of court fee and jurisdiction? OPD 3 and 5.
2(d). Whether the suit is bad for non-joinder of Ms. Chand
Bai? OPD 3 and 5.
9. In order to prove plaintiffs' case, plaintiffs examined Sh.
Paras Ram as PW-1 wherein he relied upon documents i.e. death certificate of Sh. Chandgi Ram Ex. PW-1/1, death certificate of Dani Ram Ex. PW-1/2, Copy of death certificate of Munshi ram Ex. PW-1/3, the site CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 10 of 26 plan of property i.e. House in Old Lal Dora of vilalge Jaunti, Delhi measuring 352 sq. yards Ex. PW-1/4, site plan of property bearing no. 69 Ex. PW-1/5, site plan of property bearing plot no. 456, Lal Dora of Village Jaunti, Delhi Ex. PW-1/6, certified copy of judgment Ex. PW-1/7 and copy of Khatuni paimaish Ex. PW-1/8. He was cross examined by Ld. Counsel for defendants. After that, plaintiff closed plaintiff's evidence in affirmative. Evidence in rebuttal was filed by the PW-1 Sh. Paras Ram and he was cross examined by Ld. Counsel for defendant no. 1, 3 and 5. Thereafter, plaintiff's counsel closed plaintiff's evidence in rebuttal.
10. Defendant No. 1 examined Sh. Sajjan Kumar as DW-1 who relied upon documents i.e. certified copy of sale deed Ex. DW-1/1, site plan of property Ex. DW-1/2, site plan of property no. 59 Ex. DW-1/3, election cards of defendant no. 1 and family members Ex. DW-1/4 to DW- 1/7. He was cross examined by Ld. Counsel for plaintiff. Defendant also examined one official witness namely Sh. S. K. Verma, UDC, Office of Sub-Registrar, Kshmiri Gate, Delhi who proved the summoned record i.e. registered sale deed dated 28.07.1966 which is Ex. DW-3/1. DW-3 also cross examined by the Ld. Counsel for plaintiff.
11. Argument heard. Record perused. Before taking up issue wise findings, it is worthwhile to note here the proceedings of the case. When the suit was filed summons were issued to the defendants. Initially there were seven defendants. On 01.06.2004, Sh. Pramod Mudgil advocate appeared on behalf of all defendants, however vakalatnama he filed was signed by defendant no. 1 only. Defendant no. 5 was also present on that day. Ld. Counsel for defendant undertook to file memo of appearance for all the defendants when matter was adjourned for filing of written statement. On 25.08.2004, written statement was filed heading of which shows that it was filed on behalf of all the defendants. Although, it was signed only by the defendant no. 1. Thereafter issues were framed CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 11 of 26 and matter was listed for plaintiff's evidence. Plaintiff's evidence was recorded partly before the Ld. Local Commissioner and partly before the court. Thereafter an application was filed on behalf of the defendants under Section 151 CPC thereby seeking to place on record sale deed dated 21.07.1966. The said application was dismissed vide order dated 04.01.2005. On 14.01.2005, Vakalatnama was filed on behalf of defendant no. 1 and defendant no. 5 was proceeded against ex-parte. It has also been recorded that Ld. Counsel for defendant no. 1 to 3 seeks adjournment for filing affidavit in evidence and an application was filed under Section 151 CPC on behalf of defendant no. 1 and 2. On 20.01.2005 after recording submissions of the parties, the Court was pleased to direct that defendant no. 2 be served by way of publication in the newspaper. It was also noted in the order sheet that defendant no. 6 and 7 were yet to be served accordingly, direction was issued for service upon them. On 23.02.2005, defendant No.3's application was allowed and his ex-parte proceedings was set aside against him and he was allowed to file written statement. On 23.02.2005, defendant no. 2 was proceeded against ex-parte and defendant No.5 was allowed to file written statement. On 29.04.2005, defendant no. 3 and 5 filed written statement jointly. On 30.05.2005, defendant no. 6 and 7 were proceeded against ex-parte. On 19.07.2008, defendant no. 4 adopted the written statement of defendant no. 1 and 3. On 17.08.2005, additional issues were framed and on 31.08.2005, an application under Order 1 Rule 10 CPC was filed on behalf of plaintiff. On 31.10.2005 application under Order 1 Rule 10 CPC was allowed and on 14.11.2005 amended plaint was filed. On 28.11.2005, defendant no. 1, 3, 4 and 5 qua the amended plaint adopted the written statement already filed by them to the original plaint. On 31.10.2005, defendant no. 8 and 9 were proceeded against ex- parte. During the pendency, plaintiff no. 2 and defendant no. 5 expired and their legal heirs were subsequently brought on record.
CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 12 of 26
12. Testimony of respective witnesses have been appreciated while recording issue wise findings in order to avoid repetition. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the respective Counsel for parties, issues wise findings are recorded herein after ISSUE No. 1 Whether the suit is not maintainable in view of pleas taken by the defendant No. 1 in para no. 3 on merits in WS? OPD.
13. Onus to prove this issue is upon the defendants. Defendant no. 1 in his written statement in para 3 on merit has submitted that the manner of devolution of inheritance upon the plaintiffs and defendant as claimed by plaintiff was wrong and not in accordance with law. According to defendant, upon the demise of Dani Ram, who died issue-less his share devolved upon three legal heirs that is upon the legal heirs of Chandgi Ram, and upon Mauzi Ram and Munshi Ram. Similarly, it has been claimed that upon the death of Mauji Ram his share devolved upon the legal heir of Chandgi Ram and upon Munshi Ram, and therefore, it is the contention of the defendant that the legal heir of Chandgi Ram and legal heir of Munshi Ram were co-owner to the extent of one-half whereas contention of the plaintiff is that since Chandgi Ram has expired prior to Dani Ram and Mauji Ram, therefore, share of Dani Ram and Mauji Ram would not devolve upon the legal heir of Chandgi Ram as they are the legal heir of 2nd Class and coming under entry no. 4 as per scheduled to the Section 8 of the Hindu Succession Act. Therefore, plaintiffs claimed to be entitled to 3/4th share whereas defendants entitled to 1/4th share.
14. It is not in dispute that Chandgi Ram expired on 12.07.1965, Dani Ram expired on 01.12.1969 and Mauzi Ram expired in the year 1972. It is also not in dispute that Dani Ram was issue-less and left behind no first class legal heir. Admittedly, defendant no. 1, 2, 3 and 4 are CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 13 of 26 class-II legal heir but their position comes after the entry no. 2 whereas Mauzi Ram and Munshi Ram being the class-II legal heir and coming into the entry no. 2 are entitled to share the entire estate of the Dani Ram and therefore, share of Dani Ram will not devolve upon the legal heir of Chandgi Ram. Therefore, upon the demise of Dani Ram, the legal heirs of Chandgi Ram remained entitled to 1/4th share in the property whereas Mauzi Ram and Munshi Ram each became entitled to 3/8th share. Similarly when Mauzi Ram died, his entire estate devolved upon Munshi Ram as he was the only legal heir of class-II entry no. 2 and legal heir of Chandgi Ram would not inherit the share of Mauzi Ram. In these circumstances, Munshi Ram was entitled to 3/4th share. Section 50 of Delhi Land Reform Act will not apply for the determination of manner of devolution for the reason that said section is applicable in respect of "holdings" which does not include the abadi land. Even if same is taken in to consideration sons of Chandgi Ram would not inherit the share of the Dani Ram and Mauzi Ram for the reason that "son of brother" has been shown at number (n) whereas brother has been shown in serial number
(j) much before the "son of brother" in Section 50 of Delhi Land reforms Act. Therefore, the contention of the defendant no. 1 as far as the manner of devolution of interest and about extent of share is concerned is wrong and assertions of the plaintiff is correct.
Accordingly, issue no. 1 is decided against the defendants and in favour of plaintiffs.
Issue No. 2. Whether the suit is not maintainable in view of preliminary objection no. 1 in WS of defendant no. 1? OPD.
15. Onus to prove this issue is upon the defendant. In para 1 of the preliminary objection of the written statement it has been contended by the defendant no. 1 that since the issue had already been decided by the Court of Sh. Bablir Singh, the then Ld. Civil Juge, Delhi, therefore, suit CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 14 of 26 was not maintainable. The contention of the plaintiffs is that since the said suit did not decide the question which has been raised in the present matter, present suit is maintainable. It has been further contented that even otherwise the judgment held that property mentioned in serial number C i.e. bearing no. 456 has not been partitioned between the parties. Hence, it is contended that suit is maintainable.
16. Perusal of the judgment dated 08.02.1994 Ex. PW-1/8 shows that defendant No.5 father of the defendant no. 1 had filed suit for injunction against the plaintiff no. 1 and 2 herein in respect of plot bearing no. 456 thereby seeking restrain order against the plaintiff no. 1 and 2 herein from raising construction in the said property. The said suit was contested by plaintiff no. 1 and 2 herein submitting therein that said property has been partitioned and they had 3/4th share whereas plaintiffs therein had 1/4th share. Ld. Court while deciding the said suit did not decide the shares but held that partition had not taken place between the parties and accordingly restrained the plaintiff no. 1 and 2 herein from raising any further construction in the said plot.
17. Present suit is suit for partition and involves three suit properties whereas the said suit was prohibitory injunction suit and was only in respect of plot bearing no. 456 and the issues directly and substantially an issue in the present matter was not an issue in the said matter, accordingly, it cannot be said that by way of the decision in the said suit issue involved in the present matter was decided by the said Court.
Accordingly, issue No. 2 is decided against the defendants and in favour of plaintiff.
ISSUE No. 2(a):- Whether there was partition in the property among the four brothers who are ancestor of party in view of preliminary CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 15 of 26 objection no. 1 of written statement of defendant no. 3 and 5? OPD.
18. Onus to prove this issue is upon the defendant no. 3 and 5. In para no. 1 of preliminary objection of the written statement of defendant no. 3 and 5, it has been claimed that suit for partition is not maintainable in respect of properties described in Para 5 (a) and 5 (b) of the plaint. It has been claimed that these two properties were not joint properties between the parties. It has been claimed that property number para 5 (a) comprised in Khasra no. 41, Lal Dora and bore Municipal number 396 was inherited by four sons of Kishan Lal in equal shares. It has been further claimed that Dani Ram though married and died issue-less without having any first class legal heir and Mauzi Ram was unmarried and was living with Chandgi Ram. It has been claimed that Munshi Ram and Dani Ram did not live in the village and they sold their share to defendant no. 5 and husband of defendant no. 3 vide a sale deed dated 20.07.1966 and registered with Sub-Registrar on 21.07.1966. It has been further claimed that there was a partition between four brothers during their lifetime in respect of other properties and it was decided that share of Dani Ram would go to Munshi Ram and share of Mauzi Ram would go to Chandgi Ram and therefore, Munshi Ram and Dani Ram sold their interest in the plot and share of Mauzi Ram having fallen to the share of Late Chandgi Ram and thus, the plaintiffs have no right, title and interest in the property.
19. Similarly, in respect of the property mentioned in Para 5(b) of the plaint, it has been submitted that House No. 69 admeasuring 186 square yards has been wrongly described as property No. 69. As per defendant no. 3 and 5 there were two houses bearing House No. 59 which has been shown in yellow colour in the site plan and other is House No. 69 shown in red colour in the site plan. It has been submitted that initially there was one house when Kishan Lal was alive and after his death the House was inherited by his four sons and after partition it was CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 16 of 26 decided that Munshi Ram would take the share of Dani Ram and Chandgi Ram would take the share of Mauzi Ram and in this manner property was divided and partitioned between the parties. It has been further mentioned that plaintiffs were not in possession of House No. 69 and whereas defendant no. 1, 3 and 5 have inherited the yellow portion shown in the site plan bearing Municipal No. 59 and therefore, it was submitted that suit for partition in respect of said plot/ property was not maintainable.
20. Plaintiff no. 1 has examined himself and deposed on the lines of the plaint. In cross-examination he admitted that some portion of the House in plot No. 396 was constructed by Sh. Ganga Sarup (father of defendant no. 1) and Trilok Chand, defendant no. 1, had also constructed the portion of the House. He also admitted that neither plaintiffs nor his father raised any construction in House No. 396. He admitted that plot no. 396 admeasured 364 sq. yards and 182 sq. yards is in possession of defendant no. 1 and house admeasured 182 square yards is in possession of defendant no. 5. He denied the suggestion that plaintiff had not raised objection when defendant raised construction. He stated that plaintiffs has demolished the said construction. He further deposed that there was no quarrel between the parties when plaintiff has demolished the said construction. He further deposed that there were now two houses at the spot which had been mentioned by him in the plaint as house No.
69. He denied the suggestion that house in possession of defendants bears No. 59 and house in possession of plaintiff bears no. 69. He admitted that electricity and water connection which had been obtained by defendant bearing no. 59 and the electricity was in the name of Smt. Pyare w/o Chandgi Ram. He also admitted that house belonged to Krishan Lal. He also admitted that partition took place between four sons of Kishan Lal during their lifetime but denied the suggestion that it was agreed that share of Dani Ram would go to Munshi Ram and Mauzi Ram would go to Chandgi Ram. He admitted that portion in possession of the CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 17 of 26 plaintiff and portion in possession of the defendant is separated by a wall of more than 15 feet height. He further deposed that said wall was constructed by defendant no. 1 during the pendency of the suit and defendant had built a new house during the pendency of suit after demolishing the old one.
21. Defendants examined defendant no. 5 as DW-1. He deposed on the lines of the written statement of defendant no. 3 and 5. Defendant has specifically relied upon sale deed executed by Munshi Ram and Dani Ram in respect of property mentioned in para 5(a) of the plaint. The said sale deed is of 20th July, 1966 exhibited as Ex. DW-1/1. In cross examination only a suggestion was given that sale deed was forged and fabricated. Defendant also examined one witness from the Sub-Registrar office who brought the certified copy said sale deed and exhibited the same as Ex. DW-3/1. Defendant has also placed on record the translated copy of sale deed.
22. By way of said sale deed, Dani Ram and Munshi Ram sold their share in Khasra No. 41 in favour of Ganga Sarup and Sajjan Kumar defendant no. 5 both sons of Chandgi Ram. The sale deed on the date of recording of evidence was more than 30 year old and therefore, as per Section 90 of the Indian Evidence Act there is a presumption about its execution and validity as it was produced from proper custody. Even otherwise defendant had summoned the record from the office of Sub Registrar who proved the same and placed on record certified copy of sale deed Ex DW3/1. Thus, the same stands proved on the part of the defendants. The house falling in Khasra no. 11 has specifically been given municipal no. 396 was deposed by the DW-1. The fact that property comprising in Khasra no. 41 has come to bear municipal number 396 has not been disputed by the plaintiff during the cross-examination of DW-1. In these circumstances, since defendant has successfully proved that CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 18 of 26 both Dani Ram and Munshi Ram had sold their share in the property mentioned in para 5(a) of the plaint in favour of Ganga Sarup and defendant no. 5, therefore, plaintiffs are left with no right, title or interest in the said property. Accordingly, plaintiff cannot seek partition of the said property on the basis of inheritance from Dani Ram and Munshi Ram. As far as share of Sh. Mauzi Ram in this property is concerned, it is the claim of the defendant that it was agreed that share of Mauzi Ram would be taken by Chandgi Ram, though, this claim has been denied by the plaintiffs but it is also an admitted fact that Mauzi Ram died in the year 1972 and till the filing of the suit defendants were enjoying the suit property exclusively having purchased the share of Dani Ram and Munshi Ram by way of sale deed dated 21.07.1966. Present suit was filed on 21.05.2004 and for the entire last 32 years the same was in possession of the defendants. Nowhere it has been claimed by the plaintiffs that defendants were occupying the said house in joint with plaintiffs. Therefore, the preponderance of probability suggest that there was an understanding whereby share of Mauzi Ram was to go to Chandgi Ram and accordingly, plaintiffs' suit for partition for property mentioned in para No. 5 (a) of the plaint is not maintainable.
23. As far as property mentioned in para No. 5(b) of the plaint is concerned, it has come on record that property No.69 houses, two houses at the spot which as per plaintiffs both bears house No. 69 whereas as per defendant same bears house No. 69 and another house bearing no. 59. It was admitted by the plaintiff that House No. 69 is in possession of the plaintiffs and House No. 59 is in the possession of defendants for the last 40 years. PW-1 also admitted that partition had taken place between the four sons of Kishan Lal. He also admitted that portion of the defendant and that of the plaintiffs were separated by a wall of 15 feet height and they were dividing the said portion equally. It was claimed by PW1 in his cross examination that said wall was constructed CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 19 of 26 during the pendency of the present matter which cannot be believed for the reason that if it had been such case plaintiff would have moved application to this court bring this fact to the notice of this court.
24. Plaintiffs came to the court complaining about partition but PW1 admitted in his evidence particularly in respect of House No.69 that both plaintiffs and defendants are in possession of portion separated by a wall. He also admitted that partition had taken place between sons of Kishan Lal. The manner in which this property has been held by parties suggest an agreement and understanding between the brothers and subsequently between the LRs of the said brothers that it was partitioned otherwise there would not have been a partition wall. Though in cross examination of DW1 it as been attempted to suggest that area under the possession plaintiff was lesser than the area under the possession of the defendants in house No.69 or 69/59. But this suggestion is of no use categorically in view of admission of the PW-1 that both properties/portions are separated by a wall of 15 feet height. Therefore, on the preponderance of probability, it can be held that suit for partition even in respect of the property mentioned in para No. 5(b) of the plaint, is also not maintainable.
Accordingly, issue No.2(a) is decided in favour of defendant and against plaintiff.
Issue No. 2 (b) Whether the suit is barred under the provisions of Land Reform Act? OPD 3 and 5.
25. Onus to prove this issue is upon the defendant no. 3 and 5. Section 185 of the Land Reforms Act prohibits the jurisdiction of Civil Court in respect of the matters which are to be specifically to be dealt with by the officers appointed under the said Act. Ld. Counsel for defendant CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 20 of 26 submits that in view of Section 185 of the Delhi Reforms Act, the Civil Court has no jurisdiction as admittedly the suit of property is situated in the extended Lal Dora Abadi and therefore, this Court has no jurisdiction. He had relied upon Subhadara v. Vijender Singh & Ors., 2016 DLT Vol. 229 page 188 to content that Civil Court has no jurisdiction in respect of matters falling under the extended Lal Dora Abadi.
26. Per Contra, it has been contended by the Ld. Counsel for plaintiff that when lands are not used for agricultural purpose and are being used contrary to the purpose for which Land Reforms Act was implemented in which situation the Revenue Authorities will seize to have jurisdiction and Civil Court will have jurisdiction. Accordingly he submits that this Court has jurisdiction to decide the present dispute. Ld. Counsel for plaintiff relied upon N. B. Singh v. Perfexa Solutions P. Ltd., 159 (2009) DLT 729, Raj Kishore Tyagi v. Radhey Shyam & Ors. 149 (2008) DLT 754, Nilima Gupta v. Yogesh Saroha & Ors., 156 (2009) DLT 129 and Narain Singh & Anr. v. Financial Commissioner, Delhi, 2008 (105) DRJ 122 in support of his argument.
27. All the four judgments relied upon by the plaintiff is of Single Bench of the Hon'ble High Court of Delhi whereas the judgment relied upon by defendants is also of Single Bench of Hon'bel High Court of Delhi but is the latest as having been passed in the year 2015. In Narayan Singh (supra), the Hon'ble High Court refrained from giving any final ruling as to whether the term "land" as defined in the Reforms Act includes the Abadi land or not, accordingly, Narayan Singh (supra) is no help to the plaintiff. In Nilima Gupta and N. B. Gupta (supra) the Hon'ble Court was dealing with the land which was not the abadi land and the Hon'ble Court taking into consideration the fact that land user had changed and the nature of surrounding area had also changed, held that Section 185 of Delhi Land Reforms Act had no application. But in the CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 21 of 26 present case, the suit property is admittedly not agricultural land in strict sense as it is a land whose use is earmarked for residential purposes that is Abadi Land and therefore, there is no consideration of factors such as change of user of the land. Hence, even this judgment is of no help to the plaintiff as it is distinguishable on the facts. In Raj Kishore Tyagi (supra), no doubt Hon'ble Court was dealing with land situated in extended Lal Dora Abadi as is the case in the present case and it was held that land in the extended Abadi may be land as defined under Section 3 (13) of the Delhi Land Reforms Act 1954. But this land would not be a "holding" as defined under Section 3 (11a) of Delhi Land Reforms Act. In Subhadara (supra) part of the subject property was situated in Lal Dora and Court was dealing with the land situated in Lal Dora and was seized with the question whether dispute relating to Lal Dora will be decided by the Civil Court or by the Revenue Authorities and came to the conclusion that land as defined under Section 3 (12) of the Delhi Land Reforms Act categorically defines as to what types of and what kind of lands are to be considered as land in the application of the provisions of Delhi Reforms Act and a further ruled that any Lal Dora plot whether in old Abadi or extended Abadi is covered under Section 3 (12) of the Act and therefore, provisions of Delhi Land Reforms Act are applicable to Lal Dora land as well. As per the latest ruling in Subhadra (supra), Delhi Land Reforms Act is applicable to the old Lal Dora or extended Lal Dora Abadi and therefore, the kind of dispute contemplated in Schedule 1 of Section 185 shall be decided by the Revenue Authorities mentioned therein.
28. In the column 3 of the schedule to Section 185 of Delhi Land Reforms act, the subjects has been mentioned with respect to which Revenue Authorities shall exercise jurisdiction. At serial no. 11, suit for partition of "holding" has been prescribed to be adjudicated by Revenue Assitant. The use of word "holding" has to be understood viz-a-viz its definition as given in Section 3 (11a) of Delhi Land Reforms Act which CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 22 of 26 defines "holding" in respect Bhoomidari or Assami as a parcel or parcels of land held as Sir or Khudkast which means land which is put to actual agricultural use and purpose connected therewith. Therefore, any suit for partition with respect to properties situated within the Abadi area will not be dealt with by the Revenue Authorities otherwise legislatures would have used the word "land" at serial no. 11 of the schedule instead of word "holdings".
29. In view of the above discussion since the present matter relates to the division of the property situated in the extended Lal Doora Abadi, therefore, Revenue Authorities have no power to adjudicate upon. Accordingly, issue no. 2 (b) is decided against the defendants no. 3 and 5 (and for that purpose against all defendants) and in favour of plaintiff.
Issue No. 2 (c) Whether the suit is not valued properly for the purposes of court fee and jurisdiction? OPD 3 and 5.
30. Onus to prove this issue is upon the defendant no. 3 and 5. it is submitted that defendant has not led any evidence on the point of valuation apart from mere averment on oath made by defendant no. 3 in his examination in chief that suit property was worth about Rs. 35 lakhs. Mere averment without any basis cannot be a ground for holding that the suit property would be having value more than Rs. 35 lakh. Although, it is true that he was not cross examined by the plaintiff on this point nor any suggestion to the contrary was given but despite that the valuation given by the defendants cannot be accepted because admittedly he has not deposed that he was expert in the field of assessing the value of the properties nor has he deposed that he himself had seen or been part of transaction where such type of property was sold or purchased.
31. Since, the evidence is not sufficient and the fact has not CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 23 of 26 come from his personal information, therefore, the rule that non cross- examination by the opposite shall be deemed to have been admitted by opponent, will not apply here and accordingly there is no sufficient evidence to hold that suit property was not valued correctly or properly.
Accordingly, issue no. 2 (c) is decided against the defendants and in favour of plaintiff.
Issue No. 2 (d) Whether the suit is bad for non-joinder of Ms. Chand Bai? OPD 3 and 5.
32. Onus to prove this issue is upon the defendant no. 3 and 5. However, issue no. 2(d) does not survive any more as plaintiff with the permission of the Court subsequently impleaded the legal heir of Chand Bai as defendant no. 8 and 9. Therefore, issue no. 2 (d) is decided against the defendant and in favour of plaintiffs.
Issue No. 3 Whether the plaintiff is entitled to preliminary decree of partition as prayed? OPP.
33. Onus to prove this issue is upon the plaintiff. It has already been seen therein before while deciding issue no. 2 (b) that plaintiff's suit for partition in respect of properties mentioned in Para 5(a) and 5 (b) of the plaint is not maintainable for the reasons that father of the plaintiff had sold his share to the defendant no. 5 and husband of defendant no. 3 in respect of property mentioned in Para 5 (a) of the plaint. It has been found that property mentioned in Para 5 (b) is already under division between the parties.
34. As far as the property mentioned in para 5 (c) of the plaint bearing no. 456 is concerned, defendants have admitted that it has not CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 24 of 26 been partitioned and they have no objection to the partition but the only dispute is regarding the extent of share. Plaintiff has claimed 3/4th share in the property whereas defendant alleges that both are entitled to divide the property in equal shares. While deciding issue no. 2, it has been found that manner of devolution of interest in the property as claimed by the defendant was not in accordance with Section 8 of Hindu Succession Act, 1956 or even in accordance with Section 50 of the Delhi Land Reforms Act, 1954. Accordingly, the contention of the defendants that both plaintiff and defendants are entitled to one-half share is rejected and it is held that plaintiffs are entitled to 3/4th share in the said property.
Accordingly, issue no. 3 is decided partly in favour of plaintiff and partly in favor of defendants.
Issue No. 4 Whether the plaintiff is entitled to decree of permanent injunction as prayed? OPP.
35. Onus to prove to this issue is upon the plaintiff. Plaintiff has claimed the relief of decree of permanent injunction against the defendants thereby restraining them from raising any construction in the joint property. It has been held herein before that property mentioned in para no. 5a of the plaint is no longer a joint property and property mentioned in para no. 5b has already been partitioned therefore, plaintiff is not entitled for decree of permanent injunction as claimed in respect of the aforesaid properties. However, plaintiff is certainly entitled for relief of permanent injunction in respect of property mentioned in para no. 5c of the plaint as admittedly the said property is the joint property of the parties.
Hence, issue no. 4 is decided accordingly.
Issue No. 5. Whether the plaintiff is entitled to final decree of CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 25 of 26 partition as prayed? OPP.
36. The stage for deciding this issue will come only when preliminary decree, if passed, becomes final. Therefore, this issue cannot be decided at this stage.
RELIEF In view of the findings recorded on all issues, plaintiff is held entitled to 3/4th share in respect of property mentioned in para no. 5 (c) of the plaint i.e. plot No. 456, situated in Lal Dora of Village Jaunti, Delhi. and defendants are entitled to 1/3rd share and accordingly, preliminary decree is hereby passed only in respect of property mentioned in para no. 5 (c) bearing plot no. 456, situated in Lal Dora of Village Jaunti, Delhi.
Decree of permanent injunction is also passed in favour of plaintiffs and against the defendants, thereby restraining defendants from raising any construction in the plot bearing no. 456, situated in Lal Dora of Village Jaunti, Delhi.
Preliminary decree sheet be prepared accordingly.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 26 pages) Delhi /12.01.2017
CS No. 12170/16 Paras Ram & Ors. v. Trilok Chand & Ors. Page No. 26 of 26