Delhi District Court
Sh. T. K. Mahto vs Ms. Goya Rani Mahto on 17 November, 2018
IN THE COURT OF SH. M.P. SINGH, ADDITIONAL DISTRICT
JUDGE03 (CENTRAL), TIS HAZARI COURTS, DELHI
CS No. 06/2018
New CS No. 611343/2016
In the matter of:
1. Sh. T. K. Mahto
S/o Late Kriti Das Mahto
R/o H. No. F96 (Old Plot No. 92)
Gali No. 6, Wazirabad Extension
Village Wazirabad, Delhi54
2. Sh. Vijay Mahto
S/o Late Kriti Das Mahto
R/o H. No. F96 (Old Plot No. 92)
Gali No. 6, Wazirabad, Delhi54
Both plaintiffs through their attorney:
Smt. Anita Mahto
W/o Sh. Vijay Mahto
R/o H. No. F96 (Old Plot No. 92)
Gali No. 6, Wazirabad Extension
Village Wazirabad, Delhi54 ... Plaintiffs
Versus
1. Ms. Goya Rani Mahto
W/o Late Dhiren Kumar Mahto
R/o H. No. F96 (Old Plot No. 92)
Gali No. 6, Wazirabad Extension
Village Wazirabad, Delhi54
2. Master Shiv Shankar (Minor)
S/o Late Dhiren Kumar Mahto
Through his mother and natural guardian Ms. Goya Rani Mahto
R/o H. No. F96 (Old Plot No. 92)
Gali No. 6, Wazirabad Extension
Village Wazirabad, Delhi54 ....Defendants
CS No. 06/2018
New CS No. 611343/2016 Page 1 of 25
SUIT FOR PARTITION AND PERMANENT INJUNCTION
Suit instituted on 13.07.2011
Date of decision - 17.11.2018
JUDGMENT
1. Facts, as set out in the plaint, are as follows. The two plaintiffs filed the instant suit through their attorney Smt. Anita Mahto. The two plaintiffs and late Dhiren Kumar Mahto (for short 'DKM') jointly purchased a plot of land bearing no. F96 (Old Plot No. 92) Gali No. 6, Wazirabad Extension, Village Wazirabad, Delhi 54, in khasra No. 174, measuring 103.8 sq. yards (for short the 'suit property') from one Atul Garg for a consideration of Rs. 55,000/ vide registered GPA sale documents dt. 06.10.2001. DKM and the two plaintiffs became joint owners having equal shares therein i.e. about 34.3 sq. yds each. DKM passed away leaving behind his widow (defendant no.1) and his minor son (defendant no.2). The two plaintiffs used to reside, far away from the suit property, as tenants. In their absence, DKM raised construction in the plot on an area approximately 43 sq. yards, which was more than his 1/3 rd share. Plaintiffs aver that they failed to notice that DKM was raising construction on area more than his 1/3rd share. After raising construction, DKM started to live therein with his family. The construction raised by DKM also has a gallery/ passage of about 4 feet width. On 12.04.2011 the two defendants allegedly threatened to dispose off/sell the house constructed by late DKM in 43 sq. CS No. 06/2018 New CS No. 611343/2016 Page 2 of 25 yards area. They also allegedly threatened to block the gallery / passage of 4 feet width, which is the only rasta/ gali for the plaintiffs. On these averments, plaintiffs seek partition of the suit property. They also seek to restrain the defendants from disposing off/selling their portion of the house.
2. Defendants filed their written statement. They state that late DKM had paid 50% of the total consideration amount of Rs. 55,000/ and accordingly he had become owner of half portion of the suit property i.e. 51.5 sq. yards and the two plaintiffs became owners of the remaining half portion of the suit property. They aver that at the time of purchase, relationship between plaintiffs and DKM were very cordial and there was no scope to divide the plot vertically from the front side as the front portion was only 17 feet. As such, defendants aver, plaintiffs and DKM mutually agreed that latter (DKM) would occupy front half portion of the suit property and the former (two plaintiffs) would occupy the rear portion subject to condition that the latter (DKM) would leave common passage for egress and ingress and for passage to the common staircase from his half share of the suit property falling on the front side. DKM accordingly, while raising construction on his portion in year 2002, left common passage for ingress and egress and passage for common staircase to be commonly used by the parties from his half share of the suit property. Simultaneously, plaintiffs also raised construction in their portion. Ever since then both the parties have been in use and occupation of their respective shares CS No. 06/2018 New CS No. 611343/2016 Page 3 of 25 of the suit property and are enjoying the same sans any interference or interruption from any quarter. Defendants assert that DKM had raised construction on his share in the plot in plaintiffs' very presence and that the same was very well within plaintiffs' knowledge and according to mutual understanding between both the sides. They state that entire construction is about 89 years old. Defendants thus vehemently refute plaintiffs' assertions that DKM and the two plaintiffs became coowners of the suit property to the extent of 1/3 rd share each. Defendants deny that when DKM raised construction plaintiffs used to reside far away from the suit property. They aver that DKM had sold his portion of the suit property, during his lifetime, to defendant no.1 by GPA sale documents (agreement to sell, GPA, Will, receipt) dt. 04.05.2007. They refute the allegations of threats. They state that they have no intention to dispose of the house under their occupation. They also deny that plaintiffs executed any legal and valid attorney in favour of Ms. Anita Mahto to institute the instant lis. They seek dismissal of the suit.
3. Plaintiffs filed their replication wherein they reaffirmed and reiterated their averments as set out in the plaint and refuted those of the defendants as set out in their written statement.
4. Issues, framed on 21.10.2011, are as follows:
1. Whether the plaintiff, including parties to the suit, are entitled to decree of partition to the respective shares of 1/3rd (each) in the suit property as alleged? OPP CS No. 06/2018 New CS No. 611343/2016 Page 4 of 25
2. Whether the plaintiff is entitled to decree of permanent injunction restraining the defendant no. 1 and 2 not to dispose off or to sale the suit property as shown in red colour of the site plan as alleged? OPP
3. Whether the suit is not maintainable? OPD
4. Whether there is no cause of action in favour of plaintiff as alleged? OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction as alleged? OPD
6. Whether the suit is not properly instituted as alleged? OPD
7. Whether the suit is bad for misjoinder of necessary parties as alleged? OPD
8. Relief.
5. In plaintiffs' evidence, only one witness (PW1), namely, Mr. Vijay Mahto (plaintiff no.2) was examined. In defendants' evidence, defendant no.1 Ms. Goya Rani Mahto (DW1) was the sole witness.
6. Arguments heard. Record perused.
7. Issuewise findings are as follows:
8. Issue no.4 - The issue is whether there is no cause of action in plaintiffs' favour, onus to prove being on defendants. It is one thing to say that the plaintiffs may or may not be able to prove their case, but it quite another thing to say that the plaintiffs had no cause of action to bring the plaint. On a bare reading of the plaint, it is apparent that the plaintiffs had cause of action to bring the plaint and sue for partition. Whether or not they are entitled to the relief of partition on the basis of evidence / material on CS No. 06/2018 New CS No. 611343/2016 Page 5 of 25 record would be quite a different matter. This issue is accordingly answered in plaintiffs' favour and against defendants.
9. Issue no.7 The issue is whether this suit is bad for mis joinder of necessary parties; onus being on defendants to prove it. It is pleaded in the written statement that defendant no.2 is neither a proper nor a necessary party as defendant no.1 is the absolute and exclusive owner of the portion of the house under her possession. Under Order I Rule 9, CPC a suit can never be defeated for mis joinder of a party. It is only in case of nonjoinder of a necessary party that a suit can be defeated or held to be bad. The very fact that a party may have been misjoined will not be a ground to hold that the suit is not maintainable. In view of this legal position, this issue is answered in plaintiffs' favour and against the defendants.
10. Issue no.6 - The issue is whether suit is not properly instituted, onus to prove being on the defendants. Defendants in their written statement take the plea that Ms. Anita Mahto had no right, title or interest in the suit property and further that the two plaintiffs had not authorised her to institute the instant lis. The two plaintiffs instituted the present suit through their attorney Ms. Anita Mahto. In this context, in paragraph no.1 of the plaint, following averment was made, "It is submitted that the present suit is being filed by Smt. Anita Mahto who has been duly authorized by the plaintiff no.2 to file the present suit vide registered Power of attorney dated 17062011 [Ex. PW1/2]. It is further submitted that CS No. 06/2018 New CS No. 611343/2016 Page 6 of 25 the Plaintiff No. 1 has duly executed a registered power of attorney in favour of plaintiff No. 2 dated 15022011 [Ex. PW1/1] and in pursuant to the power conferred by plaintiff no.1 in favour of plaintiff No. 2, the plaintiff No. 2 executed the above said power of attorney dated 17062011 [Ex. PW1/2]." There is an exactly similar averment in the evidence by way of affidavit Ex. PW1/A of plaintiff no.2 Vijay Mahto (PW1) in paragraph no.1 thereof. PW1 has not been crossexamined on this aspect.
11. Ex. PW1/1 is the registered General Power of Attorney dt. 15.02.2011 executed by plaintiff no.1 Sh. T.K. Mahto in favour of his brother Vijay Mahto (plaintiff no.2) thereby appointing the latter as 'my true and lawful General Attorney in respect of my one third undivided share in respect of a plot / property bearing plot no. 92, land area measuring 103.8 sq. yds. approx.. out of khasra no. 174....." By way of this registered General Power of Attorney dt. 15.02.2011 (Ex. PW1/1) plaintiff no.1 Sh. T.K. Mahto, inter alia, authorised plaintiff no.2 Vijay Mahto to 'file suits and cases against any person' in connection with the said property'.
12. Ex. PW1/2 is the registered General Power of Attorney dt. 17.06.2011 executed by plaintiff no.2 Vijay Mahto (plaintiff no.2) in favour of his spouse Ms. Anita Mahto thereby appointing the latter as 'true and lawful attorney to do the following acts, deed and things in respect of 2/3rd undivided share of built up house ...." One of the acts enumerated therein is the authorisation to 'file suits CS No. 06/2018 New CS No. 611343/2016 Page 7 of 25 against any person connected with any dispute regarding the said property'.
13. Therefore, conjoint reading of documents Ex. PW1/1 and Ex. PW1/2 clearly indicate that Ms. Anita Mahto had the requisite authorisation to institute the instant lis.
14. Secondly, there are judicial rulings in the context of Order VI Rule 14, CPC to hold that due authority to sign and institute the plaint need not be restricted to mean authorised by proper written authority or power of attorney {All India Reporter Ltd. vs. Ramchandra Dhondo Datar, AIR 1961 Bom 291}. In Bengal Jute Mills vs. Jewraj Heeralal, AIR 1943 Cal 13 it has been held that under the proviso to Order VI Rule 14, CPC the person duly authorised can even be a person under oral authorisation. Therefore, even de hors the General Power of Attorney I see no reason as to why Ms. Anita Mahto could not have instituted the suit on plaintiffs' behalf on their oral authorisation. Such authorization by plaintiffs to Ms. Anita Mahto could even have been oral. Plaintiffs never raised a protest in Ms. Anita Mahto filing the instant suit on their behalf. Therefore, the circumstances on record clearly indicate that even de hors the General Power of Attorney (Ex. PW1/1 and Ex. PW1/2), plaintiffs had authorised Ms. Anita Mahto to institute the instant suit on their behalf.
15. For these multiple reasons, this issue is decided in plaintiffs' favour and against the defendants.
CS No. 06/2018 New CS No. 611343/2016 Page 8 of 2516. Issue no.5 - The issue is whether suit is not properly valued for court fee and jurisdiction, onus to prove being on the defendants. This issue is being answered in plaintiffs' favour and against the defendants for the following reasons.
a) Firstly to the aspect of this Court's pecuniary jurisdiction. It is settled that in a partition suit the aspect of valuation for pecuniary jurisdiction has to be whole of the property which is the subject matter of partition. In this regard reference can be had to the decisions reported as Zahoor Ahmed vs. Rakhi Gupta & Ors., 2012 SCC OnLine Del 429 and Ramesh Chand Bhardwaja vs. Ram Prakash Sharma, 44 (1991) DLT 528. In the case at hand, plaintiffs valued the relief of partition at Rs. 18 lakhs. The defendants in the cor responding paragraph of their written statement merely stated, "Contents of para 21 of plaintiff are wrong, false and denied. The plaintiffs have not valued the suit property prop erly nor has paid the requisite court fee on it." It is thus no ticeable that defendants while making a bald denial of aver ments visàvis suit valuation as also court fee did not state as to what precisely would be the value of the suit property.
Neither did the defendants lead any evidence to show as to what would be the market value of the suit property and whether such value would be beyond the pecuniary limit of Rs. 2 crores fixed for this Court. That apart, it is doubtful CS No. 06/2018 New CS No. 611343/2016 Page 9 of 25 whether the suit property was actually valued at more than Rs. 2 crores at the time of filing of the suit in year 2011. It is an admitted case of both the sides that late DKM and the two plaintiffs had purchased the plot for total consideration of Rs. 55,000/ on 06.10.2001. Thus, 10 years down the line in year 2011 it is doubtful whether the suit property would be actu ally valued more than Rs. 2 crores. Thus, for the relief parti tion it is held that the plaintiffs have correctly valued the suit at Rs. 18 lacs. Now to the valuation for permanent in junction relief for pecuniary jurisdiction. Plaintiffs valued it at Rs. 130. This valuation of permanent injunction relief at Rs. 130 also cannot be faulted {Delhi High Court Rules Chap ter 3 Part C & D, Volume I}.
b) Insofar as valuation for court fees is concerned, on relief of partition a plaintiff is required to pay fixed court fees if he/she is in possession of any of the properties to be parti tioned, but if he/she is not in possession of any part of the properties then he/she is required to pay court fees under sec tion 7(iv)(b), Courtfees Act i.e. on the value of his/her share. In this regard, decision reported as Sudershan Kumar Seth vs. Pawan Kumar Seth, 124 (2005) DLT 305 can be re ferred to, wherein the following observations occur, "14. It is settled that in order to decide as to what relief has been claimed by the plaintiff, the whole of the plaint has to be read. From the perusal of the plaint if it can be inferred that the CS No. 06/2018 New CS No. 611343/2016 Page 10 of 25 plaintiff is in possession of the any of properties to be parti tioned, then the court fees shall be payable under Article 17 (6) of schedule II of the Courtfees Act i.e. fixed court fees at the time of institution of the suit but if the conclusion is that the plaintiff is not in possession of any part of the properties then the plaintiff has to pay Court fees under Section 7(iv)(b) of the Courtfees Act i.e. on the value of plaintiff's share." Plaintiffs are admittedly in possession of the suit property, albeit a portion thereof, sought to be partitioned and thus they are required to pay only fixed court fees. For court fees valuation of injunctive relief(s), section 7 (iv) (d), Court Fees Act is the relevant provision and it gives plaintiff a right to place any valuation for court fee. On the relief of simplicitor injunction, plaintiff is required to pay ad valorem court fees subject to minimum of Rs. 13. {see Delhi High Court Rules Chapter 3 Part C & D, Volume I}. Plaintiffs affixed total court fees of Rs. 60 with respect to both the reliefs in the plaint which is sufficient.
17. Issue no.3 - The issue is whether the suit is not maintainable, onus to prove being on the defendants. Defendants in their written statement claim that suit 'as framed' is not maintainable. Additionally, according to them, suit is not maintainable for the same has been instituted against a dead person, namely, DKM. Defendants do not specify as to what is CS No. 06/2018 New CS No. 611343/2016 Page 11 of 25 there in the 'framing' of the instant suit that makes it not maintainable. Further, DKM passed away much before filing of the suit. It is a matter of record that plaintiffs filed the instant suit not against DKM, but against his wife (defendant no.1 Ms. Goya Rani Mahto) and his minor son (defendant no.2 Master Shiv Shankar through his mother). It is a matter of record that DKM's wife (defendant no.1 Ms. Goya Rani Mahto) and his minor son (defendant no.2 Master Shiv Shankar through his mother) contested the present suit. I see no reason as to why the suit cannot be said to be maintainable. This suit is held to be maintainable. This issue is decided in plaintiffs' favour and against the defendants.
18. Issue no.1 The issue is whether plaintiffs, including parties to the suit, are entitled to decree of partition of the respective shares of 1/3rd (each) in the suit property, onus to prove being on plaintiffs. Before proceeding further, few extracts from the cross examination of PW1 (plaintiff no.1 Vijay Mahto) are being noted as under: "Sh. T. K. Mahto is my elder brother. ..... I have constructed my plot in the year 2003 or 2004. Sh. Dheeran Mahto [DKM] constructed the property in the year 2002 and he constructed more over his share. We have brotherly and friendly relation with Dheeran Mahto [DKM] before his death in the year 2007. We have never fought each other at any point of time. I have never made any complaint with regard to any dispute to the police or any other department. I was allotted electricity CS No. 06/2018 New CS No. 611343/2016 Page 12 of 25 connection in the year 2005. ..... I have constructed upto ground floor at my portion. Dheeran Mahto [DKM] has constructed the upto the ground and first floor in his portion. Site plan placed on record was prepared on my instructions and as per plaintiff no.1. .... There is no water connection at my house. I have taken the connection from outside from the MCD water pipe line. ..... The site plan is correct. It is wrong to suggest that the orange portion of the site plan depicts the common passage. Vol. the said portion was left as passage only for our area. The door of the defendant opens in the orange portion and the pink towards main road..... The same are not shown in the site plan. It is wrong to suggest that the staircase shown in the site plan are for common use. Defendant is also using the orange portion and the staircase shown in the site plan for going to first floor. It is correct that there is construction of the first floor on the site plan. Dheeran Mahto [DKM] starting construction the said plot in the year 2002. I do not know when the construction was finally completed by the defendant. I had started constructing mu portion in 2003. ..... It was in my knowledge that husband of defendant was carrying construction on the said plot in his portion. It is correct that T. K. Mahto was aware about the construction of the plot by the husband of the defendant. It is wrong to suggest that oral partition was taken place before the construction. .... I have not been stopped by defendant from using orange portion or the staircase as shown in the site plan as Ex. PW1/1. I came to know about the fact that defendant had constructed beyond here share after completion of their construction and in the year 2003. It is correct that defendant and myself have constructed from their own fund."
19. Few extracts from the crossexamination of DW1 (defendant no.1 Ms. Goya Rani Mahto) are as follows: CS No. 06/2018 New CS No. 611343/2016 Page 13 of 25 "The suit property was purchased by the plaintiff no. 1 & 2 and my deceased husband jointly. It is correct that I do not have any document which shows that my deceased husband had paid Rs. 27,500/. It is wrong to suggest that my husband had not paid Rs. 27,500/. It is correct that I do not have document which shows that my deceased husband was the owner of the suit property with respect to half portion. ......My husband told me about the purchase of the suit property before his death. .... It is correct that I do not have any document which shows that it was mutually agreed between the plaintiff and my deceased husband that my husband will occupy the front half portion of the suit property and plaintiff no. 1 & 2 will occupy the remaining back portion. My husband told me about the fact mentioned in para 4 of my affidavit. It is wrong to suggest that there was no mutual agreement as stated in para - 4 of my affidavit. My husband raised the construction upon the suit property in the year 2002. Plaintiffs no. 1 & 2 were residing at the suit property in the year 2002. It is wrong to suggest that there was no mutual settlement, consent and knowledge of the plaintiff with respect to the construction raised by my deceased husband in the year 2002. It is wrong to suggest that since the year 2003, both the parties have not been in use and occupation and possession of their respective separate and independent portions in the suit property. .....It is wrong to suggest that my husband was not the owner of 50% as stated in the documents Ex. PW1/5 to Ex. PW 1/8.... It is wrong to suggest that I have raised illegal construction on the first floor after the demise of my husband. ..."
20. Defendants take the stand that the plot in question already stood divided during the lifetime of late DKM by mutual agreement and thereafter both the sides had raised their separate constructions leaving a common passage and a common staircase.
CS No. 06/2018 New CS No. 611343/2016 Page 14 of 25Though there is no documentary proof on record qua division of the plot between the parties through mutual oral understanding between the point of time of its purchase (year 2001) and before commencement of construction (year 2002), yet the circumstances and the material on record, on preponderance of probabilities, indicate that oral division, as being contended by the defendants, had indeed taken place in 20012002. The following circumstances and the material on the record make this stand of defendants highly probable.
a) PW1 in his crossexamination states that DKM had raised his construction in 2002 and that plaintiffs commenced with construction on their plot in 2003 and raised the same in 20032004. PW1 deposed, "I have constructed upto ground floor at my portion. Dheeran Mahto [DKM] has constructed the upto the ground and first floor in his portion." It has also come in his (PW1) evidence that plaintiffs and DKM had raised their separate constructions from their own separate funds. That apart, as per the evidence of PW1, both the plaintiffs were aware of the construction being raised on the plot by late DKM. Thus, these circumstances are enough to show that the plot had been divided by mutual oral understanding and the parties had then raised their separate constructions. The parties had invested their own separate funds for the construction over their respective portions of CS No. 06/2018 New CS No. 611343/2016 Page 15 of 25 the plot. This is further corroborated by the fact that plaintiffs applied for separate electricity and water connections for their portion. On this count, PW1 in his cross examination admits, "I was allotted electricity connection in the year 2005. .... There is no water connection at my house. I have taken the connection from outside from the MCD water pipe line."
b) Next, as on the date when the suit was filed both the parties had already been living for the last nearly a decade in their own respective premises constructed out of their separate funds with separate electricity and water connections. Each separate portion of the two parties has separate entrances. Each of them has separate kitchen as also separate bathroom with the only thing that is used being jointly is a staircase and a common passage for the plaintiffs to enter / exit their portion. That apart, there is no evidence to show that the separate built up portions are being used jointly by the two sides, except for a passage for the plaintiffs to enter their portion and a staircase.
c) Further, it is difficult to comprehend that when plaintiffs were very much aware about the construction being raised by DKM, why did they not point out to him (late DKM) that he was raising construction unilaterally over a portion of the plot that was allegedly more than his share sans any CS No. 06/2018 New CS No. 611343/2016 Page 16 of 25 intimation to them. For that matter, when the plaintiffs started to raise their construction in year 2003, they could have pointed out the same to late DKM. PW1 however deposes that he came to know that DKM had raised his construction beyond his share in 2003 after he (DKM) had completed his construction. But even then after completion of his (DKM) construction in 2003, they did not get back to DKM pointing out to him that he had constructed unilaterally over land allegedly more than his share. This explanation of PW1 (that he come to know of DKM raising his construction beyond his share in 2003 after he had completed his construction) is hardly plausible. Even accepting this explanation of PW1, what has come on record in his evidence (PW1) is that in the lifetime of late DKM (died in 2007), they never had any inter se quarrel at any point of time and that plaintiffs never made any complaint with regard to any dispute to the police or any other department. This only goes to show that the plaintiffs were very much in the loop of the arrangement that had been put in place by mutual oral understanding visàvis division of the plot and raising of separate construction thereon by the two sides out of their own separate funds with separate electricity and water connections with no jointness except for a common passage for the plaintiffs to access their portion and a staircase under joint use.
CS No. 06/2018 New CS No. 611343/2016 Page 17 of 25d) The registered General Power of Attorney (Ex. PW1/2) dt. 17.06.2011 executed by Vijay Mahto (plaintiff no.2 and PW1) in favour of Ms. Anita Mahto (plaintiffs' attorney) contains a 'site plan' of the property in question. This is a document of plaintiffs themselves. On 11.10.2018 plaintiffs had furnished on record coloured copy of this document (Ex. PW1/2) together with the annexed site plan. This document in unmistakable terms denotes the portion of the defendants as 'remaining part of the said prop.'. Further, in this document, portion belonging to plaintiffs has been shown in red colour. In yellow coloured portion the common passage has been shown which was left for the plaintiffs for ingress/egress to their portion of the property. This document is damaging to plaintiffs' case and only goes to make defendants' version more probable. If there was no inter se division, I see no reason as to why the portion under exclusive possession of defendants would be depicted as 'remaining part of the said prop.' in plaintiffs' own document.
e) If there had been jointness between the parties, I fail to comprehend the logic behind leaving out the common passage of 3 ½ 4 feet. If there had been jointness, there would have been no common passage and there may as well have been one single common entrance for ingress and egress for both the parties into the building. In such an event, there was no CS No. 06/2018 New CS No. 611343/2016 Page 18 of 25 logic in wasting a space of about 25 feet x 3 ½ 4 feet and earmarking the same as common passage. That apart, perusal of site plan Ex.PW1/7 as also the site plan annexed to the registered GPA dt. 17.06.2011 Ex.PW1/2 indicate in unmistakable terms that this common passage was earmarked, especially for the plaintiffs for ingress/egress to their portion of the property and the plaintiffs admit so in their plaint. If such a common passage would not have been there, plaintiffs could have had no access to their portion. In fact, defendants required no common passage as they already had front portion to themselves. PW1 when he states in his crossexamination, "The door of the defendant opens in the orange portion [common passage] and ... towards main road"
actually admits so.
f) PW1 in his crossexamination denies that common passage was 'common' to the parties. He stated, "It is wrong to suggest that the orange portion of the site plan depicts the common passage. Vol. the said portion was left as passage only for our area." This appears to be incorrect from the following circumstances. (a) Plaintiffs' site plan Ex. PW1/7 itself depicts this portion to be a 'common' passage. Relevant would it be to note that PW1 in his crossexamination admits his site plan Ex. PW1/7 to be correct. (b) Site plan attached to the registered General Power of Attorney Ex. PW1/2 also CS No. 06/2018 New CS No. 611343/2016 Page 19 of 25 depicts this passage to be a 'common' passage. (c) PW1 in his crossexamination admits that defendants' door also opens towards the common passage shown in orange colour in site plan Ex. PW1/7 (and shown in yellow colour in the site plan attached to the registered GPA Ex. PW1/2) besides an opening towards the main road. When defendants' door opens towards this portion of the passage, the same cannot be anything but a 'common' passage. Thus, the stand taken by PW1 in his crossexamination that the passage in orange colour in site plan Ex. PW1/7 is not a 'common' passage is incorrect. Rather, defendants' stand in this regard appears to be true.
g) PW1 in his crossexamination further stated, "It is wrong to suggest that the staircase shown in the site plan are for common use." He went on to depose, "Defendant is also using the orange portion and the staircase shown in the site plan for going to first floor." This statement of PW1 again does not appear to be correct for the following reason(s) : Defendants' property is double storeyed, whereas plaintiffs' property is single storeyed. Given this, it was all the more reason that such a staircase was actually more to the requirement of the defendants. Such staircase had been raised way back in 2002 2003 and it has been since then used by the defendants. PW 1 admits that defendants are using the staircase. Given this, the version of PW1 as coming in his crossexamination in CS No. 06/2018 New CS No. 611343/2016 Page 20 of 25 this regard can hardly be acceptable and the same is accordingly turned down. The circumstances on record clearly indicate that the defendants' version that the staircase had been left for common use appears to be true.
h) As already stated, PW1 in his crossexamination stated that plaintiffs had constructed up to ground floor and DKM had constructed ground and first floor in his portion. Even the site plan Ex. PW1/7 shows defendants' construction to be 'double storeyed' and that of the plaintiffs to be 'single storeyed'. It is difficult to comprehend as to why, if there had been jointness, parties would have raised constructions, separately, to different levels. If there had been jointness, there may not possibly have been constructions, done separately, to different levels with a common passage being left out and only one staircase being used jointly by both the sides.
i) In the case of Arabpati Lal vs. Rajender & Ors., 2018 SCC OnLine Del 11387 under somewhat similar facts, as in the present case, partition suit brought by plaintiffs therein was dismissed. It was held inter alia that the factum of separate constructions together with separate entrances, separate kitchen, separate electricity / water connections with no jointness of separately built up portions and with parties living in their separate portions, except for a common CS No. 06/2018 New CS No. 611343/2016 Page 21 of 25 passage, were enough to indicate that there had been an inter se partition.
j) There is no requirement under the law that an oral partition is mandatorily required to be reduced to writing (see Roshan Singh vs. Zile Singh, AIR 1988 SC 881). Further, there is neither any requirement in law that a plea of previous partition, before a court of law, can be established only through a document evidencing such a partition. There is neither any requirement in law of registration of oral partition under Registration Act. Under the law even a subsequent memorandum of partition, if reduced to writing, embodying the factum of partition is not required to be registered. Legally, such a document, if reduced to writing, is required to be compulsorily registered only and only when that document purports by itself to effect a division and embodies all the terms of the bargain {Roshan Singh (supra)}.
k) Now to plaintiffs' plea qua the unequal shares. Defendants take the stand that late DKM had paid 50% of the consideration amount of Rs. 55,000/ and accordingly he become owner of half portion of the suit property i.e. 51.5 sq. yards and the two plaintiffs became owners of the remaining half portion; that at the time of purchase, relationship between plaintiffs and DKM were very cordial and there was CS No. 06/2018 New CS No. 611343/2016 Page 22 of 25 no scope to divide the plot vertically from the front side as the front portion was only 17 feet and as such plaintiffs and DKM mutually agreed that latter (DKM) would occupy front half portion of the suit property and the former (two plaintiffs) would occupy the rear portion subject to condition that the latter (DKM) would leave common passage for egress and ingress and for passage to the common staircase from his half share of the suit property falling on the front side and DKM accordingly, while raising construction on his portion in year 2002, left common passage for ingress and egress and passage for common staircase to be commonly used by the parties from his half share of the suit property; that simultaneously, plaintiffs also raised construction in their portion; and that ever since then both the parties have been in use and occupation of their respective shares of suit property and are enjoying the same sans any interference or interruption from any quarter. The aforesaid circumstances that have come on record make this version of the defendants highly probable. That apart, there are judicial rulings to hold that a partition does not become invalid merely on the ground that there was no equal distribution amongst the co sharers (Apoorva Shantilal Shah, HUF vs. Commissioner of Income Tax Gujarat1, Ahmedabad, (1983)2 SCC 155). Further, there were reasons in the present case as to why the plaintiffs and DKM had agreed for CS No. 06/2018 New CS No. 611343/2016 Page 23 of 25 partition in the ratio, as averred by the defendants, and which reasons appear to be completely plausible. As per the defendants DKM got a larger share as he had paid 50% of the total consideration amount to the previous owner and the two plaintiffs had together contributed the remaining 50 %. The entire payment to the previous owner was made in cash with no evidence in writing to show as to who had paid how much.
In this view of the matter, the oral evidence of one versus the oral evidence of another will hardly be acceptable. It is only the circumstances on record which would indicate on preponderance of probabilities as to what actually had transpired. Circumstances on record in the present case, on preponderance of probabilities, clearly indicate that there is some truth in what the defendants plead before this court and the version of the plaintiffs appears to be improbable.
l) The documents of the plaintiffs (the two General Power of Attorney Ex.PW1/1 and Ex.PW1/2) wherein it is mentioned that the two plaintiffs own 1/3 share each will not advance plaintiffs' case in view of the bar of section 21, Evidence Act. That apart, the defendants were not a party / signatory to the documents Ex.PW1/1 and Ex.PW1/2 and as such any assertions made therein cannot be construed as admission(s) against the defendants.
21. For the aforesaid multiple reasons, it is held that there had CS No. 06/2018 New CS No. 611343/2016 Page 24 of 25 been partition of the property between the two plaintiffs and DKM way back in 20012002 and in view thereof the relief of partition, as prayed for, by plaintiffs is turned down. This issue is thus answered against the plaintiffs and in favour of defendants.
22. Issue no.2 The issue is whether the plaintiffs are entitled to a permanent injunction decree to restrain the defendant from disposing of or selling the suit property as shown in red colour of the site plan (Ex.PW1/7), onus to prove being on the plaintiffs. Outcome of issue no.1 entails that plaintiffs are not entitled to this relief. This issue is thus decided against the plaintiffs and in defendants' favour.
23. Relief Plaintiffs' suit must meet its waterloo. It stands dismissed. Parties are left to bear their own costs. Decree sheet be drawn up. File be consigned to record room.
Digitally signed MURARI by MURARI
ANNOUNCED IN THE OPEN PRASAD
PRASAD SINGH
Date:
COURT ON 17.11.2018 SINGH 2018.11.17
16:11:47 +0530
(M. P. SINGH)
ADJ03 (CENTRAL)
TIS HAZARI COURTS
DELHI
CS No. 06/2018
New CS No. 611343/2016 Page 25 of 25