Delhi District Court
Vijay Singh vs Shiksha Devi And Ors on 17 February, 2025
IN THE COURT OF SH. SUNIL BENIWAL,
DISTRICT JUDGE-06, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
CS DJ No.7603/2016
CNR No.DLST01-000472-2012
Late Sh. Vijay Singh, through his legal heirs:
1. Smt. Rajesh
W/o late Sh. Vijay Singh.
2. Mr. Rahul Phoughat
S/o late Sh. Vijay Singh.
3. Ms. Sonam Phoughat
D/o late Sh. Vijay Singh.
4. Ms. Lovely Phoughat
D/o late Sh. Vijay Singh.
All r/o 578, Main Road,
Chirag Delhi, New Delhi. ....Plaintiffs
VERSUS
1. Shri Dharmender Singh,
S/o late Sh. Sukhbir Singh,
R/o 578 Chirag Delhi, New Delhi 17.
2. Smt. Shyam Lata,
D/o late Sh. Sukhbir Singh,
CS DJ No.7603/2016 page 1 of 26
W/o Sh. Dharambir Singh Dhaiya,
R/o H. No.5/66 (Gali No.5),
Nehru Park, Bahadurgarh,
Haryana.
3. Smt. Pushpa
D/o late Sh. Sukhbir Singh
W/o Sh.Vijender Singh,
R/o H. No.6/74B (Gali No.6),
Nehru Park, Bahadurgarh,
Haryana. .....Defendants
Date of Institution : 17.01.2012
Date of Judgment : 17.02.2025
Suit for partition in respect of portion of property bearing no.578,
Chirag Delhi, New Delhi, measuring approximately 18'.4" x 9'.2"
carpet area as well as for mesne profits/damages and permanent
injunction.
JUDGMENT
1. The erstwhile plaintiff Vijay Singh (since deceased) had filed the present suit against the defendants no.1 to 4 namely Smt. Shiksha Devi, Shri Dharmender, Smt. Shyam Lata and Smt. Pushpa. During pendency of suit plaintiff Vijay Singh expired and in his place his legal heirs plaintiffs no.1 to 4 were impleaded who are his wife, son and daughters. Further, defendant no.1 Smt. Shiksha Devi (who was mother of erstwhile deceased plaintiff) also expired and since her legal heirs were already on record as defendants no.2 to 4, she was deleted from the array of parties.
CS DJ No.7603/2016 page 2 of 26
2. The case of the plaintiff in brief is that defendants are brother and sisters of erstwhile deceased plaintiff. Late Sh. Bhagwan Sahay, the grand father of erstwhile deceased plaintiff was stated to be owner of the suit property bearing No.578, Chirag Delhi and he had expired in the early of 1970, and later on his four sons namely Sukhbir Singh, Satpal Singh, Surjeet Singh and Sukh Ram had divided the aforesaid property among themselves and get the possession of the same as per partition.
3. It is further averred that deceased plaintiff's father i.e. late Sukhbir Singh expired on 02.10.1984 leaving behind his legal heirs who are parties to the present suit. That erstwhile deceased plaintiff's father has left behind his divided share in ancestral immovable property bearing H.No.578, Chirag Delhi admeasuring approximately 18'.4' x 9'.2", which plaintiff is sharing since child hood along with other legal heirs and admittedly having in possession of first floor of the aforesaid undivided portion of the property belongs to father of erstwhile deceased plaintiff.
4. That deceased plaintiff in the month of March 2011 had requested the erstwhile deceased defendant no.1 to equally divide the aforesaid portion of the property by metes and bounds between him and defendant no.2 in accordance with last wish of their father, and in this regard oral partition took place, and all other remaining defendants had shown their verbal relinquishment consent towards their share in plaintiff and defendant no.1. However, defendant no.1 kept delaying the matter on one pretext or other. Erstwhile deceased plaintiff had offered that if the physical partition is not possible, suit property may be CS DJ No.7603/2016 page 3 of 26 sold off and sale proceeds be divided amongst all the above said co- owners of the property according to their shares, and the erstwhile deceased plaintiff was interested to purchase the entire portion of the property. That in the meanwhile Smt. Rajesh, the wife of erstwhile deceased plaintiff had purchased the divided share of Shri Satpal (one of the brother of plaintiff's father) from Smt. Vimla Devi who had purchased the same from Smt. Sukh Devi w/o late Shri Satpal on 02.02.2006.
5. That after hearing the news of purchasing of the portion of Shri Satpal, Smt. Shiksha Devi in connivance with defendant no.1 cooked up the story with malafide intentions, just to grab the share of the plaintiff in the aforesaid undivided property by filling the false and baseless suit for permanent injunction just to avoid the division of property as per last desire of late Sh. Sukhbir Singh and put unnecessary pressure by demanding the stay on the construction of the portion of the property, which was in the name of plaintiff's wife i.e. Smt. Rajesh by raising the issue of staircase, with the intention to cover the common Gali of 4'.7"
x 17'.9" from the side of Sukhram, which is opened from both the end (main road to village side) and all the occupants of the property have right to access and filed the fabricated site plan in the court with malafide intentions.
6. It is further averred that for couple of weeks, the construction/renovation work on the portion of property belonging to deceased plaintiff's wife was disturbed by the defendants and under pressure, the deceased plaintiff get ready to take share measuring CS DJ No.7603/2016 page 4 of 26 6'.2"x9'.2" instead of the half share i.e. 9'.2"x9'.2" in the ancestral undivided portion of the property belonging to deceased plaintiff and defendants from the side of stair case. It was further agreed between parties that erstwhile deceased plaintiff shall have to vacate the portion of first floor, so entire property will be demolished first and then divided as agreed above. But later on Smt. Shiksha Devi and defendant no.1 refused to divide the property after demolition as well as not chose to withdraw the suit from the court of Ld. Civil Judge, New Delhi, with intention to grab the share of plaintiff in the ancestral property.
7. That the defendants are in occupation of the major portion of the property and using the suit property without the consent and permission of the plaintiff. That said property can fetch a sum of Rs.10,000/- per month and as such defendants are liable to pay the proportionate amount to the plaintiff towards the damages/mesne profits, as the said defendants are occupying the said property against the wish of the plaintiff, and as such defendants are liable to pay damages/mesne profit to the plaintiff @ Rs.10,000/- per month according to their share in the property, from the date of filing of the suit, till the date of actual partition of property in question. That all the concerned papers/documents of the property in question were in the possession of the defendants, despite repeated requests, the defendants flatly refused to give the copies of concerned papers/documents to the plaintiff.
8. That plaintiff finally through his counsel sent a legal notice dated 10.01.2012 to the defendants for partition of suit property but in vain. It is stated that the plaintiff is co-sharer with other defendants in respect of CS DJ No.7603/2016 page 5 of 26 above said portion of the property left by deceased plaintiff's father, which plaintiff seeks partition by metes and bounds and approached the defendants for that purpose on several occasions but defendants put off the same on one pretext or another and not partitioned the property. Hence, the plaintiff was constrained to file the present suit.
9. Deceased defendants no.1 Smt. Shiksha Devi and defendant Dharmender Singh filed their joint written statement. It is stated that deceased plaintiff had left the premises in suit after having taken the consideration from the defendant no.1 in lieu of his share in the suit premises in the year 2006 and had returned to H. No.578, Chirag Delhi only when his wife namely Smt.Rajesh had purchased the divided share of Sh. Satpal and is not in possession of the property in the suit since then; in the second week of June 2011, deceased plaintiff had started demolishing and reconstructing the share in the property purchased by his wife, and while doing so the plaintiff also tried to encroach upon the area including the common staircase which was a common area between the premises in the suit and the area purchased by Smt. Rajesh; deceased defendant Smt. Shiksha Devi and defendant no.1 requested the deceased plaintiff not to demolish the common area including the staircase but to no avail and resultantly, the deceased defendant Smt.Shiksha filed a suit for permanent injunction against deceased plaintiff seeking an order restraining the deceased plaintiff from demolishing, obstructing, trespassing in the above said common area/staircase, and the Court of Ms. Neh, Ld Civil Judge, Saket Courts, New Delhi vide order dated 26.11.2011 restrain the deceased plaintiff CS DJ No.7603/2016 page 6 of 26 from doing any construction/renovation or creating any obstruction or hindrance in the use of the entire common staircase, and the deceased plaintiff was also directed to not cause any damage/obstruction to the portion in possession of the deceased defendant Smt. Shiksha Devi or to the other occupants of the suit premises.
10. It is further stated in the written statement by defendant no.1 that despite directions and restraining orders dated 27.12.2011, the deceased plaintiff demolished the common area including the common staircase thereby causing serious damages and cracks in the adjoining walls of the suit premises. Defendants requested the deceased plaintiff to stop the demolition but he did not pay any heed to the same.
11. That after much persuasion, it was agreed between plaintiff and defendant no.1 vide a written agreement dated 27.12.2011 that the plaintiff would be entitled to the whole of the common area including the common staircase and the defendant no.1 would become the absolute owner of the area comprising the premises in suit. It was also agreed between them that none of the two would institute any legal proceedings with respect to their share in the undivided share owned by their deceased father. That in furtherance of above said written agreement, the plaintiff and the defendant no.1 had demolished their respective shares in the property bearing no.578, Chirag Delhi, New Delhi and constructed the same; the common area has been amalgamated in the area owned by Smt. Rajesh; and the area comprising of the suit premises is now a part of the property purchased by Sh. Dharmender Singh, earlier owned by Sh. Sukhram, his father's CS DJ No.7603/2016 page 7 of 26 brother; that deceased defendant Smt. Shiksha Devi and defendants no.2 and 3 had relinquished their share in the premises in suit in favour of the defendant no.1 i.e. Sh. Dharmender Singh; and had neither intended to relinquish nor relinquished anything in favour of the plaintiff.
12. They denied site plan filed by plaintiff stated that the dimensions of the common area including the common staircase is not projected correctly in the same, and that site plan attached with the written statement is having correct dimensions of the common area; that divided share of deceased plaintiff's father in the said property is admeasuring 18-4" x 10-10"; possession of deceased plaintiff of first floor of suit premises denied; plaintiff's share in the suit property denied by defendants. Deceased defendants Smt. Shiksha Devi and defendant no.1 denied the claim of the plaintiff and sought dismissal of the suit.
13. Replication was filed to the Written Statement of deceased defendant Smt. Shiksha Devi and defendant no.1. Contrary averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
14. Defendants no.2 and 3 filed their joint written statement on the lines of averments made by deceased defendant Smt. Shiksha Devi and defendant no.1 in their joint written statement.
15. Replication was filed to the joint Written Statement of deceased defendant no.2 and 3. Contrary averments were denied as false and CS DJ No.7603/2016 page 8 of 26 incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.
16. Vide order dated 23.08.2012, following issues were settled:
(1)Whether the plaintiff is entitled to 1/5th share in the suit land, area measuring 18 feet 0.4 inches X 9 feet 0.2 inches, being the share of the father of plaintiff late Shri Sukhbir Singh, in house no.578, Chirag Delhi, New Delhi, being the ancestral property inherited from late Shri Bhagwan Sahay, grandfather of the plaintiff?OPP (2)Whether the defendant no.2 has become the owner of the entire share belonging to late Shri Sukhbir Singh, as per agreement dated 27.12.2011?OPD2 (After framing of issues, defendant no.1 expired and deleted, as such defendant no.2 referred in issue no.2 became defendant no.1) (3)Whether the plaintiff is entitled to the decree of partition in regard to the suit property?OPP (4)Whether the plaintiff is entitled to mesne profits/damages from the defendant, if so, the amount entitled to receive?OPP (5)Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for?OPP (6)Relief.
17. PW1 Sh. Vijay Singh (deceased plaintiff) tendered his evidence by way of affidavit Ex.PW1/1. He relied upon copies of ration card and election identity card as Ex.PW1/A1 and Ex.PW1/A2(OSR), site plan CS DJ No.7603/2016 page 9 of 26 of property no.578 as Ex.PW1/B, site plan of suit property as Ex.PW1/C, original electricity bill dated 05.01.2012 as Ex.PW1/A3, water connection bill dated 11.07.2011 as Ex.PW1/A4, Sale Deed dated 25.03.2011 as Ex.PW1/D (colly), original GPA dated 02.01.2006 as Ex.PW1/E (Colly), certified copy of case no.287/11 titled as Shiksha Devi vs. Vijay Singh as Ex.PW1/F, certified copy of application under Order 39 rule 1 & 2 CPC filed in case No.287/11 as Ex.PW1/G, certified copy of WS in suit No.287/11 as Ex.PW1/H, certified documents filed in suit No.287/11 as Ex.PW1/I (Colly), certified copy of order sheets in suit no.287/11 as Ex.PW1/J1 to Ex.PW1/J12, certified copy of statement of his mother under order 10 CPC dated 18.02.2012 as Ex.PW1/J13, certified copy of withdrawal statement of his mother dated 27.02.2012 as Ex.PW1/J14, legal notice along with postal receipts Ex.PW1/K1 to Ex.PW1/K3 (colly), photographs Ex.PW1/K4 to Ex.PW1/K7, police complaint dated 14.01.2012 as Ex.PW1/K8 and rent agreement Ex.PW1/L (colly), rent agreement. He was cross examined and discharged.
18. PW2 Sh. Amrish Kumar Sah, JJA Record Room (Civil), South, Saket Courts had brought summoned record pertaining suit no.287/11 titled as Shiksha Devi vs. Vijay Singh containing originals of certified copies already exhibited as Ex.PW1/F, Ex.PW1/G, Ex.PW1/H, Ex.PW1/J1 to Ex.PW1/J12, Ex.PW1/J13 and Ex.PW1/J14. Ld counsel for defendants did not prefer to cross examine this witness and his cross examination was treated as 'Nil'.
19. PW3 Sh. Vinay Kumar, Customer Care Officer from BSES, CS DJ No.7603/2016 page 10 of 26 Adhchini, New Delhi had brought the summoned record of electricity connection bearing CA No.102203033 already exhibited as Ex.PW1/3A which is in the name of Vijay Singh. He had also brought the copy of register wherein the number of connection of Vijay Singh was mentioned along with date of connection which is 21.12.1991 and the same was exhibited as Ex.PW3/A and the meter book as Ex.PW3/B. He was cross examined and discharged.
20. PW4 Sh. Dharam Chand Jain, Zonal Revenue Officer, Delhi Jal Board, Saket had brought summoned record pertaining to water connection no.45420 in the name of Vijay Singh at property no.578, First Floor, Chirag Delhi and filed copy of allotment register showing that water connection no.45420 was sanctioned in the name of Vijay Singh as Ex.PW4/B. He was cross examined and discharged.
21. PW5 Smt. Bimla Devi w/o Surjeet Singh deposed that she had purchased the share of Satpal in property no578, Chirag Delhi, New Delhi in the year 2006, and thereafter, she sold her property to Smt. Rajesh w/o Vijay Singh on25.03.2011, and in this regard she had executed the sale deed amounting to Rs.10,25,000/- in the name of Smt. Rajesh. She further deposed that said sale deed is already exhibited as Ex.PW1/D bearing her signatures at point A and the GPA executed by Satpal in her favour as Ex.PW1/E. Ld counsel for defendants did not cross examine witness and as such her cross examination was treated as 'Nil'.
22. PW6 Smt. Rajesh w/o Sh. Vijay Singh deposed that she had purchased the share of Bimla Devi in suit property in the year 2006 for CS DJ No.7603/2016 page 11 of 26 Rs.10,25,000/- and the Sale Deed is already Ex.PW1/D. She was cross examined and discharged.
23. Thereafter, vide order dated 30.08.2017, PE was closed.
24. DW1 Sh. Kailash Sharma, HC Ministerial from office of Deputy Commissioner of Police, South Distt brought summoned record pertaining to complaint bearing diary No.115 dated 18.01.2012 which was filed in the office of DCP, Hauz Khas, and deposed that old record pertaining to Complaint Branch, South Distt upto the year 2014 has been destroyed vide office order no.1942-2041/SDC-V/SD dated 20.03.2018, and the said letter along with copy of order dated 20.03.2018 were collectively exhibited as Ex.DW1/1. He was cross examined and discharged.
25. DW2 Sh. Apil Anthony, Medical Record Technician from Max Smart Super Specialty Hospital had brought summoned record i.e. discharge summary dated 30.12.2011 in respect of Smt. Shiksha Devi and exhibited the same as Ex.DW2/1 (OSR). He was cross examined and discharged.
26. DW3 Sh. Dharmender Singh (defendant no.1) tendered his evidence by way of affidavit as Ex.DW3/A. He relied upon site plan of suit property as Ex.DW3/1 and copy of settlement dated 27.12.2011 already exhibited as Mark PW1/D1. He was cross examined and discharged.
27. DW4 Smt. Shyam Lata (defendant no.2) tendered her evidence by way of affidavit Ex.DW4/A. She relied upon document already CS DJ No.7603/2016 page 12 of 26 exhibited as Ex.DW3/2. He withdrew last line of para 6 of her affidavit of evidence. She was cross examined and discharged.
28. DW5 Sh. Varun Solanki tendered his evidence by way of affidavit Ex.DW5A. He deposed that Settlement Deed dated 27.12.2011 Mark PW1/D1 was executed between late Vijay Singh and Sh. Dharmendra Singh in his presence along with Amarjeet Chawdhary, Gyanendra Singh, Devendra Chowdhary, Raj Kumar and Smt. Shyam Lata. He was cross examined by plaintiff no.4 who is an Advocate also.
29. It is pertinent to mention herein that on 04.10.2024, plaintiff no.4 Ms. Lovely get her statement recorded to the effect that plaintiffs are residing in property bearing House No.578, Chirag Delhi, New Delhi, and that plaintiffs earn a rental income of Rs.11,000/- per month from said property, and that property at village Pooth Bawana is a residential property and there is no source of income from that property.
30. I have heard arguments and perused the record.
31. The Supreme Court in a matter captioned as Shub Karan Bubna @ Shub Karan Prasad Bubna Vs Sita Saran Bubna & Ors in SLP No. 17932 of 2009 has dealt with the issue in great length. The basic parameter and concept of partition may require further elucidation:
'Partition' is a re-distribution or adjustment of pre-existing rights, among co-owners/ coparceners, resulting in a division of lands or other properties jointly held by them, into different lots or portions and delivery thereof to the respective allottees. The effect of such division is that the joint ownership is CS DJ No.7603/2016 page 13 of 26 terminated and the respective shares vest in them in severally. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. 'Separation of share' is a species of 'partition'. When all co-owners get separated, it is a partition. Separation of share/s refers to a division, where, only one or only a few among several co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, where four brothers owning a property divide it among themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other three brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit properties, but also division of his share by metes and bounds. This involves three issues:
(i)whether the person seeking division has a share or interest in the suit property/properties;
(ii)whether he is entitled to the relief of division and separate possession; and
(iii)how and in what manner, the property/properties should be divided by metes and bounds?
5.In a suit is for partition or separation of a share, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he/she is entitled to division and separate possession. The CS DJ No.7603/2016 page 14 of 26 decision on these two issues is exercise of a judicial function and results in first stage decision termed as 'decree' under Order 20 Rule 18(1) and termed as 'preliminary decree' under Order 20 Rule 18(2) of the Code. The consequential division by metes and bounds, considered to be a ministerial or administrative act requiring the physical inspection, measurements, calculations and considering various permutations/ combinations/alternatives of division is referred to the Collector under Rule 18(1) and is the subject matter of the final decree under Rule 18(2).
6.The Rule 18 of Order 20 of the Code of Civil Procedure ('Code' for short) deals with decrees in suits for partition or separate possession of a share therein which is extracted below.
"18. Decree in suit for partition of property or separate possession of a share therein.-- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then-
(1)if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with such declaration and with the provisions of section 54;
(2) if and in so far as such decree relates to any other immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently made CS DJ No.7603/2016 page 15 of 26 without further inquiry, pass a preliminary decree declaring the rights of the several parties, interested in the property and giving such further directions as may be required."
The terms 'preliminary decree' and 'final decree' used in the said rule are defined in Explanation to section 2(2) of the Code and reads thus :
"A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
Section 54 of the Code dealing with partition of estate or separation of share, relevant for purposes of Rule 18(1) reads thus:
"Where the decree is for the partition of an undivided estate assessed to the payment of revenue of the government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted sub-ordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession of shares, of such estates."
Rule 13 of Order 26 of the Code dealing with Commissions to make partition of immovable property, relevant for purposes of Rule 18(2) reads thus :
"Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to CS DJ No.7603/2016 page 16 of 26 the rights as declared in such decree."
8.Once a court passes a preliminary decree, it is the duty of the court to ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree as to the manner of division. This duty in the normal course has to be performed by the court itself as a continuation of the preliminary decree.
Sometimes, either on account of the pendency of an appeal or other circumstances, the court passes the decree under Rule 18(1) or a preliminary decree under Rule 18(2) and the matter goes into storage to be revived only when an application is made by any of the parties, drawing its attention to the pending issue and the need for referring the matter either to the Collector or a Commissioner for actual division of the property.
The following principles emerge in the above backdrop and relating to partition suit:
(i) If estate assessed to payment of revenue to the government (agricultural land), the court is required to pass only one decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code.
9. The following principles emerge from the above discussion regarding partition suits :
9.1) In regard to estates assessed to payment of revenue to the government (agricultural land), the court is required to pass only one CS DJ No.7603/2016 page 17 of 26 decree declaring the rights of several parties interested in the suit property with a direction to the Collector (or his subordinate) to effect actual partition or separation in accordance with the declaration made by the court in regard to the shares of various parties and deliver the respective portions to them, in accordance with section 54 of Code. Such entrustment to the Collector under law was for two reasons. First is that Revenue Authorities are more conversant with matters relating to agricultural lands. Second is to safeguard the interests of government in regard to revenue. (The second reason, which was very important in the 19th century and early 20th century when the Code was made, has now virtually lost its relevance, as revenue from agricultural lands is negligible). Where the Collector acts in terms of the decree, the matter does not come back to the court at all. The court will not interfere with the partitions by the Collector, except to the extent of any complaint of a third party affected thereby.
9.2) In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds CS DJ No.7603/2016 page 18 of 26 cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.
32. It is settled principle of law that in a civil trial, burden of proof is upon the plaintiff that the plaintiff would adduce evidence to prove his claims against the defendant and is based on preponderance of the CS DJ No.7603/2016 page 19 of 26 probabilities. Furthermore, until and unless an exception is created by any law, the burden of proof lies on the person making claim or asserting any fact.
33. It is settled law that in case there has been previous partition, the plaintiff is estopped from seeking fresh partition as held in the case of Rakesh Malhotra v. Vikas Malhotra, 2019 (2) AD (Delhi) 24 and so the suit is liable to be dismissed on this count also.
34. Further, in the case of Sita Ram Pasad v. Mahadeo Rai & Ors, AIR 1980 Patna 254 it was held that oral partition is permissible and the presumption of complete partition is there in law. Similarly in the case of Kesharbai @ Pushpabai Eknathrao Nalawade by LRs & Anr. v. Tarabai Prabhakarrao Nalawade & Ors., (2014) 4 SSC 707 it was held that once a partition takes place in a family, presumption is that all the properties stood partitioned.
35. In the joint families the properties are divided/ partitioned on execution of documents and with oral understanding. A family settlement/arrangement, deserves to be uphold and accepted by the Courts, if the same is found to be bona fide, voluntary, without coercion, influence and misrepresentation and stands acted upon. It is also settled principle that the Courts in general do not enquire into the adequacy of the consideration, except where the inadequacy of the consideration leads to gross injustice to one party. Even though not registered but still the family arrangement has evidentiary value and the same is binding on the persons who are parties to it. Further, a family arrangement which is obviously binding on the parties to the arrangement operates as an CS DJ No.7603/2016 page 20 of 26 estoppel to preclude any of the parties who have taken advantage under the agreement from revoking and challenging the same as has been observed by the Hon'ble Supreme Court in the case of Kale V Dy. Director of Consolidation, AIR 1976 SC 807. The Hon'ble Supreme Court in the case of Sita Ram Bhama V Ramvatar Bhama, SLP(C) NO 11067 of 2017 has observed that the family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family and that the said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
36. Version of the plaintiff is that plaintiff is in possession of first floor of the suit property which is undivided, and further that other defendants i.e. mother and sisters orally shown their intention for relinquishment of their shares in favour of plaintiff and defendant no.1 brother.
37. On the other hand, version of the defendants is that the plaintiff had left the premises in suit after having taken the consideration from deceased defendant no.1 in lieu of his share in the suit premises in the year 2006 and has returned when his wife namely Smt. Rajesh had purchased the divided share of Satpal and is not in possession of property in the suit since then. Further that in the second week of June 2011, the deceased plaintiff had started demolishing and reconstructing the share in the property purchased by his wife, and while doing so the deceased plaintiff herein also tried to encroach upon the area including the common staircase which was a common area between the premises in the suit and the area purchased by Smt. Rajesh. Defendants requested CS DJ No.7603/2016 page 21 of 26 the plaintiff to not demolish the common area including staircase but deceased plaintiff did not pay any heed. That despite restraining order from Civil Court, on 26.11.2011 plaintiff demolished common area including common staircase thereby causing serious damages and cracks in the adjoining walls of the suit premises; quarrel took place, deceased defendant no.1 filed police complaint; written settlement dated 27.12.2011 Mark PW1/D1 took place between deceased plaintiff and defendant no.1 Dharmender Singh; as per settlement dated 27.12.2011 Mark PW1/D1, it was agreed that plaintiff would be entitled to the whole of the common area including the common staircase and the defendant no.1 would become the absolute owner of the area comprising the premises in suit, and that none of the two would institute any legal proceedings with respect to their share in the undivided share owned by their deceased father; in furtherance of above said written settlement Mark PW1/D1, the deceased plaintiff and defendant no.2, demolished their respective shares in the property and reconstructed the same; common area had been amalgamated in the area owned by Smt. Rajesh, and the area comprising of the suit premises is now a part of property purchased by defendant no.1 Dharmender Singh earlier owned by Sukhram, his father's brother; that deceased mother defendant and both defendants sisters had relinquished their share in the premises in suit in favour of defendant i.e. Dharmender Singh, and had neither intended to relinquish nor relinquished anything in favour of deceased plaintiff.
38. During cross examination plaintiff PW1 Vijay Singh had admitted his signatures at point X on Agreement dated 27.12.2011 Mark CS DJ No.7603/2016 page 22 of 26 PW1/D1, though stated that the same was signed by him under pressure created by Amarjeet, Gyanender Singh, Devender Chaudhary, Varun Solanki and Shyamlata. PW1 further stated that he had not made any police or court complaint regarding the pressure created upon him by aforesaid five persons. He further admitted that it is not mentioned in Mark PW1/D1 that he will have to vacate the first floor of the suit property and that it will be demolished by the defendants. He further admitted that he has not placed on record any document to show that there was any settlement regarding demolition and reconstruction of the suit property after his vacating the first floor of the same. He deposed voluntarily that there was an oral understanding but there were no written documents. It is further admitted by PW1 that half portion of the staircase lying adjacent to the share of Sh. Satpal, which was later on purchased by his wife, was merged in the share purchased by his wife, and that similarly half portion of the staircase which was lying adjacent to the share of the suit property, which was in possession of the defendants, was merged in the suit property in their possession. Testimony of deceased plaintiff/PW1 Vijay Singh shows that parties to the suit entered into family settlement with respect to suit property as well as staircase as spelled out in settlement Mark PW1/D1 and acted upon the same.
39. Furthermore, in the settlement Mark PW1/D1 it is specifically stated that defendant Dharmender has given entire area of staircase to the plaintiff Vijay Singh towards his share in the share of their father and the said settlement was duly signed by plaintiff Vijay Singh and defendant Dharmender Singh as well as witnesses, and further CS DJ No.7603/2016 page 23 of 26 thereafter the parties carried out construction in their respective shares, without any objection by any party.
40. Insofar as version of defendants that plaintiff Vijay Singh had left the suit property after having taken Rs.3 Lakh from deceased defendant mother Smt. Sikha Devi is concerned, Smt. Siksha Devi was examined under Order 10 of the CPC before the Court of Ms. Neha, Ld. Civil Judge-03, South, Saket Courts, New Delhi on 18.02.2012 in Civil Suit No.287/2011 titled as Siksha Devi vs. Vijay Singh, wherein also Smt. Siksha Devi had specifically stated that "Vijay Singh had left the suit property about seven years ago and she had given him Rs.3 Lakhs. This Court see no reason to disbelieve the said testimony of Smt. Shiksha Devi which was recorded U/o 10 of the CPC.
41. During cross examination PW1 stated that " I do not remember in which year I shifted in House No.175, Chirag Dilli, New Delhi and for how much time I resided there with my family. Vol.-When the suit property was demolished by the defendant then I had shifted in my wife's property)". PW1 further stated that "It is correct that at the time of filing of the present suit, I was only in possession of the share that my wife had purchased from the wife of Sh.Surjeet which was earlier the share of Sh. Satpal. Till date, I am in possession of that very share......I had not made complaint to the electricity department regarding the disconnection of my electricity supply from meter related to Ex.PW1/A3". Having regard to the referred testimony of PW1 as well as statement of Smt. Shiksha Devi recorded u/s 10 CPC in Civil Suit 287/2011, this Court finds force in the version of defendants that deceased plaintiff Vijay Singh had left his share in the suit property after CS DJ No.7603/2016 page 24 of 26 having taken Rs.3 Lakh from deceased defendant Smt. Shikhsha Devi.
42. It is contended by Ld counsel for defendants that in support of his version, defendant Sh. Dharmender Singh examined DW4 Smt.Shyam Lata and DW5 Sh. Varun Solanki who supported the version of the plaintiff about execution of settlement dated 27.12.2011 Mark PW1/D. It is also contended by Ld counsel for defendants that during cross examination PW1 stated that " I am contesting this case only for first floor of the suit property. I have no concern with rest of the suit property as I used to reside in the suit property on the first floor prior to demolition", and as such plaintiff has voluntarily given up his right to one-fifth share in the property. It is also contended that when plaintiff/PW1 has admittedly accepted 17.6 ft of the suit property towards his entire share in the ancestral property, he has no right to claim any further share in the same. It is also contended by Ld counsel for the defendants that defendants Smt. Shiksha Devi, during her lifetime, Smt. Shyam Lata and Smt. Pushpa i.e. mother and sisters of the plaintiff had stated in their written statement that they had orally relinquished their share in the ancestral property in favour of defendant Sh. Dharmender Singh, thereby making him the absolute owner of the said property, and further that defendant Smt. Shyam Lata had even appeared as a witness and reiterated and reaffirmed her stand in her evidence.
43. In view of above discussion, having regard to the testimonies of the witnesses and the documents on record as well as ratio of judgments referred above, this court is of the considered opinion that applying the principle of preponderance of the probabilities, the defendants have CS DJ No.7603/2016 page 25 of 26 been able to establish that deceased plaintiff Vijay Singh had taken Rs.3 lakh from deceased defendant Smt. Shiksha Devi in lieu of his share in the suit property, and further that when again dispute arose between parties settlement Mark Ex.PW1/D1 arrived at and acted upon by the parties, and as such plaintiff cannot seek fresh partition of the suit property as held in the case of Rakesh Malhotra (Supra), and the plaintiff is not entitled to reliefs as sought for in the plaint.
Relief
44. In view of above discussion, suit of the plaintiff is dismissed.
45. No order as to cost.
46. Decree sheet be prepared accordingly.
47. File be consigned to record room.
Announced in the open Court on 17.02.2025.
Digitally Sunil signed by Sunil beniwal (Sunil Beniwal) beniwal Date:
2025.02.18 District Judge-06(South),
11:16:37
+0530 Saket Courts, New Delhi
CS DJ No.7603/2016 page 26 of 26