Delhi District Court
Om Prakash vs Sh. Ved Prakash on 21 March, 2014
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 28/14
In the matter of:
Om Prakash
S/o Sh. Ram Rik( Kelewale)
H. No. 178, Gali No. 2
BlockA, Mahalaxmi Enclave
Karawal Nagar, Delhi .............. Plaintiff
Versus
Sh. Ved Prakash
S/o Sh. Ram Rik ( Kelewale)
R/o A281, Gali No. 2/ 3,
Ambika Vihar, Karawal Nagar,
Delhi 110094 .............. Defendant
Date of Institution : 11.02.2011
Unique ID No. : 02402C0048132011
Date of Arguments : 18.03.2014
Date of Judgment : 21.03.2014
Suit for partition, declaration & permanent injunction
JUDGMENT
1. This is suit for partition, declaration, permanent injunction and CS No. 28/14 1/18 Om Prakash V/s Ved Prakash possession of property bearing no. A281 measuring 50 sq. yards, khasra NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94( hereinafter called the suit property) as shown in the red colour in the site plan attached with the plaint filed by plaintiff against the defendant.
2. It is stated in the plaint that the plaintiff and defendant being real brothers jointly purchased a plot/ property consisting of two room, one kitchen and open code yard bearing No. A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94 from the previous owner. The documents of the property in the possession of defendant. The defendant had taken signature of plaintiff on a plain paper in the good faith on the pretext of taking loan from bank from construction of the plot. Plaintiff requested the defendant's to partition his share of 25 sq. yards out of 50 sq. yards but of no avail. The plaintiff claimed to be using the property in peaceful manner with the defendant. When the plaintiff visited the suit property on 10.05.09, he was turned out by the defendant and his wife. The request of plaintiff's to partition of the property was refused by the defendant. The defendant refused regarding the share of plaintiff on 02.01.11 and plaintiff make complaint to the police. Legal notice dt. 14.01.11 was served upon the plaintiff by the defendant which was duly replied by the plaintiff. As the defendant failed to partition the property despite repeated request, the suit is filed by plaintiff against the defendant to partition the suit property in half share, declaring that affidavit and other documents as CS No. 28/14 2/18 Om Prakash V/s Ved Prakash well as signature of the plaintiff as null and void, for restraining the defendant agent, servant family members for creating any third party interest for ailnating or party with the suit property with cost of the suit.
3. The suit is contested by the defendant by way of a written statement of defence wherein preliminary objections are taken to the effect that this suit is false and liable to be dismissed with cost , the suit is filed by plaintiff to grab the property of the defendant and is not maintainable. It is further mentioned that plaintiff is not in possession of the suit property and this suit is barred by specific performance, the plaintiff's has suppressed the material facts and suit is liable to be dismissed. It is contended that the plaintiff has suppressed the material facts and not approach with clean hands; this suit is false and liable to be dismiss u/o 37 CPC. As contended the plaintiff has sold his share in favour of defendant's on 22.01.07 and received Rs. 1,00,000/ in cash from the defendant as consideration for his share in the property in question and has given an affidavit i.e. a receipt signed by the plaintiff's and attested by the notary. As mentioned the plaintiff's have delivered the physical possession to defendant of his share ie. 25 sq. yards and defendant is the sole owner in peaceful , explosive owner of the suit property. It is further contended that the plaintiff despite notice dt. 14.01.11 failed to execute the documents of the sell and all the documents regarding the property are with the defendant as he purchased the share of plaintiff. The defendant further denied all the relevant and material contentions of the plaintiff in the plaint. It is further stated in the written statement that the suit is liable to be dismissed. CS No. 28/14 3/18 Om Prakash V/s Ved Prakash
4. To the written statement of the defendant, a rejoinder was filed on behalf of the plaintiff wherein the defence taken by the defendant in the written statement are traversed and the averments made in the plaint are reiterated.
5. In view of the pleading of the parties, following issues were settled vide order dt. 24.08.11: (I) Whether the plaintiff is entitled to partition and possession of 50 % share in the property bearing No. A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94? ( OPP)
(ii) Whether plaintiff is entitled to decree for declaration that the affidavit dt. 22.01.07 is null and void?( OPP)
(iii) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP.
(iv) Relief.
And the case was fixed for plaintiff's evidence.
6. The plaintiff filed his affidavit by way of evidence Ex. PW 1/ A and examined himself as PW 1 in support of the case. He deposed as per averments made in the plaint and tendered in evidence the following documents :
(a) Site plan Ex.PW1/1.
(b) copy of complaints mark A,B and C. (c) Notice Ex.PW1/5 CS No. 28/14 4/18 Om Prakash V/s Ved Prakash
(d) reply to the notice Ex. Ex.PW1/6
(e) courier receipt and post receipt Ex.PW1/7 and Ex. PW 1/ 8.
As no other witness was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant on the other hand, filed his affidavit by way of evidence Ex. DW 1/ A and examined himself as DW1. His evidence was also as per his written statement filed by him. The DW 1 reiterated that he is the owner in the possession of the suit property and tendered in evidence the following documents
(a) Affidavit dt. 22.01.07 Ex. DW 1/ 1.
(b) Electricity bill in the name of defendant Ex. DW 1/ 2, voter I card Ex. DW1/3.
The defendant thereafter examined other witness Mr. Raj Kumar Aggarwal by his affidavit Ex. DW 2/ A as DW 2 who deposed that plaintiff has sold his share in the property for Rs. 1,00,000/ and received the amount in cash. The witness further deposed that plaintiff has handed over the peaceful possession of the property to the defendant.
No other witness was examined by the defendant and hence the DE was closed.
8. I have heard the Ld. counsel for the parties and have gone through the relevant material on records. I have also considered the relevant provisions of law.
Having drawn my attention to the pleadings of the parties, testimony of CS No. 28/14 5/18 Om Prakash V/s Ved Prakash witnesses and materials on records, it is submitted by counsel for the plaintiff that from the evidence led by the plaintiff as well as from the cross examination of DW1 and DW 2, it has been proved that the plaintiff is the owner of the suit property having half share and prayed to pass decree in favour of plaintiff and against the defendant.
On the other hand, having drawn my attention to the testimony of the witnesses and documents on records, it is submitted by counsel for the defendant that the plaintiff has failed to prove the case and discharge the onus. It is also submitted by Ld. counsel for the defendant that the share of the plaintiff in the suit property was purchased by the defendant and possession of the same was handed over by the plaintiff, plaintiff has no locus standi to file this suit and plaintiff has concealed the material facts and therefore, the suit is liable to be dismissed. It is further submitted by counsel for the defendant that this suit is false and there is no ground for passing decree against the defendant therefore, the suit be dismissed.
9. I have given my thoughtful consideration to the submissions made on behalf of the parties. My findings issuewise are as under : ISSUE No. i, ii and iii (I) Whether the plaintiff is entitled to partition and possession of 50 % share in the property bearing No. A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika CS No. 28/14 6/18 Om Prakash V/s Ved Prakash Vihar, Karawal Nagar, Delhi94? ( OPP)
(ii) Whether plaintiff is entitled to decree for declaration that the affidavit dt. 22.01.07 is null and void?( OPP)
(iii) Whether the plaintiff is entitled to decree for permanent injunction as prayed for? OPP.
10. Issue No.1 regarding entitlement of the plaintiff to the decree for partition and possession of 50 % share in the suit property, issue No. 2 regarding entitlement of plaintiff for decree of declaration of affidavit Ex. DW 1/ 1 dt. 22.01.07 as null and void and issue No. 3 regarding entitlement of the plaintiff for a decree of permanent injunction as prayed for are inter connected, they have been taken up together for adjudication.
11. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities.In the case of Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, the Hon'ble High Court of Delhi was pleased to observe as under: "A civil case is decided on balance of probabilities. The balance of probabilities in the present case shows that the Power of Attorney Ex.
PW3/1 and the Will Ex. P1 were duly executed by CS No. 28/14 7/18 Om Prakash V/s Ved Prakash the deceased Sh. Sohan Singh. The Power of Attorney is after all a registered Power of Attorney, and more importantly, the original title documents of the subject property are in the possession of the respondent No. 1 and which would not have been, if there was not to be any transfer of title in the suit property. Merely because two views are possible, this court would not interfere with one possible and plausible view which is taken by the court below, unless such view causes grave injustice. In my opinion, in fact, grave injustice will be caused not to the objectors/appellants but to the respondent No. 1 her fatherinlaw Sh. Sewa Singh, if the impugned judgment is set aside."
In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil CS No. 28/14 8/18 Om Prakash V/s Ved Prakash suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree". In the cases of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729 and Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, it has been held that a civil case is to be decided on balance of probabilities.
12. The pleadings of the parties and evidence on record reveals the following:
(a) that the suit property was purchased jointly by the plaintiff and defendant.
(b) that the defendant is in possession of the suit property.
(c) that the defendant has claimed the ownership of the suit property on the basis of affidavit Ex.DW 1/ 1 having purchased the same from the plaintiff for Rs. 1,00,000/ though the plaintiff denied that he sold the suit property contending that his signature was obtained on a blank paper on the pretext of obtaining loan for construction of the suit property..
(d) the defendant has not examined or proved the execution of affidavit Ex. DW 1/1 by calling the notary public.
(e) That the testimony of DW 2 examined by the defendant is beyond CS No. 28/14 9/18 Om Prakash V/s Ved Prakash pleadings regarding the passing of consideration of Rs. 1,00,000/ as contended.
13. On the basis of pleadings and arguments of counsel for the parties, first point which falls for for determination is: whether the defendant can be considered as exclusive owner in possession of the suit property on the basis of the documents ie. Affidavit Ex.DW 1/ 1( though the execution of the same has been denied by the plaintiff)? There is no dispute between the parties that both the parties have purchased the suit property jointly from the previous owner. The defendant claims to have purchased the suit property from the plaintiff on the basis of the affidavit relied by the defendant as Ex. DW 1/1. The defendant further claimed that after execution of affidavit Ex. DW 1/ 1, the documents of the property was handed over to defendant and possession of the share of the suit property was handed over to defendant by the plaintiff. The defendant has claimed that he is absolute owner in possession of the property and denied the locus standi of the plaintiff to file this suit. The plaintiff on the other hand denied the transaction of sell purchase qua the suit property on the ground that he never sold the suit property to defendant nor ever handed over possession.
14. The plaintiff was cross examined by the learned counsel for the defendant. In the cross examination, the plaintiff has deposed that the suit property is an unauthorized colony and his signatures is obtained on one piece of blank paper on road by the defendant while he was selling bananas. It is relevant to note that the only documents in support of contentions of CS No. 28/14 10/18 Om Prakash V/s Ved Prakash ownership relied by the defendant is the Ex. DW 1/ 1 of which the plaintiff alleged that his signature was taken in blank. It is interesting that except the documents Ex. DW 1/1 , the defendant did not get executed any other documents for the purchase of the property like GPA, agreement to sell, possession letter, will etc. The defence of the plaintiff therefore stands corroborated. The question may be asked as to when the defendant is acting in good faith and on trust, why only Ex. DW 1/ 1 was executed and no other documents necessary to show the purchase of the immovable property were executed in his favour. Further question may be raised as to what the occasion for the defendant to issue notice to the plaintiff to execute the sell documents only after the plaintiff claims his share and made complaint against to the defendant to the police. These questions remained unanswered. By no stretch of imagination the defendant can be considered as the owner in possession of the suit property. It is further relevant to note that the said Ex. DW 1/ 1 was allegedly executed in year 2007 but no steps was taken by defendant to get the relevant documents executed. There is every possibility and probability that when the plaintiff demanded for his share, the defendant has concocted a story regarding purchase of the property from the plaintiff. It is further reiterated that said Ex. DW 1/1 is not proved at all in accordance with law alongwith consideration as mentioned. It may be that defendant re constructed house and started residing therein and have not permitted to plaintiff to enter the house as and when he tried keeping in view of relationship of the parties being brothers and finding no CS No. 28/14 11/18 Om Prakash V/s Ved Prakash alternative, the plaintiff was forced to file this suit against the defendant. The mere contention that the defendant is residing in the suit property as owner is not sufficient to dis entitle the plaintiff for the relief as prayed in the suit and plaintiff may be considered in the constructive possession of the suit property. The testimonies of the DWs is not sufficient to rebut the claim of the plaintiff.
15. The main issue which remains to be adjudicated as to whether the defendant can claim the ownership of the suit property on the basis of documents ie. Affidavit Ex.DW 1/1. The above circumstances can lead to only one conclusion that the suit property was never sold by plaintiff to defendant nor the defendant became owner thereof. This court is guided in view of the judgment of Hon'ble Supreme Court in re Suraj Lamps & Industries Pvt Limited versus State of Haryana & Another, reported as 183 (2011) DLT 1 (SC). The documents of title relied upon by the defendant such as Ex. DW 1/ 1( affidavit), electricity bill and voter I card would not confer ownership rights in respect of immovable property in his favour. In the present case, admittedly the plaintiff is the joint owner of the suit property and there is nothing on record to infer that he sold the suit property to the defendant or handed over the possession as part performance of the agreement to sell. Thus the only inference which can be drawn in view of the pleadings and evidence led is that the plaintiff is the owner of the suit property and Ex. DW 1/ 1 is liable to be declared as null and void. Issue No. 2 is thus decided in favour of the plaintiff and against the defendant.
16. Section 101 of the Evidence Act, 1872 defines " burden of proof" which CS No. 28/14 12/18 Om Prakash V/s Ved Prakash is reproduced as below: " 101. Burden of proof whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Section 101 of the Evidence Act has clearly laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been liable to discharge his burden. Until he arrives at such conclusion he cannot proceed on the basis of weakness of other party.
In view of this legal position of the Evidence Act, it is clear that the plaintiff has discharged the burden regarding the property being joint property purchased by plaintiff and defendant. It was for the defendant to prove that he is the absolute owner having purchased the property from the plaintiff but the defendant failed to discharge the onus and prove the contentions as mentioned in the written statement.
17. It is argued by learned counsel for defendant that the plaintiff is not in the possession of suit property and has not paid the appropriate court fees for CS No. 28/14 13/18 Om Prakash V/s Ved Prakash the relief of possession as prayed in the suit. It is further argued that issues regarding the court fees should have in framed as the defendant has taken objections in this respects in the WS. This court does not find itself in consonance with with arguments by learned counsel for defendant. The plaintiff claimed himself to be possession of the suit property though not permitted by the defendant who enter the same. I have gone through the judgment reported as 155( 2005) DLT 300 titled Saroj Salkan V/s Captain Sanjeev Singh & others and the ratio of the judgment is squarely applied in the facts and circumstances of this case. As held it is settled law that in suit for partition, court fees to be paid if joint possession is pleaded by the plaintiff on basis that he is co owner of the property sought to be partitioned, fix court fees would be payable under article 17(VI) of Schedule II of Act presuming the joint possession of plaintiff even if plaintiff is not in actual possession. It is because of reason that in the case of co owners, possession is one is in law possession of all, unless from averments in plaint read as all, a clear case of ouster is made and in that situation, plaintiff is liable to pay ad veloram court fees on market value of this share as provided under section 7 (IV) (b) of the Act not with standing fact that it is also pleaded that plaintiff was in constructive possession.
In view of averments made in the plaint and the valuation clause thereon, prima facie the plaintiff claims to be in joint possession of property of which partition is sought. It is further clear that plaintiff has been excluded from the joint possession to which he is entitled in law and has to pay only CS No. 28/14 14/18 Om Prakash V/s Ved Prakash fixed court fees as per articles 17(VI) in schedule II of the Act. It is reiterated the plaintiff has valued the suit and paid the appropriate court fees in this respects.
18. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved"
as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title ( Para 28,29 and 33).
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him CS No. 28/14 15/18 Om Prakash V/s Ved Prakash would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this court the plaintiff had succeeded in shifting the onus on the defendant and, therefore, the burden of proof which lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
19. I have gone through the judgment passed by Hon'ble Supreme Court of India in SLP (C) No. 13917 of 2009 titled as Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana & Ors. and the law laid down by Hon'ble Supreme Court in the matter is squarely applicable in the facts of this case. Hon'ble Supreme Court have held that Section 27 of Indian Stamp Act, 1899 casts upon the party, liable to pay stamp duty, an application to set forth in the instrument all facts and circumstances which affects the chargeability of duty on that instrument. Section 17 of the Registration Act, 1098 makes deed of conveyance compulsorily registrable. The transfer of an immovable property can only be by a deed of conveyance and in the absence of a deed of conveyance ( duly stamped and registered as required by law), no right, title or interest in an immovable property can be transfered.
20. In view of the aforesaid discussions and referred law, this Court is of the considered view that the defendant cannot be considered having right, title or interest in the suit property better than the plaintiff and the document CS No. 28/14 16/18 Om Prakash V/s Ved Prakash Ex. DW 1/1 relied by the defendant is neither helpful nor sufficient to deny the claim of the plaintiff. There is no merit or substance in the defence raised by the defendant. The suit of the plaintiff is therefore entitled to be decreed.
21. Since the plaintiff has been found to be joint owner of the suit property, he is entitled for the partition of 50 % share in the suit property ie property bearing No. A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94 and possession of his share as prayed in this suit. Further, as the plaintiff is the owner of the 50 % share, the defendant will not have any right to create third party interest in the suit property in any manner. The plaintiff is therefore entitled to a decree for partition of 50 % share, possession of his share and permanent injunction as prayed for. Issue No. 1 & 3 is accordingly decided in favour of the plaintiff and against the defendant.
(4) RELIEF For the reasons recorded above, the plaintiff is found to be entitled to the following reliefs:
(a) the plaintiff is held to be joint owner of the suit property i.e. No. A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94.entitled to 50 % of his share and possession of his share ;
(b) the affidavit Ex. DW 1/ 1 is declared as null and void.
(c) the plaintiff is granted the decree for permanent injunction restraining the defendant from creating third party interest in the suit property i.e. No. CS No. 28/14 17/18 Om Prakash V/s Ved Prakash A281 measuring 50 sq. yards, khasta NO. 19/15, Maan, now IE, A Block, Gali No. 2/3, Ambika Vihar, Karawal Nagar, Delhi94.
22. Preliminary decree be drawn accordingly for passing final decree of partition alongwith decree of possession for the share of plaintiff. Announced in open Court on this 21th day of March, 2014 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 28/14 18/18 Om Prakash V/s Ved Prakash