Delhi District Court
Sh. Sushil Kumar vs Smt. Champa Devi on 21 January, 2023
IN THE COURT OF MS. RAVINDER BEDI,
ADDITIONAL DISTRICT JUDGE-02 (SHAHDARA),
KARKARDOOMA COURTS, DELHI.
C.S. No. 391/2016
CNR No. DLSH01-000203-2014
Sh. Sushil Kumar,
S/o Late Sh. Raj Singh,
R/o 5/13, Jagjeevan Nagar,
Shahdara, Delhi. .......Plaintiff
Versus
1. Smt. Champa Devi,
W/o Late Sh. Raj Singh,
R/o H.No.5/13, Jagjeevan Nagar,
Shahdara, Delhi.
2. Sh. Pal Singh,
SW/o Late Sh. Raj Singh,
R/o 53-A, Gali No.1, Shadat Pur,
Karawal Nagar Road, Delhi.
3. Sh. Anil Kumar,
S/o Late Sh. Raj Singh,
R/o H.No.5/13, Jagjeevan Nagar,
Shahdara, Delhi.
4. Ms. Anita,
W/o Sh. Mahender Singh Sagar,
R/o 12/46, Gali No.12, Jaiprakash Wali,
New Kashi Pura, Near Meenashi Hall,
Hapur, U.P. .....Defendants
Date of institution of suit : 02.08.2014
Date of Decision : 21.01.2023
Appearance :
Plaintiff represented by Counsel Mr. Ranjan Kumar.
Defendants No.1,3&4 represented by Counsel Mr. M.L.Sharma.
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.1 of 28
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by RAVINDER
BEDI
RAVINDER
Date:
BEDI 2023.01.22
15:24:35
+0530
JUDGMENT
1. Plaintiff instituted the present suit on 02.08.2014 for a Decree of Partition, Permanent Injunction and cancellation of documents against Defendants.
2(a). Plaintiff in his plaint avers that Defendant No.1 is his mother, Defendants No.2 and 3 being brothers and Defendant No.4 is the sister of Plaintiff. Sh. Raj Singh, father of Plaintiff and Defendants no.2 and 4 had expired intestate on 28.11.2005. Late Sh. Raj Singh was in service and generated funds from his own savings besides having ancestral funds from his parents. Plaintiff's mother - Defendant No.1 is a house wife having no source of income.
(b). Plaintiff's father late Sh. Raj Singh had purchased a property No.5/13, Jagjeevan Nagar, Shahdara, Delhi, admeasuring 60 Sq. Yards (hereinafter referred to as "property X") constructed upto first floor in his own name as also specified in Annexure-A. He purchased another property bearing No.1/3835, Bhagwanpur Khera, Ram Nagar, Shahdara, Delhi (hereinafter referred to as "property Y") consisting of four shops admeasuring 67 Sq. Yards in the name of Plaintiff's mother from his own funds. Besides these properties, Plaintiff's father had a residential property No.42, Patauli, District Baghpat, U.P and agricultural land in his name and purchased from his own resources.
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by RAVINDER
RAVINDER BEDI
BEDI Date:
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(c). Plaint avers that out of four shops in 'Y', one was let out by
Sh. Raj Singh during his lifetime @ Rs.12000/- per month and after his demise, now Defendants No.1 and 3 are collecting entire rent despite Plaintiff's repeated requests and demands to share the rent equally, they have failed to hand over the same to Plaintiff. Defendants No.1 and 3 so far have collected an approx sum of Rs.10,08,000/- as rental income from the said shop and out of which, Plaintiff is entitled to get his 1/5th share which comes to around Rs.2,02,000/-.
(d). Plaintiff states that initially he was residing into the joint family house but due to scarcity of space, he shifted to the rented house by putting lock on his room. However he is regularly visiting his portion/share and his belongings are kept in his portion/share and in the shops. Plaintiff asked Defendants No.1 to 3 many times to partition the properties left behind by their father but Defendants have started threatening Plaintiff to dispose them off and have started disturbing Plaintiff's possession over property, to grab his share illegally. Plaint avers that after demise of late Sh. Raj Singh, the properties have devolved upon all legal heirs with Plaintiff having 1/5th share in the same but Defendants are avoiding to partition these properties on one pretext or the other and are also creating problems besides pressurizing Plaintiff to vacate the suit property illegally. Defendants No.1 and 3 also called some property dealers with intention to dispose off the property. It is stated that all original documents are in possession of Defendants No.1 and 3 and despite requests, they have not provided even the photocopies C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.3 of 28 Digitally signed by RAVINDER BEDI RAVINDER Date: BEDI 2023.01.22 15:24:56 +0530 of same. Having no other option, Plaintiff served a Legal Notice dated 21.12.2012 upon Defendants, which was responded to by Reply Notice of Defendants No.1,3&4 through their Counsel.
3(a). Defendants No.1,3&4 entered their appearance and filed their joint written statement, wherein they stated that Plaintiff did not approach the Court with clean hands. It was stated that "property X" was owned and possessed by Defendant No.1 and she was absolute owner of the same by way of adverse possession as she had occupied the land, which was lying vacant soon after her marriage and since then was in possession of the same. She had every right to deal with the property and that none of the parties had any right, title or interest in the same. It was stated that antoher "property Y" was also owned by Defendant No.1, which she purchased the same on 16.06.1981 from Sh. Damodar by way of sale documents. Defendant No.1 had purchased "property Y"
measuring 67 Sq. Yards and later on sold 40 Sq. Yards out of the same long time back and then sold remaining 27 Sq. Yards on 14.07.1998 to Smt. Anju Bala, who later on had sold the same on 15.10.2012 to Defendant No.3 by way of registered documents dated 15.10.2012. Now, it was Defendant No.3, who was in absolute owner and possession of "property Y".
(b). The agricultural land at Village Pautuli was already given to Defendant No.3 by the Orders of Ld. District Magistrate, Baghpat dated C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.4 of 28 Digitally signed by RAVINDER BEDI RAVINDER Date: BEDI 2023.01.22 15:25:00 +0530 24.03.2005 and as such the same belonged to him. The suit of Plaintiff was without any cause of action since none of the properties sought to be partitioned was an ancestral or HUF property. The suit of Plaintiff was not maintainable in the absence of any documents having placed on record in respect of the alleged properties; that the Court had no pecuniary jurisdiction to try the suit since as per Circle Rate, the value of the properties was more than Rs.60 lakhs; that the suit was barred by limitation as it was an admitted fact that Sh. Raj Singh had expired on 28.11.2005 and limitation to file suit for partition was three years from the date of accrual of cause of action; that Plaintiff had not properly valued the suit for the purposes of court fee and jurisdiction of this court.
(c). It was contended that there was no property either ancestral or self acquired by own funds of late Sh. Raj Singh. It was denied that late Sh. Raj Singh had acquired properties from his own savings. Defendant No.1 had faced struggle in her life by doing menial jobs to take care of her children since income of her husband was not sufficient to run kitchen. Defendant No.1 from her own savings had purchased "property Y" but keeping in view the welfare of her children, she sold 40 Sq. Yards out of 67 Sq. Yards of the same. Later she had sold the remaining 27 Sq. Yards of land to discharge the liabilities including marriage expenses of her children. It was denied that late Sh. Raj Singh had purchased either the "property Y" or "property Y" consisting of four shops. The "property X" was an occupied land, which Defendant No.1 was having an uninterrupted possession over the same, after her marriage C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.5 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:25:05 +0530 with Sh. Raj Singh. She became its owner by adverse possession. The "property Y" was the self acquired property of Defendant No.1 purchased by her from her own meagre savings including by selling her jewellery articles.
(d). It was denied that there was any residential property No.42, Village Pautuli, District Baghpat or some agricultural land owned by late Sh. Raj Singh. The agricultural land was owned by Defendant No.3 being patta holder of same vide order dated 24.03.2005 passed by District Magistrate. Baghpat, U.P. It was denied that out of four shops at "property Y", one was let out by late Sh. Raj Singh during his lifetime @ Rs.12000/- per month. Plaintiff was not at all aware about the factual position or the actual admeasurements of the property. He did not give the names of any alleged tenant or rate of rent or the time period of accrual of such alleged tenancies. The "property Y" had three shops and all were in possession of Defendant No.3 as exclusive owner and there was no tenant in these shops. Plaintiff even otherwise had no right, title or interest in the said property. The plea of letting out of alleged shops by late Sh. Raj Singh or collection of rent of Rs.12000/- was all creation of mind of Plaintiff. Similar was to the allegation of collection of rent approx sum of Rs.10,08,000/- as rental income since death of late Sh. Raj Singh or to the entitlement of 1/5th share of Plaintiff.
(e). In corresponding reply to para 7 of plaint, it was denied that due to scarcity of space in house, Plaintiff had shifted to rented house but C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.6 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:25:09 +0530 had put lock on his room. In fact, Plaintiff did not specify which property was joint family house and in which property or portion he was residing. Moreover, he did not state which room was locked by him and currently who was in possession of the same. No site plan to that effect was filed to show which room of which particular property was in his possession. No site plan was also filed to show the possession over shop allegedly in his possession.
(f). It was contended that soon after his marriage, Plaintiff had got separated after taking certain amount from Defendant No.1 - his mother in lieu of moving out of house of Defendant No.1. As such, the allegations of putting a lock outside one room or shop are denied, as Plaintiff never remained in possession of any part of property. It was denied that Plaintiff had asked Defendants No.1 to 3 to partition the properties left behind by late Sh. Raj Singh. In fact, neither the Plaintiff was / is in possession of any portion in the properties of Defendants No.1 to 3 nor had any right, title or interest to claim the same; hence question of extending threats to Plaintiff did not arise. There was no occasion to visit Defendants No.1 to 3, what to say for partition and no date, month or year has been specified in the plaint of such alleged visits or extension of such threats at the hands of Defendants. Neither late Sh. Raj Singh had any right, title or interest in the properties of Defendant No.1 nor any such right as such devolved upon his legal heirs since suit properties were not the ancestral properties.
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4. It is observable that Plaintiff did not file rejoinder to the written statement of any of the Defendants No.1, 3 and 4. By order dated 07.10.2015, following issues were settled by Ld. Predecessor for adjudication as under :
1. Whether plaintiff has not valued the suit properly for the purpose of jurisdiction ? OPD-1&3
2. Whether plaintiff has paid insufficient court fees ?
OPD-1&3
3. Whether suit of plaintiff is barred by limitation ? OPD-1&3.
4. Whether plaintiff is entitled for permanent injunction as he prayed for ? OPP
5. Whether plaintiff is entitled for partition in respect of property No.H.No.5/13, Jagjeevan Nagar, Shahdara, Delhi-93 & Property No.1/3835, Bhagwanpur Khera, Ram Nagar, Shahdara, Delhi- 32? OPP.
6. Whether Defendant No.1&3 are collecting rent for shop belonging to with Sh. Raj Singh @ Rs.12,000/- p.m. ? OPP
7. If aforesaid issue decided in favour of plaintiff whether plaintiff is entitled for recovery of Rs.2,02,000/- being his share in the rent ? OPP.
8. Relief.
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by RAVINDER
RAVINDER BEDI
BEDI Date:
2023.01.22
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5. The matter was listed for evidence of the plaintiff. Despite opportunity, Plaintiff did not file list of witnesses on record. To prove his case, plaintiff examined himself as PW1 vide his affidavit of evidence Ex.PW1/A and reiterated the version of plaint and relied upon the documents i.e. death certificate of Sh. Raj Singh as Ex.PW1/A(OSR), computer generated electricity bill of suit property as Ex.PW1/B, voter ID of plaintiff as Ex.PW1/H(OSR), Legal Notice dated 21.12.2012 as Ex.PW1/J, copy of reply to notice as Ex.PW1/L, copy of ration card Mark-A. Defendant No.3 examined himself as DW-1 vide his affidavit of evidence Ex.DW1/A and relied upon documents i.e. copy of Legal Notice dated 21.12.2012 as Ex.DW1/1, copy of his reply dated 02.12.2012 as Ex.DW1/2, GPA executed by Defendant No.1 in favour of Smt. Anju Bala along with Agreement to Sell, Deed of Will, Receipt of Payment as Ex.DW1/3(colly)(OSR), Gift Deed, Possession Letter and Will as Ex.DW1/4(colly)(OSR), photographs showing condition of hosue as Ex.DW1/5(colly), copy of FIR No.418/2017 dated 08.12.2017 as Ex.DW1/6, SPA as Ex.DW1/8. He had been cross-examined by ld. counsel for plaintiff.
DW-2 Mr. Mukti Shankar, Reader to Sub-Registrar, DC Office Complex, Nand Nagri, Delhi has proved registration of Family General Power of Attorney dated 15.10.2012 executed by Smt. Anju Bala in favour of Sh. Anil Kumar in his office. It is pertinent to observe that after the matter was listed for final arguments, the main counsel for Plaintiff did not put forward his oral submissions as is observable after C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.9 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:25:32 +0530 the order sheets dated 19.09.2022. Despite opportunity given to Plaintiff to address oral submissions, no such oral submissions were put forth. Written arguments however were filed on behalf of Plaintiff and therefore this Court has perused the written submissions so filed on record on behalf of Plaintiff.
6. I have heard final arguments addressed by Ld. Counsel for Defendants and perused the entire record meticulously along with written arguments filed by either side coupled with authorities and judgments of Hon'ble Superior Courts in support of respective submissions. My issue-
wise findings are herein below :
5. Whether plaintiff is entitled for partition in respect of property No.H.No.5/13, Jagjeevan Nagar, Shahdara, Delhi-93 & Property No.1/3835, Bhagwanpur Khera, Ram Nagar, Shahdara, Delhi-32 ? OPP.
7. Let us take up this issue first, the onus of proving which was upon Plaintiff. Ld. Counsel for Plaintiff argued that Defendants were fully aware about the despriction of suit properties and had their documents but were not disclosing the details of the same. He argued that the documents relied upon by Defendant were not worthy of consideration since the same were only in the form of GPA, Agreement to Sell, Affidavit, Receipt and Will. In view of judgment of Hon'ble C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.10 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:25:36 +0530 Apex Court in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana & Anr (decided on 11 October 2011), they could not be accepted in evidence. It was argued that since properties devolved as per Section 8 of Hindu Succession Act, Plaintiff was entitled for such ancestral properties.
8. On the other hand, Ld. Counsel for Defendants argued that Plaintiff's suit deserved dismissal as Plaintiff claiming partition had not filed a single document in support of the fact that suit properties were ancestral properties, having purchased by his father. Ld. Counsel drew attention of Court to the extensive crossexamination of Plaintiff, wherein he admitted that he was not in possession of any of the properties and that these were purchased by his father in the name of his mother. The said plea taken by Plaintiff was hit by the provisions of Benami Transaction Act, 1988. Ld. Counsel further argued that admittedly suit properties were in the name of Defendant No.1, who as a female hindu had full ownership rights over the same in view of Section 14 of The Hindu Succession Act. In support of the same, reliance was placed upon the judgments of Badri Pershad v. Stm. Kanso Devi, AIE 1970, SE 1963; Punithavalli Ammal v. Minor Ramalingam and another, AIR 1970 SC 1730; and Gangamma v. G.Nagarathnamma, 2009 (15) SCC 756.
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.11 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:25:44 +0530 It would be apposite to look into the Prayer Clause of the plaint, which reads as follows :
"...It is, therefore prayed that a decree for permanent injunction may kindly be passed in favour of the plaintiff and against the defendants, restraining the defendants, their legal heirs, representatives, attorneys etc. from dispossessing the plaintiff from the suit property no.5/13, Gali No.5, Jag Jeevan Nagar, Loni Road, Shahdara, Delhi-110093 and 1/3835, Bhagwan Pur Khera, Delhi-110032 as shown in red colour in the attached site plan, and from selling, transferring and creating third party interest in the suit property as shown in red and blue colour in the attached site plan, forcibly and illegally.
It is further prayed that a decree for partition may be passed in favour of the plaintiff and against the defendants, dividing/partitioning the suit property No.5/13, Gali No.5, Jag Jeevan Nagar, Loni Road, Shahdara, Delhi-110093 and 1/3835, Bhagwan Pur Khera, Delhi-110032, by giving 1/5th share to the plaintiff, as shwon in red and blue colour in the attached site plan, in the interes of justice.
It is further prayed further restraining the defendants from interfering into the peaceful possession or ownership of the plaintiff over the property in dispute mentioned in para no.3 of the plaint for all times to come, may kindly be passed in favour of the plaintiff and against the defendant.
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RAVINDER BEDI
BEDI Date:
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It is further prayed that a decree for recovery of 15th share in rent received by the defendant on undivided suit property.
It is further pryaed that direction be given to the concerned sub registrar to cancel the Registered/Executed Papers/Document if any of above said property which was Disposed off/Transferred/Created Third Party Interest/Misappropriated by the Defendant No.1 &
3 illegally..."
9. A bare perusal of averments of plaint along with reliefs claimed therein suggest that Plaintiff's case is that "property X" and "property Y" are the ancestral properties, having purchased by Plaintiff's father from his own funds. There is no prayer for Partition and injunction in respect of other properties except "property X" and "property Y" as is clear from the prayer clause. Plaintiff in support of his case has proved his ID Ex.PW1/H, death certificate of his father Ex.PW1/A, electricity bill Ex.PW1/B, Legal Notice dated 21.12.2012 Ex.PW1/J and its reply as Ex.PW1/L.
10. The question to be considered is, whether Plaintiff has been able to establish the nature of properties, whether these were ancestral or self acquired properties of Late Sh. Raj Singh. Adverting to the evidence adduced by Plaintiff by way of affidavit, which is verbatim of averments of plaint, wherein PW1 deposes that initially he started residing into joint family house but due to scarcity of space, he had to shift to the rented C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.13 of 28 Digitally signed by RAVINDER BEDI RAVINDER Date: BEDI 2023.01.22 15:25:59 +0530 house by puttiing his lock on his room. However, he was regularly visiting his portion/share and had his articles too. PW1 however failed to adduce any evidence or to produce any document to show firstly that the properties were the ancestral properties. Further, Plaintiff did not specify as to in which property he was residing earlier, from where he had to shift to tenanted premises. I observe that the Plaint is not specific and contains vague averments and in the absence of specificity and lack of any evidence adduced with regard to the description of properties, the mode and manner of their acquisition and sufficient nucleus to acquire such properties, Plaintiff failed to discharge his onus that the properties were ancestral properties and therefore his entitlement for decree of Partition and separate share as claimed.
11. As to the onus to prove in this regard, decision of Hon'ble Apex Court in Appalaswami v. Suryanarayanamurti & Ors. [AIR 1947 PC 189], is noticeable wherein partition suit was filed by minor sons against their father from first marriage, Father claimed that properties were his self acquired properties. The Privy Council held that mere proof of the existence of a joint family did not lead to the presumption that property held by any member of the family was joint, and the burden rested upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property, the burden shifted to the party alleging C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.14 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:03 +0530 selfacquisition to establish affirmatively that the property was acquired without the aid of the joint family property.
12. In Achuthan Nair v. Chinnammu Amma & Ors. [AIR 1966 SC 411], the claim of the defendants in the written statement was that the property in question were purchased from the private funds of defendant No.1 and her son defendant No.4. In this decision too, it was reiterated that when it is proved or admitted that a family possessed sufficient nucleus, the law raised a presumption that it was a joint family property and the onus then shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus.
13. Section 101 of Indian Evidence Act Clealy lays down that the burden of proving of a fact lies on a person who assert the fact. Until such burden is discharged, the other party is not required to call upon to prove his case. The one who asserts has to prove that the property is an ancestral property. If, however, the person so asserting proves so, the onus would shift on the person who claims it to be selfacquired property. The property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherit it, acquire an C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.15 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date: 2023.01.22 15:26:07 +0530 interest and the rights attached to such property at the moment of their birth. In Yudhishter v. Ashok Kumar, Hon'ble Apex Court held that :
"...11. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986] 161 ITR 370 (SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather. From any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him.
This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity.
7.5. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post - 1956, if a person inherits a self acquired property from his paternal ancestors, the said property becomes his self acquired property, and does not remain coparcenary property..."
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14. Therefore, it was for Plaintiff to prove nature of properties being the ancestral properties and his entitlement of share on account of the same. Plaintiff in his crossexamination admitted that he was not residing in any of the properties or the "property X" even much prior to the institution of suit. PW1 admitted that he did not place any documentary record to show that his father late Sh. Raj Singh was owner of "property X". PW1 though stated that his father was an employee in DTC but could not tell his salary. PW1 failed to depose as to when "property X" was purchased and then stated that same was purchased prior to his birth. He deposed that his mother was alive but he feigned his ignorance as to when the "property X" was purchased by his father or what was the consideration amount. PW1 deposed that regarding purchased of "property X", he could not tell from where his father had arranged funds for same. PW1 feigned his ignorance as to the meaning of ancestral funds and further deposed that his father had no ancestral property anywhere in India.
15. PW1 deposed that he did not know the actual admeasurements of "property X or Y". He admitted that Defendant No.3 was in actual physical possession of "property Y". It would be C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.17 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:20 +0530 appropriate to reproduce relevant portion of cross-examination of PW1 which is as below;
"...Q. You have mentioned the measurement of the suit property as 75 sq. Yards in legal notice dated 21.12.2012 and in your affidavit, you have mentioned the measurement as 60 sq. Yards which one is false?
Ans. I have got mentioned both measurements only on the basis of guess/approximately.
I have filed the site plan of the suit property. I got prepared the site plan in the court but I can not tell the name of architect, date, month and year when it was prepared. It is wrong to suggest that since I am not aware about the exact/actual measurement of the property and only because of the reason, I have not filed any site plan. It is correct that I am not aware about the actual measurement of the suit property. It is wrong to suggest that the suit property is only an occupied land by my mother and only because of the reason, there is no document either in the name of my father or my mother. It is correct that I am also not aware about the actual measurement of property no.1/3835, Bhagwan Pur Khera and under guess work, I have stated in my legal notice the measurement of the said property as 45 sq. Yards and in my affidavit as 67 sq. Yards.
It is correct that this property is owned and possessed by mother. My mother has not purchased the suit property on 16.06.1981. This property has been purchased prior to 16.06.1981 C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.18 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:28 +0530 but I can not tell the date, month and year. It is wrong to suggest that since I am not concerned with the property in question as such I am deposing falsely to that effect. (Vol. The property has been purchased by my father in the name of my mother). I have not seen any documents pertaining to investment of money by my father in the said property. It is wrong to suggest that the suit property is self acquired property of my mother.
I know that my mother had sold certain portions in the property in question but exactly I can not tell. I can not tell whether my mother had sold 40 sq. Yards out of 67 sq. Yards way back long. My mother had not sold 27 sq. Yards to Smt. Anju Bala on 14.07.1998. I am not aware whether Smt. Anju Bala had sold 27 sq. Yards of land on 15.10.2012 to defendant no.3 by way of registered documents. It is wrong to suggest that the defendant no.3 is the owner of the said 27 sq. Yards of land. It is correct that the defendant no.3 is in the possession of 27 sq. Yards of the property in question.
I am not aware about the measurement of agricultural land in Village Patoli, Bhagpat, U.P. However, I am aware that there was an agricultural land in the name of my grandfather. I have not placed any documentary proof in thsi regard in the court. It is wrong to suggest that certain agricultural land has been given by way of patta to defendant no.3 by the order of District Magistrate, Bhagpat on 24.03.2005. (Vol. The patta was in the name of my grandfather) I have not placed any documentary proof in court that there was a patta in the name of my grandfather C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.19 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:35 +0530 with regard to the agricultural land of village Patoli, Bhagpat. It is wrong to suggest that I am deposing falsely to that effedt and only because of this reason, I have not placed any documentary proof pertaining to having patta in the name of my grandfather. It is correct that I have not filed any site plan either with respect to property no.1/38/35 or the agricultural land situatued in Village Patoli, Bhagpat. My father had inducted a tenant namely Sabir. Rest of the shops were occupied by me and my other family members. I have not stated the name of said tenant either in my notice dated 21.12.2012, my affidavit in evidence or in my plaint. Earlier the said tenant was occupying one shop but now a day he is not a tenant in the said shop. I have no documentary proof that one Sabir was tenant or that the rate of rent was Rs.12,000/-. It is wrong to suggest that there was no such tenant in the shop that is why I have no documentary proof with regard to rate of rent as well as his occupancy of ..."
16. This clearly demonstrates that Plaintiff utterly failed to establish that suit properties were ancestral properties. The onus remained upon Plaintiff and therefore there was no question of any presumption about the properties being ancestral properties, particularly when the defence of Defendants was that these were self acquired properties. Defendants examined Sh. Anil Kumar Defendant No.3 as DW1 who proved the sale documents executed by Defendant No.1 in favour of Smt. Anju Bala Ex.DW1/3 and Ex.DW1/4 in respect of "property Y". DW1 deposed that mother of parties i.e. Defendant No.1 C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.20 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:39 +0530 sold 60 Sq. Yards out of "property Y" long back in the year 1981 and later on had sold remaining 27 Sq. Yards of the same on 14.07.1998 to Smt. Anju Bala. Smt. Anju Bala had further sold the same vide documents Ex.DW1/3 and Ex.DW1/4 to Defendant No.3 and as such, Defendant No.3 was the exclusive owner of "property Y". DW1 reasserted and reaffirmed his stand even in crossexamination. Plaintiff failed to provide even the description of properties or the manner of their acquisition. He failed to prove as to admeasurements of properties or the source of acquisition by way of any documentary record. Plaintiff failed to support his assertions with any iota of evidence to prove that the suit properties were the ancestral properties. The crossexamination of DW1 shows that not a single question was put as to the validity of sale documents in favour of Defendant No.3 or these documents having executed in favour of Defendant No.3 or his wife on account of any force or fraud etc. Even otherwise looking into the documents, as per Section 91 and 92 of The Evidence Act 1872, once there are written documents of transactions, terms of such document cannot be contradicted by any oral evidence, unless the execution of documents is alleged on account of fraud, force or coercion to nullify them as a whole. The plea of Plaintiff that documents of Defendants are hit by Suraj Lamp (supra) is of no assistance to his case since Hon'ble Apex Court in the said judgment has observed that unless there are proper registered sale documents, title of an immovable property would not pass. However, Hon'ble Apex Court C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.21 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:44 +0530 has reiterated that rights which are created pursuant to Section 53A of The Transfer of Property Act 1882 dealing with the doctrine of part performance, an irrevocable right of a person holding such Power of Attorney given for consideration coupled with interest as per Section 202 of The Contract Act 1872 and devolution of interest pursuant to arises. Therefore the transfers in hand though are not through duly registered sale deed, however certain rights exist in favour of Defendants in the properties pursuant to Provisions of Section 53A of The T.P.Act, Section 202 of Contract Act as possession of the property has been transferred pursuant to documents.
17. Further, suit was also not maintainable inasmuch as, Plaintiff admittedly was not in physical possession of suit properties. Plaintiff himself admitted that his mother had asked him to leave the property. Plaintiff even failed to tell the date, month or the year when he had vacated the properties. Plaintiff failed to prove in which of properties, he was residing earlier or from which property he was evicted. Plaintiff failed to show as to if he was even in physical possession or in constructive possession as clearly in view of the ouster pleaded by him as also from the Reply to the Legal Notice sent by Defendants. It was thus incumbent upon Plaintiff to amend his plaint to seek relief of Delcaration along with possession. Admittedly, no such relief of Declaration seeking the documents to be declared as null and void was sought and the suit as C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.22 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:48 +0530 framed in its present form was not maintainable. Therefore, it is held that Plaintiff utterly failed to establish by an iota of evidence that the properties were the ancestral properties left by his father and he was entitled for his share by way of partiton in the same. Thus, issue no.5 stands answered against the Plaintiff and in favour of Defendants.
1. Whether plaintiff has not valued the suit properly for the purpose of jurisdiction ? OPD-
1&3
2. Whether plaintiff has paid insufficient court fees ? OPD-1&3
18. The onus of proving these issue was upon Defendants. Ld. Counsel for Defendants argued that Plaintiff had claimed partition of two properties i.e. X and Y which as per case of Plaintiff were admeasuring 60 Sq. Yards and 67 Sq. Yards respectively. Ld. Counsel argued that as per Circle Rate at the relevant time, the market value of the properties was more than Rs.60 lakhs. Ld. Counsel further argued that Plaintiff also claimed in his plaint as to the rental income allegedly received by Defendants to the tune of Rs.10,08,000/-. Ld. Counsel referred to the relief of Cancellation of documents executed by Defendants, prayed by Plaintiff in Prayer Clause to contend that Plaintiff had to pay advalorem court fee on the market value of the property, in respect of which the cancellation was sought and the market value of this property was worth C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.23 of 28 Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
2023.01.22 15:26:52 +0530 Rs.32,16,000/- and therefore as per Section 7(iv)(c), he had to file the court fee advalorem instead of as per Article 17(iii) of the second schedule of The Court Fees Act, as he was a non-executant and not in possession of property. Case of the Plaintiff on the other hand was that the court fee was properly filed as per the reliefs claimed and Plaintiff was further prepared to pay the deficient court fee, if any.
19. Having carefully examined the plaint and the evidence led on record, Plaintiff himself has admitted that he was not in possession of any of the properties. Secondly, one of the reliefs claimed in the prayer clause is for Cancellation of the registered documents of the property prepared by defendants. Clearly, Plaintiff was not the executant of the documents and being a non-executant as well as not in possession of any of properties, had to file a suit for Declaration for getting the documents declared as null and void. In view of the settled position under law as expounded by Hon'ble Apex Court in Suhrid Singh @ Sardool Singh vs Randhir Singh & Ors (decided on 29 March, 2010), Plaintiff being a nonexecutant to documents and also not in possession of the property;
had to pay an advalorem court fee as per Section 7(iv)(c) of Act.
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.24 of 28
Digitally signed
by RAVINDER
BEDI
RAVINDER
Date:
BEDI 2023.01.22
15:26:56
+0530
20. Further, instead of seeking relief of Cancellation of documents, Plaintiff had to file a suit for Declaratory decree for getting the documents of the property declared as null and void and in such circumstances, the court fee computable would be under Section 7(iv)(c) of The Court Fee Act. Looking into the court fee filed on record, in para no.19 of plaint, Plaintiff has valued the suit for the purposes of court fee as Rs.15/ for the relief of injunction and Rs.8485/ for relief of partition, though the valuation of property is much higher as per circle rates. Para no.19 of the plaint further mentions that the fixed court fee has been paid with an undertaking to pay court fee at the time of passing the decree. The plea of deficient court fee was taken by Defendants in their written statement and the issues were framed based upon such preliminary objection. Till date Plaintiff did not make good the valuation as per various reliefs claimed. As to the prayer for cancellation of registered documents, requisite court fee advalorem was not been filed nor the requisite court fee on his alleged share in rental income out of Rs.10,08,000/ was affixed by Plaintiff. Therefore, this court observes that plaintiff has not valued the suit properties for the purposes of valuation, including valuation on the reliefs of Cancellation of documents and rendition of accounts/rental incomes. The issues are answered against Plaintiff and in favour of Defendants.
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.25 of 28
Digitally signed
by RAVINDER
RAVINDER BEDI
BEDI Date:
2023.01.22
15:27:00 +0530
6. Whether Defendant No.1&3 are collecting rent for shop belonging to with Sh. Raj Singh @ Rs.12,000/- p.m. ? OPP
7. If aforesaid issue decided in favour of plaintiff whether plaintiff is entitled for recovery of Rs.2,02,000/- being his share in the rent ? OPP.
21. The onus of proving these issues was upon Plaintiff. Plaintiff has failed to establish that properties were the ancestral properties. Nothing has been brought on record to prove that the suit "property Y"
had some shops which were given to tenants by Defendants from which they were getting rental incomes and Plaintiff on account of such was entitled for recovery being his share in such rental incomes. There is not even a whisper of evidence in support of these issues brought by Plaintiff and in the absence of which, both issues remained unproved and are decided against Plaintiff and in favour of Defendants.
3. Whether suit of plaintiff is barred by limitation? OPD-1&3.
22. The onus of proving this issue was on Defendants No.1&3. Ld. Counsel for Defendants argued that from the documents Ex.DW1/3 i.e. the GPA, Agreement to Sell, Receipt and Affidavit, all dated 14.07.1998 by virtue of which Defendant No.1 sold the "property Y" to C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.26 of 28 Digitally signed RAVINDER by RAVINDER BEDI BEDI Date: 2023.01.22 15:27:04 +0530 Smt. Anju Bala, wife of Defendant No.3. Ld. Counsel further argued that by the documents Ex.DW1/4 i.e. Gift Deed dated 15.10.2012, Smt. Anju Bala gifted the "property Y" to Defendant No.3. Ld. Counsel argued that Plaintiff did not seek relief of Declaration that the documents executed by his mother and father in favour of Defendant No.3 were to be declared null and void. Ld. Counsel argued that Plaintiff did not claim possession and the suit was not maintainable as it was filed much beyond the period of twelve years from the date of accrual of cause of action.
23. Plaintiff admittedly was not in possession of any of suit properties. He even failed to show when he was vacated and from which property. No relief of possession was sought by Plaintiff and as such suit itself was not maintainable, in view of the fact that the same was filed on 02.08.2014 i.e. beyond limitation of twelve years and was hopelessly barred by limitation inasmuch as the ouster was clear from the year 1998, the period of twelve years under Section 65 of Schedule-1 of Limitation Act, which expired on 2010 and by virtue of Section 27 of The Limitation Act 1963, rights of Plaintiff even assuming they existed in the suit properties would stand extinguished. Hence, the issue stands answered in favour of Defendants and against Plaintiff.
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.27 of 28
Digitally signed
RAVINDER by RAVINDER
BEDI
BEDI Date: 2023.01.22
15:27:08 +0530
RELIEF:
In view of the findings of this Court on issues no.5,6&7, it is held that Plaintiff has failed to establish his claims for his entitlement for Partition and the Consequential Reliefs. The suit of Plaintiff fails and deserves dismissal.
Resultantly, the suit of Plaintiff stands dismissed with costs.
Decree sheet of dismissal as such be prepared and file be consigned to record room. Digitally signed by RAVINDER RAVINDER BEDI BEDI Date:
Announced in the open Court 2023.01.22
15:27:14 +0530
on 21.01.2023
(RAVINDER BEDI)
Additional District Judge-02
SHD/KKD/Delhi/21.01.2023
C.S. No.391/2016, Sushil Kumar v. Champa Devi & Ors. Page No.28 of 28