Delhi District Court
Titu vs Narender Sharma on 18 October, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 476650/2015
CNR No. DLNE01-002567-2015
1. Titu
2. Dinesh
Both sons of Late Chander Bhan
Both residents of C-1/110,
Nehru Vihar, Karawal Nagar,
Delhi. .....Plaintiffs
Versus
1. Narender Sharma
S/o Late Chander Bhan
R/o C7/12, Nehru Vihar, Delhi.
2. Parkash Devi
W/o Sh. Surender Singh
D/o Late Chander Bhan
R/o H. No. 247, Block-C, Gali No. 5A,
Parvatiya Aachal, Near Kushhal Chowk,
Sant Nagar, Delhi. ..... Defendants
Date of Institution : 17.12.2015
Date of Reserving Judgment : 18.10.2023
Date of Judgment : 18.10.2023
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 1 of 8 seeking the declaration, partition, possession, permanent injunction and mesne profits.
2. Brief facts, as stated in the plaint are that the plaintiffs are peace loving, law abiding and are the owners of 1/4th each share of property bearing number C-1/110, Khasra No. 328/1, Nehru Vihar, Karawal Nagar, Delhi (hereinafter referred to as suit property). It is further stated that the plaintiffs are the sons of Late Chander Bhan and Late Natiya Devi. Plaintiffs have one more real brother and a real sister, who are the defendants in this suit. It is further stated that parents of plaintiffs as well as defendants had purchased the suit property from their own funds. It is further stated that the parents of plaintiffs and the defendants were the absolute owner/possessor of the suit property and they had expired intestate. It is further stated that the plaintiffs have requested the defendants on various occasions regarding the partition of the suit property but defendant number 1 did not pay any heed to the request of plaintiffs. It is further stated that the defendant number 1 is not interested in the partition of the suit property and even wanted to disturb the peaceful possession of plaintiffs. Plaintiffs had several times asked the defendant number 1 to demarcate their share in the suit property, but, defendant number 1 kept on creating hindrance in making the partition/demarcation. It is further stated that defendant number 1 is even trying to create third party interest in the suit property without the permission of the plaintiffs as he is entertaining various people/interested buyers.
It is further stated that, on 18.11.2015, plaintiffs had once again requested the defendant number 1 for the partition, but, defendant number 1 started quarreling with the plaintiffs. Defendant number 2 had earlier filed a Civil Suit bearing number 12/M.42/2014 before the Court of Sh. A.K. Sarpal, Ld. ADJ, Karkardooma Court for the purpose of partition, CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 2 of 8 possession, declaration and injunction of the suit property, but, later on, it was withdrawn without any resolution. It is therefore requested that a decree be passed in favour of plaintiffs declaring the plaintiffs to be owner of suit property, partitioning the suit property alongwith decree of permanent injunction.
3. Defendant number 1 had filed his written statement in which apart from denying all the allegations/contentions made by the plaintiffs in their plaint, it is stated that the the suit of plaintiffs is based on false and concocted facts and the plaintiffs have absolutely no cause of action for filing the present suit. It is further stated that the plaintiffs had not supplied the copy of site plan and therefore, the suit of plaintiffs is liable to be dismissed. It is further stated that the plaintiffs in connivance with defendant number 2 are misleading and misguiding this Court by suppressing the material fact that the prior suit filed by the defendant number 2 against defendant number 1 and this suit, both were filed by the same counsel. It is further stated that the suit property was purchased by defendant number 1 in the name of his mother from his own funds and savings. Therefore, defendant number 1 is only lawful owner of the suit property. It is further stated that the plaintiffs and defendant number 2 in connivance with each other wanted to take the undue advantage and made the pressure upon the defendant number 1. Plaintiffs as such have no right, title or interest in the suit property and therefore, they are not entitled for any partition.
Defendant number 2 in her two pages written statement supported the case of plaintiffs by stating that the present suit filed by the plaintiffs is based on true and correct facts and she has no objection against the suit. Thereafter, defendant number 2 has admitted the contentions raised by the plaintiffs in their plaint.
CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 3 of 8
4. Replication to the written statement of defendant number 1 was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement of defendant number 1.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is entitled to decree of declaration as prayed in the suit? OPP
(ii) Whether the plaintiff is entitled for decree of partition as prayed in the suit? OPP
(iii) Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
(iv) Relief.
6. Thereafter, plaintiffs have led their piece of evidence. Plaintiff number 1 Sh. Titu got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. He tendered his evidence by way of affidavit which is Ex.PW1/1 and relied upon the following documents i.e. site plan as Ex.PW1/A, sale deed as Ex.PW1/B (OSR), election ID Card of plaintiff number 1 is Ex.PW1/C (OSR) and the photocopy of electricity bills as Mark A. Plaintiff number 2 Sh. Dinesh was examined as PW2. He deposed on the same facts as are deposed by PW1. He tendered his evidence by way of affidavit which is Ex.PW2/1 and relied upon the document i.e. photocopy of driving license of plaintiff number 2 as Ex.PW2/A (OSR).
After completion of plaintiffs' evidence, defendants have led their piece of evidence. Defendant number 1 Sh. Narender Kumar Sharma had himself stepped into the witness box and deposed as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement.
CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 4 of 8 He tendered his evidence by way of affidavit which is Ex.DW1/A. DW1 was cross examined at length by Ld. Counsel for plaintiff. DW1 has stated that the suit property was purchased in the year 1974 in the name of his mother Smt. Nitya Devi.
Defendant number 2 Smt. Parkash Devi was examined as DW2. She has stated in examination in chief that she is one of the daughter of Late Chander Bhan and Late Natiya Devi. DW2 has further deposed that she has three brothers, two brothers are plaintiff number 1 and 2 and another brother is defendant number 1 in the present suit. DW2 has further stated that the parents of the parties of the suit had purchased a plot from their own funds, measuring 100 square yards, situated at C-1/110, Khasra No. 328/1, Nehru Vihar, Karawal Nagar, Delhi that is the suit property in which both the plaintiffs are presently residing. DW2 has further deposed that the plaintiffs have already filed the title documents of suit property alongwith site plan before the Court. DW2 has further deposed that the parents of the parties had left for their heavenly abode intestate. Parties of the suit being the owners have the equal share that is 25 square yards each in the suit property. DW2 has further deposed tated that both the plaintiffs had several times requested to carry out the partition of the suit property since 2014, but, the defendant number 1 did not pay any heed to her request as well as the plaintiffs and failed to carry out the partition of the suit property as defendant number 1 wanted to grab the suit property. Thereafter, DW2 tendered her evidence by way of affidavit which is Ex.DW2/A.
7. I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written submissions have also been filed on behalf of plaintiff number 1 in which once again contents of plaint as well as the evidence by way of affidavit deposed by the plaintiff number 1 has been reiterated. CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 5 of 8 Apart from this, it is specifically stated by the plaintiff number 1 that the plaintiffs and the defendants are by birth/natural brothers and sister of each other and all the parties of the suit have the 1/4 th share each in the suit property. It is further stated that parents of the plaintiffs' and defendants plot/suit property by their own funds in the name of Smt. Natiya Devi W/o Sh. Chander Bhan, on 27.02.1974. It is further stated that plaintiffs requested the defendants several times to carry out the partition of the abovesaid suit property, but, the defendant number 1 did not pay any heed to the request of plaintiffs and failed to participate/carry out partition of the suit property and only defendant number 1 is not ready to make the partition of the suit property. It is further stated that defendant number 2 has filed her written statement in the present suit and she has no objection and in fact supported the case of plaintiffs. It is further stated that defendant number 1 has also filed his written statement which is based on wrong and false grounds, as on one hand he has stated that he had purchased the suit property by his own funds, however, he has not proved this fact by way of any documentary evidence.
8. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the plaintiff is entitled to decree of declaration as prayed in the suit? Issue number 2, that is, whether the plaintiff is entitled for decree of partition as prayed in the suit? and Issue number 3, that is, whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? Onus of proving these issues is upon the plaintiffs. All these issues being interconnected and having the bearing upon each other are taken up firstly and together. Plaintiffs have prayed for preliminary decree of partition in respect of suit property by suggesting the mode of partition in 1/4th each shares. Plaintiffs have submitted that their CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 6 of 8 parents as well as defendants had purchased the suit property from their own funds. It is pleaded by the plaintiffs that their parents had expired intestate. The said fact was not disputed by the defendant number 1 and 2 in their written statement. Though, at the same time, it was stated by defendant 1 that the suit property was purchased by defendant number 1 in the name of his mother from his own funds and savings. However, the same fact has never been proved by the defendant number 1 either through documentary proof or by leading any cogent evidence to support his claim. Apart from making sham statement no relevant piece of evidence led in that behalf by defendant number 1 despite having ample effective opportunities. Absolutely, on both lines of defence that is purchasing of property from his own funds and declaring defendant number 2 as not their sister (when other plaintiffs brothers have mentioned defendant number 2 as their sister) is expressed without any supporting evidence. Even the defendant number 1 has failed to cross examine the plaintiffs on that aspect to cull something relevant in his favour. Admittedly, mother Late Natiya Devi is the owner of suit property and plaintiffs and defendants both are the legal heirs of deceased Late Chander Bhan and Late Natiya Devi.
It has been time and again observed by the Hon'ble Superior Courts that even a license with respect to immovable property,once continue after the demise of licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. Also, the judgment in a Civil Suit is to be written on findings on issues framed in the suit and these issues which in turn arise from pleadings of the parties. It was never the plea of the defendant that suit property is not partible or that plaintiff is not one of the legal heirs of Late Chander Bhan and Late Natiya Devi. Reliance is placed upon Shyam Behari vs. Ram Kishan, 2013 SCC online Del 4110, Surjit Singh vs. Ekta Gulati 2012 SCC online Del 4233 and Gopi Chand vs. Geeta Devi & Ors., 2020 SCC online Delhi 2420. CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 7 of 8 Thus, this Court is of the considered opinion that as per section 14 and 15 of the Hindu Succession Act, 1956, both the parties that is plaintiffs and defendants being sons and daughter of Late Chander Bhan and Late Natiya Devi are entitled for 1/4th each share, being class-I legal heirs in the suit property. Accordingly, all these issues are decided in favour of plaintiffs.
9. In view of the facts and circumstances of the case, the suit of the plaintiff is decreed in the following terms:-Plaintiffs and defendants shall be entitled to 1/4th each share (25 square yards each) in the suit property bearing number C-1/110, Khasra No. 328/1, Nehru Vihar, Karawal Nagar, Delhi. The preliminary decree of partition be passed accordingly. Defendants are directed to hand over the physical possession of 1/4th each share (25 square yards each) in the suit property to the plaintiffs. The parties shall be entitled to exclusive possession of their respective shares in terms of preliminary decree. However, the appropriate method of partition of suit property shall require further inquiry, which shall be conducted in due course.
Further, the decree of permanent injunction is also passed restraining the defendants from selling, transferring, mortgaging or creating third party interest in the suit property.
10. Preliminary decree sheet be prepared accordingly.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 18th October, 2023 CS No. 476650/2015 Titu & Anr. Vs. Narender Sharma & Anr. Page No. 8 of 8