Delhi District Court
All Resident Of: vs Averan & Ors on 16 December, 2016
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02, (NE)
KARKARDOOMA COURTS, DELHI
CS No. 476493/15
IN THE MATTER OF :
(1) Smt Dhan Devi
W/o Late Sh. Ram Kishor
(2) Sh. Pawan Kumar
S/o Late Sh. Ram Kishor
(3) Sh. Durgesh Kumar ( Minor)
S/o late Sh. Ram Kishor
Represented Through Her mother
Smt. Dhan Devi
All Resident Of:
H. No. 11/419, Gali No. 9,
Mandoli Extn., Delhi. ........Plaintiffs
V E R S U S
(1) Sh. Averan
S/o Late Sh. Gauri Lal
(2) Sh. Deshpal
S/o late Sh. Ram Kishor
Both Resident Of:
R/o 1033, Gali No. 15,
Harijan Basti,
Mandoli Extn, Delhi. ...........Defendants
CS No. 476493/15 1/11
Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
Date of Institution : 15.02.2011
Received in this Court : 15.01.2014
Date of Arguments : 09.12.2016
Date of Judgment : 16.12.2016
Decision : Suit is decreed.
Suit for partition, possession & injunction
J U D G M E N T
1. This suit for partition, possession and permanent injunction is filed by
the plaintiffs against the defendants in respect of property bearing No. 1033,
Gali No. 15, Mandoli Extn, Delhi ( hereinafter called the suit property as
shown in red colour in the site plan attached with the plaint) claiming for
1/8th share therein.
2. As contended, late Sh. Ram Kishor/ husband of plaintiff No. 1 and
defendant No. 1 jointly purchased the aforesaid property. The plaintiff No. 1
was residing on the ground floor and defendant No. 1 was residing on the first
floor. Ram kishore expired on 10.05.06 leaving behind plaintiffs and
defendant No. 2 as LRs. After the death of Ram Kishore, plaintiff No. 1 was
harassed by the defendant and defendant No. 1 tried to create third party
interest in the suit property. Plaintiffs requested the defendants on several
occasion to partition the suit property but of no avail. The plaintiffs thereafter
filed this suit against the defendants.
3. Joint WS was filed on behalf of defendants contending that this suit is
not maintainable, it is filed without any cause of action and plaintiff has
concealed the facts. As contended, plaintiff No. 1 is not legally wedded wife
CS No. 476493/15 2/11
Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
of late Sh. Ram Kishor and his wife Ram Murti resided with Ram Kishor only
concubine. The defendants further made allegations against the plaintiff No. 1
contended that plaintiff No. 2 and 3 are not biological son of late Sh. Ram
Kishor as told by him. It is further contended that only 15 Sq. yard out of 30
Sq. yards is to be partitioned. Rest of material contentions of the plaintiff in
the plaint appears to be admitted by defendants.
During the course of proceedings, the defendant No. 1 / half owner of
the aforesaid property expired on 15.11.13 and he bequeathed his share of 15
Sq. yards in the aforesaid property in favour of defendant No. 2.
4. Replication was filed by the plaintiff to the written statement of
defendants whereby the plaintiff has reiterated the contentions mentioned in
the plaint while denying the averments of the defendants in the written
statement.
5. In view of the pleading of the parties, following issues were framed
vide order dt. 03.11.2015:
(1) Whether the plaintiff is entitled for decree of partition of
1/8th share as prayed in the suit? OPP
(2) Whether the plaintiff is entitled for decree of possession as
prayed in the suit ? OPP
(3) Whether the plaintiff is entitled for decree of permanent
injunction as prayed in the suit? OPP
(4) Relief.
And the case was fixed for plaintiff's evidence.
6. Plaintiff No. 1 examined herself as PW1 by way of affidavit Ex.
CS No. 476493/15 3/11
Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
PW1/A and deposed regarding the facts as mentioned in the plaint. The
witness has deposed regarding the documents i.e. voter ID Card and Aadhar
Card Ex. PW 1/1( colly), death certificate of the husband of the plaintiff Ex.
PW 1/ 2, copy of birth certificate of plaintiff No. 3 Ex. PW 1/ 3( OSR) and a
photograph of plaintiff No. 2 and 3 with their father is d exhibited as mark A.
Plaintiff No. 2 examined himself as PW2 by way of affidavit Ex.
PW2/A and deposed regarding the facts as mentioned in the plaint. The
witness has deposed regarding the documents i.e. slip of Aadhar Card Ex. PW
2/1 and copy of death certificate of father Ex. PW 2/2. As no other witness
was examined by the plaintiff, the PE was closed and case was fixed for DE.
7. The defendant No. 2 examined himself as D1/W1 by way of affidavit
Ex. DW 1/A and supported the defence. As no other witness remained to be
examined by the defendants, 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
witnesses and materials on records, it is submitted by counsel for the plaintiffs
that from the evidence led by the plaintiffs and defendants, it has been proved
that the plaintiffs are the coowner of the suit property and prayed to pass
decree in favour of plaintiffs and against the defendants.
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 plaintiffs has failed to prove the case and discharge the
CS No. 476493/15 4/11
Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
onus. As argued, the plaintiffs has no right, title or interest in the suit property
and this suit is liable to be dismissed. It is further argued that this suit is liable
to be dismissed as plaintiffs are not in possession of any portion of suit
property, plaintiffs have no locus standi to file this suit and plaintiffs have
concealed the material facts and therefore, the suit is liable to be dismissed. It
is further submitted by ld. counsel for the defendant that this suit is false and
there is no ground for passing decree against the defendants therefore, prayed
that the suit be dismissed.
9. I have given my thoughtful consideration to the submissions made on
behalf of the parties. My finding on the abovesaid issues are as follows:
Issue No. I to III:
(1) Whether the plaintiff is entitled for decree of partition of
1/8th share as prayed in the suit? OPP
(2) Whether the plaintiff is entitled for decree of possession as
prayed in the suit ? OPP
(3) Whether the plaintiff is entitled for decree of permanent
injunction as prayed in the suit? OPP
10. The onus to prove these issues was on the plaintiff. The brief and
relevant facts for the filing of this suit along with defence of the defendant has
been mentioned at the outset. 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
CS No. 476493/15 5/11
Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
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 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 CS No. 476493/15 6/11 Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
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 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.
11. Section 101 of the Evidence Act, 1872 defines " burden of proof" and 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 able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, CS No. 476493/15 7/11 Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. In view of this legal position of the Evidence Act, it is clear that it is for the plaintiffs to prove that they are the coowner of the suit property and are entitled for the relief as prayed in the suit.
12. There is no dispute that deceased defendant No. 1 is the coowner of 50 % i.e. 15 Sq. Yards. The only dispute regarding the partition is in respect of share of deceased Ram Kishore i.e. 15 Sq. yards. The case of the plaintiff is opposed by the defendants mainly on the ground that plaintiff No. 1 is not legally wedded wife of late Sh. Ram Kishor and plaintiff No. 2 and 3 are not the biological son of Ram Kishor. The opposition of the defendants regarding the plaintiff No. 2 and 3 being not biological son of late Sh. Ram Kishor is based only on what said by deceased Ram Kishor and therefore hearsay. There is no dispute that plaintiff No. 1 is residing with late Ram Kishor and plaintiff No. 2 and 3 were born at the relevant time. 13 The parties led their evidence as per their contention in the pleadings but it is observed that the testimony of DW1/ defendant No. 2 was totally shattered during cross examination and witness has admitted the claim of plaintiff categorically. The testimony of plaintiff/ PW1 and PW2 remained un controverted/ un impeached during their cross examination and defence of the defendant appears to have no substance. The DW1/ defendant No. 2 admitted that plaintiff No. 1 is his mother and plaintiff No. 2 and 3 are his brothers and all the co owners of the property and matter will be decided by the court. In view of admission by the defendant regarding the claim of CS No. 476493/15 8/11 Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
plaintiff, nothing remains to be adjudicated. Nothing is produced by defendant to prove the defence that plaintiff No. 2 and 3 are not the biological son of late Sh. Ram kishor and testimony of DW1 in this respect is mainly in the nature of hearsay evidence therefore not acceptable. The defence of defendants appears to be shame and without any ground.
14. The PWs deposed regarding the case and their testimony remained un impeached /uncontroverted and therefore there is no reason to disbelieve the testimony of PWs. In the present case, there is no denial of the claim of the plaintiffs by the defendants. In view of the aforesaid discussions and findings, it has been proved that the plaintiffs are the coowner of the suit property. The plaintiffs are entitled for the relief of partition and possession as prayed in the suit. As held in Subhra Mukharjee Vs. Bharat Coking Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The defendants have failed to prove contrary to the case of the plaintiffs. The plaintiffs are accordingly entitled for the decree of partition, possession and permanent injunction as prayed for in the suit.
15. 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 CS No. 476493/15 9/11 Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
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.
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 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 has 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.
16. In view of the aforesaid discussions and relevant law, this Court is of the considered view that the plaintiffs are entitled for the decree of partition of 1/8th share, possession and permanent injunction as prayed in the suit. As mentioned, the plaintiffs have been found to be joint owner of the suit property and they are entitled for the partition of 1/8th share in the suit property bearing No. 1033, Gali No. 15, Mandoli Extn, Delhi ( as shown in red colour in the site plan) and possession of share as prayed for. Further, as the plaintiff is the co owner of the 1/8th share, the defendants will not have any right to transfer the property or create third party interest in the suit CS No. 476493/15 10/11 Dhan Devi & Ors. V/s Averan & Ors.
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts, Delhi.
property in any manner. The plaintiffs are therefore entitled to a decree for partition of 1/8 share, possession and permanent injunction as prayed for. Relief:
17. 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 1/8th share in the suit property bearing No. 1033, Gali No. 15, Mandoli Extn, Delhi ( as shown in red colour in the site plan attached with the plaint).
(b) Decree of possession is passed in favour of the plaintiffs and against the defendants regarding suit property bearing No. 1033, Gali No. 15, Mandoli Extn, Delhi ( as shown in red colour in the site plan attached with the plaint).
(c) The plaintiff is granted the decree for permanent injunction restraining the defendants, servants etc from creating any third party interest in the suit property bearing No. 1033, Gali No. 15, Mandoli Extn, Delhi ( as shown in red colour in the site plan attached with the plaint) except without due process of law.
18. Preliminary decree be drawn accordingly for passing final decree after payment of deficient court fees by the plaintiff as per law).
Announced in open Court on this 16th day of December, 2016 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
CS No. 476493/15 11/11Dhan Devi & Ors. V/s Averan & Ors.