Delhi District Court
Rajinder Pershad vs Ram Niwas on 30 January, 2016
IN THE COURT OF SH. APOORV SARVARIA, CIVIL JUDGE14,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Unique Case ID No. : 02401C5350152004
Suit No. : 38/15
1. Rajinder Pershad
S/o Pt. Udey Ram,
R/o G80, Vishwas Park,
Uttam Nagar, New Delhi
2. Ved Parkash
S/o Pt. Udey Ram
R/o WZ197, Sadh Nagar,
Palam Colony, New Delhi
3. Misri Devi (Since Deceased)
Name Deleted ...... PLAINTIFFS
VERSUS
1. Ram Niwas
S/o Pt. Har Lal
R/o WZ154A, Mohalla Chutial
Palam, New Delhi
2. Yad Ram (Deceased)
Through His LRs
(i) Laxmi Sharma
W/o Late Yad Ram
(ii) Vinod
(iii) Vishnu
Suit No. 38/15
Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 1 of 19
(iv) Varun
All Sons of Late Yad Ram
(v) Sunila Sharma
D/o Late Yad Ram
All R/o WZ154, Village Palam
Mohalla Chhutial,
New Delhi110045
3. Suraj Mal
S/o Sh. Tokh Ram
R/o WZ145, Mohalla Chutial
Village Palam,
New Delhi
4. Om Prakash
S/o Sh. Tokh Ram
R/o 197, Sadh Nagar,
Gali No.14, Palam Colony,
New Delhi
5. Angoori Devi
Widow of Pt. Teeka Ram
6. Satbir
7. Satish
Both sons of Sh. Teeka Ram
All R/o. H.No. 145,
Village Palam,
New Delhi ...... DEFENDANTS
Date of institution of suit : 09.07.2004
Date of reserving Judgment : 08.12.2015
Date of pronouncement : 30.01.2016
Suit No. 38/15
Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 2 of 19
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. In the present suit, the plaintiff has prayed for the following relief:
"(i) A Decree for Partition be passed in favour of the plaintiffs and against the defendants in respect of joint properties bearing khasra no. 70/2/3 measuring 1250 sq. yds. situated at within the colony of Village Palam, New Delhi as shown in red colour in the site plan, by metes and bounds and holding the plaintiffs as cosharer of 1/5th share in the said property.
(ii) A Decree of Permanent Injunction be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants and associates and any other person acting on their behalf from raising any illegal and unauthorized construction in any manner in the aforesaid property as shown in the site plan attached and also from selling, transferring or alienating, or part with possession and creating any third party interest in respect of the aforesaid property.
(iii) A Decree of Mandatory Injunction may also be passed in favour of the plaintiffs and against the defendants thereby directing the defendants to remove Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 3 of 19 and demolish the illegal and unauthorized construction as shown in the site plan of the property no. 70/2/3, measuring 1250 sq. yds. situated within the colony of Palam, New Delhi."
Plaintiff's case
2. It is stated in the plaint that the parties are related and collaterals of each other. Sh. Uday Ram, father of the plaintiffs, Sh. Tikka Ram, Sh. Ram Niwas, Sh. Yad Ram and Sh. Tokh Ram were real brothers. However, Sh. Uday Ram and Sh. Tikka Ram and Tokh Ram died in the year 1997, 1998 and 2000 respectively. Defendants no.5 to 7 are the legal heirs of late Sh. Tikka Ram. The defendants no.3 and 4 are the sons of late Sh. Tokh Ram.
3. It is further stated that the parties and their ancestors had common and joint properties and agricultural land etc. in the Village Palam, Delhi but they had been living separately for the last 38 years and had constructed and added structures to their respective portions/properties in their occupation.
4. It is further stated that the the parties and/or their ancestors have divided some properties and had occupied their respective properties individually. Even Sh. Ram Niwas has sold/transferred some built up portions adjacent to that of the plaintiffs from their Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 4 of 19 individual properties to late Sh. Udey Ram. Now the transferees are in exclusive possession and occupation thereof.
5. It is further stated that, however, a plot of land surrounded by the Abadi, comprising in khasra no. 70/2/3, measuring about 1250 sq. yds. situated within the new colony/abadi of Village Palam, New Delhi remained undivided and was being used by the parties for family functions from time to time. The parties also mutually agreed and left area of about 10 ft. wide in the middle of the properties of the parties, which shall form common gali for use of the parties and the aforesaid joint plot.
6. It is further stated that as per the settlement and agreement, except the plot in dispute as shown red in the plan, the parties have raised their own structures on their respective plots and are using the same for residential and commercial purposes.
7. It is further stated that now with malafide intentions and nefarious designs the defendants want to usurp the said plot exclusively. The defendants have raised some illegal and unauthorized structure on the said plot during the pendency of civil suit no. 17 of 2004 titled as Sh. Rajinder Pershad Vs. Sh. Ram Niwas and others pending in the court of Sh. Balwant Rai Bansal, Civil Judge, Delhi where the matter was subjudice. However, the said suit was withdrawn with permission to file afresh and the Hon'ble Court disposed of the said Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 5 of 19 suit and granted permission to file fresh suit vide its order dated 19.05.2004. The defendants Sh. Ram Niwas and Sh. Yad Ram started and threatened to raise construction in the said joint plot on 21.01.2004.
8. It is further stated that the defendants have threatened to take forcible possession and raise illegal and unauthorized construction on the said plot after the disposal of the aforesaid suit which belongs jointly to the parties without the consent and approval of the plaintiffs who have 1/5th share therein.
9. It is further stated that the defendants no.1 and 2 have again brought building material at site and threatened to raise illegal construction on the joint property of the plot and they are also threatening to take exclusive possession of the said plot and not allow the other joint owners including the plaintiffs to use the said joint plot.
10.It is further stated that the plaintiffs who are joint owners and in possession of the said plot and used the same from time to time have requested the defendants no.1 and 2 that they are respectable elders in the family and should not raise any unauthorized construction nor take possession of the said plot in dispute for their exclusive use as the said property is joint property of the parties but they refused and threatened that the suit of the plaintiffs had been dismissed and they do not care for the other defendants or the police nor for the courts.
Suit No. 38/15Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 6 of 19 The plaintiffs approached the police on 05.06.2004 but they refused to lodge the report and stated that the matter can be decided in courts only and they cannot stop the forcible possession or illegal construction.
11. It is further stated that there has been no complete, demarcated and proper partition for the entire joint properties of the parties in the village or the colony.
12.It is further stated that the defendants have no right, claim or title to usurp the said plot for exclusive use and raise any illegal or unauthorized construction thereon without partition of the property or without the permission of the plaintiffs. It is stated that the defendants have malafide intention to grab the shares of the plaintiffs in the disputed property. Hence, the present suit has been filed.
Defendants No.1, 2 and 4's Case
13.In the written statement of defendants, it is stated that the plaintiffs have not valued the suit properly for purposes of jurisdiction and for purposes of court fee. The value of the suit properties, subject matter of the suit, is more than Rs 10,00,000/.
14. It is stated that the suit of the plaintiffs is bad for non joinder of necessary parties Smt. Mewa Devi and Smt. Puppy, daughters of Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 7 of 19 late Sh. Udai Ram are also necessary party to the suit. Sri Ram, who is cosharer of khasra no. 70/2/3 is also necessary party to the suit.
15.It is further stated that the suit properties were partitioned in the year 1979. The said partition was acted upon by and between the parties and each of the parties dealt with their respective share individually.
16.It is further stated that the LRs of late Sh. Har Lal had one haveli, one gitwar in Village Palam, one built up house in Palam Colony and 1 bigha 2 biswas land i.e. the land in question in Village Palam. The land in question i.e. 1 bigha 05 biswas comprised in khasra no. 70/2/3 were commonly known as Goreki Kyari.
17. It is further stated that all the legal heirs of late Sh. Har Lal were having dispute with regard to properties left behind by Sh. Har Lal so they mutually entered into a compromise on 27.04.1979. This compromise was executed by all the legal heirs of Sh. Har Lal in presence of Pardhan of the Village. The said compromise was reduced into writing and as per the said compromise the built up house in Palam Colony was given to Uday Ram, father and predecessorininterest of the plaintiffs. The Haveli in Village Palam was given to Sh. Tokh Ram and Tika Ram. The land in question which was commonly kown as Gore Ki Kyari, it was decided to give 150 sq. yds. each to Tokh Ram, Tika Ram and Uday Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 8 of 19 Ram and the remaining land of this khasra number was given to Ram Niwas and Yad Ram. This compromise was duly accepted by the LRs of late Sh. Har Lal and each one of them signed the same in token of acceptance of the same. The said compromise was also acted upon by and between the parties i.e. the LRs of Har Lal and ever since the parties have been enjoying the properties as given to them by this compromise. The said compromise was also signed by Sh. Uday Ram, father of the plaintiffs no.1 and 2 and husband of plaintiff no. 3.
18.It is further stated that the predecessor in interest of the plaintiffs had entered into a compromise and by virtue of the said compromise 150 sq.yds. of land was to be given to him, on the spot, situated towards WesternSouthern side adjoining to the plot of Tika Ram towards northern side and plot of Ram Niwas towards southern side. Uday Ram during his lifetime took actual, physical possession of the land of plot given to him out of khasra no. 70/2/3 and now the plaintiffs are in possession of the same and have bounded the said plot with a boundary wall upto DPC level. Likewise, keeping the spirit of the compromise, which was entered into on 27.04.1979, 150 sq.yds. plot was given to Tika Ram who later sold the same to Sh. Resham, Raje and Rajender Pathak. 150 sq.yds. plot was given to Tokh Ram and presently Sh. Suraj Bhan, son of Sh. Tokh Ram is in actual, physical possession of the same. While giving the plot of 150 sq. yds. each, as was recorded in the compromise dated 27.04.1979, Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 9 of 19 the defendants also provided 10 ft.rasta out of their own lands for proper approach to the respective plots given to Uday Ram, Tika Ram and Suraj Bhan etc. In view of the submission made above, neither the plaintiffs nor their predecessor in interest had any right, title or interest of any nature in the remaining land of khasra no. 70/2/3 and have no right to bring the present suit. The present suit has been filed by the plaintiffs only with a view to blackmail the defendants and to extract money from them.
19.It is denied that the parties or their ancestors have divided only some properties as alleged. All the properties which were in power and possession of the respective parties were partitioned amongst the LRs of late Sh. Har Lal as back as on 27.04.1979 by a duly written partition. The said partition was acted upon by and between the parties and now it does not lie in the mouth of the plaintiff that only some of the parts were partitioned.
20.It is further stated that the Land of khasra no. 70/2/3 which was commonly known as Gore Ki Kyari was duly partitioned along with other properties vide writing dated 27.04.1979. The said compromise was duly acted upon by and between the parties and whatever was agreed was done by the defendants. The defendants, keeping the spirit of the agreement/compromise, delivered possession of 150 sq.yds. to the predecessor in interest of the plaintiffs who remained in actual, physical possession till he was Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 10 of 19 alive and thereafter the plaintiffs have constructed a boundary wall upto DPC level. As per the compromise, the defendants no.1 and 2 are in actual, physical possession of the same and neither the plaintiffs nor any other defendant has any right, title or interest in the remaining land.
21. It is however stated that in the suit filed before the court of Sh.
Balwant Rai Bansal, the plaintiffs had taken the plea that the area in dispute is only 450 sq. yds. but in the present suit the plaintiffs have taken absolutely contradictory stand by saying that the area in dispute is 1250 sq. yd. The plaintiffs cannot be allowed to take contradictory stands in different suits. The plaintiffs are estopped from filing the present suit by their own act, conduct and acquiescence. As submitted above, the defendants no.1 and 2 are and have been in actual, physical possession of about 680 sq. yds. The defendants no.1 and 2 have been in actual, physical possession since 27.04.1979 when the compromise was entered into between the predecessor of the plaintiffs no.1 and 2 and Sh. Tokh Ram and Tika Ram. Whatever constructions have been raised by the defendants no.1 and 2 are lawful constructions and have been raised within their legal right.
22. It is further stated that neither the other defendants nor predecessor in interest of the plaintiffs ever raised any objection to the possession of the defendants No.1 and 2. The plaintiffs have no right Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 11 of 19 or locus standi to file the present suit. If at all the plaintiffs are not satisfied with the compromise entered into on 27.04.1979 then they should file proper suit for declaration seeking to declare the said compromise as a nullity but once the compromise dated 27.04.1979 has been entered into between the predecessor in interest of the plaintiff and defendant no.1 and 2 and Sh. Tokh Ram and Tika Ram and the said partition has been acted upon by and between the parties, the plaintiffs have no legal right to challenge the same by filing suit for partition and injunction.
23.Replication was filed to the written statement.
Issues
24.On 27.08.2012, following issues were framed:
1. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
2. Whether the suit of the plaintiff is barred in view of Section 185 of the DLR Act? OPD
3. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD
4. Whether the plaintiff is entitled to a decree of partition as prayed for in prayer clause1 of the plaint? OPP
5. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause2 of the plaint? OPP Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 12 of 19
6. Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause3 of the plaint? OPP
7. Relief.
Evidence led by parties
25.In support of their case, the plaintiffs produced PW1 Sh. Rajender Prasad (plaintiff no. 1) who tendered his evidence affidavit Ex. PW1/A and relied on documents Ex. P1 and Ex. P2. Thereafter, PW1 was crossexamined after which plaintiffs closed the evidence.
26.The defendants no. 1, 2 and 4 produced DW1 Sh. Ram Niwas who tendered his evidence affidavit Ex. DW1/A and relied on documents Ex. DW1/1 and Ex. DW1/2. Thereafter, DW1 was crossexamined after which defendants closed the evidence.
27. This Court has heard Ld. Advocates for the parties and perused the record.
Findings
28.Issuewise findings of this Court are as under:
Issue no. 1: Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 13 of 19
29.Onus to prove this issue is on the defendants. However, defendants have not lead any evidence to prove that value of the suit property is more than Rs. 10 lacs as alleged in the written statement. Since the defendants have failed to discharge the onus on them to prove the issue, the issue is decided against defendants.
Issue no. 2: Whether the suit of the plaintiff is barred in view of Section 185 of the DLR Act? OPD
30.Onus to prove this issue is on the defendants. During arguments, Ld. Advocate for defendants had submitted that he is not pressing the issue as village Palam in which the suit property is situated has been urbanized. Therefore, the provisions of Delhi Land Reforms Act are not applicable to the suit property and the suit is not barred by Section 185 of DLR Act. Issue is decided against the defendants.
Issue no. 3: Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD
31. Onus to prove this issue is on the defendants. In the written statement, the defendants have taken the objection that Smt. Mewa Devi and Smt. Puppy daughters of Late Sh. Udai Ram are also necessary party to the suit and Sh. Sri Ram who is cosharer of khasra no. 70/2/3 is also the necessary party to the suit. DW1 Sh. Ram Niwas has reiterated the same facts in his evidence affidavit. The plaintiffs are seeking the partition of the suit property on the basis of their claim that they are sons of Sh. Udai Ram who had Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 14 of 19 admittedly died in the year 1997. The Hindu Succession (Amendment) Act of 2005 is prospective in nature and since the father of the plaintiffs Sh. Udai Ram had died before the commencement of Hindu Succession (Amendment) Act of 2005, the daughters of Sh. Udai Ram cannot be held cosharers of the suit property. As far as the impleadment of Sri Ram stated to be co sharer of khasra no. 70/2/3 is concerned, no evidence has been led by the defendants to show that he is a necessary party for the purpose of adjudication of the present suit. Issue is therefore decided against the defendants.
Issue no. 4: Whether the plaintiff is entitled to a decree of partition as prayed for in prayer clause1 of the plaint? OPP
32.Onus to prove this issue is on the plaintiffs. The basis of claim of plaintiffs is that the suit property i.e. property measuring 1250 sq. yards comprising in khasra no. 70/2/3 in the colony of village Palam, New Delhi has never been partitioned and the plaintiffs are cosharers of 1/5th share in the suit property. PW1 Sh. Rajender Prasad has reiterated the contents of the plaint in the affidavit. He has deposed that the parties and/or their ancestors had divided some properties and had occupied their respective properties individually. However, the suit property comprising 1250 sq. yards in khasra no. 70/2/3 in colony of Village Palam remained undivided and was being used by the parties for family functions from time to time. He also deposed that the parties mutually agreed and left area of about Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 15 of 19 10 ft. wide in the middle of the properties of the parties which shall form common gali for use of the parties and the aforesaid joint plot. PW1 relied upon the site plan Ex. P1. He also relied upon the certified copy of Khatoni Ex. P2.
33.On the other hand, DW1 Sh. Ram Niwas has deposed in his evidence affidavit that properties between the parties including the suit property i.e. 1 bigha 5 biswas land comprised in khasra no. 70/2/3 (commonly known as gore ki kyari) were already partitioned on 27.04.1979 and as per the compromise/ family arrangement the house in Palam Colony fell to the share of Udai Ram, father and predecessor in interest of the plaintiffs. Haveli in village Palam fell to Tokh Ram and Tika Ram. He further deposed that out of the land in question which is commonly known as Gore Ki Kyari, 150 sq. yards each fell into the share of Tokh Ram, Tika Ram and Udai Ram and the remaining land of this khasra no. i.e. 800 sq. yards fell to the share of Ram Niwas and Sh. Yad Ram. He deposed that the said compromise was in writing and signed by the Pradhan of the village and the same was duly acted upon between the parties. He has relied upon the family settlement dated 27.04.1979 Ex. DW1/1 regarding the abovesaid compromise/ settlement.
34.Ld. Advocate for plaintiffs had contended that the family settlement Ex. DW1/1 being an unregistered document could not be relied Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 16 of 19 upon. On the other hand, Ld. Advocate for defendants no. 1, 2 and 4 submitted that since the family settlement reduced in writing the terms of oral compromise, it was not required to be registered.
35.A reading of the document Ex. DW1/1 clearly shows that it records the oral compromise between the parties to the family settlement which had already taken place. It is well settled that a family settlement which is drawn up with an intention of reciting an already completed oral partition does not require registration (See Roshan Singh v. Zile Singh AIR 1988 SC 881). Moreover, it is the admitted case of the plaintiffs that some properties were already divided between the parties which further supports the inference that the suit property had also been partitioned along with other properties and the settlement Ex. DW1/1 is only reciting an already completed partition. Therefore, the family settlement dated 27.04.1979 Ex. DW1/1 is not required to be compulsorily registered.
36.DW1 also relied upon khatoni Ex. DW1/2. From the above evidence produced on record, what can be easily inferred that suit property i.e. area of 1250 sq. yards in khasra no. 70/2/3 village Palam had already been orally partitioned between the parties in view of the family settlement dated 27.04.1979 Ex. DW1/1 and the partition had already taken place in the year 1979. The defendants have been able to disprove the averments of the plaintiffs that Suit No. 38/15 Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 17 of 19 partition of the suit property has not taken place. Therefore, plaintiffs are not entitled to the relief of partition as prayed. Issue is decided against the plaintiffs and in favour of the defendants.
Issue no. 5: Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause2 of the plaint? OPP
37. Onus to prove this issue is on the plaintiffs. While dealing with issue no. 4, the Court has already found that the plaintiffs are not entitled to the decree of partition since the suit property had already been orally partitioned in the year 1979 and it fell to the share of the parties as stated in the family settlement dated 27.04.1979 Ex. DW1/1. Therefore, plaintiffs are not entitled to the relief of permanent injunction as prayed. Issue is decided against the plaintiffs.
Issue no. 6: Whether the plaintiff is entitled to a decree of mandatory injunction as prayed for in prayer clause3 of the plaint? OPP
38.Onus to prove this issue in on the plaintiffs. While dealing with issue no. 4, it has already been found that the plaintiffs have failed to prove their right in respect of the portion where the plaintiff alleges that the defendants have raised the construction in the property no. 70/2/3 measuring 1250 sq. yards village Palam.
Suit No. 38/15Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 18 of 19 Therefore, the plaintiffs are not entitled to the relief of mandatory injunction as prayed. Issue is decided against the plaintiffs.
Issue no. 7: Relief
39.In view of the findings of this Court on the above issues, the plaintiffs are not entitled to any relief as prayed. The suit is dismissed alongwith costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the Open Court Apoorv Sarvaria,
on the day 30th January, 2015 Civil Judge14, Central,
Tis Hazari Courts, Delhi
Suit No. 38/15
Rajinder Pershad and anr. v. Ram Niwas and ors. Page No. 19 of 19