Delhi District Court
Sh. Duli Chand vs Sh. Chiranji Lal on 21 October, 2011
IN THE COURT OF MS. SWATI KATIYAR, CIVIL JUDGE- 03 (WEST),
TIS HAZARI COURTS, DELHI.
CS NO. 216/07
DATE OF INSTITUTION: 20.12.2002
DATE OF RESERVING ORDER: 29.09.2011
DATE OF DECISION: 21.10.2011
SH. DULI CHAND,
S/O. LATE SH. RAM DAYAL,
R/O. VILLAGE PAPRAWAT, DELHI-110043
... PLAINTIFF
VERSUS
1. SH. CHIRANJI LAL
S/O. LATE SH. TEK CHAND,
R/O. VILLAGE PAPRAWAT, DELHI
2. SH. PRAHLAD SINGH (DECEASED)
THROUGH LEGAL REPRESENTATIVES
A) SMT. LAL KAUR (WIDOW),
B) SH. KARTAR SINGH (SON),
C) SH. VINOD (SON),
D) SMT. PREMWATI (MARRIED DAUGHTER) AND
E) SMT. SUMAN (MARRIED DAUGHTER)
ALL R/O. VILLAGE PAPRAWAT, DELHI-110043
(DROPPED FROM ARRAY OF PARTIES
VIDE ORDER DATED 28.02.2011)
... DEFENDANTS
SUIT FOR PARTITION, PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. Briefly stated the case of the plaintiff is that plaintiff is co-owner and in joint possession of a plot measuring about 1400 sq. yds. (one bigha and eight biswas) which is situated in the Lal Dora Abadi of the Village Paprawat, Delhi bearing Khasra no. 100 (hereinafter referred to as 'suit property'). Plaintiff submits that defendant no.1 and 2 being the nephews of the plaintiff are in joint possession of the said plot which has been jointly inherited from the common ancestor Late Sh. Ram Dayal i.e. the father of the plaintiff and the grandfather of defendant no.1 and
2.
2. Plaintiff submits that the plot has been partially built for the use and occupation of both the parties and major portion of the plot is lying vacant for the common use of the parties. It is submitted that the total area of the suit property is about 1400 sq. yds. out of which 450 sq. yds. (exclusive of common passage) is in possession of the plaintiff and about 950 sq. yds. is under the possession of the defendants though both the parties are entitled for 700 sq. yds. It is further submitted that for better use of the said plot a gallery of about 4.5' was left towards the south portion of the plot and two gates at both the ends of the plot were affixed so as to prevent the use of Gallery by the General Public and for the security purposes.
3. It is submitted that for the last two months or so, defendants no.1 and 2 had grown greedy and with the intention of grabbing entire open portion of the plot, had started raising construction illegally and had collected building materials for the same. Plaintiff submits that he is entitled to 1/ 2 share in the said plot which comes to nearly 700 sq. yds. and defendants no. 1 and 2 are entitled to 1/ 2 share jointly out of 1400 sq. yds. but since the defendants have grown greedy and have muscle power with them, therefore they want to grab the entire open portion of the plot illegally.
4. Plaintiff further submits that a 4.5' wide common gallery was left for the use of family members of both the parties and said gallery was closed by the gate affixed on both the sides of the joint plot but the defendants have removed the gate of the one side of the gallery with a view to facilitate passage for the general public which is likely to cause breach in the privacy of the plaintiff and disturbance in the use of the plot by the plaintiff. Plaintiff submits that the defendants on 16.11.2002 tried to break the gate of the plaintiff by force and manhandled the son of the plaintiff Sh. Udham Singh and his wife. The matter was reported to the respectable persons of the Village whereupon a compromise was made between the parties and the defendants gave undertaking that without effecting partition of the entire plot by metes and bounds, they shall not carry out any construction on the disputed plot, but taking advantage of the absence of the plaintiff's son, the defendants have raised a wall on open space and have also fixed gate by completely ignoring the right of the plaintiff.
5. Plaintiff submits that he tried to stop the defendant from raising any illegal construction without effecting partition but the defendants never paid any heed to the request and are now bent upon raising further construction with the help of some goonda elements.
6. Plaintiff submits that he reported the matter to the local police on 16.12.2002 for stopping the defendant from raising any construction on the disputed portion of the plot without effecting physical partition of the same but the defendants are adamant to grab the entire open portion of the joint plot.
7. Thus, feeling aggrieved, plaintiff has filed the present suit seeking partition of the plot measuring about 1400 sq. yds. (28 biswas) or the area in actual possession of both the parties, out of Khasra no. 100 of village Paprawati, Delhi by dividing the plot among the plaintiff with 1/ 2 share and the defendant no.1 and 2 with 1/ 2 share jointly. It is further prayed that defendant no.1 and 2 be directed to remove the construction raised illegally after 16.11.2002 and that defendant no.1 and 2 be restrained so as not to raise any further construction on the open and disputed portion of the plot.
8. Per Contra, defendants submit that the present suit is not maintainable in as much as the plaintiff has not paid proper court fees and the suit has also not been properly valued for the purpose of court fees and jurisdiction. It is submitted that the value of the suit property is more than Rs. 5,00,000/- therefore, this Court has no jurisdiction to try the present suit. It is further submitted that plaintiff has not come before this Court with clean hands and has suppressed material facts from the Court. It is submitted that in the year 1970, the property has been orally partitioned between the parties in the presence of panchas, elderly people of the family and respectable persons of the society and since the property has been partitioned long back therefore, the present suit is not maintainable.
9. It is further submitted that the plaintiff had not stated true and correct facts in as much as the defendants after the said oral partition of the property, have raised construction at the back side of the property. It is submitted that the plaintiff cannot be permitted to describe the portion of the answering defendants as an open plot. It is submitted that the only intention of the plaintiff is to grab the share of the answering defendants in respect of the suit property.
10. Defendants deny that they are in possession of 950 sq. yds. It is submitted that there is a common gallery of 4.5 sq. yds. width measuring about 150 sq. yds. alongwith the plot of 1400 sq. yds. It is submitted that the defendants are in possession of 850 sq. yds. against the alleged 950 sq. yds. area. It is submitted that the plaintiff is making malafide attempt to grab the property fallen to the share of the defendants by way of partial partition mutually arrived at between the plaintiff and the defendants and other coparceners during the year 1970.
11. It is submitted that the site plan filed by the plaintiff is not correct and that the suit property was initially owned not only by plaintiff and defendants herein but other family members also. It is submitted that Sh. Tek Chand, Sh. Duli Chand, Sh. Budh Ram, Sh. Surat Singh, Sh. Suraj Mal and Sh. Nand Lal are other co-sharers of the suit property.
12. Defendants submit that in the year 1970, the property has been orally partitioned between the parties in the presence of Panchas, elderly people of the family as well as respectable persons of the society. According to the said partition/ settlement arrived at between the parties in the year 1970, other family members have taken their shares in the ancestral property and the suit property alongwith property bearing Khasra no. 362, measuring 85 sq. yds. situated in the revenue estate of paprawat, Delhi Estate, Najafgarh, New Delhi, which is the part of the ancestral property, has been given to the plaintiff Sh. Duli Chand and Sh. Tek Chand , the father of the defendants in respect of their shares in ancestral property.
13. Defendants further submit that according to partition/ family settlement, the plaintiff has taken front portion of the property and also 85 sq. yds. of the property falling in Khasra no. 362, situated in Revenue estate of village Paprawat, Nazafgarh, New Delhi. The defendants have taken back portion of the suit property. It is submitted that the plaintiff has already sold 85 sq. yds. of property which was given to him in respect of his share in the ancestral property.
14. It is submitted that if the plaintiff did not agree with the said partition and settlement arrived at between the parties in the year 1970, then the plaintiff ought to have impleaded the necessary parties who have got interest in respect of the ancestral property, therefore, it is submitted that this suit is bad for non-joinder of necessary parties and is liable to be dismissed.
15. Defendants submit that a Gali of width 5' ft. was left open for the use of the plaintiff and defendants for egress and ingress. It is submitted that it was settled that the Gali will be used by both the parties and accordingly the same is being used since 1970. Defendants submit that it was also settled that neither the plaintiff nor the defendants will claim their exclusive right over the said Gali in any manner and it will be used commonly by the parties. It is submitted that at the front portion of the said Gali, the plaintiff had fixed an Iron Gate which is contrary to the said settlement. The same was objected to by the defendants herein and they also lodged a complaint to the police.
16. Defendants submit that plaintiff has threatened to implicate them in false cases since the son of the plaintiff is Sub- Inspector in Delhi Police. It is further submitted that defendant No. 2 has relinquished his rights in respect of the suit property in favour of defendant No. 1.
17. Defendants further submit that plaintiff has sold the property bearing Khasra no. 362 measuring 85 sq. yds. and has appropriated the sale consideration thereof. It is submitted that plaintiff has concealed this fact from the Court so as to grab the share of the defendants. On these counts it is submitted that the suit merits outright dismissal.
18. Replication was filed denying the contents of the written statement and reiterating the plaint. Plaintiff denied that any oral partition had taken place in the year 1970. Plaintiff submits that the persons stated by the defendants as joint shareholders were shareholders with respect to other Khasras such as Khasra No. 98, 99/1, 99/2, 100 and 103 measuring 5 bigha 5 biswas and the said joint holding has never been partitioned. It is further submitted that consolidation proceedings took place in the year 1974-75 and Khasra No. 100 had fallen to the share of plaintiff's father during consolidation proceedings of the year 1974-75. It is submitted that no partition of Khasra No. 100 has taken place till date.
19. On completion of pleadings, following issues were framed on 28.05.2003 viz.
1. Whether an oral partition took place between the parties/ their ancestors in the year 1970, if so, its effect? OPD.
2. Whether the plaintiff has not approached the court with clean hands, if so, its effect? OPD.
3. Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction? OPD.
4. Whether the plaintiff is entitled for the partition as prayed for? OPP.
5. Whether the plaintiff is entitled for the relief of mandatory/ permanent injunction as prayed for? OPP.
6. Relief.
20. In evidence plaintiff examined himself as PW-1, one Sh. Dharam Singh s/o. Sh. Ram Swaroop was also examined as PW-1, Sh. Dharam Pal was examined as PW-2, Sh. Omvir (Patwari) was examined as PW-4 and Sh. Dayanand (Kanungo) was examined as PW-5. Son of the plaintiff Sh. Randhir Singh was examined as PW6. On behalf of defendants, defendant No. 1 examined himself as DW-1 and Sh. Dharam Singh s/o. Sh. Budh Ram was examined as DW-2.
21. Defendant No. 2 died during the course of defendant's evidence and his LRs were brought on record on 03.12.2010. However, on 28.02.2011 the LRs of defendant No. 2 gave a statement in the Court to the effect that they do not claim any right, title or interest in the suit property and they may be discharged from the present suit. Separate statement of LRs was recorded to this effect and they were discharged from the present suit.
22. Written submissions were filed by the plaintiff as well as oral arguments were advanced by Sh. D.P. Bhatia, Ld. Counsel for plaintiff. Defendant failed to advance arguments despite repeated opportunities. Accordingly, after considering the submissions, analyzing the evidence and perusing the record carefully, my issue wise finding is as follows:-
Issue no.1: Whether an oral partition took place between the parties/ their ancestors in the year 1970, if so, its effect? OPD.
The onus of proving this issue was upon the defendants. Defendants submit that an oral partition had taken place between the parties in the year 1970.
Now, since the partition is alleged to be oral, therefore, the testimony of witnesses examined by defendants to discharge the onus becomes relevant.
DW1 in his cross examination states that Duli Chand and his father Tek Chand were real brothers. DW1 admits that the present suit is for partition of 1400 sq. yds.and that the present suit property came to the share of his father and plaintiff from the grandfather of DW1 i.e. Sh. Ram Dayal. DW1 admits that no written partition had taken place between the shareholders of Ram Dayal. DW1 further deposed that the property was divided after measurement in the year 1970 and it was measured in the presence of Sh. Suraj Singh s/o. Sh. Heera Singh, Sh. Suraj Mal s/o. Sh. Heera Singh, Sh. Nand Lal s/o. Sh. Heera Singh, Sh. Budh Ram s/o. Sh. Harnarayan, Sh. Duli Chand s/o. Sh. Ram Dayal and Sh. Tek Chand s/o. Sh. Ram Dayal. DW1 deposed that apart from the suit property, the other joint property with Sh. Harnarayan, Sh. Heera Singh and Sh. Ram Dayal all sons of Sh. Devi Singh had been partitioned in the year 1970.
DW1 in his further cross examination recorded on 26.08.2008 admitted that no mutation had ever taken place in respect of the suit property in revenue record or any other Government record. DW1 admitted that no site plan was prepared at the time of partition. DW1 deposed that the said partition took place in the presence of Sh. Suraj Singh, Sh. Nand Lal, Sh. Budh Ram, Sh. Duli Chand and Sh. Tek Chand. DW1 expressed inability to state the month or the date when the alleged partition had taken place.
DW1 stated that out of the above said persons only Nand Lal and Duli Chand are alive. DW1 deposed that apart from the family members, there was pradhan Shera and Shersingh. DW1 further deposed that no writing was done at the time of the alleged partition and no measurement was taken and the plot was not divided by metes and bounds. DW1 admitted that the suit property was in possession of the plaintiff and his father Sh. Tek Chand.
DW1 admitted that Budh Ram, Suraj Singh, Suraj Mal and Nand Lal had never been in possession of the suit plot and that they were already given their share in other khasra number. DW1 deposed that partition with Budh Ram, Suraj Singh, Suraj Mal and Nand Lal had taken place at the same time when the alleged partition in respect of the suit plot had taken place.
Thus, from the testimony of DW1 it can be made out that there was no writing which incorporated the alleged partition of the suit property in the year 1970. As per DW1, the said partition had taken place in the presence of Sh. Suraj Singh, Sh. Nand Lal, Sh. Budh Ram, Sh. Duli Chand and Sh. Tek Chand, out of whom Sh. Nand Lal and Sh. Duli Chand are alive. Duli Chand is the plaintiff who had refuted the claim of the plaintiff. Sh. Nand Ram was never examined by the defendant to prove the alleged partition.
Defendants had also examined another witness i.e Sh. Dharam Singh s/o. Sh. Budh Ram as DW2. DW2 in his examination deposed that the partition of the year 1970 had taken place in the presence of panchas, elderly people of the family and respectable persons of the village.
DW2 in his cross examination admits that the alleged partition had not taken place in his presence. DW2 deposed that his father and brother might have been present at the time of partition. Thus, DW2 has no personal knowledge of the alleged partition and whatever deposition DW2 is making is merely hearsay evidence since he was not present in person when the alleged partition had taken place. It is a settled principle of law that hearsay evidence barring few exceptions is no evidence.
No other witness has been examined by the defendants who might have been present at the time of the alleged partition. Moreover, DW1 in his cross examination had admitted that no partition by metes and bounds had taken place in the year 1970 which means that the suit property was never actually partitioned between the parties.
So far as the plot measuring 85 sq. yds. is concerned. In his written statement, defendants have stated that plot measuring 85 sq. yds. falling in Khasra no. 362, Nazafgarh, Delhi was given to the plaintiff and sold by him. However, in his cross examination, DW1 had deposed that, "It is correct that the plaintiff has not sold anything out of the Khasra no. 362...". This is a material contradiction in the testimony of defendant which demolishes the stand taken by the defendant in his pleadings and reflects adversely on his claim of alleged partition in the year 1970.
Thus, in view of the observations made above, the defendants have failed to prove that any partition of the suit property had taken place in the year 1970. The issue stands decided in favour of the plaintiff and against the defendants.
Issue no. 3: Whether the suit has not been properly valued for the purpose of the court fee and jurisdiction? OPD.
The onus of proving this issue was also upon the defendants. Defendants submit that the value of the suit property is much more than Rs. 5 lakhs thus, suit is beyond the pecuniary jurisdiction of this Court. It is submitted that the suit has not been properly valued by the plaintiff and is liable to be dismissed.
Plaintiff on the other hand argues that in the present suit, the court fees is to be paid as per Article 17, clause VI of Schedule II of the Court Fees Act which has been affixed by the plaintiff and thus, the suit is maintainable. It is an admitted position that plaintiff and defendants are in the possession of the suit property. Under such circumstances, it is Article 17 Clause VI of Sch. II of Court Fees Act which comes into picture. In Sudershan Kumar Seth v. Pawan Kumar Seth,2005 D.L.T. 305 : 2006(1) R.C.R.(Civil) 306, Hon'ble High Court of Delhi held that if the plaintiff is in possession of his share or any part of his share of the property to be partitioned , only fixed court fee qua that part of the property shall be payable under Article 17(6) of Schedule II of the Act.
Plaintiff has paid fixed court fees as per the Act. Thus, it cannot be said that the suit has not been properly valued. The issue accordingly stands decided in favour of the plaintiff.
Issue no.2: Whether the plaintiff has not approached the court with clean hands, if so, its effect? OPD.
and Issue no. 4: Whether the plaintiff is entitled for the partition as prayed for? OPP.
Defendants have failed to prove any alleged partition of the year 1970. It is an admitted position that the suit property is ancestral property. So far as the issue of sharers of the suit property arises, DW1 in his cross examination has stated that, "It is correct that this suit property came to the share of my father Dhuli Chand and Tek Chand from my grandfather Ram Dayal....."
In the further cross examination recorded on 26.08.2008, DW1 deposed, "It is correct that Budh Ram, Suraj Singh, Suraj Mal and Nand Lal was not in possession as they were already given their share in other khasra number....."
PW1 in his cross examination had deposed that no other person is having share in the suit property except him and the defendants. In the further cross examination recorded on 28.05.2004, PW1 deposed that, "Budh Ram is not the co-sharer in the disputed property. Surat Singh, Suraj Mal and Nand Lal are also not co-sharer in the suit property...."
Thus, there is no dispute between the parties that it is only the plaintiff and father of the defendants who are the co-sharers in the suit property. Accordingly, since the defendants had failed to prove the alleged partition of 1970, therefore, the plaintiff is entitled to the partition of the suit property. Plaintiff and the father of the defendants i.e. Sh. Tek Chand are held entitled to 1/ 2 share each in the suit property. Defendants being the sons of Sh. Tek Chand shall take 1/ 2 share jointly. The issue stands decided accordingly.
Issue no.5: Whether the plaintiff is entitled for the relief of mandatory/ permanent injunction as prayed for? OPP.
Plaintiff has prayed that defendant no.1 and 2 be restrained from not raising any further construction in the suit property at Mark A shown in the site plan. Under the preceding issue, the shares of the parties have been determined and until the shares of the parties are demarcated by metes and bounds, the parties are restrained from raising any further construction in the suit property. The issue stands decided accordingly.
Issue no.6:Relief.
In view of the observations made above, the suit of the plaintiff stands decreed for the relief of partition. Plaintiff and the father of the defendants i.e. Sh. Tek Chand are held entitled to 1/ 2 share each in the suit property i.e. 1400 sq. yds. (one bigha and eight biswas) situated in the Lal Dora Abadi of the Village Paprawat, Delhi bearing Khasra no. 100. Defendants being the sons of Sh. Tek Chand shall take 1/ 2 share jointly in the suit property. Parties are also restrained from raising any further construction in the suit property till the drawing up of the final decree. Preliminary decree sheet be prepared accordingly.
Announced in the Open Court (SWATI KATIYAR)
Today i.e 21.10.2011 CIVIL JUDGE -III(W)/DELHI
21.10.2011
CS.433/06
21.10.2011
Pr. : None
Vide Separate order, Suit of the plaintiff stands decreed. Preliminary Decree sheet be prepared. Put up for further proceeding qua the division of property by meets and bounds on 15-12-2011.
(SWATI KATIYAR) CIVIL JUDGE -III(W)/DELHI 21.10.2011