Delhi District Court
Shobh Raj Arora vs Santosh And Ors on 28 February, 2024
IN THE COURT OF ADDITIONAL DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR NO. DLWT01-006733-2017
CIV DJ NO. 879/2017
SHOBH RAJ ARORA
S/o Late Shri Pokhar Das,
R/o H. No. 196/7, CBM, Gali No. 9,
Than Singh Nagar, Anand Parbat,
New Delhi-110005. ....Plaintiff.
Versus
1. SANTOSH
W/O Late Shri Lakshman Dass,
2. HARISH
S/O Late Sh. Lakshman Dass
3. NARESH @ SONU
S/O Late Sh. Lakshman Dass
4. Asha,
D/O Late Sh. Lakshman Dass
5. GEETA
D/O Late Shri Lakshman Dass
Through Her Mother
ALL
R/O H. NO. 196/7 CBM, GALI NO. 9
THAN SINGH NAGAR, ANAND PARBAT
NEW DELHI-110005 ...Defendants. Digitally
signed by
ANIL
ANIL CHANDHEL
CHANDHEL Date:
2024.02.28
17:02:02
+0530
________________________________________________________________
Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 1 of 21
CIV DJ NO. 879/2017
SUIT FOR PARTITION, DECLARATION
AND PERMANENT INJUNCTION
DATE OF INSTITUTION : 28.07.2017
JUDGMENT RESERVED ON : 21.02.2024
JUDGMENT PRONOUNCED ON : 28.02.2024
Counsel for the Plaintiff : Ms. Ravi Prabha, Adv.
Counsel for the Defendants : Mr. Naresh Kumar, Adv.
JUDGMENT
1. The Plaintiff has filed the present suit against the Defendants for the prayers of partition, declaration and permanent injunction with regard to property bearing No. 196/7, CBM, Gali No. 9, Than Singh Nagar, New Delhi- 110005 measuring 50 sq. yds. (hereinafter referred to as, "the suit property").
2. The facts stated in the Plaint:
2.1. Late Pokhar Das was the sole and absolute owner of the suit property. The Plaintiff and Late Lakshman Das were sons of Late Pokhar Das. Digitally signed by ANIL CHANDHEL ANIL CHANDHEL Date:
2024.02.28 17:02:21 ________________________________________________________________ +0530 Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 2 of 21 CIV DJ NO. 879/2017 2.2. Late Pokhar Das purchased the suit property, vide unregistered Sale Deed dated 19.01.61. Late Pokhar Das died intestate on 12.08.1976, and the suit property devolved upon the following four legal heirs of Late Pokhar Dass in 1/4 equal shares:
i. Soni (Wife) ii. Krishna Devi (daughter) iii. Shobh Raj Arora (son and Plaintiff herein) iv. Lakshman Dass (son and predecessor-in-interest of the Defendants) The wife (Soni) and daughter (Krishna Devi) of Late Pokhar Das relinquished their rights in the suit property in favour of his sons (Plaintiff and his brother Late Lakshman Dass), in terms of a Deed of Relinquishment duly registered as document no. 1228, in Addl. Book No. 1, Vol. No. 4416, on page 150 to 162, dated 01.04.85, in the office of Sub-
Registrar, S.D. No. 1, Delhi.
2.3. After registration of the afore-mentioned relinquishment deed, the Plaintiff and his brother became owners of the suit property in equal half share. The suit property has been jointly mutated in the names of the Plaintiff and his brother Shri Lakshman Dass on 01.09.2015. Prior to mutation, the Plaintiff was paying the property Tax and as well as Electricity Bill raised by concerned authority. ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 3 of 21 Digitally CIV DJ NO. 879/2017 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:02:46 +0530 2.4. Late Lakshman Dass died on 24.10.2015 and the Defendants are surviving legal heirs of Late Lakshman Das.
The Defendant No.1 is the wife of Late Lakshman Das, whereas the Defendant No. 2 to 5 are his children.
2.5. The Plaintiff is in possession of the larger part of first floor and smaller part of ground floor of the suit property, whereas the Defendants are in the possession of the larger part of the ground floor and smaller part of first floor of the suit property. The common areas of the suit property are being jointly utilized by both the Plaintiff and the Defendants. The Plaintiff, on account his age, can-not conveniently occupy the first floor and has offered the Defendants to divide the possession of both the floors between them in half. Alternatively, the Plaintiff also proposed to the Defendants to get entire suit property sold in the market and to get sale proceeds divided equally between the Plaintiff and Defendant Nos. 1 to 5 on the basis of their respective shares. However the parties could not reach any settlement or agreement between them and therefore, the Plaintiff has filed the present suit for partition.
3. The facts stated in the Written Statement:
3.1 The Defendants were duly served with summons of the suit and have entered appearance on 26.10.2017. The Defendants ________________________________________________________________ Digitally signed by ANIL Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 4 of 21 ANIL CHANDHEL CIV DJ NO. 879/2017 CHANDHEL Date:
2024.02.28 17:03:01 +0530 have filed a common written statement.
3.2 The Defendants admit in the written statement that Late Pokhar Das was the owner of the suit property. It is admitted that wife and daughter of Late Pokhar Das have executed the registered relinquishment deed in favour of his sons, i.e., the Plaintiff and Late Lakshman Das. It is also admitted that the suit property has duly been mutated in joint names of the Plaintiff and his brother. The respective possession of the parties, as stated in the plaint, is also admitted.
3.3 The only defence set up in the written statement is that the suit property has already been partitioned. The aforesaid defence has been pleaded in the following manner in the written statement:
i. That suit property has already been partitioned between the Plaintiff and his brother in year 1985 and the parties are in possession of their respective shares, in terms of the aforesaid partition. In terms of the aforesaid partition, Late Lakshman Dass paid a sum of Rs. 40,000/- in cash to the Plaintiff at the time of partition after equalizing the value of both the floors. The room on the first floor was constructed by the Defendants from their own funds.
ii. The Plaintiff has installed an iron gate at the staircase of first floor of the suit property in order to restrict the ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 5 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:03:13 +0530 entry of the Defendants and further occupy the area of the terrace by putting a temporary shed and keep his belonging in it. The Plaintiff and the Defendants were paying the property tax of the suit property, however, after death of Late Lakshman Dass, the Defendants are paying their property tax separately.
iii. The Plaintiff had inducted a tenant in a room situated on the ground floor of the suit property and the difficulty to occupy the first floor, as stated in the plaint is malafide.
3.4. The Defendant has also taken the preliminary objection of the suit being barred by limitation and being bad for misjoinder of the Defendant No.2, however no factual corroboration of the aforesaid legal contentions have been provided in the written statement.
4. The facts stated in the Replication:
4.1 The Plaintiff has filed the replication to the written statement, wherein the Plaintiff has traversed the contents of the written statement and has made the necessary denials, reaffirming the contents of the plaint.
5. Issues:
5.1 On the basis of the pleadings of the parties, the following issues were framed on 19.07.2018:
________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 6 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:03:21 +0530 i. Whether the suit property has already been partitioned in the year 1985, if so, its effect? OPD. ii. Whether the plaintiff is entitled to decree of partition of the suit property, as prayed vide prayer clause (C)? OPP.
iii. Whether the Plaintiff is entitled to decree of permanent injunction, as prayed vide prayer clause (E)? OPP.
iv. Relief.
6. The Plaintiff's Evidence:
6.1 The Plaintiff has led his evidence and has examined two
witnesses in support of his case.
6.2 The PW-1 (Shobh Raj) is the Plaintiff. He has exhibited and
relied upon the following documents in his examination-in- chief:
i. Exhibit PW-1/1: Original Relinquishment Deed dated 01.04.1985.
ii. Exhibit PW-1/2: Original Mutation Letter 01.09.2015.
iii. Exhibit PW-1/3: Property Tax Demand Notice dated 16.07.1975.
iv. Exhibit PW-1/4: Property Tax Demand Notice dated 30.03.1977.
v. Exhibit PW-1/5: Receipt Property Tax dated ________________________________________________________________ Digitally signed by ANIL Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 7 of 21 ANIL CHANDHEL CHANDHEL Date:
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23.03.2007.
vi. Exhibit PW-1/6: Receipt of Property Tax dated
01.09.2015.
vii. Exhibit PW-1/7 to PW-1/10: Electricity
Bills/receipts dated 27.03.1968, 02.12.1968,
19.09.1970 and 10.11.2015.
viii. Exhibit PW-1/11: Site plan.
ix. Mark-A: Photocopy of sale deed dated 19.01.1961.
x. Mark-B: True Translation copy of sale deed dated
19.01.1961.
During the examination in chief of the PW-1, the Defendants have raised objections with regard to the mode of proof of Exhibit PW-1/2 to Exhibit PW1/11, Mark A and Mark B. The PW-1 was cross-examined by Ld. Counsel for the Defendants and was discharged, upon conclusion of his cross-examination.
6.3 The PW-2 is the witness of record, summoned from the House Tax Department and he has produced the following documents:
i. Exhibit PW-2/1 (OSR): The copy of Inspection Report dated 02.01.1962.
ii. Exhibit PW-2/2 (OSR): The copy of Assessment order dated 01.12.1961.
iii. Exhibit PW-2/3 (OSR): The copy of notice of Assessment under Section 126 of DMC Act.
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2024.02.28 17:03:40 +0530 iv. Exhibit PW-2/4 (OSR) (two pages): The copy assessment of property tax, A-Form dated 01.04.1972. v. Exhibit PW-2/5 (OSR): The copy of Inspection report dated 18.07.1974.
vi. Exhibit PW-2/6 (OSR):The copy of the notice under Section 126, MCD Act dated 01.03.1974. vii. Exhibit PW-2/7 (OSR):The copy of objection to the notice dated 01.03.1974 filed by Sh. Pokhar Dass. viii. Exhibit PW-2/8 (OSR):The copy of the notice dated 09.07.1974.
ix. Exhibit PW-2/9 (OSR) (two pages):The copy of Assessment order Form-A dated 13.10.1976. x. Exhibit PW-2/10 (OSR): The copy of notice of assessment of property tax dated 30.03.1977.
The PW-2 was cross-examined by the Ld. Counsel for the Defendants and was discharged upon conclusion of his cross-examination.
7. The Defendant's Evidence:
7.1 The Defendants have examined two witnesses in support of their case.
7.2 The DW-1 (Mr. Naresh @ Sonu) is the Defendant No.3. He has exhibited and relied upon the following documents in his examination-in-chief:
i. Exhibit DW-1 (OSR): The copy of the Aadhar Card ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 9 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:03:49 +0530 of his mother/the Defendant No.1. ii. Exhibit DW-1/B (OSR): The copy of Voter ID Card of his sister/Defendant No. 5. iii. Exhibit DW-1/C (colly, 2 pages): The copy of bank passbook of his brother/Defendant No.2 Harish, maintained with Punjab National Bank, New Rohtak Road Branch, New Delhi.
iv. Exhibit DW-1/D (OSR): The copy of electricity bill of electricity meter bearing CA No. 100641969 installed in the suit property in the name of Late Pokhar Dass.
v. Exhibit DW-1/E (OSR): The copy of Property Tax receipt dated 28.04.2015 of the suit property for the period 2015-2016.
vi. Exhibit DW-1/F (colly): The six photographs of the suit property. The same have already been exhibited as Exhibit PW-1/D1 (colly), on 10.12.2018 during the cross-examination of the Plaintiff/PW-1. vii. Exhibit DW-1/G: The original passbook of Late Lakshman Dass, for the account maintained with Punjab and National Bank, New Rohtak Road Branch, New Delhi.
The DW-1 was cross-examined by the Ld. Counsel for the Plaintiff and was discharged upon conclusion of his cross- examination.
7.3 The DW-2 is the witness of record, summoned from the ________________________________________________________________ Digitally Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 10 of 21 signed by ANIL CHANDHEL CIV DJ NO. 879/2017 ANIL CHANDHEL Date:
2024.02.28 17:03:57 +0530 House Tax Department and he has produced the following documents:
i. Exhibit DW-2/A: The property tax challan No. 2015- 2016/receipt no. 4142116 dated 28.04.2015 of Rs.296/-.
The DW-2 was cross-examined by the Ld. Counsel for the Plaintiff and was discharged upon conclusion of his cross- examination.
8. Submissions of the Parties.
8.1. After conclusion of the evidence, the Ld. Counsels for the parties have addressed their final arguments. Ld. Counsel for the Plaintiff has submitted that the Plaintiff has duly proved his entitlement for the prayers of the suit. It is submitted that the Defendants have admitted the right, title and interest of the Plaintiff in the suit property and the Defendants have not been able to prove their contentions, about the suit property, being already partitioned.
8.2. Ld. Counsel for the Defendants has submitted that the PW-1 in cross examination, himself refers to a settlement in the year 1985 and if the facts & evidence is read collectively, the plea of previous partition has been established. It is submitted that the daughter (her LRs) of Late Pokhar Das was required to be impleaded as the party to the suit. It is further stated that the Plaintiff has failed to prove any sale ________________________________________________________________ Digitally signed by ANIL Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 11 of 21 ANIL CHANDHEL CHANDHEL Date:
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deed in favour of Late Pokhar Das.
9. Reasons and findings on the Issues:
9.1 Issue No. 1: Whether the suit property has already been partitioned in the year 1985, if so, its effect? OPD.
9.1.1. The onus to prove this issue was on the Defendants. The Defendants have stated in the written statement that the suit property has already been partitioned between the Plaintiff and the predecessor in interest of the Defendants, namely Late Lakshman Dass, in the year 1985. It is stated that a part of the ground floor and a room on the first floor of the suit property was agreed to be the share of the Late Lakshman Dass, whereas part of first floor and a room at the ground floor was agreed to be the share of the Plaintiff. It is stated that Late Lakshman Dass also paid a sum of Rs. 40,000/- in cash to the Plaintiff at the time of partition, after equalizing the value of both the floors.
9.1.2. The Defendants have examined two witnesses in support of their case. The Defendant No. 3 has appeared as the DW-1 and he is the only witness examined to establish the plea of previous partition of the suit property. The DW-1 has affirmed the contentions of the written statement in his examination-in-chief. It is stated by the DW-1 that partition ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 12 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:14 +0530 of the suit property has taken place between the Plaintiff and his father on 01.04.1985. Interestingly the DW-1, at the time of aforesaid partition, was only 6 years old. The DW-1 states that his father has informed him about the aforesaid partition. Thus the DW-1 does not have the personal knowledge of the factum of partition, as pleaded in the written statement.
9.1.3. It has stated by DW-1 in the cross examination dated 25.05.2022 that the partition took place and partition deed and certain documents, regarding maintenance of payment to grandmother and a receipt of Rs.40,000/- was prepared. The relevant part of the cross-examination dated 25.05.2022 is reproduced hereinbelow:
"Q.: It is put to you as to who has furnished the information to you as mentioned in para 2 of the evidence Ex. DW-1/1 at point A to B? Ans. I came to know of the said information from my father.
My father is not alive now. The partition of the suit property took place between the plaintiff and my father on 01.04.1995.
Q.: Whether any Partition Deed was executed to this effect?
Ans. Yes. Vol. Apart from the Partition Deed, certain other documents were also prepared regarding th maintenance paid to my grandmother and a receipt of Rs.40,000/- paid by my father to the plaintiff at the time of said partition."
The aforesaid facts have not been stated in the plaint and further no documents, as claimed by the DW-1, were filed or ever produced in the suit. However on the subsequent date, when the DW-1 was asked to file the partition deed, he ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 13 of 21 Digitally CIV DJ NO. 879/2017 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:22 +0530 retracts his statement about the partition deed. The relevant part of the cross-examination dated 23.08.2022 is reproduced hereinbelow:
"Ques. Whether you have filed any Partition Deed executed on 01.04.1985?
Ans. I have not filed any such Partition Deed. Ques. Can you file the above said Partition Deed? Ans. No Partition Deed was ever executed, hence I cannot file the same.
Ques. Have you filed the receipt of Rs. 40,000/ paid by your father as mentioned in your affidavit and crossexamination dated 25.05.2022? Ans. The amount of Rs. 40,000/ was paid by my father to the plaintiff in cash after withdrawing the same in installments from his bank account. No receipt regarding the said amount was ever issued. Ques. Have you mentioned the factum of payment of the said amount in installments in your evidence affidavit Ex.DW1/1?
Ans. No. Ques. What was the period of the payment of the said installments?
Ans. From the year 19901992. Vol. The payment started from June, 1990.
Ques. Was any payment in respect of the partition made by your father from the year 1985 to 1990? Ans. No. Ques. Whether the withdrawals reflected in the passbook of your father Mr. Lakshman Dass, which is Ex. DW1/G, pertain to only the payment of Rs. 40,000/ or to some other things as well? Ans. The said withdrawals include those made for payment of Rs. 40,000/ as well as for the personal expenses of my father. The larger amounts i.e. of Rs. 1,000/, Rs. 1,500/ etc. were towards payment of Rs. 40,000/ whereas the smaller amounts were towards my father's personal expenses.
________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 14 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:30 +0530 Ques. Whether your father Mr. Lakshman Dass was accompanied by any person during his visits to the bank for withdrawal of money?
Ans. No."
The abovementioned cross examination further reflects that payment of Rs.40,000/, towards partition in year 1985, is stated to be made by multiple payments between the year 1990 to 1992, in a sum of Rs.1,000/ and Rs.1,500/.
9.1.4. The testimony of the DW1 is not credible, in so far as the plea of partition and the payment of Rs.40,000/ is concerned. The DW1 has made contradictory statements of the partition deed, being executed and thereafter not being executed. The DW1, in cross examination dated 25.05.2022, has stated that a receipt of the payment of Rs.40,000/ was executed between the Plaintiff and Late Lakshman Das. However the DW1 has neither produced the receipt nor proved the same. Moreover the evidence of payment is only in terms of withdrawal from the account of Late Lakhsman Das, over the period of 199092. Even the enteries of withdrawal have not been mentioned or explained in reference to amount of Rs.40,000/. No reason has been stated as to why the amount towards the settlement in the year 1985 was paid in the year 19901992, by way of multiple installments of Rs.1,000/ and Rs.1,500/. Thus the DW1 has failed to prove the plea of partition in the year 1985.
________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 15 of 21 Digitally CIV DJ NO. 879/2017 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:39 +0530 9.1.5. Moreover the subsequent crossexamination of the DW1 brings out the circumstances, which indicates that the suit property has not been partitioned. The relevant part of cross examination dated 16.01.2023 has been reproduced hereinbelow:
"......................It is correct that there is no wall in between two portions of the suit property. It is correct that there is only one room on the ground floor which is in possession of the plaintiff remaining portion over the ground floor are in my possession which consist of two rooms and a kitchen. Apart from two rooms and kitchen there is common area as well. Size of the room in possession of the plaintiff is equal to the size of rooms in my possession on ground floor.
Q I put it to you that there are three rooms on the ground floor which are in your possession in addition to the kitchen?
Ans. It is incorrect.
There is only one toilet situated on the first floor of the suit property which is commonly used by the parties. It is correct that the plaintiff is required to climb up the stair and down to use common toilet. [Vol: it is in case of all the members of the family]...................."
Thus there is no wall or obstruction between the respective portions occupied by the parties. There are common area being used by the parties. More importantly, there is only one toilet in the suit property, which is being used by the parties. The aforesaid facts leads to an irresistible conclusions that the suit property has not been partitioned, ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 16 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:47 +0530 as claimed by the Defendants.
9.1.6. Ld. Counsel for the Defendants has submitted that the PW1 refers to settlement in the year 1985 in his cross examination. The relevant part of the cross examination of the PW1, dated 27.11.2018 at page 45, as relied upon by the Ld. Counsel for the Defendants is reproduced hereinbelow:
"...................It is correct that in the year 1985 a settlement was arrived between myself, my brother namely Laxman Dass, my mother namely Smt. Soni and my sister namely Smt. Krishna Devi. It is also correct that in view of the said settlement a relinquishment deed Ex. PW1/1 was executed by my mother Smt. Soni and my sister namely Smt. Krishna Devi in favour of my brother namely Laxman Dass and my myself.
It is wrong to suggest that the partition was effected in the year 1985 and since then I and defendant reside in our respective portion."
The abovementioned crossexamination proves the factum of settlement for execution of relinquishment deed in favour of the Plaintiff and Late Lakshman Das and in no manner proves or even refers to the plea of previous partition. The PW1 has denied the suggestion of previous partition having taken place, in the year 1985. Thus the Defendants have failed to prove this issue and the Issue No.1 is decided in favour of the Plaintiff and against the Defendants.
9.2 Issue No. 2: Whether the plaintiff is entitled to ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 17 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:04:54 +0530 decree of partition of the suit property, as prayed vide prayer clause (C)? OPP.
9.2.1 The Plaintiff has stated in the Plaint that Late Pokhardas was the sole and absolute owner of the suit property. He died intestate leaving behind his wife, two sons and one daughter.
The wife and daughter of the Late Pokhardas have executed the registered relinquishment deeds in favour of the two sons and they became owners of the suit property in 50 % share each. It is stated that the suit property was subsequently mutated in the joint names of the two sons. The aforesaid contentions have been admitted by the Defendants in para 1 to 5 of reply on merits in the written statement.
9.2.2. Ld. Counsel for the Defendants has argued that the Plaintiff has not proved the sale deed in favour of Late Pokhar Das and further has not impleaded his daughter/LRs as party to the present suit. The Original Deed of Relinquishment duly registered as document no. 1228, in Addl. Book No. 1, Vol. No. 4416, on page 150 to 162, dated 01.04.85, in the office of Sub-Registrar, S.D. No. 1, has been filed on record and has duly been proved. The aforesaid document is admitted by the Defendants in the written statement. The aforesaid registered document proves the factum of relinquishment of the rights of the wife and daughter of Late Pokhar Das in favour of his sons. Therefore, the daughter or her LRs are not necessary parties to the present suit. The Defendants have ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 18 of 21 CIV DJ NO. 879/2017 Digitally signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:05:01 +0530 themselves admitted in the written statement that Late Pokhar Das was the owner of the suit property and therefore, they are estopped from raising the aforesaid issue. Moreover the Plaintiff has proven the registered relinquishment deed and the official record of the mutation, wherein the Plaintiff and his brother is recorded as the joint owners of the suit property. The parties are admittedly in possession of the suit property since 1961. It has been held by the Hon'ble High Court of Delhi, in, "Surjit Singh vs. Ekta Gulati (16.08.2012): RFA 166/2012: Manu/DE/4037/2012", that even the possessory rights, in the immovable properties, inherited by the parties from a common ancestor can become subject matter of partition. Therefore, the nature of rights, being asserted by the parties in the present suit, entitles the Plaintiff to seek partition of the same. Moreover, the registered relinquishment deed, the official record of mutation and property tax, the possession, read alongwith the admission of the Defendants of ownership of Late Pokhar Das makes out the case of the suit property being jointly owned by the Plaintiff and the Defendants, deriving their antecedents title from the common ancestor. The Plaintiff has also sought declaration of ownership of the suit property. It has been held by the Hon'ble Supreme Court of India in, "Deccan Paper Mills Ltd. vs. Regency Mahavir Properties: AIR 2020 SC 4047", that the declaration under Section 34 of Specific Relief Act is a right in personam and is only binding on the parties to the suit. Therefore, between themselves, the Plaintiff and the Defendants are the joint ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 19 of 21 Digitally CIV DJ NO. 879/2017 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:05:08 +0530 owners of the rights in the suit property.
9.2.3. The Defendants have failed to prove their plea of previous partition of the suit property in the year 1985, in terms of the discussion under Issue No.1. Thus it has been established on record that the Plaintiff is the owner of the rights in the suit property in 50%, i.e., 1/2nd share and the Defendant No. l to 5 are joint owners of remaining 50% share, i.e., 1/2nd X 1/5th = 1/10th share each. Therefore, the Plaintiff is entitled to a preliminary decree of partition of the suit property in terms of the shares of the parties as stated hereinabefore. This issue is decided in favour of the Plaintiff and against the Defendants.
9.3 Issue No. 3: Whether the Plaintiff is entitled to decree of permanent injunction, as prayed vide prayer clause (E)? OPP.
The Plaintiff and Defendants are the joint owners of the rights in the suit property. Therefore, the Defendants are not entitled to create any third party right in the suit property, which may defeat or prolong the process of the final decree of partition of the suit property. The parties are therefore required to be restrained from creating any third party rights in the suit property or from parting with the possession of the suit property, till the time of passing of the final decree and further till the time the same is given effect to. The Issue ________________________________________________________________ Shobh Raj Arora Vs. Sh. Santosh & Ors Page No. 20 of 21 Digitally CIV DJ NO. 879/2017 signed by ANIL ANIL CHANDHEL CHANDHEL Date:
2024.02.28 17:05:15 +0530 No.3 is accordingly decided.
10. Relief:
In view of the abovementioned discussion, decree of declaration, partition and permanent injunction is passed in the following terms:
i. A decree of declaration is passed and the Plaintiff is declared the owner of the rights in the suit property in 50% share, i.e., 1/2nd share and the Defendant No.1 to 5 are declared joint owners of the rights in the suit property for the remaining 50% share, i.e., 1/2 nd X 1/5th = 1/10th share each.
ii. A preliminary decree of partition of the suit property is passed and it is determined that the Plaintiff is entitled to 50%, i.e., 1/2nd share in the suit property and the Defendants are entitled to the remaining 50% share and thus the Defendant No.1 to 5 are entitled to 1/2 nd X 1/5th = 1/10th share each in the suit property. iii. A decree of permanent injunction is also passed, thereby restraining the parties from creating any third party right/interest interest in the suit property till the actual partition is effected.
The Decree sheet be drawn accordingly.Digitally signed by ANIL
ANIL CHANDHEL
CHANDHEL Date: 2024.02.28
17:05:24 +0530
Announced in the open Court (ANIL CHANDHEL)
today on 28th of February, 2024 ADJ-04 (West District)
THC/DELHI/28.02.2024
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