Delhi District Court
Anil Uppal vs Rakesh Uppal on 21 November, 2023
In the Court of Sh. Deepanker Mohan
Additional District Judge-04, Shahdara District,
Karkardooma Courts, Delhi
CS No. 2252/16
In the matter of :-
Sh. Anil Uppal
S/o Sh. Shadi Lal Uppal,
R/o H.No.IX/7015, Ashok Gali,
Gandhi Nagar, Delhi-31 .....Plaintiff
Versus
Sh. Rekesh Uppal
S/o Sh. Jinda Ram Uppal
R/o Second Floor, Plot o.114,
Rishabh Vihar, Delhi-92 .....Defendant
JUDGMENT
1. CS No. : 2252/2016
2. Under Section : Suit for partition, permanent
injunction, recovery of Rs.45,000/-
as damages/mesne profits and
recovery of Rs. 15,000/- per month as
mesne profit.
3. Date of Institution : 11.01.2012
4. Reserved for Judgment : 31.10.2023
5. Judgment : 21.11.2023
1. Vide this judgment, this court shall adjudicate this suit for partition, permanent CS No. 2252/16 Page 1 of 28 injunction, recovery of Rs.45,000/- as damages/mesne profits and recovery of future damages/ mesne profits @ Rs. 15,000/- per month filed by the plaintiff against the defendant.
2. The necessary facts for the adjudication of present case are as follows :-
(I) That the plaintiff has filed a suit for partition, permanent injunction, recovery of Rs.45,000/- as damages/mesne profits and recovery of future damages/ mesne profits @ Rs. 15,000/- per month against the defendant thereby stating that under an agreement to sell dated 22.02.2000 executed by Sh. T. S. Lamba and Sh. Naresh Narang S/o Sh. G.L. N. Narang, the plaintiff and defendant had agreed to purchase the second floor with roof rights of the property bearing no.114, Rishabh Vihar, Delhi-92 for a consideration of Rs.2,20,000/-.
(II) It is stated in the Plaint that Plaintiff and defendant became the co-
sharers in respect to the second floor with roof rights of the property. Plaintiff further stated that he allowed the defendant to use the suit property for his residence. Plaintiff stated that the actual, physical and vacant possession was delivered to him and the defendant by Sh. T. S. Lamba and Sh. Naresh Narang who executed the agreement to sell in respect of the suit property in part performance of the agreement to sell as entire payment was made to the sellers.
(III) It is also stated in the plaint that when Plaintiff asked the defendant to partition of the suit property by meets and bounds, the defendant avoided his request and did not partition the suit property.
(IV) It is also stated in plaint that Plaintiff, being co-shares in the suit property, has ½ undivided share and the defendant is also having ½ undivided share in the disputed property.
CS No. 2252/16 Page 2 of 28(V) It is stated by the Plaintiff that Plaintiff does not want to keep the property joint with the defendant and wants to have partition the suit property and separate distinct share in the suit property from the defendant.
(VI) It is further stated that Plaintiff served a legal notice dated 18.08.2011 upon the defendant calling upon the defendant to partition the suit property by meets and bounds within 15 days from the receipt of the notice otherwise appropriate civil remedy will be taken up by the defendant in accordance with the law. Notice was duly served upon the defendant who in spite of the service of the legal notice dated 18.08.2011 failed to partition the property by metes and bounds and separate the share of the plaintiff. Defendant has not even replied the legal notice dated 18.08.2011.
(VII) It is also stated in the plaint that after receiving the legal notice dated 18.08.2011, the defendant started threatening him that if plaintiff pressurized him to partition the property, he will create third party interest, alienate, transfer or create third party interest in the suit property.
(VIII) Plaintiff stated that in spite of the service of the notice, the defendant has failed to pay the amount of damages/ mesne profits as claimed in the said notice and as such the defendant is liable to pay the damages/ mesne profits @ Rs.15,000/- per month from 15.09.2011 to 14.12.2011 for three months.
(IX) It is also stated that Plaintiff is in constructive possession and is an owner of the suit property but still he is suffering at the hands of the defendant for no fault on his part. Plaintiff was constrained to file the present suit against the defendant.
CS No. 2252/16 Page 3 of 283. Summons in the present suit were issued against the defendant vide order dated 31.01.2012. The Ld. Counsel for the defendant appeared in the present matter and subsequently on 26.09.2012 written statement along-with an application for condonation of delay of 75 days in filing the written statement were filed on behalf of defendant in the present case. The Application for condonation of delay in filing the Written Statement was allowed subject to cost of Rs. 10,000/-, vide Order dated 26.09.2012 and Written statement filed by the Defendant was taken on record.
I. The defendant in the written statement has specifically denied the averments of the plaint and further stated that plaintiff is not possession of the suit property in any manner and as such as he is liable to pay the proper ad-valorun court fee for relief of possession which has not been paid by the plaintiff, hence plaintiff is liable to be rejected for deficiency of court fee under the provision of Order VII Rule 11 CPC.
II. It is further stated in the written statement that plaintiff has no right or titled in the suit property in as much as the same is exclusively owned and possessed by the defendant since the date of its purchase. It is further stated that entire sale consideration towards the suit property was paid by the defendant from of his own funds and the defendant included the name of plaintiff in the customary documents under good faith without realizing that the plaintiff may turn dishonest in future and he would claim share in the suit property which belongs to the defendant.
III. It is further stated that plaintiff is not entitled for any share in suit property as entire consideration towards the purchase of suit property was paid by the defendant and no contribution was made by the plaintiff in purchase of the suit property. It is also stated that there was an oral understanding that Plaintiff would not claim any share in the CS No. 2252/16 Page 4 of 28 suit property. It is also stated that the possession of the suit property was delivered by the erstwhile owners to the defendant at the time of its purchase which is also evident from the water and electricity bills raised in the name of defendant after the purchase of the suit property.
IV. It is also stated that the defendant is the exclusive and lawful owner of the suit property since he had paid the entire sale consideration from his own funds and the Plaintiff has no locus to file the present suit qua suit property and the plaintiff has no right or interest in the suit property.
V. The Defendant also stated that no legal notice dated 18.08.2011 was served upon him or received by him.
VI. It is also stated in WS that the Defendant is not liable to pay damages or mesne profit, as claimed in the plaint, to the plaintiff in any manner whatsoever.
VII. It is also stated that the suit filed by the plaintiff is not maintainable against the defendant and the Plaintiff is not entitled for the relief of partition qua the suit property and the present suit is liable to be dismissed.
4. Replication to the written statement was filed on behalf Plaintiff thereby denying the averments of the Written statement. It is stated by the Plaintiff in the replication that it is the Plaintiff only who paid the entire purchase amount of the suit property to the vendor and as the defendant had been working as an employee with the firm being run by the plaintiff's father and being cousin uncle, the name of the defendant was added in the sale documents with the plaintiff at the time of purchase of the suit property. The Plaintiff specifically denied the averment of defendant that the suit property was purchased by the defendant of his own funds and there was no contribution by the plaintiff in purchase of the suit property and therefore, the suit property belongs to the defendant. The plaintiff re-affirmed the averments of the plaint.
5. Pleadings in the present matter was completed and on 13.09.2013 following CS No. 2252/16 Page 5 of 28 issues were framed in the present case which are as under:-
i. Is the plaintiff entitled to a preliminary decree of partition declaring the half share of plaintiff in the property with roof rights of second floor of flat no.114, Rishabh Vihar, Delhi- 110092? OPP ii. Is the plaintiff entitled to a decree in the sum of Rs.45,000/- towards damages for the period 15.09.2011 to 14.12.2011? OPP iii. Is the suit correctly valued for the purpose of court fee and jurisdiction? OPD iv. Is the defendant the exclusive owner of the suit property, as claimed? OPD v. Relief.
6. Plaintiff to prove his case examined three witnesses i.e. PW-1 to PW-3 and they deposed as follows which is as under :-
I. PW-1 plaintiff himself. On 28.01.2015 PW-1 tendered his evidence by way of affidavit as exhibited as Ex.PW1/A and also relied on following documents i.e. (1) Ex.PW1/1- An agreement to sell dated 22.03.2000, (2) Ex.PW1/2- GPA dated 22.03.2000, (3) Ex.PW1/3-
Receipt dated 22.03.2000, (4) Ex.PW1/4- Affidavit dated 22.03.2000, (5) Ex.PW1/5- Possession letter dated 22.03.2000, (6) Ex.PW1/6- legal notice and (7) Ex.PW1/7- Postal receipt and (8) Ex.PW1/8- Acknowledgement cards. PW-1 deposed on the line of contents of the plaint. PW-1 was cross examined by the Ld. Counsel for defendant at length on 16.10.2019, 18.12.2019 and 11.03.2020.
II. PW-1 in cross examination deposed that he is one of the partner of the M/s Uppal Book Store. He denied the suggestion that at the time of purchase of property in the year 2000, he did not have sufficient income to pay the sale consideration of the suit property. He denied the suggestion that he had not paid the sale consideration towards the CS No. 2252/16 Page 6 of 28 purchase of the suit property. He deposed that at the time of purchase of the suit property, he was working with his father as a worker in Uppal Book Store. He deposed that he was aware that a directory of publishers is released by Delhi State Book Seller and Publisher Association. He denied the suggestion that the particulars mentioned in the directory at page no179 were published on the basis of information provided by Uppal Book Store. He admitted the suggestion that he had not mentioned about the payment of consideration towards the purchase of the suit property by him in the plaint which had been stated by him in para no.4 of his affidavit in evidence. He deposed that he had not purchased any other property along with defendant except the suit property. He denied the suggestion that he had purchased one more property along with defendant i.e. H.No..24, Pandit Park, Kondli, Krishna Nagar, Delhi or that the defendant had paid the sale consideration towards the purchase of the property at Pandit Park. He further denied the suggestion that defendant was in possession of the suit property since the date of its purchase. He voluntarily deposed that the constructive possession of the suit property was handed over to him by the seller. He deposed that defendant was in possession of the suit property since 2005 as the defendant made a request to occupy the suit property as his house was in dilapidated condition. He admitted the suggestion that he had not mentioned the factum of request made by the defendant to reside in the suit property in the plaint. He admitted the suggestion that the water and electricity at the suit property were in the name of defendant. He denied the suggestion that the defendant is in possession of the suit property since the date of its purchase as it was purchased by the defendant for himself by paying the entire sale consideration. He further denied the suggestion that he was not financially capable at the time of purchase of suit property to pay the sales consideration or that he had not paid the sale consideration towards the purchase of the suit property. He deposed CS No. 2252/16 Page 7 of 28 that he was paying the house tax of the suit property from the date of its purchase. He denied the suggestion that the defendant had made a payment of Rs.4,00,000/- by cheque for the purchase of property bearing H.No.24, Pandit Park, Kondli, Krishna Nagar, Delhi. He denied the suggestion that the suit property had been purchased by the defendant out of his funds and savings. He further denied the suggestion that the erstwhile owners of the suit property had handed over the possession of the suit property to the defendant. He denied the suggestion that he had no share in the suit property and the present suit had been filed with the oblique motive of extracting money from the defendant.
III. PW-2 Sh. Ajay Uppal. On 20.07.2022 PW-2 tendered his evidence by way of affidavit as exhibited as Ex.PW2/A. PW-2 was cross examined by the Ld. Counsel for defendant on 20.02.2023.
IV. PW-2 in cross examination deposed that he had not brought any document to show that the defendant was an employee of the firm. He denied the suggestion that defendant was a partner in the firm. He deposed that at the time of purchase of suit property, the plaintiff was about 17-18 years. He denied the suggestion that plaintiff was not having any income at the time of purchase of the said property. He denied the suggestion that defendant put the name of plaintiff in the title documents of suit property out of love and affection. He deposed that the sale consideration for purchase of suit property was paid in cash. He voluntarily deposed that the sale consideration was paid in his presence. He denied the suggestion that the house in Janta Gali, Gandhi Nagar, was in a habitable condition and it was not dilapidated. He further denied the suggestion that defendant did not approach the plaintiff in 2005 seeking permission to allow him to reside in the suit property.
CS No. 2252/16 Page 8 of 28V. PW-3 Sh. Vidhyawani Uppal. On 20.07.2022, PW-3 tendered his evidence by way of affidavit as exhibited as Ex.PW3/A. PW-3 was cross examined by the Ld. Counsel for the defendant on 20.02.2023.
VI. PW-3 in cross examination deposed that firm being run by Sh.
Bhimsain Uppal & Sh. Rajpal Uppal along with Sh. Shadi Lal is Uppal Trading Company. He again deposed that Uppal Book Store. He denied the suggestion that defendant was a partner in the said firm. He deposed that as the family member of the defendant ousted the defendant and the defendant came to the family member of the plaintiff and as such, the defendant got employed in the said firm. He deposed that defendant was working in the firm after passing out his matriculation. He denied the suggestion that defendant was a self- employed and self-dependent and he earned his livelihood by working hard or that due to his hard work, the defendant was made a partner in the firm. He denied the suggestion that the entire sale consideration for purchase of suit property was paid by defendant. He denied the suggestion that the plaintiff did not pay the sale consideration as he was not financially sound. He denied the suggestion that deponent or his family members did not spend any amount for purchasing the suit property. He denied the suggestion that he had no personal knowledge about the payment of sale consideration or the transaction of purchase of the suit property.
7. On 20.02.2023 plaintiff evidence was closed and a separate statement of the plaintiff was recorded to this effect and the matter was listed for defendant evidence.
8. The Defendant in his defence has examined following two witness which are as under:-
CS No. 2252/16 Page 9 of 28I. DW-1 defendant himself. On 10.05.2023 DW-1 tendered his evidence by way of affidavit as exhibited as Ex.DW1/A and also relied on document i.e. (1) Mark A (Colly.) (4 pages)- Copy of electricity and water bills in his name.
II. DW-1 was cross examined by the Ld. Counsel for plaintiff on 10.05.2023 wherein he admitted the suggestion that the ownership papers of the suit property has been filed by the plaintiff on court record. He admitted the suggestion that he had not filed any documents on court record to show that he purchased the property from on his own funds. He admitted the suggestion that as and when any person became partner in any of the firm, some documents are to be executed as partnership deed. He denied the suggestion that directory of Publishers Association did not show or depict that he was partner in the firm. He deposed that he had not filed on record any document to show that he purchased the suit property from his own funds. He deposed that he had also not filed any document on court record to show that suit property belonged to the defendant exclusively. He denied the suggestion that he was employee in firm M/s Uppal Book Store. He denied the suggestion that he was on salary basis in M/S Uppal Book Store. He further denied the suggestion that in M/S Uppal Book store. He also denied the suggestion that in M/s Uppal Book Store, Sh. Shadi Lal Uppla, Smt. Sudharshan Kumari Uppal and Sh.
Rajpal Uppal were the partners since beginning. He deposed that except for four documents i.e. two electricity bills and two water bills Mark A(Colly.), he had no document to show that he was in possession of the suit property between the period from 2000 to 2005. He denied the suggestion that Sh. T.S. Lamba and Naresh Narang had handed over possession to him. He further denied the suggestion that Sh. T.S. Lamba and Naresh Narang in fact had handed over the possession to Sh. Anil Uppal Since the entire consideration was paid only by Sh.
CS No. 2252/16 Page 10 of 28Anil Uppal. He denied the suggestion that he had requested Sh. Anil Uppal to say in the suit property in the year 2005 for sometime as he was residing at Gandhi Nagar, Delhi and the property where he was residing was in dilapidated condition and required renovation. He deposed that he had not received any legal notice from the plaintiff before filing the instant suit.
III. DW-2 Sh. Sanotsh Dhall. On 20.09.2023, DW-2 tendered his evidence by way of affidavit as exhibited as Ex.DW2/A. DW-1 was cross examined by the Ld. Counsel for plaintiff on the same day.
IV. DW-2 cross examined by Ld. Counsel for the plaintiff wherein he deposed that Sh. Rakesh Uppal had filed paper with respect to show that he was the partner of M/s Uppal Book Store. He admitted the suggestion that no partnership deed was put on record by the defendant to show that he was in the partner of M/s Uppal Book Store. He deposed that he had not seen the ownership papers of the suit property. He denied the suggestion that Sh. Rakesh Uppal was the partner in the M/s Uppal Book store. He deposed that he had not seen any paper with respect to property bearing no.24, Pandit Park, Krishna Nagar, Delhi. He admitted the suggestion that he was not present at the time of execution of the documents in respect of the suit property at the time of purchase. He deposed that the suit property was purchased in the year 1902. He further deposed that Sh. Rakesh Uppal came in occupation of the suit property in the year 1902. He denied the suggestion that Sh. Rakesh Uppal came in the suit property in the year 2005 after five years from the purchasing of the same.
9. On 20.09.2023, Defendant's evidence was closed. Matter was listed for final arguments on 23.09.2023.
CS No. 2252/16 Page 11 of 2810. On 23.09.2023, 11.10.2023, 16.10.2023, 21.10.2023 & 25.10.2023 final arguments were heard.
11. Arguments addressed on behalf of the plaintiff I. During the course of the arguments, Ld. Counsel for the Plaintiff submits that the suit property was purchased by the Plaintiff out of his own funds from one Sh. T.S. Lamba and Sh. Naresh Narang vide agreement to sale dated 22 February 2000. It is also submitted by the learned Counsel for the Plaintiff that the suit property was purchase in the name of Plaintiff and defendant as the defendant was related to the Plaintiff and after the purchase of the suit property, Plaintiff allowed the defendant to use the said property for his residence.
II. It is also argued that the actual, physical and vacant possession of the suit property was delivered to the Plaintiff and defendant by the erstwhile owners in part performance of the agreement to sell as the entire payment was made to the vendors/sellers. It is further argued that Plaintiffs being co-share in the suit property has one half undivided share in the suit property and the Plaintiff is in constructive possession of the suit property being one of the owners.
III. It is further argued that Plaintiffs had asked the defendant to partition the suit property by metes and bounds but despite the request of the Plaintiff, the defendant avoided the request of the Plaintiff and did not partition the suit property. It is further stated that the Plaintiff do not want to keep the property joint with the defendant and want to have partition the suit property and separate distinct share in the suit property from the defendant.
IV. It is further argued that the Plaintiffs served a legal notice dated CS No. 2252/16 Page 12 of 28 18.08.2011 upon the defendant calling upon defendant to partition the suit property by metes and bounds within 15 days from the receipt of the legal notice. It is also argued that the said notice was duly delivered to the defendant but even thereafter neither the defendant replied the said legal notice nor did the defendant partitioned the suit property by metes and bounds.
V. It is also submitted on behalf of Plaintiff that after receipt of legal notice, the defendant started threatening the Plaintiff that in case the Plaintiff pressurized the defendant to partitioned the property, defendant will create 3rd party right or interest or alienate or transfer the suit property to some other person. It is further submitted that defendant has no right to transfer, alienate or create 3 rd party right in the suit property as the suit property is jointly owned by the Plaintiff and defendant.
VI. It is further submitted that the defendant is occupying the said flat as licensee of half portion of the suit property and vide legal notice dated 18-8-2011, the Plaintiff has revoked the status of licensee of the defendant and asked the defendant to partition the suit property failing which the defendant shall be liable to pay ₹ 15,000 per month to the Plaintiff as damages/mesne profits as the suit property could easily fetch at least ₹ 30,000 per month rent on the date when the legal notice was served upon the defendant.
VII. It is further argued that suit property is liable to be partition among the Plaintiff and defendant in equal share and the defendant is further liable pay ₹ 15,000 per month as mesne profits from the date of institution of the present suit till the date the Plaintiff gets the separate possession of the half portion of the suit property. It is further argued that defendant is also liable to pay ₹ 45,000 as damages for the period CS No. 2252/16 Page 13 of 28 from 15-09-2011 to 14-12-2011, to the plaintiff.
VIII. It is also argued by the learned counsel for the Plaintiff that the defendant has taken the ground/defence to defend the present suit that the entire sale consideration amount of the suit property was paid by the defendant and therefore, the defendant is the exclusive and lawful owner of the suit property and the Plaintiff has no right or title in the suit property in any manner whatsoever or locus to file the present suit.
IX. It is also argued by the learned counsel for Plaintiff that the Plaintiff has specifically refuted the averment of the defendant in the replication and further stated that the Plaintiff has specifically stated in the replication that the suit property was purchased by the Plaintiff out of his own funds.
X. It is further argued by the learned counsel for the Plaintiff that the replication is the part of pleading and the averments made in the replication shall be construed as part of pleadings on behalf of Plaintiff.
XI. It is further argued by the Ld. Counsel for the plaintiff that the Plaintiff has proved his case by preponderance of probabilities and the suit of the plaintiff is liable to be decreed.
XII. The Plaintiff in support of his arguments relied upon the following authorities which are as under:-
i. Union of India & Anr. v. Rashid M.H. Jung- R.F.A. No. 794/2017 decided on dated 18/09/2017 passed by the Hon'ble High Court of Delhi.
ii. M/s Anant Constructions (P) Ltd. v. Shri Ram Niwas-
1994 IV AD (Delhi) 185.CS No. 2252/16 Page 14 of 28
iii. K.S. Ranganatha v. Vittal Setty- Criminal Appeal No. 1860 of 2011 decided on dated 08/12/2021 passed by the Hon'ble Supreme Court of India.
12. Arguments addressed on behalf of the Defendant I. On the other side, the Ld. Counsel for defendant submitted that the suit property was purchased by the defendant out of his own funds in the name of Plaintiff and defendant, on an oral understanding that Plaintiff shall have no right or interest in the suit property and the plaintiff shall not claim any right in the suit property.
II. It is further argued that the Plaintiff has not mentioned in the plaint that Plaintiff has made the part or whole sale consideration amount for purchasing the suit property and the said stand is only taken in the replication by the Plaintiff. It is further argued that a new stand/averment cannot be introduced in replication and therefore, the stand taken by the Plaintiffs in the replication cannot be considered as pleading.
III. It is further argued by the learned counsel for the defendant that the suit property is not liable to be partition among the Plaintiff and defendant as the Plaintiff has no right or interest in the suit property because the entire sale consideration amount for purchasing the suit property was paid by the defendant out of his own funds.
IV. It is further argued that defendant is not liable to pay mesne profits to the Plaintiff, as claimed, in any manner whatsoever.
V. It is further argued that no issue "whether the Plaintiff is entitled for recovery of mesne profits, as claimed, against the defendant?" was CS No. 2252/16 Page 15 of 28 framed in the present suit and therefore, the same cannot be adjudicated or granted to the Plaintiff, without framing an additional issue in this regard. It is further argued that the present matter is at final arguments stage and framing of additional issue at this juncture would amount to re-opening the trial of the present suit.
VI. It is further argued that the suit of the plaintiff be dismissed being not maintainable and without any merits.
VII. The Defendant in support of his arguments relied upon the following judgment which are as under:-
i. Sukhwant Kaur v. Santosh Singh & Ors.- Cr. 6777/2016 (O&M) dated of decision: 16.04.2018 passed by the Hon'ble High Court of Punjab and Haryana at Chandigarh.
ii. Mishri Lal Gupta v. Tulsiram Gupta- 2014 SCC online Raj 584.
iii. Shambhu Dayal Khetan and Ors. V Motilal Murarka and Ors.- AIR 1980 Patna 106.
13. Appreciation of evidence as well as adjudication Issues wise:-
I. Issue no (iii): Is the suit correctly valued for the purpose of court fee and jurisdiction? OPD, is taken up first to adjudicate
i) The onus to prove the above-said issue is upon the Defendant. No evidence has been led by the Defendant to prove the present issue and therefore, the present issue is decided against the Defendant and in favour of the Plaintiff.
I. As the Issue no. (i) [Is the plaintiff entitled to a preliminary decree of partition declaring the half share of plaintiff in the property with roof rights of second floor of flat no.114, Rishabh Vihar, Delhi- 110092?
CS No. 2252/16 Page 16 of 28OPP] AND Issue No. (iv) [Is the defendant the exclusive owner of the suit property, as claimed? OPD] are connected with each other, they are taken up together.
i) It is admitted fact that the suit property was purchased on 22-02-2000 by Sh. T.S. Lamba and Sh. Naresh Narang for a sale consideration of Rs. 2,20,000/- in the name of Plaintiff and Defendant vide Agreement to Sell, General Power of Attorney, Affidavit, Possession Letter and Receipt all dated 22-02-2000. The execution of the above-said documents which are Ex. PW-1/1 to PW-1/5 respectively are not disputed.
ii) The contention of the Defendant is that the entire sale consideration amount was paid by the Defendant out of his own funds and therefore, the Defendant is the exclusive owner of the suit property and in this regard Issue no. (iv) "Is the Defendant the exclusive owner of the suit property, as claimed? OPD" was also framed on 13/09/2013. If the present issue is decided in favour of the Defendant against the Plaintiff, then the entire suit of the plaintiff shall fall and the Plaintiff shall not be entitled for any relief as claimed in the plaint. And if the said Issue is decided against the Defendant, then the Plaintiff shall be entitled for partition of the suit property, as claimed in the plaint.
iii) Section 102 of the Indian Evidence Act, 1872 says - On whom burden of proof lies - The burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side. Illustration:-
(a) ..............................
(b) A sues B for money due on a bond.
The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies.
CS No. 2252/16 Page 17 of 28If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved.
Therefore the burden of proof is on B.
i) In view of this Court, the burden of proof is upon the defendant to prove the fact averred, by preponderance of probabilities, that the entire sale consideration amount to purchase the suit property was paid by the Defendant and therefore, the Defendant is the exclusive owner of the suit property and the Plaintiff has no right, title or interest in the suit property.
ii) The Defendant to prove the fact stated has crossed-examined the PW-1 to PW-3 as well as led Defendant evidence by stepping into the witness box as DW-1 and also by examining her sister as DW-2.
iii) Admittedly the sale documents of the suit property Exh. PW-1/1 to PW-1/5 are in the joint name of Plaintiff and Defendant. It can be assumed that the sale consideration to purchase the suit property was jointly paid by the Plaintiff and Defendant unless contrary is proved that the sale consideration was only paid by the Defendant. As per Receipt Ex. PW-1/5 the sale consideration amount of Rs. 2,00,000/- (Rupees Two Lakh only) was paid in cash.
iv) From the cross-examination of PW-1 to PW-3, nothing material has come out to prove the fact averred by the Defendant. The Defendant as DW-1 in his Evidence affidavit Ex. DW-1/A depose to prove his financial capacity that at the time of purchase of suit property, Defendant was a partner in Uppal Book Store. The Defendant relied upon the copy of Directory of Delhi State Book Sellers and Publishers Association as published in the year 2010 which is marked as Mark D-1.
CS No. 2252/16 Page 18 of 28v) The Defendant has not produced any Partnership deed on record to prove the fact that Defendant was partner in M/s Uppal Book Store at the relevant time when the property in question was purchased. The fact that the Defendant was partner in M/s Uppal Book Store can only be proved by producing the Partnership Deed and not by producing the copy of directory of Delhi State Book Sellers and Publishers Association i.e. Mark- D-1. Moreover, the Defendant has also not proved the document Mark-D-1 in accordance with law and therefore, the said document cannot be relied upon and no inference can be drawn from the said document.
vi) The Defendant has not produced the Partnership Deed to show that the Defendant was the partner in M/s Uppal Book Store. No sales tax or income tax return is filed to show that the Defendant was the partner in M/s Uppal Book Store. The Defendant also not filed any documentary evidence to prove that Defendant was having sufficient funds or financially capable to purchase the suit property at the relevant time, out if his own funds. The Defendant also not produced any documentary proof to show that the Defendant purchased the suit property out of his own funds. Non-production of documentary proof to prove the stand of the Defendant is also admitted by DW- 1/Defendant during his cross-examination.
vii) The Defendant has also not examined Sh. T.S. Lamba and Sh. Naresh Kumar Narang, from whom the Plaintiff and Defendant purchased the suit property, to prove that the entire sale consideration was paid by the Defendant and no contribution was made by the Plaintiff. The Defendant also failed to examine Mr. Lokesh, witness to the documents Ex. PW-1/1 to PW-1/5, to prove the stand of the Defendant. The Defendant also not examined any person to prove that the entire sale consideration was paid by the Defendant to Sh. T.S. CS No. 2252/16 Page 19 of 28 Lamba and Sh. Naresh Kumar Narang, out of his own funds or in presence of that person.
viii) The Defendant also examined DW-2 Ms. Santosh Dhall, real sister of Defendant, in support of his defence. DW-2 in her Evidence Affidavit Ex. DW-2/A does not depose that the entire sale consideration of the suit property was paid by the Defendant to Sh. T.S. Lamba and Sh. Naresh Kumar Narang in her presence. Moreover, during her cross- examination, DW-2 admits that she was not present at the time of execution of the documents in respect of the suit property at the time of purchase. DW-2 further admits that the suit property is in the name of two persons. The testimony of DW-2 is not helpful for the Defendant to prove his stand.
ix) The Defendant also stated that the Defendant has purchased another property bearing no. H. No. 24, Pandit Park, Kondli, Krishna Nagar, Delhi with the Plaintiff in the joint name of Plaintiff and Defendant and entire sale consideration of the said property was also paid by the Defendant. No documentary proof has been produced by the Defendant to prove the said stand also.
x) The originals of Ex. PW-1/1 to PW-1/5 are produced by the Plaintiff during trial which is also admitted by DW-1/Defendant during his cross-examination conducted on 10/05/2023. The Defendant never took a stand that the sale documents Ex. PW-1/1 to PW-1/5 was handed over to the Defendant at the time of purchase of the suit property or the originals of the same was in possession of the Defendant and the same was taken away by the Plaintiff or was kept by the Plaintiff in good faith. No probable man would hand over the sale documents of the property to any other person without any reason, if the same has been purchased by him out of his own fund.
CS No. 2252/16 Page 20 of 28xi) In view of the above-observations, this Court finds that the Defendant has failed to prove by adducing probable and convincing evidence the stand that the entire sale consideration for purchasing the suit property was paid by the Defendant out of his own funds.
xii) Plaintiff in his replication also took a stand that entire sale consideration was paid by the Plaintiff but the Plaintiff has also failed to prove by adducing probable evidence the fact that the entire sale consideration for purchasing the suit property was paid by the Plaintiff out of his own funds.
xiii) In view of the above-observations, this Court conclude that no probable evidence has been led by either party to prove that the entire sale consideration was paid by either of them, though the sale documents Ex. PW-1/1 to PW-1/5 are not disputed. The burden was upon the Defendant which he failed to discharge and therefore, the Issue No. (iv) is decided against the Defendant and in favour of the Plaintiff.
xiv) As the Issue no. (iv) is decided against the Defendant and in favour of the Plaintiff and the sale documents Ex. PW-1/1 to PW-1/5 are admitted in the name of the Plaintiff and Defendant, it is concluded that the Plaintiff and Defendant are joint owners of the suit property on the basis of the sale documents Ex. PW-1/1 to PW-1/5 and therefore, the Plaintiff and Defendant are entitled for 1/2th (one-half) share each in the suit property. The Issue No. (i) is decided in favour of the Plaintiff and against the Defendant.
xv) This Court held that the Plaintiff and Defendant are entitled to a preliminary decree of partition declaring one half share each of the Plaintiff and defendant in the property with roof rights of Second Floor CS No. 2252/16 Page 21 of 28 of Flat No. 114, Rishabh Vihar, Delhi- 110092.
xvi) Accordingly, Preliminary Deree of partition is passed in favour of the Plaintiff and against the Defendant with respect to the property/Flat bearing No. 114, Second Floor, Rishabh Vihar, Delhi- 110092 with roof rights in which the Plaintiff shall have an undivided share of 1/2th (50%) and the Defendant shall have an undivided share of 1/2th (50%).
14. Regarding Issue No. (ii): Is the Plaintiff entitled to a decree in the sum of Rs. 45,000/- towards damages for the period 15 th September, 2011 to 14th December, 2011? OPP
i) The Plaintiff has also prayed for the passing of a preliminary decree of future damages/ mesne profit @ Rs. 15,000/- per month or any other sum which this Court determines after enquiry, from the date of filing of the suit till date of delivery of possession of half property to the Plaintiff.
ii) The Ld. Counsel for the Plaintiff argued that the Plaintiff is entitled for damages claimed as well as future damages/ mesne profits @ Rs. 15,000/- per month against the Defendant. It is further argued by the Ld. Counsel for the Plaintiff that the Plaintiff has claimed the relief of future damages/ mesne profits against the Defendant in the plaint and even if no issue in this regard is framed at the time of framing of issues then also, this Court is not powerless to frame issue i.e. "Is the Plaintiff is entitled for decree of damages/ mesne profits @ Rs. 15,000/- per month against the Defendant from the date of institution of suit till the date of handing over of possession of one-half portion of the suit property", at the stage. It is further argued that the Plaintiff has already led his evidence to prove the fact that the rent of property CS No. 2252/16 Page 22 of 28 similar to the suit property in the vicinity can easily fetch rent of Rs. 30,000/- per month and accordingly the Plaintiff is entitled for Rs. 15,000/- as damages/ mesne profits against the defendant. It is further submitted that the Defendant has not cross-examined the PW-1 on this aspect and therefore, the testimony of PW-1 goes unrebutted on this aspect.
iii) The Defendant argued that no issue with regard to future mesne has been framed by the Court in the present suit and therefore, the same cannot be granted at this stage. The Ld. Counsel for the Defendant also argued that the present suit was filed on 11/01/2012 and the matter has reached to the stage of final arguments and therefore, this Court shall not frame the additional issue at this stage after about 11 years and if this Court frames the additional issue then this would amount to re- opening of trial. Defendant relied upon the following authorities in support of his arguments which are as under:-
a. Sukhwant Kaur v. Santosh Singh & Ors.- Cr. 6777/2016 (O&M) dated of decision: 16.04.2018 passed by the Hon'ble High Court of Punjab and Haryana at Chandigarh.
b. Mishri Lal Gupta v. Tulsiram Gupta- 2014 SCC online Raj 584.
i) The Defendant further argued that one co-owner cannot claim mesne profit against the other co-owner, if the same is being used by the co-
owner for his own personal use. The Defendant in support of his arguments relied upon the authority passed in Shambhu Dayal Khetan and Ors. V Motilal Murarka and Ors.- AIR 1980 Patna
106.
ii) The Hon'ble High Court of Delhi in Sita Kashyap and Anr. v.
Harbans Kashyap and Ors.- 2011 (123) DRJ 52 in a suit for partition amongst co-owners held that "In my view, since it is the bounden duty CS No. 2252/16 Page 23 of 28 of the Court to direct appropriate division/ apportionment not only of the common immovable property but also of the profits earned/ mesne profits which accrues from that immovable property, even if no application for grant of profits is pending at the time when the final decree is passed, would not be material when suit continues to be pending before Court for one reason or the other."
iii) In B. Basavayya V.B. Guravayya v. B. Guravayya, (C.R.P. No. 1695/1948) AIR 1951 Madras 938: (24) SCC 669 the Full Bench of Hon'ble High Court of Madras held that "A tenant-in-common who files a suit for partition seeks a partition not only of his share of the properties forming the subject matter of the suit, but also of his share of the profits accruing from these properties during the pendency of the suit or till he is put in possession of his share." It is also held by the Full Bench that "The profits accruing from the common properties pending a suit for partition, like the properties themselves, are liable to be partitioned under the final decree even without a specific prayer in the plaint for account of such profits and a division thereof. The right to an account of such profits is implicit in the right to a share in the common properties and both rights have to be worked out and provided for in the final decree for partition."
iv) In Ramaswami Iyer v. Subramania Iyer, 43 M.L.J 408, Sadasiva Aiyar J., (with whom Napier, J., agreed) referred to the decision of Judicial Committee in Pirthipal and Uman Parchad v. Javahersingh, 14 Cal 493 (Privy Council) and observed as follow: "As stated by their Lordships a sharer has a 'clear right' to an account of the profits received by the person in possession of the whole and to be awarded his share thereof, not as profits received by a person in wrongful possession but as appurtenant to the plaintiff's right in his share of the lands."
CS No. 2252/16 Page 24 of 28v) The similar view was taken by the Hon'ble High Court of Delhi in "Dr. Pradnya Nagar & Anr. versus Sh. Rohit Nagar & Ors.", 2015 SCC Online Del 12340.
vi) In view of the above-judgment, there is no need to frame an additional issue in the present case. The Plaintiff has claimed the relief of future mesne profits against the Defendant in the plaint. The Authorities relied upon by the Defendant cannot be considered as the same are on different facts and circumstance.
vii) It is submitted that the suit property was purchased on 22.02.2000 in the name of plaintiff and defendant. The plaintiff before filing of the present suit has served a legal noticed dated 18.08.2011 upon the defendant thereby calling him to partition of the suit property by meets and bounds within 15 days of the receipt of the said legal notice. It is also mentioned in the legal notice Ex.PW1/6 that the defendant shall be liable for damages on account of use and occupation of the entire flat including undivided ½ share of plaintiff to the tune of Rs.15,000/- per month, if defendant fails to comply with the said notice. The plaintiff also demanded damages/mesne profit @ Rs.15,000/- per month from defendant after expiry of 15 days of the receipt of the notice till the partition is affected between the plaintiff and defendant. The said notice was served to the defendant. The said notice was sent to the defendant through registered post receipt of Regd. Post is Ex.PW1/7A and acknowledgment card is Ex.PW1/8.
viii) The defendant denied the receipt of the said notice in his written statement though during cross-examination DW-1 (on 10.05.2023) deposed that "I do not remember if I had received any legal notice from the plaintiff before filing the instant suit".
CS No. 2252/16 Page 25 of 28ix) The defendant during cross-examination of PW-1/plaintiff has not put a single question to PW-1 that PW-1 has not sent the said legal notice to defendant. Moreover, the address mentioned on the legal notice Ex.PW1/6, receipt Ex.PW1/7 and acknowledgment card Ex.PW1/8 is of the suit property where the defendant is residing.
x) As per Section 27 of the General Clauses Act and in the above-
mentioned facts and circumstances, it can be presumed that the legal notice dated 18.08.2011 was duly delivered upon/received by the defendant. Even though the summon of the present suit is itself a notice to the defendant.
xi) The defendant even after getting the notice demanding division of the suit property, the defendant did not agree to partition the suit property and enjoined, used and occupied the entire suit property thereby denying the plaintiff to enjoy, use and occupy his one half portion/share in the suit property which he is entitled for, therefore the defendant is liable to pay damage/mesne profit to the plaintiff.
xii) In view of the facts and circumstances of the present case, considering the above-mentioned judgment and also considering the fact that the Plaintiff is entitled for preliminary decree of partition in the suit property and have one-half undivided share in the suit property, therefore, this Court held that the Plaintiff is also entitled for decree of damages for the period from 15th September, 2011 to 14th December, 2011 and also decree of mesne profit including pendent-alite as well as future, against the Defendant till the date of delivery of the possession of one-half share/ portion of the suit property to the Plaintiff.
xiii) In view of the above observations, the Issue no. (ii) is decided in favour of the Plaintiff and against the Defendant.
CS No. 2252/16 Page 26 of 2814. This Court deem fit to conduct further inquiry under Order XX Rule 18 of the Code of Civil Procedure, 1908 for ascertainment of mesne profits for use and occupation of the suit property by the Defendant during the pendency of suit till the date of handing over possession of one-half share of the Plaintiff in the suit property. This Court also deem fit to ascertain the quantum of damages for the period from 15 th September, 2011 to 14th December, 2011 which the Plaintiff is entitled for against the defendant during the inquiry under Order XX Rule 18 of the Code of Civil Procedure, 1908.
15. As preliminary decree for partition in respect to suit property is passed in the present matter, therefore matter be listed for inquiry under Order XX Rule 18 CPC for conducting inquiry with regard to division of the shares of the plaintiff and defendant by meets and bounds and inquiry under Order XX Rule 18 CPC for ascertaining the quantum of damages/mesne profit for use and occupation of the suit property by the defendant for the period from 15.09.2011 to 14.12.2011 and also for the period of pendencey of the present suit till the date of delivery of handing over of possession of one-half share of the plaintiff in the suit property.
16. A decree of permanent injunction also passed in favour of plaintiff and defendant, his servants, his representatives, his agents, nominee, restraining them from transferring the possession or titled of the suit property i.e. property/Flat bearing No. 114, Second Floor, Rishabh Vihar, Delhi- 110092 with roof rights or dealing with the suit property in any manner.
17. Preliminary decree be accordingly drawn.
CS No. 2252/16 Page 27 of 2818. List this matter for inquiry under Order XX Rule 18 CPC as stated above for 04.01.2024.
Announced in the open Court on 21st day of November, 2023 (Deepanker Mohan) Additional District Judge-04 Shahdara District/KKD Courts/Delhi 21.11.2023 CS No. 2252/16 Page 28 of 28