Delhi District Court
Madhu Sharma vs Laxmi Devi on 25 March, 2025
IN THE COURT OF SH. MOHAMMAD EHTESHAM,
DISTRICT JUDGE -03, SHAHDARA DISTRICT, KARKARDOOMA
COURTS, DELHI
CS NO. 2052/2016
CNR No. DLSH01-003624-2016
Smt. Madhu Sharma
W/o Sh Rajiv Sharma
R/o C-91, A/S-2,
Shalimar Garden Extn.-2,
Sahibabad, Ghaziabad, UP.
..............Plaintiff
Versus
Smt. Laxmi Devi
W/o Sh. Bal Kishan
R/o I-50, Gali no. 10,
Brahampuri, Delhi.
Also at 251/2-C, (Plot no. 17) Block-4,
Shri Ram Nagar, Shahdara, Delhi.
...............Defendant
Date of filing of suit : 25.05.2016
Final arguments heard on : 24.02.2025
Date of pronouncement of Judgment : 25.03.2025
Decision : Preliminary decree
of partition is passed.
CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 1 of 26
Digitally signed by
MOHAMMAD
MOHAMMAD EHTESHAM
EHTESHAM Date: 2025.03.26
12:47:22 +0530
JUDGMENT
1. Present suit has been filed by Plaintiff for Partition, Possession, recovery, permanent & mandatory injunction and for damages against the Defendant.
2. Briefly stated, the facts as averred in the plaint are as under:-
(i). that Plaintiff and Defendant jointly purchased a Plot no.17 bearing Property no. 251/2-C, admeasuring 200 sq. Yards, out of khasra No. 1824/415, in the abadi of Block-4, Shri Ram Nagar, Shahdara Delhi vide registered Sale Deed dated 30.05.12 (hereinafter referred as the said plot); that Plaintiff and Defendant are having 75% and 25% shares respectively in the ownership of said flat; that the aforesaid property was initially a vacant plot and subsequently, the same was got constructed upto the Third floor i.e. 8 Flats and one office/shop at Lower ground Floor were constructed therein (The said plot with construction is hereinafter referred as Constructed Property).
(ii). that out of aforesaid 8 flats, Plaintiff & Defendant have jointly sold 6 Flats therefrom vide Registered Sale Deeds executed on dates viz. 04.04.2014, 01.05.14, 11.11.2014, 10.03.2015, 11.03.15 & 07.05.2015 respectively in favour of their respective vendees/purchasers. Plaintiff alleged that aforesaid consideration amounts were to be distributed, as per the respective ownerships between her and the Defendant, but as per request of Defendant and her CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 2 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:47:28 +0530 promise to refund the same to the Plaintiff, Plaintiff allowed the Defendant to take Rs.3,50,000/- in excess of her share in the same.
(iii). that now, two Flats on the Top Floor and one shop/office at the Lower ground floor is remaining under the Joint ownership of the Plaintiff and the Defendant. (The said two Flats and one shop is now collectively referred as 'Suit property'); that the belongings of Defendant and Plaintiff respectively are lying in the suit property, which are shown in Red & Blue colour in the Site Plan.
(iv). that Defendant is occupying the aforesaid flat portion to the tune of 25% being joint owner thereof and remaining 75% portion/part as a licencee of the plaintiff; that Plaintiff had requested the Defendant several times to remove her belongings from the above mentioned Flat i.e. shown in red colour in the site plan, as the Plaintiff is intending to reside therein i.e. wants to shift therein from her present address, but Defendant did not pay any heed to it on one pretext or the other; that Plaintiff cancelled/terminated/revoked Defendant's licence to occupy the aforesaid portion, shown in red colour in the site plan, by serving a Legal notice dated 03.03.16 upon the Defendant but Defendant failed to remove her belongings from there; that Defendant started threatening Plaintiff by inducting some other person/GUNDA in the Flat portion and to dispose off the same to some other person. Plaintiff further alleged that Defendant refused to return the above mentioned amount of Rs. 3,50,000/- to the Plaintiff.
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EHTESHAM
EHTESHAM Date: 2025.03.26
12:47:32 +0530
(v). that since the Defendant failed to remove her goods and
belongings from the Flat Portion despite request and service of Legal Notice dated 03.03.16, as such, Plaintiff is entitled to recover a sum of Rs. 5,000/- per day (total Rs.10,000/-) from the Defendant for damages, use and occupation of the premises as claimed in the legal notice dt. 03.03.16, which the Plaintiff is claiming w.e.f. 21.05.16 to 23.05.2016 i.e. filing of the present suit; that Defendant is also liable to pay damages @ Rs.5,000/-per day for the use and occupation charges of the Flat portion, shown in red colour in the site plan, from the date of filing the present suit till the delivery of vacant possession of the same to the Plaintiff.
3. Defendant filed written statement, wherein she averred:
(i) that Plaintiff and her husband Shri Rajeev Sharma made family and friendly relations with the family of Defendant & her husband Sh.
Bal Kishan Sharma; that husband of both parties had purchased said plot in partnership and constructed property was raised and both plaintiff and defendant invested equal amount in the said property; that Defendant is residing on the Top Floor of the constructed property and her son is having his office on the shop at ground floor; that Plaintiff in collusion with her husband made forgery with the Defendant and her husband and they have also manipulated the documents of property; that 8 Flats and one L-type shop have been constructed in the suit property and the same are registered in the name of Defendant and Plaintiff and as such, Defendant is having half share in the said property.
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(ii) that Plaintiff and her husband took the Defendant in good faith and they both had sold the 6 flats of the said property and took the Defendant to the Sub-Registrar Office for her signature and all the consideration amount were kept by the Plaintiff and her husband themselves and nothing was given to the Defendant.
(iii) that when Defendant's husband told to the Plaintiff and her husband to clear the account and to give half share of the consideration amount, then Plaintiff and her husband started to linger on the matter and they got some manipulation in the documents of the property and told themselves as the owner of 75% portion of the suit property.
Defendant alleged that when her husband came to know about the said forgery by the Plaintiff and her husband, he became depressed and shocked, due to which the husband of Defendant expired.
(iv). that Plaintiff herself made agreement with the some buyers to sell the flats by keeping the Defendant & her husband in good faith and told that they will give the half amount of consideration to the Defendant but now, the intention of Plaintiff and her husband became dishonest and they want to grab the share of Defendant in the said property and want to cause huge loss to the Defendant. Thus, Plaintiff in collusion with her husband had cheated the Defendant.
(v ) that plaintiff executed Ikrarnama/ Byana with Shri Om Prakash and Plaintiff's husband had received some amount in his handwriting in respect of the same the photocopy of the same is annexed with the written statement which clearly shows that Plaintiff in collusion CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 5 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:47:40 +0530 with her husband had cheated the Defendant with the motive to grab the share of Defendant; that Defendant had lodged a Complaint to PS Mansarover Park, Delhi vide DD no. 63B dated 27.02.2016.
(vi). On Merits, Defendant alleged that the said Property was purchased jointly with equal amount by Plaintiff's husband and Defendant's husband in the name of Plaintiff and Defendant and both had invested equal amount. Thereafter the said property got constructed by both of them with equal amount and Defendant is having half share in the property.
(vii). Defendant denied specifically that the consideration amount were to be distributed as per their respective ownership in the same or but as per request of the Defendant or her promise to refund the same, the Plaintiff allowed the defendant to take Rs. 3,50,000/- in excess of her share in the same. Rather, defendant alleged that Plaintiff and her husband did not give anything from the sale consideration of the aforesaid flats and they told that after selling the aforesaid flats, Plaintiff will give half share of the sale consideration to the defendant but did not give.
(viii). Defendant specifically denied her ownership to the tune of 25% & Plaintiff's ownership to the tune of 75% in the suit property.
Defendant denied that she has received Legal Notice dated 03.03.2016 of the Plaintiff.
(ix ). Defendant denied rest of the allegations made in the plaint and prayed for dismissal of the suit.
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4. Replication was filed by the Plaintiff, wherein she had denied the contents of the written statement and reiterated the averments of the plaint.
5. Vide Order dated 23.08.2017, the following issues were framed in this matter:-
1. Whether the plaintiff is entitled for decree of partition of suit property as claimed in the plaint? OPP.
2. Whether the plaintiff is entitled for decree of possession as claimed in the plaint? OPP.
3. Whether the plaintiff is entitled for decree of the permanent & mandatory injunction as claimed in the plaint? OPP.
4. Whether the plaintiff is entitled for decree of recovery of Rs.
3,50,000/- as claimed in the plaint? OPP.
5. Whether the plaintiff is entitled for decree of damages as claimed in the plaint? OPP.
6. Relief.
6. Plaintiff examined herself as PW-1, who deposed on affidavit Ex. PW1/A in her evidence. PW-1 relied and proved the documents viz Notice dated 03.03.2016 as Ex.PW 1/1; Postal receipts as Ex. PW 1/2 & EX PW 1/3; Copy of sale deed dated 30.05.2012 as Ex. PW 1/4; Photocopy of sale deed dated 04.04.2014 as Ex. PW 1/5; Photocopy of sale deed dated 01.05.2014 as Ex. PW 1/6; Photocopy of sale deed dated 11.11.2014 as Ex. PW 1/7; Photocopy of sale deed CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 7 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:47:48 +0530 dated 11.03.2015 as Ex. PW 1/8; Photocopy of sale deed dated 10.03.2015 as Ex. PW 1/9; Account statement of the plaintiff as Ex. PW 1/10; Site plan as Ex. PW 1/11 and Photocopy of sale deed dated 07.05.2015 as Ex. PW 1/12.
7 (i). Defendant examined herself as DW-1, who deposed on affidavit Ex.DW1/A in her evidence. DW-1 relied and proved the documents viz. copy of the Ikararnama/ Bayana dated 18.03.2013(4 pages) executed by the plaintiff with Shri Om Prakash as Mark-A, (same is already marked as MARK-'DA' on 15.10.2022.); copy of the document showing the receiving of amount from the husband of the Plaintiff is de-marked as Mark-B and the same is marked as Mark-A; the copy of the complaint to P.S: Mansarovar Park, Delhi vide D.D. no.63- B, dated 27.02.2016 is de-exhibited as EX-DW-1/1 and the same is marked as Mark-'B', since the original of the same is not available.
During the course of cross examination, DW-1 has produced her bank passbook of Account No. 38265, maintained with the Punjab National Bank as Ex. DW1/P1 and certified copy of bank statement of Account No. 683010023440 as Ex. DW1/P2. During the cross examination defendant also placed on record photocopy of printout of alleged threatening whatsapp messages by plaintiff to defendant as Mark C. During Cross examination of DW1, Plaintiff also shown the witness copy of bank statement of husband of Plaintiff account no. 0357050022525 maintained with United Bank of India as Mark-PA.
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(ii). Defendant has examined Sh. Deepak Kumar Gupta as DW-2 who has filed his affidavit Ex. DW2/X in evidence.
8. Final arguments heard as addressed by ld. Counsels for both sides. I have carefully gone through the material available on record.
9. Ld. Counsel for plaintiff has argued that Plaintiff and Defendant have jointly purchased the "said Plot" with their respective share of 75% and 25% and constructed property was raised on the same. Ld. Counsel further argued that the sale deed Ex. PW1/4 clearly shows that the Plaintiff and Defendant are the owners of the 75% and 25% shares respectively in the property. Ld. Counsel further argued that the out of the said 8 flats, 6 flats have been jointly sold by the Plaintiff and Defendant to the respective purchasers and the sale consideration amount was received by the Plaintiff and Defendant in the ratio of 75% and 25% respectively which is as per their respective ownership in the constructed property. Ld. Counsel further argued that at the request of the Defendant and with the consent of the Plaintiff, Defendant had received an amount of Rs.3,50,000/- in excess of her share of 25%, which she had promised to refund, however, the Defendant had not refunded the same. Ld. Counsel further argued that two flats and one shop are still in the co-ownership of the Plaintiff and defendant to the tune of 75% and 25% respectively, which are subject matter of the present suit.
10. Ld. Counsel for Defendant argued that the said plot was purchased by the Plaintiff and Defendant jointly by paying equal amount CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 9 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:47:57 +0530 of consideration and both invested equal amount in the constructed property therefore both are having half shares in the constructed property. Ld. Counsel further argued that the Plaintiff sold the six flats and Defendant signed before the Sub registrar office in respect of the sale deeds related to the said six flats in good faith; however, nothing was given to the Defendant and the full consideration in respect of the said six flats were kept by the Plaintiff and her husband. Ld. Counsel further argued that taking undue advantage of good family relations and good faith, Plaintiff has manipulated the documents of the suit property to show herself as owner of 75% and has wrongly shown share of defendant as only 25%. Ld. Counsel for Defendant further argued that plaintiff/Pw1 in her cross examination dated 18.12.2022 was not able to tell even the consideration amount paid in respect of said plot or the amount invested in the construction and replied that she do not remember about the same, therefore plaintiff has failed to prove that she had contributed 75% of consideration amount in the purchase of said plot or that she has invested 75% in the construction.
11. In rebuttal, Ld. Counsel for plaintiff has argued that till date Defendant has not filed any suit for the cancellation of the sale deed Ex. PW1/4, wherein shares of plaintiff and Defendant have been clearly described as 75% and 25% respectively. Ld. Counsel further argued that the Defendant had received the sale consideration of her shares in the said six flats and no complaint was made by the defendant for a long time. Ld. Counsel for Plaintiff refuted the allegation that the total consideration amount of six flats were kept by the Plaintiff. Ld. Counsel CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 10 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:48:01 +0530 further argued that the Defendant has also not filed any suit for recovery of his share in the sale consideration of the said six flats from the plaintiff and for rendition of account, which shows that the said plea is only an afterthought.
My issue wise findings are as under:-
12. Issue no. 1 : Whether the plaintiff is entitled for decree of partition of suit property as claimed in the plaint? OPP;
Issue no. 2: Whether the plaintiff is entitled for decree of possession as claimed in the plaint? OPP.
a). Issue no. 1 and 2 are taken up together to avoid the repetition of facts and discussions. The onus to prove these issues were upon the Plaintiff. Plaintiff entered into Witness Box as PW-1 and reiterated the averments made in plaint. It is an admitted fact that both the parties are co-owners of the suit property. However the main controversy between the parties is about respective share of plaintiff and defendant in the share of constructed property and suit property. Plaintiff case is that she and defendant are respectively owner of 75% and 25% share in the suit property. However the defendant has alleged that defendant is having half share in the said plot.
b). Perusal of copy of registered title document Ex. PW1/4 shows that Plaintiff Smt. Madhu Sharma and Defendant Smt. Laxmi Devi purchased the said Plot from erstwhile owners -Sh. Anil Sethia and Sh. Tarun Mehta and the shares of Plaintiff and Defendant is clearly mentioned therein as 75% and 25% respectively.
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c) Section 91 of the Indian Evidence Act,1872 (herein after referred as "IEA") mandates that "When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents..." Section 92 of the IEA imposes a bar on the admission of any evidence of oral agreement or statement for the purpose of modifying or contradicting the documents proved as per Section 91 of the IEA. Proviso (1) of Section 92 of IEA is attracted to prove any fact which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party want or failure of consideration, or mistake in fact or law.
d) Thus in view of Section 92 of the IEA, it was for the defendant to prove that her defence falls under the proviso of Section 92 of the IEA. Defendant has not disputed execution of the said title document Ex PW1/4; though she has alleged that the plaintiff manipulated the same to show respective shares of plaintiff and defendant as 75% and 25%. However Defendant/DW-1 was rebutted in her cross examination dated 04.01.2023 when she stated that she had not lodged any complaint against the Plaintiff and her husband regarding the cheating committed with her. She further deposed that "I do not CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 12 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:10 +0530 remember about the document which were manipulated by the Plaintiff. I cannot produce the said manipulated documents ." Further when a suggestion was given by ld. Counsel for plaintiff to the DW-1 that since no documents were manipulated by the Plaintiff, as alleged by you, hence you are unable to produce the same, DW-1 replied "I do not remember".
e). The DW2/ Deepak Kumar Gupta in his evidence affidavit Ex. DW2/X stated that he is one of the attesting witness of title document Ex PW1/4 and that Smt Laxmi Devi (defendant) paid a sum of Rs. "35 lacs in cash" to erstwhile owners -Sh. Anil Sethia and Sh.
Tarun Mehta. However perusal of Ex. PW1/4 shows that the said plot was purchased for a consideration of Rs.65 lakhs paid by the Plaintiff and Defendant (vendees) to the sellers (vendors), out of which, Rs.35 lakhs was paid through five cheques as mentioned therein at Page no. 5 and 6 and "Rs.30 lacs was paid in cash". It is observed that the figure of Rs. 35 lacs as stated by DW2 is not matching with the figure of Rs. 30 lacs as mentioned in sale deed Ex PW1/4. In his cross examination DW2 stated that he had not read the contents of Ex.Pw1/4. Further the DW2 in his cross examination admitted that he has come to the court for giving evidence at the instance of the defendant and her son Ashish. Moreover in his cross examination DW2 admitted that he had business terms with Rajeev Sharma (husband of plaintiff) and now he is not on talking terms with Rajeev Sharma for last 20 years. He has not specifically denied that service of legal notice by Sh.Rajeev Sharma to him and his family regarding financial dispute and replied to the same by stating "I do not CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 13 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:48:14 +0530 remember". Thus the testimony of DW2 is not found to be credit worthy and has failed to inspire the confidence of this court.
f). In the cross examination dated 30.01.2023, DW-1 has also deposed that I had been threatened by the Plaintiff through Whatsapp messages. The photocopy of the same is marked as Mark C. I have gone through the Mark C. The same is not supported with certificate under Section 65B of the Indian Evidence Act and hence, the same is not admissible in evidence against the plaintiff. However, it is observed that in the said whatsapp message, Plaintiff has stated her share as 75% and the Defendant has not denied the same therein.
g). As discussed above shares of Plaintiff and Defendant is clearly mentioned in PW1/4 as 75% and 25% respectively. The specific contribution of plaintiff and defendant in consideration amount is not mentioned in Ex. PW1/4. Now it was for the defendant to prove by leading cogent evidence to prove that she has contributed half consideration for the purchase of said plot. However except the oral bald allegation of manipulation by the plaintiff and the above discussed untrustworthy testimony of DW2, defendant has not led any cogent evidence to prove any manipulation, cheating, fraud or that 50% of the consideration was paid by her in respect of the purchase of said plot. Defendant has also not filed any suit for cancellation of the sale deed Ex. PW1/4. Once the execution of Ex. PW1/4 is not disputed by the defendant the inference can be drawn that the consideration has been paid by the plaintiff and defendant as per their share in the said plot which is mentioned in the Ex. PW1/4. Merely because the Plaintiff in CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 14 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:19 +0530 her cross examination failed to state the exact amount of consideration paid by her or the amount invested in the construction of the suit property, it cannot be inferred that Defendant is the owner of 50% of the share of said plot. Thus, it is concluded that Plaintiff and Defendant are respectively owners of 75% and 25% share in the said plot.
h). Defendant has further alleged that she has invested 50% amount in the construction and that 6 flats were sold by the plaintiff and she in good faith executed registered sale deeds in respect of said 6 flats without receiving any share in the consideration. The defendant has alleged she was told that after selling the aforesaid flats, Plaintiff will give half share of the sale consideration to her, but nothing was given.
However Defendant/ DW1 in her cross examination dated 30.01.2024 admitted the following payments in her account as reflected in DW1/P2.
1. Rs. 4 lakhs on 19.04.2014.
2. Rs.6,23,198/- on 09.05.2015.
3. Rs.850,000/- on 15.04.2014.
4. RS.1,50,000/- on 05.10.2014
5. Rs.1,00,000/- on 13.10.2014.
Further when the DW1 was shown document Mark-PA and asked about the transaction dated 02.11.2013 and 15.03.2014 to which DW1 gave an evasive reply by stating that; " I do not remember whether my son namely Ashish alias Rohit have received Rs.2,00,000/- and Rs. 4,00,000/- respectively from the husband of the plaintiff. The reply shows that DW-1 has not categorically denied the payment of the above amounts by the husband of the plaintiff to the son of the defendant.
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i). The Defendant voluntarily explained in her cross examination dated 30.01.2023 that out of the said admitted amount, Rs.4 lakhs received on 19.04.2014 and Rs.6,23,198/- received on 09.05.2015 were spent for paying the labourers who were involved in the construction of the suit property. DW1 also gave similar explanation in respect of the other payments and alleged that out of the payment of Rs. 8,50,000/- dated 15.04.2014, she returned Rs. 4,00,000/- to plaintiff.
It is pertinent to note here that, the above voluntary explanations of the funds received in the account of the defendant are nowhere mentioned in the written statement and are in glaring contradiction to her stand taken in written statement, where she averred that nothing was given to her. Further above payment of Rs.6,23,198/- were paid in the account of defendant on 09.05.2015, which is after the sale of the last flat i.e. 6 th Flat on 07.05.2015 vide registered sale deed Ex. PW1/12. It is highly unbelievable that when said constructed 6 flats were already sold, the payments received in the account of defendant were utilized for payment to the labourers involved in the construction.
j). It is also pertinent to note here that the sale deeds in respect of 6 flats were executed by the plaintiff and defendant in favour of respective vendors on different dates i.e. 04.04.2014, 01.05.2014, 11.11.2014, 11.03.2015, 10.03.2015 and 07.05.2015. It is highly unbelievable that the defendant without receiving her share of consideration went on to execute 6 sale deeds one after another at different dates as mentioned above only in good faith. Further in Ex Pw1/5 dated 04.04.2014 which is the first in time out of the above six CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 16 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:48:28 +0530 sale deeds wherein the said consideration of Rs. 20,00,000/- has been paid through bank transaction by the purchasers Sh.Raj Kumar Walia and Ms. Yogita Walia and wherein Plaintiff and defendants have received respectively Rs. 15,00,000/- and Rs. 5,00,000/- is in the ratio of 75% and 25% of the total sale consideration. The same is also in conformity with the share of the Plaintiff and defendant as stated in their title deed Ex Pw1/4. In respect of the other sale deeds it is not clearly mentioned the respective shares received by the plaintiff and defendant. Ld. Counsel for the defendant in the cross examination of PW-1 dated 14.12.2022 after showing documents/ copy of sale deeds/ Ex. PW1/6 to Ex. PW1/9 had asked that no payment was made to the defendant, to which Plaintiff replied that she does not remember. (Vol. as and when the payment was received, it was shared with the Defendant accordingly). However, it is pertinent to note herein that no written complaint before the competent authority in respect of non payment of share of the Defendant has been placed on record by the Defendant. Further, Defendant has also not filed any suit for recovery of her share and rendition of accounts against the Plaintiff. It is pertinent to note here that in the said cross examination, Ld. Counsel for Defendant after showing the Ex. PW1/5 to the witness /PW-1, had also asked about the amount of Rs.5 lacs paid to the Defendant, which is marked as Mark A to A1, to which, the witness replied that she does not remember. Perusal of Ex. PW1/5 shows that it is mentioned in the details of the payments that Rs.4 lacs vide Demand Draft no. 048965 issued by the Central Bank of India dated 29.03.2014 was paid to the Defendant Smt. CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 17 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:33 +0530 Laxmi Devi Sharma. Further Rs.1,00,000/- vide Cheque no. 165232 dated 22.07.2013 is paid in the account of Smt. Laxmi Devi Sharma/Defendant. The bank statement of the Defendant of Kotak Bank Ex. DW1/P2 shows that said demand draft no.048965 was duly encashed in her account on 19.04.2014. Further, Cheque no. 165232 was also encashed in the account of Defendant on 27.07.2013 in her PNB Account Ex. DW1/P1. The Defendant executed the 6 sale deeds on different dates as discussed above, without any complaint, therefore, it can be concluded that the Defendant had already received her share of consideration in all the sale deeds.
k). Now, coming to the claim of the defendant that she had invested 50% in the construction. The defendant had contended that the entire construction was done by her son Sh. Ashish. In this regard, it is pertinent to note that Plaintiff /PW-1 in her cross examination dated
15.10.2022 deposed that the building material used in the construction of the suit property were supplied from the known person of her husband, who was also engaged in the business of construction. PW-1 denied the suggestion that her husband was not engaged in the business of construction. In contradiction to the above suggestion of Ld. Counsel for defendant, DW-2 Sh. Deepak Kumar Gupta deposed in his cross examination dated 13.02.2023 that I had taken payment in the name of my father and bhabhi in the year 2012 from Sh. Rajeev Sharma (husband of Plaintiff) as he used to purchase iron and other material for the construction of the suit property as I am engaged in the business of the same. Thus, in view of the above deposition of PW1 and DW2, it CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 18 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:37 +0530 can be concluded that husband of plaintiff Sh. Rajeev Sharma was also engaged in the business of construction.
l). DW2 (whose testimony I have already found to be untrustworthy in above discussion) deposed in his evidence affidavit that he supplied building material for a sum of Rs. 20 lakhs at the request of son of the Defendant/Sh. Ashish Sharma. However in his cross examination, DW-2 stated that he has no record of the same. DW-2 further stated that he cannot produce even any rough or personal diary showing the entries of the supply and payment. Thus, except the bald statement of DW-1 and DW-2, there is nothing to support the claim of Defendant that she had invested 50% in construction of the suit property.
m). It is settled law that in civil cases, the standard of proof is 'preponderance of probabilities'. I have already concluded that the Plaintiff and Defendant are respectively the owners of 75% and 25% shares in the said plot and that Defendant has received her share in respect of the said 6 flats. Therefore, the claim of the Defendant cannot be accepted only on the basis of weak testimonies of DW1 and DW2 regarding contribution in the construction of the suit property. Moreover, the Defendant has not filed any counter claim of recovery or rendition of account for her share of consideration in respect the said 6 flats and/or in respect of the contribution in the construction of the suit property.
n). It is pertinent to note here that during the cross examination of PW-1 dated 14.12.2022, Defendant has come up with an entirely new defence by giving suggestion that Defendant is in the CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 19 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:42 +0530 possession of remaining two flats along with one shop on the ground floor after an adjustment was arrived with respect to payment of sale consideration of the six flats. The said suggestion was denied by the PW-1. Further, DW-1 in her cross examination dated 04.01.2023 stated that no amount was paid to her after the selling of the first flat and when she asked for the sale proceeds she was told that 2 flats and one shop on the suit property will be given to her. The plea of the 'adjustment' that Defendant was told that 2 flats and one shop on the suit will be given to her, has not been averred in the written statement and the same is also not mentioned in the evidence affidavit of Defendant/DW1. Further, no written Agreement regarding settlement has been placed on record by the Defendant. Thus the said plea of "adjustment" is also of no help to defendant.
o). Another objection taken by the Defendant is that the Plaintiff has not paid the appropriate court fees as she is not in the possession of the suit property. No such issue was pressed upon by Defendant side at the appropriate stage or later on by moving an appropriate application. As discussed above, it is an admitted fact that Plaintiff and Defendants are the co-owners. It is settled law that in a suit for partition, where a joint possession is pleaded by the Plaintiff on the basis that he is co-owner of the suit property, sought to be partitioned, fixed court fees is to be paid under Article 17 (vi) of the Schedule 2 of the Court Fees Act, 1870 on the presumption of joint possession of the plaintiff, even if the plaintiff is not in actual possession. Equally, it is not necessary that the plaintiffs should be getting a share or some income CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 20 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:46 +0530 from the property. This is because by creating a fiction of law, it is deemed that in case of co- owners, the possession of one in law is the possession of all, unless upon perusal of the averments in the plaint that must be read as a whole, a clear cut case of ouster is made out. Reliance can be placed on 'Krishna Gupta and anr. v. M/s. Rajinder Nath and Co HUF and ors.' (DOD as 11.02.2013) by the Hon'ble High Court of Delhi.
p). Thus in view of above discussions and findings, it is concluded that Plaintiff and Defendants are the co-owners of the suit property with their respective shares of 75% and 25%. Therefore, Plaintiff is entitled for decree of partition and possession being coowner of 75% undivided share in the suit property. Thus Plaintiff has been able to prove Issue no. 1 and 2 in her favour and against the Defendant.
13. Issue no. 3 :Whether the plaintiff is entitled for decree of the permanent & mandatory injunction as claimed in the plaint? OPP.
a). The onus to prove this issue was upon the Plaintiff.
b). In view of my findings on Issues no. 1 and 2, Plaintiff, being co-owner of the 75% undivided share in the suit property, is entitled for decree of permanent and mandatory injunction as prayed for.
Thus, the issue no. 3 is decided in favour of the Plaintiff and against the Defendant.
CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 21 of 26 Digitally signed by MOHAMMADMOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:48:52 +0530
14. Issue no. 4: Whether the plaintiff is entitled for decree of recovery of Rs.3,50,000/- as claimed in the plaint? OPP.
a). The onus to prove this issue was upon the Plaintiff.
b). Both the parties have not produced any statement of account, which were maintained during the construction of the flats on the said plot. There is no material on record to establish conclusively that Defendant had received excess of Rs.3,50,000/- to her share in the consideration of the sale of said 6 flats. Plaintiff has also not led any documentary evidence in this regard. There is no acknowledgement in writing from the defendant that she received excess of Rs.3,50,000/- to her share. In absence of any proper accounting record maintained between the parties and also in view of the fact that it is not clear from the sale deeds- Ex. PW1/6, Ex. PW1/7 and Ex. PW1/8 as to who received what payment of the consideration and how they were subsequently adjusted between the Plaintiff and defendant, this court cannot decide about any inter-se balance excess amount which may or may not have been received by any party.
Thus, this issue is decided against the Plaintiff.
15. Issue no. 5: Whether the plaintiff is entitled for decree of damages as claimed in the plaint? OPP.
a). Plaintiff has also claimed a recovery of damages of Rs.10,000/- for the period of 21.05.2015 to 23.05.2016 and further damages of Rs.5,000/- per day from the defendant for the occupation of CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 22 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:49:10 +0530 the portions as shown in red colour in the site plan till the handing over of the possession of the same to the Plaintiff.
b). Plaintiff has placed on record legal notice dated 03.03.2016/ Ex. PW1/1 and Postal receipts Ex PW1/2 & Ex PW1/3 and proved the same. The Defendant has denied that she had received any such legal notice. Under Section 16 of the IEA the legal notice dated 03.03.2016/ Ex. PW1/1 and Postal receipts Ex PW1/2 & Ex PW1/3 carrying address of the defendant are relevant fact to prove the service of said legal notice to defendant. Further filing of instant suit by the Plaintiff itself can be considered as sufficient notice to the Defendant.
c). 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 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."
d). 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 CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 23 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:49:31 +0530 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."
e). 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."
f). 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.
g). Thus, in view of the above discussion and law, I am of the considered opinion that Plaintiff is also entitled for damages /mesne profits after conducting "further enquiry" under Order XX Rule 18 (2) of the Code of Civil Procedure, 1908 for ascertainment of CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 24 of 26 Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:49:38 +0530 damages/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 75% share of the Plaintiff in the suit property.
Thus, this issue is also decided in favour of Plaintiff and against the Defendant.
RELIEF
16. In view of foregoing discussions, the following reliefs are granted to the Plaintiff and against the Defendant :-
1. A preliminary decree of partition is passed in regard to the suit property i.e. Two Flats on the Top Floor and one shop/office at the Lower Ground Floor in the Plot no.17 bearing Property no. 251/2-C, admeasuring 200 sq. Yards, out of Khasra No. 1824/415, in the abadi of Block-4, Shri Ram Nagar, Shahdara Delhi as shown in respectively in the site plan Ex. PW1/11. The shares of the parties are determined as follows:-
S. No. Parties Share (undivided) 1. Plaintiff/Smt. Madhu Sharma 75% 2. Defendant/smt. Laxmi Devi 25%
Plaintiff and Defendant are entitled for division of their shares as stated above as per their shares in suit property. The parties are now directed to explore possibility of partition by metes and bounds and to come up with memorandum of Understanding if any in that regard.CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 25 of 26 Digitally signed by MOHAMMAD
MOHAMMAD EHTESHAM EHTESHAM Date:
2025.03.26 12:49:44 +0530 In case, situation is such that there is no possibility of division of suit property by metes and bound, further direction for sale of the property and distribution of the proceeds would be resorted to in pursuance of "further direction" as per Order 20 Rule 18(2) CPC.
2. Plaintiff is also entitled for damages /mesne profits against the Defendant (the quantum to be decided at the time of final decree after "further enquiry" under Order 20 Rule 18 (2) CPC).
3. Defendant is restrained from creating third party interest in the suit property till the passing of final decree.
Let a preliminary decree sheet be prepared in the aforesaid terms. No order as to costs.
Now the matter be listed for purpose of considering the proposal/MOU if any related to partition by metes and bounds and for "further inquiry" under Order XX Rule 18 (2) of the Code of Civil Procedure, 1908 on 02.07.2025 (Announced in the open court.) Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM EHTESHAM Date: 2025.03.26 12:49:49 +0530 (MOHAMMAD EHTESHAM) District Judge-03 (Shahdara), KKD Courts, Delhi. 25.03.2025 CS No. 2052/16 Smt. Madhu Sharma v. Smt. Laxmi Devi Page 26 of 26