Delhi District Court
Also At: L-7 vs Smt. Laxmi Devi on 29 November, 2018
IN THE COURT OF MR. SUNIL BENIWAL ,
ADDITIONAL DISTRICT JUDGE -02, ( CENTRAL), DELHI
Suit no. 515/15
Case No. 12232/16
Ram Avtar Gupta
S/o Sh. Roshan Lal
R/o E-30, Gali Gai Wali,
Shastri Nagar, Delhi-52.
Also at: L-71, Shastri Nagar,
Delhi
...........Plaintiff
Versus
Smt. Laxmi Devi
W/o Sh. Ram Avtar Gupta
D/o Late Bal Mukand,
R/o E-30, Gali Gai Wali,
Shastri Nagar, Delhi-52. .........Defendant
Date of Institution of Suit : 02.03.2012
Date of pronouncement of judgment : 29.11.2018
SUIT FOR PARTITION AND PERMANENT INJUNCTION
This is a suit for partition and permanent injunction. Plaintiff is
Mr. Ram Avtar Gupta. Defendant is his wife Smt. Laxmi Devi.
Facts stated in the plaint are as follows:
1 Plaintiff is a senior citizen and has been residing in the suit Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 1/17 property i.e. E-30, Gali Gai Wali, Shastri Nagar, Delhi-52 and also at L-71, Shastri Nagar and is also in possession of suit property. Only property i.e. E-30, Gali Gai Wali, Shastri Nagar, Delhi-52 is the suit property. Plaintiff has two step sons. Plaintiff is sole and absolute owner of the suit property purchased by him in 1991 from his own money and has been in possession since then. Defendant and her two sons Satya Prakash and Hari Prakash have evil eyes on the properties of plaintiff and are harassing the plaintiff. Defendant and her sons are also in habit of making false complaints against plaintiff and used to quarrel with the plaintiff. Defendant filed a frivolous suit for permanent injunction titled as "Smt Laxmi Vs Ram Avtar gupta" in which she sought the relief of permanent injunction of not dispossessing her from the suit property. A detailed written statement was filed by the plaintiff in that case. Above-mentioned false suit was filed by the defendant Laxmi Devi on the ground that she was the co-owner of the suit property and is in possession in the capacity of co-owner. This fact is incorrect. Defendant is a house wife and she has never worked and hence, question of purchasing or paying sale consideration in full or part does not arise and total sale consideration was paid by the plaintiff. In order to avoid harassment and humiliation at the hands of the defendant and her two sons, plaintiff wants to partition the property in two equal shares, one for himself and another for the defendant. Defendant refused and told the plaintiff that she will not give any share to the plaintiff and further threatened to dispose off suit property to some third person. On 24.01.2012, Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 2/17 defendant openly threatened the plaintiff that she had already approached property dealers for sale of suit property. Prospective buyers have been visiting the suit property. Plaintiff is left with no other option but to approach this court. It is therefore prayed that this court be pleased:
1. To pass a preliminary decree defining the share of the parties declaring that the plaintiff and the defendant are entitled to half share each in suit property.
2. Appoint a receiver with direction to prepare a final report indicating the mode, manner and method for partitioning the suit property.
3. Pass a final decree after filing of the final report of the receiver so appointed and direct the defendant to hand over the peaceful possession of partitioned property to plaintiff.
4. Pass a decree of permanent injunction in favour of the plaintiff and against the defendant restraining the defendant, their agents, heirs, successors, nominees, representatives, assignees etc. from selling, gifting, transferring, alienating, mortgaging, letting or creating third party interest in the suit property.
5. Award cost of the suit including fee of the counsel in favour of the plaintiff and against the defendant.
Facts pleaded in the written statement are as follows:
Preliminary objections:
2 Suit has not been properly valued for the purposes of court fees Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 3/17 and jurisdiction. The suit property is worth more than Rs. 50,00,000/- at the time of filing of the suit, therefore, plaint is liable to be dismissed or the plaintiff is liable to file the deficient court fees (defendant has not proved these facts and allegations by leading evidence?). Plaintiff is not in possession of the suit property which is in exclusive and peaceful possession of defendant. Plaintiff has not come to the court with clean hands and suppressed material facts. That the defendant has already sold her share of suit property in favour of Hari Prakash S/o Sh. Anand Prakash through agreement to sell and purchase dated 07.02.2008. Therefore, suit is liable to be dismissed for non-joinder of necessary party. Plaintiff has no right on the suit property as in the family settlement, plaintiff disposed off his share in favour of defendant in 1996. Thereafter, plaintiff has been residing at house no. A-56, Inder Enclave, Kirari, Suleman Nagar, Delhi and has no connection with suit property. Suit is barred by Section 41(h) of Specific Relief Act. Section 41(h) of Specific Relief Act says that "injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust." (what is this efficacious remedy available to the plaintiff in this case has been neither pleaded nor explained by the defendant) Suit of the plaintiff is barred by limitation as plaintiff handed over the possession of suit property in 1996 after taking the settlement amount.
Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 4/17
Reply on merits:
3 It is denied that plaintiff is sole and absolute owner of the suit
property. It is denied that plaintiff is residing in the suit property. Plaintiff is residing at house no. A-56, Inder Enclave, Kirari, Suleman Nagar, Delhi since 1996. Husband of the defendant died in 1981. Thereafter, plaintiff developed intimacy with defendant. Plaintiff was having evil eye on the property of the defendant and one by one five properties of the defendant were sold out by plaintiff and the consideration amount of those properties remained in possession of the plaintiff. After grabbing the property of the defendant, plaintiff started harassing the defendant and her children. Due to cruel behaviour of plaintiff, a family settlement was arrived between the parties in which it was settled/agreed that plaintiff shall hand over his share in the suit property to the defendant after receiving Rs. 2,00,000/- from the defendant. Money was paid to the plaintiff and thereafter, plaintiff started residing in house no. A-56, Inder Enclave, Kirari, Suleman Nagar, Delhi permanently. Defendant being an old lady and not having any source of income, sold her half share of the suit property to Hari Prakash on 07.02.2008 because plaintiff refused to pay any maintenance to the defendant despite requests. A suit was filed by the defendant against the plaintiff in which the plaintiff filed a false written statement. Plaintiff has no right in the suit property. It is therefore, prayed that the suit should be dismissed with costs.
Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 5/17 Replication: 4 In the reply, plaintiff has not alleged any new material fact and
has reiterated the contents of his plaint to be true and has denied the facts stated in the written statement which are contradictory to the plaint to be false. Plaintiff did not know that the defendant sold her share of the suit property to Hari Prakash through agreement dated 07.02.2008. Therefore, the suit cannot be dismissed due to non-joinder of necessary party. Plaintiff never entered into any alleged family settlement with defendant or any other person. It is denied that plaintiff is residing at A-56, Inder Enclave, Kirari, Suleman Nagar since 1996, as alleged. It is denied that in the year 1981, husband of defendant died and thereafter, plaintiff developed intimacy with defendant as the plaintiff was having an evil eye on the properties of defendant. It is denied that plaintiff sold five properties of defendant and kept the sale consideration. It is denied that plaintiff received Rs. 2,00,000/- from the defendant as per alleged settlement. It is denied that the plaintiff handed over his share of the suit property to defendant as per any alleged settlement. Plaintiff has maintained the defendant and her children in proper manner and spent lots of money for the education of the children. Rest is repetition in denial of all the counter allegations leveled in written statement.
5 After completion of pleadings, following issues were framed by the court for adjudication of the present suit on 07.09.2012:
Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 6/17
1. Whether the plaintiff is entitled to a decree of partition as prayed for? OPP
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
3. Whether suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
4. Whether this court has no pecuniary jurisdiction to try this suit? OPD
5. Whether plaintiff has not come to the court with clean hands? OPD
6. Whether the suit is barred u/S 41(h) of Specific Relief Act? OPD
7. Whether suit is barred by limitation? OPD
8. Relief 6 Plaintiff examined himself as PW1. He was not cross examined despite opportunity being granted. Thereafter, several opportunities were granted to defendant to lead evidence. Defendant tendered her evidence as DW1/A but her statement was recorded as DW2. This anomaly was corrected by order of 09.02.2016. DW1 Laxmi Devi was cross examined.
7 In his evidence affidavit, plaintiff deposed exactly on the same lines as that of the plaint and replication. He relied upon the following Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 7/17 documents:-
1. Site Plan Ex. PW1/12. Certified copy of judgment Ex. PW1/2 of the case filed by the defendant against the plaintiff which was a suit for permanent injunction.
3. Certified copy of suit Ex. PW1/3 4. GPA Ex. PW1/4
8 As already explained above, this witness was not cross examined despite opportunity being granted. Thereafter, defendant examined herself as DW1. In her evidence affidavit, defendant gave her address as E-30, Gali Gai Wali, Shashtri Nagar, Delhi-52 i.e. same as that of the suit property. In her evidence affidavit she deposed that she is residing at the suit property alongwith her son and his family since its inception and that the suit property was purchased by her. Suit property was purchased by her for Rs. 90,000/- from Smt. Prakash Rani Chadha in 1991. Rs. 45000/- was paid by cheque no. 666767 dated 19.04.1991 of Punjab National Bank, Shastri Nagar and other Rs. 45,000/- were paid by cheque no. 666787 but this cheque was not honoured. Therefore, balance of Rs. 45,000/- was paid by cash. Whole payment of consideration was paid by the defendant for purchasing the suit property. Plaintiff was alongside the defendant at the time of executing the documents of sale consideration. In a fraudulent manner, plaintiff inserted his name as a co- sharer of the property and with connivance of the office staff, plaintiff got Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 8/17 prepared GPA in lieu of sale consideration of suit property in the name of defendant as well as of plaintiff. In this way, plaintiff played a fraud on defendant as she is an uneducated lady. Schedule of payment made by defendant for purchasing the suit property is Ex. DW1/A and B (OSR). When the defendant came to know that plaintiff has inserted his name in the documents as a co-owner of the property, she demanded an explanation from the plaintiff, then on 09.09.2008, one panchayat was held and the plaintiff executed an agreement in writing on the condition that the defendant will provide another plot for plaintiff and plaintiff shall bequeath all his rights in suit property in favour of the defendant. Photocopy of said affidavit/agreement is mark - X as the original is in possession of plaintiff. (plaintiff has denied this document. No notice was given by defendant to produce the original of Mark X.) Defendant made repeated requests to provide the original of mark - X but the plaintiff did not comply. Defendant purchased a property at Nangloi in the name of plaintiff and son of defendant in equal shares with her own funds. This is the property where plaintiff resided since last more than seven years. Plaintiff is not residing in the suit property since last more than six years but in the shadow of this fraud, he wants to grab suit property of defendant. During her cross examination, defendant deposed that she was married earlier also. Her previous husband was Sh. Anand Prakash, who was doing business of cloth in Mathura and having many properties. He was having properties in Bhajanpura, Shastri Nagar and Mangolpuri. He expired 34-35 years ago in Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 9/17 accident. Defendant does not have documents of abovementioned properties. The properties above-mentioned belonging to the first husband of defendant were sold by the plaintiff in 1985-86 and 1988. Defendant sold property no. P-1556, Shastri Nagar. Defendant used to receive a rent of Rs. 30,000/- per month which was deposited in her PNB Account no. 7909. Defendant deposed that it is wrong to suggest that 50% of the amount for the purchase of the suit property was deposited by the plaintiff. She does not know as to how the suit property was purchased in the joint name of herself and the plaintiff. Defendant further deposed that it is wrong to suggest that cheque no. 666787 was issued from account no. 5925 in the name of plaintiff. Defendant deposed that it is wrong to suggest that the above-mentioned fact is evident from account pass book of plaintiff which is Ex. DW1/PX-1 (Original pass book is retained on record and copy of the relevant page having the entry is supplied to the witness). Defendant admits that Ex. PW1/3 is a suit for permanent injunction filed by her against the plaintiff. Defendant is not aware if she has mentioned that she is a co-sharer of the suit property alongwith the plaintiff in the suit Ex. PW1/3. It is wrong to suggest that plaintiff issued cheque no. 666789 dated 09.05.1991 for Rs. 45,000/- in the name of Smt. Prakash Chadha in the name of previous owner and that this cheque was honoured as per pass book Ex. DW1/PX-1. THIS is an incorrect statement given by the defendant in her cross-examination. Perusal of Exhibit DW1/PX-1 shows this entry. It is wrong to suggest that plaintiff is residing in the suit property Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 10/17 and not in Nangloi. Defendant deposed that it is correct that she was shown as co-sharer alongwith plaintiff in the documents of the suit property i.e. GPA, agreement to sell etc. 9 Now, what is partition? Partition is a redistribution or adjustment of pre-existing rights, among co-owners/coparceners, resulting in a division of lands or other properties jointly held by them into different lots or portions and delivery to the respective allottees. The effect of such division is that the joint ownership is terminated and the respective shares vest in them in severalty. A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. 'Separation of shares' is a species of 'partition'. When all co-owners/coparceners get separated, and others continue to be joint or continue to hold the remaining property jointly without division by metes and bounds. For example, when 4 brothers owning a property divide it amongst themselves by metes and bounds, it is a partition. But if only one brother wants to get his share separated and other 3 brothers continue to remain joint, there is only a separation of the share of one brother. In a suit for partition or separation of a share, the prayer is not only for declaration of plaintiff's share in the suit property is, but also division of shares by metes and bounds. This involves 3 issues :
1) whether the person seeking division has a share or interest in the suit property Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 11/17
2) whether he is entitled to the relief of division and separate possession
3) how and in what manner, the property should be divided by metes and bounds?
10 In a suit for partition, the court has to 1st decide whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. The decision on these 2 issues is exercise of judicial function and results in 1st stage decision termed as 'decree' under order 20 rule 18 (1) and termed as 'preliminary decree' under order 20 rule 18 (2) of the CPC.
Moreover how the defendant has pleaded limitation in the present case, she has failed to clarify.
Now I shall decide the issues:-
ISSUE NO.1: Whether the plaintiff is entitled to decree of partition as prayed for? OPP
11 Onus to prove this issue was upon the plaintiff. Law relating to partition has already been discussed above. Plaintiff has proved that he is entitled to one half share in the suit property as he is mentioned as co-owner in the GPA Ex.PW1/4. Even the defendant admits the said GPA. The suit property was bought for an amount of Rs.90,000/- from its erstwhile owner in the year 1991. Half of the payment of the property was made by the defendant through cheque and plaintiff has also proved his entry of original bank of his book on record as per which Rs.45,000/- was paid by the Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 12/17 plaintiff. Defendant is alleging that they had entered into a settlement agreement/affidavit Mark X as per which the plaintiff has relinquished his claim on the suit property. Original of this Mark X/settlement agreement/affidavit has not been produced in Court. It is alleged by the defendant that the original is in possession of the plaintiff. Despite that no notice for production of the original has ever been given by the defendant to the plaintiff. Therefore, this document remains unproved. But even if it is admitted that such a settlement agreement did take place for the sake of argument, it is in the form of relinquishment deed which as per Section 17 of the Registration Act is required to be compulsorily registered, therefore, this settlement agreement cannot be considered into evidence. Since in the GPA Ex.PW1/4 plaintiff has been mentioned as co-owner of the suit property and since an amount of Rs.45,000/- which is half the amount of the sale consideration was paid by the plaintiff, he is held entitled to half the share in the suit property and is therefore also entitled to a decree of partition as prayed for. Therefore, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.2 : Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP 12 Since the court has come to the conclusion that plaintiff is entitled to one half share of the property, plaintiff also becomes entitled to a decree of permanent injunction with respect to his half share of the property.
Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 13/17 This issue is also decided in favour of the plaintiff and against the defendant.
ISSUE NO.3 : Whether suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 13 Onus to prove this issue was upon the defendant. This is a suit for partition and recovery of possession of the share belonging to the plaintiff which is one half share of the suit property. It is alleged by the plaintiff that he is in possession of the property. Although it has been alleged by the defendant that it is the defendant who is in possession of the suit property and not the plaintiff. This fact has not been proved by the defendant by leading evidence on record. Plaintiff was not cross examined by the defendant despite opportunity being granted. Therefore, there is no requirement of the plaintiff to pay advolerum court fees as the defendant has failed to prove this issue. Therefore, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE NO. 4 : Whether this court has no pecuniary jurisdiction to try this suit? OPD 14 Onus to prove this issue was also upon the defendant but the pecuniary jurisdiction of this court is upto Rs. 2 crores. Even as per the assessment of the defendant, the suit property is valued at RS. 50 Lakhs. Therefore, this court has the pecuniary jurisdiction to decide the suit. Therefore, this issue is also decided against the defendant and in favour of Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 14/17 the plaintiff.
ISSUE NO. 5 : Whether plaintiff has not come to the court with clean hands? OPD 15 Onus to prove this issue was upon the defendant. In the opinion of the court, this fact is proved in the plaint itself. In the plaint, plaintiff has alleged himself to be the sole and absolute owner of the suit property, whereas, as per GPA Ex. PW1/4, plaintiff is co-owner of half share of the suit property. This is a document filed, relied upon and proved by the plaintiff himself. The only defence of the plaintiff is that since the defendant was a house wife doing no work or business, she did not have the funds to pay any amount for the purchase of the suit property and the amount of Rs. 45,000/- which was paid by the defendant through cheque also belonged to the plaintiff as it was the plaintiff who used to give money to the defendant. This contention of the plaintiff cannot be accepted as plaintiff has not led any proof of this fact so it is clear from the record that the plaintiff is guilty of stating inconsistent and contradictory facts on record. Therefore, plaintiff has not come to the court with clean hands and defendant has proved this issue. Therefore, this issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO. 6 : Whether the suit is barred u/S 41(h) of Specific Relief Act? OPD Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 15/17 16 Section 41(h) of the Specific Relief Act states as under:
" When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust". What alternative efficacious relief or remedy was available to the plaintiff has not been stated by the defendant. Therefore, this issue is also decided against the defendant and in favour of the plaintiff.
ISSUE NO. 7 : Whether suit is barred by limitation? OPD
17 Defendant has not led any evidence to prove this fact and has simply alleged limitation to be a ground in her favour. This is a suit for partition, recovery of share of the plaintiff and permanent injunction. Defendant has neither alleged nor proved as to which of the reliefs sought by the plaintiff is barred by limitation. Therefore, this issue is decided against the defendant and in favour of the plaintiff.
RELIEF :
18 In view of my abovementioned discussions and observations, it is hereby held that plaintiff is owner of one-half share of the suit property and is therefore, entitled to the relief of partition and to the relief of possession of his share. A preliminary decree is hereby passed in favour of the plaintiff for partition of his half share of the suit property. Plaintiff is also entitled to permanent injunction qua his share of the suit property. Therefore, defendant is hereby restrained from dispossessing or parting with the entire suit property or atleast one-half share of the suit property which comes to the Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 16/17 share of the plaintiff. Ordered accordingly.
List the matter for final decree on 06th December 2018.
Digitally signed by SUNIL SUNIL BENIWAL
Announced in the open Court on BENIWAL Date: 2018.12.05
15:55:10 +0530
29th day of November , 2018 (SUNIL BENIWAL)
ADJ-02, Central,THC/Delhi
Case No. 12232/16 Ram Avtar Gupta vs Laxmi Devi 17/17