Delhi District Court
Jage Ram (Deceased) vs Sh. Dhan Raj on 12 October, 2020
IN THE COURT OF SH. VINOD JOSHI, CIVIL JUDGE05, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
CS No. 595904/2016
1. Jage Ram (Deceased)
Through:
A. Sh. Umed Singh S/o Sh. Jage Ram
R/o 168, Vill. Haider Pur, Delhi.
2. Sh. Raj Kumar
S/o Sh. Kishan Chand
3. Sh. Satpal
S/o Sh. Kishan Chand
Both R/o H.No. 168, Village Haider Pur,
Delhi. ...... Plaintiffs
Versus
1. Sh. Dhan Raj
2. Sh. Inder Lal
3. Sh. Ram Kumar
All sons of Late Sh. Budh Ram
All R/o H. No. 168, Village Haider Pur,
Delhi. ...Defendants
SUIT FOR PARTITION.
Date of institution : 31.05.2003
Judgment reserved on : 22.09.2020
Date of judgment : 12.10.2020
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 1/22
JUDGMENT
1. Vide this judgment, I shall decide the present suit for partition filed by the plaintiffs against the defendants.
PLAINTIFF'S VERSION
2. Brief facts of the case as per the plaint, are as under:
a) The parties to the suit are interrelated to each other and are all legal heirs of one late Sh. Mangli Ram.
b) Late Sh. Mangli Ram was the owner of a plot measuring about 350 sq. yards bearing old no. 20 and new no. 168, in Abadi Deh of Village Haiderpur (hereinafter referred to as 'suit property') and same was constructed by Late Sh. Mangli Ram during his lifetime. After the death of Late Sh. Mangli Ram, the suit property became the ancestral property qua the parties to the suit.
c) Late Sh. Mangli Ram also had another property in his name and Sh. Jai Lal and Sh. Sardari Lal ( two of the five sons of Sh. Mangli Ram) moved into the said property and the said persons have no claim upon the suit property.
d) The family of the parties to the suit increased by the passage of time and hence the parties to the suit as per their convenience, occupied different portions of the suit property. No partition of the suit property has been carried out till date and the nature of the suit property is joint one. Sh. Jai Lal and Sh. Sardari Lal shifted to another property belonging to late Sh. Mangli Ram, hence three brothers namely Sh.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 2/22 Ghasi Ram, Sh. Budh Ram and Sh. Kishan Chand had been living in the property in dispute alongwith their families and in this way every person named above was having a right upto the extent of 1/3rd share in the suit property.
e) The plaintiff no.1 is in possession of a rear portion of the suit property which is approximately measuring about 82 sq. yards. The plaintiff no. 2 and 3 are also in part possession of the property in dispute.
f) There is a baithak in the property in dispute and the same is being used by all the parties commonly for the purpose of entertaining their guests etc.
g) There was a paucity of space for family members of each of the parties, hence dispute arose amongst the parties a number of times. Late Sh. Ghasi Ram and Sh. Kishan Chand demanded for a partition on a number of occasions but the defendants avoided the same on one pretext or the other because the defendants are in possession of a major front portion of the property in dispute. The value and area of the portion in possession of the defendants is quite more than the portions in possession of the plaintiffs.
h) In 1993, Sh. Ghasi Ram, the father of plaintiff no.1 raised the issue of partition of the suit property by meets and bounds. Defendant no.1 offered that he had a plot in his own name measuring about 200 sq. yards in the same locality and he offered 100 sq. yards out of his said plot to compensate Sh. Ghasi Ram. A writing took place Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 3/22 between the parties and it was learnt that defendant no.1 had no such plot in his possession or ownership, hence the said writing was never acted upon or signed/ thumb impressed by Late Sh. Ghasi Ram.
i) On 12.04.2003, in order to harass the plaintiffs, defendant no.1 started demolishing one common portion of the suit property. The plaintiffs raised objection, then only, he could be stopped from illegally demolishing the suit property. Again on 01.05.2003, defendant no.1 made a similar effort and the plaintiffs had to report the matter to the local police. The defendant no.1 has filed a false suit for injunction against the plaintiffs and the said suit bearing no. 94/2003 (CSSCJ No. 595848/16) is pending.
j) No partition of the suit property has taken place so far and the nature of the suit property is still joint one and because the number of family members of the parties to the suit have been increasing and hence there have been frequent disputes over the share/occupation/valuation of the property in dispute and it has become impossible for the plaintiff to keep the property in dispute as joint one.
k) The plaintiffs have number of times asked the defendants to have a partition of the suit property by meets and bounds, but the same has been avoided by the defendants.
In this background, plaintiffs have filed the present suit seeking preliminary decree in favour of the plaintiffs and against the defendants, thereby Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 4/22 declaring the plaintiff no.1 as owner to the extent of 1/3rd share, plaintiffs no. 2 and 3 as joint owners to the extent of 1/3rd share of the suit property. It is further prayed that a receiver be appointed to effect the partition of the suit property by metes & bounds and consequently a final decree be drawn up.
DEFENDANT'S VERSION
3. Defendants filed their written statement wherein they raised preliminary objections:
a) The suit of the plaintiff is bad for nonjoinder of the heirs of late Sh.
Jai Lal and late Sh. Sardari Lal. Further the plaintiffs have not impleaded the daughters of Sh. Ghasi Ram, Sh. Budh Ram and Sh. Kishan Chand.
b) The plaintiffs have not sued for the partition of all the properties of Lt. Sh. Mangli Ram viz: the agricultural land and houses no. 129 & 194 which were partitioned in favour of Sh. Jai Lal & Sh. Sardari Lal respectively. As per the plaintiffs, the properties of Sh. Mangli Ram have never been partitioned, therefore all the properties of Sh. Mangli Ram ought to have been the subject matter of present suit.
c) The suit property is about 335 sq. yards only and the same has already been partitioned during the lifetime of Sh. Mangli Ram and therefore the present suit is not maintainable.
On merits, the defendants have submitted as follows:
a) Sh. Mangli Ram had effected the partition of the suit property, house bearing no. 129, house bearing no. 194 and agricultural land in the Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 5/22 year 1963 among himself and his sons. The properties were divided into six shares. As he and his wife Smt. Dillo Devi were living with his son Budh Ram, who was also taking care of his sisters namely Smt. Sukh Devi and Smt. Khazani Devi. He gave his 1/6th share to his son Budh Ram. Sh. Mangli Ram died in the year 1965 and thereafter, his widow Smt. Dillo Devi continued living with Sh. Budh Ram till her death in 1986.
b) The present possession in the said house no. 168, which is the suit property in the instant case, is as under
i) Jage Ram possesses an area measuring 84 sq yards.
ii) Dhan Raj possesses an area measuring 42 sq yards.
iii) Raj Kumar and Satpal jointly possesses area measuring 67 sq yards.
iv) Inder Lal possesses an area measuring 40 sq yards
v) Ram Kumar possesses an area measuring 60 sq yards
vi) A common passage including a common latrine and hand pump measuring 42 sq yards is possessed by all the above named jointly.
c) Kishan Chand is in the possession of the double storey portion in the front of the suit premises and each one of the sons obtained separate electricity, water connection for their respective portions. In 1986, Ghasi Ram, father of the plaintiff demolished his portion which was single storeyed and reconstructed double storeyed building and laid down marble flooring on the ground floor of his portion. Similarly, in 1993, defendant no.2 (Inder Lal) demolished his portion and constructed his portion into a double storey.
d) If the version of the plaintiffs is true, then properties bearing no 129 and 194 must be made subject matter in the present suit since Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 6/22 Mangli Ram was also the owner of those properties and in that case, all the heirs of the Mangli Ram are entitled to claim partition in the said properties and therefore, they be made parties to the suit.
e) That, at the time of partition in 1963 Mangli Ram gave his own share also to Budh Ram.At the time of partition in 1963, the Baithak was divided into three portions. One portion was assigned to Budhram, second was assigned to Kishan Chand and third portion was kept as a common passage. Ghasi Ram, father of plaintiff no.1 and grandfather of S.I Umed Singh was allotted a portion measuring 84 sq yds in the rear. Except the right of use of common passage, Ghasi Ram and his descendants have no right in the front portion.
f) At the time of the alleged compromise in 1993 in PS Shalimar Bagh, Ghasi Ram wrongfully and illegally got recorded through Umed Singh in his handwriting that he will be entitled to the portion on the other side of the wall, under the influence of Umed Singh, who was working as a police constable and wrote the settlement and in this manner, he claimed to be exclusively entitled to the common passage.
g) It is denied that there is a Baithak in the property in dispute and the same is being used by all the parties for the purpose of entertaining their guests etc. The plaintiffs have wrongly shown and misdescribed the portion of Dhanraj as common passage in the plan. In fact, the common passage is located towards the east of the "alleged common passage "which is in fact the portion of Dhanraj.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 7/22
h) The story of offer of 100 sq yds by defendant no. 1 to plaintiff no.1 is absolutely false and defendant no.1 does not have any such plot.
The writing of 1993 was scribed by S.I Umed Singh and thumb marked by Ghasi Ram. It is denied that defendants have put a false thumb impression of Ghasi Ram upon the said writing. The writing proves partition of the said property.
i) In February 1993, Inder lal defendant no.2, brother of defendant no.1 to the knowledge of defendant no.1 demolished the staircase which defendant no.1 alone was using, but was constructed on the land assigned to defendant no.2 at the time of partition between the sons of Budhram.
j) Immediately the defendant no. 1 started constructing a staircase on the land which had fallen to his share. Ghasi Ram and his grandson S.I Umed Singh did not allow defendant no. 1 to construct the said staircase or raise the partition wall in the common passage. Thereafter the settlement was reached in P.S Shalimar Bagh.
k) On 12.04.2003, to the knowledge of the plaintiffs and their family members, defendant no.1 started demolishing the upper structure and part of Baithak in order to make a new construction, but the demolition is not fully complete yet. On 28.04.2003 defendant no.1 constructed two pillars on the backside each about 12' high and one pillar about 12' high on the front side touching the public street.
l) On 01.05.2003, Smt.Raj Bala, wife of S.I. Umed Singh tried to dig out stone slabs from the kitchen of defendant no.1 to which Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 8/22 defendant no.1 protested. She lodged a report in PS Shalimar Bagh to that effect. There under the influence of Umed Singh, defendant no.1 and 3 were coerced to give in writing that no construction can be made without the order of court.
m) Since the suit property has already been partitioned, plaintiffs have no right to seek reopening of partition and ask for a second partition.
In view of these, it is prayed that the suit of the plaintiff is devoid of merits and liable to be dismissed.
4. Vide replication filed to the WS of the defendants, the plaintiffs denied the allegations made in the WS and reiterated the averments made in the plaint. Additionally, the following averments were made:
a) Late Sri Jai Ram and late Sri Sardari Lal willingly moved into another property belonging to late Sri Mangli Ram and never claimed share in the property in dispute, hence there is no question to implead the above said persons as necessary parties to the present suit and in this way they have no claim over the property in dispute.
b) The measurement of the suit property is 350 sq. yds and not 335 sq. yds and it is denied that the defendant no.1 by mistake stated the total area of land in dispute as 500 sq yds. The defendants are in possession of much more than their shares.
ISSUES
5. After the completion of pleadings, issues were framed by the Ld. Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 9/22 Predecessor of this court vide order dated 22.05.2004 which are as under:
1. Whether this court has no pecuniary jurisdiction to try the present suit? OPD
2. Whether the suit has not been valued properly for the purpose of court fees jurisdiction? OPD
3. Whether the suit is bad for nonjoinder of necessary parties as mentioned in preliminary objection no.1? OPD
4. Whether the suit is bad for not seeking partition of the agricultural land & House No. 129 & 194? OPD
5. Whether suit property is ancestral and liable to be partitioned?
OPP
6. Whether Sh. Mangli Ram in his lifetime had effected any partition of the suit property, House No. 129, H. No. 194 and agricultural land in 1963 between himself and his sons and had given his 1/6th share to Sh. Budh Ram as stated in Para No.3 of WS? OPD
7. Whether the plaintiff is entitled to the relief of partition, if so, what is the extent of their share in the suit property? OPP
8. Relief.
PLAINTIFF'S EVIDENCE
6. PW1, Sh. Jage Ram stepped into witness box and tendered his evidentiary affidavit as Ex. PW1/A and relied upon following documents:
(i) Ex.PW1/1 is Site Plan of the suit property.
(ii) Mark A is Aks Sizra of village.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 10/22
(iii) Mark B is khatauni of the year 198586.
He was partially cross examined by counsel for the defendants and he expired during the pendency of the suit.
7. Sh. Umed Singh stepped into witness box as PW2 and tendered his evidentiary affidavit as Ex. PW2/A and relied upon the documents already exhibited by PW1. The counsel for defendants adopted the cross examination of PW2 dated 18.11.2013 & 27.07.2016 in the connected suit bearing no. 595848/16 titled as Dhan Raj Vs. S.I. Umed Singh.
Vide separate statement of plaintiff/PW2, PE was closed vide order dated 06.02.2017.
DEFENDANT'S EVIDENCE
8. Defendant no. 1 stepped into witness box and adopted the evidence already tendered in suit no. 595848/16 already exhibited as Ex. PA and the documents exhibited as Ex PW1/1 to Ex PW1/46.The plaintiffs also adopted the cross examination of defendant no. 1 Sh. Dhan Raj, conducted on 23.12.2004, 31.03.2005, 15.09.2005, 20.09.2006, 20.02.2007 and 30.03.2011 in the connected suit bearing no. 595848/16 titled as Dhan Raj Vs. S.I. Umed Singh.
9. Vide separate statement of defendant no. 1, DE was closed vide order dated 15.03.2017. Accordingly, the matter was proceeded for hearing of final arguments.
10. I have heard the arguments advanced by the Ld. Counsels for the parties at length and perused the record carefully.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 11/22 MY ISSUEWISE FINDINGS ISSUE NO. 1 & 2 "(1) Whether this court has no pecuniary jurisdiction to try the present suit? OPD"
AND "(2) Whether the suit has not been valued properly for the purpose of court fees jurisdiction? OPD"
11. Both these issues have been taken up together as both of them pertain to the jurisdiction of this court to entertain and decide this suit and both of them are interconnected as they pertain to the valuation of the suit. The onus to prove both these issues was on the defendants.
12. The defendants have stated that this is a partition suit and the valuation in the cases of partition suit is on the basis of market value of the property at the time of filing of the suit. He has stated that the market value of the property was at least Rs. 30 Lakhs at the time of filing of the suit. Since, the pecuniary jurisdiction of a civil court is only upto 3 Lakhs, hence, the suit is liable to be dismissed on this ground itself.
13. Section 9 of the Suit Valuation Act, 1887 reads as follows:
"9. Determination of value of certain suits by High Court When the subjectmatter of suits of any class, other than suits mentioned in the Courtfees Act, 1870 (7 of 1870), section 7, paragraphs v and vi, and paragraph x, clause
(d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High Court may with the previous sanction of the State Government, direct that suits of that class shall, for the purposes of the Courtfees Act, 1870 (7 of 1870), and of Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 12/22 this Act and any other enactment for the time being in force, be treated as if their subjectmatter were of such value as the High Court thinks fit to specify in this behalf."
14. In exercise of powers conferred on the High Court by section 9 of the Suits Valuation Act the Hon'ble Delhi High Court has with the previous sanction of the State Government, framed rules. Rule 8 of Part C of Chapter 3 of Volume I of the Delhi High Court Rules reads as follows:
"8. Suits for partition of property--
Courtfee--(a) As determined by the Courtfees Act, 1870. Value--(b) For the purposes of the Suits Valuation Act, 1887 and the Punjab Courts Act, 1918 the value of the whole of the property as determined by Sections 3, 8 and 9 of the Suits Valuation Act, 1887."
15. Reliance is also placed by this court on Jagdish Pershad v. Joti Pershad, 1975 ILR (Del.) 841, which has held that value for purpose of jurisdiction is value of whole property sought to be partitioned.
16. It is a settled law that it is the prerogative of the plaintiff to value his suit as per his estimate. However, it is open to the defendant to show that the plaintiff has not valued the suit properly in the sense that the market value of the suit property is much more than what has been shown by the plaintiff in the pleadings.
17. There is nothing on record apart from the assertion of the defendant that the market value of the suit property is at least Rs. 30 Lakhs. No circle rates have been filed by the defendant. Neither any witness has been examined in this regard nor any document been presented before the court. In the absence of any evidence on record, the valuation of the plaintiff is deemed proper by this court.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 13/22 Both the issues are decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 3"Whether the suit is bad for nonjoinder of necessary parties as mentioned in preliminary objection no.1? OPD"
18. Onus of proving this issue was on the defendants. The defendants have submitted that the plaintiff's suit is bad for nonjoinder of the heirs of late Sh. Jai Lal, late Sh. Sardari Lal, daughters of Sh. Budh Ram and daughters of late Sh. Kishan Chand and hence, it is not maintainable for nonjoinder of necessary parties and hence, is liable to be dismissed.
19. Per Contra, the contention of the plaintiffs is that since the heirs of late Sh. Jai Lal, late Sh. Sardari Lal have already moved to other two properties of Mangli Ram and that they are not claiming any share in the suit property, therefore, it is not necessary to implead them.
20. Before discussing the facts of the case, it is pertinent to discuss the law on this point. Reliance is placed by the court on the judgment of the Supreme Court in Kenchegowda (since deceased) by LRs v. Siddegowda alias Motegowda, (1994) 4 SCC 294, wherein the argument was raised that, "...when all the joint family properties were not made the subjectmatter of the suits, nor were all the cosharers impleaded, It is wellsettled in law that a suit for partial partition is not maintainable." The Hon'ble Supreme Court answering it in affirmative held that "A suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other cosharers was not warranted in law."
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 14/22
21. Reliance is also placed on the judgment of the Hon'ble Delhi High Court in Hari Om Sharma v. Ghan Shyam Dass Sharma & Ors., 2018 SCC OnLine Del 7239, wherein it was held as follows:
"It is the settled position in law that in a suit for partition all the cosharers have to be impleaded and nonimpleadment of the cosharers goes to the root of the matter. The Supreme Court in Kenchegowda v. Siddegowda alias Motegowda (1994) 4 SCC 294 held that a suit for partition filed without impleadment of all cosharers was not permissible in law."
22. In the present case, it is a fact that late Sh. Jai Lal, late Sh. Sardari Lal, daughters of Sh. Budh Ram and daughters of late Sh. Kishan Chand are all legal heirs of Late Sh. Mangli Ram. Therefore, being the legal heirs, they are necessary parties to the suit. The contention of the plaintiffs is not tenable in law. Accordingly, issue no. 3 is decided in favour of the defendants and against the plaintiffs. The suit is, thus, liable to be dismissed on this ground.
ISSUE NO. 4"Whether the suit is bad for not seeking partition of the agricultural land & House No. 129 & 194? OPD"
23. Onus of proving this issue is upon the defendants. It is averred by the defendants in the written statement that the suit is bad as the plaintiffs have not sought partition of all the properties of Sh Mangli Ram, which include the suit property, House no 129, 194 and the agricultural land.
24. The plaintiffs on the other hand have argued that since he is not claiming any right in any property of Sh. Mangli Ram other than the suit property, Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 15/22 hence, there was no need to claim partition on the other properties.
25. Reliance is again placed on the case of Supreme Court in Kenchegowda (since deceased) by LRs v. Siddegowda alias Motegowda, (1994) 4 SCC 294 and the Delhi High Court in Hari Om Sharma v. Ghan Shyam Dass Sharma & Ors., 2018 SCC OnLine Del 7239. In the present case, it has been admitted by the plaintiff that there are other properties which were in the name of Sh. Mangli Ram along with the suit property. Hence, the contention of plaintiff cannot be sustained in law as it is a settled rule of law that suit for partial partition is not maintainable. Accordingly, the present issue is decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 5 & 6"(5) Whether the suit property is ancestral and liable to be partitioned?
OPP"
AND "(6) Whether Sh. Mangli Ram in his lifetime had effected any partition of the suit property, House No. 129, H. No. 194 and agricultural land in 1963 between himself and his sons and had given his 1/6th share to Sh. Budh Ram as stated in Para No.3 of WS? OPD"
26. Issues 5 and 6 have been taken up together as they are inter connected and deal with the issue that whether the property has already been partitioned by Sh. Mangli Ram or is it still to be partitioned. The onus of proof for issue no. 5 is on the plaintiff and for issue no. 6, on the defendant.
27. On the aspect of partition of the properties of Sh Mangli Ram, it is the case of the plaintiffs that Sh Mangli Ram had 5 sons. Sh. Mangli Ram owned 04 properties which are, the suit property, i.e., House No. 168 in Village Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 16/22 Haiderpur, House No. 129, House No. 194 and an agricultural land.
28. Two sons of Mangli Ram namely, Sh Jai Lal and Sh Sardari Lal moved into the other houses of Mangli Ram and the remaining 3 sons were residing in the suit property. It is the case of the plaintiffs that they are living along with the defendants in the suit property in joint possession and no partition has ever been effected at the instance of Sh. Mangli Ram.
29. Per contra, the defendants have averred that Mangli Ram had effected partition of all the above stated properties including the suit property in 1963, among himself and his sons. He divided the property into 6 shares and as he and his wife were living with his son Budh Ram, he also gave his 1/6th share to Budh Ram.
30. In order to prove that an oral partition had already taken place, the defendants stated that after partition in 1963, each one of the sons immediately took exclusive possession of the portion assigned to him. Furthermore, the defendants have averred and specified the portions in exclusive possession of the parties, to which they have made repairs and reconstructions. In 198283, Kishan Chand (father of plaintiff no. 2 and 3) carried out repairs and renovation on a large scale. Similarly, in 1986, Ghasi Ram, father of plaintiff no. 1 demolished his portion which was single storeyed and reconstructed into a double storeyed building and provided marble flooring on the ground floor of his portion. In 1993, Inder Lal, defendant no 2 demolished part of his portion and constructed a double storey.
31. To support the case of the plaintiff, the plaintiff No. 1 filed his evidentiary affidavit. What is pertinent and noteworthy in the evidence of PW1 is Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 17/22 the cross examination, wherein he has stated as follows:
"Dhan Raj has no right to live in the portion of House No. 168, which belongs to me. I had fixed marbles in the portion of the House no. 168 which belongs to me. It is correct that no marbles has been fixed in the portion which has been given to Ram Kumar. Mangli Ram had also given a portion to Shri Budh Ram. It is correct that Mangli Ram had given third portion to Shri Kishan Chand."
He further stated as follows:
"It is correct that after partitioning his property Mangli Ram had given House No. 194 to Jai Lal. Mangli Ram might have given House No. 129 to Sardari Lal but I do not know about it."
32. Now, going by the statements of the plaintiff in his cross examination, it is clear that the plaintiff no 1 is admitting to the averments of the defendants that they are in exclusive possession of the various portions of the property since a very long time and further that they all have made alterations/constructions in the suit property. He says it with utmost assertion that Dhanraj had no right to live in the portion which belongs to him and that Mangli Ram had given 3 portions each to him, Budh Ram and Kishan Chand. It is also significant that he has further asserted that after "partition", Mangli Ram had given house no 129 to Sardari Lal. Not only has the plaintiff used the word partition but has also claimed right over his portion given specifically by Mangli Ram.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 18/22
33. Admission by the party is the best form of evidence. In the case of Ahmedsaheb and Others v. Sayed Ismail, (2012) 8 SCC 516, the Hon'ble Supreme Court had held that, "Admission of the parties made in the proceedings made either in pleadings or orally is the best evidence and the same does not need any corroboration." Once the factum of partition is admitted by the plaintiff, there is no need for any further corroboration.
34. Be that as it may, the Court would like to indicate certain pieces of evidence that point towards the veracity of the defendants claim that partition had already taken place. The conduct of the parties after the alleged partition assumes importance. The parties have got not only repairs made but got two storeyed buildings constructed in the portions allotted to them. PW1 has also admitted that he got marble placed only in his portion. It is highly unlikely and bizarre that a person would demolish and reconstruct only a limited portion of the same House, when he claims it to be a joint property. This conduct of the plaintiff and the parties again reaffirms that partition had already taken place, as claimed by the defendants.
35. It is a settled position of the law that once the parties have themselves acted and treated the properties allotted to their share as their exclusive property, they will be estopped from challenging the existence and validity of partition or family arrangement effected.
36. In the present case also, the plaintiffs have acted as if their portions were exclusive to them and hence carried out constructions without seeking permission from the other brothers. Hence, they cannot now challenge the existence of partition.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 19/22
37. Now, the issue regarding the 1/6th share given by Mangli Ram to Budh Ram, needs to be dealt with. In the case at hand, the plaintiff no.1 himself has aided the defendant's case by admitting the factum of partition in his cross examination.
38. The averment in respect of 1/6th share is mentioned in paragraph 3 of the written statement. The plaintiffs have averred in their replication that no partition was effected in 1963. It is further stated by the plaintiffs that they have been in possession of their respective portions of the property as per convenience of the family members. It is to be noted that the claim of the defendants that the 1/6th share of Mangli Ram was also given to Budh Ram has not been specifically denied by the plaintiff. Since specific denial is a requirement of law, this is also deemed to be admitted by the plaintiff along with the fact that the defendants have been in exclusive possession of the particular portion of the property under contention.
39. In view of the above discussion, since an oral partition had already been effected in 1963 pursuant to which the parties have been in respective possession of their portions of the property, issue no. 6 is decided in favour of the defendants and against the plaintiffs.
40. Coming on to the plea that the suit property being an ancestral property and liable to be partitioned. The plaintiffs have taken the said plea in a very casual manner, without further elucidating its implications. It has already been held that the suit property was partitioned by Sh. Mangli Ram. Even if Sh. Mangli Ram inherited the suit property being ancestral i.e. property belonging to paternal ancestor, it does not in any way affect his rights to deal with the same unless the existence of a HUF is specifically pleaded by the plaintiffs and such Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 20/22 property is shown to be part of the said HUF. Moreover, the plaintiff has failed to lead any evidence in respect of the plea taken, therefore, Issue no. 5 is decided in favour of the defendants and against the plaintiffs.
ISSUE NO. 7"Whether the plaintiffs are entitled to the relief of partition, if so, what is the extent of their share in the suit property? OPP"
41. This issue is corollary to issue no. 6, which has already been decided in favour of the defendants. The Court has given the finding in issue no. 6 that the oral partition was already effected amongst the parties in 1963. Consequently, the plaintiffs are not entitled to the relief of partition. This issue is decided in favour of the defendants and against the plaintiffs.
ORDER/RELIEF
42. In view of the aforesaid discussion, the facts and circumstances of the case, the findings given on the above issues, documents placed on record and evidence led by parties, the plaintiffs have failed to prove their case on the scale of preponderance of probabilities.
43. Moreover, the suit is bad for nonjoinder of necessary parties (co sharers), for seeking only partial partition which is not sustainable in law and hence, liable to be dismissed.
44. Accordingly, the suit of the plaintiffs is hereby dismissed. No order as to costs.
45. Decree sheet be prepared accordingly.
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 21/22
46. File be consigned to record room after due compliance.
Digitally
signed by
VINOD
VINOD JOSHI
JOSHI Date:
Announced in the open court 2020.10.13
13:57:33
on 12.10.2020. +0530
(Vinod Joshi)
Civil Judge05, Central District
Tis Hazari Courts, Delhi
Sh. Jage Ram & Ors. Vs. Sh. Dhan Raj & Ors. Pg. No. 22/22