Delhi District Court
Parkash Lal S/O Sh. Har Swaroop vs Dinesh on 16 March, 2012
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 832/07
ID NO.02402C0512712004
1. Parkash Lal S/o Sh. Har Swaroop
2. Kailash Chand S/o Sh. Har Swaroop
Both R/o H.No.49, Pt. Mohalla Mandawali Fazalpur, Delhi.
.... Plaintiffs
Versus
1. Dinesh
2. Raju
3. Ramu
4. Smt. Santosh Devi W/o Late Raghubar Dayal
All Sons of Sh. Raghubar Dayal
All R/o H.No.135, Pandit Mohalla, Mandawali Fazalpur
(Shahdara) Delhi.
5. Smt. Sarbati W/o Sh. Suresh Kumar
R/o North Chhajupur Illaqa Shahdara, Delhi.
6. Smt. Surajwati W/o Sh. Ilam Chand
7. Smt. Jagwati W/o Sh. Vijay Ram
Both deft. no.6 & 7 R/o Village Brahaman Puddi Aggarwal
Mandi,Tateeri Bagpat, U.P.
8. Smt. Omwati
R/o village Kinoni, Rasulpur, Zahid Distt. Meerut, U.P.
.... Defendants
SUIT FOR PARTITION OF THE HOUSE NO.135, PANDIT
MOHALLA VILLAGE MANDAWALI FAZALPUR
(SHAHDARA) DELHI.
Date of institution of the Suit : 19.11.2004
Date on which judgment was reserved : 09.02.2012
Date of decision : 16.03.2012
Decision : Judgment pronounced
Plaint returned
JUDGMENT
CS no:832/07 Page No: 1/18 This is a suit for partition. The version of the plaintiffs is that Sh. Har Swaroop was the owner of the House No. 135, Pandit Mohalla, Village Mandawali Fazalpur (Shahdara) Delhi (herein after referred to as suit property). Sh. Har Swaroop died intestate on 04.01.1981 leaving behind four daughters (defendants no. 5 to 8), wife and three sons (plaintiffs and Late Sh. Raghubar Dayal).
2. It is further the case of the plaintiffs is that the plaintiffs and defendants no. 5 to 8 and their mother Late Smt. Raghubiri were also residing in the suit property. The plaintiffs' brother Sh. Raghubar Dayal also resided in the suit property. However, as the family grew large the plaintiffs constructed another house and shifted to that house. However, the plaintiffs kept on visiting the suit property. Thus the plaintiffs claim that they and the defendants are in joint possession of the suit property.
3. The plaintiffs have further pleaded that the defendants no. 1 to 4 had attacked the plaintiffs and interfered in the peaceful possession of the plaintiff at house no. 49, Pandit Mohalla, Mandawali CS no:832/07 Page No: 2/18 Fazalpur (Shahdara) Delhi and the plaintiffs were compelled to file a suit for permanent injunction against the defendants.
4. The plaintiffs have pleaded that the suit property stands in the name of Har Swaroop in the municipal records. The plaintiffs have pleaded that they are the co owners of the suit property and are in joint possession of the suit property. The plaintiffs have sought partition of the suit property.
5. The defendants appeared before the court pursuant to service of summonses and filed their written statements. The defendants No. 5, 6 & 8 filed their joint written statement and admitted the contents of the plaint. The defendant no. 7 filed her separate written statement and also admitted the contents of the plaint. However the defendant no. 7 stated that the parties should be directed to include the complete ancestral properties for the purpose of partition.
6. The defendants no. 1 to 4 are the main contesting defendants and have filed their joint written statement. The defendants no. 1 to 4 stated that the suit property is not the ancestral property of CS no:832/07 Page No: 3/18 Late Sh. Har Swaroop. They further stated that the suit property falls in the khasra no. 622 which is in the name of Gram Sabha. They further stated that the suit property falls within the ambit of Lal Dora of the village and Late Sh. Har Swaroop had no right, title or interest in the suit property. They further stated that their father Sh. Raghubar Dayal had separated from his father i.e. Sh. Har Swaroop about 60 years back and the Gram Sabha had allotted a piece of land measuring 240 sq. yds to Sh. Har Swaroop over which Sh. Har Swaroop constructed the suit property from his own funds and the land is in the name of Gram Sabha while the suit property is owned by Sh. Raghubar Dayal.
7. The defendants no. 1 to 4 further stated that the value of the suit property is more than Rs. 5 lacs and the suit has not been valued for the purpose of court fees and jurisdiction and this court has no jurisdiction to try and entertain the present suit. They further stated that Late Sh. Har Swaroop also owned various other properties in his name in village Mandawali Fazalpur which have not been included in the present suit for partition.
8. The defendants denied that the plaintiffs or their father CS no:832/07 Page No: 4/18 used to reside in the suit property. They denied that the suit property is the ancestral property of Late Sh. Har Swaroop. They further denied that the plaintiffs are in joint/actual possession of the suit property. They stated that they are in exclusive possession of the suit property and are the owners of the suit property. They further stated that the defendants no. 5 to 8 never resided in the suit property.
9. They further stated that the plaintiffs have been residing in the property no. 49, Pandit Mohalla, Mandawali Fazalpur, Delhi which was got constructed by Late Sh. Har Swaroop. They further stated that in respect of the said property the defendants had filed a suit for permanent injunction which is also pending. They denied that the plaintiffs are entitled for partition of the suit property. They prayed for dismissal of the suit.
10. Plaintiffs filed replication and denied the averments of the written statements of the defendants and simultaneously reiterated and reaffirmed the contents of the plaint.
11. Vide order dated 09.03.2005 following issues were framed CS no:832/07 Page No: 5/18 in this case:
1. Whether plaintiff is entitled for the decree of partition of the house No.135, Pandit Mohalla Mandavali, Delhi? OPP
2. Whether the suit of the plaintiff is not maintainable in the present form?
3. Relief
12. Vide order dated 03.09.2011 two additional issues were framed:
4.Whether the suit has not been properly valued for the purpose of court fees and jurisdiction and whether proper court fees has not been paid? OPD
5. Whether this court has no pecuniary jurisdiction to try and entertain the present suit? OPD"
13. In order to prove its case the plaintiff no. 2 examined himself as PW-1 and deposed on the lines of the plaint. The plaintiffs further examined PW-2 Sh. Naresh Kumar official from MCD as PW-2. The plaintiffs examined Sh. Raj Mal Singh, UDC from House Tax Department as PW-3. As against this the defendant no.1 Rajender Kumar Sharma examined himself as DW-1 and deposed on the lines of CS no:832/07 Page No: 6/18 the written statement. The defendants further examined Sh. Prabhunath, Patwari from the office of SDM, Geeta Colony, Delhi who produced the record pertaining to khasra no. 622, Village Mandawali Fazal Pur, Delhi as DW-2.
14. I have heard the Counsel for the plaintiff and have given due consideration to the contentions and carefully perused the record. My issue-wise findings are as follows:
Issues no.4 & 5
15. The questions to be answered are as to whether the suit has not been properly valued for the purpose of court fees and jurisdiction and whether proper court fees has not been paid and whether this court has no pecuniary jurisdiction to try and entertain the present suit.
16. That Part C of Chapter 3 of the Vol. I of the Delhi High Court Rules provide for the manner of determining the value of suits for the purposes specified in Section 9 of the Suits Valuation Act, 1887 for the purpose of jurisdiction. The relevant rule 8 deals with valuations in respect of suits relating to partition of property and provides as CS no:832/07 Page No: 7/18 under:
" .....8. Suit for partition of Property:-
Court Fee - (a) As determined by the Court-fees 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 Section 3, 8 & 9 of the Suits Valuation Act, 1887...."
17. Thus a suit for partition is to be valued for the purpose of jurisdiction on the market value of the entire property which is sought to partitioned. This has also been categorically held by the Hon'ble High Court of Delhi in the judgment tiled as Ramesh Chand Bhardwaja v. Ram Parkash Sharma reported as AIR 1991 Delhi 280 and Sh. Jagdish Pershad Vs. Joti Pershad, 1975 ILR (Del.) 841. In this respect reference may also be made to the judgment of Hon' ble High Court of Calcutta titled as Rajani Kanta Bag v. Raja Bala Dasi reported as AIR 1925 Calcutta 320 (DB).
18. In the judgment titled as Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan reported as 2011 AD (Delhi) 341 it was held:
" .........6. It would thus be seen that in view of the rules framed by CS no:832/07 Page No: 8/18 Punjab High court under section 9 of Suits Valuation Act, which admittedly are applicable to Delhi, there can be separate valuations for the purpose of court fee and jurisdiction. The valuation for the purpose of jurisdiction has to be the value of the whole of the properties subject matter of partition, whereas valuation for the purpose of court fee would be such as is provided by the court-fees Act.
19. In the judgment titled as Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan reported as 2011 AD (Delhi) 341 it was further held:
" ..........11. The following legal proposition of law emerges from the above-referred decisions :
(i) In order to ascertain whether the suit has been properly valued for the purpose of court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the defendants;
(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed court fee in terms of Article 17 (vi) of court- fees Act.
(iii)If the averments made in the plaint show that the plaintiff has been completely ousted from possession and is not in possession of any part of the suit property, he is required to claim possession and also pay ad valorem court fee on the market value of his share in the suit property......."
CS no:832/07 Page No: 9/18
20. The question now to be answered is as to what was the market value of the suit property on the date of institution of the suit.
The plaintiffs have claimed that they are co owners in respect of the suit property and are in joint possession of the suit property alongwith defendant no. 1 to 4. The plaintiffs have valued the suit property at Rs. One Lac. However, they have valued the suit for the purpose of court fees and jurisdiction at Rs.200/-. On the other hand the defendants no. 1 to 4 have categorically pleaded that the value of the suit property is more than Rs. 5 lacs.
21. Now let us consider the evidence on record. The plaintiffs examined PW 1 to establish their case. PW 1 did not state anything with respect to the value of the suit property nor led any evidence to show that the value of the suit property was Rs. One Lac.
22. PW 1 was cross examined at length. PW-1 stated in his cross examination that the value of the land in the locality where the suit property is situated would be as Rs.1000/- to Rs.5000/- per sq yds. depending upon the location. He further stated that Rs. One lac would not be sufficient amount for constructing the super structure of the suit CS no:832/07 Page No: 10/18 property. Thus, it is clear that if this parameter is to be applied the suit property which is having an area of 240 sq. yds., would definitely have a value of more than Rs.3 Lacs.
23. PW-1 further stated in his cross examination that his share in the suit property has been valued at Rs. One Lac. If that is taken as the para meter the value of the entire suit property would be Rs. 7 Lacs since there are seven legal heirs of Late Sh. Har Swaroop who is stated to be the owner of the suit property. He again stated that Rs. One Lac was the value of his share as well as the share of Plaintiff No.1 Prakash Lal. Going by that averment also the value of the entire property would come out to Rs. 3.5 Lacs. At one point in his cross examination he also stated that the value of the property is more than Rs. Five Lacs.
24. As against this DW 1 has stated in his examination in chief that the value of the suit property is more than Rs. Five Lacs. No suggestion was given to him in his cross examination in this respect. Counsel for the plaintiff could not elicit anything substantial in his cross examination so as to discredit his testimony in this point.
CS no:832/07 Page No: 11/18
25. Thus, the evidence on record leads us to the conclusion that the value of the suit property is more than Rs. Five Lacs and at any rate the same is more than Rs. 3 lacs. The suit therefore ought to have been valued for the purpose of jurisdiction on that amount.
26. Further more admittedly the plaintiffs are residing at at H. No. 49, Pandit Mohalla Mandawali Fazalpur, Delhi. This is the address shown by the plaintiffs in the memo of parties. There is no evidence on record that shows that the plaintiffs were ever in actual joint possession of the suit property. The plaintiffs do not have access to the suit property and there is nothing on record that at any point of time immediately prior to the institution of the suit they had access to the suit property. Thus it is a clear case of ouster. Hence since the plaintiffs are not in possession of the suit property they ought to have paid ad valorem court fees on the market value of their share in the suit property.
27. The suit has therefore not been properly valued for the purpose of court fees and jurisdiction, proper court fees has not been paid and this court has no pecuniary jurisdiction to try and entertain the present suit.
CS no:832/07 Page No: 12/18
28. These issues are therefore decided in favour of the defendants and against the plaintiff.
Issues no. 1 and 2
29. The questions to be answered are as to whether the suit is not maintainable in the present form and whether the plaintiffs are entitled for partition of the suit property.
30. The suit as framed by the plaintiffs is a suit for partition. The plaintiffs have claimed that Late Sh. Har Swaroop was the owner of the suit property and the parties to suit are the legal heirs of Late Sh. Har Swaroop who is stated to have expired intestate.
31. The Plaintiffs have claimed that they are residing at H. No. 49, Pandit Mohalla Mandawali Fazalpur, Delhi. The defendants have contended that House No. 49 Pandit Mohalla, Mandawali Fazalpur, Delhi is the ancestral property of Late Sh. Har Swaroop and Late Sh. Har Swaroop possessed other properties also which are have been described in para two of the written statement on merits.
CS no:832/07 Page No: 13/18
32. The plaintiffs stated in the replication that the House no. 49, Pandit Mohalla Mandawali Fazalpur, Delhi was built up by the plaintiffs and is not the property of Late Sh. Har Swaroop.
33. However, during cross examination PW-1 stated that the plaintiffs have not purchased the property no. 49, Pandit Mohalla, Mandawali Fazalpur, Delhi at any point of time. He further stated that House No. 49, Pandit Mohalla, Mandawali Fazalpur, Delhi was constructed during the life time of his father. PW-1 admitted that House No.49 was built up in the year 1976-77. He further stated that orally it was settled that House No. 49 would remain in possession of the plaintiffs and house no. 135 would remain in possession of the defendants no. 1 to 4 without the intervention of the sisters. This leads to the conclusion that house no. 49 was not the separate property of the plaintiffs. The Plaintiffs could not produce any evidence on record to show that House No. 49 was the the self acquired property/ separate property of the plaintiffs and was not owned by their father Sh. Late Har Swaroop.
CS no:832/07 Page No: 14/18
34. Further DW-1 clearly deposed that Late Sh. Har Swaroop was the owner the House No.49. Counsel for the plaintiff could not elicit anything substantial in the cross examination of DW 1 so as to discredit his testimony. The material on record also shows that House no. 49 was the property of Late Sh. Har Swaroop.
35. The defendants have also placed on record khasra girdavari Ex. PW 1/2 and PW1/ 5 which show that Late Sh. Har Swaroop was the owner of the other built up properties also in Khata No.683, 686 and 667 and Khasra no. 624 comprising of built up properties/ residential houses. Thus the house no. 49 and other built up properties (excluding agricultural land to which the Delhi Land Reforms Act applies) should also have been included in the properties sought to be partitioned by way of present suit. It is well settled that a suit for partial partition is not maintainable. Thus the present suit for partition is not maintainable since the plaintiffs have left out other properties owned by Late Sh. Har Swaroop which should have been included in the present suit for partition. Hence the suit deserves to be dismissed being a suit for partial partition.
CS no:832/07 Page No: 15/18
36. However, as far as the property bearing no. 135, Pandit Mohalla, Mandawali Fazalpur, Delhi i.e. the suit property is concerned the plaintiffs claim that the same was owned by Late Sh. Har Swaroop. PW-1 categorically deposed in this respect. Counsel for the defendants could not elicit anything substantial in the cross examination of PW-1 so as to discredit his testimony on this point. PW-1 further stated in his cross examination that House No. 135 was constructed by his grandfather Likhi Ram. No suggestion to the contrary was given to PW-1. PW 1 categorically denied that the suit property is the property of Late Sh. Raghubar Dayal.
37. As against this the defendants had contended in their written statement that the suit property was allotted to Late Sh. Raghubar Dayal 60 years ago by the Gram Sabha. However, no evidence was adduced by the defendants on this count that the suit property was allotted to Sh. Raghubar Dayal. No title documents were placed on record or proved. Even no witness was examined in this respect.
38. On other hand the plaintiffs have placed on record house tax receipts Ex. PW-1/7 to Ex. PW-1/14 in respect of House No.135 and CS no:832/07 Page No: 16/18 in the name of Late Sh. Har Swaroop and these receipts pertain to the year 1972-78. This clearly show that Late Har Swaroop was making the payment of House Tax in respect of the suit property and was also residing in the suit property. This falsifies the version of the defendants. Moreover no evidence was led by the defendants to show that the suit property was allotted in the name of Sh. Raghubar Dayal or was purchased by Sh. Raghubar Dayal or was constructed by Sh. Raghubar Dayal out of his own funds. The defendants have thus failed to establish that the suit property was owned by Sh. Raghubar Dayal.
39. Therefore the plaintiffs have established by preponderance of probabilities that the suit property was owned by Late. Sh. Har Swaroop. Thus the plaintiffs and the defendants no. 5 to 8 would have 1/7th share in the suit property. Further more the defendants no. 1 to 4 who are the legal heirs of Late Sh. Raghubar Dayal would be together having 1/7th share in the suit property. The parties would have been entitled to their respective shares on partition. However the suit being a suit for partial partition is not maintainable and deserves to be dismissed.
40. These issues are decided in favour of the defendants and CS no:832/07 Page No: 17/18 aginst the plaintiff in these terms.
RELIEF
41. I have already held that suit has not been properly valued for the purpose court fees and jurisdiction and this court has no pecuniary jurisdiction to try and entertain the present suit. However judgment has been delivered on all issues in view of the provisions of Order 14 Rule 2 (1) CPC. However no decree can be passed in the present suit and no relief can be granted to the plaintiffs in the present suit since the suit is beyond the pecuniary limits of jurisdiction of this court. The inevitable conclusion is that the Plaint is required to be returned to the plaintiffs in terms of the provisions of Order 7 Rule 10 CPC. No costs.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 16.03.02012 CCJ/ARC(East)
(Judgment contains 18 pages.) KARKARDOOMA COURTS,
DELHI
CS no:832/07 Page No: 18/18