Delhi District Court
R.S. Nirwal vs Ram Dhan Through Lrs on 15 March, 2024
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
fKARKARDOOMA COURTS, DELHI
RCA No. 10/2018
CNR No. DLNE01-000334-2018
R.S. Nirwal
S/o Late Ram Dhan
R/o K-101-102, New Seelampur, Delhi. ..Appellant
Versus
1. Ram Dhan (deceased)
Through his legal representatives:-
i) Meshar Devi (widow)
R/o H. No. 601, Village Janti Kala,
District Sonepat, Haryana.
ii) Kailashwati (daughter)
W/o Sh. Sube Singh
R/o H. No. 2, PWD Colony,
Nilo Khedi, District Karnal, Haryana.
iii) Raj Bala (daughter)
W/o Sh. Ramesh Kumar
R/o H. No. 47/15, 47/16,
Krishna Colony, Sindhu Border,
Narela, Delhi.
iv) Sushma (daughter)
W/o Sh. Naresh Kumar
R/o H. No. 47/16,
Krishna Colony, Sindhu Border,
Narela, Delhi.
2. Suresh Kumar
S/o Late Ram Dhan
RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 1 of 23
R/o H. No. K-101-102,
2nd Floor, New Seelampur, Delhi.
3. Rajesh Kumar
S/o Late Ram Dhan
R/o H. No. 601, Village Janti Kala,
. District Sonepat (Haryana). ...Respondents
Date of filing of the present appeal : 03.02.2018 Date of completion of Final Arguments : 15.03.2024 Date of judgment : 15.03.2024 Final Decision : dismissed JUDGMENT-in-APPEAL
1. The present appeal has been preferred by the appellant (plaintiff, before the Learned Trial Court) against the impugned judgment and decree, dated 16.12.2017, titled as R.S. Nirwal vs. Ram Dhan (deceased) through legal representatives} & Ors. in Civil Suit no. 4644/2015. The suit of the appellant/plaintiff was dismissed by the Court of the then Learned ACJ/ARC/CCJ, North East District, Karkardooma Courts, Delhi.
2. For the sake of convenience, parties shall be denoted as they were before Learned Trial Court. Appellant, herein, Sh. R.S. Nirwal as plaintiff and respondents that is Ram Dhan (deceased) through his legal representatives that is (i) Meshar Devi, (ii) Kailashwati, (iii) Raj Bala, (iv) Sushma, Suresh Kumar and Rajesh Kumar shall be referred to as defendants.
3. The brief facts as disclosed in the plaint are that appellant/ plaintiff is the owner and in possession of ground floor of house bearing number K-
RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 2 of 23 101-102, New Seelampur Delhi. Respondent/defendant number 1 is the father of appellant/plaintiff and respondent/defendant number 2 and 3 are the brothers of appellant/plaintiff. It is stated that respondent/defendant number 1 has one younger brother and two younger sisters. The sisters of respondents/defendants are married and settled at their respective matrimonial homes. It is further stated that the respondent/defendant number 1 has three sons and three daughters, out of which, two sons and two daughters are married. It is further stated that the respondent/defendant number 1 and his family/sons are residing/working at Delhi. It is further stated that the oral partition was effected in the family and the brothers of respondent/defendant number 1 were got settled in Haryana, while, respondent/defendant number 1 and his family members were settled in Delhi. It is further stated that the land measuring 150 square yards situated in Delhi was distributed among three sons of respondent/defendant number
1. It is further stated that the property measuring 50 square yards bearing number K-101,102 New Seelampur Delhi was given to appellant/plaintiff. While, the property measuring 100 square yards situation at Kabir Nagar near Babarpur Extension, Delhi was given to respondent/defendant number 2 and 3. It is further stated that the property of Kabir Nagar was sold out for sum of rupees 24,00,000/- by all the respondents/defendants and thereafter the respondents/defendants wanted to grab the property bearing number K-101-102, New Seelampur, Delhi of appellant/plaintiff.
It is further stated that after selling the property measuring 100 square yards as mentioned above, the respondents/defendants came to the appellant/plaintiff and requested for providing of accommodation/adjusted the respondents/defendants in the property of appellant/plaintiff. Appellant/plaintiff agreed for the same because respondent/defendant number 1 is the father and respondent/defendant number 2 and 3 are RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 3 of 23 younger brothers of appellant/plaintiff. It is further stated that the appellant/plaintiff gave permission to respondent/defendant number 1 and 3 for living at first floor and respondent/defendant number 2 was given permission to live on the second floor purely on licence basis. It is further stated that the appellant/plaintiff being the son of respondent/defendant number 1 always respected his father/brother, but, was not aware of the malafide intentions of respondents/defendants. It is further stated that due to the maltreatment, beating and abusing by the respondents/defendants the appellant/plaintiff had no option but to revoke that permission. It is further stated that the respondents/defendants did not mend their ways, instead, they became more cruel and inhuman towards family of appellant/plaintiff. It is further stated that the appellant/plaintiff by virtue of legal notice, dated 12.10.2007, asked and directed the respondents/defendants to hand over the peaceful and vacant possession of the 1 st floor and 2nd floor of property/house bearing number Κ-101-102, New Seelampur Delhi. It is therefore requested in the plaint by the appellant/plaintiff that a decree of mandatory and permanent injunction alongwith decree for granting mesne profits be passed in favour of appellant/plaintiff.
4. Respondent/defendant number 1 contested the suit by filing his written statement in which apart from denying contentions raised by the appellant/plaintiff in his plaint, it is stated that the suit filed by appellant/plaintiff for mandatory, permanent injunction and manse profits is not maintainable in the eyes of law as the appellant/plaintiff has nothing to do with the said property. It is further stated that the respondent/defendant number 1 is owner of property as the same was allotted to him by the Delhi Development Authority. It is further stated that the appellant/plaintiff has no cause of action to file the present suit against RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 4 of 23 the respondentsdefendants. The appellant/plaintiff is not in possession of the property, but, was allowed to keep his articles in one room as he was facing difficulty in the rented accommodation where he lived. It is further stated that the appellant/plaintiff is also one of sons of respondent/defendant number 1 who is also married and living separately. It is further stated that after seeing the conduct of appellant/plaintiff the respondent/defendant number 1 had disinherited him from his properties and published the same in the newspaper "Sahara" dated 21.05.2005. It is further sated that the appellant/plaintiff is unnecessarily harassing the old parents as well as their other brothers. It is specifically denied that the property bearing number K-101-102 was given to the appellant/plaintiff as alleged. It is stated that the property measuring 100 square yards at Kabir Nagar is in possession of respondent/defendant number 2 and 3. It is further stated that it is the appellant/plaintiff who is not mending his ways and he is making the life of the respondent/defendant miserable by filing false cases. It is further stated that the appellant/plaintiff has nothing to do with the property in dispute nor any share was allotted to him on the basis of the oral partition. It is therefore requested that the suit of appellant/plaintiff be dismissed.
It is pertinent to mention here that vide order, dated 08.02.2017, at the stage of respondent/defendant's evidence, the Court struck off the defence of respondent/defendant number 2 and 3 on the ground that respondent/defendants had not filed written statement in time. Despite opportunities having being granted to the appellant/plaintiff, no replication was filed.
5. Later on, Learned Trial Court vide order dated 24.02.2011, framed the following issues to dispose of the suit of appellant/plaintiff:-
RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 5 of 23
1. Whether defendant number 1 is the owner of the suit property? OPD
2. Whether plaintiff is entitled for decree of mandatory injunction as claimed? OPP
3. Whether plaintiff is entitled for decree of permanent injunction as claimed? OPP
4. Whether plaintiff is entitled for decree of mesne profits as claimed? OPP
5. Relief.
6. Thereafter, appellant/plaintiff has led his piece of evidence.
Appellant/plaintiff Sh. R.S. Nirwal has got examined himself as PW1 He tendered his evidence by way of affidavit which is Ex.P1 and relied upon the documents i.e. site plan as Ex.PW1/1, legal notice undated to respondent/defendant number 1 to 3 as Ex.PW1/2, certified copy of evidence of respondent/defendant number 1 in Suit bearing number 868/08 as Ex.PW1/3, copy of receipt, dated 24.05.2001 of Ram Rahim Photo Studio as Mark A, copy of Kalandra under section 133 the Code of Criminal Procedure as Mark B, Medico Legal Case, dated 03/01/2005 of Smt. Santosh as Mark C, receipt, dated 12.10.2020 as Ex.PW1/8 and Acknowledgment Due card as Ex.PW1/9. PW1 was cross examined at length by Learned counsel for respondent/defendant number 1 to 3. During the course of cross examination, PW1 has submitted that the property bearing number K-101 was allotted in the name of Sh. Laxman Singh and property bearing number K-102 was allotted to respondent/defendant number 1. It is also submitted that the papers regarding the allotment in the re-settlement colony is in the name of his father i.e. respondent/defendant number 1. PW1 has also submitted that his RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 6 of 23 uncle Late Dayanand had also raised the dispute against the respondent/defendants regarding the property bearing number K-101 which was already verbally settled.
Sh. Parmod Kumar was examined as PW2. PW2 in his examination in chief has stated that appellant/plaintiff is his brother-in-law as his younger sister was married with the appellant/plaintiff on 24.01.1999. It is further stated by PW2 that at that time, the parents of appellant/plaintiff were contacted by him alongwith his father for marriage of appellant/plaintiff with the son of respondent/defendant number 1. It is further stated that respondent/defendant number 1 disclosed the fact that his son who is the appellant/plaintiff, is practicising as an Advocate and earning rupee 50,000/- per month. It is deposed that it was told to him that appellant/plaintiff was given in partition suit property. It is stated that it was told by respondent/defendant number 1 that he had two properties that is one property situated at Kabir Nagar near Babarpur Extension, measuring 100 square yards which was given to Sh. Suresh Kumar and Sh. Rajesh Kumar in equal shares (50 square yards each) and third son who is the appellant/plaintiff was given the disputed property bearing number K- 101-102 measuring 50 square yards at New Seelampur, Delhi. Thereafter, PW1 tendered his evidence by way of affidavit which is Ex.P.2 and relied upon the following documents i.e., photocopy of Election ID Card of Sh. Satyawan as Ex.PW2/1 (OSR), photocopy of Election ID Card of Sh. Anurag Singh as Ex.PW2/2 (OSR). PW2 was cross examined at length by Legal Aid Counsel for respondents/defendants.
Sh. Girish Chand, Medical Record Attendant, GTB Hospital, Shahdara, Delhi was examined as PW3. PW3 produced the summoned record i.e. MLC of Smt. Santosh and the same is Ex.PW3/1 (OSR). PW3 also deposed that he has no personal knowledge about the contents of said RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 7 of 23 MLC as it was not prepared by him.
Smt. Asha was examined as PW4. PW4 in her examination in chief has stated that she is the proprietor of M/s G.S. Enterprises, which is a gas agency, having it's office at 2970, Shalimar Park Extension, Bholanath Nagar, Shahdara, Delhi. PW4 has further stated that it is correct that she had informed appellant/plaintiff through document Ex.PW4/A about the existence of gas connection, in suit premises, on 13.12.2014. As per their record, only one gas connection bearing number 30359 was present at suit premises in the name of Ram Dhan and other gas connection bearing number 29798 was suspended on 13.12.2014. PW4 stated that she could tell the date when gas connection bearing number 29798 was suspended. PW4 was cross examined at length by Learned counsel for respondent/defendant.
Sh. Pawan Kumar, Lower Division Clerk, A & C Department, Shahdara (North Zone), East Delhi Municipal Corporation was examined as PW5. PW5 produced the relevant summoned record i.e. survey report which is Ex.PWS/A (OSR). PW5 was cross examined at length by Learned counsel for respondent/defendant.
7. After completion of appellant/plaintiff's evidence, respondent/defendant number 1 Sh. Ram Dhan led his piece of evidence. In his evidence, he reiterated the same facts as are mentioned by him in his written statement which are not repeated herein. He tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the following documents i.e. notice issued by Municipal Corporation of Delhi, dated 03.01.2003 to Laxman Singh as Ex.DW1/1, notice issued by Municipal Corporation of Delhi, dated 03.01.2003 to Ram Dhan as Ex.DW1/2, publication notice, dated 21.05.2005 as Ex.DW1/3, certified copy of Sub RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 8 of 23 Divisional Magistrate Report, dated 27.03.2006 (Colly) as Ex.DW1/4. DW1 was partly cross examined, but, before the completion of his cross examination he expired and therefore his legal representatives were got substituted.
Sh. Pradeep Kumar Sharma, Lower Division Clerk, Delhi Urban Shelter Improvement Board, Welcome, Seelampau, Phase-III, Delhi was examined as DW2. DW2 is the summoned witness. DW2 produced the summoned record viz. copy of allotment letter, dated 05.04.1963 in favour of Sh. Laxman Singh S/o Sh. Ramanand of Plot number K-101, New Seelampur, Delhi and the same is Ex.DW2/1 (OSR), copy of notice, dated 03.01.2003 issued to Laxman Singh S/o Sh. Ramanand of Plot number K- 101, New Seelampur, Delhi regarding deposition of Licence Fee and certain documents and same is Ex.DW2/2 (OSR), notice, dated 28.02.2008 issued to Laxman Singh S/o Sh. Ramanand of Plot number K-101, New Seelampur, Delhi regarding deposition of Licence Fee and certain documents and the same is Ex.DW2/3, copy of allotment letter, dated 05.04.1963 in favour of Sh. Ram Dhan S/o Sh. Kalu Ram of Plot number K-102, New Seelampur, Delhi and the same is Ex.DW2/4 (OSR), copy of notice, dated 03.01.2003 issued to Ram Dhan S/o Sh. Kalu Ram of Plot number K-102, New Seelampur, Delhi regarding deposition of Licence Fee and certain documents and the same is Ex.DW2/5 (OSR), notice, dated 28.02.2008, issued to Ram Dhan S/o Sh Kalu Ram of Plot number K-102, New Seelampur, Delhi regarding deposition of Licence Fee and certain documents and the same is Ex.DW2/6. DW2 was cross examined by Learned Counsel for appellant/plaintiff.
Ms. Meshar Devi W/o Late Ram Dhan was examined as DW3. She is the wife of respondent/defendant number 1. She reiterated the same facts as are mentioned in the written statement of respondent/defendant number RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 9 of 23
1. Thereafter, she tendered her evidence by way of affidavit which is Ex.DW3/A and relied upon the the documents i.e. already exhibited as Ex.PW1/D1, Ex.DW2/1, Ex.DW2/4, Ex.DW1/3, Ex.DW1/4, Ex.PW1/D3, EX.PW4/D1 and Ex.PW1/D2. DW3 further exhibited the documents i.e. application under Order 39 rule 1 & 2 CPC, site plan, complaint dated 05.05.2017, complaint to National Human Rights Commission alongwith postal receipts, complaint dated 16.05.2017 and complaint dated 10.08.2017 and complaint dated 17.08.2017 as Ex.DW3/1 (colly). DW3 was cross examined at length by appellant/plaintiff.
8. Subsequently thereto, the matter was fixed for final arguments which were heard conclusively. After, hearing the final arguments, Learned Trial Court has observed that the appellant/plaintiff has claimed that he has become the owner of the suit property by virtue of a partition, but, miserably failed to substantiate this claim of partition by adducing relevant piece of documentary or oral evidence. Learned Trial Court has also observed that even the plaint as well as the affidavit of evidence failed to clearly mention who were the parties to that alleged partition. It is also observed that there is no specific averment with respect to the ancestral status of the property bearing number K-101. Instead, all the averments raised by the appellant/plaintiff are vague in nature. Appellant/plaintiff has also miserably failed to examine any family member of his uncle which also he claimed were the parties to the alleged partition. Learned Trial Court has also observed that there is nothing on record to ascertain that appellant/plaintiff is residing in the suit property or that respondents/defendant came into the suit property as licensee of the appellant/plaintiff. Learned Trial Court has also observed that admittedly the property bearing number K-102 was in the name of father of RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 10 of 23 appellant/plaintiff and the ownership of property bearing number K-101 in the name of grandfather of appellant/plaintiff has not been proved. Therefore, keeping in view all these observations/discussion, Learned Trial Court dismissed the suit of appellant/plaintiff.
9. Later on, the appellant/plaintiff aggrieved by the aforementioned decision preferred this appeal. Appellant/plaintiff in his application mentioning the grounds of appeal have once again reiterated the contents of plaint as well as his testimony. It is stated that the impugned judgment and decree are against the facts and law, hence, the same are liable to be set-aside. It is further stated that the Learned Trial Court had failed to appreciate the documents filed by the appellant/plaintiff. It is further stated that the Learned Trial Court had also failed to appreciate the written statement filed by the respondent/defendant number 1 in which he stated that the suit property was orally partitioned/or say that there is existence of family settlement. It is further stated that the Learned Trial Court had failed to appreciate the evidence which was filed/produced by the appellant/plaintiff. It is further stated that the Learned Trial Court had failed to adopt the procedure of law, because, the property bearing number K-101-102 was on lease, but, the respondent/defendant was not the absolute owner. It is stated that as per judgment in case titled as Inderjit Singh vs. Tarolochan Singh ete, reported in 1991 Rajdhani Law Reporter page 234 a building built on a Delhi Development Authority plot can be partitioned between family members provided there is no division of plot. This partition is not a transfer of any portion. The word lay out plan in the lease deed means layout plan of the group of plots and not that of any plot. It is stated that such partition does not require permission of the Delhi Development Authority. It is further stated that the Learned Trial Court had RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 11 of 23 failed to adopt the procedure and written statement was amended without any procedure of law. It is further stated that the Learned Trial Court had failed to appreciate that the oral partition took place which was admitted by the respondent/defendant number 1 and DW3 also stated in her cross examination that no written partition took place during last 150 years and also oral partition took place. It is further stated that the Learned Trial Court had not applied his judicious mind at the time of disposal of the case and also failed to adopt the process of law.
10. I have heard the arguments from both sides on the grounds of appeals in detail and perused the impugned judgment as well as evidence adduced by both parties including the written submissions.
In the written submissions filed on behalf of appellant/plaintiff he has reiterated the contents of plaint, his testimony alongwith grounds of appeal. It is stated that during the pendency of case father of appellant/plaintiff had expired who who was respondent/defendant number 1, and also the father of the respondent/defendant number 2 and 3. It is further stated that the oral family partition was got done by respondent/defendant number 1 in the year 1998 among the sons of respondent/defendant number 1. It is further stated that the respondent/defendant number 1 had declared that the property situated at Babarpur Extension, Kabir Nagar, Delhi measuring about 100 square yards consisting of five shops and also rooms etc. be given to respondent/defendant number 2 and 3. It is further stated that at the time of oral partition, 50 square yards was given to respondent/defendant number 2 and remaining 50 square yards consisting of 5 shops was given to respondent/defendant number 3. It is further stated that it was also admitted by respondent/defendant number 1 in his written statement in RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 12 of 23 paragraph number 7 that "...it is not disputed that the property bearing number K-101-102 was given to appellant/plaintiff..." Though, later on, it was clarified that the property bearing number K-101-102 was not given to the appellant/plaintiff as alleged in the para and it was a typographical error. Again, in para 7 of the written statement there is admission that the property measuring 100 square yards at Kabir Nagar is in possession of respondent/defendant number 2 and 3. It is stated that the previous Presiding Officer after going through the plaint, had framed the issues in this case and there is no occasion of typographical error. It is further stated that the disposal of application for amendment of written statement in favour of respondent/defendant number 1 was wrong/unsustainable in the eyes of law, because the Hon'ble Supreme Court had held in the case titled as Raj Kumar Bhatia vs. Subhash Chander Bhatia that allowing amendment would not amount to withdrawal of an admission contained in the written statement since, amendment sought to elaborate upon an existing defence.
It is further stated that the Medico Legal Case pertaining to the Guru Teg Bahadur Hospital is on record, but, again Learned Trial Court was silent at the time of passing of the impugned judgment regarding the same. It is further stated that the testimony of official from gas agency showed the conduct of respondent/defendant number 1 as two connections cannot be kept on one address. It is further stated that the Learned Trial Court had mentioned in para number 24 that no documentary evidence or oral had been produced by the appellant/plaintiff except his own oral testimony. But, it is wrongly mentioned by the Learned Trial Court, because, as respondent/defendant number 1 had already admitted in his written statement that the property bearing number K-101-102, New Seelampur, Delhi was divided among three sons in favour of appellant/plaintiff. It is RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 13 of 23 further stated that DW3 had also stated in her cross examination that no written agreement was executed in their family since 150 years again, there was no requirement of documentary evidence. It is further stated that the respondent/defendant number 1 had already admitted in his cross examination in case titled Ram Dhan vs. Rajbir Singh that family of respondent/defendant number 1 had got settled in Delhi. It is further stated that the death certificate and hospital bills of deceased, namely, Ram Dhan was in the name of respondent/defendant number 1 and they mentioned the address of deceased of native Village Jati Kalan, Sonepat, Haryana, but, the Learned Trial Court did not consider the same at the time of passing of the judgment. It is further stated that the oral partition is legally possible/permissible. It is further stated that the appellant/plaintiff had already proved that the partition took place among the parties in the year 1998. It is further stated that the record shows that this property is in the name of Sh. Kalu Ram who was the father of respondent/defendant number 1. The respondents/defendants are well aware that the property bearing number K-101 was purchased by the father of respondent/defendant number 1, due to this reason the relevant record is available in the Municipal Corporation of Delhi in the name of father of respondent/defendant number 1. It is further stated that the Learned Trial Court had mentioned the judgment titled as Anathula Sudhakar vs. P. Buchi Reddy AiR 2008 SC 2033, but, this judgment does not apply in this case as the appellant/plaintiff came before the Learned Trial Court for the verdict/justification. It is further stated that as per PW5, Municipal Corporation of Delhi had produced the document from 1972 in the name of Kalu Ram/Kalu and same was not challenged by any respondent/defendant, but, the Learned Trial Court was silent qua explanation of these documents.
RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 14 of 23 Subsequently, once again, Ld. Counsel for appellant/plaintiff had filed written submissions in which contents of earlier written submissions filed on behalf of appellant/plaintiff are reiterated which, are not mentioned here to avoid any repeatation. Ld. Counsel for appellant/plaintiff in his subsequent written submissions has basically relied upon the following judgments that is Modi Spinning & Weaving Mills vs. Ladha Ram & Company, AIR 1977 SC 680, Panchdeo Narain Srivastava vs. KM. Jyoti Sahay, AIR 1983 SC 462, Bimla Devi vs. Shiv Narain Singh, 1997 (47) (1) BLJR 282, Chiranjilal vs. Bhagwan Dass, AIR 191 Delhi 325, Kali Charan vs. Mohananand, 29 I.C. 467, Minor Navneetha Through his uncle and next friend vs. T. Jayaprakash (2008) 8 MLJ 39, MAD., Baidyanath Parsad Mishra vs. State of Bihar, AIR 1981, Pat. 24, Sita Ram Parsad vs. Mahadeo Rai, AIR 1980 Pat. 254, Rama Nagappa Mahar vs. Nagappa Mallappa, AIR 2006, Knt 31, Sheo Dayal vs. Jadoo Nath, 9 W.R. 61, Venkideswara Prabhu Ravindranatha Prabhu vs. Surendranath Prabhu Sudhakar Prabhu, AIR 1985 Ker. 265, Panchali vs. Manni, AIR 1963 Ker. 66 (FB), Sarain vs. Ajit Kumar, AIR 1966 SC 432, Satya vs. Satya, 10 C.L.R. 503, ILR 31 Cal. 247, Kaloomal Tapeswari Prasad vs. Comm. of Income Tax, Kanpur, AIR 1982 SC 760, Krishna Bai vs. Shivanath Singh, AIR 1993 MP 65. All these judgment have been perused very carefully, these judgments do not apply to the present facts and circumstances of the case as basically here the bone of contention is the alleged oral partition.
On the other hand, in the written submissions filed on behalf of respondents/defendants, apart from reiterating the facts as are mentioned in the written statement and the evidence, it is stated that the subject matter of instant appeal is the property bearing number K. 101-102, New Sestampur, Delhi, which was allegedly combined into one plot. It is further stated that RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 15 of 23 true fact is that the plot bearing number K-101 was allotted by way of lease in the name of Sh. Laxman Singh, and the plot bearing number K- 102 was allotted by way of lease in the name of the respondent/defendant number 1 by the Delhi Development Authority. It is further stated that due to the act and conduct of the appellant/plaintiff, respondent/defendant number 1 had disinherited/debarred the appellant/plaintiff from his property vide public notice published in the newspaper Sahara, dated 21.05.2005. It is further stated that the appellant/plaintiff claims himself to be the owner of the suit property on the basis of oral partition, but, surprisingly enough he had not put on record even an iota of proof to show that he is the owner of the suit property. It is further stated that the entire claim of appellant/plaintiff is founded upon the alleged oral partition, but, the appellant/plaintiff has miserably failed to even mention the parties between whom the oral partition as alleged had been entered. It is further stated that in the entire plaint, during the course of evidence/arguments, and even in the appeal, the appellant/plaintiff has failed to classify the property in question as an ancestral property that could entitle it to be subjected to the alleged partition.
It is further stated that the appellant did not deliberately examine any family member of the younger brother of respondent/defendant number 1, and not even made him party to the instant suit. It is further stated that the appellant/plaintiff had not only failed to establish his ownership over the suit property, but, also has nowhere put on record any proof that he had given the said property on licence to the respondents/defendants. It is further stated that the respondent/defendant number 1 was the father of appellant/plaintiff, and if the property as alleged is partitionable by virtue of being ancestral property, then the respondent/defendant number 1 becomes one of the co-sharers in the property and the appellant/plaintiff RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 16 of 23 failed to aver about his part of share. Furthermore, the appellant/plaintiff had failed to distinguish that whether the alleged oral partition had taken place with respect to the entire 50 square yard property or with respect to only 25 square yards. It is stated that the appellant/plaintiff had not disputed that the property bearing number K-102 is in the name of the respondent/defendant number 1, which clearly implies that the said property could not have been the subject matter of the alleged partition, because it is a well-established principle that the preceding requirement of partition of a property is the already existing right, which in this case the appellant clearly did not have. It is further stated that as the records clearly show, Laxman Singh is the allottee of the property bearing number K-101 since 1963, and the said property is still in the name of Laxman Singh. Now, the appellant/plaintiff is silent upon how the said property had come into the ownership and possession of the appellant's/plaintiff's grandfather, and how it was partitioned. No title document has been produced by the appellant/plaintiff that could show that the property being partitioned as alleged was owned by the appellant's/plaintiff's grandfather. It is further stated that Sh. Laxman and respondent/defendant number 1 are the licensees of plots bearing number K-101, and K-102, respectively. It is preposterous to claim that any oral partition of the suit property ever took place,
11. Analysis and Findings:-
On the basis of aforesaid grounds, the point for determination is framed as:- Whether the findings and conclusion drawn by Learned Trial Court in passing the impugned judgment and decree, dated 17.12.2016, are bad in the eyes of law and legally not sustainable and liable to be set aside.
The expression "partition" under the Hindu law may comprehend, as RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 17 of 23 pointed out by Lord Westbury in Appovier vs. Rama Subbaayyan, 11 Moo. Ind. App. 75 at p. 90 (P.C.) the division of title and division of property. A physical division of the family property may be brought about either by a suit for partition,or in pursuance of an agreement between the members dividing the property. The division of right likewise may be a matter of agreement between the parties. The members of an undivided family may agree among themselves with regard to any particular property that they shall enjoy the same thereafter in certain defined shares. Such a definment of share effects a change in the character of the undivided property. On such a definement of the shares, family ceases to be joint and the members thereof cease to be joint tenants and become tenants-in- common. Under the Hindu Law, partition is of two kinds: (I) separation in status and (2) separation in interest or estate. Thus, partition is basically re- distribution 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 thereof 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. Whenever partition or separation of a share as such is raised, the court at the first stage decides whether the plaintiff has a share in the suit property and whether he is entitled to division and separate possession. Reliance is placed upon Chennananjappa v. Khaleel, 43 Mys. 375 and Waman v. Ganpat, 1936 Bom. 10 at p.12 and Shub Karan Bubna @ Shub Karan Prasad Bubna vs. Sita Saran Bubna & Ors., Special Leave Petition (C) No. 17932/2009, decided on 21.08.2009 and 10 All. 272, 287 (P.C).
It is to be noted that plaintiff has to establish his case and he will not automatically succeed merely because of the failure of the defendant to RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 18 of 23 establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. Further, burden of proof in cases of partition as mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Section 103 of the Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, and lastly Section 104 of the Act provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of other fact is on the person who wishes to give such evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 19 of 23 the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Further, again coming back to the aspect of partition especially oral partition, it is not out of place to say that the fact that the members of a joint family divide among themselves some of the family assets does not in itself mean a division in status. The law is summarised in the following passage in Mayne (10th Edition):
"Partition is a new status, and when it is brought about by consensus of the members of a coparcenary they must intend that their condition as coparcenars shall cease. It is not sufficient that they should alter the mode of holding their property. They must alter, and intend to alter, their title to it. They must cease to be joint owners, and becomes separate owners. On the one hand, the mere ceasser of commensality and joint ownership, the existence of separate transactions, the division of income or the holding of land in separate portions, or a mere definition of shares in revenue and village papers, do not establish partition, unless such steps were taken with a view to carry out a partition. The question however is one of fact to be decided in the light of legal principles, as to the cumulative effect of all the circumstances." (Page 556.) Also, doubtless that oral partition between co-owners is valid in law. Section 9 of the Transfer of Property Act says that a transfer of property may be made without writing in every case in which a writing is not expressly required by law. A partition between co-owners, it may perhaps be said to involve a transfer of property, because in the specific properties allotted to a particular co-owner, the interest which the other co-owners had previous to the partition, is given up and to that extent it may be said to be a transfer of property. But the Transfer of Property Act itself does not expressly require such a partition to be in writing and there is no other provision of law requiring such a partition to be evidenced by writing. The only Section in the Transfer of Property Act which can possibly be held to apply is Section 118 dealing with exchange that is "When two persons RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 20 of 23 mutually transfer the ownership of one thing for the ownership of another, neither thing or both things be money only, the transaction is called an 'exchange'. In Kale v. Dy. Director of Consolidation, AIR 1968 SC 1299 the Hon'ble Supreme Court laid down the following proposition with regard to the family arrangements. (1) The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family. The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence. Reliance is also placed upon Peddu Reddiar v. Kothanda Reddy, (1966) 1 M.L.J. 333, Kishna Bai v. Shivnath Singh, A.I.R. 1993 M.P. 65 at p. 67 and Mulla, Hindu Law, 2023 edition, pages 1131-1160.
Now, adverting to the facts of this case, appellant/plaintiff in his plaint as well as in his evidence by way of affidavit mentioned/deposed that the suit property came into his possession by way of oral partition/family settlement. This statement made by appellant/plaintiff without any accompanied facts/circumstances which led to believe the existence of any such oral partition. There is no mention of any of the surrounding circumstances viz. when and where the aforesaid alleged settlement took place? names of persons present at the time of alleged settlement etc. Not even a single witness either named or produced to depose before the Court qua the alleged settlement. It seems in the overall circumstances that it is more of a sham/hollow submission which cannot be relied upon in the absence of the relevant evidence surrounding/accompanying the alleged settlement. Appellant/plaintiff has though got examined PW2 in his favour claiming him to be aware of the alleged settlement, but, PW2 in his testimony specifically deposed that he was told about the fact of the appellant/plaintiff having the suit property RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 21 of 23 fallen in his share by way of alleged settlement by the father of appellant/plaintiff itself who is none of her than the respondent/defendant number 1 here. It is never the case of PW2 that he has ever witnessed the taking place of the alleged oral partition/family settlement.
Further, there are allegations/counter allegations with respect to the possession of the suit property by the appellant/plaintiff. No relevant proof as such has been provided by the appellant/plaintiff regarding his exclusive possession of the suit property over any period of time as alleged by him or that he has allowed/right to allow respondents/defendants to live in the suit property just as licencee. Admittedly, the property bearing number K- 102 belongs to the father of appellant/plaintiff against whom the present suit has been filed by the appellant/plaintiff (though after his death, other legal representatives including the mother of appellant/plaintiff was made party to the present suit). It is again not clarified/proved by the appellant/plaintiff that how and in under what circumstances, he is entitled to have the complete house even in the present scenario of the death of father in whose name the property was admittedly allotted. With, respect to property bearing number K-101, undoubtedly it was allotted to Sh. Laxman Singh, though the appellant/plaintiff has relied upon certain bills pertaining to the property in the name of his father/mother, but, all these circumstances fails to establish that this property is part of the ancestral property which allegedly falls into the share of appellant/plaintiff. Accordingly, in light of above discussion there seems to be no ground exists in favour of appellant/plaintiff, the burden of proof lying upon him has not been discharged, therefore the appeal filed by the appellant/plaintiff is hereby dismissed. The judgment passed by the Learned Trial Court suffers from no infirmity or illegality for which the same should be set aside. Hence, the impugned judgment dated 16.12.2017 RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 22 of 23 is hereby upheld including it's findings.
12. Copy of this judgment be sent along with Trial Court Records.
13. Appeal file be consigned to Record Room, after necessary compliance. MANU Digitally signed by MANU VEDWAN VEDWAN Date: 2024.03.19 16:07:14 +0530 (Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 15th March, 2024 RCA No. 10/2018 R.S. Nirwal Vs. Ram Dhan Through Lrs. Page No. 23 of 23