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Delhi District Court

Daya Chand Sharma vs . Kishan & Ors. on 21 December, 2018

Suit No. 26211/16                                         Page 1 of 25

         IN THE COURT OF DR. JAGMINDER SINGH
       JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
     cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI

Suit No. : 26211/16

In the matter of :
1)     Sh. Daya Chand Sharma,
       S/o Late Sh. Roop Chand,
       R/o Village Tajpur Khurd,
       Post Office Chhawla, New Delhi-71.

                                               ........Plaintif

                                      Versus

1)     Sri Kishan,
       S/o Late Sh. Roop Chand,

2)     Sh. Shyam Lal,
       S/o Late Sh. Roop Chand,

3)     Sh. Rajender Singh,
       S/o Late Sh. Roop Chand,

4)     Sh. Mahender Singh,
       S/o Late Sh. Roop Chand,

5)     Sh. Ved Prakash,
       S/o Late Sh. Roop Chand,

       All defendants are R/o Village
       Tajpur Khurd, Post Office Chhawla,
       New Delhi-71.

                                               ......Defendants


Daya Chand Sharma Vs. Kishan & Ors.
 Suit No. 26211/16                                    Page 2 of 25

Date of institution of the suit           :     03.07.2008
Final Arguments Heard on                  :     05.12.2018
Date of Judgment                          :     21.12.2018
Final Decision                            :     DISMISSED

     SUIT FOR PARTITION & PERMANENT INJUNCTION.

JUDGMENT :

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1. This is a suit for partition & permanent injunction.

2. Brief facts necessary for the disposal of the present suit as mentioned in the plaint are that the defendants no. 1 to 5 are real brothers of plaintiff. Defendants along with plaintiff are the owner and recorded as co-owner with respect to suit property i.e. residential land bearing Khasra No.48 (0-16), 49 (2-18) and 31/1(0-02) total land measuring 03 Bigha & 16 Biswa = 76 Biswas in revenue estate of village Tajpur Khurd, Najafgarh, Palam, New Delhi and plaintiff & defendants have 1/6th share each in the suit property. The plaintiff is having birth right, title and interest equal to defendants in the suit property being the ancestral property having been inherited by them from their forefather and the name of plaintiff is being recorded Daya Chand Sharma Vs. Kishan & Ors.

as co-owner of the residential property. There is no demarcation in the suit property and the same is joint and undivided property of plaintiff as well as defendants and because of absence of any demarcation, defendants are depriving the plaintiff from using his share and always try to grab the share of plaintiff in suit property. As the prices of suit property have risen sharply and due to that reason, defendants threatened the plaintiff that they can sell the entire suit property and will create third party interest in the suit property. There is strong apprehension that defendants will dispose off the suit property by creating third party interest and grab the entire consideration. Infact there is neither any legal necessity for transfer of suit property nor the defendants have any debt or burden of any marriage or any other cause or reason for disposal of ancestral land which is coming from generation to generation and the entire exercise of the defendants is to grab the share of plaintiff. Defendants are intend to sell the entire suit property even after the repeated request of plaintiff. Daya Chand Sharma Vs. Kishan & Ors.

Defendants are actively contemplating to dispose off the suit property and to hand over the possession to prospective buyer. This suit is filed to protect the possession and share of the plaintiff in suit property. Plaintiff has given legal notice to the defendants but defendants have not given any reply. Cause of action for filing present suit is firstly arose on 28.05.2008 & 05.06.2008 when plaintiff has given notices to defendants, it further arose on 06.06.2008 when defendant no.1 threatened to dispose off the suit property after construction of a separate wall on the land of Khasra No.48. As regards to relief of partition, the cause of action is continuous one and it is open to the plaintiff being the co- owner to file the suit for partition at any time. This Court is having jurisdiction for trial of this suit.

3. On the suit of the plaintiff, summons were issued to the defendants. Defendants no 1 to 5 were served. However, defendants no. 1 to 4 appeared but defendant no.5 did not appear. Thereafter, Sh. Ved Prakash, sole LR of defendant no.5 was impleaded as a party. However, due to Daya Chand Sharma Vs. Kishan & Ors.

continuous non-appearance, LRs of defendant no.5 was proceeded ex-parte as clarified in order dated 18.01.2017.

4. Written statement filed on behalf of defendant no.1 stating that all the properties left by Late Sh. Roop Chand i.e. father of plaintiff & defendants had already been divided by way of a family settlement and said family settlement had also been acted upon by the legal heirs i.e. parties of the suit. It is further submitted that plaintiff wants to disturb the said family settlement by which the joint property was distributed among the legal heirs. The legal heirs have already constructed their houses in their respective portions. It is further submitted that during the lifetime of father of the parties, the defendant no.1 was given only one & half Killa of land whereas the plaintiff was given three Killas of land in furtherance of family settlement. It is further submitted that the plaintiff has sold out his portion and purchased the land at Hasangargh, District Sonipat, Haryana along with other plots at Shyam Vihar, Nazafgarh. Defendant no.1 also stated that the suit Daya Chand Sharma Vs. Kishan & Ors.

property i.e. plot in question came to his share in the family settlement and since then, he is in possession of the same. On merits, defendant no.1 opposed the suit of the plaintiff and requested for dismissal of the suit.

5. In the WS filed on behalf of defendants no. 2 to 4, it is submitted that the suit property is common ancestral property and is in joint possession of plaintiff & all the defendants without any partition. They have further stated that they have no objection, if the share of the plaintiff is handed over to him after partition of the suit property. On merits also, defendants no. 2 to 4 had supported the case of the plaintiff.

6. Thereafter, evidence were lead by both parties after framing of issues and the suit was decided by the concerned Court vide judgment dated 19.09.2013. However, vide order dated 26.11.2013 of the Ld. Appellate Court, the matter was remanded back after setting aside the judgment dated 19.09.2013 with a direction to decide the matter afresh. The direction was also passed for framing an Daya Chand Sharma Vs. Kishan & Ors.

additional issue with regard to partition. Including the additional issue of partition as per order of Ld. Appellate Court, following issues were framed in this matter:-

(i) Whether all the properties left behind by Late Sh.Roop Chand has been distributed/divided by way of family settlement which has also been acted upon, if yes, its effect? (OPD-1)

(ii) Whether plaintiff is entitled for 1/6th share in the suit property, as prayed for? (OPP)

(iii) Whether plaintiff is entitled for permanent injunction against defendants in respect of 1/6th share in the property i.e. 3 Bighas and 16 Biswas falling within Khasra No.48 (0-16), 49 (2-18), 31/1 (0-02) ? OPP.

(iv) Whether plaintiff is in possession of 1-6th share in property i.e. 3 Bighas and 16 Biswas falling within Khasra No.48 (0-16), 49 (2-18), 31/1 (0-02)? OPP.

(v) Whether defendant no.1 is in possession of Khasra No.31/1 (0-02) and 48 (0-16)? OPD.

(vi) Relief.

Daya Chand Sharma Vs. Kishan & Ors.

7. During evidence, plaintiff had examined only himself as PW1 regarding the issues framed earlier as well as for additional issues. PW1/plaintiff had tendered his affidavit Ex.PW1/A and relied upon the following documents :-

       (1)    Ex.PW1/1 i.e. the site plan.

       (2)    Ex.PW1/2 i.e. the Khatoni.

       (3)    Ex.PW1/3 i.e. the Legal Notice.

       (4)    Ex.PW1/4 i.e. the original postal receipts.

       (1)    Ex.PW1/5 (Colly) i.e. the photographs.

8.            No any other witness was examined by the

plaintiff and thereafter, plaintiff's evidence was closed and matter was fixed for defendant's evidence.

9. The defendant no.1 examined himself only as DW1 who tendered his affidavit Ex.DW1/A. On behalf of defendants no. 2, 3 & 4, defendants no. 3 & 4 are examined as DW2 & DW3 who tendered their affidavits Ex.DW2/A & DW3/A respectively regarding issues framed earlier as well as additional issues.

Daya Chand Sharma Vs. Kishan & Ors.

10. Thereafter, DE was closed and matter was fixed for final arguments.

11. Final arguments heard. Ld. Counsel for plaintiff stated that no any partition of the suit property was ever occurred as submitted on behalf of defendant no.1. The suit property is common/joint property of both the parties and plaintiff as well as defendants are having equal 1/6 th share in the total land measuring 3 Bigha & 16 Biswa in Khasra No.48(0-16), 49(2-18) and 31/1 (0-02). The defendants are trying to grab the share of the plaintiff in the suit property and want to dispossess the plaintiff from the suit property. The suit property is still undivided. No any evidence is produced on behalf of the defendants to show that plaintiff is not having 1/6th share in the suit property or the suit property has already been partitioned by way of any family settlement. It is further submitted that the contentions raised on behalf of defendant no.1 are baseless and without any merit and therefore, present suit is liable to be decreed in favour of plaintiff.

Daya Chand Sharma Vs. Kishan & Ors.

12. Ld. Counsel for defendant no.1 opposed the suit of the plaintiff. He further argued that the suit property has already been partitioned by way of a family settlement and the said settlement had been acted upon by the parties. He further stated that the plaintiff had not mentioned all the properties of the parties in the present suit and suit for partial partition is also not maintainable. Regarding residential houses situated in the Old Lal Dora of the village and the agricultural land has been admitted to be already partitioned. If the plaintiff was aggrieved by family settlement, then he should have filed a suit for cancellation of the family settlement subject to the law of limitation. After acting upon a family settlement arrived at between the parties long back in year around 1978, at this stage, plaintiff cannot be allowed to disturb the family settlement, Ld. Counsel for defendant no.1 further stated that the suit of the plaintiff is without any merit and same is liable to be dismissed. Written submission are also filed on behalf of defendant no.1. He had also relied upon the judgments i.e. Daya Chand Sharma Vs. Kishan & Ors.

Ram Charan Dass Vs. Girjanandini Devi & Ors. AIR 1966 SC 323; Tek Bahadur Bhujil Vs. Debi Singh Bhujil & Ors. AIR 1966 SC 292; Thayyullathil Kunhikannan & Ors. Vs. Thayyullathil Kalliani & Ors. AIR 1990 Kerala 226; Kenchengowda (Since Deceased) By LRs. Vs. Siddegowda @ Motegowda (1994) 4 SCC 294; Ram Gopal & Ors. Vs. Jagdish Prasad & Ors. 2014 AIR CC 1752 (CHH) and Chandgi Ram Vs. Kartar Singh 2001 (3) RCR (Civil) 589.

13. Ld. Counsel for defendants 2, 3 & 4 not opposed the suit of the plaintiff. They had also placed on record written submissions.

14. I have considered the submissions of both parties and also gone through the relevant case laws. I have also perused the documents placed on record by both the parties. First of all, issue no. 1 is taken that whether all the properties left behind by Late Sh. Roop Chand has been distributed/divided by way of family settlement which has also been acted upon, if yes, its effect? OPD-1. Onus to prove this issue is upon defendant no.1. To discharge his Daya Chand Sharma Vs. Kishan & Ors.

onus, defendant no.1 had examined himself as DW1 in defendant's evidence. In his affidavit Ex.DW1/A, he stated that his father in year 1971 gave respective shares to all of them i.e. to the defendant no.1, to the other defendants as well as to plaintiff in the agricultural lands and in the land situated in Old & extended Lal Dora. He had also stated that they are in possession of their respective shares. DW1 further stated that plaintiff was given 600 Sq. Yards of land in the Old Lal Dora in the village in the family settlement out of which, he had sold 300 Sq. Yards to Sh. Sher Singh. According to DW1, he had got 16 Biswas of land out of Khasra No.48 in the family settlement, where, he was raising construction but plaintiff obstructed him. According to DW1, his bricks are also lying there. During cross- examination, a suggestion was put to him by the plaintiff that after selling his share of agricultural land, he (DW1) purchased 16 Killa at Bhiwani, Haryana. The suggestion is accepted by DW1 and it reflects that plaintiff is himself suggesting that the agricultural land between the parties Daya Chand Sharma Vs. Kishan & Ors.

have already been partitioned and therefore, he (DW1) had sold his share. Another suggestion is also put to DW1 on behalf of plaintiff that on partition of the suit property, they got equal share of 600 Sq. Yards out of the suit property. It further reflects that the plaintiff is admitting that there was a partition of the suit property.

15. During cross-examination of PW1/plaintiff, he had admitted that in the family settlement, Rajender/defendant no.3 had got 7 Bigha 2 Biswa, Shyam Lal/defendant no.2 had got 10 Bigha 19 Biswa, Ved Prakash/defendant no.5 had got 5 Bigha 19 Biswa, Sh. Kishan/defendant no.1 had got 7 Bigha 9 Biswa and Sh.Mahender/defendant no.4 had got 6 Bigha from the agricultural land. PW1/plaintiff further admitted that in the aforesaid family settlement, he had got 11 Bigha & 19 Biswa of the agricultural land. It is further admitted by PW1 in cross-examination that his father during his lifetime had done the family settlement regarding agricultural land and in that respect mutation had also taken place in year 1996-97. It is also admitted by PW1 during Daya Chand Sharma Vs. Kishan & Ors.

cross-examination that he had purchased agricultural land in village Sangadh, Tehsil Sampla, District Rohtak, Haryana after selling his share in agricultural land. According to PW1, he had sold his share in agricultural land in year 1999-2000 and his brother Sh. Kishan sold his share in agricultural land in year 2006-2007. Therefore, it is admitted on behalf of the plaintiff/PW1 and is proved by the defendant no.1 that agricultural land between the parties have already been partitioned by way of a family settlement.

16. In the present suit, the plaintiff is seeking the relief of partition and injunction qua the residential plots only situated in the Old & extended Lal Dora of the village Tajpur Khurd i.e. the suit property. PW1 had placed on record site plan Ex.PW1/1, where respective houses/residential plots of all the parties are shown. During cross-examination, PW1 had admitted that the parties have constructed their house in their respective plots about 15-25 years back. PW1 had admitted that as per site plan Ex.PW1/1, the houses from point H to K i.e. houses of Sh. Rajender Singh, Daya Chand Sharma Vs. Kishan & Ors.

Sh.Mahender Singh, Sh. Shyam Lal & Sh. Ved Prakash were constructed during life time of his father. He had also admitted that personal fare/Rasta as shown in site plan Ex.PW1/1 has electricity polls and Kharanja. He had further admitted that he did not stop either Sh. Kishan or any other of his brothers to construct their respective houses in their share as they were constructing houses in their respective shares. Regarding family settlement qua the residential plots/suit property, he had also clearly admitted this fact during his cross-examination while stating that "It is right to suggest that the family settlement was reached during the lifetime of my father and for that reason I did not stop any of his brothers from constructing their respective houses".

17. When PW1 was again cross-examined after framing of additional issues, then in his cross-examination, gave self contradictory statement to his earlier statement in cross-examination and denied the suggestion that Sh.Shyam Lal, Sh.Rajender Singh, Sh. Mahender Singh & Sh. Ved Prakash constructed their respective houses during the Daya Chand Sharma Vs. Kishan & Ors.

lifetime of his father. In further cross-examination, he voluntarily stated that the suit property was demarcated and separated after the lifetime of his father and he did not have any objection to the said separation and settlement. He had further stated that he had separated his share in Khasra No.49 to the extent of 630 Sq. Yards. PW1 further admitted that he had constructed his house in Old Lal Dora in year 1980. PW1 further stated voluntarily during his cross-examination as "My father used to give the shares from time to time to Sh. Kishan around 1955 about 400-500 Sq. Yrds to Ved Prakash around 1955 about 150 Sq. Yrds to Mahender, around 1955 about 185 Sq. Yrds to me around 1980 about 185 Sq. Yrds. Shyam Lal & Rajinder did not get any land in the Old Lal Dora".

18. It is stated by PW1 in his further cross-

examination that houses at point H & I in Khasra No. 49 as shown in site plan Ex.PW1/1 are constructed by Sh. Rajender Singh & Sh. Shyam Lal respectively upon plots measuring 400 Sq. Yards each. However, the area as shown in Daya Chand Sharma Vs. Kishan & Ors.

Ex.PW1/1 is 500 Sq. Yards each. PW1 admitted that the measurement of these plots as mentioned in the site plan is wrong. He had further stated in his cross-examination that he had not measured house of Sh. Kishan/defendant no.1 in Old Lal Dora and further stated that he had not measured house of anyone. On the other hand, he denied the suggestion that house of the defendant no.1 at point E is in the plot of 165 Sq. Yards and voluntarily stated that it is on 400 Sq. Yards. Therefore, it is doubtful that when he had not measured the area of house of anyone, then how he is mentioning the areas of the houses of the parties of the suit in the site plan Ex.PW1/1. He had further admitted that his deposition about the area of all the houses is as per his own estimation and not as per actual measurements. Therefore, in this regard plaintiff himself put his site plan under the shadow of doubt.

19. Further regarding the partition/family settlement qua the extended Lal Dora Property, PW1/plaintiff clearly made a voluntarily admission in his cross-examination as Daya Chand Sharma Vs. Kishan & Ors.

"Vol. Extended Lal Dora Property was separated after the death of our father with our consent and mutation of the same was done in the name of the respective persons as per their share in the year 2001-2002." Therefore, in view of the aforesaid discussion, defendant no.1 had proved that all the properties left behind by Late Sh. Roop Chand has been distributed/divided by way of family settlement which has also been acted upon.

20. It is held by Hon'ble Supreme Court of India in Ram Charan Dass Vs. Girjanandini Devi & Ors., AIR 1966 SC 323 while discussing the effect of family settlement that a party who had derived benefit under the family settlement is stopped from impeaching the same. In the present case also, the parties have already taken benefits from their respective shares of the property which was divided in furtherance of a family settlement. Further a party cannot bring a suit qua partial partition of joint family property as said by Hon'ble Supreme Court of India in Kenchegowda (since deceased) by LRs. Vs. Daya Chand Sharma Vs. Kishan & Ors.

Siddegowda (1994) 4 SCC 294. It is also held by Hon'ble Punjab & Haryana High Court in Chandgi Ram Vs. Kartar Singh 2001 (3) RCR (Civil) 589 that since the agriculture land had already been partitioned, so the presumption is that the other immovable property had also been partitioned. It is difficult to imagine that when the agriculture land was partitioned, then the other immovable property was not partitioned. In this case, it is clearly admitted by the plaintiff that agriculture land has been partitioned between the parties in furtherance of a family settlement and further, it is admitted that extended Lal Dora Property was separated with consent of all the parties. Houses have also been constructed by the parties in their respective shares since long back and therefore, family settlement has already been acted upon by the parties. Therefore, in view of the facts & circumstances, issue no.1 is accordingly decided against the plaintiff and in favour of defendants.

21. Issue no. 2 is that Whether plaintiff is entitled for Daya Chand Sharma Vs. Kishan & Ors.

1/6th share in the suit property? (OPP). Onus to prove this issue is upon the plaintiff. Plaintiff in his cross-examination had clearly admitted the fact that agricultural land as well as old Lal Dora Property has been partitioned between them by way of a family settlement and said settlement have also been acted upon by the parties. As discussed above regarding issue no.1, a party cannot seek a partial partition of the joint property. It is held by Hon'ble Supreme Court of India in Kale Vs. Deputy Director of Consolidation, AIR 1976 SC 807 that even if bonafide disputes, present or possible, which may not involve legal claims are settled by a bonafide family arrangement which is fair and equitable, the family arrangement is final and binding on the parties to the settlement". During cross-examination, DW2 Sh. Rajender Singh had also admitted that the parties are in settled possession of their respective shares and they have constructed their houses in the extended Lal Dora. Further if there was no partition or family settlement between the parties, then on what basis the plaintiff is claiming his 1/6 th Daya Chand Sharma Vs. Kishan & Ors.

share in the suit property specifically from point S1 to S2 in Ex. PW1/1. Therefore, claim of the plaintiff is self contradictory. Admittedly the said portion is under the occupation of defendant no.1. As held by Hon'ble Punjab & Haryana High Court in Chandgri Ram (Supra) case, plaintiff cannot seek partial partition in respect to suit property only as shown in Ex.PW1/1 despite the fact that other properties of the joint family is not a part of the suit property as the same has already been admittedly partitioned. Accordingly, issue no.2 is decided against the plaintiff and in favour of the defendants.

22. Issue no. 3 & issue no. 4 are taken together as they are connected with each other. Issue no.3 is that Whether plaintiff is entitled for permanent injunction against defendants in respect of 1/6th share in the property i.e. 3 Bighas and 16 Biswas falling within Khasra No.48 (0-

16), 49 (2-18), 31/1 (0-02) ? OPP & issue no.4 is that Whether plaintiff is in possession of 1-6th share in property i.e. 3 Bighas and 16 Biswas falling within Khasra No.48 (0- Daya Chand Sharma Vs. Kishan & Ors.

16), 49 (2-18), 31/1 (0-02)? OPP. Onus to prove these issues are upon the plaintiff. During evidence, the plaintiff had placed on record site plan Ex.PW1/1 in which he had shown old house occupied by plaintiff measuring 185 Sq. Yards. 1/6th share out of 3 Bigha 16 Biswas i.e. the suit property is mentioned by plaintiff himself in Ex.PW1/1 as 12½ Biswas except house of 185 Sq. Yards. No any other portion in the suit property is shown by plaintiff under his occupation. During cross-examination, PW1/plaintiff stated that he have been given 630 Sq. Yards by his father which is lying vacant. In site plan Ex.PW1/1 relied upon by the plaintiff, he had not shown any such vacant plot under his possession. DW2 during his cross-examination, admitted that bricks of Sh. Kishan/defendant no.1 are lying in the open portion in plot no.S1 to S2 as shown in the site plan. The plaintiff had not placed on record any other evidence to show that he is in possession of 1/6th share of the suit property i.e. 12½ Biswas. Accordingly, plaintiff is not entitled for the relief of permanent injunction in his favour, as prayed for. Hence, Daya Chand Sharma Vs. Kishan & Ors.

issues no.3 & 4 are accordingly decided against the plaintiff and in favour of defendants.

23. Issue no. 5 is that Whether defendant no.1 is in possession of Khasra No.31/1 (0-02) and 48 (0-16)? OPD. Onus to prove this issue is upon the defendants. As per the site plan Ex.PW1/1 and as stated in the affidavit of the witnesses, Khasra No.48 in the suit property is having 16 Biswas and Khasra No.31/1 is having 2 Biswas. Therefore, issue no.5 is that whether defendant no.1/Sh. Kishan is in possession of aforesaid area of 18 Biswas in the respective Khasra Numbers. The areas of respective plots as mentioned in site plan Ex.PW1/1, is itself disputed by the plaintiff/PW1 as he had stated that he had not mentioned the correct areas of the plot allegedly occupied by the respective parties. In affidavit Ex.DW1/A filed by the defendant no.1 during evidence, he had stated that he had got 16 Biswas of land out of Khasra No.48 in the family settlement, where he was raising construction. He had further stated that he had constructed boundary wall around Daya Chand Sharma Vs. Kishan & Ors.

two sides of this land and his bricks are lying there. This fact is also admitted by DW2 in his cross-examination that bricks of defendant no.1 are lying the space from S1 to S2 as mentioned in the site plan Ex.PW1/1. Regarding Khasra No.31/1 (0-2), it is stated by PW1/plaintiff in his cross- examination that a tube-well was existed in that area as shown in Khatoni Ex.PW1/D5. Defendant no.1 had not placed on record any document or evidence showing his possession upon the area of Khasra No.31/1 (0-2). No any site plan is filed on behalf of defendant no.1. Therefore, as per the evidence on record, defendant no.1 has proved to be in possession of Khasra No.41 (0-16) but it is not proved that he is in possession of Khara No. 31/1 (0-2) in the suit property. Hence, Issue no. 5 is decided accordingly partially in favour of defendant no.1.

24. Relief: In view of aforesaid discussion, plaintiff has failed to prove his case. Suit of the plaintiff stands dismissed.

25. No order as to costs.

Daya Chand Sharma Vs. Kishan & Ors.

26. Decree sheet be prepared accordingly.

27. File be consigned to record room after due compliance.

Announced in the open court on this 21st day of December, 2018 JAGMINDER Digitally signed by JAGMINDER SINGH SINGH Date: 2018.12.21 16:43:44 +0530 (DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Note: This judgment is having twenty five pages and each page is bearing my signatures.

(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Daya Chand Sharma Vs. Kishan & Ors.