Delhi District Court
Sh. Rajiv Gupta vs Sh. Sunil Kumar Singhal on 2 July, 2010
IN THE COURT OF SH. PULASTYA PRAMACHALA
CCJ:ARC(EAST):MM:KARKARDOOMA COURT DELHI
Civil Suit no: 249/07
ID no. 02402C0497262004
Sh. Rajiv Gupta
S/o Sh. Raghubar Dayal
R/o C66, Ashok Vihar, PhaseI, Delhi52
....... Plaintiff
V E R S U S
Sh. Sunil Kumar Singhal
S/o Late Prem Chand Singhal
Care : P. C. Transport,
Loni Border, Opposite Kundan Lal Petrol Pump, Delhi.
...... Defendant
SUIT FOR PARTITION AND RENDITION OF ACCOUNTS.
Date of Institution of the suit : 18/05/1992
Date on which judgment was reserved: 26/05/2010
Date of decision : 02/07/2010
Decision : Dismissed
JUDGMENT
1. Present suit has been filed by the plaintiff praying for decree of partition in his favour and against the defendant, thereby declaring him to be owner of half share alongwith defendant in property bearing no. 5 and 6, forming part of Khasra No. 292, situated in Village Gokulpuri, Illaqa Shahdara, Delhi. Plaintiff has also prayed Suit no.249/07 Page 1/25 for preliminary decree for rendition of accounts in his favour and against the defendant.
2. Briefly stated, the relevant facts of plaintiff's case are that plaintiff and defendant jointly purchased the property bearing Plot Numbers 5 and 6, forming part of Khasra No. 292, situated at Village Gokulpuri, Illaqa Shahdara, Delhi (Herein after referred to as suit property). Both plots are adjoining. Plot no. 5 is measuring 200 sq. yds., while plot no. 6 is measuring 195 sq. yds. Plaintiff and defendant purchased suit property on 29/08/1980 vide General Power of Attorney, Agreement to sell and receipts. Receipt was duly registered with Subregistrar. They, with their joint contribution, raised the construction of ten rooms in the suit property by equally contributing the money on construction. Plaintiff purchased one Compressor, one Car washer with motor and two fourwheeler lifts and other accessories etc. for the purpose of running the service station at the suit property. In the year 1980, plaintiff and defendant entered into an oral partnership to run the business of service station of vehicles. After the business of service station was started by plaintiff and defendant, defendant became dishonest and a dispute arose between them. On intervention of the father of the parties, the business of service station was closed down in the year 1987. The machinery / equipments as stated above were put in the room marked as Room A in the site plan and both parties put their locks on it. It was settled Suit no.249/07 Page 2/25 that the portion which was being used, except the room, where the machinery was locked, shall remain in actual physical possession of the plaintiff and continued to be in possession of plaintiff till date of filing of the suit. Plaintiff is in actual physical possession of the two rooms marked in Red colour in the site plan. One of the room is used as his office by the plaintiff and in other room, employee of plaintiff was staying. Defendant is in possession of two rooms as shown in Blue colour in the site plan. Four rooms as shown in Green colour in the site plan are in possession of different tenants. One machinery room and one other room in which the goods are lying as shown in Yellow colour, are in joint possession of the plaintiff and defendant and locks of both parties were put on the said two rooms.
3. Plaintiff used to visit his aforesaid property casually whereas defendant has been carrying on his business from the said premises. On 07/03/1992 at about 1.00 pm., plaintiff reached the aforesaid plot and was shocked to see that the defendant with his dishonest intentions had forcibly and illegally started demolishing /breaking the roof of one of the rooms (shown in Yellow colour in site plan) and had broken the lock of the plaintiff from the Machinery room (i.e. room no. A). He got constructed a tinshed adjacent to the machinery room and a latrin and bathroom in front of this machinery room, without consent and approval of the plaintiff. Plaintiff raised objection to which, defendant responded by giving Suit no.249/07 Page 3/25 threats and plaintiff immediately made a report in Police station Gokulpuri, Delhi dated 07/03/1992. As defendant refused to allow the plaintiff to come to the property, plaintiff made a complaint to the S.D.M., Shahdara under Section 145 Cr.P.C. dated 10/03/1992. S.D.M. (Shahdara), Delhi passed a preliminary order dated 13/03/1992 under Section 145 (1) Cr.P.C., holding that there was an apprehension of breach of peace over the possession of the suit property, within his legal jurisdiction and there were sufficient grounds to proceed with the case under Section 145 (1) Cr.P.C. Subsequently, in the said proceedings, Ld. SDM (Shahdara), Delhi further attached the property vide his orders dated 23/03/1992.
4. Defendant also filed a suit for permanent injunction dated 17/03/1992 for forestalling the action of the Ld. S.D.M for attaching the suit property. In that suit, defendant has alleged that he is the absolute owner of the property and that plaintiff (herein) is attempting to disturb his possession. He also alleged that plaintiff (herein) was not in possession of any portion of the property and sought an injunction thereby restraining the plaintiff from interfering in the possession of the defendant (herein).
5. Father of the defendant died in January, 1992 and thereafter, defendant has become dishonest and wants to usurp the property to the exclusion of plaintiff.
6. Plaintiff had been recovering the rent from the tenants till the middle of 1988 and had been giving half share of the same to the Suit no.249/07 Page 4/25 defendant. Thereafter, defendant was recovering the rent from the tenants but he did not render the account of the rents recovered by him. He has misappropriated the entire rents realised by him, despite repeated demands raised by the plaintiff. He is bound to render the true account of all rents recovered by him from the suit property. Plaintiff is entitled to half share of the rent realised by the defendant from different tenants in the suit property. Plaintiff estimates that he would be entitled to a sum of about Rs.30,000/ on account of his share of rent. Plaintiff does not want to keep his share jointly with the defendant. Defendant refused to partition the suit property by meets and bounds. Hence, the present suit.
7. In written statement, defendant took preliminary objection that Smt. Chandrawati and Sh. Anil Kumar Singhal purchased the suit property measuring 397 sq. yds. and now bearing municipal number F19, Gokulpur, Loni Border, Delhi, in June 1974 from Sh. K. R. Bansal. Thereafter, they raised construction over the plots. Since the date of purchase of the suit property, they had been in actual physical possession of entire property with its super structure. Earlier, father of the defendant was carrying on transport business with the assistance of elder brother and mother of the defendant, under the name and style of M/s. P. C. Transport Company; Chanda Finance Pvt. Ltd. and other transport business. Father of the defendant was realising the rent from the tenants in suit property and after his death, Sh. Anil Kumar Singhal started Suit no.249/07 Page 5/25 realising the rent. Defendant was working only as joint partner of the firm and one of the directors of aforesaid company. Father of defendant used to assign some business work to the plaintiff and in that connection, as the property stood in the name of Smt. Chandrawati and Sh. Anil Kumar Singhal, their signatures were being obtained. Plaintiff is a relative of defendant, therefore, everyone had faith in him. Smt. Chandrawati is an illiterate woman, whereas Sh. Anil Kumar Singhal also studied upto fifth class only. Plaintiff taking undue advantage of this situation and his position, might have obtained their signatures on some papers. However, neither of them ever transferred the suit property either in the name of plaintiff or defendant or in the joint name of plaintiff and defendant. Both parties to this suit did not pay any amount as sale consideration to the real owners i.e. Smt. Chandrawati and Sh. Anil Kumar at any point of time. In the year 1980, the value of the suit property was not less than Rupees Four Lacs. Therefore, Smt. Chandrawati and Sh. Anil Kumar Singhal are necessary parties in this case and the suit is liable to be dismissed for nonjoinder of these parties.
8. Neither plaintiff nor defendant individually or jointly ever remained in exclusive possession of the suit property. In fact, plaintiff had never been in possession of any portion of suit property. Therefore, in any case, the alleged agreement to sell and other documents were never acted upon nor were given any effect Suit no.249/07 Page 6/25 at any time. These documents do not confer any right, title or interest of any kind in respect of property in question either on the plaintiff or the defendant. There was no partnership between plaintiff and defendant as alleged by the plaintiff. Any document either of title or of other nature, in possession of the plaintiff are fabricated one. No rent was ever realised by the defendant. There is no question of rendition of accounts because there was no partnership between plaintiff and defendant. Suit is not properly valued for the purpose of court fee and jurisdiction. In a suit for accounts, advolerum court fee is to be paid on the expected amount found to be due, which in the present case is Rs.3,60,000/. Plaintiff is out of possession of the suit property and market value of the suit property at the time of filing of this suit was about Rupees Ten Lacs. Therefore, suit should have been valued at at least Rupees Ten Lacs and court fee ought to have been paid accordingly. The owners of the suit property i.e. Smt. Chandrawati and Sh. Anil Kumar have already filed a civil suit against plaintiff, therefore, present suit is liable to be stayed under Section 10 C.P.C.
9. In reply on merits, defendant denied the allegations of plaintiff and reiterated the same stand as taken in preliminary objections. He denied that ten rooms were jointly constructed or plaintiff purchased compressor, washer and fourwheeler lift etc. He further pleaded that four rooms in suit property are in possession of tenants of Sh. Anil Kumar. Rest of the rooms and other portions of Suit no.249/07 Page 7/25 property are in actual physical possession of defendant and his brothers, wherein they are carrying on the business. Proceedings before SDM (Shahdara) have not been denied.
10. In replication, plaintiff denied that Smt. Chandrawati and Sh. Anil Kumar are actual owners of the suit property. He pleaded that he alongwith defendant purchased suit property from them. Though he denied that municipal number of suit property is F19, Gokulpur, Loni Border, Delhi. He denied that aforesaid two persons were in physical possession of entire suit property or that father of defendant was realising rent from the tenants or that he was carrying on business from the suit property. He denied that value of suit property in 1980 was Rupees Four Lacs or that he obtained signatures of Smt. Chandrawati and Sh. Anil Kumar on some documents. He reiterated rest of his contentions. He further denied that value of suit property was Rupees Ten Lacs at the time of filing of the suit.
11. On the basis of pleadings of the parties, following issues were framed vide order dated 17/07/1997:
1. Whether the suit of plaintiff is properly valued for the purpose of court fee and jurisdiction? OPP
2. Whether the suit property was jointly purchased by the plaintiff and the defendant and the plaintiff is the owner of half share? OPP
3. Whether Smt. Chandrawati and Sh. Arun Kumar are the owners of the suit property and are necessary party to the suit ? OPD
4. Whether the plaintiff contributed equal contribution for Suit no.249/07 Page 8/25 construction of ten rooms on the suit land? OPP
5. Whether plaintiff entered into partnership business of service station of the vehicles with the defendant? OPP
6. Whether the plaintiff was recovering rent upto middle of 1988 and thereafter the defendant is recovering the rent from the tenant? OPP
7. Whether the suit is liable to be stayed in view of preliminary objection in paragraph no. 10 of the written statement? OPD
8. Whether the suit property is liable to be partitioned? OPP
9. If issue no. 8 is proved in affirmative, whether plaintiff is entitled to half share in the suit property? OPD
10.Whether the plaintiff is entitled to rendition of account of the suit premises as claimed in the plaint? OPP
11.Relief.
12. Plaintiff examined four witnesses in support of his case i.e. plaintiff himself as PW1; His father Sh. Raghbar Dayal as PW2; Sardar Mahender Singh as PW3 and Sh. S. P. Singh, Handwriting and Fingerprint Expert as PW4.
13. On the other hand defendant examined four witness in support of his defence i.e. Sh. Anil Kumar as DW1; Smt. Chanderwati as DW2; Sh. Sunil Kumar as DW3 and Sh. Kamal Kant Khandelwal, Handwriting and Fingerprint Expert as DW4.
14. Both parties made their rival arguments. Written arguments were also filed by both parties. Plaintiff relied upon following case laws :
1. Kuldip Singh Suri vs. Surinder Singh, 1999, RLR, 20.
2. Asha M. Jain vs. Canara Bank, 2002 RLR 69.
3.Harbans Singh vs. Shanti Dev, 1977 RLR 487.
4.Lalit Popli vs. Union of India and others, 75 (1998) DLT 269. Suit no.249/07 Page 9/25
5. Annaimuthu Thevar (Dead) by LRs. vs. Alagammal and others, (2005) 6 SCC 202.
6. Sulochana Amma vs. Narayanan Nair, (1994) 2 SCC 14.
7.Judgment of civil suit no. 248/07 titled as 'Smt. Chanderwati and others vs. Sh. Rajiv Gupta'
8. Nirmal Enem Horo vs. Smt. Jahan Ara Jaipal Singh, AIR 1973, SC 1406.
15. I have given due consideration to the rival contentions and perused the record of this case as well as case laws.
16. My issuewise findings are as follows: Issue no. 1 : Whether the suit of plaintiff is properly valued for the purpose of court fee and jurisdiction? OPP
17. This issue was decided vide judgment dated 28/05/2010 in favour of defendant and plaintiff was directed to make payment of advoleram court fee on Rs.1,50,000/, which was paid by him on 04/06/2010.
Issue no. 2: Whether the suit property was jointly purchased by the plaintiff and the defendant and the plaintiff is the owner of half share? OPP
18. Plaintiff has argued that this court has already given a positive finding in respect of coownership of plaintiff over the suit property in the suit bearing no. 248/07 filed by Smt. Chandrawati and Sh. Anil Singhal against plaintiff herein. Therefore, such finding of this court operates as resjudicata and issue no. 1 and 2 in this case are now barred by principle of resjudicata. It is further Suit no.249/07 Page 10/25 argued that the finding in aforesaid case establishes that the plaintiff and defendant are joint owners and in joint possession of the property in question.
19. No particular argument has been made by defendant, in respect of aforesaid contentions of plaintiff.
20. I have perused the copy of judgment passed in suit no. 248/07. This suit was filed by Smt. Chandrawati and Sh. Anil Singhal, who are apparently not party to this suit. The perusal of operating part of the findings given in that suit (paragraph no. 21 of the judgment) shows that the court had not given any finding to the effect that plaintiff herein is coowner of suit property. It was only observed that 'plaintiff had knowledge of claim of coownership of defendant and his documents. Now, the documents of the title relied upon by the defendant remained unchallenged, because there is no declaration to the effect that these documents are null and void having no consequence. In these circumstances, it cannot be held that defendant has no right or title over the part of suit property.'
21. The defendant herein was not party to the aforesaid suit. It is also apparent from the judgment in the aforesaid suit that no issue pertaining to ownership of plaintiff herein, was framed in that suit. Section 11 C.P.C. reads like 'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the Suit no.249/07 Page 11/25 same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court'.
22. In this case, plaintiff has claimed that he purchased the suit property alongwith defendant from Smt.Chandrawati and Sh. Anil. Though, defendant herein is son of Smt. Chandrawati and Sh. Anil is brother of defendant but this relationship does not have any bearing on the alleged transaction between plaintiff and defendant on one hand and Smt. Chandrawati and Sh. Anil on the other hand. Therefore, it cannot be said that defendant herein is representing the claim of Smt. Chandrawati and Sh. Anil in this case. Though, defendant has taken a plea that no such transaction had taken place between Smt. Chandrawati and Sh. Anil and plaintiff alongwith him, still the present suit cannot be said to be pending between same parties i.e. parties to suit bearing no. 248/07 or their representatives.
23. Further more, as I have already observed herein above that in suit no. 248/07 this court did not give any final finding on the question of ownership of plaintiff over the suit property. This court simply discussed the law relating to injunction and the question of maintainability of the suit for injunction, which was filed by Smt. Chandrawati and Sh. Anil against plaintiff herein. Finding of the Suit no.249/07 Page 12/25 court that the aforesaid suit was not maintainable, does not lead to conclusion that claim of ownership made by plaintiff herein in the aforesaid suit was finally adjudicated by this court thereby accepting such claim. Therefore, in my considered opinion, findings given by this court in suit no. 248/07 cannot operate as constructive resjudicata in the present suit.
24. The question still remains to be examined that whether the suit property was jointly purchased by the plaintiff and defendant and whether plaintiff is owner of half share of the suit property?
25. This court has to see the effect of execution of documents Ex.PW1/1 to Ex.PW1/5. It was argued on behalf of plaintiff that since the sale deeds were not being registered by the Delhi Government at the relevant time, therefore, the aforesaid documents i.e. Ex.PW1/1 to Ex.PW1/5 are the relevant documents for transfer of ownership of the suit property in favour of plaintiff and defendant. Out of aforesaid documents only one document was registered by the parties i.e. a receipt for Rs.5,000/, which is Ex.PW1/3. All the remaining documents are unregistered documents. Counsel for plaintiff relied upon judgment passed in Kuldeep Singh's case and Asha M.Jain's case by Delhi High Court. In Kuldeep Singh's case, Delhi High Court dealt with a case wherein the plaintiff had revoked a registered irrevocable power of attorney, which was executed in favour of defendant. The court had observed that power of attorney sales in Delhi is the common mode Suit no.249/07 Page 13/25 of sale of immovable properties to get over the legislative restriction on transfer of properties. When POA is for consideration and bargain is followed by delivery of possession then the transaction is complete. The court held that the revocation of power of attorney in that case was illegal.
26. In Asha Jain's case, Delhi High Court held that appellant in that case was in possession of flat and had paid full consideration, therefore, her ownership and possession could not be defeated by an order of attachment and such order of attachment was not binding on the appellant. On the other hand, in G. Ram Vs. DDA reported in AIR 2003 Delhi 120, Hon'ble Delhi High Court has held that "An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered documents as provided for under Section 54 of T.P. Act read with section 17 of Indian Registration Act."
27. Similarly, in M.L. Aggarwal Vs. Oriental Bank of Commerce, 128(2006) Delhi Law Times 407(DB), it was held that "In our opinion, there is no merit in this petition. The petitioner had only produced an Agreement to Sell, Will and a Power of attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under Section 17(1)
(b) of the Registration Act, sale of an immovable Suit no.249/07 Page 14/25 property can only be by a registered deed.
....... In our opinion, the petitioner has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to Sell".
28. In the present case, plaintiff has claimed his joint possession, however, his such contentions have not been accepted by this court while giving finding on issue no. 1. Even otherwise, the possession of property without a sale deed is dealt with by provision under Section 53A of Transfer of Property Act. A detailed explanation in respect of scope and ambit of Section 53 A of transfer of property Act was given in Patel Natwarlal vs. Shri Kondh Group Kheti Vishayak. 1996 AIR SC 1088. In this case Hon'ble Supreme Court while discussing the relevant observations given in other cases by different bench of Hon'ble Supreme Court explained the scope Section 53 A of Transfer of Property Act in the following manner: "Though the doctrine of part performance embodied in Section 53A of the Act is part of equitable doctrine in English Law. Section 53A gives statutory right which is available to the transferee for consideration in possession of the property had under the contract. In terms of the section, so long as the transferee has done and is willing to perform his part of the contract or, in other words, is always ready to abide by the terms of the contract and has performed or is always ready and willing to perform his part of the contract, the transferee is entitled to avail of this statutory right to protect his possession as a shield but not as a sword. The right to retain possession of the property rests on the express provisions of Suit no.249/07 Page 15/25 the Act and on his compliance thereof. A person who pleads equity must come to the Court with clean hands and he alone is entitled to the benefit of this section. The section does not create a right or title in the defendant. It merely operates as a bar to the plaintiff to assert his title. The transferor is barred from enforcing his rights other than those expressly provided by the contract. The section, therefore, imposes a bar on the transferor, when the conditions mentioned in the section are fulfilled by the transferee, and section bars the transferor to enforce his rights against such transferee or person deriving right, title and interest from such transferee. It would, therefore, be clear that Section 53A confers a right on the transferee, to the extent it imposes a bar on the transferor, to protect the transferee's right to retain possession of the property had under the contract. It would thus be clear that Section 53A confers no title on the transferee but imposes a statutory bar on the transferor to seek possession of the immovable property from the transferee. Equally, Section 53 A does not confer any title on the defendant in possession nor can he maintain a suit on title.
29. In Ram Gopal Reddy v. The Additional Custodian Evacuee Property, Hyderabad, AIR 1966 SC 1438, a Constitution Bench of Supreme Court held that the benefit of Section 53A cannot be taken aid of by the plaintiff to establish his right as owner of the property. Therefore, Section 53A can be used as a shield but not as an independent claim either as a plaintiff or as a defendant.
30. In Delhi Motor Company v. U.A. Basrurkar (1968) 2 SCR 720, a bench of three judges of Supreme Court held that Section 53A is meant only to bring out a bar against the enforcement of a right by a lessor in respect of the property of which the lessee had already taken possession but does not give any right to the lessee to Suit no.249/07 Page 16/25 claim possession or to claim any other right on the basis of an unregistered lease. Section 53A is available only as a defence to a lessee and not as conferring a right on the basis of which the lessee can claim rights against the lessor. In that case the appellants had put forward certain documents as a lease which was admittedly beyond 11 months and, therefore, it was held that the company was not entitled to avail the statutory right under Section 53A.
31. In Sardar Govindrao Mahadik v. Devi Sahai, (1982) 1 SCC 237, Supreme Court held that the Court would look at the writing that is offered as a contract for transfer for consideration of any immovable property, then examine the acts said to have been done in furtherance of the contract, and find out whether there is a real nexus between the contract and the acts pleaded as a part performance so that, to refuse relief would be perpetuating the fraud of the party, who after having taken advantage or benefit of the contract, backs out and leads nonregistration as a defence, a defence analogous to Section 4 of Statute of Frauds. In that case it was held that the mortgagee in possession was not entitled to claim title of ownership against suit of mortgagor for redemption. Therefore, the doctrine of part performance in Section 58(3) was held not available to establish title to the property.
32. In Sheth Maneklal Mansukhbhai v. M/s. Homusji Jamshedji Ginwala and Sons, 1950 SCR 75, this Court had held that Section Suit no.249/07 Page 17/25 53A of the Act is only a partial importation of English doctrine of part performance. The contract for sale of immovable property does not create any title except when covered under Section 54 of the Act and registered under Section 17 of the Registration Act. Equally, it does not create an interest in the property. It merely gives a right to enforce it specifically as an equitable relief in a Court of law.
33. In Technicians Studio Pvt. Ltd. v. Lila Ghosh (1978) 1 SCR 516 at 520, Supreme Court held that it is well settled that Section 53A confers no active title on the transferee in possession; it only imposes a statutory bar on the transferor".
34. In the present case, it is apparent from the documents itself that they are not registered documents. There is no sale deed on the record. Even if plaintiff wanted to say that at the relevant time of transaction, sale was not permitted or sale deeds were not being registered, he was required to plead such facts. He was also required to prove these facts. However, plaintiff has neither pleaded nor proved such fact on the record. In absence of such fact proved on the record, this court cannot raise assumption that at the relevant time parties to the transaction were stopped by any order on practice of the Government from executing sale deed or registration thereof.
35. The case laws discussed herein above do not leave any doubt Suit no.249/07 Page 18/25 that the documents relied upon by the plaintiff cannot confer title of ownership over the suit property upon him. Therefore, plaintiff cannot be said to have become owner of half share of the suit property having purchased it from the erstwhile owners.
36. Therefore, this issue no. 2 is decided against plaintiff. Issue no. 3: Whether Smt. Chandrawati and Sh. Arun Kumar are the owners of the suit property and are necessary party to the suit ? OPD
37. Though in this issue name of Sh. Arun Kumar has been mentioned, however, the respective pleadings of the parties make it clear that it is a case of typographical mistake and this issue revolves around ownership of Smt. Chandrawati and Sh. Anil Singhal. The documents relied upon by the plaintiff themselves show that the suit property was allegedly purchased from Smt. Chandrawati and Sh. Anil Singhal. It is not in dispute that defendant herein is son of Smt. Chandrawati. Plaintiff claims to have purchased the suit property alongwith defendant from the erstwhile owners i.e. Smt. Chandrawati and Sh. Anil Singhal. Plaintiff himself has referred to a judgment passed by this court in a suit filed by Smt. Chandrawati and Sh. Anil Singhal against him. That suit was filed on 17/03/1992 against the plaintiff herein. Present suit was filed on 18/05/1992. There was apparently a dispute regarding ownership over the suit property between Suit no.249/07 Page 19/25 plaintiff on one hand and Smt. Chandrawati and Sh. Anil Singhal on the other hand. Plaintiff herein knew that his title of co ownership was being challenged by the alleged seller of the suit property. Plaintiff opted to file present suit seeking relief of partition of the suit property against defendant pleading that he was coowner of the suit property alongwith defendant herein. If for the sake of arguments, contentions of plaintiff are assumed to be correct, it is to be seen that when his own title was being denied by the seller as well as the defendant herein, due to which this suit was filed by the plaintiff, then it was incumbent for the plaintiff herein to seek declaration of his ownership against the sellers as well as defendant herein. Plaintiff opted to ignore the denial of his ownership rights over the suit property and did not implead the alleged erstwhile owners. In my finding on issue no. 2, I have already held that the documents allegedly executed by the erstwhile owners do not confer title of ownership upon the plaintiff herein, meaning thereby that plaintiff was bound to seek relief of specific performance against them. Therefore, for aforesaid reasons plaintiff was under duty to implead Smt. Chandrawati and Sh. Anil Singhal as well in the present suit.
38. Hence, this issue no.3 is decided against plaintiff. Issue no. 4 : Whether the plaintiff contributed equal contribution for construction of ten rooms on the suit land? OPP Suit no.249/07 Page 20/25
39. Plaintiff has claimed/deposed that he alongwith defendant constructed ten shops with joint funds. In his cross examination, he deposed that he spent approximately Rs.20,000/ in respect of construction of ten shops, but he could not show any book of account to show that such amount was paid by him. He further deposed that the said amount was not withdrawn by him from any bank. He did not have any receipt to show that this amount was spent by him. On the other hand, PW2 i.e. father of the plaintiff also deposed that he spent Rs.20,000/ for construction of ten shops. It cannot be assumed that plaintiff as well as his father, both contributed Rs.20,000/ for construction of ten shops. Apparently, both of them are making such claim in air, without having any basis to make such claim. None of them could produce a single evidence to show that from where did such amount came in their hands and to show that such amount was actually spent by any of them for the purpose of construction of ten rooms. Simply on the basis of their oral overlapping statements, this court cannot assume that plaintiff had contributed equally in the construction of ten rooms in the suit property.
40. Therefore, on the basis of plaintiff's evidence itself, I find that plaintiff has failed to prove equal contribution made by him for construction of ten rooms.
41. Hence, this issue no. 4 is decided against plaintiff. Issue no. 5: Whether plaintiff entered into partnership business Suit no.249/07 Page 21/25 of service station of the vehicles with the defendant? OPP
42. Plaintiff has deposed that he purchased air compressure, car washer, vehicle lifts from his own funds and started work of service station with defendant jointly. He has not disclosed any date of purchase of such articles. He has not disclosed the date or month that when such work of service station was started by him jointly with the defendant. He has merely pleaded that in the year 1980, he entered into an oral partnership to run the business. He has later on deposed that in 1987, the service station was closed due to dispute between him and defendant and thereafter, such articles were put in a closed room. In his cross examination, he deposed that he entered into partnership with the defendant verbally. He could not produce any bill of purchase of any of the aforesaid articles. He did not produce any document to show that he was a partner with defendant in such service station. He further deposed that no joint bank account was opened in respect of such service station.
43. Even in a case of oral partnership, it is very natural course of action that a book of accounts, thereby mentioning the assets of such partnership venture and the respective share of the partners, is maintained. If a person buys such heavy articles like air compressure, vehicle lifts etc., bill of such articles have to be maintained or to be mentioned in a book of account of any partnership venture. At least, a bank account is opened in the joint name of partners (if there is no partnership deed) for the purpose of Suit no.249/07 Page 22/25 making transactions and maintaining liquid money of the partnership venture. In the present case, none of such thing was done by the parties. Plaintiff has made only oral statement to substantiate his claim that there was a partnership business of service station between him and defendant.
44. In my considered opinion, such oral statement in itself is not a credible and sufficient evidence to establish the fact of existence of partnership venture between the parties. Therefore, such version of the plaintiff cannot be sustained.
45. Hence, this issue no.5 is decided against the plaintiff. Issue no. 6 : Whether the plaintiff was recovering rent upto middle of 1988 and thereafter the defendant is recovering the rent from the tenant? OPP
46. In his pleading, plaintiff has averred that he had been recovering the rent from the tenant till the middle of 1988 and had been giving half share of the same to the defendant. He has further averred that thereafter, defendant was recovering the rent from the tenants. In his statement before the court, he has not deposed on the lines of aforesaid pleadings. He has not deposed that he recovered rent at any point of time. Thus, such pleading of the plaintiff has remained unsupported with the evidence of plaintiff. On the other hand, PW2 i.e. father of plaintiff deposed in the cross examination that he used to collect rent upto 1987. Apparently, such statement Suit no.249/07 Page 23/25 of PW2 is in contradiction to the pleading of the plaintiff. Plaintiff has not pleaded that the rent were being recovered by his father on his behalf. He has pleaded that the rents were recovered till the middle of 1988, while his father i.e. PW2 stated that he recovered rent upto 1987. This scenario in itself is sufficient to show that plaintiff has not proved his claim to have recovered rent from any tenant. The contradiction in statement of PW2 with pleading of plaintiff further establishes the fact that such claim has been made in air. Therefore, the contentions of plaintiff in this regard cannot be believed upon by this court.
47. Hence, this issue no. 6 is decided against the plaintiff. Issue no. 7: Whether the suit is liable to be stayed in view of preliminary objection in paragraph no. 10 of the written statement? OPD
48. This issue does not have any relevance at this stage. Hence, it is dropped because there is no occasion to stay the present proceedings at this final stage.
Issue no.8: Whether the suit property is liable to be partitioned? OPP and Issue no. 9: If issue no. 8 is proved in affirmative, whether plaintiff is entitled to half share in the suit property? OPD
49. In view of my findings given on issue no. 2, the inevitable Suit no.249/07 Page 24/25 conclusion is that the suit property is not liable to be partitioned between plaintiff and defendant, therefore, these issues are decided against plaintiff.
Issue no. 10. : Whether the plaintiff is entitled to rendition of account of the suit premises as claimed in the plaint? OPP
50. In view of my findings given on issue no. 4, 5 and 6, plaintiff cannot be entitled to seek any rendition of account from the defendant. Therefore, this issue no. 10 is decided against the plaintiff.
Relief :
51. In view of my findings and observations on aforesaid issues, suit is dismissed with cost in favour of defendant and against the plaintiff.
52. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (PULASTYA PRAMACHALA) Court on 02/07/2010 CCJ/ARC(East)/MM
(Judgment contains 25 pages.) KARKARDOOMA COURTS, DELHI Suit no.249/07 Page 25/25