Delhi District Court
Sh. Feru Singh vs Sh. Gajraj Singh on 7 February, 2011
1
IN THE COURT OF SH. RAJENDER KUMAR SHASTRI,
ADJ06 (CENTAL) / DELHI.
CS : 255/09
SH. HARI SINGH (DECEASED)
THROUGH Lrs :
1. SH. FERU SINGH
S/O. SH HARI SINGH
R/O. WZ101/45, MOHAN
NAGAR, PANKHA ROAD, DELHI.
2. SH. SHER SINGH
S/O. SH HARI SINGH
R/O. WZ45, 45A, MOHAN
NAGAR, PANKHA ROAD, DELHI.
3. SH. SUSHIL KUMAR
S/O. SH HARI SINGH
R/O. WZ101/45/4, MOHAN
NAGAR, PANKHA ROAD, DELHI. ....PLAINTIFFS
VERSUS
1. SH. GAJRAJ SINGH
S/O. SH. RAM SARAN
2. SH. ANIL KUMAR
S/O. SH. GAJRAJ
3. SH. RATTAN SINGH (DIED)
S/O. SH. RAM SARAN
THROUGH LRs :
(i) SMT. SAVITRI DEVI
W/O. LT. SH. RATTAN SINGH
(ii) SH. JITENDER
CS : 255/09 1/11
2
(iii) SH. PRAMOD
BOTH SONS OF LATE SH. RATTAN SINGH
(iv) SMT. KAMLESH
W/O. SH. SATPAL SINGH
(v) SMT. SITA DEVI
W/O. SH. RAKESH KUMAR
(vi) SMT. SAVITA
W/O. SH. SUBODH
ALL D/O. LT. SH. RATTAN SINGH
(vii) SH. VINOD KUMAR (DIED)
S/O. LATE SH. RATTAN SINGH
THROUGH LRs :
(a) SMT. BABITA
W/O. LT. SH. VINOD KUMAR
(b) SH. PANKAJ
S/O. LT. SH. VINOD KUMAR
(c) MS. PRIYANKA
D/O. LT. SH. VINOD KUMAR
(d) MS. PREETI
D/O. LT. SH. VINOD KUMAR
ALL R/O. H. NO. WZ1223, NANGAL
RAYA, DELHI110046.
4. SH. RAMESH
5. SH. SURENDER PAL
BOTH SONS OF SH. MAHABIR SINGH
BOTH R/O. RZ101/46A, GALI NO.13,
MOHAN NAGAR, PANKHA ROAD,
DELHI110046.
CS : 255/09 2/11
3
6. MUNICIPAL CORPORATION OF DELHI
THOURHG ITS COMMISSIONER
TOWN HALL, DELHI. ....DEFENDANTS
D.O. I : 08.09.2004
D.O.J : 07.02.2011
Present: Ms. Suman Advocate for plaintiff.
Sh. Arun Kumar Advocate for defendants no.1 and 2.
Ms. Rashmi Sharma Advocate for defendant no. 3.
Sh. M.K. Sharma Advocate for defendants no. 4 and 5.
Sh. Abhinav Kumar Proxy Counsel for defendant no. 6 MCD.
JUDGMENT
1. This is a suit for partition and permanent injunction.
2. Parties of this case except defendant no. 6 are offsprings of same ancestors. They are fighting on an plot measuring 400 sq yds comprising in Khasra No. 310/1 situated in Revenue Estate, Village Nangal Raya, Delhi. Contending that the suit plot was never partitioned between the parties and he is entitled to 4/9th share in said plot, the plaintiff has sought a decree of partition of suit property mentioned above by meets and bounds. Similarly, alleging that the defendants are raising construction upon the suit plot, without having it partitioned, the plaintiff has prayed for a decree of permanent injunction restraining the defendants from raising any construction till disposal of this case and also direction to defendant no. 6 i.e. MCD to take action against the defendants no. 1 to 5, for removal of unauthorized construction on the suit property.
3. The defendants contested suit by filing written statement. Defendants CS : 255/09 3/11 4 no. 1 and 2 challenged very maintainability of present suit alleging that suit property has already been partitioned between the plaintiff and the defendants no. 1 to 5, by a mutual agreement. It is also averred by defendant no. 6 MCD in its written statement that during inspection on 15.10.2004, it was found that there was old construction upon the suit property and same is inhibited already. Some portion of suit property was found demolished and no construction activity was noticed during inspection.
4. By filing separate replications, the plaintiff controverted plea taken by said defendants and reiterated his case.
5. On the basis of pleadings of parties, following issues were framed on 27.01.2005: ISSUES
1. Whether the suit property is liable to be dismissed for want of cause of action? OPD1 and 2.
2. Whether the plaint is liable to be rejected under Order 7 Rule 11 (d) CPC? OPD 1 and 2.
3. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD 1 and 2.
4. Whether the suit as filed by the plaintiff is time barred and is liable to be dismissed? OPD1 and 2.
5. Whether the suit is liable to be dismissed as against defendant no. 6 for misjoinder of parties? OPD6
6. Whether the suit is barred by the provision of Section 474 and 478 of DMC Act? OPD 6.
7. Whether the plaintiff is entitled to the relief of partition as CS : 255/09 4/11 5 claimed for? OPP
8. Whether the plaintiff is entitled to the relief of permanent injunction as claimed for? OPP
9. Relief.
6. In order to prove his case, the plaintiff examined Sh. Sher Singh as PW1, Sh. Amar Singh as PW2 ad Sh. P.P. Verma as PW3.
7. Defendants also examined Sh. Gajraj Singh as DW1, Sh. Om Prakash as DW2 and Sh. Kaptan Singh as D6W1.
8. I heard ld. Counsels appearing on behalf of parties. My findings issue wise are as under : ISSUE NO. 1
9. The plaintiff claimed himself to be cosharer of suit property being owned by common ancestor of him as well as defendants no. 1 to 5. This fact was not disputed by any of defendants. In this way, if the plea of plaintiff that suit property was never partitioned, is taken as true, the plaintiff has every cause of action to seek partition of same and again a decree of permanent injunction as prayed for. This issue is decided against the defendant.
ISSUE NO. 2 410. Being corelated, all these issues are taken up together. During deliberations, none from defendants raised the objection that present suit was liable to be rejected or same was not properly valued or same is time barred. Even otherwise, there is no evidence to substantiate CS : 255/09 5/11 6 that plaint of this case was liable to be rejected or suit has not been properly valued or same is time barred.
All these issues are thus decided against the defendants.
ISSUE NO. 5 and 611.None of these issues was stressed by defendant no. 6. Even otherwise, when the plaintiff has prayed for a direction to the defendant no. 6, alleging that defendants no.1 to 5 have raised illegal construction. No reason to presume that said defendant was misjoined by the plaintiff. Both of these issues are decided against the defendants.
ISSUE NO. 712.Sh. Sher Singh (PW1) stated to be a son of plaintiff. By filing an affidavit in evidence, it is sworn on oath by this witness that his father is cosharer in land comprising in Khasra No. 310/1 i.e. Suit property, which is shown in red colour in site plan (Ext.PW1/2) and they have 4/9th share in this property while defendant no. 1 (Sh. Gajraj Singh) has 5/54th share, defendant no . 2 (sh. Anil Kumar) has 5/18th share, defendant no. 3 (Rattan Singh) has 5/54th share, defendant no. 4 (Ramesh) and defendant no. 5 (Surender Pal) have 5/54th share each. Said plot has no been partitioned till now. All of them were residing in their separate houses and some portions were used for common purposes. There was one other common plot bearing Khasra No. 343/2 measuring 3 Bighas 13 Biswas, which had already been partitioned. All these facts are tautologized by PW2 Amar Singhin his affidavit Ext.P2.
13.Sh. P.P. Verma (PW3) stated to have prepared site plans Ext.PW3/1 CS : 255/09 6/11 7 and Ext.PW3/2, after visiting the site along with Sh. Sushil Kumar, a son of plaintiff.
14.It is stated on oath by defendant Garjraj Singh (DW1) that their predecessors in interest owned two plots, one measuring 8 Biswas (400 sq yds) bearing Khasra No. 310/1 and other measuring 3 Bighas 3 Biswas in Khasra No. 343/2, both situated in Revenue Estate of Village Nangal Raya. Both of these plots were orally partitioned between the parties. DW1 recounted that Sh. Pyare Lal, an elder in their family came to Delhi in year 1941. He lived here in a rented house for about 810 yrs and then built two rooms accommodation in suit plot. It was given Municipal No. WZ1223, Nangal Raya, New Delhi. He i.e. DW1 also reached Delhi in 1995 for study and started living with said Pyare Lal. The latter raised construction in suit property from time to time. Sons of plaintiff wanted to settle in Delhi. Sh. Pyare Lal being an eldest member in the family, partitioned both of said plots comprising in Khasra No. 310/1 as well as in Khasra No. 343/2, as per their shares. Oral partition took effect in this way about 30 years back and that in the presence of family members and relatives. As per this witness, Houses no. WZ121718 and WZ1223, Nangal Raya, along with some pieces of land in Khasra No. 343/2 came to the share of Sh. Pyare Lal and of him (DW1), where they were residing together. They raised further construction on their shares. Some documents like house tax receipts, sanction of water issued by MCD, water bills, electricity bills, etc., are put on file.
15.The plaintiff built his property WZ101/45A measuring 675 sq yds. At the time of partition, 25 trucks of brick load was provided by Sh. Pyare CS : 255/09 7/11 8 Lal to the plaintiff, which was used by the latter to construct H. No. 101/45A. An another portion measuring 590 sq yds shown in red colour in the site plan was also given to the plaintiff, on which, the plaintiff and his sons constructed H. NO. RZ101/461B, 1C and 1D. Remaining 100 sq yds of land is still lying vacant. Again, a piece of land measuring 296 sq yds bearing no. RZ101/46/4 toward western side known as Nalah Road and another piece measuring 110 sq yds in property bearing no. RZ101/1/2A also shown in red colour in the site plan, came in share of the plaintiff. A portion of it measuring 110 sq yds was sold by the plaintiff and his sons to one Sh. Shiv Prasad. Again, the plaintiff was given two pieces of land measuring 675 sq yds towards eastern side, at the end of Gali Mohan Nagar and a piece measuring 296 sq yds towards western side of Nalah Road. Apart from the portions mentioned above, a piece of land measuring 480 sq yds in property no. 122/101/46 came to share of Sh. Pyare Lal and defendant no. 1, which is occupied by tenants. Again, another piece of land measuring 590 sq yds came in their share, which is shown in yellow colour in the site plan, out of which 150 sq yds was sold by Sh. Pyare Lal to Sh. Praveen Bhargava.
16.Two plots measuring 100 sq yds each towards western side of property bearing no. RZ101/3 were sold by Sh. Pyare Lal and defendant no. 1 to Smt. Jagwati and Sh. Jai Prakash. Out of said 240 sq yds of land, Sh. Pyare Lal sold 140 sq yds to one Smt. Asha and remaining 100 sq yds is lying vacant. Plot measuring 350 sq yds shown in the green colour in the site plan came to share of his brother Rattan Singh (defendant no. 3), which now bears Municipal No. RZ101/461A to 463A. A plot measuring 350 sq yds well shown in the CS : 255/09 8/11 9 blue colour in the site plan fell to the share of Sh. Mahavir Singh, who expired in year 1991 and now two of his sons i.e. defendants no. 4 and 5 are residing in this house. There remained a common Gali of about 350 sq yds well shown in the site plan.
17.Sh. Om Prakash (DW2) claimed to be in relationship with the plaintiff as well as defendants and verified oral partition in respect of suit property as well as property comprising in Khasra No. 343/2. Though in the cross examination, said witness could not disclose the exact date of partition but he claimed that it happened in June, 1974, in his presence. As per this witness, House No. 1217, 1218 and 1223 have been constructed in suit plot.
18.Sh. Kaptan Singh (D6W1) was an Assistant Engineer (Building) in West Zone of MCD and stated about an inspection carried out by him in suit property on 06.10.2008, that the construction in the suit property was found old one.
19.In his cross examination, it was admitted by Sh. Sher Singh (PW1) (son of plaintiff) that the property, partition of which has been sought by his father bears Municipal No. WZ12113, Nangal Raya, and he has seen the house having been constructed on it, before his birth. Similarly, house bearing no. 1217 and 1218 are also in existence having been built years ago. Sh. Pyare Lal was paying house tax of these properties. There are water and electricity connections in this house in the name of Sh. Pyare Lal. It was again admitted by this witness that beside his father, Rattan Singh (defendant no. 3) and Mahavir Singh (father of defendant no. 4 and 5) have got their shares CS : 255/09 9/11 10 in plot comprising in Khasra No. 343/02 as well as 310/1 after said partition. These persons were settled in their respective portions. In this way, as per PW1, an oral partition took place though not in writing.
20.It is admitted by Sh. Amar Singh (PW2) also in his cross examination that houses are built on plot bearing Khasra No. 310/1 i.e. suit property and that about 3035 yrs back. A house was built by Sh. Pyare Lal. It is also admitted by this witness that the parties got equal shares, Sh. Ram Saran was residing in plot comprising in Khasra No. 310/1 since before he got memory. The plaintiff was residing in house built on Khasra NO. 310/1 prior to year 1972 and again that house of Sh. Pyare Lal was constructed in suit property towards south side but in the north side of house of the plaintiff, which was constructed about 40 yrs back. Again defendant no. 1 was residing in his house, which is erected in north side on plot comprising in Khasra No. 310/1 (suit property). Further that his i.e. PW2's house has also built on plot in same Khasra i.e. 310/1. The plaintiff has also his house on a piece of land measuring 20 sq yds constructed about 30 yrs back.
21.After ruminating the statements given by DW1 and DW2 as well as cross examination of PW1 and PW2, it is well established that parties of this case started residing in their respective houses constructed in suit property as well as on plot falling in Khara No. 343/2. The houses were constructed more than 30 yrs back. Some of pieces of land have been sold by Sh. Pyare Lal as well others. It is is case of none that anyone raised objections during raising of construction of separate portions or about selling some portions of suit properties by co CS : 255/09 10/11 11 sharers. DW1 and DW2 stated on oath about an oral partition having taken place between the parties in their presence. It is verified from the statement of D6W1 (Sh. Kaptan Singh), an Assistant Engineer of MCD that the buildings on suit property are old one. In this way, it is apparent that suit property has already been partitioned among the parties. When it has already been partitioned, plaintiff cannot claim its partition again.
This issue is therefore decided against the plaintiff.
ISSUE NO. 822.Trite it to say that apart from seeking partition of suit property, the plaintiff has prayed for giving direction to defendant no. 6 i.e MCD to take action and to demolish unauthorized construction raised by defendants no.1 to 5. As mentioned above, as per Sh. Kaptan Singh (D6W1), an Assistant Engineer, who happened to visit the spot, no fresh construction was found and all the houses are old. No reason to give any such direction to defendant no. 6.
This issue is also decided against the plaintiff.
ISSUE NO. 9 (Relief).
23.On the basis of above discussion, suit of plaintiff is dismissed. Parties to bear their own costs.
24.A decree sheet be prepared accordingly.
25.File be consigned to record room.
Announced in open court (Rajender Kumar Shastri) on 07.02.2011. ADJ06(Central) / Delhi CS : 255/09 11/11 12 HARI SINGH (DECEASED) VS GAJRAJ SINGH 07.02.2011 Present: Ms. Suman Advocate for plaintiff.
Sh. Arun Kumar Advocate for defendants no.1 and 2. Ms. Rashmi Sharma Advocate for defendant no. 3.
Sh. M.K. Sharma Advocate for defendants no. 4 and 5. Sh. Abhinav Kumar Proxy Counsel for defendant no. 6 MCD.
Vide separate judgment, suit of plaintiff is dismissed. File be consigned to record room.
(Rajender Kumar Shastri) ADJ06(Central ) Delhi.
CS : 255/09 12/11