Delhi District Court
Shanno Devi vs Smt. Jyoti Prabha on 7 February, 2020
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE05: WEST DISTRICT:
TIS HAZARI COURTS: DELHI
Counter Claim No. 27/18
Shanno Devi
W/o Late Sh. Sunder Dass Arora
R/o C119, Third Floor (Right Side)
Moti Nagar, New Delhi 110015
Present At :
H. No. 916, Sector7
Gurgaon, 122001 (HR).
.......... Plaintiff/ Noncounter claimant
Vs.
1. Smt. Jyoti Prabha
W/o Late Sh. Vijay Kumar Arora
2. Aryan Arora
S/o Late Sh. Vijay Kumar Arora
Both Residents Of :
R/o C119, (Right Side) Third Floor
Moti Nagar, New Delhi 110015
.......... Defendants/ Counter Claimant.
COUNTER CLAIM ON BEHALF OF DEFENDANT NO. 1 & 2.
Date of institution : 10.05.2016
Judgement Reserved on : 30.01.2020
Date of Decision : 07.02.2020
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 1 / 8
JUDGEMENT
1. Defendants/ counterclaimant had filed present counter claim against plaintiff/ noncounter claimant in civil suit no. 611908/16. In the counter claim, counterclaimant (hereinafter referred as 'defendants') had stated that noncounter claimant (hereinafter referred as 'plaintiff') had not filed partition suit with respect to all the properties of Late Sh. Vijay Kumar Arora. It was claimed that plaintiff used to reside with Sh. Vijay Kumar Arora and defendants with their home, that plaintiff had always resided in the erstwhile home of Sh. Vijay Kumar Arora at 916, Sec. 7 Extension, Gurugram, Haryana. They claimed further that property no. C119, Third Floor, Moti Nagar, New Delhi belongs to defendant no. 1 vide registered agreement dated 22.06.2011. Further, property no. B59, Second Floor, Moti Nagar, New Delhi, was also in the name of defendant no. 1. Both the said properties were purchased by defendant no. 1 from her own funds. They disputed the fact that they had received the refund from Arihant Dream Infra Projects Limited. With regard to the Tata Safari Car, they claimed that this car was stolen from Faridabad, Haryana and an FIR was registered with PS Faridabad and said car is not recovered till date. Besides that, defendants claimed that plaintiff had filed suit for partial partition of the properties. They stated that properties i.e. H. No. 916, Sec. 7 Extn. Gurgaon, Haryana and plot No. 2664, Sec. 4, PartII, Hisar, Haryana, also have to be partitioned between the parties. They claimed that they are in joint possession of said properties alongwith plaintiff. Further, it is stated that they tried to reach amicable settlement with noncounter claimant but of no avail. In the wake of said averments, is prayed that;
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 2 / 8a) A preliminary decree for partition of properties as mentioned above, declaring the share of the defendants/ counterclaimant as 1/5th properties i.e. H. No. 916, Sec. 7 Extn. Gurgaon, Haryana and 2/3rd share in the property bearing plot No. 2664, Sec. 4, PartII, Hisar, Haryana, share in the said properties, be passed.
b) Direct a mode of partition by metes and bounds or appointing a local commissioner to suggest the mode of partition by metes and bounds and specific share coming in the hands of the defendants/ counterclaimants, be handed over to them.
c) Direct the properties to be sold in open auction, in case the property is not partitionable and the money so recovered by sale of the house be ordered to be divided amongst the counter claimant and noncounter claimant in their respective shares.
2. Plaintiff filed Written Statement in response to the claim of defendants and preliminary objections were taken viz; that counter claim is not maintainable legally as it is barred U/O 8 Rule 6A (4) CPC, that counterclaim is vague, that defendants have no locus standi to file the present counter claim and not moved the Court with clean hands. They explained that Sh. Vijay Kumar Arora died intestate leaving behind plaintiff and defendant. At the time of death of Sh. Vijay Kumar Arora, property no. C119, Third Floor (Right Side), Moti Nagar, New Delhi, was registered in his name on the basis of registered General Power of Attorney. She reiterated the contents of plaint in her reply, which needs no repetition as details of properties mentioned by plaintiff in said reply were also appreciated by me in main suit filed by plaintiff.
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 3 / 83. Further, she claimed that properties i.e. H. No. 916, Sec. 7 Extn. Gurgaon, Haryana, was a self acquired property of Late Sh. Sunder Dass Arora husband of plaintiff, which he transferred in the name of his daughter namely Ms. Yog Arora in the year 2005 as he had got paralysis and he required money for financial, medical, economical and social needs. She placed on record the allotment letter issued by HUDA in the name of Late Sh. Sunder Dass Arora with the said reply. With regard to property no. 2664, Sector 4, PartII, Hisar, Haryana, she stated that Late Sh. Vijay Kumar Arora had entered into the sale agreement with his younger brother namely Sh. Yashpal Arora and had received full payment of Rs.14,00,000/ from Sh. Yaspal Arora and had delivered the physical possession of said plot to Sh. Yashpal Arora. In this regard, Sh. Yashpal Arora had filed a suit for symbolic possession against all the legal heirs of Sh. Vijay Kumar Arora including defendants and plaintiff, which was pending decision. She also claimed that counterclaim was barred by limitation and that Sh. Vijay Kumar Arora was B.E. (Textile) and he used to supply textile to Export Houses in Delhi, Noida, Ghaziabad, Faridabad and Gurgaon and at the time of his death, defendants as well as Sh. Sanjay brother of counter claimant no. 1 had taken the stock of textile fabric worth Rs. 10,00,000/ and have sold out the same, which they have never disclosed and the plaintiff has also one third share in the said amount. On merits, claims of defendants were denied and contents of the plaint as mentioned in main suit, were reiterated, which need no repetition.
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 4 / 84. After completion of pleadings of the parties, following issues were settled in main suit :
i) Whether the plaintiff is entitled for decree of partition in respect of suit property, as prayed for ? OPP.
ii) Whether the defendants are entitled for counter claim, as prayed for? OPD.
iii) Relief.
5. In main suit, after completion of pleadings, counsels for both the parties jointly made statement on 23.02.2017, in which, they stated that counter claim and suit no. Civ/DJ 611908/16, may be consolidated and tried together. They further stated at BAR that main suit be taken up as leading case and evidence recorded in that case, may also be treated as evidence in counterclaim.
6. Therefore, in view of the aforesaid statement of counsels for parties, evidence was recorded in this main Suit. Said evidence is read and considered by this Court in counterclaim, for adjudication of same.
7. Thereafter, matter was fixed for plaintiff's evidence. Plaintiff examined herself as PW1 and tendered in evidence her affidavit Ex.PW1/1 and relied upon documents viz. Ex.PW1/A Copy of death certificate dated 13.08.2016 of Sh. Vijay Kumar Arora, Ex.PW1/2 Copy of LIC premium, Ex.PW1/3 Copy of death certificate of Late Sh. Sunder Dass, Ex.PW1/4 Copy of Voter ID Card of PW1 of previous residence, Ex.PW1/5 Copy of legal notice dtd 13.01.16 & Ex.PW1/9 to Ex.PW1/9 Copy of receipts of registered AD Card of service of legal notice.
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 5 / 88. PW2 Yashpal Arora was examined by plaintiff who tendered in evidence his affidavit Ex.PW2/1 and relied upon documents viz. Ex.PW1/A & Ex.PW1/2 (colly). PW3 Sunil Kumar Dhingra was examined by plaintiff who tendered in evidence his affidavit Ex.PW3/1 and relied upon document Ex.PW1/A. Lastly, PW4Harish Kumar Wadhwa, Assistant from LIC, was examined who brought on record the status of policy no. 330417061 (Ex.PW4/1), status of policy no. 330416894 (Ex.PW4/2) and status of report of policy no. 111474972 (Ex.PW4/3). Thereafter, vide separate statement, plaintiff's evidence was closed and matter was fixed for defendant's evidence.
9. Defendants examined defendant no. 1 only as DW1 who tendered in evidence her affidavit Ex.DW1/A and relied upon documents viz. Ex.DW1/1 Power of Attorney,Ex.DW1/2 Sale Agreement in favour of defendant no. 1, Ex.DW1/3 Copy of FIR NO. 422/14, Ex.DW1/4 Allotment letter of deceased Vijay Kumar Arora and Ex.DW1/5 Copy of receipt issued by HUDA. Thereafter, defendant's evidence was closed and matter was fixed for final arguments.
10. Matter was then adjourned for final arguments.
11. After hearing final arguments, matter was reserved for pronouncement of judgement.
12. In my subsequent paragraphs, I will be deciding the matter issue wise.
13. I am dealing with the immovable property firstly in my subsequent paragraphs.
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 6 / 814. Onus of proving issue no. 1 rested upon plaintiff. Said issue is decided by me in civil suit no. 611908/16. It is not repeated here for the sake of brevity.
15. So far as issue no. 2 is concerned, same is based on the claim of defendants in this counter claim. It is decided by me in my subsequent paragraphs.
ISSUE NO. 2.
ii) Whether the defendants are entitled for counter claim, as prayed for? OPD.
16. Defendants in this case had claimed that they are entitled to 1/5th share in the immovable properties viz; H. No. 916, Sec. 7 Extn. Gurgaon, Haryana and plot No. 2664, Sec. 4, PartII, Hisar, Haryana, and 2/3rd share in the property bearing plot No. 2664, Sec. 4, PartII, Hisar, Haryana. Onus of proving the said claim, rested upon defendants.
17. Defendants herein had examined defendant no. 1 as DW1. She reiterated the contents of her counterclaim in her examinationinchief as DW1/A. She did not file any documentary proof regarding the fact that property bearing H. No. 916, Sec. 7 Extn. Gurgaon, Haryana, was owned by Late Sh. Vijay Kumar Arora during his lifetime.
18. In the absence of any documentary proof, I find that she is not entitled to any share in the said property.
Shanno Devi Vs. Jyoti Prabha & Ors. (Counter-claim) Page No. 7 / 819. Defendants further claimed that they are entitled to 2/3rd share in the property bearing plot No. 2664, Sec. 4, PartII, Hisar, Haryana (hereinafter referred as 'plot in Hisar'). In support thereof, she filed copy of the allotment letter dated Ex.PW1/D4 and Receipt Ex.PW1/5, issued by HUDA.
20. During course of final arguments, defendants filed certified copy of order dated 15.02.2018, passed by Sh. Manpreet Singh, Ld. Addl. Civil Juge, (Sr. Divn), Hisar, Haryana, in which, concerned Court had held that Yash Pal was entitled for a decree of specific performance of agreement to sell dated 14.12.2009. As a necessary consequence, it was directed that defendant, her son namely Aryan Arora and plaintiff, shall transfer the said plot in Hisar, in favour of Yash Pal by way of re allotment and also to execute and get registered the sale deed/ conveyance deed in respect of said plot in faovur of Yash Pal. The net result is that, by virtue of said subsequent development, right of defendants and plaintiff, extinguished in the said plot in Hisar. Veracity of the said order is not disputed by counsel of defendants.
21. The net result is that, defendants are not found by me to be entitled to any share in the aforesaid properties. No preliminary decree can be passed in their favour. Accordingly, present counterclaim, stands dismissed. DecreeSheet be prepared, accordingly.
Announced in the open Court [PRASHANT SHARMA]
Dated : 07th February, 2020 ADJ-05, WEST DISTRICT
TIS HAZARI COURT, DELHI
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