Delhi District Court
Bharat Saini And Anr vs Narain Singh And Ors on 7 May, 2025
-:: 1 ::- Date: 07.05.2025
IN THE COURT OF MS. SHIVALI BANSAL
DISTRICT JUDGE-03 (NORTH)
ROHINI COURTS, DELHI
CNR No. DLNT010052792016
CS No. 1493/2016
In the matter of :-
1. Sh. Bharat Saini
S/o Sh. Ram Kishan Saini
R/o H. No. 974, Village
and Post Office Pooth Khurd
Delhi - 110039.
2. Sh. Sachin Saini
S/o Sh. Vijay Saini
R/o H. No. 974, Village
and Post Office Pooth Khurd
Delhi - 110039. ...... Plaintiffs
Versus
1. Sh. Narain Singh
S/o Sh. Manphool
R/o Village and Post
Office Pooth Khurd, Delhi - 110039.
2. Sh. Ram Kishan Saini
S/o Sh. Narain Singh
R/o H. No. 974 Village and Post
Office Pooth Khurd, Delhi.
3. Ran Singh
S/o Sh. Narain Singh
R/o Village and Post Office
Pooth Khurd Delhi.
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 1 of 24
Digitally signed
by SHIVALI
SHIVALI BANSAL
Date:
BANSAL 2025.05.07
16:39:59
+0530
-:: 2 ::- Date: 07.05.2025
4. Naresh
S/o Sh. Hosiyare
R/o Village and Post Office
Pooth Khurd, Delhi - 110039.
5. Rambir
S/o Sh. Balwan
R/o Village and Post Office
Pooth Khurd Delhi - 110039.
6. Rajesh Devi
W/o Sh. Ram Singh
R/o H. No. 1296, VPO
Pooth Khurd, Delhi - 110039. ......Defendants
Date of Transfer of the suit from the : 27.01.2016
Hon'ble High Court of Delhi to Ld.
District Judge (North), Rohini, Delhi:
Date of Final Arguments Heard : 09.04.2025.
Date of pronouncement of judgment : 07.05.2025
SUIT FOR PARTITION, DECLARATION & PERMANENT INJUNCTION AND
MANDATORY INJUNCTION
JUDGMENT
1 The present suit is filed for partition, declaration, permanent injunction and for mandatory injunction on behalf of the plaintiffs before the Hon'ble High Court of Delhi. However, the same was transferred from the Hon'ble High Court of Delhi vide order dated 27.01.2016 to the Ld. District Court, North, Rohini, Delhi as the present suit was filed on behalf of the plaintiffs for partition of property valued at less than Rs. 2 crores.
2 Plaint:
The brief facts of the case as stated by the plaintiffs in the plaint are:
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 2 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07
16:40:04
+0530
-:: 3 ::- Date: 07.05.2025
2.1 It is stated that plaintiffs are the permanent residents of abovementioned address and both the plaintiffs are grandsons of defendant no. 1. It is stated that defendant no. 1 inherited the ancestral property which was in the name of late Sh. Manphool Singh (father of the defendant no. 1) and after the death of Sh. Manphool, the name of defendant no. 1 was mutated in the revenue record.
2.2 It is stated that during the consolidation proceedings, the consolidation officer allotted the property bearing no. 156/359 (0-6) Biswas, 154/686 (2-2) 49/21 Min. (2-8), 50/25 (3-0) 142/207 (0-4) Biswas to the defendant no. 1 on the basis of successor of late Sh. Manphool Singh (since deceased).
2.3 It is stated that defendant no. 3 who is the uncle ( Tau) of the plaintiffs hatched a conspiracy to sell out the ancestral property which is in the name of defendant no. 1 in the revenue record and in connivance with the defendant no. 4 & 5, they tried to grab the industrial plot which was allotted to defendant no. 1 during the consolidation proceedings falls within Khasra no. 156, plot no. 359 admeasuring 300 Sq. Yards.
2.4 It is stated that plaintiffs being the grand son, demanded their shares in the aforesaid property but same was refused by the defendant no. 1 by one or the other pretext since 20.04.2011. It is stated that defendant no. 4 & 5 in connivance with the defendant no. 1 to 3 raising the construction over the undivided plot in which the plaintiffs are having ancestral right.
2.5 It is stated that on 20.04.2011, the plaintiffs were demanding their share.
However, despite repeated requests of the plaintiffs, the defendant no. 1 in connivance with the defendant no. 3 and 4 raised the illegal construction and was trying to sell the abovesaid suit property. It is stated that defendant no. 2 is the father of the plaintiff no. 1. However, all the defendants are jointly CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 3 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:40:08 +0530
-:: 4 ::- Date: 07.05.2025 trying to raise the illegal construction over the industrial plot. It is stated that plaintiffs are having 1/6th share out of the immovable property situated in the Village Pooth Khurdh including the industrial plot in which, the unauthorized construction is going on.
2.6 It is stated that plaintiffs also sent a complaint through Speed Post on 10.05.2011 and again on 19.05.2011 to the police official to stop the illegal construction. However, no action was taken by the police official. It is stated that defendants are adamant to sell the suit property which is the ancestral property and raised the illegal construction in collusion with defendant no. 4 and 5. It is stated that plaintiffs were having an apprehension that the suit property be transferred by the defendant no. 1 in favour of other defendants. It is stated that defendant no. 1 also threatened to the plaintiffs that he shall execute the transfer papers in the name of defendant no. 2 to 5. Hence, the present suit is filed on behalf of the plaintiffs with the following prayers:-
i. To pass a decree of partition of the suit property bearing Khasra No. 156/359 (0-6) Biswas, 154/ 686 (2-2) 49/21 Min. (2-8), 50/25 (3-0) 142/207 (0-4) Biswas and 1/6th share each in favour of the plaintiffs against the defendants;
ii. To pass a decree of declaration declaring documents regarding the sale or alienate or transfer of the suit property may be declared null and void;
iii. To pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from raising illegal construction over the share of the plaintiffs;
iv. To pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants thereby directing the defendants to demolish the unauthorized construction over the share of the plaintiffs;
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 4 of 24
Digitally signed
by SHIVALI
SHIVALI BANSAL
Date:
BANSAL 2025.05.07
16:40:12
+0530
-:: 5 ::- Date: 07.05.2025
v. To pass any other order or such further relief, which this Hon'ble Court may
deem fit and proper in facts and circumstances of the case in favour of the plaintiffs and against the defendants;
3 Application under Order 1 Rule 10 CPC:
3.1 Application on behalf of the applicant, namely, Smt. Rajesh for seeking her impleadment was moved before the Hon'ble High Court of Delhi and the same was allowed vide order dated 21.05.2014 by the Hon'ble High Court of Delhi and the applicant, namely, Smt. Rajesh was impleaded as defendant no. 6 in the present suit.
4 Written Statements:
4.1 Vide order dated 15.09.2014 of Hon'ble High Court of Delhi, the right of the defendant no. 1, 2 and 4 to file WS was closed.
4.2 The defence stated by the defendant no. 3 in his WS are as under:
4.2.1 It is stated that the defendant no. 3 is living separately from his father i.e. defendant no. 1 for the last about 30 years. It is stated that in the year 2003, the defendant no. 1 had entered into the settlement with defendant no. 2, defendant no. 3 and his other son, namely Sh. Vijay Singh vide which, the defendant no. 1 agreed to transfer the land measuring 6 bighas out of Khasra bearing No. 156/359 (0-6), 154/686 (2-2), 49/21 (2-8), 50/25 (3-0) and 142/207 (0-4) situated at Village Pooth Khurd, Delhi, which he inherited from his father namely, Sh. Manphool Singh (since deceased), in three equal shares in the name of his three sons (including defendant no. 3) as mentioned hereinabove, three equal shares in the plot measuring 2100 Sq.
Ft. and 300 Sq. Ft. also situated in the village Pooth Khurd, Delhi in the name of his three sons (including defendant no. 3) and the house in which the defendant no. 1 is residing, to be divided equally in four shares i.e. 1/4th CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 5 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:40:16 +0530
-:: 6 ::- Date: 07.05.2025 share in the name of the defendant no. 1 and 1/4th share each in the name of the three sons (including defendant no. 3). The abovesaid settlement was apprised to the SHO of Police Station, Bawana Delhi vide application dated 21.09.2003 which was duly signed by the defendant no. 1, 2, 3, the third son of the defendant no. 1, namely, Sh. Vijay Singh, brother of the defendant no.
1, namely, Sh. Dharam Singh Saini, Smt. Raj Bala, wife of defendant no. 3, Smt. Raj Wanti, wife of Sh. Dharam Singh Saini, neighbourers namely, Sh. Raj Singh, Sh. Prem Singh and Sh. Rajender and same was duly acknowledged by the SHO by affixing the stamp of the police station on the copy of the said application.
4.2.2 It is stated that since the day the aforesaid settlement was arrived into, the defendant had not transferred the said properties in the name of his three sons (including defendant no. 3). It is stated that defendant no. 3 had made numerous requests to the defendant no. 1 to transfer the properties as per settlement but the defendant no. 1 did not do the needful. It is further stated that despite of aforesaid settlement, as per the information received by defendant no. 3, the defendant no. 1 had sold out the said mention plot of 300 Sq. Ft. to the defendant no. 4 and 5 without the consent of the defendant no. 3 and gulped all the sale proceeds himself which he received from selling the said plot.
4.2.3 It is stated that plaintiff have not properly valued the suit for the purposes of courts fees and jurisdiction. It is stated that plaintiffs have not come to this Court with clean hands and have concealed the true and material facts. It is further stated that plaintiffs have not clearly mentioned about the details of the ancestral property which the defendant no. 1 had inherited from his father, namely, Sh. Manphool Singh and which all properties had been mutated in the revenue record in the name of defendant no. 1 after the death CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 6 of 24 Digitally signed SHIVALI by SHIVALI BANSAL BANSAL Date: 2025.05.07 16:40:20 +0530
-:: 7 ::- Date: 07.05.2025 of his father. It is stated that plaintiffs did not mention about the exact colony, place, village as to where the said properties are situated which has been alleged to be allotted to the defendant no. 1 by the consolidated officer. It is stated that defendant no. 3 had no concern with the defendant no. 4 and 5, and he has not hatched any conspiracy to sell out the ancestral property nor tried to grab the industrial plot. It is stated that defendant no. 3 had no hand in raising the illegal construction over the industrial plot. It is stated that defendant no. 3 had no knowledge about the transferring of the property by the defendant no. 1 in the name of the defendant no. 2 to 5. Till date nothing has been happened so far in the name of the defendant no. 3 after the settlement arrived at between the father and sons. Hence, the present suit be dismissed. Remaining averments made in the plaint are denied and false.
4.3 Vide order date 25.07.2018, suit was dismissed for non-prosecution qua the defendant no. 5 as no steps were taken by the plaintiffs for service of defendant no. 5.
4.4 The defence stated by the defendant no. 6 in her WS is as under:
4.4.1 It is stated that defendant no. 1 was the owner of the certain agricultural land which was taken into consolidation and in lieu of it, industrial plot bearing no. 359 was allotted to him. Defendant no. 1 had transferrable rights in the agricultural land also in the substituted plot i.e. Plot No. 359 allotted to him in lieu of the agricultural land. Since, he is a absolute owner with transferable rights, defendant no. 1 had sold and transferred the said plot to Sh. Satish Kumar Gupta, S/o Sh. Dhajja Ram Gupta and Sh. Anand Prakash, S/o Sh. Satish Kumar Gupta, both R/o V.P.O. Pooth Khurd, Delhi vide registered GPA with consideration and agreement to sell, receipt, letter of possession etc. and also deed of Will duly registered. The defendant no. 1 CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 7 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:40:26 +0530
-:: 8 ::- Date: 07.05.2025 parted with possession and lost his rights qua the said plot on the date of execution of these documents for consideration dated 03.12.2004. Since, then, the defendant no. 1 or the plaintiffs or any other person except the purchasers have no right, title and interest in the suit property. It is further stated that Sh. Satish Kumar and Sh. Anand Prakash further sold the land in question of plot no. 359 to Sh. Mohan Lal Aggarwal, S/o Sh. Sunder Lal Aggarwal. Sh. Mohan Lal Aggarwal further transferred the land of this plot to Sh. Yogesh Sharma, S/o Sh. D.P. Sharma vide GPA and Agreement to Sell etc. dated 20.11.2006. Sh. Yogesh Sharma further sold this property for consideration to Sh. Ashok Kumar, S/o Sh. Ran Singh, R/o Village Dhansa, Delhi vide documents of sale dated 10.05.2007. It is stated that Sh. Ashok Kumar further sold this property to Sh. Joginder Malik, S/o Sh. Tek Ram Malik. Sh. Joginder Malik further sold this property to Smt. Rita Gulati, W/o late Sh. Subhash Gulati. Lastly Smt. Rita Gulati sold this property to defendant no. 6 for consideration of Rs. 6,00,000/- vide GPA duly registered with the office of Sub-Registrar-VI B, Vol No. 941 from pages 26 to 31 on 25.03.2011. It is stated that defendant no. 6 is in physical possession of the land bearing Khasra No. 156/359 with her own rights. It is stated that defendant no. 6 is enjoying the peaceful possession of the suit property since 25.03.2011 and an electricity meter is also installed by the NDPL in the suit property which is in the name of the defendant no. 6.
4.4.2 It is stated that there is no cause of action in favour of the plaintiffs and against the defendant no. 6 as the plaintiffs do not have any right in the property which belonged to the defendant no. 1 exclusively and there is no concept of ancestral property qua the suit land. Properties in the name of defendant no. 1 are his exclusive properties and he is not a co-sharer with the plaintiffs. Therefore, the plaintiffs cannot seek any other relief through CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 8 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:40:31 +0530
-:: 9 ::- Date: 07.05.2025 the present suit. It is stated that industrial plot no. 359 had already been sold by defendant no. 1 and the plaintiffs had no right in the said plot since beginning. It is further stated that remaining averments made in the plaint are denied and false.
5 Replication:
5.1 Vide order dated 13.11.2013 of Hon'ble High Court of Delhi, the right of plaintiffs to file replication to the WS of defendant no. 3 was closed.
5.2 No replication was filed on behalf of plaintiffs to the WS of defendant no. 6.
6 Issues:
On the basis of pleadings, following issues were framed vide order dated 16.10.2018:-
i. Whether suit has not been valued properly for purpose of court fees and jurisdiction? OPD3.
ii. Whether plaintiffs have concealed material facts, if so to what effect?
OPD-3.
iii. Whether D6 is the absolute owner of the suit property having purchased the same from rightful owner? OPD6.
iv. Whether plaintiff is entitled for decree of partition as prayed for ? OPP. v. Whether plaintiff is entitled for decree of declaration as prayed for?OPP. vi. Whether plaintiff is entitled for decree of permanent injunction, as prayed for? OPP.
vii. Whether plaintiff is entitled for decree of mandatory injunction as prayed for ? OPP.
7 In the instant case, defendant no. 1, 2 and 4 were proceeded ex-parte by the Ld. Predecessor of this Court vide order dated 11.09.2019 and suit was CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 9 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date:
BANSAL 2025.05.07 16:40:36 +0530
-:: 10 ::- Date: 07.05.2025 dismissed for non - prosecution qua the defendant no. 5 vide order dated 25.07.2018 as no steps were taken by the plaintiffs for service of defendant no. 5 and defendant no. 6 was also proceeded ex-parte by this Court on 04.12.2024.
8 Plaintiff's Evidence:
Plaintiffs in order to prove their case have examined following witnesses:
8.1 PW-1 Sh. Bharat Saini, aged about 32 years, S/o Sh. Ram Kishan Saini, R/o H. No. 974, Village & Post Office Pooth Khurdh, Delhi -110039. He tendered his evidence by way of affidavit which is Ex. PW-1/A bearing his signatures at point A and B. He relied upon the following documents:-
i. Copy of revenue record is Ex.PW1/1. ii. The photographs of construction mentioned in affidavit as Ex.PW1/2
(Colly.) are now de-exhibited and the same are marked as Mark PW1/2 (colly).
iii. The copy of the complaint with postal receipt dated 10.05.2011 as well as the copy of complaint dated 19.05.2011 are Ex.PW1/3 (colly) & Ex.PW1/4 (colly).
iv. The site plan is Ex.PW1/5. v. Copy of passbook consolidation is Ex.PW1/6 (OSR). vi. Copy of khasra Girdawari of the year 2010-11 (From P-4) is Ex.PW1/7. 8.2 PW-2 Sh. Sachin Saini, S/o Sh. Vijay Saini, R/o H. No. 974, Village & Post
Office Pooth Khurdh, Delhi -110039. He tendered his evidence by way of affidavit which is Ex. PW2/A bearing his signatures at point A and B. He relied upon the documents already exhibited by the PW1. However, on 07.12.2023, Ld. Counsel for the plaintiff submitted that he was not in CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 10 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date:
BANSAL 2025.05.07 16:40:40 +0530
-:: 11 ::- Date: 07.05.2025 contact with PW-2. Accordingly, the testimony of PW-2 was taken off the record.
9 Defendant's Evidence:
Defendant no. 3 in order to prove his case has examined himself as D-3W1, the testimony of D-3W1 is as under:-
9.1 D-3W1 is Sh. Ran Singh, S/o late Sh. Narain Singh, R/o VPO Pooth Khurd, Delhi. He tendered his evidence by way of affidavit which is Ex.D3/W1/A bearing his signatures at point A and B. He relied upon the following documents:-
i. Ex.D3/W1/1 is the complaint dated 21.09.2003 is now Mark-A. 10 I have heard the final arguments and perused the record.
11 Findings:
My issue-wise findings are as follows:-
12 Issue no. (i) Whether suit has not been valued properly for purposes of court fees and jurisdiction? OPD3.
12.1 The onus to prove this issue is upon the defendant no. 3. The defendant no.
3 has not led any evidence to prove the same. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 3.
13 Issue no. (ii) Whether plaintiffs have concealed material facts, if so to what effect? OPD3.
13.1 The onus to prove this issue is upon defendant no. 3. The defendant no. 3 in his WS has stated that in the year 2003, defendant no. 1 had entered into a settlement with his three sons i.e. defendant no. 2, 3 and Sh. Vijay Singh, which is as under:-
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 11 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:40:44 +0530
-:: 12 ::- Date: 07.05.2025 "In the year 2003, the defendant no. 1 entered into the settlement with the defendant no. 2, replying defendant no. 3 and his other son, namely, Sh. Vijay Singh vide which the defendant no. 1 agreed to transfer the land measuring 6 bighas out of Khasra bearing number 156/359 (0-6), 154/686 (2-2), 49/21 (2-8), 50/25 (3-0) and 142/207 (0-
4) situated at Village Pooth Khurd, Delhi which he inherited from his father namely, Sh. Manphool Singh (since deceased), in three equal shares in the name of his three sons (including replying defendant) as mentioned herein above, three equal shares in the plot admeasuring 2100 sq. ft. and 300 sq. ft. also situated in the village Pooth Khurd, Delhi in the name of his three sons (including replying defendant) and the house in which the defendant no. 1 is residing will be divided equally in four shares, i.e. 1/4th share in the name of the defendant no.
1 and 1/4th share each in the name of the three sons (including the replying defendant). The said settlement was apprised to the SHO of Police Station Bawana, Delhi vide application dated 21.09.2003 which was duly signed by the defendant no. 1, 2, 3, th third son of defendant no. 1, namely, Sh. Vijay Singh, brother of the defendant no. 1, namely, Sh. Dharam Singh Saini, Smt. Raj Bala, wife of replying defendant, Smt. Raj Wanti, wife of Sh. Dharam Singh Saini, neighbourers namely, Sh. Raj Singh, Sh. Prem Singh and Sh. Rajender and same was duly acknowledged by the SHO by affixing the stamp of the police station on the copy of the said application." 13.2 However, defendant no. 3 has not led any evidence to prove the abovesaid complaint / settlement. Accordingly, this issue is also decided in favour plaintiffs and agains the defendant no. 3.
14 Issue no. (iii) Whether D6 is the absolute owner of the suit property having purchased the same from rightful owner? OPD6.
14.1 The onus to prove this issue is upon the defendant no. 6. Defendant no. 6 has not led any evidence to prove the same. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 6.
15 Issue no. (iv) Whether plaintiff is entitled for decree of partition as prayed for ? OPP.
15.1 The onus to prove this issue is upon the plaintiffs. The plaintiffs have examined themselves as PW-1 and PW-2 respectively and have relied upon CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 12 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:40:49 +0530
-:: 13 ::- Date: 07.05.2025 Ex.PW1/1, Ex.PW1/3, Ex.PW1/4, Ex.PW1/5, Ex.PW1/6 and Ex.PW1/7 to prove their case.
15.2 Before delving into the facts of the case, it is pertinent to discuss the law pertaining to partition of ancestral property. The following judgments are relevant for the aforesaid purpose:-
(a) The judgment of the Hon'ble High Court of Delhi in "Neelam & Anr.
Vs. Sada Ram & Ors., CS (OS) 823/2010" , held as under:-
"1. This suit is predicated on the fact that the two plaintiffs have a share in the properties inherited by their grandfather (defendant No.1) from his own father. The entire case of the plaintiffs is that the said properties are thus, ancestral properties in the hands of their grandfather defendant No.1 and in which the father of the plaintiffs had a share by birth and which share, upon the death of their father devolved on the plaintiffs and their mother (defendant No.6). The plaintiffs thus claim partition. The defendants No.2 to 5 are the paternal aunts of the plaintiffs and the daughters of the defendant No.1. According to the plaintiffs, defendants No.1 to 5 have 1/6th share each and the plaintiffs and defendant No.6 together have remaining 1/6th share in the said properties.
2. It has at the outset been enquired from the counsel for the plaintiffs as to when the father of the grandfather of the plaintiffs died. He is informed to have died in the year 1974.
3. The Hindu Succession Act, 1956 enacted more than half a century ago did away with the concept of ancestral properties, as existed prior thereto. After the coming into force thereof, the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth. Reference in this regard can be made to Commissioner of Wealth Tax, Kanpur Vs. Chander Sen AIR 1986 SC 1753 and Yudhishter Vs. Ashok Kumar AIR 1987 SC 558. The counsel for defendants No.1 to 5 in this regard has also referred to Master Daljit Singh Vs. S. Dara Singh, 85 (2000) DLT 794=II (2000) DMC 134=AIR 2000 Del. 292 and Pratap Vs. Shiv Shanker 164 (2009) DLT 479. However the popular misconception of ancestral properties continues to hold field, as is apparent from plethora of claims, even in courts, being made on the said premise.
4. Thus, the properties inherited by the grandfather of the plaintiffs on the demise of his own father in the year 1974, were held by him as his CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 13 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:40:53 +0530
-:: 14 ::- Date: 07.05.2025 personal properties and in which his son i.e. the father of the plaintiffs did not acquire any share. Axiomatically, the question of the plaintiffs inheriting any such share on demise of their father does not arise.
5. The counsel for the plaintiffs has relied on Om Prakash Gulshan Vs. J.D. Gulshan 118 (2005) DLT 91 (DB), particularly to para 14 thereof.
However the said para 14 refers to the case of a coparcenary. On the contrary the case of the plaintiffs is merely on the basis of the properties being ancestral properties. No case of any coparcenary of grandfather and father of the plaintiffs is pleaded.
6. The counsel for the plaintiffs, faced therewith, has invited attention to para No.15 of the plaint, where it has been mentioned "that the cause of action first arose when the plaintiffs had acquired share in the ancestral/joint family properties.....".
7. However, what the plaintiffs say therein becomes clear from para No.14 of the plaint, where it is mentioned that "the said ancestral properties are the joint family properties which have never been divided by metes and bounds....". The claim of the plaintiffs of the properties being joint family properties is thus based only on the factum of the same being ancestral properties in the hands of their grandfather and not on the factum of there being any coparcenary or HUF in existence and of which no foundation whatsoever is laid in the plaint.
8. A plea of the property being 'Joint Family Property' owing to being jointly owned by members of a family is not the plea of existence of a coparcenary or a HUF. The Supreme Court in Sathyaprema Manjunatha Gowda Vs. Controller of Estate Duty, Karnataka (1997) CLT 44 (SC) (1997) 10 SCC 684 held that even HUF & coparcenary are not one and the same under the Hindu law though for the purposes of taxation under the taxation laws are treated as one and the same. The law of succession after coming into force of the Hindu Succession Act is governed thereby only. Of course, Section 6 thereof carved out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. However, it is not the case of the plaintiff that there was any coparcenary of which their grandfather, his father and the plaintiff's father were a member. This Court recently in Premwati Vs. Bhagwati Devi MANU/DE/4784/2012 held that for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed an HUF since prior to coming into force of the Succession Act and which HUF by virtue of Section 6 of the Act has been permitted to continue. There is no such plea in the present case also...."
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 14 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:40:59 +0530 -:: 15 ::- Date: 07.05.2025
(b) The judgment of the Hon'ble High Court of Delhi in "Dayanand Rajan & Anr. Vs. Ram Lal Khattar, RFA no. 1064/17 & RFA No. 1065/2017", held as under:-
".........8. I do not find any fault whatsoever with the reasoning and conclusions given by the trial court because an HUF can come into existence prior to passing of the Hindu Succession Act in the year 1956 by a person inheriting property from his paternal ancestors up to four degrees or after the year 1956 an HUF can come into existence only if a person throws his property into a common hotchpotch. After the year 1956, merely on account of inheritance of ancestral property an HUF does not come into existence and this is so held by the Supreme Court in the judgments in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. I have had an occasion to examine this aspect in detail in the judgment in the case of Surinder Kumar Vs. Dhani Ram and Others, 227 (2016) DLT 217 and the relevant paras of the Surinder Kumar (supra), and which judgment applies the ratios of the cases of Chander Sen (supra) and Yudhishter (supra ), read as under:-
"5. The Supreme Court around 30 years back in the judgment in the case of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567, held that after passing of the Hindu Succession Act, 1956 the traditional view that on inheritance of an immovable property from paternal ancestors up to three degrees, automatically an HUF came into existence, no longer remained the legal position in view of Section 8 of the Hindu Succession Act, 1956. This judgment of the Supreme Court in the case of Chander Sen (supra) was thereafter followed by the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 wherein the Supreme Court reiterated the legal position that after coming into force of Section 8 of the Hindu Succession Act, 1956, inheritance of ancestral property after 1956 does not create an HUF property and inheritance of ancestral property after 1956 therefore does not result in creation of an HUF property.
6. In view of the ratios of the judgments in the cases of Chander Sen (supra) and Yudhishter (supra), in law ancestral property can only become an HUF property if inheritance is before 1956, and such HUF property therefore which came into existence before 1956 continues as such even after 1956. In such a case, since an HUF already existed prior to 1956, thereafter, since the same HUF with its properties continues, the status of joint Hindu family/HUF properties continues, and only in such a case, members of such joint Hindu family are coparceners entitling them to a share in the HUF properties.
7. On the legal position which emerges pre 1956 i.e before passing of the Hindu Succession Act, 1956 and post 1956 i.e after passing of the CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 15 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:41:05 +0530
-:: 16 ::- Date: 07.05.2025 Hindu Succession Act, 1956, the same has been considered by me recently in the judgment in the case of Sunny (Minor) & Anr. vs. Sh. Raj Singh & Ors., CS(OS) No.431/2006 decided on 17.11.2015. In this judgment, I have referred to and relied upon the ratio of the judgment of the Supreme Court in the case of Yudhishter (supra) and have essentially arrived at the following conclusions:-
(i) If a person dies after passing of the Hindu Succession Act, 1956 and there is no HUF existing at the time of the death of such a person, inheritance of an immovable property of such a person by his successors-in-interest is no doubt inheritance of an „ancestral property but the inheritance is as a self-acquired property in the hands of the successor and not as an HUF property although the successor(s) indeed inherits „ancestral property i.e a property belonging to his paternal ancestor.
(ii) The only way in which a Hindu Undivided Family/joint Hindu family can come into existence after 1956 (and when a joint Hindu family did not exist prior to 1956) is if an individuals property is thrown into a common hotchpotch. Also, once a property is thrown into a common hotchpotch, it is necessary that the exact details of the specific date/month/year etc of creation of an HUF for the first time by throwing a property into a common hotchpotch have to be clearly pleaded and mentioned and which requirement is a legal requirement because of Order VI Rule 4 CPC which provides that all necessary factual details of the cause of action must be clearly stated. Thus, if an HUF property exists because of its such creation by throwing of self-
acquired property by a person in the common hotchpotch, consequently there is entitlement in coparceners etc to a share in such HUF property.
(iii) An HUF can also exist if paternal ancestral properties are inherited prior to 1956, and such status of parties qua the properties has continued after 1956 with respect to properties inherited prior to 1956 from paternal ancestors. Once that status and position continues even after 1956; of the HUF and of its properties existing; a coparcener etc will have a right to seek partition of the properties.
(iv) Even before 1956, an HUF can come into existence even without inheritance of ancestral property from paternal ancestors, as HUF could have been created prior to 1956 by throwing of individual property into a common hotchpotch. If such an HUF continues even after 1956, then in such a case a coparcener etc of an HUF was entitled to partition of the HUF property.
8. The relevant paragraphs of the judgment in the case of Sunny (Minor) (supra) are paragraphs 6 to 8 and which paras read as under:-
"6. At the outset, it is necessary to refer to the ratio of the judgment of the Supreme Court in the case of Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204 and in para 10 of the said judgment the Supreme Court has made the necessary observations with respect to when HUF properties can be said to exist before passing of the Hindu Succession Act, 1956 or after passing of the Act in 1956. This para reads as under:-
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 16 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:41:10 +0530
-:: 17 ::- Date: 07.05.2025 '10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Senand Ors. MANU/SC/0265/1986 MANU/SC/0265/1986: [1986]161ITR370(SC) where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. Pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house." (emphasis is mine) 7 (i). As per the ratio of the Supreme Court in the case of Yudhishter (supra) after passing of the Hindu Succession Act, 1956 the position which traditionally existed with respect to an automatic right of a person in properties inherited by his paternal predecessors-in-interest from the latters paternal ancestors upto three degrees above, has come to an end. Under the traditional Hindu Law whenever a male ancestor inherited any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him had a right in that property equal to that of the person who inherited the same. Putting it in other words when a person „A inherited property from his father or grandfather or great grandfather then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, grandson and great grandson CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 17 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:41:14 +0530
-:: 18 ::- Date: 07.05.2025 had a right equal to „A. After passing of the Hindu Succession Act, 1956, this position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same. There are two exceptions to a property inherited by such a person being and remaining self-acquired in his hands, and which will be either an HUF and its properties was existing even prior to the passing of the Hindu Succession Act, 1956 and which Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956, and in which case since HUF existed and continued before and after 1956, the property inherited by a member of an HUF even after 1956 would be HUF property in his hands to which his paternal successors-in-interest upto the three degrees would have a right. The second exception to the property in the hands of a person being not self-acquired property but an HUF property is if after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties. In order to claim the properties in this second exception position as being HUF/Joint Hindu Family properties/properties, a plaintiff has to establish to the satisfaction of the court that when (i.e date and year) was a particular property or properties thrown in common hotchpotch and hence HUF/Joint Hindu Family created.
(ii) This position of law alongwith facts as to how the properties are HUF properties was required to be stated as a positive statement in the plaint of the present case, but it is seen that except uttering a mantra of the properties inherited by defendant no.1 being, ancestral properties and thus the existence of HUF, there is no statement or a single averment in the plaint as to when was this HUF which is stated to own the HUF properties came into existence or was created ie whether it existed even before 1956 or it was created for the first time after 1956 by throwing the property/properties into a common hotchpotch. This aspect and related aspects in detail I am discussing hereinafter.
8(i). A reference to the plaint shows that firstly it is stated that Sh. Tek Chand who is the father of the defendant no.1 (and grandfather of Sh. Harvinder Sejwal and defendants no.2 to 4) inherited various ancestral properties which became the basis of the Joint Hindu Family properties of the parties as stated in para 15 of the plaint. In law there is a difference between the ancestral property/properties and the Hindu Undivided Family property/properties for the pre 1956 and post 1956 position as stated above because inheritance of ancestral properties prior to 1956 made such properties HUF properties in the hands of the person who inherits them, but if ancestral properties are inherited by a person after 1956, such inheritance in the latter case is as self-acquired properties unless of course it is shown in the latter case that HUF existed prior to 1956 and continued thereafter. It is nowhere pleaded in the plaint that when did Sh. Tek Chand father of Sh. Gugan Singh expire because it is only CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 18 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:41:19 +0530
-:: 19 ::- Date: 07.05.2025 if Sh. Tek Chand father of Sh. Gugan Singh/defendant no.1 had expired before 1956 only then the property which was inherited by Sh. Gugan Singh from his father Sh. Tek Chand would bear the character of HUF property in the hands of Sh. Gugan Singh so that his paternal successors-in-interest became co- parceners in an HUF. Even in the evidence led on behalf of the plaintiffs, and which is a single affidavit by way of evidence filed by the mother of the plaintiffs Smt. Poonam as PW1, no date is given of the death of Sh. Tek Chand the great grandfather of the plaintiffs. In the plaint even the date of the death of the grandfather of the plaintiffs Sh. Gugan Singh is missing. As already stated above, the dates/years of the death of Sh. Tek Chand and Sh. Gugan Singh were very material and crucial to determine the automatic creation of HUF because it is only if Sh. Tek Chand died before 1956 and Sh. Gugan Singh inherited the properties from Sh. Tek Chand before 1956 that the properties in the hands of Sh. Gugan Singh would have the stamp of HUF properties. Therefore, in the absence of any pleading or evidence as to the date of the death of Sh. Tek Chand and consequently inheriting of the properties of Sh. Tek Chand by Sh. Gugan Singh, it cannot be held that Sh. Gugan Singh inherited the properties of Sh. Tek Chand prior to 1956.
(ii) In fact, on a query put to the counsels for the parties, counsels for parties state before this Court that Sh. Gugan Singh expired in the year 2008 whereas Sh. Tek Chand died in 1982. Therefore, if Sh. Tek Chand died in 1982, inheriting of properties by Sh. Gugan Singh from Sh. Tek Chand would be self-acquired in the hands of Sh. Gugan Singh in view of the ratio of the Supreme Court in the case of Yudhister (supra) inasmuch as there is no case of the plaintiffs of HUF existing before 1956 or having been created after 1956 by throwing of property/properties into common hotchpotch either by Sh. Tek Chand or by Sh. Gugan Singh/defendant no.1. There is not even a whisper in the pleadings of the plaintiffs, as also in the affidavit by way of evidence filed in support of their case of PW1 Smt. Poonam, as to the specific date/period/month/year of creation of an HUF by Sh. Tek Chand or Sh. Gugan Singh after 1956 throwing properties into common hotchpotch.
(iii) The position of HUF otherwise existing could only be if it was proved on record that in the lifetime of Sh. Tek Chand a Hindu Undivided Family before 1956 existed and this HUF owned properties include the property bearing no.93, Village Adhichini, Hauz Khas. However, a reference to the affidavit by way of evidence filed by PW1 does not show any averments made as to any HUF existing of Sh. Tek Chand, whether the same be pre 1956 or after 1956. Only a self- serving statement has been made of properties of Sh. Gugan Singh being „ancestral in his hands, having been inherited by him from Sh.
Tek Chand, and which statement, as stated above, does not in law mean that the ancestral property is an HUF property."
9. I would like to further note that it is not enough to aver a mantra, so to say, in the plaint simply that a joint Hindu family or HUF exists. Detailed facts as required by Order VI Rule 4 CPC as to when and CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 19 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:41:24 +0530
-:: 20 ::- Date: 07.05.2025 how the HUF properties have become HUF properties must be clearly and categorically averred. Such averments have to be made by factual references qua each property claimed to be an HUF property as to how the same is an HUF property, and, in law generally bringing in any and every property as HUF property is incorrect as there is known tendency of litigants to include unnecessarily many properties as HUF properties, and which is done for less than honest motives. Whereas prior to passing of the Hindu Succession Act, 1956 there was a presumption as to the existence of an HUF and its properties, but after passing of the Hindu Succession Act, 1956 in view of the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) there is no such presumption that inheritance of ancestral property creates an HUF, and therefore, in such a post 1956 scenario a mere ipse dixit statement in the plaint that an HUF and its properties exist is not a sufficient compliance of the legal requirement of creation or existence of HUF properties inasmuch as it is necessary for existence of an HUF and its properties that it must be specifically stated that as to whether the HUF came into existence before 1956 or after 1956 and if so how and in what manner giving all requisite factual details. It is only in such circumstances where specific facts are mentioned to clearly plead a cause of action of existence of an HUF and its properties, can a suit then be filed and maintained by a person claiming to be a coparcener for partition of the HUF properties.
10. A reference to the plaint in the present case shows that it is claimed that ownership of properties by late Sh. Jage Ram in his name was as joint Hindu family properties. Such a bald averment in itself cannot create an HUF unless it was pleaded that late Sh. Jage Ram inherited the properties from his paternal ancestors prior to 1956 or that late Sh. Jage Ram created an HUF by throwing his own properties into a common hotchpotch. These essential averments are completely missing in the plaint and therefore making a casual statement of existence of an HUF does not mean the necessary factual cause of action, as required in law, is pleaded in the plaint of existence of an HUF and of its properties.
11. I may note that the requirement of pleading in a clear cut manner as to how the HUF and its properties exist i.e whether because of pre 1956 position or because of the post 1956 position on account of throwing of properties into a common hotchpotch, needs to be now mentioned especially after passing of the Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as „the Benami Act) and which Act states that property in the name of an individual has to be taken as owned by that individual and no claim to such property is maintainable as per Section 4(1) of the Benami Act on the ground that monies have come from the person who claims right in the property CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 20 of 24 Digitally signed by SHIVALI SHIVALI BANSAL Date: BANSAL 2025.05.07 16:41:28 +0530
-:: 21 ::- Date: 07.05.2025 though title deeds of the property are not in the name of such person. An exception is created with respect to provision of Section 4 of the Benami Act by its sub-Section (3) which allows existence of the concept of HUF. Once existence of the concept of HUF is an exception to the main provision contained in sub-Sections (1) and (2) of Section 4 of the Benami Act, then, to take the case outside sub- Sections (1) and (2) of Section 4 of the Benami Act it has to be specifically pleaded as to how and in what manner an HUF and each specific property claimed as being an HUF property has come into existence as an HUF property. If such specific facts are not pleaded, this Court in fact would be negating the mandate of the language contained in sub-Sections (1) and (2) of Section 4 of the Benami Act.
12. This Court is flooded with litigations where only self-serving averments are made in the plaint of existence of HUF and a person being a coparcener without in any manner pleading therein the requisite legally required factual details as to how HUF came into existence. It is a sine qua non that pleadings must contain all the requisite factual ingredients of a cause of action, and once the ratios of the judgments of the Supreme Court in the cases of Chander Sen (supra) and Yudhishter (supra) come in, the pre 1956 position and the post 1956 position has to be made clear, and also as to how HUF and its properties came into existence whether before 1956 or after 1956. It is no longer enough to simply state in the plaint after passing of the Hindu Succession Act 1956, that there is a joint Hindu family or an HUF and a person is a coparcener in such an HUF/joint Hindu family for such person to claim rights in the properties as a coparcener unless the entire factual details of the cause of action of an HUF and each property as an HUF is pleaded........"
15.3 The case of the plaintiffs is that the plaintiffs are the great grandsons of late Sh. Manphool Singh, defendant no. 1 is their grand father, defendant no. 2 is their father and defendant no. 3 is their paternal uncle ( tau, real brother of defendant no. 2). The plaintiffs are claiming partition from defendant no. 1 on the premise that defendant no. 1 had inherited ancestral property upon the demise of late Sh. Manphool Singh, i.e. father of defendant no. 1. It is the case of the plaintiffs that the property got mutated in the name of the defendant no. 1. Defendant no. 1 was allotted property bearing Khasra No. 156/359 (0-6) Biswas, 154/686 (2-2), 49/21 Min. (2-8), 50/25 (3-0) 142/207 (0-4) Biswas, which also comprises of an industrial plot. It is the case of the CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 21 of 24 Digitally signed SHIVALI by SHIVALI BANSAL BANSAL Date: 2025.05.07 16:41:35 +0530
-:: 22 ::- Date: 07.05.2025 plaintiffs that the defendant no. 3 hatched a conspiracy to sell the ancestral property in the name of defendant no. 1 in connivance with defendant no. 4 and 5 and therefore, the present suit is filed for seeking partition and for declaration of sale documents to be null and void.
15.4 In view of the settled position of law, the suit of the plaintiffs suffers from various defects. These are as under:-
a) The entire plaint of the plaintiffs is silent about the death of the great grandfather, i.e. late Sh. Manphool Singh, so that this court cannot come to a conclusion whether inheritance in favour of defendant no. 1, took place before the coming of Hindu Succession Act, 1956 or not. On perusal of Ex.PW1/1, it is found that the mutation was carried out in the name of defendant no. 1 on 02.05.2011, from which, the court can infer that late Sh.
Manphool Singh had expired post 1956. Although, it is not pleaded/proved by the plaintiffs. The Hon'ble High Court of Delhi in "Dayanand Rajan & Anr. Vs. Ram Lal Khattar" in RFA No. 1064/2017 has clearly held that detailed facts as required by Order 6 Rule 4 CPC are required to show how and when, the HUF came into existence, which is not done in the instant case.
b) Considering that the property was inherited by defendant no. 1 post 1956, the property thus, inherited by defendant no. 1 from his father, late Sh. Manphool is a self acquired property of defendant no. 1, in which, children of defendant no. 1 i.e. defendant no. 2 and 3 do not acquire any right by birth. Relaince is placed upon the judgment of Hon'ble High Court of Delhi in "Neelam & Anr. Vs. Sada Ram & Ors." (197 (2013) DLT 52 (CN)).
c) In the present case, the plaintiffs are seeking partition of the property when their father, defendant no. 2 is still alive which is not permissible under law.
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 22 of 24 Digitally signed SHIVALI by SHIVALI BANSAL BANSAL 16:41:40 Date: 2025.05.07 +0530
-:: 23 ::- Date: 07.05.2025 Moreover, when the property was inherited by defendant no. 1 as a self acquired property, no right accrues in favour of defendant no. 2 and consequently, no right accrues in favour of the plaintiffs qua the suit property.
d) The suit is also bad for non-joinder of necessary parties as PW-1 and PW-2 in their testimonies have clearly stated that their grandfather i.e. defendant no. 1 had three sons and six daughters. The plainfiffs had not made all the children of grandfather, i.e. defendant no. 1 parties in the present suit. All the other LRs of defendant no. 1 are necessary parties to the present suit as the partition is sought for the estate of defendant no. 1.
e) The plaintiffs in their testimonies have also stated that late Sh. Manphool Singh had distributed his properties in favour of his children during his lifetime, thus, leading to a conclusion that once the property is inherited by defendant no. 1 upon partition by late Sh. Manphool Singh, the same was acquired as a separate property and not as an ancestral property.
f) Lastly, the partition is not sought for all the properties of defendant no. 1.
15.5 In view of the abovesaid observations, the plaintiffs are not entitled to seek partition. Accordingly, this issue is decided in favour of the defendants and against the plaintiffs.
16 Issue no (v) Whether plaintiff is entitled for decree of declaration as prayed for?OPP.
16.1 The onus to prove this issue is upon the plaintiffs. Since issue no. (iv) is decided in favour of the defendants and against the plaintiffs. This issue is also decided in favour of the defendants and against the plaintiffs.
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 23 of 24 Digitally signed by SHIVALI SHIVALI BANSAL BANSAL Date:
2025.05.07 16:41:45 +0530
-:: 24 ::- Date: 07.05.2025
17 Issue no. (vi) Whether plaintiff is entitled for decree of permanent injunction, as prayed for? OPP 17.1 The onus to prove this issue is upon the plaintiffs. Since issue no. (iv) is decided in favour of the defendants and against the plaintiffs. This issue is also decided in favour of the defendants and against the plaintiffs.
18 Issue not (vii) Whether plaintiff is entitled for decree of mandatory injunction as prayed for ? OPP.
18.1 The onus to prove this issue is upon the plaintiffs. Since issue no. (iv) is decided in favour of the defendants and against the plaintiffs. This issue is also decided in favour of the defendants and against the plaintiffs.
RELIEF 19 The suit of the plaintiffs is hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room. Digitally signed
SHIVALI by SHIVALI
BANSAL
Announced in open BANSAL Date: 2025.05.07
16:41:50 +0530
Court on 07.05.2025
Shivali Bansal
District Judge-03, North District
Rohini Courts, Delhi
CS No. 1493/16 Bharat Saini & Anr. Vs. Narain Singh & Ors. Page: 24 of 24