Delhi District Court
Anil Kumar Gulati vs Sushil Kumar Gulati on 27 July, 2024
IN THE COURT OF MS. POOJA JAIN, ADDITIONAL
DISTRICT JUDGE-03, EAST, KARKARDOOMA COURT, DELHI
Suit No. 300/2019
Sh. Anil Kumar Gulati
S/o Late Sh. Ram Prakash Gulati
R/o H. No.D-37, Ground Floor
Street no.6, Gandhi Park
New Govindpura, Delhi-110051 .......Plaintiff
Versus
1. Sh. Sushil Kumar Gulati
S/o Late Sh. Ram Parkash Gulati
R/o H. No.D-37, First Floor
Street no.6, Gandhi Nagar
New Govindpura, Delhi-110051
2. Smt. Kamlesh Khurana
W/o Sh. Ramji Dass Khurana
D/o Late Sh. Ram Prakash Gulati
R/o H. No.84, Ward No.21,
Ghanipura, Rohtak, Haryana
3. Smt. Neelam
W/o Late Sh. Rajender Narula
D/o Late Sh. Ram Prakash Gulati
R/o H. No.D-38/1, Gali no.6,
Street no.6, Gandhi Nagar
Near Gandhi Park, New Govindpura,
Delhi-110051
4. Smt. Kiran Khurana
W/o Sh. Dharambir Khurana
D/o Late Sh. Ram Prakash Gulati
R/o H. No.1140, Arya Nagar
Kosi Kalan, Mathura, U.P.
5. Smt. Pooja Madan
W/o Sh. Ashok Madan
D/o Late Sh. Ram Prakash Gulati
R/o 519-A, Turab Nagar,
Opp. Arjun Nagar Park,
Ghaziabad, UP
6. Smt. Sunita Luthra
Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 1 of 17
W/o Sh. Kawal Nain Luthra
D/o Late Sh. Ram Prakash Gulati
R/o H. No.15/62, Subhash Nagar,
(Backside), Delhi
7. Smt. Kanchan Gulati
W/o Sh. Sushil Kumar Gulati
R/o H. No.D-37, First Floor
Street no.6, Gandhi Nagar
New Govindpura, Delhi-110051
8. Sh. Rohit Gulati @ Honey
S/o Sh. Sushil Kumar Gulati
R/o H. No.D-37, First Floor
Street no.6, Gandhi Nagar
New Govindpura, Delhi-110051
9. Ms. Sunaina
D/o Sh. Sushil Kumar Gulati
R/o H. No.D-37, First Floor
Street no.6, Gandhi Nagar
New Govindpura, Delhi-110051 ............Defendants
Date of Institution : 07.06.2017
Date of Reserving Order : 20.05.2024
Date of Decision : 27.07.2024
Suit for Permanent Injunction,
Partition and Declaration
JUDGMENT
1. The case of the plaintiff is that the defendant no.1 is the real elder brother of the plaintiff and defendant no.2 to 6 are the real sisters of the plaintiff and plaintiff is the youngest one in the family. It is averred that property bearing no. D-37, Street no.6, New Gandhi Park, Govindpura, area of village Khureji Khas, Illaqa, Shahdara Delhi-110051, admeasuring an area 100 sq. yards bearing khasra no.18/22 (hereinafter called as the suit property) was purchased from his own funds by the deceased father of the plaintiff and defendants vide registered GPA dt. 01.12.1972. It is averred that entire suit property consisting ground floor, Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 2 of 17 first floor and two rooms on second floor was constructed by the deceased father of the parties and plaintiff is having the possession of the suit property at the ground floor and one room at second floor whereas the defendant is in possession of first floor and one room at second floor of suit property. The father of the parties to the suit had died intestate on 24.01.1980 and mother also died intestate on 12.06.2005. Defendant no.2 to 6 are residing at their respective matrimonial houses since the date of their marriage. The plaintiff is residing alongwith family and late mother in the suit property. It is averred that defendant no.1 who is the elder brother of the plaintiff, used to quarrel with the plaintiff upon any flimsy ground in relation to parking of vehicle etc. and also obstruct the common passage of ground floor by parking his vehicles. Defendant no.1 in order to throw the plaintiff from the suit property started creating pressure upon the plaintiff to vacate the suit property and to give possession thereof to him. Plaintiff several times requested the defendant no.1 to make partition of the suit property through meets and bounds but on this, defendant no.1 started quarreling with the plaintiff and his family members upon the demand of partition. In the month of November, 2016 the defendant no.1 alongwith his family quarreled with the plaintiff and threatened to dispossess the plaintiff from the suit property. Defendant no.2 to 6 also made him understood not to make pressure upon the plaintiff as plaintiff is having the equal right over the suit property but defendant no.1 remained adamant. Defendant no.2 to 6 have already relinquished their right, title and interest over the suit property vide relinquishment deed dt. 25.05.2017 equally in favour of plaintiff and defendant no.1. Plaintiff has apprehension that defendant no.1 may create third party interest anytime in the suit property. Hence, the present suit is filed praying for following reliefs:
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(a) A decree of permanent injunction be passed in favour of plaintiff and against the defendant no.1 thereby restraining the defendant no.1 from creating any third party rights or from disposing off a part or whole of suit property bearing no. D-37, Street no.6, New Gandhi Park, Govindpura, area of village Khureji Khas, Illaqa, Shahdara Delhi-110051, admeasuring an area 100 sq. yards bearing khasra no.18/22.
(b) A decree of partition be passed in favour of the plaintiff and against the defendant no.1 thereby dividing the suit property bearing no. D-37, Street no.6, New Gandhi Park, Govindpura, area of village Khureji Khas, Illaqa, Shahdara Delhi-110051, admeasuring an area 100 sq. yards bearing khasra no.18/22.
(c) A decree of declaration in favour of the plaintiff and against the defendant no.1 thereby declaring the plaintiff as owner of half share in the suit property bearing no. D-37, Street no.6, New Gandhi Park, Govindpura, area of village Khureji Khas, Illaqa, Shahdara Delhi-110051, admeasuring an area 100 sq. yards bearing khasra no.18/22.
(d) Cost of the suit.
2. Defendant no.1 filed his written statement and contended that suit of the plaintiff is liable to be dismissed with heavy costs as plaintiff has no locus standi to file the present suit. It is further contended that the defendant no.1 is the actual owner of the suit property by virtue of gift deed, agreement to sell and will executed in his favour by his father Late Sh. Ram Prakash Gulati. Thereafter, defendant no.1 had already executed the gift deed, duly registered in favour of his wife i.e. Smt. Kanchan Gulati (defendant no.7) on 28.02.2018. It is averred that defendant no.1 is Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 4 of 17 residing with his family in the suit property and in physical possession of the entire suit property. It is further averred that plaintiff has left the suit property soon after his marriage somewhere in 1996 and after that the defendant no.1 is in the physical possession of the entire suit property. The documents filed by plaintiff are forged and fabricated as the relinquishment deed do not bear the signature of defendant no.1. Lastly it is averred that allegations levied upon the defendant no.1 are totally false and frivolous and no cause of action ever arose against the defendant. Hence, it is prayed that suit of the plaintiff is liable to be dismissed under Order 7 Rule 11 CPC.
3. Though defendant no.3 to defendant no.6 filed their written statement separately however, admitted the suit of the plaintiff and averred that plaintiff was in very much possession of the suit property at ground level consisting of three rooms alongwith dining hall, kitchen and bathroom etc. but due to reason rainy and sewer water used to enter in the suit property i.e. portion of the plaintiff, plaintiff left the said premises on 13.04.2014 of his own leaving behind his household belonging which are still lying there. However, even after leaving the suit property in question, the plaintiff with his wife used to come each and every alternative day for the purpose of cleaning and care of the suit property and suit premises was being used by the children of the plaintiff for the purpose of studies. The defendants have also averred that plaintiff was in the possession of the suit property upto the middle days of 2018 and answering defendant got to know the fact that the defendant no.1 has removed the articles of the plaintiff in his absence and took the wrongful possession of the suit property. Defendant 3 to 6 have lastly averred that the plaintiff and all the defendants are having equal right in the suit property but the answering Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 5 of 17 defendants does not want to claim any right in the suit property and wants to submit that the answering defendants had already relinquished their right in the suit property in favour of plaintiff and defendant no.1 equally.
4. After the defendant no.1 disclosed that he had already executed gift deed in respect of suit property in favour of his wife. His wife/Kanchan Gulati was impleaded in array of parties. Subsequent to the death of Smt. Kanchan Gulati, her LR's i.e. Rohit Gulati and Smt. Sunaina were substituted as defendant no.8 and defendant no.9.
5. Defendant no.8 and defendant no.9 also filed their written statement separately and both the defendants have submitted that defendant no.1 was the actual owner of the suit property by virtue of gift deed, agreement to sell and will executed in his favour by his father Late Sh. Ram Prakash Gulati. Thereafter, defendant no.1 had already executed the gift deed, duly registered in favour of his wife i.e. Smt. Kanchan Gulati (defendant no.7) on 28.02.2018. It is averred that defendant no.1 is residing with his family in the suit property and in physical possession of the entire suit property. It is further averred that plaintiff has left the suit property soon after his marriage somewhere in 1996 and after that the defendant no.1 is in the physical possession of the entire suit property. The documents filed by plaintiff are forged and fabricated as the relinquishment deed do not bear the signature of defendant no.1. It is also averred that allegations levied upon the defendant no.1 are totally false and frivolous and no cause of action ever arose against the defendants no. 8 and 9 as the suit property has already been transferred in the name of Ms. Kanchan Gulati i.e. defendant no.7/wife of defendant no.1, by the defendant no.1 Hence, it is prayed that suit of the plaintiff is liable to be Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 6 of 17 dismissed under Order 7 Rule 11 CPC.
6. Plaintiff has filed the replication in response to the written statement filed by the defendant no.8 & 9 reiterating the plaint averments. The plaintiff denied all other contentions of the defendants as mentioned in the written statement.
7. Vide order dated 22.09.2022, following issues were framed:
(i) Whether the plaintiff is entitled for a decree for permanent injunction as prayed for? OPP
(ii) Whether the plaintiff is entitled for a decree for partition of the suit property as prayed for? OPP
(iii) Whether the plaintiff is entitled for a decree of declaration thereby declaring the plaintiff as owner of half share in the suit property as prayed for? OPP
(iv) Whether the plaintiff has suppressed the material facts from the court? OPD1, 8 & 9
(v) Whether the plaintiff has no cause of action to file the present suit and is liable to be dismissed u/o 7 Rule 11 CPC? OPD-1, 8 & 9
(vi) Whether defendant no.1 was the actual owner of the suit property by virtue of Gift Deed, Agreement to Sell and Will executed by his father late Shri Ram Prakash Gulati and the present suit is infructuous because the suit property has already been transferred in the name of Ms. Kanchan Gulati w/o Shri Sushil Gulati by defendant no.1? OPD
(vii) Relief.
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8. On 09.02.2023, to prove his case, plaintiff examined himself in his evidence and tendered his affidavit Ex.PW1/A, bearing his signatures, at points 'A' and 'B', also relied upon the documents, i.e.:
(a) ID proof of plaintiff as Ex.PW1/1.
(b) Copy of GPA dt. 01.12.1972 as Ex.PW1/2.
(c) Copy of death certificate of plaintiff's father as Ex.PW1/3.
(d) Copy of death certificate of plaintiff's mother as Ex.PW1/4.
(e) Copy of relinquishment deed dt. 25.05.2017 as Ex.PW1/5.
(f) Copy of ID proof of plaintiff's wife and children as Ex.PW1/6 (colly., three sheets) (OSR).
(g) Copy of NOC/Affidavit issued by D-1 in plaintiff's favour as Ex.PW1/7.
(h) Copy of marriage certificate of plaintiff issued on 30.09.2014 as Ex.PW1/8.
(i) Copies of passport of plaintiff, his wife and children as Ex.PW1/9.
(j) Copy of reply of RTI dt. 20.12.2011 and 23.12.2011 as Ex.PW1/10.
9. Plaintiff further examined his friends - Sh. Amreek Singh as PW-2 and Sh. Inder Pal Singh as PW-3 who tendered their evidence by way of affidavit as Ex.PW2/A and Ex.PW3/A. Plaintiff's witnesses were duly cross-examined by Ld. Counsel for defendants. On 22.05.2023, plaintiff's evidence was closed and the matter was fixed for defence evidence.
10. Defendant No.1 Sh. Sushil Kumar Gulati examined himself and tendered his affidavit Ex. DW1/1. He relied upon the following Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 8 of 17 document:
i GPA dated 08.06.1979 Ex.DW1/A (Laminated
documents).
ii Agreement to Sell dated 08.06.1979 Ex.DW1/B
(Laminated documents).
iii Cash receipt dated 08.06.1979 Ex.DW1/C (Laminated
documents).
iv Gift Deed dated 08.03.2018 Ex.DW1/D (OSR).
v Electricity Bills of the suit property Ex.DW1/E (Colly)
(OSR).
vi Relinquishment Deed already Mark PW1/5 is
Ex.PW1/DW1-F.
vii Affidavit dated 08.06.1979 Mark A.
viii Water Bills of suit property Mark B (Colly).
11. Defendant no.1 further examined Ms. Sunaina daughter of defendant no.1 as DW2 and Sh. Rohit Gulati son of defendant no.1 as DW3. All the defendant's witnesses were duly cross-examined by Ld. Counsel for plaintiff. Defendant's evidence was closed on 23.01.2024 and thereafter, matter was fixed for final arguments.
12. Arguments heard. Record perused.
13. I have given thoughtful consideration to the submissions made on behalf of both the parties, considered the relevant provisions of the law, pleadings of both the parties, testimonies of witnesses and material placed on record. The issue wise finding is as under:
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14. Issues-wise Findings:
Issue no. (ii) & (vi) 'Whether the plaintiff is entitled for a decree for partition of the suit property as prayed for? OPP & 'Whether defendant no.1 was the actual owner of the suit property by virtue of Gift Deed, Agreement to Sell and Will executed by his father late Shri Ram Prakash Gulati and the present suit is infructuous because the suit property has already been transferred in the name of Ms. Kanchan Gulati w/o Shri Sushil Gulati by defendant no.1? OPD' 14.1 Above issues are being taken up together as they are interconnected. The onus to prove issue No. 2 is upon the plaintiff and burden to prove issue No. 6 is upon the defendant. Admittedly, the suit property was purchased by the deceased father of parties from his own funds and there are no other surviving legal heirs except the parties to suit.
Hence, by way of present suit, the plaintiff claims that after the death of father, his LRs i.e. plaintiff and all the six defendants have equal share in the suit property. It is further the plea of plaintiff that defendant No. 2 to 6 have already relinquished their share vide relinquishment deed dated 25 May 2017 in favour of plaintiff and defendant no.1 equally. Consequently, he is claiming relief of 1/2 share in the suit property. 14.2 The only defence taken by defendant no.1 is that he is actual owner of suit property by virtue of General Power of Attorney (EX.DW1/A), Agreement to sell (EX.DW1/B) and Cash Receipt (EX.DW1/C) all dated 8th June 1979 executed by deceased father in his favour. It is further the plea of defendant no.1 that he had already gifted the suit property vide registered Gift deed dated 8th March 2018 (EX.DW1/D) in his wife's favour.
14.3 Now it is necessary to scrutinize the documents relied upon Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 10 of 17 by the defendant no.1, his documents i.e. General power of attorney (EX.DW1/A), agreement to sell (EX.DW1/B) and cash receipt (EX.DW1/C). These documents are attested by only one witness. During cross-examination, DW1 deposed that the said attesting witness had already expired. He never took any steps to prove the signature of the attesting witness. DW1 further admitted his father's signature on Ex.DW1/P3XXX. On comparison it is clear that the signature of deceased father on alleged GPA, Agreement to Sell and Cash Receipt are completely different as that of his admitted signature. Even otherwise these documents are only notarized documents and not a single document is registered. The defendant's stand that he is the absolute owner of suit property depends only on these notarized documents only. Here, it is necessary to reproduce the relevant provisions of The Registration Act, 1908 which are as follows:-
'SEC.17:-
(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely
(a) Instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;' ..........
'Section 49 of the Registration Act, 1908: Effect of non-registration of documents required to be registered. No document required by section 17 (1) or by any provision of the Transfer of Property Act, 1882 (4 of 1882), to be registered shall
(a) affect any immovable property comprised therein, or
(b) Confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: [Provided that an unregistered document affecting immovable property and Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 11 of 17 required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.' A conjoint reading of Section 17 (b) and Section 49 of Registration Act shows that any document that creates or takes away any right needs to be registered. If it is not registered, it cannot be taken in evidence except as evidence of any collateral transaction not required to be registered.
14.4 It was held by Hon'ble Supreme Court in the case titled as Suraj Lamps & Industries Pvt Ltd V. State of Haryana (2012) 1 SCC 656 as under:
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of 'GPA sales' or 'SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act."
14.5 In the case at hand, the defendants no.1 has claimed title to the suit property vide unregistered documents i.e. GPA, Agreement to sell Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 12 of 17 and cash receipt. In view of mandatory requirement of registration of documents transferring the interest in immovable property, these unregistered documents i.e. General Power of Attorney (EX.DW1/A), Agreement to sell (EX.DW1/B) and Cash receipt (EX.DW1/C) cannot be recognized as the title documents.
14.6 Now coming to the registered gift deed dated 8 March 2018 executed by defendant No. 1 in favour of his wife/defendant No. 7. The said gift deed may also not create any title in favour of defendant No. 7 for two reasons. Firstly, the defendant No. 1 was not the owner of subject matter of gift and did not have a perfect title in his favour to transfer the same further to his wife/defendant no.7. It is a settled law that "Nemo dat quod non habet" i.e. no one can give what he himself has not. Hence, no person can transfer a better title than he himself has. 14.7 Secondly, the said gift deed was executed by defendant no.1 during the pendency of the present case as the present suit was instituted on 07.06.2017 and Gift deed was executed on 08.03.2018, hence the said transfer is hit by doctrine of lis-pendens under section 52, Transfer of property Act.
14.8 In view of above discussion, it can safely be concluded that the defendant no.1 remains failed to discharge his burden to prove that he is the absolute owner of the suit property, consequently the plaintiff is entitled to the relief of partition of the suit property. Accordingly, the issue no. (ii) and (vi) are decided in favour of plaintiff and against the defendant.
15. Issue no. (iii) "Whether the plaintiff is entitled for a decree of declaration thereby declaring the plaintiff as owner of half share in the suit property as prayed for? OPP"
Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 13 of 17 15.1 The burden to prove this issue is upon the plaintiff. The another plea of plaintiff is that the defendant No. 2 to 6 have already relinquished their share in the suit property in favour of plaintiff and defendant by one equally. To prove the said contention, the plaintiff has relied upon a relinquishment deed dated 25 May 2017 executive by defendant No. 2 to 6 in favour of defendant No. one and plaintiff (EX.PW1/ ). The said relinquishment deed is only a notarised document and not registered. As per section 17 of registration act, the instrument relinquishing the right in immovable property is to be mandatorily registered. It is further pertaining to note that the defendant No. 2 to 6, however, admitted the said relinquishment in their written statement, they did not step into the witness box. Therefore, there has to relinquishment cannot make it valid relinquishment. Had their statement been recorded on SA, the situation would have been different.
15.2 But in the present circumstances, the relinquishment of shares by defendant No. 2 to 6 cannot be relied upon. Therefore it can safely be deduced that the plaintiff and defendant No. 1 to 6 equally entitled for their share in the suit property. Accordingly the issue No. 3 is disposed off.
16. Issue no. (iv) "Whether the plaintiff has suppressed the material facts from the court? OPD1, 8 & 9"
16.1 The onus to prove this issue is upon the defendants no.1, 8 and 9. There can certainly be no denial from the settled principle of law that suppression of 'material' fact by a litigant disqualifies him from obtaining any relief. This rule has been evolved out of the need of the courts to deter a litigant from abusing the process of court by deceiving it. But what is essential is that the suppressed fact must be a Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 14 of 17 'material' fact. It must be material in the sense that had it not been suppressed it would have had an effect on the merits of the case. Decisions reported as Virender Nath Gautam vs. Satpal Singh and Ors. AIR 2007 HC 581 and M/s S.J.S. Business Enterprises Pvt. Ltd. vs. State of Bihar and Ors., AIR 2004 SC 2421 can be referred to in this context. The defendants asserts that the plaintiff has resorted to suppression of material facts by not disclosing that the father of parties had executed Gift deed, Will and Agreement to Sell, in favour of defendant no.1 and further the plaintiff had left the suit property soon after his marriage in 1996. The said gift deed and Will have never come before the Court during the whole trial. Rather the defendant no.1 produced notarized GPA, Agreement to Sell and cash receipt which are already held not recognized by law as title documents. As far as it is concerned with the plea of defendant that the plaintiff suppressed the fact that he left the suit property in the year 1996. On the one hand he took the said plea and on the other hand Ld. Counsel for defendant put a suggestion to PW2 during his cross-examination which he replied, "It is wrong to suggest that plaintiff has shifted to his other property in the year 2011". In this way, the defendant has taken different stands. Even otherwise the fact that the plaintiff left the suit property in 1996 or 2011, is not a material fact to the present suit for partition. 16.2 In view of above discussion, the defendant has not been able to prove that the plaintiff has suppressed any material fact from this Court. Therefore, the issue no.4 is answered in favour of plaintiff and against the defendant.
17. Issue no. (v) "Whether the plaintiff has no cause of action to file the present suit and is liable to be dismissed u/o 7 Rule 11 CPC? OPD-1, 8 & 9"
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18. Cause of action is a bundle of facts, which taken with the law applicable to them gives the plaintiff the right to relief against the defendant. In the present suit for partition, plaintiff has to prove that the suit property belonged to his deceased father and he died intestate leaving behind parties to suit. 'Cause of action' is not synonymous with certainty to succeed. Facts, which are required to be proved to succeed, if are averred in the plaint then all a court has to see is that if all the averments are taken to be correct will they form a legally sustainable cause of action. In the present case, plaintiff has averred that his father owned the suit property at the time of his death, he died intestate leaving behind parties to suit and there are no other surviving legal heirs which is a good enough cause of action to sue the defendant. Therefore, the issue no. 5 is decided in favour of plaintiff and against the defendant.
19. Issue no. (i) "Whether the plaintiff is entitled for a decree for permanent injunction as prayed for? OPP"
19.1 The onus to prove this issue was upon the plaintiff, while discussing issue no.2 & 6, this Court has already observed that defendant no.1 could not prove his right, title or interest in the suit property. It has also been observed that plaintiff and all the defendants have equal share in the suit property. Plaintiff is also entitled to a decree of permanent injunction thereby defendant no.1, his agents, associates or attorney etc. from alienating, transferring and parting with the possession of creating third party interest in the suit property. Hence, this issue is also decided in favour of plaintiff and against the defendant.
19.2 Plaintiff is successful in establishing his claim on record. Suit No. 300/19 ANIL KUMAR GULATI VS. SUSHIL KUMAR GULATI & ORS. Page No. 16 of 17 Since plaintiff and defendants who are/were the children of deceased father/owner of suit property, all have inherited the suit properties jointly and equally as the joint-owners of the same, therefore, plaintiff, defendants No. 1 to 6 are entitled to equal 1/7th share in the suit property. Hence it is held that the plaintiff is entitled to one seventh share in the suit property bearing no. D-37, Street no.6, New Gandhi Park, Govindpura, area of village Khureji Khas, Illaqa, Shahdara Delhi-11005 measuring 100 sq. yds. Thus, these issues are decided accordingly in favour of the plaintiff. Parties are also directed to suggest ways and means by which suit property could be partitioned by metes and bounds as per share specified in the preliminary decree.
20. In view of above findings, hence the plaintiff and defendants are declared joint-owners/joint-sharers of equal 1/7th of the suit property and plaintiff and defendants are entitled to partition with equal 1/7th share each in the suit property and a decree of permanent injunction is also hereby passed directing the parties to maintain status quo in respect of the suit property or any portion thereof or from creating any third party interest till the time partition is made by metes and bounds. Let a preliminary decree be passed accordingly, in above terms.
21. A preliminary decree sheet shall be prepared only when the plaintiff pays the requisite/deficient court fees, if any. Preliminary decree sheet be prepared accordingly. There is no order as to costs.
Pronounced in the open Court ( Pooja Jain)
on 27.07.2024 District Judge-03,
Court No.206, N/B, East District,
Karkardooma Courts, Delhi
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