Maya vs Satbir on 15 March, 2024

[Cites 22, Cited by 0]

Delhi District Court

Maya vs Satbir on 15 March, 2024

                                                              1

     IN THE COURT OF SH. DIVYANG THAKUR, LD. ADJ03,
      SOUTHWEST DISTRICT, DWARKA COURTS, DELHI




    Civil Suit No: 15324/2016
    CNR No. : DLSW01-000026-2009

    Maya Devi
    W/o Sh. Krishan Lal
    R/o WZ-75A, Village Dashghara
    Near Inderpuri
    New Delhi-110012
                                             .....Plaintiff

                                    Versus

1. Satbir (deceased)
    S/o Late Sh. Ram Diya
    Through LRs
(i) Smt. Santosh
    W/o Late Sh. Satbir

(ii) Sh. Neeeraj (deceased)
     S/o Late Sh. Satbir and Smt. Santosh
     Through LRs
(a) Baby Chahak Nagar
     D/o Late Sh. Neeraj

(b) Master Rishabh Nagar
    S/o Late Sh. Neeraj

    Through their mother
(c) Smt. Sandhiya Nagar
    W/o Late Sh. Neeraj

    All R/o
    WZ-75, Village Dashghara, Near Inderpuri, New Delhi-110015
    CS No. 15324/16
    Maya Devi Vs. Satbir and Ors.
                                                                    2



2. Banarsi Das
   S/o Late Sh. Ram Diya
   R/o WZ-75, Village Dashghara
   Near Inderpuri,
   New Delhi-110012

3. Sarjo Devi (deceased)
   W/o Late Sh. Kawal Singh
   Through LRs
   (a) Sh. Satpal
   (b) Sh. Narendra
   (c) Sh. Bijendra
   All Sons of Late Smt. Sarjo Devi and Late Sh. Kawal Singh and
   all R/o H. No. 167 (New), Village Sannoth, P.O. Narela, Delhi-
   110040

4. Smt. Sheela (deceased)
   W/o Sh. Ram Kumar and D/o Late Smt. Sarjo Devi and Sh.
   Kawal Singh
   Through LRs
   (a) Master Sunny
   Through his father
   (b) Sh. Ram Kumar
   Both R/o Village Ulhana, P.O. Ulhana,
   Tehsil Gannaur,
   District Sonepat, Haryana
                                          .....Defendants



        Suit For Partition, Declaration and Permanent Injunction


                                         Date Of Institution : 20.03.2009
                                   Date Of Final Arguments : 22.12.2023
                                          Date Of Decision : 15.03.2024


                                   JUDGMENT

1. The plaintiff has filed the present suit seeking (a) CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

preliminary decree of partition with respect to the suit property;

(b) final decree whereby demarking share of the Plaintiff and consequential relief thereon of the suit property; (c) decree of permanent injunction with respect to the suit property; (d) decree of rendition of accounts qua Defendants no. 1 and 2 and (e) costs of the suit.

Plaint

2. In the plaint of this suit, the Plaintiff has pleaded that the Plaintiff and Defendants are the Lrs/co-parceners of the deceased Late Ram Diya who had passed away when the Plaintiff was three years old and Smt. Shanti Devi had passed away in the year 2004. It is further averred that the deceased Ram Diya had left behind his legal heirs namely Shanti Devi (Wife), Sarjo Devi (daughter), Satbir (son), Maya Devi (daughter) and Banarsi Das (son). It is further submitted that the Plaintiff along with Defendants no. 1 and 2 are residing in the suit property bearing no. WZ-75, Dashghara, New Delhi-110012.

It is alleged that Defendants no. 1 and 2 are trying to oust the Plaintiff out of the suit property.

3. Paragraphs no. 5 and 6 of the plaint are extracted herein as under:

CS No. 15324/16

Maya Devi Vs. Satbir and Ors.

".......5. That late Ram Diya left behind the following properties:

Property Bearing no WZ-75 and WZ-75A Village Dashghara New Delhi-110015 measuring around 250 sq yrds on both the sides of the MCD park. It is submitted that after the death of the mother of the parties the defendant no 1 and 2 are trying to digest the right of the plaintiff in the aforesaid properties. It is pertinent to mention here that the said defendants also raised the super structures without leaving or creating any share of the plaintiff herein. In such manner the defendant no 1 and 2 raised the superstructures from the funds of the mother Shanti Devi without leaving any share for the plaintiff. The plaintiff kept on requesting the defendant no 1-2 to leave their share but they do not bother for the same. It is pertinent to mention here that Smt Shanti Devi became widow when all the parties to the present suit were minors. However, the said Smt. Shanti Devi, the mother of the parties, left for her heavenly abode in the year 2004 and hence, the plaintiff is also entitled CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

to succession in the share of her mother.

6. That the subject matter of the present suit is property bearing no WZ-75 at Dashghara, New Delhi, divided in two parts i.e. WZ-75, and WZ-75A on one side of the MCD park; WZ-75 and WZ-75A on the other side of the MCD park also. It is submitted that both the defendants no 1 & 2 are residing in WZ 75 and WZ 75A respectively on the other side of the MCD park, which is the larger portion of the suit property and the plaintiff resides on the other part of the suit property i.e. WZ-75A (smaller portion of WZ 75A). ........."

4. It is further submitted in the plaint that both the Defendants no. 1 and 2 were collecting rentals from the tenants and not giving a single penny to the Plaintiff. It is further alleged that the suit property was built by the earning of the mother of the parties. It is further averred that the mother of the parties had left a Will in favour of the Plaintiff according to which she had bequeathed her entire assets in the name of the Plaintiff. Aggrieved, Plaintiff has filed the present suit for partition, declaration and permanent injunction against the Defendants.

CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

Proceedings of the Case

5. A perusal of the Court file reveals that the summons was ordered to be issued qua the defendants, on 20.03.2009 and Written Statement was filed on behalf of Defendants no. 1 and 2 on 01.07.2009. Replication has been filed by the Plaintiff on 18.08.2009. Thereafter, WS was filed on behalf of Defendant no. 3 on 22.10.2009.

6. Thereafter, matter was referred to mediation vide order dated 15.12.2009, however, the same could not be settled. Thereafter, application under Section 151 of CPC was disposed off vide order dated 11.01.2011. Application under Order XXXIX R 1 and 2 of CPC was allowed vide order dated 26.09.2011.

7. In the WS of Defendants no. 1 and 2, the Defendants had pleaded that the present suit of the Plaintiff is not maintainable as no cause of action has been raised against the Defendants no. 1 and 2 and therefore, the suit is liable to be dismissed. It is further alleged that property bearing no. WZ-75, Village Dashghara, New Delhi belongs to Smt. Santosh Kumari and the property bearing no. WZ-75A, Village Dashghara belongs to Sh. Dayanand S/o Sh. Jug Lal. It is further alleged that the site plan annexed with the plaint is not proper and does not disclose the CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

area. It is further alleged that the Plaintiff is in possession of a room in the ancestral land of late Ram Diya. It is further submitted that Defendants no. 1 and 2 were neither the owners of the suit property nor they are in possession of the same.

8. In the WS of Defendant no. 3, it is submitted by Defendant no. 3 that the suit of the Plaintiff is liable to be dismissed being not maintainable. Further, the Defendant no. 3 reiterated the contents of the WS of Defendants no. 1 and 2.

9. On 14.02.2012, following issues were framed:

(i) Whether late Sh. Ram Dayal was not owner of the suit property? (OPD)

(ii) Whether Plaintiff is entitled for decree and possession, as claimed? (OPP)

(iii) Whether Plaintiff is entitled for relief for permanent injunction? (OPP)

(iv) Whether Plaintiff also entitled to decree of admission of account from the Defendants? (OPP)

(v) Relief.

No other issue arose or was pressed for. Matter was proceeded for plaintiff's evidence.

CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

Evidence Led By The Parties

10. On 04.07.2012, PW-1 Ms. Maya Devi had tendered her evidence by way of affidavit Ex. PW-1/A and exhibited the documents from Ex. PW1/1 to Ex. PW1/3 and Mark A and Mark B.

11. Thereafter, an application under Order XXII R 4 of CPC was filed by the Plaintiff which was allowed vide order dated 04.10.2012 and Lrs of Smt. Sarjo Devi were impleaded in the present suit. Amended memo of parties was taken on record. Thereafter, another application under Section 151 of CPC was filed on behalf of the Plaintiff for submitting entire rent earned from the suit property.

12. On 22.01.2014, fresh Vakalatnama was filed on behalf of Defendants no. 1 and 2 and it was submitted that Defendant no. 4 had also expired. Thereafter, another application under Order XXII R 4 of CPC was filed on behalf of the Plaintiff on 06.05.2014. On 08.08.2014, the parties had shown their keen inclination to settle the matter through mediation and as requested, the matter was referred to mediation for exploring the possibility of settlement, if any, however, the same was received back as 'not settled' and trial was proceeded as per law. CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

13. Thereafter, the application of the Plaintiff under Order XXII R 4 of CPC for impleading the LRs of Defendant no. 4 was also allowed vide order dated 13.02.2015 and amended memo of parties was taken on record. Another application under Order XXXIX R 2 A of CPC was moved on behalf of the Plaintiff on 20.02.2015 to which reply was duly filed by the Defendants no. 1 and 2. Memo of appearance was filed on behalf of NDPL/TPDDL and vide order dated 09.03.2015, application of the Plaintiff under Section 151 of CPC was disposed off and directions were given to the NDPL/TPDDL to provide electricity connection in the suit premises. Thereafter, an application under Section 151 of CPC was moved on behalf of Defendants no. 1 and 2 seeking directions to the Plaintiff to pay the dues of electricity usage and on the same date, fresh amended memo of parties was also placed on record on behalf of the Plaintiff.

14. Thereafter, the application of the Plaintiff wherein directions were sought to the Defendants to allow the Plaintiff to use washroom was allowed vide order dated 19.08.2015 and the Defendants were directed not to restrain the Plaintiff from using the washroom in the suit premises. Vide the order of even date, application of the Defendant under Section 151 of CPC seeking CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

directions to the Plaintiff to pay the charges of electricity usage was also allowed and disposed off accordingly. Thereafter, matter was proceeded for cross-examination of PW-1.

15. However, the witness was absent on the next date of hearing and right of the PW-1 to stand in the witness box was closed and PE was also closed vide order dated 18.01.2016. On the same date, it was submitted that Defendant no. 1 had expired on 07.01.2016. Matter was proceeded for Defendant's evidence.

16. An application under Order XXII R 4 of CPC for impleading the Lrs of Defendant no. 1 was moved by the Plaintiff along with amended memo of parties. The said application was allowed and amended memo of parties was taken on record. Application for reopening of the Plaintiff's evidence was also moved and the same was also allowed being unopposed.

17. Thereafter, LRs of deceased Defendants no. 3 and 4 were proceeded ex-parte vide order dated 07.11.2016 for continuous non-appearance. PW-1 was cross examined on various dates and discharged. Thereafter, electricity charges to the tune of Rs. 7,200/- in terms of order dated 19.08.2015 were paid w.e.f. February 2015 to March 2017 to the Defendants.

18. Right of the Plaintiff to lead remaining evidence was CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

closed vide order dated 15.05.2017 and matter was proceeded for DE. Thereafter, an application under Order VII R 14 of CPC was moved on behalf of the Defendants for filing certain documents which was allowed vide order dated 11.09.2017 subject to cost.

19. On 11.09.2017, DW-1 Smt. Santosh had tendered her evidence by way of affidavit exhibited as Ex. DW1/A and relied upon the following documents:

(i) Copy of title documents of the suit property i.e. GPA, Agreement to Sell, payment receipt and Will as Ex. DW1/1 (colly) (OSR);

(ii) Copy of ration card as Ex. DW1/2 (OSR);

(iii) Copy of electricity bill as Mark A;

(iv) Demand letter from DDA dated 30.06.1983 as Ex. DW1/3 (OSR);

(v) Payment deposit slip/receipt as Ex. DW1/4 (OSR) and

(vi) Police complaint dated 31.05.2010 as Ex. DW1/5 (OSR).

DW-1 was cross examined and discharged.

20. On 30.10.2017, DW-2 Sh. Banarsi had tendered his evidence by way of affidavit exhibited as Ex. DW2/A and relied upon the following documents:

(i) Copy of title documents in the name of Smt. Krishna Devi CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

as Ex. DW2/1 (OSR);

(ii) Copy of Ration Card as Ex. DW2/2 (OSR).

DW-2 was further examined-in-chief on 11.12.2017 and relied upon the following documents:

(i) Electricity Bill in respect of the suit property as Ex.

DW2/3 (OSR);

(ii) Demand letter of DDA in respect of the suit property as Ex. DW2/4 (OSR);

(iii) Payment deposit receipt in respect of suit property as Ex.


DW2/5 (OSR) and

(iv)    Police complaint as Ex. DW2/6 (OSR).

DW-2 was cross examined on various dates and discharged on 26.03.2018. On the even date, DW-3 Smt. Krishna tendered her evidence by way of affidavit exhibited as Ex. DW3/A and relied upon the documents already exhibited by DW-2. DW-3 was cross examined and discharged.

21. On 16.05.2018, DW-4 Neeraj had tendered his evidence by way of affidavit and was cross examined and discharged. On 04.07.2018, DW-5 Ct. Sanjiv Kumar, P.S. Inderpuri was examined, cross examined and discharged and the record brought by him was exhibited as Ex. DW5/1 (colly). Thereafter, DW-6 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

Sh. Mahinder Kumar, Asst. Gr.-I, TPDDL, Inderpuri was examined, cross examined and discharged and the record brought by him was exhibited as Ex. DW6/1, Ex. DW6/2 and Ex. DW6/3 (OSR). On 06.08.2018, DW-7 Sh. Raj Singh who was also a summoned witness was examined, cross examined and discharged. On 05.10.2018, DW-8 Sh. Ashok Kumar Sheoran, Lecturer in Commerce Govt. Sr. Sec. School, was examined and discharged and the record brought by him was exhibited as Ex. DW8/1 (OSR) and Ex. DW8/2 (OSR). On the even date, DW-9 Sh. Prince Kumar, Bill Clerk, District Election Office, Sonepat, Haryana was also examined and discharged and the record brought by him was exhibited as Ex. DW9/1 (OSR) running into 3 pages. Nil opportunities were given to cross examine DW-8 and DW-9 as none had appeared for the Plaintiff. Thereafter, DE was closed vide separate joint statement of Defendant no. 2 and LR of Defendant no. 1. Matter was proceeded for final arguments.

22. Thereafter, an application dated 12.10.2018 was filed by the Plaintiff for recalling the order dated 05.10.2018 which was subsequently dismissed vide order dated 29.10.2018. Thereafter, on a perusal of file, it was revealed that the issues framed on CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

14.02.2012 were needed to be modified/rectified and accordingly, an additional issue was framed on 22.05.2019 as below:

"Whether the suit is maintainable in view of provisions of Section 6 of Hindu Succession (Amendment) Act, 2005?"

Matter was proceeded for arguments on the aforesaid additional issue.

23. Thereafter, an application under Section 21 of CPC was moved by the Plaintiff to transfer the present case on the basis of territorial jurisdiction to which reply was duly filed by the Defendants. Arguments were heard and the said application was dismissed vide separate order dated 30.08.2019.

24. Vide order dated 11.09.2019, additional issues are framed in respect of the modification/rectification of the issues which were framed on 14.02.2012. The same are extracted herein as under:

(i) Whether the suit is maintainable in view of provisions of Section 6 of Hindu Succession (Amendment) Act, 2005? (OPP)

(ii) Whether the property bearing no. WZ-75 and 75A measuring 250 sq. yards situated at Village Dashghara, New Delhi are the ancestral properties as claimed by the Plaintiff? (OPP) CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

(iii) Whether the suit property bears No. 75/1/13364 situated at Village Dashgara was the ancestral land of Sh. Ram Diya? (OPD)

(iv) Whether the property bearing No. WZ-75, Village Dashgara, New Delhi measuring 90 sq. yards belongs to Smt. Santosh Kumari? (OPD)

(v) Whether the property bearing no. WZ-75A, Village Dashgara, New Delhi belongs to Sh. Daya Nand? (OPD)

(vi) Whether the Plaintiff is entitled to decree of partition, as prayed for? (OPP)

(vii) Whether the Plaintiff is entitled to decree of rendition of accounts, as prayed for? (OPP)

(viii) Relief.

On the same date, it was submitted by Ld. Counsels for the parties that they did not wish to lead further evidence pursuant to modification/rectification in issues and framing of additional issues and submitted that the case may be fixed for final arguments. Thereafter, an application was moved by the Ld. Counsel for Plaintiff for addition and deletion of issues. In view of the said application, additional issue was framed vide order dated 23.10.2019 as under:

CS No. 15324/16

Maya Devi Vs. Satbir and Ors.

"Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? (OPP)"

Said application was disposed off accordingly.

25. Written arguments/written synopsis filed on behalf of the parties. Thereafter, an application under Order VI R 17 of CPC for amendment of plaint was moved by the Plaintiff on 21.10.2020 which was later dismissed as withdrawn and on the same date, parties requested to refer the matter to mediation. However, the same could not be settled in mediation and trial was proceeded as per law. An application was thereafter filed for furnishing the details of LRs of deceased Neeraj to which subsequent reply was filed. Another application under Order XXII R 2 of CPC read with Section 151 of CPC was filed on behalf of the Plaintiff for substitution of LR of deceased Defendant no. 1 namely Neeraj and the same was allowed and fresh amended memo of parties was taken on record. Written arguments were filed on behalf of the parties to the said application.

26. Thereafter, the matter was transferred vide order dated 24.05.2023 before the present court. This Court heard final arguments on behalf of both the parties.

CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

Contentions Of Parties

27. Final arguments were heard on various dates at length. Ld. Counsel for plaintiff has submitted that the plaintiff has been able to prove her case on a preponderance of probabilities and that the suit property belonged to the father of the parties and thereafter has devolved upon the present plaintiff and her brothers and sister. It is further submitted that the defendants have not allowed the plaintiff to enjoy the property whereas they are enjoying the property by inducting tenants and charging and realizing rents and therefore, a decree of rendition of accounts is also sought.

28. Per contra, the learned counsel for the defendants has submitted that the plaintiff has not been able to establish the identity of the suit property or that the said property is the ancestral property. In arguendo, he has further submitted that the said land is government land which was merely occupied by the defendants and that therefore there can be no partition decree of such land which was essentially the public land belonging to the government. It has been submitted that the property is impartible and cannot be partitioned by the decree of this Court as that would enable the parties to claim title to the property. The parties CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

fail to prove that they are the legal owner of the property and have trespassed on public land and therefore, they cannot take the benefit of the law. It was submitted that 250 sq. yards of the suit property was a self acquired property and therefore, for this reason also, the property could not be partitioned. The Ld. Counsel relied upon a judgment of the Hon'ble Supreme Court of India in 'Jagpal Singh and Ors Vs. State of Punjab and Ors' in Civil Appeal No. 1132/2011 decided on 28.01.2011. Findings

29. I have perused the record and heard the Ld. Counsels for the parties. My issue wise findings are as under:

Issue no. (i) At the outset, I may state that Section 6 of the Hindu Succession Act has no application to the present case. The Plaintiff has claimed rights in the property on the basis of being the daughter of the deceased Ram Diya and who died intestate. Section 6 deals with a legislature intervention with regard to the traditional customary law of co-parcenaryship, thereby giving daughters the same right as the son in the co-parcenary property. However, there are no averments which deal with the existence CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

of a Hindu Joint Family. In Surender Kumar vs. Dhani Ram and Ors in CS (OS) No. 1737/2012, Hon'ble High Court of Delhi has held as under:

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 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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 individual's 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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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:-

'10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors.

         MANU/SC/0265/1986MANU/SC/0265/198                              :

         [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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 latter's paternal ancestors upto three degrees above, has CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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 CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

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."

There are no such pleadings as required and laid down in CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

the aforesaid judgment by the Hon'ble High Court of Delhi. The reliance of the Plaintiff on Section 6 of the Hindu Succession Act, therefore, is completely misplaced and not merited. There were no pleadings and in fact, the pleadings are related to the intestate succession which is governed by Section 8 of the Hindu Succession Act. Therefore, this issue is decided against the Plaintiff.

Issues no. (ii), (iii), (iv) and (v)

30. I shall decide the aforesaid issues as they are interconnected and deal with the same pleadings and evidence. As shall be discussed in detail hereinafter, the Plaintiff has claimed that two properties which are identified by the numbers WZ-75 and WZ-75A were in the possession of her father Ram Diya and on the other hand, it has been claimed by the Defendants no. 1, 2 and 3 in their written statement that the only property left behind by Ram Diya was identified as 75/1/13364 and the properties bearing no. WZ-75 and WZ-75A belong to Santosh Kumari and Daya Nand respectively. It has been averred that the aforesaid properties i.e. WZ-75 and WZ-75A are the self acquired properties and have nothing to do with late Ram Diya. On these averments, the said issues under discussion have been CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

framed.

31. I have perused the pleadings and the evidence. The following observations arise therefrom:

(a) In the pleadings, the Defendants have drawn a distinction between the property numbered as 75/1/13364 which is admitted to be the property of late Ram Diya measuring 60 sq. yards and between WZ-75 and WZ-75A which is stated to be the properties of Santosh Kumari and Daya Nand. It may be observed that it is the admitted position that Maya Devi, Satbir, Banarsi Das and Sarjo Devi were the sons and daughters of late Ram Diya and late Shanti Devi who have both expired. Santosh Kumari is the wife of Satbir who expired during the pendency of the suit whereas, Daya Nand is an unrelated party who was neither produced as a witness nor impleaded in the present suit but as per the deposition of DW-4 Neeraj who is the son of late Defendant Satbir was the maternal uncle of his father.

(b) It may be observed further that the Defendants, in order to support their plea that the properties WZ-75/75A and WZ-

75/1/13364 are different properties and not one and the same, did not produce a single piece of evidence nor did they plead for the appointment of a Local Commissioner to verify the said fact. No CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

municipal record or the record of any Government authority has been produced to show that the said properties are different. There is no record to show that any municipal or local authority like the MCD, DDA or the concerned SDM has given the property numbers to each property in the village in which the suit properties are located.

(c) In defence, Santosh Kumari W/o Late Satbir was examined as DW-1 who relies upon certain documents such as GPA, Agreement to Sell, Will, Receipt, etc which were exhibited as Ex. DW1/1. The said documents are purportedly a deed of conveyance executed by Satbir Singh in the favour of his wife transferring the property WZ-75 measuring 90 sq. yards in her favour for the sale consideration of Rs. 40,000/-. The said documents are unregistered documents. During her cross- examination, she has deposed that her husband used to work in MCD and was drawing a salary of Rs. 10,000/- to Rs. 12,000/- per month. She has further deposed that he was the sole earner of the family and she was always doing only household works. She is unaware as to from whom her husband purchased the suit property. She has further deposed that "my husband had occupied the same as other locality members had also occupied CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

the land in the same manner." She has further deposed that the Plaintiff is residing in one of the rooms illegally in WZ-75 and also volunteers that the Defendant had illegally trespassed into the same when she was not present. Having perused the aforesaid testimony, it appears that the documents Ex. DW1/1 have only been prepared in order to give colour to the story that WZ-75 was a property which was separately acquired by the late Satbir. The said witness DW-1 has come up with a story that the Plaintiff is illegally residing and has trespassed in one of the rooms of her property i.e. WZ-75 whereas, in the written statement, it has been admitted by Defendant no. 1 in para 4 of the said WS that the Plaintiff is in possession of one room in 75/1/13364 which is also said to be the ancestral land of late Ram Diya. The story that the Plaintiff has subsequently trespassed into a separate property which is identified as WZ-75 is not credible and in fact, seems to be a complete falsehood and creature of afterthought deliberately designed by the Defendants to defeat the rights of the Plaintiff. It is also the implicit admission of the Defendants that in fact, the property number 75/1/13364 and WZ-75 is one and the same property which was possessed by late Ram Diya. The documents Ex. DW1/1 cannot give the suit property the character of the CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

separate self acquired property of the late Satbir (Defendant no.

1). DW-1 in fact, contradicts herself when she deposes that "I along with my sons and daughter and their families reside in WZ-75 in 25 sq. yards which is my share in the ancestral property."

(d) The second witness produced by the Defendants is the son of late Ram Diya and Defendant no. 2 Banarsi Das. His stand in his examination-in-chief is a reiteration of the stand taken in the WS. However, a new fact introduced in his evidence is that he is residing in the own self acquired property which bears the number WZ-75B and measures 80 sq. yards and the actual owner of the property is his wife Smt. Krishna by way of GPA executed by him in her favour. He maintains in his examination-in-chief that the only property left behind by late Ram Diya was WZ- 75/1/13364, Village Dashghara, New Delhi-15 measuring around 60 sq. yards and that no other property was left behind by him. He has relied upon title documents Ex. DW2/1 which is the GPA, etc executed by him in favour of Smt. Krishna who is his wife. During his cross-examination, he has deposed that "the property bearing no. 75/1/13364 is measuring about 60 sq. yards. Vol. The same is ancestral property. At present, the said property is CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

identified as 75B........." He further deposes that the family members of his maternal uncle Daya Nand are staying in the property bearing no. WZ-75A and that they are the owner thereof. He admits the suggestion that many of the houses in village Dashghara have the same numbers. He deposes that he along with his family stay adjacent to where the family of his elder brother stays and there is a partition wall between these two but the property is the same and the numbers of the said properties are WZ-75 and WZ-75B. In the cross-examination conducted on 05.02.2018, he further deposes that "no property bearing no. 75/1/13364 exists as of now. Vol. Now, we have the properties bearing no. WZ-75B and WZ-75." He further deposes that "it is correct that four properties i.e. WZ-75A, WZ-75 on one side of the MCD park, WZ-75B on the other side of the MCD park are carved out of the properties bearing no. 75/1/13364." He further deposes that WZ-75 is not his self-acquired property but the same has been occupied by him. He further deposes that WZ-75B is an ancestral property. In the cross conducted on 26.03.2018, he further deposes that he does not reside at WZ-75B but lives with his family at property no. 75/1/13364, Village Dashghara. From a reading of the evidence of DW-2, it can be CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

clearly seen that the defence that the property 75/1/13364 are different from the properties which are referred to by the Defendants as WZ-75, WZ-75A and WZ-75B is an attempt by the Defendants to defeat the rights of the Plaintiff and to mislead the Court and cause the obstruction of justice. The Defendants have taken advantage of the fact that the concerned Government authorities have made no efforts to identify and give official numbers to the properties and it appears that the Defendants have wholesale given new identification numbers to their properties in an effort to give them the colour of self-acquired properties when the truth is that the father of the parties had may be occupied the land which was not belonging to him and thereafter, the parties have continued to reside in the said properties after carrying out construction. It has been admitted by DW-2 that all the properties i.e. WZ-75, WZ-75A and WZ-75B were carved out of the property earlier identified as WZ-75/1/13364. It appears that the truth has come out, knowingly or unknowingly, during the cross- examination. It is to be remembered that apart from the Plaintiff, DW-2 is the only surviving sibling and son of late Ram Diya and therefore, his admission carries much weight and would be binding on him and the other parties to the suit. The GPA etc CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

executed by him in favour of his wife carry no value and cannot operate to make the property identified by DW-2 as 75B to be impartible and self-acquired property. In fact, it has been admitted by DW-2 himself that he did not purchase the property and was merely occupying the same. DW-3 who is the wife of DW-2 namely Krishna was cross examined and has deposed that her husband is the owner of House No. 75/1/13364, Village Dashghara, New Delhi. She has also stated that the said property is an 'ancestral one.' She has also deposed that the property bearing WZ-75B, Village Dashghara, New Delhi has been occupied by her husband since before her marriage. The testimony of DW-3 corroborates DW-2 in as much as she has also admitted that her husband had merely "occupied the property." Therefore, it was not possible for him to execute any deed of conveyance in favour of his wife.

(e) It has been argued that none of the parties could establish their absolute title or the title of their father over the suit property. The Ld. Counsel for Defendant vehemently argued that the property was Government land and the same could not be partitioned. It has been submitted that the parties are staying illegally in the suit property and have usurped public land which CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

does not belong to them and therefore, the present suit for partition is not maintainable. Firstly, the said contention was never part of the pleadings and no specific issue was struck regarding said fact. Secondly, even conceding that the parties to the present suit do not have absolute title, the fact remains that there are many facets to the rights over immovable property which can be partitioned including possessory rights, tenancy rights, etc. In every case, it is not necessary that the common ancestor of the parties was possessing the absolute title as per law over the suit property. Lastly, it is the admitted position that the Defendants are renting out the properties to different tenants and enjoying the rental income which fact has been admitted by DW- 1 and DW-2 in their cross-examination. Therefore, the Defendants cannot be heard to say that the property cannot be partitioned while on the other hand, they are enjoying the rental income from the properties and have excluded the Plaintiff from the same. On this point, a few authorities and pronouncements of the Hon'ble High Court of Delhi may be cited with profit.

In Surjit Singh v. Ekta Gulati, 2012 SCC OnLine Del 4233, Hon'ble High Court of Delhi has observed as under:

"5. In the circumstances, what stands admitted/proved CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

is that the father of the parties, namely Shri Purushottam Singh was having rights in the said shop, whether they be ownership rights or rights by way of adverse possession or merely possessory rights. The said rights, on the demise of Shri Purushottam Singh, are being enjoyed by the appellants only who are but two out of five legal heirs of Shri Purushottam Singh. The appellants, while continuing to enjoy the said rights, cannot deny the share of the daughters of Shri Purushottam Singh therein on the specious plea of Shri Harbhajan Singh being the recorded owner of the shop.

6. It is significant to note that the appellant do not claim the possessory rights of the shop from Shri Harbhajan Singh and the appellant no 1 in his cross examination recorded on 30th April 2011 expressly admitted, "I am in possession of this property through my father". On specific query today also as to whether the appellants claim to be occupying the shop under any authority from the legal heirs of Shri Harbhajan Singh, the counsel replies in negative. CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

7. Once it stands proved that the possession of the appellants of the shop is by inheritance from the father, I am of the view that possessory rights i.e. the right to control property including the right to exclude others are a facet of different kinds of rights over immoveable property and can be subject matter of partition and such possessory rights by a person who is not necessarily the owner cannot be appropriated by few only of the legal heirs to the exclusion of others and all the legal heirs are entitled to a share in the said possessory rights with respect to the property."

In Gopi Chand v. Geeta Devi, 2020 SCC OnLine Del 2420, Hon'ble High Court of Delhi has observed as under:

"14. The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari v. Ram Kishan (2013 SCC OnLine Del 4110) and Surjit Singh v. Ekta Gulati (2012 SCC OnLine Del 4233, appeal whereagainst was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled "Inderjit Kaur v. Ekta Gulati") held that the law of inheritance/succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy/leasehold rights, which also are determinable by nature and with respect CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

whereto also it is settled law [Iresh Duggal v. Virender Kumar Seth, (2015) 221 DLT 216, Dalip Kumar v. Om Prakash, 2015 SCC OnLine Del 11768 Ram Lal Sachdev v. Sneh Sinha, 1999 SCC OnLine Del 917, UOI v. Mohinder Pratap Soni, 2016 SCC OnLine Del 2600, Madan Lal v. Kuldeep Kumar, 2013 SCC OnLine Del 4008, Pragun Buildtech (P) Ltd. v. Sarla Aggarwal, (2012) 190 DLT 164, Surendra Pal Singh v. Ravindra Pal Singh, 2014 SCC OnLine Del 2959, Satish Kumar Chojar v. Subhasini Chopra, 2014 SCC OnLine Del 3403] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.

15. In this context I may notice that a perusal of the file of the First Appellate Court shows that the counsel for the appellant/plaintiff had been seeking adjournments to place a notification before the First Appellate Court, CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

entitling occupants of jhuggi jhopri colonies developed by the DDA to rights of permanent nature in the property in their occupation, though did not place such notification before the First Appellate Court till the pronouncement of the judgment. Even after the First Appellate Court pronounced the judgment, the record shows the counsel to have protested in this regard. Though the counsel for the appellant/plaintiff here also has not placed any notification in this respect but it is found that the Department of Urban Development of Government of NCT of Delhi vide Order No. F.234(7)/UD/BSUP/2012/17270-17281 dated 20th June, 2013 has activated the earlier order dated 9 th September, 1998 of conversion of rights of eligible occupants of 45 Jhuggi Jhopri Resettlement Colonies developed from 1950 onwards by the DDA, in favour of allottees thereof. The same also is indicative of the rights of allotment of the plot in favour of father of the parties constituting a valuable right capable of being partitioned between the heirs. It is thus evident that both the Courts below have terribly misdirected CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

themselves.

..........

18. The judgment in a Civil Suit is to be returned on findings on issues framed in a suit and which issues in turn arise from the pleadings of the parties. The finding of the Trial Court as well as the First Appellate Court, that the rights of which partition was sought were impartible, is de hors any plea or issue and could not have been permitted to defeat the claim of the appellant/plaintiff to partition and which claim was not really opposed by the respondents/defendants, as noted in the two judgments of the Courts below also. It was not the plea of the respondents/defendants in their written statement that property no. B-532 of which partition was sought was impartible or that no rights with respect thereto had devolved to any of the heirs of the common predecessor. Significantly it was the DDA alone which could have taken the said plea and which was not a party. No issue in this respect was struck in the suit. No finding with respect to the same could have been returned in the absence of DDA. The Courts CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

below have failed to notice that their reasoning, of no rights in property no. B-532 having devolved in favour of heirs of Laloo Ram, has resulted in the respondents/defendants only being entitled to enjoy the property and the appellant/plaintiff inspite of being one of the heirs of Laloo Ram having been deprived of the same. The judgments impugned in this appeal are liable to be set aside on this short ground alone.

19. The proceedings in a civil suit are governed by the procedure laid down in the CPC and which provides for pleadings by the adversarial parties, framing of issues on the substantial questions of law and facts arising thereon, evidence being confined to the issues and findings in the judgment and decree in the suit being confined to the issues framed. A suit is not entitled to succeed or liable to be dismissed on a reasoning which has no foundation in pleadings and/or on which no issue has been struck. In Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370 it was held that if pleadings do not give sufficient details, they will not raise an issue and CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

the Court can reject the claim or pass a decree on admission. It was further held that on vague pleadings, no issue arises. I have also dealt with this aspect in Modicare Limited v. Gautam Bali, 2019 SCC OnLine Del 10511.

20. As far as the second substantial question of law as aforesaid is concerned, I have already hereinabove noticed the position in law and the judgments of the Courts below are in ignorance thereof and without adverting thereto. The Courts below also erred in not noticing that the respondents/defendants who were admittedly not the only heirs, for more than 30 years since the demise of the common predecessor were in exclusive use and enjoyment of the property admittedly allotted to the common ancestor and which fact alone was enough to forthwith grant a decree for partition. Even if DDA as the grantor of the license with respect to the land in favour of the common ancestor were to repossess the said land, till it was so repossessed, none of the heirs could be deprived of benefit thereof as part of the estate of the common ancestor."

CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

Therefore, the contention of the Defendants that property cannot be partitioned has to be rejected. After separating the grain from the chaff, what comes out as the most probable state of affairs is that the father of the parties late Ram Diya was enjoying the property and had occupied the same though, having no title to it, and thereafter, his sons have been enjoying the property and giving out the same on rent while excluding their sister i.e. the Plaintiff. Even if the parties only have a possessory right, the same can be partitioned and all the LRs of the common ancestor can be given equal rights to enjoy their possessory right over the property.

(f) Therefore, I find that the Defendant's stance qua the different identities of the property is nothing more than a willful obfuscation of the true state of affairs. Their stand qua the alienation of the property by the husband to their respective wives is a further effort to frustrate the claim of the Plaintiff and a completely artificial transaction in an attempt to mislead the Court. No other evidence has been produced by the Defendants. The electricity connection proved by the Defendants as Ex. DW6/1, Ex. DW6/2 and Ex. DW6/3 cannot prove otherwise. There is no record available as to how the electricity connection CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

was given at the concerned property numbers by the concerned authorities in absence of any official document. In fact, it is quite probable that the documents Ex. DW1/1 and Ex. DW2/1 were only prepared for obtaining the electricity connection in the name of Santosh Kumari. Similarly, the evidence of DW-8 and DW-9 who have proved the admission record or the children and the voter record respectively do not help the case of the Defendants.

(g) On the other hand, the stand of the Plaintiff has been consistent from the beginning and there was nothing that shook her testimony in the cross-examination. Ld. Counsel for Defendant has relied upon the testimony of PW-1 where she has deposed that the property is divided by a park which was earlier a 'jhor.' This fact does nothing to detract from the findings of this Court and does not in any way, affect the entitlement of the Plaintiff. In light of the above, issues no. (iii), (iv) and (v) are decided in favour of the Plaintiff and against the Defendants. Issue no. (ii) is decided in favour of the Plaintiff and against the Defendants.

Issue no. (vi)

32. Accordingly, I find that the Plaintiff is entitled to the relief of partition of the suit property as prayed for. The issue is CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

decided accordingly in favour of the Plaintiff and against the Defendants. I find that the Plaintiff Maya Devi, the LRs of late Satbir, Banarsi Das and the LRs of Sarjo Devi each have a share of 1/4th in the suit properties which are identified as WZ-75, WZ-75A and WZ-75B measuring around 250 sq. yards on both sides of the MCD park in Village Dashghara, New Delhi-15. Issue no. (vii)

33. I find that consequently, the Plaintiff is also entitled to a decree for rendition of accounts as prayed for. Admittedly, DW-1 has deposed that "there are 8 tenants residing in WZ-75. 5 tenants are residing at first floor and three tenants are residing at ground floor........." DW-2 has deposed that "the property bearing WZ-75 consists of two floors, ground floor inclusive. There are 6-7 rooms in the said property. All the rooms are occupied by tenants and one room is occupied by Maya Devi (Plaintiff)........." DW-3 has deposed that the property bearing WZ-75B has been let out to 12-13 tenants and consists of three and a half storey. One floor is said to consist of four rooms and two rooms have been constructed on the fourth floor. It is apparent that the Defendants and their LRs are enjoying the rental income from the property which has been found to be the CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

partible property above. Therefore, the Plaintiff is entitled to a decree for rendition of accounts for the rental income being enjoyed by the Defendants qua her 1/4th share which is being generated from the suit property from the date of filing of the suit till realization. The issue is therefore, decided in favour of the Plaintiff and against the Defendants.

Issue no. (viii)

34. The parties are also injuncted from creating any third party interest in the suit properties till such time the property is partitioned by way of a final decree of partition. The issue is therefore, decided accordingly.

35. An additional point is clarified herein. Defendant no. 4 as arrayed in the memo of parties filed by the Plaintiff was one Sheela who is the daughter of Sarjo Devi i.e. Defendant no. 3. Her impleadment as Defendant no. 4 independently in her own right is clearly a misjoinder of parties and she will only get the rights as an LR of Sarjo Devi.

Relief:

36. The following reliefs are therefore, pronounced:

(a) A preliminary decree of partition is passed with respect to the suit property which are identified as WZ-75, WZ-75A and CS No. 15324/16 Maya Devi Vs. Satbir and Ors.

WZ-75B measuring around 250 sq. yards on both sides of the MCD park in Village Dashghara, New Delhi-15 and it is declared that the Plaintiff and Defendants no. 1, 2 and 3 are having ¼ share each in the suit property.

(b) Plaintiff is entitled to a decree of rendition of accounts for the rental income being enjoyed by the Defendants qua her 1/4th share which is being generated from the suit property from the date of filing of the suit till realization.

(c) A decree of permanent injunction is passed injuncting the parties from creating any third party interest in the suit property till such time the property is partitioned by way of a final decree of partition.

(d) Costs of the suit are also awarded in favour of the Plaintiff.

37. Decree sheet be drawn up accordingly.





Announced in the open court                (Sh. Divyang Thakur)
On 15.03.2024                              ADJ-03/South-West
                                           Dwarka / New Delhi




CS No. 15324/16
Maya Devi Vs. Satbir and Ors.

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Maya vs Satbir on 15 March, 2024