Delhi District Court
Memo Of Parties vs Ram Niwas on 21 February, 2014
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE10
(CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 1147/06
Unique ID No. 02401C0461722006
MEMO OF PARTIES
Mehender
S/o Sh. Hazari
R/o Vill & PO Dichaon Kalan, Delhi
...........Plaintiff
VERSUS
1. Ram Niwas
S/o Sh. Hazari
2. Ram Kumar
S/o Sh. Hazari
3. Hari Om
S/o Sh. Ram Rattan
4. Azad Singh
S/o Sh. Daryao Singh
All R/o Vill & PO Dichaon Kalan, Delhi
..........Defendants
Date of institution of the Suit: 25.05.2006
Date on which judgment was reserved: 17.02.2014
Date of announcement of Judgment: 21.02.2014
SUIT FOR PARTITION, DECLARATION AND PERMANENT INJUNCTION
JUDGMENT:
1. The plaintiff has filed the present suit for partition, declaration and Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 1/18 permanent injunction against the defendants.
2. The plaintiff's case is that the father of the plaintiff and defendants no. 1 and 2 Sh. Hazari was the owner and in actual physical possession of the ancestral properties consisting of built up property situated at village and post office Dichaon Kalan, Delhi shown in red colour as portions A, B and C in the site plan annexed to the plaint (herein after referred to as the suit property). Sh. Hazari died in 1979 and all the suit properties and other agricultural land owned by Sh. Hazari were inherited by the plaintiff and defendants no. 1 and 2 jointly in equal shares and since then the plaintiff and the defendants no. 1 and 2 were in joint peaceful possession of the suit properties. The suit properties were situated in the Old Lal Dora of the village therefore neither was there any documentary proof regarding the ownership of the suit properties nor were there any house numbers allotted to the properties. Since the death of Sh. Hazari the electricity connection of all the suit properties was in the name of defendant no. 1 who was the eldest brother and used to look after the family affairs. With the passage of time the families of the plaintiff and defendants no. 1 and 2 became larger in size therefore they started living in portions C, B and A of the suit properties respectively as per their needs and convenience. The plaintiff demolished the old constructed house at portion C which was lying vacant for a few months as plaintiff wanted to reconstruct the same. The plaintiff was residing in the other property situated near portion C as Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 2/18 the same was received from his uncle Sh. Mange in his own capacity and from his own funds. There was no ill will between the brothers and as such no incident occurred to give rise to suspicion between the brothers therefore none of them ever demanded partition. The plaintiff and defendants no. 1 and 2 were in joint possession of all the suit properties.
3. On 01.04.2006 the defendants no. 1, 3 and 4 along with some unidentified men came to the adjoining property of portion C of the suit properties and started quarreling with the uncle of the plaintiff and defendants no. 1 and 2, Sh. Dalel Singh who was the owner of that property. The matter was reported to the SDM of the area. When the plaintiff visited his uncle on 18.05.2006, he came to know that the defendants no. 3 and 4 were claiming to be the owner of the portion C of the suit properties. The plaintiff came to know about the said fact when he went through the petition filed by defendants no. 3 and 4 before the SDM U/s 133 Cr.P.C. against Sh. Dalel Singh. The plaintiff went to the house of the defendant no. 4 on the next day whose house was adjoining the house of the plaintiff and portion C of the suit properties. The defendant no. 3 was also present at the spot at that time. The defendants no. 3 and 4 refused to give any answer and threatened the plaintiff claiming that they had purchased the portion C of the suit properties from the defendant no.
1. They also threatened the plaintiff to vacate the portion C of the suit properties or face dire consequences and threatened that they would take Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 3/18 forcible possession of portion C and all the goods (building material) of the plaintiff would be thrown in the gutter. The plaintiff immediately went to the house of defendant no. 1 but defendant no. 1 also refused to give any answer in this regard. The plaintiff states that he told the defendant no. 1 that the suit properties were yet to be partitioned by metes and bounds and till then the plaintiff had equal right over every inch of all the suit properties. The defendant no. 1 quarreled with the plaintiff and told him to forget about the ancestral properties. The defendant no. 2 whose house was adjoining also reached the spot and tried to pacify the parties saying that it would be better for all if the suit properties were partitioned by metes and bounds. It is contended that the cause of action arose in favour of the plaintiff and against the defendants on 18.05.2006 when the plaintiff visited his uncle and came to know that the defendants no. 3 and 4 were claiming to be the owners of the portion C of the suit properties and further it arose on 19.05.2006 when the defendants no. 3 and 4 threatened the plaintiff to vacate the portion C and also when the defendant no. 1 refused to get partitioned the suit property. It is contended that the cause of action is still continuing in favour of the plaintiff. The plaintiff therefore filed the present suit seeking the reliefs as under: "Pass a decree of partition, dividing the suit properties situated at village and post office Dichaon Kalan, Delhi, as shown in red colour in the site plan by metes and bounds.
Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 4/18 Pass a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants, their family members, their agents and employees etc. from interfering the peaceful actual physical possession of the plaintiff over his share in the suit properties situated at village and post office Dichaon Kalan, Delhi as shown in red colour in the site plan.
Pass a decree of declaration in favour of the plaintiff and against the defendants declaring the documents executed by the defendant no. 1 in favour of defendants no. 1 3 and 4 regarding any portion of the suit properties are null and void conferring no right, title and interest on the defendants no. 3 and 4."
4. The defendants no. 1 and 3 filed a joint written statement. Defendant no. 2 was proceeded exparte vide order dated 03.01.2007. Defendant no. 4 was dropped from the array of parties by the plaintiff vide his statement dated 12.09.2006.
5. The defendants no. 1 and 3 took preliminary objections in their written statement. It was contended that the suit was without any cause of action and was liable to be dismissed U/o VII R 11 CPC. It was contended that the plaintiff had not come to the court with clean hands and had concealed the material fact that the suit properties except portion Mark C had been partitioned amongst the plaintiff and the defendants no. 1 and 2 and their predecessors in Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 5/18 interest about 70 years back and since then the plaintiff and defendants no. 1 and 2 and other cosharers were in possession of their respective shares. The land measuring 45 sq. yds. shown as Mark C in the site plan belonged to the defendant no. 1 who had inherited the same from his ancestor namely Sh. Risal Singh. The defendant no. 1 was the exclusive owner of the said built up property. The suit had not been properly valued for the purpose of court fees and jurisdiction and the suit was barred by limitation.
6. In the reply on merits, the defendants no. 1 and 3 denied that the father of the plaintiff and defendants no. 1 and 2 was the owner and in actual physical possession of the ancestral properties. It was contended that the portion Mark C was the exclusive property of Late Sh. Risal Singh who had been in possession of the same for the last 70 years. The plaintiff had no concern with the portion Mark C. It was contended that, the portion Mark C had been sold by defendant no. 1 to defendant no. 3 vide transfer documents dated 20.01.2003 and the plaintiff was aware of the same and further that the possession was given to defendant no. 3 by defendant no. 1. It was admitted that Sh. Hazari died in the year 1979. It was submitted that the property belonging to Sh. Hazari was inherited by the legal heirs of Late Sh. Hazari in equal shares. The portion Mark C in the site plan belonged exclusively to Sh. Risal Singh and defendant no. 1 had inherited the same from Sh. Risal Singh. It was admitted that the property in question was situated in the Old Lal Dora of the village and Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 6/18 there was no specific record of the land. It was also submitted that the electricity connection was installed in the house as shown in the portion Mark C in the site plan. It was denied that since the death of Sh. Hazari the electricity connection of all the suit properties was in the name of defendant no. 1 who was the eldest brother and it was submitted that plaintiffs and defendants no. 1 and 2 had been residing separately for the last many years due to partition by metes and bounds amongst them and plaintiff and defendants no. 1 and 2 had built their pucca house on their respective shares. It was denied that the plaintiff had demolished the old constructed house at portion C and it was further denied that the plaintiff was residing in another property situated near the portion C which was taken from his uncle Sh. Mange in his own capacity and from his own funds. It was submitted that the plaintiff was never in possession of the portion Mark C in the site plan annexed to the plaint. It was submitted that Sh. Mange Ram died issue less and the house of Sh. Mange Ram was given to the plaintiff and thus the plaintiff was residing in the said house. It was denied that the plaintiff and defendants no. 1 and 2 were in joint possession of all the properties and it was contended that the plaintiff had become dishonest only to grab the land as shown in the portion Mark C. It was denied that on 07.04.2006 the defendants no. 1, 3 and 4 alongwith some unidentified men came to the adjoining property of portion C and started quarreling with uncle of the plaintiff Sh. Dalel Singh. It was submitted that Sh. Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 7/18 Dalel Singh tried to install a door at the entrance of a common passage measuring about 22 sq. yds. which was situated between the property of defendants no. 3 and 4. The present suit had been filed in collusion with Sh. Dalel Singh only to harass the defendants to grab the land Mark C and common passage situated between the properties of defendants no. 3 and 4. The defendants no. 3 and 4 had initiated proceedings U/s 133 Cr.P.C. when Sh. Dalel Singh started to block the common passage measuring 9 feet x 22 feet falling between the property of the defendants no. 3 and 4 by putting a door at the entrance point of the common passage. The claim of the plaintiff was denied.
7. The plaintiff filed the rejoinder (replication) to the written statement of defendants no. 1 and 3. The contentions raised in the written statement were denied and it was averred that the defendants had neither filed the documents of ownership of the portion Mark C nor had they given any particulars of the partition. It was contended that the the plaintiff and defendants no. 1 and 2 had been residing in the respective portions for convenience only and no partition had taken place by metes and bounds amongst the cosharers.
8. On 24.11.2009 the following issues were framed in the present case:
1. Whether on the basis of plaint allegations plaintiff is entitled for a decree of partition as prayed for? (OPP).
2. Whether on the basis of the plaint allegations plaintiff is entitled for a Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 8/18 decree of permanent injunction as prayed for? (OPP).
3. Whether on the basis of the plaint allegations plaintiff is entitled for a decree of declaration as prayed for? (OPP).
4. Whether the plaintiff has no cause of action to file the present suit? (OPD).
5. Whether the suit is not properly valued and the court fees paid is deficient? (OPD).
6. Whether the suit is barred by law of limitation? (OPD).
7. Any other relief which the plaintiff may be entitled for?(OPP).
9. The plaintiff in evidence examined himself as PW1. As further affidavits were not filed despite opportunities therefore PE stood closed on 21.07.2012. Thereafter the defendants no. 1 and 3 in evidence examined the defendant no. 3 as DW1, Sh. Mahipal as DW2 and Sh. Satbir Singh as DW3.
10. Upon conclusion of the trial final arguments were advanced by counsel for the plaintiff. Counsel for defendants no. 1 and 3 filed written arguments. Counsel for plaintiff relied on AIR 1989 Allahabad 133 titled Balkrishna Das Agarwa vs. Smt. Radha Devi & Ors. Written arguments were also furnished on behalf of the plaintiff.
11. I have heard the arguments advanced by counsel for the plaintiff, perused the written arguments filed by the parties and scrutinized the record.
12. My issue wise findings are as follows: Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 9/18 Issue No. 1 Whether on the basis of plaint allegations plaintiff is entitled for a decree of partition as prayed for? (OPP).
13. The most important fact to note in the present case is that the plaintiff has nowhere in the entire plaint or even the replication provided the specific description of the suit properties, merely stating the suit properties to be 'built up property situated at village and PO Dichaon Kalan, Delhi as specially shown in red colour as portionA, PortionB and PortionC in the site plan'. Even if, as is the case of the plaintiff, the suit properties were situated in the Old Lal Dora of the village and there was no documentary proof of ownership and no house numbers had been allotted to the suit properties, atleast the khasra numbers wherein the properties were situated and area of the suit properties should have been stated, but the plaintiff has failed to do so in the pleadings. The site plan Ex. PW1/1, apparently shows the measurement of the portion 'C' (as 21 feet x 16.3 feet) however the measurement of portions A & B is incomplete and even the description on the site plan is vaguely mentioned as 'site plan of properties situated at village Dichaon, New Delhi - 110043'. It is a requirement of the law that complete material particulars have to be pleaded. Pertinently, even the apparently defective site plan Ex. PW1/1 cannot be relied upon for the purpose of identification of the suit properties as is clear from the cross examination of the plaintiff in this regard because the plaintiff/PW1 clearly deposed in his cross examination that no person had gone Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 10/18 to prepare the site plan at the spot. Thus the veracity and genuineness of the site plan Ex. PW1/1 was demolished by the plaintiff himself who could not recall from where he got the site plan prepared, and offered the explanation for his failure to recollect to be that he had undergone a brain surgery for tumour. Even more important is the fact that the plaintiff could not depose anything about the portions marked A, B, & C on the site plan Ex. PW1/1. The plaintiff's testimony in this regard is relevant and is reproduced hereunder " I cannot tell the Mark A, B and C which has been shown in red colour in site plan Ex. PW1/1. I can not tell the actual position of the portion which has been marked as C in the site plan. I can not tell that on which portion my house is situated in the site plan."
14. The plaintiff thus was unable to depose anything about the identity and location of the suit properties. The plaintiff has thus failed to establish the identity of the suit properties which was one of the most vital ingredients to have been established by the plaintiff for seeking the relief of partition. On this very ground that the suit properties are not identifiable the suit warrants dismissal, however even if the merits of the case are considered, the plaintiff has no case. The plaintiff claims in the plaint that he demolished the old constructed house shown as portion C in the site plan which had been lying vacant for a few months and wanted to reconstruct the same. There is force in the contention of the defendants no. 1 and 3 that if indeed no partition had Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 11/18 taken place and the properties continued to be joint family properties, then the plaintiff could not have demolished the portion 'C', atleast not without the permission of the defendants no. 1 and 2. The plaintiff has neither pleaded nor proved that he ever took permission from the defendants no. 1 and 2 to demolish the portion C if at all it was the plaintiff who demolished the same. The plaintiff has not produced any documentary evidence or examined any independent witnesses to establish that he had demolished the portion C. The plaintiff in the plaint has not even mentioned when he allegedly demolished the old constructed house at portion C and though he specifically mentioned in the plaint that he wanted to reconstruct the same and further that the defendants no. 3 and 4 threatened him that if he did not vacate the property they would take forcible possession and all his goods (building material) would be thrown in the gutter however in his crossexamination, he deposed that he had not purchased any bricks and other material for construction on the portion Mark C in the site plan. The plaintiff further claimed in the plaint that the electricity connection of all the suit properties was in the name of defendant no. 1 but he has not produced any electricity bills or summoned any witness from the department to prove the same. The plaintiff has varied materially from his case as set up in the plaint during his cross examination. It was argued by counsel for the plaintiff that it was an admitted case of the parties that the suit properties were joint family properties and the defendants had merely raised Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 12/18 the defence that partition had taken place between the plaintiff and defendants no. 1 and 2 about 70 years back which was not possible since neither the plaintiff nor defendants no. 1 or 2 were even aged 70 years and further, the defendants had not produced any partition deed to prove that the suit properties were partitioned. He relied on AIR 1989 Allahabad 133 titled 'Balkrishna Das Agarwal Vs. Radha Devi & ors.' wherein it was held by the Hon'ble Allahabad High Court that law placed no obligation on members of a joint family that the agreement to separate must be in writing, but the rule was not applicable when partition among cosharers took place as in case of partition of immovable property worth more than Rs. 100/ being effected among cosharers, both a written instrument and registration were required. This judgment in fact is more in favour of the defendants rather than the plaintiff, because it is the plaintiff's own case that the suit properties were ancestral properties, having been allegedly inherited by the plaintiff and defendants no. 1 and 2 jointly in equal shares therefore, it would not be a case of partition among cosharers but of partition amongst members of a joint family, and as per the above case law cited by the plaintiff himself, there was no requirement in law for the partition deed to be in writing. In any case, it was for the plaintiff to establish that all the properties were in fact joint family properties since the defendants no. 1 and 3 have specifically pleaded that the portion C was not joint family property and the same was inherited by Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 13/18 defendant no. 1 from Sh. Rishal Singh who had died issueless. The plaintiff/PW1 denied this suggestion in his cross examination and on the other hand defendants no. 1 and 3 produced DW2 Sh. Mahipal who deposed in cross examination that he knew the parties to the suit since childhood and as per his knowledge, partition took place between the parties about 1516 years back and DW3 Sh. Satbir Singh who also deposed that partition had taken place between the parties. Though , counsel for the plaintiff was able to elicit from both the witnesses DW2 and DW3 that the alleged partition did not take place in their presence and also correctly argued that though DW2 deposed in his cross examination that Sh. Rishal Singh had executed a will in favour of the defendant no. 1 but no such will was ever produced on record however, the plaintiff has not produced any independent witness to prove that the properties were joint family properties. The well settled law is that the plaintiff cannot take aid of the deficiencies in the case of the defendant, and the plaintiff's case must stand on its own legs. The plaintiff has failed to establish the identity of the suit properties and further that portion 'C' was ancestral property therefore the plaintiff has been unable to establish his entitlement to the relief claimed.
Issue is decided against the plaintiff.
Issue No. 2 Whether on the basis of the plaint allegations plaintiff is entitled for a decree of permanent injunction as prayed for? (OPP). Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 14/18
15. The plaintiff has sought permanent injunction seeking to restrain defendants from interfering in the peaceful and actual possession of plaintiff over his share of the suit properties as shown in red in the site plan. The plaintiff has not established the identity of the suit properties and the genuineness of the site plan has also been demolished in the cross examination of the plaintiff. Additionally, the plaintiff is admittedly not in physical possession of any of the properties. In his cross examination, the plaintiff deposed that all the suit properties were in the possession of defendant no. 1. The plaintiff having failed to establish his right or even possession of the suit properties has thus failed to prove his entitlement to the relief of permanent injunction as sought.
Issue decided against the plaintiff.
Issue No. 3 Whether on the basis of the plaint allegations plaintiff is entitled for a decree of declaration as prayed for? (OPP).
16. The plaintiff has failed to establish that the property 'C' was the joint family property/ancestral property of the plaintiff and defendants no. 1 and 2. Admittedly, as per the plaintiff the defendants no. 3 and 4 were staking a claim in the portion 'C' of the suit properties. The defendants no. 1 and 3 have exhibited the documents i.e. Notarized Agreement to Sell Ex. DW1/1, affidavit Ex. DW1/2, possession letter Ex. DW1/3 and receipt Ex. DW1/4. While it is Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 15/18 indeed true that in law these documents cannot be considered to be documents through which interest in immovable property can be transferred however a declaration to the effect that the documents executed by defendant no. 1 in favour of defendant no. 3 in relation to the suit property being null and void cannot be granted to the plaintiff since the plaintiff has failed to establish his locus/interest/right in the property no. 'C' or even to establish the exact identity of property no. 'C'. Further, the plaintiff on 12.09.2006 voluntarily gave up his claim against defendant no. 4 vide his statement and as such the defendant no. 4 being dropped by the plaintiff from the array of parties and the purported documents of defendant no. 4 if any, in relation to which declaration is sought not having been produced by the plaintiff, no relief can be granted against the deleted defendant no. 4. The plaintiff is not entitled to the relief of declaration as sought.
Issue decided against the plaintiff.
Issue No. 4 Whether the plaintiff has no cause of action to file the present suit? (OPD).
17. The plaintiff has failed to establish the identity of the suit properties. The plaintiff has also been unable to establish that the alleged portion 'C' was joint family property and having failed to cross the initial hurdles, the plaintiff has failed to prove the existence of a valid cause of action in his favour.
Issue decided in favour of the defendants.
Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 16/18 Issue No. 5 Whether the suit is not properly valued and the court fees paid is deficient? (OPD).
18. The plaintiff valued the suit for the purpose of jurisdiction at Rs. 2,50,000/ but valued it for the purpose of court fees of Rs. 200/ claiming to be in joint possession of the same with defendants no. 1 and 2. The plaintiff has not established that the property 'C' is joint family property and in his cross examination, the plaintiff clearly testified that defendant no. 1 was in possession of all the suit properties. The plaintiff has failed to establish through evidence that he is in joint possession of the suit properties and was required to value the suit for the purpose of court fees advalorem as per the value of his alleged share in the suit properties and could not have valued it merely at Rs. 200/. I hold that the suit has not been properly valued for the purpose of court fees. In any case, the plaintiff's case fails even on merits.
Issue is decided against the plaintiff and in favour of the defendant. Issue No. 6 Whether the suit is barred by law of limitation? (OPD).
19. The defendants no. 1 and 3 have pleaded in the preliminary objection no. 5 of their written statement that the plaintiff's suit is barred by time, averring that the suit land except portion 'C' had been divided among the cosharers who were in possession of the same for the last many years. The defendants have not however pleaded the material fact of the exact date when the Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 17/18 partition allegedly occurred so that it could be ascertained as to whether the suit filed by the plaintiff on 25.05.2006 was barred by limitation since the plaintiff had alleged that the cause of action arose on 18.05.2006 when he visited his uncle and came to know that defendants no. 3 and 4 were claiming to be owners of the portion 'C' and further on 19.05.2006 when defendant no. 1 refused to get the suit properties partitioned. Of course as discussed in the earlier issues, the plaintiff's case fails on merits but the onus of proving the defence of bar of limitation was on the defendants who have, by failing to plead and prove the material date of partition, been unable to discharge the onus.
This issue is decided against the defendants.
Issue No. 7 Any other relief which the plaintiff may be entitled for?(OPP).
20. In view of the above issue wise discussion, the plaintiff is held to be not entitled to the reliefs claimed. The plaintiff's suit is hereby dismissed. Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the Record Room.
Announced in the open court ANJANI MAHAJAN
On 21.02.2014 Civil Judge - 10 (Central)
21.02.2014
Suit No. 1147/06 Sh. Mahender Vs. Sh. Ram Niwas & Ors. 18/18