Delhi District Court
Sh. Mahavir Singh vs Smt. Usha Devi on 21 November, 2011
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTH WEST DISTRICT, DWARKA COURTS, DELHI
CS No: 397/11
Unique Case ID No. 02405C0156402011
Sh. Mahavir Singh
S/o Late Sh. Bharat Singh
R/o. H.No. 24, DBlock, Roshan Vihar,
Gurgaon Road, Najafgarh,
New Delhi110043 ... Plaintiff
Versus
Smt. Usha Devi
W/o. Late Raghubir Singh
R/o. Plot No. 145, Dabri Village,
(Lal Dora)
New Delhi110045 ... Defendant
Date of Institution: 19.04.2011
Date on which judgment was reserved: Not reserved
Date of pronouncing judgment: 21.11.2011
Mahavir Singh vs. Usha Devi 1 of 34
CS No.397/11
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
1. The suit shall be decided by this judgment. The plaintiff is the brotherinlaw of the defendant. It is stated in the plaint that the plaintiff had two brothers namely Mr. Raghubir Singh and Mr. Dharambir Singh. The defendant is stated to be the wife of Mr. Raghubir Singh. It is stated in the plaint that the father of the plaintiff namely Mr. Bharat Singh expired on 16.05.1989 leaving behind the plaintiff and his two brothers as surviving legal heirs. They inherited his estate which included plot no.145, Dabri Village, New Delhi (hereinafter referred to as "the suit property"). The plaintiff has averred that his brother Mr. Raghubir Singh divided the suit property into two equal shares. One share was given to the plaintiff whereas the other was retained by Mr. Raghubir Singh. Another property which was situated in Sitapuri, New Delhi measuring 120 sq. yards was given to Mr. Dharambir, the other brother of the plaintiff. This family settlement was duly recorded in writing in the presence of witnesses. Mr. Raghubir Singh, brother of the plaintiff expired in the year 1999 leaving behind the defendant and his children. The plaintiff has not been residing in the suit property. The plaintiff has further stated in the plaint that he instructed the defendant to look after and Mahavir Singh vs. Usha Devi 2 of 34 CS No.397/11 reside in the said plot as its caretaker. In February, 2010, the plaintiff visited the said plot. He learnt from neighbours that the defendant has sold her share in the plot and is constructing a house on the share of the plaintiff in the said plot. It is pleaded that the said construction was commenced without obtaining permission of the plaintiff and against the consent of the plaintiff. The plaintiff has further averred in the plaint that he filed a suit before the court which had to be withdrawn due to a technical defect. On the basis of these averments, the plaintiff has filed the present suit praying for a decree of permanent injunction restraining the defendant and her representatives from interfering in the possession of the plaintiff in the suit property and from carrying out construction over the suit property.
2. The defendant has filed written statement. In her written statement, she has stated that the father of the plaintiff died on 16.05.1989. At that time, he was owner of the following properties:
(a) House built on part of plot bearing no. 145, Dabri Village, New Delhi45 (suit property).
(b) Shops and residential house built on plot bearing no. 20, situated in Harijan Basti, Village Dabri, New Delhi45.
(c) House property built PSDabri, Sitapuri, on a plot of land bearing no. 13, Harijan Basti, Near New Delhi45.
Mahavir Singh vs. Usha Devi 3 of 34 CS No.397/11
3. The defendant has further stated that her husband, the plaintiff and Mr. Dharambir Singh had entered into a family settlement whereby the abovesaid properties were divided as under:
(a) House built on part of plot bearing no. 145, Dabri Village, New Delhi45 remained with Mr. Raghubir Singh.
(b) Shops and residential house built on plot bearing no. 20, situated in Harijan Basti, Village Dabri, New Delhi45 was given to the plaintiff.
(c) House property built on a plot of land bearing no. 13, Harijan Basti, Near PS - Dabri , Sitapuri, New Delhi - 110045 was given to Mr. Dharambir Singh.
4. The defendant further stated that the plaintiff and his brothers occupied and enjoyed the properties which fell into their share. Mr. Dharambir Singh and the plaintiff later sold their share and purchased property elsewhere. It is stated that Mr. Raghubir Singh died on 13.08.2000 leaving behind the defendant and five children. It is also stated that the two sons of Mr. Raghubir Singh are in occupation of the plot bearing no.145, Dabri Village, Delhi. It is further stated that the present suit is not maintainable since a previous suit bearing CS No. 65/2010 was withdrawn by the plaintiff on 25.08.2011. It is further pleaded that the plaintiff ought to have filed a suit for partition and the suit for permanent injunction alone is not Mahavir Singh vs. Usha Devi 4 of 34 CS No.397/11 maintainable. The defendant has further stated that the plaintiff has not been able to demonstrate that he is the owner of the property. The defendant has stated that the plaintiff is only trying to grab her share. It is also urged that the other legal heirs of the father of the plaintiff have not been impleaded as a party to the suit and therefore the suit is barred by nonjoinder of necessary parties. The defendant denied that any settlement of the nature pleaded by the plaintiff took place.
5. Replication was filed by the plaintiff. The plaintiff reiterated the correctness of averments made in the plaint and denied the allegations levelled by the defendant in the written statement.
6. After completion of pleadings, the following issues were framed by the Court by order dated 26.07.2011:
1. Whether the suit is barred by the principle of res judicata under Section 11 of Civil Procedure Code or by Order 2 Rule 2 of Code of Civil Procedure? OPD.
2. Whether the suit is barred on the ground that the plaintiff has not prayed for partition? OPD.
3. Whether the suit is barred by nonjoinder of necessary parties? OPD.
4. Whether the plaintiff is entitled to permanent injunction as prayed? OPP.
5. Relief.
7. The plaintiff adduced evidence in support of his case. He examined himself as PW1. He chose not to file a separate affidavit in evidence Mahavir Singh vs. Usha Devi 5 of 34 CS No.397/11 and simply identified the affidavit filed in support of the plaint. He however reiterated the averments made in the plaint in his examinationinchief. He identified and relied upon the document dated 27.10.1999 as Mark X. The plaintiff/PW1 deposed that the suit property bearing No.145, Dabri Vilage, New Delhi was occupied by his father namely Sh. Bharat Singh. PW1 further deposed that his father died in the year 1989. He stated that after the death of his father, his elder brother namely Mr. Raghubir Singh divided the suit property in equal shares that is in two halves between the plaintiff and himself. PW1 further deposed that his elder brother prepared a compromise deed dated 27.10.1990 Mark X in the presence of witnesses. PW1 stated that as per the compromise deed, he has half share in the suit property.
8. PW1 was crossexamined by counsel for defendant. In cross examination he stated that he is residing at H. No. 24, DBlock, Roshan Vihar, Gurgaon Road, Najafgarh, New Delhi11045 since 22.2.2010. He stated that before 22.02.2010, he was living at 145, Dabri Village, Delhi. PW1 further stated that he had left the property because of the quarrels initiated by his sisterinlaw and nephew. He denied that the document Mark X is a false and fabricated document. PW1 further testified that the property bearing No. WZ20, Harijan Basti was his property and that it was given to him by villagers. The Mahavir Singh vs. Usha Devi 6 of 34 CS No.397/11 witness further stated that the said property was sold out by him in the year 2000. The witness admitted that the electricity bill dated 24.03.2011 Ex.PW1/D1 pertains to the said property. PW1 further stated that he and Mr. Dharambir, who had received plots at Harijan Basti, Dabri and Harijan Basti, Sitapuri respectively, had sold their respective shares. PW1 stated that except the property at Dabri, all brothers have sold out their respective shares. PW1 denied the suggestion that in the partition between him and his elder brothers, he had received property bearing No. WZ20, Harijan Basti, Dabri Mor, that Late Raghubir Singh received old house in the village Dabri bearing No. 145 and that Sh. Dharambir received plot No. 13, Harijan Basti, Sitapuri, PS Dabri, New Delhi. PW1 stated that there had been an oral partition. PW1 also stated that he had not filed any suit with the same relief. He denied that any previous suit was dismissed as withdrawn in the court of Sh. Mohinder Virat, Ld. ACM cum ARC on 25.08.2010. PW1 denied his signatures at point A on the document Mark B. The witness admitted having mentioned paragraph No.7 of the plaint. PW1 denied the suggestion that he had never resided at 145, Dabri Village, Delhi and that only Smt. Usha Devi, her sons and their family had been residing at the said property. PW1 admitted that Sh. Subhash and Sh. Rajesh were also residing in the suit property. PW1 admitted that the electricity bill Ex Mahavir Singh vs. Usha Devi 7 of 34 CS No.397/11 PW1/D2 is in the name of Late Sh. Raghubir Singh. PW1 further admitted that the death certificate Ex PW1/D3 and Ex PW1/D4 are of his brother Late Sh. Raghubir Singh and his mother Smt. Barfi Devi. PW1 admitted that the documents Ex PW1/D5 to Ex PW1/D8 are correct. PW1 was discharged. Plaintiff's evidence was closed.
9. The defendant adduced evidence in support of his case. She examined herself as DW1. She tendered her affidavit Ex. D1 in evidence. She reiterated the averments made in the written statement. She identified and relied upon copy of ration card as Mark A, voter card as Mark B, bank pass book as Mark C and Delhi Vidyut Board Receipt no. 238394 and bills as Mark D (colly).
10.DW1 was crossexamined on behalf of the plaintiff. In her cross examination, she stated that she has been residing at the suit property since her marriage with Late Sh. Raghubir Singh. DW1 stated that other than the suit property, there were two more properties bearing no. 20, Harijan Basti, Dabri and bearing no. 13, Sitapuri, New Delhi. She pleaded ignorance of existence of property bearing no. 14 in Sitapuri, measuring 120 sq. yards. The defendant denied the suggestion that in the partition, the plaintiff, the defendant and the motherinlaw of plaintiff received share in the suit property. She denied the suggestion that she had received four plots. DW1 stated that property no. 20, Harijan Basti, Dabri, measuring 88 sq. Mahavir Singh vs. Usha Devi 8 of 34 CS No.397/11 yards was given to plaintiff and plot no. 13, Sitapuri, New Delhi, measuring 120 sq. yards was given to her brotherinlaw Dharambir. DW1 stated that plot no. 20 was sold by the plaintiff and that plot no. 13 was sold out by Dharambir. She denied that she had sold out plot no. 14. She stated that the said plot was sold by her husband. She also stated that the plaintiff had sold one plot measuring 80 sq. yards in Sitapuri. DW1 denied the suggestion that any Panchayat took place in the year 1990 or that a document was prepared in which it was written that Dharambir will not have any share in the plot no. 145, Dabri Village and that it will be shared by her motherinlaw, the plaintiff. DW1 stated that after marriage of the plaintiff, his wife arrived in the suit property but children were born in plot no. 20, Harijan Basti, Dabri. She also stated that the marriage of all the brothers of her husband took place in the suit property. DW1 admitted that she had sold half portion of village plot bearing no. 145 to one Mr. Gulab Singh in January 2010. She further admitted that out of the sale proceeds of part of plot no. 145, she had started construction in the remaining part of suit property in the month of February 2010. DW1 was discharged. Defence evidence was closed.
11. Final arguments are heard. The record is perused. The issuewise findings are as under:
Mahavir Singh vs. Usha Devi 9 of 34 CS No.397/11 ISSUE NO. 1 "Whether the suit is barred by the principle of res judicata under Section 11 of Civil Procedure Code or by Order 2 Rule 2 of Code of Civil Procedure? OPD."
12.The onus to prove the issue was upon the defendant. According to the defendant, the suit is not maintainable since the plaintiff had filed a previous suit on the same cause of action against the defendant which had been withdrawn by the plaintiff.
13.It is not in dispute that the plaintiff had previously filed civil suit bearing CS No. 65/10 which was dismissed as withdrawn on 25.08.2010. This plea finds mention in the pleadings of both the parties.
14.The mere filing of a previous suit does not bar the maintainability of the subsequent suit. In order to be able to establish that the suit is barred by res judicata, the defendant is required to demonstrate that in the previous suit, the issues raised herein were finally decided.
15.The pleadings of the parties as well as the order dated 25.08.2010 passed by the Court of Ld. Administrative Civil Judge, Delhi in the earlier suit, certified copy of which is on the judicial record, unambiguously shows that the previous suit was dismissed as withdrawn. That being the case, there has been no finding by the court trying the previous suit. As such, the decision in the previous Mahavir Singh vs. Usha Devi 10 of 34 CS No.397/11 suit cannot be held to be binding on this Court and this suit cannot be inferred to be barred by res judicata. In holding so, this Court draws strength from the decision of Hon'ble High Court of Delhi in the case of Vakil Chand Jain v. Prakash Chand Jain 2009(8) A.D.(Delhi) 155 wherein it was held as under:
"The rationale behind Order II Rule 2 CPC also appears to have an apparent linkage with the principles on which Section 11 CPC operates. The principles could be either of res judicata itself or of constructive res judicata. For both these principles to be attracted, the issue that arises substantially in a suit will have to be heard finally and decided by a court. Even if one were to accept the submissions of Mr. Jain, learned Senior counsel for the Defendant, that it is not necessary that the Court should frame an issue which is "directly or substantially an issue", the requirement of Section 11 CPC is that such issue should have "been heard and finally decided by such court." A suit which has been permitted to be withdrawn at a stage much before any issue is framed, can hardly be said to be a suit finally heard and decided by a court."
16.Under Order II Rule 2 of Code of Civil Procedure, where the plaintiff relinquishes a claim, he is not entitled to sue in respect of the said claim. This is however subject to the grant of permission by the previous Court, under Order 23 Rule 1 (3) of Code of Civil Procedure, to institute a fresh suit. In the present case, by order dated 25.08.2010 passed by the Court of Ld. Administrative Civil Judge, Delhi, the previous suit was dismissed as withdrawn with grant of liberty to the plaintiff to institute a fresh suit. The said grant of liberty Mahavir Singh vs. Usha Devi 11 of 34 CS No.397/11 through order dated 25.08.2010 has not been challenged and has attained finality. Therefore fault cannot be found with the plaintiff for availing the liberty granted to him by the Court. As to whether the previous suit suffered from a technical defect so as to justify the grant of liberty is a matter which ought to have been urged by the defendant in the previous suit where his counsel was duly present. Once the said liberty is granted, it cannot be withdrawn by this Court. The plaintiff is well within his rights to institute the present suit.
17. The suit is not barred either by the principle of res judicata under Section 11 of Code of Civil Procedure or by Order II Rule 2 of Code of Civil Procedure. The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 2
"Whether the suit is barred on the ground that the plaintiff has not prayed for partition? OPD."
18.The onus to prove this issue was upon the defendant. According to the defendant, the plaintiff ought to have instituted a suit for partition rather than the present suit.
19.The case of the plaintiff, as borne out from the plaint, is that under a family settlement, half portion in the suit property came to his share. It is urged by the plaintiff that the defendant is unauthorizedly trying Mahavir Singh vs. Usha Devi 12 of 34 CS No.397/11 to raise construction on his share and therefore the defendant shall be restrained from interfering in his possession and from raising construction on his share in the suit property.
20.In support of his contention that he received half portion in the suit property in the family settlement, the plaintiff has relied upon the document Mark X. The document Mark X does not qualify as family settlement, as will be demonstrated later in this judgment. However, even if it is assumed that the averments made in the plaint are true and if it is assumed that the terms embodied in the document Mark X amount to a family settlement binding on the parties, even then the plaintiff would obtain, through the settlement, only an undivided share in the suit property. The document Mark X does not specify, in actual physical terms, the portion of the plot that fell into the share of the plaintiff. It simply gives a share in the property to the plaintiff. The said share has not been identified in material terms. From the said document, assuming it to be valid and operative, it cannot be stated as to which portion of the suit property is owned by the plaintiff.
21.The plaintiff has, in addition, stated in his oral testimony before the court that there has been an oral family settlement. He has however not pleaded that by the oral settlement too, he was given a certain specified area in the suit property.
Mahavir Singh vs. Usha Devi 13 of 34 CS No.397/11
22.Hence, even if the plea of the family settlement urged by the plaintiff is taken to be correct, that would only show that the plaintiff has a share in the suit property and would not identify the said share in material and physical terms. To identify the said share, the plaintiff still needs to institute a suit for partition on the basis of the family settlement. This is precisely what has been laid down in the decision of Hon'ble Supreme Court in the case of M. Venkataramana Hebbar (D) v. M. Rajagopal Hebbar 2007 (6) SCC 401. In that case, the Hon'ble Supreme Court has held that even where a family settlement has taken place, and the family settlement gives different shares in the jointly owned property, parties may continue to possess the land jointly unless a partition of the property has taken place by metes and bounds. It was noted that "But, despite such separation in the joint status, parties may continue to possess the lands jointly unless a partition of the joint family property takes place by metes and bounds". (para 9) This implies that the parties to the family settlement, despite knowing their respective shares in the property, have a right to occupy the entire property till the partition takes place by metes and bounds. In other words, if a person wants to assert his exclusive title over part of the property and to keep his rivals away from that portion of the property, he must sue for partition of the property by metes and bounds on the basis of the family settlement.
Mahavir Singh vs. Usha Devi 14 of 34 CS No.397/11 Mere existence of family settlement does not empower him to exclusive possession and ownership of part of the property.
23.Unless partition by metes and bounds takes place, it cannot be ascertained as to which part of the suit property is under the exclusive ownership of the plaintiff. Hence, till partition takes place, the plaintiff and the defendant continue to be joint owners of the entire suit property. The plaintiff and the defendant are aware of the extent of their share but not its location in the suit property. Since the defendant remained owner of the entire suit property, she was free to dispose off part thereof or to raise construction on some other part. This is merely one of the elements of the proprietary interest in the suit property. The defendant cannot be restrained from exercising this ownership right till her share is defined and restricted through a suit for partition. This proposition finds support from the decision of Hon'ble Punjab and Haryana High Court in the case of Tarsem Singh v. Parkash Kaur, (P&H) 2002(1) R.C.R.(Civil) 803, wherein it has been held as under:
"Since every cosharer has a right in every inch of the joint land before partition every one has a right to raise construction on the land in his exclusive possession".
24.Till partition takes place, the defendant continues to have an undivided interest over the suit property. The sale that has been Mahavir Singh vs. Usha Devi 15 of 34 CS No.397/11 effected by her would also be of an undivided interest. Assuming the version of the plaintiff to be correct, the defendant could not sell a specified part of the property as its exclusive owner since she was not, and could not claim to be, owner of any specific part of the property. Even if she purports to sell the entire suit property or a specific part thereon, the said sale would take effect only limited to the undivided interest and would be subject to partition by the plaintiff. In this regard, reference is made to the case of Ram Dass and another Vs. Shisha Singh and others AIR 2007 P&H 200 wherein the Hon'ble Punjab and Haryana High Court held:
"Any alienation so made by a cosharer is always subject to the partition and rights of other cosharers. The vendees simply step into the shoes of the vendor/cosharer and will acquire status of a cosharer and all their rights to the extent of the land purchased will remain subject to the partition and rights of other cosharers".
25.Hence, the sale that has been effected by the defendant of half of the suit property shall take effect as, and shall be deemed to be, a sale of undivided interest. The purchaser cannot claim to be owner of a specific part of the property. Axiomatically, the plaintiff cannot claim to be owner of a specific remaining portion of the suit property. The construction undertaken by the defendant cannot, for the same reason, be inferred to be either in the portion of the plaintiff or of the Mahavir Singh vs. Usha Devi 16 of 34 CS No.397/11 vendor. Since the plaintiff and the vendor hold undivided interest in the land, the court cannot arrive at the conclusion that the construction undertaken by the defendant falls under the share of the plaintiff and not in the share of the vendee. As a result, the said action of the defendant cannot be concluded to be infringing the rights of the plaintiff and the plaintiff is not entitled to any injunction restraining it until he seeks partition. Reference in this behalf is made to the decision of Hon'ble Punjab and Haryana High Court in the case of Bachan Singh v. Swaran Singh 2000(3) RCR(Civil) 70.
26.Partition alone would recognize and quantify the share of the plaintiff.
Unless partition is carried out, each coowner is deemed to be owner of the entire land. A cosharer is therefore not entitled to injunction against another cosharer restraining the latter from interfering in the possession of, or raising construction on the share of the former. In this behalf, reference may be made to the case of Balwinder Singh Vs. Gurcharan Singh & Ors. 2010 (4) CCC 5 (P&H). In that case it was observed as under:
"Admittedly, the defendantsrespondents are coowners in the disputed property. The only grievance of the appellant before this court is that the defendantrespondents have no right to alienate more than their share or specific khasra number out of the disputed property. As per the settled law, any alienation out of the joint property by a cosharer would amount to alienation of the property out of the share. Even the alienation of any specific khasra number Mahavir Singh vs. Usha Devi 17 of 34 CS No.397/11 or specific portion amounts to alienation of the share which is subject to adjustment at the time of partition. It is also well settled that suit for permanent injunction against a coowner is not maintainable".
27. The plaintiff has prayed for permanent injunction restraining the defendant from interfering in his possession over half portion of the suit property. It has however been admitted by the plaintiff/ PW1 in his crossexamination that he is not in possession of the suit property. Since the plaintiff is not in possession of the suit property, the question of granting injunction to protect the said possession does not arise.
28.The plaintiff can also not claim that the possession of the defendant, being in the capacity of cosharer, tantamounts to his own possession de jure. This is because the present case is a clear case of "ouster". Ordinarily, the possession of a cosharer is deemed to be the possession of other cosharer. The cosharer is deemed to be holding the land on behalf of other cosharers. This is however subject to the exception of ouster. Where the cosharer in possession ousts the other cosharer, the cosharer who is kept out of the property cannot be deemed to be in possession and he must sue for recovery of possession or partition. This is a settled position of law. Reference may be made to the cases of Md. Mohammad Ali (Dead) by Lrs. v. Sri Jagadish Kalita 2003(8) Scale 356, Des Raj v. Bhagat Mahavir Singh vs. Usha Devi 18 of 34 CS No.397/11 Ram (Dead) by LRs., 2007(9) S.C.C. 641, Darshan Singh v. Gujjar Singh (Dead) by Lrs., 2002(2) S.C.C. 62 and Kailash Rai v. Jai Jai Ram, AIR 1973 SC 893.
29.In the present case, ouster is clearly proved by the admission of PW1 in his examinationinchief and crossexamination where he has stated that he was kept out of the property by the defendant and her family members. The relevant admissions made by the plaintiff/PW1 in his examinationinchief and crossexamination are quoted as under :
(a) "My nephew namely Subhash told me that he will not given even a single inch property to me".
(b) "Whenever I visited the suit property in the year 2009 and 2010, they told me that I did not have any right in the suit property as they wanted to grab my share".
(c) "Whenever I went there, I was not allowed to enter the suit property and also when I entered I was thrown out the suit property".
(d) "Before that, I was living at 145, Dabri Village, Delhi. I left the property because of the quarrels initiated by my sisterinlaw and nephew".
30.The above admissions made by PW1 in his testimony clearly show that the plaintiff was kept out of the suit property. The defendant remained hostile to the plaintiff. The defendant had repeatedly declined to give any share in the suit property to the plaintiff. The defendant had asserted her own title over the suit property. All these circumstances cumulatively indicate that the defendant had Mahavir Singh vs. Usha Devi 19 of 34 CS No.397/11 unequivocally expressed her intention to keep with herself the entire property to the exclusion of the plaintiff. This amounts to "ouster". Ouster having been proved, the plaintiff can sue only for partition and recovery of possession. The present suit for injunction alone is not maintainable. Further, since the plaintiff is not deemed to be in possession of the property, he cannot claim injunction against his dispossession.
31.That the plaintiff is, through the present suit, indirectly seeking partition is clear from the version of the plaintiff himself. The plaintiff/ PW1 has expressly stated in his examinationinchief that "Thus, I requested to the Hon'ble Court that my share be given to me as per law and my elder brother do not interfere in my share of suit property". This, in substance, sums up the actual prayer being canvassed through the suit and shows that the plaintiff requires a declaration of his share rather than protection of his share. His share can be declared and identified only through partition. The plaintiff must seek the relief of partition directly by filing a suit therefor. He cannot assert his exclusive title and obtain possession indirectly by filing a suit for permanent injunction. The suit for partition is the appropriate remedy for the plaintiff. Owing to the existence of this unavailed remedy, which is equally efficacious and adequate, the present suit is barred by Section 41(h) of the Specific Relief Act,1963.
Mahavir Singh vs. Usha Devi 20 of 34 CS No.397/11
32.The plaintiff has asserted his title over half of the suit property. It is on the basis of his title that he is claiming the right to exclusive possession and the right to restrain the defendant from carrying out construction on his share of the suit property. The defendant has, however, denied the title of the plaintiff in the suit property and the very existence of the family settlement pleaded by the plaintiff. The denial of the defendant casts doubt over the claim of the plaintiff. The issue cannot be deemed to be a simple one where the plea of either party can be easily brushed aside. As such, the plaintiff is required to seek declaration of title from the court and consequential relief instead of the present suit for injunction alone. Not having obtained declaration of ownership prior to injunction, the present suit for injunction alone is not maintainable. In this behalf, reference may be made to the case of Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, in which it has been laid down that when there is cloud over title, one must seek declaration of title and not mere protection of possession. It was observed thus:
Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant assert title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction".
Mahavir Singh vs. Usha Devi 21 of 34 CS No.397/11
33.Under the garb of injunction, this court cannot declare the ownership of the plaintiff. The denial of title needs adjudication. Yet, the plaintiff has not prayed for any declaration and therefore this adjudication cannot take place. Until he is declared to be the owner of the property, the defendant cannot be injuncted from raising construction thereupon. This declaration can be sought only through suit for partition since the plaintiff is not in possession of the suit property and has been "ousted", as held above. Hence, the present suit for injunction alone is not maintainable.
34.For the aforesaid reasons, the issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO.3 "Whether the suit is barred by nonjoinder of necessary parties? OPD".
35.The onus to prove this issue was upon the defendant. According to the defendant, the suit is barred by nonjoinder of necessary parties since the plaintiff has not impleaded the other legal heirs of his father.
36.It is correct that the other legal heirs of late Mr. Bharat Singh, father of the plaintiff have not been impleaded as a party to the suit. The said legal heirs are Mr. Dharambir Singh and children of Mr. Raghubir Mahavir Singh vs. Usha Devi 22 of 34 CS No.397/11 Singh. It needs to be examined whether such legal heirs are necessary parties in the present suit.
37. This is a suit for injunction. The plaintiff has prayed for permanent injunction restraining the defendant from interfering in his possession and from raising construction. The relief has been prayed for only against the defendant herein. No relief has been claimed against the other legal heirs of late Mr. Bharat Singh. Injunction is a personal relief. In case the suit is decreed, it would affect only the defendant herein and not other legal heirs of late Mr. Bharat Singh. Hence, there is no reason for the plaintiff to implead the said legal heirs. Their presence would also not enable the court to effectively or completely adjudicate the dispute. This is not a suit for partition and the share of the plaintiff visavis the said legal heirs is not under determination herein. Hence, the other legal heirs of late Mr. Bharat Singh are neither proper nor necessary parties to the suit. The suit does not suffer from nonjoinder of necessary parties.
38.The issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO.4 "Whether the plaintiff is entitled to permanent injunction as prayed? OPP".
Mahavir Singh vs. Usha Devi 23 of 34 CS No.397/11
39.The onus to prove this issue was upon the plaintiff. The plaintiff has prayed for permanent injunction restraining the defendant from interfering in his possession over half share in the suit property and from raising construction thereupon. In order to ascertain whether the plaintiff is entitled to protect his ownership over half share in the suit property, at the very outset, it must be ascertained whether he is indeed owner of half share of the suit property.
Undisputed Facts
40.It is not in dispute between the parties that the suit property was earlier owned by Mr. Bharat Singh, father of plaintiff and fatherinlaw of the defendant. Mr. Bharat Singh died in the year 1989. It is not the case of either party that Mr. Bharat Singh left a will. Mr. Bharat Singh is therefore deemed to have died intestate. On his death, his property devolved as per the provisions of the Hindu Succession Act, 1956. In accordance with Sections 8 and 9 read with Schedule I of the Hindu Succession Act, 1956, the properties belonging to Mr. Bharat Singh devolved upon his wife and his three sons in equal shares. All his properties are therefore required to be divided into four equal shares.
th 1/4 share in each property would go to the mother Ms. Barfi Devi and the three sons namely Mr. Mahavir Singh (plaintiff), Mr. Raghubir Singh (husband of defendant) and Mr. Dharampal Singh (brother of Mahavir Singh vs. Usha Devi 24 of 34 CS No.397/11 plaintiff) respectively. As such, in the suit property too, all the th abovenamed persons had equal shares to the extent of 1/4 of the property.
Version of the plaintiff.
41. The plaintiff has stated in the plaint that after the death of his father, the suit property was divided into two equal halves by his brother Mr. Raghubir Singh. Half share was given to the plaintiff. The other half was retained by Mr. Raghubir Singh. This is how, according to the plaintiff, he became owner of half of the suit property. The division of property is stated to be a family settlement. The plaintiff has supported his contention as to existence of family settlement by relying on a written compromise deed dated 27.10.1990 Mark X. This stand of the plaintiff has been reiterated by him in his examinationin chief as PW1.
Assessment of stand of the plaintiff.
42.The contention of the plaintiff that he received half share in the suit property by the family settlement cannot be accepted for the following reasons :
a) The plaintiff has stated in the plaint and in his oral testimony before the court that the family settlement was recorded in the form Mahavir Singh vs. Usha Devi 25 of 34 CS No.397/11 of a compromise deed which he has identified as Mark X. Perusal of the document Mark X reveals that it is not a compromise deed. It does not show any agreement between the plaintiff and Mr. Raghubir Singh, or any agreement at all. It is a mere declaration of wish of the mother of the plaintiff. It cannot be construed as a family settlement or any agreement since it does not show that either plaintiff or his brothers had assented to it. Mr. Raghubir Singh has also not agreed to the assertions made in the said document. He has signed the said document only as a witness. Hence, the document cannot be stated to bind Mr. Raghubir Singh or his wife, the defendant herein.
b) The document Mark X negatives the plea of the plaintiff that a settlement had been arrived at between the plaintiff and his brother Mr. Raghubir Singh. This is a departure from the case of the plaintiff who has nowhere pleaded that the said document purported to record a declaration by the mother of the plaintiff.
c) Through the document Mark X, Smt. Barfi Devi has purported to give different shares in the estate of the deceased Mr. Bharat Singh to the plaintiff and his brothers. The document does not take effect since the mother of the plaintiff, Smt. Barfi Devi was not competent to do so. One cannot transfer a property which he or she does not own. As demonstrated above, Mr. Bharat Singh had died intestate. His share therefore devolved upon his wife and his three Mahavir Singh vs. Usha Devi 26 of 34 CS No.397/11 th sons in equal portions. As such, Smt. Barfi Devi had merely 1/4 share in each property. She can therefore make a disposition only in th respect of her share which is 1/4 of the suit property. She cannot decide as to how, or whether, the shares of others would be transferred. The disposition of the entire suit property proposed to be undertaken by Smt. Barfi Devi through the document Mark X does not amount to a family settlement as she did not have marketable title to that extent and since all the legal heirs and claimants to the suit property did not consent to it.
d) The document Mark X is a compulsorily registrable document under Section 17 of Registration Act, 1908 since it creates rights in immovable property. For want of registration, the document is not admissible in evidence and does not create any right, as per Section 49 of the Registration Act. As held above, the document does not qualify as a family settlement so as to be exempt from compulsory registration. It is also noted that even family settlements reduced into writing are compulsorily registrable unless the document prepared is a mere memorandum of an antecedent settlement. This principle has been expressly laid down in the leading case of Kale & Ors. vs. Dy.
Director and Consolidation and Ors., (1976) 3 SCC 119. The document Mark X creates rights in the present and is not a mere memorandum of a previous family settlement. Therefore, even if it is Mahavir Singh vs. Usha Devi 27 of 34 CS No.397/11 assumed that the document Mark X amounts to a family settlement, it would still be compulsorily registrable and since it has not been registered, the said settlement cannot be read in evidence. As the document itself is inadmissible, the plaintiff cannot be permitted to contend that he received half share in the property by virtue of the document.
e) The plaintiff has been making conflicting assertions. On one hand, he states that he received half share in the property by a partition recorded in the document Mark X. He has stated in his examinationinchief that "My elder brother made a compromise deed 27.10.1990... as per the compromise deed (rajinama) my share is in the suit property is half share". On the other hand, he has been claiming that the partition is oral. He has stated in his cross examination that "The partition was oral". The changing stands of the plaintiff dampen his credibility. It also reflects that plaintiff is not conversant with the true facts.
f) Similarly, there is inconsistency in the stand of the plaintiff as to the terms of compromise. In the plaint, he has stated that the suit property was divided in two equal shares which were given to "both plaintiff and defendant" (para 2). On the other hand, in his examinationinchief the plaintiff has stated that the suit property was divided between the plaintiff and the husband of the defendant. This Mahavir Singh vs. Usha Devi 28 of 34 CS No.397/11 also shows that the plaintiff was not aware of the actual terms of settlement.
g) The plaintiff has stated in the plaint that he was not staying in the suit property and that he requested the defendant to occupy the suit property as its caretaker. This finds mention in paragraph no.7 of the plaint. As against this, the plaintiff has stated in his cross examination that he had to leave the suit property owing to quarrels initiated by the defendant and that he was repeatedly disallowed by the defendant from entering the suit property. If the defendant herself is responsible for keeping out the plaintiff, the plaintiff cannot be permitted to plead that the defendant was appointed by him as the caretaker of the property to hold it on his behalf. The plea of the plaintiff appears to be false.
For the above reasons, the plea of plaintiff regarding existence of family settlement is not believable.
Version of the defendant.
43.According to the defendant, after the death of her fatherinlaw, her husband, the plaintiff and Mr. Dharambir Singh had entered into a family settlement. By the said settlement, the suit property remained with Mr. Raghubir Singh whereas other properties were given to the other brothers. It is urged by the defendant that since the plaintiff has Mahavir Singh vs. Usha Devi 29 of 34 CS No.397/11 no share in the suit property, he is not entitled to the injunction prayed for.
Assessment of stand of the defendant.
44.The contention of the defendant as to the family settlement cannot be accepted for the following reasons :
a) The defendant has not disclosed the date on which the oral family settlement took place. The place where the settlement was arrived at and the persons in whose presence it was arrived at has not been disclosed. Material particulars are conspicuously amiss.
The plea is vague.
b) The defendant has stated in her written statement about the distribution of three properties through the family settlement. She has not disclosed about a property bearing Plot no.14, Sitapuri, Delhi being part of the settlement. In crossexamination, the defendant/ DW1 initially pleaded ignorance of the said property. However, on persistent questioning, she admitted that the said property was sold by her husband. It appears that the manner in which the said property devolved upon the husband of the defendant has been concealed by her. It is difficult to appreciate that while framing the family settlement, no decision was taken as to the said property or that the said property was given to the husband of the defendant Mahavir Singh vs. Usha Devi 30 of 34 CS No.397/11 without any corresponding division in favour of the other brothers. It is also difficult to appreciate that the mother of the plaintiff namely Smt. Barfi Devi was not given any share in the properties under the family th settlement despite the fact that she had succeeded to 1/4 part of the estate left by her husband. The terms of family settlement pleaded by the defendant appear to be unconscionable so much so that their very existence is in doubt.
c) The defendant/DW1 has stated in her testimony that the settlement had taken place between the plaintiff, Mr. Raghubir Singh and Mr. Dharambir Singh. This shows that the settlement had taken place while Mr. Raghubir Singh was alive. The defendant has stated in her affidavit Ex. D1 that Mr. Raghubir Singh died on 13.08.2011. If that is so, the family settlement must have been arrived at before 13.08.2000. The motherinlaw of the defendant namely Ms. Barfi Devi expired in the year 2010, as deposed by PW1 in his examinationinchief. Hence, Ms. Barfi Devi was alive at the time when the family settlement took place between the three brothers namely the plaintiff Mr. Raghubir Singh and Mr. Dharambir Singh. She, being alive, had a share in all the joint family properties. Despite having a share therein, she was not made a party to the family settlement, as is evident from affidavit Ex. D1 of the defendant wherein she has stated that the family settlement had been entered Mahavir Singh vs. Usha Devi 31 of 34 CS No.397/11 into only between the three brothers. The family settlement was not agreed upon or consented to by one of the cosharers and is therefore not valid. In this behalf, reference may be made to the case of Darbara Singh Vs. Tara Chand 2009(2) RCR (Civil) 767 decided by the Hon'ble Punjab & Haryana High Court. The case of the present case are striking similar to the aforesaid decision. In that case it was held as under :
"In the absence of joining the necessary parties to the partition proceedings, the partition of property cannot be given effect to in its true perspective. All the members entitled to a share must be represented either expressly or impliedly in partition proceedings, may be in a private partition or partition through Court. Kamla Devi, the mother of the plaintiffs has a right to hold share separately. Mere fact that the parties are in separate possession of the land would not imply that the land had been duly partitioned amongst them. xxx xxx xxx Be that as it may, but the fact remains that herein the alleged family settlement is bad for nonjoinder of necessary cosharers. The alleged one being partial partition is bad in law. Sequelly, it cannot be given recognition either as family settlement or private partition".
For the abovesaid reasons, the plea of the defendant regarding family settlement cannot be believed.
Inference
45.The rival claims of the parties regarding the existence of different family settlements has been rejected above. The court shall therefore Mahavir Singh vs. Usha Devi 32 of 34 CS No.397/11 proceed on the assumption that no such settlement took place. It shall be assumed that after the death of late Sh. Bharat Singh, his legal heirs succeeded to his estate in equal shares. Smt. Barfi Devi, the plaintiff, husband of defendant and Mr. Dharambir Singh therefore th had 1/4 undivided share in the suit property. After the death of the husband of the defendant and Smt. Barfi Devi, their respective shares devolved upon their legal heirs. The said legal heirs therefore acquire an undivided interest in the suit property. Since partition by metes and bounds has not taken place, they continue as joint owners of the suit property. The defendant, being one such joint owner, has the right to raise construction on the suit property. She is also at liberty to remain in occupation of the suit property. The plaintiff can therefore not restrain the defendant from raising construction on the suit property. Moreover, since the share of the plaintiff remains unidentified, it cannot be inferred that the construction being undertaken by the defendant is on the share of the plaintiff. For this reason too, the plaintiff cannot restrain the defendant from raising construction over the suit property.
46.It has already been held above that the plaintiff is not in possession of the suit property. This fact has been admitted by PW1 in his crossexamination wherein he has stated that, "At present I am residing at H.No. 24, DBlock, Roshan Vihar, Gurgaon Road, Mahavir Singh vs. Usha Devi 33 of 34 CS No.397/11 Najafgarh, New Delhi11045 since I am started living in the said property on 22.2.2010". The plaintiff/PW1 has admitted in his testimony that even on the date of institution of the suit i.e. 19.04.2011, he was not in possession of the suit property. Since the plaintiff is not in possession, he cannot claim injunction against interference with his possession. As already held above, this being a case of "ouster" of the plaintiff, the plaintiff cannot claim to be in de jure possession so as to justify his claim for injunction. Hence the plaintiff is not entitled to the grant of permanent injunction restraining the defendant from interfering with his possession or raising construction on the suit property.
47. The issue is decided in favour of the defendant and against the plaintiff.
ISSUE NO .5 - RELIEF
48.In the aforesaid facts and circumstances, the suit of plaintiff is dismissed. The defendant shall be entitled to recover costs from the plaintiff. Decree sheet shall be prepared accordingly. File be consigned to record room.
Announced in the open court (Ashish Aggarwal)
st
on 21 day of November, 2011 Civil JudgeI/Dwarka Courts,
South West District,Delhi
Mahavir Singh vs. Usha Devi 34 of 34
CS No.397/11