Delhi District Court
Sanjiv Sahni vs Om Parkash (Deceased) on 11 April, 2017
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT; TIS HAZARI COURTS : DELHI
SUIT NO. 12796/16
In re :
Sanjiv Sahni
S/o Sh. Krishan Lal
R/o 1648/33, Naiwala
Karol Bagh, New Delhi-110005.
...... Plaintiff
Versus
1. Om Parkash (deceased)
through his legal heirs
1A. Smt. Swarna Rani
W/o Late Sh. Om Parkash Sahni
R/o 1648/33, Naiwala
Karol Bagh, New Delhi-110005.
1B. Sh. Rajiv Sahni
S/o Late Sh. Om Parkash Sahni
R/o R-87, New Rajinder Nagar
New Delhi.
1C. Sh. Sunil Sahni
S/o Late Sh. Om Parkash Sahni
R/o 1648/33, Naiwala
Karol Bagh, New Delhi-110005.
1D. Sh. Raj Kumar Sahni
S/o Late Sh. Om Parkash Sahni
R/o 1648/33, Naiwala
Karol Bagh, New Delhi-110005.
2. Sh. Anil Kumar
S/o Late Sh. Suraj Prakash
R/o 1648/33, Naiwala
Karol Bagh, New Delhi-110005.
3. Smt. Veena Nayyar
W/o Sh. R.N. Nayyar
Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 1 of 12
D/o Late Sh. Suraj Prakash
R/o 4/31, W.E.A., Karol Bagh
New Delhi-110005.
...... Defendants
SUIT FOR PARTITION & PERMANENT INJUNCTION
Date of institution of present suit : 02.03.2005
Date of receiving in this court : 04.03.2016
Date of reserving order : 11.04.2017
Date of Judgment : 11.04.2017
JUDGMENT
1. This judgment shall dispose of the suit filed by plaintiff for partition and permanent injunction against the Defendants.
2. Brief fact of the case as set out in the plaint is that Sh. Chet Ram, father of defendant No.1 and the grandfather of the plaintiff during his lifetime had acquired the following properties : -
(i) Leasehold residential house bearing no.1648/33, Naiwala, Karol Bagh, New Delhi-110005.
(ii) Leasehold commercial property bearing no. 1065 (Khasra) No.1106, Block-C, Naiwala, Karol Bagh, New Delhi-110005 (now known as property no.1065, Gali No.14, Hari Singh Nalwa Street, Karol Bagh, New Delhi-110005.
3. It has been further pleaded that Sh. Chet Ram had died long back and his wife also expired. It has been further mentioned that Sh. Chet Ram had four sons namely Sh. Suraj Parkash, Sh. Krishan Lal, Sh. Om Parkash and Sh. Virender Mohan. Sh. Virender Mohan was unmarried and had died. Sh. Suraj Parkash had also died leaving behind defendants no. 3 Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 2 of 12 and 4 (now defendant No.2 and 3) as his legal heirs and who have been brought up under the care of defendant no. 2 (since deleted). Wife of Sh Suraj Prakash remarried. It has been pleaded that Sh. Krishan Lal also died leaving behind plaintiff as his adopted son (natural son of defendant no. 1). It has been further mentioned that after the demise of Sh. Chet Ram and his wife, the properties were devolved upon his four sons in equal shares. It has been further mentioned that since Sh. Virender Mohan died unmarried therefore his 1/4 share further devolved upon in his remaining brother and accordingly Sh. Om Parkash, Sh. Suraj Parkash and Sh. Krishan Lal were having 1/3rd share each in the properties left behind by Sh. Chet Ram.
4. It has been further mentioned that Sh. Sanjiv Kumar was given in adoption to Sh. Krishan Lal and his wife, when he was six days old and thus he is legally adopted son of Sh. Krishan Lal and school and other records also mention so. It has been further mentioned that after the demise of Sh. Krishan Lal, his 1/3rd undivided share in the property mentioned above devolved upon plaintiff and defendant no. 2 (since deleted) in equal ratio and as such the plaintiff as well as the defendant no. 2 became co- owner of undivided 1/6th share. It has been further mentioned that the defendant no. 2 also expired and therefore her share had devolved upon the plaintiff and thus the plaintiff has become entitled to 1/3rd share in the aforesaid properties. It has been further mentioned that the plaintiff and all the defendants are jointly occupying the properties in their occupation and shop no. 1065, Gali no.14, Hari Singh Nalwa Street, Karol Bagh, New Delhi is being used by the parties for the family business under the name and style of M/s Sahni Tent House. It has been further mentioned that one shop bearing no. 1068, Gali no.14, Hari Singh Nalwa Street, Karol Bagh, New Delhi was taken on rent and defendant no. 1 used to assist in the business being carried by Sh. Krishan Lal and the defendant no. 1 was permitted to Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 3 of 12 carry out his own business activities from the said shop. It has been further mentioned that the said tenanted shop was later on purchased by the plaintiff, Sh. Om Parkash and Sh. Raj Kumar jointly vide registered Sale Deed dated 31.12.2001. Plaintiff was constant to file one suit for permanent injunction and it has been stated in the plaint that the said suit is pending.
5. It has been further mentioned that in the reply to the suit that the defendant no. 1 filed written statement stating that the suit for partition had already been filed in respect of properties left behind by Sh. Chet Ram. The plaintiff was shocked to know that the plaintiff was not even the party and he noted that the said suit was not decreed but was settled by the defendants and same was dismissed as withdrawn on 02.02.19997. It has been further mentioned that some trick has been played by the defendant no. 1 and they all played in the hands of the defendant no. 1 and they were not knowing the implications of the suit. The defendant no. 2 is an illiterate lady and did not know even the details of the proceedings of the earlier suit. It has been further mentioned that after the alleged compromise the defendant no. 1 entered into another compromise before the court on 02.02.1995 and the defendant no. 2 in acknowledgment of compromise executed an affidavit dated 19.02.1995 promising to provide life long maintenance to the defendant no. 2 besides providing residential accommodation and Rs. Two Lakh within two years of the compromise. However, till date the defendant no. 1 has not paid any money to the defendant no. 2 and as such same had vitiated all the compromise. The plaintiff came to know about malafide intention and mischievous acts and requested the defendant no. 1 to partition the property by meets and bounds and given his 1/6th share which has been refused. Hence the plaintiff has filed the present suit for partition and injunction.
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6. Upon service of summons, the defendants no. 1 and 2 filed their separate written statements. In the written statements of the defendant no. 1, it has been pleaded that the suit filed by the plaintiff was not maintainable as the plaintiff was not the adopted son of Sh. Krishan Lal as the defendant no. 1 never given him in adoption and no give and take ceremony had taken place and the plaintiff continues to be son of the defendant no. 1. It has been further mentioned that Smt. Sudarshan Kumari had filed the suit for partition which suit was ultimately compromised and application U/o 23 Rule 3 CPC was filed by the parties. In terms of the said compromise, the defendant no. 1 was to pay Rs. Three Lakhs in the joint names of Smt. Sudarshan Kumari, Sh. Anil Kumar and Smt. Veena Nayyar and these persons relinquished their shares in those properties and consequently the defendant no. 1 became the absolute owner of the properties.
7. It has been further mentioned that plaintiff has misrepresented the fact and bare perusal of the title of the suit will disclose that Sh. Anil Kumar and Smt. Veena Nayyar have been represented as son and daughter of Sh. Suraj Parkash whereas in previous proceedings Smt. Sudarshan Kumar, Sh. Anil Kumari and Smt. Veena Nayyar claimed interest and sworn in affidavit showing that they are wife, son and daughter of late Sh. Krishan Lal. It has been mentioned since Smt. Sudarshan Kumari, Sh. Anil Kumar and Smt. Veena Nayyar have already taken their share in the property as widow, son and daughter of late Sh. Krishan Lal. They cannot subsequently claim any share. Plaintiff has created complete confusion only with a view to harass and annoy the defendant.
8. On merits, it has been denied that the plaintiff is adopted son of Sh. Krishan Lal. Relation between the parties and other as mentioned in the plaint except for adoption of the plaintiff has not been denied. The Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 5 of 12 defendant has relied upon the previous compromise arrived at in previous suits of parties. Rest of the allegations in the plaint has been denied specifically. The defendant no. 2 in the written statement supported the claim of the plaintiff and denied to have received in amount pursuant to settlement in the previous proceedings.
9. From the pleadings of the parties, following issues were framed vide order dated 28.09.2007 :
1. Whether the plaintiff is an adopted son of Mr. Krishan Lal ? OPP.
2. Whether there was any partition/settlement effected amongst the legal heirs of late Sh. Chet Ram. If so, its effect ? OPD.
3. Whether the plaintiff is entitled to the relief claimed ? OPP.
4. Relief.
10. In support of plaintiff's case plaintiff has examined three witnesses including himself. PW-1 i.e. plaintiff filed three affidavits. One of which was filed as an additional affidavit. His testimony is on the lines of averment made in the plaint. He was cross examined by the counsel for defendant where he denied the suggestion that he was son of the defendant no. 1 and not of Krishan Lal. He also denied the suggestion that wife of Krishan Lal namely Sudharshan Kumari @ Daeshan Kumari did not accept him as her adopted son. PW-2 is the Lalit Kumar, brother-in-law of the plaintiff and he deposed that he and his family were informed that plaintiff was given in adoption by defendant no. 1. PW-3 is neighbour of plaintiff and he deposed to the effect that in all the ceremonies and particularly in marriage of plaintiff, Krishan Lal has performed "Milni" as father of plaintiff whereas Om Prakash, defendant no. 1 has performed "Milni" as Chacha Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 6 of 12 (Uncle) of plaintiff. In cross examination he deposed that he knew plaintiff since his childhood and at the time of adoption ceremony in 1959 he was aged about 12-13 years.
11. During the pendency of the suit, defendant no. 1 Om Prakash expired and therefore, he was not cross examined at all. After his substitution by his Lrs, defendant examined his son Rajiv Sahani. He deposed on the lines of written statement and exhibited the documents i.e. compromised application U/o 23 Rule 3 CPC Ex. DW-1/1, copy of affidavit of Darshanaa Kumari as DW-1/2, affidavit of defendant no. 1 Ex. DW-1/3, affidavit of Veena Nair and Anil Kumar as DW-1/4 and DW-1/5 respectively, ordersheet dated 30.01.95 and 02.02.95 Ex. DW-1/5A and DW-1/5B respectively, copy of relinquishment deed Ex. DW-1/9. He was cross examined. He admitted in his cross examination that Darshana Kumari was the name of the wife of Krishan Lal and Krishan Lal had no biological child. He also admitted that he did not have any document to show that defendant No.1 was represented as father of the plaintiff. He also shown his ignorance if in the documents of the plaintiff, plaintiff parentage has been shown to be Krishan Lal and Darshana Kumar right from his childhood. He deposed that he has always treated the plaintiff as his brother and family of defendant no. 1 and denied the suggestion that plaintiff was given in adoption.
12. Testimony of respective witnesses have been appreciated while recording issue wise findings in order to avoid repetition.
Findings
13. After going through the pleadings and evidence and other materials on record and appreciating the argument put forth by the Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 7 of 12 respective Counsels for parties, issue wise findings are as under:-
ISSUE No. 1 :- Whether plaintiff is an adopted son of Mr. Krishan Lal? OPP.
14. Onus to prove this issue is upon the plaintiff. It is claim of the plaintiff that when he was one week old he was given in adoption by Sh. Om Prakash to Krishan Lal. Since plaintiff was hardly one week old his testimony to the alleged ceremony as well as giving and taking of plaintiff is not reliable for the reason that he had not developed any sense enough to keep in his memory any of the facts noticed at that time. Similarly, testimony of brother- in-law PW-2 is also of not reliable so far as ceremony of adoption is concerned. As far as testimony of PW-3 is concerned he claims to have witness the ceremony of adoption and he claims to remember the same by heart this incident. In cross examination he deposed that he was 12-13 years old and he did not remember the names of other member persons and denied the suggestion that any such ceremony for adoption took place.
15 In these circumstances where the person (defendant No.1) who allegedly given the child in adoption has denied the fact and similarly, the person (defendant No.2) who allegedly taken the child in adoption has at one place i.e. in previous litigation remained silent and in the present litigation admitted of adoption, the adoption appears to be doubtful. Deleted defendant No.2 in previous litigation did not claim that plaintiff was adopted son of her and her husband and in the present proceedings she took the stand that plaintiff was her adopted son, therefore her stand cannot be trusted. In any case she could not be examined as she expired during pendency of the suit and therefore her stand cannot be taken into consideration.
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16. The other attending circumstances which plaintiff has relied upon to prove his adoption is the School Leaving Certificate Ex PW1/1, Ration Card Ex PW1/2, Voter I-Card Ex PW1/3 and old ration Card Ex PW1/4 to show that he has always been represented as son of Kishan Lal. These piece of documents are important piece of evidence but the same has not been proved in accordance with the law. Plaintiff for reason best known to him did not call any witness from school to prove the School Leaving Certificate. Similarly, plaintiff did not call any witness from Food Supply Department as well as from Election Commission of India to prove Ration Cards and Voter I-Card respectively.
17. No doubt these documents have been exhibited in the testimony of PW-1 and not a single objection has been raised by the defendant at the time of exhibition and from the court record it is not clear if the original of these documents were at all brought to the court or not at the time of exhibition of these documents, nonetheless these documents cannot be to said to have been proved in accordance with the law as admittedly authors of this document i.e. record from the concerned departments were not summoned. Accordingly, plaintiff cannot be said to have proved his adoption.
18. There is no dispute that previous litigation was initiated by wife of Krishan Lal for partition of the suit property and in the said suit Anil Kumar and Veena Nayar were party along with Darshana Kumari as plaintiffs. Neither of them had spoken about the factum of adoption of plaintiff by Krishan Lal. No doubt Darshana Kumari filed written statement in the present case wherein she did admit of adoption of plaintiff but she did not appear in witness box (due to death) nor her conduct in the shape of two different stands leads this court to rely upon her as noted above.
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19. Plaintiff has not examined his own biological mother nor is it clear if she was alive or not. The other important person i.e. his own natural father has denied the factum of adoption. PW3 deposed to have witnessed the ceremony of adoption but he was hardly 12/13 years old and was unable to remember who were present and therefore his testimony about the ceremony of adoption does not inspire the confidence of the court and cannot be acted upon. In these circumstances it can be concluded that plaintiff failed to prove his adoption by cogent and reliable evidence.
Accordingly, issue no. 1 is decided against the plaintiff and in favour of defendant.
ISSUE No. 2 :- Whether there was any partition/settlement effected amongst the legal heirs of Late Shri Chet Ram. If so, its effect? OPD.
20. Onus to prove this issue is upon the defendant. Defendant has proved the application U/o 23 Rule 3 CPC and affidavits of Darshana Kumari and others. Even otherwise there is no dispute that Darshana Kumari, Anil Kumar and Veena Nayar had filed suit for partition against the defendant No.
1. There is no dispute that 4th son of Chet Ram had died issueless being unmarried. There is no dispute that Chet Ram's his eldest son Suraj Prakash died leaving behind Anil Kumar and Veena Nayar and his wife remarried. There is no dispute that Krishan Lal had expired. It was just seen above that plaintiff failed to prove adoption. In these circumstances, there remained three branches of legal heirs of Chet Ram i.e. branches of Suraj Praksh, Krishan La and Om Prakash. It is an admitted fact that Darshna Kumari, Anil Kumar and Veena Nayar i.e. branches of Suraj Praksh and Krishan Lal had filed suit for partition against the defendant No.1 which was ultimately compromised, therefore, partition/settlement has taken place among the LRs of Chet Ram.
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21. Therefore, issue no. 2 is decided in favour of defendants and against the plaintiff.
22. The effect of such partition/settlement is that further partition cannot take place between the same LRs of Late Chet Ram.
ISSUE No. 3 :- Whether the plaintiff is entitled to the relief claimed? OPP.
23. Onus to prove this issue is upon the plaintiff. It has been seen above that plaintiff failed to prove his adoption and therefore he is not entitled to claim share in the properties as son of Late Shri Kishan Lal. Failure of plaintiff to prove his adoption means that he continues to be the biological son of the defendant No.1 and would be entitled to a share in the estate of defendant No.1 as per Hindu Succession Act, if no Will is left behind by defendant No.1. No doubt during the pendency of the present suit defendant No.1 has expired and plaintiff being natural son of defendant No.1 has become entitled to share in the estate of defendant No.1 but present suit is in respect of immovable properties left by Late Shri Chet Ram and not that of Shri Om Praksah and therefore in the present suit no relief can be granted to the plaintiff in view of the findings and reasoning recorded above.
24. One may argue that since plaintiff has gone rigorous trial for so many years therefore it would be in the interest of justice if plaintiff is held entitled to a share in the properties of Shri Ompraksh according to Hindu Succession Act 1956 and his said share be declared in the present proceedings itself. No doubt such contention appears to be appealing in the first instance but for many reason cannot be accepted. Firstly for the reason that in the present suit entire property of Shri Ompraksh may not have been Suit No. 12796/16 Sanjiv Sahni vs Om Parkash & Ors. Page No. 11 of 12 included as present suit was in respect of properties that were left behind by Shri Chet Ram. Secondly LRs of Shri Omprakash may not have pleaded or defended the case bringing those facts on record which might have disentitled the plaintiff to any share. Apart from this cause of action of the present suit has arisen prior to death of Shri OmPrakash whereas cause of action for a share in the estate of Omprakash has arisen during pendency of the present suit and after the death of Shri Omprakash. Hence, in view of the above in the present suit plaintiff's share in the estate of Shri Omprakash as legal heir of Late Shri Omprakash, cannot be determined in the present suit.
In view of the above discussion issue No.3 is decided against the plaintiff and in favour of defendants.
RELIEF In view of the above findings on all issues, suit of the plaintiff is hereby dismissed.
Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in the open Court ADJ-13(Central) / THC
(Judgment contains 12 pages) Delhi /11.04.2017
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