Delhi District Court
Shri Avtar Khatkar vs Shri Tirath Singh Khatkar on 28 February, 2022
IN THE COURT OF SH. PAWAN SINGH RAJAWAT:
ADDITIONAL DISTRICT JUDGE-08,
TIS HAZARI COURTS (WEST), DELHI
CS No. 378/2017
In the matter of :
Shri Avtar Khatkar
S/o Late S. Prakash Singh
R/o. 3500, West Island Court,
Elk Grove, California-95758, U.S.A.
Presently at Delhi. ......Plaintiff
Versus
Shri Tirath Singh Khatkar
S/o Late S. Prakash Singh
R/o. 2979/2, Ranjit Nagar,
New Delhi-110008. ...... Defendant
(SUIT FOR PARTITION, RENDITION OF ACCOUNTS &
INJUNCTION)
Date of institution of suit : 07.04.2017
Date on which judgment reserved : 16.02.2022
Date on which judgment pronounced : 28.02.2022
Avtar Khatkar Vs. Tirath Singh Khatkar Page: 1/43
JUDGMENT
1. This is a suit for partition, rendition of accounts and injunction filed by plaintiff against defendant.
2. The brief facts as per plaint are that Late S. Prakash Singh, is father of plaintiff and defendant and was married to Smt. Udham Kaur and blessed with four sons and one daughter namely, Sohan Singh, Malkiyat Singh, Harbhajan Kaur, plaintiff (Avtar Khatkar) and defendant (Tirath Singh Khatkar). It is further averred that Sohan Singh expired on 29.01.1985 leaving behind the LRs i.e. his wife, one son and one daughter, who all stated to have shifted to Canada and their whereabouts are not known. It is further averred Harbhajan Kaur also expired on 10.03.1987 leaving behind the LRs i.e. her husband, one daughter, whose whereabouts are not known and one son who is no more. It is further averred that Malkiyat Singh, who was unmarried, also expired on 16.01.2011 and hence plaintiff and defendant are the only LRs available.
3. It is further averred that S. Prakash Singh expired on 26.07.1976 and his wife Smt. Udham Kaur expired on 25.03.1986.
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4. It is further averred that S. Prakash Singh was the owner of agricultural land and after his death the agricultural land falling in the Jamabandi for the year 2009-2010 and the said land was distributed among the defendant and plaintiff.
5. It is further averred that a house No. 2979/2, Ranjit Nagar, New Delhi-110008 measuring 400 sq. yards and another property No. 3066/81/2 measuring about 60 sq. yards, Ranjit Nagar, New Delhi-110008 in the name of Smt. Udham Kaur, purchased vide registered Sale Deed dated 14.02.1958 which property was completely one and was divided due to the road of 15 ft. wide dividing the said property.
6. It is further averred that the sons and daughters of Smt. Udham Kaur except the defendant were settled abroad outside India and only the defendant was looking after the entire property left by their mother and he was receiving the yield of the said agricultural land and House property. It is further alleged that defendant was receiving all the income of the agricultural land in the form of Theka / Batai and also rent of the residential houses amounting to several lakhs rupees per month and the defendant has never tendered any account to the plaintiff and the plaintiff is not claiming the income of the agricultural land as the same has already been partitioned.
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7. It is further averred that the plaintiff vide notice dated 24.03.2017 has asked the defendant to tender true and believable account of the income and expenditure of the said assets but the defendant did not pay any heed.
8. It is further averred that the plaintiff has come to know that the defendant is planning to dispose off various / properties left by their parents and making all properties as his own without tendering any account to the plaintiff or any other co-sharers and plaintiff being lawful co-owner is entitled to half share in the said properties.
9. The plaintiff is praying that a preliminary decree of partition of property bearing no. H.No. 2979/2, Ranjit Nagar, New Delhi-110008 and H.No. 3066/81/2, Ranjit Nagar, New Delhi-110008, holding 1/2 share of the plaintiff in all the said property be passed. It is further prayed to pass a decree of rendition of account directing the defendant to tender true account of the income and expenditure of the property i.e. the yield of agricultural land and house rent of the two residential property from the date the defendant is holding the said property after the death of the mother Smt. Udham Kaur.
10. On service of summons, written statement was filed on 01.07.2017 wherein defendant claimed the suit is not maintainable and liable to be dismissed as plaintiff has Avtar Khatkar Vs. Tirath Singh Khatkar Page: 4/43 concealed the material and vital facts and presented a wrong version of facts. It is claimed that Smt. Udham Kaur, mother of the parties during her lifetime executed a General Power of Attorney dated 13.03.1978 registered on 14.03.1978 in favour of defendant in respect of all her properties including the property bearing No. 2979/2, Ranjit Nagar, Near South Patel Nagar, New Delhi and agricultural land in village Khanpur, District Juludur and authorized the defendant to sell, mortgage, convey and to deal with her property in any manner whatsoever and accordingly, the defendant with the consent of his mother transferred and sold the built up property bearing No. 2979/2, Ranjit Nagar, New South Patel Nagar, New Delhi in favour of Smt. Kuldeep Kaur Khatkar on 09.08.1985 for a total sum of Rs.55,000/- by executing the sale documents i.e. General Power of Attorney, WILL, Agreement to Sell, Receipt etc. on 09.08.1985 and since then she is the absolute owner and in possession of the said built-up property No. 2979/2, Ranjit Nagar, Near South Patel Nagar, New Delhi and no other person including the plaintiff has any right, title and interest over the said property. It is claimed the entire sale consideration was handed over to Smt. Udham Kaur immediately after execution of the said sale / transfer documents. It is further averred that Smt. Kuldeep Kaur Khatkar is the necessary and proper party for the just and proper decision of the present suit and some of the part of the suit property are in Avtar Khatkar Vs. Tirath Singh Khatkar Page: 5/43 possession of tenants, who are still paying rent to her being landlady / owner and they are also the proper and necessary party for the just decision of the present suit. It is further averred that the plaintiff has not challenged the sale documents of the property executed in favour of Smt. Kuldeep Kaur Khatkar till date as such the suit is barred by the law of limitation. In the written statement, the defendant has also taken objection of non-joinder of other LRs of Late S. Prakash Singh and Smt. Udham Kaur. The defendant has taken an objection that this court has no pecuniary jurisdiction to try, entertain and decide the present suit as the suit property as per the minimum circle rate as notified by Government of NCT of Delhi is more than Rs.3,28,00,000/-. Another objection has been taken that the plaintiff has not paid the proper court fee as he is not in possession of the suit property. Another objection has been taken that the plaintiff has not filed any document to prove his identity as the brother of the defendant was Avtar Singh Khatkar and not Avtar Khatkar. It is also claimed that the site plan filed by the plaintiff is not correct. It is also claimed that the suit is liable dismissed as the defendant is continuously in possession of the suit property for the past 50 years without any interference or hindrance from any person including the plaintiff and wife of defendant become owner of the property by adverse possession. Despite repeated opportunities, the plaintiff has chosen not to file replication.
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11. After hearing the parties, the following issues were framed on 13.10.2017:-
(1) Whether the defendant has sold property no. 2979/2, Ranjeet Nagar, New Delhi in favour of Smt. Kuldeep Kaur Khatkar on 09.08.1985 on the basis of GPA executed by Smt. Udham Kaur and sale consideration was also passed on to Smt. Udham Kaur, if so, what is its effect? OPD. (2) Whether the suit is liable to be dismissed for non joinder of other Legal Heirs of late Sh. Prakash Singh? OPD.
(3) Whether the suit of the plaintiff is barred by limitation and latches? OPD.
(4) Whether this court has no pecuniary jurisdiction to try the present suit? OPD.
(5) Whether plaintiff has not paid proper court fees on the suit? OPD.
(6) Whether the plaintiff is entitled for decree of partition as prayed for? OPP.
(7) Whether the plaintiff is entitled for decree of rendition of account as prayed for? OPP.
(8) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP. (9) Relief.
12. Since the onus of proving majority of issues is upon the defendant, it was directed that the defendant should first lead the evidence. Accordingly, in support of his case Avtar Khatkar Vs. Tirath Singh Khatkar Page: 7/43 defendant examined Sh. Sachin Kumar, Senior Secretariat Assistant from House tax Department as DW-1, himself as DW-2, Smt. Kuldeep Kaur Khatkar, his wife as DW-3, Sh.Sevajit, Record Attendant from Department of Delhi Archives as DW-4, Sh. Dayanand as DW-5, Sh. Kishan Singh Rawat, who is attesting witness to GPA as DW-6 and Sh. Yugal Kishore as DW-7.
13. DW-1 Sh. Sachin Kumar, Senior Secretariat Assistant from House tax Department appeared and has produced the certified copy of mutation order dated 25.03.2001 for property no. 2979/2, Ranjit Nagar, New Delhi stated to be mutated in the name of Kuldeep Kaur Khatkar as Ex.DW- 1/1. He has also produced the copies of the house tax receipts ( 9 in number) which are exhibited as DW-1/2 (colly) This witness was not cross examined by plaintiff.
14. DW-2 is the defendant. He tendered his evidence by way of affidavit Ex.DW-2/A and relied upon documents which is certified copy of GPA dated 13.0.3.1978 and mutation order dated 25.03.2001 Ex.DW-1/1. During cross examination, DW-2 admitted that plaintiff is his real brother and they are also having one sister Harbhajan Kaur. He admitted that he did not know whether said Harbhajan Kaur is alive or not and whether she was having two children namely Jatinder Kaur and Kuldeep Singh. He stated that he was having one more brother but do not Avtar Khatkar Vs. Tirath Singh Khatkar Page: 8/43 know whether he is alive or not. He admitted that his mother was the owner of House no. 2979/2, Ranjit Nagar, New Delhi measuring 400 sq. yds and she was also owner of property no. 3066/08/12 measuring 30 sq. yds. in Ranjit Nagar. He denied the suggestion that the said property is measuring 60 sq. yds. He stated that his father retired as Assistant Engineer, Water Supply, New Delhi Municipal Committee, but he was not receiving any pension. He stated that till retirement of his father, they used to live in the Government Accommodation but he used to sleep in the property at Ranjit Nagar. He admitted that his father was having one car no. DLK 1859 but stated that the same was purchased out of his funds and he gifted it to his father. He failed to state whether the agriculatural land at Punjab is in his possession or not. He denied the receipt of legal notice dated 16.02.2015 and 24.03.2017 and stated that the address is incorrect on the legal notice. He stated that the property left by his father was never partitioned between the LRs. He denied the suggestion that his mother executed documents Ex.DW-2/1 i.e. GPA in his favour merely to lookafter the said property. He also stated that apart from the GPA his mother also executed a WILL but same is not traceable. He admitted that he has not applied for probate of any WILL till date. He stated that at the time of execution of GPA, his mother, his wife, one witness Kishan Singh Rawat and one representative of Tiwari & Co. (Advocates) were present before Sub Avtar Khatkar Vs. Tirath Singh Khatkar Page: 9/43 Registrar, Kashmiri Gate. He admitted that neither his neighbours nor any relatives were present at the time of execution of GPA. He stated that he never sent any notice to plaintiff regarding execution of GPA in his favour and claimed said fact was already in notice of plaintiff being told by the mother. He failed to state whether his father has published any notice in the newspaper disowning / disinheriting plaintiff from his property. He voluntarily stated that his father was angry with plaintiff because of his marriage in Canada solemnised without the consent of his father. He denied the suggestion that he has grabbed all the properties of his parents taking advantage of the fact that other LRs are residing abroad.
15. DW-3 is Kuldeep Kaur Khatkar who is also wife of defendant. She tendered her evidence by way of affidavit Ex.DW-3/A and also relied upon documents Ex.DW-3/1 i.e. GPA, WILL, Agreement to Sell and receipt dated 09.08.1985 (colly). During cross examination, DW-3 stated that her mother-in-law Udham Kaur was alive on 09.08.1985 but her signatures were not taken on document Ex.DW-2/1 (colly). She admitted that the property no.2979/2, Ranjit Nagar, New Delhi was in the name of Udham Kaur on 09.08.1985. She stated that she had gone at Parliament Street alongwith her husband, one Jugal Kishore and Dayanand for preparation of documents. She stated that she do not know whether sale deed used to be Avtar Khatkar Vs. Tirath Singh Khatkar Page: 10/43 executed / were open at the time of execution of documents on 09.08.1985. She admitted that the partition had never taken place between plaintiff and defendant till date. She admitted that since her marriage with defendant, she is living with him till date and she is housewife since her marriage. She admitted that she and her husband i.e. defendant are having common funds i.e. one common bank account and there is no separation / division between them regarding funds. She denied the suggestion that she had not paid amount of Rs.55,000/- to mother of defendant and it was merely a family arrangement made by her and defendant to grab the unpartitioned property. She has further denied that documents Ex.DW-3/1 (colly) were got prepared by her husband with her connivance. She stated that the property no. 2979/2, Ranjeet Nagar, Delhi-08 is measuring about 300 sq. yds and she is not aware of its market value. She admitted that defendant is having some brothers as well as sisters and after purchase of property, she had not given any notice to brothers / sisters of defendant / plaintiff. She stated that she does not know whether any other officer visited / inspected the said property prior to mutation of property in her favour or whether any officers of MCD / DDA were informed that the actual size of said property is 300 sq. yds. She denied that the mutation was made by making false representation to the MCD and without disclosing them true facts.
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16. DW-4 Sh. Sevajit, Record Attendant, Govt. of NCT of Delhi, Department of Delhi Archives appeared and produced the file pertaining to registered GPA vide document no.1176 additional book no.4, Vol. no. 578 on pages from 143 to 147 dated 14.03.1978 and exhibited the certified copy of the same as Ex.DW-2/1 after comparing from the original register. He was not cross examined by the plaintiff.
17. DW-5 Sh. Daya Nand stated that defendant was having a power of attorney executed by his mother in his favour in the year 1978 with respect to all her movable and immovable properties. He further stated that the mother of defendant was in need of some money as such defendant sold some of her property to Kuldeep Kaur for a sum of Rs.55,000/-. He stated that the documents in favour of Kuldeep Kaur were prepared by an advocate at Parliament Street. He further stated that defendant is residing near his house and Kuldeep Kaur has paid Rs.55,000/- to defendant in his presence and the defendant handed over the said amount to his mother. He further stated that he had signed on documents Ex.DW-3/1 at point X on every document. During cross examination, he stated that he had not received the summons from Court for appearance and has come to Court with defendant as he is having good relations with him. He admitted that the stamp papers on which documents Ex.DW-3/1 were executed were Avtar Khatkar Vs. Tirath Singh Khatkar Page: 12/43 executed by Advocate himself who was a sikh gentleman, also signed at point A. He stated that the payment was made by the defendant to his mother after reaching her residence and they had signed the documents Ex.DW-3/1 prior to making of said payment. He stated that he alongwith Jugal Kishore, defendant and Ms. Kuldeep Kaur had gone to Parliament Street to the Office / Chamber of Advocate and mother of defendant had not gone with them. He admitted that he was not present at the time when power of attorney was allegedly executed by mother of defendant in his favour in the year 1978. He admitted that the contents of Ex.DW-3/1 were explained to him and it was told to him that the defendant is selling said property to his wife for consideration amount of Rs.55,000/- and only main gist was explained to him. He further stated that no receipt was executed by mother of defendant in his presence qua the amount of Rs.55,000/- paid by defendant to her. He denied the suggestion that he is deposing falsely being a friend of defendant and documents Ex.DW-3/1 were forged and fabricated by defendant and his wife.
18. DW-6 Sh. Kishan Singh Rawat appeared and deposed that he is one of the attesting witness of GPA dated 13.03.1978 already Ex.DW-2/1 which was executed by Smt. Udham Kaur in favour of defendant in his presence and in the presence of other witnesses and he identified the signatures of Smt. Udham Kaur at point Y. During cross Avtar Khatkar Vs. Tirath Singh Khatkar Page: 13/43 examination, he stated that he had not received the summons from Court for appearance and has come to Court with defendant as he is having good relations with him and had studied with defendant in school. He stated that in the year 1978, he had gone to some place near Kashmere Gate to witness documents i.e. Ex.DW-2/1. However, he do not recollect whether he had appeared before any government servant or not. He stated that at the time of signing the documents he was graduate. He stated that it may be correct that in 1970s, sale deed regarding sale / purchase of immovable properties were registered. He was not able to recollect whether any official / authority had affixed any stamp on said documents. He admitted that complete document was not read over to him but gist of the same was explained to him. He stated that he does not know whether Ms. Udham Kaur had given right to defendant to sell the property or not or whether defendant was given only a right to lookafter property. He admitted that apart from defendant and his mother, no other brother / sister / relative of defendant was present at that time. He stated that in his presence, no money was paid by defendant to his mother.
19. DW-7 Sh. Yugal Kishore tendered his evidence by way of affidavit Ex.DW-7/A and relied upon document Ex.DW- 3/1. During cross examination, he stated that Ex.DW-7/A was already got typed by Advocate and he merely signed Avtar Khatkar Vs. Tirath Singh Khatkar Page: 14/43 the same and had also signed in one register. He admitted that in Ex.DW-3/1, he and Sh. Daya Nand had not signed on all the pages. He admitted that Ex.DW-3/1 bears the signatures of Sh. Tirath Singh Khatkar and his wife only. He further stated that one witness Sh. Daya Nand also signed on said papers after his signatures. He denied the suggestion that defendant is residing in gali no.2 and not gali no. 10. He admitted that address of Sh.Tirath Singh is 2979 and he is residing at 3066. He volunteered that his house is situated just opposite / across the gali to the house of Sh. Tirath Singh. He stated that defendant is his very good friend, neighbour as well as well wisher. He stated that vide agreement to sell, GPA, Receipt and WILL i.e. Ex.DW-3/1, said property was sold by defendant to his wife and he had gone to Parliament Street to sign on Ex. DW-3/1 and stated defendant has sold an area of approximately 400 sq. yds to his wife. He denied the suggestion that he was deposing falsely at the instance of defendant being his friend. He has denied the suggestion that no such document was prepared. He volunteered that he is aware of the fact that mother of defendant had given said property to him and he was not present at that time i.e. when mother of defendant gave suit property to him.
20. In support of his case plaintiff examined himself as PW-1 and tendered his affidavit Ex. PW-1/A. His testimony is on the lines of plaint filed by him. He relied Avtar Khatkar Vs. Tirath Singh Khatkar Page: 15/43 upon documents Ex. PW-1/1 i.e. death certificate of Sh. Sohan Singh, Ex. PW-1/2 i.e. legal notice dated 24.03.2017, Ex.PW-1/3 i.e. postal receipts dated 27.03.2017 (wrongly mentioned as 16.02.2015), Ex.PW- 1/4 i.e. AD Card, Ex.PW-1/5 i.e. Legal Notice dated 16.02.2015 (wrongly mentioned as dated 24.03.2017), Ex.PW-1/6 i.e. Postal Receipt dated 18.02.2015 ad Ex.PW- 1/7 i.e. site plan. During cross examination, he stated that presently he and the defendant are the only surviving siblings out of four brothers and one sister. He admitted that in the year 1972, he left India and settled abroad but claimed that he used to visit India every year after 1985. He denied that he is a permanent citizen of USA but admitted that he is a Canadian Citizen. He stated that his brother Sohan Singh was having two children i.e. Charanjeet Singh and Manjeet Kaur and wife Smt. Gurmeet Kaur, but having no knowledge about their whereabouts. He also stated that he has no knowledge of the whereabouts of children of her sister Smt. Harbhajan Kaur. He stated that his brother Malkiyat Singh died in road accident who was not having any bank account / movable / immovable property. He denied that he was married with Ms. Kamal in the year 1974 and was having one child. However, he admitted that he was married to Paramjit Dhillon, who is sister-in-law of brother-in-law of defendant. He denied the suggestion that the expenses of marriage of his brother with Paramjit Dhillon were borne Avtar Khatkar Vs. Tirath Singh Khatkar Page: 16/43 by defendant. However, he showed his ignorance whether defendant has started business in 1958 and was contributing expensens towards his family. He stated that he returned back to India in 1984 after selling his property in Canada and started his business i.e. lightest insulators. with defendant. He stated that after sometime his mother advised him to return back to Canada and he accordingly returned back to Canada. He denied the suggestion that he has not sent any money after selling his properties and admitted that the said fact is not mentioned in his plaint. He denied the suggestion that after the death of his father the defendant was maintaining the family and claimed that the family was maintained from the rental income. He denied the suggestion that in March, 2017 he was not in India. He stated he had given the copy of sale deed mentioned in para 7 of the plaint to his counsel. He stated that the suit property i.e. property no. 2979 is having six shops and constructed upto three floors. He stated that he has no knowledge regarding the circle rate in Delhi and market value of the property in the year 2017. When he was asked on what basis the suit property was valued as mentioned in para 20 of his affidavit, he stated that the undivided plot was purchased in the year 1958 for Rs.4,500/- and it was constructed later on for Rs.70,000/-, therefore, the figure of Rs.20 lacs was arrived keeping in view the inflation rate. He admitted that he is not aware what was the market value of the property in the year 2017 Avtar Khatkar Vs. Tirath Singh Khatkar Page: 17/43 or as on date and therefore he cannot admit or deny if the suit property was valued at Rs.3.28 crores in the year 2017. He stated that he cannot identify the signatures of his mother and has no knowledge whether his mother has executed GPA dated 13.03.1978 Ex.DW-2/1 registered on 14.03.1978. He denied the suggestion that on the basis of GPA defendant sold the property to his wife and executed sale documents Ex.DW-3/1 colly with the consent of their mother for a sum of Rs.55,000/-. He admitted that he had no knowledge whether defendant paid the sale consideration of Rs.55,000/- to his mother after taking the same from his wife. He showed his ignorance about the mutation of the property in the name of wife of defendant and whether she is paying the house tax. He admitted that till date he has not challenged the documents executed by his mother in favour of defendant and also sale documents executed by defendant in favour of his wife but claimed that the same was not done as he was not having the knowledge regarding the same. He failed to admit or deny the suggestion whether the wife of defendant alongwith her family is residing continuously in the property bearing no. 2979/2, as its owner since the date of its purchase by her. He denied the suggestion that even in the property no.3066/8A/2 defendant is in continuous possession for more than 50 years. He admitted that after death of his father, all construction, renovation and repair were carried out by the defendant in the suit property but claimed that Avtar Khatkar Vs. Tirath Singh Khatkar Page: 18/43 the same was done out of rental income received by the defendant. He denied the suggestion that his mother informed of having executed GPA in favour of defendant when she visited Canada and copy of the said GPA was given to him. He also denied the suggestion that his mother informed him about the execution of sale documents Ex.DW-3/1 in favour of wife of defendant and also given copy to him. He denied the suggestion that he is having no knowledge regarding Ex.DW-2/P1 which is in Punjabi Language. He admitted that he has not filed the English translation of the document Ex.DW-2/P1. He admitted that he is not paying any electricity / water bills of the suit property since the year 1986. He has denied the suggestion that he is not having any right, title or interest in the suit property. He denied the suggestion that he had never served his parents and due to this reason they have disowned and disinherited him from their properties. However, he claimed that he used to send lot of money to his parents but admitted said fact is not mentioned in the plaint and no document has been placed on record to support such contention. He admitted that Ex.PW-1/D1 bears his signatures and he sponsored Charanjit Singh and Manjit Kaur for visiting Canada in the year 1978 but admitted that both the persons are not his real brother / sister. He denied the suggestion that he had misrepresented and taken Charanjit Singh and Manjit Kaur wrongfully. He showed his ignorance with respect to documents Ex.Mark Avtar Khatkar Vs. Tirath Singh Khatkar Page: 19/43 X, Mark Y and Mark Z and claimed that his marriage was never solemnised with Ms. Kamal. He denied the suggestion that no notice was served on the defendant as the address on AD card is wrong. He denied the suggestion that he had deliberately not made the LRs of Sohan Singh, Harbhajan Kaur and Malkiyat Singh as parties in the present suit. He denied the suggestion that when his mother returned from Canada her hand was broken as he had inflicted injury upon her. He admitted that he had not filed any case against defendant before filing the present case.
21. I have heard Ld. Counsels for the parties. I have also carefully perused the material on record.
22. Ld. Counsel for plaintiff argued that plaintiff is entitled for partition as well as rendition of accounts being one of the LR of Late S. Prakash Singh and Smt. Udham Kaur. He also argued that defendant has no right to transfer the suit premises to his wife as the GPA was obtained by fraud and defendant was only allowed to lookafter the property. He also argued that the plaintiff has issued legal notice seeking partition which was duly served and despite that the defendant has neither replied nor complied with the prayer of the legal notice. He pointed out that there is admission from defendant that plaintiff is his real brother and defendant is not aware about the whereabouts of other Avtar Khatkar Vs. Tirath Singh Khatkar Page: 20/43 siblings and therefore, there was no mis-joinder / non- joinder of parties. He also argued that the defendant has not placed on record any document to show the alleged involvement of plaintiff in criminal case.
23. On the other hand, Ld. Counsel for defendant argued that the defendant is in continuous uninterrupted and hostile possession of the said property for more than 50 years and become owners by way of adverse possession. He also argued that in order to prove the issue No.1, the defendant examined Smt. Kuldeep Kaur Khatkar who tendered her evidence as DW-3/A and proved that DW-3 purchased the property N. 2979/2, Ranjit Nagar, New Delhi-110008 admeasuring 400 sq. yds. from Smt. Udham Kaur for a sale consideration amount of Rs.55,000/- through her registered attorney holder Shri Tirath Singh Khatkar (defendant) and accordingly the defendant also executed a GPA, Agreement to Sell, WILL and Full and Final Amount Receipt all dated 9th August, 1985 in presence of witnesses. He also argued that on the basis of sale documents Ex.DW-3/1 (Colly) she applied for mutation before the MCD and the MCD vide its order dated 25th March, 2001 mutated the property No. 2979/2, Ranjit Nagar, New Delhi-110008 in her favour and thereafter she has been regularly paying the House Tax. He also argued that DW-3 was cross examined but the plaintiff has not challenged the contents of testimony of DW-3, Avtar Khatkar Vs. Tirath Singh Khatkar Page: 21/43 hence the same are deemed to be admitted. He further argued that the defendant proved that he has executed the sale document Ex.DW-3/1 (Colly) in favour of Smt. Kuldip Kaur Khatkar in respect of suit property on behalf of Smt. Udham Kaur. He also argued that DW-4 Mr. Saranjit, Official from the Sub Registrar Office proved the original record and the certified copies of GPA Ex.DW-2/1. He also argued that DW-1 Shri Sachin Kumar, Official from the MCD House Tax Department proved the Mutation Order Ex.DW-1/1 and the house tax receipts Ex.DW-1/2 (colly) from originals. He also argued that DW-5 Shri Dayanand and DW-7 Shri Yugal Kishore, both attesting witness of the sale documents Ex.DW-3/1 (colly) proved the contents, signatures and authenticity of sale documents Ex.DW-3/1 (colly) executed in their presence and in presence of DW-3. He also argued that both the witness i.e. DW-5 and DW-7 were duly cross examined by Ld. Counsel for plaintiff but no substantial material has come on record to disbelief the testimony of DW-5 and DW-7 and even otherwise also the abovesaid testimony of DW-7 was not challenged during his cross examination. He also argued that DW-6 Shri Kishan Singh Rawat, one of the attesting witness proved the GPA dated 13.03.1978 Ex.DW-2/1. He also argued that in his affidavit plaintiff neither mentioned nor challenged the authenticity, genuineness of documents, contents, truthfulness and execution of the documents Ex.DW-3/1 (colly) and also Avtar Khatkar Vs. Tirath Singh Khatkar Page: 22/43 not challenged in any manner the mutation order dated 25.03.2001 (DW-1/1). He also argued that the sale and transfer documents Ex.DW-3/1 (colly) executed on 09.08.1985 is more than 30 years old,hence as per Section 4 and 90 of the Evidence Act, presumption in favour of execution of the said documents has arisen and the plaintiff has failed to rebut the said presumption and had even not challenged the said documents as well as mutation order. He also argued that PW-1 in his cross examination admitted that the plaintiff is having four brothers and one sister and the plaintiff in para no.2 of the plaint also mentioned the LRs of Late Prakash Singh but the plaintiff failed to bring / made the other LRs of Late Prakash Singh and Smt. Udham Kaur as necessary and proper parties to the present suit. He argued that it is settled law that for suit for partition of the property, all legal heirs of the Late Smt. Udham Kaur as well as Late Shri Prakash Singh must and should be necessary and proper parties for proper adjudication of the suit and in their absence, the suit in the present form is not maintainable. He also argued that the plaintiff neither in his plaint nor in his affidavit Ex.PW-1/A even mentions that the plaintiff is in possession / part possession or even constructive possession of the suit property at the time of filing of the present petition in March, 2017 and on contrary in para 14 of the plaint admitted that for the last 40 years the defendant has not tendered any account of income and expenditure, hence, Avtar Khatkar Vs. Tirath Singh Khatkar Page: 23/43 plaintiff has admitted that more than 40 years the defendant are in possession of the suit property. He also argued that PW-1 in his cross examination admitted that the plaintiff has not challenged the said sale / sale documents as well as mutation order till date and PW-1 has further admitted that he left India in 1972 and settled abroad. He argued that PW-1 in his cross examination stated that he is not paying electricity bills, water bills, house tax in respect of suit property since 1986 and further stated that he cannot admit and deny the suggestion that wife of defendant alongwith her family members was continuously residing in the said property No. 2979/2 as its true owner since the date of its purchase by her. He also argued that issuance of notice does not itself raises a cause of action in favour of the plaintiff to file the present suit and even otherwise also, the notice Ex.PW-1/2 and Ex.PW- 1/5 were not duly proved as per law as not witnesses were examined to prove the same and even PW-2 have not proved the service of the said notices to the defendant and that even the address mentioned in the AD card Ex. PW- 1/2 is 2972/2 whereas the correct address is 2979/2, hence the plaintiff has failed to prove the legal notices. He also argued that as per Section 65 of the Limitation Act, Twelve years is described when the possession of the defendant becomes adverse to the plaintiff and Section 64 of the Limitation Act Twelve, year from the date of dispossession, as per Section 113 of limitation Act where Avtar Khatkar Vs. Tirath Singh Khatkar Page: 24/43 no period of Limitation is prescribed than 3 years when the right to sue accrues. He also argued that the defendant in para 9 of his written statement as well as in para 14 of the affidavit Ex.DW-2/A stated and proved that as per the circle rates notified by the Govt. of NCT of Delhi at the time of filing of the petition i.e. in the year 2017, the total value of the suit property is more than Rs.5,00,00,000/-. It is also argued that the plaintiff has not challenged the said fact even during cross examination of DW-2 and on contrary the PW-1 in his cross examination stated "I am not aware as to what was the market value of suit properties in the year 2017 or as on date and I cannot admit or deny the suggestion that market value of suit properties was Rs.3.28 crore in the year 2017, accordingly to circle rate". He also argued that the plaintiff has not led any evidence to support his claim of suit property is valued only Rs.20 lacs. He also argued that the Court can take judicial notice to the Notification for circle rates by the Govt. of NCT of Delhi in respect to properties in Delhi including the suit property at the time of filing of the present suit. He also argued that the plaintiff has not paid court fees even on the value of Rs.20 lacs as alleged by the plaintiff despite undertaking given in the plaint. He further argued that as per law, the plaintiff is liable to pay the advalorem court fee upon the market value of the suit property at the time of filing of the suit. He further argued that the plaintiff has neither challenged the sale / transfer Avtar Khatkar Vs. Tirath Singh Khatkar Page: 25/43 of documents of the suit property no. 2979/2, Ranjit Nagar, New Delhi-110008 nor the mutation order dated 25.03.2001 till date. He further argued that the plaintiff in his plaint in para 7 mentions that copy of sale deed is filed on record, however, no sale deed of the suit property has been filed by the plaintiff during the trial and this fact is admitted by the plaintiff in his cross examination. He further argued that the plaintiff in para 5 mentions the death certificate of his brother Malkiat Singh is filed, however, the death certificate of Malkiat Singh is not filed during the trial although copy of death certificate of Sohan Singh as Ex.PW-1/1 has been filed, which shows that the plaintiff is making false statement. He further argued that though plaintiff has filed a site plan Ex.PW-1/7 but the same was never proved as draftsman who prepared the site plan was not examined in court to prove the same even the alleged site plan Ex.PW-1/7 mentions the date 20.02.2015 whereas the present suit was filed in March, 2017 hence, has no relevance. He further argued that the plaintiff is claiming half share of the suit property whereas admittedly the plaintiff has three brothers and one sister and even otherwise also, as per law, the plaintiff is not entitled for half share of the suit property and the plaintiff has no right, title and interest in the suit property. He further argued that the defendant has duly proved that the defendant is in continuous possession of the other property No. 3066/8A/2, Street No.10, Ranjit Nagar, New Delhi-110008 Avtar Khatkar Vs. Tirath Singh Khatkar Page: 26/43 for the last 50 years without any interference from any person including the plaintiff. He further argued that the plaintiff has made false statements and his credibility is doubtful. He further argued that the defendant has duly proved that Smt. Kuldeep Kaur Khatkar is absolute owner and in possession of the suit property No. 2979/2, Ranjit Nagar, New Delhi-110008 and the defendant is the absolute owner and in possession of another suit property No. 3066/8A/2, Street No.10, Ranjit Nagar, New Delhi- 110008 and that the defendant has duly proved that the defendant and his family members have been in continuous and uninterrupted possession of the suit property for the last more than 40 years and further proved that the plaintiff has no right, title and interest in any manner in respect of the suit property.
24. In support of his contentions, Ld. Counsel for defendant has relied upon the Judgments as under :
a. Suresh Kapoor Vs. Shashi Krishan Khanna & Ors., 2016 (2015) DLT 273.
b. Rattan Singh & Ors. Vs. Nirmal Gill & Ors., 2020(2) TVT 508 (SC).
c. AIR 2009(2966), T.K. Mohammad Abubucker Vs. P.S.M. Ahamed Abdul Khader.
d. AIR 2003(SC) 1807, Chief Conservator of Forests, Govt. of A.P. Vs. Collector & Ors.
e. Rajender Prasad Vs. Darshana Devi, V(2001) SLT 780.
Avtar Khatkar Vs. Tirath Singh Khatkar Page: 27/43 f. AIR 2003 (SC) 2418, Roop Kumar Vs. Mohan Thedani.
g. Ramesh Chand Vs. Suresh Chand & Ors. 188 (2012) DLT 538.
h. Chattar Singh Matharoo Vs. Ashwani Mudgil & Ors., 2015(152) DRJ 231.
i. L.M. Walter Vs. Sh. Onkar Giri, 2016 IX AD Delhi
397.
j. AIR 2019 SC 3827 Ravinder Kaur Grewal Vs. Manjit Kaur.
k. Amrit Kaur Vs. Sarabjet Singh, 153(2008) DLT 392. l. AIR 2004 SC 1206, Krishna Pillai Rajeshekharan Nair Vs. Padmanabha Pillai.
m. AIR 2000 Delhi 336, Ashok K. Khurana Vs. M/s. Steelman Industries.
n. AIR 1982 Delhi 520, Nanak Chand Vs. Chander Kishore.
o. Ramanbhai Shamalbhai Patel Vs. Ravjibhai Motibhai Patel, Second Appeal No. 131/96.
25. The issues framed in the present case are both factual and legal. I shall be deciding the legal issues first. My findings on various issues is as under:-
(3) Whether the suit of the plaintiff is barred by limitation and latches? OPD.
The defendant is claiming that since the suit premises was transferred in the name of Kuldeep Kaur Khatkar on Avtar Khatkar Vs. Tirath Singh Khatkar Page: 28/43 09.08.1985 itself and the suit is filed only on 09.04.2017, the suit is barred by limitation as it is filed beyond the prescribed period of limitation. As per plaint, the plaintiff is claiming that on service of notice dated 16.02.2015 he telephonically requested the defendant not to dispose off the suit property and thereafter again served notice dated 24.03.2017 and on that ground only it is claimed that the suit is filed within the period of limitation. Admittedly, plaintiff is not residing in India and the defendant is the person who is looking after the suit property. Defendant, who was examined as DW-2 has proved the GPA dated 13.03.1978 and DW-3 proved the documents exhibited as DW-1/3 (colly) which are the GPA, WILL, Agreement to Sell and Receipt all dated 09.08.1985. However, DW-3 in her cross examination admitted that she has not given any notice to the other brothers and sisters of the parties regarding the purchase of the suit property or its mutation in the municipal records. Even though, DW-2 in his cross examination has stated that his mother has handed over the copy of the GPA dated 13.03.1978 to the plaintiff when she visited him but admitted that he do not know whether his mother has given any notice to the plaintiff regarding execution of GPA in favour of defendant. The defendant is also claiming that he has not received the legal notice dated 24.03.2017 as the address is wrong on the AD Card but has not lead any evidence to show that the address on the AD Card is wrong. I have perused the postal receipts Avtar Khatkar Vs. Tirath Singh Khatkar Page: 29/43 and the AD Card. The address mentioned on the AD Card and the legal notice is the address of the defendant which is mentioned in the plaint also. The defendant has not lead any evidence to show how the address mentioned on the AD Card and the legal notice is incorrect. Ex.PW-1/2, Ex.PW-1/3, Ex.PW-1/4 and Ex.PW-1/5 bears the address of defendant as R/o. 2979/2, Ranjit Nagar, New Delhi- 110008 which admittedly the address of the defendant. Furthermore, the cause of action for filing the suit for partition is a continuing one and it arose on each and every date when the right claimed by the plaintiff was asserted by the plaintiff and was repudiated by defendant. Defendant has not replied to the legal notices of the plaintiff. PW-1 in his cross examination has denied the knowledge of GPA dated 13.03.1978 or the documents dated 09.08.1985 in respect of the suit premises which raises a presumption that the plaintiff was not aware of existence of such documents unless proved otherwise by the defendant. The defendant has not placed on record any document to show that the existence / execution of documents dated 13.03.1978 and 09.08.1985 were brought to the knowledge of plaintiff. Hence, the knowledge of the plaintiff can be gathered from the date when he firstly issued the legal notice dated 16.02.2015 dispatched on 18.02.2015 which raises a presumption of due service in terms of Section 27 of General Clauses Act. The suit is filed on 07.04.2017 i.e. within 12 years from the date of Avtar Khatkar Vs. Tirath Singh Khatkar Page: 30/43 service of legal notice. Accordingly, I am satisfied that the present suit is filed within limitation and therefore, issue no.3 is decided in favour of the plaintiff.
26. Now, I shall be dealing with issue no.4 with regard to pecuniary jurisdiction of the Court.
(4) Whether this court has no pecuniary jurisdiction to try the present suit? OPD.
PW-1, who is plaintiff admitted that he has no knowledge regarding the circle rate in Delhi and market value of the property in the year 2017. He further stated that he valued the suit property as mentioned in para 20 of his affidavit as the undivided plot was purchased in the year 1958 for Rs.4,500/- and it was constructed later on for Rs.70,000/- and accordingly, the figure of Rs.20 lacs was arrived keeping in view the inflation rate. He admitted that he is not aware what was the market value of the property in the year 2017 or as on date and therefore he neither admitted nor denied if the suit property was valued at Rs.3.28 crores in the year 2017.
27. In his written statement as well as evidence by way of affidavit which is Ex.DW-2/A defendant has averred that as per the circle rate notified by Government of NCT of Delhi, the value of suit property is more than Rs.3.28 crores and the plaintiff has not paid the advaloram court fee on the said value. During cross examination, no Avtar Khatkar Vs. Tirath Singh Khatkar Page: 31/43 question was put to DW-2 who is the defendant regarding the said averment of the valuation of the suit property as of more than Rs.3.28 crores. However, the defendant also has not placed on record the relevant notification whereby the applicable circle rate of the suit property were notified by the Government of NCT of Delhi. The defendant has only filed the house tax receipts which does not disclose the value of the suit property. The defendant has also examined official from House tax Department. However, the testimony of DW-1 is of no help to the defendant as the document Ex.DW-1/1 and Ex.DW-1/2 does not disclose the value of the suit property to determine the value of the suit premises in the year 2017.
28. The onus to disprove the pecuniary jurisdiction of this Court is upon the defendant. However, defendant has failed to lead any evidence and file any document to show the applicable circle rate in the area of Ranjit Nagar, New Delhi in the year 2017 which may oust the pecuniary jurisdiction of this Court. Accordingly, in the absence of any evidence of defendant, the issue no. 4 is decided against the defendant and in favour of the plaintiff.
29. Now, I shall deal with issue no.5.
(5) Whether plaintiff has not paid proper court fees on the suit? OPD.
The onus to prove the same is upon the defendant, who is Avtar Khatkar Vs. Tirath Singh Khatkar Page: 32/43 claiming that the suit property is valued more than Rs.3.28 crores and therefore, the plaintiff has not paid the proper court fee. On the other hand, plaintiff has claimed that he has assessed the value of the suit property at Rs.20 lacs and has undertaken to pay court fee of his share in the suit property on its market value. During cross examination, plaintiff has stated that the undivided plot was purchased in the year 1958 for Rs.4,500/- and it was constructed later on for Rs.70,000/- and therefore, the figure of Rs.20 lacs was arrived keeping in view the inflation rate. However, PW-1 admitted that he is not aware what was the market value of the property in the year 2017 or as on date and therefore he cannot admit or deny if the suit property was valued at Rs.3.28 crores in the year 2017.
30. That Part C of Chapter 3 of the Vol. I of the Delhi High Court Rules provide for the manner of determining the value of suits for the purposes specified in Section 9 of the Suits Valuation Act, 1887 for the purpose of jurisdiction. The relevant rule 8 deals with valuations in respect of suits relating to partition of property and provides as under: "
.....8. Suit for partition of Property:- Court Fee - (a) As determined by the Court-fees Act, 1870 Value - (b) for the purposes of the Suits Valuation Act, 1887 and the Punjab Courts Act, 1918 the value of the whole of the Property as determined by Section 3, 8 & 9 of the Suits Valuation Act, 1887...."
Avtar Khatkar Vs. Tirath Singh Khatkar Page: 33/43
31. Thus a suit for partition is to be valued for the purpose of jurisdiction on the market value of the entire property which is sought to partitioned. This has also been categorically held by the Hon'ble High Court of Delhi in the judgment tiled as Ramesh Chand Bhardwaja v. Ram Parkash Sharma reported as AIR 1991 Delhi 280 and Sh. Jagdish Pershad Vs. Joti Pershad, 1975 ILR (Del.) 841.
32. It is also clear that the valuation for the purposes of jurisdiction has to be the value of the whole property, which is the subject matter of partition, whereas the valuation for the purposes of court fees would be as provided in the Court Fee Act.
33. In the matter of S. Fauja Singh Vs. Kuldeep, AIR 1978, Delhi, 276. it has been held that where the plaintiff, in a suit for partition and rendition of account, was found to be in possession of part of the property, it was held that it is to be valued for the purpose of court fee in accordance with section 7 (iv)(B) r/w article 17 of Schedule 2 and no advaloram court fees is required to be paid. Furthermore, in Prakashwati Vs. Dyawanti, 42 (1990) DLT 421, it has been held that in a suit for partition by metes and bounds of joint family property and for permanent injunction where the plaintiff is alleging ouster from possession, court fees payable on the plaint is the advaloram on the share of Avtar Khatkar Vs. Tirath Singh Khatkar Page: 34/43 the plaintiff according to section 7 (iv) r/w article 17
(vi) schedule 2 of the Court Fee Act.
34. In the matter of Sushma Tehlan Dalal Vs. Shivraj Singh Tehlan & Ors. 2011 IV AD (Delhi) 341 the following legal proposition of law emerges :
(i) In order to ascertain whether the suit has been properly valued for the purpose of Court fee or not, only the averments made in the plaint have to be seen, without reference to the plea taken by the defendants;
(ii) If the plaintiff claims to be in joint possession of the suit property, he has to pay a fixed court fee in terms of Article 17 (vi) of Court Fees Act.
(iii) If the averments made in the plaint show that the plaintiff has been completely ousted from the possession and is not in possession of any part of the suit property, he is required to claim possession and also pay advaloram court fees on the market value of his share in the suit property.
35. In cases where plaintiff is not having the possession of suit property in question on the date of filing of the suit and if seeking partition thereof, then in such circumstances, the value of the entire suit property has to be assessed and considered for the purpose of suit valuation has to be considered according to that. Such an assessment has to be according to the prescribed circle Avtar Khatkar Vs. Tirath Singh Khatkar Page: 35/43 rates by the government on the date of filing of the suit, which is legally accepted as the market value of the suit property in question.
36. As per plaint, the plaintiff is claiming that the suit premises is not partitioned between the parties. The defendant has not denied that the plaintiff is his real brother and even though PW-1 admitted in his cross examination that he has shifted to Canada but used to come to India almost every year upto 1985. PW-1 also admitted that he is not paying electricity bill, water bill and house tax qua suit premises since 1986. The plaintiff is claiming partition in the suit premises whereas the defendant is asserting that the suit property is already sold by their mother to Smt. Kuldeep Kaur Khatkar. Plaintiff has assessed the valuation of the suit at Rs.20 lacs and during cross examination stated that the suit property i.e. property no. 2979 is having six shops and constructed upto three floors. The defendant apart from claiming the value of the property at Rs.3.28 crores has not lead any evidence to show such valuation despite the fact that the onus was upon him to prove such valuation of the suit premises. Despite, the fact that the plaintiff was not residing in the suit property, it cannot be presumed in the absence of any evidence that the plaintiff has been ousted from the suit property in question. The defendant is claiming that the plaintiff has been ousted but during cross examination Avtar Khatkar Vs. Tirath Singh Khatkar Page: 36/43 DW-3 admitted that after the execution of documents dated 09.08.1985, she has not given any notice to the other brothers and sisters of the parties. Further, DW-3 admitted that partition had never taken place between plaintiff and defendant till date. This implies that despite the preparation of documents dated 09.08.1985 which are Ex.DW-3/1 (colly), the notional possession of the plaintiff cannot be overlooked and the valuation is to be done on the basis of Article 17 (vi) of Court Fees Act. Despite challenging the valuation of the suit premises, the defendant has not lead evidence to the contrary. Accordingly, in the absence of any evidence from the defendant, I am satisfied he has failed to discharge the onus to prove that the plaintiff has not valued the suit properly. Hence, the issue no.5 is decided against the defendant.
37. Now, I shall deal with issue no.2.
(2) Whether the suit is liable to be dismissed for non joinder of other Legal Heirs of late Sh. Prakash Singh? OPD. : Order 1 Rule 9 CPC deals with the consequences of misjoinder and nonjoinder of parties. The proviso to this Rule categorically states that the Rule does not apply to nonjoinder of necessary party. Thus, it is clear that the Rule does not do away with the necessity to bring a "necessary party" as this has now emphasized by newly inserted proviso to the Section. Though no suit shall be Avtar Khatkar Vs. Tirath Singh Khatkar Page: 37/43 defeated for misjoinder or nonjoinder of parties, there can be no doubt that if the parties who are not joined are not only proper but also necessary party to the suit, the infirmity of the suit is bound to be fatal. In a suit for partition of a joint family property, all the legal heirs are necessary parties and suit for partition is not maintainable in the absence of some of the co sharers. If in such a suit, the plaintiff, inspite of the objection being raised, insists on proceeding with the suit without joining all the necessary parties who are absent, the suit is liable to be dismissed.
The onus to prove the non-joinder of necessary parties is upon the defendant. In his plaint as well as in his evidence, plaintiff himself has mentioned that parents of the parties Sh. Prakash Singh and Smt. Udham Kaur were blessed with four sons and one daughter. Out of which, Sohan Singh died on 29.01.1985, daughter Harbhajan Kaur expired on 10.03.1987 and another son Malkiyat Singh expired on 16.01.2011. It is further mentioned that the LRs of Sohan Singh and Harbhajan Kaur had moved to England / Canada and never came back to gave their addresses to the plaintiff and defendant. During cross examination, he stated that presently only two brothers i.e. plaintiff and defendant are surviving. He also stated that he cannot tell the number / location of the NDMC quarter allotted to Sohan Singh and has no knowledge regarding the present whereabouts of wife of Late Sohan Singh or the children of his late sister Harbhajan Kaur. He also Avtar Khatkar Vs. Tirath Singh Khatkar Page: 38/43 stated that as per his knowledge his brother Malkiyat Singh, who was unmarried and died in road accident in England. The plaintiff is claiming that he is entitled to half share of the suit premises on the ground that he and the defendant are only surviving children of Sh. Prakash Singh and Smt. Udham Kaur. However, in his testimony, he admitted about the existence of the LRs of Sohan Singh and Harbhajan Kaur. No explanation has been given by the plaintiff for non impleadment of the said LRs of Sohan Singh and Harbhajan Kaur. It is not pleaded as to whether any attempt has been made by the plaintiff to trace out the said LRs, moreso, when plaintiff himself is claimed to be citizen of Canada and in view of the prevalent social security numbers being used in England / Canada, it would not be impossible to trace the said LRs of Sohan Singh and Harbhajan Kaur. Mere pleading that he is not aware about the whereabouts of the said LRs of Sohan Singh and Harbhajan Kaur when he is seeking partition of the property in which the said LRs would have equitable rights as per laws of succession. The defendant in his written statement has taken a categorical objection regarding the non-joinder of the necessary parties. During cross examination, DW-2 admitted that he do not know whether Smt. Harbhajan Kaur and Sh. Malkiyat Singh are alive or not. But such statement by defendant alone will not be sufficient to absolve the plaintiff from bringing on record the necessary parties.
Avtar Khatkar Vs. Tirath Singh Khatkar Page: 39/43
38. It is well settled principle of law that the necessary party is one that affects the controversy in question and without whom no order can be effectively made and is necessary to decide such controversy in issue, as settled in case titled as (a) 'Sarvinder Singh Vs. Dalip Singh', (1996) 5 SCC 539 wherein, it is observed:
A necessary party is one without whom no order can be effectively made. A proper party is one whose presence is necessary for a complete and final decision of question involved in the proceedings. Therefore, the addition of parties, thus, would depend upon the judicial discretion which has to be exercised, in view of the facts and circumstances of a particular case;
and also in case titled as 'Tej Kaur Vs. Jeet Singh', AIR 1998 Raj 201 wherein, it is observed that:
A party will be necessary defendant if there is a right to relief against him in respect of the suit matter and his presence is necessary for the factual and complete adjudication of all the questions involved in the suit. The question of necessary parties must be decided with reference to the averments in the plaint and the matter in controversy;
39. Hon'ble High Court of Delhi in the matter cited as Bhim Avtar Khatkar Vs. Tirath Singh Khatkar Page: 40/43 Singh Vs. Sukhbir Singh & Ors CS (OS) 1189/97 dt.04.07.08 has held that it is clear in a partition suit, all the co sharers are necessary parties. In the absence of any necessary party, no effective order or decree can be passed.
Since non joinder of necessary parties in a partition suit is fatal.
40. Hence, care must be taken to ensure that all the necessary parties are before the Court, be it the plaintiff or the defendant, otherwise, the suit or the proceedings will have to fail. Necessary party is a party whose presence is necessary in order to make sure that the decree if passed in the proceedings can become an effective decree. Such a person should be bound by the result of the action and the question be settled and such a question in the action cannot be effectively and completely settled unless he is a party; in such an eventuality the suit is liable to be dismissed.
41. Despite specific objections by the defendant in his written statement regarding non-joinder of other LRs of parents of the parties, the plaintiff has neither filed his replication disputing such objections nor moved any application for impleadment of said LRs in the present suit. Even during final arguments, no justification has been advanced for non-impleadment of LRs of Sohan Singh and Harbhajan Kaur, who both were admittedly the biological siblings of the parties. With regard to Malkiyat Singh, it Avtar Khatkar Vs. Tirath Singh Khatkar Page: 41/43 has not been disputed by the parties that he died unmarried and therefore, has no surviving LRs apart from the other siblings.
42. Accordingly, I am satisfied that the defendant has discharged his onus of proving that the plaintiff has not impleaded the necessary parties to the suit which including LRs of Late Sh Sohan Singh and Late Smt. Harbhajan Kaur who are siblings of the parties. The plaintiff has failed to rebut the necessity to implead the other LRs who are necessary party to the suit. Due to failure of plaintiff, the suit is bad for non-joinder of necessary parties. The plaintiff has failed to show that the LRs of Sohan Singh and Harbhajan Kaur are not heard being alive for more than seven years and therefore, their non-impleadment is not required and no presumption can be drawn that the said LRs are no more surviving. Accordingly, issue no.2 is decided in favour of the defendant and against the plaintiff.
43. The plaintiff is also seeking partition in respect of property no. 3066/8A/2, Ranjit Nagar, New Delhi. However, no evidence has been lead by the plaintiff that the said property is registered on the date of filing of the suit in the name of his mother. Despite claiming that the agricultural land at Punjab had already been partitioned between the parties, no evidence has been lead by the plaintiff to show such partition. The plaintiff has also not Avtar Khatkar Vs. Tirath Singh Khatkar Page: 42/43 lead any evidence to show what was the approximate income from the yield of agricultural land (claiming to be already partitioned) and rent of two residential properties.
44. The other issues i.e. issue no.1, 6, 7 and 8 with respect to reliefs claimed by the plaintiff and the defence raised by the defendant that the suit property no. 2979/2, Ranjit Nagar, New Delhi has already been sold by Smt. Udham Kaur, mother of the parties to Smt. Kuldeep Kaur Khatkar on 09.08.1985 are not being discussed as the plaintiff has failed to join the other LRs despite claiming relief of partition and I am satisfied that suit is liable to be dismissed for non-joinder of other LRs of late Sh. Prakash Singh. Accordingly, the suit of the plaintiff Avtar Khatkar is dismissed.
45. Decree sheet (if any) be prepared accordingly and file be consigned to record room.
Announced in the Open Court on 28th of February, 2022.
(PAWAN SINGH RAJAWAT) ADJ-08 (West) Tis Hazari Court Avtar Khatkar Vs. Tirath Singh Khatkar Page: 43/43