Delhi District Court
In Reference vs Sh. Vishnu Ram Thagela on 6 August, 2018
IN THE COURT OF ABHINAV PANDEY: CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No. 534410/2016
In reference:
Sh. Ram Kishan Thagela
S/o late Sh. Soni Ram Thagela
R/o G835/836, Ground Floor
Shakur Pur, JJ Colony
Delhi 110034. ...........Plaintiff
VERSUS
1.Sh. Vishnu Ram Thagela S/o late Sh. Soni Ram Thagela R/o H. No. 575, Sector 22B Behind Police Chowki Anand Farm House, Gurgaon, Haryana
2. Sh. Rajender Thagela S/o late Sh. Soni Ram Thagela R/o F29C, Guru Teg Bahadur Apartments DDA Flats, Tilak Nagar New Delhi.
3. Sh. Vijender Kumar Thagela S/o late Sh. Soni Ram Thagela R/o F29C, Guru Teg Bahadur Apartments DDA Flats, Tilak Nagar New Delhi.
CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 1 of 11
4. Smt. Shakuntala W/o Sh. Babu Lal Parewa R/o F220221, Shakur Pur JJ Colony, New Delhi
5. Smt. Urmila W/o late Sh. Shiv Lal R/o H.No. 221,Gali No. 10 Shiv Mandir, East of Kailash Garhi Delhi110065
6. Smt. Nirmala W/o Sh. Om Prakash Parewa R/o C/o Standar Feed Wrks (Murga Chhap Patake ki Dukan) Near Shop No. K62 Punjabi Bagh, Kotla Mubarakpur New Delhi110003
7. Smt. Meena W/o Sh. Mahinder Parewa R/o C/o Standar Feed Wrks (Murga Chhap Patake ki Dukan) Near Shop No. K62 Punjabi Bagh, Kotla Mubarakpur New Delhi110003 ........... Defendants Date of Institution : 16.02.2013 Date of reservation of Judgment : 02.08.2018 CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 2 of 11 Date of Judgment : 06.08.2018 J U D G M E N T
1. Vide this judgment, I shall dispose of the aforementioned suit between the aforementioned parties. This is a suit for partition, possession and consequential relief of permanent injunction filed by the plaintiff against the defendants.
PLAINT:
2. As per the plaint, the brief facts are that the defendants no. 1 to 3 are the brothers of the plaintiff and defendants no. 4 to 7 are the sisters of the plaintiff. It is pleaded that the properties bearing no. G835 and G836, Ground Floor, Shakur Pur, JJ Colony, Delhi 110034 (hereinafter referred to as the suit property) were jointly purchased by the plaintiff and mother of the parties namely Smt. Kapoori Devi, in the name of the plaintiff and in the name of Smt. Kapoori Devi respectively. Both the aforementioned properties were constructed by the plaintiff by his own funds and there was no right of Smt. Kapoori Devi on said the properties during the life time of the plaintiff and during the life time of the Smt. Kapoori Devi, some portions of the said properties were in the occupation and possession of Smt. Kapoori Devi. It is CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 3 of 11 pleaded that after some period, the relationship of the plaintiff and the mother i.e. Smt. Kapori Devi became strained and it is alleged that the mother of the plaintiff, with the collusion of the defendants, used to misbehave and threaten the plaintiff and his family to vacate the suit property or else to face dire consequences. It is further stated that mother of the plaintiff namely Smt. Kapoori Devi has expired on 12.09.2012 and after that, portion occupied by Smt. Kapoori Devi has been taken by defendants. It is further alleged that the defendants are trying to alienate the property, in contravention of the rights of the plaintiff.
PRAYER:
3. The plaintiff has prayed for the following relief:
(3.1) That a preliminary decree may be passed in respect of the joint ancestral property bearing no. G836, and after passing preliminary decree, a local commissioner may be appointed to suggest the mode of partition of property bearing no. G836. (3.2) That a final decree of partition of the joint ancestral property bearing no. G836, may be passed by meets and bounds as may be agreed upon suggested or ordered by this Court, and parties be put in their separate possession given in the partition.
CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 4 of 11 (3.3) That a decree of possession may be passed in the favour of the plaintiff and against the defendants in respect of the part of property bearing no. G835, Shakur Pur J.J. Colony, Delhi 110034.
(3.4) That a decree of permanent injunction in the favour of the plaintiff and against the defendant may be granted to restrain the defendants from selling, transferring, alienating, parting with the possession of property bearing no. G836. (3.5) That the cost of the suit may also be awarded in the favour of the plaintiff and against the defendants.
DEFENCE:
4. Defendants were served through summons and they put their appearance through their counsel on 24.07.2013, however WS has not been filed and right to file WS was struck off vide order dated 13.10.2016.
ISSUES:
5. No issue is framed in the present matter.
EVIDENCE:
6. On the side of the plaintiff, PW1 Sh. Ram Kishan Thagela and CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 5 of 11 PW2 Ms. Anjani Devi are examined but not crossexamined as the suit has already been proceeded exparte qua the defendants. Hence, their affidavit in chiefexamination are taken to be not discredited. The plaintiff has relied upon the following documentary evidence in support of their claim:
(a) Application to slum deptt. dated 17.07.2003 for depositing rent for the property bearing no. G835 is Ex.PW1/1 (OSR)
(b) Rent receipt of DDA as on 1997 paid by the plaintiff qua the G835 is Ex.PW1/2(OSR).
(c) Complaint to SHO, PS Subash Placed dated 16.10.2011 is Ex. PW1/3(OSR).
(d) Ration card of the deponent is Ex.PW1/4(OSR).
(e) Receipt of DESU dated 16.11.1988 for applying fresh electricity meter on the premises no. G835 Ex.PW1/5 (OSR) is de exhibited and marked as Mark A.
(f) Electricity bills from January 2017 for the premises G836 Ex.PW1/6 (Colly) (OSR).
(g) Electricity bills from January 2017 for the premises G835 Ex.PW1/7 (Colly) (OSR).
(h) Water bills from 1983 to January 2017 for CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 6 of 11 the premises G836 Ex.PW1/8 (Colly) (OSR) is deexhibited and marked as Mark B. (I) Water bills for the premises G836 Ex.PW1/9 (Colly) (OSR).
(j) MTNL bills for the premises G835 Ex.PW1/10 (OSR).
(k) Passport of deponent at the premises G 835 Ex.PW1/11 (OSR).
(l) DTC I card of deponent at the premises G 835 Ex.PW1/12 (OSR).
(m) Voter ID Card of deponent at the premises G835 Ex.PW1/13 (OSR).
(n) Application to DESU dated 30.01.1989 for change of electricity meter is Ex.PW1/14(OSR) is deexhibited and marked as Mark C.
(o) Complaint to ACP Ashok Vihar dated 09.01.1998 is Ex.PW1/15 (OSR).
(p) Copy of the bill dated 31.12.2008 is Mark D.
(q) Copy of the bill dated 27.01.2012 is Mark E. CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 7 of 11
7. Defendants's witnesses have not been examined as the suit had already been proceeded exparte qua the defendant.
ARGUMENTS:
8. I have heard the arguments led by the counsel for the plaintiff, and perused the case file carefully.
9. POINTS FOR DETERMINATION ARE AS FOLLOWS:
(a) Whether plaintiff is lawfully entitled to the possession of the property bearing no. G835, Shakur Pur, JJ Colony, Delhi110034?
(b) Whether defendants have obtained by unlawful means, the possession of the suit property bearing no. G835, Shakur Pur, JJ Colony, Delhi110034, from the plaintiff?
(c) Whether plaintiff is entitled to get effected and is entitled to share on partition of the property no. G836, Shakur Pur, JJ Colony, Delhi110034 ?
Hereunder is a brief analysis of the abovertated questions for determination:
10.For claiming the relief of possession in respect of the property bearing no. G835, Shakurpur, J.J. Colony, Delhi110034 and permanent injunction against the defendant in respect of the said CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 8 of 11 property the plaintiff had proved his title but no title documents have been produced in evidence by the plaintiff. Application to Slum Department for depositing the rent of the said property (Ex.PW1/1), ration card (Ex.PW1/4), electricity bills (Ex.PW1/7), MTNL bills (Ex.PW1/10), passport (Ex.PW1/11), DTC I card (Ex.PW1/12) and voter ID card (Ex.PW1/13) are not the title documents. The plaintiff has failed to explain as to how has he acquired the possessary title over the property. Possessary title cannot be said to have been proved by mere avernments. Initial burden of proof under Section 101 of the Indian Evidence Act to establish his possessary title over the suit property was on the plaintiff and only after that, the onus could have been shifted on the defendant under Section 102 to the Indian Evidence Act to rebutt the claim of the plaintiff. Though, the defendants have been proceeded against exparte, sill the burden lies upon the plaintiff to prove his title and he cannot be allowed to take benefit of the weakness or absence of defence. Therefore, the plaintiff is unable to prove himself to be entitled to a decree of possession in his favour and against the defendant in respect of the part of the property bearing no. G835, Shakurpur, J.J. Colony, Delhi110034. Accordingly, the prayer for permanent injunction in respect of the same is also declined.
CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 9 of 11
11.With regard to the property bearing no. G836, the plaintiff has sought the relief of partition and possession. While permanent injunction is sought by the plaintiff on the basis of lawful possession, the relief of partition is sought on the basis of the ownership. The burden again lies upon the plaintiff under Section 101 of the Indian Evidence Act, firstly, to prove that the suit property is liable to be partitioned and secondly that he is entitled to a share therein. It being a residential property, the plaintiff has to prove how his mother came into possession and whether the documents, if any, were valid documents and what is the nature of the right that the plaintiff's mother had acquired over the suit property. The plaintiff has failed to do the same and accordingly, it has not been even prima facie proved as to what was interest of the plaintiff's mother in the property and as to why the said property is liable to be partitioned. Also, it needs mentioning that the plaintiff, admittingly, is not in possession over the suit property, and does not possess any title documents in respect of the suit property, despite saying that he had purchased the suit property. Even though complaints to police regarding lost documents are on record as Ex.P1/3 and Ex.PW1/15, a cloud has definitely been there on the title of the plaintiff. In such a care, the appropriate remedy was a suit for declaration and possession/ partition, with or without a consequential injunction, and the suit CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 10 of 11 in the present form is not maintainable. Accordingly, the said prayer is also declined. Therefore, the suit of the plaintiff stands dismissed. No order as to costs.
12. File be consigned to the record room after necessary compliance.
Announced in the open Court on 06.08.2018 (ABHINAV PANDEY) CIVIL JUDGE (NORTH) ROHINI/DELHI CS No. 534410/2016 Ram Kishan Thagela vs. Vishnu Ram Thagela &Ors. Page No. 11 of 11