Delhi District Court
Sh. Hari Ram vs Sh. Dharam Bir on 29 November, 2019
Hari Ram V. Dharam Bir & Ors.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO. : 89/2015
UNIQUE CASE ID NO. : 615552/2016
IN THE MATTER OF :
Sh. Hari Ram
S/o Late Diwan Chand
R/o House No.430,
Gali No. 15, Chander Vihar,
Sant Nagar, Burari, Delhi. ....Plaintiff
VERSUS
1.Sh. Dharam Bir S/o Sh. Late Diwan Chand
2. Braham Parkash S/o Sh. Late Diwan Chand
3. Dharmender S/o Sh. Late Diwan Chand
4. Rajinder S/o Sh. Late Diwan Chand Suit No. 89/2015 Page 1 of 19 Hari Ram V. Dharam Bir & Ors.
5. Sanjeev Kumar S/o Sh. Late Diwan Chand
6. Bimlesh D/o Sh. Late Diwan Chand
7. Rasmo Devi W/o Sh. Late Diwan Chand All residents of bearing Khasra No. 18/3, situated the area of Village Gali No.6 Chandan Vihar, West Sant Nagar, Burari, Delhi110084.
8. Rakesh S/o Not known
9. Vicky S/o Not known All residents of 458/A17, Ganga Ram Mandawali Shakarpur, Delhi. ....Defendants SUIT FOR DECLARATION, PARTITION, POSSESSION AND PERMANENT INJUNCTION ON BEHALF OF THE PLAINTIFF Date of institution of the Suit : 23/09/2014 Date on which Judgment was reserved : 01/10/2019 Date of Judgment : 29/11/2019 Suit No. 89/2015 Page 2 of 19 Hari Ram V. Dharam Bir & Ors.
:: J U D G M E N T ::
By way of present judgment, this Court shall adjudicate upon suit for declaration, partition, possession and permanent in junction filed by the plaintiff against the defendants. CASE OF THE PLAINTIFF AS PER PLAINT Succinctly, the necessary facts for just adjudication of the present suit, as stated in the plaint, are as under: (1) The plaintiff is the brother of defendants no. 1 to 6 and son of defendant no. 7. The plaintiff is the son of Late Shri Diwan Chand, who died intestate on 02.06.2014. Late Diwan Chand is survived by the following legal heirs:
(a) Hari Ram (Son)
(b) Braham Prakash (Son)
(c) Dharam Bir (Son)
(d) Dharmender (Son)
(e) Rajinder (Son)
(f) Sanjeev Kumar (Son)
(g) Bimlesh (Daughter)
(h) Rasmo Devi (Wife) are the only "ClassI legal heirs of Late Diwan Chand, as en visaged under Section 8 of the Hindu Succession Act, 1956. (2) The plaintiff had purchased a plot of land measuring 50 sq. yds. bearing Khasra No. 18/3, situated in the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali Suit No. 89/2015 Page 3 of 19 Hari Ram V. Dharam Bir & Ors.
No.6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084 from Sh. Hitender Giri. The plaintiff was unable to look after and supervise the above mentioned property personally, therefore, he had executed a General Power of Attorney dated 01.12.2009 in favour of his father namely Late Sh. Diwan Chand in December, 2009. The plaintiff had not sold the property to his father. The plaintiff had also not executed any registered document regarding title of the above mentioned property in favour of his father.
(3) The father of plaintiff and defendants no. 1 to 6 and wife of defendant no. 7 had purchased a plot of land measuring 50 sq. yds. bearing Khasra No. 18/3, situated the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No.6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084 from Sh. Hitender Giri. The father of plaintiff is having the possession of 100 sq. yds. of the suit property by way of own ership as well as by way of care taking. Out of 100 sq. yds., the father of plaintiff had possessionery right over the prop erty of 50 sq. yds. and ownership right of 50 sq. yds. (4) After the death of father of the plaintiff and defendants no. 1 to 6 and wife of defendant no. 7, the suit property of 100 sq. yds. was in the possession of all the defendants. The suit property still remains in the name of Late Diwan Chand and has neither been transferred, alienated etc., in any manner, whatsoever, nor it has been partitioned between the legal Suit No. 89/2015 Page 4 of 19 Hari Ram V. Dharam Bir & Ors.
heirs.
(5) The plaintiff and defendants being ClassI heirs, as per sched ule, they take simultaneously and the suit property is to be distributed, as provided under Section 10 of the Hindu Suc cession Act. The plaintiff has right in the property in the fol lowing manner: (A) 50 Sq. Yds. bearing Khasra No. 18/3, situated the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No.6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084, which was given by plaintiff to his father for care taking.
(B) 1/8th share in remaining 50 sq. yds. bearing Khasra No. 18/3, situated in the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No. 6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084. (6) After the death of plaintiff father as well as the time progress, some differences arose between the plaintiff and all the defen dants regarding the partition and ownership of the suit prop erty. Various oral talks were made between the parties for settling the matter amicably but no fruitful purpose was served except further differences arise between the parties to the suit property.
(7) When the plaintiff had approached all the defendants for par tition of the suit property, then it was told by the defendants no. 1 and 2 that Late Sh. Diwan Chand had entered into an Suit No. 89/2015 Page 5 of 19 Hari Ram V. Dharam Bir & Ors.
Collaboration Agreement for construction of the suit property upto 4th floor with defendants no. 8 and 9 and accordingly, Late Diwan Chand had given 1st and 4th floors to defendants no. 8 and 9.
(8) The plaintiff has no knowledge about the Collaboration Agree ment. The plaintiff reserves his right to amend the plaint on obtaining the information on the basis of Written Statement filed by the defendants. The plaintiff has issued Legal Notice to defendants no. 8 and 9 to supply the entire documents per taining to the above mentioned property alongwith copy of Collaboration Agreement.
(9) All the defendants approached the plaintiff on 25.08.2014 and defendants threatened the plaintiff to sell entire suit property. It is apprehension in the mind of the plaintiff that all the de fendants in connivance with each other tried to sell out the entire suit property to someone else as a result, the plaintiff could not get his right in the suit property. The plaintiff is un der the continues threats of being deprived from the legal pos session of the suit property by the hands of the defendant and his associates, who is having an intention to dispossess the plaintiff from the suit property. Hence, the plaintiff has filed the present suit against the defendants. CASE OF THE DEFENDANTS NO.1, 2, 3, 5, 6 AND 7 AS PER WRITTEN STATEMENT Succinctly, the case of the defendants no. 1, 2, 3, 5, 6 Suit No. 89/2015 Page 6 of 19 Hari Ram V. Dharam Bir & Ors.
and 7, as per joint Written Statement, is as under: (1) The plaintiff has no locus standi to file the present suit as the 50 sq. yds. land, out of Khasra No.18/3, situated at Village Kamalpur Majra Burari, Delhi abadi known as Chandan Vihar (one part), as alleged, which was actually purchased by Late Diwan Chand in the name of plaintiff being eldest son of his family out of his earning and resources and again it was law fully purchased by Late Diwan Chand, the father of defen dants no. 1, 2, 3, 5, 6 and 7 and others from the plaintiff, as per mutual family settlement. Hence, the distribution of prop erty has arrived among the legal heirs during the life time of Late Diwan Chand. The defendants herein have received the property as respective share from his late father during his life time. It was previously owned by Sh. Hitender Giri, son of Om Prakash, R/o 5, Baba Colony, Burari, Delhi, who had lawfully executed requisite documents like GPA, Agreement to Sell, Af fidavit, Receipt and Deed of Will, all dated 06.05.1996 in favour of Late Diwan Chand and plaintiff but the possession of both the plots (50 sq. yds. each) was with Diwan Chand and defendants herein. The part of plaintiff land was again purchased by Late Diwan Chand by paying valuable consider ation of Rs.1,00,000/ only on 01.12.2009 by virtue of G.P.A., Agreement to Sell & Purchase, Affidavit, Possession Letter, Re ceipt and Will and of which, peaceful possession was already in existence with Late Diwan Chand and defendants herein.
Suit No. 89/2015 Page 7 of 19In course of mutual, oral family settlement, the plaintiff has got a more valuable property, measuring 75 sq. yds., situated at Chandan Vihar, House No.430, Gali No.9, West Sant Nagar, Delhi, which was purchased by Late Diwan Chand in the name of plaintiff by selling his owned property bearing no.J 11/89, J.J. Colony, Wazirpur, Delhi, hence, the final settle ment of distribution of property of Late Diwan Chand has ar rived among during his life time. The plaintiff has already got more share with comparison to the other legal heirs. One an cestral property situated at Malkaganj has been illegally occu pied by the plaintiff while the other illegally occupied by de fendant no.4.
(2) After sale of the property to Sh. Diwan Chand, the plaintiff ceased to have any right, title or interest in the suit property, the present suit has been filed by the plaintiff with dishonest and malafide intention only to harass and pressurize the de fendants herein to extract some money illegally from them. (3) The plaintiff, without seeking the relief of cancellation of sale documents dated 01.12.2009, executed by the plaintiff in favour of Late Diwan Chand, the present suit is not maintain able because the plaintiff ceased to have any right, title or in terest in the suit property w.e.f. 01.12.2009 and after family settlement arrived among the legal heirs of his father, the plaintiff has received the valuable consideration of Rs.1,00,000/ from his late father and possession was already Suit No. 89/2015 Page 8 of 19 Hari Ram V. Dharam Bir & Ors.
with Late Diwan Chand and defendants herein. The plaintiff has never objected for the same.
(4) The present suit is also barred under Section 41 & 53A of the Transfer of Property Act, 1882. The documents were executed, registered and entire sale consideration was received by the plaintiff and possession was already given to Sh. Diwan Chand and defendants herein, the suit is barred under law, the suit has been filed in collusion with defendant no.4 and he has been made proforma defendant with vested interest. (5) The property/ plot in question is situated in the revenue es tate of Village Kamalpur Majra, Burari, measuring 50 sq. yds., out of khasra no. 18/3 has never been demarcated or mu tated on the revenue record by the plaintiff in his name and never been paid any house tax, amounts etc. or/ and not hav ing a proof of possession or remained in possession at any point of time of the suit land. All the documents are notarized and have no evidentiary value in the eyes of law and no right has been conferred by the title documents, hence, the plaintiff is not the owner of the property or liable to get any share of the property, which was selfacquired property of his late fa ther.
(6) The present suit is admittedly relating to immovable property but the description, dimension and surrounding of the prop erty land has not been correctly made as there is no demarca tion done by the revenue authority of the said part of khasra, Suit No. 89/2015 Page 9 of 19 Hari Ram V. Dharam Bir & Ors.
which is mandatory requirement of Order 6 CPC. (7) On merits, the contents of the plaint have been denied and it has been submitted that the property, which was purchased in the name of plaintiff named being elder son of his father and entire consideration was paid by Late Diwan Chand to Sh. Hitender Giri, the previous owner. At the time the entire property was joint and undivided. But later on, the father has made mutual family settlement among the legal heirs and no body had any objection regarding the same and still illegally occupied one ancestral property.
(8) It is denied that after the death of father, the defendants no. 1 to 6 and wife of Late Sh. Diwan Chand have got possession of 100 sq. yds., in fact, the property was already remained in possession of Late Diwan Chand and defendants herein since the date of purchase of the property. It has been prayed to dismiss the suit of plaintiff with heavy cost. EXPARTE PROCEEDINGS Initially, defendants no. 1, 2, 3, 5, 6 and 7 had appeared and filed their joint Written Statement but subsequently, they stopped appearing and accordingly, vide order dated 08.10.2015, the defendants no. 1, 2, 3, 5, 6 and 7 were proceeded exparte.
Defendant no.4 had appeared for a few days and there after, he stopped appearing and accordingly, defendant no.4 was also proceeded exparte vide order dated 08.10.2015.
Summons for settlement of issues were issued to the de Suit No. 89/2015 Page 10 of 19 Hari Ram V. Dharam Bir & Ors.
fendants no. 8 & 9 but despite service of summons, they have failed to appear in the Court. On 03/03/2016, none has appeared on be half of the defendants no. 8 & 9 and defendants no. 8 & 9 were pro ceeded exparte vide order dated 03/03/2016. REPLICATION AND ISSUES Plaintiff has not filed any replication to the joint Written Statement of defendants no. 1, 2, 3, 5, 6 and 7.
From the pleadings of the parties, following issues were framed vide order dated 27/09/2017: ISSUES (1) Whether the plaintiff has no locus standi to file the present suit in view of the preliminary objection no.3 of the written statement? OPD1, 2, 3, 5, 6 & 7 (2) Whether the present suit is barred by section41 and 53A of the Transfer of Property Act? OPD1, 2, 3, 5, 6 & 7 (3) Whether the suit of the plaintiff is bad for misjoinder and nonjoinder of necessary parties? OPD1, 2, 3, 5, 6 & 7 (4) Whether the plaintiff is entitled for the decree of declaration, as prayed for? OPP (5) Whether the plaintiff is entitled for the decree of partition, as prayed for? OPP (6) Whether the plaintiff is entitled for the decree of possession, as prayed for? OPP (7) Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP Suit No. 89/2015 Page 11 of 19 Hari Ram V. Dharam Bir & Ors.
(8) Relief.
EVIDENCE OF THE PLAINTIFF Plaintiff, in order to prove his case, has led plaintiff evi dence and examined himself as PW1. The PW1 has filed his evi dence by way of affidavit, wherein he reiterated and reaffirmed the contents of the plaint. The PW1 in his testimony has relied upon the following documents:
(i) Ex. PW1/A is the photocopy of Death Certificate of father of the plaintiff.
(ii) Ex.PW1/B (Colly.) are the photocopies of title documents of plaintiff.
(iii) Ex.PW1/C (Colly.) are the photocopies of title documents of Late Sh. Diwan Chand.
(iv) Ex.PW1/D (Colly.) are the photocopies of the title documents of Late Sh. Diwan Chand.
(v) Ex.PW1/E is the Site Plan of the suit property.
(vi) Ex.PW1/F (Colly.) is the copy of Legal Notice and its receipt.
This Court heard the exparte final arguments advanced by Ld. counsel for the plaintiff. I have perused the material avail able on record.
Suit No. 89/2015 Page 12 of 19FINDINGS & CONCLUSION OF THE COURT ISSUES NO. 2 AND 3 (2) Whether the present suit is barred by section41 and 53A of the Transfer of Property Act? OPD1, 2, 3, 5, 6 & 7 (3) Whether the suit of the plaintiff is bad for misjoinder and nonjoinder of necessary parties? OPD1, 2, 3, 5, 6 & 7 The onus to prove the aforesaid issues no. 2 and 3 was upon the defendants no. 1, 2, 3, 5, 6 and 7 but the said defendants have not led any evidence to prove the aforesaid issues. The afore said defendants have also not mentioned in their joint Written Statement that who are the necessary parties, who have not been joined in the present case. The provision of Section 53A of the Transfer of Property Act would be applicable only in a case where there is a written agreement between the parties and the purchaser has entered into the possession on the basis of the said written agreement. The aforesaid defendants were further required to show that they are ready and willing to perform their part of the contract under the said written agreement. The defendants are pleading Section 53A of the Transfer of Property Act on the basis of posses sion of the father of the plaintiff and defendants no. 1 to 6. The fa ther of the said parties has already expired and the valuable rights created in the said property in favour of father of the parties de volved upon the ClassI legal heirs of Late Shri Diwan Chand. None of the conditions have been fulfilled in the present case either of Suit No. 89/2015 Page 13 of 19 Hari Ram V. Dharam Bir & Ors.
Section 53A of the Transfer of Property Act or of Section 41 of the Transfer of Property Act qua the defendants. The aforesaid defen dants have neither placed on record nor proved the alleged written agreement by which the defendants are claiming the protection un der Section 53A of the Transfer of Property Act. The defendants have neither pleaded nor proved the provision under Section 41 of the Transfer of Property Act.
Accordingly, the issues no. 2 and 3 are decided against the aforesaid defendants and in favour of the plaintiff.
ISSUES NO. 1 & 4 TO 7(1) Whether the plaintiff has no locus standi to file the present suit in view of the preliminary objection no.3 of the written statement? OPD1, 2, 3, 5, 6 & 7 (4) Whether the plaintiff is entitled for the decree of declaration, as prayed for? OPP (5) Whether the plaintiff is entitled for the decree of partition, as prayed for? OPP (6) Whether the plaintiff is entitled for the decree of possession, as prayed for? OPP (7) Whether the plaintiff is entitled for the decree of permanent injunction, as prayed for? OPP The onus to prove the aforesaid issues no. 1 and 4 to 7 was upon the plaintiff. The plaintiff has placed on record the General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt all dated 06.05.1996 (Ex.PW1/B - Colly.). The plaintiff Suit No. 89/2015 Page 14 of 19 Hari Ram V. Dharam Bir & Ors.
claims that he had purchased 50 sq. yds. of the property bearing Khasra No. 18/3, situated in the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No.6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084 by means of the said documents on the said date from one Shri Hitender Giri. The plaintiff has further placed on record the General Power of Attorney, Agreement to Sell, Affidavit, Will, Affidavit, Receipt and Possession Letter all dated 01.12.2009 (Ex.PW1/C - Colly.). The said documents reveal that the said property has been sold to Sh. Diwan Chand by the plaintiff by the said documents. No doubt that the said documents were of 01.12.2009 and i.e. on or after 24.09.2001 but when the plaintiff himself is relying upon those documents, whereby, the property has been sold to Late Sh. Diwan Chand, father of the plaintiff and defendants no.1 to 6, this Court came to the conclusion that the plaintiff has trans ferred his rights in favour of Late Shri Diwan Chand. Accord ingly, Late Sh. Diwan Chand was not the absolute owner in stricto sensu but got the valuable rights in the aforesaid property by means of the said documents.
The plaintiff has also relied upon the General Power of Attorney, Agreement to Sell, Affidavit, Will and Receipt all dated 06.05.1996 (Ex.PW1/D - Colly.). The plaintiff claims that his fa ther Late Sh. Diwan Chand had purchased the 50 sq. yds. of the property bearing Khasra No. 18/3, situated in the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No.6, Suit No. 89/2015 Page 15 of 19 Hari Ram V. Dharam Bir & Ors.
Chandan Vihar, West Sant Nagar, Burari, Delhi110084 by means of the said documents on the said date from one Shri Hi tender Giri. The perusal of Site Plan reveals that both the proper ties have been combined together and total four floors above the stilt floor have been built upon the said land. The said land is pooled in a common plot. The defendants no. 1, 2, 3, 5, 6 and 7 have taken the following defence: "The plaintiff has no locus standi to file the present suit as the 50 sq. yds. land, out of Khasra No.18/3, situated at Village Kamalpur Majra Burari, Delhi abadi known as Chandan Vihar (one part), as alleged, which was actually purchased by Late Diwan Chand in the name of plaintiff being eldest son of his family out of his earning and re sources and again it was lawfully purchased by Late Di wan Chand, the father of defendants no. 1, 2, 3, 5, 6 and 7 and others from the plaintiff, as per mutual family set tlement. Hence, the distribution of property has arrived among the legal heirs during the life time of Late Diwan Chand. The defendants herein have received the prop erty as respective share from his late father during his life time. It was previously owned by Sh. Hitender Giri, son of Om Prakash, R/o 5, Baba Colony, Burari, Delhi, who had lawfully executed requisite documents like GPA, Agreement to Sell, Affidavit, Receipt and Deed of Will, all dated 06.05.1996 in favour of Late Diwan Chand and plaintiff but the possession of both the plots (50 sq. yds. each) was with Diwan Chand and defendants herein. The part of plaintiff land was again purchased by Late Diwan Chand by paying valuable consideration of Rs.1,00,000/ only on 01.12.2009 by virtue of G.P.A., Agreement to Sell & Purchase, Affidavit, Possession Let ter, Receipt and Will and of which, peaceful possession Suit No. 89/2015 Page 16 of 19 Hari Ram V. Dharam Bir & Ors.
was already in existence with Late Diwan Chand and de fendants herein. In course of mutual, oral family settle ment, the plaintiff has got a more valuable property, mea suring 75 sq. yds., situated at Chandan Vihar, House No.430, Gali No.9, West Sant Nagar, Delhi, which was purchased by Late Diwan Chand in the name of plaintiff by selling his owned property bearing no.J11/89, J.J. Colony, Wazirpur, Delhi, hence, the final settlement of distribution of property of Late Diwan Chand has arrived among during his life time. The plaintiff has already got more share with comparison to the other legal heirs. One ancestral property situated at Malkaganj has illegally oc cupied by the plaintiff while the other illegally occupied by defendant no.4."
The said defence was required to be proved by them. The said defendants were proceeded exparte and the aforesaid defen dants have also not crossexamined PW1 to contradict or disprove the case of the plaintiff. The aforesaid defendants have chosen not to appear and when the case of the plaintiff has gone unchal lenged, uncontroverted, unrebutted and duly corroborated by the documents, this Court has no reason to disbelieve the version of the plaintiff. The plaintiff has claimed that Late Sh. Diwan Chand is survived by the plaintiff and defendants no. 1 to 7. Accordingly, there are 8 shareholders in the said property in view of Sections8 read with Sections 9 & 10 of the Hindu Succession Act, which is to tally admeasuring 100 sq. yds. The plaintiff got the 1/8th share in the said property after the death of Sh. Diwan Chand. The defen dants no. 8 & 9 have failed to appear and they have not contested Suit No. 89/2015 Page 17 of 19 Hari Ram V. Dharam Bir & Ors.
the claim that they got any right by way of any Collaboration Agree ment. The plaintiff is entitled to 1/8th share and defendants no. 1 to 7 are entitled to 1/8th share each in the said property, total ad measuring 100 sq. yds.
The decree of possession cannot be passed at this stage without ascertaining whether the property is divisible by metes and bounds. The final decree of partition can be passed only after tak ing into consideration the report of the Local Commissioner. Ac cordingly, issues no. 5 and 6 are required to be deferred and they will be considered only at the time of passing of final decree for par tition.
QUESTION OF INJUNCTION The defendants no. 1, 2, 3, 5, 6 and 7 are claiming exclusive ownership in their favour in the aforesaid property and thus, there is definitely threat to the plaintiff that the said defendants may not create any third party right or part with the possession of the suit property to some third party. Considering overall facts and circumstances of the present case and on the discussions made hereinabove, the plaintiff has also been able to prove this issue by cogent and convincing evidence. However, in order to preserve the suit property, the direction is required to be passed against both the parties.
Accordingly, in view of the aforesaid discussions, the issues nos.1, 4 and 7 are decided against the defendants and in favour of the plaintiff in the aforesaid terms and issues no. 5 and 6 Suit No. 89/2015 Page 18 of 19 Hari Ram V. Dharam Bir & Ors.
are deferred to be adjudicated at the time of passing of the final decree.
RELIEF From the discussions, as adumbrated hereinabove, I hereby pass the following FINAL ORDER (1) The Preliminary decree is passed and it is declared that the plaintiff is entitled to 1/8th share in the property bearing Khasra No. 18/3, situated in the area of Village Kamal Pur Mazra, Burari, Delhi, abadi now known as Gali No.6, Chandan Vihar, West Sant Nagar, Burari, Delhi110084 total admeasuring 100 sq. yds. and defendants no. 1 to 7 are respectively entitled to 1/8th share each in the aforesaid property.
(2) A decree of Permanent Injunction is also passed and the plaintiff and defendants are restrained from raising any construction and/or creating any third party interest in the suit properties.
Preliminary decreesheet be prepared accordingly. Announced in the open court on this 29th Day of November, 2019.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi Suit No. 89/2015 Page 19 of 19