Delhi District Court
Shri Ram Bhal vs Shri Ram Roop on 14 September, 2016
IN THE COURT OF SH. SHAILENDER MALIK:ADJ16(C)
TIS HAZARI COURTS: DELHI
CS No. 41/16
New No. 618284/16
Shri Ram Bhal
S/o Shri Paras Nath
R/o C3/2087, Ground Floor,
Gali No. 17, Near Railway Phatak,
Village Basai Darapur
(Prem Nagar) New Delhi110008 .... Plaintiff
vs.
Shri Ram Roop
S/o Shri Paras Nath
R/o C3/2087, Ground Floor,
Gali NO. 17, Near Railway Phatak
Village Basai Darapur,
(Prem Nagar) New Delhi110008 .... Defendant
Date of filing of the Suit : 06.09.2011
Date of reserving the Judgment/Order : 07.09.2016
Date of passing the Judgment/Order : 14.09.2016
JUDGMENT
1 This is a suit for declaration, partition and permanent
injunction.
2 Plaintiff and defendant are stated to be real brothers.
Plaintiff and defendant had purchased a peace of land bearing No.
C3/2087 measuring 73 sq. yds. out of the Khasra No. 403 Gali No.
CS No. 41/16 Page no. 1 /16
17, Village Basai Darapur, Prem Nagar, by registered GPA dated
03.06.2005 from one Sh.Pawan Kumar son of Sh.Bihari Lal. Case
of plaintiff, however is that after taking the above said property,
possession was also taken from the erstwhile owner and
thereafter, plaintiff and defendant jointly raise the constructions
over the above said land for which plaintiff and defendant spend
equally for construction. It is stated that plaintiff and defendant
constructed five rooms, wash room etc. on the ground floor and
seven rooms and wash rooms etc. at the first floor.
3 As per the portion shown red and green in the site plan
annexed, it is stated that plaintiff and defendant started residing
on the ground floor and first floor respectively of the above said
property and two rooms were let out, with the agreement that
rent arising their from will be distributed equally to plaintiff and
defendant.
4 It is stated that since plaintiff had to spent more time in his
business in Rivar (Rajasthan), in his absence, defendant started
collecting rent forcibly from the tenants. Defendant and his son
also allegedly started threatening plaintiff's wife and daughter.
Initially, plaintiff stated to have not raised any objection
regarding nonpayment of rent to him. However, later when
CS No. 41/16 Page no. 2 /16
plaintiff requested the defendant to pay his half share in the
rental amount, defendant allegedly became dishonest and did not
pay a single penny out of that rental income. Plaintiff when
requested for partition of the property, defendant flatly refused
for partition. It is alleged that instead of making payment of one
half share of rental amount and partition of the property,
defendant allegedly threatened plaintiff to vacate the portion of
the suit property and started claiming to be the absolute owner of
the property. Thus, plaintiff stated to have sent a complaint to
SHO on 13.06.2011. it is further alleged that on 15.08.2011,
defendant and his son planned to inflict grievous injuries to
plaintiff and his family members and threatened to dispossess
them. Thus, present suit was filed seeking decree of declaration to
declare plaintiff to be the owner of one and half share of suit
property bearing no. C3/2087 measuring 73 sq. yds. out of the
Khasra No. 403 Gali No. 17, Village Basai Darapur, Prem Nagar.
Plaintiff has also prayed for decree of partition to partition the
property by metes and bounds. Plaintiff further prayed for decree
of permanent injunction to restrain defendant, his associates etc.
from dispossessing plaintiff from the portion of the property in
question.
5 Defendant filed the written statement taking the objection
CS No. 41/16 Page no. 3 /16
that suit property is not maintainable. It is pleaded that plaintiff
has intentionally withheld certain correct and true particulars. It
is stated that plaintiff has willfully given incomplete description
of the property in question. The given particulars as mentioned in
the plaint are not sufficient enough to identify the suit property.
Moreover, suit has not been properly valued for the purpose of
court fees and jurisdiction as in para18 of the plaint, plaintiff has
though valued the subject matter of the suit to be Rs.19 lacs,
however, has not furnished the appropriate court fee for relief of
partition and declaration. Moreover, the market value of the suit
property is Rs. 30 lacs, as such it was pleaded that court has no
pecuniary jurisdiction to entertain the suit.
6 It is pleaded that suit is devoid of cause of action. Plaintiff
though is seeking relief of injunction against his dispossession
from portion of the property in question which is neither described
in the plaint nor particulars were given for specific identity of the
property in question. While taking the objection that suit for the
relief of partition is not maintainable, it is pleaded that plaintiff
has not joined factory jointly owned by plaintiff and defendant
having lathe machines which was established by the plaintiff and
defendant jointly at D105, Sudarshan Park, New Delhi in July
1998, wherein plaintiff and defendant had been working jointly.
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Defendant stated to have invested Rs.35,000/ jointly with the
plaintiff at that time. Said factory, thereafter was shifted to
another premises Basai Darapur. Both the plaintiff and defendant
were sharing earning out of that factory and were maintaining
joint kitchen.
7 It is further mentioned in the written statement that
subsequently that factory was shifted to another premises in
Mayapuri in 2005 as it was getting difficulty for running two
families out of the earning of that factory. Defendant, therefore,
found a job with his employer and plaintiff shifted his factory to
Bhiwari in a rented accommodation. It is stated that plaintiff
stopped rendering the account of that factory on the pretext that
land has to be purchased for the factory and, therefore, in order to
save funds, defendants must not demand any share out of the
profits of the factory.
8 It is further mentioned in the written statement that
property in question was purchased by the defendant. Since
defendant was short of funds, he requested plaintiff for
assistance. Plaintiff, accordingly, lent Rs. 20,000/ to defendant
but he wanted defendant to include his name in the title
document of the property for security of his money. It is stated
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that since defendant had been working with plaintiff and had
good understanding, therefore, included his name in the title
deed, although he had paid only amount of Rs.20,000/ out of total
sale consideration of Rs.7,000/. Plaintiff, therefore, state to have
no right in property in question.
9 Case of the plaintiff has been denied. It is specifically denied
that plaintiff jointly took the possession of plot in question with
defendant or that plaintiff and defendant jointly raise the
construction. It is pleaded that entire construction was raised by
the defendant with his own funds. It is pleaded that plaintiff was
living in the rented accommodation. It is also denied that rental
income arising out of property was being jointly received and
shared.
10 Replication was filed whereby pleadings of the defendant
were controverted and case of the plaintiff was reiterated.
11 On the basis of the pleadings as come on the record,
following issues were framed on 21.01.2013:
1.Whether the plaintiff is entitled for decree of declaration thereby declaring the plaintiff as owner of half share of the property bearing no C3/2087, admeasuring 73 sq. yards our of Khasra No. 403, Gali No. 17, Near Railway Phatak, Village Basai Darapur, CS No. 41/16 Page no. 6 /16 New Delhi? OPP
2. Whether the plaintiff is entitled for decree of partition as prayed for?OPP
3. Whether the plaintiff is entitled for decree of permanent injunction as prayed for in prayer "C" against defendant? OPP
4. Whether this court has no pecuniary jurisdiction to entertain, try ad decide the present suit? OPD
5. Whether the suit has not been properly valued for the purpose of court fees? OPD
6. Relief.
12 On behalf of the plaintiff though affidavits of two witnesses were tendered in evidence although only PW1 was duly cross examined and evidence of PW2 was not completely recorded regarding which plaintiff Ram Behal had given statement on 05.03.2016 for not completely examining PW2. On behalf of the defendant, defendant has appeared in the witness box as DW1.
13 I have heard counsels for the parties and have gone through the record. My issue wise findings is as follows: CS No. 41/16 Page no. 7 /16 14 ISSUE NO. 5 (Whether the suit has not been properly valued for the purpose of court fees?) This issue is being taken up first as same was framed on the objection taken on behalf of defendant to the effect that suit has not been properly valued for the purpose of court fees. Plaintiff was required to furnish court fee on advalorum valuation of subject matter of the suit, for the purpose of relief of partition and declaration.
15 Although, plaintiff is seeking relief of partition by metes and bounds for onehalf share in the property in question. As well as also seeking the relief of declaration to declare plaintiff to be owner of half share of suit property. Evidently, these two reliefs are overlapping. If plaintiff is seeking the relief of partition , if case of the plaintiff is proved by necessary implication his share of ownership in the property would have automatically ascertained. Without commenting much on this aspect, however, for the purpose of court fee in a case for partition, law is well settled. The Court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of the suit properties by metes and bounds, has to be examined in the context of Section 7 of the Court fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow:--
CS No. 41/16 Page no. 8 /16"7. Computation of fees payable in certain suits.--The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
......
(iv) In suits--
.....
to enforce a right to share in joint family property--(b) to enforce the right to share in any property on the ground that it is joint family property;
.....
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal."
16 Further, Section 8 of the Suits Valuation Act, 1887 stipulates that in Suits other than those referred to in the Court fees Act, Section 7, paragraphs V, VI, IX and X, Clause (d), Court fees is payable ad valorem, the value as determinable for the computation of Court fees and the value for purpose of jurisdiction shall be the same. Thus, Section 7(iv)(b) of the Act prescribes the Court fees at which the relief sought is valued in the plaint and under Section 8 of the Suits Valuation Act, 1987, the plaintiff is required to value the Suits for the purpose of Court fees and jurisdiction identically except for the exceptions provided for under Section 7 of the Court fees Act, 1870.
17 It is settled law that in a suit for partition, the court fees to CS No. 41/16 Page no. 9 /16 be paid if joint possession is pleaded by the plaintiff on the basis that he is the coowner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of coowners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.
18 Once there is a complete ouster of a joint owner from possessory management of or any other direct involvement in the affairs of immovable properties, it would be necessary for such a person to pay the requisite advalorem court fees. In the case entitled Sudershan Kumar Seth v. Pawan Kumar Seth & Ors., reported as 124 (2005) DLT 305, it was held that it is settled law that in order to decide as to what relief has been claimed by the plaintiff, the entire plaint has to be read and only on perusal thereof can it be inferred that the plaintiff is in possession of any of the properties to be partitioned, and if so, CS No. 41/16 Page no. 10 /16 then the court fees is payable under Article 17(6) of Schedule II of the court fees Act, i.e., fixed court fees at the time of institution of the suit. However, if the conclusion is contrary thereto, then the plaintiff has to pay the court fees under Section 7(iv)(b) of the court fees Act, i.e., on the value of the plaintiff's share. Reference in this regard can be given of pronouncements in Jamila Khatoon v. Saidul Nisa, AIR 1999 Del. 48; Smt. Prakash Wati v. Smt. Daywanti, 42 (1990) DLT 421=AIR 1999 Del. 48;
Ms. Ranjana Arora v. Satish Kumar Arora, 80 (1999) DLT 537; Harjit Kaur & Ors. v. Jagdeep Singh Rikhy, 116 (2005) DLT 392=2004 (VII) AD (Del.) 567; Rajiv Oberoi & Ors. v.
Santosh Kumar Oberoi & Ors., 2005 (80) DRJ 120 & Smt. Sonu Jain v. Shri Rohit Garg & Ors., 128 (2006) DLT 633).
19 Therefore, in view of above said discussion, if on reading the plaint and the evidence of plaintiff, it is consistent case of the plaintiff that he is in possession of property in question, in such situation, the case would be covered under Article 17(6) of Schedule II of Court Fee Act, and therefore, fixed court fees is to be furnished. Ld. Counsel for the plaintiff has rightly relied upon the judgment of Delhi High Court in "V.S.K.Sood vs. Veer Surinder Singh Berri " decided on 26.08.2013 LAWS (DLH) CS No. 41/16 Page no. 11 /16 2013 8 164. Thus, I find that plaintiff has furnished appropriate court fee. Issue accordingly decided in favour of plaintiff and against the defendant.
20 ISSUE NO. 4(Whether this court has no pecuniary jurisdiction to entertain, try ad decide the present suit?) Defendant had also taken the objection in the WS that this court has no pecuniary jurisdiction to entertain the suit as value of the suit property is more than 30 lacs. Since onus to prove this issue was on the defendant, no evidence has been led to establish the valuation of suit property as mentioned above. Even otherwise, at present pecuniary limits of this court has already been enhanced and a suit involving property worth Rs..30 lacs is also lies in this court. Therefore, issue stands decided against the defendant and in favour of plaintiff.
21 ISSUE NO. 1(Whether the plaintiff is entitled for decree of declaration thereby declaring the plaintiff as owner of half share of the property bearing no C3/2087, admeasuring 73 sq. yards our of Khasra No. 403, Gali No. 17, Near Railway Phatak, Village Basai Darapur, New Delhi? ) Onus to prove this issue is on plaintiff. Plaintiff is seeking CS No. 41/16 Page no. 12 /16 to be declared owner by onehalf share of property in question. Plaintiff in order to establish his case has appeared in the witness box as PW1. In his affidavit of examination in chief, PW1 has reproduced all those facts as are mentioned in the plaint and discussed above. PW1 says he and defendant being his real brother purchased the property in question measuring 73 sq. yds. Jointly in their name from the previous owner Pawan Kumar s/o Bihari Lal by way of registered General Power of Attorney (GPA) Ex.PW1/1 for sale consideration of Rs. 70,000/. PW1 says that previous owner also handed over the possession of the property to them and thereafter both plaintiff and defendant raised construction over the said land upto first floor with their joint funds.
22 If we concentrate only this aspect of the case of the plaintiff for the time being without going into other facts as come in the evidencec of PW1. It is evident plaintiff claims that he and his brother jointly purchased the property in question on the basis of a document GPA Ex.PW1/1. First of all, sale of an immovable property cannot be affected by any GPA. As per Section 54 of Transfer of Property Act a sale of immovable property can be affected only by a registered sale deed. A GPA does not create or convey any legal right or title in respect of an immovable CS No. 41/16 Page no. 13 /16 property. No doubt, GPA executed for consideration amounts to a irrevocable power of attorney in terms of section 202 of Indian Contract Act. But, a document of power of attorney per se does not create any title in property.
23 No doubt, this document Ex.PW1/1 has not been substantively disputed even by the defendant. Though defendant has taken altogether different defence in WS by building that defendant had purchased the property in question , however, since he was short of money therefore, he requested plaintiff being his brother and working under joint business with him to financially assist him. Upon which plaintiff lent Rs.20,000/ to defendant but put a condition to include his name in the title deed of property for security of money. Although, such defence has not been proved by the defendant, firstly, being only oral evidence regarding a documentary evidence and therefore barred u/s 91 & 92 of Evidence Act. Secondly, defendant has not been able to prove such defence by any cogent evidence. Facts remains GPA Ex.PW1/1 might be an admitted document but this document does not create any legal title in property. In this context , if we examine the facts and evidence of the case , first thing to be noted here is that plaintiff claims to have purchased the property from previous owner Pawan Kumar s/o Bihari Lal but no document of title of previous owner has been placed on record to establish his CS No. 41/16 Page no. 14 /16 ownership. One can transfer a good title in property to other only upon proof of such title in his favour. In the absence of any evidence on the record to show that Pawan Kumar was owner of the property in question. This court cannot assume the transfer of title in favour of plaintiff and defendant. A chain of title in property in question, therefore, was required to be established. Specifically when plaintiff seeking a declaration from the court regarding ownership. In this context, it is important to refer cross examination of PW1 who has stated that property / house is situated approximately 200 fts. away from the railway line. This court can take cognizance of the fact that there cannot be any private property / land near the vicinity of a railway line / crossing. Once it has come on the record that suit property is situated nearby the railway crossing, it was all the more necessary for plaintiff to establish the previous title of the property. Since plaintiff has failed to do so and the documentary evidence of ownership does not prove any title in the suit property. In such circumstance I find that plaintiff is not entitled for relief of declaration as prayed for. Issue accordingly decided against the plaintiff and in favour of defendant.
24 ISSUE NO. 2 & 3(Whether the plaintiff is entitled for decree of partition as prayed for?) and (Whether the plaintiff is CS No. 41/16 Page no. 15 /16 entitled for decree of permanent injunction as prayed for in prayer "C" against defendant? ) In view of finding already given on issue no. 1, to the effect that plaintiff is failed to establish ownership by necessary consequence , it can safely be held that once the ownership of property is not proved, relief of partition and injunction can also not be given. Issue accordingly decided against plaintiff.
RELIEF.
In view of my findings on issue no. 1 to 3 suit stands dismissed. Decree of dismissal be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court on the day of 14.09.2016 (SHAILENDER MALIK) ADJ16 (CENTRAL) TIS HAZARI COURTS DELHI CS No. 41/16 Page no. 16 /16