Delhi District Court
(East District) vs Ganga Ram S/O Late Sarzu Thakur on 8 November, 2019
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE03
(EAST DISTRICT), KARKARDOOM COURTS, DELHI
CS No. 1727/16
Smt. Savitri Devi
W/o Late Sachindra
R/o D175, First Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi - 92 ......Plaintiff
Versus
1. Ganga Ram s/o Late Sarzu Thakur
R/o D138, Ground Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi - 92
2. Sunil Thakur s/o Late Sarzu Thakur
R/o D138, Ground Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi - 92 ......Defendants
SUIT FOR PARTITION
Suit instituted on 22.03.2010
Date of decision - 08.11.2019
JUDGMENT
1. Plaintiff's case, as set out in the amended plaint, is as follows: I) Plaintiff is defendants' real sister. They are the surviving legal heirs of late Sarzu Thakur and Smt. Posh Pati. They are coowners of property no. D 138, Ganesh Nagar, Pandav Nagar Complex, Delhi measuring 25 sq. yards in khasra no. 305/212/2 in village Shakarpur Khas, Shahdara, Delhi (for short the 'suit property') having 1/3 undivided share each therein. The suit property is two storeyed.
CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 1 of 18 II) In paragraph no.4 of her amended plaint, plaintiff makes the following averments: "4. That the suit property was purchased by Smt. Posh Pati, wife of Sh. Sarzu Thakur from the erstwhile owner by virtue of the sale purchase documents on 09.01.1980 which were a general power of attorney and an agreement to sell. All the original sale purchase documents pertaining to the suit property which was executed in favour of Smt. Posh Pati at the time when she purchased the suit property i.e. on 09.01.1980 is in the custody and possession of defendant no.1. The plaintiff only has the photocopy of the general power of attorney dated 09.01.1980 executed in favour of Smt. Posh Pati which she is filing alongwith the present suit."
III) Father Sarzu Thakur expired when plaintiff was only 09 years old. Mother Ms. Posh Pati brought up the plaintiff and the two defendants. The suit property was self acquired property of Smt. Posh Pati, who died intestate on 10.05.1989 leaving behind parties to this suit as her only legal heirs.
IV) Defendant no.1 Ganga Ram occupies the entire ground floor portion of the suit property and defendant no.2 Sunil Thakur, a room on the first floor. Plaintiff faced hardships due to extreme paucity of space and her two children were compelled to sleep on the terrace.
V) At the time of filing of the instant suit, plaintiff was in occupation of a small room, which could otherwise be used for kitchen, on 1 st floor of the suit property. She was in possession of the suit property for the last almost three decades. But, on 27.04.2010, after receipt of summons of this suit, defendants forcibly dispossessed her. Plaintiff went to the police station, but police refused to lodge her complaint. When she returned home from the police station, defendants and their spouses assaulted her and pushed her down from first floor to the ground floor. Plaintiff sustained injuries.
CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 2 of 18 She became unconscious. She regained her consciousness at Lal Bahadur Shastri Hospital from where she was discharged on 28.04.2010. Police did not register any FIR and instead made it appear that the matter had been compromised. On plaintiff's complaint bearing no. 150/2010, the Court of Ld. Metropolitan Magistrate, Karkardooma Courts, Delhi was pleased to direct the concerned SHO to register an FIR under sections 323/506/341, IPC against the accused persons. Plaintiff then shifted to her new address of D175, 1st floor, Ganesh Nagar, Pandav Nagar, Complex, Delhi 92.
VI) In December 2009 plaintiff unsuccessfully requested the defendants to partition the suit property. On these averments, plaintiff filed the present suit seeking the relief of partition with the prayer that her 1/3 rd share be identified/demarcated and possession of the same be handed over to her and, in the alternative, the suit property be auctioned and the sale proceeds thereof be divided equally amongst the parties.
2. Defendants, in their written statement to the amended plaint, state that plaintiff is not their real sister. They aver that their parents after their marriage, when no child was borne to them for few years, had verbally adopted the plaintiff as their daughter in their native village and it was thereafter that they (defendants) were born from their parents' wedlock. They go on to aver that plaintiff being their 'step sister', is not entitled to any share in partition of the suit property. As per them, plaintiff is not entitled to a share in partition also because their mother had performed her marriage and had given her sufficient amount and gift/ stridhan in her marriage. They refute plaintiff's assertion that she is a coowner of the suit property. According to them, they are the only two coowners of the suit property and as such they are entitled to receive ½ share each therein. They state that as per law only the legal heirs of a deceased can seek partition and not the CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 3 of 18 adopted daughter. In response to paragraph no.4 of the plaint, defendants state as follows: "4. That the contents of para no.4 of the suit are matter of record."
3. Defendants aver that suit property consists of only ground and first floor. As regards plaintiff's possession, they state that she was never in occupation of the suit property at any point of time. They allege that plaintiff tried to take forcible possession of the suit property which resulted in a quarrel, and they (defendants) sustained serious injuries on their person; that when police took no action despite the matter being reported to it, defendant no.2 Sunil Thakur lodged a police complaint dt. 06.05.2010. They submit that plaintiff in fact resides at D 176, 2nd floor, Ganesh Nagar, Pandav Nagar Complex, Delhi - 92 and her version about common possession of the suit property is baseless. They assert that it is only they (defendants) who are in actual physical possession of the suit property with defendant no.1 Ganga Ram occupying ground floor and defendant no.2 Sunil, the first floor. They aver that plaintiff's site plan itself shows that she was not in possession of any small room on the first floor; that going by plaintiff's own site plan, there is only one room and no other room on the first floor.
4. Defendants' version of the incident of 27.04.2010 is as follows. On 27.04.2010 at about 08:00 pm plaintiff and her associates, armed with deadly weapons, entered defendant no.2 Sunil's house. They beat up the defendants and threatened that if they did not give plaintiff's share they (defendants) would be thrown out on the road. Plaintiff and her associates then put a lock on one room of the house and threatened to come 15 days later and went away intimidating that they would kill the entire family of defendant no.2 if the house was not vacated. Defendants sustained serious injuries. Defendant no.2 called the police and he was CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 4 of 18 medically examined at Lal Bahadur Shastri Hospital from where he was referred to GTB Hospital. Police took no action and instead started to pressurise defendant no.2 for an amicable settlement. Defendant no.2 then lodged a police complaint dt. 06.05.2010. Defendant no.2 also filed a criminal complaint against the culprits, which is sub judice before the Court of Ld. Metropolitan Magistrate, Karkardooma Courts, Delhi.
5. Besides the above, defendants state that the suit is sans cause of action; that plaintiff suppressed material facts; that she did not pay ad valorem court fee; that suit property is valued more than Rs. 25 lacs and that the suit is not drafted as per Delhi High Court Rules and Orders. Denying other averments, defendants seek dismissal of the suit.
6. Plaintiff in her replication has reaffirmed and reiterated her averments as set out in her amended plaint and refuted those of the defendants as set out in their written statement. In her replication she states that she, as also both the defendants, were born out of the wedlock of Sarzu Thakur and Ms. Posh Pati.
7. Issues framed on 02.05.2013 are:
1. Whether plaintiff is entitled to a decree for partition of the suit property, as prayed for? OPP
2. Whether the suit of the plaintiff is without any cause of action? OPD
3. Whether suit of the plaintiff is not maintainable? OPD
4. Whether the plaintiff has not paid the requisite court fee? OPD
5. Whether the value of the property is more than Rs. 25 lakhs and this court is lacking pecuniary jurisdiction to adjudicate upon the matter? OPD
6. Relief.
8. In plaintiff's evidence, plaintiff Savitri Devi (PW1) was the sole witness. In CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 5 of 18 support of her case, she placed reliance on photocopy of a General Power of Attorney dt. 09.01.1980 of the suit property in favour of Smt. Posh Pati executed by one Shri Ved Prakash. This document is Mark A.
9. In defendants' evidence, following witnesses were examined: DW1 Ganga Ram, defendant no.1.
DW2 Sunil Kumar, defendant no.2.
DW3 Vinod Kumar, an official witness from the court of Sh. Rakesh Kumar Singh, Metropolitan Magistrate, East District, Karkardooma Courts. He appeared with the judicial file of criminal complaint no. 55164/16 titled Sunil Thakur v. Savitri & Ors., PS Mandawali, under section 200 CrPC alleging commission of offences under sections 147, 148, 149, 323, 308, 452, 448, IPC read with sections 511/34, IPC. This criminal complaint was still at the stage of presummoning evidence. He exhibited the criminal complaint as Ex. DW3/A. DW4 Masrur Hussain, an official from Lal Bahadur Shastri Hospital, Khichripur, Delhi. He appeared with the record of MLC no. 4111/10 dt. 27.04.2010 of defendant no.2 Sunil and exhibited the same as Ex.DW4/A.
10. Arguments heard. Record perused. Written arguments of both the sides considered.
11. Issuewise findings are as follows.
12. Issue no.5 - The issue is whether the value of the suit property is more than Rs. 25 lakhs and the court lacks pecuniary jurisdiction to adjudicate upon the matter; onus being on defendants to prove it. Defendants in their pleadings state CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 6 of 18 that the suit property is valued 'more' than Rs. 25 lacs. Defendant no.1 Ganga Ram (DW1) in his examinationinchief deposed that the suit property was valued 'more' than Rs. 25 lacs in 2010. However, defendants do not precisely state as to what is/was the exact valuation of the suit property. 'More' than Rs. 25 lacs can mean anything over and above Rs. 25 lacs. The pecuniary jurisdiction of this Court is between Rs. 3 lacs to Rs. 2 crores. There is no evidence from the side of the defendants that the suit property is valued more than Rs. 2 crores. This Court thus holds that there is no evidence to show that value of the suit is more than Rs. 25 lacs. This Court further holds that the present suit is within the pecuniary jurisdiction of this Court. This issue is answered in plaintiff's favour and against the defendants.
13. Issue no.4 - The issue is whether plaintiff has not paid the requisite court fee, onus to prove being on the defendants. Plaintiff in her plaint states that market value of the suit property is Rs. 18 lacs and its government circle rate is Rs. 4.50 lacs. For the purpose of court fee, plaintiff valued the suit on her 1/3rd share at Rs. 6.00 lacs and paid court fee of Rs. 8,250/ thereon. On the other hand, as per the defendants, the suit property is valued 'more' than Rs. 25 lacs. However, defendants led no evidence to show that the suit property is 'more' than Rs. 25 lacs. Thus, the defendants have been unable to prove this issue. It is held that the plaintiff has paid adequate Court fee. This issue is thus answered in plaintiff's favour and against the defendants.
14. Issue no.3 - The issue is whether the suit is not maintainable, onus to prove being on the defendants. It is not shown as to how the present suit for partition is not maintainable under the law. It is one thing to say that a suit is not maintainable under the law and quite a different thing to say that plaintiff has not been able to prove his/her case. I see no reason for nonmaintainability of this suit. This issue CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 7 of 18 is accordingly answered in plaintiff's favour and against the defendants.
15. Issue no.1 - The issue is whether plaintiff is entitled to a decree for partition of the suit property, onus to prove being on the plaintiff. To begin with, there is absolutely no evidence on record to show that Ms. Posh Pati and Sarzu Thakur were not plaintiff's biological parents. There is also no evidence to show that some other couple was actually the biological parents of plaintiff. There is neither any evidence to show that Ms. Posh Pati and Sarzu Thakur, ever in their lifetime, either individually or jointly, had represented to any authority or ever written and/or stated to anyone that plaintiff was not their biological daughter. There is no independent witness to depose that plaintiff was not born out of the wedlock of Ms. Posh Pati and Sarzu Thakur. Defendants do not state in their pleadings as to who, if not Ms. Posh Pati and Sarzu Thakur, were plaintiff's parents. It is pertinent to mention that defendants in their pleadings aver that it was Ms. Poshi Pati who had got the plaintiff married. Defendant no.1 Ganga Ram in his examinationinchief (affidavit Ex. DW1/A) deposes that Ms. Posh Pati had nourished the plaintiff. Thus, defendants' mere selfserving ipse dixit, without anything more, will not suffice to hold that plaintiff is not their real sister.
16. Next, defendants aver in their pleadings that their parents, postmarriage, when no child was borne to them for few years, had 'verbally adopted' the plaintiff in their native village and it was thereafter that they (defendants) were born. Assuming arguendo that Ms. Posh Pati and Sarzu Thakur had adopted the plaintiff, yet under the law, she has every right to claim a share in their property. It is not the defendants' stand that plaintiff's adoption by their parents was contrary to law. Her adoption never ever came to be challenged by anyone before any Court of law. The law does not require that adoption must be accompanied by any religious ceremony (Proviso to section 11 of Hindu Adoption and Maintenance CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 8 of 18 Act, 1956). The law neither requires that an adoption should mandatorily be through a written instrument. Under section 11 (vi) of Hindu Adoption Maintenance Act, 1956 for an adoption, the child must actually be given and taken in adoption. Section 11 of the Act nowhere requires that for an adoption to be valid, it must be through a document in writing. Further, section 12 of this Act, inter alia, provides that an adopted child shall be deemed to be the child of his/her adoptive father or mother for all purposes from the date of adoption and from such date all the ties of the child in the family of his/her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family. In Sitabai v. Ramchadra, (1969) 2 SCC 544 it has been, inter alia, held, "The true effect and interpretation of Sections 11 and 12 of Act No. 78 of 1956 therefore is that when either of the spouses adopts a child, all the ties of the child in the family of his or her birth become completely severed and these are all replaced by those created by the adoption in the adoptive family." In Basavarajappa v. Gurubasamma, (2005) 12 SCC 290, it has been held that on adoption, the adoptee gets transplanted in adopting family with the same rights as that of natural born child. Therefore, the contention visàvis adoption being raised by the defendants is in the teeth of sections 11 and 12 of Hindu Adoption and Maintenance Act, 1956. Consequently, the stand that plaintiff is actually the adopted daughter of Ms. Posh Pati and Sarzu Thakur, even if accepted to be correct, will not disentitle her from any share in partition of the suit property.
17. It was next the defendants' contention that plaintiff, who seeks partition of the suit property on the premise that Ms. Posh Pati had purchased it, has failed to prove her ownership. Paragraph no.4 of the plaint has been reproduced verbatim hereinabove. It is evident that in paragraph no. 4 of her plaint, plaintiff states that Ms. Posh Pati had purchased the suit property vide salepurchase documents dt.
CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 9 of 18 09.01.1980 (General Power of Attorney and Agreement to Sell) and that such original documents were in custody and possession of defendant no.1 Ganga Ram and she only had a photocopy of the GPA dt. 09.01.1980. In response thereto, defendants in their written statement state, "That the contents of para no.4 of the suit are a matter of record." It is crystal clear that defendants in their pleadings impliedly admit plaintiff's assertion that Ms. Posh Pati had purchased the suit property vide salepurchase documents dt. 09.01.1980 and that the originals thereof were in custody and possession of defendant no.1 Ganga Ram. It is also crystal clear that defendants in their pleadings impliedly admit plaintiff's assertion that she (plaintiff) only had a photocopy of the GPA dt. 09.01.1980 of the suit property purchased by Ms. Posh Pati. At this stage, it would be relevant to note that defendant no.1 Ganga Ram (DW1) in his affidavit Ex. DW1/A of examinationinchief states that his mother late Ms. Posh Pati had purchased the suit property. However, in his crossexamination he (DW1 Ganga Ram) turned around to say that such an averment in his affidavit Ex. DW1/A had been wrongly written by his younger brother (defendant no.2 Sunil). It was the argument of defendants' counsel that such an averment came to be wrongly stated in the affidavit Ex. DW1/A of defendant no.1 Ganga Ram (DW1). However, this turnaround by defendant no.1 Ganga Ram (DW1) and the contention of defendants' counsel appears to be on a complete afterthought. As already stated hereinabove, defendants in their pleadings impliedly admit that Ms. Posh Pati was the owner of the suit property in terms of sale purchase documents dt. 19.01.1980; they also impliedly admit in their pleadings that original sale purchase documents were in power and possession and defendant no.1 Ganga Ram; they also impliedly admit in their pleadings that the plaintiff had in her possession photocopy of GPA dt. 19.01.1980 in favour of Ms. Posh Pati qua the suit property. Given these circumstances, it is difficult to accept the contention of defendants' counsel that CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 10 of 18 such an assertion came to be wrongly mentioned in paragraph no.2 of evidence by way of affidavit Ex. DW1/A of defendant no.1 Ganga Ram (DW1).
18. Photocopy of the General Power of Attorney dt. 09.01.1980 (Mark A) in favour of Smt. Posh Pati shows that it had been executed by one Shri Ved Prakash in her favour. It is pertinent to mention here that defendant no.1 Ganga Ram (DW1) in his crossexamination admits that the suit property had been purchased from Sh. Ved Prakash. Although, in the very same breath he also adds that it had been purchased prior to 1980.
19. Now, section 65 (a), Evidence Act mandates that secondary evidence of document(s) can be given in case where the originals thereof are in power and possession of the adverse party in the litigation. This provision reads as follows: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases:
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce the same.
20. In the trial, plaintiff led in evidence photocopy of the GPA dt. 09.01.1980 (Mark A). It is not the defendants' stand that this document Mark A is not the true copy of the original GPA dt. 09.01.1980. It is pertinent to mention here that on 04.05.2017 plaintiff had moved an application under Order XI Rules 12, 14 and 15 read with section 151, CPC with the prayer that inasmuch as the defendants in their pleadings had admitted her contentions visàvis the salepurchase documents dt. 09.01.1980 of the suit property, they should be asked to make CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 11 of 18 discovery of the same. Defendants in their reply to this application, while denying that such documents were in their possession, took the stand that Ms. Posh Pati had in fact not purchased the suit property. Vide order dt. 25.05.2017 this application under Order XI Rules 12, 14 and 15 read with section 151, CPC was disposed of. Operative portion of Order dt. 20.05.2017 is as follows: Be that as it may, keeping in view plaintiff having put defendants to the notice of the property being purchased in the name of Poshpati and original documents being in possession of defendants in the plaint itself in reply whereof defendants stated the same to be matter of record, but now contending in reply to the present application that these documents are not with them, I deem it proper to list the matter for crossexamination of defendants and the inferences in respect of non production of the originals will be seen and taken care of during the final arguments.
21. To my mind, filing of such an application together with Order dt. 20.05.2017 was a sufficient notice to the defendants as required under section 66 of Evidence Act. Section 66 of Evidence Act requires 'such notice to produce as is prescribed by law, and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case'.
22. In Prem Chandra Jain v. Sri Ram, 2009 (113) DRJ 617 it has been held that there is no need to file an application for leading secondary evidence. It was further held that a party seeking to prove documents by secondary evidence is required to lead evidence of the existence of circumstances/situations in which secondary evidence is permissible and whether or not a case for leading secondary evidence was made out is to be decided at the stage of disposal of the suit. To similar effect is the ratio decidendi of Sanyogta Prakash v. Dhir Bala Malhotra & Ors., 2010 (115) DRJ 109. Thus, it was not at all incumbent on the plaintiff to move any application for leading secondary evidence.
CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 12 of 18
23. Given the aforesaid circumstances, this Court is of the view that this is a case where the plaintiff has proved on the basis of secondary evidence that Ms. Posh Pati was the owner of the suit property. Although she may not have been the owner in the true classic sense, yet she had the rights akin to that of an owner.
24. Next, irrespective of whether Ms. Posh Pati is proved to be owner of the suit property or not, yet the plaintiff would be entitled to a share in the partition. It is not in dispute that Ms. Posh Pati, before her demise on 10.05.1989, was in occupation/possession of the suit property. Defendant no. 1 Ganga Ram (DW1) in his crossexamination admits that his mother Ms. Posh Pati used to reside in the suit property. He deposed, "It is correct that my late mother used to ordinarily reside in the suit property till her death." Defendant no.2 Sunil (DW2) in his examinationinchief (affidavit Ex. DW2/A) stated that he has been residing in the suit property since his birth and in his crossexamination he deposed, "It is correct that my mother was in possession of suit property at the time of her death." It thus stands proved that Ms. Posh Pati, mother of the parties, de hors ownership rights on paper, had rights in the suit property, whether they be by way of adverse possession or merely possessory rights. On Ms. Posh Pati's demise, defendants are exclusively enjoying the said rights. Defendants, while continuing to enjoy the said rights, cannot deny plaintiff's share on the specious pleas that Ms. Posh Pati is not proved to be the owner of the suit property. In this regard, the decision of Surjit Singh v. Ekta Gulati, 2012 SCC OnLine Del 4233 can be referred to, wherein it was observed:
5. In the circumstances, what stands admitted/proved is that the father of the parties, namely Shri Purushottam Singh was having rights in the said shop, whether they be ownership rights or rights by way of adverse possession or merely possessory rights. The said rights, on the demise of Shri Purushottam Singh, are being enjoyed by the appellants CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 13 of 18 only who are but two out of five legal heirs of Shri Purushottam Singh. The appellants, while continuing to enjoy the said rights, cannot deny the share of the daughters of Shri Purushottam Singh therein on the specious plea of Shri Harbhajan Singh being the recorded owner of the shop.
6. It is significant to note that the appellant do not claim the possessory rights of the shop from Shri Harbhajan Singh and the appellant no 1 in his cross examination recorded on 30th April 2011 expressly admitted, "I am in possession of this property through my father". On specific query today also as to whether the appellants claim to be occupying the shop under any authority from the legal heirs of Shri Harbhajan Singh, the counsel replies in negative.
7. Once it stands proved that the possession of the appellants of the shop is by inheritance from the father, I am of the view that possessory rights i.e. the right to control property including the right to exclude others are a facet of different kinds of rights over immoveable property and can be subject matter of partition and such possessory rights by a person who is not necessarily the owner cannot be appropriated by few only of the legal heirs to the exclusion of others and all the legal heirs are entitled to a share in the said possessory rights with respect to the property.
25. Sunil Gupta v. Nargis Khanna, 2018 SCC OnLine Del 9082 too is a precedent for the proposition that even possessory rights in an immovable property can be subject matter of partition. There are precedents to hold that even tenancy rights can be partitioned {Iresh Duggal v. Virender Kumar Seth, 2014 SCC OnLine Del 6674; Bharat Insulation Company v. Suraj Prakash, (2015) 221 DLT 216 and Dalip Kumar v. Om Prakash, 2015 SCC OnLine Del 11768} In Shyam Behari & Ors. v. Ram Kishan & Ors., 2013 X AD (Delhi) 236, partition suit had been filed qua a property allotted by DDA to one late Munna Lal. It was held that though late Munna Lal did not own the suit property allotted by DDA, yet the partition suit was very much maintainable. It was held, "The law of inheritance/succession covers all assets of the deceased; an immovable CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 14 of 18 property, even if on license, would be a valuable asset of the deceased and in the absence of the law or any provision under which the said allotment was made, making a distinction, I am unable to accept the argument of the counsel for the appellants/defendants." Further, there are also precedents to hold that conditions in the lease deed prohibiting partition of leasehold interests do not come in the way of partition of the superstructure {UOI v. Mohinder Pratap Soni, 2016 (157) DRJ 221; Madan Lal v. Kuldeep Kumar, MANU/DE/4039/2013, Pragun Builtech (P) Ltd. v. Sarla Aggarwal, 190 (2012) DLT 164}. The point therefore is that it is not necessary that only those properties can be subject matter of partition that are proved to have been under 'ownership' rights on paper.
26. It was the argument of defendants' counsel that plaintiff (PW1) in her crossexamination failed to state the purchase price of the suit property and its date of purchase. In view of the findings/observations of this Court hereinabove, this argument is of no merit. Next, defendant no.1 Ganga Ram (DW1) in his cross examination stated that he too had contributed in purchase of the suit property by his mother. His mere self serving ipse dixit to this effect will be of no avail. Further, defendant no.2 Sunil (DW2) in his examinationinchief (affidavit Ex. DW2/A) stated that he had never seen any documents of salepurchase of any property, including the suit property, in the name of his parents. This stand of defendant no.2 Sunil is a meritless one and is noted only to be rejected. His not seeing the ownership documents of the suit property can be of no legal consequence whatsoever in the present case.
27. Now to the judgments relied upon by defendants' counsel in support of his arguments. Narayan Dass Vs. Mahadevi & Anr., 2013 Legal Eagle 897 : 2013 MPRN 426 involved a suit filed by a father for permanent injunction, declaration of ownership and for declaration that order of partition, allotting disproportionate CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 15 of 18 shares, passed by Tehsildar on 16.03.2003 under section 178 of Madhya Pradesh Land Revenue Code was void. In the previous suit the father and daughter (defendant no.1) had filed joint written statement stating that they were the joint owners of the property. It was under such circumstances that it came to held that the father having failed to prove his title/ownership over the suit property was not entitled to the reliefs claimed. This judgment does not at all apply to this case. In Sital Singh v. Ram Prasad Singh, AIR 1957 Pat 398 it was held that in a suit for partition when a party claims that any particular item of property held by an individual member is a joint family property, the burden of proving so rests on him. This judgment is inapplicable to the facts of the instant case. Plaintiff Savitri does not say that the suit property is a joint family property. Her case is that suit property individually belonged to late Ms. Posh Pati. Arunachalam Piliai v. Sorimuthu Piliai, AIR 2004 Mad 185 was a suit for declaration visàvis a certain pathway and for injunction that plaintiff's use of the pathway be protected. It emerged that plaintiff claimed ownership of the pathway, but there was no evidence to prove the same. It was thus held that plaintiff having failed to prove ownership over pathway could not then claim easementary right. This judgment is inapplicable to the facts of this case. The instant suit involves no right to easement. In Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade & Ors., (2007) 1 SCC 521 partition suit was filed on the plea that properties were joint Hindu family properties. Defendants contested and claimed that the properties were selfacquired and therefore there was no question of partition. It was in these circumstances that it came to be held that initial burden is on the plaintiff to show that the properties were joint Hindu family properties and it is then that the burden shifts to the defendants to prove that the property claimed by them was not purchased out of the joint family nucleus. This judgment is CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 16 of 18 inapplicable. In the present suit, it not the case of either of the parties that the suit property had been purchased out of joint family nucleus / funds. In Vijay Gupta & Ors. v. Ashok Kumar Gupta, AIR 2007 Del 166 it was, inter alia, held that in spite of admission of a fact having been made by a party to the suit, the Court may still require the plaintiff to prove the fact admitted by the defendant. This judgment does not hold that in all cases it is mandatory for the Court to seek independent proof of the admitted facts. Whether or not to ask a party to prove the admitted facts is discretionary and not mandatory. In Shiv Charan v. Siri Ram & Anr., 2008 (3) RCR (Civil) 454 in a specific performance suit, it was, inter alia, held that defendant's title to immovable property cannot be decided on conjectures and surmises and that plaintiff should stand on his own legs and not take benefit of the weakness of defendant's case. This judgment is inapplicable to this case. The present is not a suit for specific performance. It has already been held hereinabove that it stands proved that Ms. Posh Pati, de hors ownership rights on paper, had rights in the suit property, whether by way of adverse possession or merely possessory rights; that on Ms. Posh Pati's demise, defendants are exclusively enjoying the said rights; that defendants, while continuing to enjoy the said rights, cannot deny plaintiff's share on the specious pleas that Ms. Posh Pati is not proved to be the owner of the suit property; and that under the law it is not necessary that only those properties can be subject matter of partition that are proved to have been under 'ownership' rights on paper.
28. To sum up the discussion on this issue, it is held that plaintiff is entitled to a share in partition of the suit property. It is held that the plaintiff has 1/3 share in the suit property. Both the defendants too have 1/3 share each in the suit property. This issue is answered in plaintiff's favour and against the defendants.
29. Issue no.2 -The issue is whether the suit is without cause of action, onus to CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 17 of 18 prove being on the defendants. Outcome of issue no.1 a fortiori entails that plaintiff certainly had cause of action to sue. This issue is accordingly answered in plaintiff's favour and against the defendant.
30. Relief It is held that plaintiff is entitled to a share in partition of the suit property. It is held that the plaintiff has 1/3 share in the suit property i.e. D138, Ganesh Nagar, Pandav Nagar Complex, Delhi measuring 25 sq. yards in khasra no. 305/212/2 in village Shakarpur Khas, Shahdara, Delhi. Both the defendants too have 1/3 share each in the suit property. Preliminary decree sheet be drawn up.
Digitally signed by MURARI PRASAD SINGH MURARI Location: Court No.7, PRASAD Karkardooma ANNOUNCED IN THE OPEN SINGH Courts, Delhi Date: 2019.11.08 11:10:08 +0530 COURT ON 08.11.2019 (M. P. SINGH) ADJ03 (EAST) KARKARDOOMA COURTS DELHI/08.11.2019 CS No. 1727/16 Savitri Devi vs. Ganga Ram & Anr. Page No. 18 of 18