Delhi District Court
Veena Rani (Since Deceased) vs Pawan Malhotra S/O Late Sh. Sharvan ... on 30 May, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/610060/16
CNR No. DLWT01-001194-2014
IN THE MATTER OF:-
Veena Rani (Since deceased)
Through her legal heir, Chander Mohan
S/o Late Sh. Vimal Kumar,
H. No. 141, Sunder Park, Shastri Nagar,
Near Kali Mata Mandir, Delhi-110031.
..........Plaintiff
Vs.
1. Pawan Malhotra S/o late Sh. Sharvan Kumar
R/o H. No. 7/127, Ground Floor,
Ramesh Nagar, Delhi-110015.
2. Jeeta Malhotra S/o late Sh. Sharvan Kumar,
R/o H. No. 7/127, Ground Floor,
Ramesh Nagar, Delhi-110015.
3. Davinder Malhotra S/o Late Sh. Sharvan Kumar,
R/o H. No. 5/141-142, Mukta Prashad Nagar,
Bikaner, Rajasthan-334004.
4. Smt. Krishna Rani @ Baby, D/o Late Sh. Sharvan Kumar,
R/o 2nd Floor, H. No. 2204, Gali no.3, Chuna Mandi,
Pahar Ganj, Delhi-110055.
5. Smt. Veena Malhotra, W/o Late Sh. Vinod Malhotra,
R/o 2/68A, 3rd Floor, Gali No.2, Nirankari Colony,
Delhi.
6. Ms. Mehak Malhotra, D/o late Sh. Vinod Malhotra
R/o 2/68A, 3rd Floor, Gali No.2, Nirankari Colony,
Delhi.
Veena Rani Vs Pawan Malhotra & Ors. Page No. 1/8
7. Shubham Malhotra S/o Late Sh. Vinod Malhotra
R/o 2/68A, 3rd Floor, Gali No.2, Nirankari Colony,
Delhi.
...............Defendants
Date of institution :-12.08.2014
Order Reserved On:- 30.05.2022
Date of Decision:-30.05.2022
SUIT ON BEHALF OF PLAINTIFF TO SUE AS AN INDIGENT
PERSON IN ACCORDANCE WITH ORDER XXXIII RULE 1 & 2
CPC FOR DECLARATION, PARTITION AND PERMANENT
INJUNCTION IN RESPECT OF PROPERTY BEARING NO.
7/127, RAMESH NAGAR, DELHI-110015
JUDGMENT
1. By this judgment this Court shall dispose off the suit filed on behalf of plaintiff to sue as an indigent person in accordance with Order 33 Rule 1 & 2 CPC for declaration, partition and permanent injunction in respect of property bearing no. 7/127, Ramesh Nagar, Delhi-110015 plot area 100 sq. yds as shown in site plan of the property, it is relevant to mention here that two shops at the ground floor of the suit property which are shown in the site plan were already transferred to third parties are not subject matter of the present suit.
2. Plaintiff has sued the present suit as an indigent person and her application under Order XXXIII Rule 1 & 2 CPC was allowed vide order dated 09.10.2017 by Ld. Predecessor of this Court and permission was granted to her to sue as an indigent person.
Veena Rani Vs Pawan Malhotra & Ors. Page No. 2/83. Plaintiff filed present suit for declaration, partition and permanent injunction against defendants namely (i) Pawan Malhotra (ii) Jeeta Malhotra (iii) Davinder Malhotra (iv) Smt. Krishna Rani @ Baby (v) Smt. Veena Malhotra (vi) Ms. Mehak Malhotra and (vii) Shubham Malhotra alleging following facts:-
"That plaintiff and defendants no. 1 to 4 are real brothers and sisters and defendants no. 5 to 7 are first class legal heirs of late Sh. Vinod Malhotra i.e. one of brother of plaintiff and defendants no. 1 to 4. They are all descendants of Late Sh. Sharwan Kumar and Late Savitri Devi @ Sarla Devi. Late Sh. Sharwan Kumar died intestate and the ownership of the suit property devolved upon his abovementioned legal heirs. Late Sh. Sharwan Kumar was the sole and absolute owner of the property bearing no. 7/127, Ramesh Nagar, New Delhi admeasuring 100 sq. yds. Comprising of basement, ground and first floor (hereinafter referred to as "suit property in question") by virtue of a conveyance deed and lease deed (provided under the Rule 90 (15) of the Displaced persons (Compensation & Rehabilitation Rules, 1955) executed in his favour by the President of India (through Managing Commissioner, Jam Nagar House, New Delhi). That, Late Sh. Sharwan Kumar during his lifetime transferred two shops Veena Rani Vs Pawan Malhotra & Ors. Page No. 3/8 existing at the front portion of the ground floor of the suit property to the third parties as shown in the site plan. It is averred by plaintiff that she is entitled to 1/6th share in the suit property by virtue of one of the legal heir of Late Sh. Sharwan Kumar. The plaintiff initiated the talks of partitioning the suit property in the month of November, 2013, however, defendant no.1 & 2 refused to talk about the same and abused her.
Thereafter, plaintiff approached the Mediation Centre on 11.12.2013 of Govt. of NCT, Delhi for reaching an amicable solution but defendants deliberately did not appear despite receiving the notices of the Mediation Centre. Therefore, plaintiff was constrained to issue legal notice dated 09.04.2014 to all the defendants for partitioning the suit property but to no avail. Hence, the suit.
4. Defendants no.1 to 7 were failed to appear in the Court despite service and were proceeded exparte vide order dated 01.08.2018 by Ld. Predecessor of this Court. Matter was then fixed for exparte plaintiff's evidence.
5. Plaintiff i.e. Chander Mohan examined himself as PW-1 who tendered his evidence by way of affidavit as Ex.PW-1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW-1 relied upon following documents:-
Veena Rani Vs Pawan Malhotra & Ors. Page No. 4/8(1) Ex. PW1/1 is photocopy of death certificate of Veena Rani i.e. my mother.
(2) No document has been exhibited as Ex. PW1/2. (3) Ex. PW1/3 is the true copy of letter dated 10.08.1962 written by Managing Officer of regional settlement commissioner's office. (4) Ex. PW1/4 is the copy of lease deed dated 30.07.1962. (5) Ex. PW1/5 is site plan.
(6) Ex. PW1/6 is the true copy of letter written by his mother. (7) Ex PW1/7 is the true copy of letter of Delhi Government Mediation and Conciliation Centre.
(8) Ex PW1/8 is the true copy of legal notice dated 09.04.2014. (9) Ex PW1/9 to Ex PW1/15 are postal receipts.
6. Vide order dated 11.02.2020, the application of plaintiff for placing on record certain documents was allowed and in pursuant to filing of those documents, she had filed another application for filing additional evidence by way of affidavit on record. The said application was allowed vide order dated 07.11.2020 and permission was granted to plaintiff to lead additional evidence.
7. Plaintiff has tendered his additional evidence by way of affidavit as Ex.PW-1/A1. PW-1 relied upon following documents:-
(1) Ex. PW1/16 is certified copy of lease deed dated 30.07.1962 (Copy of which is already Ex PW1/4 by Ld. Predecessor of this Court) (2) Ex. PW1/17 is certified copy of letter dated 10.08.1962 (Copy of which is already Ex PW1/3 by Ld. Predecessor of this Court) (3) Ex. PW1/18 is Certified copy of Index of Sub-Registrar (Delhi Archive).Veena Rani Vs Pawan Malhotra & Ors. Page No. 5/8
(4) Ex. PW1/19 is Certified copy of application. (5) Ex. PW1/20 is Site plan of suit property (Copy of which is already Ex PW1/5 by Ld. Predecessor of this Court)
8. After examining himself, plaintiff evidence was closed vide order dated 17.11.2021. Matter was then fixed for exparte final arguments. After hearing of exparte final arguments matter was listed for exparte judgment.
9. The only issue which needs for adjudication in this case is whether plaintiff is entitled for relief claimed by it or not?
10. This Court has gone through the pleadings of the case, material on record, evidence led by plaintiff and submissions forwarded by Ld. counsel for plaintiff.
11. Perusal of the record reveals that the suit was filed within limitation period and within proper territorial and pecuniary jurisdiction.
12. PW1 /plaintiff has placed on record relevant documents i.e. Ex PW1/3 is the true copy of letter dated 10.08.1962 written by Managing Officer of regional settlement commissioner's office. Ex. PW1/16 is certified copy of lease deed dated 30.07.1962, Ex. PW1/17 is certified copy of letter dated 10.08.1962, Ex. PW1/18 is Certified copy of Index of Sub- Registrar (Delhi Archive), Ex. PW1/19 is Certified copy of application and Ex. PW1/20 which cannot be doubted in the wake of unchallenged testimony of PW1. PW1 also relied upon documents viz. Ex PW1/1, Ex PW1/2 & Ex Veena Rani Vs Pawan Malhotra & Ors. Page No. 6/8 Ex PW1/4 to PW1/15. The said documents as such cannot be doubted by this Court in the wake of unchallenged testimony of PW1.
13. So on the basis of preponderance of probabilities, the plaintiff has duly proved his case and entitled for the following reliefs:-
(i) A preliminary decree of declaration and partition is passed with respect to suit property i.e. built up property bearing no. 7/127, Ramesh Nagar, Delhi-110015 plot area 100 sq. yds (excluding two shops) as shown in the site plan Ex PW1/20 in favour of the parties declaring that the parties of the suit have following shares:-
S. No. Party Name Share 1. Veena Rani (plaintiff) 1/6th 2. Pawan Malhotra (defendant no.1) 1/6th 3. Jeeta Malhotra (defendant no.2) 1/6th 4. Davinder Malhotra (defendant no.3) 1/6th 5. Smt. Krishna Rani @ Baby (defendant no.4) 1/6th
6. Smt. Veena Malhotra (being LRs of Sh. Vinod 1/18th (from the 1/6th Malhotra) share of late Sh. Vinod Malhotra)
7. Ms. Mehak Malhotra (being LRs of Sh. Vinod 1/18th (from the 1/6th Malhotra) share of late Sh. Vinod Malhotra)
8. Sh. Shubham Malhotra (being LRs of Sh. 1/18th (from the 1/6th Vinod Malhotra) share of late Sh. Vinod Malhotra)
(ii) A decree of permanent injunction is also passed in favour of plaintiff and against the defendant thereby restraining the defendant from selling, transferring or mortgage or interest of any third party, parting with the possession of the suit property i.e. built up property bearing no. 7/127, Veena Rani Vs Pawan Malhotra & Ors. Page No. 7/8 Ramesh Nagar, Delhi-110015 plot area 100 sq. yds (excluding two shops).
(iii) No order as to cost.
14. As the suit has been decided in favour of plaintiff and the plaintiff being indigent and valuation of the suit property as per plaint is Rs.1,50,00,000/- (Rupees one crore and fifty lacs only). The value of the suit for the purpose of relief of Declaration and Permanent Injunction is Rs.500/- each. The value of the suit for the relief of partition is Rs.25,00,000/- (Rupees Twenty Five Lac only) for the 1/6th share of the plaintiff in the suit property, on which ad-valorem court fee Rs.26,980/- (Rupees Twenty Six Thousand and Nine Hundred Eighty only), thus totaling to Rs.27,000/- (Rupees Twenty Thousand only) is liable to be paid by the plaintiff. The plaintiff being indigent person has succeeded in the present suit, the court fees of the suit be obtained by the State Government as per provisions of Order 33 Rule 10 & 12 of CPC from defendants.
15. A copy of this judgment be forwarded to the Collector under Order 33 Rule 14 of CPC.
16. A Preliminary decree be prepared accordingly.
(SYED ZISHAN ALI WARSI)
Announced in the open Court ADJ-05, WEST DISTRICT
Dated : 30.05.2022 TIS HAZARI COURT, DELHI
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