Delhi High Court
Kanak Jain And Ors vs Chakresh Kumar Jain on 15 April, 2019
Equivalent citations: AIRONLINE 2019 DEL 2489
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 15th April 2019
+ CS(OS) No.1599/2008 & CC No.25/2009.
KANAK JAIN AND ORS. .... Plaintiffs
Through:Mr. Kanwal Chaudhary, Adv.
Versus
CHAKRESH KUMAR JAIN ......Defendant
Through: Mr. O.P. Aggarwal, Adv.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The four plaintiffs, namely (i) Kanak Jain; (ii) Abhay Kumar Jain;
(iii) Rekha Jain; and, (iv) Ektaa Jain, being the widow, son and two
daughters of late Shri Suresh Chand Jain, have instituted this suit for
partition and rendition of accounts with respect to Property No.1734-A and
1734, Dariba Kalan, Delhi - 110 006, against Chakresh Kumar Jain, being
the younger brother of said Suresh Chand Jain.
2. The suit was entertained and summons thereof ordered to be issued
and vide ex parte ad interim order dated 12th August, 2018 parties directed
to maintain status quo regarding the aforesaid properties. The defendant,
besides filing his written statement has also filed a Counter Claim seeking
declaration that the interference of the plaintiffs in the peaceful possession
of Shop No.1734/2, Dariba Kalan, Delhi is illegal and unauthorised and the
plaintiffs have no right or claim to Shop No.1734/2, Dariba Kalan, Delhi.
Vide consent order dated 24th May, 2011, the plaintiffs were permitted to
take out eviction proceedings against M/s. Mehtab Singh Jain & Sons and
the defendant agreed to co-operate in the same.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 1 of 24
3. It is the case of the plaintiffs in the plaint, (i) that Suresh Chand Jain,
and the defendant jointly purchased Property No.1733/1 - 1735, Dariba
Kalan, Delhi - 110 006 vide registered Sale Deed dated 20th July, 1972; (ii)
after the demise of Suresh Chand Jain, other portions of the said property,
apart from two shops bearing No.1734-A which was under the tenancy of
M/s. Mehtab Singh Jain & Sons and Shop No.1734 which was under the
tenancy of M/s. Ranjit Singh Jain Jewellers were sold; (iii) Shop No.1734-
A continues to be in occupation of M/s. Mehtab Singh Jain & Sons;
however Shop No.1734 was lying locked for more than twenty years prior
to November, 2005, when the defendant unauthorisedly and without the
consent of the plaintiffs occupied the same and commenced his own
business activities therein; (iv) the request of the plaintiffs to the defendant
to partition by metes and bounds Shop No.1734 did not meet with any
success; (v) finally the plaintiffs got issued a Legal Notice dated 10 th June,
2008 on the defendant calling upon the defendant to partition the said
property and the defendant in his response dated 17th June, 2008 thereto
denied the share of the plaintiffs in Shop No.1734 on the ground of a
mutual oral settlement of the year 1997 whereunder the Shop No.1734 had
fallen to the share of the defendant and Shop No.1734-A had fallen to the
share of the plaintiffs; and, (vi) no such settlement had ever taken place
between the parties.
4. Needless to state, the defendant contested the suit of the plaintiffs on
the same plea as taken in response to the legal notice i.e., of oral partition,
whereunder Shop No.1734-A in occupation of M/s. Mehtab Singh Jain &
Sons as a tenant having fallen to the share of the plaintiffs and Shop
No.1734 which was vacant, having fallen to the share of the defendant, and
CS(OS) No.1599/2008 & CC NO.25/2009 Page 2 of 24
further pleading (i) that M/s. Mehtab Singh Jain & Sons was a tenant in
Shop No.1734-A at a rent of Rs.92/- per month and M/s. Ranjit Singh Jain
Jewellers was a tenant in Shop No.1734, also at a rent of Rs.92/ per month;
(ii) that on the death of Ranjit Singh Jain, the proprietor of M/s. Ranjit
Singh Jain Jewellers, there were seven partners of M/s. Ranjit Singh Jain
Jewellers and who dissolved their partnership in the year 1997; (iii)
thereafter it was mutually settled that the Shop No.1734 which was in the
tenancy of M/s. Ranjit Singh Jain Jewellers will be the property of the
defendant and Shop No.1734-A which was in the tenancy of M/s. Mehtab
Singh Jain & Sons would be the property of the plaintiffs; (iv) in the said
Family Settlement it was further settled that in Shop No.307, Dariba Kalan,
Delhi, which was also the joint property of the parties, the defendant would
relinquish his share and the said shop was in possession and occupation of
the plaintiffs and remaining legal heirs of Ranjit Singh Jain except the
defendant; (v) hence, the defendant orally relinquished his share from Shop
No.307, Dariba Kalan, Delhi; (vi) the shop in possession of the defendant
bears no.1734/2 and the shop in the tenancy of M/s. Mehtab Singh Jain &
Sons and in ownership of the plaintiffs bears no.1734/1; (vii) thus the
plaintiffs have no right to Shop No.1734 also known as Shop No.1734/2;
(viii) that the suit is bad for non-joinder of the remaining siblings/their
heirs, of Suresh Chand Jain and the defendant; (ix) the suit is also bad for
non-impleadment of the heirs of Mehtab Singh Jain; (x) the suit is barred
by time, having been filed after more than eleven years from the dissolution
of the business of M/s. Ranjit Singh Jain Jewellers; the limitation for a suit
for partition is of three years; (xi) that the defendant has let out Shop
No.1734, also known as Shop No.1734/2, to one Puneet Jain on 9th April,
CS(OS) No.1599/2008 & CC NO.25/2009 Page 3 of 24
2005; (xii) that the suit is not properly valued for the purposes of court fees
and jurisdiction; (xiii) the plaintiffs have suppressed that the defendant was
the owner of 25% share in the business being carried on in and having
1/10th share in Shop No.307 Dariba Kalan, Delhi, which has been orally
relinquished by the defendant in favour of the plaintiffs; (xiv) both the
shops subject matter of this suit are of the same size and both are on the
ground floor and situated towards the main road of Dariba Kalan, Delhi and
are of equal value and have been orally partitioned between the parties;
and, (xv) the plaintiffs thus have no right to partition or rendition of
accounts.
5. The defendant, on the basis of having become the sole owner of
Shop No.1734 also known as 1734/2, on account of oral partition, has
sought the Counter Claim of declaration as aforesaid.
6. Needless to state that the plaintiffs in the replication to the written
statement of the defendant and in the written statement to the Counter
Claim of the defendant have denied the oral partition pleaded by the
defendant and denied that the defendant has become the sole owner of
Shop No.1734 also known as Shop No.1734/2.
7. On the pleadings in this suit and the Counter Claim, the following
issues were framed on 5th October, 2009:-
"1. Whether the plaintiffs have any locus standi
to maintain the present suit? OPD
2. Whether there was any mutual settlement as
regards the suit property? If so, its effect?
OPD
CS(OS) No.1599/2008 & CC NO.25/2009 Page 4 of 24
3. Whether the suit is barred by Order 1 Rule 9
CPC? OPD
4. Whether the suit is barred by limitation?
OPD
5. Whether the suit has been properly valued
for the purpose of court fee and jurisdiction?
OPD
6. Whether the counter claim has been properly
valued for the purpose of court fee and
jurisdiction? OPP
7. Whether the defendant is entitled to the
decree of declaration as sought by way of
counter claim? OPD
8. Relief."
and the parties relegated to lead evidence.
8. The plaintiffs in their evidence have examined only the plaintiff no.2
Abhay Kumar Jain as PW1 and closed their evidence in affirmative on 8 th
November, 2012. The defendant in his evidence has examined only himself
on 23rd March, 2015 and closed his evidence.
9. Strangely enough, after the conclusion of recording of evidence, the
plaintiffs filed IA No.9605/2015 under Order XII Rule 6 of the Code of
Civil Procedure, 1908 (CPC) and which remained pending till 29 th January,
2016 when it was dismissed and the suit posted for final arguments on 22 nd
April, 2016.
10. On 22nd April, 2016, after hearing the counsels, the following order
was passed:-
"1. This is a suit for partition with respect to two
shops referred to in the plaint as shop nos.1734-A &
CS(OS) No.1599/2008 & CC NO.25/2009 Page 5 of 24
1734, Dariba Kalan, Delhi. The two shops along with
the other portions of the property were purchased by
the predecessor-in-interest of the plaintiffs Late Sh.
Suresh Chand Jain, along with his brother and who is
the defendant Sh. Chakresh Kumar Jain. The two shops
and the property was purchased vide registered Sale
Deed dated 20.07.1972. The plaintiffs claim that these
two shops remained jointly owned and were never
partitioned, and hence the present suit for partition.
2. Defendant has filed the written statement to the suit
and has also filed a counter claim bearing CC No.
25/2009, and both of which pleadings are to the effect
that the defendant is the sole owner of the shop no.1734
inasmuch as by virtue of the settlement of the year 1997
shop no. 1734-A fell to the share of the plaintiffs and
shop no. 1734 fell to the share of the defendant. Shop
no. 1734-A is described by the defendant as shop no.
1734/1 and the shop no.1734 is described by the
defendant as shop no.1734/2.
3. The following facts emerge as per the pleadings in
the present case:-
i. The case of the defendant is that by the
settlement, shop no.1734 as per the
plaint fell to the share of the defendant.
This shop is called as shop no.1734/2 by
the defendant in his written statement
and the counter claim.
ii. Shop no. 1734-A which is so called by
the plaintiffs, and called as 1734/1 by
the defendant, is under the tenancy of
M/s Mehtab Singh Jain & Sons.
iii. The defendant is admittedly in
possession of shop no.1734 (or shop
no.1734/2 as per the case of the
defendant).
CS(OS) No.1599/2008 & CC NO.25/2009 Page 6 of 24
4. There is no documentary evidence evidencing the
settlement of the year 1997 so pleaded by the
defendant, but even if there is no written document,
existence of a settlement can be proved inter alia from
the following aspects:-
a) Whether any of the parties have applied
for mutation of their shops in their
respective names after settlement of the
year 1997 and whether the property tax
of such shops was paid by the parties
individually and not jointly with the
other party.
b) Whether the electricity connection
existing in the two shops were sought to
be changed in the individual names of
any of the parties in the present suit on
or after 1997, and which would be
another indicator of settlement of the
year 1997, assuming that the settlement
took place.
c) Shop no. 1734-A (1734/1 as per the case
of the defendant) is under the tenancy of
M/s Mehtab Singh Jain & Sons. If there
was any settlement in the year 1997,
then it is to be seen as to who has been
receiving rent after 1997 of the shop
from M/s Mehtab Singh Jain & Sons, i.e
if the plaintiffs are exclusively found to
be taking the rent of the shop no.1734-A
from M/s Mehtab Singh Jain & Sons,
this would be one strong indicator of
settlement having taken place in the year
1997.
d) It is possible that the parties would have
been filing Income Tax Returns
evidencing the settlement of the year
CS(OS) No.1599/2008 & CC NO.25/2009 Page 7 of 24
1997 to substantiate that shop no.1734-
A (shop no.1734/1 as per the case of the
defendant) fell to the share of the
plaintiffs and shop no.1734 (shop
no.1734/2 as per case of the defendant)
fell to the share of the defendant.
5. The aforesaid detailed facts and issues are
narrated, inasmuch as learned counsel for the
defendant claims that pursuant to the settlement of the
year 1997, the defendant got the shop no.1734 or
1734/2 mutated in his name and also paid exclusively
property tax with respect to the said shop.
Unfortunately however no evidence is led on behalf of
the defendant with respect to the mutation either in the
municipal records or in the electricity department or
payment of house tax exclusively by the defendant in his
name. Learned counsel has thus clearly failed to do
complete justice to the case of the defendant.
6. The fact that complete justice has not been done by
the learned counsel, however it is pertinent that this
Court should ensure that complete justice is done and
for that purpose this Court seeks to invoke the provision
of Section 165 of the Indian Evidence Act, 1872
whereby a court at any stage can allow to call for
evidence.
7. Accordingly, the facts of the present case as
detailed above show that this Court should for the
purpose of ensuring justice, invoke the provision of
Section 165 of the Indian Evidence Act. In fact, I may
note that even an appellate court under Order 41 Rule
27 CPC has power to call for additional evidence in
order to ensure that complete justice is done and when
some amount of evidence exists and that certain
relevant evidence is left out.
8. I may note that the aforesaid order is passed on the
basis of the statement of the learned counsel for the
CS(OS) No.1599/2008 & CC NO.25/2009 Page 8 of 24
defendant that the defendant has got mutated in his
name shop no.1734 (1734/2 as per the defendant)
pursuant to the settlement of the year 1997 and also the
electricity connection was got changed in defendant's
name with respect to this shop. Before I allow evidence
to be led to prove the documents with respect to acting
upon the settlement of house tax, electricity connection
with respect to the shop no.1734 (1734/2 as per the
defendant) or income tax returns, it is necessary that
the defendant must file such documents inasmuch as if
such documents do not exist, there would be no purpose
served for invoking Section 165 of the Indian Evidence
Act for leading evidence by the parties and cross
examination of the witnesses.
9. Let the defendant file documents as stated in this
order positively within a period of eight weeks from
today, failing which no further opportunity shall be
granted to the defendant.
10. List for final arguments at the end of short matters,
on 08th August, 2016."
11. The defendant thereafter filed IA No.9136/2016 to prove certain
documents already on record and to file deficit documents and which
application was disposed of vide order dated 10th August, 2016 as under:-
"1. This application has been filed by the
defendant/applicant in pursuance to the order dated 22 nd
April, 2016.
2. This Court vide order dated 22nd April, 2016, though
observed the need for invoking the powers under Section
165 of the Indian Evidence Act, 1872 but made the same
dependent upon the filing by the defendant/applicant of
document/s of the alleged family settlement having been
acted upon.
3. The counsel for the defendant/applicant contends that
the defendant/applicant has been paying property tax of
CS(OS) No.1599/2008 & CC NO.25/2009 Page 9 of 24
one of the shops of which the defendant/applicant is in
possession and use and the plaintiffs/non-applicants have
been paying the property tax of the other shop which is
tenanted and the plaintiffs/non-applicants only have been
realising the rent of the said tenanted shop. It is further
stated that the electricity connection of the shop in
possession of the defendant/applicant is in the name of
the defendant/applicant and on enquiry it is informed that
the electricity connection of the other shop is in the name
of the tenant. It is yet further stated that the electricity
connection of the shop in possession of the
defendant/applicant was earlier in the name of Ranjit
Singh Jain Jewellers, a family firm, but was mutated in
the name of the defendant/applicant only.
4. I have enquired from the counsel for the
defendant/applicant, whether there is any mutation of the
two shops in the exclusive name of the plaintiffs/non-
applicants or the defendant/applicant and/or whether
there is any document jointly written by the parties to any
of the municipal authorities submitting the family
settlement claimed by the defendant/applicant.
5. The counsel for the defendant/applicant fairly states
that there is no such document.
6. In the absence thereof, the effect of the documents
proved by the defendant/applicant and the evidence led
by the defendant/applicant on the aspect of family
settlement shall be seen at the final stage and no case for
invoking the powers under Section 165 of the Act supra is
made out.
7. The application is therefore dismissed."
12. The plaintiffs applied for early hearing and which was allowed and
the suit posted for final hearing in the category of After Notice
Miscellaneous Matters' on 18th September, 2018.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 10 of 24
13. The counsel for the defendant/Counter Claimant sought
adjournment/did not appear on 18th September, 2018, 13th December, 2018
and 9th April, 2019. On 11th April, 2019, the counsel though appeared
stated that he was unwell and sought adjournment.
14. Finding that the counsel for the defendant had been avoiding
appearance, the counsel for the plaintiffs and the counsel for the
defendant/Counter Claimant, to the extent he argued were heard on 11th
April, 2019 and the hearing adjourned to today to enable the counsel for the
defendant/Counter Claimant to file written arguments. The counsel for the
defendant/Counter Claimant has today handed over the written arguments
and which have been considered.
15. My findings on the issues framed are as under
Issue No.1. Whether the plaintiffs have any locus standi
to maintain the present suit? OPD
16. The said issue has been framed on the plea of the defendant/Counter
Claimant of the property having been partitioned and qua which Issue no.2
has been framed. If under Issue no.2 it is found that the property, being
Shops No.1734-A & 1734 also known as Shops No.1734/1 & 1734/2,
have already been partitioned between the plaintiffs on the one hand and
the defendant on the other hand, the plaintiffs would have no locus standi
to maintain the suit. However if the finding on Issue no.2 is that there has
been no partition, the plaintiffs would certainly have a locus standi to
maintain the suit for partition.
17. Thus Issue no.1 is decided accordingly.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 11 of 24
Issue No.3. Whether the suit is barred by Order 1 Rule 9
CPC? OPD
18. It is the plea of the defendant that the suit is bad for non-joinder of (i)
M/s. Mehtab Singh Jain & Sons being the tenant in Shop No.1734-A also
known as 1734/1; (ii) Puneet Jain, being the tenant in Shop No.1734 also
known as 1734/2; and, (iii) other siblings of the defendant and the
predecessor of the plaintiffs namely Suresh Chand Jain and/or their heirs.
19. However it is not disputed by the defendant/Counter Claimant that as
far as the property in which the aforesaid two shops are located is
concerned, it was in the joint ownership of the predecessor-in-interest of
the plaintiffs namely Suresh Chand Jain and the defendant/Counter
Claimant only and none of their other siblings or their heirs had any share
therein or right therein. Thus, in a suit for partition of the said shops, the
other siblings of the defendant/Counter Claimant and Suresh Chand Jain
cannot be necessary or proper party. The defendant/Counter Claimant,
while pleading oral partition of the said shops also does not plead that any
share in the shops was given to any of the other siblings of the
defendant/Counter Claimant and Suresh Chand Jain or their legal heirs. His
plea however is that in the oral partition pleaded by him he had given to the
planitiffs his 25% share in the business being carried on in and 1/10 th share
in the Shop No.307, Dariba Kalan, Delhi (in which other siblings of Suresh
Chand Jain and the defendant/Counter Claimant had remaining share). The
same also would not constitute the other siblings or their heirs as a
necessary party to the present suit.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 12 of 24
20. Similarly, tenants in possession of the two shops for partition of
which this suit has been filed, are in law not a necessary or proper party to
the suit.
21. Thus Issue no.3 is decided against the defendant/Counter Claimant
and in favour of the plaintiffs.
Issue No.4. Whether the suit is barred by limitation?
OPD
22. The plea of the defendant/Counter Claimant on which this issue has
been framed is that the prescribed period of limitation is of three years
commencing from the date when M/s. Ranjit Singh Jain Jewellers, tenant in
Shop No.1734 also known as Shop No.1734/2 was dissolved in the year
1997 as per Sales Tax record and the present suit filed in August, 2008 is
hopelessly barred by time. However the counsel for the defendant/Counter
Claimant neither in his oral arguments nor in his written arguments
disclosed the Article of the Schedule to the Limitation Act, 1963 which
prescribes the limitation for a suit for partition.
23. None of the Articles of the Schedule to the Limitation Act provides
for a suit for partition. In the absence of any specific Article, the residuary
Article 113 providing limitation of three years from the date when the right
to sue accrues, would apply.
24. It has been held in Vijay Manchanda Vs. Ashok Manchanda 2010
(114) DRJ 467 [SLP (C) No.8872-2010 preferred whereagainst was
dismissed vide order dated 1st April, 2010] , Manita Khurana Vs. Indra
Khurana AIR 2010 Del 69 and Baleshwar Dayal Sharma Vs. Bimla
Gupta MANU/DE/7690/2017 that no co-owner/joint owner of the property
CS(OS) No.1599/2008 & CC NO.25/2009 Page 13 of 24
can be compelled to seek partition and if desires to keep the property joint,
can do so without fearing that his right to claim a share of the immovable
property of which he is the co-owner/joint owner will stand extinguished.
A cause of action for a suit for partition would accrue only when partition
is claimed and is denied or when the plaintiff is ousted from the property
and the defendant starts claiming adversely to the plaintiff. This is nowhere
the case of the plaintiffs or the defendant/Counter Claimant in this case.
Though the plaintiffs have pleaded that they had for some time been
requesting the defendant/Counter Claimant for partition and which the
defendant/Counter Claimant had been avoiding but the plaintiffs for the
first time demanded partition from the defendant/Counter Claimant by
getting issued a legal notice to the defendant/Counter Claimant only on 10th
June, 2008 and the present suit has been filed within three years therefrom
on 2nd August, 2008.
25. Issue no.4 also is thus decided against the defendant/Counter
Claimant and in favour of the plaintiffs.
Issue No. 5. Whether the suit has been properly valued
for the purpose of court fee and
jurisdiction? OPD
26. Para 17 of the plaint in this regard is as under:-
"17. That the suit has been valued for the purposes of Court fee and
jurisdiction as under:
Relief of Partition - The suit has been valued for the purposes
of jurisdiction at Rs.2.00 Crores (Rupees Two Crores Only) on
which fixed court fee of Rs.20/- under Article 17 of Schedule-II
of the Court Fee Act has been affixed as the Plaintiffs are in
joint and constructive possession.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 14 of 24
Relief of Rendition of Accounts - The suit for the purposes of
jurisdiction is valued at Rs.50,00,000/- (Rupees Fifty Lacs
Only) which Plaintiffs estimate would be found due to them.
For the purpose of Court Fees it is valued at Rs.200/- on
which court fee of Rs.20/- has been affixed. Plaintiffs
undertake to pay additional court fee on the amounts which
would be found due to them on rendition of accounts and a
Decree is passed in their favour to recover the said amounts
from Defendant.
Relief of Injunction - For the purposes of court fee and
jurisdiction the suit is valued at Rs.200/- for jurisdiction on
which court fee of Rs.20/- has been affixed.
Total value for the purposes of jurisdiction is Rs.2,50,00,400/-
on which total court fee of Rs.60/- has been paid."
27. Paras 5&6 of the preliminary objections in the written statement of
the defendant/Counter Claimant in this regard is as under:-
"5. That the suit of the Plaintiff is not properly
valued in terms of court fees act. In view of para 17
of the suit the full court fees as per ad valorem U/S 7
(c) of the court fees act the Plaintiff is required to
pay the full court fees on the valuation of property.
As per the own admission by the Plaintiff the
valuation of the property for the relief of partition is
Rs.2,00,00,000/- and for the relief of rendition of
account the value as stated is Rs.50,00,000/-. If
suppose, the Hon'ble Court may presume the said
value is correct, the Plaintiff is required to pay the
court fees on the said full value U/S 7 (c) of court
fees act. Apart from it the Plaintiff, as per para 17 of
the Plaintiff the total court fees paid by Plaintiff is
Rs.60/- only. Hence the present suit is liable to be
dismissed.
6. That in view of para 17 of the plaint sub-para
i.e. for purpose of court fees and jurisdiction of the
suit is mentioned as Rs.200/- fro partition and
CS(OS) No.1599/2008 & CC NO.25/2009 Page 15 of 24
Rs.200/- for mense profit. In view of the said
submission the suit is triable by senior civil judge
only not by Hon'ble High Court. Hence in view of
para 17 of the plaint itself the suit is liable to be
rejected".
and the defendant/Counter Claimant in reply on merits to the
paragraphs of the plaint qua court fees has pleaded that "The court fees is
required to be paid on the valuation of Rs.2,50,00,400".
28. When the counsel for the defendant/Counter Claimant, during the
hearing raised the said contention contending that since the
defendant/Counter Claimant is admittedly in possession of Shop No.1734-
A also known as Shop. No.1734/1 , the plaintiffs ought to have paid ad
valorem court fees. I enquired from the counsel for the defendant/Counter
Claimant, whether not the suit for partition was of both the shops and the
plaintiffs, according to the defendant/Counter Claimant also were in
possession of one of the shops, how could it be said that the plaintiffs were
required to pay ad valorem court fees. No answer was forthcoming from
the counsel for the defendant/Counter Claimant.
29. The counsel for the defendant/Counter Claimant in his written
arguments has contended that the plaintiffs are liable to pay ad valorem
court fees under Section 7 (c) of the Court Fees Act, 1870.
30. There is no Section 7 (c) of the Court Fees Act; either there is
Section 7(iv)(c) which provides for court fees to obtain a declaratory decree
or order where consequential relief is prayed or Section 7(v)(c) which
provides for court fees on a suits for the possession of land, houses and
gardens or Section 7(x)(c) which provides for court fees on a suit for
CS(OS) No.1599/2008 & CC NO.25/2009 Page 16 of 24
specific performance or Section 7(xi)(c) which provides for court fees on a
suit between landlord and tenant. Else the law is clear that when the
plaintiff is in possession or constructive possession of the property of
which partition is sought, no ad valorem court fees is required to be paid
and fixed court fees is to be affixed on the plaint. Reference in this regard
may be made to Neelavathi Vs. N. Natarajan (1980) 2 SCC 247;
Jagannath Amin Vs. Seetharama (2007) 1 SCC 694 and Saroj Salkan Vs.
Capt. Sanjeev Singh (2008) 155 DLT 300 (DB).
31. Issue no.5 is also decided against the defendant/Counter Claimant
and in favour of the plaintiffs.
Issue No.6. Whether the counter claim has been
properly valued for the purpose of court fee
and jurisdiction? OPP
32. No arguments have been urged on this issue. I may in any case
record that the defendant/Counter Claimant has valued the Counter Claim
for the relief of declaration at Rs.200 and paid requisite court fees thereon
and which is in accordance with Article 17(iii) of Schedule II to the Court
Fees Act.
33. Issue no.6 is thus decided against the plaintiffs and in favour of the
defendant/Counter Claimant.
Issue No.2. Whether there was any mutual settlement as
regards the suit property? If so, its effect?
OPD
Issue No.7. Whether the defendant is entitled to the
decree of declaration as sought by way of
counter claim? OPD
CS(OS) No.1599/2008 & CC NO.25/2009 Page 17 of 24
34. Issue no.2 is the key issue on which adjudication of the suit and the
Counter Claim is dependent. If Issue no.2 is decided in favour of the
defendant/Counter Claimant, the suit for partition will be dismissed and
Counter Claim allowed. Conversely if Issue No.2 is decided against the
defendant/Counter Claimant, a preliminary decree for partition shall follow
and the Counter Claim dismissed.
35. As would be evident from the order dated 22nd April, 2016
reproduced above, this Court after hearing the counsels post conclusion of
evidence was not satisfied that the defendant/Counter Claimant had
discharged the onus of Issue no.2 but had still given an opportunity to the
defendant/Counter Claimant to prove documents with respect to „acting
upon of the oral partition‟ on the contention of the counsel for the
defendant/Counter Claimant of the respective shops having been mutated in
the name of the respective parties and electricity connection of Shop
No.1734 also known as Shop No.1734/2 which the defendant/Counter
Claimant claimed in the oral partition comes to his exclusive share had
been got changed in the exclusive name of the defendant/Counter Claimant
and that the oral partition was reflected in the Income Tax Returns of the
parties.
36. Though the defendant/Counter Claimant in pursuance thereto filed
IA No.9136/2016 supra but only seeking to examine the witnesses from (i)
BSES Yamuna Power Limited (ii) the Office of Delhi Sales Tax and (iii)
Indian Postal Department. Else in paras 3 & 5 of the application reference
was made to the evidence already led. The only additional documents filed
by the defendant/Counter Claimant along with this application were the
CS(OS) No.1599/2008 & CC NO.25/2009 Page 18 of 24
receipts of Money Orders sent towards rent of Shop No.1734 also known as
Shop. No.1734/2, Dariba Kalan, Delhi from January, 2001 to December,
2001, January, 2002 to December, 2002, January, 2003 to December, 2003
and January, 2004 to December, 2004 sent by M/s. Mehtab Singh Jain &
Sons and addressed to „Dear Madam‟, with no name of the addressee
thereon.
37. Else, the defendant/Counter Claimant in his examination-in-chief
purported to prove (i) Site Plan as Ex.DW1/1; (ii) Counterfoils of Rent
Receipts issued by the defendant/Counter Claimant of rent of Shop
No.1734/2, Dariba Kalan, Delhi to „Puneet Jewels‟ as Ex.DW1/2 to
Ex.DW1/26; (iii) Certificates of Registration under Delhi Value Added Tax
Act, 2004 of „Puneet Jewels‟ at Dariba Kalan, Delhi as DW1/27; (iv)
Certificate of Registration of Puneet Jain, proprietor of Puneet Jewels ,at
1734, Dariba Kalan, Delhi with Municipal Corporation of Delhi as
Ex.DW1/28; (v) Electricity Bills of Shop No.1734/2, Dariba Kalan, Delhi
in the name of the defendant Chakresh Jain as Ex.DW1/29 to DW1/35; (vi)
Bill of Electricity of Shop No.1734/2 of November, 1991 in the name of
M/s. Ranjit Singh Jain as Ex. DW1/36; (vii) Notice of Demand under the
Delhi Sales Tax Act, 1975 in the name of M/s. Ranjit Singh Jain Jewellers
at the address of 307, Dariba Kalan, Delhi as Ex.DW1/37; (viii)
Assessment Order of M/s. Ranjit Singh Jain Jewellers under the Delhi
Sales Tax Act for the year 1997-98 as Ex.DW1/38; and, (ix) Notice of
Demand under the Central Sales Tax Act, 1956 and Assessment Order in
the name of Ranjit Singh Jain Jewellers at the address of 307, Dariba
Kalan, Delhi as Ex.DW1/39 and DW1/40.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 19 of 24
38. While glancing through the aforesaid documents and to which no
attention was drawn by either counsels during the hearing, an interesting
aspect came to light. The counterfoils of Receipt of Rents issued to „Puneet
Jewels‟ filed and proved as Ex.DW1/2 to DW1/5 and DW1/15 to
Ex.DW1/26 by the defendant himself, show the same to have been issued
by "Suresh Chand Chakresh Kumar", demolishing the claim of the
defendant/Counter Claimant of oral partition. The rent receipts issued by
the defendant himself with respect to shop of which he claims to have
become sole owner under the oral partition, in the joint names of Suresh
Chand Jain (being the predecessor-in-interest of the plaintiffs) and the
defendant/Counter Claimant unequivocally establish that the said shop is
the shop of the plaintiffs as well as the defendant/Counter Claimant.
Though the remaining Rent Receipts do not bear the said stamp but the
same is of no avail. There was no explanation in the written statement in
this respect and there is no explanation thereof in the affidavit by way of
examination-in-chief of the defendant/Counter Claimant also. I am of the
view that the same is enough to allow the suit and to dismiss the Counter
Claim.
39. However since the counsel for the plaintiffs argued that the
defendant/Counter Claimant in his cross-examination has admitted in
entirety the claim of the plaintiffs, I have also perused the cross-
examination of the defendant/Counter Claimant conducted on 8th April,
2013, 12th September, 2013 and 23rd March, 2015. The defendant/Counter
Claimant therein is found to have stated (i) that there was no Dissolution
Deed of M/s. Ranjit Singh Jewellers and there was only an Assessment
Order proved by him as Ex.DW1/38 (however a perusal of DW1/38 being
CS(OS) No.1599/2008 & CC NO.25/2009 Page 20 of 24
an Assessment Order for the year 1997-98 of M/s. Ranjit Singh Jewellers
under the Delhi Sales Tax Act does not show that the firm had been
dissolved); (ii) that the possession of the shop was not delivered to him,
either by M/s. Ranjit Singh Jain Jewellers or by the Sale Tax Department
but by the verbal Family Settlement; (iii) that M/s. Ranjit Singh Jain
Jewellers was not the owner of either of the two shops; (iv) that he could
not admit or deny that M/s. Mehtab Singh Jain & Sons was occupying the
shop in its tenancy without payment of any rent; (v) that he did not obtain
the consent of the plaintiffs before giving the shop on rent to Puneet
Jewellers; (vi) he could not remember the date or month of the verbal
settlement whereunder the shops were so partitioned but it occurred in the
year 2000; (vii) the verbal Family Settlement was never recorded in writing
and there was no document of any nature with respect thereto; (viii) that he
did not execute any Relinquishment Deed pertaining to Shop No.307,
Dariba Kalan, Dehli or his business interest therein; (ix) that the shops till
date have not been mutated by MCD in the name of either of the parties;
(x) that he had never written to the MCD claiming that by way of oral
partition Shop No.1734 (also known as Shop No.1734/2) had come to his
share though he had been paying House Tax with respect to his portion
thereof; (xi) that he had not written any letter to M/s. Mehtab Singh Jain &
Sons informing that under the oral partition the shop in their tenancy had
gone to the plaintiffs; (xii) that about 8-9 months prior to 12th September,
2013, M/s. Mehtab Singh Jain & Sons had sent a money order for rent in
his wife‟s name but he had refused to accept the same; (xiii) that Puneet
Jain is his son and both he and his son are running the business of "Puneet
Jewels" in Shop No.1734 also known as Shop No.1734/2; (xiv) though
CS(OS) No.1599/2008 & CC NO.25/2009 Page 21 of 24
there was a rent agreement with Puneet Jewels but the same had not been
produced; (xv) that "it is correct that the plaintiffs are entitled to 50% share
in the suit properties. It is correct that one of the suit shops was lying
locked till November, 2005; again said, intermittently used to open that suit
shop even prior to that when electricity connection was disconnected by
DESU; it is incorrect to suggest that I broke open the locks of the said suit
shops and occupied the same in November, 2005; instead I occupied the
same with mutual consent of the plaintiffs and the defendant; Volunteered;
the keys of that shop were always with me; it is incorrect to suggest that
since November, 2005 I have been conducting the business in the shop
occupied by me; it is incorrect to suggest that I have not produced my ITR
(for which direction for production whereof was issued on the previous
date of 12th September, 2013); for the reasons I want to conceal that since
November, 2005 I have been conducting the business in the shop occupied
by me".
40. The defendant, indeed in the cross-examination on 23rd March, 2015
has admitted that the plaintiffs are entitled to 50% share in the suit
properties and the plaintiffs are entitled to decree on said admission also. In
the said context, notice may also be taken of order dated 3 rd February, 2014
recording "Learned counsel for the defendant submits that the witness does
not wish to produce the copies of his income tax returns pertaining to the
financial years 2004-2005 to 2012-2013" and that while deferring the
cross-examination on 12th September, 2013, direction was issued to the
defendant/Counter Claimant to produce the same. Adverse inference has to
be drawn against the defendant/Counter Claimant therefrom also. If a party
withholds important documents in his possession which can throw light on
CS(OS) No.1599/2008 & CC NO.25/2009 Page 22 of 24
the facts at issue, the Court may draw an adverse inference, even if the
burden of proof does not lie on the party. Reference may be made to Gopal
Krishnaji Ketkar Vs. Mohamed Haji Latif AIR 1968 SC 1413 and Union
of India Vs. Ibrahim Uddin (2012) 8 SCC 148.
41. The defendant/Counter Claimant, inspite of opportunity granted on
22nd April, 2016, has thus failed to discharge onus of Issue no.2.
42. The emphasis of the counsel for the defendant, on both shops being
of same size and with same location advantage, does not prove partition. It
cannot be forgotten that a vacant shop has far more value than a shop, of
the same size and with the same location, in the occupation of tenant
protected by Delhi Rent Control Act, 1958. Similarly, the factum of the
electricity meter being in the name of the defendant alone also does not
prove partition. The defendant, as a co-owner in occupation, was entitled to
apply therefor.
43. Resultantly, the suit has to succeed and the Counter Claim has to fail.
44. Issues no.2 & 7 are thus decided against the defendant/Counter
Claimant and in favour of the plaintiffs.
Issue No.8. Relief.
45. The suit thus succeeds. A preliminary decree for partition of Shops
No.1734-A & 1734 also known as Shops No.1734/1 & 1734/2, Dariba
Kalan, Delhi is passed, declaring the plaintiffs (i) Kanak Jain; (ii) Abhay
Kumar Jain; (iii) Rekha Jain; and, (iv) Ektaa Jain together to be having
50% share therein and the defendant Chakresh Kumar Jain to be having the
remaining 50% share therein.
CS(OS) No.1599/2008 & CC NO.25/2009 Page 23 of 24
46. Decree sheet be drawn up.
47. Counter Claim No.25/2009 of the defendant is dismissed.
48. Decree sheet be drawn up.
49. List for exploring the possibilities of partition of the properties by
metes and bounds. The counsels to on the next date of hearing also inform
the status of the eviction proceedings if any undertaken against M/s.
Mehtab Singh Jain & Sons.
50. List on 30th April, 2019.
RAJIV SAHAI ENDLAW, J.
APRIL 15, 2019 „pp‟ (Corrected and released on 29th April, 2019).
CS(OS) No.1599/2008 & CC NO.25/2009 Page 24 of 24