Delhi District Court
Sh. Jagdish Chander vs Sh. Naval Kishore on 22 March, 2022
CIS No. 615768/16
IN THE COURT OF MS. COLETTE RASHMI KUJUR:
ADJ-10: TIS HAZARI COURTS: DELHI.
SUIT NO. 134/2020
CIS NO. 615768/16
CNR NO. DLCT01-000586-2008
Sh. Jagdish Chander
S/o Late Sh. Panna Lal
R/o B-686, Madipur, J.J. Colony,
New Delhi-110063. .....Plaintiff
Versus
Sh. Naval Kishore
S/o Late Sh. Panna Lal
(since deceased through LRs:)
i) Smt. Ganga Devi
W/o Late Sh. Naval Kishore
ii) Sh. Vinod
S/o Late Sh. Naval Kishore
iii) Sh. Jai Parkash
S/o Late Sh. Naval Kishore
iv) Sh. Yoginder
S/o Late Sh. Naval Kishore
v) Ms. Kamla @ Aarti
D/o Late Sh. Naval Kishore
All R/o Shop No. B-24,
Block-B, Main Market,
Madipur Colony,
New Delhi-110063. .....Defendants
Jagdish Chander Vs. Naval Kishore Page 1 of 18
CIS No. 615768/16
Date of institution : 18.10.2008
Date on which reserved for judgment : 22.03.2022
Date of decision of preliminary decree : 22.03.2022
Suit for Permanent Injunction and for Partition of Properties
bearing No. (i) B-686, Madipur, J.J. Colony, New Delhi-
110063 and (ii) Shop No. B-24, Main Market, J.J. Colony,
Madipur, New Delhi-110063
JUDGMENT
1. A Preliminary decree is sought in this suit for partition of Properties bearing No. (i) B-686, Madipur, J.J. Colony, New Delhi-110063 and (ii) Shop No. B-24, Main Market, J.J. Colony, Madipur, New Delhi-110063 by the plaintiff Jagdish Chander.
2. As per the plaint, the plaintiff and the defendant (since deceased represented through Lrs) are the real brothers and sons of Late Sh. Panna Lal and were residing at the respective addresses as mentioned hereinabove in the array of the suit.
It is the case of the plaintiff that his father Late Sh. Panna Lal during his life time had acquired the following immovable properties:
(i) Residential house bearing Municipal No. B-686, Madipur, J.J. Colony, New Delhi-110063,
(ii) Shop bearing No. B-24, Main Market, J.J. Colony, Madipur, New Delhi.
Both the said properties are in the name of father of the plaintiff and after the death of his father Panna Lal, the plaintiff Jagdish Chander Vs. Naval Kishore Page 2 of 18 CIS No. 615768/16 and the defendant (since deceased) became co-owners having half shares each in the properties mentioned above.
It is stated that on several occasions the plaintiff as well as respected members of the society and relatives asked the defendant (since deceased) to partition the properties as aforesaid, left behind by Late Sh. Panna Lal but the defendant avoided the same and insisted for the partition of residential house only.
It is further stated that on 02.06.2006, the defendant insisted the plaintiff to leave the shop and sought partition of residential property. Thereafter, on 11.06.2006, the defendant attempted to dispossess the plaintiff from the residential house bearing No. B-686, Madipur, J.J. Colony, New Delhi-110063 but could not succeed and left the place with threats of coming again in near future.
It is further stated that on 16.06.2006, the defendant attempted and started dismantling the shop in question by deploying some labourers, the son of the plaintiff who happened to be passing from the area objected to the ill designs of the defendant and called the PCR. The local police reached there but showed their inability to interfere in the matter. It is submitted that the plaintiff was therefore constrained to file the civil suit which stood withdrawn on 20.09.2008 with liberty to file afresh. Hence, the present suit.
3. On being served with summons, defendant appeared before the court and filed his written statement.
Jagdish Chander Vs. Naval Kishore Page 3 of 18 CIS No. 615768/164. In his written statement, LRs of defendant have taken preliminary objections that the suit is liable to be dismissed as the Hon'ble Court has no pecuniary jurisdiction to entertain and try the present suit as the market value of both the properties is Rs. 36 lakhs. The suit is liable to be dismissed also as the plaintiff has not come with clean hands and has suppressed material facts from this Hon'ble Court. It is objected that no cause of action has arisen. The plaint is also liable to be rejected u/o 7 Rule 11 CPC. As per the defendant, the suit has not been properly valued for the purpose of court fee and jurisdiction. It is submitted that the father of the parties has divided the properties by executing a deed during his life time and the residential house bearing No. B-686, Madipur, J.J. Colony was given to the plaintiff and and the property No. B-24, Madipur, J.J. Colony was given to the defendant. It is submitted that the plaintiff did not file any site plan of both the properties which are claimed to be partitioned.
On merits, it is admitted that the property had been acquired by the father of the parties of the suit. The defendant has denied that defendant tried to dispossess the plaintiff from the property bearing No. B-686, Madipur, J.J. Colony, Delhi or given any threat to the plaintiff. It is further denied that any cause of action arose when the previous suit was withdrawn for filing the present suit. It is denied that the plaintiff was not ouster from the property bearing No. B-24, Main Market, Madipur, J.J. Colony Delhi.
Jagdish Chander Vs. Naval Kishore Page 4 of 18 CIS No. 615768/165. In replication, the contents of the WS are denied and those of the plaint are reaffirmed. The submission of the plaintiff that relief of preliminary decree of partition can be drawn only upon the very fact that the defendant no. 1 has not disputed/admitted that the suit property was owned by late Sh. Panna Lal who was the father of the plaintiff and the defendant. The defendant no. 1 also admitted that the plaintiff and the defendants are the only legal heirs of Panna Lal and also the fact that Panna Lal died intestate. It is stated in the replication that defendant no. 1 has made irrelevant submissions with respect to settlement made by late Panna Lal.
6. After the pleadings were complete, the parties were directed to file their affidavits on admission denial and matter was listed for framing of issues. The counsel for the plaintiff has insisted that a preliminary decree may be issued as no substantial question of facts or law has been raised by the defendant in his WS. Rather the defendant has admitted that his father was the owner of the suit property and died intestate.
7. From the pleadings of the parties, following issues were framed.
1. Whether the plaintiffs are entitled to get a decree of partition in respect of suit properties nos. i) B-686, Madipur, JJ Colony, New Delhi 110063 and ii) Shop No. B-24, Main Market, JJ Colony, Madipur, New Delhi 63 against the defendant as prayed for? OPP Jagdish Chander Vs. Naval Kishore Page 5 of 18 CIS No. 615768/16
2. Whether the plaintiffs are entitled to get a decree of permanent injunction of the aforesaid suit properties against the defendant, as prayed for? OPP.
3. Whether the suit is barred by limitation? OPP.
4. Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD
5. Relief.
8. Thereafter, the matter was proceeded for PE.
9. In order to prove his case, plaintiff has examined himself as PW1 Sh. Jagdish Chander. PW1 tendered his evidence by way of affidavit Ex. P-1, in which he has relied upon the copy of the death certificate of Sh. Panna Lal as Mark A. He was cross examined at length by the opposite party and admitted that the suit properties were allotted to his father because of removal of Jhuggis. He further stated that both the plots are the subject matter of the present suit are till date in the name of his father and he has not applied for mutation of the above plots in his name till date before the concerned authorities.
He further states that his father was illiterate. His father used to sign in Hindi. The plots in question were alloted to his father in the year 1968. He further stated that the construction on B-686 was raised by his father. It was constructed just after allotment. The construction was started in the year 1968. He admitted that he has not filed any site plan. Second floor and Jagdish Chander Vs. Naval Kishore Page 6 of 18 CIS No. 615768/16 barsati of this property has been raised by him. The same was constructed after the death of his father who died in the year 1987. No house tax is applicable in that area. Water and electricity connections are in his name. The construction later on raised by him was with the permission of Naval Kishore as they both were residing together. He further denied that the deceased defendant was carried out demolition in the shop of property no. B-24, Madipur Market, JJ Colony, Delhi 110062 on 16.06.2006. It is further denied that deceased defendant has demolished the entire property no. B-24, Madipur Market, JJ Colony, Delhi 110062 and reconstructed the same in the year 2006. It is further denied that his father has, during his lifetime, partitioned the properties owned by him. The family partition Ex. PW1/D2 is shown to the witness, which does not bear signature of father of the plaintiff at point A. Again witness is shown the allotment letter already Ex. PW2/1 and Ex. PW2/2, which bears signature of his father at point A. The area of property no. 686 is 22.5 sq. yards. He admitted that in the allotment letter, the area is mentioned as 25 sq. yards. He denied that the deceased defendant and his family was residing in B-24 as the said property was received by them in partition. It is denied that he had got the property no. B-686, in partition. He admitted that defendant has constructed the entire building of B-24 during the pendency of the case. He further admitted that he had filed the case in 2006. Further he denied that the ownership right of B-24 and B-686 is owned by DDA.
Jagdish Chander Vs. Naval Kishore Page 7 of 18 CIS No. 615768/1610. Plaintiff has also examined one witness i.e. PW 2 Sh. Kishan Singh and his evidence by way of affidavit is Ex. PW2/A and he has relied upon the documents Ex. PW2/1 and Ex. PW2/2 (both are OSR). In his cross-examination, he stated that as per his record paper, Sh. Panna Lal is the owner of both the plots. He voluntarily stated that he referred it "to allotment" and ownership accordingly only. He denied the suggestion that Sh. Panna Lal is merely a licensee in their record and he is shown as such in Ex. PW2/1 and Ex. PW2/2. As per his record, till date no legal heir of deceased Panna Lal have applied for mutation. He denied the suggest that Panna Lal is not the owner of both the plots.
11. Thereafter, no further questions were asked and no other plaintiff witness was examined, therefore, PE was closed.
12. Thereafter the defendant in his evidence, examined one witness as DW 1 Sh. Jai Prakash and his evidence by way of affidavit is DW1/A. He relied upon the following documents i.e.
1) the Deed/Will mentioned as Ex. DW1/1, photocopy of which is already Ex. PW1/D2. Original Will is taken on record. 2) Copy of ration card of deponent is Mark A (Ex. DW1/2 is de-exhibited being photocopy), 3) Copy of water bill is Mark B ( Ex. DW1/3 is de-exhibited being photocopy).
He is cross examined at length and stated that Sh. Panna Lal was the owner of both the properties bearing No. B-686, Madipur J.J. Colony, Delhi and B-24, Madipur, New Delhi. He further stated that as on today also, the aforesaid properties stand Jagdish Chander Vs. Naval Kishore Page 8 of 18 CIS No. 615768/16 in the name of Sh. Panna Lal in DDA. He voluntarily stated that the aforesaid properties have been partitioned. He further stated that till today, no information has been given to DDA in respect of partition of the aforesaid properties. He further stated that it is correct that no date, month and year have been mentioned on Ex. DW1/1. It is correct that none of the witnesses mentioned in Ex. DW1/1 are either related to deceased Sh. Panna Lal or to the plaintiffs or the parties of the suit. It is correct that Ex. DW1/1 was not written in his presence. He further stated that he is not aware when and where Ex. DW1/1 was executed. Ex. DW1/1 is the Will of Sh. Panna lal and not a partition document. He denied the suggestion that at the time of filing of the present suit, the value of property No. B-686 was Rs. 3 lacs and the value of the property bearing No. B-24 was Rs. 9 lacs. He further stated that he does not have any document to show that values of the properties bearing No. B-686 and B-24 are Rs. 18 lacs each. He cannot tell any nearby property which has been sold @ Rs.18 lacs. He further denied the suggestion that there was no partition between the parties.
13. The defendant in his evidence, also examined one witness as DW 2 Sh. Yatinder Mohan Sharma and his evidence by way of affidavit is DW2/A. He relied upon the Deed/Will mentioned as Ex. DW1/1, photocopy of which is already Ex. PW1/D2.
He was cross examined by opposite party in which he admitted that the allottee of B-23, Main Market, Madipur is Mangu Ram. Earlier he was his tenant. He had purchased the said Jagdish Chander Vs. Naval Kishore Page 9 of 18 CIS No. 615768/16 shop B-23, Main Market, Madipur from his wife. He was also admitted that under the signatures of Panna Lal, as alleged, no date is mentioned. It was also admitted that document Ex. PW1/D2 is not in the handwriting of Panna Lal. He was also alleged in his cross examination that "I left and told Panna Lal when the document is written you may call me to witness the same and thereafter, Pradhan Sh. Shiv Narain Lutharia came to me and call to witness the document. The document was already prepared before I reached there. I had not read the document before signing the same as a witness. I cannot tell the contents of the document as on today as I had not read the same"
14. As no other defendant witness remains to be examined, DE was closed and matter was fixed for final arguments.
15. Arguments heard on behalf of both the parties.
16. Written submissions was filed on behalf of the defendant wherein it is stated that the said properties were allotted to Panna Lal in lieu of removing the Jhuggies and the allotment letter was issued in the name of deceased Panna Lal being as licencee and licence fees was deposited by Panna Lal. The allotment letter is already Ex. PW2/1 and Ex. PW2/2.
It is further stated that Panna Lal had expired in the year 1987 and the said suit is filed in the year 2008. It is further admitted till date no legal heirs of deceased Panna Lal have applied for mutation. The other witness is PW-1 Jagdish Chander Jagdish Chander Vs. Naval Kishore Page 10 of 18 CIS No. 615768/16 (Plaintiff) and in the cross-examination, the plaintiff has admitted that he had not filed the site plan of both the properties. The plaintiff has admitted that he has not filed any valuation report of the properties and further admitted that the defendant has constructed the entire building of B-24, during the pendency of the suit. The plaintiff has failed to prove that the defendant was shifted in the property B-24, after the death of Panna Lal.
It is further argued that the defendant's family members are residing in that premises being as exclusive rights and the plaintiff has no right in that premises. The other witness is Yatinder Mohan Sharma as DW 2 to prove the writing/deed/Will Ex. DW1/1 executed by late Sh. Panna Lal. In the cross examination, it is admitted that the said writing bears the signature of Panna Lal.
It is further argued that the law is well settled that a licensee holding a property cannot be entitled to seek the relief of partition as per the provisions of the easement act also.
17. Ld. Counsel for the defendant has relied upon the judgments i.e. "Pranav Prakash Vs. Arya Samaj 113 (2004) DLR 325; RFA 220/2014 in Hon'ble High Court of Delhi in Mohd. Kamwar vs. Mohd. Umar, decided on 22.07.2014, to argue that the plaintiff has no right, title or interest in the suit property.
Ld. Counsel for the defendant has also relied upon Madan Jagdish Chander Vs. Naval Kishore Page 11 of 18 CIS No. 615768/16 Lal vs. Ram Pratap RSA No. 72/1991 decided on 02.12.2010; Razia Begum vs. DDA 204 (2013) DLT 295" to argue that suit is barred by law of limitation.
In reference to the judgment case tiled as Ganpat Ram Vs. Bhuri Devi bearing CS No. 385/2009, decided by Sh. Manish Yudhwanshi, Ld. ADJ, Central, Delhi decided on 03.09.2016, wherein the plaintiff claimed the relief of partition and injunction regarding the property situated in JJ Colony, Madipur, Delhi 110063 and held that the property in question was allotted by the Slum & JJ Department DDA under the scheme launched by the Government, the allottee was having only a right of license and no lease deed was executed or formed qua the ownership right over the property. The ownership rights were never transferred from DUSIB to the allottee. The plaintiff had not claimed the relief of declaration in respect of the suit property, so the suit was decided against the plaintiff and dismissed.
18. My issue wise findings upon the pleadings and the evidence led by the parties is as under:
ISSUE NO.1.
Whether the plaintiffs are entitled to get a decree of partition in respect of suit properties nos. i) B-686, Madipur, JJ Colony, New Delhi 110063 and ii) Shop No. B-24, Main Market, JJ Colony, Madipur, New Delhi 63 against the defendant as prayed for? OPP The onus to prove this issue was upon the plaintiff. To prove his case, the plaintiff has led evidence to depose that he Jagdish Chander Vs. Naval Kishore Page 12 of 18 CIS No. 615768/16 and the defendant are real brothers and sons of Late Sh. Panna lal. That there is no dispute to the fact that Sh. Panna Lal expired in the year 1987 leaving them as his legal heirs.
The plaintiffs case that two properties
(i) B-686, Madipur, J.J. Colony, New Delhi-110063 and
(ii) Shop No. B-24, Main Market, J.J. Colony, Madipur, New Delhi-110063 by the plaintiff Jagdish Chander.
were in the name of their father Sh. Panna Lal is also not disputed. As per the plaintiff, the defendant and the plaintiff are entitled to equal half shares in both the properties. It is the plaintiffs case that the suit properties were allotted to his father in lieu of removal of the jhuggis and that both the plots are still in the name of their father. During cross examination, these facts have been confirmed.
The plaintiff examined PW 2 who reiterated the said facts in cross examination. PW 2 UDC/DDA also confirmed that no legal heir of Panna Lal has applied for mutation till date. The DW 1 admits the fact that Panna lal was the owner of the properties and still stand in the name of Panna Lal in DDA.
It has been argued on behalf of the defendant that since the suit property is leased property of DDA, same cannot be partitioned. However, in Chiranji Lal & Anr. v. Bhagwan Das & Ors., DRJ 1991 (Supp.), it has been held that plot in joint lease from government - super structure built on a plot can be partitioned by metes and bounds according to respective shares of parties while keeping the plot under neath the structure as joint - No permission of Lessor needed for effecting partition of Jagdish Chander Vs. Naval Kishore Page 13 of 18 CIS No. 615768/16 building by metes and bounds.
The second argument that there was no oral settlement of the properties is in answer to the defence of the defendant that father of the parties had divided the properties by executing a deed during his lifetime whereby the residential house bearing no. B-686, Madipur, J.J. Colony, New Delhi-110063 was given to plaintiff and shop no. B-24 was given to the defendant.
The plaintiff has already stated that the properties are still in the name of their father which is confirmed by PW 2. DW 1 Jai Prakash who is LR of defendant no. 1 and grand son of Panna Lal has asserted that the properties have been partitioned but has not been informed so to DDA. During cross examination, the witness was categorical asked the source of such knowledge is which it is stated that, his mother had told him about Ex. DW1/1.
During cross of this witness it was also affirmed that the said document is not in the handwriting of Sh. Panna Lal and the document is undated and does not mention where it was executed. It is also affirmed by the said witness that Ex. DW1/1 is the will of Panna Lal which was executed in the absence of relatives of Late Sh. Panna Lal. The defendant has not examined any of the witnesses to the document Ex. DW 1/1, except DW 2 who deposed that "I left and told Panna Lal that when the document is written you may call to me witness the same and thereafter, Pradhan Sh. Shiv Narain Lutharia came to me and call to witness the document. The document was already prepared before I reached there. I had not read the document before signing the same as a witness. I cannot tell the contents of Jagdish Chander Vs. Naval Kishore Page 14 of 18 CIS No. 615768/16 the document as on today as I had not read the same". Clearly, the document does not mention the parentage, residence etc. of the witnesses therefore it cannot for certain be stated that DW 2 was a witness at all to the said document. Even so, the document is unsigned by DW 2 when compared to the signatures on the evidence conducted on 30.04.2019.
On these grounds alone, the first issue is decided in favour of the plaintiff and against the defendants.
ISSUE NO.2 Whether the plaintiffs are entitled to get a decree of permanent injunction of the aforesaid suit properties against the defendant, as prayed for? OPP.
The onus to prove this issue was upon the plaintiff. It has been alleged that on 16.06.2006, the defendant started dismantling the shop bearing B-686, Madipur, J.J. Colony, New Delhi-110063 which was brought to the notice of the police and PCR was called, thereby defendant is trying to deprive the valuable rights, shares etc. in the suit property.
The defendant has not denied the occurrence of this incident on 16.06.2006 and in fact, referred to the statement of the plaintiff given to the police on the said dae which confirms that the defendant is living in the suit property B-24 for last more than 20 years. In the absence of any specific denial, it is proved that the defendant has made alterations and construction upon it despite objections by the plaintiff. The same is also brought out Jagdish Chander Vs. Naval Kishore Page 15 of 18 CIS No. 615768/16 in the cross of plaintiff. Although there is no police complaint in the file. The defendant has not denied it. The issue is therefore decided in favour of the plaintiff to the extent of B-686, Madipur, J.J. Colony, New Delhi-110063.
ISSUE NO.3 Whether the suit is barred by limitation? OPP.
The onus was upon the plaintiff to prove this issue. The defendant has objected to the suit also on ground of limitations, however the document produced by him is more in the nature of will but is undated and not proved. Even so there is no prescribed period of limitation in a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if any when he decides to separate his share from the co-sharers.
This issue is also hence decided in favour of the plaintiff.
ISSUE NO.4 Whether the suit is not properly valued for the purposes of court fees and jurisdiction? OPD The onus was put upon the defendant to show that the suit is not property valued.
As per the defendant, the value of both the properties is Rs. 18 lacs each and total value of the properties is therefore Rs. 36 lakhs. Therefore, the plaintiff needs to pay the advalorem court Jagdish Chander Vs. Naval Kishore Page 16 of 18 CIS No. 615768/16 fee. According to the market value of the property.
In his cross examination DW 1 however states that he has no document to show that the market value of the properties is as affirmed by him. He also denied the suggestion that at the time of filing the suit the residential property was for Rs. 3 lakhs and commercial property was for 3 lakhs. The affirmation of the defendant therefore remains unproved and hence the issue is decided against the defendant.
Relief Considering the admission made by the defendant in the present suit and for the above stated observations, that the defendant has not raised any substantial question of law or fact upon which an issue arises or need be framed, I am in consonance with the plaintiff and hold that the plaintiff is entitled to partition of suit properties bearing No. (i) B-686, Madipur, J.J. Colony, New Delhi-110063 and (ii) Shop No. B-24, Main Market, J.J. Colony, Madipur, New Delhi-110063. Hence, a preliminary decree is issued in favour of the plaintiff in the present suit.
19. The plaintiff is also entitled to the decree of permanent injunction restraining the defendants from selling, transferring, conveying the above said properties or creating any third party interest in the said properties till the final disposal of the present case.
Jagdish Chander Vs. Naval Kishore Page 17 of 18 CIS No. 615768/1620. The Local Commissioner Sh. Neeraj Gupta Enrollment No. D/4566/2010, Chamber No. 1419, Lawyer's Chamber Block, Rohini Courts Complex, Delhi 110085 having fees of Rs. 15,000/- which shall be paid by both the parties and Local Commissioner be appointed to visit the properties bearing no. (i) B-686, Madipur, J.J. Colony, New Delhi-110063 and (ii) Shop No. B-24, Main Market, J.J. Colony, Madipur, New Delhi- 110063 and is directed to file his report whether the said suit properties are/ can be partitioned by metes and bounds in equal proportion between the plaintiff and the defendants.
21. Cost of the suit are also awarded in favour of the plaintiff.
22. Preliminary decree be drawn accordingly.
Announced in the open court (Colette Rashmi Kujur)
on 22.03.2022 ADJ-10/Central/THC/Delhi
Jagdish Chander Vs. Naval Kishore Page 18 of 18