Delhi District Court
Yogesh Bansal vs . Balbir Singh. on 25 October, 2017
CS No. 31/2016
New CS No.
Yogesh Bansal vs. Balbir Singh.
IN THE COURT OF SHRI SHAILENDER MALIK:
ADDITIONAL DISTRICT JUDGE03: CENTRAL:
TIS HAZARI COURTS DELHI
CS No. 31/2016
New CS No.
In the matter of :
Shri Yogesh Bansal
S/o Shri K. B. Bansal
R/o 34, Ashoka Park Extn.
Punjabi Bagh
New Delhi 26 ...... Plaintiff
Versus
1. Shri Balbir Singh Tyagi
S/o Shri S. R. Tyagi
R/o 385, Village Hastal
Uttam Nagar
New Delhi110059
2 M/s. Nova Electro World
A Partnership Firm
Through Its partners
Shri Krishan Baldev Bansal
29B, BlockA, Defence Enclave
(Madhu Vihar), Opp. Hind
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Yogesh Bansal vs. Balbir Singh.
Apartments, Sector5, Dwarka
New Delhi
And Resident of:
34,Ashoka Park Extn.
Punjabi Bagh
New Delhi26 .....Defendants
Date of filing of the Suit : 20.12.2006
Date of passing the Judgment : 25.10.2017
JUDGMENT
This is a suit for partition and injunction.
2 The case of the plaintiff as stated in the plaint is that plaintiff and defendant no. 1 are coowners of property bearing No. 28B, being part of Khasra No. 107/25/3 situated in the area of Village Palam, abadi known as Defence Enclave (Madhu Vihar), Block A, New Delhi measuring 265 Sq.Yds. (hereing after referred as Suit Property), shown in the site plan. It is stated that plaintiff and defendant no. 1 have purchased the above said suit property on 17.02.2004 from its previous owner CS No. 31/2016 Page 2 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
Smt. Hari Kunwar w/o Sh. Phool Singh for sale consideration of Rs. 2,50,000/. Previous owner Smt. Hira Kunwar stated to have transferred thereby the title in the suit property in favour of plaintiff and defendant no. 1, vide documents like : Agreement to Sell, Affidavit, Two General Power of Attorneys, Will, Possession Letter and Receipt, all dated 17.02.2004. It is stated that Smt. Hari Kunwar also delivered vacant, physical possession of the above said suit property to plaintiff and defendant no. 1 on 17.02.2004. Since then they are in possession of the same.
3 It is further averred in the plaint that on 15.09.2004, plaintiff and defendant no. 1 along with Sh. Kishan Baldev Bansal (father of the plaintiff), Smt. Mithilesh Tyagi (wife of defendant no. 1) formed a partnership under the name and style of M/s. Nova Electro World (Defendant no. 2) under the partnership deed dated 15.09.2004. Defendant no. 2 firm stated to CS No. 31/2016 Page 3 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
have started its business of sale of electronic goods from last week of October 2004 from the suit property which was let out by plaintiff and defendant no. 1 jointly being coowner. In this regard, plaintiff and defendant no. 1 stated to have given "No Objection" for letting out the suit property to M/s. Nova Electro World with rent @ Rs. 10,000/ p.m. Defendant no. 1 as partner of defendant no. 2 firm also furnished a statement of dealer duly signed by him, in the Sales Tax Department wherein defendant no. 2 firm is shown to be tenant in the suit property. It is mentioned in the plaint that defendant no. 2 firm started paying rent of Rs. 10,000/ to plaintiff and defendant no. 1 from October 2004 regarding which two rent receipts of Rs. 5000/ each dated 02.12.2004 was issued as plaintiff and defendant no.1 received Rs. 5000/ each out of the rent amount. It is mentioned in the plaint that defendant no. 2 firm continued paying rent thereafter till March 2005 @ of Rs. 5000/ each to plaintiff and defendant no. 1 respectively.
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4 It is further mentioned in the plaint that business
of defendant no. 2 firm from the suit property continued till the middle of September 2006, when it was decided between the partners of the firm including plaintiff and defendant no. 1, that partnership firm, which is a partnership at "Will", it be dissolved and the tenancy rights of the firm be surrendered. Accordingly, all stocks/ goods including account book and computers containing accounts and other records etc. of the firm were removed gradually by defendant no. 1 from the suit property to his godown at Uttam Nagar as well as at his residence. Ultimately, tenancy of defendant no. 2 been surrendered and suit property was vacated and its possession was handed over to plaintiff and defendant no. 1 in November, 2006.
5 It is stated that defendant no. 1 has assured plaintiff that all the stocks / goods so removed from the CS No. 31/2016 Page 5 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
suit property shall be accounted for, at the time of final settlement of accounts between the partners. It is, however, alleged that defendant no. 1 kept on delaying the issue regarding rendition of accounts to plaintiff and other partners on one pretext or other. As such accounts of the partnership firm/ defendant no. 2 have not been settled.
6 It is further mentioned in the plaint that since the suit property is lying vacant under the lock and key of the plaintiff and defendant no. 1 being joint owners in possession. Plaintiff and defendant no. 1 being coowner of suit property are having onehalf undivided share in the suit property. It is stated that plaintiff is no more interested to keep the suit property as joint and wants to separate his portion in the property. Plaintiff, therefore, stated to have asked defendant no. 1 to mutually partition the property by onehalf share each. Defendant no. 1, allegedly declined to do so. It is alleged that CS No. 31/2016 Page 6 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 1 instead of partitioning the suit property by metes and bound, threatened and intended to transfer the suit property or its part to some third person. Therefore, present suit was filed with prayer for preliminary decree of partition defining the share of the plaintiff and of defendant no. 1 as onehalf share in the suit property i.e. bearing No. 28B, being part of khasra No. 107/25/3 situated in the area of Village Palam, abadi known as Defence Enclave (Madhu Vihar), Block A, New Delhi. It is further prayed that by decree of permanent injunction, defendant no. 1 be restrained from dispossessing the plaintiff from the suit property or from creating any interference in the enjoyment of the plaintiff in the suit property or from transferring selling the suit property to any third party.
7 Defendant no. 1 and 2 filed joint Written Statement pleading therein that plaintiff has concealed true and material facts, as such suit is liable to be CS No. 31/2016 Page 7 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
dismissed on this account only. It is pleaded that no doubt suit property was purchased by plaintiff and defendant no. 1 jointly, but it was a raw built up property as it was built up to the ground floor slab, with unfinished construction works. It was purchased for sale consideration of Rs.2,50,000/ from previous owner Smt. Hari Kunwar (Wife of Phool Singh). It is pleaded that deal regarding purchase of the suit property was got finalized through one Rajinder Singh of M/s. Pradhan Properties, an estate agent. It was agreed between the parties that seller, Smt. Hari Kunwar would execute necessary sale documents in respect of suit property, in favour of purchaser in February, 2004. Smt.Hari Kunwar and her husband Phool Singh, however, allowed defendant no. 1 to continue and complete the construction work over the suit property. It is further pleaded that thereafter under an oral agreement with Smt.Hari Kunwar, in the month of November, 2003 for the purchase of suit property, it was agreed that CS No. 31/2016 Page 8 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
erstwhile owner will permit defendant no. 1 to carry out further construction in the property by the funds of defendant no.1.
8 It is stated in the written statement that construction over the suit property had started in November 2003 till last week of February 2005. Property was built up to two stories as it exists now. It is pleaded that for the purpose of construction over suit property a sum of Rs. 23,17,591/ was spent from the pocked of defendant no. 1 only. It is stated that a sum of Rs. 2,50,000/ were given as sale consideration for purchase of suit property as it was unfinished and under construction. It is stated that in the meantime, on 17.02.2004 formal purchase documents like GPA, SPA, Agreement to Sell, Will etc. were executed by Smt. Hari Kunwar in favour of plaintiff and defendant no. 1 jointly. It is pleaded that possession of the suit property was also handed over to plaintiff and defendant no. 1 jointly.
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9 It is mentioned in the written statement that
defendant no. 1 had spent sum of Rs. 23,17,591/ for the purpose of construction from his personal account. Plaintiff also had the account of the amount spent for the construction over the suit property, same was being maintained by plaintiff in his own handwriting. It is pleaded that plaintiff at that time was going through a financial crunch and had no liquidity, therefore, it was agreed that defendant no.1 would spend the money on the construction over the suit property and on plaintiff's request, defendant no. 1 spent entire amount for the construction from his own pocket. Plaintiff told the defendant no. 1 that he would return the money of his share spent on construction of the building later, after completion of the construction.
10 It is pleaded that in September, 2004 plaintiff and defendant no. 1 started a business of retailing electronic CS No. 31/2016 Page 10 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
goods and entered into a partnership under the name and style of "M/s. Nova Electro World". In that partnership firm, defendant no. 1 joined his wife Smt. Mithilesh Tyagi and plaintiff joined his father Sh. K. B. Bansal as partner in the firm. It is pleaded that in said partnership, defendant no. 1, his wife had a joint share of 55% and the Plaintiff and his father had a joint share of 45%. It is pleaded that right from the starting of business of partnership firm, its business showed steady losses. It is pleaded that when defendant no. 1 reminded the plaintiff and requested him to pay his share of money spent for construction over the suit property, in April 2005. Plaintiff told him that since he is going through a financial difficulty coupled with the fact that firm is also going into losses, therefore, he was not in position to pay his share of cost of construction. Plaintiff stated to have promised defendant no. 1 that he would pay his share of construction, which comes out to be Rs. 11,55,795. to defendant no. 1 later. It is pleaded that at CS No. 31/2016 Page 11 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
that time, plaintiff and defendant no. 1 were having very cordial relations and defendant no. 1 treated plaintiff as his son. Therefore, defendant no. 1 believed the words of plaintiff.
11 It is further pleaded in the written statement that in the month of March, 2005, it was mutually agreed between partners of defendant no. 2 firm to enhance the capital. At that time plaintiff was facing financial problem in April 2005 plaintiff arranged a sum of Rs. 5 lacs by disposing off one of his immovable property i.e. plot admeasuring 400 sq. yds. Comprised in Khasra No. 46/40 in New Guru Har Kishan Colony in Village Nalothi and spent Rs. 5 lacs towards his share in the capital of defendant no. 2 firm. It is pleaded that plaintiff stated to have requested defendant no.1 that since he is not in position to pay his share of Rs. 11,58,795/ towards cost of construction on the suit property, defendant no. 1 had given more time to CS No. 31/2016 Page 12 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
plaintiff to arrange the amount. Since defendant no. 2 firm was still in losses, plaintiff suggested defendant no. 1 that since he is not in position to pay his share of cost of construction, therefore, he do not want the ownership in the suit property and the amount of Rs. 1,25,000/ which he had spent for purchase of the suit property, may be adjusted to be included in working capital of defendant no. 2 firm. And after that, he would execute necessary documents in favour of defendant no. 1 in suit property. So that defendant no. 1 becomes absolute owner of the same.
12 It is further pleaded in written statement that suit property, for the facts as stated above cannot be partitioned. Defendant no. 1 has also taken the objection that suit has not been properly valued for the purpose of court fees and jurisdiction. Even as per the case of plaintiff, plaintiff had spent sum of Rs. 1,25,000/ for purchase of suit property and on the other hand CS No. 31/2016 Page 13 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 1 had spent Rs. 24,24,591 as such the total value of suit property is amounting to Rs. 25,67,591/. It is stated that as per valuation of amount contributed, share of plaintiff is only to extent of around 4.86%. Objection is also taken that suit is not properly valued for court fee and jurisdiction and plaintiff has valued the suit for the purpose of court fee / jurisdiction to the tune of Rs.10 lacs. Defendant has also taken the objection that suit is devoid of cause of action. Case of the plaintiff was denied on merit.
13 Plaintiff filed the replication to the written statement of defendants. Wherein all the pleadings and the defence taken by the defendant no. 1 were controverted. It is stated that while erstwhile owner Smt. Hari Kunwar had allowed plaintiff and defendant no. 1 to raise further construction over the suit property, from November 2003 onward i.e. much before the execution on sales documents in favour of plaintiff and CS No. 31/2016 Page 14 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 1. It is stated that construction of first and second floor of suit property was got raised both by plaintiff and defendant no. 1. It is specifically denied that defendant no. 1 had spent amount of Rs. 23,17,591/ from is pocket. It is pleaded that plaintiff and defendant no. 1 have equally contributed for entire cost of construction. It is, however, not denied that plaintiff was keeping the account of all the expenses incurred by the plaintiff and defendant no. 1 on the construction over the suit property in his own handwriting. It is, however, denied that plaintiff was going through any financial crunch or that he had no liquidity at that time. It is also denied that it was agreed between the plaintiff and defendant no. 1 that defendant no. 1 would spend money on the construction from his own account or that plaintiff would return his share of cost of construction later. It is sated in the replication that defendant no. 1 is deliberately with holding sheets of accounts maintained by the plaintiff in his own handwriting which contains CS No. 31/2016 Page 15 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
the details of expenses incurred by the plaintiff from his pocket towards construction over the suit property.
14 While placing on record certain sheets of accounts along with replication, it is stated that plaintiff is producing those sheets showing the amount spent by him from his pocket towards construction over the suit property. It is stated that those sheets will clearly indicate that some cash payments were received from one Parminder Singh as Parminder Singh owe money to plaintiff and defendant no. 1 on account of purchase of choir foams from plaintiff and defendant no. 1 when they are carrying on choir business jointly.
15 Here, it is also necessary to mention that plaintiff had specifically denied the pleadings of defendant no. 1 in the written statement to the effect that plaintiff had promised to him that he would pay his share of Rs. 11,58,795/ towards the cost of construction later. It is CS No. 31/2016 Page 16 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
related that plaintiff had equally contributed in the entire cost of construction as such defence of the defendant is incorrect. It is also denied that in the month of March 2005 it was mutually agreed money the partners of defendant no. 2 firm to enhance the capital of the firm. While denying that plaintiff was facing financial problem. It is also denied that plaintiff arranged sum of Rs. 5 lacs after dispossessing off his immovable property of New Guru Har Kishan Nagar Colony. It is stated that plaintiff had never disposed of his such property. Certain other facts have also been mentioned in the replication. Plaintiff has further denied to that he had ever suggested to defendant no. 1 that on account of his failure to pay his share of cost of construction over the suit property, the amount of Rs.1,25,000/ spent by him for the purpose of purchasing the suit property, be adjusted in working capital of defendant no.1 or that thereafter he would execute necessary documents in favour of defendant no. 1 CS No. 31/2016 Page 17 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
whereby defendant no. 1 would become an absolute owner of the suit property. Such pleadings of the defendant have been denied and case of the plaintiff has been reiterated.
16 On the basis of pleadings as come on the judicial record, following issues were framed on 09.08.2007: ISSUES
1. Whether the suit property continued to be a tenancy premises of defendant No. 2? (OPD)
2. Whether suit of the plaintiff is bad for non joinder of the other partners of defendant No. 2, if so its effect? (OPD).
3. Whether the suit is properly valued for the purpose of court fees and jurisdiction? (OPD).
4. Whether this court has pecuniary jurisdiction to try the suit? (OPD).
5. Relief.
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17 After framing of the above said issues, defendant
was called upon first to lead evidence to substantiate his defence. During the course of trial, an application under Order 14 Rule 5 CPC was moved on behalf of defendant no. 1 and this court vide order dated 28.10.2016 framed the following additional issues : Additional Issues
5. Whether further construction in the property was done by defendant no. 1 form his funds only by spending Rs.23,17,591? (OPD1)
6. Whether on account of financial crunch being faced by plaintiff, it was agreed that defendant no. 1 would spend on the construction and the plaintiff will pay his share of cost of construction to defendant no. 1 later, which CS No. 31/2016 Page 19 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
plaintiff did not pay despite reminding by defendant in April, 2005? (OPD1)
7. Whether plaintiff suggested to defendant no. 1 that on account of his inability to pay Rs.11,58,795/, being his share of cost of construction and that he did not want ownership in the suit property, therefore, plaintiff suggested for adjustment of Rs.
1,25,000/ being amount spent for sale consideration towards the working capital of defendant no. 2 firm and also agreed to executed necessary documents in this regard, as such defendant no. 1 became exclusive owner of the suit property? (OPD1).
8. Whether plaintiff is entitled for relief of CS No. 31/2016 Page 20 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
partition and injunction as prayed for ? (OPP).
18 Defendant no. 1 has examined four witnesses. DW 1 is defendant no. 1 Balbir Singh Tyagi, DW2 is Satish Kumar Khanna, DW3 is Subhash Chand Kaushik and DW4 is Satish Kumar Rajput. Plaintiff has appeared in the witness box as PW1. No other witness was examined by plaintiff.
19 I have heard counsels for the parties and has also gone through the written synopsis filed on behalf of the defendant no. 1. My findings on each of the above mentioned issues are following: 20 ISSUE NO. 1 Whether the suit property continued to be a tenancy premises of defendant No. 2? (OPD) 21 Onus of proving this issue was on defendant no. 1. It is undisputed fact as is evident from the pleadings CS No. 31/2016 Page 21 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
that plaintiff along with his father and defendant no. 1 along with his wife formed a partnership firm by name M/s. Nova Electro World (defendantno. 2). It is also undisputed that such firm started running its business of selling electronic goods from the suit property somewhere in last week of Oct. 2004. It is also undisputed that defendant no. 2 firm took suit property on rent of Rs. 10000 per month, out of which Rs. 5000 each were payable to plaintiff and defendant no. 1 being coowner of suit property.
22 Plaintiff, however, has stated in the plaint that later in middle of Sept. 2006, it was decided by all the partners of defendant no. 2 firm that partnership, which is in nature of 'at Will', be dissolved and tenancy of the firm be surrendered. Plaintiff has alleged that thereafter all the stocks / goods including accounts book, computers etc containing accounts and other records were removed by defendant no. 1 to his godown at Uttam Nagar as well CS No. 31/2016 Page 22 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
as at his residence. Plaintiff alleged that accounts of partnership firm were never settled and defendant no. 1 yet to render the accounts of the firm. These allegations of the plaintiff have been denied by the defendant no. 1 in the WS taking the plea that in fact partnership of defendant no. 2 firm has never dissolved and tenancy of defendant no. 2 firm still continue from the suit property.
23 I may mention here that findings on these disputed facts though has not much bearing on the ultimate relief of partition sought by the plaintiff. However, since defendant has disputed the very claim of plaintiff to seek partition of suit property in that sense, findings on the issue under consideration assumes importance. Let us now examine the evidence in this regard. As noted above, keeping in view the defence taken by the defendant no.1 in the WS, he was called upon first to lead evidence. Defendant no. 1 has appeared in the CS No. 31/2016 Page 23 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
Witness box as DW1. For the purpose of issue under consideration DW1 testifies (para11) that in September 2004, plaintiff and he started business of retailing electronic goods and entered in a partnership by name M/s Nova Electro World. DW1 says that his wife Mithilesh Tyagi and plaintiff's father K.B.Bansal were also partners in that firm. DW1 says that right from the starting of business of such firm, it remained in losses. DW1 while testifying regarding cost of construction paid by him has also testified that plaintiff due to financial crunch promised to pay his share of construction to him later. DW1 further testifies (para 13) that in the month of March 2005 it was mutually agreed by partners of the defendant no. 2 firm to enhance the capital. DW1 says that since at that time plaintiff was facing financial problem, in April 2005 plaintiff arranged a sum of Rs. 5 lacs by disposing off his property / plot situated in New Guru Hari Kishan Nagar Colony, Village Nalothi and spent Rs. 5 lacs towards his share in the capital of CS No. 31/2016 Page 24 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 2 firm. DW1 has testified that suit property is still in the possession of defendant no. 2 firm as tenant and tenancy can not be surrendered without expressed consent of partners. DW1 says that stocks / goods of defendant no. 2 are still lying in the suit property. He has proved photograph as Ex.DW1/6 to establish possession of Defendant no. 2 firm over the suit property.
24 Now, if I examine such portion of deposition of DW 1 first of all, defendant no. 1 has not proved any documentary evidence to show that defendant no. 2 firm is still working or operating from the suit property. If a partnership firm in which plaintiff and defendant no. 1 both are admittedly partner beside wife of defendant no. 1 and father of plaintiff, it was very natural and obvious for defendant no.1 to place on record any document showing that such firm is still in existence and operating from the suit property. In this regard, it is important to CS No. 31/2016 Page 25 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
refer cross examination of DW1 when he has deposed that he has not placed on record any photograph to show running of business by defendant no. 2 firm from the suit property after September 2006. No doubt, such partnership was admittedly formed under a Partnership Deed dt 15.09.2004 but such Deed had not been proved on the record in the evidence of DW1.
25 It is argued by ld. Counsel for defendant no. 1 that since no written notice of dissolution of such firm was given by either of the partner of the firm expressing intention to dissolve the firm, in the absence of any such notice firm cannot be assumed to have dissolved. As per Section 7 of the Partnership Act, when no provision is made by contract between the partners regarding duration of the partnership or regarding determination of their partnership, then such partnership is considered to be 'at Will'. Section 40 of Partnership Act mentions that a firm may be dissolved with the consent of all the CS No. 31/2016 Page 26 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
partners or in accordance with the contract between the partners. Section 43 of the Act provides that in case there is partnership 'at Will' it may be dissolved by giving notice in writing by one of the partner to others, expressing therein his intention to dissolve the firm. Firm stands dissolved from the date so mentioned on the notice.
26 Thus, reading the scheme of Partnership Act, it would be clear that it is not in every situation written notice must be given for dissolving the partnership firm 'at Will'. Such dissolution can be also affected with mutual consent among the parties. Even otherwise there is no specific format of notice to be served within the meaning of section 43 of the Act. It is matter of record and undisputed fact, already come in the evidence of PW1 also (para 8) that partners of the defendant no. 2 firm mutually agreed to dissolve the firm and to surrender the tenancy rights. PW1 has also testifies in CS No. 31/2016 Page 27 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
his evidence that he has already filed claim with regard to dissolution of partnership of M/s. Nova Electro World as well as for rendition of account against defendant no.
1. such dispute is admittedly pending before ld. Arbitrator, appointed by Hon'ble High Court of Delhi as partnership Deed contained an arbitration clause.
27 Reading the section 43 and 44 of Partnership Act makes it clear that a firm may be dissolved either by serving notice or by initiating legal proceedings for dissolution and rendition of accounts of the firm. In this case, admittedly such legal proceedings have already been initiated. Therefore, for all intent and purposes, firm / defendant no. 2 will be considered to have been dissolved not only by mutual consent of the partners but by necessary legal consequence. There is also a legal notice dt 11.01.2007 issued on behalf of plaintiff to other partners of the defendant no. 2 firm including defendant no. 1 lying on the record. Wherein plaintiff has CS No. 31/2016 Page 28 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
specifically mentioned that partnership of the firm was dissolved. This notice was also duly served to defendant no. 1 as defendant no. 1 admittedly sent reply to this notice by reply dt 31.01.2007. Moreover, another notice was also issued by plaintiff to the partners of defendant no. 2 firm on 02.03.2007 stating therein that pendency of present suit for partition in respect of suit property has no connection with regard to dispute regarding rendition of account of defendant no. 2 firm. It is after service of this notice dt 02.03.2007 Arbitration proceedings were initiated by plaintiff. In the facts of the present case, even evidence of DW1 clearly indicate that there is no evidence showing continuation of partnership or business of the firm from the suit property after September 2006.
28 DW1 in his cross examination recorded on 21.07.2009, has testified that he has invested sum of Rs. 6,90,000/ in the capital of defendant no. 2 firm. DW1 CS No. 31/2016 Page 29 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
however, says that he do not remember if plaintiff Yogesh Bansal invested Rs. 3,50,000 on 29.09.2004 as his share in the capital of the firm. DW1 further admits that defendant no. 2 firm had taken loan of Rs. 25 lacs from Union Bank of India after mortgaging plot of Uttam Nagar owned by father of the plaintiff. If we further examine the evidence of DW1, DW1 has admitted in his cross examination recorded on 27.07.10 that firm has disposed off the stocks of the firm. DW1 say that he cannot tell where the sale proceeds of said stock has gone, without seeing the accounts. DW1 says that he cannot tell when he had lastly seen the books of accounts of the firm. DW1 further admitted in his cross examination recorded on 27.07.10 that in February 2007, Union Bank of India had written a letter to defendant no. 2 firm and to its partners that on inspection of premises it was found that there exists no stock in the suit property. These facts coming in the evidence of DW1 clearly establish that firm discontinued CS No. 31/2016 Page 30 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
operating after September 2006. It is also important to note here that wife of defendant no. 1 though was partner in the firm but defendant no.1 has admitted in his cross examination that he has not placed on record any proof of investment of capital by him or his wife in the firm. DW1 admitted that his wife and father of the plaintiff Sh. K. B. Bansal never contributed any amount in the capital of defendant no. 2 firm.
29 In this context, another important aspect to be noted is that DW1 though in para 13 of his affidavit testifies that in March 2005 it was agreed among the partners of the defendant no. 2 firm to enhance the capital of the firm. DW1 says that at that time plaintiff was facing financial problem and later he disposed off his immovable property at New Guru Hari Kishan Nagar Colony and spent Rs. 5 lacs towards the capital of the firm.
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30 Even regarding this aspect of the defendant's case,
he has proved to be false because DW1 admitted in his cross examination that he has not placed on record any documents to show that plaintiff has sold any such property for the purpose of contribution of Rs 5 lacs in the capital of the firm. DW1 has admitted in his cross examination recorded on 31.05.2010 that plaintiff has not executed any agreement to sell or sale deed in favour of Mr. Thomas or Mrs. Lizzy Thomas regarding sale of property at Guru Hari Kishan Nagar. In this context if we go through the evidence of PW1 he has testified (para 9) that he had not sold his property of new Guru Har Kishan Nagar Colony and has never received sum of Rs.5 lacs as sale consideration. PW1 says that in fact Lizzy Thomas and Geo Roadways had given a loan of Rs. 1,50,000 and Rs. 3,50,000 to defendant no. 2 firm. Such amount had been paid by way of cheques and duly shown credited in the statement of account of defendant no. 2 firm Ex.PW1/7. Document Ex.PW1/5 also mention CS No. 31/2016 Page 32 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
above said Lizzy Thomas and Geo Roadways as creditor of defendant no. 2 firm. Thus, nothing has come on the record to show that Rs. 5 lacs were given by plaintiff after disposing off of any of his property towards the investment in capital of the defendant no. 2 firm. Rather, such amount of Rs. 5 lacs came to the account of defendant no. 2 firm as a loan. Apparently, deposition of DW1 on these aspects is neither supported with any documentary evidence rather proved to be false by his own admission.
31 Here it is important to refer that DW1 in his cross examination has admitted that he has no record to show that he has invested any money in the capital account of the firm, in this regard DW1 says that all the accounts etc. relating to defendant no. 2 firm are with accountant of that firm. The accountant of the firm has appeared in the witness box i.e. DW4 Satish Kumar Rajput. DW4 testifies that he was working as part time accountant in CS No. 31/2016 Page 33 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
M/s. Nova Electro World and handled the accounts of said firm for years 200506 and 200607. Entries used to be recorded in computers on the basis of supporting documents or as mentioned by partners. DW4 proved balance sheet of year 200506 as Ex.DW4/1, Trading Account for the year ending 31.03.2007 as Ex.DW4/2, Profit and Loss Account dt 31.03.2007 as Ex.DW4/3 and annexures of balance sheets are Ex.DW4/4. Balance sheet for year ending 31.03.2006, trading account, profit and loss account and annexures to the balance sheet for year ending 31.03.2006 are Ex.DW4/5 to DW4/8 respectively.
32 Thus, even from the testimony of DW4 it has not come anywhere that capital of the defendant no. 2 firm was enhanced anywhere in March 2005. Moreover, from cross examination of DW4 it is evident that documents sought to be proved by him were surrounded with suspicion and it is evident from reading the testimony of CS No. 31/2016 Page 34 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
DW4 that entries of Rs.3,50,000 and Rs. 1,50,000/ have been shown in the name of the plaintiff whereas those entries were regarding loan taken by the firm. Fact remain from the documents proved from the testimony of DW4 it has also not come that plaintiff had given Rs 5 lacs in the capital of the firm, after disposing off his property of New Guru Hari Kishan Colony. Thus, from the above assessment of the facts, it is very much established that tenancy of defendant no. 2 did not continue in the suit property, as asserted by defendant no. 1 in the WS. Issue accordingly decided against the defendant and in favour of plaintiff.
33 ISSUE NO. 2Whether suit of the plaintiff is bad for non joinder of the other partners of defendant No. 2, if so its effect?.
34 This issue was also framed on objection taken by
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defendants in written statement that suit is bad under Order 1 Rule 9 CPC as other partners of defendant no. 2 firm have not been joined as party in present suit. This is suit for partition and injunction, in respect of suit property in which admittedly plaintiff and defendant no. 1 are coowners. In such facts, other partners of defendant no. 2 firm are not at all necessary or proper party. Suit is not in respect of rendition of accounts of defendant no. 2 firm. Issue of continuation partnership of defendant no. 2 firm is only incidentally involved in present suit. Therefore, this issue stands decided against defendants.
35 ISSUE NO. 3 & 4Whether the suit is properly valued for the purpose of court fees and jurisdiction?
Whether this court has pecuniary jurisdiction to try the suit?
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36 These issues can be decided together. It is matter
of record that plaintiff in para 13 of the plaint has valued the subject matter of the suit to be Rs. 10 lacs being market value of the suit property for the purpose of jurisdiction. However, for the purpose of court fee Rs.200 has been furnished for relief of partition being fixed court fee and Rs. 20 has been furnished for relief of injunction. It is further mentioned in the para 13 of the plaint that plaintiff undertakes to furnish court fee on his share in the suit property upon partition.
37 The Court fees that is required to be paid by the plaintiffs, for seeking the relief of partition of the suit properties by metes and bounds, has to be examined in the context of Section 7 of the Court fees Act, 1870 which prescribes computation of fees payable in suits. The relevant extract of Section 7 is reproduced hereinbelow--
"7. Computation of fees payable in certain suits.--
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The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows:
......
(iv) In sutis--
.....
to enforce a right to share in joint family property
--(b) to enforce the right to share in any property on the ground that it is joint family property; .....
according to the amount at which the relief sought is valued in the plaint or memorandum of appeal."
38 Further, Section 8 of the Suits Valuation Act, 1887 stipulates that in Suits other than those referred to in the Court fees Act, Section 7, paragraphs V, VI, IX and X, Clause (d), Court fees is payable ad valorem, the value as determinable for the computation of Court fees and the value for purpose of jurisdiction shall be the CS No. 31/2016 Page 38 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
same. Thus, Section 7(iv)(b) of the Act prescribes the Court fees at which the relief sought is valued in the plaint and under Section 8 of the Suits Valuation Act, 1987, the plaintiff is required to value the Suits for the purpose of Court fees and jurisdiction identically except for the exceptions provided for under Section 7 of the Court fees Act, 1870.
39 It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the coowner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Schedule II of the Court fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of coowners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff CS No. 31/2016 Page 39 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
is liable to pay ad valorem court fees on the market value of this share as provided under Section 7(iv)(b) of the Court fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession.
40 Once there is a complete ouster of a joint owner from possessory management of or any other direct involvement in the affairs of immovable properties, it would be necessary for such a person to pay the requisite ad valorem court fees. In the case entitled Sudershan Kumar Seth v. Pawan Kumar Seth & Ors., reported as 124 (2005) DLT 305, it was held that it is settled law that in order to decide as to what relief has been claimed by the plaintiff, the entire plaint has to be read and only on perusal thereof can it be inferred that the plaintiff is in possession of any of the properties to be partitioned, and if so, then the court fees is payable under Article 17(6) of Schedule II of the court fees Act, i.e., fixed court CS No. 31/2016 Page 40 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
fees at the time of institution of the suit. However, if the conclusion is contrary thereto, then the plaintiff has to pay the court fees under Section 7(iv)(b) of the court fees Act, i.e., on the value of the plaintiff's share.
41 On meaningful reading of the plaint and evidence on the record, it is not much of dispute in the present case that both plaintiff and defendant no. 1 are coowner in joint possession of suit property. In such situation even if valuation for the purpose of jurisdiction being Rs. 10 lacs as given in para 13 may not be correct, but still this fact will hardly have any bearing because as on today pecuniary jurisdiction of this court has been enhanced upto Rs. 2 crores. Therefore, I hold that plaintiff has rightly furnished fixed court fee in terms of Article 17(vi) of Schedule II of the Court fees Act, however I find that valuation for the purpose of jurisdiction in this matter may be upto Rs. 25 lacs as it has come in the facts of the present case that beside sale CS No. 31/2016 Page 41 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
consideration of Rs.2,50,000, Rs. 23,17,591/ were spent for construction of the property. As such these issues stand decided with the findings that this court has the pecuniary jurisdiction to entertain the matter and fixed court fee furnished by the plaintiff is also correct as plaintiff is in possession of property. Although valuation of subject mater of suit is fixed to be Rs. 25 lacs.
42 ISSUE NO. 5 & 6Whether further construction in the property was done by defendant no. 1 form his funds only by spending Rs.23,17,591?
Whether on account of financial crunch being faced by plaintiff, it was agreed that defendant no.
1 would spend on the construction and the plaintiff will pay his share of cost of construction to defendant no. 1 later, which plaintiff did not CS No. 31/2016 Page 42 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
pay despite reminding by defendant in April, 2005?
43 These issues are being taken up together as adjudication of these two issues involve assessment of same set of evidence. Onus of proving these two issues is on defendant no. 1. As is evident from the facts discussed above, it is not disputed that suit property was purchased jointly by plaintiff as well as defendant no. 1 under the sale documents dt 17.02.2004, copy of which are Ex. DW1/X1 to DW1/X7. It is also substantially undisputed fact among the parties that even before purchase of the suit property, erstwhile owner allowed raising of construction over the suit property as at that time property was not completely built up. As such construction over the suit property started from November, 2003. In this regard, defendant no. 1 has taken a plea that entire cost of construction of Rs.
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23,17,591/ was spent by him only. It is the case of
defendant no. 1 that since during those days plaintiff was facing financial crunch and therefore it was agreed that defendant no. 1 would spend on the construction and plaintiff will pay his share in cost of construction later. Defendant no. 1 has alleged that plaintiff did not thereafter pay his share of cost of construction over suit property despite reminders in this regard in April 2005.
44 Plaintiff, however, has denied all these facts pleaded in the WS of defendant, in his replication. Since on these disputed facts arising out of the pleadings, no issue was earlier framed, therefore, these issue no. 5 & 6 were framed later as additional issues. Thus, core issue for consideration is whether defendant no. 1 has been able to establish on the record that he has spent entire amount of cost of construction from his pocket and nothing was spent by the plaintiff being coowner. If so whether such fact is sufficient to disentitle the plaintiff CS No. 31/2016 Page 44 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
to claim relief of partition.
45 Let us examine the evidence in this regard. Defendant no. 1 has appeared in the witness box as DW
1. DW1 testifies that construction over the suit property had started immediately after an oral agreement with erstwhile owner / Smt. Hari Kunwar in November 2003. DW1 says (para3) that since the suit property was unfinished and under construction, therefore erstwhile owner agreed under an oral agreement in November 2003 to permit raising of construction over it. DW1 says that plaintiff agreed with him (DW1) that he should pay his half amount of money to be spent on construction as at that time, plaintiff was going through a financial crunch and had no liquidity. DW1 further says that plaintiff told him that he would return the money of his share of cost of construction, after completion of construction. DW1 further testifies that sheets of account, Ex.DW1/1 in the name of Defendant no. 1 CS No. 31/2016 Page 45 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
indicate the amount spent by defendant no. 1 towards the construction including the payments for suppliers, labour etc as well as amount paid to plaintiff for managing the petty site expenses and other expenses. DW1 says that plaintiff was fulltime supervising the construction work of the premises. DW1 further proves the account sheets Ex.DW1/2 and testifies that such account sheet was in the name of plaintiff showing running account of expenses which plaintiff used to spent from the money received from him. DW1 says that account sheet Ex.DW1/1 mention different entries of payments including amount paid to various suppliers etc. the sum total of which comes out to be of Rs. 23,17,591/. DW1 further says that as and when plaintiff used to spend some money from is own pocket he used to show same as debit entry in account Ex.DW1/2 and soon after receiving the money from DW 1 plaintiff used to deduct the amount spent by him and thereafter balance amount was used for construction CS No. 31/2016 Page 46 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
purpose. DW1 further refer to account sheets Ex.DW1/3 and testifies that this account was merger of Ex.DW1/1 as well as include intermediate account of construction. DW1 says that all these three accounts Ex.DW1/1 to Ex.DW1/3 are admittedly in the handwriting of plaintiff.
46 While I pause further discussing the evidence of DW1 first question arises whether it is established on the record that plaintiff was facing financial crunch and therefore was unable to pay his share of cost of construction at the time when construction was being raised over the suit property. This fact has been denied by the plaintiff in the replication. If evidence is to be considered in totality it would be evident that at the relevant time i.e. from November 2003 onward, it is not established that plaintiff was having any financial crunch to contribute his share of money in construction because it is defendant no. 1 himself stated that later in the same suit property partnership firm / defendant no.
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2 was formed in which plaintiff and his father were partners beside defendant no. 1 and his wife. Such partnership firm was created under partnership deed dt 15.09.2004 Ex. PW1/DX1, under which plaintiff has been shown to be partner to the extent of 35 % as per his contribution in the capital of firm. If plaintiff was able to pay in capital of the firm as on 15.09.2004, it is not probable that before that plaintiff was not financially capable to bear cost of construction with defendant no. 1.
47 Another important aspect to be noted here is that in the evidence of Plaintiff/ PW1, Yogesh Bansal, he has also proved his income tax return for assessment year 200405, 200506, 200607, which are Ex.PW1/1 to PW1/3. Perusal of these income tax returns along with the annexures would clearly show that at the relevant time for assessment year 200405 and even thereafter, plaintiff was earning sufficient income and in the balance sheet of 31.03.2004, plaintiff has also mentioned CS No. 31/2016 Page 48 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
that he has contributed money towards the construction of the suit property.
48 Ld. Counsel for the defendant has argued that these documents Ex.PW1/1 to Ex.PW1/3 were not admissible as these documents were not placed on record at the time of filing of plaint, rather these documents were placed on record at the time of filing affidavit of examination in chief of PW1. It is also submitted that objection in this regard was duly taken at the time when affidavit of PW1 was being tendered in evidence.
49 There is no denial that these documents Ex.PW1/1 to PW1/3 were not filed along with the plaint. However, in terms of order 7 Rule 14(3) CPC any document which ought to have been produced earlier, can be permitted to be taken on record provided such document is relevant for deciding the controversy/ issues involved in the matter. These documents though were filed on the record CS No. 31/2016 Page 49 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
on 20.03.13, when affidavit of PW1 was filed. But, on that day affidavit was simply tendered in evidence, evidence was deferred for recording cross examination. In such circumstance, even if there was belated filing of these documents but considering the fact that these documents were very relevant for deciding the issue under consideration, which as a matter of fact were also framed later in the trial only on 28.10.2016, therefore, only an objection that documents were belatedly filed cannot be a ground to reject a document as a whole when such document is otherwise very relevant. After deletion of Order 13 Rule 2 CPC, provisions of Order 7 Rule 14(3) CPC are to be construed liberally with essentially twin tests i.e. whether the document is relevant and whether delay in filing the document has been explained or not. Provisions of Order 7 Rule 14 (3) CPC does not mention that there must be a formal application for grant of leave to place on record any document. If document is taken on record and admitted in evidence, it impliedly means that CS No. 31/2016 Page 50 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
leave was granted. Even otherwise I find that only objection that documents were filed later during the trial, does not render that document to be inadmissible in the interpretation of Order 7 Rule 14(3) CPC.
50 Therefore, I do not find that these documents were inadmissible and cannot be taken into consideration specifically when these documents like ITR, Balance Sheet etc filed in Income Tax Department. Nothing has come on the record to disbelieve these documents or finding any fabrication in it. Documents pertain to year 200405 and 200506 etc, produced in evidence in year 2010. By the time when these documents were prepared, present suit was not even filed. Therefore, I find that these documents can duly be taken into consideration to decide the issue under consideration.
51 Even otherwise if these documents (Ex.PW1/1 to Ex.PW1/3) are not taken into consideration, still I find CS No. 31/2016 Page 51 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 1 has not been able to establish that plaintiff was unable to contribute in cost of construction due to his financial crunch. Because as noted above, same plaintiff has invested money at the time of formation of defendant no. 2 firm and statement of account of bank Ex.PW1/7 of defendant no. 2 firm clearly show that plaintiff was having sufficient means and financial capability. In evidence of Plaintiff / PW1, he has referred to one current capital account of plaintiff which is Ex.PW1/6 in which details of money invested by plaintiff in capital of defendant no. 2 firm is given. This document is not disputed as nothing put to PW1 in cross examination regarding this document Ex.PW1/6. Perusal of this document show that on 15.09.2004, 27.09.2004 and on 01.10.2004, total sum of Rs. 3,85,000/ were invested by him in capital of defendant no. 2 firm. This document show that plaintiff had invested money. If defendant no. 1's version is examined then how plaintiff paid above stated amount around same time. Merely CS No. 31/2016 Page 52 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
alleging that plaintiff was facing financial crunch and therefore it was orally agreed between defendant no. 1 and plaintiff that the entire cost of construction is to be borne by defendant no. 1 does not hold much ground. In this regard, it is relevant to note that DW1 in his cross examination has admitted that there is no written understanding between him and plaintiff regarding spending on entire construction by defendant no. 1 alone and regarding plaintiff agreeing to reimburse his share of expenditure on construction later.
52 One important aspect to be noted here is that if according to defendant no. 1 entire cost of construction was paid by him which according to him is Rs. 23,17,591/, plaintiff failed to pay the half of the cost of construction. Then why defendant no. 1 had not initiated any legal recourse or has not filed any suit or counter claim in the present suit for recovery of amount spent by him even towards the share of plaintiff. DW1 in his CS No. 31/2016 Page 53 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
cross examination had admitted that he had not filed any suit for recovery or for specific performance against plaintiff. This aspect to my mind assume great importance in the facts of the present case. If one of the coowner claims to have spent entire amount for the construction over the property, obviously if other co owner claims partition, the one who had spent the money on construction, would obviously claim recovery of the amount spent on construction towards the share of his coowner. There is no explanation from the side of defendant in this regard.
53 Thus, from the above discussion of evidence I find that defendant no. 1 has not been able to establish that plaintiff was having any financial crunch because of which he was not in position to pay his share of cost of construction. The plea of defendant no. 1 that it was orally agreed between him and plaintiff that plaintiff asked him to spend entire amount for construction does CS No. 31/2016 Page 54 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
not inspire much confidence.
54 Now, if I proceed further to examine the evidence of DW1, I come to a very relevant aspect agitated on behalf of defendant no. 1 with great amount of emphasis. DW1 has relied upon three loose sheets of account which are Ex.DW1/1 to DW1/3. In this regard, first of all, it is undisputed that these sheets of accounts were in handwriting of plaintiff. As per evidence of DW1, Ex.DW1/1 showing the account of defendant no. 1 indicates the entire sum of money of Rs. 23,17,591/ spent from the pocket of defendant no. 1 by way of payments to various suppliers, as well as payment in cash to plaintiff on different dates for managing petty sites expenses by plaintiff. According to DW1 another sheet of account Ex.DW1/2 mentions entries of money of defendant no. 1 paid to plaintiff out of which plaintiff spent the amount on different petty expenses and according to DW1 the account sheet Ex.DW1/3 is merger CS No. 31/2016 Page 55 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
of above said two accounts. By these documents DW1 seeks to establish that entire cost of construction was spent only from the pocket of defendant no.1.
55 First of all, I may mention here that these are loose account sheets, these sheets though may be relevant but I find that in view of section 34 of Indian Evidence Act, these loose sheets in itself are not sufficient to conclusively establish any fact or liability. More particularly the fact that defendant no. 1 entirely spent money on the construction over the suit property. It is held in Dharam Chand Joshi vs. Satya Narain, AIR 1993 Gau. 35, as well as in Ishwar Dass vs. Sohan Lal AIR 2000 SC 426 that unbound sheets of accounts cannot be considered to be books of account. Entries in loose account books though may be admissible but they by themselves do not create any liability.
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56 Having so stated above, if I keep such legal
objection regarding these open account sheets, aside for the time being, still I find that these sheets in itself are not sufficient to establish the claim of defendant no. 1 of having spent entire cost of construction. If I carefully examined the entries made in ledger sheets Ex.DW1/1, different details of expenditures have been mentioned regarding payment to contractor, towards purchase of cement, steel and certain payments made to officials of MCD etc. These entries in the Ledger Sheet Ex.DW1/1, do not by itself establish that whatever payments have been mentioned in this account were paid only by defendant no. 1 from his money. At the most this ledger sheet mention about the different expenditures incurred. No doubt, this account mentions the name of defendant no. 1 i.e. B.S.Tyagi but this fact in itself does not established that all those expenditures shown in this sheet of account were spent only by the defendant from his own pocket. In other words this sheet of account only CS No. 31/2016 Page 57 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
establish expenditures incurred but does not establish that money spent for such incurring such expenditures were paid only from the pocket/ account of defendant no.
1. 57 DW1 in his cross examination has admitted in this regard that he does not possess any document in support of entries contain in Ex.DW1/1 to DW1/3. DW1 has not placed on record like any statement of his bank account showing withdrawal of money towards incurring the expenditure for construction. Except these open sheets Ex.DW1/1 to Ex.DW1/3, no other document has been placed on record to show that such expenses were incurred only from the money spent by defendant no. 1. DW1 has not placed on record any bill or invoices or receipts etc., showing payments made by him in respect of expenditures shown in Ex.DW1/1 to Ex.DW1/3. Precisely speaking there is no corroborating evidence to these loose sheets of accounts to establish spending of CS No. 31/2016 Page 58 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
money from the account of defendant no. 1. When defendant no. 1 has set up a defence that he spent Rs. 23,17,591/ out of his own pocket for construction and nothing was contributed by plaintiff. Then onus was on defendant no. 1 to prove spending of such amount by direct, cogent evidence. One must not have draw inference from open sheets of account to conclude this fact. No doubt defendant no. 1 has to prove this by preponderance of probabilities. But it does not mean defendant no. 1 can be dispensed with leading basic evidence like Bank Statement, invoices or receipts etc. or even I.T.R. To show spending of so much of amount on construction. But all these documentary evidence have not been proved.
58 If I proceed to examine evidence on record, no dobt defendant no. 1 has examined DW2 and DW3 namely Satish Kumar Khanna and Subhash Chand Kaushik. Both these witnesses have identically deposed in their CS No. 31/2016 Page 59 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
affidavit of evidence that they were approached by defendant no. 1 for supply of building material and sanitary and hardware goods respectively. DW2 and DW3 depose that booking for supply of material was done by Balbir Singh Tyagi and material was delivered at the site on instructions of Balbir Singh Tyagi (Defendant no.1). DW2 and DW3 also say that payment for such material, was done by Balbir Singh Tyagi.
59 No doubt, these two witnesses DW2 and DW3 have deposed regarding supply of material at site of construction, on instructions of defendant no. 1 and they also depose that they received payment from defendant no. 1. But on reading of examination in chief of these two witnesses itself, will indicate that even these witnesses have not proved any invoice/ bill or even delivery receipts or payment receipt. If DW2 and DW3 are carrying on business of supply of building material or sanitary and hardware goods, then obviously they must CS No. 31/2016 Page 60 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
be issuing invoices or receipts etc. for any transaction of supply of such goods to anyone. If they have come in court to depose, by getting their affidavit prepared. They could have also brought relevant invoices or receipts or any documentary evidence to prove supply of material or payments made by defendant no. 1.
60 Now, if we go through the cross examination of DW2 and DW3, both these witnesses say that their affidavit of evidence was prepared by counsel of defendant no. 1, as per their instructions. Both witnesses admit in cross examination that they have not brought any document regarding their business. DW2 and DW3 say that booking regarding supply of material was oral and they also say that they have not issued any receipt to defendant no.1. Both these witnesses also say that they have no knowledge about source from where defendant no. 1 made payments.
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61 Thus, from such evidence of DW2 and DW3, I find
that their evidence rather harm the case of defendant no. 1 more that supporting or proving evidence of defendant no. 1. When these witnesses have admitted that payments for their supply of material, was made in cash and they have no knowledge about source from where defendant no. 1, has arranged the money. Then every thing is more based on assumption and presumption that anything conclusive or cogent. Even if I accept evidence of DW2 and DW3, their deposition does not prove, payments made by defendant no. 1 from his own funds. Payments were not made by cheque etc. so their evidence, tom my mind does not help defendant no. 1 in proving his claim of having spent entire amount of Rs. 23,17,591/ from his own funds/ pocket.
62 Again coming back to evidence of DW1 as well as documents Ex.DW/1 to DW1/3. Here it is appropriate to discuss evidence of plaintiff/PW1. Plaintiff in his CS No. 31/2016 Page 62 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
replication has taken a specific plea that defendant no. 1 has only produced few sheets of accounts, which suited him (Ex.DW1/1 to DW1/3), but has not filed entire complete accounts including account mentioning the details of expenditures incurred by the plaintiff towards the construction over the suit property. PW1 in this regard has testified (para 5 of his affidavit) that he had also spent money towards the construction and details of expenditure incurred by him are in the account sheet Ex.DW1/DX. PW1 in his evidence has also referred to ITR's Ex.PW1/1 to PW1/3 along with annexures showing details of expenditure on construction of suit property in balance sheet.
63 Ld. Counsel for the defendant no. 1 has challenged all the above mentioned documents. Admissibility of documents Ex.PW1/1 to Ex.PW1/3 has already been discussed earlier. This court had already noted above that even if a document has been produced belatedly CS No. 31/2016 Page 63 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
during the trial, provisions of Order 7 Rule 14 (3) CPC can be invoked to rely on those documents if those documents are relevant for deciding the issue involved. Nevertheless without going into much details of this aspect, even if I may not consider documents Ex.PW1/1 to Ex.PW1/3, still I find that onus was on the defendant no. 1 to establish that he had made entire payment towards the construction.
64 Regarding document Ex.DW1/DX, it is submitted by the counsel for the defendant no. 1 in his written arguments that even this document can also not be taken into consideration as this document has not been properly proved. He submits that a document must be produce by its primary evidence unless a case is made out for leading secondary evidence in terms of section 65 of the Indian Evidence Act. He submits that if according to plaintiff the original of documents Ex.DW1/DX, was in possession of defendant no. 1, in the notice sent in terms CS No. 31/2016 Page 64 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
of Order 12 Rule 8 CPC / Section 66 of Evidence Act, in that notice there should be specific demand for production of sheets of the account written in the handwriting of the plaintiff. Whereas in the notice dt 03.11.2008 under Order 12 Rule 8 CPC relied upon by the plaintiff Ex.DW1/P1 only mention the original ledger book prepared in the hands of the plaintiff Yogesh Bansal and does not seek production of original loose sheets.
65 I find such argument being not of much substance because careful perusal of notice Ex.DW1/P1 sent to defendant no. 1 in terms of Order 12 Rule 8 CPC clearly mention that plaintiff demanded from defendant no. 1 original ledger book containing entries of expenditure jointly incurred including the copies of which have been filed by the plaintiff. Thus, notice clearly refers about the sheets of account which were later exhibited in the evidence of PW1 as Ex.DW1/DX. Thus I find that CS No. 31/2016 Page 65 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
plaintiff has rightly laid ground for leading secondary evidence i.e. copy of ledger sheet Ex.DW1/DX when original of the same was not produced.
66 Beside admissibility of documents Ex.DW1/DX, even genuineness of this document have also been challenged on behalf of the Defendant no. 1. It is argued by ld. Counsel for the defendant no.1 that contents of document Ex.DW1/DX do not establish payments as name of vendors have not been proved, it is submitted that the entries in document Ex.DW1/DX are only copied from Ex.DW1/1. It is submitted that names of different vendors and funds from which the payments were made by plaintiff have also not been established.
67 Considering such submissions of ld. Counsel for defendant no. 1 if document of plaintiff Ex.DW1/DX is to be disbelieved for the reason that the entries in this account sheets have not been proved by details of various CS No. 31/2016 Page 66 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
vendors, availability of funds etc., by which plaintiff claimed to have made the payment. Similar are the flaws even regarding documents Ex.DW1/1 to Ex.DW1/3. For same reasons as submitted on behalf of defendant no. 1, documents Ex.DW1/1 to Ex.DW1/3 also do not establish the cost of construction having been entirely paid by the defendant.
68 Ld. Counsel for defendant no. 1 has elaborately argued regarding different entries in Ex.DW1/1 and similar entries have been shown in document Ex.DW1/DX to argue that in fact plaintiff has simply copied the entries to claim that he has incurred expenditure of construction. I find that there is no necessity to go into the details of the entries of documents Ex.DW1/1 to Ex.DW1/3 as well as to the documents Ex.DW1/DX being losse account sheets. These loose sheets to my mind do not conclusively lead to a conclusion that whatever expenditure have been CS No. 31/2016 Page 67 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
shown in these account sheets were paid from the funds of defendant no. 1 only or from the funds of plaintiff. At the cost of repetition, as I have noted earlier that the core issue was regarding proof that the expenditure were entirely incurred by defendant no. 1 from his own funds. These loose sheets do not establish this fact. Even if we carefully scrutinize these loose sheets certain entries in it like payment to officials of MCD, NDPL etc., cannot be taken into cognizance. Fact remain I find for the reasons as discussed above that defendant no 1 has not been able to discharge the onus of proving that he had spent entire money from his own funds for the construction over the suit property.
69 Having so held as above, I may touch upon another facet of the matter. Although, to my assessment defendant no.1 has failed to establish that he has paid entire money from his funds towards the construction over the suit property. But, even if it is assumed that CS No. 31/2016 Page 68 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
defendant no. 1 has spent such amount, question is whether this fact by itself is sufficient to disentitle plaintiff to claim partition when coownership of plaintiff in the property with defendant no. 1 is not disputed. Ld. Counsel for plaintiff has rightly relied upon the judgment of Division Bench of Hon'ble High Court of Delhi in "Dewan Kaur and Ors. vs. Savitri Devi" 154 (2008) DLT 214, wherein it was held that in a suit for partition and possession if it has come in the facts that cosharer has made any improvement or addition to the property in dispute, that fact by itself does not make such cosharer to claim that property belongs to him exclusively or to claim compensation. No doubt, facts of that case are slightly different than the facts of the present case, however, ratio as laid down in the above mentioned judgment of Hon'ble High Court, substantially is that an admitted coowner cannot be declined his right in the property only for the reasons that other coowner had spent some amount towards the CS No. 31/2016 Page 69 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
construction or addition in the property in dispute.
70 I have already held that defendant no.1 has not been able to establish that he has made entire payment towards the construction over the suit property to the exclusion of plaintiff. Even otherwise, defendant no.1 cannot decline the right of plaintiff in the suit property. For the reasons stated above Issue no. 5 is decided against the defendant no. 1. As a consequence thereof it is also held that defendant no. 1 has failed to establish that plaintiff was having any financial crunch or that plaintiff had agreed with defendant no. 1 to pay his share of cost of construction to him later. Accordingly issue no. 6 also stands decided against defendant no.1 .
71 ISSUE NO. 7.(Whether plaintiff suggested to defendant no.
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Rs.11,58,795/, being his share of cost of construction and that he did not want ownership in the suit property, therefore, plaintiff suggested for adjustment of Rs. 1,25,000/ being amount spent for sale consideration towards the working capital of defendant no. 2 firm and also agreed to executed necessary documents in this regard, as such defendant no. 1 became exclusive owner of the suit property? ).
72 In view of my findings on issue no. 5 & 6 it has already been held that defendant no. 1 has failed to establish spending of entire amount on the construction over the suit property from his funds. Consequent to such finding on issue no. 5 & 6, it can also be held that defendant no. 1 failed to establish financial inability of plaintiff to pay Rs. 11,58,795/ being his share of cost of construction. Once such finding had already come question of plaintiff expressing that he did not want CS No. 31/2016 Page 71 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
ownership in the suit property and suggested for adjustment of Rs 1,25,000 spent towards the sale consideration amount, to capital of defendant no. 2 firm does not arise. Specifically when this court while deciding the issue no. 1 had already held that defendant no. 2 firm had already stopped operating and had dissolved.
73 Even otherwise in the evidence as come on the record, defendant has failed to establish above stated facts. DW1 in cross examination has admitted that there is no writing with regard to the facts stated in para 14 of his affidavit of examination in chief. It is in para 14 of affidavit of DW1 Ex.DW1/A, he has deposed that plaintiff has requested him that since he was not in position to pay his share of cost of construction and considering the fact that defendant no. 2 firm was running in losses, plaintiff therefore suggested him that amount of Rs. 1,25,000/ paid towards the sale CS No. 31/2016 Page 72 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
consideration of suit property be included in the working capital of defendant no. 2 firm. Apparently, except the oral assertion of such fact, nothing has been proved on the record. No writing is on the record to substantiate this fact. DW1 in his crossexamination had also admitted that there is nothin in writing to show that Rs. 1,25,000 was agreed by plaintiff to be added in the capital of the firm. Here, I may also refer to evidence of PW1 who has denied all these facts in his evidence (Para10). Nothing could come out in the cross examination of PW1 to rebut those facts testified by PW1 in para 10 of his affidavit. Thus, from the above discussion of evidence I find that defendant no. 1 has failed to prove this issue. Accordingly, issue stands decided against the defendant no.1.
74 ISSUE NO. 8(Whether plaintiff is entitled for relief of CS No. 31/2016 Page 73 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
partition and injunction as prayed for ? ) 75 It is not disputed fact from the pleadings that both plaintiff and defendant no. 1 are coowner in equal share of suit property as both of them have jointly purchased the same by sale documents Ex.DW1/X1 to DW1/X7. These documents are not disputed. This court has already given findings on issue no. 1, 5,6 & 7 against the defendant no. 1. In such circumstance ld. Counsel for the defendant no. 1 has raised a technical objection. It is submitted that above said sale documents Ex.DW1/X1 to DW1/X7 do not create any legal right in an immovable property. It is submitted that documents like agreement to sell, GPA etc. are not recognized as legal documents of conveyance. Ld. Counsel for the defendant no. 1 has relied upon the judgment of Supreme Court in "Suraj Lamps and Ind. Pvt. Ltd.vs. State of Haryana and Ors." AIR 2012 SC 206.
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76 It is argued while referring to the observations of Supreme Court in para 24, 26 & 27 of judgment in Suraj Lamp and Industries Pvt. Ltd. vs. State of Haryana (2012) 1 SCC 656, that even if a sale of an immovable property can legally be affected only by registered deed of conveyance. While there may not be denial to the well established law that an immovable property can be transferred only by executing a registered document of conveyance, be it sale deed or will or gift. But, as has been rightly relied upon by the counsel for the plaintiff, the judgment of Suraj Lamp and Industries Ltd.
(Supra) wherein, Supreme Court though has laid down that unless there is a proper registered sale deed, title of immovable property does not pass. The Supreme Court, however has also reiterated in that judgment, rights which are created pursuant to section 53A of T.P. Act, irrevocable right of person holding power of attorney given for consideration coupled with interest as per CS No. 31/2016 Page 75 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
section 202 of Contract Act.
77 It is important to refer the relevant observations of Hon'ble Apex Court made in the above said judgment, which read as herein below:
"....27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, CS No. 31/2016 Page 76 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
the execution of such development agreement and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding 'SA/GPA/Will transactions' are not intended to apply to such bona fide/genuine transactions..."
78 Quite clearly, the Supreme Court has not said that in no case a conveyance can be registered by taking recourse to a GPA. The Court has made it abundantly clear that the purpose is not to make all transactions as illegal, but to ensure that the parties are not able to circumvent the law so as to cause loss to the exchequer by depriving it of payment of stamp duty or registration charges. This note of caution has been struck by the judgment in Suraj Lamp & Industries Pvt. Ltd.'s Case (supra) wherein it has been observed that the purpose of making the transactions inadmissible on account of non registration is not to deprive genuine parties of their rights qua local bodies.
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79 In Vasudha Gupta Vs DDA & Othr. 215 (2014) DLT 711, wherein issue involved was regarding conversion of leasehold rights to Freehold, on the basis of GPA and agreement to Sell. Judgment of Apex Court in Suraj Lamp & Industries, AIR 2012 SC 206 was relied upon to decline conversion, it was held by High Court of Delhi, that judgment of Apex Court cannot be deemed to have nullified all genuine transactions entered into between parties. Even if the judgment Suraj Lamp & Industries Pvt. Ltd's case (supra) is taken in proper perspective, it cannot be deemed to have nullified all the genuine transactions which have been entered into between the two parties; that was neither the purpose of law nor of the Court. (Reference can also be given of judgment in "Pace Developers and Promoters Pvt. Ltd. v. Govt. Of NCT through its secretary & Ors." 199 (2013) DLT 347) CS No. 31/2016 Page 78 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
80 In the facts of the present case it is not that anyone else is setting up the claim of being owner in respect of the same suit property. It is a coowner only as per sale documents, is challenging these documents. If we go through these documents it would show that there is no doubt an unregistered agreement to sell. However, there is a registered General Power of Attorney and Registered Will coupled with possession slip, receipt etc. Considering these documents in totality when no third person had challenged the title in the suit property, even if above said documents may not be strictly speaking legal documents of conveyance but as discussed above, these documents are at least good evidence of sale having been created in respect of suit property. Moreover, if at this stage, if these sale documents dt 17.02.2004, is not accepted, this will lead to a confusion regarding title of the property in question and would CS No. 31/2016 Page 79 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
cause injustice rather than doing any justice. I have already noted above that in genuine transaction of sale by GPA and agreement to sell etc., court can take due notice of the fact that such documents are at least good evidence of sale if not a complete sale. Here, it is important to note that since 17.02.04 both plaintiff and defendant no. 1 are admittedly in possession of the property. Therefore I find that such argument cannot be accepted which appears to be more motivated than legal.
81 It is further argued on behalf of defendant no. 1 that in respect of land of village Palam acquisition Award No. 157/8687 was passed. Copy of such Award has been annexed for the first time along with the written arguments filed on behalf of defendant no. 1. It is submitted by ld. Counsel for the defendant no. 1 that Khasra No.107/25/3 of Village Palam in which suit property is situated has already stood acquired. It is submitted that this court can take judicial notice of this CS No. 31/2016 Page 80 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
fact.
82 While there is no denial to the fact that in terms of section 57 of Indian Evidence Act, Court of Law can take judicial notice of facts as enumerated in that section. No doubt, the list as given in section 57 of Evidence Act is not exhaustive and judicial notice can be taken of certain other facts, more specifically any public record like acquisition award etc. Provided certified copy of such award was placed on record. The requirement of law precisely is that in respect of certain facts and documents court may dispensed with formal proof of the same if such document, on the face of it is undisputed or cannot be disputed. Logic behind taking those facts as proved without taking formal proof of the same is that either such fact is well known or by its nature it is such that there can hardly be any dispute regarding that fact. Like court can take judicial notice of certain religious activities, practice, customs. Court can also take judicial CS No. 31/2016 Page 81 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
notice of Government notifications etc. 83 In this case, first of all the copy of Award was never placed on judicial record, it has been filed only along with written arguments. Moreover, even if I take judicial notice of such copy of acquisition award No. 157 / 8687, it is also not disputed by even ld. Counsel for the defendant no. 1 that since there purchase of the suit property on 17.02.2004, they have never received any notice from the Government for taking over the possession nor even defendant no. 1 has even stated in the pleadings that such land has been acquired. In respect of a land which is claimed to be acquired under the aforesaid award but in respect of same land no step have been taken to take over the possession by the authorities. By necessary legal consequence an award passed year 1986, must have been dropped by now.
84 Now even if I peruse the copy of the award no. 157/8687 there is no specific mention of khasra no.
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107/25/3 or Village Palam Abadi known as Defence Enclave. So, even if Award is taken into consideration still the particular khasra no. of the land when is not mention specifically this court cannot draw any inference only on the basis of copy of an award that the land of suit property must have also been acquired. It would be far to fetched to conclude that land in question must have been acquired when that particular khasra no. is not mention. I need not to mention that even if khasra no. of 107/25 is mention in that Award but the land in question is situated in khasra no. 107/25/3, and this court can also take judicial notice of the fact that around that property there is many built up property already existing.
85 It appears that a desperate attempt has been made by defendant no. 1 to defeat the right of the plaintiff even at the cost of its own interest. Judicial process cannot be made tool to settle private scores. Any suit has CS No. 31/2016 Page 83 CS No. 31/2016 New CS No. Yogesh Bansal vs. Balbir Singh.
to be decided strictly as per legally admissible evidecne and the established proposition of law. Keeping such requirement in mind I find that even such award cannot be a reason to non suit the plaintiff when plaintiff is admitted by defendant no. 1to be coowner with him of suit property. In view of above discussion as well as finding on the issue no. 1, 5 to 7 I find that plaintiff is certainly entitled to preliminary decree of partition as well as injunction. Issue accordingly decided in favour of plaintiff.
RELIEF In view of my findings on the above said issues, suit of the plaintiff stands decreed. Plaintiff is entitled for preliminary decree of partition in respect of suit property bearing No. 28B, being part of Khasra No. 107/25/3 situated in the area of Village Palam, abadi known as Defence Enclave (Madhu Vihar), Block A, New Delhi measuring 265 Sq.Yds. Plaintiff and defendant no.
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1 is hereby declared to be owner of one half share each.
Plaintiff is also entitled for decree of injunction and defendant no. 1 is hereby restrained from forcibly dispossessing the plaintiff from the suit property till it is partitioned by metes and bound, as per preliminary decree. Defendant no. 1 is further restrained from creating any third party interest in respect of onehalf share of plaintiff. It is needless to mention that defendant no. 1 would certainly be entitled to dispose off his half share in the suit property. Suit stands decreed accordingly. For the purpose of registration of respective shares of the parties for drawing preliminary decree of partition plaintiff is liable to furnish stamp papers as per the valuation fixed while deciding issue no. 3. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open court on
Today : 25.10.2017
(SHAILENDER MALIK)
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ADJ03 (CENTRAL)
TIS HAZARI COURTS:
DELHI
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25.10.2017
Present : None.
Vide separate judgment of even date dictated and announced in the open court, suit of the plaintiff is decreed. Plaintiff is entitled for preliminary decree of partition as well as decree of injunction. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
(SHAILENDER MALIK)
ADJ03 (CENTRAL)
TIS HAZARI COURTS
DELHI/ 25.10.2017
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