Delhi District Court
Brahm Dutt Sharma vs Jai Dutt Sharma on 6 December, 2023
Suit No. 17332/16 Page 1 of 50
IN THE COURT OF SH. DIVYANG THAKUR
ADDL. DISTRICT JUDGE-03:
SOUTH WEST DISTRICT: DWARKA COURTS:NEW DELHI
Civil Suit No. 17332/16
CNR No. DLSW01-004844-2016
In the matter of :
Mr. Brahm Dutt Sharma
S/o Late Sh. Duli Chand Sharma
R/o Village Khera Dabar
Najafgarh, Delhi-110043
....Plaintiff
Versus
1. Mr. Jai Dutt Sharma
S/o Late Sh. Duli Chand Sharma
R/o Village Khera Dabar
Najafgarh, Delhi-110043
2. Mr. Devi Dutt Sharma
S/o Late Sh. Duli Chand Sharma
R/o Village Khera Dabar
Najafgarh, Delhi-110043
......Defendants
Date of institution of the suit : 19.09.2011
Final Arguments Heard on : 21.11.2023
Date of Judgment : 06.12.2023
Decision : Dismissed
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 2 of 50
Suit For Possession, Damages and Prohibitory Injunction
Judgment :
Brief background of the litigation
1. The present suit was initially filed before the Hon'ble High
Court of Delhi bearing CS(OS) No. 2294/2011 wherein the summons
of the suit were issued to the Defendants and the matter was
subsequently referred to mediation and adjourned for report of
settlement and in the alternative, for framing of issues, in case the
mediation could not be arrived at. Thereafter, the present matter was
transferred to the jurisdictional subordinate Courts, South-West
District, Dwarka, New Delhi vide order dated 10.03.2016.
2. Present suit has been filed by the plaintiff seeking (a) decree of
possession against Defendant no. 1 pertaining to area shown in red
color in the site plan-II of the suit property bearing Kh. No. 221,
within the Lal Dora abadi area of Village Khera Dabar, Najafgarh,
New Delhi; (b) decree of damages against Defendant no. 1 in the
amount of Rs. 25,000/- towards unauthorized use and occupation
charges; (c) decree of prohibitory injunction against the Defendants
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 3 of 50
with respect to the suit property and (d) costs of the suit.
Plaint
3. The brief facts of the case as mentioned in the plaint are
reproduced here as under:
(i) It is averred in the plaint that the Plaintiff and Defendants are
real brothers and sons of Late Sh. Duli Chand Sharma living in Village
Khera Dabar, Najafgarh, New Delhi-110043 and their father was the
owner of the following three immovable properties at the time of his
demise:
(a) House in old lal dora abadi area of village Khera Dabar, Najafgarh,
New Delhi having area 880 sq. feet (as shown in yellow color in the
site plan I);
(b) House in old lal dora abadi area of Village Khera Dabar,
Najafgarh, New Delhi having area 828 sq. feet (as shown in green
color in the site plan I) and
(c) Vacant land in Kh. No. 221, within the lal dora abadi area of
Village Khera Dabar, Najafgarh, New Delhi, having area 6288 sq. feet
(as shown in red color in the site plan I).
(ii) It is further averred that the father of the parties had passed
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 4 of 50
away on 07.05.1982 and at the time of his death, the father was the
sole and absolute owner and occupier of the aforesaid immovable
properties. It is further submitted that after the death of Sh. Duli
Chand Sharma, his three sons i.e. the Plaintiff and two Defendants had
equally divided the aforesaid immovable properties and on
04.06.2007, reduced the same into writing vide family settlement
dated 04.06.2007 by metes and bounds. Relevant para no. 5 is
extracted below:
"....5. That in terms of settlement /agreement which was duly
reduced into writing on 04.06.2007, it was agreed amongst
the plaintiff and defendants as under:
That the house measuring 880 Sq. Feet within the old lal
Dora Abadi, Area of Village Khera Dabar, Najaf Garh,
Delhi was exclusilevly given to defendant no. 2 and another
house measuring 828 Sq. Feet within the old lal Dora Abadi,
Area of Village Khera Dabar, Najaf Garh, Delhi was
exclusively given to the plaintiff. That as agreed, since the
defendant no. 1 was not given any share in the above
mentioned two houses, thus in lieu of his 1/3rd share in the
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 5 of 50
above two properties, i.e. 570 Sq. Feet, it was agreed that in
the third plot / property he will be given double of his 1/3rd
share i.e. 1140 Sq Feet, out of the respective and
proportioned share of the plaintiff and defendant no. 2 and
accordingly, in the vacant land total measuring 6288 Sq
Feet the defendant no. 1 was given his 1/3rd Share i.e. 2096
Sq Feet along with 1140 Sq Feet., thus totaling to 3236 Sq
Feet. and as agreed out of the remaining land i.e. 3052 Sq
Feet, the plaintiff was given 1578 Sq Feet Area and
defendant no. 2 was given 1474 Sq Feet Area. It is just
pertinent to mention here that a rough site plan was also
prepared, wherein the plaintiff was also provided and given
240Sq Feet of area in the front corner of the suit property
out of his 1578 Sq. Ft. area........"
(iii) It is further submitted that the aforesaid partition of the
immovable properties was admitted and undisputed among the parties.
It is submitted that the Plaintiff had received and occupied the 1190
sq. feet (approximately) of area out of 1578 sq. feet of area falling to
his share. It is alleged that the Defendant no. 1 is illegally in
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 6 of 50
occupation and possession of the 240 sq. feet in the suit land; the area
which is admittedly partitioned and demarcated in favour of the
Plaintiff. It is further alleged that 148 sq. feet of area is also possessed
and occupied by the Defendant no. 1 in improper and inequitable
manner. It is submitted that the Plaintiff had requested the Defendant
no. 1 on 22.04.2011 to handover and deliver the possession of his
partitioned share i.e. 388 sq. feet, however, the Defendant had not
adhered to the request of the Plaintiff. Relevant para no. 12 of the
plaint has been extracted below:
"....12. That the plaintiff respectfully submits before this
Hon'ble Court that the Family Agreement / Partition
amongst the parties and their share / area are admitted and
undisputed amongst the parties. The plaintiff states that the
defendant no. 2 herein had also filed a suit for Declaration
& Permanent Injunction bearing no. 302/09 before the court
of Learned Senior Civil Judge, Delhi which was dismissed
by the Court of Shri Vikas Dhull, Senior Civil Judge,
Dwarka Courts, New Delhi vide Judgment dated
12.07.2011......"
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 7 of 50
Aggrieved, Plaintiff had filed the present suit for possession,
damages and prohibitory injunction.
(iv) The family settlement dated 04.06.2007 is extracted herein for
convenience:
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 8 of 50
Proceedings Of The Case
4. The summons for settlement of issues and notice of application
under Order XXXIX R 1 and 2 of CPC were issued to the Defendants
on 19.09.2011 and on the same date, matter was referred to the Delhi
High Court Mediation and Conciliation Centre for exploring the
possibilities of settlement between the parties. Application under
Order XXXIX R 1 and 2 of CPC moved on behalf of the Plaintiff
along with the plaint was also heard on the even date and Defendants
were prohibited from raising construction in the portion of the
property bearing Kh. No. 221, within the Lal Dora Abadi area of
Village Khera Dabar, Najafgarh, New Delhi, shown in red color in the
site plan I annexed to the plaint. Thereafter, Written Statement was
filed by Defendant no. 2 along with reply to the application under
Order XXXIX R 1 and 2 of CPC. Thereafter, WS was filed on behalf
of the Defendant no. 1 along with an application for condonation of
delay under Order VIII R 1 of CPC to which notice was issued to the
Plaintiff, returnable on the next date of hearing. The said application
under Order VIII R 1 of CPC was allowed being unopposed vide order
dated 23.03.2012 and Written Statement of the Defendant no. 1 was
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 9 of 50
taken on record. Thereafter, Plaintiff had filed Replication to the WS
of Defendants no. 1 and 2, affidavit of admission-denial of documents
was filed on behalf of Defendant no. 2 wherein he had admitted one
document of the Plaintiff exhibited as Ex. P-1. Admission-denial of
documents was concluded on behalf of the parties.
Defence taken up in the Written Statement of Defendant no. 1
5. It is submitted by the Defendant no. 1 in the WS that the present
suit is liable to be dismissed as the same is false, misconceived and
vexatious. It is further alleged that there is no cause of action against
the Defendant no. 1 and the averments made in the plaint are false and
fabricated and therefore, the same is not maintainable and liable to be
dismissed under Order VII R 11 of CPC. It is further alleged that the
Plaintiff has not approached the Court with clean hands and concealed
the material facts and circumstances. It is submitted that the three
immovable properties were divided between the Plaintiff and
Defendants during the lifetime of Late Sh. Duli Chand Sharma and all
the parties have been enjoying their respective shares from the year
1978. It is alleged that the Plaintiff had deliberately not disclosed the
fact that he had also filed a suit for partition under Section 55 of the
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 10 of 50
Delhi Land Reforms Act for partition and possession titled as Brahm
Dutt Sharma Vs. Devi Dutt Sharma and Ors before the Court of Ld.
SDM/RA, Najafgarh. Defendant no. 1 has denied the contents and
averments of the Plaintiff in the plaint.
Relevant paragraphs of the WS of Defendant no. 1 are extracted here
as under:
"Reply on Merits
....2. That the contents of the para no.2 of the plaint are false
and hence denied. It is vehemently denied that the father of
the plaintiff and defendants herein (Late Sh. Duli Chand
Sharma) was the owner of the following three immovable
properties at the time of his death. It is respectfully
submitted that the all these properties were divided between
the parties to the petition during the life time of the Late Sh.
Duli Chand Sharma and all the parties are enjoying their
respective shares from the year 1978. Contents of the
preliminary objections may kindly be read herewith.
3. That the contents of the para no.1 of the plaint are false
and hence denied. That the father of the plaintiff and
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 11 of 50
defendants herein expired on 07.05.1982,however it is
vehemently denied that at the time of his death, the father of
the plaintiff and defendants was the sole and absolute owner
and occupier of the immovable properties as mentioned in
para 2 of the present plaint.
4. That the contents of the para no.4 of the plaint are false
and hence denied. It is vehemently denied that subsequent to
the death of Mr. Duli Chand Sharma his three sons i.e.
plaintiff and defendants equally divided the immoveable
properties of their father as mentioned in para 2 of the plaint
and on 04.06.2007, the three sons of Mr. Duli Chand
Sharma reduced the distribution/ partition of the aforesaid
immoveable properties vide family settlement dated
04.06.2007 by metes and bounds. It is respectfully submitted
that the plaintiff is in possession of the alleged original
agreement dt.4-6-2007 and now manipulating the same
according to his will and fancies only to serve his interest.
That plaintiff be put to strict proof of the same.
5. That contents of the para no.5 are partially admitted ,
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 12 of 50
however It is vehemently denied as agreed out of the
remaining land i.e. 3052 sq.feet., the plaintiff was given
1578 sq.feet. area and defendant No. 2 wqa given 1474
sq.feet. area. It is vehemently denied in the rough site plan,
the plaintiff was also provided and given 240 sq.feet. of area
in the front corner of the suit property out of his 1578
sq.feet. area. It is respectfully submitted that area 240 sq.feet
in the front portion of the property is in the exclusive
possession of the answering defendant from very start and
the answering defendant is using the same exclusively. It is
respectfully submitted that the contents of this para are self
contradictory and the plaintiff be put to the strict proof of
the same..........."
Defence taken up in the Written Statement of Defendant no. 2
6. It is alleged by the Defendant no. 2 in his WS that the suit of the
Plaintiff is without any cause of action and is liable to be dismissed. It
is submitted that the father of the parties had partitioned the suit
property by metes and bounds during his lifetime and had given
possession to the parties before his death on 07.05.1982. It is further
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 13 of 50
submitted that the Plaintiff has claimed no relief against Defendant no.
2 except attempting to harm his interest by decreasing his area of
allotment from 1550 sq. feet to 1474 sq. feet and therefore, the claims
of the Plaintiff are false and bogus. It is further alleged that the suit of
the Plaintiff is barred by law of limitation and the same should be
dismissed. It is further submitted that the Plaintiff had stated in his suit
for partition filed before the Ld. SDM that his share in the third
property bearing Kh. No. 221 is only measuring 1526 sq. feet and in
the present suit, the same is mentioned as 1578 sq. feet and the area of
the Defendant no. 2 has been decreased to 1474 sq. feet from 1526 sq.
feet. It is alleged that the Plaintiff has suppressed the actual area as per
the revenue record of the one-third share of the father of the parties in
the property bearing Kh. No. 221 and measuring about 2 Bighas and 1
Biswas which comes to about 6150 sq. feet and the actual area which
is physically available is 6840 sq. feet. It is alleged that the fact that an
extra area of 552 sq. feet has been concealed from the Court by
Defendant no. 1 and Plaintiff. It is contended that the present suit of
the Plaintiff is liable to be dismissed as being inconsistent.
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 14 of 50
Admission-denial of documents and framing of issues
7. Affidavit of admission-denial of documents was filed on behalf
of Defendant no. 2 wherein he had admitted one document of the
Plaintiff exhibited as Ex. P-1. As no affidavit of admission-denial of
documents was filed on behalf of the Defendant no. 1 despite several
opportunities, the documents filed by the Plaintiff were deemed to be
admitted by Defendant no. 1 under Order XII R 2A of CPC vide order
dated 01.02.2013. Admission-denial of documents was concluded on
behalf of the parties. On basis of the aforesaid pleadings, on
23.08.2013, the following issues were framed:
(i) Whether the settlement dated 04.06.2007 filed by the Plaintiff
in the present suit, is the same as the settlement admitted by
Defendants before the Civil Court in CS(OS) No. 302/2009 i.e. Ex.
PW1/B. If so, its effect? (OPP)
(ii) Whether the Plaintiff is entitled to the relief prayed for in the
suit? (OPP)
(iii) Relief.
No other issue arose and claimed by the parties. Matter was
proceeded for plaintiff's evidence.
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 15 of 50
Evidence Led By The Parties
8. On 08.09.2015, PW-1 Sh. Brahm Dutt Sharma had tendered his
evidence by way of affidavit as Ex. PW1/A and relied upon the
documents in his affidavit as Ex. PW1/1 to Ex. PW1/7. Thereafter,
the present matter was transferred to the Court of Ld. District and
Sessions Judge, South-West District, Dwarka Courts, New Delhi vide
order dated 10.03.2016. Thereafter, several opportunities were granted
to the Defendants to cross examine the PW-1, however, they failed to
cross examine the witness and therefore, were proceeded ex-parte and
their opportunity to cross examine the PW-1 was closed. No other
witness was examined on behalf of the Plaintiff and PE was closed
vide separate statement of the Plaintiff on 18.07.2017. Thereafter, an
application under Section 114, Order IX R 7 of CPC and Order XVIII
R 17 and Section 151 of CPC was filed on behalf of the Defendants
for review of order dated 18.07.2017 which was subsequently allowed
subject to payment of cost and an opportunity was given to the
Defendants for cross-examination of PW-1. Afterwards, Defendant no.
1 had moved an application under Section 151 of CPC for waiver of
cost which was dismissed. PW-1 was cross examined and discharged
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 16 of 50
on 26.10.2017 upon payment of cost and matter was proceeded for
Defendant's evidence.
Thereafter, the suit was again transferred to the Court of Ld.
ADJ-04, South-West, Dwarka Courts, New Delhi.
9. On 13.02.2018, D1W1 Sh. Jai Dutt Sharma had tendered his
evidence by way of affidavit exhibited as Ex. D1W1/A, was cross
examined and discharged on 09.01.2019 and evidence on behalf of
Defendant no. 1 was closed on the even date.
10. Subsequently, the suit was transferred to the Court of Ld. ADJ-
03, South-West, Dwarka Courts, New Delhi vide order of the Ld.
Principal District and Sessions Judge, South-West, Dwarka Courts,
New Delhi dated 27.08.2019 pursuant to the application under Section
24 of CPC. Thereafter, Ld. Counsel for Plaintiff adverted to his
application under Order XXXIX R 1 and 2 of CPC to which reply was
duly filed by the Defendants.
11. On 18.02.2020, DW-2 Devi Dutt Sharma had tendered his
evidence by way of affidavit exhibited as Ex. D2W1/A, however, his
cross-examination was deferred. Afterwards, it was submitted on
behalf of Defendant no. 2 that the affidavit of evidence tendered by
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 17 of 50
Defendant no. 2 may not be read into evidence and Defendant no. 2
wished to close evidence. No objection was raised on behalf of any
other party and DE was closed on behalf of Defendant no. 2 and
separate statement was recorded in this regard. Thereafter, matter was
proceeded for final arguments.
Contention Of Parties
12. Final arguments were heard on behalf of the parties at length
and on many occasions. On behalf of the Plaintiff, it was contended
that the defence taken up by the Defendants was frivolous. The Ld.
Counsel for Plaintiff has argued that the Plaintiff has been able to
prove his case on the basis of the family settlement dated 04.06.2007
which was Ex. PW1/1. It was submitted that the previous Court of the
Ld. SCJ, Dwarka Courts, New Delhi vide judgment dated 12.07.2011
had already relied upon the family settlement Ex. PW1/1. It was
submitted that vide the said judgment which was Ex. P-1, the Ld. SCJ
had decided a suit filed by the Defendant no. 2 herein against the
Plaintiff and Defendant no. 1 herein for declaration and permanent
injunction over the same suit property which is involved in the present
suit i.e. Kh. No. 221, within the Lal Dora abadi area of Village Khera
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 18 of 50
Dabar, Najafgarh, New Delhi. It has been therefore, submitted that as
the partition is the admitted fact and Ex. PW1/1 has been conclusively
proved, the Plaintiff's suit should be decreed as the Defendant no. 1 is
occupying the 340 sq. feet and 148 sq. feet which is the portion shown
in the site plan Ex. PW1/7.
13. Per contra, it has been submitted on behalf of Defendant no. 1
that the parties are already in possession of their respective portions
and that they have been in possession of their respective portions of
the suit property since the year 1978. It has been submitted that the
case of the Plaintiff is false and fabricated and without any basis in
law or fact.
14. Multiple adjournments were granted to the parties to argue their
case and liberty was also given to file the written submissions.
Defendant no. 2 neither argued through Counsel or in person, and the
party did not file any written submissions despite directions.
Therefore, finally, the final arguments were concluded and the matter
was reserved for judgment.
Findings
15. I shall decide all the issues together as they are interconnected.
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 19 of 50
The following observations / inferences can be drawn from the
evidence and record:-
(a) It is pertinent to note that no relief as such has been claimed
against Defendant no. 2 as it is the Defendant no. 1 who is stated to be
in occupation of the suit property qua which the relief of possession is
sought by the Plaintiff. The Plaintiff's case is based upon the document
Ex. PW1/1. As per the Plaintiff, the said document contains a site plan
of Kh. No. 221 i.e. the suit property wherein certain portions have
been given to each of the parties of the present suit being the brothers
and out of which, it is claimed by the Plaintiff that a certain portion
measuring 240 sq. feet which fell in the share of the Plaintiff as per
Ex. PW1/1 has been occupied by the Defendant no.1 and another
portion of 148 sq. feet which was falling in the share of the Plaintiff
has also been occupied by Defendant no. 1. On the basis of the
aforesaid alleged partition by metes and bounds, the Plaintiff has
preferred the present suit for possession and other consequential
reliefs.
(b) The main defence taken up in the pleadings by Defendant no. 1
is that there was a partition during the lifetime of Sh. Duli Chand
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 20 of 50
Sharma i.e. the father of the parties and that the parties to the present
suit have been enjoying the property of their respective portions since
the year 1978. In para no. 4, in the 'Reply on Merits', Defendant no. 1
has only issued a bland denial qua the partition family settlement
dated 04.06.2007 (Ex. PW1/1) which forms the fulcrum of the case of
the Plaintiff. It has only been averred that the original agreement dated
04.06.2007 is with the Plaintiff and that the same is being
manipulated. In para no. 5 on the 'Reply on Merits', the Defendant no.
1 has partially admitted the contents of para no. 5 of the plaint which
delineates the manner in which the partition took place and the
distribution of the properties thereof while blandly denying the
partition of the property at Kh. No. 221 i.e. the suit property.
(c) Moreover, it is instructive to peruse the final order and
judgment of the Ld. SCJ, Dwarka Courts, New Delhi passed on
12.07.2011 in CS No. 302/2009. The said suit was filed by Defendant
no. 2 herein against the Plaintiff and Defendant no. 1 herein for
declaration and permanent injunction qua the very same suit property
which is involved in the present case which would be clear on a
reading of the aforesaid judgment Ex. PW1/3. The Defendant no. 2 in
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 21 of 50
that suit had also claimed that a partition had happened in the lifetime
of their father in the year 1978 itself and that the said partition was
reduced into writing on 04.06.2007. The Defendants therein i.e. the
Plaintiff and Defendant no. 1 herein had denied that their father had
divided the property by metes and bounds in the year 1978 and
according to them, the property was divided by way of oral settlement
on a temporary basis and on 04.06.2007, the same was reduced into
writing. Qua the suit property of the present case, in that suit, it was
admitted by the Plaintiff and Defendant no. 1 that the share of the
Defendant no. 2 was 1526 sq. feet. It was submitted by them that the
area of the plot is 6288 sq. feet and not 6840 sq. feet and there was no
question of an extra 552 sq. feet coming into possession of the father
of the parties by way of adverse possession. In light of the above said
pleadings, the Ld. SCJ was pleased to find that
".....8. The dispute in the present case pertains to partition
of plot falling in Khasra No. 221 in the extended Lal Dora
of village Khera Dabar. As per deposition made by plaintiff,
although area of plot in Khasra No. 221 was 6288 sq.ft. but
father of plaintiff got an extra area of 552 sq.ft.by way of
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 22 of 50
adverse possession, therefore, total area which came to the
share of father of parties in plot falling in Khasra No.221
was 6840 sq.ft. Plaintiff has deposed that in the said plot, he
got an area of 1550 sq.ft. which is shown in green in the site
plan Ex.PW1/C. The area falling in the share of defendant
no.1 was shown in blue in the site plan Ex.PW1/C and it
was deposed that defendant no.1 got an area of 1350 sq.ft.
in the South-West corner and 440 sq.ft. in the North-East
corner of plot in Khasra No.221. With regard to share of
defendant no.2, it was deposed to by plaintiff that since he
was not given any built up area in the old Lal Dora Abadi,
he was compensated by giving double the area in plot
falling in Khasra No. 221 and his share came to 3500 sq.ft.
which is shown in red in the site plan Ex.PW1/C. Plaintiff
also got the family settlement dated 04.06.2007 exhibited as
Ex.PW1/B in its evidence. The deposition made by plaintiff,
PW2 and PW3 that partition by metes and bounds of all the
three properties had taken place during the life time of their
father in the year 1978 is contradicted by the plaintiff, PW2
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 23 of 50
and PW3 themselves in their examination in chief. In para 5
of their affidavits Ex.PW1/1, Ex.PW2/A & Ex.PW3/A, it is
deposed to by plaintiff, PW2 Naresh and PW3 Ram
Chander that after the death of father of parties, plaintiff
and defendants got all the three properties mutated in their
joint names. This deposition made by plaintiff, PW2 and
PW3 goes to show that no partition by metes and bounds
had taken place during the life time of father of plaintiff in
the year 1978 because if partition had taken place by metes
and bounds then plaintiff and defendants would have got
their respective shares mutated in their own names and
would not have gone for mutation of all the properties
jointly in their names after the death of their father in the
year 1982. The very fact that mutation was got done jointly
in the name of plaintiff and defendants goes to prove that no
partition by metes and bounds had taken place during the
life time of father of parties in the year 1978 and parties are
not occupying the respective shares since then. Even the
document filed by plaintiff Ex.PW1/B which records the fact
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 24 of 50
of partition does not reflect that partition by metes and
bounds had taken place in the year 1978 during the life time
of their father. Therefore, plaintiff has failed to prove the
fact of partition by metes and bounds during the life time of
his father in the year 1978 and occupation of properties
pursuant to partition.
9. With regard to settlement dated 04.06.2007, plaintiff has
admitted the settlement vide document Ex.PW1/B. In fact,
no party is denying the partition vide document Ex.PW1/B.
On perusal of document Ex.PW1/B, it reflects that plot in
new Lal Dora area was having an area of 6288 sq.ft. and
there was an agreement between the parties that defendant
no.2 had to be given 1140 sq.ft. extra in lieu of the fact that
he has not been given any built up house in the old Lal
Dora area. That the area of plot in Khasra No.221 in New
Lal Dora area was 6288 sq.ft. has been admitted to by
plaintiff in his cross examination and is further
corroborated by PW3 Sh.Ram Chander in his cross
examination. Although plaintiff has deposed that extra 552
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 25 of 50
sq.ft.had come to the share of his father by way of adverse
possession but this deposition of plaintiff is not believable
as this fact is not mentioned in the settlement Ex.PW1/B nor
plaintiff has specified in his evidence as to who was the
owner of 552 sq.ft. area which his father came to adversely
possess. Therefore, it is proved on record that area of plot in
Khasra No.221 is 6288 sq.ft. only..............."
At this stage, it would be pertinent to invoke the provisions of
Section 11 of the CPC which are extracted herein for convenience.
"11. Res judicata.--No Court shall try any suit or issue in
which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between
the same parties, or between parties under whom they or
any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard
and finally decided by such Court.
Explanation I.--The expression "former suit" shall denote a
suit which has been decided prior to the suit in question
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 26 of 50
whether or not it was instituted prior thereto.
Explanation II.--For the purposes of this section, the
competence of a Court shall be determined irrespective of
any provisions as to a right of appeal from the decision of
such Court.
Explanation III.--The matter above referred to must in the
former suit have been alleged by one party and either denied
or admitted, expressly or impliedly, by the other.
Explanation IV.--Any matter which might and ought to have
been made ground of defence or attack in such former suit
shall be deemed to have been a matter directly and
substantially in issue in such suit.
Explanation V.--Any relief claimed in the plaint, which is
not expressly granted by the decree, shall, for the purposes
of this section, be deemed to have been refused.
Explanation VI.--Where persons litigate bona fide in respect
of a public right or of a private right claimed in common for
themselves and others, all persons interested in such right
shall, for the purposes of this section, be deemed to claim
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 27 of 50
under the persons so litigating.
Explanation VII.--The provisions of this section shall apply
to a proceeding for the execution of a decree and references
in this section to any suit, issue or former suit shall be
construed as references, respectively, to a proceeding for the
execution of the decree, question arising in such proceeding
and a former proceeding for the execution of that decree.
Explanation VIII.--An issue heard and finally decided by a
court of limited jurisdiction, competent to decide such issue,
shall operate as res judicata in a subsequent suit,
notwithstanding that such court of limited jurisdiction was
not competent to try such subsequent suit or the suit in
which such issue has been subsequently raised."
In my view, the aforesaid findings of the Ld. SCJ in CS No.
302/2009 would operate as res judicata in the present suit as the issue
of fact raised in the present suit as to whether the partition took place
in the year 1978 or whether it was reduced into writing in the year
2007 by virtue of the family arrangement Ex. PW1/1 dated
04.06.2007 has already been decided in the previous suit between the
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 28 of 50
same parties who were litigating under the same title. The Ld. SCJ
while rejecting the contention of the Plaintiff with regard to the
partition of the properties in the year 1978, also observed that there
was no partition in the year 1978 as the parties had got the properties
mutated jointly in their names after the death of their father in the year
1982 and the said fact was found to be showing that there was no
partition in the year 1978. This finding would operate as res judicata
between the parties to the present suit.
(d) It is pertinent to note that the document Ex. PW1/1 which is
said to be the family arrangement vide which the properties were
partitioned dated 04.06.2007 and which has been relied upon by the
Plaintiff to aver that the portion of the property shown in red in site
plan Ex. PW1/7 fell in the share of the Plaintiff, is unregistered. I have
therefore, considered whether the document Ex. PW1/1 was required
to be registered compulsorily or whether it is admissible being a mere
memorandum of an earlier partition.
In Sita Ram Bhama v. Ramvatar Bhama, (2018) 15 SCC 130 :
(2019) 1 SCC (Civ) 116 : 2018 SCC OnLine SC 269, the Hon'ble
Supreme Court of India reiterated and explained the law with respect
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 29 of 50
to the registration of the family settlements, the relevant portion of the
judgment is extracted herein:
"10. The only question which needs to be considered in the
present case is as to whether document dated 9-9-1994
could have been accepted by the trial court in evidence or
the trial court has rightly held the said document
inadmissible. The plaintiff claimed the document dated 9-9-
1994 as memorandum of family settlement. The plaintiff's
case is that earlier partition took place in the lifetime of the
father of the parties on 25-10-1992 which was recorded as
memorandum of family settlement on 9-9-1994. There are
more than one reasons due to which we are of the view that
the document dated 9-9-1994 was not mere memorandum of
family settlement, rather a family settlement itself. Firstly, on
25-10-1992, the father of the parties was himself owner of
both, the residence and shop being self-acquired properties
of Devi Dutt Verma. The High Court has rightly held that the
said document cannot be said to be a will, so that the father
could have made the will in favour of his two sons, the
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 30 of 50
plaintiff and the defendant. Neither the plaintiff nor the
defendant had any share in the property on the day when it
is said to have been partitioned by Devi Dutt Verma. Devi
Dutt Verma died on 10-9-1993. After his death, the plaintiff,
the defendant and their mother as well as sisters become the
legal heirs under the Hindu Succession Act, 1956 inheriting
the property being a Class I heir. The document dated 9-9-
1994 divided the entire property between the plaintiff and
the defendant which document is also claimed to be signed
by their mother as well as the sisters. In any view of the
matter, there is relinquishment of the rights of other heirs of
the properties, hence, the courts below are right in their
conclusion that there being relinquishment, the document
dated 9-9-1994 was compulsorily registrable under Section
17 of the Registration Act.
11. Pertaining to family settlement, a memorandum of family
settlement and its necessity of registration, the law has been
settled by this Court. It is sufficient to refer to the judgment
of this Court in Kale v. Director of
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 31 of 50
Consolidation [Kale v. Director of Consolidation, (1976) 3
SCC 119] . The propositions with regard to family
settlement, its registration were laid down by this Court in
paras 10 and 11: (SCC pp. 126-27)
"10. In other words to put the binding effect and the
essentials of a family settlement in a concretised form, the
matter may be reduced into the form of the following
propositions:
(1) The family settlement must be a bona fide one so as to
resolve family disputes and rival claims by a fair and
equitable division or allotment of properties between the
various members of the family;
(2) The said settlement must be voluntary and should not be
induced by fraud, coercion or undue influence;
(3) The family arrangement may be even oral in which case
no registration is necessary;
(4) It is well settled that registration would be necessary
only if the terms of the family arrangement are reduced into
writing. Here also, a distinction should be made between a
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 32 of 50
document containing the terms and recitals of a family
arrangement made under the document and a mere
memorandum prepared after the family arrangement had
already been made either for the purpose of the record or for
information of the court for making necessary mutation. In
such a case the memorandum itself does not create or
extinguish any rights in immovable properties and therefore
does not fall within the mischief of Section 17(2) of the
Registration Act and is, therefore, not compulsorily
registrable;
(5) The members who may be parties to the family
arrangement must have some antecedent title, claim or
interest even a possible claim in the property which is
acknowledged by the parties to the settlement. Even if one of
the parties to the settlement has no title but under the
arrangement the other party relinquishes all its claims or
titles in favour of such a person and acknowledges him to be
the sole owner, then the antecedent title must be assumed
and the family arrangement will be upheld and the courts
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 33 of 50
will find no difficulty in giving assent to the same;
(6) Even if bona fide disputes, present or possible, which
may not involve legal claims are settled by a bona fide
family arrangement which is fair and equitable the family
arrangement is final and binding on the parties to the
settlement.
11. The principles indicated above have been clearly
enunciated and adroitly adumbrated in a long course of
decisions of this Court as also those of the Privy Council
and other High Courts, which we shall discuss presently."
(emphasis in original)
12. We are, thus, in full agreement with the view taken by the
trial court as well as the High Court that the document
dated 9-9-1994 was compulsorily registrable. The document
also being not stamped could not have been accepted in
evidence and the order of the trial court allowing the
application under Order 13 Rule 3 CPC and the reasons
given by the trial court in allowing the application of the
defendant holding the document as inadmissible cannot be
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.
Suit No. 17332/16 Page 34 of 50
faulted.
13. There is only one aspect of the matter which needs
consideration i.e. whether the document dated 9-9-1994,
which was inadmissible in evidence, could have been used
for any collateral purpose. In a suit for partition, an
unregistered document can be relied upon for collateral
purpose i.e. severancy of title, nature of possession of
various shares but not for the primary purpose i.e. division
of joint properties by metes and bounds. Further, an
unstamped instrument is not admissible in evidence even for
collateral purpose, until the same is impounded. A two-
Judge Bench judgment of this Court in Yellapu Uma
Maheswari v. Buddha Jagadheeswararao [Yellapu Uma
Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC
787 : (2016) 3 SCC (Civ) 767] is appropriate. In the above
case also, admissibility of documents, Ext. B-21 dated 5-6-
1975 a deed of memorandum and Ext. B-22 dated 4-6-1975
being an agreement between one late Mahalakshamma,
Respondent 1-plaintiff and Appellant 1-defendant came for
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 35 of 50
consideration. Objection was taken regarding admissibility which was upheld both by the High Court [Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, 2013 SCC OnLine AP 766] and trial court. Matter was taken up by this Court. In the above case, this Court held that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents. This Court after considering both the documents, B-21 and B-22 held that they require registration. In para 15, the following was held: (SCC p. 794) "15. It is well settled that the nomenclature given to the document is not decisive factor but the nature and substance of the transaction has to be determined with reference to the terms of the documents and that the admissibility of a document is entirely dependent upon the recitals contained in that document but not on the basis of the pleadings set up by the party who seeks to introduce the document in question. A thorough reading of both Exts. B-21 and B-22 Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 36 of 50
makes it very clear that there is relinquishment of right in respect of immovable property through a document which is compulsorily registrable document and if the same is not registered, it becomes an inadmissible document as envisaged under Section 49 of the Registration Act. Hence, Exts. B-21 and B-22 are the documents which squarely fall within the ambit of Section 17(1)(b) of the Registration Act and hence are compulsorily registrable documents and the same are inadmissible in evidence for the purpose of proving the factum of partition between the parties. We are of the considered opinion that Exts. B-21 and B-22 are not admissible in evidence for the purpose of proving primary purpose of partition."
14. After holding the said documents as inadmissible, this Court in Yellapu Uma Maheswari case [Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787 : (2016) 3 SCC (Civ) 767] further proceeded to consider the question as to whether the documents B-21 and B-22 can be used for any collateral purpose. In the above context, the Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 37 of 50
Court accepted the submission of the appellant that the documents can be looked into for collateral purpose provided the appellant-defendant to pay the stamp duty together with penalty and get the document impounded. In paras 16 and 17, the following has been laid down: (SCC p.
794) "16. Then the next question that falls for consideration is whether these can be used for any collateral purpose. The larger Bench of the Andhra Pradesh High Court in Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy [Chinnappareddigari Peda Mutyala Reddy v. Chinnappareddigari Venkata Reddy, 1967 SCC OnLine AP 4 : AIR 1969 AP 242] has held that the whole process of partition contemplates three phases i.e. severancy of status, division of joint property by metes and bounds and nature of possession of various shares. In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 38 of 50
various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant want to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.
17. Accordingly, the civil appeal is partly allowed holding that Exts. B-21 and B-22 are admissible in evidence for collateral purpose subject to payment of stamp duty, penalty, proof and relevancy."
Relevant provisions of Registration Act, 1908 are extracted herein as under:
"17. Documents of which registration is compulsory.--(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been examined on or after the date on which, Act XVI Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 39 of 50
of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely--
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 40 of 50
declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property : ]
49. Effect of non-registration of documents required to be registered.--No document required by Section 17 43[or by any provision of the Transfer of Property Act, 1882 (4 of 1882),] to be registered shall--
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (1 of 1877) 45[* * *] or as evidence of any collateral Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 41 of 50
transaction not required to be effected by registered instrument.] Therefore, as the document Ex. PW1/1 which is the family settlement relied upon by the Plaintiff to show that he is entitled to the possession of the red portion in site plan Ex. PW1/7, being a written document, it would have to be considered necessarily as to whether registration of the same was required or not. The Hon'ble Supreme Court in the seminal judgment of Kale Vs. Director of Consolidation (1976) 3 SCC 119 which was reiterated by the Hon'ble Supreme Court in Sitaram Bhama (supra) has drawn a distinction between documents containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. If the document is found to be a mere memorandum recording a family arrangement which has already been acted upon, then the same would be admissible even without registration, however, if the said document creates or extinguishes any right, title or interest of the co-sharers in present and for the future, then the same would Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 42 of 50
require registration.
(e) As already noted, the fact that there was no partition in the year 1978 as alleged by Defendant no. 1 as the properties were mutated in the joint name of the parties is res judicata. The Plaintiff himself had denied that any partition happened in the year 1978 in his written statement in the earlier suit. Once there is no proof of earlier partition, then it becomes probable that in fact, the partition only took place by virtue of the document Ex. PW1/1 and in fact, that is also the pleading of the Plaintiff in para no. 4 of the plaint wherein he avers that subsequent to the death of their father, the three brothers entered into the family settlement dated 04.06.2007 by metes and bounds. The Plaintiff has tried to give an impression that the document Ex. PW1/1 merely records the partition that had already taken place. However, on a reading of the document Ex. PW1/1, the language of the same does not make it so. The reading of the document will show that as per the recital at point no. 2, it is recorded that the three brothers have decided to partition their ancestral residential property in the manner as recorded in the said document. The document further records that the plot having area 828 sq. feet is given exclusively to the Plaintiff Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 43 of 50 whereas, the plot having 880 sq. feet area is falling in the exclusive share of Defendant no. 2 and as Defendant no. 1 is not getting any share in the aforesaid two properties, he is given an extra share in the suit property i.e. the old lal dora property having area of 6288 sq. feet. The said document also contains a mini site plan of the aforesaid property with directions of North, South, East and West and areas denoted with BD, JD and DD which are abbreviations of the names of the parties herein. The document clearly records that the partition is being made as per the site plan depicted therein. The document also does not contain any mention of a prior partition of the year 1978 or 1982 nor does it mention that the parties are already enjoying their portion of the properties. The mere reading of the document would show that the rights of Defendant no. 1 in two other properties of their father were completely extinguished and the areas of the property at Kh. No. 221 were marked for the purpose of dividing the same between the three brothers. A plain reading would show that the document Ex. PW1/1 cannot be said to be a mere memorandum but rather a document under which the family arrangement has taken place after agreement between the three parties. The reading of the Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 44 of 50 Ex. PW1/1 coupled with the finding of fact of the Ld. SCJ in the earlier suit wherein it was found that the properties were mutated in the joint names after the year 1982 and also the finding of the fact that the parties were not occupying their respective shares since the year 1978 point towards the fact that Ex. PW1/1 is not a mere memorandum and is therefore, a document which was required to be compulsorily registered under Section 17(1) of the Registration Act, 1908 with the consequences contained in Section 49 of the Registration Act. This conclusion is corroborated by the pleading of the Plaintiff himself wherein the Plaintiff avers that "the cause of action to file and institute the present suit arose in favour of the Plaintiff and against the Defendants on 04.06.2007 when the Plaintiff and Defendants agreed to and partitioned the three immovable properties of their father late Mr. Duli Chand." The said pleading which cannot be resiled from by the Plaintiff makes it explicit that in fact, the partition occurred on 04.06.2007 by virtue of the family settlement Ex. PW1/1. The Plaintiff's pleading that there was a temporary partition and the same was on basis of an oral agreement can therefore, not be sustained by virtue of the aforesaid pleading of Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 45 of 50 the Plaintiff himself.
(f) Furthermore, the Plaintiff himself was examined as PW-1 and during the cross-examination, he admitted that a partition suit was filed by him before the Ld. SDM in which case a settlement was arrived at on 04.06.2007. It is pertinent to note that the pleadings of the Plaintiff make no mention of the partition case filed before the SDM. The said fact which is admitted by the Plaintiff again was to show that no partition had taken place before 04.06.2007 and that there was no prior understanding which was reduced into writing as alleged by the Plaintiff. In fact, PW-1 also deposed during cross- examination that "prior to this settlement, each one of us had raised some construction on certain portions of the property." This would show that the parties were jointly enjoying the property by raising construction and in fact, the portions of the property were only partitioned by virtue of the document Ex. PW1/1 on 04.06.2007. No other evidence has been adduced by the Plaintiff that the parties were in possession of their respective shares even prior to 04.06.2007 and has not explained that if the parties were enjoying their shares due to a prior partition after death of their father in the year 1982, then why the Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 46 of 50 need arose to file the partition case before the SDM. Therefore, I find that the document Ex. PW1/1 was required to be compulsorily registered and since, the same has not been registered, it can only be used for a collateral purpose and is inadmissible otherwise.
(g) In Sitaram Bhama (supra), the Hon'ble Supreme Court has also explained the concept of collateral purpose and held that in a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint property by metes and bounds. Therefore, the said document Ex. PW1/1 can be used by the parties to explain and protect their possession as against third parties, to show that there has been a severance in status, however, as the same cannot be relied upon for the purpose of partition of the property, similarly, a suit for possession of a specific portion of the property by one of the co-sharer based upon the said document can also not be maintained due to the lack of registration of the written family arrangement. The relief of possession is a consequential relief hinging upon the partition by metes and bounds and therefore, based upon the unregistered document Ex. PW1/1, the suit for possession of Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 47 of 50 the Plaintiff as against Defendant no. 1 cannot be decreed as the said document would be inadmissible by virtue of Section 49 of the Registration Act, 1908.
(h) Even if the factum of non registration and inadmissibility of the Ex. PW1/1 is kept aside, the Plaintiff has claimed in the present suit that Plaintiff requested Defendant no. 1 on 22.04.2011 for handing over the possession of the portion of the suit property claimed in the present suit. However, a reading of the evidence of the Plaintiff in the previous suit wherein the Plaintiff was examined as DW-2, it has come on record in his evidence by way of affidavit that the present suit property was divided equally between three brothers by way of oral settlement on a temporary basis after the death of their father on 07.05.1982. During the cross-examination in that suit dated 18.03.2011, the Plaintiff deposed that he had constructed his house in Kh. No. 221 in the year 1982 after the death of his father. He has also admitted the suggestion that at the time when he constructed his house, he had separated from his brothers and that the separation had taken during the lifetime of his parents. The Plaintiff is estopped from resiling from the evidence given on oath in the said suit. Therefore, it Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 48 of 50 appears that if the said statement of the Plaintiff is taken as true and since the same can be read against the Plaintiff who is the maker of the statement, then it appears that the parties had entered into possession of their shares in the year 1982 and the Plaintiff therefore, stayed silent over the possession of the Defendant no. 1 on the portion of 240 sq. feet and 148 sq. feet claimed by him in the present suit and took no steps to claim possession of the said portions which as per his own statement, were allotted to him by way of the partition as alleged by him in his statement before the Court. The Plaintiff himself says that he got constructed his house in the year 1982 in the suit property and that at that time, he had separated from his brothers. If the same is taken as the truth, then the delay of the Plaintiff in demanding his share over the 240 sq. feet area and 148 sq. feet area only in the year 2011 more than 29 years later after the alleged separation has propounded by the Plaintiff himself is unbelievable. If in the year 1982 itself, the Plaintiff had separated from his brothers and had constructed his own house in the suit property, then it stands to reason that he would have demanded his portion of the suit property i.e. 240 sq. feet and 148 sq. feet soon after or within the reasonable time. The Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 49 of 50 story of the Plaintiff that on one hand, he got separated from his brothers in the suit property in the year 1982 and on the other hand, it was only on 22.04.2011, when the Plaintiff demanded possession of his share of a total of 388 sq. feet is unreliable and unbelievable. In para no. 13 of his plaint, the Plaintiff avers that the cause of action arose on 22.04.2011 when he demanded his share from Defendant no. 1 and on the other hand, he has deposed on oath before the Court of the Ld. SCJ, Dwarka, that the separation and partition had taken place in the year 1982. The Plaintiff's case is contradictory and it does not appear that he has approached the Court with clean hands.
(i) The Plaintiff's oral testimony with regard to the nature of his right over the suit property and the partition of the same and the specific portions allotted to each brother can also not be relied upon to decree the suit of the Plaintiff for the reason that once the Plaintiff had produced Ex. PW1/1 which is a document showing the shares of the parties, his oral testimony is inadmissible by virtue of Section 91 of the Indian Evidence Act. As the property was purportedly partitioned and the terms of the same have been reduced into writing, no oral evidence could be led to prove that the Plaintiff was entitled to the Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr. Suit No. 17332/16 Page 50 of 50 specific portion marked in red in Ex. PW1/7.
Therefore, I find while the document Ex. PW1/1 is admitted between the parties, however, the same is inadmissible and that the Plaintiff is not entitled to the relief prayed for. The issues are therefore, decided accordingly.
Relief
16. In view of the aforesaid discussion, the suit of the Plaintiff is dismissed. Parties to bear their own costs.
17. Decree sheet be prepared accordingly.
18. File be consigned to Record Room after due compliance. Digitally signed by DIVYANG THAKUR
DIVYANG Date:
THAKUR 2023.12.06
15:54:52
+0530
Announced in the open court (Sh. Divyang Thakur)
On 06.12.2023 ADJ-03/South West
Dwarka / New Delhi
Mr. Brahm Dutt Sharma Vs. Mr. Jai Dutt Sharma and Anr.