Delhi District Court
Satish Gupta And Ors vs Shakuntla And Ors on 11 February, 2025
IN THE COURT OF MS. RICHA GUSAIN SOLANKI,
DISTRICT JUDGE-02, SOUTH-WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ No. 45/2021
CNR No. DLSW010005912021
IN THE MATTER OF:
1. SATISH GUPTA
S/O Late Sh. Radhey Gupta
2. INDRAWATI
Wd/O Late Sh. Radhey Gupta
3. RITIKA @ REENA
D/O Late Sh. Radhey Gupta
All R/O Barwa Khas Barwa
Kushi Nagar Rampur Chaubey,
Uttar Pradesh
Also R/O RZ-A-95, First Floor,
Gali No.3, Part-II, Sitapuri,
Dabri, New Delhi.
4. GUDIA
D/O Late Sh. Radhey Gupta
W/O Sh. Ram Rattan
R/O Rampur Bujurg, Dumrikhas,
Gorakhpur, Uttar Pradesh.
5. SEEMA
D/O Late Sh. Radhey Gupta
W/O Sh Balwant Gupta
R/O Village Baliyawa, Rampur Karkhana,
Distt Deora, Uttar Pradesh.
6. SANTOSH
S/O Late Sh. Radhey Gupta
R/O Barwa Khas Barwa
Kushi Nagar Rampur Chaubey,
Uttar Pradesh
CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 1/14
Also R/O RZ-A-95, First Floor,
Gali No.3, Part-II, Sitapuri,
Dabri, New Delhi. .....Plaintiffs
Versus
1. SHAKUNTALA
Wd/O Late Sh Amar Gupta @ Amar Singh
2. RAJA GUPTA
S/O Late Sh Amar Gupta @ Amar Singh
3. RANI GUPTA
D/O Late Sh Amar Gupta @ Amar Singh
All R/O RZ-A-95, Ground Floor,
Gali No.3, Part-II, Sitapuri,
Dabri, New Delhi. .......Defendants
Date of institution 19.01.2021
Date of reserving judgment 29.01.2025
Date of pronouncement of judgment 11.02.2025
JUDGMENT
This is a suit for partition, possession and permanent injunction. The brief facts of the suit are:− PLAINT 1 The plaintiffs are the legal heirs of Late Sh. Radhey Gupta and the defendants are the legal heirs of Late Sh Amar Gupta. Sh Radhey Gupta and Sh Amar Gupta were brothers who had jointly purchased land admeasuring 31.1/4 sq yards out of khasra no. 688 (old) now known as RZ-A-95, Gali No.3, Part-II, Sitapuri, Dabri, New Delhi (hereinafter referred to as "the suit property" ) from Mohan Lal Pandey vide a chain of documents on 10.04.2000.
2 On 14.06.2000, Shri Amar Gupta passed away in a road accident. After his death, the defendants started residing in one CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 2/14 room on the ground floor of the suit property and let out the other room for generating income. Sh. Radhey Gupta and plaintiff no.1 started residing on the first floor, whereas the remaining plaintiffs were at the native village. Over a period of time, Sh. Radhey Gupta obtained electricity and telephone connections in the suit property.
3 On 14/15.06.2004, Sh. Radhey Gupta was murdered and defendant no.1 was arrested in FIR no. 121/2004 PS Inder Puri under Section 302/120B/201 IPC. She was eventually acquitted on 23.08.2008 and thereafter, she returned to the ground floor of the suit property.
4 Plaintiff no.1 had been continuously living on the first floor of the suit property and had paying electricity and telephone bills till the year 2009. In December 2009, the grandfather of plaintiff no.1 fell sick and he had to go to his native place. On 21.12.2020, he learnt that defendant no.1 had demolished the structure at the suit property and thus, dispossessed the plaintiffs. 5 Hence, the present suit has been filed seeking a decree of partition of the suit property and granting the plaintiffs half share therein and the possession of their shares. The plaintiffs have also prayed for a decree of permanent injunction restraining the defendants, their agents, associates, etc, from selling, parting with possession or creating any third-party interest over the suit property.
WRITTEN STATEMENT 6 The defendants filed a common written statement stating that the suit is liable to be dismissed being time barred. 7 It is stated that Sh. Radhey Gupta had sold his share in the suit property to defendant no.1 through agreement to sell, CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 3/14 affidavit, receipt, Will dated 10.02.2001. Defendant no.1 had filed a police complaint regarding the loss of the earlier chain of documents of the suit property, that is, NCR no. 1721/2010 dated 14.12.2010, but later she realised that the chain of documents had not been lost, but stolen by plaintiff no.1. 8 The defendants permitted Sh. Radhey Gupta to reside in the suit property as he did not have any other property in Delhi. It is also stated that after transferring his share in the suit property, Sh. Radhey Gupta was not paying the utility bills. 9 It is also stated that the grandparents of plaintiff no.1 were residing in their native village with their daughter who used to look after them. It is stated that after defendant no.1 went to jail, plaintiff no.1 took advantage of this fact and tried to usurp the suit property.
ISSUES 10 Vide order dated 13.09.2023, seven issues were framed by Ld. Predecessor Court:
"i)Whether the set of documents all dated 10.02.2001 executed by late Shri Radhey Gupta in favour of defendant no.1 are valid documents?...OPD1
ii)Whether by virtue of agreement to sell, affidavit, receipt, Will - all dated 10.02.2001 executed by late Shri Radhey Gupta, the defendant no.1 is entitled for exclusive possession of the suit property?...OPD
iii)Whether the set of documents all dated 10.02.2001 are forged and fabricated documents?...OPP
iv)Whether the plaintiff is entitled for the relief of declaration to declare the plaintiffs and the defendants as the joint owners of the suit property?...OPP
v)Whether the plaintiff is entitled for the relief of partition and separate possession by metes and bounds as prayed for?...OPP
vi)Whether the plaintiff is entitled for the relief of CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 4/14 permanent injunction, as prayed for?...OPP
vii)Relief."
EVIDENCE 11 The defendants were directed to lead evidence first. In order to prove their case, the defendants examined defendant no.1 as DW1. She tendered her affidavit in evidence Ex DW1/A, which is on the lines of the written statement. She relied on the following documents:
S. No. Document Marked as
1. Copies of the agreement to sell, affidavit, Mark A receipt and Will dated 10.02.2001 2. NCR No. 1721/2010 Ex DW1/2
3. Electricity bill of December 2020 Ex DW1/3
4. Receipts of water connection Ex DW1/4 12 The plaintiffs examined plaintiff no.1 as PW1. He tendered his affidavit Ex PW1/A which is on the lines of the plaint. PW1 relied on the following documents:
S. No. Document Marked as
1. The aadhaar cards of the plaintiffs Ex PW1/1 to
Ex PW1/4 (OSR)
and Mark PW1/5
& Mark PW1/6
2. SPA executed by other plaintiffs in favour of Ex PW1/7 to plaintiff no.1 Ex DW1/9
3. Copy of GPA, agreement to sell, affidavit, Will, Ex PW1/10 possession letter and receipt dated 10.04.2000
4. Identity card of Amar Gupta and his death Ex PW1/11 and certificate Mark PW1/13
5. Death certificate of Radhey Gupta Ex PW1/12
6. Electricity bills and payment receipt in the Ex PW1/15 to name of Radhey Gupta Ex PW1/25
7. MTNL bills and payment receipts Ex PW1/26 to Ex PW1/28
8. Photographs of the suit property Ex PW1/29 (also) Ex DW1/P1, P2 CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 5/14 and P3
9. Newspaper shown in the photographs Ex PW1/30
10. Site plan of the suit property Ex PW1/31 FINDINGS 13 I have heard Sh. Purshottam Kumar, Ld counsel for the plaintiffs and Sh. Satyendra Kajla, Ld Legal Aid Counsel for the defendants.
14 The issue-wise findings are as under:
14.1 "i)Whether the set of documents all dated 10.02.2001 executed by late Shri Radhey Gupta in favour of defendant no.1 are valid documents?...OPD1"
and "iii)Whether the set of documents all dated 10.02.2001 are forged and fabricated documents?...OPP"
14.1.1 Both these issues are connected and are thus, being dealt with together.
14.1.2 It is an admitted fact that the suit property was purchased jointly by Sh Radhey Gupta and Sh Amar Gupta vide chain of documents dated 10.04.2000 Ex PW1/10. The bone of contention is whether Sh Radhey Gupta sold his share in the suit property to defendant no.1 vide documents dated 10.02.2001 Mark A. The onus of proving the documents Mark A was on the defendants.
14.1.3 The defendants have not produced the original chain of documents dated 10.02.2001 and have relied on the NCR Ex DW1/2 to state that the originals are not in their custody. 14.1.4 The NCR Ex DW1/2 shows that defendant no.1 had reported the loss of her house documents and a mobile phone on a bus. However, the report does not provide any specific CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 6/14 description of the 'house' in question. Even if it is assumed that the report pertains to the suit property, no presumption can be drawn that the lost documents were the originals of Mark A or that they were not merely copies of Ex PW1/10. 14.1.5 Section 61 of the Indian Evidence Act, 1872 prescribes that contents of a document may be proved either by primary or by secondary evidence. As per Section 62 of the above enactment, primary evidence means the document itself produced for the scrutiny of the court. Explanation appended to Section 60 provides that copies of a document are not primary evidence. Thus, Mark A cannot be classified as primary evidence. 14.1.6 There is nothing on the record to indicate that the alleged photocopies Mark A were prepared from the original or that the same were not prepared from a copy of the original, or that they were compared with the original. In the absence of such material, the said photocopies cannot be treated as secondary evidence either.
14.1.7 In order to allow secondary evidence to be adduced, certain parameters, as provided under Section 65 and procedure enunciated under Section 66 of the Indian Evidence Act, ought to be satisfied and be complied with. While the defendants claim that the original transfer documents were not lost but actually stolen by plaintiff no.1, they did not serve him any notice under Section 66 of the Indian Evidence Act, as required for admission of secondary evidence under Section 65 of the said Act. 14.1.8 Section 64 of the said Act provides that documents must be proved by primary evidence. Thus, in light of the said laws, photocopies, Mark A are inadmissible in evidence and as such, cannot be relied upon by the defendants.
CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 7/14 14.1.9 Even otherwise, the defendants or DW1 are not the author of the said documents. To prove the documents, it was imperative to examine the author of the same and in case where such author has passed away, to examine a competent person to identify the signatures of the author.
14.1.10 During the defendants' evidence as also during the final arguments, I had enquired from Ld LAC for the defendants if the defendants wished to call any attesting witness or any other witness to prove the execution of the documents Mark A. Ld LAC, after taking instructions, informed that the defendants did not want to call any other witness.
These facts also render the documents Mark A inadmissible.
14.1.11 On the other hand, Ld Counsel for the plaintiffs has argued that the documents Mark A are forged and fabricated on their face as they purport to transfer the complete suit property from Sh Radhey Shyam to defendant no.1 whereas Sh Radhey Shyam was the owner of only half of the suit property. It is argued that if Sh Radhey Shyam had actually sold his share in the suit property in 2001 then why did he continue to reside in the suit property till his murder in the year 2004. 14.1.12 I find substance in this argument. It is indeed suspicious that the documents allegedly executed by Sh Radhey Shyam remained undisclosed until after his demise. Notably, Sh. Radhey Shyam continued to reside in the suit property until his passing, and it is an admitted fact that utility bills, including electricity, water, and telephone, remained in his name until the years 2009-2010.
14.1.13 Ld LAC for the defendants has argued that CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 8/14 defendant no.1 is illiterate and was unaware of the contents of the documents marked as Mark A. However, it is pertinent to note that during cross-examination, defendant no.1 was specifically questioned about the area of the suit property she had purchased, to which she responded that she had acquired 31.5 square yards, despite the entire suit property measuring only 31.25 square yards. This discrepancy raises serious doubts about the authenticity of the documents marked as Mark A, particularly since the defendants were already owners of half of the suit property as legal heirs of the late Sh. Amar Gupta. 14.1.14 In these circumstances, the defendants have failed to prove that the set of documents dated 10.02.2001 executed by Sh. Radhey Gupta in favour of defendant no.1 are valid documents. The plaintiffs have been able to show by a preponderance of probabilities that the said documents are forged and fabricated. Both the issues are accordingly answered in favour of the plaintiffs and against the defendants.
14.2 "ii)Whether by virtue of agreement to sell, affidavit, receipt, Will - all dated 10.02.2001 executed by late Shri Radhey Gupta, the defendant no.1 is entitled for exclusive possession of the suit property?...OPD"
14.2.1 Since the documents dated 10.02.2001 have been held to be forged and fabricated, the defendants are not entitled to assert ownership rights based thereon. Consequently, defendant no.1 is not entitled to claim exclusive possession of the suit property. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
14.3 "iv)Whether the plaintiff is entitled for the relief of CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 9/14 declaration to declare the plaintiffs and the defendants as the joint owners of the suit property?...OPP"
14.3.1 The plaintiffs had withdrew the relief of declaration during the second amendment of the plaint. Therefore, this issue appears to be superfluous and requires no adjudication. This issue is hereby struck out under Order XIV Rule 5(2) CPC.
14.4 "v)Whether the plaintiff is entitled for the relief of partition and separate possession by metes and bounds as prayed for?...OPP"
14.4.1 Ld Legal Aid Counsel has argued that the suit of the plaintiff is time barred as it was admitted by plaintiff no.1, during his cross-examination, that he was not allowed to enter the suit property after 2009. It is submitted that the defendants also assert their rights over the suit property on the basis of adverse possession.
14.4.2 I do not concur with these arguments. The plaintiffs assert that plaintiff no.1 resided in the suit property until December 2009, at which point he left for his native village to care for his grandparents. While the defendants acknowledged that plaintiff no.1 vacated the suit property, they dispute the reason for his departure. Nonetheless, it is undisputed that the plaintiffs, particularly plaintiff no.1, remained in possession until December 2009. Rather, defendant no.1 has stated, during her cross-examination, that plaintiff no.1 was in possession and the articles of Sh Radhey Gupta were lying in the suit property till the year 2020.
14.4.3 When reckoned from December 2009, the period of 12 years would complete in December 2021, however the present suit was filed in January 2021. Therefore, the claim of the CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 10/14 plaintiffs would not be hit by the plea of adverse possession. Moreover, the defendants have not taken the plea of adverse possession in their written statement.
14.4.4 As regards the point of limitation, Nanak Chand And Ors. vs Chander Kishore And Ors., AIR1982 DELHI 520 is a leading judgment on this aspect. While discussing the period of limitation for filing a partition suit and the starting point of such limitation period, the Hon'ble Delhi High Court observed:
"Separation from the joint family involving severance in status with all its legal consequences is quite distinct from the de facto division into specific shares of the joint property. One is a matter of individual decision, the desire to cover himself and enjoy his hitherto undefined and unspecified share separately from the others; whilst the other a natural resultant from his decision is the division and separation of his share which may be arrived at either by private agreement or by arbitration appointed by the parties or in the last resort by the court. One should not confuse the severance of status, with the allotment of shares. Therefore, a division in status takes place when a member expresses his intention to become separate unequivocally and unambiguously, and makes it known to other members of the family from whom he seeks to separate. The process of communication may vary in the circumstances of each particular case. The filing of a suit for partition is clear expression of such an intention. A decree may be necessary for working out the results of severance and for allotting definite shares, but the status of the plaintiff as separate in estate is brought about by his assertion of his right to separate whether he obtains a consequential judgment or not: see Mt. Girju Bai v. Sada Dhundiraj and others, Air 1916 P.C. 104, (4) Sura) Narain v. Ikbal Narain, (1913) 40 I.A. 40, (5), and Kawal Narain v. Budh Singh, Air 1917 P.C. 39 (6) partition in its larger sense, no doubt, therefore, consists in a division by which the share of each co-parcener with respect to all or any of the joint property is. fixed, and once the shares are defined, the partition in the sense of severance of disruption of the family is complete, but after 'the shares are so ascertained', the parties might elect either to have a partition of their shares by metes and bounds' or continue to live together and 'enjoy their property in common as before.' Whether they did one or the other would affect the mode of enjoyment, but not the tenure of the property or their interest in it. The joint ownership turns into possession and enjoyment in common until the physical partition takes place according to the shares standing at the date of severance of status. It is no more in doubt that a suit for such physical partition is governed by Article 120(113 new) as was held in Raghunath Das v. Gokal Chand and another, Air 1958 Sc 829(7), CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 11/14 and Mst. Rushmabai v. Lala Laxminarayanan and others. Such a suit under Article 113 is to be brought within three years from the time when the right to sue accrues. If the date of service of notice is the date from which the limitation is to start, then in virtue of section 30 of the Act, the suit should have been brought latest by 17-5-1969 but it was filed on 23-7-1969. It appears thus ex facie barred by time but ex facto it is not so. The crucial question in such cases is when a right to use accrues, there can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or, at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted : Mst. Bolo v. Mt. Koklen and others, Air 1930 P.C. 270(9). Where there are successive invasions or denials of a right, the right to sue under Article 120 (Article 113) accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such right, however, ineffective or innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether the threat effectively invades or jeopardises the said right: Mst Rukna Bai v. Lala Laxminarayan. The right to partition sprang into existence in this case when the notice of severance and demand for partition was served, but right to sue did not accrue until the defendant infringed or threatened to infringe that right. The plaintiffs had averred that it was in 1968 and afterwards that the defendant began to infringe the tenancy-in-common and deny their right to share. Such a pleas could be defeated by a specific denial and by proof that the right had been lost on account of ouster and exclusion that is adverse possession for more than the statutory period that is for not less than 12 years, vide Govindrao and another v. Raja Bai and another. That is the effect of Article 65 and section 27 of the Limitation Act. We are, therefore, of the view that the suit is not barred under Article 113..."
(emphasis supplied) 14.4.5 Similarly, in the present suit, the plaintiffs have asserted that on 21.12.2020, they learnt that defendant no.1 had demolished the structure on the suit property, which compelled them to institute the present suit. Furthermore, during his cross- examination, plaintiff no.1 clarified that while the defendants had denied him entry into the suit property since 2009, he never sought its partition, as he resided in his native village and defendant no.1 consistently assured him that the suit property was jointly owned by Sh Radhey Gupta and Sh. Amar Gupta. CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 12/14 14.4.6 In other words, the three-year limitation period for filing the partition suit, as prescribed under Article 113 of the Schedule to the Limitation Act, commenced only upon the demolition of the suit property in 2020, which unequivocally infringed the plaintiffs' rights. This contention could have been refuted through a specific denial and by demonstrating that the plaintiffs' right had been extinguished due to ouster and exclusion, i.e., adverse possession. However, as the present suit was instituted within twelve years from the accrual of the right to sue, the claim remains legally tenable.
Accordingly, it cannot be held that the plaintiffs' suit is barred by limitation.
14.4.7 Once it is proven that the suit property was jointly owned by the predecessors-in-interest of the plaintiffs and of the defendants, the plaintiffs are within their rights to seek a partition of the same. The share of Sh. Radhey Gupta would devolve on the plaintiffs and the share of Sh. Amar Gupta on the defendants. 14.4.8 Accordingly, this issue is decided in favour of the plaintiffs and the shares of the parties are ascertained as:
a) Plaintiff no.1 to Plaintiff no.6 - one-twelfth of the suit property, each
b) Defendant no.1 to Defendant no.3 - one-sixth of the suit property, each 14.5 "vi)Whether the plaintiff is entitled for the relief of permanent injunction, as prayed for?...OPP"
14.5.1 The shares of the parties have been ascertained but the suit property is still to be partitioned by metes and bounds. Accordingly, the parties are restrained from creating any third party interest over the suit property, except as directed by this CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 13/14 Court, from the date of this judgment.
14.5.2 Issue no. vi) is decided in favour the plaintiffs and against the defendants.
14.6 "vii) Relief."
The suit is decreed. Preliminary decree sheet be prepared accordingly.
14.7 Parties are directed to file their affidavits suggesting the mode of partition by metes and bounds.
14.8 Put up for further proceedings on 26.03.2025.
RICHA Digitally signed by RICHA
GUSAIN SOLANKI
GUSAIN Date: 2025.02.11
SOLANKI 17:15:43 +0530
Announced in open Court today (Richa Gusain Solanki)
on 11th February, 2025 District Judge-02,
South-West District,
Dwarka Courts, New Delhi
CS DJ ADJ No. 45/2021 Satish Gupta & Ors vs Shakuntala & Ors Page no. 14/14