Delhi District Court
Adj(Central) vs Shri Fateh Singh S/O Shri Teka on 18 January, 2016
IN THE COURT OF SH. RAJNISH BHATNAGAR;
ADJ(CENTRAL)11,DELHI
Suit No. : 865/08
Unique I. D No. 02401C0134032008
1 Shri Sombir S/o Shri Narain Singh
R/o Village Kherka, District Jhajjar, Haryana.
2 Shri Dalip Singh S/o Shri Chhajju
3 Shri Ram Gopal S/o Shri Chhajju
4 Smt. Daya W/o Late Shri Sant Ram
5 Ms. Jyoti D/o Late Shir Sant Ram
6 Ms. Dipati D/o Late Shir Sant Ram
All R/o Village Rawata, New Delhi.
......Plaintiffs
vs.
1 Shri Fateh Singh S/o Shri Teka
(deceased) through his legal heirs:
(a) Shri Rajbir Singh Son
(b) Shri Mahabir Singh Son
(c) Shri Om Parkash Son
(d) Shri Kuldeep Son
(e) Smt. Bala Daughter
(f) Smt. Birmati Daughter
All R/o Village Rawata, Delhi.
2 Shri Sukhbir S/o Shri Ram Kala
3 Shri Jagbir S/o Shri Ram Kala
4 Shri Dharabir S/o Shri Ram Kala
(deceased) through his legal heirs:-
(a) Smt. Tara Devi Widow
(b) Smt. Babli Daughter
(c) Kumari Savita Minor Daughter
Suit No. 865/08 Page no. 1/18
All R/o Village Rawata, Delhi
Minor through her mother & natural guardian Smt. Tara Devi
5 Shri Beg Raj S/o Shri Teka (deceased) through his legal heirs :-
(a) Shri Jai Narain Son
(b) Shri Om Mal Son
(c) Smt. Chhanno Daughter
All R/o Village Bhasunda, District Gurgaon, Haryana
6 Tehsildar (Kapashera)
Office at Old Terminal, Tax Building,
Kapasher, New Delhi.
......Defendants
Date of Institution of Suit : 30-01-2008
Date when reserved for orders : 01-12-2015
Date of Decision : 18-01-2016
JUDGMENT
1. By this judgment, I shall dispose of suit filed by the plaintiffs for partition and permanent injunction.
2. In brief the facts of the case of the plaintiffs are that the plaintiffs and the defendants are the co-owners and in joint possession of the properties situated in the extended Lal Dora Abadi of Village Rawata, Delhi. The details of the properties and share of the parties are mentioned herein below :
Properties No. Area
Kh. No. 285/2 (0-19) 950 Sq. Yds.
Kh. No. 286 (1-0) 1000 Sq. Yds.
Kh. No. 298 (1-5) 1250 Sq. Yds.
------------------------
Total 3200 Sq. Yds.
------------------------
Suit No. 865/08 Page no. 2/18
3. It is averred that as per the aforesaid shares of the parties each party is entitled to have the land as per their share stated below :
(a) Plaintiff No. 1 Sombir 533 Sq. Yds. App.
(b) Plantiff No. 2 Dalip Singh 800 Sq. Yds.
(c) Plaintiff No. 3 Ram Gopal 266 Sq. Yds.
(d) Plaintiff No. 4 - 6 Smt. Daya, 266 Sq. Yds.
Ms. Jyoti and Dipati Jointly.
(e) Deft. No. 1 Fateh Singh 616 Sq. Yds.)
(f) Deft. No. 2 to 4 Sukhbir, 356 Sq.Yds ) 1328
Jagbir and Dharabir jointly. ) Sq. Yds.
(g) Deft. No. 5 Sh. Beg Raj 356 Sq. Yds.)
4. It is averred that the defendant No. 1 without proper and legal partition of the aforesaid properties by metes and bound has constructed his house on the property located in Khasra No. 298 (1-5) more than his share, though the property which comes to his share is 616 Sq. Yds and so he is in possession of excess land to the extent of 634 Sq. Yds. It is averred that the suit properties situated in Khasra No. 285-286 are in possession of the plaintiffs, the defendant is time and again attempting to interfere in the peaceful possession of the plaintiffs over the said property.
5. It is averred that before the consolidation in Village Ravata which took place in the year 2003 and 2004. The plaintiffs and the defendants were also having their joint holding in the revenue estate of Village Ravata which has been partitioned by the revenue authorities according to share and possession of the parties and separate khatas have been allotted to them. The suit properties are only the joint properties of the parties which are in extended Lal Dora Suit No. 865/08 Page no. 3/18 Abadi meant for construction of residential houses which are not in the jurisdiction of the Revenue Court.
6. It is averred that the plaintiffs on 20-01-2008, requested the defendant to get their aforesaid properties partitioned by metes and bound according to their respective shares but they refused to do so. It is averred that the plaintiff No. 2 received notice of mutation on the application of one Amit Bajaj who claimed to have purchased the share of the defendant No. 2 to 5 out of Khasra No. 285-286. The plaintiffs went to the office of Tehsildar and requested him not to sanction the mutation of the suit land in favour of Amit Bajaj as defendant No. 2 to 5 are already in possession of the suit land more than their share. Hence this suit for partition by the plaintiffs.
7. It is averred that the cause of action arose when the defendants without seeking partition constructed their house on the land more than their share. The cause of action finally arose on 20-01-2008, when the plaintiffs demanded the partition of the suit properties from the defendants by metes and bound but the defendants refused and threatened to dispose off the entire suit property. It further arose when the plaintiff No. 2 received notice from the office of Tehsildar Delhi for 24-01-2008 on the mutation application of one Amit Bajaj.
8. The defendant No. 1 has contested the suit by filing the Written Statement. It is stated that the partition has already taken place between the parties long long ago. It is denied that defendant No. 1 without obtaining the proper or legal partition of the suit property constructed his house in Khasra No. 298 (1-5) more than his share or that he is in possession of excess land. It is denied that the property situated in Khasra No. 285-286 are in possession of the Suit No. 865/08 Page no. 4/18 plaintiffs or the defendants time and again is trying to interfere in the peaceful possession of the property. It is not denied that the partition by revenue authority has taken place. It is denied that the suit properties are the only joint properties of the parties or that they are in extended lal Dora Abadi meant for construction. It is denied that the plaintiffs on 20-01-2008, requested for the partition of the suit properties. The entire prayer clause is denied.
9. Defendant No. 2 to 4 have also filed their reply to the suit of the plaintiffs and they have stated in the reply that the defendant No. 2 and 3 and the legal heirs for defendant No. 4 do not wish to contest the present suit.
10. Defendant No. 2, 3, 4 and 5 were proceeded exparte on 4-2-2010.
11. On the pleadings of the parties, the following issues were framed on 18-03-2010:
1 Whether the plaintiff is entitled for a decree of partition of the suit property? OPP 2 Whether the plaintiff is entitled to decree for injunction against the defendant restraining the defendant from selling partying with possession, lenting and creating any third party interest?OPP 3 Whether the plaintiff has no cause of action?OPD 4 Whether the plaintiff has not come before the court with clean hands and suppressed the material fact?OPD 5 Whether the plaintiff has not properly valued the suit property for the purposes of court fees?OPD 6 Whether the plaintiff is entitled for relief claimed. 7 Relief.
12. In order to prove their case, the plaintiffs have examined Suit No. 865/08 Page no. 5/18 Sombir as PW 1, Dalip Singh as PW 2 and Amarnath, Kanoongo, SDM Office Kapashera, Delhi as PW 3. Thereafter the plaintiff's have closed their evidence.
13. Defendant Rajbeer Singh LR of deceased defendant No. 1 appeared as DW 1 and he proved his affidavit of evidence as Ex. DW 1/X. Thereafter he closed the defendant evidence.
14. I have heard the counsels for the parties and perused the records of the case.
15. It is urged by the counsel for the plaintiffs that the properties have not been partitioned and no partition has taken place between the parties. It is further submitted by the counsel that the defendant has not denied the extent of share of the plaintiffs. It is further urged that there are vague denials in the WS. It is further submitted that it is admitted that the land is in extended Lal Dora so the Civil Court has the jurisdiction and he relied upon :
(a) Gyanender Singh Vs. Narayan Singh & Ors. R.F.A. No. 497/2005.
(b) Mr. Anand J. Datwani Vs. Ms. Geeti Bhagat Datwani & Ors 200 (2013) DLT 418
16. On the other hand, it is urged by the counsel for the defendant No. 1 who is the only contesting defendant that the properties in question are agricultural land and only revenue Court has the jurisdiction. It is further urged by the counsel for the defendant No. 1 that the suit properties have already been partitioned long ago and parties are in their respective portion of properties since the date of partition.
17. My issue-wise findings are as follows :Findings on issue No. 1 Suit No. 865/08 Page no. 6/18
"1 Whether the plaintiff is entitled for a decree of partition of the suit property? OPP"
18. The onus to prove this issue is on the plaintiffs. In order to prove their case the plaintiffs examined Sombir as PW 1 who proved his affidavit of evidence as Ex. PW 1/X. He proved on record the following documents :
1 Certified copy of Khatoni Pamaish of Khasra No. 298 of village Rawata, Delhi for the year 2000-2004 as Ex. Pw 1/1. 2 Khasra No. 285/2 and 286 of Village Rawata, Delhi as Ex. Pw 1/2 3 Copy of Aks-sejra of the land forming part of above Khasra Nos.
as Ex. Pw 1/3.
4 Site plan of the suit properties prepared by draftsman as Ex.
PW 1/ 4.
19. In his cross examination he has stated that he had asked the defendants for the partition and he had also asked defendant No. 1 for partition of the properties. He denied the suggestion that he has got his share. No suggestion has been given to this witness that the properties in question have already been partitioned. No date of partition has been suggested to him. In his examination in chief he deposed that the parties to the suit are co-owners and are in joint possession of the suit properties situated in extended Lal Dora Abadi, Village Rawata. He gave the details of the properties as under :
20. Properties No. Area Kh. No. 285/2 (0-19) 950 Sq. Yds.
Kh. No. 286 (1-0) 1000 Sq. Yds. Suit No. 865/08 Page no. 7/18 Kh. No. 298 (1-5) 1250 Sq. Yds. ------------------------ Total 3200 Sq. Yds. ------------------------ 21. He also deposed about the extent of share of each of the parties to the suit which is as follows : 22. (a) Sombir Plaintiff No. 1 1/6th (b) Dalip Singh Plantiff No. 2 1/4th (c) Ram Gopal Plaintiff No. 3 1/12th (d) Smt. Daya, Jyoti 1/12th Jointly and Dipati Plaintiff No. 4 to 6 (e) Fateh Singh Deft. No. 1 7/36th (f) Sukhbir Singh, Jagbir and Dharambir 1/9th jointly Deft. No. 2 to 4 (g) Sh. Beg Raj Deft. No. 5 1/9th
23. He further deposed about the entitlement of the land of each of the party as per their share which is as follows :
24. (a) Plaintiff No. 1 Sombir 533 Sq. Yds. App.
(b) Plantiff No. 2 Dalip Singh 800 Sq. Yds.
(c) Plaintiff No. 3 Ram Gopal 266 Sq. Yds.
(d) Plaintiff No. 4 - 6 Smt. Daya, 266 Sq. Yds.
Ms. Jyoti and Dipati Jointly.
(e) Deft. No. 1 Fateh Singh 616 Sq. Yds.)
(f) Deft. No. 2 to 4 Sukhbir, 356 Sq.Yds. jointly
Suit No. 865/08 Page no. 8/18
Jagbir and Dharambir
(g) Deft. No. 5 Sh. Beg Raj 356 Sq. Yds.)
25. Plaintiffs have also examined Dalip Singh as PW 2. He tendered his affidavit of evidence and proved on record the same as Ex. PW 2/X.
26. He also corroborated the version of PW 1 with regard to the co-
ownership of the properties in question, share of each of the parties to the suit and he further corroborated the extent of land to which the each party is entitled to.
27. He was also cross examined. There is nothing in his cross examination to discredit his testimony. No suggestion has been put to this witness that the properties have already been partitioned or when the alleged partition took place.
28. Plaintiffs have also examined Amarnath as PW 3 who is the Kanoongo from the office of SDM Kapashera, Delhi. He brought the summoned record i.e Khatoni Pamaish for the year 2003-2004 pertaining to Khewat No. 145 pertaining to Khasra No. 298 measuring 1 bigha 5 biswa and Khewat No. 135 pertaining to Khasra No. 285/2 measuring 19 biswa and Khasra No. 286 mesuring 1 bigha relating to village Rawata, Head Bast No. 139 Tehsil Nazafgarh, District South West, Delhi. The copy of the Khewat No. 145 is already exhibited as Ex. PW 1/1 and of Khewat No. 135 is Ex. PW 1/2. He compared the copies of the aforesaid Khatoni Pamaish issued by Halka Patwari on 20-11-2006 from the original record brought by him and deposed that the same are correct according to original record.
29. Defendant Rajbeer Singh LR of deceased defendant No. 1 appeared as DW 1 and he proved his affidavit of evidence as Ex. DW Suit No. 865/08 Page no. 9/18 1/X.
30. He admitted in his cross examination that the disputed land is the part of extended Lal Dora of Village Rawata. He admitted that according to the revenue record the share in the disputed land of Dalip Singh is 1/4th. He also admitted that Beg Raj may be also having the same share as Dalip Singh. He also admitted that Bharta was having 1/4th share and Ramkala was also having 1/4th share. He admitted that his father was also having the same share as aforesaid persons. He denied the suggestion that his father has forcefully occupied more land then his share in the disputed land.
31. In para 1 of the plaint it is stated that the plaintiffs and the defendants are the co-owners and in joint possession of the properties situated in extended Lal Dora Aabadi of Village Rawata. The reply to para 1 of the plaint is totally vague and the only submission in the written statement is that the properties have been partitioned but no date and details have been mentioned so vague denial is no denial in the eyes of law. In para 3 of the plaint the plaintiff has mentioned the extent of land to which the plaintiffs and the defendants are entitled to. Again in the WS there is a vague denial and the stand taken is that the properties stood partitioned.
32. The stand of the defendant is that the properties in question have been partitioned. PW 1 and PW 2 have corroborated each other and deposed that no partition by metes and bound took place between the parties. On the other hand, the stand of the defendant is that the properties have been partitioned but the defendant No. 1 has not mentioned the date as to when the partition took place between the parties. It has also not been mentioned that in whose presence the partition took place between the parties.
Suit No. 865/08 Page no. 10/1833. The burden to prove that the properties have been partitioned long ago was on the defendant No. 1 but the defendant No. 1 has failed to prove that the properties which are situated in the extended Lal Dora Abadai have been partitioned by metes and bounds between the parties to the suit. The other objection raised by the defendant is that the property is situated in extended Lal Dora Abadi so the Civil Court has no jurisdiction and only the revenue Court has the jurisdiction to decide the matter.
34. It is not in dispute between the parties that in the suit land no agricultural activity is being done and the entire land is being used for residential purposes. Reference to para 1 and 3 of the plaint shows that the lands are situated in the extended Lal Dora Abadi to which there is no dispute from the side of the defendant and are non agricultural / non cultivatable lands i.e their abadi land falling in Lal Dora, therefore the suit for partition in regard to these properties is maintainable. Reliance can be placed upon Gyanender Singh Vs. Narayan Singh & Ors. R.F.A. No. 497/2005.
35. In another judgment titled as Mr. Anand J. Datwani Vs. Ms. Geeti Bhagat Datwani & Ors 200 (2013) DLT 418 it has been held as follows : -
"That the provisions of Delhi Land Reforms Act 1954 shall not apply to a land which at the outset was an agricultural land but is no longer being used for agricultural purposes"
"Section 13 (3) of the Act specifically lays down that the term "land"
means land held or occupied for purpose Suit No. 865/08 Page no. 11/18 connected with agriculture, horticulture or animal husbandry including pisciculture and poultry farming. The definition of land is inclusive but is not wide enough to include the land which has ceased to be an agricultural land by reason of its no longer being used for the agricultural purposes. In case titled Ram Lubbaya, Narain Singh, NB Singh and Nilima Gupta (Supra), this Court had clearly and consistently held that the provisions of Delhi Land Reforms Act ceases to apply as soon as the land ceases to be an agricultural land."
36. In the same judgment it has also been held that the agricultural land must be used for agricultural purposes only if the land reforms law are to be made applicable and if it is not so used it will cease to be an agricultural land.
37. In the instant case admittedly the land in question is not being used for any purposes contemplating therein under the land reforms act, instead the land has been built up. Admittedly the residential houses have been constructed on the land in question. It is also not the case of the defendants that they are carrying out any agricultural activity or any other allied permissible activity on the land in question. Thus the jurisdiction of the Court cannot be said to be barred by virtue of provisions of Section 185 of the Delhi Land Reforms Act as has been argued by the counsel for the defendant.
38. Having regard to the aforesaid reasons I am of the view that the present suit is maintainable and the provisions of Delhi Land Suit No. 865/08 Page no. 12/18 Reforms Act do not apply and the properties as mentioned in para one of the plaint are liable to be partitioned amongst the parties. This issue is, therefore, decided in favour of the plaintiffs and against the defendants.
39. Findings on issue No. 2.
2 Whether the plaintiff is entitled to
decree for injunction against the
defendant restraining the defendant
from selling partying with possession,
lenting and creating any third party
interest?OPP
40. The onus to prove this issue is on the plaintiffs. It is admitted that the plaintiffs and the defendants are the co-owners of the suit property and while deciding issue No. 1 it has been held that the plaintiffs being the co-owners of the suit property are entitled to the partition of the same. So in case the defendants are not restrained from selling partying with possession, lenting and creating any third party interest in the suit property, the plaintiffs shall suffer irreparable loss and injuries and more over the balance of convenience also lies in favour of the plaintiffs. In view of this, this issue is decided in favour of the plaintiffs and against the defendants and the defendants are restrained from selling partying with possession, lenting and creating any third party interest in the suit property.
41. Findings on issue No. 3.
3 Whether the plaintiff has no cause of action?OPD
42. The onus to prove this issue is on the defendant. According to Suit No. 865/08 Page no. 13/18 the defendant the suit property was already partitioned and it is further the case of the defendant that the jurisdiction of the Civil Court is barred.
43. In Adv. Association Vs. U.O.I. (2001) 2 SCC 294 it has been held as follows :
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense "cause of action' means circumstances forming a infraction of the right from the immediate occasion for the action. In the wider sense, it means the necessary condition for the maintenance of the suit, including not only a infraction of the right, to the infraction coupled with the right itself. Conpendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court.
In Y Abraham Ajith Vs. Inspector of Police (2004) 8 SCC 100 it has been held as follows :
"the expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a Court or a tribunal; a group of operative facts giving rise to one or more basis for sitting; a factual situation that entitles one person to obtain Suit No. 865/08 Page no. 14/18 a remedy in court from another person. In Glacks Law dictionary a "cause of action" is stated to be entire state of facts that give rise to an enforcebl claim; the phrase comprises every fact, which if traversed, the plaintiff must prove in order to obtain judgment. In words and phrases (4th edition) the meaning attributed to the phrase "cause of action" in common legal parlance is existence of those facts, which give a party right to judicial interference on his behalf.
In Halsburg's Laws England Ivth edition it has been stated as follows :
"Cause of action has been defined as meaning simply a factual situation, existence of which entitles one person to obtain from the Court a remedy against another person. The phrase has been held from earliest time to include every fact which required to be proved to entitle to the plaintiff to succeed and every fact which the defendant would have arrived to traversed. "Cause of action" has also been taken to mean that a particular act on the part of the defendant which gives the plaintiff his cause of complaint, or the subject matter of grievance founding the action, not merely the technical cause of Suit No. 865/08 Page no. 15/18 action.
44. In the present case it is stated in the plaint that the properties in question have not been partitioned and the plaintiffs being the co-owners have requested the defendants various times to partition the suit properties. As no partition between the parties had taken place and the properties lies in the extended Lal Dora Abadi which is beyond the purview of the jurisdiction of the Court. So in these circumstances, it cannot be said that the plaintiffs has no cause of action for filing the present suit. This issue is accordingly decided in favour of the plaintiffs and against the defendants.
45. Findings on issue No. 4
4 Whether the plaintiff has not come
before the court with clean hands and
suppressed the material fact?OPD
46. The onus to prove this issue is on the defendant but the
defendant has not lead any evidence nor proved as to how the
plaintiffs have not come before this court with clean hands. According to the defendant the partition had already taken place but while deciding issue No. 1 I have held that defendant No. 1 has failed to prove that the partition of the suit properties took place long ago. So in these circumstances, this issue is decided in favour of the plaintiffs and against the defendants.
47. Findings on issue No. 55 Whether the plaintiff has not properly valued the suit property for the purposes of court fees?OPD
48. The onus to prove this issue is on the defendant. No evidence has been produced on record by the defendant as to how Suit No. 865/08 Page no. 16/18 the suit has not been valued properly by the plaintiffs. The valuation para of the plaint is para No. 12 and in the WS there is a vague denial and no details has been mentioned as to why and how the suit has not been valued property for the purposes of court fee and jurisdiction. No evidence has been led by the defendant on this aspect. It is also not in dispute that the parties are co-owners in respect of the suit properties. So in these circumstances, this issue is decided in favour of the plaintiffs and against the defendants.
49. Findings on issue No. 66 Whether the plaintiff is entitled for relief claimed.
50. The plaintiffs have claimed the partition of the suit properties and as per the plaintiffs the respective share of the parties are as follows :
(a) Sombir Plaintiff No. 1 1/6th
(b) Dalip Singh Plantiff No. 2 1/4th
(c) Ram Gopal Plaintiff No. 3 1/12th
(d) Smt. Daya, Jyoti 1/12th Jointly
and Dipati Plaintiff No. 4 to 6
(e) Fateh Singh Deft. No. 1 7/36th
(f) Sukhbir Singh, Jagbir and Dharambir 1/9th jointly
Deft. No. 2 to 4
(g) Sh. Beg Raj Deft. No. 5 1/9th
51. The defendant has not reflected the share of the parties either in the WS or in his cross examination wherein he admitted about the extent of the share of the parties. So in these circumstances, the Suit No. 865/08 Page no. 17/18 plaintiffs are entitled to the share as claimed by them. This issue is, accordingly decided in favour of the plaintiffs and against the defendants.
52. Relief : In view of my findings on the above issues, I hold that the plaintiff are the joint owners of the suit properties alongwith the defendants as mentioned in para No. 1 of the plaint and are entitled to the partition of the suit properties as follows :
(a) Sombir Plaintiff No. 1 1/6th
(b) Dalip Singh Plantiff No. 2 1/4th
(c) Ram Gopal Plaintiff No. 3 1/12th
(d) Smt. Daya, Jyoti 1/12th Jointly
and Dipati Plaintiff No. 4 to 6
(e) Fateh Singh Deft. No. 1 7/36th
(f) Sukhbir Singh, Jagbir and Dharambir 1/9th jointly
Deft. No. 2 to 4
(g) Sh. Beg Raj Deft. No. 5 1/9th
53. The suit filed by the plaintiff is decreed accordingly. No order of cost. A preliminary decree be drawn accordingly.
Announced in the open court (RAJNISH BHATNAGAR) On 18.01.2016 Additional District Judge Delhi Suit No. 865/08 Page no. 18/18