Delhi District Court
Sant Kumar Gandhi vs Jagdish Gandhi on 24 January, 2025
IN THE COURT OF MR. SATYABRATA PANDA, DJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS No.58819/16
Date of Institution: 15.01.2009
Date of Arguments: 28.11.2024
Date of Judgment: 24.01.2025
Sant Kumar Gandhi,
R/o CA/15A, DDA Flats Munirka,
New Delhi-67 ...Plaintiff
Vs.
1. Shri Jagdish Gandhi (deceased)
Through Legal Heirs
(a) Smt. Vijay Gandhi
W/o Late Sh. Jagdish Gandhi
(b) Sh. Puneet Gandhi,
S/o late Sh. Jagdish Gandhi.
(c) Sh. Atul Gandhi,
S/o late Sh. Jagdish Gandhi
All R/o 5-B, DDA Flats,
Katwaria Sarai (Qutub Enclave)
New Delhi.
2. Shri Pritam Gandhi,
S/o. Late Shri Gopal Dass Gandhi,
R/o 112, Sarojini Nagar Market,
New Delhi ...Defendants
JUDGMENT
1. The plaintiff has filed the present suit for declaration that the defendants have no right, title or interest in the Shop bearing No. 64, Sarojini Nagar Market, New Delhi, and for permanent injunction restraining the defendants from CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 1 of 65 interfering in the business being conducted by the plaintiff from the said shop.
2. The suit was initially filed before the Hon'ble High Court of Delhi and was registered as CS (OS) No. 162/2009. Subsequently, upon the change in the pecuniary jurisdiction, the suit came to be transferred to the District Court.
PLAINT
3. The case of the plaintiff, as pleaded in the plaint, is as follows:
3.1. The plaintiff and the defendants are brothers and are the sons of Late Sh. Gopal Dass Gandhi who had migrated from Pakistan in the year 1947 after partition. At the time of partition, the plaintiff was about 4 years old and the defendant no.1 was 2½ years old, whereas the defendant no.2 was born in India in the year 1954.
3.2. After the partition, the late father of the parties had started a Dhaba on the footpath in a stall at the Old Railway Station, Delhi and was later allotted the Shop No. 64, Sarojini Nagar Market, New Delhi, in lieu of the stall in the year 1951. The late father started business at the said shop allotted to him. In the year 1958, the late father started a business in the name of 'Friends Store' dealing in general CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 2 of 65 merchandise and hosiery as the sole proprietor and the plaintiff used to assist and look after the business at that point of time along with the father.
3.3. The Ministry of Works and Housing constructed the flats above the shops in the year 1956 to provide residential accommodation, and, accordingly, the flat above the Shop no. 64, Sarojini Nagar Market, New Delhi, was also constructed and allotted in the name of the late father Sh. Gopal Dass Gandhi. The allotment of the flat was made in the year 1958 on license fee of Rs. 27.50 per month.
3.4. The plaintiff appeared in the matriculation examination in the year 1958 and since the family income was very meagre and the father alone was not in a position to maintain the entire family, the plaintiff was compelled to leave studies and completely joined to assist the father in the conduct and running of the business.
3.5. Even prior to 1958, the plaintiff used to assist his father in the business, but after leaving the studies, he devoted his full time in the business. The plaintiff's father due to his old age and health problems, handed over the full charge and responsibility of the business to the plaintiff. The plaintiff was thereafter, regularly and exclusively managing the business at Shop no. 64, Sarojini Nagar Market, New Delhi.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 3 of 65 3.6. The plaintiff alone was looking after and carrying on the business in the name of 'Friends Store' and was completely dedicated in conduct of the business activities. The assessment orders by the Assessing Authority, Sales Tax, Govt. of NCT of Delhi for the years 1962-63 to 1984-1985 would show that it was the plaintiff alone who was running and looking after the business exclusively in the name of M/s. Friends Store at the Shop no.
64, Sarojini Nagar, New Delhi. Apart from the local sales tax, assessments for Central Sales Tax were also carried out and the plaintiff was appearing before Assessing Authorities.
3.7. From the year 1982 onwards, the business was slowly reduced and M/s. Friends Store was finally closed in the year 1982-83.
3.8. The father of the parties i.e. Sh. Gopal Dass Gandhi died in the year 1973. After the demise of the father, the plaintiff thereafter took total charge of the business and discharged all family responsibilities, so much so that the two brothers i.e. the defendants were settled separately and independently as per the desire and the oral partition by the mother of the parties, Late Smt. Rukmini Devi, who left for her heavenly abode in the year 1980. This oral settlement was with the consent and full knowledge of the defendants and all concerned and was implemented in toto. CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 4 of 65 3.9. After the demise of the father of the parties, the mother of the parties, i.e. Late Smt. Rukmini Devi, during her lifetime, desired to settle her sons independently and separately to avoid any dispute or litigation in future between the brothers and sisters after her demise. For this reason, in the year 1976, she affected an oral partition/settlement between the brothers and the other family members.
3.10. The defendant no. 1 i.e. Sh. Jagdish Gandhi was married at Karnal District, Haryana, in October 1975. The plaintiff incurred all the expenditure and the marriage was performed with all pomp and show. After the marriage, as per the settlement, the shop bearing No. C-15, C-Block Market, Vasant Vihar, New Delhi was taken on pagri and a separate business was set up and established for the defendant no. 1 by the plaintiff. During the year 1976, the Vasant Vihar C-Block Market was one of the prime markets of Delhi and the shop was taken on pagri as prevalent then by the plaintiff to implement the oral partition and settlement between the parties as decided by the mother and mutually agreed to by all the brothers. The shop at Vasant Vihar was opened on 19.06.1976 and since then the defendant no.1 has been conducting and running his business from there only and never from shop no. 64, Sarojini Nagar Market, New Delhi.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 5 of 65 3.11. The plaintiff, as was duty bound to implement the settlement, also arranged for a residential flat for the defendant No. 1, who till then was residing in the flat above Shop No. 64, Sarojini Nagar, New Delhi. In order to arrange a separate residential accommodation for him, a flat which was booked with DDA by the Plaintiff in the year 1968-1969 in the name of the defendant no.1 was given exclusively to the defendant no.1 for residential purposes and the cost was paid by the Plaintiff. The flat bearing No. 5-B, Qutab Enclave, Katwaria Sarai Phase II, New Delhi, was allotted in the year 1978.
3.12. Thus, as per the family settlement, the defendant no.1 was provided a flourishing business at Vasant Vihar C-Block Market and residence at Qutab Enclave, separately and independently, with no right in any other properties owned or left behind by the father, mother, brother(s) or by another member of the family.
3.13. The defendant no.1, since the year 1976, was independently and separately conducting his business from the Shop No. C-15, C-Block Market, Vasant Vihar, New Delhi and was never in possession of any of the portion of the shop no. 64, Sarojini Nagar Market, New Delhi nor did he have any right, interest whatsoever in the said Shop as per the family settlement and its implementation. CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 6 of 65 The Shop No. 64, Sarojini Nagar Market, New Delhi, after the implementation of the family settlement, became the exclusive property of the plaintiff and he has been conducting his business peacefully since then independently. The defendant no.1 has never conducted any business from Shop No. 64, Sarojini Nagar Market, New Delhi and his place of business has been the Shop at Vasant Vihar, New Delhi only. He was separated from the family during the lifetime of the mother, Late Smt. Rukmini Devi. He has no right or interest in any of the properties of any of the brothers or any of the family members at all.
3.14. The mother, Late Smt. Rukmini Devi, died in the year 1980, but the family settlement/partition arrived at during her lifetime in so far as the defendant no.2 is concerned was, however, implemented in 1982. As per the family settlement, a shop no. 112 in Sarojini Nagar Market was purchased by the plaintiff and the defendant no.2 was given half share in the said shop. The business was commenced and started with the finances provided by the plaintiff. Even though the plaintiff was and is entitled to half share in Shop No. 112, Sarojini Nagar Market, New Delhi, the defendant no.2 was allowed to conduct the business from the entire shop and the plaintiff, continued to be the owner of the half share in Shop No. 112, Sarojini CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 7 of 65 Nagar Market, New Delhi and never surrendered his right.
3.15. In order to provide a suitable residence to the defendant no.2, the flat above Shop No. 112, Sarojini Nagar Market, New Delhi, was also purchased by the plaintiff in the year 1982. The defendant no. 2 was unmarried at that time and he did not shift immediately but shifted only after his marriage in the year 1990. The plaintiff incurred all the expenditure for the marriage and to settle the defendant no. 2, the flat was given and accordingly, he shifted there along with his family. Accordingly, the defendant no. 2 was separated and settled independently as per the oral family settlement and partition and he was left with no right, interest in any of the properties. The defendant no. 2 has been residing in the flat and conducting his business from shop no. 112, Sarojini Nagar Market, New Delhi. To begin with, the business of photography in the name and style of M/s Allied Enterprises was started w.e.f. 14.04.1983. This was conducted and looked after exclusively by defendant no. 2. After some time, this business was closed and a new business of hosiery was started in the name and style of M/s. Friends Palace, which name was later changed to M/s. Pritam Fabrics. Accordingly, the family settlement arrived at during the lifetime of the mother Smt. Rukmini Devi and agreed to by CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 8 of 65 both the defendants stood implemented. The defendant no. 2 too, as per the settlement, had no interest or title in any of the properties, whether held by the parents or acquired subsequently by the remaining brothers or any of the member of the family.
3.16. According to the aforesaid settlement and its implementation, both the defendants had been separated and given their respective shares and duly settled, and consequently they ceased to have any right or interest in the whole or any portion of Shop No. 64, Sarojini Nagar Market, New Delhi, and flat above the shop. Since their respective date of separation and settlement in the new business, they had never been in occupation of any portion of Shop No. 64, Sarojini Nagar Market, New Delhi, nor conducted or run any business from the said shop or any portion thereof. Both of them were never in possession or occupation of the whole or any portion thereto. The shop and the flat above Shop No. 64, Sarojini Nagar Market, New Delhi, had been in exclusive use and occupation of the plaintiff and were also owned exclusively by the plaintiff.
3.17. During the lifetime of the mother Late Smt. Rukmini Devi, according to the oral family settlement/partition, it was also settled that the fourth brother Sh. Gulshan Gandhi who was a CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 9 of 65 bachelor would remain with the plaintiff and none of the defendants would have any right or interest in any of the properties that may belong to, be acquired or otherwise owned by Sh. Gulshan Gandhi or falling to his share and the same shall be the properties of the plaintiff. Sh. Gulshan Gandhi by his own choice desired and decided to stay with the plaintiff. According to the settlement, the entire properties of Sh. Gulshan Kumar, who is deceased, have come to the plaintiff and none of the defendants are entitled to any share in his properties.
3.18. It was also part of the settlement that two sisters namely Smt. Ratan Bala and Smt. Prem Lata, who were still unmarried, would remain with the plaintiff and he would take care of their marriage and get them duly settled. The plaintiff got both of them married in the year 1981 and 1985 and incurred all expenditure and now both of them are well settled.
3.19. The plaintiff had moved the application for transfer of the shop and the flat in the name of the mother after the demise of the father in the year 1973.
3.20. The plaintiff also made payments of the rent of Rs.
45/- per month to the Government of India, Ministry of Works & Housing (Estate Office) on account of the rent charged till 1979 for the shop. In CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 10 of 65 the year 1979, the Government of India granted ownership rights on certain terms and conditions for the shop and the flat. A sum of Rs. 1080/- as capitalised value was deposited by the plaintiff. The capitalised value to the tune of Rs. 10,800/- was also deposited in the year 1979. The plaintiff has been regularly paying the ground rent to the Land & Development Office, Ministry of Urban Development on account of the Shop No.64, Sarojini Market, New Delhi. Similarly, an amount of Rs. 6,600/- was also deposited in the year 1979 as the capitalised value for grant of the ownership rights for the flat above shop no.64, Sarojini Nagar Market, New Delhi. The entire payment has been made by the plaintiff and he has been corresponding and taking all steps for transfer of ownership rights of the shop as well as the flat.
3.21. The electricity department, NDMC on 14.10.1998 had carried out inspection of the subject shop and misuse charges were levied for the period from 14.07.1998 to 07.04.1999. The plaintiff filed objections against the misuse charges and after a prolonged litigation, the matter was decided in favour of the plaintiff. This clearly establishes that the plaintiff was throughout in complete and settled possession of the premises bearing Shop No.64, Sarojini Market, New Delhi.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 11 of 65 3.22. Further, on 31.08.1998, the Chief Architect Dept., NDMC had sent notice to the plaintiff regarding unauthorised construction in the rear side of the subject shop which was later found to be in accordance with law. The plaintiff was given a clean chit and was directed vide letter dated 20.01.1999 to submit an undertaking to the effect that no further construction shall be carried out on the said premises without getting the plan sanctioned from NDMC. The plaintiff was also directed to deposit an amount of Rs. 8292/- with the NDMC Treasury as penalty imposed for the regularisation of the construction. Accordingly, the plaintiff made payment of the compounding charges on 24.01.1999 to the NDMC.
3.23. The plaintiff in the year 2002 also contested elections to the post of President of the Sarojini Nagar Shopkeepers Association. The plaintiff filed nomination for the said post and was duly recognised as the owner of the subject shop. Only a member of the Association could contest the said elections.
3.24. In order to supplement the income, the plaintiff had also started a toy business in the name of 'M/s Leego Toys Industries' for which local and Central Sales Tax numbers were allotted in the year 1974 by Sales Tax Department (Delhi Government) in the exclusive name of the plaintiff. The plaintiff CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 12 of 65 was the sole proprietor of 'M/s Leego Toys Industries' which was exclusively conducted from the suit premises i.e. Shop no. 64, Sarojini Nagar Market, New Delhi. The business of toys continued up to 2005 and was thereafter, closed down and the sales tax numbers were also surrendered. The plaintiff continued in the shop from 1958 to 2008 and till the date of filing of the suit and the shop has always been under the locks and keys of the plaintiff alone.
3.25. The plaintiff also imported certain hair stitching machines from Japan along with the accessories and components for the toy business in the year 1976. The Import Trade Control Licence was granted in the name of the plaintiff on 25.06.1976. In addition to the business of Toys, the plaintiff also started the business of fabrics in the name and style of 'Gulshan Fabrics' in the same shop after winding up of the 'Friends Store'. This business was also looked after by the plaintiff, however, the fourth brother, Sh. Gulshan Gandhi (Daya Nand), who was unmarried and was living with the plaintiff, was also assisting from time to time and the plaintiff gave all support to him.
3.26. So far as Sh. Gulshan Gandhi is concerned, he was keen to become an actor and most of the time, he used to stay at Mumbai, so much so that the plaintiff even purchased a plot for him in the year CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 13 of 65 1999 at Mumbai, and gradually construction was carried out in the said plot which is lying locked since after his death. Prior to purchase of the plot/construction, he used to live as a paying guest in Mumbai. Most of time, he stayed at Mumbai and whenever he used to come to Delhi, he used to travel by air and used to stay at the flat above Shop No. 64, Sarojini Nagar Market, New Delhi. However, the entire business was exclusively looked after by the plaintiff.
3.27. The plaintiff also purchased an old built-up house in September 1992 for Sh. Gulshan Gandhi, bearing No. F-21, Green Park Main, New Delhi, which is in his name. Sh. Gulshan Gandhi died on 06.09.2003. None of the defendants are concerned with the properties left behind by late Sh. Gulshan Gandhi nor they have any right, title or interest whatsoever in the properties, movable or immovable etc., bank FDRs, lockers and personal assets left behind by Sh. Gulshan Gandhi. As per the oral settlement of partition, all his properties movable and immovables are the properties of plaintiff and none else is entitled to claim any share in any such properties nor has any interest whatsoever in such properties. In lieu of the oral settlement and partition that has taken place, the defendants had got their exclusive share and were separated without any right, interest or title in any of the CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 14 of 65 remaining properties of the plaintiff or which are in the name of the Late Sh. Gulshan Gandhi or that may be acquired in his name.
3.28. The defendants had never been in occupation or possession nor any business was ever conducted by them in whole or any portion of the subject shop, but after the demise of Late Sh. Gulshan Gandhi on 06.09.2003, there were some apprehensions about the defendants interfering in the plaintiff's exclusive use and occupation on the subject shop. As such, a report was made by the plaintiff to the SHO, Police Station, Sarojini Nagar Market, New Delhi on 14.11.2003 and DD No. 23A was recorded by the police on 14.11.2003. On the complaint of the plaintiff dated 14.11.2003, a police official visited the shop and made a report that he found the plaintiff alone to be in occupation of the subject shop, both front and rear side.
3.29. The defendants despite having no right or interest in the subject shop, whole or of any portion, came to the shop on 21.03.2004 at 4:30pm, and started throwing the articles belonging to the plaintiff forcibly and without any reason. They also used abusive language and also threatened the plaintiff that he would be murdered. They further made an attempt to trespass by forcibly entering into the premises. A complaint was made and the police was called by the plaintiff.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 15 of 65 3.30. The proceedings under Section 145 Cr.P.C were initiated before the concerned SDM, Vasant Vihar. The SDM, vide order dated 18.05.2007, concluded that the subject shop was in the possession of the plaintiff prior to the initiation of the case and that the plaintiff was dispossessed partially from the subject shop, and therefore, directions were issued to the defendants to restore possession to the plaintiff and the defendants were directed to be evicted from the subject shop.
3.31. The defendants filed Criminal Revision Petition No. 383/2007 before the Hon'ble High Court of Delhi, and vide order dated 03.10.2008, the order of the SDM was set aside. The plaintiff filed a Special Leave Petition before the Hon'ble Supreme Court against the aforesaid order of the Hon'ble High Court, however, the same was dismissed.
3.32. None of the defendants have got any right or interest to possession or claim to any share or ownership in the subject shop. Both the defendants were neither in possession nor any business was ever conducted by them from the subject shop.
3.33. The plaintiff had already filed a separate suit for partition and possession against the defendant no.2 in respect of shop and flat bearing no. 112, Sarojini Nagar Market, New Delhi before the Hon'ble High CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 16 of 65 Court as CS (OS) No. 1613/2008 and which was pending.
3.34. The plaintiff is the owner and in possession of shop no. 64, Sarojini Nagar Market, New Delhi, continuously since 1958, and in view of the oral partition and family settlement, none of the defendants had any right, interest whatsoever in the subject shop or any portion thereof nor they have any right to enter or interfere in the business of the plaintiff or in any other manner disturb the peaceful enjoyment/occupation of the plaintiff of the subject shop in entirety including the front and the rear portion and the flat above the shop.
3.35. After the separation of the defendants no. 1 and 2 from the family and after they had been given their respective shares settled accordingly in the business, and given residential accommodation, they have no right or interest in the properties of the plaintiff and of late Sh. Gulshan Gandhi. But since the defendants have threatened to interfere into the peaceful use and occupation of the plaintiff in the shop no. 64, Sarojini Nagar Market, New Delhi, the plaintiff has no other option but to file the present suit.
3.36. The plaintiff has been carrying on the business regularly and the defendants have no right to interrupt or interfere in the conduct of the business CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 17 of 65 by the plaintiff. After 1976, both the defendants were separated and given separate shops and were completely settled. The defendants have not been in possession of any portion of Shop No. 64, Sarojini Nagar Market, New Delhi nor conducted any business therefrom. Both the defendants have been in occupation and have been running their respective businesses in the shops given to them as per the settlement and have been running their business from their respective shops.
3.37. Both the defendants, after the demise of Sh.
Gulshan Kumar, had an evil eye on shop no. 64, Sarojini Nagar Market, New Delhi, and attempted to trespass into the portion of the shop without there being any right or interest whatsoever in the shop at any point of time nor could they claim any interest in the shop or any other property even after the demise of late Sh. Gulshan Kumar. The illegal trespass was removed by the orders of the SDM and the plaintiff after that has been conducting regular business as before. However, the defendants actually came to the shop on 06.01.2009 and threatened to dispossess the plaintiff and to interfere in the business of the plaintiff.
3.38. There is a great apprehension of the defendants interfering in the peaceful use and occupation of the plaintiff and to avoid any unpleasant untoward incident, the plaintiff has filed the present suit so CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 18 of 65 that the defendants are restrained from interfering in the business of the plaintiff in the suit premises.
4. On the basis of the aforesaid averments, the plaintiff has sought the following reliefs in the suit:
"a) A decree for declaration, declaring that the Defendants have no right, title and interest in the shop bearing no.64, Sarojini Nagar Market, New Delhi front or rear or any other portion of the shop bearing no. 64, Sarojini Nagar Market;
b) A decree for permanent injunction restraining the Defendants, their agents and employees from interfering in any matter in the business being conducted by the Plaintiff in shop no. 64, Sarojini Nagar Market, New Delhi, front or rear portion, whole or any portion of the said shop;
c) Cost of the suit be awarded to the Plaintiff and against the Defendants;
d) Grant any such other and further relief and pass any such decree or order and grant any such injunction, as this Hon'ble Court may deem fit and proper under the facts and circumstances of the case in favor of the plaintiff and against the Defendants;"
WRITTEN STATEMENT CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 19 of 65
5. The defendants have filed their common written statement denying the case set up by the plaintiff and seeking dismissal of the suit.
6. The case of the defendants as pleaded in the written statement is summarised as follows:
6.1. The plaintiff had adopted an illegal device to dispossess the defendants, who are his brothers, from the subject shop through the illegal action of the executive administration.
6.2. The Criminal Revision Petition No. 383/2007 filed by the defendants against the illegal action of the executive administration (Sub-Divisional Magistrate) was allowed by the Hon'ble High Court of Delhi vide order dated 03.10.2008, and the order dated 18.05.2007 of the Sub-Divisional Magistrate delivering possession of the subject shop to the plaintiff alone was set aside. The Hon'ble High Court directed that the possession of the respective portions of the shop be forthwith restored to the defendants.
6.3. The SLP (Crl.) No. 7566/2008 filed by the plaintiff before the Hon'ble Supreme Court against the said order was also dismissed vide order dated 03.11.2008.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 20 of 65 6.4. However, the plaintiff did not comply with the order to restore to the defendants the possession of the respective portions of the shop. The defendants were constrained to write letters to the plaintiff to remind him to comply with the orders, but to no effect. The executive administration did not also comply with the orders. Hence, the defendants were constrained to file contempt proceedings before the Hon'ble High Court of Delhi, and after the issuance of the notice by the Hon'ble High Court in the contempt petition, the concerned SDM directed the concerned SHO to get the defendants in possession of the subject shop as per the orders of the Hon'ble High Court.
6.5. Ultimately, the defendants got the possession on 12.02.2009.
6.6. The suit is liable to be dismissed being based on absolute falsities and suppression of material facts and circumstances. The suit has been filed by the plaintiff with ulterior designs to grab the properties of the defendants by force, fraud and illegal means.
6.7. The property in question was allotted to late Sh.
Gopal Dass, the father of the parties, who besides also had one more son namely Sh. Gulshan Gandhi and five daughters, under a rehabilitation scheme of the Govt. of India to settle the refugees CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 21 of 65 having come to India from Pakistan after partition of country.
6.8. After the demise of the father, the property devolved upon his wife Smt. Rukmani Devi, i.e. the mother of the parties, and till date the suit property stands in her name in the records there being no partition of the property amongst the legal heirs of late Smt. Rukmani Devi till date.
6.9. During the lifetime of Smt. Rukmani Devi, Sh.
Gulshan Gandhi had started the cloth business in the suit property in the name and style of 'Gulshan Fabrics' under his sole proprietorship. Whereas, the plaintiff was working as Manager with J.K. Packing Industries situated at Lal Dora of village Dewli. As such, the plaintiff had nothing to do with the suit property being Shop No.64, Sarojini Nagar Market, New Delhi.
6.10. Sh. Gulshan Gandhi died a bachelor and throughout his life had a flourishing business and earned a lot of money in the said business, invested money in several properties and also helped the entire family money-wise. The plaintiff was jealous of Sh. Gulshan Gandhi and always attempted to grab whatever the plaintiff could of the family, brothers, sisters and of parents.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 22 of 65 6.11. After the demise of Sh. Gulshan Gandhi, all the three brothers, i.e. the plaintiff and both the defendants, opened the shop in question in the month of November, 2003 and changed the locks of the premises. The plaintiff and the defendant no.1 occupied the front portion of the shop, whereas the defendant no. 2 occupied the back portion. The entire house tax as well as electricity bills from October 2003 till May 2007 had been paid by the defendant no.2 only.
6.12. The plaintiff, in order to grab the property of the other brothers, started making false complaints against the defendants by mixing up with the local police. Because of the false complaints, the police filed Kalandara u/s. 145 Cr.P.C against the plaintiff and the defendants. In the said Kalandara, the concerned SDM exceeded his powers and vide order dated 18.05.2007, directed to give possession of the entire shop no. 64 to the plaintiff. This order of the SDM was challenged by the defendants, and vide order dated 03.10.2008 in Crl. Revision Petition No.383/2007, the Hon'ble High Court set aside the order of the SDM and directed for possession to be restored to the defendants of their respective portions.
6.13. The suit is without cause of action. The plaintiff is not entitled to any declaration as prayed as the plaintiff was having individually no right, title and CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 23 of 65 interest in the suit property as the suit property belonged to late Smt. Rukmani Devi and as such belonged to all her legal heirs.
6.14. The suit is bad for non-joinder of necessary parties as the sisters of the parties have not been impleaded in the suit.
6.15. The plaintiff was telling a different story in different proceedings in order to suit himself.
6.16. The suit as framed is liable to be dismissed as no consequential relief has been sought by the plaintiff.
6.17. It is denied that any Dhaba on the footpath was opened by the late father as alleged. Only a grocery shop was opened at Mori Gate, where the mother Smt. Rukmani Devi and the elder sisters also used to help. It was the mother and the sisters who did work in the shop. The plaintiff was very small and was not a helping hand in running of the shop. Later, as a displaced family, the Shop No.64, Sarojini Nagar Market, New Delhi was allotted in the name of the father Sh. Gopal Dass Gandhi, who started grocery work there. The mother and the sisters also worked in the shop. It is denied that the plaintiff used to assist and look after the business at that point of time along with CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 24 of 65 the father. The name as 'Friends Store' was used much later.
6.18. Under the rehabilitation scheme for the partition refugees, Sh. Gopal Dass Gandhi and his family were allotted the Shop-cum-Flat No. 64, Sarojini Nagar Market, New Delhi. The father died in the year 1973 and the allotment was transferred in the name of his wife Smt. Rukmani Devi, and the suit property presently also stands in her name and as such all legal heirs of Late Smt. Rukmani Devi including the parties to the suit as well as the sisters are entitled to the suit property.
6.19. The plaintiff has with ulterior designs shown that the family was in a pitiable condition to show himself as a saviour, which was false to his own knowledge. The family had a sound financial position in India after migration. It is denied that the plaintiff assisted the father in the business when he was a minor. The plaintiff as a minor enjoyed the life of a prince. The father provided the plaintiff with every facility of his choice. He was admitted in Cambridge School at Darya Ganj in those days while residing at Mori Gate, Delhi. Four servants used to work in the shop. The work/business in the ship was so good that every member of the family used to work, not because of financial difficulties, but to enhance the work and save as much as possible.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 25 of 65 6.20. The plaintiff throughout his life had been a parasite over the parents, brothers and sisters which is why no member of the family was on visiting terms with him. He would also beat the old parents due to which they had to leave the house of Sarojini Nagar and temporarily shifted to the Mori Gate property. The plaintiff did not allow Sh. Gulshan Gandhi to marry. In order to cheat and extort money from Sh. Gulshan, the plaintiff put him in the bad habit of drinking. Sh. Gulshan Gandhi died at the age of 48 years.
6.21. The plaintiff took out monies from the family funds to the detriment of the other members of the family. The plaintiff started a toy factory by taking monies from family funds under the name and style of 'Leego Toys' and a toy manufacturing unit was imported from Japan from the family funds and from 'Friends Store' and as such the manufacturing unit was a joint family asset which was installed at the Mori Gate property but which was usurped by the plaintiff alone to the detriment of the family.
6.22. There has never been a partition of the properties of the late parents like that of the properties at Mori Gate, Laxmi Nagar and Munirka for which the money had been paid from family funds.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 26 of 65 6.23. It is denied that there was any oral partition during the lifetime of the mother as alleged. The plaintiff has introduced a complete falsehood and that is why the other legal representatives i.e. the sisters of the parties have not been added in the suit.
6.24. During the lifetime of the late mother, Sh.
Gulshan Gandhi, brother of the parties, started the business of fabrics under the name and style of 'Gulshan Fabrics' under his sole proprietorship after the demise of the father.
6.25. The documents filed by the plaintiff clearly show that the plaintiff had failed to get No-Objection Certificate from the other legal representatives of late Smt. Rukmani Devi to get the property transferred in his name as Sh. Gulshan Gandhi had been running his business which is why even after passing of so many decades, the conveyance deed with regard to the premises in question was not executed.
6.26. It is denied that there was any oral family settlement as alleged. It is denied that the plaintiff had incurred the expenses in the marriage of the defendant no.1. It is denied that the Shop No. C-15, C-Block, Vasant Vihar Market was taken on pagri and separate business was set up and established for the defendant no.1 by the plaintiff. The defendant no.1 took only one counter/table CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 27 of 65 under the stairs in the shop C-15, C Block Market, Vasant Vihar on monthly rent of Rs. 200/- only where he used to sell the crafted artificial jewellery to earn his livelihood.
6.27. It is denied that the plaintiff had booked any flat for the defendant no.1. The DDA Flat for the defendant no.1 was booked by the father during his lifetime and he paid the amount for the same. The plaintiff has also concealed the fact of purchase of a flat in Munirka in his name from family funds.
6.28. Sh. Gulshan alone was running the business of 'Gulshan Fabrics' as sole proprietor at the Shop no.64, Sarojini Nagar Market, New Delhi.
6.29. The plaintiff has introduced a false case of an alleged oral settlement or family settlement during the lifetime of the late mother. There is not a whisper of this in the earlier case filed by the plaintiff before the SDM Court where the entire proceedings started.
6.30. It is denied that the plaintiff ever purchased the Shop No.112, Sarojini Nagar Market, New Delhi as claimed by him. It was purchased by the defendant no.2 alone.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 28 of 65 6.31. Both the defendants were in possession of the Shop No.64 and were still in possession of their respective portions as the possession was got restored by the order dated 03.10.2008 passed by the Hon'ble High Court of Delhi.
6.32. For the marriage of the daughters, the father had already made arrangements and as such there was no dependency on the plaintiff.
6.33. The rent for the suit property was deposited from family funds. There was no personal fund of the plaintiff for payment of the rent. Insofar as the correspondence made by the plaintiff with the authorities is concerned, the correspondence was for and on behalf of the entire family. The plaintiff cannot claim himself to be the sole owner of the property by only doing the correspondence.
6.34. It is denied that Sh. Gulshan Gandhi was keen to become and actor or that most of the time he used to stay in Mumbai or that the plaintiff had purchased a plot for him in Mumbai or had made the construction thereon.
6.35. On the basis of the aforesaid averments, the defendants have sought dismissal of the suit.
REPLICATION CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 29 of 65
7. The plaintiff has filed the replication in which he has denied the averments made in the written statement and has reiterated the averments made in the plaint.
ISSUES
8. Vide order dated 27.01.2010, the following issues were framed in the suit:
a. Whether the suit is bad for non-joinder of parties? OPD b. Whether the Plaint is liable to be rejected under Order VII Rule 11 (a) of CPC? OPD c. Whether the plaintiff is entitled to the declaration as prayed? OPP d. Whether the Plaintiff is entitled to decree of permanent injunction as prayed for? OPP
9. Both the parties have led their respective evidence in support of their respective case.
PLAINTIFF'S EVIDENCE
10. In support of his case, the plaintiff has examined himself as PW-1 and has tendered his affidavit in evidence as Ex. PW-1/A in which he has deposed on the lines of plaint. The plaintiff also summoned an official from the Patwari office as PW-2 to produce records. The plaintiff has also examined Sh. Jitender Chander as PW-3. PW-3, who is a friend of the plaintiff's son, has deposed regarding the plaintiff carrying on business from the subject shop. The CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 30 of 65 plaintiff's witnesses were cross-examined by the defendants. The plaintiff has also relied upon the documents which have been exhibited during the course of examination of the plaintiff's witnesses and which form part of the record.
DEFENDANT'S EVIDENCE
11. In support of their case, the defendants examined the defendant no.1 as DW-1 and he has tendered his affidavit in evidence as Ex.DW1/A in which he has deposed along the lines of the written statement. He was cross-examined by the plaintiff. However, he expired during the course of his cross-examination. The defendants have also examined the defendant no.2 as DW-2 and he has tendered his affidavit in evidence as Ex.DW-2/A in which he has also deposed along the lines of the written statement. He was also cross-examined by the plaintiff. The defendants have relied upon the documents which have been exhibited during the course of the examination of the defendants and which form part of the record.
12. The learned counsels for both the parties have made their respective submissions.
PLAINTIFF'S SUBMISSIONS
13. The learned counsel for the plaintiff has referred to the relevant pleadings and evidence in support of the case of the plaintiff and has submitted that the plaintiff has been CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 31 of 65 able to prove his case as pleaded and would be entitled to decree as prayed.
14. Ld. Counsel for the plaintiff has made the following submissions:
14.1. Through the evidence led, the plaintiff has been able to prove that there was a family arrangement/settlement in 1976 during the lifetime of the mother as pleaded by the plaintiff.
Under the family arrangement, the subject shop came to the exclusive share of the plaintiff. The defendants never interrupted in the peaceful possession of the plaintiff over the subject shop from 1976 to November 2003, i.e. for about 28 years, which shows that as per the oral partition/settlement, the subject shop had come to the share of the plaintiff.
14.2. Reliance is placed on Kale and Others vs Deputy Director of Consolidation and Others (1976) 3 SCC 119 and it is submitted that even if the family settlement was not registered, it would operate as complete estoppel against the parties to the family settlement. Reliance is placed on S. Shanmugam Pillai and Ors. vs K. Shanmugam Pillai and it is submitted that if a family arrangement is entered into bona fide and the terms thereto are fair in the circumstances, then the Courts would more readily give assent to such an agreement CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 32 of 65 than to avoid it. Reliance is placed on Subraya M.N. vs Vittala M.N. & Ors. (2016) 8 SCC 705 and it is submitted that when a family arrangement/settlement is orally made, no registration is required and the family arrangement/settlement would be admissible in evidence. Reliance is also placed on the decision of the Hon'ble Supreme Court in Civil Appeal No. 784 of 2010 titled as Thulasidhara vs Narayanappa in this regard. Reliance is also placed on the decision of the Hon'ble Privy Council in Rewun Persad vs Radha Beeby (1856) 4 M.I.A. 137 and it is submitted that a division may be effected without an instrument in writing. Reliance is also placed on the decision of the Hon'ble Supreme Court in Civil Appeal Diary No. 32601 of 2018 titled as Vineeta Sharma vs Rakesh Sharma, decided on 11.08.2020, and it is submitted that the plea of oral partition can be acceded to if there exists separate occupation of portions, appropriation of the income, and etc. The contemporary positions of the plaintiff with respect to the defendants evinces the same.
14.3. Neither the sisters nor their descendants have approached the court in the suit since as per the oral partition/settlement of 1976 before the mother of the parties, they had already been given a proportionate share in the property/House CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 33 of 65 No.3309-3310, Mori Gate, Delhi-110006 which used to be in the name of the father of the parties. The present suit was filed by the plaintiff for declaration in respect of Shop No.64 Sarojini Nagar, New Delhi, and in the wake of the oral partition/settlement, no cause of action arose against the sisters, therefore the sisters were not impleaded in the suit. The defendants even included the names of the sisters in their list of witnesses but did not call them for the recording of their evidence. An adverse inference would be drawn against the defendants due to this.
14.4. The fact of the plaintiff solely assisting the father to maintain the large family and sacrificing his academic career can be ascertained from the several records maintained by the government agencies, for example- the statement of the plaintiff recorded for the existence of the business in general survey conducted by the Assessing Authority of Ward 13, Sales Tax on 06.07.1961 while he was present at the property in issue. Further, the same can also be verified from the deposition of the Plaintiff's father before the Assistant Sales Tax Officer Ward-13, which was recorded in the Assessment Order dated 06.10.1961 Exh. P-1/4. The depositions made by the father and appearance recorded in the order unambiguously depict that the plaintiff was solely CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 34 of 65 assisting his father and running a business in the Shop in issue, additionally, how sale was affected positively after plaintiff's introduction to the business. The fact mentioned in the affidavit dated 11.09.1961 that the father of the plaintiff had given the same shop on rent before the advent of plaintiff in the business and took the possession back from Shri Trilok Chand shows that the plaintiff was the backbone in the whole setup arranged by the father, and father also wanted that the same shop shall remain in the possession of the plaintiff.
14.5. Further the same is also evident from the record maintained by the PNB Noarojee Nagar Bank of Cash/Credit (C/C) account with the credit limit of Rs.5,000/- in the year 1970/71 in the name of M/s Friends Store which was guaranteed by the father of the plaintiff and mortgaged the property of Mori Gate for the said purpose, which used to be operated by the Plaintiff only to maintain the capital for the store. Moreover, the same had also been admitted by the Defendants in their cross- examinations. Thus, the said fact in itself shows that the plaintiff herein has solely managed the business affairs from the Shop No.64, Sarojini Nagar, New Delhi for ages and single-handedly made efforts for the betterment of the whole family. However, the said oral partition/settlement CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 35 of 65 before the mother of the Plaintiff and Defendants took place for the construction of harmonious relations amongst all the family members.
14.6. The same is further established from the statements recorded in the Assessment Orders of succeeding years till 1984-85 (Exh. P-1/5 [Colly]). Moreover, the Orders dated 11.10.1971 and 06.07.1972 of Appellate Assistant Commissioner, Sales Tax Delhi and 24.12.1971 of Deputy Commissioner, Sales Tax New Delhi in appeals against the Assessment Orders also showcase the fact that the business ran from the Shop No.64 in the name and style of M/s Friend Store was conducted by the Plaintiff (Exh. P- 1/6 & P-1/7). Consequently, the said Assessment Orders and prevailing circumstances establish that the Plaintiff was solely and exclusively running businesses from the Shop No.64, Sarojini Nagar, New Delhi for the last seven decades.
14.7. The deposits made by the plaintiff to Ministry of Works & Housing (Estate Office), Government of India clearly establish that the oral partition/ settlement was given effect and implemented as per the terms and conditions drew then. Precisely, the Plaintiff made payments of Rent of Rs.45/- per month to the Ministry of Works & Housing (Estate Office), Government of India till the year 1979 for the Shop No.64. However, in the same CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 36 of 65 year 1979 on the deposition of capitalized value for both Shop No. 64 to the tune of Rs.10,800/- and flat above the Shop No.64 to the tune of Rs.6,600/- by the Plaintiff the Ministry of Works & Housing (Estate Office), Government of India granted ownership rights. The receipt of the same is Exh. P-1/8. It is further pertinent that the Plaintiff has been paying regularly ground rent to L&DO. Similarly, when NDMC levied 100% misuse charges for the period from 14.07.1988 to 07.04.1999 while conducting an inspection on 14.10.1998, the Plaintiff contested the same and thereby the Chairman, NDMC vide Order dated 04.01.2004 decided in favor of the Plaintiff (Exh. P-1/9 [Colly]). Thus, it can be discerned from the same set of proceedings that the Plaintiff has throughout complete and settled possession of the Shop No. 64 and Defendants do not have any rights with respect to the same.
14.8. The documents filed by the plaintiff as well as produced by PW-2 show that the plaintiff was paying the ground rent to the L&DO in respect of the subject shop and had also made payment for the capitalized value of the property for the transfer of ownership in the name of the plaintiff.
14.9. The Chief Architect Deptt., NDMC, Pallika Kendra, New Delhi had sent a notice vide reference No. CA/515/UC(S) dated 31.08.1998 CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 37 of 65 under section 247, 248 & 250 of the NDMC Act, 1994 to the Plaintiff regarding the unauthorized construction in the rear side of the Shop No. 64, Sarojini Nagar Market, New Delhi, however which was at the later stage found to be in accordance with the law, thereafter the Plaintiff was directed vide letter No. D-311/CA/UC(S) dated 20.01.1999 to submit an undertaking to the effect that no further construction shall be carried out on the said premises without getting the plan sanctioned from the NDMC (Exh. P-1/10 [Colly]). This proceeding of 1999 is in itself evidence of the fact that the Plaintiff alone was in the possession of the Shop No. 64 and the flat above the shop and provides the unambiguous evidence that the oral partition/settlement was given effect.
14.10. The Plaintiff is an ingrained business person in the vicinity wherein the Shop No. 64 is located. The Plaintiff contested election to the post of President for the Sarojini Market Shop Keepers Association (Regd.) in the year 2002 wherein the criteria for the same is that the contester must possess the membership of the same Association. Resultantly, the Plaintiff while filing nominations for contesting the election was duly recognized as the owner of Shop No.64, Sarojini Nagar Market, New Delhi.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 38 of 65 14.11. The whole façade was created by the Defendants with mala fide intentions by overt acts on 21.03.2004, when they started throwing the articles from the Shop No.64 forcibly and even sans having any reason. Thereby, the Plaintiff lodged a complaint with the Police. From this point onwards, the Defendants started disobeying the terms and conditions of the oral partition/ settlement and alleging that no such agreement was drawn, however the time period from 1976 to 21.03.2004 conspicuously illustrates contrary to the present position of the Defendants.
14.12. That when proceedings were initiated before the concerned SDM, Vasant Vihar, the Ld. SDM was of the view that the Plaintiff herein is dispossessed partially from the suit property i.e. Shop No.64, Sarojini Nagar, New Delhi before the filing of this suit. Thus, the Ld. SDM directed the Defendants to restore the possession of the same Shop to the Plaintiff (Exh. P-1/18). However, the Order of Ld. SDM was set aside by the Hon'ble High Court of Delhi in Criminal Revision Petition No. 383/2007 and the SLP was also dismissed by the Hon'ble Supreme Court of India whereas no rights or interest with respect to Shop No.64, Sarojini Nagar, New Delhi were conferred in the favor of the Defendants.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 39 of 65 14.13. Reference is made to the cross-examination of the defendants. It is submitted that the defendants have admitted in their cross-examination that there was an oral settlement during the lifetime of the mother.
14.14. Ld. counsel for the plaintiff has further submitted that the argument of the defendants that the suit is bad since no consequential relief of possession has been sought is misplaced. It is submitted that at the time when the suit was filed, the plaintiff was in possession of the entire property. It is submitted that it is only in the course of the contempt proceedings before the Hon'ble High Court that the defendant came in possession of part of the property which was during the pendency of the suit only and hence, the plaintiff did not have occasion to seek possession at the time of the filing of the suit. It is further submitted that in any case apart from the relief of the negative declaration sought by the plaintiff, the plaintiff has also sought an injunction which is a consequential relief and even as such, the suit would not be hit by Section 34 of the Specific Relief Act.
14.15. In any case, even if the plaintiff had not sought the relief of possession, the Court could still grant the relief of possession in exercise of powers under Order VII Rule 7 CPC. It is submitted that CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 40 of 65 the facts and circumstances of the present case are such that the Court ought to exercise power under Order VII Rule 7 CPC and also grant the relief of possession to the plaintiff in respect of the portions of the suit property being occupied by the defendants. Reliance in this regard is placed on the decision of the Hon'ble High Court of Himachal Pradesh in Anil Kumar v. Gokal Chand MANU/HP/1037/2015.
DEFENDANTS' SUBMISSIONS
15. On the other hand, the learned counsel for the defendants has referred to the relevant pleadings and evidence in support of the case of the defendants and has submitted that the suit deserves to be dismissed.
16. The learned counsel for the defendants has made the following submissions:
16.1. The plaintiff has sought a negative declaration that the defendants have no right, title and interest in shop bearing No.64, Sarojini Nagar, Market, New Delhi, front or rear or any other portion of the shop.
Such a prayer for negative declaration was not maintainable. The plaintiff should have sought a positive prayer for declaration of his right and title in the suit property. As per section 34 of the Specific Relief Act, a declaratory relief can be sought by a person who is entitled to any legal character or to CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 41 of 65 any right as to any property. The plaintiff could file a suit only against a person denying or interested to deny his title to such character or right. Therefore, the plaintiff cannot seek a negative relief. Such a negative relief, even if granted, would not at all be a workable one. Reference is made to the decision of the Hon'ble High Court of Madras in R.N. Shanmugavadivel Vs. R.N. Myiisami 2010-5 L.W.
185. Negative declaration is not maintainable. Even if assuming that the declaration sought by the plaintiff is granted against the defendants, it will not affect the rights and liabilities of the plaintiff as the same are independent. The rights of the plaintiff are not dependent upon declaration of title of the defendants. The suit for negative declaration is not permissible under the law as the plaintiff can claim only that right which is vested in him but cannot alternatively seek a declaration that no right is vested in the defendants. The plaintiff in the present suit instead of seeking declaration of his ownership qua the suit property, when the suit property is still in the name of the mother of parties, has sought a negative prayer for declaration which is not maintainable.
16.2. It is the admitted case that the plaintiff and both the defendants being the legal representatives of Smt. Rukmani Devi, who was the absolute owner of the property in question, are in possession of the suit CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 42 of 65 property. The property in question is still in the name of Smt. Rukmani Devi. The plaintiff has not sought a relief with the positive prayer of declaration of his own rights or interest in the suit property.
16.3. The parties to the suit were jointly in possession of the suit property since the death of Sh. Gulshan Kumar i.e. September, 2003 but the plaintiff in order to grab the entire suit property, had made false complaints against the defendants and numerous complaints were filed by both the parties qua the suit property. Thereafter, proceedings u/s. 145 Cr.P.C. were initiated before the concerned SDM, Vasant Vihar, New Delhi. In the said proceedings, the SDM illegally gave possession to the plaintiff solely. The defendants filed a criminal revision petition bearing No.383/2007 before the Hon'ble High Court of Delhi wherein the order of the SDM was set aside on 03.10.2008 and the directions were given to the plaintiff to restore the possession of the defendants qua the suit property. The plaintiff filed the SLP before the Hon'ble Supreme Court of India against the judgment dated 03.10.2008 vide SLP No.7566/2008 and the same was dismissed vide order dated 03.11.2008, but the plaintiff despite the directions of the Hon'ble High Court of Delhi did not restore the possession to the defendants. The defendants wrote lot of letters to the plaintiff with CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 43 of 65 regard to the judgment dated 03.10.2008 for restoring their possession but the plaintiff intentionally and deliberately did not even reply to the letters nor complied with the directions of the Hon'ble High Court of Delhi. The defendants were constrained to file a contempt petition against the plaintiff, SHO P.S. Sarojini Nagar, Delhi and the SDM, Vassant Vihar, Delhi, and the Hon'ble High Court of Delhi was pleased to issue notices to all the contemnors, and the contemnors in order to save themselves from the clutches of law, restored the possession to the defendants only on 09.02.2009.
16.4. The present suit was filed in January, 2009 and the order for the restoration of the defendants in the suit property was already passed on 03.10.2008 and the SLP before the Hon'ble Supreme Court of India filed by the plaintiff was dismissed on 03.11.2008. The plaintiff despite the knowledge of the directions of the Hon'ble High Court of Delhi and the dismissal of his SLP by Hon'ble Supreme Court of India did not seek the relief of possession against the defendants and only sought the relief of declaration and that too in a negative form and relief of permanent injunction. The plaintiff merely sought the declaratory decree that too without the relief of possession. Reference is made to the decision dated 16.11.2018 of the Hon'ble High Court of Delhi in Dinesh Gupta VS. Rajesh Gupta and it is submitted CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 44 of 65 that a decree of declaration shall not be granted where the plaintiff, being able to seek further relief then a mere declaration of title, omits to do so. The suit for declaration simpliciter without seeking the consequential relief of possession was barred under the proviso to Section 34 of Specific Relief Act, 1963.
16.5. A mere declaratory decree remains non-executable.
However, there is no prohibition upon a party from seeking an amendment in the plaint. The plaintiff in the present suit did not even seek permission for amendment in the suit for adding the relief of possession despite the defendants taking the specific objection in their written statement with regard to there being no consequential relief. Reliance is placed on Muni Lal Vs. The Oriental Fire and General Company Ltd. AIR 1996 SC 642 and it is submitted that mere declaration without consequential relief does not provide the needed relief in the suit, and the plaintiff ought to seek both the reliefs. The omission thereof mandates the court to refuse the grant of declaratory relief.
16.6. The plaintiff has alleged in the suit that during the lifetime of the mother of the parties, the suit property was given to the plaintiff by virtue of an alleged oral family settlement. The burden was upon the plaintiff to prove the alleged oral family settlement but he miserably failed to prove his CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 45 of 65 contention by not examining the private witnesses or any other siblings in front of whom the alleged oral family settlement took place.
16.7. The plaintiff in order to grab the suit property did not array his sisters as a party in the present suit fearing exposure, though in his cross examination he admitted that there were six sisters and four brothers in all.
16.8. The mother of the parties had permitted the younger brother Sh. Gulshan Gandhi to run his business from the suit property and accordingly he was running his business in the name of Gulshan Fabrics being the sole proprietor. Moreover, the plaintiff in his cross examination had admitted that Sh. Gulshan Gandhi had opened an account with the bank under the name of Gulshan Fabrics as a proprietor thereof.
16.9. The parties to the suit had come in possession of the suit property only after the demise of Sh. Gulshan Gandhi. The documents issued by the Bank i.e. Ex.DW-2/1 proves that Sh. Gulshan Gandhi was exclusively running the business from the suit property being the sole proprietor of Gulshan Fabrics. The plaintiff did not prove a single document that shows he was running any business from the suit property or he was in possession of any part of the suit property before the demise of Sh. Gulshan Gandhi. The documents filed by the CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 46 of 65 plaintiff i.e. the assessment orders issued by Delhi Sales Tax Department itself proves that earlier the father of the parties was running the business from the suit property under the name and style of Friends Store being its sole proprietor and the plaintiff being the son of the proprietor appeared before the concerned authorities.
16.10. The defendants during cross-examination of the plaintiff confronted the plaintiff with his statement recorded in Criminal Case FIR No.120/1988 P.S. Ambedkar Nagar, Delhi Ex.PW-1/D1 which clearly shows that the plaintiff was working as Manager with J.K. Packaging during the relevant time, and as such it is crystal clear that the plaintiff was not running any business from the suit property.
17. Both parties have also filed their respective written submissions.
18. I have considered the submissions of the learned counsels for the parties and I have perused the record including the pleadings, evidence (both oral and documentary) and the written submissions.
ISSUE-WISE FINDINGS
19. My issue-wise findings are as follows.
Issue (b)- Whether the Plaint is liable to be rejected under Order VII Rule 11 (a) of CPC? OPD CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 47 of 65
20. The Issue (b), since it relates to an objection under Order VII Rule 11(a) CPC, which is to be decided purely on the basis of the averments made in the plaint taking the same to be true and correct, is taken up first.
21. Under Order VII Rule 11(a) CPC, the plaint may be rejected if it does not disclose cause of action on the face of it. For this purpose, the averments in the plaint are to be assumed to be correct and then it is to be seen whether the plaint discloses cause of action. In the present case, the plaintiff has claimed in the plaint that there was an oral family partition/settlement in the year 1976 and that pursuant thereto, the suit property came to his share exclusively and he came into possession of the suit property. The plaintiff has further pleaded that on 06.01.2009, the defendants attempted to forcibly dispossess the plaintiff. On this basis, the plaintiff is seeking the relief of declaration declaring that the defendants have no share in the suit property and for permanent injunction restraining the defendants from interfering with the enjoyment of the suit property by the plaintiff. The plaintiff has pleaded that he was the sole and absolute owner of the shop by virtue of the oral family settlement and that by virtue of the family settlement, the defendants have no share in the shop. Taking the averments made in the plaint to be true on the face of it, it cannot be said that the plaint does not disclose cause of action. Hence, the plaint is not liable to be rejected under Order VII Rule 11(a) CPC.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 48 of 65
22. The Issue (b) is answered accordingly in favour of the plaintiff and against the defendants.
Issue (c)- Whether the plaintiff is entitled to the declaration as prayed? OPP
23. The undisputed position is that the subject shop was allotted in the name of the late father of the parties i.e. Sh. Gopal Dass Gandhi. It is also the undisputed position that subsequent to the demise of the father in the year 1973, the subject shop came to be recorded in the name of the Smt. Rukmini Devi i.e the mother of the parties.
24. The plaintiff has in prayer (a) in the plaint sought the declaration that the defendants have no right, title and interest in the shop bearing no. 64, Sarojini Nagar Market, New Delhi. The entire case of the plaintiff is based on his claim that in the year 1976, the mother of the parties i.e. Smt. Rukmini Devi effected an oral partition/settlement between the brothers i.e. the plaintiff and the defendants which was agreed to in the family. It is the case of the plaintiff that as per this oral partition/settlement, the subject shop came to the exclusive share of the plaintiff and that, hence, the defendants have no right, title or interest in the same.
25. I have carefully considered the facts and circumstances of the case, the pleadings and the evidence on record, and, on a balance of probabilities, would hold that it was highly unlikely that there was an oral family partition/settlement CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 49 of 65 in the manner as alleged by the plaintiff. There are various factors which make the claim of the plaintiff regarding the oral family settlement/partition as alleged by him to be gravely in doubt and most unlikely, and, on a balance of probabilities, there could have been no such oral settlement in the manner as contended by the plaintiff.
26. One of the factors which casts a doubt on the plaintiff's claim of the oral family settlement/partition in 1976 is that the terms of the alleged oral family settlement/partition which have been put forth by the plaintiff in the suit are only certain as to what the plaintiff was to receive in 1976 which was the suit shop being shop no.64, Sarojini Nagar Market, New Delhi. However, in so far as the other brothers are concerned, in the oral family settlement/partition as alleged by the plaintiff, there is total uncertainty and lack of clarity as to what the other brothers, and particularly the defendant no. 2 and Sh. Gulshan Gandhi would be receiving at the time of the alleged settlement in 1976.
27. The admitted position is that the mother had expired in 1980. As per the own case of the plaintiff, the defendant no.2 did not receive any property in 1976 under the alleged settlement, but, in implementation of the family settlement, in 1982, the shop no.112 at Sarojini Nagar Market was purchased by the plaintiff and the defendant no.2 was given half share in the shop. The onus was upon the plaintiff to show that he had purchased the shop no.112 entirely out of his own funds only and that he had simply CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 50 of 65 given half share in the said shop no.112 to the defendant no. 2. However, the plaintiff has not placed on record any material to show that he had purchased the shop no.112 entirely out of his own funds only. Hence, there is nothing to show that the shop no.112 was purchased solely by the plaintiff and that he had simply given half share in the said shop to the defendant no.2 in implementation of the alleged settlement. Be that as it may, the nature of the alleged oral partition/settlement as set out by the plaintiff in the plaint itself seems not possible and is difficult to believe. It is the plaintiff's case that the mother of the parties i.e. Smt. Rukmini Devi, during her lifetime, after the demise of the father, desired to settle her sons independently and separately to avoid any dispute or litigation in the future between the brothers and sisters after the demise. This has been specially stated so to this effect by the plaintiff in paragraph 12 of the plaint. Ordinarily, if there is an oral partition/settlement in the family for the purposes of avoiding any dispute or litigation in future, then in such case, the family would most likely partition all the existing properties which are held by the family so that no disputes arise in the future. In such case, the family would not leave any arrangement for the future. However, the nature of the alleged family settlement as put forth by the plaintiff is such that the same was to be implemented in the future. As per the plaintiff, the alleged family settlement had taken place in 1976 and the mother had died in the year 1980. It is the case of the plaintiff that as per the family settlement, in 1982, a shop CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 51 of 65 no.112 was purchased in Sarojini Nagar Market by the plaintiff and the defendant no.2 was given half share in the shop. Thus, it is essentially the case of the plaintiff that under the family settlement of 1976, after almost six years in 1982, the shop no.112 was purchased in Sarojini Nagar Market by the plaintiff and the defendant no.2 was given half share in the shop. This form of a settlement is rather difficult to believe. The plaintiff has also not been able to show that the shop no.112 was purchased solely and entirely by him and that he had simply given half share to the defendant no.2. It is quite unlikely that a family settlement of this nature would have been envisaged by the mother of the parties so as to avoid any disputes between the brothers in the future. As per this form of settlement as alleged by the plaintiff, the plaintiff would have received the shop no.64 immediately upon the family settlement in 1976, however, the defendant no. 2 would not have received any property in 1976 and would have only to satisfy himself with the possibility of receiving some property in the future from the plaintiff. It is difficult to believe that such a form of settlement could have been envisaged to avoid disputes between the brothers. Rather, such an arrangement where the plaintiff would have received the existing the property in 1976 itself, whereas the defendant no.2 would not have received anything in 1976 but would have been dependent on the plaintiff giving him some property after purchasing it in the future, would have made matters uncertain and would have been more likely to create disputes. This is one factor which CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 52 of 65 makes the claim of the alleged oral family settlement/partition to be hard to believe.
28. In respect of the defendant no.1 i.e. Sh. Jagdish Gandhi, it is the case of the plaintiff that as per the settlement, a shop bearing no. C-15, C-block market, Vasant Vihar, New Delhi was taken on pagri and a separate business was set up an established for the defendant no.1 by the plaintiff. Further, it is the case of the plaintiff that in in order to implement the settlement, the plaintiff also arranged for a residential flat for the defendant no.1, and hence, a flat which was booked with the DDA by the plaintiff in the year 1968-1969 in the name of the defendant no.1 bearing no. 5-B, Qutab Enclave, Katwaria Sarai, New Delhi was given exclusively to the defendant no.1 for residential purpose and the cost was paid by the plaintiff, and the flat was allotted to the defendant no.1 in the year 1978. However, apart from the bald averment of the plaintiff that he was the one who had got the flat and the shop for the defendant no.1, there is no evidence to show that it was in fact only the plaintiff who had incurred the expenditure for all this.
29. A major red flag in the claim of oral family partition/settlement in the particular manner as alleged by the plaintiff is the manner in which the fourth brother i.e. Sh. Gulshan Gandhi has been dealt with in the alleged oral family partition/settlement. This is very crucial and makes the case of the plaintiff totally unbelievable and nothing but a fabrication. As per the case of the plaintiff in the suit, CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 53 of 65 under the oral family settlement/partition made in 1976 there was no property which was going to the fourth brother i.e. Sh. Gulshan Gandhi, neither at the time of the alleged settlement in 1976 nor even at any time in the future. This is rather strange, since as per the own case of the plaintiff, the mother had effected the family partition/settlement so that there are no disputes between the brothers in the future. It is quite unlikely that if the mother wanted to avoid any disputes in the future between the brothers, then the fourth brother i.e. Sh. Gulshan Gandhi would not have been given any property at all in the settlement/partition. Rather, completely excluding one brother from the properties in the alleged settlement would have been an invitation to disputes between the brothers in the future. Hence, it is quite doubtful that the settlement/partition had taken place in the family in the manner as alleged by the plaintiff. The plaintiff has given no explanation as to why the fourth brother i.e. Sh. Gulshan Gandhi was not given any property in the alleged settlement.
30. There is another very crucial aspect of the matter which makes the plaintiff's version of the alleged oral settlement/partition in the year 1976 to be totally unbelievable. As per the case set up by the plaintiff, under the alleged oral family settlement/partition arrived at in 1976, not only was the fourth brother Sh. Gulshan Gandhi not to receive any property, but as per the alleged settlement, it was settled that the fourth brother i.e. Sh.
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 54 of 65 Gulshan Gandhi who was then a bachelor would remain with the plaintiff and that none of the defendants would have any right or interest in any of the properties that may belong to or be acquired by or owned by Sh. Gulshan Gandhi and that the same shall be properties of the plaintiff. It is extremely unlikely and is implausible that the mother would have made such a settlement in respect of one of her sons. i.e. Sh. Gulshan Gandhi. It is the undisputed position that Sh. Gulshan Gandhi died sometime in the year 2003 at the age of 48 years. Thus, in the year 1976, when the alleged oral family settlement took place as per the case of the plaintiff, Sh. Gulshan Gandhi would have been only around 21 years of age. It is unbelievable that when Sh. Gulshan Gandhi was only 21 years of age, the family could have made a settlement that all the properties which may be acquired by Sh. Gulshan Gandhi would go to the plaintiff and to the exclusion of the defendants. Such a settlement would have meant that not only would Sh. Gulshan Gandhi not have received any properties in the family settlement/partition, but also that the family could foresee into the future that Sh. Gulshan Gandhi was to remain a bachelor forever and that he would never get married and have children, and that Sh. Gulshan Gandhi would also predecease his other brothers i.e. the plaintiff and the defendants, and that upon his demise, the defendants would not have any share in the properties which may have been acquired by Sh. Gulshan Gandhi during his lifetime but only that the plaintiff would have become entitled to such properties. A claim to such a CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 55 of 65 family settlement/partition is most absurd and bizarre, and, in all likelihood, there could have been no such oral family settlement/partition as has been alleged by the plaintiff. Rather, what really appears to have happened is that the plaintiff has concocted and fabricated the story of the alleged oral family settlement/partition so as to receive all the properties left behind by Late Sh. Gulshan Gandhi to the exclusion of the defendants.
31. There is another factor which points towards the falsity of the plaintiff's claim regarding the alleged oral settlement/partition. It has clearly come on record that apart from the suit shop being the shop no.64, Sarojini Nagar Market, New Delhi, the father of the parties had also acquired another property at Mori Gate, which was existing as on the date of the alleged family settlement/partition in 1976. However, the plaintiff is totally silent in the plaint as to in what manner the property at Mori Gate had been settled or partitioned between the brothers and sisters at the time of the family settlement/partition in 1976. As claimed by the plaintiff, the mother of the parties had affected the settlement/partition in order to avoid any future disputes between the brothers. If this was the case, then surely all the existing properties as at the time of the family settlement/partition in 1976 would have been partitioned between the brothers and sisters. However, the plaintiff does not state or mention in what manner the Mori Gate property was partitioned between the brothers and sisters CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 56 of 65 in 1976. In case any oral family settlement/partition would have actually taken place between the parties in 1976, then, ordinarily, all the properties as existing at that time including the Mori Gate property would have got partitioned. The fact that the plaintiff does not even refer to the Mori Gate property in the plaint clearly points to the falsity of the allegation of the oral family settlement/partition in the manner as made by the plaintiff. In his cross-examination, the plaintiff has admitted that the Mori Gate property continued to be in the name of the father. He has also admitted that the father used to collect the rent of the said property and that after his death, the rent was paid directly to the mother. He has also admitted that after the death of the mother, the tenants had been sending the money to the plaintiff. Upon being questioned as to whether he was distributing the rent among the brothers and sisters, the plaintiff has deposed that initially he used to give the rent to the sisters but subsequently, since the amount was not enough and the property required to be maintained, the same was spent towards its upkeep and maintenance as well as payment of electricity and water charges. Thus, it is not the case of the plaintiff that the Mori Gate property was partitioned or settled between the siblings in the alleged oral settlement/partition of 1976. This is quite odd, since as per the own case of the plaintiff, the mother wanted to settle the properties between the brothers to avoid any future disputes. Thus, this also makes it unlikely that there was an oral family CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 57 of 65 settlement/partition in the manner as claimed by the plaintiff.
32. The plaintiff has also produced on the record a Letter dated 27.09.1982 Ex.PW-2/18 from the office of Land & Development Office which as evident from the said letter is in response to a letter dated 13.08.1982 from the plaintiff seeking substitution of the suit property i.e. Shop No.64 in the Sarojini Nagar market in his name upon the demise of the mother. In this letter dated 27.09.1982 Ex.PW-2/18, the Land & Development Office directed for providing the affidavits of all the legal heirs of the mother, the death certificate in respect of the mother and a certified copy of the release deed in case any of the legal heirs wanted to surrender their rights in favour of the other. Thus, it is clear that upon the demise of the mother in 1980, the plaintiff had in 1982 applied for substitution of the property in his name in the records of the L&DO. Upon this application of the plaintiff, the L&DO vide its letter dated 27.09.1982 Ex.PW-2/18 directed the plaintiff to provide the release deed from the other legal heirs of the mother. Now, in case there had been any oral family settlement/arrangement in 1976 by which the Shop No.64, Sarojini Nagar had gone to the sole and exclusive share of the plaintiff, then the plaintiff would have simply obtained the release deed from his siblings in 1982 and would have filed the same with the L&DO for substitution of his sole name in the records. In case any of the siblings would have denied to give the release deed, ordinarily, the plaintiff CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 58 of 65 would have commenced appropriate proceedings soon thereafter for declaration that he had become the sole owner under the alleged oral family settlement and would have applied for substitution of his sole name on this basis with the L&DO. However, it is not the case of the plaintiff that pursuant to the letter of the L&DO dated 27.09.1982 Ex.PW-2/18, he had ever sought any Release deed from his siblings. It is not even the case of the plaintiff that he had asked any of his siblings for the Release Deed. The plaintiff has not given any explanation as to why he did not follow up on the L&DO's letter dated 27.09.1982 seeking release deed from the other legal heirs of the mother. This only goes to show that there was no oral family settlement in 1976 in the manner as alleged by the plaintiff.
33. Ld. counsel for the plaintiff has greatly harped on the answer given by the defendant no.2 in his cross- examination in respect of the alleged oral settlement, which is extracted as under:
"Q. Is it correct that in the year 1975 your mother had orally settled the properties in the presence of all the brothers and sisters after the marriage of Jagdish?
Ans. The shop in question was given to Gulshan and there was no other talk of partition."
CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 59 of 65
34. Referring to the afore-quoted portion of the cross-
examination of the defendant no.2, it is the submission of the Ld. Counsel for the plaintiff that the defendant no.2 had not denied that there was an oral settlement of the properties by the mother, although the defendant no.2 had stated that the subject shop was given to the fourth brother i.e. Sh. Gulshan Gandhi. It is submitted that, hence, the defendants have admitted that there was an oral settlement in 1976 as pleaded by the plaintiff.
35. I do not see the aforesaid answer by the defendant no.2 in his cross-examination to be assisting the plaintiff in any manner. Even assuming that the defendant no.2 may have admitted that there was some form of a settlement made by the mother, however, there is no admission that under the settlement the suit property came to the share of the plaintiff exclusively. The plaintiff's case must stand on its own legs and when the plaintiff was claiming that under the oral settlement, the property came to his share exclusively, then he was required to prove this very thing by way of cogent evidence which the plaintiff has failed to do. Even taking the aforesaid portion of the cross- examination of the defendant no.2 to be an admission that there was a settlement under which the suit shop came to the share of Sh. Gulshan Gandhi, even then that would not lead to a conclusion that the plaintiff became the sole owner to the exclusion of the defendants.
36. It has clearly come on the record that Sh. Gulshan Gandhi was also involved in the business of 'Gulshan Fabrics' CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 60 of 65 which was being run from the suit shop. The plaintiff has himself stated in paragraph 24 of the plaint that the unmarried brother Sh. Gulshan Gandhi was living with the plaintiff and had been assisting him from time to time in running the fabric business of 'Gulshan Fabrics'. The plaintiff has also admitted in his cross-examination that Sh. Gulshan Gandhi had opened a bank account under the name of Gulshan Fabrics as a proprietor thereof. Even if the afore-extracted portion of the cross-examination of the defendant no.2 is taken as an admission of there being a settlement made by the mother, at best it is an admission of a settlement under which the suit shop was given to Sh. Gulshan Gandhi.
37. Furthermore, perusal of the complaints made by the plaintiff to the police authorities shows that the plaintiff was admitting that both the plaintiff as well as Sh. Gulshan Gandhi were carrying on business from the suit shop. In the complaint dated 14.11.2003 Ex.PW-1/14 to the SHO, Sarojini Nagar, the plaintiff has stated that the plaintiff and his younger brother Sh. Gulshan Gandhi were working together in the shop no. 64 for last many years, and that the plaintiff started working from April 1958 and Sh. Gulshan Kumar joined in 1973 onwards, but unfortunately Sh. Gulshan Kumar died on 06.09.2003. In the complaint dated 29.03.2004 Ex.PW-1/13 to the Deputy Commissioner of Police, District South West, Vasant Vihar, the plaintiff has stated that the plaintiff and his brother Sh. Gulshan Kumar had been doing business at the CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 61 of 65 Shop No.64, Sarojini Market in the name and style of M/s. Gulshan Fabrics for last 30 years and that Sh. Gulshan Kumar died on 06.09.2003.
38. As already mentioned, the plaintiff's version of the oral family settlement in relation to Sh. Gulshan Gandhi is most bizarre and totally absurd. As per the plaintiff's version, not only did Sh. Gulshan Gandhi get nothing in the oral family partition in the year 1976, but on the contrary a settlement was made to the effect that upon the demise of Sh. Gulshan Gandhi, his properties would go solely to the plaintiff who was the elder brother. This version of settlement as put forward by the plaintiff is most bizarre and is clearly nothing but an afterthought concocted by the plaintiff for claiming the properties of late Sh. Gulshan Gandhi. Even if it were to be taken that there was some form of an oral settlement made during the lifetime of the mother, it cannot be ruled out and there is a strong possibility that the subject shop or a portion thereof came to the share of Sh. Gulshan Gandhi. Sh. Gulshan Gandhi died intestate and a bachelor leaving behind his siblings as the heirs, and it appears that for this reason, his brothers i.e. the parties herein were having the disputes with respect to the subject shop.
39. Considering the overall evidence on record, on a balance of probabilities, the plaintiff has been unable to prove that there was an oral family settlement in 1976 in the particular manner as alleged by the plaintiff under which the subject shop came exclusively to the plaintiff's share CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 62 of 65 as claimed by him. The allegation of the plaintiff in respect of the nature of the oral settlement is most likely a fabrication and concoction made by the plaintiff to usurp the share of Late Sh. Gulshan Gandhi to the exclusion of the other siblings including the defendants herein. Hence, the plaintiff's suit must fail and the plaintiff would not be entitled to any relief of declaration as prayed for.
40. The Issue (c) is answered accordingly, in favour of the defendants and against the plaintiff.
41. Since it has already been held that the plaintiff has been unable to prove his case as pleaded by him and as such the plaintiff would not be entitled to any relief of declaration as sought, it is not necessary to deal with the other objections of the defendants that the relief of negative declaration was not maintainable or that the relief of declaration without seeking consequential relief of possession was not maintainable.
Issue (d)- Whether the Plaintiff is entitled to decree of permanent injunction as prayed for? OPP
42. The plaintiff has failed to prove that there was an oral family partition/settlement in the year 1976 in the manner as alleged by him, and has also failed to prove that he had become the sole owner of the suit property in the manner as alleged. Resultantly, the plaintiff has been held to be not entitled to the relief of declaration as sought and the Issue
(c) has been decided against the plaintiff. Accordingly, the CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 63 of 65 plaintiff would also not be entitled to the relief of injunction as prayed.
43. The Issue (d) is answered accordingly in favour of the defendants and against the plaintiff.
Issue (a)- Whether the suit is bad for non-joinder of parties? OPD
44. The defendants, who are the brothers of the plaintiff, have raised the objection that the suit ought to be dismissed as the suit is bad for non-joinder of necessary parties being the sisters of the parties.
45. The plaintiff has sought the reliefs of declaration and permanent injunction against the defendants on the basis that there was an oral family partition/settlement in the year 1976 and that pursuant thereto, the suit property came to his exclusive share and he came into possession of the suit property, and that on 06.01.2009, the defendants attempted to forcibly dispossess the plaintiff. When this was the basis of the suit, then it was only the defendants who were necessary parties to the suit and the sisters of the parties were not necessary parties. The plaintiff was not claiming any reliefs against the sisters and as such, the sisters could not be termed as necessary parties to the suit, although they could have been proper parties or could have been called as witnesses in the suit by the parties. Although, ultimately, the plaintiff has been unable to prove his case as set up by him in the plaint and has failed to prove that there was an oral family settlement in the year CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 64 of 65 1976 in the manner as alleged and, as such, the plaintiff has been held to be not entitled to grant of any relief as prayed, however, that is altogether a different matter. However, in so far as the issue of non-joinder of necessary parties is concerned, the suit as framed cannot be said to be bad for non-joinder of necessary parties.
46. The Issue (a) is decided accordingly in favour of the plaintiff and against the defendants.
DECISION
47. In the result, in view of the findings on the Issues (c) and
(d) holding that the plaintiff would not be entitled to the relief of declaration and permanent injunction as sought, the suit is dismissed.
48. In the facts and circumstances of the case, costs of Rs.
45,000/- are awarded to the defendants against the plaintiff.
49. Let the decree sheet be drawn up accordingly.
50. File be consigned to record room after due compliance.
(SATYABRATA PANDA) District Judge-04 Judge Code- DL01057 PHC/New Delhi/24.01.2025 CS No.58819/16 Sant Kumar Gandhi Vs. Jagdish Gandhi Page No. 65 of 65