Delhi District Court
Shri Rajesh Kumar Srivastava vs Smt. Arti Suden on 9 June, 2017
IN THE COURT OF SH. JITENDRA KUMAR MISHRA, ADDITIONAL
DISTRICT JUDGE - 01, PATIALA HOUSE COURTS, NEW DELHI
DISTRICT, NEW DELHI
( 12 YEARS 10 MONTHS OLD CASE )
CS No. 59106/16
Shri Rajesh Kumar Srivastava
S/o. Late Shri Krishan Kumar Srivastava
r/o B-159, Sector 14, NOIDA-201 301
...... Plaintiff.
Versus
Smt. Arti Suden.
w/o. Wg Cdr P.K. Suden,
r/o B-1/29, Vasant Vihar,
New Delhi-57.
........ Defendant.
Suit presented on : 19.08.2004
Arguments Concluded on : 24.05.2017
Judgment Pronounced on : 09.06.2017
JUDGMENT
1. This is suit for possession, injunction and mesne profits. Briefly stated the facts of the case are:-
(a) Shri Krishan Kumar Srivastava- father of the parties hereto, was member and shareholder of the Government Servants Co-operative House Building Society Ltd. Sh. Krishan Kumar Srivastava died in May, 1970 and his wife, namely, Smt. Raj Kumari Srivastava - being the nominee was substituted as member and shareholder of the society after the children of Sh.
Krishan Kumar Srivastava relinquished their rights.
(b) Smt. Raj Kumari Srivastava was allotted plot no. B-1/29, CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 1 of 19 Vasant Vihar, New Delhi, by virtue of perpetual sub-lease dated 08.05.1973, registered with the concerned Sub-Registrar on 18.05.1973, executed between the President of India and the Government Servants Co-operative House Building Society Ltd. and Smt. Raj Kumari Srivastava.
(c) After obtaining permission from the lessor and the competent authority, Smt. Raj Kumari Srivastava, by virtue of Gift deed dated 22.11.1979, duly registered with the concerned Sub-Registrar on 23.11.1979, transferred the plot to the plaintiff, defendant and Sh. Ambrish Srivastava, brother of the parties and thus all became the co-owners to the extent of one-third share each and the plot mutated accordingly.
(d) After having the revised plan sanctioned in July, 1981, the parties raised funds by securing loans and commenced construction on the said plot.
(e) Parties amicably divided respective portions and after the settlement front portion of the ground floor fell to the share of the defendant. Front portion of first floor and second floor fell to the share of the plaintiff and back portion of ground, first and second floor fell to the share of Sh. Ambrish Srivastava. In pursuant to the partition, the parties applied for separate electricity connections in respect of their respective portions. The property / structure stood partitioned in asmuch as all the parties have been in their respective portions.
(f) In the year 1990 defendant filed a suit for declaration against the plaintiff and Sh. Ambrish Srivastava, inter-alia, CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 2 of 19 seeking that the property stood partitioned and that the parties are in their respective possession.
(g) Defendant also filed a site plan whereby front portion of the second floor was shown under possession of the plaintiff. During the pendency of the suit an application under Order XXIII Rule 3 of CPC was also filed by the parties. Along with the said application, parties also filed site plan once again confirming the respective portions of the parties.
(h) The plaintiff retired as Government Officer from Himachal Pradesh in the year 1998. During his service, plaintiff was posted out of Delhi, therefore, his share of the property constructed by him, has been let out from time to time.
(i) In July, 2000 plaintiff visited his portion of the property and was shocked to know that defendant has trespassed on the second floor and has illegally raised construction of two rooms on the terrace i.e. Front side of the second floor. The said construction was raised by the defendant in the year 1999.
(j) The action of the defendant of trespassing and raising construction on the terrace was illegal. A complaint was lodged in the police authority and FIR No. 366/2000 under Section 447 IPC was registered against the defendant. The plaintiff was also came to know that defendant has applied for sanctioning / regularizing of two rooms in the front portion of the second floor raised by her unauthorizedly without the consent of the plaintiff in his portion. Therefore, plaintiff made complaints to the MCD also. MCD vide its order dated 29.01.2002 directed demolition of CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 3 of 19 the two rooms constructed illegally by the defendant. The defendant trespassed on the property of the plaintiff and turned dishonest and so as to grab the portion of the plaintiff, defendant instituted a suit bearing no. 77 of 2002, seeking declaration that the portion of the ground floor as well as front portion of the second floor had fallen in her share. The suit was misconceived. Tferefore, was liable to be dismissed. Defendant, however, chose to withdraw the same and the said suit was dismissed as withdrawn on 12th July, 2004.
(k) By way of present suit the plaintiff is seeking for recovery of possession in respect to the two rooms raised on the front portion of the second floor of property No. B-1/29, Vasant Vihar, New Delhi.
2. Written statement filed by the defendant wherein objection taken that suit is barred by time in respect of the possession of the Second Floor, front portion of House No.B-1/29, Vasant Vihar, New Delhi. It is further alleged that defendant for over 12 years prior to the institution of the suit has been in possession of the said portion, claiming herself to be the absolute owner thereof and without any claim or interference whatsoever from the plaintiff and thus the plaintiff has lost the right for filing of the suit for possession by prescription. It is further objected that the suit has not been properly valued for the relief for possession as the market value of the aforesaid portion is over Rs. 50 Lakhs. She further denied that the defendant had relinquished her share / right, as alleged in para 1 of the plaint though it is admitted that Sh. Krishan Kumar Srivastava i.e. the father of the parties was a Member and a Shareholder of the society. She has further admitted that Smt. Raj Kumari Srivastava was alloted plot no. B-1/29, Vasant Vihar, New Delhi by CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 4 of 19 the President of India. The mutation of the plot carried out in the names of the parties and Sh. Ambrish Srivastava, is another admitted fact. However amicable settlement / division regarding respective portions of the structure is disputed. Rather, it is alleged that the parties raised construction of their separate units on the said property with their own separate funds. The defendant raised a loan of Rs. 50,000/- from the Housing Development Finance Corporation and raised construction of the front portion of the ground floor on the said property. It is further alleged that the plaintiff raised construction of the front portion of the first floor of the said property, above the portion of the defendant on the the ground and Sh. Ambrish Srivastava raised construction of the rear portion of the first floor. She denied that the front portion of the second floor fell to the share of the plaintiff. However, it is an admitted fact that the parties applied for separate electricity connections for their separate portions or the parties were separately assessed for the purposes of Property Tax with respect to the respective portion of the property filing of the suit being Suit No. 3196 / 1990 before the Hon'ble High Court, it is another admitted fact. However, she denied that the defendants in that suit filed any site plan wherein the front portion of the second floor was shown in possession of the plaintiff herein. The site plan, if any, filed in the suit showing front portion of the second floor to be in the ownership or possession of the plaintiff herein must have been manipulated by the plaintiff. It is further alleged that the parties had divided the second floor between them and the front portion of second floor, admeasuring 521.24 sq. ft. had fallen to the share of the defendant herein so as make the total area in the ownership of the defendant to be 1732.53 sq. ft i.e. 1211.29 sq. ft on the ground floor and 521.24 sq.ft on the second floor. Similarly, the middle portion of the second floor admeasuring 538.28 sq. ft. on the second floor Sh. Ambrish Srivastava got total 1991.25 sq. ft. i.e. 663.75 sq.ft. each on the rear portion of the ground, first and the second floors. The defendant since construction is in CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 5 of 19 possession of front portion of the second floor of the property, beside the ground floor in her possession. The fact of retirement of the plaintiff as Director General of police, Himachal Pradesh in the year 1998 is an admitted fact. However, it is alleged that the plaintiff is taking advantage of the senior positions enjoyed by him in the Police Department. The rest of the contents of the plaint are denied except the territorial jurisdiction of this court which is not disputed.
3. Replication filed on behalf of the plaintiff to the written statement of the defendant wherein it is denied that the suit is barred by the limitation. It is further submitted that the plaintiff who is in possession of the portion since construction of the first floor and second floor. He has further denied that the suit is grossly under-valued. The rest of the contents of the written statement are denied and the averments made in the plaint are reiterated and affirmed.
4. My Learned Predecessor vide order dated 25.08.2005 framed the following issues:-
(1) Whether the plaintiff is the exclusive owner of the front portion of the second floor of property No. B-1/29, Vasant Vihar, New Delhi marked in 'red' colour in the plan annexed to the plaint as Annexure-B? OPP (2) Whether the claim of the plaintiff is within time? OPP (3) Whether the plaintiff is entitled to a decree of possession and mandatory injunction in respect of the suit property? OPP (4) Whether the plaintiff is entitled to mesne profit? If so, at what rate and for what period? OPP (5) Relief.
5. To prove his case, the plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. 'PX'. He further relied upon Ex.PW1/1 to Ex. PW1/27 which are :
• Certified copies of the affidavits of Sh. Rajesh Kumar CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 6 of 19 Srivastava is Ex.PW1/1.
• Certified copies of the affidavits of Sh. Ambrish Srivastava is Ex. PW1/2.
• Certified copy of the plan filed in the said suit is Ex. PW1/3. • Lease agreement dated 21.12.1992 is Ex. PW1/4. • Carbon copies of letters dated 24.07.2000 which bear the stamp of MCD were served by Sh. Rajesh Kumar Srivastava are Ex. PW1/5 & EX.PW1/6.
• Office copy of the letter which bears the stamp of the Dy. Commissioners is Ex. PW1/7.
• Carbon copies of the letters dated 26.07.2000 & 17.09.2000 served to the SHO are Ex. PW1/8 and Ex. PW1/9. • Letter dated 13.09.2001 is Ex. PW1/10.
• Letters dated 12.07.1995, 27.08.1995 and 18/19.04.1999 written by the defendant to the Dy. Assessor & Collector are Ex.PW1/11, Ex. PW1/12 & Ex. PW1/13 respectively. • Certified copy of the suit instituted by the defendant is Ex.PW1/14.
• Certified copy of the notice and the Vakalatnama signed by the defendant in favour of Sh. J. M. Bahri is Ex. PW1/15. • Certified copy of plaint and appl. of suit no. 156/96 are Ex. PW1/16 and Ex. PW1/17.
• Site plan filed by Sh. Ambrish Srivastava is Ex. PW1/18. • Statement of Sh. Ambrish Srivastava is Ex. PW1/19. • Written statement and reply filed by the defendant and Sh. R.K. Srivastava are Ex. PW1/20 and Ex. PW1/21. • Replication filed by Sh. Ambrish Srivastava is Ex. PW1/22. • Certified copy of agreement dated 12.02.1983 is Ex. PW1/23. • Judgment and decree dated 20.05.2000 against the defendant is Ex.PW1/24.
• Certified copy of the execution petition is Ex. PW1/25. • The proceedings in the execution of the decree dated 20.05.2000 are tendered in evidence is Ex PW1/26.
• Site plan is Ex. PW1/27.
6. He further examined Mr. Ambrish Srivastava as PW2. He also relied upon several documents as tendered by PW1 in his evidence. Plaintiff further examined PW3, namely, Mr. S. N. Kaul as PW3.
7. All witnesses were cross-examined by Ld. counsel for the CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 7 of 19 defendant. Thereafter vide separate statement plaintiff himself closed PE.
8. In defence defendant examined herself as DW1 and tendered her evidence by way of affidavit as Ex. DW1/A. She further relied upon documents Ex. DW1/1 to Ex. DW1/11. Ex. DW1/1, Ex. DW1/2, Ex. DW1/6 to Ex. DW1/9 (were objected to as to the mode of proof). She was cross- examined by Ld. counsel for the plaintiff. Thereafter vide separate statement defendant herself closed DE.
9. I have gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial. I have also heard arguments as advanced by Sh. Naresh K. Thanai, counsel for the plaintiff and Sh. Sanjeev Mahajan, counsel for the defendants.
10. My issue wise findings are:-
Issue no. 1
1. Whether the plaintiff is the exclusive owner of the front portion of the second floor of property No. B-1/29, Vasant Vihar, New Delhi marked in 'red' colour in the plan annexed to the plaint as Annexure-B? OPP 10.1 Onus to prove issue no. 1 is upon the plaintiff. In Para 6 of Ex.PX it is deposed by the plaintiff that as per the settlement front portion of the ground floor, first floor, second floor including terrace and staircase leading it fell to his share. During cross examination PW1 further deposed that a document was executed between both the defendants and Sh. Ambrish Srivastava regarding as to this portion has fallen to whose share. His claim in the present suit is based on that document. He has admitted that the said document is Ex. PW1/23. Ex. PW1/23 is an agreement executed on 12.02.1983 entered among parties to the suit and Sh. Ambrish Srivastava.CS No. 59106/16
Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 8 of 19 This document is an unregistered document and executed on Rs.10/- stamp paper. This document falls under the provisions of 17(1)(b) of the Registration Act as it limits or extinguishes the interests of the parties to the document in an immovable property and thus this document cannot be looked into inasmuch as the said document is not a registered document. Section 49 (e) of the Registration Act provides that document required to be registered shall not be received as evidence unless it is a registered document. This document suggests that parties to the document consented and bound themselves and agreed to the terms of the document on the day of execution of the document for certain terms qua immovable property. It is the plaintiff who himself deposed that his claim in the present suit is based upon this document. But this document is not a registered document and therefore cannot be looked into and is inadmissible in evidence. In para 7 of Ex. PX, plaintiff further referred Ex.P1 which is a certified copy of plaint filed in suit no. 3196 of 1990. Plaintiff further referred certified copy of application under XXIII Rule 3 of CPC filed in the said suit and the same is Ex. P-2. Paras 3 and 4 of Ex. P2 are :
"3. That under the circumstances, the plaintiff is the sole, absolute and exclusive owner of the portion of the house No. B- 1/29, Vasant Vihar, New Delhi, shown in red colour in the attached plan. The defendants have no right, title or interest in the same. The defendant no.1 is the sole, absolute and exclusive owner of the portion of the said House No. B-1/29 shown in green colour in the attached plan. The plaintiff and the defendant no. 2 have no right, title or interest in the said portion. Similarly the defendant no. 2 is the sole, absolute and exclusive owner of the portion in the said house No. B-1/29, shown in blue colour in the attached plan. The plaintiff and the defendant No. 1 CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 9 of 19 have no right, title or interest in the said portion.
4. That the portions of the plot No. B1/29, shown in yellow colour in the attached plan shall remain common for the use of the parties and all occupants of the said house No. B-1/29, Vasant Vihar, New Delhi."
10.2 In support of Ex. P2 an affidavit of the defendant is Ex. P3 which bears date 19.03.1991. The site plan in the said suit is Ex. PW1/3. During cross examination DW1 admitted that she had appeared in the proceedings pertaining to Ex. P1. She admitted that an application u/o 23 rule 3 of CPC was also filed in the said suit. She has further admitted that the same was also signed by her. In para 8 of Ex. DW1/A defendant deposed that it is the plaintiff upon whose instance she signed document consisting of plaint and compromise application in good faith. She has further deposed that neither the plaint nor the compromise application contained any reference of the plaintiff being owner of the front portion of the second floor. She further deposed that no site plan was annexed either with the plaint or with compromise application. She further deposed in para 9 that the site plan, if any, filed in that suit in front portion of the second floor to be in the ownership of the plaintiff herein must have been manipulated by the plaintiff. It is further her case that it was the frivolous act of the plaintiff and at the time of appending her signatures on the plaint and the compromise application, the site plan did not show the second floor front portion in green colour. It is further her case that the said suit was withdrawn by Sh. M.L. Lonial, Advocate and no compromise was recorded therein. She has further deposed that she had accompanied her brother to court as and when requested in that suit but no statement of her was ever recorded.
10.3 Since Ex. P1, P2 and P3 are the certified copies of the court CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 10 of 19 record and specially Ex. P3 which is an affidavit of the defendant herein and no application has ever been moved prior to filing of the suit regarding any fraud if any allegedly committed by the plaintiff herein, therefore these documents have to be looked into as these documents are proved documents. It is further the case of the defendant herein that she had accompanied her brother to the court as and when requested. Therefore her intention was to compromise suit no. 3196 of 1990 and only for that reason she had accompanied her brother as and when required in the suit. Moreover, the plaint Ex. P1 was signed and verified on 17.09.1990 whereas the compromise application was signed on 19.03.1991 alongwith the affidavit. Therefore, there was enough time available with defendant herein, if the suit has been filed fraudulently or any fraud was played then definitely she would not come to the court after months together for filing compromise application in the said suit. Therefore, Ex. PW1/23 does not confers any right to either parties to the suit but definitely Ex. P2 and Ex. P3 confers the right to the plaintiff in view of paras 3 and 4 referred herein above as Ex. P2.
10.4 During cross-examination PW1 deposed that he was called by the defendant herein for compromise. He did not engage any advocate for suit no. 3196/1990. He remembered that for one hearing he had personally appeared before the court. The defendant had got prepared compromise papers when she called plaintiff herein for the compromise and said that everything was over to her satisfaction. To those compromise papers a site plan was attached. The certified copy of that compromise is Ex. P2. It is admitted that there is no site plan attached to the compromise application Ex. P2. He has further deposed that Ex. PW1/3 is a colour photocopy. During further cross-examination it is challenged that Ex. P2 and Ex. P3 were got prepared by the plaintiff only. He denied the said suggestion. It is further challenged that the plaintiff herein and Ambrish Srivastava had gone and got CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 11 of 19 their respective affidavits attested first before obtaining the signatures of the defendant. This suggestion is contrary to the defence raised by the defendant in her evidence in Ex. DW1/A. In cross-examination it is the stand of defendant that the plaintiff and Ambrish Srivastava had gone and got their respective affidavits attested first before obtaining the signature of defendant whereas in Ex. DW1/A it is the case of the defendant that she had accompanied her brother to the court as and when requested in the suit. The plaintiff is not able to prove as Ex. PW1/3 which allegedly stated by the plaintiff filed alongwith Ex. P2 is a photocopy as per own admission of the plaintiff.
10.5 During cross-examination dated 15.12.2006 plaintiff himself admitted upon question put to him that whether in Ex. PW1/3 the colours have been filled up afresh or are the photocopy of the colours on the original. He himself admitted that it is a coloured photocopy. Therefore document Ex. PW1/3 which admittedly is a coloured photocopy could not be looked into as it is not original or certified copy of the document which was allegedly filed in suit no. 3196/1990. It is further admitted by PW1 that site plan is not attached with Ex. PW1/23. PW1 has further deposed that no copy of the site plan attached with Ex. PW1/23 was filed in suit no. 3196/1990 by the defendant against PW1 and Sh. Ambrish Srivastav.
10.6 PW1 further relied upon Ex. PW1/18 in Ex. PX. During cross- examination when a specific question put to PW1 that on the date of decision of suit 156/1996, when Ex. PW1/18 was filed, the construction of the front portion of the second floor was existing for which PW1 did not give a specific reply. When a specific question put that whether the defendant was contesting suit in which Ex. PW1/18 was filed then he deposed that he did not know. PW1 further deposed that he did not remember whether he had filed CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 12 of 19 any other site plan in suit no. 156/1996.
10.7 During cross-examination DW1 admitted that she had contested the said suit by filing written statement. She has further deposed that in Ex. PW1/18 the portion X had a straw coverage and there was an old toilet at portion Y. Therefore existence of site plan Ex. PW1/18 is not disputed by either parties to the suit. In Ex. PW1/18 there is no second floor, as in the said site plan ground floor, first floor and barsati floor are there but no second floor. It is the case of the plaintiff that defendant has raised illegal construction of two rooms in the open terrace i.e. front side of the second floor whereas it is mentioned in para 12 of Ex. DW1/A that the defendant had a temporary shed at second floor over her portion which was raised by her and her husband as far back as in 1984. This shed was subsequently converted as pacca construction over the period of 6-7 months at the end of 1998.
10.8 It is further the case of the plaintiff that he visited in 2000 then he came to know that defendant has trespassed on the second floor and has illegally raised construction of two rooms on the terrace i.e. front side of the second floor. Prior to the construction of two rooms by the defendant, front portion of second floor was open and there existed only one room on the portion of the plaintiff which was in occupation of the tenant let out by the plaintiff. This fact has not been disputed by the defendant in her written statement. However, it is her contention that said construction was done with full knowledge of the plaintiff. He was frequently coming to the property. It is further case of the defendant that plaintiff claims that he retired in 1998 and it is inconceivable that from 1998 till 2000 he would not visit the property and / or would not know of the construction on the front portion thereof which is visible even from the road in front of the property. Ex. PW1/D2 is the copy of the site plan submitted by the plaintiff with the MCD. In that site plan also CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 13 of 19 only barsati floor plan was there and no second floor has been shown. If this site plan Ex. PW1/D2 is readwith Ex. PW1/D1 wherein it is mentioned that in clause 1 that portion 'K' as shown in Ex. PW1/D2 shall be the property of defendant no. 2 whereas portion 'L' shall be property of Sh. Ambrish Srivastav as mentioned in clause 2 of Ex.PW1/D1. It mentioned in clause 3 of Ex. PW1/D1 that portion marked M on the copy of plan shall be the sole and exclusive property of plaintiff. Portion M and L have been shown at the first floor plan in Ex. PW1/D2. Therefore in Ex. PW1/D1 there was no discussion about second floor as second floor was not existing at the time when Ex. PW1/D1 was prepared.
10.9 During cross-examination DW1 deposed that as far as the construction jointly done is concerned, all of them had pooled the money for the same and thereafter raised loans for their respective portions. She further deposed in cross-examination that the second floor was common to all as it was not constructed at that time. During further cross-examination a question as under :
" Q. I put to you that by the time the agreement dated 12.02.1983 was executed, the ground floor, first floor, and barsati at second floor which is in possession of the plaintiff were already built. What have you to say?
A. Although it is correct that the property was built upto barsati of the second floor but the constructions were not complete in all aspects (Vol.) the property was built upto the then permissible limits and the barsati was occupied by the plaintiff on its middle portion and the rear portion was occupied by second brothers."
10.10 This question itself shows that at the time of execution of Ex. PW1/D1 and Ex. PW1/D2 parties had not constructed barsati on the second CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 14 of 19 floor. Therefore there was no partition among the parties i.e. plaintiff, defendant and Sh. Ambrish Srivastav regarding second floor of the property. Defendant has further admitted that she had got constructed only the ground floor assessed for the purpose of house tax in her portion and the second floor was constructed in year 1998.
10.11 In such circumstances this court comes to the conclusion that even the case of the plaintiff is to be believed upon, also then there was no partition took place regarding the second floor of B-1/29, Vasant Vihar, New Delhi as no party to the suit has deposed that specific partition took place regarding second floor of the property. Sh. Ambrish Srivastav had appeared as PW2 also does not claim that second floor of the property was partitioned at any time among plaintiff, defendant and Ambrish Srivastav and it is also never agreed between the parties that any agreement of settlement took place regarding second floor of the said property. Ld counsel for plaintiff relied upon Roshan Singh & ors vs. Zila Singh & ors 34 (1988) Delhi Law Times 317 and submits that for the purpose of ascertaining the nature and character of possession, Ex. PW1/23 which is not a registered document, can be looked into. Since there is no mention regarding second floor of the property in Ex. PW1/23 then this judgment is not going to help the plaintiff. Moreover site plan alongwith Ex. PW1/23 is also not attached. Similarly, Suresh Mathur vs. Virendra P. Punj and Ors CS (OS) 327A/1990 is also not applicable to the facts of the present case. Ld counsel for plaintiff further relied upon Nitin Jain vs. Anuj Jain and Ors FAO (OS) NO. 37 of 2007 wherein it is held :
7. However, Court have recognised oral partitions in cases of joint families. An oral partition is not an instrument of partition as contemplated under Section 2(15) of the Stamp Act. Therefore, as it is not an instrument, on an oral partition no stamp duty is payable.CS No. 59106/16
Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 15 of 19 10.11.1 Since, plaintiff is not able to prove that any oral partition took place regarding second floor of the suit property. Therefore, this judgment is also not applicable to the present case.
10.12 Ld counsel for plaintiff further relied upon judgment Padmawati Bhalla vs. Master Sahil and ors 2017 SCC Online Del 6957 herein it was held :
10. Relevant paragraphs of the application for compromise and the orders passed by the Court have been quoted above. In the application it is specifically stated that the parties had entered into an oral family settlement and had distributed movable and immovable properties. In fact it is further stated that the parties had already been put in possession of the respective portions and the possession had been taken over. The compromise application merely records the oral family settlement to avoid any ambiguity.
Therefore, in this case the Court was not required to pass any decree of partition but only declare the existing factual position on the date when the compromise application was filed, that the parties had entered into an oral family settlement and had partitioned and separated the properties amongst themselves. It was a decree of declaration that there exists an oral family settlement that was passed and no decree that amounts to an instrument of partition under Section 2(15) of the Stamp Act was passed. Thus, the objection raised by the Registry that the appellant and other co-owners must furnish valuation report and pay stamp duty is not correct and legally tenable. However, it is clarified that in case the appellant or any of the co-sharers want to have a decree of partition prepared by the Registry, they shall have to file valuation report and also pay stamp duty."
10.13 Ld. counsel for plaintiff also relied upon Kale and others vs. Deputy Director and consolidation and others (1976) 3 Supreme Court Cases 119. However this judgment is not applicable to the facts of the present case.
10.14 Per contra, Ld counsel for defendant relied upon Aditi CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 16 of 19 Upadhyay vs. Lalit Kumar & ors 2016 (159) DRJ 643 (DB) :
14. Now, as noted above, Ex.P-1 does not make any reference to the second floor of property bearing municipal No. R-298, Greater Kailash, Part-I, New Delhi. It only refers to 1/4th undivided share of the releasers. That apart, it being well settled in a series of decisions, and we note the latest decision reported as AIR 2015 SC 6184 Yellapu Uma Maheswari & Ors. vs. Buddha Jagadheeswararao & Ors. That a compulsorily registrable but unregistered document is admissible in evidence for a collateral purpose which does not require registration.
10.15 Ld counsel for defendant relied upon Jagdish Rai vs. Tek Chand and Ors 94 (2001) Delhi Law Times 719 :
19. In the present case as noted above it is not even shown that there was any oral partition and the document does not refer to the same Necessary corollary would follow that it cannot be termed that there was an oral partition followed by memorandum of the same to be so recorded.
10.16 In the light of discussions herein above this court is of the considered opinion that plaintiff is not able to prove that he is the exclusive owner of the front portion of the second floor of property B-1/29, Vasant Vihar, New Delhi. Therefore this issue is answered against the plaintiff with these observations.
ISSUE NO. 2.
2. Whether the claim of the plaintiff is within time?
OPP
11. Onus to prove this issue was upon the plaintiff. The present suit has been filed by the plaintiff in year 2004 whereas in cause of action para no. 16 of the plaint it is the case of the plaintiff that defendant raised the construction in the portion of the plaintiff in the year 1999. Ld counsel for defendant relied upon judgment Khatri Hotels Private Limited and another CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 17 of 19 vs. Union of India and another (2011) 9 Supreme Court Cases 126. In the light of the facts of this case, this judgment is not applicable to the present case.
11.2 Ld counsel for defendant further relied upon Vijay Kumar Taneja vs. Raj Kumar Taneja & ors 236 (2017) Delhi Law Times 601. Moreover, the claim of DW1 in her testimony that she made pacca construction at second floor over the period of 6-7 months at the end of 1998. Therefore this court is of the considered view that the claim of the plaintiff is well within the limitation and this issue is answered in favour of the plaintiff with these observations.
Issue no. 3
3. Whether the plaintiff is entitled to a decree of possession and mandatory injunction in respect of the suit property? OPP
12. Since issue no. 1 is answered against plaintiff, therefore there is not entitlement of the plaintiff for any decree of possession and mandatory injunction in respect of front portion of second floor of suit property B-1/29, Vasant Vihar, New Delhi. Therefore this issue is also answered against the plaintiff.
ISSUE NO. 44. Whether the plaintiff is entitled to mesne profit? If so, at what rate and for what period? OPP
13. Since issues no. 1 and 3 both are answered against the plaintiff therefore there is no question of mesne profits. Therefore this issue is also answered against the plaintiff.
ISSUE NO. 5.
5. Relief CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 18 of 19
14. In view of the observations made herein above the suit of the plaintiff is dismissed. There is no order to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Pronounced in open Court on 09.06.2017 (Jitendra Kr. Mishra) Additional District Judge-01, NDD/PHC/New Delhi/09.06.2017kp CS No. 59106/16 Shri Rajesh Kumar Srivastava vs. Smt Arti Suden. Page no. 19 of 19