Delhi District Court
Sh. Balbir Singh vs Sh. Ramesh Kumar on 2 August, 2018
IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE03,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
RCA No.13/17/15
New RCA No. 61368/16
In the matter of:
Sh. Balbir Singh
S/o Late Sh. Mam Chand
R/o H. No. 272, Mohalla Kilod.
Village Badli, Delhi. ..... Appellant
Versus
1. Sh. Ramesh Kumar
S/o Late Sh. Mangali
R/o H. No. 272, Mohalla Kilod, Village Badli, Delhi
2. Sh. Raj Kumar
S/o Late Sh. Mangali
R/o H. No. 272, Mohalla Kilod, Village Badli, Delhi ... Respondents
Appeal filed on - 03.09.2015
Judgment pronounced on - 02.08.2018
JUDGMENT
1. This is defendant's appeal against judgment and decree dt. 11.08.2015 of Ld. Civil Judge, Tis Hazari Courts, whereby and whereunder preliminary decree for partition together with a decree for permanent injunction came to be passed.
RCA No. 13/17/15 New RCA No. 61368/16 1 of 17
2. Facts may be taken note of: Late Mam Chand had two sons, namely, Sh. Mangli Ram (father of the respondents/plaintiffs) and Sh. Balbir Singh (defendant / appellant). It is the case of the plaintiffs/respondents that late Mam Chand during his life time had partitioned all his properties, except the suit property measuring 77 sq. yards situated in old Lal Dora of Village Badli, Delhi. It is claimed that the suit property is ancestral property and that the same was left joint for common use and enjoyment of parties to the lis. Plaintiffs/ respondents aver that the parties have been using and enjoying the suit property (wherein they claim to have ½ share) and of which no legal partition by metes and bounds has yet taken place. They thus assert that there inheres no right in defendant/appellant to raise any permanent construction on the property. When defendant/appellant started to dig the foundation in order to raise structure sans plaintiffs'/ respondents' consent, a police complaint came to be lodged. On police advice to approach the civil court, plaintiffs/ respondents filed the suit for partition and permanent injunction seeking to restrain the defendant/ appellant from raising any construction and parting with the possession of the suit property.
3. In his written statement, defendant/appellant submitted that suit property was the subject matter of partition more than two decads ago and that in that partition the suit property had in fact come to his share. He elaborates this by stating that the suit property comprised of a larger ancestral plot measuring 580 sq. yards, which was partitioned between him and plaintiffs/respondents about 20 years ago by metes and bounds. In the partition, an area of 235 sq. yards (out of the plot of 580 sq. yards) (shown in red in defendant's/appellant's site plan Ex. PW1/D1) fell to his share; whereas an area of 270 sq. yards (out of the plot of 580 sq. yards) (shown in green colour in RCA No. 13/17/15 New RCA No. 61368/16 2 of 17 defendant's/appellant's site plan Ex. PW1/D1) fell to the share of the plaintiffs/respondents and a passage about 80 sq. yards (in yellow colour in the site plan Ex. PW1/D1) had been left for common usage. Thus, as per the appellant/defendant, the suit property measuring 77 sq. yards is actually part of his share (defendant's/appellant's share) of 235 sq. yards that was allotted to him in the partition. Defendant/appellant asserts that even after partition by metes and bounds, plaintiffs/respondents are in possession of an area more than him. He avers that the suit property exclusively belongs to him and he is using the same for tethering his cattle and that for this purpose he had constructed a pucca wall, a tin shed and floor, in addition to obtaining water and electricity connections. He further avers that the plaintiffs/appellants have never been in use and occupation of the suit property measuring 77 sq. yards. He points out that owners of the adjoining properties namely Sh. Dalip Singh etc. had sued his father for injunction; that another suit between him and said Sh. Dalip Singh and others is presently sub judice. Besides the aforesaid, he states that the suit is improperly valued for court fees and jurisdiction as the suit property is worth more than Rs. 10 lacs and that suit is sans any cause of action. He sought dismissal of the suit.
4. Plaintiffs/respondents filed their replication. In their replication, they refuted the averments of the defendant/appellant. They stated, "It is denied that there was an ancestral plot measuring 580 Sq. Yds. situated at Mohalla Kilod Pana within the old abadi of Village Badli, Delhi. It is further submitted that the total land which was partitioned between the plaintiffs and the defendant was 628 Sq. Yds. and the land in dispute was left joint and common and the same was not partitioned between the plaintiffs and defendant. It is denied that the portion shown in red colour in the site plan attached came into RCA No. 13/17/15 New RCA No. 61368/16 3 of 17 the share of the Defendant which is measuring about 235 Sq. Yds. It is further submitted that the Plaintiff were given 286 Sq. Yds. in the said family partition as has been alleged by the Defendant. It is further submitted that it is correct that the common passage was left by the parties for common use. It is further submitted that it is denied that even after partition by metes and bounds the plaintiffs and in occupation of more area than the Defendant. It is further submitted that the Defendant has concealed the fact that in the said family partition the Defendant was allotted a residential plot measuring 197 Sq. Yds. which has been shown in the site plan as AnnexureB and thus the total land which was allotted in the family partition to the Defendant was 342 Sq. Yds. while the plaintiff were allotted only 286 Sq. Yds. but inspite of that the Plaintiff did not feel aggrieved. It is further submitted that the plot in dispute was left for common use and enjoyment and the same was not partitioned at all between the plaintiff and defendant. It is further submitted that in the above said fact and circumstances the Defendant was allotted excess land which the defendant was entitled in the said family partition. The above said facts of allotment of property as has been mentioned in AnnexureB has been concealed by the Defendant only to mislead this Hon'ble Court and to grab the portion which is in dispute in the present case. It is further submitted that in the said family partition which has been alleged by the Defendant, the plot in dispute was not partitioned at all." They go on to add that it was after filing of the suit that defendant/appellant raised the pucca construction and put up the tin shed. As regards the civil suits with Dalip Singh and others they feign ignorance and state that they were/are not parties to the same. Thy reassert that the suit property is a joint and common and that the same was used commonly and jointly by the parties to the lis. They deny other averments of the RCA No. 13/17/15 New RCA No. 61368/16 4 of 17 defendant/appellant as set out by him in his written statement.
5. Issues, framed on 05.08.2010 by Ld. Trial Court, are as follows:
1. Whether the plaintiff and defendant are coowners of the suit property measuring 77 Sq. Yards? OPP
2. Whether the plaintiff is entitled to decree of partition and separate possession of half share in the suit property as prayed for? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction? OPP
4. Whether the suit of the plaintiff is not properly valued for the purpose of court fees and jurisdiction? OPD.
5. Relief.
6. Plaintiffs/respondents in their evidence before Ld. Trial Court examined three witnesses, who are as follows: PW1 Ramesh (plaintiff no.1). He deposed entirely along the same lines as averred in the plaint.
PW2 Mahesh Chand Sharma. He deposed that he is a resident of the village and late Mam Chand had partitioned all properties except the suit property measuring 77 sq. yards. He further deposed that the suit property was left joint for common user and enjoyment and that the same is ancestral property of the plaintiffs/respondents and defendant/appellant and both have ½ share each.
PW3 Ram Kishan. He deposed that he is a resident of the village and late Mam Chand had partitioned all properties except the suit property measuring 77 sq. yards. He further deposed that the suit property was left joint for common user and enjoyment and that the same is ancestral property of the plaintiffs/respondents and defendant/appellant and both RCA No. 13/17/15 New RCA No. 61368/16 5 of 17 have ½ share each.
7. Defendant/appellant Balbir (DW1) was his sole witness. His deposition runs along the same lines as his averments in his written statement.
8. Ld. Trial Court was of the view that plaintiffs/respondents were able to prove through PW1 and PW2 that late Mam Chand never partitioned the suit property measuring 77 sq. yards. Ld. Trial Court reasoned that this conclusion stood corroborated from the fact that in the alleged partition, sans any explanation, defendant/appellant had been allotted 145 sq. yards of excess land and that it was for him (defendant/appellant) to explain as to how his late father acted favourably towards him while depriving plaintiffs'/respondents' father of an equal share. On this footing, Ld. Trial Court was of the opinion that plaintiffs/respondents and the defendant were coowners of the suit property measuring 77 sq. yards. Thus, on issues no. 1, 2 and 3 Ld. Trial Court returned a finding in favour of the plaintiffs/respondents. On issue no. 4 Ld. Trial Court held that the suit had been properly valued for the purposes of court fees and jurisdiction. Ld. Trial Court observed that the defendant/appellant (DW1) in his crossexamination conducted on 23.05.2015 deposed that at the time of institution of the suit the suit property was valued Rs. 2 lacs. It further observed that no material was there on record to show that defendant/appellant was in exclusive possession of the suit property.
9. Arguments heard. Record perused.
10. Before proceeding further, it would be apposite to take a note of portions of crossexamination of PW1 Ramesh (plaintiff no.1/respondent no.1).
"It is correct that the construction shown in green colour belongs to us RCA No. 13/17/15 New RCA No. 61368/16 6 of 17 while that in red colour belonged to the defendant in Ex. PW1/D1 (as exhibited today). My grandfather namely Mam Chand had two sons and four daughters.
Witness is shown the site plan, Ex. PW1/D1. The partition of the properties as shown in red and green colour in the site plan was effected in the year 1984 between my father and my Chacha (Vol. Partition was effected by my grandfather and I was present then). The area of the property as shown in green colour and marked in red ink today as ABCD which is in our possession is 286 Sq. Yds. The area in red colour marked as EFGH today is 145 Sq. Yds. The suit property marked as IJKL today in red ink measures 77 Sq. Yds. Apart from this property, the partition was also effected for plot No. 32 measuring 197 Sq. Yds. and this plot fell to the share of my Chacha i.e. the defendant. In the said partition, no share was made or given for or to my four Aunts i.e. (Buas). It is wrong to suggest that I had sold any plot belonging to Gram Sabha (Vol. It was sold by my grandfather itself). The compensation in lieu of the acquisition of the agricultural land of my grandfather was paid equally to my father and the defendant. It is correct that my Buas had made a statement in the court stating that they have no objection for the compensation so released in favour of my father and the defendant. It is correct that one of my Buas Smt. Bimla Yadav had instituted a suit for partition of the whole property shown in the site plan, Ex. PW1/D1 as well as for plot No. 32 and both the parties are also party to that suit. I have not filed any reply/written statement in the said suit. It is correct that Sh. Sumer Singh and Sh. Subey Singh had instituted a suit against my grandfather. It is also correct that the defendant has subsequent to RCA No. 13/17/15 New RCA No. 61368/16 7 of 17 the decision of the said suit instituted another suit against the said two persons. Witness is confronted with photographs Ex. PW1/D2, to Ex. PW1/D12. It is correct that photographs depict the suit property, the defendant and his wife. It is correct that the buffaloes shown in Ex. PW1/3 to Ex. PW1/9 belong to the defendant.
Q. I put to you that the suit property was used since beginning by the defendant to tie his buffaloes after partition. What you have to say? Ans. It was used to tie the buffaloes of both the parties but now only the buffaloes of the defendant are tied there (Vol. I do not have any buffalo).
I do not have any photograph or document to show that my buffalo has ever been tied in the suit property.
Witness is shown Ex. PW1/D13 (filed today) i.e. the written statement in suit No. 875/10. The signatures at points A are mine. Witness is shown Ex. PW1/D14 (filed today) i.e. the suit filed by the defendant against the neighbours in respect of the present suit property. I am aware about the suit.
11. Plaintiffs/respondents contend that although there had been a partition in year 1984 of the properties between their father and the defendant/appellant, yet the suit property measuring 77 square yards was left joint for common use and common enjoyment. Thus, what the plaintiffs/respondents are essentially contending is that the partition effected in 1984 was a partial partition and not a complete partition. Under Hindu Law, moment a partition is effected, there is a division or splitting up of a joint Hindu Family. It is in essence disruption of undivided coparenery in a joint family. Partition involves severance of community of interest and severance of status. However, there may as well be a RCA No. 13/17/15 New RCA No. 61368/16 8 of 17 partial partition. All coparceners may, with consent, partition a portion of the property, dividing it amongst themselves, and at the same time, maintain a joint status with respect to rest of the property (Ramalinga vs. Narayana, AIR 1922 PC 20; Jagmohan vs. Ranchhodas, AIR 1946 Nagpur 84).
However, depsite the permissibility of partial partition by agreement among all coparceners, where a partition in a joint family takes place, the presumption will be that it is a complete partition, both with respect to its members as well as its properties and where a person alleges that it was a partial partition regarding property or persons, it is he who will have to prove it. In the case of Kesharbai vs. Tarabai Prabhakarrao Nalawade & Ors., (2014)4 SCC 707 it was observed, "In this case the trial court as well as the High Court held that there was a complete partition in the year 1985. Therefore, the presumption would be that there was a complete partition of all the properties. Consequently, the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property." Therefore, in the case at hand, the presumption would be that complete partition of all the properties had been effected way back in year 1984 and it would be for the plaintiffs/respondents to rebut this presumption.
12. The moot question which therefore arises is whether the plaintiffs/respondents have been able to rebut this presumption. Taking into account the evidence led before Ld. Trial Court, what is clear is that plaintiffs/respondents have miserably failed to rebut this presumption. In the very first place, there is absolutely no explanation as to why the suit property was left out of the partition effected in 1984. After all, where a partition is being effected of the properties and disruption of undivided coparcenary takes place, there would have to be some reason for excluding a particular property from the RCA No. 13/17/15 New RCA No. 61368/16 9 of 17 ambit of partition. In other words, it is difficult to comprehend as to why when partition is being effected of all the properties, a particular property would be excluded from partition sans any plausible reason/explanation. In the case at hand, plaintiffs/respondents offer no explanation whatsoever to say as to why the suit property in particular was left out of partition way back in year 1984 when all other properties were partitioned. The self serving ipse dixit of plaintiff no.1 Ramesh (PW1) that partition effected in 1984 was only a partial partition would not suffice. PW2 and PW3 can hardly be witnesses of the fact that the suit property measuring 77 sq. yards had been excluded from the partition in 1984. The partition of 1984 was not effected in the presence of PW2 and PW3. PW2 and PW3 do not in their evidence state that the partition of 1984 had taken place in their presence. Further, PW2 and PW3 conceded in their respective crossexaminations that they were not aware 'about any case filed by the defendant against the adjacent neighbourers namely Sumer Singh and Sube Singh for closing the Parnalas'. The Trial Court record reflects that a litigation between appellant / defendant on the one hand and his neighbours Dalip Singh, Sumer Singh and Sube Singh on the other hand had commenced in July 1992 and this is evident from the certified copy of the plaint Ex.PW1/D 14 : MarkA. It does appear that by way of this litigation defendant / appellant had sought to restrain his neighbours from raising construction in the property adjoining the suit property. A perusal of the certified copy of the plaint Ex.PW1/D14 : MarkA also reflects that in 1977, there had been a litigation between father of defendant / appellant and the neighbour Dalip Singh for closing the parnalas. The fact of the matter therefore is that PW2 and PW3, residents of the same village, being unaware of the litigations between the defendant / appellant and his father on the one hand and his neighbours on the other hand only goes to show that their assertion that partial partition had RCA No. 13/17/15 New RCA No. 61368/16 10 of 17 taken place in 1984 wherein the suit property had been left out cannot be relied upon. Here, it may also be mentioned that plaintiff no. 1 Ramesh (PW1) has been economical with truth. Before Ld. Trial Court he gave evidence to the effect that partial partition had taken place in 1984; whereas in another litigation initiated by his aunt / bua Smt. Bimla Devi for partition of properties he gave written statement inter alia to the effect that no partition of the suit properties had taken place. Further, in his crossexamination he stated that he did not file his written statement in the civil litigation initiated by his aunt / bua Smt. Bimla Devi. However, in later part of his crossexamination, when confronted with certified copy of his written statement (Ex.PW1/D13) he admitted that the same bore his signatures. Therefore, taking a holistic view of the material / evidence available on the Trial Court record, this Court is of the view that the plaintiffs / respondents failed to rebut the aforesaid presumption.
13. There is another aspect of the present matter. The suit property measuring 77 sq. yards is part of a larger plot measuring 580 sq. yards and the entire property (larger plot) measuring 580 sq. yards bears house no. 272. The entire plot measuring 580 sq. yards, therefore, seems to be a common plot. The present suit is for partition of only 77 sq. yards. If the partition effected in 1984 was not done in an equitable manner as alleged, it is diffcult to comprehend as to why partition of the entire plot of 580 sq. yards was not sought.
14. Next, the plaintiffs/respondents contend that defendant/appellant had been allotted excess land than what he was entitled to in the said family partition way back in year 1984. To be precise, as per the plaintiffs/respondents, total land allotted to defendant/appellant in the family partition was 342 square yards, while they (plaintiffs/respondents) were allotted only 286 square yards. It may mentioned here that there was no such RCA No. 13/17/15 New RCA No. 61368/16 11 of 17 averment in the plaint of excess land having been alloted to defendant / appellant. Such an averment came to be made only in the replication. Defendant/appellant got excess land, it was contended, because he was allotted a residential land of 197 square yards. However, this contention is hardly an explanation for excluding the suit property, out of all the properties, from the ambit of partition. This contention hardly advances the case of the plaintiffs/respondents. In partition, it is not necessary that the area of land allotted to each one would be identical. Cases are not unknown where the area of land allotted to cosharers have been unequal. In fact, this alleged unequal distribution in the partition of 1984 was all the more reason to include the suit property also within the ambit of partition. The point is if the distribution in 1984 was unequal then this was all the more reason to include the suit property within the ambit of partition for this would have helped in evening out the scales. In Apporva Shantilal Shah, HUF vs. Commissioner of Income Tax Gujarat1, Ahmedabad, (1983)2 SCC 155 it was held that a partial partition of any joint family property by the father between himself and his sons does not become invalid on the ground that there has been no equal distribution amongst the cosharers. It was further held that if however, any such partial partition causes prejudice to any of the minor sons and if he feels aggrieved by any such partial partition, he can always challenge the validity of such partial partition in an appropriate proceeding and the validity of such partition will necessarily have to be adjudicated upon in the proceeding on a proper consideration of all the facts and circumstances of the case. Apex Court went to hold that till such partial partition has been held to be invalid by any competent court, the partial partition must be held to be valid. In Apoorva Shantilal (supra) it was observed: RCA No. 13/17/15 New RCA No. 61368/16 12 of 17 "If the father does not act bonafide in the matter when he effects partition of joint family properties between himself and his minor sons, whether wholly or partially the sons on attaining majority may challenge the partition and ask for appropriate reliefs including a proper partition. In appropriate cases even during minority the minor sons through a proper guardian may impeach the validity of the partition brought about by the father either in entirety of the joint family properties or only in respect of part thereof, if the partition had been effected by the father to the detriment of the minor sons and to the prejudice of their interest."
15. Validity of the partition effected in 1984 was never challenged. On the appeal file, I find that both the plaintiffs herein alongwith their Aunts/ Buas had filed a suit in year 2001 against the defendant / appellant and which was rejected under Order VII Rule 11, CPC vide order dt. 15.10.2008 of Ld. Civil Judge. If the plaintiffs/ respondents could file such a suit, then it is difficult to comprehend as to why they never woke up from their slumber to challenge the validity of the partition of 1984. Alternatively, it may very well be asked as to why within a reasonable time the plaintiffs/ respondents never approached the Court with the plea that the partition was inequitable and that to even out the same the suit property be divided to put them on equal level. Rather the partition effected in 1984 is being put out as a partial partition without any explanation as to why the the suit property in particular was left out from the ambit of partition. The argument that area of land was unequally distributed in 1984 was in fact all the more reason not to exclude the suit property from within the ambit of partition way back in 1984 for this would have only evened out the scales between the cosharers. That apart, at no point of time was the validity of the socalled partial partition effected in 1984 challenged before any forum. Further, PW1 in his crossexamination admitted that compensation in respect of acquisition of land was shared equally between his father and defendant / appellant. This too only goes to show that there was complete RCA No. 13/17/15 New RCA No. 61368/16 13 of 17 partition. Further, the fact that a common passage (in yellow colour in the site plan Ex.PW1/D1) having 'L' shape was earmarked goes a long way to establish that the partition effected way back in 1984 was complete and that the suit property too was subject matter of that partition. The reason being that if the suit property measuring 77 sq. yards had to be left joint and for common usage of the parties, I see no reason as to why the 'L' shaped passage in yellow colour had to be kept aside. The fact that this 'L' shaped passage was earmarked only reaffirms the view that the partition of 1984 was complete. Further, perusal of the material / evidence on the Trial Court record would, on preponderance of probabilities, reflect that possession of the suit property measuring 77 sq. yards has been all along with the defendant / appellant. This aspect as regards possession of the suit property measuring 77 sq. yards would be adverted to in later part of this judgment. The bottom line of this discussion so far is that the respondents / plaintiffs have miserably failed to rebut the aforesaid presumption under the law. Leave aside there being rebuttal of presumption, the material on record clearly suggest that there was no partial partition. Thus, on issue no. 1 this Court holds that plaintiffs/ respondents failed to prove that they are coowners of the suit property measuring 77 sq. yards with the defendant / appellant. Findings on issue no. 1 of Ld. Trial Court are accordingly reversed.
16. Issue no. 2, as framed by Ld. Trial Court was whether plaintiffs are entitled to partition and separate possession of half share of the suit property measuring 77 sq. yards. The outcome of issue no. 1 would necessarily entail that plaintiffs / respondents are not entitled to partition and separate possession of half share of the suit property measuring 77 sq. yards. There is one more reason to decide this issue against plaintiffs/ respondents. Perusal of RCA No. 13/17/15 New RCA No. 61368/16 14 of 17 the material / evidence on the Trial Court record would, on preponderance of probabilities, reflect that possession of the suit property measuring 77 sq. yards has been all along with the defendant / appellant. Plaintiffs furnished no material whatsoever on record to show that they had ever been in possession of the suit property or in joint possession thereof. Plaintiff no. 1 Ramesh (PW1) in his crossexamination conceded that the defendant / appellant was in possession of the suit property. He admitted that defendant / appellant was using the suit property to tether his buffaloes. However, in the same breath he added that both the parties used to tie their buffaloes, but now only defendant's buffaloes are tethered there. This self serving ipse dixit that he too used to tether his buffaloes there will not be accepted without any supporting material. That apart, some construction was raised in the suit property measuring 77 sq. yards by the defendant. This raising of construction by the defendant only goes to show that the defendant / appellant was in possession of the suit property. Furthermore, the previous litigation (Ex.PW1/D14: MarkA) referred to hereinabove was initiated by defendant / appellant Balbir Singh in 1992. This was with respect to some construction being done by the neighbours of defendant / appellant in the building right adjacent to the suit property. In that litigation, the plaintiffs/ respondents were not parties. The fact of the matter is that it was the defendant/ appellant who was aggrieved by the construction being raised accross the suit property and it was he who had initiated that litigation. The plaintiffs/ respondents perhaps had no concern with such construction being raised accross the suit property and for this reason they had no grievance and consequently they neither initiated any litigation against the neigbhours nor lodged any complaint against them. This is notwithstanding the fact that plaintiffs/ respondents were aware of those litigation(s) between the defendant/ appellant and his neigbhours and PW1 Ramesh very much concedes RCA No. 13/17/15 New RCA No. 61368/16 15 of 17 this in his crossexamination. This only goes to show that the material on record, on preponderance of probabilities, establishes that the suit property has been in possession of the defendant/ appellant for a very long time and at least since 1992. That apart, on the aspect of possession of the suit property, I see no reason to doubt the deposition of the defendant/ appellant (DW1) that he has been in possession of the suit property since 1984. Given this background, the suit of the plaintiffs/ respondents filed in year 2006 seeking partition of the suit property would be clearly time barred in view of Article 110, Limitation Act. Relevant would it be to mention here that under section 3 of Limitation Act, the court is bound to look into the aspect of limitation although the same has not been set up as a defence. On issue no. 2, the findings of Ld. Trial Court are reversed and it is held that plaintiffs / respondents are not entitled to a decree for partition and separate possession of the suit property measuring 77 sq. yards.
17. As regards issue no. 3, the decision on the aforesaid issues necessarily entail that plaintiffs/ respondents are not entitled to the relief of permanent injunction as sought. The decision of Ld. Trial Court on issue no. 3 is also reversed.
18. Now coming to issue no. 4, defendant / appellant (DW1) in his cross examination conceded that the market value of the property in question was less than Rs. 2 lacs. Consequently, the valuation for the purpose of pecuniary jurisdiction for the relief of partition which was put at Rs. 2 lacs by plaintiffs / respondents can certainly not be faulted with. The valuation for pecuniary jurisdication for the relief of permanent injunction at Rs. 130/ also cannot be faulted with. Accordingly, on the aspect of pecuniary jurisdiction this court affirms the findings of Ld. Trial Court.
RCA No. 13/17/15 New RCA No. 61368/16 16 of 17
19. However, on the aspect of court fees this court is not in agreement with the observations of Ld. Trial Court. Ld. Trial Court was of the view that no material has been placed on record to show that defendant / appellant is in exclusive possession of the suit property and consequently affixation of fixed court fees for the relief of partition was correct. However, it has been held hereinabove that plaintiffs/ respondents were not in possession of the suit property as on date of filing of the suit. Consequently, the plaintiffs/ respondents were required to affix ad valorem court fees on the half share claimed by them i.e. on Rs. 1 lac.
20. In view of the findings hereinabove, the appeal of the defendant / appellant stands accepted. The suit of plaintiffs / respondents stands dismissed. Plaintiffs/ respondents shall deposit the deficient court fees with the Ld Trial Court within six weeks from today and if not so deposited Ld. Trial Court shall do the needful as per law. Decree sheet be drawn up. Trial Court record be sent back with a copy of this judgment. Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN Digitally signed
by MURARI
MURARI
COURT ON 02.08.2018
PRASAD
PRASAD SINGH
Date:
SINGH 2018.08.02
16:30:53 +0530
(M. P. SINGH)
ADJ03 (CENTRAL)
TIS HAZARI COURTS
DELHI
RCA No. 13/17/15
New RCA No. 61368/16 17 of 17