Delhi District Court
Sh. Jai Dayal vs Sh. Brahm Chand on 23 August, 2012
IN THE COURT OF SH. DEVENDER KUMAR, CCJ-CUM-ARC (WEST),
TIS HAZARI COURTS, DELHI
E-762/09
1. Sh. Jai Dayal, S/o Sh. Ramji Lal (died)
A. Sh. Mahender Singh
B. Sh. Om Prakash
Both the sons of Late Sh. Jai Dayal
2. Sh. Jeet Ram, S/o Sh. Ramji Lal (died)
A. Sh. Tara Chand (son)
B. Sh. Kartar Singh (son)
C. Sh. Satbir Singh (son)
All sons of Sh. Jeet Ram
D. Sh. Surender Singh (Grandson)
E. Sh. Surajbhan @ Kukender (Grandson)
Both are sons of Sh. Sube Singh,
S/o Sh. Jeet Ram
All resident of Village Paprawat, Delhi.
......Plaintiffs
VERSUS
1. Sh. Brahm Chand, S/o Sh. Richh Pal @ Chhotu
2. Sh. Sri Chand, S/o Sh. Deep Chand (died)
A. Sh. Rameshwar
B. Sh. Maha Ram
C. Sh. Ram Kala
D. Sh. Ram Avtar
All sons of Late Sh. Sri Chand
All resident of Village Paprawat, Delhi.
762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 1/14
3. Sh. Anand (deceased) through LRs :-
A. Smt. Saraswati Devi, W/o Late Sh. Anand
B. Sh. Raj Kumar
C. Sh. Satvinder
Both sons of Late Sh. Anand Parkash
All R/o Village Paprawat,
Delhi.
D. Smt. Suresh, W/o Sh. Dharampal
R/o Village Dolcha, Baghpat, Uttar Pradesh.
E. Smt. Roshani, W/o Sh. Rajpal Yadav
R/o H. No. 252, Gali No. 10,
Prem Nagar, Delhi.
F. Smt. Nirmala, W/o Sh. Surender Yadav
G. Smt. Billo, W/o Sh. Narender Yadav
Both residents of Village Noorpur,
Near Badshapur, Gurgaon, Haryana.
4. Sh. Hari Singh
5. Sh. Pehlad (died)
6. Sh. Inder Raj
7. Sh. Rajender
All sons of Sh. Hardwari
All residents of Village Paprawat,
Delhi.
......Defendants
Date of institution : 15/11/1991
Date of decision : 23/08/2012
762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 2/14
JUDGMENT
Vide this judgment, I shall dispose off a suit for partition and permanent injunction filed by the plaintiffs against the defendants. Brief facts of the case are as under:
1. The plaintiffs have alleged that the plot bearing no. 160 measuring 7 Biswas (350 sq yds) is the joint property of the plaintiffs and the defendants situated within the Revenue Estate of Village Paprawat, Delhi and the same is ancestral property of the parties. It is further alleged that the defendant no. 2, without the consent of the plaintiffs and without legal partition has raised construction on the portion shown yellow in the site plan and the defendant no. 1 has raised the constructions in the green portion of the site plan and the red portion shown in the site plan is lying vacant and in the use and enjoyment of the plaintiffs. It is further alleged that the plaintiffs and defendants are co-
owners and are in joint possession of the suit property as no partition by metes and bounds has taken place till date. It is further alleged that any improvement of structure or construction raised by any of the co-owner was subject to condition that in case of any legal partition, no owner would be compensated in terms of money, if any person is found in possession of the land more then his share and co-owner shall hand over the possession of the premises to the actual share holder. It is further alleged that the defendants have turned dishonest and greedy and now trying to dispossess the plaintiffs from the premises in their possession. It is further alleged that earlier the plaintiffs filed a suit for permanent injunction, but the same was dismissed as withdrawn after the advice of the concerned Judge to file a suit for partition and now this suit has been filed. It is further alleged that the defendants are trying to raise un- authorized construction in the premises without legal partition and the defendants be restrained. Plaintiffs have prayed that the suit property be partitioned by metes and wounds and the defendants be restrained from dispossessing the plaintiffs from the portion shown red in the site plan.
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2. The defendants were served and filed their Written Statement thereby alleging that this court has no pecuniary jurisdiction to entertain this suit as this valuation of the suit property is much more then the jurisdiction of this Court. It is further alleged that the plaintiffs are not in possession of the premises and this suit is without cause of action. It is further alleged that the plaintiffs have suppressed the material facts and even have not paid the appropriate Court fees and suit is liable to be dismissed. It is further alleged that the plaintiffs have not impleaded the daughters of deceased owner of the suit property and the suit is bad for non-joinder / mis-joinder of necessary parties. Defendants have denied all the allegations of the plaintiffs and have alleged that the site plan filed by the plaintiffs is not correct and sole purpose of filing of this suit is just to deprive the defendant no. 1 from use and enjoyment of his own property bearing Khasra No 163, measuring 17 Biswas i.e. 850 sq yds which is adjacent to the suit property. It is further alleged that the defendants have already filed a suit for permanent injunction with regard to the said property and the same is pending. It is further alleged that the substantial portion is in occupation of defendant no. 2 and has been constructed by him and the remaining portion is lying vacant. It is admitted that no partition of the suit property has taken place between the parties. It is further alleged that defendant no. 1 has not made any construction over the suit property and not in possession of the land more then his share. It if further alleged that the suit property is situated in Lal Dora of Village Paprawat, Delhi and is an ancestral property and jointly owned by Sh. Ramji Lal, Sh. Deep Chand, Sh. Richhpal & Sh. Hardwari, all sons of Late Sh. Ram Sahai and having equal shares in the suit property. It is further alleged that the defendant no. 1 is entitle for 1/4 th share in the suit property. It is further alleged that the suit for partition is not maintainable as Smt. Imerti and Smt. Gaindo have not been impleaded in this case and the suit is liable to be dismissed. It is further alleged that the suit filed by the plaintiffs is not maintainable as the plaintiffs have never made any 762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 4/14 request to the answering defendants for partition due to refusal is out of questions. The defendant no. 1 has prayed that this suit is liable to be dismissed.
3. The defendant no. 2 has filed his separate Written Statement thereby alleging that the similar suit is pending with the same prayer before the Court of Sh. K. S. Pal, the then Ld. Sub-Judge that this suit is liable to be stayed. It is further alleged that the valuation of the suit property is more than Rs. 1,00,000/- and no Court fees has been paid, accordingly plaint is liable to be dismissed. It is further alleged that the plaintiff has no locus-standi to file the suit as partition has already taken place between the parties on 27/02/1988 and this suit has became infractuous. It is further alleged that the suit property is ancestral property, but it is not measuring 350 sq yds (7 biswas), and the same is measuring 140 sq yds. It is further alleged that the partition of the suit property was made in the year 1964 and thereafter the defendant no. 2 has raised construction and in the year 1988, the alleged plot of measuring 140 sq yds was also partitioned. It is further alleged that the parties of this suit are the co-owners of plot measuring 140 sq yds and the parties concerned are in possession and occupation of their respective share of ancestral property and plaintiffs are entitled for 1/4th shares out of property measuring 140 sq yds only. It is further alleged that plaintiffs are in possession of their 47½ sq yds portions and possession is joint. Defendant no. 2 has denied all the allegations of the plaintiffs and has prayed that the suit is liable to be dismissed.
4. The plaintiffs have filed separate replications to the Written Statement of the defendants and have denied all the allegations leveled by them and have reaffirmed their pleadings.
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5. During the pendency of the suit, the plaintiff no. 3 expired and his LRs have been transposed as defendants.
6. As per the pleadings of the parties, this Court framed issues on 13/02/1992, a preliminary issues was framed is as under:
1. Whether the suit has been property valued for the purpose of court fees and jurisdiction?
Thereafter, vide order dated 07/02/2003 following issues were framed by this Court are as under:
(a) Whether the plaintiff is entitled for a decree of partition as prayed for? OPP.
(b) Whether the plaintiff is entitled for relief of permanent injunction as prayed for? OPP.
(c) Whether the suit is not maintainable for non-joinder and mis-joinder of statutory parties? OPD.
(d) Relief.
7. The preliminary issue has been decided by the Court vide order dated 26/02/2000 after evidence of the parties. It was concluded by the Court at the time of disposal of preliminary issue no. 1 that this Court has pecuniary jurisdiction to entertain this suit. The said order was challenged before the Hon'ble High Court of Delhi, but said revision was also dismissed.
8. To prove the remaining issues, plaintiffs have examined Sh. Om Prakash as PW2 and closed PE. The defendant no. 1 has examined D1W1 Sh. Dharam Veer, D1W2 Sh. Rameshwar Prasad, LDC, D1W3 Sh. Roshan Lal, Assistant Ahlmad and D1W4 Sh. Brahm Chand closed DE. Defendant no. 2 has examined D2W1 Sh. Maha Ram and D2W2 Sh. Sis Ram and closed DE.
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9. I have heard the arguments and perused the record. My issue wise findings are as under:
ISSUE NO. (C) I am taking up this issue first as the other issues are inter-related to this issue. Onus to prove this issue was fixed upon the defendants. To discharge the onus, the defendants have examined many witnesses and even to rebut, plaintiffs have also led their evidence. It is the admitted case of the defendants that the suit property is ancestral property of the parties and situated in the extended abadi of Lal Dora. It is also not disputed that initially the land was covered under Delhi Land Reforms Act being a bhumidari and agricultural land. Ld. Predecessor of this Court has already observed vide order dated 30/01/1999 while disposing off an application U/o 6 rule 17 CPC moved by the defendants to amend their Written Statement that the suit property is a Lal Dora property and section 50 of DLR, Act only applies either on bhumidari or Asami holdings and Lal Dora property is neither bhumidari nor Asami holding. However, the Khatoni demonstrates the names of the daughters Smt. Imerti Devi as well as Smt. Gaindo, but as per order dated 14/09/2005, the Ld. Predecessor allowed the application U/o 22 rule 4 CPC and it was observed that the female LRs mentioned in said application were not impleaded being not LRs U/s 50 of DLR, Act 1954. In fact, by this observation, the Court has cleared the dispute that this Court has jurisdiction to entertain this suit and female LR's have no right in the suit property. It has been held by the Hon'ble High Court of Delhi in Raj Kishore Tyagi Vs. Radhey Shyam & Ors., 149 (2008) DLT 754 that the suit for possession, declaration and permanent injunction with regard to the land situated in extended abadi is maintainable as the land comprised in holding would be such land which has to be used for agricultural purpose as defined under Delhi 762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 7/14 Land Reforms Act. Similar preposition has been held by the Hon'ble High Court of Delhi in Ram Kishore Vs. Jai Singh & Ors. 187 (2012) DLT 37 (DB) and Saroj Salkan Vs. Capt. Sanjeev Singh & Ors. 155 (2008) DLT 300 (DB). In view of these judgments, it is clear that even the land governed by Delhi Land Reforms Act situated in Lal Dora or extended Lal Dora abadi shall not be covered by Delhi Land Reforms Act, whereas the other provisions shall be applicable. In fact, Section 50 of Delhi Land Reforms Act, has not given any right in the bhumidari land to the female share holders. Though the PW2 has admitted during cross-examination that Sh. Jeet Ram and Sh. Jai Dayal were the sons of Sh. Ramji Lal and Smt. Imarti Devi and Smt. Gaindo were the daughters and are also entitled to plots as well as fields as mentioned in documents Mark 'A'. Despite this admission by the plaintiffs, the legal preposition is well clear and any oral testimony against the legal preposition could not be considered. As such, in the present case Section 50 bars the joinder of daughters of Late Sh. Ramji Lal in this suit and this suit is not bad for non-joinder / mis-joinder of necessary parties. Defendants have failed to discharge the onus to prove this issue and this issue is decided in favour of the plaintiffs and against the defendants.
ISSUE NOs. (a) & (b).
The onus to prove these issues was fixed upon the plaintiffs. To discharge the onus, the plaintiffs have examined PW2. PW2 has deposed that the name of his grand-father was Sh. Ramji Lal who had three other brothers namely SH. Deep Chand, Sh. Richhpal & Sh. Hardwari. It is further admitted that Sh. Jeet Ram and Jai Dayal are the sons of Sh. Ramji Lal. It is further deposed that Sh. Ramji Lal died in the year 1965-1966. It is further deposed that he has not placed on record any documents or photographs to show that he used to teather cattle or place cow-dungs on any part of plot in Khasra No. 762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 8/14
160. It is further admitted that no house has been constructed by him on Khasra No. 160. It is further admitted that he has no proof in writing that he is in possession of Khasra No. 160 except Khasra Girdwari and Khatauni. It is further deposed that Khatauni, Exh. PW1/1 does not contain the factum of possession. It is further admitted defendant no. 1 is the owner of 1/4th share in property in Khasra No. 160. It is admitted that the plaintiffs have no shares in Khasra No. 163. It is further admitted that Sh. Sri Chand has constructed some portion of Khasra No. 160, but there is no house of any other person is in existence in Khasra No. 160. It is further admitted that plot no. 160 and 163 are situated in extended Lal Dora and are in residential areas. It is further admitted that no notice of partition was ever served by the plaintiffs upon any of the defendants. It is further deposed that the site plan filed by the defendants is not correct. It is further deposed that neither partition of the suit property has taken place nor any site plan has been filed before the Court of SDM / Revenue Authorities. It is further deposed that he is in the possession of Khasra no. 160 as on today and he usually tie his cattle on some part of the portion i.e. nearly 100 sq. yds. of plot no. 160. It is further admitted that plot no. 160 had already been partitioned between Sh. Bhram Chand and Sh. Sri Chand. Again said, the property was not partitioned. It is further deposed that plot no. 160 belongs to all four brothers namely Sh. Ramji Lal, Sh. Deep Chand, Sh. Richhpal and Sh. Hardwari and no partition had taken place in the year 1988. It is denied that the partition has taken place in the year 1988. It is also denied that no compromise was ever entered between the parties in the year 1988. It is further admitted that regarding the plots bearing no. 160, 161, 162, 163 & 164, only male descendants have right to shares and females have not been given any shares. It is admitted that Sh. Sri Chand has constructed the house in his portion and not in the portions of others.
762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 9/14 D1W4 has deposed that there are four co-owners who have equal shares in the suit property measuring 7 Biswas situated in extended Lal Dora abadi of the year 1942. It is further admitted that the plaintiffs have 1/4 th share. It is further admitted that the Revenue Record of Khasra No. 160 is not containing the names of daughters. It is further deposed that he is not in possession of the suit land. It is admitted that no partition has taken place of the suit land amongst the plaintiffs and defendants. It is further admitted that the present suit is with regard to Khasra No. 160 and not with regard to Khasra No. 163 and he has no objection if the plaintiffs be given their shares out of the suit land in dispute. It is denied that Sh. Ramji Lal and Hardwari had taken some land of Sh. Deep Chand in lieu of the Deep Chand taking 160 sq. yds. out of Khasra No. 160 due to consolidation proceedings. It is admitted that he is not in possession of any part of Khasra No. 160. It is further deposed that he does not know whether any land was sold by Sh. Hardwari to Sh. Om Prakash. It is further admitted that dispute pertains to only to Khasra No. 160 and not to Khasra no. 163.
D2W1 has also deposed that he has not filed any mutation application to enter his name as per the partition. It is admitted that Sh. Ramji Lal had 1/4th share in the Khasra no. 160 and Sh. Jeet Ram and Jai Dayal are the sons of Sh. Ramji Lal who have inherited share of Sh. Ramji lal. It is further admitted that Khasra No. 160 was allotted in the consolidation of holdings to all the four co-sharers. It is further admitted that Sh. Brahm Chand is in possession of whole of the area of Khasra No. 160 except 30 sq. yds. It is further admitted that Sh. Brahm Chand had constructed the house inspite of stay granted by this Court. It is further deposed that Sh. Jai Dayal has purchased the share of Sh. Hardwari measuring 42 ½ sq. yds. It is further deposed that Sh. Jai Dayal has purchased the share of Sh. Jeet Ram. It is admitted that area of Khasra no. 160 is 7 Biswas as it was prior to 1964. It is 762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 10/14 further deposed that he has no record of the partition in the yar 1964 or 1988 with dimensions with him. It is further deposed there is a land measuring 350 sq. yds in Khasra No. 160. It is admitted that prior to the settlement the area was 350 sq. yds in Khasra no. 160. It is further admitted that defendant no. 1 is also entitled for 1/4th share in Khasra no. 160. It is further deposed that partition had taken place in the year 1988 with respect to Khasra no. 160 regarding land measuring 170 sq yds., but he has mentioned in his Written Statement that a land measuring 140 sq. yds has already been partitioned. It is further deposed that the partition was oral and no document was executed at the time of partition. It is further deposed that partition was done after measurement of land and portion of defendant no. 1 was adjacent to well and the land of Sh. Sri Chand was towards south and in the middle there were portions of Hardwari and Om Prakash. It is further deposed that neither he nor his father gave any information of partition to the Revenue Assistant. It is further deposed that there was a settlement which is mark "A", but he has not brought the original as the same is not lying with him, but no mutation was carried out after the partition. It is further deposed that the property was divided in four shares and those shares were of 42 ½ sq yds (each), but he was not present when the partition took place. It is further deposed that in the year 1988, Sh. Om Prakash purchased the property from Sh. Hardwari Lal and the sold out area was 42 ½ sq yds. It is admitted that no written document was executed at the time of transfer of the above said property. It is further disposed that Sh. Brahm Chand has forcibly taken the possession of 42 sq. yds. land which was earlier purchased by Sh. Om Prakash. It is further deposed that in the year 1964, a partition took place, but he does not know about the measurement of the land. It is further deposed that a partition suit was dismissed by Sh. Pradeep Chaddha, the then Ld. Civil Judge.
762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 11/14 D2W2 has deposed that there were four co-owners namely Sh. Ramji Lal, Sh. Deep Chand, Sh. Richhpal and Sh. Hardwari Lal and all had 1/4th share each in the suit property. It is further deposed that he does not know who is in possession of the property in question. It is admitted that 170 sq. yds. of the property was divided between the co-shares and the physical possession was handed over to all the co-sharers. It is further admitted that at that time when the property was divided, no construction was carried out by any co-sharers and remaining 180 sq. yds., out of 350 sq. yds, is in possession of Sh. Sri Chand.
10. After going through the testimonies of all the witnesses of both the parties, it is clear that the possession of the plaintiffs in the suit property is not disputed by the defendant no. 2. Even D2W2 has admitted that the plaintiffs are in possession and entitled for their equal shares in the suit property. The defendant no. 2 had taken a plea that the property has already partitioned in the year 1988, but he has failed to produce any document on record that the property was ever partitioned. Though, the DWs have deposed that the property was partitioned and shares were also allotted to all co-sharers, but no such document has been produced on record which proves that the property was partitioned. Even it has been deposed by DWs that the shares were 42 ½ sq. yds. and even they purchased the shares of each other. However, it could not be proved that any partition took place. Besides it, one more aspect which suggest that no partition took place is that on of the co-sharer i.e. Sh. Sri Chand is in possession of 180 sq. yds. Land and this fact itself suggests that no partition had taken place amongst the parties. It is an admitted fact that land measuring 7 Biswas is situated in extended Lal Dora abadi of the year 1942 and all are equal share holders of the suit property. This admission of the defendants as well as plaintiffs made it clear that the above said four persons were equal share holders of the land 7 Biswas i.e. 350 sq. yds. In fact, all the 762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 12/14 above said persons are entitled for partition of the suit property by metes and bounds.
11. So far the relief of permanent injunction is concerned, it has been disposed by the PW2 and admitted by the DWs tha the plaintiffs are in possession of the suit property. Plaintiffs are share holder in the suit property and they would suffer irreparable loss if they are dispossessed from the suit property. In facts, the plaintiffs have proved that they are entitled for the relief of permanent injunction.
12. The plaintiffs have proved that they are entitled for partition in the suit property and also for the relief of permanent injunction. I hereby pass a preliminary decree of partition thereby directing the partition of the suit property by metes and bounds. The plaintiff no. 1 and 2 shall be entitled for ¼ share jointly i.e. 1/8th share (each) and defendant no. 1 shall be entitled for ¼ share and LRs of defendant no. 2 and Sh. Hardwari Lal shall be entitled for ¼ share (each) jointly in the suit premises bearing Khasra No. 160 measuring 7 biswas, situated within the Revenue Estate of Village Paprawat, Delhi-110027. Further, by the decree of permanent injunction, the defendants, their agents, LRs, representative, attorney etc. are restrained not to dispossess the plaintiffs from the suit property bearing Khasra No. 160 measuring 7 biswas, situated within the Revenue Estate of Village Paprawat, Delhi-110027 as shown red in the site plan (Exh. C1).
To suggest the mode of partition, a Local Commissioner is to be appointed who shall suggest the mode of partition. I hereby appoint Sh. Sunil Kalra, Advocate, E-608, Karkardooma Courts, Delhi, Mob. - 9810396959 as Local Commissioner with directions to suggests the mode of partition of the property by metes and bounds and file his report as under:
762/09 Sh. Jai Dayal Vs. Sh. Brahm Chand 13/14
1. Whether suit property may be partition by metes and bounds amongst all share holders? If yes, what is the suggested mode of partition and shares?
Ld. Local Commissioner shall prepare a site plan of the suit property thereby demarcating the shares of all share holders. Ld. Local Commissioner may seek the opinion / assistance of any Architect / Expert. Fees of the Local Commissioner shall be Rs. 21,000/- payable in advance by plaintiffs. Local Commissioner is required to filed his report within the period of two weeks.
Put up on 29/09/2012 for report of Local Commissioner and for further proceedings.
Dated:-23/08/2012 (Devender Kumar)
Announced in the open Court. CCJ-cum-ARC (West)
Room No. 139, Tis Hazari Courts
Delhi.
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