Delhi District Court
Sh. Mirajuddin vs Md. Arif on 30 August, 2024
IN THE COURT OF MS. TAPASYA AGARWAL,
ACJ/CCJ/ARC(WEST) TIS HAZARI COURTS, DELHI
CS SCJ No. 333/2013 8613/2016
SH. MIRAJUDDIN VS. MD. ARIF
CNR NO. DLWT03-000029-1997
IN THE MATTER OF:
SHRI MIRAJUDDIN (NOW DECEASED)
THROUGH HIS LEGAL HEIRS:
1. MOHD RIAZ
2. MOHD WAZEER
3. MOHD SHAMSHAAD
4. MOHD RAEES
5. MOHD SIRAJ
6. MOHD NAFEES
7. MOHD BILAL
ALL SONS OF LATE SH. MIRAJUDDIN
8. MS YASMEEN
9. MS. RUKHSAAR (MINOR)
THE MINOR DAUGHTER THROUGH HER MOTHER,
NEXT FRIEND AND NATURAL GUARDIAN MST.
FIROZA BEGUM
10. MS. ZAKIA
11. MS SAFIA
ALL DAUGHTERS OF LATE SH. MIRAZUDDIN
12. MST. FIROZA BEGUM
W/O- LATE SH. MIRAZUDDIN
ALL R/O- H.NO.1584, GALI BADI PIPAL WALI,
PAHARI BHOJLA, TURKMAN GATE,
1 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016
DELHI-110006.
... PLAINTIFFS
Versus
1. MOHD ARIF
(NOW DECEASED BEING REPRESENTED THROUGH
HIS LRS)
(I) MOHD SHAHID (SON)
(II) MOHD ZAHID (SON)
(III) MOHD SHEHZAD (SON)
(IV) MOHD JAVED (SON)
(V) MOHD SUWALIN
(VI) MS. SHAHIDA (DAUGHTER)
(VII) MS. RANI (DAUGHTER)
ALL R/O- 1693, PAHARI BHOJLA GALI,
SAYYADAN, BAZAR CHITLI QABAR,
DELHI-110006.
ALL THE ABOVE LEGAL HEIRS ARE OF LATE MOHD.
ARIF ARE FROM HIS FIRST WIFE NAMELY MST.
HOOR BANO.
(VIII) MOHD NANNU (SON)
(IX) MOHD ARSHI (SON)
(X) MOHD ASIM (SON)
ALL R/O- 1579, GALI PIPAL WALI, PAHARI BHOJLA,
DELHI-110006.
ALL THE ABOVE LEGAL HEIRS FROM (VIII) TO (X)
ARE OF LATE MOHD. ARIF ARE FROM HIS SECOND
WIFE.
2. SH. ZAINUL ABIDIN
S/O- LATE SH. MOHD SABREEN
R/O- H.NO.1679, GALI SAYYEDAN,
PAHARI BHOJLA, JAMA MASJID,
DELHI-110006.
2 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016
3. SH. AZIZUDDIN
S/O- LATE SH. MOHD SABREEN,
R/O- H.NO.994, GALI NO.31,
JAFRABAD, SEELAMPUR,
SHAHDARA, DELHI-110032.
4. SMT. KAUSAR (DECEASED)
THROUGH HER LRS
(I) KHALEEL (SON)
(II) VAKEEL (SON)
(III) WASIM (SON)
(IV) REHANA (DAUGHTER)
(V) RUKSANA (DAUGHTER)
(VI) FARZANA (DAUGHTER)
(VII) SHABLI (DAUGHTER)
(VIII) SHABANA (DAUGHTER)
(IX) SHAHEEN (DAUGHTER)
ALL R/O- H.NO.43, GALI KABABIAN
MATIA MAHAL, JAMA MASJID,
DELHI-110006.
5. SMT. QAISER
W/O- SH. ZAHUR AHMED
R/O- H.NO.1584, GALI PEEPAL WALI,
PAHARI, BHOJLA, JAMA MASJID,
DELHI-110006.
6. SH. RAI SINGH
R/O- H.NO.A-1/19, GALI NO.1,
EAST GAKALPUR, AMAR COLONY,
DELHI-110053.
...DEFENDANTS
DATE OF INSTITUTION : 19.07.1997
DATE OF RESERVING THE ORDER : 20.08.2024
DATE OF DECISION : 30.08.2024
DECISION : DISMISSED
3 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016
SUIT FOR PARTITION
JUDGMENT
BRIEF FACTS 1.1 Vide this judgment, I shall dispose off the present suit for partition which has been in the judicial system for over 25 years, witnessed change of many courts, presiding officers and has spanned across generations. To encapsulate the facts of the suit in a nutshell, it is that the Plaintiff and also the defendants No.1 to 3 are the sons of Late Shri Mohd. Sabreen, and the defendants No.4 and 5 are the married daughters of the said deceased Late Shri Mohd. Sabreen. Allegedly, Sh. Mohd. Sabreen was the owner of the following immovable properties during his lifetime.
(a) Property No.994, Gali No.31, Jafferabad Seelampur, Shahdara, Delhi.
(b) Property No.996, Gali No.31, Jafferabad Seelampur, Shahdara, Delhi,
(c) Plot admeasuring 300 Sq. Yds., being Ho.A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi.
1.2 Further, as per submission, Late Shri Mohd. Sabreen was also a tenant of the following properties:-
(I) Property No. C-887, Masjid Bombay Wali, Haveli Azam Khan, Jama Masjid Delhi.4 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 (II) House No.853/854, Gali Farah Vali, Haveli Azam Khan, Jama Masjid Delhi.
1.3 In addition to the aforesaid, the deceased Late Shri Mohd. Sabreen had allegedly also left behind him the moveable properties as under, which are in power and in possession of the Defendant No.1.
(I) Gold Ornaments weighing about 10 Tolas.
(II) Cash amounting to Rs.9,000/-&house-hold articles including worth Rs.50,000/- which includes Refrigerator, Electronic Gadgets and about 80 kilos of copper vessels.
1.4 As per the plaint, all the abovementioned properties of Late Shri Mohd. Sabreen are in power and in possession of the defendants and only a portion of the property being Shop and a basement known as 994, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi is in possession of the Plaintiff.
1.5 It is further averred that the predecessor in interest of the Plaintiff Late Shri Mohd. Sabreen died intestate at Delhi in the year 1985 leaving the Plaintiff herein and the defendants legal heirs of the deceased and there is no other legal heirs except the above- mentioned to the estate of the deceased.
1.6 After the death of Late Shri Mohd. Sabreen, all the defendants filed a suit for declaration against the plaintiff, whereby they sought declaration of the shop bearing No.1476, Bazar Chitli 5 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Qabar, Jama Masjid, Delhi that all the legal heirs of the deceased Mohd. Sabreen have become the tenant by operation of Law, but the defendants later on withdrew the said case whereby admitting the plaintiff as the direct tenant under the land lord in respect of the said shop.
1.7 It is alleged that the plaintiff has been requesting all the defendants to partition the abovementioned moveable and immoveable properties left by the deceased Mohd. Sabreen, but the defendants are postponing the matter on one pretext or the other. The Plaintiff had also served upon the defendants a legal notice for partition of the abovementioned properties dated 10-5-1988 calling upon them to partition the properties among all the legal heirs of the deceased, but they failed to comply with the said notice. The Plaintiff also had been orally requesting them time and again to partition the abovementioned properties, but the defendants refused.
2. Based on the abovesaid facts, the plaintiff prayed for following reliefs:-
(a) A Preliminary Decree in favour of the Plaintiff and against the defendants declaring the share of the parties in the abovementioned properties and the final decree thereafter may also kindly be passed whereby the immoveable properties are partitioned by metes and bounds and moveable properties are 6 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 devided.
And/or If the properties are found by this Hon'ble Court not capable of being partitioned in that event the properties may kindly be put to public Auction and the sale proceeds may be divided among the legal heirs of the deceased Late Shri Mohd. Sabreen, the parties hereto i.e., the plaintiff and the defendants.
(b) Such other, further relief/s in the facts and circumstances of the case as this Hon'ble Court may deem fit and necessary may also kindly be be passed in favour of the Plaintiff.
3. Summons of the suit were issued to the defendants and they entered their appearance before the Court and filed their WS. However, defendant no.2 was proceeded ex-parte vide order dt. 27.01.1998 when he did not appear the court despite service of summons.
WRITTEN STATEMENT ON BEHALF OF DEFENEDANTS NO.1 & 3 4.1 The defendants no.1 & 3 in their WS submitted that the 7 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 present suit is liable to be dismissed as the plaintiff has not come with clean hands before the Court and has suppressed the material facts from the Court. It is alleged that the suit is also liable to be dismissed on the ground that the plaintiff has compromised with the defendants in suit No. 501/85 titled as Mohd. Arif & others Vs Suhail Ahmed & others which was decided by the learned Court of Shri D.C. Anand, Civil Judge, Delhi, on 17.3.1992.
4.2. It was further averred that the plaintiff has no title or interest in the suit property and has already received his share and is in occupation of shop No. 1476 along with the articles of about Rs 1 lakh.
4.3. Furthermore, the plaintiff has not impleaded the necessary party in the suit and the plaint is liable to be dismissed for non-joinder and mis-joinder of the necessary party that is the second wife of Shri Mohd. Sabreen and her children namely Mrs Mohd. Asif and Miss Shabina Begam.
4.4 In their WS, defendants no.1 & 3 denied the ownership of Shri Mohd. Sabrin qua property No. 996, Gali No. 31, Jafarabad, Seelampur, Delhi. It was submitted here that this property belonged to defendant No. 1 whereas property No. 994, Gali No. 31, Jafarabad, Seelampur, Shahdra, Delhi, was given to Azizuddin and Smt. Kausar as per the Compromise executed by the plaintiff in Court. It was further averred that plot measuring 300 sq. yds. bearing No. A/12, Khasra No. 630, situated at Gokalpuri, East 8 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Delhi, had already been sold and every legal heir has received his/her share.
4.5 As per the WS filed by defendants no.1 & 3, in property No. 0-887, Masjid Bombay-Wali, Haveli Azam Khan, Jama Masjid, Delhi, defendant No. 5 is residing as a tenant and in property No. 853-54, Gali Farash Wali, Haveli Azam Khan, Jama Masjid, Delhi, defendant No. 1 is residing as a tenant. In addition, there is complete denial that the deceased left behind any movable properties as stated in the plaint which is in possession of defendant No. 1.
4.6 It was further submitted that the plaintiff is in possession of shop No. 1476, since the death of his father along with goods worth Rs 1 lakh. The plaintiff is also in possession of house No. 994, Gali No. 31, Jafarabad, Seelampur, Delhi, and shop No. 35-B, Block No. J, Hathi Kháng Phase I, Ashok Vihar, New Delhi, and is also in possession of house No. 1584, Gali Peepalwali, Pahari Bhojla, Delhi, which he has acquired from the profit of business of father and he has not given any share to any other legal heir. It was denied that the defendants admitted the plaintiff as a direct tenant of shop No. 1476, Bazar Chitli Qabar, Jama Masjid, Delhi. As per their submission, no question of partition arises as the property which he has mentioned in the plaint, is tenanted property and all the defendants are residing as tenants in the property.
9 / 31Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 REPLICATION TO THE WS OF DEFENDANT NO.1 & 3 5.1 The plaintiff reiterated his stand taken in his plaint which is not being reproduced for the sake of brevity.
WRITTEN STATEMENT ON BEHALF OF DEFENDANTS NO.4 &5 6.1 The defendants no.4 and 5 in their WS stated that this Hon'ble Court has got no jurisdiction to try and decide the above mentioned suit as valuation of the suit property is more than two Lacs rupees.
6.2 As per their submission, the plaintiff has not impleaded the necessary party in the suit and the plaint is liable to be dismissed for non-joinder and mis-joinder of the necessary party that is the second wife of Shri Mohd. Sabreen and her children namely Mrs. Mohd. Asif and Miss Shabina Begum.
6.3 It was averred that even otherwise, the plaintiff has not placed on record all the relevant documents which forms the basis of the suit and thus, the suit/plaint liable to be rejected under the provision of Order 7 Rule 14 C.P.C. Further, the plaintiff has no locus standi to file the present suit in the absence of necessary documents of the property of late Shri Mohd. Shabreen on record.
6.4 Defendants no.4 & 5, in their WS, admitted that late Shri Mohd. Sabreen was the owner of the property No. 994, Gali No. 31, Jafrabad, Silampur, Shahdara, Delhi and A/12 in Kh.
10 / 31Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 No.630, situated at Gokulpuri East, Delhi. However, they denied the ownership of the deceased over property no.996, Gali No. 31, Jafrabad, Silampur, Shahdara, Delhi. They further denied that property No. 887, Masjid Fombay Wali, Haveli Azam Khan, Jama Masjid, Delhi was under the tenancy of late Sri Mohd. Sabreen, but admitted that property No. 853/854, Gali Farash Wali, Haveli Azam Khan, Delhi was under the tenancy of Shri Sabreen and now in the possession of defendant No. 1 Shri Arif. They did not deny that the gold ornaments weighing about 10 Toles and cash amounting to R. 9,000/-House- hold ariticles including worth Rs. 50,000/- which includes refrigerator, electronic gadgets and about 80 Kilos of copper vessels are in the possession of Defendant No. 1 Mohd. Arif.
6.5 It was further averred that shop No. 1476, Chitli Keber, Delhi was also under the tenancy of late Shri Mohd. Sabreen and the deceased Mohd. Sabreen also left behind the goods of brass and copper worth Rs. 1,50,000/- in the said shop which are under the possession of plaintiff and the plaintiff deliberately concealed the facts and enjoy the business and goods of the said shop which was belonging to Shri late Shri Sabreen. It was denied that the shop and basement known as 994, Gali No. 31, Jaffarabad, Silampur, is in the possession of the plaintiff. In fact, it was stated to be vacant and locked premises belongs to Shri Mohd. Sabreen.
REPLICATION TO THE WS OF DEFENDANTS NO.4 & 57.1 The plaintiff reiterated his stand taken in his plaint 11 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 which are not been reproduced for the sake of brevity.
8. Vide order dt. 20.08.2007, defendant no.6 was impleaded as a party to the present suit. Summons were issued to him and he appeared before the Court and filed his WS.
WS FILED BY DEFENDANT NO.6 9.1 In his WS, the defendant no.6 simply took the stand that he has no concern with the suit properties neither has he entered into any transaction with the plaintiff.
9.2 It was averred that the plaintiff has failed to implead the actual seller of the property in the proceedings of the present case and in the absence of which the suit of the plaintiff itself has become infructuous. It was submitted that the defendant no.6 has no concern with these properties. He is the owner and in occupation of the Property bearing No.A- 1/19, Khasra No. 630, situated at Gokulpuri East, Delhi which was purchased by the defendant no.6 by virtue of enforceable documents of purchase legally.
REPLICATION TO THE WS OF DEFENDANT NO.6 10.1 In his replication, plaintiff denied that the defendant No.6 is neither having any concern with the suit property nor is in possession of the same. It was submitted that the counsel for the defendant no.6 has admitted during the agreement under Order 1 Rule 10 CPC that the defendant No.6 is in possession of the premises in dispute. It was submitted that the defendant no.6 has no 12 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 concern with the compromise as taken place in the suit No.501/85 titled as Mohd. Arif & Ors. V/s Suhail Ahmed & Ors. in the court of Shri D.C. Anand, the then Civil Judge, Delhi, on 17.3.92.
10.2 It was averred that the defendant No.6 has concealed the material documents from this Hon'ble Court and he has not placed on record the title documents by which he has purchased the property from Shri Rajinder Singh. It was denied that the defendant No.6 is in lawful possession of the property in dispute which has been wrongly mentioned as property bearing No.A-1/19 Khasra No.630, situated at Gokul Puri, East Delhi.
ISSUES:-
11.1 On the basis of pleadings, the following issues were framed:
1. Whether the suit is liable to be dismissed as per P.O. 1, 2 and 3? OPD 1 & 3
2. Whether the suit has not been properly valued? OPD 1&3
3. Whether the suit is barred for non-joinder and mis- joinder? OPD 1 & 3
4. Whether this Court has no jurisdiction to try and decide this suit? OPD 4 & 5
5. Whether the suit is bad for mis-joinder and non- joinder of the parties? OPD 4 & 5
6. Whether the plaintiff has no locus standi to file the 13 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 present suit?
7. Vide order dt. 21.11.2000, issue no.7 was amended to read "whether the plaintiff is entitled for the decree of partition as prayed"? OPP
8. Relief.
No other issues arose or were pressed for.
12.1 In his evidence, plaintiff Sh. Mirajuddin examined himself as PW1 and reiterated all the facts contained in his plaint. He was cross-examined by counsel for defendant no.4 & 5, but expired before his cross-examination by counsel for defendants no.1 & 3 could be completed.
Thereafter, LR of the plaintiff Sh. M. Wazir was examined as PW-1.
He relied upon the following documents:-
Ex.PW1/1 : C.C. of compromise dt.
17.03.1992 in Mohd. Arif &
Others Vs. Sushail
Ahmed and Others in suit
No.501/85, Goshwara No.23.
Ex.PW1/2 (Colly) : Rent receipts alongwith their
translated version.
Ex.PW1/3 (CollY)(OSR : House tax bills in
favour of late Sh. Mohd.
Sabreen.
Ex.PW1/4 (Colly)(OSR) : Legal notice dt.
10.05.1988.
14 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016
Ex.PW 1/5 (Colly)(OSR) : Postal receipts and A.D.
Cards.
Mark A : Copy of Talaknama.
Mark B : Copy of Khata
Girdawari 1993-1994.
Mark C : Copy of Iqrar Nama.
As per noting of the Ahlmad dt. 22.05.2013, Mark C was not found on record.
He was cross-examined at length.
12.2 Further, Sh.M.A. Khan who translated the counter foils of rent receipts Ex.PW2/1 and rent agreement Ex.PW2/2 from Urdu to English, was examined as PW-2. He was not cross-examined despite opportunity.
13. Thereafter, the plaintiff's side closed their evidence.
14. Despite repeated opportunities, the defendants did not lead DE and finally their right for DE was closed by court order.
15. I have heard the final arguments advanced by Ld. Counsel for defendant no.1, 3, 4 & 5. Counsel for defendant no.6 did not advance final arguments, but instead, has filed written submissions today which has been considered. Counsel for the plaintiff only addressed part arguments after which, he submitted that he did not wish to advance any further arguments. The 15 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 plaintiff's side did not file written submissions despite opportunity.
Order Issue No.1
16. Whether the suit is liable to be dismissed as per preliminary objection 1, 2 & 3?
16.1 The burden to prove that the suit is liable to be dismissed in view of their preliminary objection no.1, 2 & 3 was upon the defendants no.1 & 3. As per their WS, the plaintiff had compromised with the defendants in suit no.501/85 titled as Mohd. Arif & Ors. Vs. Suhail Ahmed and Ors. which was decided by the Ld. court of Sh. D.C. Anand, Civil Judge, Delhi on 17.03.1992. It was contended that since the plaintiff has already received his share and is in the occupation of Shop No.1476 alongwith articles of Rs.1 lakh, the present suit of the plaintiff is liable to be dismissed. 16.2 Apart from mere averment, nothing has been placed on record by defendants no.1 & 3 to show that the suit as referred to above was with respect to the same cause of action and that the parties had entered into a settlement therein barring the plaintiff to go beyond the settlement. The plaintiff has placed on record as Ex.PW1/1 Order and statement dt. 17.03.1992 passed in suit no.501/85 titled as Sh. Mohd. Arif Vs. Sh. Swail Ahmed in the Ld. Court of Sh. D.C. Anand, Sub-Judge, Delhi. However, perusal of Ex.PW1/1 does not in any manner, show the extent of rights that were being claimed by the parties. It also does not show whether the compromise entered into between the parties, was with respect to the immovable properties as contained in the plaint. The 16 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 compromise simply find mention of property no.994, situated at Gali No.31, Jafrabad, Delhi and Shop No.1476, Chitli Qabar, Jama Masjid, Delhi.
16.3 Thus, since the defendant no.1 & 3 have not been able to produce any record in support of their submission, issue no.1 is decided in favour of the LRs of the plaintiff and against the defendants.
Issue No.2:
17. Whether the suit has not been properly valued. 17.1 The burden to prove this issue was placed on defendants no.1 & 3. In suit for partition, valuation for the purpose of jurisdiction is value of the whole property sought in the partition as held in Jagdish Pershad Vs. Joti Pershad 1975 ILR (Del 841). As per his plaint in Para No.11, the plaintiff has simply stated that "the value of the suit for the purposes of jurisdiction is Rs.2 lakhs being his estimated share in suit properties." Thus, admittedly, the plaintiff has valued the suit as per his estimated share in the suit properties and has not considered the value of whole of the properties sought to be partitioned.
17.2 However, since the burden to prove the issue was upon the defendants and they have not produced any contrary value of the entire property which would resultantly effect in barring the jurisdiction of this Court, this Court decides this issue in favour of the plaintiff and against the defendants.
17 / 31Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Issue No.3 & 5:
18. Whether the suit is barred for non-joinder and mis- joinder. (OPD 1 & 3) and whether the suit is bad for misjoinder and non-joinder of the parties. (OPD 4 & 5).
18.1 Since two separate WS was filed by defendants no.1 & 3 and defendants no.4 & 5, two separate issues were framed. However, since the issues are the same, they are being taken up together.
18.2 In their WS, defendants no.1 & 3 have stated in Para No.6 that the plaintiff has not impleaded the necessary party being the second wife of Mohd. Sabreen and her children namely Mohd. Asif and Ms. Shabina Begum, the suit is liable to be dismissed. The same plea is contained in Para No.2 of the preliminary objections of WS filed by defendant no.4 & 5. In his replication, the plaintiff has merely submitted that the alleged legal heirs of late Sh. Mohd. Sabreen from his second wife, have already received their relevant share.
18.3 This statement in the replication of the plaintiff amounts to an admission that late Sh. Mohd. Sabreen had a second wife and children, apart from those who are impleaded in the present suit.
18.4 Order 1 R.9 CPC provides for effect of misjoinder and non-joinder of the parties. The same is being reproduced herein under:-
"No suit shall be defeated by reason 18 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
Nothing in that rule will apply to non-joinder of necessary parties.
18.5 It has been held by the Hon'ble Supreme Court of India in Moreshar Yadaorao Mahajan Vss. Vyankatesh Sitaram Bhedi (D) through LRs & Ors, Civil Appeal No. 5755-5756 of 2011 that the suit is liable to be dismissed if a necessary parties is not impleaded. For being a necessary party, the twin test has to be satisfied.
1. there must be a right to some relief against such party in respect of the controversies involve in the proceedings.
2. That no effective decree can be passed in the absence of such party.
18.6 Muslim law recognizes two types of heirs, firstly sharers the ones who are entitled to a certain share in the deceased's property and secondly residuaries, the ones who take up the share in the property that is left over after the sharers have taken their part. Husband, wife, children, mother and father among others are sharers.
18.7 It has been held by the Hon'ble Madras High Court in A. Ramachandra vs Valliammal (died) reported in Vol.100 Law Weekly 486:-
"Though Order 1 R.9 of CPC provides that no suit shall be defeated by the reason of misjoinder or non-joinder of the parties and 19 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 the court may in every suit deal with the matter in controversy so far as regards the rights and interest of the parties actually before it, there is a proviso which says that nothing in that rule will apply to non-joinder of necessary parties. In a suit for general partition, there could be no doubt that all the sharers are necessary parties as mentioned above."
9. The question of non-joinder of necessary parties in a suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a suit for partition is not maintainable in the absence of some of the co-sharers.
18.8 Undoubtedly, the second wife and children of Sh. Mohd. Sabreen are his legal heirs, and necessary parties, but they have not been joined as parties to the present suit. A suit for partition cannot be adjudicated upon in the absence of impleadment of legal heirs of the deceased. Further, even the relief granted, cannot be executed effectively if necessary parties has not been joined.
18.9 Thus, the present suit is liable to be dismissed for non- joinder of necessary parties.
18.10 In view of the abovesaid discussion, the issue no.3 & 5 is decided in favour of the defendants and against the plaintiff.
Issue no.4:
19. Whether this Court has no jurisdiction to try and decide this suit?
19.1 The burden to prove this issue was placed upon 20 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 defendant no.4 & 5. The defendants have questioned the territorial jurisdiction of this Court to decide the present suit. Perusal of the case file reveals that after claim qua property no.994, Jafrabad, Seelampur, Shahdara was withdrawn by the plaintiff, the Ld. Predecessor of this Court, vide order dt. 10.11.2021, put up the matter before the Ld. Principal District & Sessions Judge, West District with a request to pass appropriate orders on the submission of Ld. counsel for the plaintiff that the remaining suit properties were within the jurisdiction of the central district. Vide order dt. 12.11.2021, Ld. Principal District & Sessions Judge, West District observed that "the present case was instituted on 19.07.1997 when civil jurisdiction was lying in Tis Hazari Court premises. Though, different jurisdiction have been parked out by having 11 districts in Delhi, bifurcation is not rigid and since the case has remained pending in the court concerned for a long time, there can be no legal impediment to continue with the present suit in the court concerned. However, by way of abundant caution, let parties approached Hon'ble High Court of Delhi for passing appropriate direction."
19.2 The application of the plaintiff for transfer of the present suit was dismissed in default and for non-prosecution by the Hon'ble High Court of Delhi vide order dt. 24.05.2024. 19.3 It has already been observed by the Ld. Principal District & Sessions Judge, West that at the time of the institution of the present case, civil jurisdiction was lying in the Tis Hazari Court and after carving out of different jurisdiction, the bifurcation is not rigid and there could be no legal impediment to continue with the 21 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 present suit in this Court.
19.4 The burden to prove that this Court has no territorial jurisdiction was placed upon the defendants no.4 & 5 for which neither any evidence has been led nor any arguments have been advanced. Thus, this issue stands decided in favour of the plaintiff and against the defendants.
Issue No.6:
20. Whether the plaintiff has no locus standi to file the present suit?
20.1 The Latin Maxim "locus standi" consists of two words namely locus which means place and standi which means the right to bring an action. Thus, locus standi means the legal capacity of a party to appear in Court or file an action. In the present suit for partition, it is not disputed that the plaintiff herein was the son of the deceased Mohd. Sabreen. The present suit has been filed for partition of properties stated to be owned by Sh. Mohd. Sabreen. As per the Muslim Law of Succession, the plaintiff being a legal heir of the deceased has an interest in the deceased's property. Thus, the averment that the plaintiff has no locus standi to file the present suit is meritless and frivolous. Thus, issue no.6 is decided in favour of the plaintiff and against the defendant.
22 / 31Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Issue No.7:
21. Whether the plaintiff is entitled for the decree of partition as prayed?
21.1 The burden to prove this issue was placed upon the plaintiff. In the present suit for partition, first and foremost, the plaintiff is required to prove the ownership/tenancy of his predecessor in interest i.e. father herein over the properties being claimed by him by virtue of inheritance. As there is no distinction in the rights of legal heirs with respect to property being joint family property or self-acquired property in Muslim Law, proving the right of the deceased over the property would be sufficient. Now, let us discuss whether the plaintiff has been able to establish that he is entitled to a share in the movable and immovable properties as allegedly owned by his deceased father.
(i) As per Para No.2 of his plaint, partition with respect to following properties has been sought by the plaintiff-
a) Property No.994, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi.
b) Property No.996, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi.
c) Plot admeasuring 300 sq. yards being no.A/12 in Kh. No.630, situated at Gokulpuri East, Delhi.
(ii) It is also submitted that the plaintiff's father late Sh.
23 / 31Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Mohd. Sabreen was also tenant in the following properties:-
1. Property No.C/887, Masjid Bombay Wali Haveli Azam Khan, Jama Masjid, Delhi.
2. H.No.853/854, Gali Farsh Wali, Haveli Azam Kha, Jama Masjid, Delhi.
(iii) In addition to the above, the plaintiff has also claimed his share in the movable properties left behind by the deceased being gold ornaments weighing about 10 Tolas, cash amounting to Rs.9000/-, household articles worth Rs.50,000/- and about 80 kilos of Copper Vessels.
(iv) As per the plaint, the rights of the plaintiff herein are flowing as his father late Sh. Mohd Sabreen was the owner/tenant of the abovesaid properties.
21.2 Now, let us discuss rights of the plaintiff regarding partition of the abovementioned movable and immovable properties one by one.
(a) Property No.994, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi:-
The plaintiff withdrew his claim in respect of this property as recorded in order dt. 27.10.2016.
b) Property No.996, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi:-
(i) As per the WS filed by defendant no.1 & 3, they denied the ownership of their deceased father over this property. It was 24 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 submitted by defendant no.1 that this property belonged to him. The same fact was also denied in the WS filed by defendant no.4 & 5 who also endorsed the ownership of defendant no.1 over this property.
(ii) In his cross-examination dt. 17.05.2001, the deceased plaintiff Sh. Mirajuddin stated that " I have not placed on record the document of ownership of the property mentioned by me in examination-in-chief as the ownership of those properties has not been disputed by the defendants."
(iii) The plaintiff expired before his cross-examination to be concluded and thus, LR of the plaintiff Sh. M. Wazir was examined as PW-1.
(iv) In his cross-examination dt. 11.07.2019, he stated that "I and my father late Sh. Mirajuddin had not placed on record the title documents of the property bearing no. 996, Gali No.31, Jafferabad, Seelampur, Shahdara, Delhi. I have not in possession of the title documents of the abovesaid property bearing no. 996. The possession of the said property is with my uncle Mr. Mohd. Arif."
(v) He further stated that he did not place on record the record of Sub-Registrar office with regard to the ownership of the aforesaid properties as the documents were stolen by his uncle Mohd. Arif (defendant no.1) at the time of illness of his grandfather.
(vi) Thus, it is clear that no documents with regard to ownership of Sh. Mohd. Sabreen with respect to the abovesaid 25 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 property, has been placed on record by the plaintiff's side. The ownership of Sh. Mohd. Sabreen has been specifically denied by all the defendants. Thus, the LRs of the plaintiff have hopelessly failed in proving that they are entitled to any share in the said property by virtue of ownership of late Sh. Mohd. Sabreen.
c) Plot admeasuring 300 sq. yards being no.A/12 in Kh. No.630, situated at Gokulpuri East, Delhi:-
(i) In their WS, defendants no.1 & 3 submitted that this property has already been sold and every legal heir has already received his/her share. Defendants no.4 & 5 admitted the ownership of late Sh. Mohd. Sabreen over this property.
(ii) In his cross-examination dt. 17.05.2001 as already mentioned above, the plaintiff stated that he did not place on record any document of ownership of the present property. Further, during his cross-examination, Sh. M. Wazir stated that " I have also not placed on record the title documents of property no.A/12 in Khasra No.630 situated at Gokulpuri East, Delhi."
(iii) Further, in his cross-examination dt. 11.07.2019, PW-
1/Sh. M.Wazir also stated that " the property bearing no. A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi measuring about 300 sq. yards has been sold by the defendants in collusion with each other 30 years ago. Vol. After forging the signatures of my father. My father and myself had not mentioned in the present suit about the selling of aforesaid property by the defendants in collusion with each other 30 years ago after forging the signatures of my father."
"It is correct that the property bearing no.A/12, in 26 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Khasra No.630 situated at Gokulpuri Bast, Delhi was already sold before filing of the present suit. It is correct that the plaintiff who was my father, had already made a party to Sh. Rai Singh to whom the aforesaid property A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi was sold out. It is wrong to suggest that Sh. Rai Singh was not made a party in the present suit. It is correct that I have not placed on record any document qua the ownership of property bearing no.A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi . It is wrong to suggest that the property bearing no.A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi was never sold out to Sh. Rai Singh by the defendants. It is wrong to suggest that the property no.A/12, in Khasra No.630 situated at Gokulpuri Bast, Delhi was not in the ownership of Sh. Mirajuddin. It is wrong to suggest that property bearing no.A/12, was not in the name of father of the plaintiff Mohd. Sabreen."
(iv) Thus, admittedly, the present property was already sold before filing of the present suit which fact was concealed from this Court in the plaint. As the property has already been sold before the institution of the present suit, no question qua the partition of the said property arises.
(d) Tenancy of property No.C/887, Masjid Bombay Wali Haveli Azam Khan, Jama Masjid, Delhi:-
(i) In their WS, defendants no.1 & 3 submitted that defendant no.5 was residing as a tenant in this property wheras the defendants no.4 & 5 categorically denied the tenancy of late Sh.27 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 Mohd. Sabreen in the abovementioned property in their WS.
(ii) The plaintiff's side has not produced any document to affirm the fact that late Sh. Mohd. Sabreen was a tenant of the abovementioned premises. Neither the landlord of the said premises has been examined nor any rent receipts or any document qua the said property could be shown to this Court by counsel for the LRs of the plaintiff during final arguments. Thus, the plaintiff's side has not been able to prove the tenancy of late Sh. Mohd. Sabreen with respect to the abovementioned property.
(e) Tenancy of property bearing H.No.853/854, Gali Farsh Wali, Haveli Azam Kha, Jama Masjid, Delhi:-
(i) Defendants no.1 & 3 stated in their WS that defendant no.1 was residing in the abovementioned property as a tenant which fact is affirmed by defendants no.4 & 5 in their WS. However, the WS of the defendants is silent about the tenancy of late Sh. Mohd. Sabreen with respect to the present property.
(ii) The plaintiff has placed on record electricity bills Ex.PW1/3 (colly) and Ex.PW1/4 (colly) to show the tenancy of late Mohd. Sabreen alongwith translated copy of rent receipt Ex.PW2/1 (colly). However, all the documents pertain to the period till 1982.
Admittedly, Sh. Mohd. Sabreen expired in 1985 and thus, it is not clear from the record perused whether he was still a tenant in the abovementioned property immediately before his death. The landlord/owner of the said property was not called in evidence. Since the counsel for the plaintiff only advanced part arguments, he 28 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 also did not draw the attention of the Court to any documents placed on record from the plaintiff's side to prove that the tenancy of the deceased continued till the date of his death.
(iii) Further, in his cross-examination dt. 05.03.2020, PW-1 Sh. M. Wazir deposed that "it is correct that the property no.867, Masjid Bombay Wali Haveli Azam Khan and property no. 853/854, Gali Farsh Wali, Haveli Azam Kha, Jama Masjid, Delhi are not in possession of defendant no.1 to 5. Vol. My Taya Ji Mohd. Arif has already sold the aforesaid property."
(iv) In his cross-examination, it is stated that the abovementioned property is sold by Mohd. Arif. It is not understandable as to how Sh. Mohd. Arif being an alleged tenant himself could have sold the property. Further, in his legal notice Ex.PW1/4 dt. 10.05.1988, the plaintiff claimed that his father was an exclusive owner of the abovementioned property. Thus, contradictory stand has been taken by the plaintiff's side with regard to tenancy/ownership of property bearing no.853/854.
(v) In view of the abovesaid discussion, this Court has no hesitation in holding that the plaintiff has failed to prove the tenancy of his father over this property.
(f) Ownership regarding the Gold ornaments weighing about 10 Tolas, cash amounting to Rs.9000/-, household articles worth Rs.50,000/- and about 80 kilos of Copper Vessels:-
(i) In their WS, defendant no.1 & 3 has categorically 29 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 denied that any movable property as mentioned above, was left behind by the deceased.
(ii) Defendant no.4 & 5 in their WS, affirmed that such articles were left behind by the deceased, but also stated that the deceased also left behind goods of brass and copper worth Rs.1,50,000/- in his shop which are under the possession of the plaintiff.
(iii) In view of the denial of defendant no.1 & 3, the burden to prove the existence of the movable property, was upon the plaintiff.
(iv) In his cross-examination dt. 05.03.2020, it is categorically stated by PW-1 that "I have not filed on record any document showing that my grandmother was the owner of 10 tolas ornaments as written in my plaint. I have also not placed any document showing the cash of Rs.9000/- and household goods worth Rs.50,000/- as stated in my plaint.
(v) Thus, admittedly, plaintiff has not produced any record/document with regard to the movable property left behind by the deceased. Consequently, he has failed in proving any such movable property of the deceased.
22. In view of the abovesaid discussion, this Court has no hesitation in holding that the suit of the plaintiff is bad for non- joinder of necessary parties and liable to be dismissed. Further, the plaintiff's side has also not been able to prove the right/title of their predecessor in interest in the alleged properties and thus, they are 30 / 31 Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016 not entitled to any right in the properties claimed by virtue of inheritance.
23. In the abovesaid terms, suit of the plaintiff stands dismissed.
24. Parties to bear their own costs.
25. File be consigned to Record Room.
Announced in open Court.
Digitally
On this 30th day of August, 2024 signed by
TAPASYA
This Judgment contains 30 pages TAPASYA AGARWAL
AGARWAL Date:
and is signed by me. 2024.08.30
16:00:41
+0530
(TAPASYA AGARWAL)
ACJ/CCJ/ARC (WEST)
TIS HAZARI COURTS/DELHI
31 / 31
Sh. Mirajuddin Vs. Mohd. Arif CS SCJ No. 333/2013 8613/2016