Delhi District Court
Sachin Jain vs Abhishek Jain on 22 November, 2014
IN THE COURT OF SH. DEVENDER KUMAR, ADJ-04, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 125/14
Sachin Jain
S/o Sh. Ashok Kumar Jain
R/o 12A, Shri Ram Road,
Civil Lines, Delhi -110054 .... Plaintiff
Vs.
1.Abhishek Jain S/o Sh. Anil Kumar Jain
2. Shri Abhinav Jain S/o Sh. Anil Kumar Jain Both residents of :
W21, Western Avenue, Sainik Farm, New Delhi Also at :
N-96 (Part), 2nd Floor, Munshilala Building, Connught Circus, New Delhi -110001 .....Defendants Date of institution : 19.08.2011 Date on which reserved for judgment : 22.11.2014 Date of decision : 22.11.2014 Suit for partition Judgment :
Vide this judgement, I shall dispose of a suit for partition filed by the plaintiff against the defendants. Brief facts of the case are as under:
CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 1/10
1. It is the case of the plaintiff that both parties are joint owners in possession of suit property consisting of Kothri (back side) behind Shop no. N-14 and N-15 of Munshilal Building, Connaught Circus, New Delhi
-110001 as shown red colour in the site plan. It is further stated that Sh.
Anil Kumar Jain who is father of defendants and in possession of suit premises has started claiming himself to be a tenant in the suit property and has filed petitions under Section 27 of Delhi Rent Control Act, 1958 vide DR no. 95/09 and DR no. 50/10 titled Anil Kumar Jain Vs. Sachin Jain, but both the petitions have been dismissed by Ld. ARC, Delhi. It is further stated that on 04.08.2011, the plaintiff came to know that the electricity meters installed in the names of late Sh. Munshilal Jain (Great Grandfather of plaintiff) and Shri Sumant Prasad Jain (Grandfather of plaintiff) have been removed by the defendants and now they are trying to get installed new meters in their names in the suit property against the wishes of the plaintiff. It is prayed that a decree of partition of suit property may be passed.
2. Defendants have filed their written statement thereby alleging that the suit property is located in such a manner that only one side is open and has only one entrance / gate measuring 3'-6' wide & 16 foot long and it cannot be divided by the way of partition and even if it is allowed then also it is not practicable. It is further stated that the plaintiff is not in physical possession of suit property whereas he has valued this suit for Rs. 5 Lacs for the purpose of court fees and jurisdiction and court fees ought to be paid against the share of the plaintiff sought in this suit. It is further stated that the suit has been filed just to harass the defendants and their father Sh. Anil Kumar Jain who is lawful tenant in possession of suit property on the monthly rent of Rs. 30/- per month w.e.f. 02.08.2006 and this suit is liable to be dismissed. It is further stated that the plaintiff has not CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 2/10 sought the partition of all and entire joint properties i.e. shop no. N-12 (Mezzanine Floor) N-13, N-14, N-15, N-17 and three Kothris Nos. 1, 2 & 3 and room No. 94A and open passage at the back side of shop no. N 12 to N-17 situated at Munshi Lal Building, N Block, Connaught Circus, New Delhi in this suit and even plaintiff has refused the partition of all properties despite service of legal notice dated 19.08.2010 which was duly served upon the plaintiff. It is further stated that this suit has been filed just to harass the defendants otherwise plaintiff has accepted the rent of the suit property paid upto 30.09.2009 in cash or by cheques, but no rent receipt has been issued w.e.f 01.04.2007 and even after 31.03.2009, plaintiff has refused to accept the rent deposited with the court of then Ld. Rent Controller Sh. Manoj Kumar for the period w.e.f 01.04.2009 to 31.03.2010 and also with the court of Ms. Veena Rani, Ld. ARC, New Delhi for the period w.e.f 01.04.2010 to 31.03.2010 and so on. The defendants have denied the allegations of the plaintiff and have stated that no electricity meter was ever removed by the defendants, however in the year 2006 or thereabout, Sh. Sachin Jain and M/s. Central Court Hotel applied to NDMC for new electricity connections with heavy load to their premises which were sanctioned and installed as per the rules and old electricity meters were removed by NDMC. It is prayed that this suit is liable to be dismissed.
3. As per the pleadings of the parties following issues were framed by this court vide order dated 09/04/2014 as under :
(i) Whether the suit has been properly valued for the purpose of court fees and jurisdiction? OPP
(ii) Whether the suit property is not divisible by meets and bounds? OPD
(iii)Whether the suit property is not divisible without permission of L & DO ? OPD.
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(iv) Whether the plaintiff is entitled for decree for partition, as prayed? OPP
(v) Relief
4. To prove the case, plaintiff has not examined any witness and closed PE. Defendants have examined DW1 Sh. Manoj Kumar and DW2 Sh. Abhishek Jain and closed DE.
5. I have heard the arguments and perused the record. My issue wise findings are as under:
Issue no. (i) The onus to prove this issue was fixed upon the plaintiff. To discharge the onus the plaintiff has not examined any witness but has cross examined DWs. It is argued on behalf of plaintiff that the plaintiff is in constructive possession of suit property through tenant and even this fact has been admitted by the defendants during cross examination. It is further argued that the suit premises is in possession of Sh. Anil Kumar Jain as tenant and property belongs to both the parties due to plaintiff was not liable to pay court fees in the manner that he was not in possession of suit property. It is further argued that the plaintiff has duly discharged the onus to prove this issue.
On the other hand, Counsel for defendants has argued that the averments of the plaint have to be seen to ascertain the court fees and plaintiff has alleged in the plaint that he is in physical possession of suit property then it shall be considered that he was in physical possession of suit property at the time of filing of suit whereas he was not and was required to pay the court fees. It is further argued that initially the plaintiff was required to pay court fees not being in actual physical possession of suit property as it was not disclosed in the plaint that he was in CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 4/10 constructive possession of the suit property through tenant. In support of his arguments, Ld. Counsel for defendants has relied upon a judgement, 128 (2006) DLT 633 titled Sonu Jain Vs. Rohit Garg & Ors.
6. I have heard the arguments and perused the record. Plaintiff has alleged in the plaint that he is in physical possession of suit property as shown red in the site plan and it was not alleged or disclosed in the plaint that his possession was / is constructive through tenant. However the allegation of the plaintiff with regard to possession and court fees were relevant for rejection of plaint under Order 7 rule 11 CPC, but if this issue is being decided after the full fledged trial by the court then the evidence of parties has to be considered. The judgment relied upon by Ld. Counsel for defendants tilted Sonu Jain V. Rohit Garg & Ors., 128 (2006) DLT 633 is also dealing with almost similar proposition and has held in para 11 of the judgment that once there is complete ouster even of a joint owner from possessory management and any other direct involvement in the affairs of the properties in question, it would be necessary for that person to pay the requisite advalorem Court fee and he would not be in a position to take advantage of paying a fixed court fee. However in this case it has been admitted by DW2 during cross examination that on 02.08.2006, the plaintiff and defendants let out the suit premises together to Sh. Anil Kumar Jain and even today Sh. Anil Kumar Jain continues to be in possession of suit premises as tenant of the plaintiff and defendants. In view of this deposition it is clear that both parties are in constructive possession of the suit property through tenant Sh. Anil Kumar Jain. Further, it is the case of the defendants in written statement itself that Sh. Anil Kumar Jain had been paying rent of the tenanted premises or depositing with the court and it was being shared by both parties. If the rent was being paid by tenant to both parties and was being shared then it is clear case of constructive CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 5/10 possession of the plaintiff in the suit property and he was not required to pay any advalorem court fees. As such, court fees paid under Article 17 Schedule II of Court Fees Act is sufficient compliance. Plaintiff has discharged the onus to prove this issue and issue is decided in favour of plaintiff and against the defendants.
7. Issue no. (ii) The onus to prove this issue was fixed upon the defendants. To discharge the onus the defendants have examined two witnesses and plaintiff has cross examined both DWs, but has not led any evidence. It is the case of the defendants in the written statement itself that both parties are co-owners of the property bearing No. N-12 (Mezzanine Floor) N-13, N-14, N-15, N-17 and three Kothris Nos. 1, 2 & 3 and Room No. 94A and the roof of Flat no. N-90 to N-95 and open passage at the back side of shop no. N-12 to N-17 situated at Munshi Lal Building, 'N' Block, Connaught Circus, New Delhi in the ratio of 50% of plaintiff and 25% each of defendants. This testimony of DW2 deposed in examination in chief has not been cross examined by the plaintiff which amounts to admission on the part of the plaintiff. Admittedly, plaintiff has filed this suit with regard to kothri (back side) of shop no. N -14 & N 15 only and it is not a disputed fact.
Ld. Counsel for defendants has argued that this suit has been filed for a partial partition of Kothri No. 2 (back side) behind Shop No. N-14 & N-15 whereas many other properties are yet to be partitioned. It is further argued that this suit is not maintainable for partial partition. In support of his arguments, Ld. Counsel for defendants has relied upon the judgment AIR 2009 SC (Supp) 1406 titled R. Mahalakshmi V. A.V. Anantharaman & Ors. and 1994 (2) Scale 559, Kenchegowda (since CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 6/10 deceased) by LRs V. Sri Siddegowda @ Motegowda.
On the other hand, Ld. Counsel for plaintiff has strongly objected to these arguments on the ground that the plaintiff was not required to seek partition of all properties and only that property was required to be partitioned which was disputed between the parties. It is further argued that defendants have not even led any evidence on record to prove what are those properties which were also required to be included in this suit and in the absence of any such evidence on record this suit is well maintainable and defendants have failed to discharge the onus to prove this issue.
8. I have heard the arguments and perused the record. It is not a disputed proposition of law in view of order 8 Rule 5 CPC that any fact which is not denied by opposite party is deemed to be admitted. Defendants have alleged in the written statement that the plaintiff has not sought partition of all properties and even properties have been disclosed, but plaintiff has not filed any rejoinder thereby denying this fact. Further, a similar fact was deposed by DW2 in his examination in chief in para 2 of the affidavit and no cross examination has been conducted by the plaintiff with regard to this fact and it amounts of admission on the part of the plaintiff. It has been held by the Hon'ble Supreme Court of India in AIR 2009 SC (Supp) 1406 titled R. Mahalakshmi V. A.V. Anantharaman & Ors. and 1994 (2) Scale 559, Kenchegowda (since deceased) by LRs V. Sri Siddegowda @ Motegowda that it is well settled in law that a suit for partial partition is not maintainable. It is further held that all the properties of deceased are to be partitioned in a suit for partition and partial partition is not allowed. In view of this law laid down by the Hon'ble Apex Court, it is clear that partial partition of properties owned by both CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 7/10 parties is not maintainable and all the properties ought to be partitioned in a single suit for partition. As such, this suit for partial partition is not maintainable and partial suit property is not divisible by metes and bounds.
So far the other aspect that the suit property is situated in such a condition and having no proper entry / exit or is situated in a small sheet etc. is concerned, it could not be proved by defendants by examination of any witness, accordingly this fact could not be proved. As such, the suit property is not divisible on the ground of non inclusion of all properties inn this suit and not on any other grounds. As such, defendants have discharged the onus to prove this issue and this issue is decided in favour of defendants and against the plaintiff.
9. Issue No. (iii) The onus to prove this issue was fixed upon the defendants. To discharge the onus the defendants have examined DW1 from L & DO who has proved a copy of perpetual lease dated 09.05.1938 as Ex. DW1/1 and a letter dated 06.02.1980 issued by the office of L & DO which is Ex. DW1/2. It is argued by Ld. Counsel for defendants that as per document Ex. DW1/1 and Ex.DW1/2 property may not be partitioned without the permission of L & DO being a lease hold property and admittedly plaintiff has not sought the permission from L & DO due to this suit is not maintainable and liable to be dismissed.
On the other hand, Ld. Counsel for plaintiff has argued that the land alloted by L & DO cannot be partitioned without the permission of L & DO, but the superstructure constructed over a land alloted by L & DO may be partitioned in view of law laid down by the Hon'ble High Court of Delhi. It is further argued that this suit is well maintainable even without permission of L & DO and suit property is liable to be partitioned. Ld. CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 8/10 Counsel for plaintiff has relied upon the judgments, AIR 1991 Delhi 325 titled Chiranji Lal And Anr. vs Bhagwan Das And Ors, JT 1998 (7) SC 610 titled Chief Inspector Of Stamps vs Indu Prabha Vachaspati (Smt) And Ors., FAO (OS) No. 239/2007 titled Saroj Salkan Vs. Capt. Sanjeev Singh & Ors. and FAO (OS) No. 210/2014 titled Surendra Pal Singh vs Ravindra Pal Singh.
10. I have heard the arguments and perused the record. To discharge the onus the defendants have relied upon the documents Ex. DW1/1 and Ex. DW1/2. Admittedly, the property is lease hold property alloted by L & DO in terms of perpetual lease deed Ex. DW1/1. It is not a disputed fact of the parties that the suit property is not partitionable without the permission of L & DO, but is is to be seen as to whether the super structure is partitionable or not. It has been held by the Hon'ble High Court of Delhi in AIR 1991 Delhi 325 after relying upon a judgment titled Inderjit Singh V. Tarlochan Singh 191 Rajdhani LR 239 that the super structure built on a plot can be partitioned by mates and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the lessor is needed for effecting the partition of the building by metes and bounds. In fact, on the basis of this judgment, it is clear that the superstructure can be partitioned without the permission of L & DO. However, this legal proposition is subject to other conditions if agreed by the parties. As per document Ex. DW1/2 proved by DW1, the partition or sub division of the premises was not allowed by the Lessor in this case and word "premises" has been used which is not only comprising of land but also super structure thereon. If there was a specific restriction and against sub-division or partition of the premises then no partition of premises including super structure of the premises can be made without the permission of L & DO. In fact, in any CS No. 125/14 Sachin Jain Vs. Abhishek Jain & Ors. 9/10 case, property is not divisible without permission of L & DO. Defendants have discharged the onus to prove this issue and this issue is decided in favour of defendants and against the plaintiff.
11. Issue No. (iv) The onus to prove this issue was fixed upon the plaintiff. In view of my abovesaid findings on issues No. 1 & 3, it is clear that the suit property is not divisible on account of permission of L & DO and non- inclusion of all properties in this suit, accordingly plaintiff has failed to discharge the onus to prove that he is entitled for relief for partition. This issue is decided against the plaintiff and in favour of defendants.
12. Relief :
Since the plaintiff has failed to prove that he is entitled for any relief, accordingly this suit is not maintainable, hence dismissed. No such order of cost. Decree sheet be prepared. File be consigned to record room after due compliance.
Dated:- 22.11.2014 (Devender Kumar)
Announced in the open Court. ADJ-04, New Delhi District,
Patiala House Courts, Delhi.
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