Delhi District Court
Arvind Sood vs . Ramesh Chand Sood on 26 February, 2008
Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (1)
IN THE COURT OF SH. INDERJEET SINGH
ADDITIONAL DISTRICT JUDGE : DELHI
In the matter of :-
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(i)Smt. Surindra Sood, W/o Late Dr. Rattan Lal
(ii)Dr. Harish Sood, S/o Late Dr. Rattan Lal
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Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (2)
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Now represented by :-
(i) Smt. Prema Sood,
Wd/o Late Sh. Ramesh Chand Sood
(ii) Sh. Y.P. Sood
S/o Late Sh. Ramesh Chand Sood
(iii) Sh. Sanjeev Sood,
S/o Late Sh. Ramesh Chand Sood
(iv) Sh. Yogesh Sood
S/o Late Sh. Ramesh Chand Sood
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Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (3)
(v) Smt. Meenakshi Sood,
D/o Late Sh. Ramesh Chand Sood,
R/o B-7/5034, Vasant Kunj,
New Delhi.
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Suit No. : 94/07/94
Date of Institution : 06.10.1994
Judgment reserved on: 14.02.2008
Date of Decision : 26.02.2008
Appearance of the Counsels :-
For the plaintiffs : Sh. Anil Prashad Aggarwal,
Advocate for the plaintiffs no. 1, 3, 4
& 5.
Sh. Parveen Suri, Advocate for legal
representatives of plaintiff no. 2.
For the defendants :Sh. Masand Mirza, Mohd. Ahsan and
Mohd. Abid, Advocates for defendant/
LRs.
Contd......
Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (4)
JUDGMENT
(on Suit for Partition) 1.1(Suit property): Sh. V.C. Sood, Sh. Dev Raj Sood, Sh. Ratan Lal Sood and Sh. Ramesh Chand Sood (hereinafter referred as "four brothers") purchased piece of land measuring 66' x 85', total area 5610 sq. feets, bearing plot no. 49/52 Sadar Bazar, Delhi Cantt., New Delhi - 110010; now it bears municipal No. 1/194. Sadar Bazar, Delhi, which was also constructed subsequently (hereinafter referred as suit property, more particularly delineated in colour red in the site plan Ex. PW-1/1) by registered Sale Deed. 1.2(Status of parties): Initially, the Suit for Partition was filed by Sh. Arvind Sood, plaintiff no. 1 (S/o Sh. V. C. Sood), Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (5) Dr. Ratan Lal Sood, plaintiff no. 2; Smt. Kamla Sood, plaintiff no. 3; Sh. Sudhir Soor, plaintiff no. 4 and Ajay Sood, plaintiff no. 5 (the plaintiffs no. 4 & 5 are sons of Dev Raj Sood and plaintiff no. 3 is widow of Dev Raj Sood) against defendant Ramesh Chand Sood. Sh. Ramesh Chand filed written statement to the suit followed by joint replication of the plaintiffs.
However, during the pendency of suit plaintiff no. 2 Dr. Ratan Lal Sood expired, his legal representatives were brought on record by order dated 16.02.2000 and defendant Ramesh Chand Sood also expired on 22.07.1997 during the pendency of suit, his legal heirs were brought on record by order dated 18.08.1998. The legal representatives of deceased are reflected in the array of parties. 2.1.(Plea of plaintiffs) : The four brothers purchased the suit property from Sh. Ghewar son of Sh. Amar Lal vide sale deed dated 2.7.1955 registered, as documents no.1755 in additional book no.1, volume no. 321, page 334 to 336 Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (6) registered on 19.11.1955. They raised construction on a portion of suit land after getting the plan sanctioned, such construction is still existing there and the other portions of land is lying vacant, which has been specifically shown in colour red in the site plan filed. Since, the construction of the property, the four brothers are having possession, jointly, in the property so constructed.
2.2.Plaintiff no.1's father Sh. V. C. Sood expired leaving behind several legal heirs, however, all the legal heirs of Sh. V. C. Sood had executed registered relinquishment deed dated 16.10.1981 in favour of plaintiff no. 1 and by such Relinquishment Deed other heirs of Sh. V. C. Sood relinquished their rights, title or interest in 1/4th undivided shares in the said property in favour of plaintiff no.1; hence plaintiff no.1 became co-owner having 1/4th undivided share in the suit property.
Sh Dev Raj Sood expired leaving behind him the plaintiffs no. 3, 4 & 5 as legal heirs/representatives and as Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (7) such they became co-owners of 1/4th undivided shares in the property, which was the share of deceased Dev Raj Sood. The plaintiff no. 2 Ratan Lal Sood is havingt 1/4th undivided share in the property, similarly defendant Ramesh Chand Sood is having 1/4th undivided share in the property. 2.3The suit property was never partitioned by metes and bounds and the plaintiffs called upon the defendant several time to partition the property by metes and bounds but the defendant never paid any heed to the request of the plaintiffs. The plaintiffs no longer want to keep the property jointly with the defendant and they want the property to be partitioned by and metes and bound and separate share of plaintiffs from the defendant. The plaintiffs also served a notice dated 29.8.1994 of their intention to partition the property by metes and bound and to separate their share, however, despite receipt of such notice the defendant failed to partition the property, hence, they are left with no other remedy but to file the present suit.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (8) 2.4Since, the parties are in joint possession of the property in dispute including the constructed portion and the open land adjoining the constructed portion and the suit has been valued for the purposes of jurisdiction, as Rs. 4,50,000/- and also paid appropriate court fees.
2.5The plaintiffs request for preliminary decree determining 25% share of plaintiff no. 1.25% share of plaintiff no. 2.25% share of plaintiffs no. 3 to 5 and 25% share of defendant vis-a-vis appointment of Local Commissioner to suggest ways and means to partition the property by metes and bounds and then final decree.
3.1.(Defendant's plea) : The defendant opposed the suit while denying the averments narrated in paragraphs 2.1 to 2.5, above, by filing detailed written statement under the heading of preliminary objections, para-wise reply and additional pleas.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (9) The market value of the property is not less than 50 lacs, the suit property is and has always been in possession of the defendant, thus suit was to be valued accordingly by paying ad-valorem court fees. The present court has no pecuniary jurisdiction to try the suit.
The plaint lacks material particulars like as to when four brothers had got the building plan sanctioned or construction was raised or their joint possession. Further, the plaint does not specify about the status of four brothers and what coparcenary or ancestral properties or the properties which were held by them, they were required to furnish such particulars and then defendant would be able to reply them. 3.2.The suit land was obtained on lease by HUF (Hindu Undivided Family) of which four brothers were members at the time, out of coparcenary fund made available by jointly held assets of the family. The defendant no. 1 made the construction on the suit land out of his own fund and Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (10) resources. He along with his family members is in occupation of the entire property. There is no question of four brothers making construction or any land lying vacant or joint possession of the four brothers. Neither Sh. V.C. Sood is owner nor his heirs or other plaintiffs had or have any right title or interest or share(s) in the suit property nor they can claim any right or share therein, since the property is owned and occupied by the defendant on material time and he has been exercising his ownership rights without any let or hindrances by any one. The defendant is owner in possession of the suit property, there is no question of partition of the property.
Plaintiffs' notice dated 29.08.1994 was replied by the defendants and it is within the knowledge of the plaintiff that defendant alone has been owner in possession of the suit property. There is no cause of action for partition of the property.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (11) 3.3.None of the plaintiffs can make any claim or partition of the suit property since the defendant has been completely in occupation, possession and use of the property from the year 1957, when the defendant openly and publically exercised complete, absolute and unchallenged ownership rights to the exclusion of all others. Subsequent to the acquisition of the suit property in the name of four brothers, who comprised an HUF and held coparcenary properties and assets the exclusive ownership rights fell to the share of the defendant as per family arrangement and settlement of 1957 between the four brothers in respect of share of their coparcenary assets. Pursuant to such settlement/arrangement, the defendant constructed a house comprising three rooms, store, kitchen, bathroom, out house with open court yard and lawn out of his own funds and sources and occupied the same for his own use and benefit.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (12) 3.4.The Hindu coparcenary of the four brothers included the following assets :-
(a)Tenanted shop cum residence No. 1/165, Sadar Bazar, Delhi Cantt. Where two businesses are being run;
(b)Tenanted shop No. II/22, Sadar Bazar, Delhi Cantt.
Where one business is being run;
(c)Tenanted shop no. 1/31, Sadar Bazar, Delhi Cantt. Where one of the families is residing;
(d)Tenanted shop no. 1, Cantonment No. III/171 situatd at Church Road, Delhi Cantonment where one business is being carried out;
(e)Shop-cum-residence built on Survey No. 49/35, Cantonment No. 44/1 to 44/2, Sadar Bazar, Delhi Cantt., where one business is being carried out;
(f)One freehold plot of 252 sq. yds bearing Khasra no. 497/443/171 Khewat No. 60, village Nangal Raya, Delhi Cantt.; and
(g)Residential-cum-shop premises built on land in Sr. No. 49/25(Cantt. No. 2/80) Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (13) As per such formal arrangement of year 1957, defendant's other brothers took over the above noted assets and property, giving up their claim to the suit property. It was also agreed that on account of businesses taken over by other brothers of the defendants, deed of partition would be drawn up. However, no formal deed was executed as they failed to do so but this did not militate against the defendants and his brothers giving complete and absolute facts to the oral partition arrangement to acts upon the same for the last more than 35 years.
None of the defendant's brothers or their legal heirs, even though of controverting defendant's rights had any occasion to lay any claim to the property till the death of Dev Raj Sood in May 1991, when for the first time Mr. Sudhir Sood alias Happy and Mr. Harish Sood alias Pinkey started creating trouble for the defendant. The police report in respect of committing breach of peace in the locality was initiated.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (14) 3.5.The plaintiffs do not have any substantive share in the property after family settlement and defendant has been exercising his absolute rights, even by prescription also; he has been enjoying complete proprietary rights since 1957, the suit deserves dismissal.
4.1.Whereas, the plaintiffs deny allegations of written statement, they reaffirmed the contents of plaint as correct. The plaintiffs deny all allegations of the written statement in respect of exclusive ownership of the property of defendant or its construction by the defendant or about the family arrangement of 1957 or Hindu coparcenary of four brothers or obtaining the lease of the suit property by HUF or coparcenary of the assets enumerated in paragraph above. The plaintiffs explained the suit has been valued properly and plaintiffs are in joint possession of the property. The co- ownership of the plaintiffs is there and it is relevant for deciding the controversies involved, instead as to when the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (15) construction was done.
The plaintiffs also deny the plea of additional pleas of written statement elucidating that neither there was lease obtained by HUF nor there was coparcenary of other properties, particularly the tenanted shops could not be an HUF properties, since the same were in the name of respective persons. The plot at Nangal Rai was purchased by Dev Raj Sood and other properties were purchased by the owners by their own name out of their own funds. There was no family arrangement or oral partition in the year 1957 or otherwise nor any trouble was created or stared in May 1990 nor the defendant has exclusive rights in the property. The suit has been filed properly.
5. From the pleadings of the parties the following issues emerged for determination, which were framed on 26.11.1998 and 18.07.2001 :-
1.Whether the suit has been properly valued for the purposes of Court fee and jurisdiction. If not, what is the correct value for the aforesaid purposes and to what effect, if any? OPP Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (16)
2.Whether there was family arrangement and settlement between the parties in the year 1957 as a result of which the suit property fell to the exclusive share of the defendant and he made construction thereon and no part of plot No. 49/52, Sadar Bazar, Delhi Cantt., Delhi is vacant? OPD
3.Whether the plaintiffs are entitled to the relief of partition of the suit property as claimed in this case? OPP
4.Relief.
On 18.07.2001, the following additional issues were framed :-
uZ * "< : :
Whether the suit of the plaintiff is barred by limitation? OPD uZ * "< C Whether the defendants are entitled to claim the ownership rights of the suit property by prescription and or adverse possession? OPD
6. In order to establish the case plaintiff no. 4 Sh. Sudhir Sood appeared in the witness box as PW-1 and concluded the evidence. Whereas, defendant's LR Sh. S.K. Sood (LR no. 3 of the deceased defendant) entered into the witness box twice as DW-1, Sh. Y.K. Sood (LR no. 4 of deceased defendant) Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (17) was examined as DW-2 and Sh. Rameshwar Dayal, Architect/ Engineer was examined as DW-3 and then evidence was concluded. The plaintiff also led evidence in rebuttal by examining Sh. Sudhir Sood as PW-1 followed by statement of Dr. Harish Sood [LR no. (ii) of deceased plaintiff no. 2] as PW- 2, Mr. Kamal Kishan Asstt., Grade I, NDPL as PW-3. Shri Suresh Kumar from Delhi Cantonment Board appeared as PW-4, while producing record of Lease Deed, mutation vis-a- vis record pertaining to the payment of House Tax, Water Tax and conservancy charges. (Ld. Counsel for plaintiff no. 2 explains that although the replication was not signed by plaintiff no. 2 but it does not mean that he abandons his claim of partition and as a matter of fact the plaintiff no. 2 was intending to appear in the witness box in rebuttal evidence to establish that there was no family settlement or family arrangement in the year 1957 but during the juncture of defendant's evidence, the plaintiff no. 2 Dr. Rattan Lal Sood expired and occasion had not come for him to appear in the witness box).
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (18)
7. At the stage of final arguments, Sh. A. P. Aggarwal & Associates, Advocates presented oral submissions on behalf of plaintiffs no. 1, 3, 4 & 5; Sh. Praveen Suri, Advocate made oral submissions on behalf of the plaintiff no. 2's LRs. Whereas, Sh. Basant Mirza, Advocate for the defendant filed written arguments followed by additional submissions supplemented orally. At the juncture of certain clarifications, the defendant filed an application under order VIII Rule 1 CPC accompanying the photocopy of Lease in respect of property survey No. 49/35, Sadar Bazar, Delhi Cantt., that the same may be considered at the time of final adjudication of the case, as the documents were obtained under Right to Information Act from the Delhi Cantonment Board. This application has also been replied by the plaintiffs that the defendant cannot be permitted to reopen the case again, particularly the document filed was available with the defendant and secondly, it corroborates the case of the plaintiffs that the Lease Deed bears the signature of Shri B.C. Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (19) Sood, which manifest that he was not minor, as Government or Local Body does not enter into contract with a minor directly. The defendants' LRs present today also filed photocopies of Lease Deed pertaining to property No. 88, J.J. Colony, Moti Bagh, Delhi in favour of Smt. Prem Kumari Sood and also photocopy of Sale Deed (Persian script), stated to be in favour of Kesri Dass Sood, but the plaintiffs have opposed the move that neither it is the stage of filing such documents nor the same can be considered, particularly when DW-1 was cross examined on this aspect.
The record is voluminous vis-a-vis the statement of witnesses and documents, therefore, the relevant contentions of the parties will be discussed issue-wise. My findings on the issues are as follows:-
8.1. Issue No. 1 :
Whether the suit has been properly valued for the purposes of Court fee and jurisdiction. If not, what is the correct value for the aforesaid purposes and to what effect, if any? OPP The onus to prove issue no. 1 lies on the plaintiffs.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (20) According to the plaintiffs, the suit has been properly valued for the purposes of court fees and jurisdiction. The appropriation Court fees has also been affixed/paid. The plaintiff has been maintaining from the inception of suit that the construction was raised in a portion of the suit land and remaining portion of the suit land is lying vacant but the defendant has given inconsistent stands about the extent of construction and about the remaining vacant land. Secondly, it is an admitted fact that the suit property was purchased by way of sale deed in the name of four brothers and it is in the joint possession of all. Thirdly, the defendant produced DW-3 Rameshwar Dayal Architect/Consulting Engineer, who tendered valuation report dated 27.07.1999 (Ex. DW-3/1).
The Architect was cross examined in detail and he has admitted that the report was furnished on the basis of hearsay facts gathered from the area of Satya Niketan and the suit property is located in Delhi Cantonment Area. There is no authenticity or reliability on the report Ex. DW-3/1. The Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (21) plaintiff no. 2 endorsed views of other plaintiffs.
8.2.Whereas, according to defendant, the plaintiff values the suit property worth of Rs. 4,50,000/- but without any evidence or corroborating evidence, consequently the statement of defendant's witnesses DW-1, DW-2 and DW-3 corroborate that the market value of the property was Rs. 50 lacs, on which ad-valorem court fees was payable. Further, it is unbelievable that the suit property measuring 5610 sq. ft (i.e. 625 sq. yards), situated in the posh Delhi Cantonment area, was worth of Rs.720 per sq. yard, it is preposterous and not acceptable. There is also no rebuttal to the valuation of the suit property proved by the defendant, therefore, it is to be accepted and consequently not only the Court fees is payable but this Court will have no pecuniary jurisdiction in the matter. There is also no evidence that the plaintiff are in possession of the suit property, whereas, the defendant has been in exclusive occupation and the possession of the suit property from the time of family settlement. Now, the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (22) plaintiffs' explain that the title of the owner must be deemed to carry with it legal possession, hence, the plaintiffs are in joint possession of the suit property.
8.3.The Issue No. 1 has two parts, the former part comprises valuation of the suit for the purposes of jurisdiction and court fees. In case the former part is decided negatively, the later part will required to be answered, otherwise in the eventuality, the former part is answered affirmatively, the later part would not required any findings Considering the rival contentions of both sides, in the light of report of Architect, the statutory provisions of Suit Valuation Act, the Court Fees Act, I draw the following conclusions:-
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(a)to determine, prima facie, the nature of suit, it is a plaint which has to be examined;
(b)the court fees payable on a plaint has to be determined on the basis of allegations containing in the plaint as suit would proceed on the assumption set out in the plaint;
(c)the suit for partition of alleged joint properties is governed by the provisions of Article 17 (vi) of Schedule II of the Court Fees Act;
(d)in a suit for partition of property the value of the suit for the purposes of suit valuation, will be the value of the whole Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (24) of the property as determined by Sections 3, 8 & 9 of the Suit Valuation Act (also stated in Rule 8 of part C of Chapter 3 Vol. 1 of High Court Rules and Orders); and
(e)in view of the conclusions (i) to (v) above, the valuation of suit would be according to amount at which relief sought is valued in the plaint by the plaintiff in terms of Section 17
(vi) of Court Fees Act 1870. Since the report (Ex. DW-3/1) does not depict the actual valuation of the suit property of the year 1994 and the rest valuation of the suit property by the defendant's witnesses are merely an oral versions, therefore, the valuation carried by the plaintiff is considered valuation in terms of Court Fees Act. Hence, valuation of the suit of Rs. 4,50,000/- for the purposes of jurisdiction is concluded properly valuation by the plaintiff and in terms of Article 17 (vi) of Schedule II appended with the Court Fees Act, the plaintiff has also valued the suit properly for the purposes of Court fees, which has already been paid by the plaintiff. Hence, the present court has jurisdiction to try and decide the case. The first part of Issue No. 1 is decided in favour of plaintiff and against the defendant.
The later part of issue no. 1 was required to be answered when the former part is answered negatively, however, the former part has been answered affirmatively, therefore, the later part does not require any findings. Accordingly, Issue No. 1 stands disposed off.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (25) 9.1. Issue No. 2 :
Whether there was family arrangement and settlement between the parties in the year 1957 as a result of which the suit property fell to the exclusive share of the defendant and he made construction thereon and no part of plot No. 49/52, Sadar Bazar, Delhi Cantt., Delhi is vacant? OPD (The following Paragraphs No. 9, 10 and 11 are in respect of discussion and findings on Issue No. 2).
While going through the record, there are pleadings, evidence and arguments of the parties; the facts or evidence regarding one point has been scattered at different places either because of cross examination of witnesses repeatedly or in order to highlight a particular fact; there is also different version of the witnesses on one point. After analysing them, the following admitted facts or evidence have emerged:-
(i)in the pedigree of the family is Sh. Rala Ram, (working in Army hospital Delhi Cantt., started practicing of Hakim after his retirement, died on 1932/33) and Sh. Battu Ram (bachelor died in 1963) were the brothers. Rala Ram's wife was Smt. Tarawati (died on 06.04.1954);
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (26)
(ii)the four brothers were the sons of Sh. Rala Ram, as on today, none of the them is alive. Defendant Sh. Ramesh Chand Sood and plaintiff no. 2 Dr. Rattan Lal Sood expired during the pendency of present suit. Rala Ram had also two daughters;
(iii)none of the four brothers had an occasion to enter the witness box or appeared in the witness box but their children are witnesses, who are PW-1 and PW-2 and DW1, DW-2. The witnesses deposed on the basis of what they have heard of or learned from others or they perceived from the available record and then their conclusion or experiences.
The suit property was purchased from Sh. Ghewar Lal in the name of four brothers by way of registered sale deed dated 10.11.1955. This fact has been admitted in evidence and there is no specific denial in para 17 of the written statement. The suit property was constructed partly after sanction of building plan and part of the suit land is lying vacant;
(iv)all the properties in Delhi Cantt. are lease hold properties. The properties stated at serial no. 3.4 (a) to (d) and (g) are the tenanted properties or lease hold properties, inclusive of property at serial no. 3.4(e) from Delhi Cantonment Board, Delhi. At the stage of orders, after conclusion of final arguments, the defendant filed copy of Lease Deed in respect of property at serial no. 3.4(e), which is in the joint name of Shri B.C. Sood and three other persons, which bears signature of all four persons;
(v)after purchase of suit property and then construction thereon after sanctioning of building plan, such construction is still existing in the suit property. The lease record of suit property/survey no. 49/52 (Ex. PW-4/10) is still in the name of four brothers; and Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (27)
(vi)the properties, reflected in paragraph 3.4(a) to (g) are presently occupied as enumerated as follows:-
(a)the property no. 1/165 Sadar Bazar, Delhi Cantt. {3.4
(a)} is in the possession of Ratan Lal (the plaintiff no. 2) and his sons;
(b)property survey no. 49/35 Sadar Bazar, Delhi Cantt.
{3.4(e)} is occupied by Sh. V. C. Sood (since deceased) and his heirs;
(c)property survey no. 49/25 {3.4(g)} is occupied by LRs of Sh. V. C. Sood;
(d)the shop no. 1/31 Sadar Bazar, Delhi Cantt. {3.4(c)}, shop no. III/171 (also known by new no. III/1/3 Church Road {3.4(d)}, plot comprising Khasra no. 497/443/171 Village Nangal Rai, Delhi Cantt. {3.4(f)} are in possession and occupation of the plaintiffs no. 3 to 5; and
(e)shop no. II/22 Sadar Bazar, Delhi Cantt {3.4(b)} is in occupation of Kesri Dass nephew of Battu Ram. 9.2.Again the scattered features of defendant's case/plea is summarised and compiled as follows :-
(i)there was an Hindu Undivided Family (HUF) and coparcener properties/assets held jointly (as per the version given in the written statement);
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (28)
(ii)Himachal store HUF came into existence in the year 1931-33 and the store by the name Himachal Store HUF was in operation at 1/165 Sadar Bazar Delhi Cantt. upto 1963, wherein, Rala Ram and his brother Battu Ram carried the business. Sh. Battu Ram used to looked after agricultural land in Village Amb District Una (Himachal Pradesh). Sh. Battu Ram came in Delhi Cantt. Delhi in the year 1920 and joined Rala Ram, after death of Sh. Rala Ram in 1933 he became Karta of HUF. Himachal Store HUF remained in existence till the family settlement of 1957, when it was given to Sh. V. C. Sood. Himachal Store HUF was also known by name Sood Brothers HUF;
(iii)the property enumerated in para 3.4 above, were acquired with the funds of HUF or from the coparcener properties held jointly;
(iv)the suit property was also acquired in the name of four brothers constituting HUF;
(v)in the year 1957, around Dusshera festival there was family settlement and pursuant to such family settlement/arrangement the suit property came to defendant Ramesh Chand Sood. He raised construction thereon with his personal funds. The other properties, as referred in paragraph 3.4 above, inclusive of running shop/business, came to the defendants other brothers pursuant to such family settlement and that is why they have developed the property and they are occupying the same.
The defendant became exclusive owner and in occupation of the suit property pursuant to such settlement, the receipts of purchase of building material in his name were also proved, that the construction was raised by him during the year 1955;
(vi)the record of income tax returns, particularly Ex. DW-1/9 and other receipts prove the existence of Himachal Store HUF;
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (29)
(vii)the present occupancy of other properties no. 3.4(a) to (g) and construction or development thereof establish that it was result of family arrangement or family settlement of the year 1957. However, the formal partition could not be reduced into writing on others failure, but it would not mitigate the family arrangement made or the rights of the defendants;
(viii)because of Sections 2 & 4 of the Partition Act (qua dwelling house) or Delhi Cantonment Board as a true owner or in view of section 108 Transfer of Property Act qua rights of lessor vis-a-vis the family arrangement/settlement of the year 1957, there cannot be decree of partition in favour of the plaintiffs and against the defendant;
(ix)otherwise, the defendant has acquired the title in the suit property by way of adverse possession or law of prescription;
(x)the law recognizes oral partition or family arrangement/ settlement, which does not require registration and Courts are also lean to accept this proposition instead of to avoid it. The intentions of the parties or their conduct also established the circumstances proving family settlement/arrangement or to infer partition of the property;
(xi)the suit is also barred by Law of Limitation and or by Article 64/65 of the Limitation Act, 1963.
In order to fortifies such contentions the plaintiff has relied upon precedent/case law, which are as follows:-
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (30)
1. Arjun Mahto Vs. Monda Mahatain & ORS. Air 1971 Patna 215 (V 58 c 46) - the circumstances when documents of partition were not available or when there are admissions, which are substantive evidence by themselves, was discussed in arriving intentions of the parties. It is was also held when there is no formal document of partition still the partition can be proved by the intention of the parties manifested by their subsequent conduct by their sole and independent enjoyment of the properties. When no contemporaneous documents are available the question whether the parties remained united or separate is to be decided on the facts of each case. The partition in such a case can be proved by the intention of the parties by their sole and independent enjoyment of the properties. Separation in food and residence for a long time among the brothers of a Hindu family, independent transactions of property, separate possession and enjoyment of properties are by themselves, no doubt, not conclusive but the cumulative effect of such facts may show that there had been a partition between the brothers during their lifetime. In the case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the transaction have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable interferences than in a case where the evidence is not obliterated by passage of time.
2. Bhagwan Dayal Vs. Reoti Devi AIR 1962 Court 287 (V 49 C
49) - while discussing the principal of presumption and its application it was held that the general principal is that every Hindu family is presumed to e joint unless the contrary is proved;
but this presumption can be rebutted by direct evidence or by course of conduct. There is no presumption that when one member separates from others, the latter remain united; whether the latter remain united or not must be decided on the facts of each case. to these it may be added that in case of old transactions when no contemporaneous documents are maintained and when most of the active participants in the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (31) transaction have passed away, though the burden still remains on the person who asserts that there was a partition, it is permissible to fill up gaps more readily by reasonable inferences than in a case where the evidence is not obliterated by passage of time. Further, when this conduct of the parties for about 50 years was consistent with their partition rather than their joint status.
3. Mukhram Rai Vs. Chandradeep Rai AIR 1936 Patna 68 - in this case also the principal of presumption was discussed and applied vis-a-vis the principal of adverse possession, it was held while, concluding on presumption of partition when parties have been in possession of and exercising rights of ownership over separate blocks of land for a long time the courts might well presume that these lands have already been divided and rights of parties defined in regard to them in such a manner as to preclude their being re-partitioned.
Further, the parties divided in status but not in properties, when the defendant is in exclusive possession of disputed lands for over 12 years of period the Article 127 or Article 144 Limitation Act, were, held applied and defendant held got title to land.
4. Gangabai Vs. Fakirgowda AIR 1930 Privy Council 93 - it was held on proof of the partition that separation in food and residence for a long time between two brothers of a Hindu family, Independent transactions of property such as mortgages and leases and appropriation of the proceeds thereof to personal uses, description of one of the brothers as being separated in the record of rights (1903), enjoyment of the properties by the widow of one of the brothers after his death and the entry in the mutation register prepared under Bombay land revenue Amendment Act 1913, of the name of widow as the owner of the properties, all these facts clearly show that there had been a partition between the two brothers during their lifetime.
5. Budha Mal Vs. Bhagwan Das 18C.302 P.C = 5 Sar. PCJ 632 - in this case the intention of the parties and legal consequences of the dealing were considered and while approving the finding of Additional Commissioner, it was held Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (32) that the parties, by tie act and conduct had shown that they had intended and had tacitly consented to possess separate portions of the family property in severalty, although there had been no formal act of partition among them. To say distribution of the family estate followed by separate possession was considered equivalent to informal partition.
6. Bharat Singh vs. Bhagirathi AIR 196 SC 405 (V 53 C 84) - in this case principal of presumption was discussed that when Hindu brothers constituting a joint family there is strong presumption in favour of Hindu brothers constituting a joint family. It is for the person alleging severance of the joint Hindu family to prove it. The mere fact that after the death of the father mutation entry was made in favour of three brothers and indicated the share of each to be one-third, by itself could be no evidence of the severance of the joint family which after the death of the father consisted of the three brothers who were minors. To say there is a presumption that the Hindu brothers were constituting a joint family and the onus lies on the person who is alleging severance of the joint family.
7. Kale and others Vs. Deputy Director of consolidation and others AIR 1976 SC 807 - in this case the family arrangement or family settlement was discussed in detail from various angles and it was held that the family arrangement may be even oral in which case no registration is necessary. Bona-fide disputes present or possible, which may not involve legal claims, are settled by a bona-fide family arrangement which is fair and equitable, such family arrangement is final and binding on the parties to the settlement. The family settlement must be bona- fide one so as to resolve family dispute, a rival dispute, by a fair and equitable division or allotment of properties, between the various members of the family. The settlement must be voluntary and should not be induced by fraud, undue influence or coercion. In addition the courts have leaned in favour of upholding a family arrangement instead of disturbing the same on technical or trivial grounds. In case the courts finds that the family arrangement suffers from legal lacuna for a formal defect the rule of estoppal is to be pressed into service and is to be applied to shut out plea of person who be a party to the family arrangement seeks to unsettled a settled dispute.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (33)
8. Shyam Sunder Vs. Siya Ram AIR 1973 Allahabad 382 ( V 60 C 132) - this case was considered in Kale & Others (supra) that compromise had been taken into consideration as a piece of evidence even if it was not registered or for that matter as an evidence of an antecedent title.
9. Awadh Narain Singh Vs. Narain Mishra AIR 1962 Patna 400 (V 49 C 106) - in this case documents regarding family arrangement and their registration was considered while holding a compromise petition not embodying any terms of agreement but merely conveying information to the Court that family arrangement had already been arrived at between the parties does not require registration and can be looked into the ascertaining the terms of family arrangement.
10.Ram Charan Vs. Girja Nandini AIR 1996 SC 323 (V 53 C
65) - meaning of family settlement, its objects and consideration were discussed while concluding Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word 'family' is not to be understood in a narrow sense of being a group of persons whom the law recognises as having a right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. That consideration having passed by each of th disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter.
11.C.C. Lrev. Authority Vs. Satyawati AIR 1972 Delhi 171 (V 59 C 40) - this case was referred for consideration in Kale & Ors. (Supra) and it also finds reference in paragraph 42 of Kale & Ors. (Supra) but it was found not applicable to the circumstances of the case.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (34)
12.Mt. Bibi Aziman vs. Mt. Saleha and others Air 1963 Patna 62 (V 50 C 15) - this case was also referred for consideration in Kale & Ors. (Supra) however AIR 1963 Patna 62 was over ruled in Kale & Ors.
13.Rachcha and others Vs. Mt. Mendha AIR (34) 1947 Allahabad 177 - in this case essential of surrender were discussed and it was held that surrender must be transfer of title in prasent or and or entire estate. It was also held that compromise did not amount to surrender and being for benefit of estate. It was included that surrender must be of the entire estate and secondly there must be a transfer of the title in prasenti.
14.Krishna Beharilal Vs. Gulabchand AIR 1971 SC 1041 - in this case the principal of estopel embodied in Section 115 of Indian Evidence Act vis-a-vis family arrangement was considered. It was held if a person having full knowledge of his rights as a possible reversioner enters into a compromise which settles his claim as well as the claim of the opponent at the relevant time, he can not be permitted to go back on that arrangement when reversion actually opens. Further, while considering a settlement as a family arrangement it is not necessary that the parties to the compromise should all belongs to one family.
15.S.S. Pillai Vs. K.S. Pillai AIR 1972 SC 2069 - in this case the principal elucidated in Krishna Biharilal (supra) were also considered with regard to the determining factor of family arrangement and its validity. Sahu Madhu Das Pd. Mukand Ram AIR 1955 SC 481 and Maturi Pullaiah Vs. Maturi Narasimham cases were followed that members of a joint family may, to maintain, peace or to bring about harmony in the family, enter into a family arrangement. If such an agreement is entered into bonafide and terms thereto are fair, the Court would merely give essence to such agreement than to avoid. Further, the family arrangement will need the registration only if it creates any interest in immovable property in praesenti or in favour of the parties mentioned therein. In case no such interest created the documents will be valid despite its non registration and it will not be hit by Section 17 of Registration Act.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (35) 9.3Similarly, the case of plaintiffs no. 1, 3, 4 & 5, and of plaintiff no. 2 is summarized as follows:-
(i)the suit property was purchased by Sale Deed dated
10.11.1955 in the name of four brothers and it was not in the name of HUF.
The suit property was purchased with the funds contributed by the four brothers and construction was also raised with the joint funds of all the four brothers;
(ii)the other properties no. 3.4(a) to (d) and (g) are the tenanted properties; and the property stated at sr. no. 3.4(f) is a free hold property belonging to Sh. Dev Raj Sood. The record of property no. 3.4(e) of Lease Deed filed by the defendant along with the application under order VIII Rule 1 CPC corroborates the plaintiffs' case that Shri B.C. Sood (V.C. Sood) had signed the Lease Deed with the Delhi Cantonment Board and he was not minor in the year 1931 when the allotment was made in his name along with three other;
(iii)neither there was an HUF nor coparcener properties or assets nor Himachal Store HUF or Sood brothers HUF. The defendant's written statement does not decipher about Himachal Store HUF or Sood brothers HUF. There is no proof of existence of Himachal Store HUF since 1931-1933 or prior to 1961 or of existence of HUF funds or ancestral property, therefore, the nucleus of joint family property is missing;
(iv)after death of Sh. Rala Ram, his wife Smt. Tarawati looked after her children (i.e. Four brothers) as their mother and brought up them. Sh. Battu Ram was never Karta of family;
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (36)
(v)in income tax returns record or the other record does not prove fact of existence of Himachal Store HUF from the period as alleged by the defendant. There was a partnership business by Ratan Lal Sood, Kesri Dass and Sh. Ramesh Chand Sood;
(vi)neither there was family settlement nor arrangement in the year 1957 nor the suit property came to the defendant as his share nor the other tenanted properties came to the other three brothers in family settlement and as a matter of fact, the tenanted properties could not be subject matter of family arrangement or family settlement or partition;
(vii)oral partition is recognised in law if it is equitable and have been acted upon. However, this situation does not exist; and
(viii)the suit property, in the joint title of four brothers is in possession of the plaintiffs, being co-owners; the title of the owner or the co-owner must be deemed to be carried with it legal possession.
10.1.In order to appreciate the rival contentions of both sides it is desirable to discuss the point of law on the concept of joint family, Hindu Undivided Family, coparcenery, Joint Hindu property and coparcener HUF property.
In order to constitute the Hindu Joint Family, it consists of common ancestral and all lineal male descendants up to any generation, together with the wife or wives or widow and Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (37) unmarried daughters of the common ancestral and or lineal male descendants.
The expressions Hindu Undivided Family is slightly different from the definition of Hindu Joint Family as the expressions Hindu Undivided Family is known in the world of revenue statute. The Hindu Joint Family is understood in the personal laws of Hindus, whereas Hindu Undivided Family is considered as assessable unit, which may consists even two male members.
Coparcenery is a narrow body of person within a joint family and it consists of father, son, son's son and son's son's son.
The Hindu Joint family property is like a big common stock/reservoir into which property flows in from various sources and from which all members of the joint family draw out to fulfill their multifarious need. The joint family property may be ancestral property, the property obtained by partition, the property jointly acquired by coparceners, accretions and coparceners Hindu Undivided Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (38) Family (property held in the name of coparceners for the benefit of Hindu Undivided Family).
It is also a settled proposition that proof of existence of Hindu Joint Family does not lead to the presumption that the property held by any member of the family is joint. On the eve of establishment of the fact, that the family possessed some joint property, which from its nature and related value may have formed the nucleus from which the further property have been acquired, it would constitute Hindu Joint Family property. Hence, when there is no joint family nucleus, a property acquired is separate property.
10.2.1There are three parts of issue no. 2 and the last/ third part is in respect of extent of construction in the suit property. The plaintiff has been maintaining that the suit property was constructed partly and part of the land is lying vacant, the defendant plead contrarily as no portion of land is lying vacant. The following extracts of evidence suggest the factual position:-
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (39) Witness DW-1, during his cross examination, deposed "..... the construction is existing on a part of plot in the suit and the remaining portion is lying open and non-constructed (this version was deposed four times in his cross examination)..... witness DW-2 also deposed .... it is correct that construction exists on a portion of the said land and the remaining is lying vacant...."
The plaintiffs' witness PW-1 states ".... the construction was raised on the portion of land and remaining land is lying vacant ....." stands corroborated from the statement of DW-1 and DW-2.
Therefore, the third part of the Issue No. 2 is decided against the defendant, as part of the suit plot is vacant.
10.2.2.Now the first and the second part of issue no. 2 is taken.
From paragraphs 9.2 and 9.3, above, it is apparent that the plaintiffs and the defendant have their respective case of extreme end, as the defendant's case is that there was coparcenary properties flowing the source of Hindu Undivided Family known by name Himachal Store HUF or Sood Brothers HUF; the plaintiffs talked about of another extreme end that there was no HUF or by name Himachal Store or Sood Brothers nor the properties were the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (40) coparcenary properties. Under this situation, particularly when none of the witnesses have personal knowledge about the incident occurred either in the year 1920 or 1931-33 or in the year 1957, the circumstances vis-a-vis the documents are required to be analysed to reach at the source to determine whether there was an HUF or whether there exists nucleus from which existence of an HUF can be ascertain. Hence, relevant evidence of the parties is reproduced hereunder:-
About Himachal Store HUF or Sood Brothers HUF (A) There is no pleadings/written statement of the defendant reflecting name of Himachal Store HUF or Sood Brothers HUF or their Karta but witnesses DW-1 and DW-2 talked much about the Himachal Store HUF in their deposition.
Witness DW-1 deposed "...... initially the HUF business was under the name and style of Himachal Store. I do not know in which year the business in the name of Himachal Store was started .... Himachal Store did the business up to the year 1957 then family settlement was arrived....... the tenancy of shop no. 1/165 was earlier under the tenancy of Himachal Store HUF.... Himachal Store never did any business after 1957 as the final family settlement was effected Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (41) and the family was disruptive.... I do not have any record to show Himachal Store was assessed to income tax prior to 1960-61..... there is no document showing that M/s Himachal Store ever carried out any business from shop no. 1/165 prior to 1960-61....... I do not know when the firm M/s Himachal Store was closed down. My father had share in Himachal Store since beginning..... I have read the contents of Ex. DW1/9. Ex. DW1/9 is an assessment of HUF firm. I do not know as to which nephew was not included in M/s Himachal Store. As there were three nephews, were involved in Himachal Store with Battu Ram. Again said, Dr. V. C. Sood was not there in the Himachal Store..... my father was in Government service at that time.....".
Witness DW-2 had also deposed about the Himachal Store and he said "..... I cannot tell the date, month and year when business of Himachal Store was started....... the business of Himachal Store continued up to 1963.... I do not know, if Himachal Store was in existence when Rala Ram died.... After 1957, Himachal Store continued to be a Joint Hindu Family Business..... I do not know if anything was given in the settlement of 1957 to Sh. Battu Ram. I do not know if Sh. Battu Ram was member of Joint Hindu Family or not....".
About Rala Ram, Battu Ram and their native properties Witness DW-1 during his statement deposed "....Rala Ram used to work in Army hospital, Delhi Cantt. After retirement he started his own practice as Hakim. Sh. Battu Ram was looking agricultural land in the village and come to the Delhi Cantt in 1920. He was carrying out business of Pansari-Atari..... In the cross examination of witness PW-1, the defendant put his case, which was replied by PW-1, as ".... I am not aware if since 1932-33 to 1963 a store by the name of Himachal Store was running there. It is wrong to suggest that M/s Himachal Store was registered in the income tax as HUF with Battu Ram and his four nephews i.e. Sons of Sh. Rala Ram.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (42) Witness DW-2 was cross examined on behalf of plaintiff and he deposed "....... it is correct that Sh. Rala Ram did not inherent any property from his father. Again said I do not know Sh. Battu Ram accompanied Sh. Rala Ram Sood from his native village. Sh. Battu Ram Sood was managing the agricultural land at native Village Amb District Una HP. I cannot tell the number etc., of agricultural land at village Amb. I cannot tell up till which period the said land remained. The said land may be there. I have not seen any paper regarding those land as to in whose name the same stood. I have never seen the said land at Amb. I cannot say if the said land was in the name of Sh. Rala Ram Sood. I do not know as to what occupation Sh. Elachi Ram was having. To my knowledge he did not leave behind any property....". (Sh. Elachi Ram is father name of Sh. Rala Ram, emphasis supplied).
Witness DW-1 deposed during his cross examination as "....I cannot tell exactly the date, month or year when Shri Battu Ram came to Delhi from his native place. Shri K.C. Das was never member of HUF..... Sh. Battu Ram used to looked after the agriculture land at Village Amb District Una HP. I have not seen the record of aforesaid agriculture land. I have also not seen Sh. Battu Ram looking after personally. I am not aware that the said agricultural land is still there or not. After coming from Village Amb District Una Sh. Battu Ram started doing work at 1/165 Sadar Bazar, Delhi. About death of Rala Ram and Sh. Battu Ram Sh. Rala Ram had died in 1932 and Sh. Battu Ram (bachelor) died in the year 1963. The defendant contends that after demise of Sh. Rala Ram, the said Battu Ram became Karta of the family. Whereas according to plaintiff, Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (43) the four brothers were looked after by their mother Smt. Tarawati. Let us see the evidence.
Witness DW-1 in his statement deposed that .....on the death of Sh. Rala Ram Sood, all the children of Rala Ram were minor. Battu Ram Sood therefore, took over as head of the family.
Witness DW-2 deposed "........... it is correct that wife of Sh. Rala Ram Sood was alive when Sh. Rala Ram died. Wife of Sh. Rala Ram Sood died in 1954. It is correct that children of Rala Ram were looked after by their mother. Vol. Sh. Battu Ram also looked after them....".
Documentary record Income tax assessment order dated 15.3.1961 (Ex. DW-1/9) pertains to year of assessment 1960-61 in respect of M/s Himachal Store HUF, the Assessment Order dated 12.10.1962 Ex. PW-1/95 pertains to the assessment year 1961-62 of Himachal Store HUF and Assessment Order dated 23.02.1963 pertains to the year assessment year 1962-63 of Himachal Store HUF. Notices (Ex. DW-1/7, Ex. DW-1/8, Ex. DW-1/9 and Ex. DW-1/96) pertain to the aforementioned Assessment Orders. There is no other record Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (44) as such in the name of Himachal Store HUF. The certificate dated 01.03.1958 (Ex. DW-1/6) was issued under the Delhi Shops and Establishment Act in the name of Sh. Ratan Sood for establishment at 1/165 Sadar Bazar, Delhi Cantt. Notice of sub-letting (Ex. DW-1/1) in respect of shop at 1/165 Sadar Bazar, Delhi Cantt. was addressed to M/s B.R. Sood and R. L. Sood, unauthorized occupant notice (Ex. DW-1/2) of May 1963 was also sent to Sh. Ratan Lal Sood. Notice dated 5.3.1959 (Ex. DW-1/3) was sent to Sh. Battu Ram in respect of unauthorized construction of tin shed in shop no. 165, Sadar Bazar. Letter dated 16.07.1958 (Ex. DW-1/4) or receipt (Ex. DW-1/5) pertains to professional tax and trade licence fee in the name of Sh. Ratan Lal/Yudishter Pal Sood.
The demand and collection of conservancy tax, water tax, house tax (Ex. DW-4/2 to Ex. DW-4/9) reflect the name of M/s Sood Brothers in respect of suit property no. 1/194 Delhi Cantt. The mutation detail (Ex. PW-4/10 colly.) reflects the name of Sh. Ghevar Lal son of L. Amar Lal and then in the name of Dr. V. C. Sood, Ramesh Chander, Rattan Lal Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (45) Sood and Dev Raj Sood (the four brothers), son of Sh. Rala Ram, as existing entries in respect of the suit property measuring 5610 sq. ft. This record is accompanying original lease deed dated 28.03.1946 in favour of Sh. Ghevar Lal son of L. Amar Lal. The defendant has also filed correspondence exchanged with the Executive Officer Cantonment Board, Delhi Cantt. from time to time in respect of either house tax, water charges, payment of lease rent etc., but the entire correspondence was made under his own name Ramesh Chand Sood or Ramesh Chand Sood lessee. The letter dated 28.2.1975 (Ex. D-35), at its bottom has a margin note, as appears, that Sh. Ramesh Chand Sood had requested for renewal of lease deed for another 30 years period. This fact has also been referred by him in his subsequent letter dated 09.10.1982 (Ex. D-36).
10.2.3. (a) Now, it is necessary to consider the other properties, which were reflected in paragraph 3.4 of this judgment. According to defendant, the property no. 1/165 Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (46) Delhi Cantt. (comprising shop in front side and residence in the back portion) was acquired by Sh. Rala Ram and its possession came to Sh. Battu Ram and Sh. Rattan Lal and after the death of Sh. Rala Ram, it was transferred in the name of Sh. V. C. Sood. The business of Pansari-Atari under the name of Himachal Store HUF was done from the shop in property no. 1/165 Delhi Cantt. Now, it is in the possession of Sh. Ratan Lal and his sons (plaintiff no. 2). Whereas, according to plaintiff, the property was leased to Dr. V. C. Sood (B.C. Sood) by Delhi Cantonment Board, since beginning and it has been licenced to Sh. Rattan Lal and now licenced by Sh. Arvind Sood (son of Sh. V. C. Sood) to the said Harish Sood (son of Dr. Rattan Lal Sood).
The witness DW-1 was cross examined in respect of this property and he deposed "..... I am not aware if right from the beginning the aforesaid property was lease to Dr. V. C. Sood by Delhi Cantt. Board .... I am not aware if Dr. V. C. Sood had given the aforesaid property to his brother Ratan Lal Sood as licencee and later on Arvind Sood gave the property on licence to Rattan Lal Sood and Harish Chand .... It is correct that property no. 1/165 is owned by Delhi Cantt. Board and lease to Rattan Lal Sood.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (47) (b) The shop no. II/22 Sadar Bazar, Delhi Cantt. was
taken in the name of Tarawati, wife of Rala Ram and later on, it came into possession of Sh. Kesari Das, who was brought up by Sh. Battu Ram and it was given to him in family settlement of 1957. Whereas, the plaintiffs explain that the said shop was always with Sh. Kesari Das from the inception. Let us see what is evidence? There is no documentary record produced in respect of shop no. II/22 Sadar Bazar.
DW-1 deposed "... property no. II/22 is a shop. It was acquired in the name of Smt. Tarawati widow of Rala Ram. This shop is in occupation of Sh. Kesari Dass. This shop is in possession of Sh. Kesari Dass since the family settlement..... The shop no. II/22 was in the name of Sh. Battu Ram. Battu Ram still is the owner of property no. II/22.
(c) So far property no. 1/31 Sadar Bazar, Delhi Cantt is concerned, there is also no documentary record is produced but defendant maintains that it was taken in the name of Tarawati but later on possession came to plaintiffs no. 3 to 5 Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (48) LRs of Dev Raj Sood, in family settlement, as Dev Raj Sood was living in this property. Whereas, plaintiff maintains that this property was given to Dev Raj Sood by Delhi Cantt. and he is living there since the allotment by Delhi Cantt., in the year 1950-51.
Witness DW-1 was cross examined and he said ..... in property no. 1/31 Dev Raj Sood and his family is living,... I cannot tell the date or year when Dev Raj started living alone in the said property. The property no. 1/31 was allotted in the name of Tarawati. I have seen documents in which allotment of 1/31 had been shown in the name of Tarawati.
(d) According to defendant, the shop no. 3/171 (new no. III/1/3) Church Road, Delhi was taken by Battu Ram on rent for family but later on it came to Sh. Dev Raj, now occupied by plaintiffs no. 3 to 5 as his legal heirs. However, there are no documentary evidence but oral testimonies of the parties and DW-1 during his cross examination denied the case of plaintiff and he said .... shop no. III/1/3 was in the tenancy of Sh. Dev Raj. Again said I do not know. Probably Som Nath, Mahender Nath are the owners of said property. I Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (49) do not know if Som Nath and Mahender Nath had let out to shop to Dev Raj Sood in 1955. I do not know if the shop came into tenancy of legal heirs of Sh. Dev Raj.
(e) According to defendant, the property no. 49/35 Delhi Cantt. shop-cum-residence was taken by Battu Ram and Sh. Rala Ram in the name of minor V.C. Sood, then construction was raised by Sh. Rala Ram and after his death by Sh. Battu Ram, from the funds realized from Himachal Store HUF. The godown as well as back portion were let out. The rent from the godown portion was realized/collected by Sh. Battu Ram and Sh. Rala Ram and from the back portion rent was realized by Sh. Battu Ram and Dr. Rattan Lal. Sh. V. C. Sood started living in the property since his marriage in the year 1946-47. It is being occupied by LRs of plaintiff no. 1. The plaintiffs contends that shop measuring 2 x 44 was given to B.C. Sood in the year 1933 by Delhi Cantt. Board and it never came to the plaintiff no. 1 in family settlement. Nowadays, Sh. Balraj son of Sh. Mangal is living there. Now Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (50) we should look into the evidence.
DW-1 narrated on Oath ... property survey no. 49/35 Delhi Cantt. was taken in the name of V. C. Sood but he was minor at that time .... It is wrong to suggest that property no. 49/35 is 2 by 44 is owned by Delhi Cantt. Board. The said property was in the name of Tarawati Sood widow of late Rala Ram Sood .... it is wrong to suggest that 2/44 was never in the name of Smt. Tarawati ..... It is wrong that Mangat Pal was living in the premises. It is correct that Balraj Pal is living there presently. I did not know if Balraj Pal is son of Mangat.
DW-2 in his affidavit stated ..... portion of property no. 49/35 comprising a shop in front and residence at back was acquired by Rala Ram Sood in or about 1931. Probably name of minor Sh. V. C. Sood was given as purchaser. [At the juncture of arguments, the defendant no.1 had filed copy of lease deed dated 01.07.1931 obtained on application of April 2006 under Right to information Act. This lease deed reflects the name of four lessees namely Bishan Singh, Harbans Singh, Govind Ram and Basheshwar Chand Sood (B. C. Sood) and it was signed by all the lessees].
(f) There is no documentary proof in respect of property comprising Khewat No. 60, 497/443/151 measuring approximately 252 sq. yards situated in Nangal Rai but the defendant claims to be property purchased from the funds of HUF. The plaintiffs do not dispute its present possession with Shri Dev Raj LR/heirs plaintiffs no. 3 to 5 but it has been claimed that this property was belonging to Shri Dev Raj Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (51) Sood prior to 1957 and there was a Suit for Declaration decided by the Court in their favour in the year 1967. Witness DW-1 was cross examined and he replied as follows :-
The land at Nangal Rai was purchased prior to 1957. This was purchased in the name of HUF. It was purchased in the name of Sood Brothers or something. I have never seen any documents showing that this property was never in the name of Sood Brothers or something...... It is wrong to suggest that the same land belong to Dev Raj Sood, who owned the same prior to 1957. It is wrong to suggest that Dev Raj Sood was realizing rent from the tenants. I do not know if Shri Dev Raj Sood let out the said land to Shri Ram Chadhha and Shri Shyam Sunder. It is wrong to suggest that the Dev Raj Sood got the said land under a decree for declaration passed by the Court.
(g) According to the defendants, the property No. 49/25 Delhi Cantt., residence-cum-shop was place of residence of Shri Rala Ram and Shri Battu Ram. Shri Rala Ram lived there up till his death. Then the LRs of V.C. Sood are living there pursuant to the receiving the property in family settlement. Whereas, according to the plaintiff, Shri Asha Singh and Ratan Singh sold the property to Smt. Kamla Devi Sood (the defendant no. 3) while sale deed dated 31.10.1962. The plaintiff had put their case in evidence Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (52) during cross examination of witness DW-1, who deposed ...... The land underneath property No. 49/25 was in the name of Shri Asha Singh. I do not know to whom Asha Singh sold the property. It is wrong to suggest that Asha Singh sold that property to Smt. Kamla Devi Sood ..... I do not know as to in whose name the property exists now. I can deny that the said property is still in the name of Kamla Devi Sood. 10.2.4.Paragraphs 9.2 and 9.3, depicts the case of both the parties in respect of suit property No. 49/52 Delhi Cantt. Now it would be appropriate to reflect the glimpses of their respective evidence.
Witness PW-1 deposed that land underneath, the suit property was acquired by Shri V.C. Sood, Shri Dev Raj Sood, Shri Ramesh Chand Sood and Shri Ratan Lal Sood on lease, bearing survey No. 49/52, Sadar Bazar, Delhi Cantt. After taking the land, all the four brothers raised construction after getting plan sanctioned.....
Witness DW-1 was cross examined on behalf of the plaintiff and he narrated ".....It is correct that the underneath the disputed property was purchased from Shri Gehwar Lal vide Sale Deed dated 10.11.1955..... The disputed land was purchased in the year 1954-
55..... The said Sale Deed might have been in favour of Sood Brothers.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (53) Witness DW-2 was also cross examined in this aspect and he said "......It is correct that the Sale Deed in respect of suit property was in the name of all the four brothers......"
The written statement (Paragraph 1 on merits) depicts "the land was obtained on lease by the HUF of which the four brothers were members at the time, out of coparcenary fund made available from the jointly held assets of the family.
11.1.From the Paragraphs 9 and 10, above, which depict and conclude not only the case of both the sides but also the relevant evidence vis-a-vis the admitted facts on record, I conclude, for the following reasons, there is no nucleus to suggest the existence of HUF or Himachal Store HUF or existence of coparcenary properties, a source of funds, from which the suit property was purchased :-
xZ]4~¦V¡¢µ¡ ¦CcCq óR£Ïºm ?ITÛ¦a·C?T¦ç]4râVa²*vô ¤¤¨ ±$¡ ¶¡ »vqª,¡©C ¼$5 w Â/¡²Oc¨H ¦ÝÅ5Æ}ÀVê¥P¨aU¶¡H{§¦V¡² «aå ]4A·C¡²O5¦V É?§¶³$¾?5²|{§cr¡¢U]4n¦V¡¢¤c ¦C¡PZóV£ ©xa¡>O¡I´ © ·V·455²tõmç¥C~mac¿²Û·C¡²O¶·Vm¿cC´ªjõ ö>ÉVc¶ Ö¦Vq÷! ä £ mϤ4¡ 2½ Contd......
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Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (55) ¤èPwwq]m ¡¤u ²Ð²O5¶¡²t¦ª©ºäP»²O?¶³¡²O¦ª¡¢$mak· ²O¡¢¤¡>O¿ca m É ¡²`4¤¿¶¡Ð¢¤c²\¨4 c¨4¤a5²*¿üs5¦E¶¡Htm²&¨H¶ ¤§¡8! · ²O·H¡²t¿ÎãÐV Å>Ê Å5ÒVÜj´ âa¦C¡²-ô cü ¡² ´/,©V ¼ cCx Âa¦C»a¡#¦C¡·}§¶³ ] Eac k ¡¢ ù ¿ ¹?¶ ¡uâ mc²O ù øRð ¡²-âa?5¦"ô ²Oma¡²{I½ §ÿaq? ·C¡² éu¡²t5åP²O¡· Šǵ¡ k¡²{ºZ>Ëû¡¢û]4 £ ²{º]mc | m]¡ k¡ m´RmaÖ¶¡Cmc m¿cØc¢ÏxaÖ¦a¡¢µ¡ ¦Cc »!v]4 ma · ²O5·C5²t¸A£G?»5¶ àj¨4«²O¦«¤aÕ 5 k1¡¢ ù ø\ð ´:£ a©¶s¬£G¡ ¶c54|¤!µ¨a¤¿ 廢¤c¨C²,¥4²O¤4¡²|U¡a¦kO¨ ¥uO?ࡨu¡PxÌ}´Pm ¡²OG£G?U ¢¤¡ ¹©Ì O]]!¡ k¡ Ú« ma ?55² ÅÆCÜVÁ ca¦ ]4 ma ¦Cc¢¤¡ ¦a C a5¦ ²t¡!T¦ ]4 ¶¡Htm² ¨a¶ ¤§ :ªÔHa ·V!c¿ ¤¿¢§¢ k¡« q¡«4 ]4R¶¡C|m²&¨a¶ ¤¿¡1£ ¡Ï²Oc§|5¦15¢µmc²Ï?¶cà5¨4!Iºm©¡ ¡¢Ïmar· ²O·H¡²t¿(«û¤aj5¡²rÅ5ÆVÜ?Ó ¿ maÝac kg¡¢¹¢¤³¨4² ¥a²Om ¡²|R5a¦k«8²t¥C¨ xq4³¾5¿¦V5 ¶c5´ ¤4<·V!¡¿ ¤¿¢¸¢ sÉj·V!c!a¦ ]4:m <¶¡Htm² ¨a¶ ¤¿c2£Ï¡,¶¡ »·V!¡m5¦E«»]4;??¡² ÅÆCÜVÜ Â Ô ar£Ïºm ?I¬$®Õ¯ZÅr¿TFĨH¶³¿¦Vq¦õma v¤4 ¶c54|¤² ¨a¶ ¤§c £ ¡ ¶¡ »·V!q5¦ c²Oc¨4 ¦ Å5ÆVÜCÜ Â Ôua ¦C5¶³¨C kc q¡² "²O¶¡²O¦"©ºäP2¶¡Iv »? k¡I´/²|c¶¡!·jZI´uq¶5ÂuÇwÈ4ÉH $®Ñ¯]ÅIÊ ÅÃkm È4É4 $®n¯qÅIÊxßVÜP˵´H¦V?¶ !·}4¡²R·P¨4²t¶c ?T2¡¢ ¥C¨C©«¦P! å km5²{©H¥}E]42¦C5¶ 5?T¦v¦V¡¢µ¡ ¦a¡P âaC² :± ¡ k?O1¼ ¡4¦ âa55¦  ý |¶c²&¨a¤«}A5¢RO¨a¶³¦V?¶s¨C k5 ]I´ k × 5²{º¸¬¡¢ mac ¡²O ¶ca¡Ä!¡Há¡ ¦ ¶¡² ²Ojt·C¡4¦P!4å ¥aº«¿ aT¾P 4Ý¥H5¡ · ²Os¾P5¦~?Ö·C¡²! £2»âV!a¶ ¡´¹ k¡²OÌM¡ç¡ ¦a¡²{T¡ kc n¡¢ É}Vº¥aº »¡²tä ¡E]4<¦C?¶T¨4 k5P ¦a5?\a ¡ k¨4 · ²O55¢ ¡¢ ²O5¶¡²t¦ª¿ªqc²{ EG¡¢\âac! Ô/¡²O × 4¡ ¹¶c4 4¦"¾}c  !¡ k?{] âaµ}c Ù#ë]± Å5ÆVÁ/Å8â4¼÷ÅßVÒPÜ Â ý m ¡² £ ¸Oc´ ¥H]¤4v·C5²t]©j 5åP²O55¦]4`man¶5cH|¤² ¨a¶ ¤¿5£G?E¶¡ »·V!q5¦¨a·m©b ma }?¡²pÅ5ÆVÜVÜa ÔH4p£G²*!wq¡M|xq¡ k¡C8O¨aåVåV?|mI´ j¬¿¢¸´Ðma ¶c54|¤² ¨a¶ ¤§c»£Gj ²O¡!T¦2c¢µq¡² ¨4>Oca²OEÅ5ÆVÜVÁj½ mÿVZ]4¡²tØ!uõ¦C5¶>¨4 kc q¡²qØ· ²|5¡¢ £G©¤K²O5åV¡²t¦Kqõma 5¶àj¨4!O©¤©¡c¢U]4v· ²O¡·4c²tm¿?¹²Oc¢µ!¶ q5¦Ñ¿é4¡²t5åP²O· Ý°CÂÌÓ Ç¿¥4´;¶ ´;¦(¡a¦(åVˤ´;cÉ?¶·Vm´Ð¡2¤a8× ¨Ca¶s¤¨C²Or¡¢§m¡²v]4¢w«a ¡²Oåj¨4 kcCqO´»]4Y¦Cc¢¤c4¦Cc ]p¢¸!º5¦~5ç·V·V©§¶c m¿¡÷¨Ca¦V¡² ¡²O¦Cc²$ê ë]ëwë ± ¨a! Å ¼ éH¼Ñ5¶¶¡ »·Ccj}«aå"¶³?·?»¡¢:ì45¡TÏ,5¦ !g²O¡|·C5¶ 2¡¢GÓ4ÆÊ]° Ügâ45¦V¡²1ô cü c²{´` ³©a`¼#¡Px  x°CÂòÓ4Ǹ? Ë ¸´ £<V©¶c<£ !»ma< ¡ k<¡¢ âaV²{Cô$º¼,Âjâa55¦"¡a¦¹mC²t5Ï]4¡² ! ¦C¡·P¡4¦V¡ ·C¡²O¡HI½ ¡a¦ Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (56) mÿ}q]ma ¦V5¢¸5 ¦Cc Z³ó¬£G©¤4?IO? £ ²| ¶s²O?I Éj¡ ¹!a¦ ¥4c¨4-]4v· ²|·4¡²{¿æ¡ |¡² ¿ ã`V ¥a´#¶c´ ¦P´#n¡ ¦å¡a¦º a?`¥4¡Õ¶¡V¢w«²{ k¦8ma¡#m "T5 k¹£G5² kmc4¡ q¦jʸ!?T?¦ · ²O5·C5²t¤¿js ÔH g¦ac¢¤¡ ¦CcC]ó £G©¤4¡|T¡1£<¡²tr4 s£ c²O ¥4c¨4 ]4¶ x¨H Rc£ a5²tIV!·Ý¡¢ ¢¸²O5ca¡!¦Ö·V!» k5?t¨4² «4å ÀCÜVÀ TàHÂs}c²O¦ I´Pã`5aåVa± ¡ §éuc²O5åP²t· v°CÂòÓuÇ!¢q Ë x 11.2.Now, it is apparent from the findings drawn in Paragraph 11.1, above, that the nucleus, which constitutes the Hindu Undivided Family, is missing, since, the defendants failed to discharge the onus to prove or establish existence of HUF or coparcenar's property or circumstantial events of family settlement or partition failed to be concluded. The following reasons further disprove the division of the property or the family arrangement of 1957 :-
x*$®Õ¯ZÅգϡնc²t?>1 Éj¡ 2«a5¦g5(¥H¡a ©¢Ï5¢Ïmar·V!c! m«¢¸¢ ¡a¦Ea¦k45¦"|·V5¶c«¢w©¶ « k¦V?·C¡T5¦ÎǸ«Ea!-tqq¡ kc ¦ax5¦ ÀCÜa§ÅÃa§ÅÆVÆ}Æ ËUÂ!«««¿ÂÌë s¾Pv¿TvjPÌAa55² ¦æ¥4³¨4-] 1¢µ¡ 2ºÌ Tx]«¡ k¡ ¢¸²O¡ ~ <Ï¢¤¤4¡² !»¤4;P5¡²ÐÅ5ÆVÜVÁj½ wqm© ! a? ²ITI |]m5 k¡P ¡ ¦ º a¡ a¡ H¥ 5c ¶c5²{²O¥H ²|m?¦ ¥} ¡ ¿a¦V·Cca¦ac ³ ¾j©¦aca¶ ¡² P¥ ¦C5¶³¨C kc q¡² <· ²O5¡¢w½ w¤m]maK·V!¡«C]«¢¸¢Aa}ÂEÀç¶ ²|>FsÉP¡ ¹! 5¦÷£ ºm ?Igé ®Õ¯]ų´ Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (57) · ²O5·Cj{¿aåKmaY¶c q¡ m©¡H{´ £GC©¶sM£ c²Oû²O¡!T¦K¥PØma ¦Cc¢¤¡ ¦a C ¥4¨ ¤4 ¢¸5 2© Tw]!¡ k¡C ¥ ¨ I« ¹¨ «mca?c¨4|Ì5´ÝéP®¬¯wÅ £Ï¡í©T ¶c²O¡>í Éj¡ 2«a¦ ma ]4¡²Or£ ¡na ·C¡²tmº]§¡ ¡ ¦M ¨HºE· ²O·C5²t¸(§ªPEqg¥H ¦ ò¾5§¦V5¦Ï¥}G·C5²t¤©m¿ca½ ©è4]¤a¡²| ! c 5¦P 2!wq5¦ ·C?O©m¿cC´ « ]4 £G²*!wq¡ |m]¡ k¡ 2c¢GmaÖ¦V¡¢µ¡4¦V¡ ¢¤b! £ c¦g?¦ ¹§I{§ H8!Ûm s¾}©¦Cca¶ ] ¡» Éj¶·V»¢w²t5ca!¦p· ²|5·C¡²{¸r k5?O¨C² ! åFÀVÜVÀ TàHÂk}c²O¦ I´Õã`5aåVæ± ¡Ñ¡ ¦ ma ma5²(· ²|5·C¡²{¤¿?Mc²O m¡4¡ ]5¦2¡²,!5jTÐ4!¦kIa¡·VR¡² ²O¡I©¦Cca¶ ¡½ ¤èa]m ¡²O¹¶cCa¡ ¥4¹¦Pò¾j!O©¡ ¡¢ qca¡Cx5¦"·P²O5·C5²t]©jI´ ?\a ! ]¡²O¡|"¸æ¶³²O5q¦ «Y]4g!¡ ¦M«Y²O?{·C5¶ v¡¢»q¡a¡Cx5¦ · ²O5·C5²t¤¿js HÔ ak· ²O¡ ¹§T¡`ä} c£ ¥} ã`V ÅIÊ*ÅÒVÜj´ âa5¦V¡²`ô cüc ²O´ ,©V4¼#c ] ¡£Ï¡U5¶àj¨C!²O¦»¿k¤4Ï ¡ k¹¡¢ âVa²{Cô#Â̼,ÂPâa?5¦ ´ ¢w²Oc m «a¶ ·V]§¡Õ¡ ¦ª! £ ¡ s¾P¡²Ð«ª¤4 ac k8 ¢\âCV² ±$! ± ¡ a5²`º#¶¡ kkmk]4"ìa± ;5¢ âVC²{/ô#Â̼ Âaâ455¦ª!m5² ¡C½ ¤èPq]¤a¡²|G§ u<s¾}©¦Cca¶ ¡´P£GV¿¶³2 ksEt¨HåVåV¡| ¤a¡$« O¨a¶c m¡4¡ ]5¦"· ²O·C¡²tm¿¡I´4¶c5 2 k ²|¶ ©¡4¡²;¡|q¥V©!IV k¡ mU£G5² !ηC¡²O¡]©¡1¡²-as¾?! å"¤4¡«²;åV55¦P£ ©b©´C£ V§¶s"¶¡ k¹q¹ma ·V!¡!C¤!¢¸¢w´,·P¨H²{ ¨u¡P<q]4¢¤¡ ¹©ÝTw]!¡ k¡CÏ!ÝmaÕP5¡² Å5ÆVÜCÁ5½ ¤ èPwq ?U kxqc²\c¢ ¢µ5¶ ¤´P]4 q¡a¡Cx5¦k· ²O¡ ¹§T¡ ¶¡V4 ¥C ]4ª ¨4¥|× ¶³R k]mc²Ï5¢ ¦Pľ?§O©¡Ñ¡¢ ² ¿åPPZI´ ?GmaÎm¡4¡Pq5¦ · ²O5·C5²t¤¿j ¦a a ¶s²|5q ]!w! ¿ ]4 « 2 ks¾P¥C« · ²O5·C5²t¤¿j{½4¡ ¦ ¤èPwwq¤£ ºma¡I1éP®¬¯ÌÓ(· ²O¦P¨u¶³5¦Û Ϩaqm¿cF²O?¶³¡²O¦Û¿ ¶ º¨4{b¾? ¡¢Yìa?T ,5¦ ¦Vq5¦ ÀVßV«à °C§Å5Æ¡Ó4Ò ! ¢µs¾Ps¨H²ç¡¢KâCV²O £<¡²Uì4H¥P¨a !¡m¡²;cH´Hº £ ¡-T!¦"mk¤a»¢xc¨C² ¥4²O¤4¡²| ¾j©¦a»âa!»,5¦8¦C¡x5¦¬ÅÃa§ÅVÅ?§ÅÆPÜVÜ Â ÔuaÏ£Gº] ?I-éP®Ñ¯ºÓ8¿| · ²O5¦P¨a¶5¦M Ϩaq¤¿5~²O5¶³5²O¦÷ÇwÈ/ÉCÂÐé ®Õ¯]ÅIÊµÓ ´»¼# «Ì4Âb˸´<£ V§¶s Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (58) ¦C·P¿¶ ] ]4Gac k<5¢/¢¤³¨4²#¥ ²Oma5²tc ëw ¸ ·a·C¡²O¡P$¢¤²O¡ áma ²O5¶c²O¦E¡¢ ì ??O»#55¦k]4³ ]42· ²O·C5²t¸E£<?Ð s¾P¡²;5¶àj¨4«²|c¦v«ª¤4k4¡ kE¡¢ ù øRðÑc² âa55¦ ô ²O¤4¡²| ù øRð  ù s£Gs¾Pc²{´C¼ «c¨4T ǵë!ê ËH¡¢:ì45¡TÏ#55¦ ¦C·P¿¶ ]U Éj·P²O?I{§¡CU¡¢4!?>O5² 5²,!?>|5»ñò¯ Clause IV : PROVIDED ALSO that the expressions "Lessor" and the "Lessee" herein before used shall unless such an interpretation be inconsistent with the context include in the case of the former his successor assigns and in the case of the letter his heirs executors administrators representatives and assigns.
11.3.In view of aforementioned Paragraphs, particularly Paragraphs 11.1 and 11.2, above, the defendant failed to prove Issue No. 2 either about family settlement or family arrangement or the suit property fell to his exclusive share or he raised the construction or no part of suit property is vacant.
The defendant will not derive any benefit, if in the cross examination of PW-1, the plaintiff no. 2 put certain question, as if, there was a family settlement, since the plaintiff no. 2, otherwise, along with the other plaintiffs, is also claiming partition to the suit property and the plaintiff no. 2's proposition would not demolish case of the plaintiffs, as the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (59) defendants also failed to prove Issue No. 2 in his favour. The present occupation of various properties appear to be as per convenience of the parties to the suit, not as a result of family arrangement or settlement. The defendants tried in dim voice that such family arrangement/settlement was a partition, which has been acted upon, since 1957 (Dussehra), the defendant failed to establish or prove this fact.
Accordingly, the Issue No. 2 is decided against the defendant.
12.1. Additional Issue No. 2 :
Whether the suit of the plaintiff is barred by limitation? OPD & Additional Issue No. 1 :
Whether the defendants are entitled to claim the ownership rights of the suit property by prescription and or adverse possession? OPD According to the defendant, in the eventuality the family settlement of the year 1957 is not believed, the Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (60) defendant became owner of the suit property by way of adverse possession or prescription, since from the period 1957, none of the plaintiff or their legal heirs ever since exercised any right in any form in respect of the suit property. As a matter of fact, their inaction establish the rights of defendant by way prescription. Otherwise, the defendant had carried the construction in the suit property followed by all affairs inclusive of payment of House Tax, conservancy taxes, water charges, etc., which is a declaration of ownership hostile to the entire world. The defendant became the owner of the suit property by way adverse possession. Article 64 of the Schedule Appended with the Limitation Act bars the suit for partition, as plaintiff failed to exercise their right within the period of 12 years from the year 1957 when the suit property came to the defendant. The defendant has succeeded to establish the Additional Issue No. 1 and Additional Issue No. 2 in his favour and against the plaintiffs.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (61) 12.2.Whereas, the plaintiffs have reservations contrary to the contentions of the defendant. The suit property was purchased in the name of four brothers, subsequently the construction was also raised out of the joint funds of four brothers and when the four brothers are co-owners, the suit property is deemed to be in the legal possession of all the brothers. The plaintiff has relied upon Syed Iqbal Ali vs. S. Humayun Qadar 28 AIR 1941 Oudh 436, wherein it was held, the title of the owner must be deemed to carry with it the legal possession and must be deemed to subsists, unless and until there is an open and hostile assertions of title accompanied by exclusive possession an effective nature of knowledge of the actual owner. In such eventuality, when the four brothers or the present plaintiffs are in the legal possession of suit property, neither Article 64/65 of Schedule Appended with the Limitation Act, 1963 came into operation nor the defendant is owner by adverse possession. The defendant failed to establish either the Additional Issue No. 1 or the Additional Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (62) Issue No. 2 in his favour.
12.3.In order to appreciate the contentions of both the sides on the additional issues, it would be necessary to discuss the scheme of the Limitation Act, 1963, term 'prescription' and the principles which governs right by 'adverse possession', as follows :-
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Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (63) P*© ! ¿T T]x!¦ ·Cj{!]§¡ ¡¢Ú! £ ]4 k¡²O « qc²{¢µ¡²Oca¶æ£Ïºm m Ö·H?IT?|O¿5 ¥?Ûmaݲ{©åP x¢¸¨ ` £Ï ¡² £G¨a«¦÷ ?n¥CKt¨C¢w¢¸©¶s§ C1qáI £ manm sKa³¾}Ø¥45¡ ¦P§{·C¡>T¡|T¦ ¨CCºj>Mt¨H¶³ « qc²{¢¤c²Oca¶Ú²|O¨ «Û! ] 5!² ¦V¡¢¸!V!x»c¨4|m¦»¢w²| ÷5jG·C5²t]§¡"5¢amaG! 4¦ ½ Zº !¬Tw]!5¦Ø²&¨4!Ý¡¢»!c£ ] ? ¡¬¥4¡¸£ 5c ¶¡¯¿s£Ïa¡²{ m ¡²OΠϨu| ¥Hvs¾?¿¦V¡4¶³v¡¢,·H¡æj|Tc²tm©¡æ5¢#4?|¤!!8¤©]! ¶³¨a·V!5¦Î£ !¤ª ÉP¶sº¨4{b¾?¹·H>T¡>O¿cÕ¡ ¦15I×&s} k¡ ¥}Î5 c¢ ]4¡ ím¹ma¹äPas£<«5¦Cå}2¡¢ m 2]4¡²`T2¡`xE¶¡Htmº¤¨ q cØc¨4|m5²IÂ$ÙÚ¶¡¯§s£<4c²v!Û·H>T¡>O¿c(¶¡V4k²t¡a¦V5²vV§ ·C?IT?II©¡ 5¦j¾?¡²|| q ] ma5² ¶¡¯¿c£ a5² ? ¿ ·C?IT?II©¡V´U k5²Or¥?Ý¡5ÝT?¶s²O a¡|]º!¡a« ¹¨4Ρga! ·C¡²t q ]4<ma¡²,¶¡¯§ £Ï ¡²³ó ,m©¤!¡½a¡4¦ &m ·}²{¿ ¶c©·}! ¸M¤ag·Cj>T>O¿c c¢p ¶ ?¯©c£< 5²M! ·C?IT?II©¡Ñ¡Ñ¥H¡a ©¢,¡¢ ¡« ]4vma¡²Ï¶¡¯§ £ 4c²|s ý Õma · ² !4¶s©·V«"]4"·C?|Tj|O¿¡Õc¢,Em²Oc4O¢¤¡²t5E¢w²O¡ E¶¡¯§ £Ï ¡² £G¨a«¦2¿T ¥4зH>T¡>O¿c"5¢a¥H¡a¡b¢ c¢umaÏ]4¡² ¶¡¯§>£Ï4 ²I ca¦ ¶?s¨4º¦ ?xa¡²Oc¢¤5²O~¥H~5¦?¾Pc²||÷«a¡I ϨH¶³ ?(C! ·C?IT?II©¡¬£G?k² 5¢¤c²O¥V!Aq¬A!s£Ï¢!¨ ]!w!n¡4¦¶c¨ !¦4 ¥4 ¶¡H{§¦V¡²t5¦ j 5¦¡¾P¡²IOÐq<¤4<ma¡²U¶c5¯¿s£Ïac²|³Â In addition, I have also an occasion to go through following precedents :-
T. Anjanappa vs. Somalingappa III (2006) CLT 237 (SC) ¦?¾Pc²|T ·C?>|?II©¡ ¶¡Cm5 »·V!mj a¡|mº! ·Cj|T?II©¡V´ £ V§¶sæ k5¡C»·Cj>O?II©¡n£ C©¶³¬¸»>É}· ² j||Ñ¡²¹! ·V©¿¦VÌ «ª¦V¡a©/¡¢ ¤!x!2¡¢ ma¹m² ¨u £Ga¡²³ÂV뵪¡²O¦a ²RqE¶¡C|mºx¨aq m g·C?IT?II©¡ûm ¥4g5¦j¾?¡²||¦ ´ Ϩu|2¥4p·Cj>T>O¿cØ¥? ·C¡²{T¡ £ 4 ¦V5?ç4Y5¶ ä}4>£ !5¦VåV ¡]4¡²{î²O¿åPPõ¥P¨a ¦V¡a©`ma¡ ÎÂPÔHak·C?>T¡|I©5 £ s¨4º¦va ¥C"5¦¡¾P¡²{T¦ ´H!¢ © ¶ck¥4<²O¡¢µ¡² ²O5¦¹q<!c£ ¢¿¨aP²{©åP  ÔH4<¶ !¡>{§¶³ ²O?ࡨH«²O¡ »¡ Contd......
Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (64)
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?¶càj¨H!{!¤¿5"¡¢um©]!Ï¥}»5¦¡¾P¡²{T ·C?>T¡>O¿cÎ ²|<ma t¨H¶³ ·C?IT?II©¡ ¿ ¦C¡V§³õ¡¢M¤² ¨H £ 4 ² óú ]º]! ¹¨4|M¥H ·C55¶c¢¸¨4b´r¡·C¡ 5 ¦ ¶¡ m«V¨us¨4cÂnøUa¦a ²YÙ ²{¤©¶ º ÒPÜ c¢ ìV¿ !xm©¡2Ù,¶ ¤´ maÏ¥ ¨H² ¦V5k©¿¡`¡Îm 2¦Cc¢¤ca¦V¡C m¹· ²|s¾P º ¢¤¢§¿² k¤Ä¾jV A.S. Vidyasagar vs. S. Karunanandam 1995 Supp (4) SCC « ]V¸ ¶?|Ú!Ö£ ¡á©T 4º¦ ]4g·C¡²{ ¹§IIò¾? ·C?IT?II©¡ § 4 ?¦?¾?5²tT ·Cj|T?II©¡ ¡4¦ ¶¡ ¥C 570 q¡² 2! q5¦8#5j»m« k¹¥}2²O¿åj m¢!¨44s£Ïac²s ë¤"ma2 ¥uT 4¶ c¢ ³¾j©¦a¡ ¶ qk ¨4·V·C¡²t maÏ·V!52¡¢ ·C¡C j>{´aa¡|]º©!¿»¡a¦ a¡m¡² §¸ t¨H¶³ ·Cj>O?II©¡ £Ïº«r4Y?|q¥V©!I 5¦j¾?¡²{T ·C?IT?II©¡u 12.4.On careful analysis of record as well as the contentions of both the sides, I have come to the conclusion that neither the defendants are entitled to claim exclusive ownership rights of the suit property by prescription or adverse possession nor the plaintiffs' suit is barred by limitation, for the following reasons, based on evidence of the parties :-
xZ]4¡²tÕ!24n¦C¶³¨4 kc q¡²qÑs¾}©¦Cc4¶³A¥?Õman¦V¡¢x 4¦V¡ m ]48]4(O¨C©"· ²O·C¡²{¸F£ ¡·j¨4²O¶³a?|5¦Ø¿Ø]4 4¡ kF¡¢ ù øRðH´g²O¡]4 ² ma ¡²O(m?|x! k¡5 5¢ ¥H] m I©¦Vj £<ºm ?IT¡ ?|x¥a©!I 5¦ ¡a¦ ¶¡V¢w«²O ¹5¦ m ]4 t¨4º · ²O5·C5²t¸E£<?R·P¨H²O¶s4?|5¦8¥?E£ T"¡¢ ²O5åP!|q¡²t5¦Õâa¡!",5¦ ¦Cx?¦1Å5à §ÅVÅ?§ÅÆPÜaÜ`!2¢¤T¾P³¨4²,¡¢/¢xs¨H²#¥a²tma¡²{I½ wq]ma ¹¨ax¡]§¡g²t5¶¡²t¦ûǵÈHÉ4 éP®¬¯ ÊµÓ Å5ÃPË ©T·}²TT¾ ¡Îma ]4áa!¦a¡²{ ¡¢ÕmaK· ²O?·C¡²t§Ú¡²O÷ ²s ê-Â̼, âa5¦C´nâVC² ±$¡ k¡IY¼ ¡ ¦ ²tFâa55¦C´<âCV²{ ±$q¡Yì4Ïâ455¦õ¡ ¦MâCV²{ Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (65) ,s¾j± × âa55¦vǸ «aT¡CU¡¢ âCV² C± !ϱ$c ˵½ w¤m]maM <¨4m¡¤¿¡ç²O5¶¡²t¦ÚÇwÈHÉ4ÂÏéP®Õ¯ºÓjÊ*Åà Ë"£G?r§It¨H¦á! Ù#·}²{!ûÅ5ÆVß}Àj´¥4c!4å !q?{õ¢x5¶>Zö«a¶ ¡²t·C¡²|m?¦ « ¨a¶c ¡¢w¢¸©¶c©}²|5¶¡²t¦ ½ ©è4*âPa²{ ± kjI ¼ ¡ ¦ ²O â455¦ a5¦ k?¦C c¶ 5²{²O¡|·C¡ ¦C5a¶³(qØ,©V2¼ cCm¡a k¡PAô 55² ¦C´»#©aÏ¥? £Ï¡`¡¢ !]m¡²{ ¡²Ð²O5à5¨H?{q-¥} ¡a25¢ O¨a¶ !]q¡²U£G?ÐTc ¡ªÀVßaºÃ}Àa§Å5ÆVÁVÜÏ¡a¦k] ¡Î¡ªÃVÆa§Å?ÃV§Å?ÆjßVÀEǧÈ/ÉCÂ? ¯w° ܹca¦ È/ÉC ¯µ°PÒ Ëµ´u£GV¿¶³A©T8¦C·P¿¶ ] ¥4c¨4 ¤4"²|5àj¨H¡|,¢¤¡² ²t¡as£ ¡¢u!5¡T<¡¢/O¨Cº/· ²|·4¡²{¿4 ÔH4c²O8£ ¡¹a1²O5àj¨u¡|-¥?âVC² ± ¡ k?O¼$a¡ ¦C²t aâ 55¦"¡©¤4¡²,qÏ Ï¨aqxÏma · ²O¡·C¡²tµ ¿2C!U Éj¶ ̨/{ò¾P a¡ k ¡² q ¥4 ²t¡as£ ¦ ¿ V§M Éj¶ ̨/{ò¾PÚ 5 k ?M!j|T55´ ]4¡²Oc¢¤¡²t¡´F]4 ¦a ¢x 4¦V¡ móÑ £ ¦C5¶³¨C k¡Pq¡² !]q¡²{ O¨Hå}åV?|U¡ ¦A· ²O³¾}"ma âVC² ±$c k?O¬¼ ¡a¦P²|Îâa5?¦Ñ 5¦ as¾Pc²Øm² } m?¦ V! E|º¢r¡á¡ ÉP¶sº¨4{b¾?ö £Ga¡²Ø¡¢ma · ²O5·C5²t¸ ¡ ¦ ]4 ¦a¡¢µ¡ ¦Cc Z ó(¶¡Cx¡ m©¡H c²O a¡ m¡4¥C«æ]4 <]4¡²tѣϡ a?|x©!¬¦a¶³!c²O¡]©¡Ûq椩]!æ¥? 5¦¡¾P¡²||·C?>|?|I©5(åV¡!Ht¹maÖ¶¡¯§ £Ï ¡²|ªac kÌõâVC² ô#Â̼ Âjâa5¦C´HâCV²{C± q¡ ìCuâa5¦"¡a¦ âCV² C,³¾ ±$&×,âa?5¦ ½ ¤èaZO! ¶c´U¤a ¹¨a]]§¡p²O5¶c²O¦ ÇwÈHÉ Â,éP®Ñ¯ÄÓjÊ*Åà Ë-·C¡²{m¡«a«aå mÑ]4A·C¡²{¿¦ûÅÆVßVÀѦV5·P¿¶sq2]4Õa¡ k¡ ¡¢-¢¤³¨H²Ï¥4² ?¤4¡²|O´ 5åV¡!a´$man¦a ¢x 4¦V¡ móa¶¡Cx¡ m¿cHk¡²OÕ4`q¡ ¥a!A] ? ]4¡²O;£ \t¨H¶s24?{]º! ·Cj|T?II©¡2¢¸²O¡ ám ·C¡²O¿¦ÕÅÆCÜVÁ}½ ¤ èPqq¡¤4n¡ !}å¡æ¡¢G&©èa¹¡ ¦pµèa*´,¥Hs¾?¡´ Ù ²*¤§¶³«¬ÒVÜæc¢ ]4"ìV¿ !x¤§¡EÙ,¶s#¦C?Ð4 ·V·VÌ4Â?Ù ²{¤¿¶s!EÒ?Óªa?;aE²O! mÏ·V!s¹«»]4<¶s¿²t¶s¨C E{q¡ ¶?,¡¢um · ²OjT¡P ¶ ?T¡½ ¤èPwq&O! ¶c´ m "·V!¡!C¤!¢¸¢ 45¦v·P¨C²|¶ jO5¦ª¤4E· ²|·C?²*µnâCV²O $± ¡ k¡IE¼ aca¦P²|Ïâ455¦¹¥} £ I ¡¢/²O?å?¸|x¡²O¦ âa! ,5¦»! ¢¤s¾?¨4²;¡¢ ]4k¢¤c¨C²`¥a²tma¡²{G5 ¦ª ¹¨ qm¿cn«ªxa ¡ k8¡¢ ¢¤c¨C²U¥a²Om ¡²|`©T2 É?!|]\! ¤4»²O5¶³5²O¦8¡¢ · ²O! ¶cº·V!¹!¡>T ² Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (66) ,©Vv¼# Cm5C kc ô 5¡²t¦ ´v#©C«½ ¥P÷·V·CÌ?!4åîxaK!s£ C¦ ¶ !¡²O¦â5P5¦æëxà}¥4¡ Ù#º:¾Vs â  ù ¨4 »s?¨C ¦C5²2ÇwâV¨4·}²OP˸´ £< 5Î]4¡²tk¸;·Cj|T?II©¡ª5¢ «:¶¡¯§ £Ï ¡²{I´ T¾P¡ª¥Pk!?åV ¢w©¶ ¤¿cC´Y] ¦V¡¢µ¡ ¦a C ¦C? aö¥H5¶¡ k £Ga¡² ¥P · ²O?T¶s² !·V]©¡¡²k?¦¡¾}5²tTª·C?IT?I{§¡V´ ?EÕ k]mc²k¡¢\¢¤¶ ]´ ]42¦C¡¢µ¡ ¦a C £ ¡-4 ¿"·H?IT>O¿cª5¢ ] ¨Hº · ²O·4c²|¿ ¥} £ sG5¢ ¦?¾P¡²{TзC?|Tj|I©¡a½ ¡ ¦ ¤èPwwq]m æ Ϩaq¤§¡Û¡¢ t¨C©Ð· ²O·Cj²&µ!Ö]4Ña5 k¬¡¢Ð¢¤³¨4² ¥a²Om ¡²|æ!¥CjO5¦ ¡á¤a(?² §å?¿a<¥P¨Hº!¦P«aåõ!?T(¦C5¦ ¦Cx?¦FÀVßaÂÄà °CµÅÆ?ÓCÒÖ¡4¦ ¼ !c¨4TÝÇ!b¾CË;¦a¡¢¸«a¡v] ²O¿åj Zª¡¢ !?>O??{´¬£ÏV¿¶³ «a¶sº¨a¦C¡íT¾}5 !5åV¡ra¡«²I{´rsÉP¶³¨ q¡²|O´ 5¦ ¹!V¸tm²tm5²tI´ ² ¡· ²O?Tc q¤b¾}¡Gc4¦v?>O¿åja5¡cÂaôa2¾}«²tµ¨H ¡¢ ]a! ¶cT¾P¡4¡P ¡¢$¡²{§å?¿a /!5?|E¦V?5¦»¾j!I¯©5¯Ä¾5¸- ¹¨ qm¿c !1]4"4¡ k8¡¢ ¢¤³¨4²`¥a²Om ¡²|O´:]4 ?¦V¦ º¤§¡ $ëxIO¨aEã } À ¡a¦(mag5¦V¦P!¤¿¡ ¡<ë]I ¨uÝãÐV»ÅÖ!Ѧa5¶s©¦ac¦õ5åV5!C|2ma ¦Cc¢¤¡ ¦a C:¡4¦»!¹¢¤s¾?¨4²,¡¢4]4 ·V!c!C]«¢¸¢x³Â Hence, I hold that neither the plaintiffs' suit is barred by limitation nor Article 65 of the Limitation Act applies, nor the defendants are entitled to claim ownership right on the basis of prescription or adverse possession.
13.1. Issue No. 3 :
Whether the plaintiffs are entitled to the relief of partition of the suit property as claimed in this case? OPP The onus to prove this issue lies on the plaintiffs.
Now, it has already been decided, while returning Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (67) findings on Issue No. 1, on Additional Issue No. 1 and on Additional Issue No. 2, that there was no family arrangement or settlement or, to say, oral partition in the year 1957 and the defendants are not entitled to claim ownership right either by prescription or adverse possession. The defendant still maintains that by virtue of Sections 2 and 4 of the Partition Act, the suit property cannot be divided by partition and for want of Delhi Cantonment Board, Delhi (a true owner and lessor), party to the suit, there cannot be partition of the property. The plaintiffs explain that neither the provisions of Sections 2 and 4 of the Partition Act are applicable, as part of the property is a constructed portion and rest is lying vacant and parties are governed by the Lease Deed. There was no issue on the point of non-impleadment of Delhi Cantonment Board, Delhi.
13.2.There is no dispute that the Delhi Cantonment Board, Delhi is not a party to the suit. However, the original lease deed (Ex. PW-4/10, colly.)(Clause iv), defines rights of the lessee, Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (68) which includes heirs, executors, administrators, etc. and mutation of the suit property in the name of four brothers, is based on the covenants of original Lease Deed. Since, the there is a provision of rights of lessee, which includes heirs, executors, administrators, etc., Sections 2 and 4 of the Partition Act would not bar the partition of the suit property, particularly when the suit property was purchased from the original lessee Shri Gehwar Lal by way of Sale Deed in the name of four brothers. Hence, the plaintiffs are entitled to the relief of partition and the plaintiffs succeeded to establish the Issue No. 3 in their favour and against the defendant.
In addition, the suit property was purchased by four brothers and rights are flowing in their favour from the original Lease Deed, thus, they were having equal rights i.e. 1/4th share of Shri V.C. Sood (B.C. Sood), 1/4th share of Shri Ratan Lal Sood, 1/4th share of Shri Dev Raj Sood and 1/4th share of Shri Ramesh Chandra Sood. Accordingly, Shri Arvind Sood (the plaintiff no. 1) (S/o Shri V.C. Sood, in whose favour the other legal heirs of Shri V.C. Sood, have Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (69) relinquished their rights), is entitled for 1/4th share in the suit property; the plaintiff no. 2 Shri Ratan Lal Sood, through his legal representatives, are entitled for 1/4th share of the suit property; the plaintiffs no. 3 Smt. Kamla Sood, the plaintiff no. 4 Shri Sudhir Sood and the plaintiff no. 5 Sh. Ajay Sood are jointly entitled for 1/4th share in the suit property, being share of Shri Dev Raj Sood and the defendant no. 4, now through his legal representatives, are entitled for 1/4th share in the suit property. The suit property has been depicted in the site plan (Ex. PW-1/1).
14.1. Issue No. 4 :
Relief.
In view of my findings on various issues, particularly on Issue No. 3, above, the Suit for Partition is decreed by way of preliminary decree in favour of the plaintiffs and against the defendant by determining/declaring that the plaintiff no. 1 has 25% share (i.e. 1/4th) share, the plaintiff no. 2 has 25% (i.e. Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (70) 1/4th) share and the plaintiffs no. 3 to 5 have 25% joint share (i.e. 1/4th) and the defendant has 25% (i.e. 1/4th) share in the property No. 49/52 Sadar Bazar, Delhi Cantt., New Delhi, also known by Municipal No. 1/194. Sadar Bazar, Delhi-10, more particularly shown in colour red in the site plan (Ex. PW-1/1).
Costs the suit, are also allowed in favour of the plaintiffs and against the defendant. Preliminary decree be drawn accordingly.
14.2.In order to devise ways and means to partition the property by metes and bounds, the plaintiffs' request for appointment of the Local Commissioner is allowed and Shri Rajeev Ranjan, Advocate, Chamber No. 331, Civil Wing, Tis Hazari, Delhi, Telephone No. - 011-2784471 OR Shri Narinder Pal Singh, Advocate, Chamber No. 286, Tis Hazari, Delhi, Telephone No. - 011-27022428 (whomsoever is available) is appointed as the Local Commissioner to visit the property No. 49/52 Sadar Bazar, Delhi Cantt., New Delhi; now it bears municipal No. 1/194. Sadar Bazar, Delhi-10, by notice to both Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (71) the sides and suggest the ways and means for partition of the property by metes and bounds. The Local Commissioner may take the services of the Architect, if required, however, the services of Architect will be at the cost of the plaintiffs. The Local Commissioner's fee is assessed as Rs 10,000/- payable by the plaintiffs in advance. The Local Commissioner will furnish his report within two months from the date of receipt of notice.
15.Accordingly, the Suit for Partition stands disposed off, however, the final decree will be drawn on receipt of report from the Local Commissioner and on separate application of the plaintiffs.
With these observations, File is consigned to Record Room.
MN.
Announced in Open Court (INDER JEET SINGH)
on 26.02.2008 Addl. District Judge,
DELHI.
Contd......
Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (72)
CS/94/07/94
26.02.2008
Present : Counsel for plaintiffs no. 1, 3, 4 and 5.
Proxy counsel for plaintiff no. 2.
LRs of deceased defendant Shri R.C. Sood.
They filed photocopies of Lease Deed (one in
respect of property No. 88, J.J. Colony, Moti Bagh, Delhi and another photocopy of Lease Deed stated to be in respect of property No. 252 sq. yards, Nangal Rai, Delhi). Copies given to the plaintiff.
It is objected that neither it is the stage of evidence nor the photocopies can be looked into.
The plaintiff also filed reply to the defendant's application under order VIII Rule 1 CPC, copy given to them.
Heard.
Since, the case is today scheduled for orders, as the final arguments have already been advanced. The application or the photocopy of record were filed, pursuant to certain clarifications, the same would be dealt in judgment.
Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (73) Vide separate judgment, the Suit for Partition is decreed by way of preliminary decree in favour of the plaintiffs and against the defendant by determining/declaring that the plaintiff no. 1 has 25% share (i.e. 1/4th) share, the plaintiff no. 2 has 25% (i.e. 1/4th) share and the plaintiffs no. 3 to 5 have 25% joint share (i.e. 1/4th) and the defendant has 25% (i.e. 1/4th) share in the property No. 49/52 Sadar Bazar, Delhi Cantt., New Delhi, also known by Municipal No. 1/194. Sadar Bazar, Delhi- 10, more particularly shown in colour red in the site plan (Ex. PW-1/1). Costs the suit, are also allowed in favour of the plaintiffs and against the defendant. Preliminary decree be drawn accordingly.
In order to devise ways and means to partition the property by metes and bounds, the plaintiffs' request for appointment of the Local Commissioner is allowed and Shri Rajeev Ranjan, Advocate, Chamber No. 331, Civil Wing, Tis Hazari, Delhi, Telephone No. - 011-2784471 OR Shri Narinder Pal Singh, Advocate, Chamber No. 286, Tis Hazari, Delhi, Telephone No. - 011-27022428 (whomsoever is available) is Contd......
Arvind Sood vs. Ramesh Chand Sood CS/94/07/94 (74) appointed as the Local Commissioner to visit the property No. 49/52 Sadar Bazar, Delhi Cantt., New Delhi; now it bears municipal No. 1/194. Sadar Bazar, Delhi-10, by notice to both the sides and suggest the ways and means for partition of the property by metes and bounds. The Local Commissioner may take the services of the Architect, if required, however, the services of Architect will be at the cost of the plaintiffs. The Local Commissioner's fee is assessed as Rs 10,000/- payable by the plaintiffs in advance. The Local Commissioner will furnish his report within two months from the date of receipt of notice.
Accordingly, the Suit for Partition stands disposed off, however, the final decree will be drawn on receipt of report from the Local Commissioner and on separate application of the plaintiffs.
The defendant's application under order VIII Rule 1 CPC also stands disposed off.
File is consigned to Record Room.
N (INDER JEET SINGH) Addl. District Judge, DELHI.
Contd......
Arvind Sood vs. Ramesh Chand Sood
CS/94/07/94 (75)
Contd......