Delhi District Court
Suraj Prakash vs Prem Wati on 17 January, 2022
IN THE COURT OF SH. SYED ZISHAN ALI WARSI:
ADDITIONAL DISTRICT JUDGE-05: WEST:
TIS HAZARI COURTS: DELHI
Civ DJ No.613823/16
CNR No. DLWT01-009499/2016
In the matter of :-
Suraj Prakash
S/o Late Sh. Jagdish Prasad
R/o 660/15, Gali no. 1,
Punjabi Basti, Anand Parbat,
New Delhi-110005.
..........Plaintiff
Vs.
1. Prem Wati
W/o Sh. Mahesh Kumar
2. Sonu
S/o Sh. Mahesh Kumar
3. Sandeep
S/o Sh. Mahesh Kumar
4. Dolly
D/o Sh. Mahesh Kumar
5. Manju
W/o Sh. Suresh Kumar
6. Shivani
D/o Sh. Suresh Kumar
(minor through Manju-Mother)
Suraj Prakash. Vs Prem Wati & Ors. Page No. 1/18
7. Shweta
D/o Sh. Suresh Kumar
(minor through Manju-Mother)
8. Harsh
S/o Sh. Suresh Kumar
(minor through Manju-Mother)
9. Hemant
S/o Sh. Suresh Kumar
(minor through Manju-Mother)
All R/o 660/15, Gali no.1,
Punjabi Basti, Anand Parbat,
New Delhi.
10. Executive Engineer
(North MCD)
Karol Bagh Zone, New Delhi.
.....Defendants
Date of institution :-08.12.2016
Order Reserved On:-09.12.2021
Date of Decision:-17.01.2022
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. Plaintiff namely Suraj Prakash has filed the present suit for partition and permanent injunction against the defendants.
Brief facts of the case are like that:- the plaintiff is residing in the ancestral property Suraj Prakash. Vs Prem Wati & Ors. Page No. 2/18 bearing no. 660/15, Gali no.1, Punjabi Basti, Anand Parbat, New Delhi-110005 ad measuring 90 sq. yds (hereinafter referred to as "Suit property in question") acquired by great grandfather of the plaintiff and defendants.
Initially the property was a vacant plot. The plaintiff is co-owner and possession of the property. The plaintiff approached Executive Engineer MCD, Karol Bagh Zone to take necessary action for illegal construction on 01.10.2014 but no action has been taken by local police. The great grand-father of plaintiff i.e. Sh. Kishan Lal acquired the said property and after his death his only son Hira Lal become the owner of the property and after his death Sh. Jagdish Prasad become the owner.
Late Sh. Jagdish Prasad father of the plaintiff and defendants was only son of Hira Lal. Late Jagdish Prasad had four sons and three daughters. It is further averred that there was no partition of the property and on the ground floor back side mother of the defendants/plaintiff was residing. In the year 2010 mother of the plaintiff/defendants died.
Thereafter, share of three sisters and one Suraj Prakash. Vs Prem Wati & Ors. Page No. 3/18 brother was purchased by the plaintiff through relinquishment deed and when the defendants came to know about the facts that share is purchased by the plaintiff, they forcefully started demolition of the existing construction from the back side of the house with intention to obtain the illegal possession by way of new construction. On 05.11.2016 when the defendants started demolition of the walls, plaintiff made a complaint on 100 number but no action was taken by police. The plaintiff requested the defendants for not constructing the undivided portion but defendants threatened him for dire consequences. It is further averred that behaviour of defendants was not good towards the parents and mother of the plaintiff/defendants debarred the defendants from the property on 13.12.2007. It is also pleaded that the plaintiff filed the suit No.613717/2016, dated 29.11.2016, and the same was withdrawn with the liberty to file afresh. The cause of action when the defendants not stopped the work even after request for partition. Therefore, plaintiff approached the Court and filed present suit seeking following Suraj Prakash. Vs Prem Wati & Ors. Page No. 4/18 reliefs:-
(a) For partition and permanent and mandatory injunction against the property no. 660/15, Gali no.1, Punjabi Basti, Anand Parbat, New Delhi-
110005 as shown red in colour in the site plan against the defendants, his sons, relatives, servants, legal representatives and assignee.
(b) Pass any other order which this Hon'ble Court may deem fit and proper in favour of plaintiff and against the defendants, in the interest of justice.
2. Defendants no. 1 to 9 filed joint written statement in response to said claims of plaintiff taking preliminary objections viz. That the suit of the plaintiff is not maintainable against the minors i.e. defendant no. 6 to 9 without moving an application under Order 32 Rule 1 CPC for appointment of their mother as guardian, that the relief of partition cannot be granted to the plaintiff as property in question is not the ancestral property, that the suit is barred by Order 2 Rule 2 CPC as no liberty was granted while withdrawing the earlier suit, that suit is bad for mis-joinder of necessary parties. On merits, case of plaintiff was refuted. It is averred by defendants that the property in question was unlawfully and illegally acquired in part by the father of the plaintiff Sh. Jagdish Prasad about 40 years ago and thereafter, the husband of the Suraj Prakash. Vs Prem Wati & Ors. Page No. 5/18 defendant no.1 and defendant no.5 acquired and occupied the rear portion measuring 45 sq. yards., about 30 years ago which was lying vacant at that time and since then the husband of defendant no.1 & defendant no.5 have been residing in the rear portion as owners. Further, it is averred that relinquishment deeds executed by sisters in favour of the plaintiff is neither registered nor it has got any sanctity in the eyes of law and at the behest of the plaintiff, some police officials tried to harass the defendants. They further averred that mother had no authority to debar the defendants. Based on said reply, defendants prayed for dismissal of the suit.
3. Right of plaintiff to file replication was closed vide order dated 11.07.2017.
4. After completion of pleadings, following issues were settled on 11.07.2017:-
(i) Whether the suit filed by the plaintiff is not maintainable being barred by Order 2 Rule 2 CPC? OPD
(ii) Whether the suit is not maintainable against the defendant no.6 to 9 in the absence of appointment of guardian? OPD
(iii) Whether the suit property is not ancestral property of the plaintiff and defendants as claimed by the defendants and the suit for partition is not maintainable? OPD
(iv) Whether the plaintiff is entitled for decree of partition as prayed for? OPP
(v) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
(vi) Relief.Suraj Prakash. Vs Prem Wati & Ors. Page No. 6/18
5. Consequently, matter was fixed for plaintiff's evidence but plaintiff failed to lead any evidence despite several opportunities, therefore, court was constrained to close plaintiffs evidence vide order dated 15.12.2018. On the same day i.e. 15.12.2018, counsel for defendants no. 1 to 9 has closed the defendant's evidence. The plaintiff has not produced or examined/deposed any witness on his behalf.
6. Vide order dated 04.03.2020, defendants no. 1 to 10 were proceeded exparte and right of defendant no. 10 to lead evidence was also closed. Thereafter, vide order dated 27.10.2021, the order dated 04.03.2020 was recalled and defendants no. 1 to 9 are permitted to participate in the proceedings. The defendants have not produced or examined/deposed any witness on their behalf.
7. After hearing final arguments, matter was fixed for judgment and the records were perused.
8. In subsequent paragraphs, I will be deciding the issues settled by the Court.
ISSUE - WISE FINDINGS ARE AS UNDER :-
9. ISSUE NO. (I) Whether the suit filed by the plaintiff is not maintainable being barred by Order 2 Rule 2 CPC? OPD The relevant provision of law Order 2 Rule 2 CPC, 1908 reads as Suraj Prakash. Vs Prem Wati & Ors. Page No. 7/18 under :-
" 2. Suit to include the whole claim.--(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.--A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
Explanation-- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
The Hon'ble Supreme Court of India has further clarified the essential elements for the application of Order 2 Rule 2 CPC, in the matter of Gurbux Singh Vs. Bhoora Lal, AIR 1964 SC 1810, wherein the Apex Court while explaining the true scope of Order II Rule 2 of CPC laid down the parameters as to how and in what circumstances, a plea should be invoked against the plaintiff. The Hon'ble Apex Court held as under:
"In order that a plea of a bar under Order 2 Rule 2(3) of the Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3)that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar...."Suraj Prakash. Vs Prem Wati & Ors. Page No. 8/18
After considering the provisions of law and the interpretation given to it by the Hon'ble Apex Court, if the same is applied to the present case at hand, the plea of defendants that the suit is barred by Order 2 Rule 2 CPC as the plaintiff had filed an earlier similar suit which was withdrawn by the plaintiff is not tenable as nothing has been brought on record to show that the earlier suit was for the same cause of action. Accordingly, issue no. (I) is decided in negative and the present suit is maintainable as not being barred by Order 2 Rule 2 CPC.
10.ISSUE NO. (ii) Whether the suit is not maintainable against the defendant no.6 to 9 in the absence of appointment of guardian? OPD.
To appreciate the present issue, the relevant provision of law is Order 32 CPC, 1908 which are reproduced as follows :-
"ORDER XXXII Suits by or against Minors and Persons of Unsound mind
1. Minor to sue by next friend.--Every suit by a minor shall be instituted in his name by a person who in such suit shall be called the next friend of the minor. [Explanation.--In this Order, "minor" means a person who has not attained his majority within the meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875) where the suit relates to any of thematters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]
2. Where suit is instituted without next friend, plaint to be taken off the file.--(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented.
(2)Notice of such application shall be given to such person, and the Court, after hearing his objections (if any) may make such order in the matter as it thinks fit.
[2A. Security to be furnished by next friend when so ordered.--(1)Where a suit has been instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit, either of its own motion or on the application of any defendant, and for reasons to be recorded, order the next friend to give security for the payment of all Suraj Prakash. Vs Prem Wati & Ors. Page No. 9/18 costs incurred or likely to be incurred by the defendant. (2) Where such a suit is instituted by an indigent person, the security shall include the court-fees payable to the Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the Court makes an order under this rule directing security to be furnished.
3. Guardian for the suit to be appointed by Court for minor defendants.--(1)Where the defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor. (2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff. (3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed. (4) Order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority competent in that behalf, or, where there is no such guardian [upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is [no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule. [(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4)to the minor also.] (5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedingsarising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.] [3A. Decree against minor not to be set aside unless prejudice has been caused to his interests.--(1) No decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor, but the fact that by reasons of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside the decree. (2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law by reason of the misconduct or gross negligence on the part of the next friend or guardian for the suit resulting in prejudice to the interests of the minor.
4. Who may act as next friend or be appointed guardian for the suit--(1) Any person who is of sound mind and has attained majority may act as next friend of a minor or as his guardian for the suit: Provided that the interest of such person is not adverse to that of the minor and that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no Suraj Prakash. Vs Prem Wati & Ors. Page No. 10/18 person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless the Court considers, for reasons to be recorded, that it is for the minor's welfare that another person bepermitted to act or be appointed, as the case may be.
(3) No person shall without his consent in writing be appointed guardian for the suit. (4) Where there is no other person fit and willing to act as guardian for the suit, the Court may appoint any of its officers to be such guardian, and may direct that the costs to be incurred by such officer in the performance of his duties as such guardian shall be borne either by the parties or by any one or more of the parties to the suit, or out of any fund in Court in which the minor is interested [or out of the property of the minor], and may give directions for the repayment or allowance of such costs as justice and the circumstances of the case may require.
5. Representation of minor by next friend or guardian for the suit.--(1)Every application to the Court on behalf of a minor, other than an application under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for the suit. (2)Every order made in a suit or on any application, before the Court in or which a minor is in any way concerned or affected, without such minor being represented by a next friend or guardian for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose instance such order was obtained knew, or might reasonably have known, the fact of such minority, with costs to be paid by such pleader.
6. Receipt by next friend or guardian for the suit of property under decree for minor.
--(1) A next friend or guardian for the suit shall not, without the leave of the Court, receive any money or other movable property on behalf of a minor either--
(a)by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
(2)Where the next friend or guardian for the suit has not been appointed or declared by competent authority to be guardian of the property of the minor, or, having been so appointed or declared, is under any disability known to the Court to receive the money or other movable property, the Court shall, if it grants him leave to receive the property, require such security and give such directions as will, in its opinion, sufficiently protect the property from waste and ensure its proper application. Provided that the Court may, for reasons to be recorded, dispense with such security while granting leave to the next friend or guardian for the suit to receive money or other movable property under a decree or order, where such next friend or guardian
--
(a)is the manager of a Hindu undivided family and the decree or order relates to the property or business of the family; or
(b)is the parent of the minor.
7. Agreement or compromise by next friend or guardian for the suit.--(1)No next friend or guardian for the suit shall, without the leave of the Court, expressly Suraj Prakash. Vs Prem Wati & Ors. Page No. 11/18 recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian. (1A) An application for leave under sub-rule (1)shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor : Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the agreement or compromise proposed is, for the benefit of the minor.
(2)Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor:
8. Retirement of next friend.--(1)Unless otherwise ordered by the Court, a next friend shall not retire without first procuring a fit person to be put in this place, and giving security for the costs already incurred.
(2)The application for the appointment of a new next friend shall be supported by an affidavit showing the fitness of the person proposed and also that he has no interest adverse to that of the minor.
9.Removal of next friend.--(1)Where the interest of the next friend of a minor is adverse to that of the minor or where he is so connected with a defendent whose interest is adverse to that of the minor as to make it unlikely that the minor's interest will be properly protected by him, or where he does not do his duty, or, during the pendency of the suit, ceases to reside within India, or for any other sufficient cause, application, may be made on behalf of the minor or by a defendent for his removal; and the Court, if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed accordingly, and make such other order as to costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by an authority competent in this behalf, and an application is made by a guardian so appointed or declared, who desires to be himself appointed in the place of the next friend, the Court shall remove the next friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be appointed the next friend of the minor, and shall thereupon appoint the applicant to be next friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.
10. Stay of proceedings on removal, etc., of next friend.--(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place. (2)Where the pleader of such minor omits, within a reasonable time, to take steps to get a new next friend appointed, any person interested in the minor or in the matter in issue may, apply to the Court for the appointment of one, and the Court may appoint such person as it thinks fit.
Suraj Prakash. Vs Prem Wati & Ors. Page No. 12/1811. Retirement, removal or death of guardian for the suit.--(1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinksfit.
(2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place.
12. Course to be followed by minor plaintiff or applicant on attaining majority.--(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending shall, on attaining majority, elect whether he will proceed with the suit or application.
(2) Where be elects to proceed with the suit or application, he shall apply for an order discharging thenext friend and for leave to proceed in his own name. (3) The title of the suit or application shall in such case be corrected so as to read henceforth thus :"A.B., late a minor by C.D., his next friend, but now having attained majority.".
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant,apply for an order to dismiss the suit or application on repayment of the costs incurred by the defendant or opposite party or which may have been paid by his next friend.
(5) Any application under this rule may be made ex parte but no order discharging a next friend and permitting a minor plaintiff to proceed in his own name shall be made without notice to the next friend.
13. Where minor co-plaintiff attaining majority desires to repudiate suit.--(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the defendant.
(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the suit, shall be paid by such persons as the Court directs. (4) Where the applicant is a necessary party to the suit, the Court may direct him to be made a defendant.
14. Unreasonable or improper suit.--(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper.
(2) Notice of the application shall be served on all the parties concerned; and the Court, upon being satisfied of such unreasonableness or impropriety, may grant the application and order the next friend to pay the costs of all parties in respect of the application and of anything done in the suit, or make such other order as it thinks fit.
Suraj Prakash. Vs Prem Wati & Ors. Page No. 13/1815. Rules 1 to 14 (Except rule 2A) to apply to persons of unsound mind. - Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not so adjudged, are found by the Court on enquiry to be incapable, by reason of any mental infirmity, of protecting their interest when suing or being sued.
16. Savings.--(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued in the name of his State, or being sued by the direction of the Central Government in the name of an agent or in any other name.
(2) Nothing contained in this Order shall be construed as affecting or in any way derogating from the provisions of any local law for the time being in force relating to suits by or against minors or by or against lunatics or other persons of unsound mind."
The aforesaid provision of law has been further interpreted by Hon'ble Supreme Court in the matter of Nagaiah vs. Chowtdamma, (2018) 2 SCC 504 as follows :-
"xxx xxx xxx
10. There is no hurdle for a natural guardian or duly constituted guardian as defined under Hindu Guardianship Act to represent minor plaintiff or defendant in a law suit. But such guardian should not have adverse interest against minor. If the natural guardian or the duly constituted guardian has adverse interest against the minor in the law suit, then a next friend or guardian-ad-litem, as the case may be, would represent the minor in the civil litigation.
xxx xxx xxx
16. To sum up, instituting a suit on behalf of minor by a next friend or to represent a minor defendant in the suit by a guardian-ad-litem is a time- tested procedure which is in place to protect the interests of the minor in civil litigation. The only practical difference between a "next friend" and a "guardian-ad-litem" is that the next friend is a person who represents a minor who commences a law suit; guardian-ad-litem is a person appointed by the Court to represent a minor who has been a defendant in the suit. Before a minor commences suit, a conscious decision is made concerning the deserving adult (next friend) through whom the suit will be instituted. The guardian-ad-litem is appointed by Court and whereas the next friend is not. The next friend and the guardian-ad-litem possess similar powers and responsibilities. Both are subject to control by the Suraj Prakash. Vs Prem Wati & Ors. Page No. 14/18 Court and may be removed by the Court if the best interest of the minor so requires.
xxx xxx xxx"
Thus, applying the aforesaid principles to the present case at hand, this Court is of the view that submission of Ld. Counsel for defendant with regard to non-maintainability of the suit in the absence of appointment of guardians for minor defendants is not tenable as the present case against minor defendants no.6 to 9 is duly instituted through
- Manju, mother i.e. their natural guardian and nothing has been brought on record to show that she has any adverse interest against the minors. Thus, the issue no. (ii) is hereby decided in negative and the suit is duly instituted and maintainable.
11.ISSUE NO. (iii) Whether the suit property is not ancestral property of the plaintiff and defendants as claimed by the defendants and the suit for partition is not maintainable? OPD. Before further moving on this issue, it is necessary to clarify here that the onus to prove this issue no. (iii) is not only upon the defendant but it has to be on both the parties "OPP".
The onus of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims on preponderance of probability against the defendant . As per the principles of Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Suraj Prakash. Vs Prem Wati & Ors. Page No. 15/18 Viswesaraswami & V.P. Temple & another, VI (2003) SLT 307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues.
Thus, in view of the aforementioned position of law applying the same to the present case, it is for the plaintiff to first prove that the suit property is ancestral and after it is duly proved then the onus will shift to the defendant. But unfortunately in the present case plaintiff has not led Suraj Prakash. Vs Prem Wati & Ors. Page No. 16/18 any evidence nor made any deposition. Thus the plaintiff has failed to adduce any evidence to prove the present issue in hand on the preponderance of probabilities.
12.ISSUE NO. (iv) & (v) Both these issues are inter-connected and as such are being taken up together.
(iv) Whether the plaintiff is entitled for decree of partition as prayed for? OPP
(v) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP In the light of the discussion as held in preceding para no.11, i.e. on Issue no.(iii), the onus is on the plaintiff to first prove the nature and ownership of property by adducing evidence but neither the plaintiff nor any other witness is examined/deposed on behalf of the plaintiff despite several opportunities. Resultantly, none of the documents accompanying the plaint are exhibited and they cannot be now read in evidence as either they not being relevant or admissible. The plaintiff has failed to prove any of his averments in the plaint over any of the accompanying documents as per law of Civil Procedure Code and Indian Evidence Act. Thus, the issue no. (iv) is hereby decided in negative and the suit is duly instituted and maintainable.
RELIEF
13.The object of the judicial process is to find the truth from the pleadings, documents and the evidence led before the Court. In Suraj Prakash. Vs Prem Wati & Ors. Page No. 17/18 Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012) 5 SCC 370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. In view of above discussion and findings on Issues no. (iii) to (v), the suit of the plaintiff is hereby dismissed. The parties to bear their own costs.
14.Decree Sheet be prepared accordingly.
15.File be consigned to record room, after due compliance.
Announced through Cisco Webex (SYED ZISHAN ALI WARSI)
Meeting App ADJ-05, WEST DISTRICT
Dated : 17.01.2022 TIS HAZARI COURT, DELHI
Suraj Prakash. Vs Prem Wati & Ors. Page No. 18/18