Delhi District Court
Cs No. 173/16 Wazir Singh vs . Vikrant Singh on 31 March, 2017
CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
IN THE COURT OF SHRI SHAILENDER MALIK
ADDITIONAL DISTRICT JUDGE03: CENTRAL:DELHI
CS No. 173/16
Sh. Wazir Singh
s/o Sh. Charnji Lal
r/o House no. 19, New Roshan Pura
Najaf Garh, New Delhi. ...... PLAINTIFF
VS.
1.Vikrant Singh s/o late Sh. Anar Singh
2. Sh. Ravi (minor) s/o late Sh. Anar Singh through his mother and natural guardian Smt. Shakuntala Devi w/o late Sh. Anar Singh
3. Sh. Deepak s/o late Sh. Anar Singh
4. Smt. Shakuntala Devi w/o late Sh. Anar Singh All r/o House no. 18, New Roshan Pura, Najaf Garh, Delhi.
..... DEFENDANTS
Suit Dismissed 1/21
CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
Date of institution of suit : 25.09.2008
Date of hearing final argument : 14.03.2017
Date of Judgment : 31.03.2017
Suit for Partition, Permanent & Mandatory Injunction JUDGMENT
1. This is a suit for partition, permanent and mandatory injunction. Facts as stated in the plaint are that plaintiff and late Sh. Anar Singh (father of defendant no. 1 to defendant no. 3 and husband of defendant no. 4) were real brothers. They stated to have purchased property/plot bearing no. 18 measuring 290 sq. yards being at part of Khasra no. 491 situated in the Revenue Estate of Village Roshan Pura, Delhi colony known as Roshan Pura Extension, Najafgarh (herein after referred to as suit property) jointly having one half share each. It is stared that above said plot was purchased by plaintiff and late Sh. Anar Singh jointly by joint funds of family. About 10 years prior to institution of this suit late Anar Suit Dismissed 2/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh Singh stated to have expired leaving behind defendants herein being his legal heirs.
2. It is further mentioned in the plaint that initially house tax of above mentioned residential plot was being assessed in the name of plaintiff. Electricity meter was also got installed in the said property, in the name of plaintiff. However plaintiff and defendants were residing jointly in the above said property.
3. Since the constructed structure on the above said plot was old and was in delapilated condition, therefore there was apprehension of falling down of said construction. As the level of said house has become lower than the main concrete road towards the east side of that plot. As such plaintiff and defendant thought to make a new construction over the above said plot, after demolishing the old structure thereon after partitioning Suit Dismissed 3/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh the share of the plaintiff and of defendants and to construct the building over their respective shares. It is stated that defendants initially left the share of the plaintiff in the plot vacant and started raising construction to the extent of their one half share on said property. However later defendants allegedly started raising construction on the share of plaintiff which was lying vacant. When plaintiff objected for the same, defendants allegedly started giving threats by claiming that there is no share of the plaintiff in the property in question and entire plot belongs to defendants. If plaintiff would interfere in any way in the construction of the plot, life of the plaintiff would be finished.
4. It is further mentioned in the plaint that plaintiff collected his relatives, neighbours and well wishers to settle the matter and to avoid any litigation between him Suit Dismissed 4/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh and defendants who are children of his deceased brother. It is stated that plaintiff tried his best to settle the matter amicably. Relatives and well wishers have also tried to avoid any possible litigation. However, defendant stated to have not given any heed to the plaintiff or relatives etc.
5. It is alleged that defendants started raising construction on the entire suit property without any legal partition by metes and bounds and without consent of plaintiff. It is stated that defendants have no right to raise construction on the joint property without consent of plaintiff and without legal partition. It is further stated that land in question falls within the jurisdiction of MCD, therefore construction is required to be raised as per bylaws and rules of MCD. Whereas defendants are allegedly raising unauthorised construction . Suit Dismissed 5/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
6. Hence, the present suit was field seeking decree of partition and separate possession of one half share of plaintiff in the suit property i.e. property/plot bearing no. 18 measuring 290 sq. yards situated at part of Khasra no. 491 situated in the Revenue Estate of Village Roshan Pura, Delhi colony known as Roshan Pura Extension, Najafgarh by metes and bounds in favour of plaintiff and against defendants. Plaintiff further prayed for decree of permanent injunction to restrain defendant from raising any kind of construction or from creating any third party interest in respect of suit property.
7. Initially present suit was filed as against defendant nos. 1 to 5. However at the initial stages of the suit in an application u/s 110 (2) CPC, name of defendant no. 5 was deleted from the array of the parties by order dated 21/10/08.
Suit Dismissed 6/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
8. Defendant no. 1 to defendant no. 4 upon being served with the summons, filed WS taking objection therein that plaintiff has concealed material facts. It is pleaded in the WS that suit property has already been partitioned between the parties and both the parties have already constructed their residential houses and have been residing separately since long. It is further pleaded that suit has not been properly valued for the purpose of court fee and jurisdiction as plaintiff in not in possession of the suit land as per the site plan. Whereas defendant nos. 1 to 4 have already constructed their residential houses and residing in the same.
9. It is however not disputed that plaintiff and father of defendant nos. 1 to 3 and husband of defendant no. 4 namely late Sh. Anar Singh were real brothers and had jointly purchased suit property, however rest of the Suit Dismissed 7/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh averments in the plaint have been denied. It was pleaded that after the death of late Sh.Anar Singh suit property has already been partitioned. Plaintiff has constructed on the portion which came in his share. According to defendant nos. 1 to 4 total land of suit property is not less than 600 sq. yards. It is pleaded that defendant nos. 1 to 4 have recently constructed their house on their portion as per their share. It is stated that site plan filed by plaintiff is not correct. It is stated that the entire area shown in the site plan filed by the plaintiff has come to the share of defendant no. 1 to defendant no. 4 whereas rest of the area of the suit property is in occupation of plaintiff. Plaintiff has also raised construction of his residential house, after the partition. Vacant portions of the property in question came to the share of defendants and they have recently raised construction over it. It is pleaded Suit Dismissed 8/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh that plaintiff has filed the present suit with malafide intention to harass the defendants.
10. Replication was filed on behalf of plaintiff wherein pleadings of defendant were controverted and case of the plaintiff was reiterated.
11. On the basis of pleadings of parties, following issues were framed on 3.12.2009:
1. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
2. Whether the plaintiff is entitled to the decree of partition and separate possession of his share in the suit property? OPP
3. Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for in the suit?
4. Relief
12. During the course of trial, plaintiff has examined Suit Dismissed 9/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh two witnesses. PW1 is plaintiff Wazir Singh and PW2 is Smt. Ramrati.
13. During the trial after completion of plaintiff's evidence when matter was listed for recording DE, an application U/o 6 R 17 CPC was moved on behalf of defendant nos. 1 to 4 seeking amendment in the WS to incorporate the fact that plaintiff had sold his one half share in the property in question to husband of defendant no.4 and father of defendant no.1 to defendant no. 3 by executing documents like agreement to sell, affidavit, receipt, GPA. As such, plaintiff had no locus to institute present suit. Such proposed amendment however was declined by ld Predecessor of this court vide order dt. 22.3.14. Such order dated 22.3.14 of Ld Predecessor of this court was upheld by High Court in C.M. (M) 542/14 decided on 19.12.14.
Suit Dismissed 10/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
14. On behalf of defendant nos. 1 to 4 two witnesses were examined. DW1 is Vikrant s/o late Sh. Anar Singh and DW2 is Smt. Shakuntala w/o late Sh. Anar Singh.
15. I have heard ld counsel for the parties and has gone through the record carefully. I have also gone through the written submissions filed by plaintiff and defendant.
16. My findings on the above said issues are as follows:
17. 1SSUE NO.1.
(Whether the suit has not been properly valued for the purpose of court fee and jurisdiction?) OPD
18. This issue was framed on the objection taken on behalf of the defendant that suit has not been properly valued for the purpose of court fee and jurisdiction as plaintiff is not in possession of suit land. Plaintiff has simply furnished court fee of Rs. 46/ for relief of partition as well as injunction. Para 17 of the plaint though Suit Dismissed 11/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh discloses that value of suit property for the purpose of jurisdiction is Rs. 8 lacs which is the market value of the property. However, plaintiff for the relief of partition has furnished fixed court fee as per Section 7 (iv) (b) of Court fee Act , in a suit for enforcing share in the joint property/partition court fee is to be furnished as per the value of the property assessed and mentioned in the plaint. Section 8 of Suit Valuation Act provides that in suits other than those referred to in Section 7 (v) (vi)(ix) (x), Clause D , court fee is payable advalorem , value as determined for the purpose of court fee and the value for the purpose of jurisdiction should be same. So, valuation for the purpose of court fee , in terms of Section 7 (iv) (b) of Court Fee Act , shall be same in view of Section 8 of Suit Valuation Act , even for the purpose of jurisdiction. Plaintiff, in the present case, has valued the property to Suit Dismissed 12/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh be Rs. 8 lacs . It is settled law that in a suit for partition, court fee is to be paid , if in joint possession, in terms of Article 17 (vi) of Schedule II of Court Fee Act, being fixed court fee. However, if plaintiff is not in possession of property in question, then court fee will be payable as per the valuation of the property for the purpose of jurisdiction.
19. In the present case, plaint is mischievously silent regarding possession of plaintiff in the suit property. Plaintiff when appeared in the witness box as PW1 has clearly admitted that he is not in possession of property in question. Thus, from the law as discussed above, plaintiff was required to furnish court fee on the entire valuation of the subject matter of the suit. Therefore, plaintiff is liable to furnish court fee on the amount of Rs. 8 lacs, the valuation as given by him in Para 17 of the plaint. Issue Suit Dismissed 13/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh accordingly stands decided against the plaintiff.
20. ISSUE NO.2.
(Whether the plaintiff is entitled to the decree of partition and separate possession of his share in the suit property?) OPP
21. Plaintiff in this case is seeking relief of partition with the claim that he along with his brother late Anar Singh had purchased the property in question jointly in equal share out of joint family funds. If we go through the evidence of PW1 Wazir Singh in the entire evidence it is nowhere disclosed as to on which date the property in question was purchased and by which documents. No doubt, even defendants have not disputed this fact that late Anar Singh and plaintiff jointly purchased the suit property. Such admission , however, does not dispense with the liability of plaintiff to prove the ownership in the property in the suit like this where relief of partition has Suit Dismissed 14/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh been sought. Section 58 of Evidence Act no doubt provides the facts admitted need not to be proved. Proviso attached to this Section however clearly provide that Court in its discretion can still require the admitted fact to be proved. I find that present case comes within the proviso of Section 58 and there should have been direct and specific evidence as to when such property was purchased, from whom, what is the exact area of the property and by which documents such property was purchased. All these aspects are assume importance in the suit of partition. Court requires specific evidence of ownership of that property, relief of partition of which has been sought. Mere admission of ownership by defendant may not be sufficient , specifically when defendant have contested the claim of plaintiff on the ground that in fact entire area of the property is 600 sq. yards whereas Suit Dismissed 15/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh according to PW1 the suit property RZ18, New Roshanpura, Delhi is 290 sq.yards which is stated to be part of khasra no. 491 of Village Roshanpura. Such documents of title were also required to be proved for ascertaining the identity of property.
22. In this regard if we go through the cross examination of PW1 he has admitted that he has not filed the title documents in respect of property/house no. RZ 18 . Here it is important to note that PW1 Wazir Singh in his affidavit of examination in chief , though is mentioning that he is residing in House no. RZ18 , Roshanpura, Delhi which according to him is the property in question. Whereas, in his cross examination, PW1 admits that in fact he is residing in House no. RZ19, at Village Najafgarh. PW1 further admits that he has not placed on record any document of title of either house no. RZ18 or Suit Dismissed 16/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh house no. RZ19. Only explanation in this regard given by PW1 that defendants are in possession of title documents of property no. RZ18 and 19. Such explanation does not appear to be convincing when plaintiff has taken the claim that property in the MCD record is in his name and even electricity meter on the suit property is also in his name. Plaintiff has also testified that he being elder in the family has been looking after all the affairs and even the defendants after the death of his brother late Anar Singh. Another obvious question arises that if according to PW1 original documents of title of property in question were in possession of defendants, why did plaintiff not served any notice/application either U/o 11 R 12 for discovery of documents or has not given any notice u/o 12 R 8 CPC for production of documents. Thus, I find that explanation of PW1 in his cross examination is neither factually Suit Dismissed 17/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh sustainable nor can be entertained in law.
23. Plaintiff has further examined PW2 Ramwati. PW2 has testified that plaintiff Wazir Singh and his brother late Anar Singh had jointly purchased the property in question, which bears no. 18 measuring 290 sq. yards being part of khasra no. 491 of Village Roshan Pura. PW2 then went on to testify all those facts as are deposed by PW1 and stated in the plaint. But I find that evidence of PW2 hardly corroborates or establish the case of plaintiff. Firstly, because PW2 in her cross examination has simply testified that she has no knowledge as to what is written in her affidavit of examination in chief. She has also admitted that she had never seen documents of title of house no. RZ18 or RZ19. This witness also admits that plaintiff is residing in House no. RZ19. PW2 further says that since she has never seen documents of title of Suit Dismissed 18/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh property in question, therefore, cannot say who is the owner of the same. From such evidence of PW2 one can easily conclude that plaintiff has failed to establish one of the most essential aspect of the matter i.e. ownership of the property in question. In the absence of such proof of ownership, I find that relief of partition cannot be given . Issue accordingly decided against the plaintiff.
24. ISSUE NO.3.
(Whether the plaintiff is entitled to a decree for permanent injunction, as prayed for in the suit?)
25. Onus to prove this issue was also on the plaintiff. This court has already decided issue no. 2 against the plaintiff. Issue regarding relief of injunction no doubt cannot be based on the evidence of ownership only . Plaintiff , however, is required to establish a legal right in the property in question which may be because of Suit Dismissed 19/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh continuous possession or ownership. As noted above, plaintiff himself has admitted in his cross examination that he is not residing in the suit property. Plaintiff has also not proved any documentary evidence of his possession in suit property. Thus, I find that plaintiff has also failed to establish any legal right for relief of injunction. Consequently, this issue also stands decided against the plaintiff .
26. Relief
27. In view of my above said findings, the suit stands dismissed. However, in view of my findings on issue no. 1, plaintiff is required to furnish court fee on Rs. 8 lacs within one month from today in case of failure of plaintiff to furnish the court fee, same shall be recoverable from him as fine against plaintiff in terms of Section 12 of Court Fees Act.
Suit Dismissed 20/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh
28. Decree sheet of dismissal be prepared accordingly.
29. File be consigned to Record Room .
ANNOUNCED IN THE OPEN COURT ON 31.3.2017 (SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:
DELHI Suit Dismissed 21/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh Suit Dismissed 22/21 CS NO. 173/16 Wazir Singh Vs. Vikrant Singh Suit Dismissed 23/21