Delhi District Court
Sh. Desh Kumar vs Smt. Maya Devi (Since Deceased) on 30 August, 2014
IN THE COURT OF SUMEDH KUMAR SETHI, ACJ/CCJ/ARC
(WEST), TIS HAZARI, DELHI
Suit No : 328/2006
Date of Institution : 11.04.1988
Date of Order : 30.08.2014
1. SH. DESH KUMAR
2. SH. VIJAY KUMAR
3. SH. ARUN KUMAR
All S/o Late Sh. Chaman Lal Kohli,
All R/o 311, Sadar Bazar, Delhi110006. ... PLAINTIFFS
VERSUS
1. SMT. MAYA DEVI (Since deceased)
D/o Late Sh. Ram Rakha Mal
W/o Late Sh. Chaman Lal Kohli
R/o 311, Sadar Bazar, Delhi110006.
2. MS. KANCHAN GROVER
C/o Mrs. Meena Vohra,
13225, Maple Avenue
# 106 Flushing, New York113355, U.S.A.
3. MRS. RANJNA GULATI
Bunglow No. 3, Bari Barhamna,
Jammu (J&K).
SUIT No. 328/2006 PAGE 1 OF 14
4. MRS. ANJANA KHULLAR
House No. 2503, Nalwa Street,
Chuna Mandi, Pahar Ganj, New Delhi11005.
5. MRS. PRATIMA
W/o Mr. Sanjeev Dewan
311, Sadar Bazar, Delhi110006. ... DEFENDANTS
J U D G M E N T
1. By filing the present suit Plaintiffs are seeking partition of house bearing Municipal No. C90, Shivaji Park, New Delhi (hereinafter referred as property in question) which was alleged to be purchased by plaintiffs alongwith defendant no. 1, however, out of respect, the sale deed dated 26.03.1958 was got executed in the name of Defendant no.1 Smt. Maya Devi as such Plaintiffs and defendant no. 1 are owners and in possession of 3/4th and 1/4th share each respectively of property in question. Plaintiffs do not want to remain joint with the defendants and as such the plaintiff want to have their share separate. Since the defendants did not agree to it, therefore, the suit for partition has become necessary and it has been so filed. Plaintiffs requested the defendant no.1 to get the property mutated in four shares in ratio of 3 :
1 in Municipal Corporation of Delhi, however, despite promise SUIT No. 328/2006 PAGE 2 OF 14 defendant failed to get the property mutated. Defendant no. 1 being the mother of the plaintiffs, it is only out of respect and regard that her name was got added in the sale deed executed, however, she was not the sole purchaser of the said property. The defendant no. 2 to 5 do not claim any share in the suit property though they have been impleaded in the suit just to avoid objection.
2. Written statement was filed on behalf of defendant no. 1 Smt. Maya Devi wherein defendant no. 1 admitted the averments of plaintiffs made in the plaint that plaintiffs are real sons of Sh. Chaman Lal and respondent no. 1 is wife and respondent no. 2 to 5 are daughters of Sh.
Chaman Lal and that plaintiffs and defendant no. 1 are the joint owners and in possession of the suit property in ratio of 3 : 1 respectively and that suit property was purchased by joint funds of plaintiffs and defendant no.1. It is stated that respondent no. 2 to 5/daughters of Sh. Chaman Lal have no right or interest in the suit property. Defendant no. 1 has no objection if plaintiffs apply to Municipal Corporation of Delhi to have the property mutated in the name of plaintiffs and defendant no.1 and she is ready to give any writing to the satisfaction of the plaintiffs to avoid any dispute.
3. Written Statement was filed on behalf of defendant no. 1, 3, and 5 SUIT No. 328/2006 PAGE 3 OF 14 wherein they admitted claim of both plaintiffs and defendant no. 1. It is stated that property is the joint property of the plaintiffs and defendant no. 1 in equal shares and in possession thereof. the plaintiffs are owners of 3/4th share and the defendant no. 1 is the owner of 1/4th share. It is further stated that they have no right or interest in the said property, and have no objection to their partition.
4. On pleadings of parties, following issues were framed on 20.01.1993 : (1) Whether plaintiff is entitled to partition and separation of three fourth share in respect of suit property bearing plot No. C90 with abadi on it in Shivaji Park, Delhi ? OPD1 (2) Relief.
5. It is pertinent to mention that another application was filed on 13.01.1989 for impleadment of daughters of deceased Sh. Chaman Lal as respondents. Amended plaint was taken on record.
Further, It is pertinent to mention here that initially plaintiffs filed suit for declaration seeking declaration to the effect that plaintiffs are owners and in possession of property No. C90, Shivaji Park, New Delhi. However, application under Order 6 Rule 17 CPC was moved by SUIT No. 328/2006 PAGE 4 OF 14 the plaintiff on 22.09.1994 with the prayer that Hon'ble may be pleased to pass decree for declaration and partition. Said application was allowed vide order dated 06.01.1995 and amended plaint was taken on record with the prayer of declaration and partition of property in question.
6. Respondents Ms. Kanchan Grover and Ms. Anjana Khullar stopped appearing in the matter. Accordingly, they were proceeded exparte on 07.07.1989 and 30.03.1989 respectively.
7. An application under Section 151 CPC was filed on 28.02.1997 behalf of plaintiffs for appointment of Sh. Ramesh Manocha, Advocate as Arbitrator. Said application under Section 151 CPC was allowed vide order dated 28.02.1997. The Arbitrator Sh. Ramesh Manocha, Advocate filed his Arbitration Award dated 11.08.1997 holding that plaintiffs namely Sh. Desh Kumar, Vijay Kumar and Arun Kumar and defendant no. 1 Smt. Maya Devi are owners in equal shares of property No. C90, Shivaji Park, Delhi. Vide order dated 15.11.1997, the said award was made rule of the court and preliminary decree was ordered to be prepared in terms of said award as no objections in respect of said award has been received/filed till date.
After drawing preliminary decree as per order dated 15.11.1997, SUIT No. 328/2006 PAGE 5 OF 14 matter was fixed for appointment of Local Commissioner to prepare site map of the property in question to divide the property mets and bounds amongst the plaintiffs and defendant no. 1. Accordingly, vide order dated 04.11.2004, Sh. Rajiv Kumar, Advocate was appointed as Local Commissioner. Local Commissioner was directed to prepare draft/map of the property in question and suggest the mode of partition amongst the respective parties. Report of local commissioner was filed on 05.03.2005 to which none of the parties have filed objections.
8. During the proceedings, defendant no. 1 Maya Devi expired on 10.01.1998 and an application under Order 22 Rule 2 r/w section 151 CPC was filed on behalf of plaintiffs. Said application was allowed vide order dated 18.09.1999. Amended memo of parties was filed naming her LRs/daughters Ms. Kanchan Grover, Mrs. Ranjana Gulati, Mrs. Anjana Khullar and Mrs. Pratima as respondent no.1 to 4 respectively.
9. On 09.04.2010, application under Order 1 Rule 10 C.P.C. was filed on behalf of applicant Balwant Singh seeking his impleadment as defendant on the ground that he came to know about the present case when plaintiff filed certain copy of documents relating to property bearing No. C90, Shivaji Park, Road No. 1, Punjabi Bagh, New Delhi in SUIT No. 328/2006 PAGE 6 OF 14 criminal case bearing FIR No. 32/2009 with the averments that he is owner of the said property vide title documents i.e. registered Will, Affidavit, GPA, Agreement to sell, all dated 16.12.2000 having been executed by one Maya Devi D/o Sh. Ram Rakha Mal in his favour. He also submitted that Maya Devi was unmarried and was died on 28.08.2000. The plaintiff in the said criminal case contended that Maya Kohli W/o Chaman Lal Kohli was married on 30.12.1950 as such applicant tried to misrepresent and take benefits on account of similar name of executant i.e. Maya Devi mother of plaintiffs who was altogether different person from Maya Devi who executed the sale deed in favour of applicant on 16.12.2000.
In reply plaintiffs admitted that they are sons of Maya Devi and Chaman Lal Kohli. Maya Devi not only has one address of 1516, Gali Akhuji, Farash Khana, G.B. Road, Delhi but also has 311, Sadar Bazar, Delhi110006, besides that she has purchased the property bearing No. 1322, Nagina Mahal, Farash Khana, Delhi and filed civil case against her tenant in respect of property captioned above. It was further averred that applicant is also impleaded in case bearing FIR No.32/2009 under section 420/267/471/ & 478 IPC with PS Punjabi Bagh, New Delhi for having forged and fabricated documents of property in question in league and collusion of others. However, the said application of Balwant Singh was dismissed vide order dated 01.02.2012. Even revision SUIT No. 328/2006 PAGE 7 OF 14 petition under Section 115 CPC filed against the order dated 01.02.2012 before the Hon'ble High Court of Delhi was also dismissed vide order dated 03.09.2012 passed by Hon'ble High Court of Delhi.
10. On 15.10.2011, plaintiffs filed application under 340 Cr.P.C. seeking for recommendation of making of complaint U/s 193, 196, 197, 198 and 199 IPC against intervener Balwant Singh wherein it is stated that alongwith the application under order 1 rule 10 CPC, Balwant Singh filed duly sworn affidavit and certain documents as such death certificate of Maya Devi, Copy of Sale Deed dated 26.03.1958, registered Will dated 16.12.2000 executed by Maya Devi in favour of Balwant Singh, undated affidavit of Maya Devi which documents are purported to have been signed by Maya Devi on 09.09.2000. Further, as per application under Order 1 Rule 10 CPC of Balwant Singh, Maya Devi was unmarried during her life time and she died on 25.08.2004 and before her death she had executed title documents in his favour on 16.12.2000 and handed over the original sale deed to the respondent Balwant Singh. Respondent Balwant Singh admitted in the application that he is in accused in case FIR No. 32/2009 under Section 420/467/471 IPC pertaining to PS Punjabi Bagh in respect of sale documents executed by Maya Devi in his favour. Balwant Singh submitted copy of sale deed 26.03.1958 with the IO of the aforesaid SUIT No. 328/2006 PAGE 8 OF 14 criminal case. However, the copy of sale deed submitted by Balwant Singh with the court is registered before Joint SubRegistrar and the one submitted with the IO is registered before SubRegistrar, as such both sale deeds are different. Apparently the respondent Balwant Singh has fabricated the said documents even after registration aforesaid FIR against him. As per police report submitted before this court alongwith FSL report under Section 293 Cr.P.C., these documents were found bearing forged signatures of the Registering Authority. Alongwith the above report, police has also verified the death certificate of Maya Devi dated 25.08.2004 and found that the same has been obtained on the basis of forged letter of Smt. Kamlesh Kumari, Pardhan of Village Zafarbad. As regards Will dated 16.12.2000 purportedly executed by Maya Devi in favour of respondent Balwant Singh, police submitted its report that it is not traceable with office of Sub RegistrarVIA, Pitampura and the party name therein is Surender Kumar. As regards stamp papers No. 9, 10 and 11 on which alleged GPA, Agreement to Sell and Affidavit was prepared and signed by Maya Devi, no such entries of required serial number exist in the stamp vendor sale register on the cited date. In view of police reports as regards these documents, plaintiff prayed that respondent Balwant Singh may be prosecuted under Section 340 Cr.P.C.
SUIT No. 328/2006 PAGE 9 OF 14
11. Reply to the said application was filed on behalf of nonapplicant Balwant Singh wherein he contended that FIR No. 32/2009 under Section 420/467/471 IPC registered against him is a frivolous complaint made by the plaintiffs. Further, it is submitted that affidavit filed alongwith application under Order 1 Rule 10 CPC is supporting affidavit and not affidavit in evidence. It is stated that when the property has been stated to be purchased in the year 1958, plaintiffs were minor and one of the plaintiff was not born in 1958. Rest of the application have been denied by the nonapplicant Balwant Singh and prayed for dismissal of the application.
12. My issuewise findings are as under: 13. ISSUE No. 1 (1) Whether plaintiff is entitled to partition and separation of three fourth share in respect of suit property bearing plot No. C90 with abadi on it in Shivaji Park, Delhi ? OPD1 It is evident from the record that from inception of the suit, plaintiffs and defendant no. 1 admitted that the property in question has been owned by their joint funds and they are in possession in respect of their respective portions of the property in question.
SUIT No. 328/2006 PAGE 10 OF 14 On the request of parties, Arbitrator was appointed in the present suit who passed Arbitration Award dated 11.08.1997. Vide order dated 15.11.1997, the said Arbitration Award dated 11.08.1997 was made rule of the court and preliminary decree was ordered to be prepared in terms of Arbitration Award dated 11.08.1997 as no objections in respect of said award has been received/filed till date. As per preliminary decree each of three plaintiffs and defendant no. 1 Maya Devi are entitled for 1/4th share each of property No. C90, Shivaji Park, Delhi.
Subsequently, report of local commissioner was filed on 05.03.2005 to which none of the parties have filed objection, as recorded in ordersheet dated 13.04.2005. Report of Local Commissioner are as under: "1. That as per the directions of this Hon'ble Court I visited on dated 05.02.2005 the suit property i.e. plot no. C/90, Shivaji Park, Road No. 1, Punjabi Bagh, New Delhi.
2. That on the premises of the suit property Sh. Manu Minocha, Advocate, Sh. Desh Kumar Kohli, Sh. Vijay Kumar Kohli and Sh. Arun Kumar Kohli the plaintiffs were present, but none of the defendants were present and met me on the spot.
3. That a rough draft/map annexed hereto of the suit premises was prepared by me.
4. That Sh. Desh Kumar Kohli, Sh. Vijay Kumar Kohli and Sh. Arun Kumar Kohli stated that the defendant Smt. Maya Devi has expired on 10th January 1998, and rest of the defendants namely Smt. Kanchan Bala, Smt. Ranjana Gulati, Smt. Anju Khullar and Smt. Pratima Dewan have SUIT No. 328/2006 PAGE 11 OF 14 filed their respective no objections in favour of all the plaintiffs and the defendants do not want to take their respective shares from the suit property.
5. That if the version of the plaintiffs regarding the no objection given by the defendants in their favour is true and correct then the partition may be effected in the following manner:
(i) The portion shown as MARKC in the rough draft/map which is in possession and used by Sh. Arun Kumar Kohli, one of the plaintiffs, may be given to Sh. Arun Kumar Kohli. The portion in possession of Sh. Arun Kumar Kohli is constructed only up to ground floor. The portion shown 20'x30' in possession of Sh. Arun Kumar Kohli has basement also. Rest of the property is built up to ground floor without basement. The portion shown in red colour is the built up area and the rest area is the open space.
(ii) The portion MARKB is in possession and occupation of Sh. Vijay Kumar Kohli. This portion may be given to Sh. Vijay Kumar Kohli. This portion is also built up up to ground floor only. The portion shown in black colour is the built up area and the rest area is the open space.
(iii) The portion MARKA is blue colour is in possession and occupation of Sh. Desh Kumar Kohli. This property is also built upto ground floor only this portion may be given to Sh. Desh Kumar Kohli. The portion shown in blue colour is the built up area and the rest area is the open space.
6. That the common passage of 17' should not be interfered since it is required to enter in the last portion of the property."
SUIT No. 328/2006 PAGE 12 OF 14
14. However, during the proceedings parties submitted that they have no objection if property in question is partitioned by metes and bounds as per report of Local Commissioner dated 07.02.2005. Joint statement of plaintiff no. 1 & 2 and statement of defendant Ranjana Bala Gulati were recorded to this effect on 06.01.2014 whereas the statement of plaintiff no. 3 was recorded on 24.02.2014 to this effect.
Statement of defendant no. 3 Anjana Khullar (though she was proceeded exparte) and defendant no. 4 Smt. Pratima Diwan was recorded on 22.12.2012 to the effect that they have no objection if property in question is partitioned by metes and bounds as per Local Commissioner's report dated 07.02.2005.
Statement of defendant Smt. Anjana Khullar was recorded on 23.03.2013 wherein she stated that she is also SPA of defendant Kanchan Grover and is duly authorized to make statement (though she was proceeded exparte) and Kanchan Grover has no objection if property in question is partitioned by metes and bounds as per Local Commissioner's report dated 07.02.2005.
In view of submissions and statement, issue at hand is decided partly in favour of plaintiffs.
15. Relief SUIT No. 328/2006 PAGE 13 OF 14 In view of my finding on issue No. 1, I am of the considered view that all three plaintiffs are the joint owner of property in question in respect of 1/3rd share each. Hence, suit of the Plaintiffs is decreed for partition in respect of 1/3rd share each of property bearing Municipal No. C90, Shivaji Park, New Delhi as per Local Commissioner Report dated 07.02.2005.
Original documents filed by the parties be returned to them after obtaining certified copies of the same against receipts as per rules. File be consigned to record room.
Announced in the open court th On this 30 day of August, 2014 (Sumedh Kumar Sethi) ACJ/CCJ/ARC(West) Tis Hazari, Delhi SUIT No. 328/2006 PAGE 14 OF 14