Delhi District Court
Harish vs Ved Parkash on 26 December, 2025
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IN THE COURT OF SH. PRITAM SINGH,
DISTRICT JUDGE (DJ-04) SOUTH EAST, DISTRICT COURTS,
SAKET, NEW DELHI
Civ DJ No. 210827/2016
Old case no.3367/2014
CNR No. DLSE01-005518-2016
Sh. Ved Prakash
S/o Late Sh. Nathi Lal
R/o B-129/14, FF & SF,
Amrit Puri, Garhi, East of Kailash,
New Delhi-110065.
........... Plaintiff
VERSUS
1. Mr. Babu Lal (Since Deceased)
through Legal Heirs
1a. Mr. Harish
1b. Mr. Kailash
Both S/o Late Mr. Babu Lal
and grandson of late Sh. Nathi Lal.
Both R/o B-129/14,
Amrit Puri, Garhi, East of Kailash,
New Delhi-110065.
2. Smt. Geeta (Since Deceased)
through legal heirs
2a. Sonia (daughter)
2b. Renu (daughter)
2c. Rajesh (Son)
2d. Tinkoo (Son)
All R/o House no.234,
Sayyedwara Bigha vara,
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And
Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
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Garhi Mohalla, Gopalganj,
Faridabad City, Tehsil Faridabad, Haryana.
3. Smt. Bimlesh
D/o Late Sh. Nathi Lal
R/o House no.113/A, Ward No.5,
Cot Mohalla, Opposite Aggarwal Dharamshala,
Old Faridabad, Haryana.
4. Smt. Saraswati @ Lachi
D/o Late Sh. Nathi Lal
R/o H no.484/1, Ward No.2,
Faridabad, Haryana.
5. Manju
D/o Late Sh. Nathi Lal
R/o H No.145/16, Jawahar Nagar,
Shekhpura, Post Office Palwal,
Haryana.
........ Defendants
Date of institution of the suit : 11.11.2014
Date on which order was reserved : 24.12.2025
Date of decision : 26.12.2025
SUIT FOR PARTITION, PERMANENT INJUNCTION AND
DECLARATION FOR DECLARING THE PLAINTIFF TO BE
5/6TH OWNER OF THE SUIT PROPERTY BEARING
NO.129/14, AMRIT PURI, GARHI, EAST OF KAILASH, NEW
DELHI-65 (KHASRA NO.147, GARHI JHARIA MARHIA)
AND
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And
Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-3-
Civ DJ No.210790/2016
Old Case No.112/2015
CNR No. DLSE01-005285-2016
1. Harish
S/o Late Mr. Babu Lal
R/o B-129/14, Third Floor,
Amrit Puri, Garhi, East of Kailash,
New Delhi-110065.
2. Kailash
S/o Late Mr. Babu Lal
R/o B-129/14, Ground Floor,
Amrit Puri, Garhi, East of Kailash,
New Delhi-110065.
........... Plaintiffs
VERSUS
1. Sh. Ved Prakash
S/o Late Sh. Nathi Lal
R/o B-129/14, FF & SF,
Amrit Puri, Garhi, East of Kailash,
New Delhi-110065.
2. Smt. Bimlesh
W/o Sh. Haria
D/o Late Sh. Nathi Lal
R/o House no.113/A, Ward No.5,
Cot Mohalla, Opposite Aggarwal Dharamshala,
Old Faridabad, Haryana.
3. Smt. Saraswati @ Lachi
W/o Sh. Mam Raj
D/o Late Sh. Nathi Lal
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And
Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-4-
R/o H no.484/1, Ward No.2,
Faridabad, Haryana.
4. Manju
W/o Sh. Mangal Singh
D/o Late Sh. Nathi Lal
R/o H No.145/16, Jawahar Nagar,
Shekhpura, Post Office Palwal,
Haryana.
5. Sonia
D/o Sh. Narayan
6. Renu
D/o Sh. Narayan
7. Rajesh
D/o Sh. Narayan
8.Tinkoo
D/o Sh. Narayan
All Defendant no.5 to 8 R/o
House no.234,
Sayyedwara Bigha vara,
Garhi Mohalla, Gopalganj,
Faridabad City, Tehsil Faridabad, Haryana.
........ Defendants
Date of institution of the suit : 16.01.2015
Date on which order was reserved : 24.12.2025
Date of decision : 26.12.2025
SUIT FOR DECLARATION AND CANCELLATION AND
PERMANENT INJUNCTION
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And
Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
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JUDGMENT
1. By this common judgment, I shall dispose of the suit titled Ved Prakash Vs. Babu Lal (Since deceased) & Ors. Bearing no. 210827/2016 (Old Case No.3367/2014) and the suit titled Harish & Anr. vs. Ved prakash & Ors. Bearing no. Civ DJ No.210790/2016 (Old Case No.112/2015).
2. The brief facts of the case "Ved Prakash Vs. Babu Lal (since deceased) & Ors" as stated in the plaint are that late Sh. Nathi Lal was the father of the plaintiff and defendant no. 1 to
5. Late Sh. Nathi Lal was the actual and absolute owner of the property bearing no.B-129/14, Amrit Puri, Garhi, East of Kailash, New Delhi-110065 admeasuring 100 sq. yrds (hereinafter referred to as 'suit property'). Late Sh. Nathi Lal had purchased the suit property from its erstwhile owner Sh. Harpat S/o Shri Kallu. Sh. Nathi Lal expired on 11.09.2004 and his wife Smt. Krishna Devi pre-deceased him on 26.01.2002. Late Sh. Nathi Lal was survived by following first class legal heirs:-
S No. Name Relationship with Age
deceased
1. Ved Prakash Son 42
2. Geeta (Since deceased) Daughter
a) Sonia Granddaughter 29
b) Renu Granddaughter 26
c) Rajesh Grandson 33
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And
Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-6-
d) Tinkoo Grandson 23
3. Bimlesh Daughter 45
4. Saraswati @ Lachmi @ Daughter 39
Sanno
5. Manju Daughter 36
6. Babu Lal (Since Son
deceased)
a) Harish Grandson 29
b) Kailash Grandson 25
3. The plaintiff is younger son of late Sh. Nathi Lal. Sh.
Babu Lal was the elder son of late Sh. Nathi Lal who expired on 24.10.2004 leaving behind his two sons Harish (defendant no.1A) and Kailash (defendant no.1B).
4. It is further stated that the plaintiff has been residing at the first and second floor of the suit property and defendant no.1A and 1B are in possession of ground and third floor portion of the suit property. The possession of the plaintiff in the suit property has been shown in red colour in the site plan and possession of the defendant no.1A and 1B has been shown in blue colour in the site plan. It is further stated that Late Sh. Nathi Lal died intestate, therefore, after his death the suit property was devolved among the abovestated legal heirs. Late Sh. Nathi Lal had two sons and four daughters, therefore, each son and each daughter has 1/6th share in the suit property.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-7-5. Smt. Geeta (defendant no.2) died on 21.03.2011 leaving behind her four legal heirs defendant no.2A to 2D. It is further stated that the suit property is jointly possessed by plaintiff and defendant no.1A and 1B. The rest of the defendants being daughters have been married and are residing in their respective matrimonial homes.
6. It is further stated that after the death of late Sh. Nathi Lal the defendant no.2 to 5 demanded their equal share in the suit property but the defendant no.1A and 1B picked up quarrel with other defendants and plaintiff. It is further stated that defendant no.2 to 5 had relinquished their right, title and interest with respect to the suit property in favour of the plaintiff vide relinquishment deed registered on 18.03.2013 registered at the office of Sub-Registrar, Delhi and thus, plaintiff has 5/6th share in the suit property and defendant no.1A and 1B have 1/12th share each in the suit property.
7. It is prayed that a preliminary decree of partition of 5/6th share in the suit property be passed in favour of plaintiff and against the defendants in respect of suit property. It is further prayed that a preliminary decree be passed thereby appointing a Local Commissioner for suggesting the mode of partition of the suit property and on his suggestion to pass a final decree of partition as per the shares of the parties in respect of suit property as suggested by the Local Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-8-Commissioner and if it becomes to partition the said properties in that case to sell the said properties and divide the sale proceeds between the parties as per their shares.
8. It is further prayed that a decree of declaration be passed in favour of plaintiff and against the defendants thereby declaring the suit property being an ancestral property and plaintiff being the owner of his 5/6th share in the suit property in the existence of the relinquishment deed in favor of the plaintiff with regard to the suit property. It is further prayed that a decree of permanent injunction be passed in favour of the plaintiff and against the defendants, thereby restraining the defendants, their agents, servants, from selling, associates, attorneys, etc. transferring, parting with possession, creating third party interest, alteration, construction over the suit property
9. A joint written statement was filed on behalf of defendant no.1A and 1B. It is stated in their written statement that defendants had filed a suit bearing no.112/2015 for declaration of the alleged relinquishment deed dated 25.02.2013 as null and void, based upon which the present suit had been filed before this court against the plaintiff and other defendants. It is further stated that the suit is not maintainable and liable to be dismissed as the suit property had already been partitioned during the life of late Sh. Nathi Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-9-Lal and the defendant no.1A and 1B since then enjoying separate possession of the share of his father and also constructed the third floor out of his funds. It is further stated that the suit is not maintainable as the plaintiff had asked simple declaration without seeking the consequent relief of possession of the 5/6th share in the alleged suit property as the suit is not maintainable. It is further stated that the present suit is not maintainable as the plaintiff had not made Sh. Narayan, the husband of late Geeta, as party of the suit, even he was the necessary party as such the suit is liable to be dismissed for non-joinder/mis-joinder of parties.
10. It is further stated that late Sh. Nathi Lal during his life time had purchased the suit property in the year 1961. Late Sh. Nathi Lal had constructed the ground floor, first floor and second floor on that plot. Late Sh. Nathi Lal and his wife Krishna Devi were blessed with six children, two sons, namely, Babu Lal and Ved Prakash and four daughters, namely, Geeta, Bimlesh, Saraswati and Manju. Smt. Krishna Devi W/o late Sh. Nathi Lal died on 26.01.2002.
11. It is further stated that after the death of his wife late Sh. Nathi Lal called all the family members of the family and with his free will and wish and with the consent of all the family members he had orally partitioned the suit property by giving ground floor and roof rights of the suit property to Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-10-Babu Lal, who is father of Harish and Kailash. Late Sh. Nathi Lal had given first and second floor of the suit property to Ved Prakash with the condition that until his death he (Nathi Lal) would stay at the given floor.
12. It is further stated that the daughters of late Sh. Nathi Lal (defendant no.2 to 5) acted upon the oral partition and got their name struck off from the ration card. It is further stated that in furtherance of the abovementioned oral partition the plainitff got the meter installed in his name in respect to the first floor of the above said property. Since after the abovesaid partitioned the respective parties are in the possession and enjoying without any hindrance from any side and after about two year of this partition late Shri Nathi Lal died on 19.09.2004.
13. It is further stated that after the death of the late Shri Nathi Lal, his son, late Shri Babu who was very much attached to late Shri Nathi Lal could not bear the loss of his father and died on 24.10.2004 just within one month of his father's death leaving behind his wife and two sons, Harish and Kailash. Wife of Babu Lal died on 10.05.2009. After the death of late Shri Babu Lal, the defendant no.1A and 1B from their own funds constructed the third floor in the year 2005 and made the family settlement that the defendant no.1A would be staying at the third newly built-up floor and the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-11-defendant no.1B would be staying at the ground floor and accordingly they continued to stay at the ground and third floor of the suit property and there was no problem or hindrance from any side.
14. It is further stated that after about eight and half year from the death of the late Shri Nathi Lal, the plainitff conspired together with defendant no.2 to 5 and in collusion with each other concocted a story so that it look like a normal matter and the the plaintiff in furtherance of their conspiracy sent a legal notice to defendant no.1A and 1B for the partition of the suit property.
15. It is further stated that to the utter surprise of the defendant no.1A and 1B later within twenty days of that legal notice as per the conspiracy, plaintiff got signed the relinquishment deed dated 25.02.13 in his favour from the defendant no.2-5 after giving them some undue gratitude and the defendant no.2-5 knowingly that they have no right in the suit property as the oral partition had already been affected and defendant no.2-5 in the greed of getting something then nothing on assurance of the plaintiff that they would share out of the portion of the defendant no.1A and 1B and this deed further presented before Sub Registrar Office V for registration and the same was registered vide document. No 1952 in Book No.1 Vol. No. 12,700 at page Number 149 to Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-12-160 on 18.03.13. It is prayed that the suit of the plaintiff may kindly be dismissed. All other averments made were denied.
16. Replication was filed by the plaintiff to the written statement of defendant no.1(A) and 1(B) and reiterated and re- affirmed the stand taken by the plaintiff and denying the contents of the written statement of the defendant no.1(A) and 1(B).
17. The brief the facts of the case "Harish & Anr. vs. Ved Prakash & Ors" as stated in the plaint are that late Sh. Nathi Lal during his life time had purchased the suit property in the year 1961. Late Sh. Nathi Lal had constructed the ground floor, first floor and second floor on that plot. Late Sh. Nathi Lal and his wife Krishna Devi were blessed with six children, two sons, namely, Babu Lal and Ved Prakash and four daughters, namely, Geeta, Bimlesh, Saraswati and Manju. Smt. Krishna Devi W/o late Sh. Nathi Lal died on 26.01.2002.
18. It is further stated that after the death of his wife late Sh. Nathi Lal called all the family members of the family and with his free will and wish and with the consent of all the family members he had orally partitioned the suit property by giving ground floor and roof rights of the suit property to Babu Lal, who is father of Harish and Kailash. Late Sh. Nathi Lal had given first and second floor of the suit property to Ved Prakash with the condition that until his death he would stay at the given floor.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-13-19. It is further stated that as per the oral partition the daughters of late Sh. Nathi Lal acted upon the oral partition and got their name struck off from the ration card. It is further stated that in furtherance of the abovementioned oral partition the defendant no.1 got the meter installed in his name in respect to the first floor of the above said property. Since after the abovesaid partitioned the respective parties are in the possession and enjoying without any hindrance from any side and after about two year of this partition late Shri Nathi Lal died on 19.09.2004.
20. It is further stated that after the death of the late Shri Nathi Lal, his son, late Shri Babu who was very much attached to late Shri Nathi Lal could not bear the loss of his father and died just within one month of his father's on 24.10.2004 leaving behind his wife and two sons, Harish and Kailash, the plaintiffs. After the death of the father of the plaintiffs, the mother of the plaintiffs, also died on 10.05.2009. After the death of late Shri Babu Lal, father of the plaintiffs, the plaintiff no.1 from his own funds constructed the third floor in the year 2005 and made the family settlement that the plaintiff no.1 would be staying at the third newly built-up floor and the plaintiff No 2 would be staying at the ground floor and accordingly plaintiff no.1 had shifted there at the third floor and the plaintiff no.2 continued Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-14-to stay at the ground floor of the suit property and there was no problem or hindrance from any side and any of the defendants never objected.
21. It is further stated that after about eight and half year of the death of the late Shri Nathi Lal, the defendant no.1 conspired together with other defendants and in collusion with each other concocted a story so that it look like a normal matter and the the defendant no.1 in furtherance of their conspiracy sent a legal notice to plaintiffs and the defendant no.2 to 8, the survivals of the late Shri Nathi Lal at the time of sending the legal Notice, for the partition of the suit property.
22. It is further stated that to the utter surprise of the plaintiffs just within twenty days of that legal notice, as per the conspiracy, the defendant no.1 got signed the relinquishment deed dated 25.02.13 in his favour from the defendant no.2-8 after giving them some undue gratitude and the defendant no.2-8 knowingly that they have no right in the suit property as the oral partition had already been affected and defendant no.2-8 in the greed of getting something on assurance of the defendant no.1 presented the relinquishment deed before Sub Registrar Office-V for registration and the same was registered vide document. No 1952 in Book No.1 Vol. No. 12,700 at page Number 149 to 160 on 18.03.13.
23. It is prayed that relinquishment deed dated 25.02.13 Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-15-executed by defendant no.2 to 8 in favour of defendant no.1 be declared null and void. It is further prayed a decree of permanent injunction be passed thereby restraining the defendants from interfering with the peaceful possession of the plaintiffs over the ground floor and third floor with terrace right in the suit property.
24. Written statement was filed on behalf of defendant no.1. It is stated in the written statement that in the present suit the plaintiffs have failed to give appropriate details as to when the so-called oral partition happened, under what circumstances that alleged oral partition occurred, who all were the parties to the so-called oral partition. In the absence of the aforesaid details it is presumed that no such oral partition took place between any of the family members as alleged.
25. It is further stated that in the present case defendant no.
2 to 8 have voluntarily, with their free will and consent has transferred their share in favour of defendant no.1 and the said settlement was reduced in writing in form of the relinquishment deed which was duly registered before the Sub Registrar, New Delhi. The said relinquishment deed has not been challenged on any of the ground such as the signatures are forged, the consent of the parties were taken under undue influence or coercion, the sole ground taken by the plaintiff in Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-16-the present suit is that there existed a so-called oral partition prior to the parties entering into the present relinquishment deed and in the aforesaid so-called oral partition the sisters' right was taken away. The said objection taken by the plaintiffs have no legs to stand upon and the present suit is liable to be dismissed with exemplary cost in favour of the defendants and against the plaintiffs.
26. It is denied that late Shri Nathi Lal had ever orally parted the suit property and had given the ground floor and the roof rights of the suit property to the father of the plaintiffs or given the first and second floor to the defendant no.1 as alleged. It is further stated that the present so-called oral partition never took place. It is further stated that the plaintiffs have even failed to give an exact date as to when the alleged oral partition took place between the members of the family. It is further denied that the defendant no.1 was given the first and second floor with the condition that until his death he would stay at the second floor.
27. It is further stated that since the sisters had gotten married and were living in their respective homes ipso facto the names was stricken out from the ration card and not because of the reasons as stated by the plaintiffs. It is denied that in view of the so-called oral partition the defendant no.1 got the meter installed in his name in respect of the first floor Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-17-of the suit property.
28. It it is denied that the plaintiff no.1 out of his own funds had constructed the third floor in the year 2005 and as per family settlement that the plaintiff no.1 would be staying at the third floor and the plaintiff no.2 would be staying at the ground floor. It is further stated that the said floor was constructed by the defendant no.1 and the plaintiff no.1 was given permission to occupy the said floor as he was the younger brother to him since he was starting his own family, he (plaintiff no.1) was permitted to live on that third floor of the suit property. It is further stated that the plaintiff no.1 was permitted by the defendant no.1 to live on the third floor of the suit property as a permissive user. It is denied that the defendant no.1 conspired together with the other defendants and in collusion with each other send a legal notice to the plaintiffs and defendants 2 to 8 for the partition of the suit property. It is denied that there was any conspiracy between the defendant no.1 with rest of the defendants as alleged or even otherwise. It is prayed that the suit of the plaintiffs may kindly be dismissed. All other averments made in the plaint were denied.
29. A joint written statement was filed on behalf of defendant no. 2 to 8. It is stated in the written statement that the plaintiffs are seeking declaration to declare the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-18-relinquishment deeds dated 25.02.2013 executed by the defendant no. 2 to 8 in favor of the defendant no. 1 as null and void. It is stated that on what basis the plaintiffs are challenging the said registered relinquishment deeds executed by the defendant no. 2 to 8 not stated in the plaint.
30. It is further stated that the mother of defendants no.5 to 8 was one of the legal heirs of late Sh. Nathi Lal having 1/6th share out of the entire suit property and since Late Smt. Geeta is no more, the said share automatically devolved upon her legal heirs i.e. defendant no. 5 to 8. It is wrong and denied that Late Shri Nathi Lal after the death of her wife called all the family members and with his free will and consent as well as the consent of other family members orally partitioned the suit premises. It is further stated that Late Shri Nathi Lal had never during his life time orally partitioned the suit premises. It is further stated that the plaintiffs are trying to usurp the entire suit property and leaving nothing for the other legal heirs of Late Shri Nathi Lal by making a false and fictitious story of oral partition. It is prayed that the suit of the plaintiff may kindly be dismissed. All other averments made in the plaint were denied.
31. Rejoinder/replication was filed by the plaintiffs to the written statement of defendant no.1 and reiterated and re- affirmed the stand taken by the plaintiff and denying the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-19-contents of the written statement of the defendant no.1.
32. Rejoinder/replication was filed by the plaintiffs to the written statement of defendant no.2 to 8 and reiterated and re- affirmed the stand taken by the plaintiff and denying the contents of the written statement of the defendant no.2 to 8.
33. Vide order dated 03.07.2015 both the suits were clubbed together for the purpose of conducting admission and denial of documents, framing of issues and recording of evidence as the suit property and parties in both the suits are common and suit "Ved Prakash Vs. Babu Lal (since decased) & Ors." was treated as main suit.
34. From the pleadings of the parties, following issues were framed in case Ved Prakash vs. Babu Lal (Since deceased) & Ors. by the Ld. Predecessor of this court on 07.12.2016:-
1) Whether Sh. Nathi Lal died intestate in respect of property described as bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) leaving behind two sons and four daughters i.e. the plaintiff and the defendants?
OPP
2. Whether the defendants no. 2, the deceased sister of the plaintiff, and defendants no. 3 to 5 had executed a relinquishment deed dated 25.02.13 and registered with the Sub Registrar, Delhi on 18.03.13, thereby relinquishing their 1/6 share each in the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) in favour of the plaintiff? OPP
3. Whether the plaintiff, son of late Sh. Nathi Lal is entitled to a decree of declaration in favour of Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-20-the plaintiff and against the defendants to the effect that the plaintiff is the owner of 5/6 share in the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards)? OPP
4. Whether the plaintiff is entitled to a preliminary decree of partition in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) thereby declaring that the plaintiffs share in the aforestated property is 5/6 and though share of defendant no.1 is 1/6 and defendants no.2 to 5 have no share in the aforestated suit property? OPP
5. Whether the plaintiff is entitled to a preliminary decree of partition thereby partitioning the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) by metes and bounds so that 5/6 and in the aforestated property falls in the share of the plaintiff and 1/6 share falls to the share of defendant no.1? ОPP
6. Whether the plaintiff is entitled to a preliminary decree of partition to the effect that if partition by metes and bounds in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) is not possible then the aforestated property be sold by public auction and proceeds thereof be divided between the plaintiff and defendant no.1 in 5/6 and 1/6 shares respectively? OPP
7. Whether the plaintiff is entitled to a final decree of partition in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) in terms of the shares declared under the preliminary decree of partition?OPP Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-21-8. Whether the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendants from creating any third party interest in any manner in property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards)? OPP
9. Whether the suit of the plaintiff is bad for non joinder of necessary party le the husband of deceased sister Smt. Geeta? OPD
10. Whether the suit for partition and declaration is not maintainable as the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) stands partitioned by way of an oral partition effected during the life time of the father of the parties, Late Sh. Nathi Lal and the parties have given effect to the oral partition by entering into separate possession of the respective shares determined under the oral partition? OPD.
35. From the pleadings of the parties, following issues were framed in case Harish & Anr. Vs. Ved Prakash & Ors. by the Ld. Predecessor of this court on 07.12.2016:-
1. Whether the relinquishment deed dated 25.02.13, registered on 18.03.13 executed by defendant no. 2 to 8 in favour of defendant no. 1 is null and void ? OPP
2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the ground floor and third floor with terrace right in property described? OPP
3. Relief.
36. The evidence lead by Sh. Ved Prakash (plaintiff) would be considered as evidence of plaintiff in both the suits and the evidence lead by Sh. Harish and Kailash (defendant no.1A Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-22-and 1B) would be considered as evidence of defendants in both the suits as it would be convinient to distinguish the evidence of the parties.
37. In order to prove his case, the plaintiff/Sh. Ved Prakash examined himself as PW1 and his evidence by way of affidavit Ex.PW1/A, he has reiterated and reaffirmed the stand taken by him in the plaint. Plaintiff also examined Sh. Jeevan S/o Shri Krishan as PW2 and his evidence by way of affidavit as Ex.PW2/A. Plaintiff also examined Narayan Das S/o Nand Lal as PW3 and his evidence by way of affidavit as Ex.PW3/A. Plaintiff also examined Ms. Rama W/o Sh. Ved Prakash as PW4 and her evidence by way of affidavit as Ex.PW4/A. Plaintiff relied upon the following documents:-
1. Copy of FIR no.52/2017 dated 02.02.2017 as Mark A (colly).
2. Relinquishment deed dated 25.02.2013 registered on 18.03.2013 as Ex.PW1/B (13 pages) (OSR).
38. In the cross-examination, PW1 deposed that he has completely gone through his affidavit of evidence exbt- PW1/A. PW1 further deposed that defendant no.1 i.e., Shri. Babulal was not alive on the date of filing the present suit. PW1 further deposed that he was aware of the fact that Shri. Babulal was not alive at the time of filing of the present suit. PW1 further deposed that Smt. Geeta who is defendant no.2 Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-23-was not alive at the time of filing of the present suit and he was aware of her demise. PW1 admitted the suggestion that he had filed the present suit against dead persons. Smt. Geeta left behind four legal heirs. Question was put to the witness that how many legal heirs were left behind by Smt. Geeta. PW1 replied that Smt. Geeta left behind four legal heirs. PW1 admitted the suggestion that the husband of Smt. Geeta, Shri. Narayan Das is still alive. PW1 admitted the suggestion that he had not made Shri. Narayan Das a party in the present suit.
39. PW1 further deposed that he did not know whether the Hon'ble High Court has directed him to make Shri. Narayan Das a necessary party. PW1 further deposed that he has complete knowledge of the present suit. PW1 was shown the judicial file and asked to go through the order dated 02.11.2015 passed by the Hon'ble High Court of Delhi where he had asked the permission to file an application under order 1 rule 10 to implead the husband of Smt. Geeta in the array of parties. PW1 deposed that he could not read English language. Question was put to PW1 that whether his counsel had informed him about the order dated 02.11.2015 or not. PW1 replied that the order was passed by the Hon'ble High Court. PW1 further deposed that he has not made the husband of Smt. Geeta a party in the present suit. PW1 further deposed that he has four sisters namely Smt. Geeta, Smt. Bimlesh, Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-24-Smt. Saraswati @ Lakshmi @ Sanno and Smt. Manju. PW1 further deposed that his sister Smt. Geeta was married around 1979-1980 year and Smt. Bimlesh was married somewhere around 1982. PW1 further deposed that Smt. Saraswati was married somewhere around 1988 and Smt. Manju was married somewhere around 1997. PW1 further deposed that all his sisters were staying at their respective matrimonial homes after their marriages.
40. Question was put to PW1 that when his sisters got struck down their names from ration card issued to his father. PW1 replied that he does not have any knowledge. PW1 was shown judicial file where the photocopy of relevant paper about striking down of the names of the sisters of plaintiff were marked as Mark-D1, D2, D3 and D4 respectively. PW1 admitted the suggestion that names of all the sisters were struck down from the ration card on the same day. PW1 further deposed that he does not know the date. PW1 denied the suggestion that he is deliberately not telling the date of striking down of names of his sisters from the ration card. PW1 further deposed that he had not applied for seeking striking down the names of his sisters.
41. PW1 further deposed that in the year 2002 when his father was alive he was staying at first floor of the suit property. PW1 further deposed that he had taken an electricity Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-25-meter connection in the suit property. PW1 further deposed that he had taken the electricity meter connection in his name for the first floor of the suit property where he was residing. PW1 further deposed that he did not remember the date of applying for the meter and the date of it's installation. PW1 further deposed that he had got transferred the meter in his name which was in the name of his father after his father's demise. Question was put to PW1 that did he know that if he gave any false evidence on oath before the court, he could be prosecuted for the same. PW1 replied in affirmative and stated that he know the consequences of giving false evidence before court. Question was put to PW1 that he is making false statement that he got the meter installed in the name of his father transferred in his name but he had applied for a new meter, what did he has to say. PW1 replied in affirmative and stated that he had applied for a new meter in his name and he had got it installed. PW1 further deposed that the meter installed in the name of his father is still there. Question was put to PW1 that he has told lie that he had got transferred the meter installed in the name of his father in his own name, what did he has to say. PW1 replied that he has not made any false statement.
42. PW1 further deposed that he had got a new meter installed after the demise of his father. PW1 denied the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-26-suggestion that he had got installed a new meter before the death of his father. Question was put to PW1 that can he bring an electricity bill of new meter installed in his name. PW1 replied that it is on record. Question was put to PW1 that how many meters are installed in the suit property in his name. PW1 replied that two meters are installed in his name one on first floor and the other one on second floor. PW1 further deposed that both the meters are new connections in his name and not being transferred from the name of his father in his name. PW1 further deposed that the new meter was installed at first floor bearing CA no. 101869122 which is exbt-P8 and another meter was installed for the second floor bearing the CA no.150390927 which is exbt-P9. PW1 further deposed that both the meters were installed after the death of his father.
43. PW1 admitted the suggestion that out of two electricity meters stated above one was got installed after the death of his mother and before the death of his father. Question was put to PW1 that his father after the death of his mother had partitioned the property the suit property, what did he have to say. PW1 replied that he did not have any knowledge regarding it and no partition had occurred before the death of his father or after the death of his mother. Question was put to PW1 that the property was orally partitioned before the death Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-27-of his father and on the basis of it his sisters had got struck off names from the family ration card of his father and he had got installed the electricity in his name at first floor of the suit property, what did he has to say. PW1 replied that no partition whether written or oral of the suit property had taken place before the death of his father. PW1 further deposed that he did not have knowledge why his sisters had got their names struck off the family ration card of his father. PW1 further deposed that he did not get installed the electricity meter in the suit property due to the reason mentioned in question.
44. PW1 further deposed that he got electricity meter installed at first floor in his name because of surplus load on earlier installed meter. PW1 denied the suggestion that he is deliberately concealing the facts of reason of installation of electricity meter on first floor in his name. PW1 further deposed that before the death of his mother, his mother and father were staying on the first floor. PW1 further deposed that he was also staying with his family on the first floor and his brother Babulal was also staying with his family on the first floor. PW1 further deposed that on other floors of the suit property tenants were residing. Question was put to PW1 that his father was staying on the second floor of the suit property, what did he has to say. PW1 replied in negative and stated that he was not residing on the second floor, he was residing Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-28-on the first floor. PW1 denied the suggestion that his mother, father and his brother Babulal were not staying at the first floor. PW1 denied the suggestion that his father was staying at the second floor or that his brother Babulal was staying at the ground floor. PW1 denied the suggestion that after the death of his mother, his father called upon all the family members including all sisters and with the consent of all had made an oral partition of the suit property giving him first and second floor and the ground floor with the roof rights of the second floor was given to his brother Babulal. PW1 denied the suggestion that he was given two floors as he was having two daughters and one son to marry off and his brother Babulal was having only two sons.
45. PW1 denied the suggestion that on the roof of the second floor the construction was carried out by Harish Das and Kailash Kumar. By way of volunteer PW1 deposed that the suit property with ground floor, first floor, second floor and third floor was already constructed by his father before his death. PW1 denied the suggestion that the construction at the roof of the second floor was carried out by Harish Das and Kailash Kumar in the year 2012. PW1 was shown Exbt- PW1/D1 from the judicial file, PW1 admits the same. PW1 further deposed that it was issued by the concerned department on his application. PW1 further deposed that the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-29-contents of the document shown are not admitted. PW1 further deposed that the exbt-PW1/D1 got issued to recover a sum of Rs. 9,000/- of his mother and father which was lying with Durga Builders, Connaught Place. PW1 further deposed that he has received the above mentioned amount. PW1 further deposed that he did not remember to whom he had distributed the money. PW1 further deposed that there were other living survivors of Late Shri. Nathi Lal available when he got the PW1/D1 issued.
46. Question was put to PW1 that can he tell what all are the specific contents he is not admitting in Exbt-PW1/D1. PW1 replied that he cannot admit the contents of exbt-PW1/D1 without going through the original of the same. PW1 further deposed that he had not filed/annexed Exbt- PW1/D1 in any other case filed by him prior to this case. PW1 further deposed that he did not know whether he has filed this document in his previous suit. PW1 denied the suggestion that all the parties in the present suit are not entitled for equal 1/6th share in the suit property. PW1 further deposed that defendant no.1A & 1B had entered into the ground floor in year 2005. By way of volunteer PW1 deposed that they had entered forcefully after quarelling and beating the tenant with a rod and had removed them from the suit property. PW1 further deposed that they had entered in the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-30-third floor in year 2011.
47. PW1 denied the suggestion that his father did not remain the absolute owner of the suit property after the partition. PW1 denied the suggestion that the defendant no.1A and 1B had shifted in the ground floor in the year 2002-03. PW1 denied the suggestion that the defendants had not beaten any tenant in the ground floor. PW1 denied the suggestion that he had not called for a meeting of his family members for the purpose of partition in the year 2011. By way of volunteer PW1 deposed that he had called all his sisters for meeting for the purpose of partition in year 2011 but the meeting could not be materialized. PW1 further deposed that he had called a meeting of his family members in December 2012, some dispute and quarrel had occurred, MLC was conducted. PW1 denied the suggestion that his sisters had no right to relinquish their rights in respect of the suit property in his favour. PW1 denied the suggestion that in collusion of his sisters he got the relinquishment deed prepared in order to get more than half share in the suit property. PW1 denied the suggestion that his sisters did not claim any right in the suit property as they were not vested with any right after the partition of suit property. PW1 admitted the suggestion that the husband of deceased Smt. Geeta has neither signed nor his name was mentioned in the relinquishment deed. PW1 Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-31-admitted the suggestion that the said relinquishment deed neither has the signature of defendant no.1A & 1B. PW1 admitted the suggestion that he had not paid stamp duty upon the relinquishment deed as per the valuation of the suit property. PW1 denied the suggestion that he and the legal heirs of his brother Babulal are entitled for 1/2 share each in the suit property. PW1 admitted the suggestion that legal heirs of his brother are in possession of ground and third floor of the suit property and he is in the possession of first and second floor.
48. In the cross-examination, PW2 admitted the suggestion that he did not go to the office of sub-registrar before 18 March 2013. PW2 admitted the suggestion that he did not sign on the above said relinquishment deed before 18 March 2013. PW2 further deposed that all the signatures and thumb impressions on the relinquishment deed were affixed on 18 March 2013 in his presence and in front of him. PW2 further deposed that he did not know the names of the persons who had affixed signatures on the relinquishment deed in front of him, however they were sisters and nephews (bhanje) of Shri. Ved Prakash. Shri. Ved Prakash had also signed the relinquishment deed in his presence. PW2 was confronted with exhibit PW1/B dt: 29.03.2017 on record where the signature of Shri. Ved Prakash was not affixed. PW2 was Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-32-shown running page no. 40 filed alongwith the plaint which is marked as Mark-X [running from page no.31-40] and asked whether he had affixed his signature on it as a witness. PW2 deposed that he has no signature on Mark-X at page 40. PW2 denied the suggestion that in front of him no body had signed upon the relinquishment deed including Shri. Ved Prakash.
49. In the cross-examination, PW3 deposed that he did not know how to read and write English neither he can speak English. PW3 further deposed that he studied up to 5th standard. PW3 further deposed that he has stated that he could not read English how can he say what is written in the affidavit. PW3 further deposed that he cannot say whether it is written in his affidavit that his wife was Geeta. PW3 further deposed that it must have been written in the affidavit that his wife Geeta is now deceased. PW3 further deposed that names of his children must also have been written in his affidavit. PW3 further deposed that his wife died about 5 years ago, however he did not know the exact date of her demise. PW3 further deposed that he got married with deceased Geeta somewhere around year 1975. PW3 admitted the suggestion that his wife Geeta got her name strucked off the family ration card of her father in the year 2002. PW3 admitted the suggestion that after striking down the name of his wife from the family ration card of her father, ration card at his Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-33-Faridabad address was obtained. PW3 admitted the suggestion that the reason of striking down the name of his wife Geeta from the family ration card of her father was that after the death of her mother, her father had made an oral partition of the suit property. PW3 admitted the suggestion that he did not sign the relinquishment deed as his wife did not have share in the suit property. PW3 further deposed that he did not know that whether the other sisters of his wife got struck off their names from the family ration card of their father. PW3 admitted the suggestion that he did not have any objection with regard to the suit property as he has no right to any share in it. PW3 further deposed that at the time of death of mother-in-law the suit property was built up to three floors including first, second, third floor. PW3 denied the suggestion that the time of death of his mother-in-law there was only ground floor, first and second floor built up at the ground floor. By way of volunteer PW3 deposed that it was completely built up at the time of death of his mother-in-law i.e., ground, first, second and third floor. PW3 denied the suggestion that Harish had got constructed the third floor of the suit property. By way of volunteer PW3 deposed that the entire building up to third floor was already constructed by his father-in-law. PW3 denied the suggestion that he had made the abovesaid statement as he has been won over by the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-34-plaintiff. By way of volunteer PW3 deposed that he can take oath of his all children that he is making an honest statement.
50. In the cross-examination, PW4 was shown document Mark-X at running page no.40 and asked to show her signature which she has deposed at para no: 3 of her affidavit as Ex. PW4/A dated 17.08.2017. The document Ex. PW1/B was also put to the witness and the last page of the document Ex. PW1/B is shown to the witness. Question was put to PW4 that please indicate her signatures on this page. PW4 replied that her name is written at point 'A', her signatures are not there. PW4 denied the suggestion that she was not present or aware of execution of the relinquishment deed PW1/B.
51. The defendant no.1A and 1B in their evidence examined Harish Kumar (defendant no.1A) as DW1 and his evidence by way of affidavit Ex.DW1/1. The defendants examined Surrender Kumar as DW2 and his evidence by way of affidavit Ex.DW2/A. The defendants examined Udesh Kumar as DW3 and his evidence by way of affidavit Ex.DW3/A. The defendants relied upon the following documents:-
1. Electricity Bill dated 09.06.2018 as Ex.DW1/B.
2. Water Bill dated 11.10.2010 as Ex.DW1/C
3. Material Slip dt. 02.05.2012 as Mark A1.
4. Labour Payment record undated as Mark B1 Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-35-52. In the cross examination, DW1 deposed that he knew only Hindi and can also read Hindi. DW1 further deposed that he signs in English as well as in Hindi. DW1 further deposed that he did not remember whether he had signed the affidavit in evidence in English or in Hindi. Question was put to DW1 that did he appear before any Oath Commissioner in connection with the affidavit filed in the court that day. DW1 replied that he did not know who is Oath Commissioner and he had appeared before somebody who affixed stamp. DW1 further deposed that he affixed his signatures in the diary before somebody who affixed the stamp. DW1 further deposed that he has read and have full knowledge of the contents of his affidavit in evidence. DW1 further deposed that the case pertains to the property bearing house no. 129, Gali no.14 Block-B Amritpuri, Opposite Isckon Temple, Garhi.
53. DW1 further deposed that his grandmother died in the year 2002 in the month of January and his grandfather died in the year 2004 but he did not remember the month. DW1 further deposed that the children of his grandparents are two sons including his father and four daughters i.e, buas. DW1 further deposed that his chachaji/uncle's name is Ved Prakash and his aunties/buas are namely Late Smt. Geeta Devi, Kamlesh, Sano and Manju. DW1 further deposed that legal Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-36-heirs of deceased Geeta Devi are two sons namely Rajesh & Tinku and daughters namely Sonia and Renu. DW1 further deposed that property bearing no.B-129/14 Block B Amritpuri, Garhi, opposite Isckon Temple, East of Kailash, New Delhi-65 was purchased by his grandfather namely late Shri Nathi Lal. DW1 further deposed that he did not remember the date of purchase of the above said property. DW1 further deposed that his father died in the year 2004 but he did not remember the month. By way of volunteer DW1 deposed that it was after one month of the death of his grandfather that his father died. DW1 further deposed that at the time of death of his father he was about 23 years old. DW1 further deposed that his brother's name is Kailash and he is younger to him. DW1 further deposed that Kailash is about 30 years now. DW1 further deposed that at the time of death of his mother, the age of Kailash was 18-19 years old. DW1 further deposed that Kailash is residing at ground floor of B-129 Gali No.14 Amritpuri B opposite Isckon temple, Garhi.
54. DW1 further deposed that electricity bill of ground floor was in the name of grandfather. DW1 further deposed that before the death of his grandfather there was an oral settlement. Question was put to DW1 that what was the oral settlement. DW1 replied that in the oral settlement his Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-37-grandfather had divided the ground floor for Kailash and one room set on the roof of the second floor which was already constructed with a tin shed was given to him. DW1 again said, the oral settlement took place during the lifetime of his father. DW1 further deposed that his grandfather had divided the property in the manner that the ground floor and one room set on the roof of the second floor was given to his father and the rest of the property fell to the share of his uncle. DW1 further deposed that he and his brother are in possession of the share of his father as stated above. DW1 further deposed that in terms of the oral settlement effected during the lifetime of their grandfather, all their bua ji also had rights if construction was to be raised above the third floor.
55. DW1 further deposed that he did not know the date of death of Ms. Geeta Devi. DW1 further deposed that during the lifetime of his grandfather his Chachaji Sh. Ved Prakash and all Buas/Aunties were married. DW1 further deposed that the oral settlement in the family took place in the presence of his grandfather, his mother namely Late Smt. Sheela Devi, his father Late Sh. Babu Lal, his Chachi Smt. Rama Devi, his uncle/Chachaji Sh. Ved Prkash, two to four numbers of neighbors and some relatives but he did not know the total numbers of the persons present. DW1 further deposed that he was also present during the meeting of oral settlement. DW1 Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-38-further deposed that his younger brother namely Sh. Kailash was also present. DW1 further deposed that at that time he was about 22 years old and his younger brother's age was about 19 years old. DW1 further deposed that he did not know the date of oral settlement. DW1 further deposed that the oral settlement took place at B-129, Gali No. 14, Block B, Amritpuri, Garhi, opposite Iscon temple. DW1 further deposed that before the oral settlement he was residing with his grandfather alongwith his mother, his father and his brother. DW1 further deposed that before oral settlement he was residing at first floor of the same premises. DW1 further deposed that before the oral settlement Sh. Ved Prakash was residing at second floor in the same premises, and the ground floor was on rent given by his grandfather to the tenants.
56. Question was put to DW1 that before the settlement who was in the possession of the second floor. DW1 replied that the second floor was in possession of their uncle. Question was put to DW1 that whether there was any construction on the roof of the second floor before the settlement. DW1 replied that there was a one room set constructed on the roof of the second floor with tin shed roof. Question was put to DW1 that when did Sh. Kailash came into possession of the ground floor for the first time. DW1 replied that after the death of his grandfather and his father Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-39-and after the marriage of Sh. Kailash he started living on the ground floor. DW1 further deposed that he did not remember the date, month or year. Question was put to DW1 that how many persons are residing at ground floor of the suit premises presently. DW1 replied that his brother alongwith his family live on the ground floor as on date also. DW1 admitted the suggestion that there are some tenants also living on the ground floor. Question was put to DW1 that how many tenants are there on the ground floor. DW1 replied that there are three tenants; one is the priest of the mandir i.e., the Iscon temple, one room is being used as a store by the Iscon Temple for Bhagwad Geeta Books. DW1 further deposed that there are in all four rooms on the ground floor. DW1 further deposed that Sh. Kailash is in actual possession of one room set in the front with family.
57. Question was put to DW1 that when he, the defendant no. 1, took possession of the third floor (roof on the second floor) for the first time. DW1 replied that he had constructed the one room set with tin shed roof on the roof of the second floor in the year 2005. DW1 further deposed that he did not remember in which month. DW1 further deposed that he came into possession of the said one room set in the year 2007 but he did not remember in which month. Question was put to DW1 that whether there was electricity and water Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-40-connection on the roof of the third floor (roof on the second floor) before the settlement. DW1 replied that he did not remember. DW1 further deposed that the electricity and water bill in respect of the third floor i.e. roof on the second floor as on the date is in his name. DW1 further deposed that he did not remember the date or the month but since the year 2018 again said 2008 the bill is being received in his name. Question was put to DW1 that what were the documents submitted at the time of applying for the electricity and water connection. DW1 replied that the death certificate of his grandfather, father and property papers, his ID proof. DW1 denied the suggestion that electricity and water connection cannot be obtained only on the basis of death certificate in the absence of property papers in the name of the applicant i.e. Will/GPA/POA/Relinquishment Deed. Question was put to DW1 that can he produce the receipt in respect of the application for electricity and water connection. DW1 replied that he would have to check. DW1 again said he can bring the same.
58. DW1 further deposed that the day i.e. 27.05.2019 he was not carrying any document which was earlier submitted in the office of Electricity Department and Delhi Jal Board and he also forgot to carry the same today in the court. DW1 further deposed that he did not receive any legal notice Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-41-regarding the partition of the suit property. By way of volunteer DW1 deposed that partition was already done by his grandfather. DW1 denied the suggestion that after receiving the legal notice received by defendant no.1A and 1B, defendant no.1 applied for the electricity connection in the month of January,2013, as mentioned in the electricity bill which is in the name of defendant no.1A as energization date. DW1 further deposed that nothing happened in the year 2007 and nothing wrong was done by plaintiff. DW1 further deposed that plaintiff has filed number of criminal cases against him and his family member in Saket Courts. DW1 further deposed that he did not know about the FIR lodged against his brother i.e. defendant no. 1B. DW1 further deposed that he did not know about any FIR lodged against him. DW1 further deposed that he, his wife, his brother Kailash, his sister-in-law Poonam, sister-in-law of his brother are involved in the criminal cases and all are on bail from Saket Court where plaintiff is a complainant. DW1 further deposed that nothing has been done by the plaintiff against him in the year 2013. DW1 denied the suggestion that the plaintiff approached all the legal heirs and again approached to the registrar office Mehrauli to register the relinquishment deed excluding defendant no.1 and defendant no.1B.
59. DW1 was shown a document and DW1 stated that the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-42-document shown is a relinquishment deed dated 25.02.2013. DW1 was again shown the photograph on the same documents. DW1 identified the photographs i.e. one of the person i.e. releaser namely Sonia, Tinku, Smt Bimlesh but he was not identifying clearly, Saraswati, Rajesh Kumar and Manju and Ved Prakash (plaintiff) whom he could identify clearly. DW1 again shown page no.8A of Relinquishment Deed. DW1 deposed that he could not say whether at point 'X' on Ex.PW1/B there is seal impressions of Sub-registrar.
60. DW1 was shown the names mentioned on page no.8 and 9 of the Relinquishment deed Ex. PW1/B. DW1 deposed that the names are Rajesh Kumar s/o late Smt Geeta, Ms. Sonia d/o late Smt Geeta, Ms. Renu d/o late Smt Geeta, Sh. Tiku s/o late Smt Geeta, Smt. Bimlesh d/o Late Sh. Nathi Lal, Smt. Saraswati alias Laxmi d/o Late Sh. Nathi Lal, Smt Manju d/o Late Sh. Nathi Lal, Sh. Ved Prakash s/o Late Sh. Nathi Lal are mentioned on the page. By way of volunteer DW1 deposed that Ex.PW1/B is not a relinquishment deed and the same is wrongly drafted as the partition was already done by his grandfather before 2004 and the relinquishment deed was wrongly drafted after the death of his grandfather.
61. DW1 was shown point 'Y' on page no. 7A of the Relinquishment deed Ex. PW1/B. DW1 deposed that the signature at point 'Y' is of Ved Prakash. DW1 was also shown Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-43-photographs Y1, Y2 & Y3 on page no. 16A of the Relinquishment deed Ex. PW1/B. DW1 deposed that the photographs at point Y1 are not clear. Ld. Counsel of the plaintiff had shown page 16A of Ex.PW1/B at point Y2, it is the photograph captured at Sub-registrar's Office. DW1 deposed that he cannot identify who is in the photograph at point Y2. DW1 again said that it is Ved Prakash. DW1 further deposed that he did not remember whether he was present in the Hon'ble High Court on 17.08.2015. DW1 was shown order dated 17.08.2015 of the Hon'ble High Court from the case file. DW1 deposed that he has no knowledge about this order.
62. DW1 denied the suggestion that he has the knowledge about the legal notice sent by the plaintiff. DW1 denied the suggestion that he applied the electricity connection after the above mentioned legal notice of the plaintiff. DW1 denied the suggestion that he has not raised any construction at third floor of the property in question from his own funds. DW1 denied the suggestion that no oral partition was made between the parties.
63. In the cross-examination, a question was put to DW2 whether he was present at the time of alleged oral partition. DW2 replied in affirmative and further deposed that he was present. Question was put to DW2 that what is the date of the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-44-alleged oral partition. DW2 replied that he did not know. Question was put to DW2 that who all were present at the time of alleged oral partition. DW2 replied that Sh. Udesh Kumar, Deepak Kumar, Giriraj Singh Rawat (deceased) about 78 people from the neighbourhood were present. Question was put to DW2 that what were the terms of that alleged oral partition. DW2 replied that ground floor and roof rights were given to Harish and Kailash (both are the sons of late Sh. Babu Lal), and first and second floor were given to Ved Prakash. Question was put to DW2 that how many floors were there at the suit property in the year 2004. DW2 replied that ground, first and second floor (in total three floors). Question was put to DW2 that when did the defendant constructed the third floor at the suit property. DW2 replied that he did not know. DW2 denied the suggestion that the suit property was built up to the four floors and the same was constructed by late Sh. Nathi Lal. Question was put to DW2 that how can he say that the plaintiff is greedy, heavy drinker and a person of fighting nature. DW2 replied that he had not engaged in any quarrel whatsoever with him or any other member of the neighbourhood except the defendant which was because of the property dispute. DW2 denied the suggestion that he was deposing falsely in collusion with the defendant no.1(a) and 1(b) because they were his friends.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-45-64. In the cross-examination, question was put to DW3 whether he was present at the time of alleged oral partition. DW3 replied in affirmative and further deposed that he was present. Question was put to DW3 that what was the date of the alleged oral partition. DW3 replied that he did not remember. Question was put to DW3 that who all were present at the time of alleged oral partition. DW3 replied that Sh. Udesh Kumar, Deepak Kumar, Giriraj Singh Rawat (deceased) about 10-12 people from the neighbourhood and late Sh. Nathi Lal and Babu Lal as well Ved Prakash were present. Question was put to DW3 that what were the terms of that alleged oral partition. DW3 replied that ground floor and roof rights were given to Harish and Kailash (both are the sons of late Sh. Babu Lal), and first and second floor were given to Ved Prakash. Question was put to DW3 that how many floors were there at the suit property in the year 2004. DW3 replied that ground, first and second floor (in total three floors). Question was put to DW3 that when did the defendant constructed the third floor at the suit property. DW3 replied that around 2010-2011, the third floor was constructed by Harish S/o late Sh. Babu Lal. DW1 denied the suggestion that the suit property was built up to the four floors and the same was constructed by late Sh. Nathi Lal. Question was put to DW3 that how can he say that the plaintiff is greedy, heavy Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-46-drinker and a person of fighting nature. DW3 replied that he had not engaged in any quarrel whatsoever with him or any other member of the neighbourhood except the defendant which was because of the property dispute. DW3 denied the suggestion that he was deposing falsely in collusion with the defendant no.1(a) and 1(b) because they were his friends.
65. Ld. Counsel for plaintiff states that during the lifetime of late Sh. Nathi Lal the suit property was not partitioned orally as alleged by the defendant no.1A and 1B and it is proved from the fact that no date of oral partition was mentioned in the written statement or in the evidence of defendant no.1A and 1B. Ld. Counsel for plaintiff further states that late Sh. Nathi Lal was survived by two sons and four daughters and therefore, each son and each daughter had 1/6th share in the suit property but defendant no.2(a) to 2(d) and defendant no.3 to 5 had relinquished their share in favour of plaintiff by relinquishment deed dated 25.02.2013 and the said relinquishment deed was also registered with the sub- registrar office. Ld. Counsel for plaintiff further states that defendant no.2(a) to 2(d) and defendant no.3 to 5 have also supported the case of plaintiff. Ld. Counsel for plaintiff further states that the plaintiff has proved the case and the preliminary decree of partition may kindly be passed declaring plaintiff owner of 5/6th share in the suit property.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-47-Ld. Counsel for plaintiff relied upon the following rulings:-
1. Vineeta Sharma vs. Rakesh Sharma & Ors. (2020) 10SCR 135.
66. Ld. Counsel for defendant no.1A and 1B states that late Sh. Nathi Lal orally partitioned the suit property during his lifetime giving first and second floor to the plaintiff and ground floor and third floor having one tin shed roof to late Sh. Babu Lal who was elder son of late Sh. Nathi Lal. Ld. Counsel for defendant no.1A and 1B further states that defednant no.1A has raised construction of third floor in the year 2005 and defendant no.1A started residing on the third floor and defendant no.1B on the ground floor of the suit property. Ld. Counsel for defendant no.1A and 1B further states that as the suit property was partitioned between the plaintiff and late Sh. Babu Lal, who is father of defendant no.1A and 1B and defendant no.2 to 5 was not given any share in the suit property by late Sh. Nathi Lal, therefore, defendant no.2 to 5 have no right to execute the relinquishment deed dated 25.02.2013 in favour of the plaintiff. Ld. Counsel for defendant no.1A and 1B further states that the relinquishment deed dated 25.02.2013 is forged and fabricated document and the defendant no.1A and 1B have also filed a suit for cancellation of the said relinquishment deed.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-48-67. Ld. Counsel for defendant no.1A and 1B further states that the plaintiff got electricity meter at the first floor of the suit property in his name because first floor of the suit property was given to him in the partition by late Sh. Nathi Lal. Ld. Counsel for defendant no.1A and 1B further states that the plaintiff had also supplied the electricity from the meter installed at the first floor to the second floor as the second floor was also came to the share of the plaintiff in the oral partition. Ld. Counsel for defendant no.1A and 1B further states that as a result of oral partition the defendant no.2 to 5 also got sruck their name from the family ration card of late Sh. Nathi Lal and from this it is established that oral partition had taken place. Ld. Counsel for defendant no.1A and 1B further states that defendant no.2 expired before filing of the suit and she was survived by four children and her husband but the plaintiff has impleaded only four chidren of deceased defendant no.2 and not her husband, therefore, the suit is bad for non-joinder of necessary parties and liable to be dismissed. Ld. Counsel for defendant no.1A and 1B further states that the suit of the plaintiff may kindly be dismissed and suit of defendant no.1A and 1B may kindly be decreed. Ld. Counsel for defendant no.1A and 1B relied upon the following rulings:-
1. Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-49-(D) thr. L.Rs. And Ors MANU/SC/1251/2022.
68. In rebuttal, Ld. Counsel for plaintiff states that non-
joining of husband of deceased defendant no.2 does not make any differance because the four children of defendant no.2 have been impleaded and husband of deceased defendant no.2 was also examined as witness PW3 and he has also supported the case of the plaintiff in his evidence. Ld. Counsel for plaintiff further states that if the husband of the deceased defendant no.2 has any interest in the suit property he could have moved an application U/o 1 Rule 10 CPC but no such application was filed on his behalf because he knows that his four children have already relinquished their share in the suit property in favour of the plaintiff and he has no right in the suit property.
69. Arguments heard. Entire record perused and considered.
70. The issue wise findings on the above said issues are as under:-
71. Issue no.1 to 6, 10 in suit Ved Prakash vs. Babu Lal (since deceased) & Ors. and issue no.1 in the suit Harish & Anr. vs. Ved Prakash & Ors. are interconnected, therefore, same are being considered together.
Issue no. 1 to 6 and 10 (Ved Prakash vs. Babu Lal (Since deceased) & Ors.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-50-1) Whether Sh. Nathi Lal died intestate in respect of property described as bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) leaving behind two sons and four daughters i.e. the plaintiff and the defendants? OPP
2. Whether the defendants no. 2, the deceased sister of the plaintiff, and defendants no. 3 to 5 had executed a relinquishment deed dated 25.02.13 and registered with the Sub Registrar, Delhi on 18.03.13, thereby relinquishing their 1/6 share each in the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) in favour of the plaintiff? OPP
3. Whether the plaintiff, son of late Sh. Nathi Lal is entitled to a decree of declaration in favour of the plaintiff and against the defendants to the effect that the plaintiff is the owner of 5/6 share in the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards)? OPP
4. Whether the plaintiff is entitled to a preliminary decree of partition in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) thereby declaring that the plaintiffs share in the aforestated property is 5/6 and though share of defendant no.1 is 1/6 and defendants no.2 to 5 have no share in the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-51-aforestated suit property? OPP
5. Whether the plaintiff is entitled to a preliminary decree of partition thereby partitioning the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) by metes and bounds so that 5/6 and in the aforestated property falls in the share of the plaintiff and 1/6 share falls to the share of defendant no.1? ОPP
6. Whether the plaintiff is entitled to a preliminary decree of partition to the effect that if partition by metes and bounds in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) is not possible then the aforestated property be sold by public auction and proceeds thereof be divided between the plaintiff and defendant no.1 in 5/6 and 1/6 shares respectively? OPP
10. Whether the suit for partition and declaration is not maintainable as the property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) stands partitioned by way of an oral partition effected during the life time of the father of the parties, Late Sh. Nathi Lal and the parties have given effect to the oral partition by entering into separate possession of the respective shares determined under the oral partition? OPD.
Issue no.1 (Harish & Anr. Vs. Ved Prakash & Ors.)
1. Whether the relinquishment deed dated 25.02.13, registered on Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-52-18.03.13 executed by defendant no. 2 to 8 in favour of defendant no. 1 is null and void ? OPP
72. It is not in dispute that late Sh. Nathi Lal, who was owner of the suit property, was father of the plaintiff and defendant no.1 to 5 and grandfather of defendant no.1A and 1B and maternal grandfather of defendant no.2a to 2d. According to the plaintiff and defendant no.2(a) to 2(d) and defendant no.3 to 5 late Sh. Nathi Lal died intestate and as wife of late Sh. Nathi Lal pre-deceased him, therefore, suit property was devolved among his two sons and four daughters thereby each class-I legal heir of late Sh. Nathi Lal has 1/6th share in the suit property. Thereafter, in the year 2013, defendant no.2(a) to 2(d) and defendant no.3 to 5 relinquished their share in the suit property in favour of the plaintiff and as a result of which the plaintiff has 5/6 th share in the suit property.
73. On the other hand according to defendant no.1A and 1B, late Sh. Nathi Lal during his life time orally partitioned the suit property between this two sons Babu Lal (deceased defendant no.1) and Ved Prakash (plaintiff) giving ground floor and third floor having one tin shed room to late Sh. Babu Lal and first and second floor to the plaintiff. As the defendant no.1A and 1B are claiming that the suit property was orally partitioned by late Sh. Nathi Lal, therefore, the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-53-burden to prove oral partition lies on them. The Hon'ble Supreme Court of India in Vineeta Sharma v. Rakesh Sharma (supra) has held in para no.129(v) as under:-
"129. xxxxx
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."
74. The Hon'ble Supreme Court of India in Vineeta Sharma v. Rakesh Sharma & Ors. (supra) has held that only in exceptional cases where the plea of oral partition is supported by public documents and partition is finally proved in the same manner as if it has been affected by a decree of a court only then it may be accepted, however, mere plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly. In the case in hand in order to prove the oral partition defendant no.1A and 1B have relied upon electricity bill dated 09.06.2018 Ex.DW1/B, water bill dated 11.10.2010 Ex.DW1/C, construction material slip dated 02.05.2012 Mark A1 and payment made to labour for construction of third floor Mark B1. The electricity Bill dated Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-54-09.06.2018 Ex.DW1/B is in the name of Harish Das (defendant no.1A). It is of third floor of the suit property which is in the possession of defendant no.1A. The water bill dated 11.10.2010 Ex.DW1/C is in the name of Harish (defendant no.1A). On the basis of electricity bill Ex.DW1/B and water bill Ex.DW1/C it cannot be said that the suit property was orally partitioned during the lifetime of late Sh. Nathi Lal. Admittedly, the defendant no.1A and 1B are in possession of third floor and ground floor of the suit property respectively. They are also co-sharers/co-owners of the suit property, therefore, water and electricity meter can be installed in their name. Similarly, the installation of electricity metter on the first floor in the name of the plaintiff does not make any differance. Further, the construction material slip Mark A1 and payment made to labour Mark B1 are neither public documents nor on the basis of these documents it can be held that the suit property was orally partitioned by late Sh. Nathi Lal during his lifetime.
75. The defendant no.1A and 1B have also relied upon a surviving member certificate Ex.PW1/D1. The said surviving member certificate is regarding the surviving members of late Sh. Nathi Lal. As per the surviving member certificate Ex.PW1/D1 late Sh. Nathi Lal expired on 11.09.2004 and survived by his son Ved Prakash (plaintiff) and four Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-55-daughters. The surviving members certificate is dated 07.05.2007 and it does not bear the name of elder son late Sh. Babu Lal S/o late Sh. Nathi Lal because Babu Lal expired on 24.10.2004 just after one month from the death of late Sh. Nathi Lal. Defendant no.1A and 1B have stated that defendant no.2 to 5 after the oral partition got struck their name from the family ration card of late Sh. Nathi Lal. However, defendant no.2 to 5 got married and only after their marriages their names were got cancelled from the ration card of late Sh. Nathi Lal. It is general practice when a daughter gets married she gets her name struck off from the ration card of her father in order get her name added in the ration card of her husband, therefore, just on the basis of names of defendant no.2 to 5 were got cancelled from the family ration card of late Sh. Nathi Lal does not mean that oral partition of the suit property had taken place during the lifetime of late Sh. Nathi Lal. Defendant no.1A and 1B also examined DW2 and DW3 in order to prove oral partition. Though DW 2 and 3 are neighbors, however, there are contradictions in their testimonies and they also do not know the date of oral partition.
76. PW1 deposed that the children of deceased defendant no.2 and defendant no 3 to 5 have relinquished their share in the suit property in favour of plaintiff vide relinquishment Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-56-deed dated 25.02.2013 Ex.PW1/3. The relinquishment deed was also got registered at the office of sub-registrar, Delhi. The plaintiff has also examined Jeevan S/o Shri Krishan as PW2, who is witness of the relinquishment deed Ex.PW1/B. PW2 supported the case of the plaintiff in his evidence and there is hardly any material contradiction in his cross- examination. PW2 deposed that all the signatures and thumb impressions on the relinquishment deed were affixed on 18.03.2013 in his presence and in front of him. PW2 further deposed that he did not know the names of the persons who had affixed signatures on the relinquishment deed in front of him, however they were sisters and nephews (bhanje) of Ved Prakash (plaintiff). PW2 further deposed that the relinquishment deed was also signed by Sh. Ved Prakash (plaintiff). PW2 was confronted with exhibit PW1/B where the signature of Sh. Ved Prakash was not affixed. However, such contradictions in the testimony of PW2 are not material contradictions because defendant no.2a to 2d and defendant no.3 to 5 who executed the relinquishment deed dated 25.02.2013 Ex.PW1/B have also not disputed the relinquishment deed.
77. In view of the above discussions the defendant no.1A and 1B have failed to prove that late Sh. Nathi Lal have orally partitioned the suit property during his lifetime between the Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-57-plaintiff and late Sh. Babu Lal. On the other hand, it is established that late Sh. Nathi Lal died intestate and he was survived by two sons and four daughters, therefore, the suit property was devolved among two sons and four daughters. Defendant no.2 late Smt. Geeta died on 21.03.2011 leaving behind five legal heirs defendant no.2a to 2d and her husband. Defendant no.2a to 2d and defendant no.3 to 5 have relinquished their share in the suit property in favour of plaintiff, thus, the plaintiff has 5/6th share in the suit property and late Sh. Babu Lal (deceased defendant no.1) had 1/6th share in the suit property and on his demise his share goes to defendant no.1A and 1B being his sons, thus, the defendant no.1A and 1B have 1/12th share each in the suit property.
78. In veiw of the above discussions, issue no.1 to 6, 10 in case Ved Prakash vs. Babu Lal (Since deceased) & Ors. and issue no.1 in case Harish & Anr. Vs. Ved Prakash & Ors are decided in favour of the plaintiff (Ved Prakash) and against the defendant no.1A and 1B (Harish and Kailash). Issue No.8
8. Whether the plaintiff is entitled to a decree of permanent injunction thereby restraining the defendants from creating any third party interest in any manner in property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards)? OPP Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-58-79. Admittedly, the plaintiff is in possession of first and second floor of the suit property and according to the defendant no.1A and 1B the first and second floor have come to the share of the plaintiff by way of oral partition, though oral partition is not proved as discussed above. Therefore, the plaintiff is entitled for a decree of permanent injunction thereby restraining the defendant no.1A and 1B, 2(a) to 2(d), 3 to 5 in suit Ved Prakash vs. Babu Lal (Since deceased) & Ors. from creating any third-party interest in any manner in the first and second floor of the suit property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards). Hence, this issue is decided in favour of plaintiff (Ved Prakash) and against the defendants.
Issue no.9
9. Whether the suit of the plaintiff is bad for non joinder of necessary party i.e. the husband of deceased sister Smt. Geeta? OPD
80. It is not in dispute that late Smt. Geeta deceased defendant no.2 was survived by four children (defendant no.2a to 2d) and her husband Narayan Das. It is also not in dispute that her husband Narayan Das was alive at the tiime of filing of instant suit. The plaintiff has even examined Narayan Das as PW3 in his evidence. Under Section 15 of Hindu Sucession Act, 1956 on the demise of a Hindu woman Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-59-her property would devolve upon her children and husband. The property inherited by such Hindu female from her father or mother would not go to her husband if she is not survivied by her any child. In the case in hand defendant no.2 was survived by her four children, therefore, her husband would also have share in her property. Hence, Sh. Narayan Das, husband of defendant no.2 was also having share in the suit property being class-I legal heir of defendant no.2. Plaintiff has not impleaded the husband of defendant no.2 in the array of defendants. The defendant no.1A and 1B have also raised this objections in their written statement depsite the plaintiff has not impleaded the husband of defendant no.2, therefore, issue no.9 was also framed.
81. Sh. Narayan Das being husband of defendant no.2 and as he inherited the share of deceased defendant no.2 along with her children, therefore, Sh. Narayan Das is a necessary party. In Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. & ors. MANU/SC/0427/2010 in para 15 has held as under:-
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.-60-
in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the Plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the Plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
82. The Hon'ble Supreme Court of India in Kasturi V. Iyyamperumal & Ors. (2005) 6 SCC 733 has held in para 7 as under:-
"7.... From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party. Tests are - (1) there must be a right to some relief against such party in respect of the controversies involved in the proceedings; (2) no effective decree can be passed in the absence of such party."
83. In the case in hand both the twin tests are satisfied. Sh.
Narayan Das is a necessary party because the plaintiff is claiming a portion of the suit property in which Sh. Narayan Das is also having a share being Class-I legal heirs of his wife deffendant no.2 and in his absence no effective decree can be passed. It is also important to mention here that only defendant no.2(a) to 2(d) the children of deceased defendant no.2 have relinquished their share vide relinquishment deed dated 25.02.2013 Ex.PW1/D in favour of plaintiff. Sh. Narayan Das, husband of deceased defendant no.2 has not relinquished his share in the suit property, therefore, it Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-61-becomes more necessary to implead Sh. Narayan Das as one of the defendants.
84. According to the plaintiff himself late Sh. Nathi Lal died intestate leaving behind two sons and four daughters. Both sons and all daughters have 1/6th share each in the suit property. The defendant no.2 died on 21.03.2011 till then the suit property was not partitioned, therefore, the share of the defendant no.2 went to her four children defendant no.2a to 2d and her husband. The defendant no.1A and 1B have also raised specific objections in their written statement with regard to non-joinder of necessary party despite that the plaintiff has not impleaded Sh. Narayan Das, husband of defendant no.2 as one of the defendants. Since Sh. Narayan Das had share in the suit property being legal heir of the deceased defendant no.2 and he had also not relinquished his share in the suit property in favour of the plaintiff vide relinquishment deed dated 25.02.2013 Ex.PW1/B, therefore, an effective decree can not be passsed affecting the rights of Sh. Narayan Das. The Hon'ble Supreme Court of India Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Bhedi (D) thr. L.Rs. And Ors MANU/SC/1251/2022 has dismissed the appeal holding that the plaintiffs on admission that suit property was jointly owned by the defendant, his wife and three sons but the wife and three sons of the defendant were Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-62-not impleaded in the suit, therefore, no effective decree could have been passed in their absence. Hence, relying upon Moreshar Yadaorao Mahajan v. Vyankatesh Sitaram Behdi (supra) this court is of the considered view that in the absence of Sh. Narayan Das, husband of defendant no.2, no effective decree can be passed. Hence, this issue is decided in favour of defendant no.1A and 1B and against the plaintiff. Issue No.7
7. Whether the plaintiff is entitled to a final decree of partition in respect of property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards) in terms of the shares declared under the preliminary decree of partition?OPP
85. As per the findings on issue no.9, the suit is bad for non-joinder of necessary parties, therefore, the plaintiff is not entitled for preliminary decree and also final decree. Hence, this issue is decided accordingly.
Issue no.2 in suit Harish & Anr. Vs. Ved Prakash & ors.
2. Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff over the ground floor and third floor with terrace right in property described? OPP
86. Plaintiff as PW1 has admitted that defendant no.1A is in possession of third floor and defendant no.1B is in Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-63-possession of ground floor of the suit property. The defendant no.1A and 1B have joint right, interest and title in the entire suit property being legal heirs of late Sh. Babu Lal. The suit property has not been partitioned till date, therefore, the plaintiff (Ved Prakash) is restrained from interferring with the peaceful possession of defendant no.1A (Harish) in the third floor and peaceful possession of defendant no.1B (Kailash) in the ground floor of the suit property. Hence, this issue is decided in favour of defendant no.1A and 1B (Harish and Kailash) and against the plaintiff (Ved Prakash). RELIEF:
87.As per the findings on the issue no.1 to 6, 7 and 10, plaintiff (Ved Prakash) is not entitled for preliminary decree of partition of the suit property. As per finding on issue no.8, plainitff (Ved Prakash) is entitled for a decree of permanent injunction, therefore, a decree of permanent injunction is passed in favour of the plaintiff thereby restraining the defendant no.1A and 1B, 2(a) to 2(d), 3 to 5 in suit Ved Prakash vs. Babu Lal (Since deceased) & Ors. from creating any third-party interest in any manner in the first and second floor of the suit property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards).
88. As per the findings on issue no.1 in case Harish & Anr.
Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-64-Vs. Ved Prakash & Ors., the plainitffs, namely, Harish and Kailash are not entitled for declaration as null and void the relinquishment deed dated 25.02.2013. As per findings on issue no.2 in case Harish & Anr. Vs. Ved Prakash & Ors., the plaintiffs, namely, Harish and Kailash are entitled for decree of permanent injunction therefore, a decree of permanent injunction is passed in favour of plaintiffs, namely, Harish and Kailash thereby restraining the defendant no.1 to 8 in case Harish & Anr. vs. Ved Prakash & Ors from interfaring in the peaceful possession of the plaintiffs of the ground floor and the third floor of the suit property bearing No. 129/14, Amrit Puri, Garhi, East of Kailash, New Delhi (Khasra No. 147, Garhi Jharia Marhi measuring 100 sq. yards).
89. Thus, the suit titled Ved Prakash vs. Babu Lal (Since Deceased) & Ors. and suit Harish & Anr. Vs. Ved Prakash & Ors. are partly decreed qua the relief of permanent injunction.
90. The suit Ved Prakash vs. Babu Lal (Since Deceased) & Ors. for the relief of partition is dismissed. Similarly, the suit Harish & Anr. Vs. Ved Prakash & Ors. for the relief of declaration of relinquishment deed as null and void is dismissed.
91. No order as to costs. Decree sheet be prepared accordingly.
92. A signed copy of judgment and decree be kept in both Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.
-65-the files.
93. File be consigned to record room. Digitally signed by PRITAM PRITAM SINGH SINGH Date:
2025.12.26 17:14:25 +0530 Announced in the open court (PRITAM SINGH) on 26th day of December, 2025 DISTRICT JUDGE-04/ SOUTH EAST/SAKET COURTS/DELHI Civ DJ No.210827/2016 (Old Case No.3367/2014) Ved Prakash vs. Babu Lal (Since Deceased) & Ors.
And Civ DJ No.210790/2016 (Old Case No.112/2015) Harish & Anr. v. Ved Prakash & Ors.