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[Cites 3, Cited by 0]

Delhi District Court

Sh. Parvesh Chawla vs Sh. Rakesh Chawla on 21 April, 2012

                                                                      ID No. 02401C01157112006


       IN THE COURT OF SHRI PANKAJ GUPTA : ADDL. DISTRICT 
            JUDGE (CENTRAL­07) : TIS HAZARI COURT : DELHI


                                    CIVIL SUIT NO. 162/2006


Sh. Parvesh Chawla,
S/o Late Sh. Prithvi Raj Chawla,
B­27A, Gangotri Apartments Kalkaji,
New Delhi­110019.                                                          ............. PLAINTIFF


                 VERSUS


1.       Sh. Rakesh Chawla
         S/o Late Sh. Prithvi Raj Chawla
         J­82B, DDA Flats, Kalkaji,
         New Delhi­110019.


2.       Municipal Corporation of Delhi
         Through Its Commissioner
         Town Hall, Delhi­110006.


3.       BSES Rajdhani Power Ltd.,
         BSES Bhawan, Nehru Place,
         New Delhi­110019.                                               ............ DEFENDANTS 


Date of Institution                                              : 13.12.2006
Date when the case reserved for order                            : 21.04.2012 
Date of Order                                                    : 21.04.2012
 

J U D G M E N T

1/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

1. The plaintiff filed the suit for partition, mesne profit and mandatory and permanent injunction against the defendants.

2. In the plaint, it is stated that the plaintiff and the defendant no. 1 are the real brothers. They jointly purchased the shop admeasuring 11.06 meters bearing shop no. 1, ground floor, CSC, J.J. Tentaments, DDA Flats, Kalkaji, New Delhi­110019 (the suit property) from Sh. Satish Kumar for a sum of Rs. 2,50,000/­ vide agreement to sell, power of attorney, affidavit, receipts, indemnity bond and Will all dated 22.10.2001. On the very same day, the plaintiff and the defendant no.1 took over the possession of the suit property. Subsequently, the defendant no.2 issued the license in the name of defendant no.1 to run the meat shop from the suit property. For the said purpose, the plaintiff issued NOC in favour of the defendant no.1. An electricity meter was installed in the suit property by the defendant no.3 and the payment was made in the joint name on 22.07.2003. However, the user name continued to be that of Sh. Guru Nanak Sat Ramkau. But the bill for the month of October, 2006 shows the name of the defendant. On 17.04.2006, when the plaintiff went to meet his mother at property no. J­2/82­B, Kalkaji, the defendant no.1 and Sh. Shiv Chawla mal handled him. Consequently, he suffered many injuries and MLC was done and a complaint to this effect was made on 22.01.2006. Subsequently, the defendant no.1 became dishonest and threatened the plaintiff either to relinquish his share in the suit property in his favour or to face the dire consequences. Thereafter, the plaintiff requested the defendant no.1 to partition the suit property but of no use. Due to the act of the defendant no.1, the plaintiff suffered huge losses. Hence, it is prayed that a decree of partition by metes and bounds regarding the suit property may be passed in favour of the plaintiff and against the defendant no.1; a 2/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

decree of mesne profit @ Rs. 5,000/­ per month for 24 months be also passed; decree of permanent injunction in favour of the plaintiff and against the defendant no.1 may also be passed restraining him from carrying out any unauthorized construction and also form creating any third party interest in the suit property; decree of mandatory injunction may also be passed directing the defendant no.2 to cancel the license issued in favour of the defendant no.1 and also to remove the unauthorized construction carried out in the suit property and also directing the defendant no.1 and 2 to rectify the record and remove the name of the defendant no.1 from their record.

3. Notice of the suit was issued to the defendants. In response thereto, the defendant no.1 filed the written statement and admitted that he and the plaintiff are the real brother. However, it is pleaded that in addition, there are other legal heirs also as mentioned in para no.1 of the preliminary submissions. It is stated that their father expired on 13.01.1992 leaving behind the various movable and immovable properties as mentioned in para no. 2 of the preliminary submissions. So far as the suit property is concerned, it is stated that defendant no.1 is the exclusive owner and in possession of the same. The suit property was purchased by the defendant no. 1 from his own sources and no money was taken either from the family funds or from the plaintiff to run the meat shop which has no connection with the business activities of the family. The defendant no.1 raised a preliminary objection that the title documents relied upon by the plaintiff are inadmissible in evidence because they are hit by section 17 of the Registration Act and they do not confer any right, title or interest upon the 3/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

plaintiff. The defendant no.1 denied rest of the averments made in the application. Hence, it is prayed that the suit may be dismissed.

4. The plaintiff filed the replication and reiterated the averments made in the plaint.

5. The defendant no.2 filed the written statement and pleaded that the suit is bad for want of notice U/s 477/478 of DMC Act. It is admitted that it issued the license in favour of the defendant no.1 to run the meat shop and the plaintiff issued NOC for the same. The plaintiff filed the replication and reiterated the averments made in the plaint.

6. The defendant no.3 filed the written statement and stated that the defendant no.3 has no role in the present disputes because it relates to the two brothers in respect of the suit property. Hence, it is prayed that the suit may be dismissed. The plaintiff filed the replication to the same and reiterated the averments made in the plaint.

7. Vide order dated 28.11.2007, the defendant no.3 was deleted from the array of parties.

8. On 30.01.2008, the following issues were framed by the Ld. Predecessor of this court :

4/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.
1. Whether the suit is bad for non joinder of necessary parties in view of the fact that other legal heirs against whom the plaintiff has sought a partition by metes & bounds not been impleaded as defendant? .......OPD­1
2. Whether the following property/assets (movable as well as immovable) have been purchased out of joint funds of HUF? ........OPD
(i) Shop no. S­16, Pratap Market, Bhogal;

(ii) House No. D­9, Tajpur Pahri, Badarpur;

(iii) J2/82­A, G.F., DDA Janta Flat, Kalkaji;

(iv) Built up House measuring 75 sq. yds. situated in Prehladpur, Delhi.

(v) Car Maruti Van No. DAV 3443;

(vi) Two matadors (One 9 seater and another 16 seater)

(vii) FDR in the sum of Rs. 1,00,000/­ in the Bank of Maharashtra, Kalkaji, New Delhi;

(viii) Bank Balance in one Saving Bank Account and another Current Account in Bank of Barods, Bhogal, New Delhi;

(ix) Gold Jewellery (of late Sh. Prithvi Raj Chawla) about 20 Tolas (1 Kada­5 Tolas, 2 Gold Chains, 2 to 2.5 Tolas each and Gold Rings);

(x) Units in the sum of Rs. 1,00,000/­ with peerless in the name of late Sh. Prithvi Raj Chawla. Another investment with the Peerless in the name of Smt. Santosh Chawla;

(xi) Flat No. J­3, 284, Janta DDA Flat, Kalkaji, New Delhi; 5/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

(xii) Plot of land falling in Khasra No. 363, Garhi Mohalla Jungpura, Bhogal, New Delhi;

(xiii) Plot No. E­23, Sector 63, Noida, Gautam Budh Nagar, Uttar Pradesh;

(xiv) Flat No. B­27/A, Gangotri Apartment, Kalkaji, New Delhi;

(xv) Flat No. J­I/404, DDA Flat, Kalkaji, New Delhi; (xvi) Flat No. J­I/146, DDA Flat, Kalkaji, New Delhi; (xvii) Flat No. J­I/397, DDA Flat, Kalkaji, New Delhi; (xviii) Flat No. J­4/119 A, DDA Flat, Kalkaji, New Delhi; (xix) Flat No. 287, Arawali Apartments, Alaknanda, New Delhi; (xx) Car (Maruti Esteem) No. DL 3CZ 9200.

3. Whether the plaintiff is entitled to the partition by metes & bounds as asked for in the plaint? ........OPP

4. Whether the plaintiff is entitled to the relief of mesne profit as asked for in the plaint? ........OPP

5. Whether the plaintiff is entitled to the relief of permanent and mandatory injunction as asked for in the plaint? .......OPP

6. Relief.

9. The plaintiff tendered his evidence by way of affidavit and the same is Ex. PW­1/A. The plaintiff relied upon the documents Ex.PW1/1 to Ex.PW1/14.

6/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

10. Before ld. Predecessor of this court, the defendant no.1 examined himself as D1W1 and tendered his affidavit in evidence which is Ex.D1W1/A (on the affidavit the endorsement is DW1/A). He relied upon the documents Ex.D1W1/1 to D1W1/7. The documents marked as Ex.D1W1/3 was de­exhibited and was marked as mark A.

11. The defendant no.2 examined Dr. Ravinder Sharma as D2W1 and his affidavit is D2W1/A. He relied upon the documents Ex.D2W1/1 and Ex.D2W1/2.

12. I have heard the Ld. Counsels for the parties and have perused the material available on record including the written submissions filed by the respective parties.

ISSUE No.1

13. Onus to prove issue no.1 was on the defendant no.1. Counsel for the defendant no.1 pleaded that apart from the plaintiff and the defendant no.1, there are other legal heirs of Sh. Prithvi Raj Chawla also as mentioned in para no.1 of the preliminary submission of the WS of the defendant no.1. Therefore, the suit is bad for non­joinder of the parties. In the present suit, the plaintiff claimed partition of the suit property i.e. the shop on the basis that the same was purchased by him alongwith his brother i.e. the defendant no.1 out of their own funds. It is nowhere the case of either the plaintiff or defendant no.1 that the suit property was purchased out of the joint family funds and/or was ever treated as a joint family property. Therefore, it can be 7/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

held that the suit property has nothing to do with the joint family status and was never treated so. Therefore, the legal heirs as mentioned in para 1 of the preliminary submission are not necessary or proper party in the present suit. Hence, the issue no. 1 is decided in favour of the plaintiff and against the defendant no. 1.

ISSUE No.2

14. Onus to prove issue no.2 was on the defendant no.1. In para 2 of the preliminary submission, the defendant no.1 mentioned a number of movable and immovable properties left by his father who expired on 13.01.1992 and mentioned that the same were the joint family property. The plaintiff filed the present suit regarding the suit property claiming it to be the joint property of the plaintiff and the defendant no.1 having purchased out of their own funds. It is not the case of either the plaintiff or the defendant no.1 that the suit property was ever treated as a joint family property or was purchased out of the joint family funds. It implies that the present suit for partition regarding the suit property does not involve any issue of joint family properties purchased out of the joint family funds. As such, the joint family properties as mentioned in para 2 of the preliminary submissions as well as the funds from which the same were purchased are not the subject matter of the present suit. Therefore, this issue is not at all relevant to dispose of the present suit. Accordingly, the issue no. 2 is disposed of.

ISSUE No.3 8/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

15. Onus to prove issue no.3 was on the plaintiff. Case of the plaintiff is that he and the defendant no.1 are the real brother and jointly purchased the suit property for Rs. 2,50,000/­ on the basis of the documents executed on 22.10.2001 i.e. agreement to sell, power of attorney, affidavit, receipt, indemnity bond, Will. However, original of the said documents were lost and produced the photocopies of the said documents as Ex.PW1/1 (Colly). On the other hand, case of the defendant no.1 is that he purchased the suit property out of his own funds and therefore, he is the exclusive owner and in possession of the suit property.

16. Now the question arises, whether the suit property is the joint property of the plaintiff and the defendant no.1 and was purchased for a sale consideration of Rs. 2,50,000/­. To substantiate his claim of joint ownership, the plaintiff relied upon the documents marked as Ex.PW1/1 (collectively). All the said documents are the photocopies. Counsel for the defendant strenuously pleaded that the said documents are inadmissible in evidence. It is settled law that mere exhibiting the documents is not sufficient to make the documents admissible in law. Hence, the question arises whether the photocopies of the documents marked as Ex.PW1/1 (collectively) are admissible in evidence. Case of the plaintiff is that the original of the said documents have been lost. In the entire plaint, the plaintiff has not disclosed the date when the said documents were lost. It is nowhere the case of the plaintiff that he lodged a complaint regarding missing of the said documents. On the contrary, in evidence, PW­1 deposed that he lodged the complaint with the police regarding loss of the said documents. However, he had not placed the said report on the court record. He deposed to the extent that he 9/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.

did not have the said documents even on the date of examination i.e. 12.03.2008. As such, the plaintiff has failed to substantiate that the original of the said documents have been lost and also that he lodged a police complaint to that effect. The defendant no.1 has not admitted the said documents. The plaintiff has not also sought any permission to lead the secondary evidence to this effect. Therefore, it can be held that the said documents were not proved in accordance with law. Further, even if, it is presumed for the sake of arguments only that the said documents can be led into evidence then the question arises, whether they fulfill the requirement of Registration Act and the Stamp Act. It is the own case of the plaintiff that the suit property was purchased for Rs. 2,50,000/­. Therefore, in terms of Section 17 of the Registration Act, the said documents required compulsory registration. Admittedly, the said documents are not registered and hence, the same are hit by section 17 of the Registration Act. Further, in terms of Section 49 of the Registration Act, the said documents are inadmissible in law. The agreement to sell and General Power of Attorney were executed on a stamp paper of Rs.50/­ only. As such, it can be held that the plaintiff has not paid the proper stamp duty on the said documents. Therefore, the said documents are inadmissible in law and are of non consequence.

17. Counsel for the plaintiff submits that the defendant has failed to prove that he was the exclusive owner of the suit property. Further, the defendant was not earning anything when the suit property was purchased. The initial onus to prove that it was the joint property having purchased out of the joint funds was on the plaintiff. If he succeeds in proving the same only then, the onus would have shifted upon the defendant no.1 to prove to the contrary. Regarding funds, the plaintiff himself stated that the suit property 10/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr. was jointly purchased by him along with the defendant no.1. It is nowhere the case of the plaintiff that it is he who exclusively paid the entire sale consideration. In the present case, PW1 in his cross examination admitted that he had no document to show that the property had been purchased by the money given by him. Therefore, there is no substance in the plea raised by the plaintiff. On the other hand, D1W1 deposed that the sale deed of the suit shop is not in the name of the plaintiff. No suggestion to the contrary is given. In para 12 of the preliminary submission in written statement, the defendant stated that the suit property was purchased by him from his own funds and resources and no amount was taken ether from the family funds or from the plaintiff and the suit property was not included in the family property. In the replication, the plaintiff has not specifically denied the said averments made. In view of the foregoing discussions, it can be held that the plaintiff has failed to prove that he jointly purchased the suit property with the defendant no.1 and he is the co­owner of the same. Therefore, the plaintiff is not entitled for the relief of partition as prayed for. Accordingly, issue no.3 is decided against the plaintiff and in favour of the defendants. ISSUE No.4

18. Onus to prove issue no.4 was on the plaintiff. Issue no.3 is decided against the plaintiff and in favour of the defendants. In view of the foregoing discussions which are not repeated herein for the sake of brevity, it is held that the plaintiff is not entitled to the relief of mesne profit as prayed for. Therefore, the issue no. 4 is decided against the plaintiff and in favour of the defendants.

11/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr. ISSUE No.5

19. Onus to prove issue no.5 was on the plaintiff. As discussed above, the plaintiff has failed to prove that the suit property was jointly purchased by him along with the defendant no.1. As such, the plaintiff has failed to prove his right, title and interest in the suit property. It is nowhere the case of the plaintiff that the defendant no.2 issued the license to run the meat shop in favour of the defendant no.1 without following the due process of law. Simultaneously, in the entire plaint, the plaintiff has not disclosed as to what unauthorized construction has been carried out by the defendant no.1 in the suit property. In view of the foregoing discussions, it can be held that the plaintiff is not entitled for the relief as claimed. Hence, the issue no.5 is decided against of the plaintiff and in favour of the defendants. ISSUE No. 6 (RELIEF)

20. In view of the foregoing discussions, the plaintiff is held not entitled to the reliefs as prayed for. Therefore, the suit is dismissed. No order as to cost. Decree sheet be prepared accordingly. File be consigned to Record Room.

ANNOUNCED IN THE OPEN COURT, ON 21st day of April, 2012.

(PANKAJ GUPTA) ADJ(CENTRAL­07)/DELHI 21.04.2012 12/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr. 13/12 Sh. Parvesh Chawla Vs. Sh. Rakesh Chawla & Anr.