Delhi District Court
Ishwar Singh vs . Sardar Singh & Ors. on 25 October, 2018
Ishwar Singh vs. Sardar Singh & Ors.
IN THE COURT OF AJAY GULATI, ADDL. DISTRICT JUDGE02,
SOUTH DISTRICT, SAKET COURTS,
NEW DELHI
In the matter of
Suit No.208054/2016
Filing No. 2821/2000
CNR No. DLST010000052000
Ishwar Singh
S/o Late Puran
R/o House No.53D,
Village Ber Sarai, IIT Hauz Khas,
New Delhi
Through his Attorney
Smt. Mewa Devi
W/o Sh.Hukam Singh
R/o House No.53D,
Village Ber Sarai, IIT Hauz Khas,
New Delhi
................Plaintiff
Versus
1. Sardar Singh
S/o Late Shiv Lal
2. Bhani
W/o Late Nihal Singh
3. Ramesh
S/o Late Nihal Singh
4. Rakesh
S/o Late Nihal Singh
5. Nirmala
D/o Late Nihal Singh
6. Kamlesh
D/o Late Nihal Singh
7. Sunita
Suit No.208054/2016 Page 1 of 31
Ishwar Singh vs. Sardar Singh & Ors.
D/o Late Nihal Singh
8. Anita
D/o Late Nihal Singh
9. Hoshiar Singh
S/o Late Shiv Lal
All:
R/o House No.29,
Village Ber Sarai,
IIT Hauz Khas, New Delhi
10. Satyanarayan Dalal
S/o Late Risal Singh
11. Jai Bhagwan Dalal
S/o Late Risal Singh
12. Ram Chander Dala
S/o Late Risal Singh
All:
R/o Village Asoda
Jhajjhar, Haryana
13. Chander
W/o Sh. Jagbir Singh Malik
R/o Village Bhanswal,
District Sonepat, Haryana
14. Daya
W/o Sh Devi Singh Malik
R/o Village Bhanswal,
District Sonepat, Haryana
.............Defendants
Date of Institution : 20.06.2000
Date of reserving the judgment : 22.10.2018
Date of pronouncement : 25.10.2018
Decision : Dismissed
SUIT FOR PARTITION
Suit No.208054/2016 Page 2 of 31
Ishwar Singh vs. Sardar Singh & Ors.
JUDGMENT
1. Plaintiff has preferred the present suit for seeking partition of 3 properties which he claims to jointly own and possess along with the defendants. In order to appreciate the claim raised, it would be imperative to refer to family pedigree and the history behind the present litigation.
2. Plaintiff and defendants trace their roots to Bodhar who was their common ancestor. Bodhar had 3 sons, namely Ram Prashad, Puran and Shiv Lal. Ram Parshad separated from Puran and Shiv Lal. Resultantly, Puran and Shiv Lal remained joint ownersinpossession of the remaining property of Bodhar. Puran was issueless. Subsequently, he adopted Ishwar (who is actually Shiv Lal's real son). The following pictorial representation would be helpful BODHAR Ram Parshad Puran Shiv Lal (Partitioned his share in 1959) But as per the plaint, Puran and Shiv Lal remained joint after Ram Parshad separated and took his share Adopted Ishwar Singh (plaintiff) Defendants Suit No.208054/2016 Page 3 of 31 Ishwar Singh vs. Sardar Singh & Ors.
3. As per the averments of the plaint, some of the agricultural land owned jointly by Shiv Lal and Puran was acquired by the competent government and the share of Puran in the compensation awarded in respect of this acquisition was received by the Plaintiff (it is so claimed in the plaint). Plaintiff now seeks partition of remaining 3 joint properties i.e. property no. 53 D, property no. 53 and property no. 7. Out of these 3 properties, property no. 53 D is in the possession of plaintiff and his branch whereas property no. 7 is stated to be in joint possession of both the sides. Property no. 53 is stated to be in the possession of defendants. Crucial averment in the plaint is that there has been no partition of joint properties between the branches of Shiv Lal and Puran by metes and bounds and the properties mentioned above are being used by both the sides only as per their convenience.
4. It is important to highlight that the suit was filed by the plaintiff through his attorney Mewa Devi, who is his daughterinlaw. The plaintiff never appeared in the Court although as per the ld. Counsel for the defendants, he appeared before the mediation centre at Saket, in the year 2017, when efforts were made to mutually settle the dispute. Interestingly, plaintiff did not appear before the court citing old age and vision problem as the reason but in the cross examination of PW 1, the witness has deposed that Plaintiff was realizing rent not Suit No.208054/2016 Page 4 of 31 Ishwar Singh vs. Sardar Singh & Ors.
only from tenants in property no. 53 D but also in property no.
7. If the plaintiff was so physically fit and mentally alert to be able to manage his properties, he could have surely entered the witness box. There was a patent effort by the plaintiff to avoid entering into the deposition box.
5. On entering appearance, defendants (initially defendants no. 1 to 3 were arrayed) refuted the assertion of the plaintiff that properties no. 53 D, 53 and 7 were in joint ownership of the plaintiff and defendants. The assertion of partition in 1959 was admitted but it was added that at that time, oral partition took place between all the 3 brothers by 'metes and bounds' i.e. among Ram Parshad, Shiv Lal and Puran, and not as depicted by the plaintiff. Defendants clarified that there were 4 properties which were inherited from Bodhar i.e. property no. 52 B, 52 C, 53 D and property no. 7. Of these, properties no. 52 B and 52 C was with the defendants, property no. 53 D was with the plaintiff and property no. 7 had already been partitioned between the plaintiff and defendants. It was further contended that property no. 53 D had further been demolished and rebuilt after partition, and sons of the plaintiff have further partitioned this property interse. Property no. 53 D had been mutated in the name of plaintiff whereas property no. 52 B had been mutated in the name of defendants. It was also contended that partition was recorded in the MCD records.
Suit No.208054/2016 Page 5 of 31Ishwar Singh vs. Sardar Singh & Ors.
Defendants thus prayed for dismissal of the suit on the ground that plaintiff had no cause of action.
6. During the course of proceedings, vide order dated 20.01.2005, an application moved on behalf of the legal heirs of defendant No.2 Nihal Singh was allowed and they were brought on record. Subsequently, vide order dated 11.10.2017, application moved on behalf of the plaintiff for impleadment of legal heirs of the deceased daughter of Sh. Shiv Lal was allowed and sons and daughters of Smt. Kishan i.e. deceased daughter of Late Shiv Lal were brought on record as defendants. However, on 26.10.2017, Sh. Satnarayan Dalal i.e. defendant No.10 got his statement recorded to the effect that he does not wish to contest the present suit.
BRIEF FACTS:
PLAINT
7. As per the averments made in the plaint, grandfather of the plaintiff namely Bodhar was the owner of agricultural land alongwith other properties within and outside the 'lal dora' of Village Ber Sarai. However, a partition was effected between Ram Parshad and Puran & Shiv Lal, all of whom were the sons of Bodhar. Ram Parshad separated from Suit No.208054/2016 Page 6 of 31 Ishwar Singh vs. Sardar Singh & Ors.
Shiv Lal & Puran. It was averred that plaintiff was adopted by Puran who after his death, inherited ½ share in the joint properties of Shiv Lal and Puran and the remaining ½ portion came to the share of sons of Shiv Lal though there was no partition between Shiv Lal and Puran by way of metes and bounds. Accordingly, for convenience, plaintiff is in the occupation of property bearing No.53D alongwith a vacant plot of land and defendants are in occupation of property bearing No.53. The builtup property bearing No.7 is being used jointly by both of them.
8. It was the grievance of the plaintiff that he requested defendants for the partition of the 3 joint properties by metes and bounds. However, defendants avoided the same on one pretext or the other. Consequently, the present suit for partition was instituted.
WRITTEN STATEMENT On behalf of defendant No.1 to 3
9. Defendants, in their joint written statement, submitted that there are 4 properties i.e. Nos. 52B, 53C, 53D and 7, which were inherited by them i.e. plaintiff and defendants from their grandfather; that in the year 1959, by Suit No.208054/2016 Page 7 of 31 Ishwar Singh vs. Sardar Singh & Ors.
way of partition by metes and bounds, property No.53D was given to the plaintiff whereas properties No.52B and 53C were in their occupation & possession; that Property No.7 was also partitioned between them & they are in occupation and possession of their respective shares; that the property No.7 has been let out by them to various tenants after obtaining electricity and water connections in their respective shares; that the sons of the plaintiff have already partitioned the share of their father; that there is no property bearing No.53 but in fact there is property bearing No.53C; and that the vacant plot has also wrongly been mentioned as 53D whereas the same is 52B and is in the occupation of the defendants for which they have also obtained electricity & water connections. On merits, defendants denied the averments of the plaint by submitting that after oral partition in the year 1959, all three sons of Bodhar i.e. Ram Parshad, Shiv Lal and Puran started living separately; that after the death of his father Puran, plaintiff inherited only 1/3rd share alongwith 1/3rd share in the compensation amount in respect of the acquired land and Shiv Lal & Ram Parshad also received 1/3rd share each in the properties of Sh. Bodhar.
On behalf of defendant No.13
10. Defendant No.13 submitted that she being legal heir of Shiv Lal is entitled to her rightful share in the suit Suit No.208054/2016 Page 8 of 31 Ishwar Singh vs. Sardar Singh & Ors.
property and denied that ½ share was inherited by the sons of Shiv Lal.
11. No written statement was filed on behalf of any other defendant.
REPLICATION
12. Plaintiff denied the submissions made by defendants in their written statements and reiterated the averments made by him in his plaint. Plaintiff maintained that only 3 properties, as were mentioned in the plaint, were required to be partitioned by submitting that defendants have been describing the properties differently and since there was no partition amongst the parties by metes and bounds, there is no question of occupation & possession according to partition.
ISSUES
13. Vide order dated 06.03.2006, Hon'ble High Court of Delhi framed the following issues for proper adjudication of the present suit:
1. Whether the plaintiff is entitled to a preliminary decree of partition of properties bearing No.53D, No.52B, No.52C, and No.7 within the lal dora situated in the revenue estate of village Ber Sarai, IIT Hauz Khas, New Suit No.208054/2016 Page 9 of 31 Ishwar Singh vs. Sardar Singh & Ors.
Delhi?
2. Whether the plaintiff is entitled to a final decree of partition in respect of the aforesaid properties?
3. Relief EVIDENCE ADDUCED On behalf of plaintiff
14. Plaintiff in order to prove his case, examined his Attorney Holder Smt. Mewa Devi as PW1 and Sh. Lal Chand Pawar as PW2.
15. PW1 led her evidence by way of affidavit Ex.PW1/A. She relied on the following documents:
1. General Power of Attorney executed by Sh. Ishwar Singh in the favour of the witness as Ex.PW1/1;
2. Copy of the Ration Card as Ex.PW1/2;
3. Certificate issued by LAC therein showing the name of father of the plaintiff as Sh. Puran and that plaintiff has received the share of Sh. Puran in the compensation amount, as Ex.PW1/3;
4. Copy of the revenue record showing mutation in favour of Ishwar Singh in place of Sh. Puran as Ex.PW1/4; and
5. Site plan as Ex.PW1/5.Suit No.208054/2016 Page 10 of 31
Ishwar Singh vs. Sardar Singh & Ors.
16. The early part of her cross examination is not relevant for determination of the issues involved as it revolved around the execution of GPA in her favour on the basis of which she filed the present suit.
17. In response to questions regarding property no. 53 D, PW 1 replied that the same has been constructed upto the 4 th floor; that her father in law resides on the ground floor; that her brother in law Lal Chand resides on the first floor; that there are no shops on the ground floor except a hall; that she (PW1) resides on the 2nd floor; that there are 4 tenants on the 3 rd floor; and that her fatherinlaw realises rent from the tenants in all the four rooms on the 3rd floor whereas her brotherinlaw Lal Chand deals with eviction and induction of tenants. PW 1 recognised 10 photographs which were shown to her as being those of property no. 53 D. The photographs were exhibited as Ex. PW1/D1 to D10.
18. Witness denied that since property No. 53 D had been partitioned and 3rd floor has fallen to the share of Lal Chand, he was looking after induction and eviction of tenants. Relevant to highlight that Witness lacked coherence when she was asked question about the stages of construction of property no. 53 D. Initially, she seems to suggest that half of the property was built till 4 storeys at one point of time whereas the other half was already built but she could not tell as to when was the Suit No.208054/2016 Page 11 of 31 Ishwar Singh vs. Sardar Singh & Ors.
earlier half portion (till 4 storey) built. Subsequently, she corrected herself and stated that the house was constructed initially upto the 2nd storey. Again however, initially she deposed that half of the 4 storeys were built 2 - 3 years prior to the institution of the suit but then further corrected herself by saying that 4 storeys were completed 23 years prior to filing of suit in district court at Tis Hazari. The Witness clearly conveyed the impression of a person who is not staying in the property no. 53 D.
19. Witness claimed that property no. 53 D measured 125 sq yards out of which built up area was in 90 sq. yards. (However, no document evidencing this assertion of PW 1 was filed on record). She further deposed that no door opens to the vacant land appurtenant to the built up area of property no. 53 D since it was closed about 30 yrs back due to a dispute. However, she denied the suggestion that plaintiff had no right in the vacant area for which reason the door had been closed. She also denied that the vacant land appurtenant to property no. 53 D had a different number.
20. In regard to property no. 7, witness deposed that the area of the same is around 400 sq. yards and a 2 storeyed house was constructed thereon with 9 rooms each on both the floors; that entire area is let out to tenants; that 4 persons Suit No.208054/2016 Page 12 of 31 Ishwar Singh vs. Sardar Singh & Ors.
realise the rent from tenants i.e. plaintiff, Nihal Singh, Sardar Singh and Hoshiar Singh - defendant No.1, 2 & 3; that the rent was equally divided amongst these 4 persons but volunteered that plaintiff had ½ share in the rent; that rooms in property no. 7 were divided amongst 4 persons for the purpose of realising rent; and that this arrangement has been existing ever since she got married about 25 years back. PW 1 also deposed that separate electricity and water meters have been installed in the property which is in the name of plaintiff and defendants no. 1 to 3.
21. In regard to property no. 53, the witness submitted that the same is measuring 150 sq. yards; that it is a 2 storeyed house consisting of 6 rooms; and that it is in the possession of defendants who let out the rooms therein.
22. In regard to question about who resides in property no. 29, PW 1 replied that there is no house bearing no. 29 but then followed it up by stating that address of the defendants was shown in the plaint to be no. 29. Subsequently, she again stated that property no. 29 is ancestral property. Most relevant to highlight that further down in her cross examination, the witness deposed that her 2 sons reside in property no. 29/1; that her husband had ''created a partition for the sons'', and that 2 electricity meters were installed in Suit No.208054/2016 Page 13 of 31 Ishwar Singh vs. Sardar Singh & Ors.
property no. 29/1 i.e. in the name of Hukum Singh who is the husband of plaintiff, and her son Devender. She also stated that her husband had not purchased any property in village Ber Sarai.
23. PW2 Lal Chand led his evidence by way of affidavit Ex.PW2/A and relied on the documents already exhibited by PW1. In the opening of his cross examination, PW 2 stated that his brother Hukum Singh lives in property no. 29/1. This was in direct contradiction to the testimony of PW 1 (Hukum Singh's wife Mewa Devi) that they were staying on the 2nd floor of property no. 53 B.
24. PW2 further stated that property no. 29/1 was owned by their grandfather. He also deposed that he had no idea as to how much land was left behind by Puran Singh and Shiv Lal but on being put the same question again, witness submitted that the property left behind was comprised in many pieces which were identifiable by plot no. 53 D, 7, 29/, 29/2 and 29/3. This testimony is again in direct contradiction to the case set up in the plaint (and reiterated in the replication) where the only properties mentioned are 53, 53 D and 7. However, PW 2 does not even mention about property no. 53 but instead brings into picture property no. 29, possession of which by the plaintiff's family is completely unexplained. PW 2 also Suit No.208054/2016 Page 14 of 31 Ishwar Singh vs. Sardar Singh & Ors.
mentioned about the area of properties no. 7, 29 and 53 D as being 400 sq yards, 400 sq. yards and 450 sq. yards respectively (but there is no document or demarcation on record to prove the actual area of these properties).
25. In regard to property no. 53 D, PW 2 deposed that the constructed area is 120 sq yards which again is in contradiction to the testimony of PW 1 who deposed that constructed area of property no. 53 D was comprised in 90 sq. yards. In regard to the vacant portion of property no. 53 D, witness deposed that there is construction up to the first floor on some part of the vacant land. Most relevant aspect of the deposition of PW 2 is in regard to the 2 nd floor of property no. 53 D in which PW 1 claimed to be residing. As per PW 2, the 2 nd floor of # 53 D is occupied by tenants along with the 3 rd floor where also tenants are putting up. PW2 further deposed that he is engaged in induction & eviction of tenants and realising rent from them. The entire rent was statedly kept by the witness to himself. PW2 thus again contradicted the testimony of PW 1 who deposed that it was her fatherinlaw who used to realize rent from the tenants.
26. In regard to property no. 29, 29/1, 29/2 and 29/3, PW 2 deposed that these properties also have tenants. Hoshiar Singh (def. no.3) keeps rent of property no. 29, Hukam Singh Suit No.208054/2016 Page 15 of 31 Ishwar Singh vs. Sardar Singh & Ors.
keeps rent of 29/1, Ramesh s/o Nihal keeps the rent for 29/2 and property no. 29/3 is in possession of Sardar Singh (def. no.
1).
27. In regard to property no. 7, PW 2 deposed that there are 36 rooms in the property and rent for 9 rooms each is realised by the plaintiff and defendants no. 1 to 3 who exercise all rights in relation to these rooms for induction and eviction of tenants.
28. Another very relevant aspect of the testimony of PW 2 was in relation to property no. 53. Plaintiff has sought partition of 3 properties i.e. 53 D, 53 and 7. However, in response to a question whether there is any plot no. 53, the witness responded by saying that there is only property no. 53 D and there is no separate property no. 53. This severely dents the claim of the plaintiff since his own son appearing as PW 2 deposed to the effect that there is no property no. 53. The testimony of PW 2 in regard to property no. 53 D is incoherent and contradictory. At one stage he says that property no. 53 D has been further subdivided but immediately thereafter, he contradicts himself by saying that property no. 53 D is still one plot.
29. PW2 also deposed that separate electricity meters, Suit No.208054/2016 Page 16 of 31 Ishwar Singh vs. Sardar Singh & Ors.
about 7 - 8, were installed in property no. 7 which are in the name of Plaintiff and the defendants no. 1 to 3. Witness also asserted that plaintiff and defendants have a common kitchen though they are living separately.
On behalf of the defendants
30. To controvert the claim of the plaintiff, defendants examined Sardar Singh as DW1 and Hoshiyar Singh as DW2.
31. DW1 Sardar Singh led his evidence by way of affidavit Ex.DW1/A and relied on the following documents:
1. Water bills in the name of Nihal Singh in respect of property No.52B as Ex.DW1/1 to Ex.DW1/3;
2. Water bills in the name of Hoshiyar Singh in respect of property No.7 as Ex.DW1/4 & Ex.DW1/5;
3. Water bill in the name of Sardar Singh in respect of property No.53C as Ex.DW1/6;
4. Water bill dated 05.01.1987 in the name of Sardar Singh in respect property No.7, Ber Sarai as Ex.DW1/7;
5. Receipt dated 13.06.1987 issued by Delhi Jal Board in respect of property No.7, Ber Sarai in the name of Sardar Singh as Ex.DW1/8;
6. Electricity bills in respect of property No.7 in respect of two electricity meters payable by 19.06.1990 to Suit No.208054/2016 Page 17 of 31 Ishwar Singh vs. Sardar Singh & Ors.
22.01.1992 installed in the name of Nihal Singh as registered consumer as Ex.DW1/9 & Ex.DW1/10;
7. Electricity bill issued in the name of Hoshiyar Singh in respect of property No.48 payable by 22.01.1993 as Ex.DW1/11;
8. Electricity bill issued in the name of Daya Ram in respect of property No.31 payable by 20.04.2001 as Ex.DW1/12;
9. Report dated 22.01.1987 of Delhi Electricity undertaking in respect of electricity meter installed at 31, Ber Sarai as Ex.DW1/13; and
10. Photocopy of the application dated 27.05.1986 filed before the Chief Engineer, Municipal Corporation of Delhi for installation of an additional water connection at property No.7, Ber Sarai in the name of Sardar Singh as MarkA. (Ex.DW1/1 to Ex.DW1/14 were objected to by the Learned counsel for the plaintiff on the ground of mode of proof.)
32. Cross examination of DW1 was conducted in questionanswer form. In his cross examination, he submitted that Shiv Lal was having 50 sq. yds to 60 sq. yds of land within the 'lal dora' in his possession; Puran was having 100 sq. yds of land in his possession and Ram Parshad was having 55 sq. yds Suit No.208054/2016 Page 18 of 31 Ishwar Singh vs. Sardar Singh & Ors.
of land in his possession; that the number of the house in possession of Ram Prashad was within the house No.52B & 53 C; that approximately 125 sq. yds was the area of the house in possession of the plaintiff i.e. No.53D, however again said that he did not measure the same; that approximately 100 sq. yds to 125 sq. yds was the area of the house in his possession i.e. No.53C; that 70 sq. yds to 80 sq. yds was the area of house in possession of Ram Prasad; that in the year 2008, property No.52B & 53D were being used for residence, property No.53C was used as an ancestral residence, and property No.7 was rented out; that he could not tell the length and breadth of property No.7 by voluntarily adding that its area was 350 sq. yds which was in occupation of Ram Prasad, Shiv Lal and Puran. With regard to the questions as to how he came in occupation of the properties No.29, 29/2, 29A, 29B, and 53C which according to him was in occupation of Ram Prasad, as also the quantum of the extra/additional land, he submitted that after 1959 when partition had taken place, his father asked for extra land from Ram Prasad since he was having 3 sons and Ram Prasad was having 2 sons. Even though no measurement of extra land had been done at that time but the same was measured by putting a piece of rope and the same was about 90 sq. yds.
33. DW1 further submitted that before asking for Suit No.208054/2016 Page 19 of 31 Ishwar Singh vs. Sardar Singh & Ors.
extra land, Ram Prasad was having approximately 350 sq. yards of land and his father was having 270 sq. yds; and that since his advocate did not ask, he did not tell him regarding asking of extra land by Shiv Lal from Ram Prasad. He admitted that there was built up property of 300 sq. yds approximately in the name of Sardar Singh, Khushal Singh and Nihal Singh outside 'lal dora'; that plaintiff & defendants were entitled to 1/3rd each share in their grandfather's property; that plaintiff got his full share but could not recollect the extent of his share; and that plaintiff also had 1/3rd share in the land of Village Ber Sarai falling in 'lal dora'. He further submitted that total area of 325 sq. yds in 'lal dora' was partitioned, out of which 200 sq. yds came to their share and remaining 125 sq. yds came to the share of plaintiff; that Ram Prasad had 1/3rd share in the 'lal dora' property; that he did not know the measurement of either the house of Ram Prasad or the house of the plaintiff; and that the compensation in respect of agricultural land was received as per share in the agricultural land. He further submitted that plaintiff was in possession of 225 sq. yds, defendants were in possession of 448 sq. yds and Ram Prasad was in possession of 200 sq. yds of land; that in the year 1959, out of built up area of 275 sq. yds, plaintiff was in possession of 125 sq. yds, defendants were in possession of 100 sq. yds and Ram Prasad was in possession of 40 sq. yds of land; that in 1959, plaintiff was in possession of 100 sq. yds of vacant land & defendants and Ram Prasad each Suit No.208054/2016 Page 20 of 31 Ishwar Singh vs. Sardar Singh & Ors.
were in possession of 200 sq. yds of land; that he could not tell the exact measurement of 'lal dora' land in Village Ber Sarai; and that he could not tell how much of land by measurement was in his possession or in the possession of plaintiff or in the possession of Ram Prasad.
He denied that he was comparatively having more land than the plaintiff and for that reason he was not disclosing measurement of land; and that no partition had ever taken place. He submitted that he did not have documentary evidence to prove the partition of suit property and 'lal dora' property by voluntarily adding that partition was done orally by their ancestors.
34. DW2 Hoshiar Singh tendered his affidavit Ex.DW2/A in his examination in chief and relied on the documents already exhibited by DW1. During his cross examination, DW2 admitted that Shiv Lal and Puran were entitled to equal share towards the compensation against the acquired land and towards the land situated within 'lal dora'. He submitted that Shiv Lal had plot No.53C (around 130/135 sq. yds) and 52B (around 55 sq. yds) under his possession and apart from these, plot No.7 (around 400 sq. yds) which is out of 'lal dora', was also in their possession. DW2 voluntarily submitted that possession of this portion is of four persons i.e. 3 sons of Shiv Lal and 1 son of Puran; that outside of Village, 3 Suit No.208054/2016 Page 21 of 31 Ishwar Singh vs. Sardar Singh & Ors.
plots measuring 100 sq. yds were also in possession of sons of Shiv Lal i.e. Hoshiar Singh, Nihal Singh and Sardar Singh; and that Puran had plot No.53D (around 140 sq. yards) alongwith 100 sq. yds of land in plot No.7 and 100 sq. yds of plot No.29/1. He denied that in the entire abovementioned property, plaintiff had ½ undivided share; that plot No.53C was measuring 153 sq. yds & plot No.53D was measuring 60 sq. yds; that 60 sq. yds of plot No.53D was a vacant land & 130 sq. yds was constructed one; that total land (within and outside lal dora) in possession of Shiv Lal/his sons was 743 sq. yards. He further submitted that he had not measured the area of the plots and what he was saying about the measurement was only an idea; that oral partition took place in the year 1959; that he was not present when partition took place; that he did not know whether the land was measured or not; he did not know how much land was possessed by Bodhar and how the same was divided; that he could not tell what were the specific portions and locations allocated to the share of each of the legal heirs of Bodhar; that his father told him about oral partition; and that he never measured the properties in his occupation or in the occupation of others.
He denied that area in their joint occupation was much more than the area possessed by plaintiff; and that they were in occupation of 525 sq. yds of land & plaintiff was in occupation of 225 sq. yds of land. He admitted that Ram Prasad had taken Suit No.208054/2016 Page 22 of 31 Ishwar Singh vs. Sardar Singh & Ors.
his separate share after the death of Bhodhar by voluntarily adding that Shiv Lal and Ram Prasad had entered into a settlement whereby Shiv Lal took certain land against money from Ram Prasad without any documentation but he did not know the quantum of land taken.
He denied the suggestions that no oral settlement had taken place; and that suit properties are still joint and unpartitioned.
FINDINGS
35. I have heard the arguments advanced by the Learned counsel for the parties and have carefully gone through the record and the evidence adduced by the parties.
36. The issuewise findings are as under:
ISSUE NO.1 Whether the plaintiff is entitled to a preliminary decree of partition of properties bearing No.53D, No.52B, No.52C, and No.7 within the lal dora situated in the revenue estate of village Ber Sarai, IIT Hauz Khas, New Delhi?
37. Plaintiff has sought partition of 3 joint properties -
Suit No.208054/2016 Page 23 of 31Ishwar Singh vs. Sardar Singh & Ors.
property no. 53D, 53 and 7. In the written statement however, defendants contended that there were infact 4 properties which fell to the share of Puran and Shiv Lal at the time of oral partition in 1959 i.e. property no. 52 B, 53 C, 53 D and property no. 7. This assertion of the defendants was denied in the replication but yet, the issue was framed in respect of right of the plaintiff to claim partition of all the four properties as contended by the defendants.
38. Before discussing the evidence of the witnesses, it is important to again highlight that plaintiff himself never appeared in the Court but chose to prosecute the suit through his attorney. Infact, he chose his daughterinlaw as the attorney instead of his son. The opening lines of the cross examination of PW 1 makes it clear that the evidence of the witness is hearsay and not based on personal knowledge. It was contended in the plaint that plaintiff is old and has sight problem. However, no such document was placed on record which could prima facie indicate that plaintiff was indeed incapable of entering into the witness box. There appears to be a deliberate attempt to evade cross examination by the plaintiff. Apart from this, the plaint suffers from vagueness and ambiguity. The claim is for partition of 3 properties but neither in the plaint nor in the replication or even in the affidavit of PW1 is the total area of these properties mentioned. Not only this, there is no mention of the area actually Suit No.208054/2016 Page 24 of 31 Ishwar Singh vs. Sardar Singh & Ors.
in the possession of the plaintiff. Still further and most surprisingly, there is no mention of the total area which the plaintiff claims is his legitimate share from amongst these 3 properties. There is no document on record to show the actual demarcation of these 3 properties which could illustrate the total area of the 3 properties. At the stage of final submissions, the respective Counsel were left to rely on the cross examination of PW's and DW's to decipher the area actually in possession of each of the parties. However, in the absence of any document/s to confirm the area possessed by the parties (coupled with lack of necessary pleadings in the plaint), the oral depositions of the witnesses in this regard are hardly reliable piece of evidence to arrive at a finding in regard to who is in possession of how much area?
39. One of the assertions of the defendants in the written statement was that the property which fell to the share of Puran i.e. property no. 53 D had further been partitioned between the sons of Plaintiff which shows that property no. 53D was given to Puran by way of partition which had been further utilised by the branch of Puran (i.e. plaintiff and his family), leaving no scope for partition of the said property. The assertion of the defendants that this property had been mutated in the name of Plaintiff was not denied in the replication; instead it was contended that mutation confers no ownership rights.
Suit No.208054/2016 Page 25 of 31Ishwar Singh vs. Sardar Singh & Ors.
40. Another notable aspect in the cross examination of PW 1 is with regard property no. 29. Significantly, PW 1 admitted in her cross examination that property no. 29/1 has been further partitioned between her sons. This property (property no. 29) was mentioned as the address of original defendants Sardar Singh, Hoshiar Singh and Nihal Singh in the memo of suit. There is no explanation forthcoming as to how did the plaintiff's son and daughterin law come in to the possession of property no. 29/1. Not only this, there is no explanation as to why partition of this property was not sought by the plaintiff. PW 1 admitted in her cross examination that no property had been purchased by the plaintiff. If no property was purchased by the plaintiff and property no. 29 was shown to be the address of defendants initially, in what circumstances was the property no. 29 divided into 4 parts? Infact, this property was in the possession of defendant no. 1 to 3 (initially), as admitted by PW 1. However, the aspect of division of property no. 29 has not been touched upon either in the plaint, written statement or the replication.
41. In response to a question regarding construction and occupation of property No.53D, PW 1 deposed that she was living on the 2nd floor of property no. 53D. However, in stark contradiction to the testimony, her brother in law who appeared as PW 2, deposed that there were tenants on the 2 nd Suit No.208054/2016 Page 26 of 31 Ishwar Singh vs. Sardar Singh & Ors.
and 3rd floor of the property no. 53 D from whom he was realising rent exclusively. In regard to property no. 7, PW 1 deposed that 9 rooms each on 2 floors of which are being managed by the plaintiff and defendants no. 1 to 3 for the purpose of induction of tenants with separate water and electricity meters in the names of plaintiff and defendants no 1 to 3 in property no. 7. PW 2 on the other hand deposed that there are 36 rooms in property No.7. The assertion of the plaintiff that properties no. 53, 53 D and 7 were being used as per mutual convenience is not corroborated by ground reality. The plaintiff has not been able to come up with any explanation as to why rooms in property no. 7 were divided into 4 parts (of 9 rooms each) for the purpose of being let out? If the assertion of PW 2 is to be believed that the families of Puran Chand and Shiv Lal had a common kitchen, where was the need for each of them to divide the rent being realized from tenants of property no. 7 and why was PW2 Lal Chand exclusively realising rent from the 2nd and 3rd floor of property no. 53D? The rent could have been realized by one of them and then divided amongst the plaintiff and defendant no. 1 to 3. Why were separate water and electricity meters installed in the individual names of plaintiff and defendants no. 1 to 3 in property no. 7? Even property no. 29 which was shown to be the address of the defendants in the memo of the suit, has come out to have been partitioned into 4 parts with one part being in possession of the Suit No.208054/2016 Page 27 of 31 Ishwar Singh vs. Sardar Singh & Ors.
husband of PW 1 i.e. 29/1 and which has even been partitioned between the husband of PW 1 and his sons. Contradictions in the testimonies of PW 1 and PW 2 have already been highlighted at the time when their respective evidence was being discussed. PW 2 (second son of plaintiff) is not only residing in property no. 53 D but also exclusively realising rent from the 2nd and 3rd floor of property no. 53 D. The other son of the plaintiff i.e. Hukum Singh who is husband of PW 1, is residing in property no 29/1 possession of which is totally unexplained by the plaintiffs. Further, PW 2 himself dented the case of the plaintiffs when he submitted that there is no property no. 53, partition of which has been sought in the plaint.
42. There is no averment in the plaint with regard to the actual area which was owned by Bodhar, how much land was taken by Ram Parshad in 1959 and how much was left in the joint possession of Puran and Shiv Lal. Even the affidavits of evidence of PW1 and PW2 was conspicuously silent on this crucial aspect. The least that plaintiff could have done was to move an application before this court to get the respective areas in possession of the plaintiff and defendants no 1 to 3 demarcated so that atleast it could be clear as to how much extra land was allegedly in possession of the defendants no. 1 to
3. Suit No.208054/2016 Page 28 of 31 Ishwar Singh vs. Sardar Singh & Ors.
43. The cross examination of DW 1 and DW2 also reveals that incoherent suggestions were put to the witnesses with regard to the area in possession of the plaintiffs and the defendants. At one point, DW1 is suggested that area in possession of the defendants is 448 sq. yards and the area in possession of the plaintiff is 225 sq. yards whereas subsequently, it is put to the DW2 that area in possession of plaintiff is 225 sq. yards and that in the possession of defendants no. 1 to 3 is 525 sq. yards.
44. The pleadings of the plaint are materially deficient. Plaintiff was required to clearly plead with regard to the total area of Bodhar, land partitioned away by Ram Parshad and the remainder of the land in joint possession of the Shiv Lal and Puran. Even the prayer clause of the suit is silent with regard to the actual area claimed by the plaintiff. The cumulative effect of the testimony of PW 1 and PW 2 as also the cross examination of DW 1 and DW2 is that partition between the families of Shiv Lal and Puran had already taken place. There is no other way that the possession of plaintiff's son Hukum Singh over property no. 29/1, division of property no. 29 itself, possession of plaintiff over 9 rooms in property no. 7 with exclusive water & electricity meters, and exclusive possession over property no. 53 D can be explained. The admissions of DW 1 and DW2 in regard to extra land being in their possession is not sufficient to conclude that no partition Suit No.208054/2016 Page 29 of 31 Ishwar Singh vs. Sardar Singh & Ors.
had taken place between families of Puran Chand and Shiv Lal, especially since there is no pleading with regard to the actual area of land which is sought to be partitioned.
45. The only argument raised on behalf of the plaintiff was that the defendants in their written statement have contended that partition took place between Shiv Lal and Puran by metes and bounds whereas cross examination of DW's reveals otherwise i.e. defendant no. 1 to 3 are in possession of greater area than the plaintiff. Even assuming the best in favour of the plaintiff i.e. there was no partition by metes and bounds, the evidence led on behalf of the plaintiff alone is sufficient to conclude that partition between the families of Shiv Lal and Puran was effected way back. It seems that the only reason for filing the suit was to coerce and coax the defendants into parting with more land in favour of the plaintiff. The plaintiff could have summoned Ram Parshad in the witness box to negative the assertion of the defendants no. 1 to 3 that oral partition between Shiv Lal and Puran Chand had been effected in 1959 alongwith Ram Parshad but he chose not to do so. Ram Parshad could have been the best witness for the plaintiff to prove issue no. 1 in his favor but he conveniently chose to bring in his attorney as PW 1 whose evidence is at best hearsay, and his son as PW 2 whose testimony is in direct contradiction to not only the pleadings but also the testimony of plaintiff's Suit No.208054/2016 Page 30 of 31 Ishwar Singh vs. Sardar Singh & Ors.
attorney. Consequently, I see no merit in the claim of the plaintiff and issue No.1 is decided against the plaintiff.
ISSUE NO.2 Whether the plaintiff is entitled to a final decree of partition in respect of the aforesaid properties?
46. In view of the findings given under issue No.1, no finding is required to be given on this issue.
RELIEF
47. In view of the above discussion, the suit of the plaintiff is dismissed. No orders as to cost. Decree sheet be prepared accordingly. Thereafter, file be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN (AJAY GULATI)
COURT ON 25.10.2018 ADDL. DISTRICT JUDGE02
SOUTH, SAKET COURTS,
NEW DELHI
Suit No.208054/2016 Page 31 of 31