Delhi District Court
Sh Prem Parkash vs Sh Bhupender Kumar And Anr on 31 July, 2024
IN THE COURT OF DISTRICT JUDGE -04,
(PRESIDED OVER BY: ANIL CHANDHEL)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No. DLWT01-010430-2021
Civil DJ No. 18/2022
PREM PARKASH
S/o late Sh. Hukam Chand
R/o Flat No. 61-C, First Floor,
DDA Janta Flat, Pandav Nagar,
Near Shadipur Depot, New Delhi-110008. ...Plaintiff.
Versus
1. BHUPENDER KUMAR
S/o late Sh. Hukam Chand
R/o Flat No. 39-A, Ground Floor,
DDA Janta Flat, Pandav Nagar,
Near Shadipur Depot, New Delhi-110008.
2. LALITA BANSAL
W/o Sh. Raj Bansal
R/o Flat No. 39-A, Ground Floor,
DDA Janta Flat, Pandav Nagar,
Near Shadipur Depot, New Delhi-110008.
Also at:-
H. No. 124, Gali No.3.
Sant Nagar, Burari, Delhi-110084. ...Defendants
SUIT FOR PARTITON AND PERPETUAL
INJUNCTION
ANIL
CHANDHEL
Prem Parkash vs. Bhupender Kumar & Anr. Page No. 1 of 14
Digitally signed by
Civil DJ No. 18/2022 ANIL CHANDHEL
Date: 2024.07.31
17:11:08 +0530
DATE OF INSTITUTION : 05.01.2022
JUDGMENT RESERVED ON : 30.07.2024
JUDGMENT PRONOUNCED ON : 31.07.2024
Ld. Counsel for the Plaintiff :Mr. Sunil Gupta, Adv.
Ld. Counsel for the Defendants :Mr. Ajay Kumar, Adv.
JUDGMENT
1. The Plaintiff has filed the present suit for partition and perpetual injunction.
2. The facts, as set out in the plaint, are summed up in brief hereinbelow:
i. Late Sh. Hukam Chand, S/o of late Sh. Ram Dayal, father of the Plaintiff and the Defendants was the owner of the suit property bearing, i.e., Flat No. 39- A, Ground Floor, DDA Janta Flats, Pandav Nagar, Near Shadhipur Depot, New Delhi-110008. The aforesaid property is built on a piece of land measuring about 50 sq. yards and the same was alloted to late Sh. Hukam Chand by the DDA vide registered Conveyance Deed dated 11.01.2001.
Digitally signed by ANIL CHANDHEL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 2 of 14 ANIL CHANDHEL Date:
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ii. Late Sh. Hukam Chand had died on 13.01.2010
intestate having behind him late Smt. Balwanti Devi as his wife, the Plaintiff and the Defendant No.1 as his sons and the Defendant No.2 as his daughter. The aforesaid legal heirs, upon death of late Sh. Hukam Chand had become the owners of ¼ share each out of the aforesaid property.
iii. Late Balwanti Devi, the mother of the Plaintiff and the Defendants was also the owner of the following properties:
i. Flat No. 61-C, First Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 30 sq. yards alloted to her by DDA vide registered Conveyance Deed dated 25.02.2010.
ii. Flat No. 48-B, Ground Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 55 sq. yards alloted to her by DDA.
iii. Flat No. F-473, situated at Madipur, J. J.
Colony, Delhi-110063, built on an area of measuring about 20 sq. yards.
Digitally
signed by
ANIL
ANIL CHANDHEL
CHANDHEL Date:
Prem Parkash vs. Bhupender Kumar & Anr. Page No. 3 of 14 2024.07.31
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iv. Late Balwanti Devi, the mother of the Plaintiff and
the Defendants had also died intestate on 11.09.2016 and as such after her death, the Plaintiff and the Defendants had become the owners of 1/3rd undivided share of the aforesaid properties left by their mother and father.
v. Before 06.11.2021, the Plaintiff along with his wife and his younger brother, the Defendant No.1 were residing in Flat No. 39-A and Flat No. 48-B situated on the ground floor, DDA Janta Flat, Pandav Nagar, New Shadipur Depot, New Delhi-110008 which flats are situated adjacent to each other and the Plaintiff was also in exclusive possession of Flat No. 61-C, First Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 and property no. F-473 situated at Madipur, J. J. Colony, Delhi- 110063.
vi. On 06.11.2021, the Defendants started raising quarrel with the Plaintiff and his wife Smt. Preeti and had also beaten the Plaintiff and his wife and they had also turned them out from the aforesaid flats, i.e., Flat No. 39-A and Flat No. 48-B, situated on the Ground Floor, Dda Janta Flat, Pandav Nagar near Sahdipur Depot, New Delhi-110008 and did not allow the Plaintiff and his wife to enter into the said flats despite repeated requests made by them to the Defendant. However, at present the Plaintiff along with his wife has been residing in Flat No.61-C, First ANIL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 4 of 14 CHANDHEL Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:11:28 +0530 Floor, DDA Janta Flat, Pandav Nagar, New Shadipur Depot, New Delhi-110008.
vii. The Plaintiff has also lodged several complaints against the Defendants with Police Station, Ranjit Nagar, New Delhi and other concerned police department to the above effect. However, till date the police officials have not taken any action against the Defendants.
viii. The Plaintiff and the Defendants are owners of the aforementioned four suit properties in their 1/3rd share, however the Defendant has not agreed to the request of the partition and are trying to sell/dispose off the same.
ix. Accordingly, the Plaintiff has filed the suit for partition of the aforementioned properties along with consequential prayers of permanent injunction.
3. The Defendants were served with summons of the suit on 15.04.2022. The Defendant No.1 has accepted the summons on behalf of both the Defendants. The Defendants did not enter appearance and did not file any written statement. The Defendants were proceeded against ex-parte on 05.07.2022 and the matter was listed for the Plaintiff's evidence.
4. The Plaintiff has led his evidence and has examined himself as the sole witness in the matter. The PW-1 has exhibited and relied upon the following documents in his examination-in-
ANIL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 5 of 14 CHANDHEL Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:11:33 +0530 chief:
i. Exhibit PW-1/1 (OSR): Photocopy of conveyance deed dated 11.01.2021.
ii. Exhibit PW-1/2: Internet/online copy of death certificate of Sh. Hukam Chand.
iii. Exhibit PW-1/3:Internet/online copy of death certificate of Smt. Balwanti Devi. iv. Exhibit PW-1/4 (OSR): Copy of Conveyance Deed dated 25.02.2010.
v. Exhibit PW-1/5 (colly) (OSR): Photocopies of the title documents of property No. F-473, Madipur J. J. Colony.
vi. Exhibit PW-1/6 (OSR): Copy of electricity bill. vii. Exhibit PW-1/7 (OSR): Copy of conveyance deed dated 15.12.2014.
viii. Exhibit PW-1/8 to Exhibit PW-1/14: Seven photographs of the suit property. ix. Exhibit PW-1/15: Online police complaint/FIR No. 415 dated 07.11.2021.
x. Exhibit PW-1/16 (OSR): Copy of complaint dated 15.11.2021.
xi. Exhibit PW-1/17 to Exhibit PW-1/19: Three site plans of the suit property/ None appeared on behalf of the Defendants to cross-examine the PW-1 and the right of the Defendants to cross-examine ANIL CHANDHEL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 6 of 14 Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:11:40 +0530 the PW-1 was closed. Since no written statement was filed on behalf of the Defendants, the matter was posted for final arguments, after the Plaintiff's evidence.
5. On 01.12.2023, the matter was listed for final arguments, however the Defendants entered appearance, alongwith the Counsel, who filed his vakalatnama. Subsequently the Counsels for the parties have addressed their arguments. Ld. Counsel for the Plaintiff has submitted that the PW-1 has proved the contentions of the plaint in his evidence and his evidence has remained unrebutted and therefore, the Plaintiff is entitled to a decree for the prayers of the present suit. Ld. Counsel for the Defendants has submitted that the suit is barred by limitation as the same has been filed much after the death of father and mother of the parties.
6. I have heard the Ld. Counsels for the parties. I have perused the record. The core issue to be decided is whether the Plaintiff is entitled to preliminary decree of partition with regard to the suit properties. However before deciding the same, it has to be decided whether the present suit is filed within the period of limitation.
7. The Plaintiff and the Defendants are children of Late Hukam Chand and Late Balwanti Devi. It is stated in the plaint that the Late Hukam Chand was the owner of Flat No. 39-A, Ground Floor, DDA Janta Flats, Pandav Nagar, New Delhi. It is stated that late Hukam Chand passed away intestate on Digitally signed by Prem Parkash vs. Bhupender Kumar & Anr. Page No. 7 of 14 ANIL ANIL CHANDHEL CHANDHEL Date:
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13.01.2010, leaving behind the Plaintiff and Defendants, alongwith their mother, as the surviving legal heirs, who became the co-owners of the aforesaid property in equal share.
8. It is stated that Late Balwanti Devi was owner of three properties:
i. Flat No. 61-C, First Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 30 sq. yards alloted to her by DDA vide registered Conveyance Deed dated 25.02.2010.
ii. Flat No. 48-B, Ground Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 55 sq. yards alloted to her by DDA.
iii. Flat No. F-473, situated at Madipur, J. J.
Colony, Delhi-110063, built on an area of measuring about 20 sq. yards.
9. It is stated that the Late Balwanti Devi also died intestate on 11.09.2016 and the Plaintiff and the Defendants became owners of the aforementioned four properties in equal share, i.e., 1/3rd share. The Plaintiff is stated to be in possession of ANIL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 8 of 14 CHANDHEL Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:11:51 +0530 property No. Flat No. 61-C, First Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008. It is stated that on 06.11.2021, the Defendants initiated a dispute and thereafter the Plaintiff has also filed a police complaint and the aforesaid dispute eventually led to filing of the present suit. It has been held by the Hon'ble High Court of Delhi in "Niranjan Kumar Bansal vs. Lajpat Rai Jagga: 2024/DHC/2387", that right to seek partition is a continuing cause of action. The only limitation for seeking partition is provided under Article 110 of the Limitation Act, 1963, which is 12 years from the date of the knowledge of the person excluded from a joint family property. However, no case of exclusion has either pleaded or proven against the Plaintiff. Moreover, the present suit has been filed within a period of 12 years from the date of the death of Late father as well as of the Late mother of the parties. Therefore, the present suit has been filed within the period of limitation.
10. The PW-1 has proved on record the death certificate of the mother and father of the parties as Exhibit PW-1/2 and Exhibit PW-1/3. The PW-1 has further proved the ownership of the late father and late mother of the parties, with regard to the suit properties, in the following manner:
i. The first property is Flat No. 39-A, Ground Floor, DDA Janta Flats, Pandav Nagar, Near Shadhipur Depot, New Delhi- 110008. The aforesaid property was alloted and owned by late Sh. Hukam Chand, in terms of registered Conveyance ANIL CHANDHEL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 9 of 14 Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:11:57 +0530 Deed dated 11.01.2001, issued by the Delhi Development Authority, which has been proven by the PW-1 as Exhibit PW-1/1 (OSR). The PW-1 has proved that the late father was the owner of the aforesaid property and after his death, the mother and the children became owners. After the death of the mother, the Plaintiff and the Defendant became co-owners of the same in 1/3rd share. The contentions of the plaint have remained unrebutted. The PW-1 has neither been cross- examined nor any evidence in affirmative was led by the Defendants and accordingly, the PW-1 has proven the contentions of the plaint and therefore, the Plaintiff is entitled to a preliminary decree of partition with regard to the afore- mentioned property.
ii. The second property is Flat No. 61-C, First Floor, DDA Janta Flats, Pandav Nagar, Near Shadhipur Depot, New Delhi- 110008. The aforesaid property was alloted and owned by late Balwanti Devi, in terms of registered Conveyance Deed dated 25.02.2010, issued by the Delhi Development Authority, which has been proven by the PW-1 as Exhibit PW-1/4 (OSR). The PW-1 has proved that the late mother was the owner of the aforesaid property and after her death, the Plaintiff and the Defendants became co-owners of the same in 1/3rd share. The contentions of the plaint have remained unrebutted. The PW-1 has neither been cross-examined nor any evidence in affirmative was led by the Defendants and accordingly, the PW-1 has proven the contentions of the plaint and therefore, the Plaintiff is entitled to a preliminary decree ANIL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 10 of 14 CHANDHEL Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:12:03 +0530 of partition with regard to the afore-mentioned property.
iii. The third property is Flat No. 48-B, Ground Floor, DDA Janta Flats, Pandav Nagar, Near Shadhipur Depot, New Delhi- 110008. The aforesaid property was alloted and owned by late Balwanti Devi, in terms of registered Conveyance Deed dated 15.12.2014, issued by the Delhi Development Authority, which has been proven by the PW-1 as Exhibit PW-1/7 (OSR). The PW-1 has proved that the late mother was the owner of the aforesaid property and after her death, the Plaintiff and the Defendants became co-owners of the same in 1/3rd share. The contentions of the plaint have remained unrebutted. The PW-1 has neither been cross-examined nor any evidence in affirmative was led by the Defendants and accordingly, the PW-1 has proven the contentions of the plaint and therefore, the Plaintiff is entitled to a preliminary decree of partition with regard to the afore-mentioned property. iv. The fourth property is Flat No. F-473, Madipur, J. J. Colony, Delhi-110063 admeasuring 20 sq. yards. The aforesaid property was acquired by late Balwanti Devi, in terms of Agreement to Sell dated 22.06.1977, GPA dated 22.06.1977 and Receipt dated 22.06.1977. The possession of the aforesaid property was also acquired by late Balwanti Devi, on 22.06.1977. The PW-1 has proved the Agreement to Sell, General Power of Attorney and Receipt (all dated 22.06.1977) as Exhibit PW-1/5 (OSR) (colly). The aforesaid documents are unregistered and therefore do not convey the title/ownership in the aforesaid immovable property. However, the original purchaser, i.e., late Balwanti Devi ANIL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 11 of 14 CHANDHEL Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:12:08 +0530 definitely has possessory rights in the property no. F-473, Madipur, J. J. Colony, Delhi-110063 admeasuring 20 sq. yards, in terms of the Exhibit PW-1/5 (colly) (OSR) as well as in terms of her possession of the property. Thus, the PW-1 has proved that the late mother was the owners of certain rights , i.e., possessory rights in the aforesaid property and after her death, the Plaintiff and the Defendants became co-owners of the same in 1/3rd share. The contentions of the plaint have remained unrebutted. The PW-1 has neither been cross- examined nor any evidence in affirmative was led by the Defendants. It has been held by the Hon'ble High Court of Delhi, in, "Surjit Singh vs. Ekta Gulati (16.08.2012): RFA 166/2012: Manu/DE/4037/2012", that even the possessory rights, in the immovable properties, inherited by the parties from a common ancestor can become subject matter of partition. Therefore, the Plaintiff is entitled to preliminary decree of partition with regard to the rights of late Balwanti Devi in the property no. F-473, Madipur, J. J. Colony, Delhi- 110063 admeasuring 20 sq. yards, in 1/3rd share.
Therefore, the Plaintiff has proved his entitlement to seek a preliminary decree of partition with regard to the suit properties.
11. The Plaintiff has also filed an application under Order XXXIX Rule 1 and 2 of CPC, seeking restraint against the Defendants and has also sought permanent injunction against the Defendant from creating any third party rights in ANIL CHANDHEL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 12 of 14 Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date: 2024.07.31 17:12:16 +0530 the suit properties. Since the Plaintiff has made out his entitlement for the partition of the suit properties, therefore, the suit properties are required to preserved for the proceedings pertaining to the final decree. Accordingly, the application under Order XXXIX Rule 1 and 2 as well as the prayer for permanent injunction deserves to be allowed and is hereby allowed.
12. Accordingly, a preliminary decree of partition is passed with regard to the following properties:
i. Flat No. 39-A, Ground Floor, DDA Janta Flats, Pandav Nagar, Near Shadhipur Depot, New Delhi-110008;
ii. Flat No. 61-C, First Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 30 sq. yards alloted to her by DDA vide registered Conveyance Deed dated 25.02.2010; iii. Flat No. 48-B, Ground Floor, DDA Janta Flat, Pandav Nagar, Near Shadipur Depot, New Delhi-110008 built on an area of measuring about 55 sq. yards alloted to her by DDA; iv. Flat No. F-473, situated at Madipur, J. J. Colony, Delhi-110063, built on an area of measuring about 20 sq. yards.
ANIL CHANDHEL Prem Parkash vs. Bhupender Kumar & Anr. Page No. 13 of 14 Civil DJ No. 18/2022 Digitally signed by ANIL CHANDHEL Date:
2024.07.31 17:12:21 +0530 It is determined that the Plaintiff and the Defendants are owners of the properties, mentioned hereinabove, in sub-paras (i) to (iii), in the 1/3 rd share. It is further determined that the Plaintiff and the Defendants are owners of the rights in the property mentioned hereinabove in sub-para no. (iv), in the 1/3rd share. A decree for permanent injunction is passed, whereby it is directed that the parties shall not create any third party rights in the suit property nor will part with the possession of the suit properties, till the time, the actual partition of the suit property is effected. The Preliminary decree sheet be drawn up accordingly.Digitally signed by ANIL CHANDHEL
ANIL Date: CHANDHEL 2024.07.31 17:12:28 +0530 Announced in the open Court (ANIL CHANDHEL) today on 31st of July 2024 DISTRICT JUDGE-04 WEST DISTRICT THC/DELHI/31.07.2024 Prem Parkash vs. Bhupender Kumar & Anr. Page No. 14 of 14 Civil DJ No. 18/2022