Delhi District Court
Satender Anr vs Rishi Pal Anr on 30 April, 2025
1
IN THE COURT OF MS. GUNJAN GUPTA,
DISTRICT JUDGE-04, SOUTH-EAST,
SAKET COURTS, NEW DELHI
In the matter of:
CS DJ No. 7632/16
1. SH. SATENDER
2. SH. HARVINDER
Both sons of Late Sh. Om Prakash,
r/o. Village Ghitora,
District Baghpat, U.P
At present at :
9, Sarai Kale Khan,
PO. Nizamuddin,
New Delhi.
....Plaintiffs
versus
1. RISHI PAL.
s/o. Late Sh. Ram Saroop,
r/o. House no. 9, Sarai Kale Khan,
PO. Nizamuddin,
New Delhi.
2. SMT. SATTEE,
W/o. Late Sh. Gyan Chand,
d/o. Late Sh. Ram Saroop,
r/o. Village Tigaon,
District Faridabad,
Haryana
....Defendants
Date of Institution : 17.09.2015
Date reserved for judgment : 29.04.2025
Date of judgment : 30.04.2025
DECISION : PARTLY DECREED
CS DJ 7632/16
2
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. This is a suit for Partition and Permanent injunction filed by the plaintiffs against the defendants, who are the family members.
CASE OF PLAINTIFFS
2. Brief facts of the case, as culled out from the plaint, are as under:-
2.1). That one Sh. Tota, s/o. Sh. Darrav was the owner of some residential properties situated at Village Sarai Kale Khan, New Delhi and agricultural land at village Kilokari, New Delhi. 2.2). The family chart of Sh. Tota is as under:
Tota S/o. Dharav | |_________________________ | | | | | | Ram Saran Ram Sarup @ Sarupa Ratiram _______________|____________________ | | | Rishipal Bhim Kaur Sattee (Defendant no.1) (Mother of plaintiffs) (Defendant no.2) | __________|____________ | | Satinder Harvinder (Plaintiff no.1) (Plaintiff no.2) 2.3). The agricultural land was acquired by the Govt.
whereas the residential properties were divided amongst three sons of Sh. Tota and out of the said residential properties, House CS DJ 7632/16 3 no. 9, Sarai Kale Khan, PO, Nizamuddin, New Delhi (hereinafter referred to as suit property), fell to the share of Sh. Ram Saroop. 2.4). Sh. Ram Saroop died intestate. Thereafter, Smt. Bhim Kaur, mother of the plaintiffs and sister of the defendants, also expired. Thus after her demise, the plaintiffs are jointly entitled to 1/3 share of their mother in the suit property inherited by her from Sh. Ram Saroop. The plaintiffs also received compensation qua acquisition of the agricultural land acquired by the Govt. qua 1/3 share of Sh. Ram Saroop by way of cheque on 28.04.2009.
2.5). The plaintiffs made several requests to the defendants for partition of the suit property in the month of May, 2015, however, the defendants refused to listen the request of the plaintiffs and started raising construction in suit property bearing no. 9, Sarai Kale Khan, PO, Nizamuddin, New Delhi, as shown in the site plan, without the consent and permission of the plaintiffs and without obtaining the sanction for the same from the authorities. The plaintiffs objected to the same and again demanded partition. The plaintiffs also kept a meeting in the village Sarai Kale Khan and even approached the relatives of the defendants in the month of July and on 15.08.2015 as well as on 22.08.2015, but to no avail. 2.6). Hence the plaintiffs have filed the present suit praying for a decree of partition of the suit property by metes and bounds and for permanent injunction against the defendants to restrain them from demolishing any part of the suit property and making any unauthorised construction in the suit property as well as restraining them from disposing off any portion of the same, till the same is partitioned.
CS DJ 7632/16 43. CASE OF DEFENDANT NO.1 The defendant no.1 filed his W/S denying the averments in the plaint and stating as follows:
3.1). The suit is not properly valued for the purposes of court fee and jurisdiction as the market value of the suit property is more than Rs. One Crore.
3.2). That the plaintiffs have suppressed material facts that the mother of the plaintiffs during her lifetime had relinquished her share in the suit property in favour of defendant no.1, after the death of Sh. Ram Saroop and even defendant no.2 had relinquished her share in the suit property in favour of defendant no.1. The plaintiffs have never been in possession of the suit property and they have no locus to file the present suit. It is stated that the defendant no.1 is in exclusive possession of the suit property since the death of his father Sh. Ram Saroop on 13.09.1989.
3.3). It is submitted that the suit property is also the subject matter of another suit titled as Giri Raj vs. Rishipal and Ors bearing no. CS OS/1457/15 and the present suit is filed only to harass the defendant no. 1.
4. CASE OF DEFENDANT NO.2:
Defendant no.2 filed her written statement supporting the claim of the plaintiffs and asserting her right to equal share in the suit property.CS DJ 7632/16 5
5. REPLICATION TO THE W/S OF DEFENDANT NO.1 The plaintiffs filed the replication denying the averments in the W/S of defendant no. 1 & reiterating the contents of the plaint and further stating as follows:
5.1). It is averred that the plaintiff do not have any knowledge about the pendency of the suit titled as Giri Raj vs. Rishipal and Ors bearing no. CS OS/1457/15. It is further averred that the mother of the plaintiffs and defendant no.2 have not relinquished their shares in the suit property and even otherwise, the relinquishment of share of the immovable property cannot be done orally. It is averred that since the plaintiffs are the co-owners of the property, they are in constructive physical possession of the same.
6. ISSUES:
From the pleadings of the parties, the following issues were framed by Ld. Predecessor of this Court, vide order 20.07.2016:
1. Whether the plaintiffs have not paid the appropriate court fees ? OPD1
2. Whether the mother of plaintiffs has relinquished her rights in the suit property ? OPD1
3. Whether the plaintiffs have no locus standi to file the present suit ? OPD1
4. Whether the plaintiffs are entitled to decree of partition, as prayed for ? OPP.
5. Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for ? OPP
6. Relief CS DJ 7632/16 6
7. PLAINTIFF'S EVIDENCE Plaintiffs in support of their case, examined Sh. Harvinder, as PW1. He tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
i). Copy of death certificate of Mark A
Smt. Bhim Kaur
ii). Copy of cheques and other Mark B
related documents in respect (colly)
of the award and 1/3 share
of the plaintiff
iii). Site plan of the suit property Mark C
8. DEFENDANT'S EVIDENCE
Defendants in support of their case, examined Sh. Rishi Pal, as DW1. He tendered his evidence by way of affidavit Ex.DW1/A and relied upon the following documents:
i). Certified copy of suit bearing no. Ex.DW1/1 9916/2016 titled as Giriraj vs. Rishipal
ii). Copy of death certificate of Mark B Sh. Ram Sarup
9. ARGUMENTS OF LD. COUNSEL FOR PLAINTIFF 9.1). It is argued by Ld. Counsel for plaintiff that the mother of the plaintiffs Smt. Bhim Kaur was entitled to 1/3rd share in the suit property which belonged to her father Sh. Ram Saroop, as per section 6 & 8 of the Hindu Succession Act, 1956. In support of his contentions, Ld. Counsel has relied upon a Judgment passed by CS DJ 7632/16 7 Hon'ble Supreme Court in Vineeta Sharma vs. Rakesh Sharma and Ors in CA No. 5633/2023.
9.2). It is submitted that after the death of Bhim Kaur her share in the suit property would devolve upon the plaintiff who are the children of Bhim Kaur, by virtue of section 15 of Hindu Succession Act, 1956. The counsel further argued that the defendant has not denied that Sh. Ram Saroop was the owner of the suit property which he had acquired being the son of Sh. Tota, however, has set up only one defence that Smt. Bhim Kaur and Smt. Sattee, defendant no.2 have orally relinquished their shares in the suit property in favour of defendant no.1. It is argued that as per section 17 of the Registration Act, 1908, an oral relinquishment of rights in the immovable property of the value of Rs.100/- would have no effect and thus the defendants have failed to prove their defence. In support of his contentions, Ld. Counsel for plaintiff has placed reliance upon a judgment in Shishpal vs. Sumer Singh and Others in RSA 3365 of 1998 passed on 12.11.1988.
9.3). It is further argued that the plaintiffs have even received a share in the compensation amount for the acquisition of the agricultural land of Sh. Ram Saroop and the same supports their case that the plaintiffs are even entitled to their share in the suit property. It is further argued that the plaintiffs are also entitled to permanent injunction against the defendants as if the defendant no.1 is allowed to continue the unauthorised construction in the suit property, the same may be detrimental to the right of the plaintiff. To support of his contention, Ld. Counsel for plaintiff has placed reliance upon a judgment passed by Hon'ble High Court of CS DJ 7632/16 8 Allahabad in Phool Kumar vs. Shyam Singh and Ors - (2023) 5 ILRA 1221.
9.4). It is further argued that it has been averred by defendant no.1 that plaintiffs are not in possession of the suit property and have no right, title or interest in the suit property. It is argued that the defendant no.1 has not owned his own affidavit and has denied his thumb impression over the same. It is submitted that it is a settled law that the possession of a co-owner is presumed to be on behalf of all the co-owners and if any party claims outster of the other party, the burden to prove the same would lie upon him. To support of his contention, Ld. Counsel for plaintiff has placed reliance upon a judgment passed by Hon'ble Supreme Court in Nagabhushanammal (D) by L.Rs vs. C. Chandikeswaralingam in CA no. 1858-1859 of 2016.
9.5). It is submitted that the defendant has failed to prove that the plaintiff is not in possession of the suit property and hence the possession of the plaintiff is to be presumed. 9.6). It is further argued that since the defendant has failed to lead any evidence to rebut the averments in the plaint, the same be deemed to be admitted and a presumption can be drawn u/s. 114
(g) of the Evidence Act against the defendant. To support of his contention, Ld. Counsel for plaintiff has placed reliance upon a judgment passed by Hon'ble Supreme Court in Union of India Vs. Ibrahim Uddin & Anr in CA no. 1374/2008.
9.7). The counsel further argued that during the course of proceedings, a notice u/o. 12 Rule 8 CPC was issued to defendant no. 1, in reply to which the defendant no.1 had supplied the documents pertaining to suit no. 198/1978 titled as Sh. Ram Saroop CS DJ 7632/16 9 vs. Lal Chand in which a compromise deed dt 10.10.1978 was also supplied. He argued that as per the said decree, Sh. Ram Saroop was entitled to 2/3 share in the property no. 9, Sarai Kale Khan, New Delhi-30, which is also shown in the site plan - Mark C and thus there remains no doubt that the suit property was owned by Sh. Ram Saroop.
9.8). It is argued that since the testimony of the plaintiff asserting their right to 1/3rd share in the suit property and other averments remained unrebutted by the defendants and since the defendant no.1 has failed to file any site plan of the property in question and has also failed to lead any evidence to prove the relinquishment of share by the mother of the plaintiffs and further since as per the compromise decree dt 10.10.1978 in civil suit no. 198/21978 titled as Sh. Ram Saroop @ Sarupa vs. Lal Chand and Anr, the suit property was already partitioned in the year 1978 and Sh. Ram Saroop was entitled to his share in the suit property, the plaintiffs are entitled to 1/3rd share in the suit property.
10. ARGUMENTS OF LD. COUNSEL FOR DEFENDANT NO.1 10.1). Ld. Counsel for defendant no. 1 has only submitted in her arguments that the shares of Smt. Bhim Kaur and defendant no.2 in the suit property were orally relinquished in favour of defendant no.1. The counsel is asked the date of alleged oral relinquishment and whether any evidence has been led in this regard by the defendant no.1. She is unable to point out anything on record.
CS DJ 7632/16 1010.2). It is further argued that as per the compromise decree dt 10.10.1978 placed on record, 2/3rd of the property no. 9, Sarai Kale Khan, New Delhi-30, fell in the share of Sh. Ram Swaroop and 1/3 in the share of Sh. Lal Chand s/o. Ram Saran. It is further submitted that the 2/3 portion of the said property is in possession of Rishipal and 1/3 is still in possession of Lal Chand. 10.3. Ld. counsel for defendant no.1 has filed two judgments i.e. Deepak Aggarwal vs. Sh. Raj Goyal and Ors - CS (OS) No. 2711/2015 passed by Hon'ble High Court of Delhi and Prakash & Ors vs Phulavati and Ors in CA no. 7217/2013 passed by Hon'ble Supreme Court.
11. FINDINGS ON THE ISSUES 11.1). Issue no.1: Whether the plaintiffs have not paid the appropriate court fees ? OPD1 11.1.1). The burden to prove this issue was on defendant no.1. No submissions/arguments were addressed by counsel for defendant No.1 on this issue. The defendants have raised objection in the W.S that the market value of the suit property is more than One Crore and the plaintiffs have undervalued the same and have also not paid the advalorem court fee on the share claimed by them. Burden to prove the same was upon the defendant, however, no evidence has been led by the defendant in this regard.
11.1.2). The plaintiff during the course of proceedings and after the framing of issues, amended his plaint qua valuation of the suit property and paid the court fee accordingly on the same. No objection was raised by the defendant after the amendment in the valuation of the property.
CS DJ 7632/16 1111.1.3). The plaintiff has paid the court fee of Rs. 8900/- and the plaintiff only claims 1/3 share in the suit property. Thus the court fee filed by the plaintiff is proper. This issue is accordingly decided in favour of the plaintiff.
11.2). Issue no.2: Whether the mother of plaintiffs has relinquished her rights in the suit property ? OPD1 11.2.1). The onus to prove this issue was upon defendant no.1. However, no evidence whatsoever was led by defendant no.1 in this regard. Even no question was put to the plaintiff witness in this regard. No document of relinquishment of shares by Smt. Bhim Kaur is placed on record. The contention of defendant no.1 is that the relinquishment was done orally, however, the pleadings of the defendant are totally silent as to the date of relinquishment as well as the other facts and events qua the said relinquishment of shares and it is simply stated that Smt. Bhim Kaur and Smt. Sattee had relinquished their shares orally in his favour. Even, during the course of arguments, no answer came forward despite specific query of the court in this regard.
11.2.2). As per section 17 of the Registration Act, 1908, any relinquishment of share in the suit property above Rs. 100/- can only to be done by way of registered document and thus in the absence thereof, relinquishment of rights in immovable property will have no effect.
11.2.3). Further, it is pertinent to note that the defendant no.1 in his cross-examination has denied his affidavit of evidence and his thumb impression upon the same and has also stated that he is not aware about the contents of the same. Thus effectively the defendant has failed to lead evidence to prove his averments in the W.S. CS DJ 7632/16 12 The issue is accordingly decided against the defendant no.1 and in favour of the plaintiff.
11.3). Issue no. 4: Whether the plaintiffs are entitled to decree of partition, as prayed for ? OPP.
11.3.1). The plaintiff has filed the present suit claiming 1/3 share in the suit property as per the site plan Mark C, asserting their rights in the same u/s. 6, 8 & 15 of the Hindu Succession Act, 1956. It is the case of the plaintiff that the suit property originally belonged to their maternal great grandfather-Sh. Tota. After his demise, his sons divided the properties left behind by Sh. Tota, amongst themselves and the suit property fell to the share of his son Sh. Ram Saroop, who is the maternal grandfather of the plaintiffs. Sh. Ram Saroop died intestate in 1989 leaving behind one son and two daughters and, therefore, the plaintiffs are entitled to 1/3 share of Smt Bhim Kaur which was inherited by her upon the death of his father Sh. Ram Saroop. The defendant no.2 in her W.S supported the case of the plaintiff but stopped appearing in the matter and no evidence was led by defendant no.2.
11.3.2). The limited defence of defendant no.1 is that Smt. Bhim Kaur and defendant no.2 relinquished their shares orally in his favour and the plaintiffs have never been in possession of the suit property.
11.3.3). Before proceeding further, it is important to mention that during the course of proceedings, a notice u/o. 12 Rule 8 CPC was issued by the plaintiff to the defendant no.1. In reply to the said notice some documents were supplied by defendant no.1 and the same find mention in order dt 23.01.2020, passed by Ld. Predecessor of this Court. The said CS DJ 7632/16 13 documents appear to have not been placed on record. On 29.04.2025, a set of those documents was filed by the counsel for plaintiff on record and the same were confirmed as well as admitted by the Ld. Counsel for defendant no.1. As per the said documents, a compromise decree dt 10.10.1978 was passed in terms of a memorandum of compromise dt 27.08.1978 by Sh. D.R. Jain, the then Sub Judge, Delhi in the suit no. 187/1978, titled as Ram Saroop vs. Lal Chand and as per the compromise decree, 2/3 share in the property no. 9, Sarai Kale Khan, PO. Nizamuddin, New Delhi, fell to the share of Sh. Ram Saroop and same was identified as property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi and remaining 1/3 fell to the share of Sh. Lal Chand, s/o. Late sh. Ram Saran and the same was identified as Property no. 9-B Sarai Kale Khan, PO. Nizamuddin, New Delhi. Thus, by the said decree the properties of Sh. Tota stood divided amongst his sons. 11.3.4). Thus the property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi, became the separate property of Sh. Ram Saroop. In this regard, the judgment of Hon'ble Supreme Court passed in Deepak Aggarwal vs. Sh. Raj Goyal and Ors - CS (OS) No. 2711/2015, reads as under:
"7. As per the facts of the present case, grandfather of the plaintiff is Sh. Tulsi Ram, and who admittedly died on 26.2.1983 i.e after passing of the Hindu Succession Act, 1956. It is now settled law that if a person dies after passing of the Hindu Succession Act, 1956, and properties owned by the deceased are inherited by his male successors-in-interest, then, the male successors-in-interest take the properties as self-acquired properties and not as HUF properties. The only exception to this position is that an HUF being created for the first time after 1956 by throwing property or properties in common hotchpotch. This is the law in view of the ratio laid down in the two judgments of the Supreme Court in the cases of Commissioner of Wealth Tax, Kanpur and Others Vs. Chander Sen and Others, (1986) 3 SCC 567 and Yudhishter Vs. Ashok Kumar, (1987) 1 SCC 204. The CS DJ 7632/16 14 relevant para of the judgment in the case of Yudhishter (supra) reads as under:-
"10. This question has been considered by this Court in Commissioner of Wealth Tax, Kanpur and Ors. v.
Chander Sen and Ors. MANU/SC/0265/
1986MANU/SC/0265/1986: [1986]161ITR370(SC)
where one of us (Sabyasachi Mukharji, J) observed that under the Hindu Law, the moment a son is born, he gets a share in father's property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This Court observed that this position has been affected by Section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Kar of his own undivided family but takes it in his individual capacity. At pages 577 to 578 of the report, this Court dealt with the effect of Section 6 of the Hindu Succession Act, 1956 and the commentary made by Mulla, 15th Edn. pages 924-926 as well as Mayne's on Hindu Law 12th Edition pages 918-919. Shri Banerji relied on the said observations of Mayne on 'Hindu Law', 12th Edn. at pages 918-919. This Court observed in the aforesaid decision that the views expressed by the Allahabad High Court, the Madras High Court the Madhya Pradesh High Court and the Andhra Pradesh High Court appeared to be correct and was unable to accept the views of the Gujarat High Court. To the similar effect is the observation of learned author of Mayne's Hindu Law, 12th Edn. page 919. In that view of the matter, it would be difficult to hold that property which developed on a Hindu under Section 8 of the Hindu Succession Act, 1956 would be HUF in his hand vis-a-vis his own sons. If that be the position then the property which developed upon the father of the respondent in the instant case on the demise of his grandfather could not be said to be HUF property. If that is so, then the appellate authority was right in holding that the respondent was a licensee of his father in respect of the ancestral house."
8. Therefore, once the grandfather Sh. Tulsi Ram died on 26.2.1983 and the father of the plaintiff Sh. Duli Chand died on 20.8.1991, inheritance by Sh. Duli Chand of the properties of Sh.
CS DJ 7632/16 15Tulsi Ram would be as self-acquired properties by Sh. Duli Chand, and these properties would not be HUF properties in the hands of Sh. Duli Chand for the male successors-in-interest of Sh. Duli Chand to have a right in the same by birth. Plaintiff therefore can claim no rights in the properties of his father Sh. Duli Chand allegedly on the ground of HUF properties once these properties would be self-acquired properties in the hands of Sh. Duli Chand as they have been inherited by Sh. Duli Chand from Sh. Tulsi Ram only in the year 1983 i.e after passing of the Hindu Succession Act, 1956 and as read with the ratios of the judgments of the Supreme Court in the cases of Chander Sen and Others(supra) and Yudhishter (supra)."
emphasis supplied 11.3.5). Since the said property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi was the separate property of Sh. Ram Saroop, the same would devolve as per provisions of section 8 of Hindu Succession Act, 1956 upon his Class-I heirs i.e. his sons and daughters equally. Thus, defendant no.1, Smt. Bhim Kaur and defendant no.2-Smt. Sattee are entitled to 1/3 undivided share each. It is pertinent to mention here that it is case of plaintiff that Sh. Ram Saroop died intestate which has not been refuted by the defendant no.1.
11.3.6). There are no averments that any partition happened between the sons and daughters of Sh. Ram Saroop and even no averment qua any dispute or Family Settlement exists. No plea of adverse possession is taken by the defendant. Admittedly, Smt. Bhim Kaur died in 1991 i.e. around two years after the death of Sh. Ram Saroop. Thus, the contention of the defendant no.1 that the plaintiffs or their mother were never in possession of suit property, holds no weight as it is settled law that the possession of one co-heir is the possession of all the co-heirs as a joint titled exists in all the co-heirs.
CS DJ 7632/16 16In this regard, it has been observed in Nagabhushanammal (D) by L.Rs vs. C. Chandikeswaralingam (supra), as under:
"22. A three judge bench of this court in P. Lakshmi Reddy v. R.Lakshmi Reddy[6], while examining the necessary conditions for applicability of doctrine of ouster to the shares of co-owners, held as follows:
"4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario. (See Secretary of State for India v. Debendra Lal Khan [ (1933) LR 61 IA 78, 82] ). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. (See Radhamoni Debi v. Collector of Khulna [ (1900) LR 27 IA 136, 140] ). But it is well- settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non- possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. (See Cores v. Appuhamy [(1912) AC 230)]. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other."
11.3.7). Since Smt. Bhim Kaur is also alleged to have died intestate and since the said claim is not refuted by the defendant no.1 and further since it has been held in the issue no.2 above, the defendant no.1 has failed to prove that Smt. Bhim Kaur had relinquished her share in favour of defendant no.1, the 1/3 undivided share in the property no. 9-A, Sarai Kale Khan, PO.
CS DJ 7632/16 17Nizamuddin, New Delhi inherited by Bhim Kaur from Sh. Ram Saroop shall devolve as per the provisions of section 15 of Hindu Succession Act, 1956 and plaintiffs herein are thus entitled to the same equally. The judgment in Prakash and Ors vs. Phulavati and Ors (supra) relied upon by counsel for defendant is not applicable to the facts of the present case.
11.3.8). It is pertinent to note that the present suit is filed qua the entire property no. 9, Sarai Kale Khan, PO. Nizamuddin, New Delhi, however, the site plan Mark C shows the property no. 9, Sarai Kale Khan, PO. Nizamuddin, New Delhi divided into two parts North and South. The North part is shown in possession of Rishipal-defendant no.1 and the south portion is shown in possession of Sh. Lal Chand s/o. Sh. Ram Saran. The said site plan corresponds with the memorandum of compromise dt 27.08.1978 which forms a part of compromise decree dt 10.10.1978 and even the plaintiffs in their pleadings only claim share in the red portion shown in the site plan. Thus, the plaintiffs are held entitled to 1/3 undivided share in property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi (i.e. the property shown in 'Red' color in the site plan as the property in possession of defendant no.1) only and not the entire suit property as claimed by the plaintiff.
The issue is accordingly decided.
11.4. Issue no. 5. Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for ? OPP 11.4.1). In view of the discussions in issue no.4 above, defendant no.1 is restrained from creating third party rights in the property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi CS DJ 7632/16 18 until the same is partitioned between the parties. As regards the relief of permanent injunction restraining the defendant no.1 from demolishing any part of the suit property is concerned, the same is beyond pleadings and is accordingly denied.
11.4.2). The plaintiff has also sought permanent injunction thereby restraining defendant no.1 from carrying on any unauthorised construction in the suit property until the suit property is partitioned by metes and bounds. However, no arguments were advanced by the parties on this aspect of unauthorised construction and no evidence is led to show any unauthorised construction in property no. 9, Sarai Kale Khan, PO. Nizamuddin, New Delhi. Thus this relief is accordingly denied. However, it is made clear that the property as it exists as on date shall be divided between the parties according to the shares decided in this judgment and any construction carried out by the defendant no.1 shall not entitle him to any additional benefit.
The issue is accordingly decided.
11.5. Issue no. 3. Whether the plaintiffs have no locus standi to file the present suit ? OPD1 11.5.1). No arguments were advanced on this issue, however, since the plaintiffs are the sons of Bhim Kaur, d/o. Late Sh. Ram Saroop and since Smt. Bhim Kaur had already expired leaving behind her undivided share in the property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi and further since the issue no.2 and 4 are decided against the defendant, the present issue is decided against the defendant and in favour of the plaintiff.
CS DJ 7632/16 1911.6). Relief: In view the findings on the above issues, the suit of the plaintiff is partly decreed. Preliminary decree is accordingly passed declaring the plaintiffs jointly and equally and defendant no.1 and defendant no.2 entitled to 1/3 undivided share each in property no. 9-A, Sarai Kale Khan, PO. Nizamuddin, New Delhi, as shown in 'Red' color in the site plan Mark C, as property in possession of Sh. Rishipal. Decree sheet be drawn accordingly.
Dictated and announced in open court on 30.04.2025. GUNJAN Digitally signed by GUNJAN GUPTA GUPTA Date: 2025.05.02 17:00:21 +0530 (GUNJAN GUPTA) DJ-04/South-East,Saket Courts, New Delhi CS DJ 7632/16