Legal Document View

Unlock Advanced Research with PRISMAI

Integrated with over 4 crore judgments and laws — designed for legal practitioners, researchers, students and institutions

- Know your Kanoon - Doc Gen Hub - Counter Argument - Case Predict AI - Talk with IK Doc - ...
Upgrade to Premium
[Cites 0, Cited by 0]

Delhi District Court

Shri Prem Chand vs Shri Raj Kumar on 1 December, 2011

      IN THE COURT OF SHRI RAJ KUMAR TRIPATHI, 
        ADDITIONAL SENIOR CIVIL JUDGE (SOUTH), 
                  SAKET COURTS, NEW DELHI.


CS No.  377/2011
ID No.   02403C0264662010

1. Shri Prem Chand 
   S/o Shri Durga Prasad, 
   R/o H. No. 34­I­II, Madangir, 
   New Delhi 110 062.

2. Shri Durga Prasad 
   S/o late Shri Hira Lal
3. Smt. Lakshmi Devi 
   W/o Shri Durga Prasad 
   Both R/o H. No. 34­I­II, Madangir, 
   New Delhi  110 062.
                                                Plaintiffs
                                Versus

1. Shri Raj Kumar
   S/o Shri Durga Prasad,
   R/o H. No. 35­I­II, First Floor,
   Madangir, New Delhi 110 062.
2. Shri Vinay Kumar 
   S/o Shri Durga Prasad,
   R/o H. No. 34­I­II, Ground floor,
   Madangir, New Delhi 110 062.
                                              Defendants

CS No. 377/2011                              Page No. 1 of 6
 DATE OF INSTITUTION                                 : 09.08.2010
DATE OF RESERVING JUDGMENT                          : Not reserved.
DATE OF PRONOUNCEMENT                               :  01.12.2011

             SUIT FOR PARTITION AND POSSESSION

                                 JUDGMENT

1. The present suit was filed by the plaintiffs against the defendants on 09.08.2000 for partition and possession with the prayer to direct the defendants to partition the common ground floor of property no. 34­I­II, Madangir, New Delhi and property No. 35­I­II, Madangir, New Delhi 110 062 in equal two shares of 25 sq. yds. It was also prayed that the entire property no. 34­I­II, Madangir, New Delhi 110 062 be handed over to the plaintiff no. 1 and plaintiffs no. 2 and 3 be given ground floor portion of the property no. 34­I­II, Madangir, New Delhi and second floor portion of the property No. 34­I­II, Madangir, New Delhi. The cost of litigation has also been prayed by the plaintiffs.

2. The brief facts, as stated in the plaint are that the plaintiff no. 1 is absolute owner and landlord of property no. 34­I­II, Ground Floor, First Floor and Second Floor, Madangir, New Delhi as his father/plaintiff no. 2 executed the ownership documents in his favour. The plaintiff no. 2 and defendants executed ownership documents of CS No. 377/2011 Page No. 2 of 6 property no. 35­I­II, Madangir, New Delhi in the name of defendants and one Manoj Kumar, hence they are owner and landlord of this property. The defendant no. 1 is living at the first floor portion of property no. 35­I­II, Madangir, New Delhi and defendant no. 2 has been living at ground floor portion of property no. 34­I­II, Madangir, New Delhi. Defendant no. 2 wants to shift at the second floor portion of property no. 35­I­II, Madangir, New Delhi but the defendant no. 1 is not allowing the defendant no. 2 for the same. It is stated that ground floor portion of property no. 34­I­II, Madangir, New Delhi and property no. 35­I­II, Madangir, New Delhi were common when plaintiff no. 2 and defendants executed the ownership documents in favour of plaintiff no. 1 and defendant no. 1. It was agreed between the plaintiffs and the defendants that the defendants shall partition the ground floor portion of property no. 34­I­II, Madangir, New Delhi of 25 sq. yds and shall hand over its vacant, peaceful and physical possession of the ground floor to the plaintiffs no. 2 and 3. The intention of the defendants has become mala fide and they do not want to partition the ground floor portions of the properties and also do not want to give possession of ground floor portion of 25 sq. yds of the property to the plaintiffs no. 2 and 3. The plaintiffs served a legal notice dated 03.05.2010 upon defendant no. 1 through registered AD CS No. 377/2011 Page No. 3 of 6 post as well as through UPC but the defendants have not replied the same. On 26.05.2010 and on 29.5.2010 the plaintiffs asked the defendants to partition the ground floor portion of said properties in equal shares and to hand over the vacant, peaceful and physical possession of the ground floor portion of property no. 34­I­II, Madangir, New Delhi to plaintiffs but the defendants flatly refused for the same. Hence the present suit.

3. The defendants were served with the summons of the suit. The defendant no. 1 appeared in the court on 23.11.2010 but did not appear thereafter. The defendant no. 2 did not appear despite due service of process upon him. The defendants failed to file their written statement to the suit of the plaintiff despite opportunity given to them. The defendants were proceeded ex­parte vide order dated 17.2.2011. Thereafter, the matter was posted for evidence of plaintiff.

4. In order to prove their case, the plaintiffs examined themselves as PW1, PW2 and PW3. They filed their evidence by way of affidavit and tendered the same in evidence. In the course of evidence, PW1 has proved the ownership documents Ex.PW1/1 (colly.), site plan Ex.PW1/2, legal notice Ex.PW1/3, postal receipt Ex.PW1/4. All the plaintiffs/witnesses in their affidavit have re­iterated the same facts as has been stated in the plaint.

CS No. 377/2011 Page No. 4 of 6

5. I have heard learned counsel for plaintiffs at considerable length and gone through the entire material available on record.

6. Plaintiff no. 2 Shri Durga Prasad claims to be the owner of property bearing no. 34­I­II, Madangir, New Delhi and property no. 35­I­II, Madangir, New Delhi. No documents has been placed on record to show that he is the owner of property no. 35­I­II, Madangir, New Delhi. The plaintiff no. 2 executed General Power of Attorney, affidavit/declaration, Will, receipt and possession letter all dated 14.12.2007. The photocopy of the documents were filed and exhibited during the course of evidence. The original documents were never produced for the perusal of the court. Thus, the documents could not be proved in accordance with law.

7. The documents placed on record are not the title documents and they do not confer any right or title in respect of the property for which they have been executed. The documents through which Mr. Durga Prasad derived his title has not been placed on record. Neither in the plaint nor in the affidavit of the witnesses, it has been mentioned as to how Mr. Durga Prasad became the owner of the property no. 34­ I­II, and 35­I­II, Madangir, New Delhi. The so called agreement through which the defendants agreed for partition of ground floor of aforesaid properties has also not been filed in the court for its perusal. CS No. 377/2011 Page No. 5 of 6 Mr. Durga Prasad has miserably failed to prove his ownership in respect of the aforesaid properties. When the ownership of the properties itself is not established by the plaintiffs, they cannot claim for partition of the same. The plaintiffs have miserably failed to prove their case.

8. In view of the discussion made above, the suit of the plaintiffs is dismissed. No order as to costs. Decree sheet be prepared. File be consigned to record room. 

(Announced in Open Court                     (RAJ KUMAR TRIPATHI)
on 1.12.2011)                        Additional Senior Civil Judge (South)
                                              Saket Courts, New Delhi.




CS No. 377/2011                                                     Page No. 6 of 6