Delhi District Court
Jameel Ahmed vs Ms. Bano on 24 November, 2023
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IN THE COURT OF SH. VIDYA PRAKASH
ADDITIONAL DISTRICT JUDGE-09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI.
CNR NO.: DLCT01-000148-2011
CS DJ/11303/2016 (Old No. :03/2011)
IN THE MATTER OF:-
1. Sh. Jameel Ahmed
S/o : Late Sh. Abdul Sattar
R/o : 8773, Sheedi Pura, Karol Bagh
New Delhi-110005
2. Smt. Jameela
D/o : Late Sh. Abdul Sattar
W/o : Mohd. Illyas
R/o : 226, Gaffar Manzil, Okhla
New Delhi-110025
3. Smt. Jahanara
W/o : Late Mohd. Anis
D/o : Late Abdul Sattar
R/o : H. No. 7412, Gali Laranwali, Qasab Pura
Delhi-110006
4. Mohd. Ahmed
S/o : Late Shri Abdul Sattar
R/o : 8773, Sheedi Pura, Karol Bagh
New Delhi-110005
5. Ms. Husn Ara
D/o : Late Shri Abdul Sattar
R/o : 8773, Sheedi Pura, Karol Bagh
New Delhi-110005
6. Ms. Suraiya
W/o : Mohd. Qadeer
D/o : Late Sh. Abdul Sattar
R/o : Flat No.67, Gulshan Iqbal, Saheen Bagh, Okhla
New Delhi-110025
7. Mr. Rais (Deceased)
S/o : Late Sh. Abdul Sattar
CS DJ No.:11303/2016 Page 1 of 35
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R/o : 8773, Sheedi Pura, Karol Bagh
New Delhi-110005
(i) Smt. Sajjida w/o Mohd. Rais
(ii) Master Babar S/o Mohd. Rais
8. Ms. Shabana
W/o : Mohd. Nadeem
D/o : Late Sh. Abdul Sattar
R/o : H. No. 1214 Rakab Ganj
Cahtta Lalmian, Near Delite Cinema
New Delhi-110005
9. Mr. Mustaqeem
S/o : Late Sh. Abdul Sattar
10. Ms. Rizwana
S/o : Late Sh. Abdul Sattar
11. Mohd. Sameer
S/o : Late Sh. Abdul Sattar
12. Mohd. Sami
S/o : Late Sh. Abdul Sattar
Plaintiff nos. 9 to 12 are residents of:
H. No. 8773, Sheedi Park, Karol Bagh
New Delhi-110005
...PLAINTIFFS
VERSUS
1. Smt. Bano
D/o : Late Sh. Abdul Sattar
2. Smt. Rani
D/o : Late Sh. Abdul Sattar
3. Ms. Razia
D/o : Late Sh. Abdul Sattar
4. Ms. Bhuri
D/o :Late Sh. Abdul Sattar
CS DJ No.:11303/2016 Page 2 of 35
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5. Sh. Suleman
S/o : Late Sh. Abdul Sattar
All defendant nos. 1 to 5 are residents of:
7559 Punchakya Badi Masjid
Quresh Nagar, Sadar Bazar
Delhi-110006
6. Sh. Saleem (now deceased)
(i) Smt. Shahanaz w/o Late Sh. Saleem
(ii) Mr. Mohd. Mohsin
(iii) Mr. Mohd. Feroz
(iv) Mr. Danish
(v) Mr. Mohd. Abid @ Nannah
[Defendant no. (ii) to (v) are
sons of Late Saleem
All R/o : T-454, Gali Pahadwali
Quresh Nagar, Sadar Bazar
Delhi-110006]
...DEFENDANTS
Date of Institution : 06-01-2011
Date of Transfer to this Court : 12-02-2021
Date of reserving judgement : 24-11-2023
Date of pronouncement of judgement : 24-11-2023
JUDGEMENT
1. Vide this judgment, I shall decide the present suit for partition, possession, permanent injunction and future damages for use and occupation filed by plaintiffs against the defendants.
2. It is pertinent to mention here that initially, the plaintiffs did not seek the relief of partition, however, subsequently, an application under Order VI Rule 17 CPC was moved on behalf of plaintiffs seeking amendment of the plaint, which CS DJ No.:11303/2016 Page 3 of 35 -4- was allowed vide order dated 29-4-2014 and consequently, the amended plaint also seeking the relief of partition, was taken on record.
3. Briefly stated facts of the case, as averred in the plaint, are that the plaintiffs have instituted the present suit for partition possession, permanent injunction and future damages for use and occupation of the property bearing No.7559, Comprising of Ground Floor and First Floor situated near Badi Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 (hereinafter called the suit property) against the defendants stating therein that the plaintiffs and the defendants, parties to the present suit, are Muslims and are related to each other and governed by Muslim Hanafi Law of Shariat. Further, it is averred that, the suit property (ad-measuring 60.86 sq. yds) was owned by Mohammad Saddiq, the grand father of the parties, who died in Delhi on 20-6-1976 and his death certificate is stated to have been filed on record. It is stated that the suit property has been shown in red and yellow colour in the site plan. It is also stated that demolished portion of the suit property has been shown in yellow colour in the site plan. It is also stated that suit property is bounded and abbutted East, West and South by other properties and North by a Gali.
4. It is further averred that late Sh. Abdul Sattar, father of the plaintiffs, got married in the year 1961-62 with Smt. Khatija Begum, mother of plaintiffs, who after her marriage, came in the suit property and started residing therein and remained there for about 7 years after her CS DJ No.:11303/2016 Page 4 of 35 -5- marriage and then, shifted from there on account of paucity of accommodation.
5. It is further stated that the suit property comprises of a room, open verandah on the ground floor with demolished area as mentioned in para no.3 of the plaint and a room, open verandah, kitchen and a latrine, more particularly shown in the plan, situated on the first floor thereof.
6. It is also averred that Late Mohammad Saddiq, the grand father of the parties to the present suit, had two sons, namely Abdul Gaffar (father of the defendants nos. 1 to 7) and Abdul Sattar (father of the plaintiffs nos.1 to 12). Out of two sons, Abdul Gaffar was elder son. Late Mohd Saddiq had his wife Mst. Bashiran, amongst his family members. It is averred that Abdul Gaffar (father of defendants) died in the year 1970-1971, however, his exact date of death is not within the knowledge of plaintiffs, but it is stated to be during the lifetime of his father Mohammad Saddiq. Further, it is averred that Sh. Abdul Sattar, father of the plaintiffs, died on 13-10-1988, while Mst. Bashiran (grand mother of the parties) died on 06-12-1999. Late Mohammad Saddiq had no daughter. Abdul Gaffar, who died during the lifetime of his father Mohammad Saddiq, left 4 daughters and 3 sons and thus, when Mohammad Saddiq died, he was survived by only one son Abdul Sattar (father of plaintiffs no.1 to 12) and a widow Mst. Bashiran. Abdul Sattar, who died on 13-10-1998, left 6 sons and 6 daughters i.e. the plaintiffs nos. 1 to 12.
CS DJ No.:11303/2016 Page 5 of 35 -6-7. It is also stated that as per Shariat and Muslim Hanafi Law, recognized by Muslims, the assets/ property of Mohammad Saddiq, grand father of the parties, were to be divided between his surviving son i.e. Abdul Sattar and his widow Mst. Bashiran; 7/8th share going to the son and 1/8th share going to the widow, after paying his death bed, burial expenses and other liabilities, if any. Thus, it is stated that, out of the assets / property of late Mohammad Saddiq, 7/8th share / unit went to his son namely Abdul Sattar and 1/8th share/ unit went to his widow namely Mst. Bashiran.
8. It is further averred that similarly, the total assets/ property of the widow i.e. Mst. Bashiran, after payment of loan, death bed and burial expenses, will be divided amongst the sons and daughters of both Abdul Gaffar and Abdul Sattar. Even if Mst. Bashiran was survived by any of her brothers, they would not inherit any share from her assets and the entire assets/properties will be divided into 28 units, 2 units each to the grand sons and one unit each to the grand daughters. The plaintiffs, being 6 brothers and 6 sisters, are again entitled to 18/28 units/ shares out of 1/8th share/ units left by Mst. Bashiran, i.e. the widow of late Mohd. Saddiq, whereas, the defendants, being 3 brothers and 4 sisters, are entitled to 10/28 share / units out of the share of Mst. Bashiran.
9. Further, two Fatwas, obtained from two different Madrasas/Muftiesm, to prove the inheritance and assertions of the plaintiffs, are also filed alongwith the CS DJ No.:11303/2016 Page 6 of 35 -7- plaint. Their family tree is depicted as under:-
Mohd. Saddiq Died on 20-6-1976 Mst. Bashiran (widow) Died on 06-12-1999 Sh.Abdul Gaffar Sh.Abdul Sattar (Elder Son) Died on 13-10-1988 died in 1970-1971 Smt. Bano Sh.Jamil Ahmed (defendant no.1) (plaintiff no.1) Smt. Rani Smt. Jamila (defendant no.2) (plaintiff no.2) Ms. Razia Smt. Jahanara (defendant no.3) (plaintiff no.3) Ms. Bhuri Mohd. Ahmed (defendant no.4) (plaintiff no.4) Sh. Naseem Mst. Husn Ara (defendant no.5) (plaintiff no.5) Sh. Suleman Ms. Suraiya (defendant no.6) (plaintiff no.6) Sh.Saleem Mohd. Rais (defendant no.7) (plaintiff no.7) Smt. Shabana (plaintiff no.8) Mustaqeem (plaintiff no.9) Ms. Rizwana (plaintiff no.10) Mohd. Sameer (plaintiff no.11) Mohd. Sami (plaintiff no.12) CS DJ No.:11303/2016 Page 7 of 35 -8-
10. It is alleged that despite several requests made to the defendants to vacate and hand over vacant and peaceful possession of the suit property to the plaintiffs, the defendants did not pay any heed and instead, threatened the plaintiffs of dire consequences, in case they ever tried to take possession of the suit property from the defendants. It is stated that ultimately, the plaintiffs got issued a Registered AD notice dated 03-11-2010 to the defendants through his counsel but the defendants refused to take delivery of the notice. Then as a last resort, a copy of the notice was sent to each of the defendants on 15-11-2010 by Under Postal Certificate (UPC) and it is certain and presumed, that the notice must have reached all the defendants. The copy of the said notice, returned envelopes and postal receipts by all modes, are stated to be filed on record.
11. It is stated that the suit is based on the rights of inheritance of the property of the deceased grand father of the plaintiffs, and also the share of the grand mother of the plaintiffs and defendants, having died intestate. It is also averred that after death of Mohd. Saddiq and Mst. Bashiran, the position of the plaintiffs and defendants for their respective shares in the suit property becomes as under:-
Total area of land 61.86 sq. yds
a) Firstly, 1/8th share out of 61.86 sq. yds goes to the deceased wife namely Smt. Bashiran.
Secondly, thereafter 7/8th share out of the same measuring CS DJ No.:11303/2016 Page 8 of 35 -9- 61.86 sq. yds shall devolved upon the plaintiffs / LRs of one of the sons of deceased namely Late Sh. Abdul Sattar.
b) Smt. Bashiran also expired after the death of her sons, thus, her share shall be devolved upon her grand sons and daughters / i.e. amongst all legal heirs of late Sh. Abdul Sattar and Late Shri Abdul Gaffar. As such, share of 1/8 th shall be further divided into the number of 19 (i.e. 12 persons from the plaintiffs and 07 persons from defendants side). As per distribution of shares under Islamic Law, male will get double shares to female. Thus total 28 shares shall be made to divide the share inherited from the grand mother. Hence the share 1/8th shall be divided from the 28 shares.
(c) Plaintiff are entitled to 18 shares from the property/ share of their grand mother and the defendants are entitled to only 10 shares from the property/share of said grand mother.
Total share devolved in favour of the plaintiffs are as follows - 7/8 + (18 shares out of 1/8) = Total share devolved in favour of the defendants are 10 out of 1/8 share. For which the plaintiffs are entitled to get the same and the defendants are liable to deliver the possession of the suit property upto the extent of shares of the plaintiffs as mentioned above.
12. On these facts and circumstances, the plaintiffs have filed the present suit praying therein, inter alia, a decree for partition by metes and bounds and for actual vacant possession of plaintiffs' share in the suit property; and a decree for actual vacant possession of the property no.7559 CS DJ No.:11303/2016 Page 9 of 35 -10- (comprising of ground floor and first floor) situated near Badi Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 as shown in red and yellow colour in the site plan and a decree for use and occupation of the demised property @ Rs.3500/- per mensam from the date of institution of the suit till its realization.
13. Summons of the suit were issued to the defendants.
Defendants put their appearance through counsel and filed their joint written statement contesting the suit. It is relevant here to mention that after amendment of plaint, the defendants had also filed joint written statement to the amended plaint. The defendants took various preliminary objections, inter alia, that the plaintiffs have not come before the Court with clean hands and have suppressed the material facts. In support of this contention, it is submitted that suit property was under absolute ownership of Late Mohd. Saddiq who disposed off the same in favour of Mst. Rashida Begum w/o Sh. Abdul Gaffar, by way of receipt and other documents duly executed by him on dated 06-01-1975 and dated 02-02-1975 in presence of the witnesses and no other person except Rashida Begum has any right, title or interest in the suit property since then and her ownership was never disputed during her lifetime and even thereafter by any person including the plaintiffs. It is further stated that after purchasing the suit property and getting lawful possession thereof, Smt. Rashida Begum and defendants raised construction in the suit property as clearly shown in the site plan submitted by defendants. It is CS DJ No.:11303/2016 Page 10 of 35 -11- further stated that since 1975, Smt. Rashida Begum and her LRs i.e. defendants are in actual physical possession of the suit property.
14. It is also stated that unfortunately, Smt. Rashida Begum expired on 12-06-1998 and after her death, her LRs i.e. the defendants became absolute owner of the suit property and they are in continuous actual physical possession of the suit property having absolute right, interest and title therein and no other person, except the defendants, has any concern, right, interest or title in the suit property. It is also stated that in view of the transactions on the part of Late Mohd. Saddiq, his wife Late Bashiran during her lifetime never disputed the act of Late Mohd. Saddiq and rather, she admitted that the documents were executed by Late Mohd. Saddiq in the year 1975 and she also admitted the absolute ownership of Mst. Rashida Begum and thereafter, by her LRs i.e. the defendants herein. It is also stated that the plaintiffs have no locus standi to file the present suit as even otherwise, the plaintiffs or their ancestral if required were having right to file suit for declaration or any other suit under the law during lifetime of Mst. Rashida Begum, but, as there was no cause of action, hence, no such proceedings were ever initiated by the plaintiffs for more than 35 years and at this stage, the plaintiffs want to raise baseless litigation, which as per their own allegations, is bitterly time barred.
15. Further, it is averred that the plaintiffs have not filed the proper site plan or any material information under which CS DJ No.:11303/2016 Page 11 of 35 -12- they may claim any relief from the Court and no reason for their right is even otherwise disclosed.
16. It is also stated that plaintiffs want to get share from the property which is owned by the defendants. Further, the plaintiffs have concealed that the property no.491, Ward No.10, Old No.300, Gali Bahar Wali, Chatta Lal Miyan, Tiraha Behran Khan, Daryaganj, Delhi, built on land (admeasuring approx. 170 sq. yds) is ancestral property owned by Late Bashiran and parties in question are required to get partition in the said property alongwith other ancestral properties which are owned by the parties in question but the same are being occupied or the benefit of the same is being enjoyed by the plaintiffs only and to conceal this material fact, the plaintiffs have filed the present suit so that the factual fact may not come for proper adjudication and the actual cause may be diverted and also that the present suit is filed with mala fide intention to deprive legal rights of the defendants. It is stated that the defendants shall submit appropriate documents during the course of adjudication.
17. It is further averred that the parties are joint owners of Properties No.494 (Old No. 301 to 306), Ward No.10, Chatta Lal Miya, Gali Bhar Wali, Kucha Behram Khan, Delhi and other ancestral properties which are being occupied by the plaintiffs are also to be partitioned among the plaintiffs and defendants.
18. Similarly, in parawise reply, the defendants denied the averments of the plaint and controverted same. However, CS DJ No.:11303/2016 Page 12 of 35 -13- they admitted that they are Muslim, and also that the suit property was owned by Late Mohd. Saddiq, grand father of the parties in question, and he expired on 20-06-1976.
19. It is pertinent to mention here that during pendency of the suit, the plaintiff no.7 namely Mohd. Raees had expired and vide order dated 16-7-2014, application under Order 22 Rule 3 CPC for impleading LRs namely Smt. Sajida (wife) and Master Babar (son) of deceased plaintiff no.7 and application under Order 32 Rule 1 CPC for representing minor through his mother, were allowed.
20. Further, during pendency of the suit, the defendant no.6 namely Salim had also expired on 26-07-2015 and vide order dated 29-01-2016, the application under Order 22 Rule 4 CPC moved on behalf of plaintiffs for impleading legal heirs of deceased defendant no.6, was allowed after observing that the present suit is for partition and cause of action survives against the LRs of deceased defendant no.6.
21. Vide order dated 06-8-2014, the defendants were directed not to create any third party interest in the suit property till further orders, with further direction to file photographs of the suit property from different angles within a week. Thereafter vide order dated 15-9-2014, the application under Order 39 Rule 1 & 2 CPC dated 04-7-2014 moved on behalf of plaintiff, was allowed and the defendants were restrained from raising any construction in the portion of the suit property as shown in the yellow colour in the site plan, till the disposal of the suit.
CS DJ No.:11303/2016 Page 13 of 35 -14-22. Vide order date 29-10-2014, the following issues were framed:-
(i) Whether the plaintiffs have no locus standi to file the present suit? OPD
(ii) Whether the defendants have become absolute owner of the suit property? OPD
(iii) Whether the plaintiffs have not approached this Court with clean hands? OPD
(iv) Whether the plaintiffs are entitled for a preliminary decree for partition of the suit property as claimed?
OPP
(v) Whether the plaintiffs are entitled for decree of possession of the suit property? OPP
(vi) Whether the plaintiffs are entitled for a decree for permanent injunction as prayed? OPP
(vii) Relief.
23. Vide order dated 15-01-2020, an application under Order 8 Rule 3 read with S. 151 CPC moved on behalf of defendants, was allowed and original documents, photocopies of which were already filed on record alongwith written statement, were taken on record alongwith list of documents.
24. Plaintiff evidence was led, during which, the plaintiffs examined plaintiff no.9 namely PW-1 Mr. Mustaqeem, who is also Special Attorney of all the plaintiffs, as PW1. He led his examination-in-chief by way of affidavit CS DJ No.:11303/2016 Page 14 of 35 -15- (Ex.PW1/1) and deposed in terms of the averments made in the plaint. He relied upon the following documents:-
Sr. Details of documents Exhibit
No.
1. Sit plan Ex.PW1/A
2. Death Certificate of grandfather of Ex.PW1/B
plaintiffs namely Mohd. Saddiq
3. Death certificate of grandmother Ex.PW1/C
of the plaintiffs namely Mrs.
Bashiran
4. Office copy of legal notice dated Ex.PW1/D
03-11-2010 (wrongly
mentioned as
Ex.PW-1/E in
the affidavit in
evidence)
5. Postal receipts (seven in number) Ex.PW1/D1
(Colly.)
6. Courier receipts (seven in number Ex.PW1/D2
(Colly.)
7. Photocopies of the letters dated Mark X and Mark
29-9-1976 and 26-8-1981 issued Y
by Assessment & Collection
Department, MCD.
8. Fatwas in Urdu Script obtained Mark Z & Z1
from Islamic Juris (Maulavi)
9. Translated copies of said Fatwas Mark Z2 & Z3
in English
25. On 01-8-2017, counsel for plaintiffs made
statement regarding closing of PE and consequently, PE was closed.
26. In their defence, the defendants have examined Ms. Bano D/o Late Abdul Gaffar, as DW-1 who also led evidence by way of affidavit (Ex.DW1/A) and deposed on the lines of CS DJ No.:11303/2016 Page 15 of 35 -16- averments made in the written statement. She relied upon the following documents:-
Sr. Details of documents Exhibit
No.
1. Original agreement dated Ex.DW1/1
06-01-1975
2. Receipt dated 02-02-1975 Ex.DW1/2
3. House tax receipt dated Ex.DW1/3
21-11-1989
4. Copy of notice u/s 12 Rule 8 CPC Ex.DW1/4
(objected to by the plaintiff)
5. Photographs of the suit property (9 Ex.DW1/5
in number) (Colly.)
6. Hindi version of the agreement Mark D-1
dated 06-1-1975
7. Hindi version of Receipt dated Mark D-2
02-02-1975
27. DE was closed on 03-03-2020.
28. It may be noted that on 03-03-2020, it was observed by Ld. Predecessor of this Court that Counsel of defendants seeks time to examine two more witnesses whose affidavit in evidence were already filed on record, which was strongly opposed by the counsel of plaintiffs and after hearing submissions made on behalf of both sides and going through the order dated 02-5-2017 whereby similar application of plaintiff was dismissed, DE was closed after further observing that the discretion to grant further opportunity to the defendants should not be exercised when the same was not exercised in favour of the plaintiffs in the similar circumstances.
CS DJ No.:11303/2016 Page 16 of 35 -17-29. I have heard Sh. A. R. Saddiq, Advocate for plaintiffs and Sh. Shankar Dutt Gahtori alongwith Sh. G. C. Joshi, Advocates for all the defendants. I have also gone through the records. I have also considered the written submissions filed on behalf of both the sides and the authorities cited at the Bar.
30. My issue wise findings are as under:-
ISSUE NO. 1 TO 4:
Issue no.1 - Whether the plaintiffs have no locus standi to file the present suit? OPD Issue no.2 - Whether the defendants have become absolute owner of the suit property? OPD Issue no.3 - Whether the plaintiffs have not approached this Court with clean hands? OPD Issue no.4 - Whether the plaintiffs are entitled for a preliminary decree for partition of the suit property as claimed? OPP
31. The aforesaid issues are being taken up together as they are interlinked and interconnected with each other. The burden to prove above mentioned issue nos. 1 to 3, was placed upon the defendants, whereas the burden to prove aforesaid issue no.4 was placed upon the defendants
32. In order to discharge the burden, the plaintiffs have examined only one witness.
33. While entering into witness box, PW-1 has deposed on identical lines in his affidavit in evidence (Ex.PW-1/1). He CS DJ No.:11303/2016 Page 17 of 35 -18- was cross-examined at length. In his cross-examination conducted on behalf of defendants on 17-2-2017, he testified that he did not know anything about other properties inherited by Smt. Bashiran W/o Late Sh. Mohd. Saddiq and voluntarily stated that Smt. Basiran owned only one property as per his knowledge. He admitted that he had filed a suit titled as Mustaqeem & Ors v. Fayyaz @ Faizab in respect of property no.491 (Old No. 300), Ward No.X, Gali Baharwali, Chhata Lal Miyan, Darya Ganj,Delhi and in that suit, the defendants were not made party. He denied that the said property i.e. Property No.491, was owned by his grand father namely Mohd. Saddiq. He admitted that the said suit bearing No.87/2014 was before the Court of Ms. Kadambari, the then Civil Judge-2,Delhi. In response to question whether he filed any other case in respect of the property inherited from his grand father or grand mother, he stated that no other suit except the present suit, has been filed by him with respect to the property inherited from his grand parents and voluntarily stated that the suit bearing No. 87/2014 pertains to the property which was inherited by him from his grand mother. He was not aware about the case filed by Smt. Sunehra Bi against Nisar Ahmed and Others and the same relates to the property inherited from his grand mother, Smt. Bashiran. He did not remember the case number of the suit of Smt. Sunehra Bi. He stated that the said suit was in the Court of Ms. Namrata Aggarwal, the then Additional Rent Controller, Delhi, however, he did not know the fate of the said suit.
CS DJ No.:11303/2016 Page 18 of 35 -19-34. In his further cross-examination conducted on 27-4-2017, he denied that the property bearing No.491 (Old No. 300), Ward No. X, Gali Bahar Wali, Chhatta Lal Miyan, Kucha Tiraha, Behram Khan, Darya Ganj, Delhi-110002 was the property inherited by Smt. Bashiran i.e. grand mother of the parties in the present suit. He admitted that the suit instituted by him was decided by the Court of Ms. Kadambari Awasthi, Ld. Civil Judge-2, Central District, THC, Delhi, however, he could not say if the suit number of the said suit decided by the said Court, was 87/2014. He stated that he did not remember if the said suit was decided on 24-3-2015 and voluntarily stated that the said suit is still continuing which is pending in the court room No. 354A, THC, Delhi. However, he could not tell the next date of hearing in the said case. He stated that neither of the defendants in the present case has been impleaded as parties in the said case pending in the court at Room No.354A. He denied that he had deliberately concealed the facts regarding the pendency of the other case pending in the Court at Room No. 354A, THC, Delhi so that he could take undue advantage in respect of said property bearing no.491 (Old no.300). He also denied that in capacity of attorney, he had moved an application under the Delhi Rent Control Act against Nisar Ahmed, who was a tenant in the said property no. 491 (Old No. 300).
35. In his further cross-examination conducted on 01-8-2017, he stated that he stated that he did not remember whether he had mentioned the names of all the legal heirs of his CS DJ No.:11303/2016 Page 19 of 35 -20- late grand father in the suit bearing no. 87/2014, titled as Mustaqeem & Ors v. Fayyaz & Ors. He stated that he did not make Bano and other defendants as parties in the said suit. He also denied that during lifetime of Sh. Mohd. Saddiq the suit property in question was sold out in favour of Smt. Rashida Begum subject to the documents duly executed by him on 06-1-1975 and 02-02-1975 in the presence of witnesses. He also denied the suggestion that after 06-01-1975, no other person except Smt. Rashida Begum had any concern, right, title or interest over the suit property. He stated that since the property in question was never sold out, therefore, question of raising any objection regarding the same does not arise. He also denied that since the year 1975 and till date, no other person, except the defendants, was residing or having any concern in the suit property. He also denied that the suit property was got constructed by Rashida Begum only and since 1975, only Rashida Begum and her legal heirs were having actual possession of the suit property and that after death of Smt. Rashida Begum, the defendants became absolute owner of the suit property.
36. He also deposed that he was born in the year 1980 and he did not file any suit in respect of the suit property after attaining the age of majority except the present suit. He stated that during the lifetime of Smt. Bashiran, he had raised objection in respect of possession of the defendants in the suit property but has not filed any document in respect of the same. He denied the suggestion that no such CS DJ No.:11303/2016 Page 20 of 35 -21- objection was raised at any point of time, therefore, no document is there on judicial record. He also denied that Smt. Rashida Begum was making payment of property tax in respect of the suit property and voluntarily stated that he was paying the house tax. He stated that Smt. Bashiran expired in the year 1999. He deposed that he knew Smt. Rashida Begum and stated that he does not remember the date of death of Smt. Rashida Begum but, probably, she expired prior to death of Smt. Bashiran. He stated that he could not identify the thumb impression and signature of late Saddiq (Saddiq).
37. He further stated that he did not know the person, namely Mohd. Sultan. He denied that he concealed the material facts in respect of the property bearing no. 491(Old no.300), which is ancestral property belonging to the defendants also and further concealed the fact about the other ancestral property bearing no. 494 (Old no. 301 to
306) and voluntarily stated that he did not know anything about the ownership of the said property. He had not filed any document on record to show or prove his possession over the suit property since the year 1961 till date and denied that none of the plaintiffs or his father was having any concern in the suit property at any point of time. He denied that documents relied upon by him, are forged and fabricated documents.
38. He further deposed that the he was attorney of the legal heirs of late Saddiq in suit bearing no. 87/2014 and voluntarily stated that he was not attorney of all the legal CS DJ No.:11303/2016 Page 21 of 35 -22- heirs. He had filed documents of the suit property i.e. Mark X and Y (record of Assessment and Collection record of MCD in respect of property tax of the suit property) and admitted that no other document was filed to show the ownership. He denied that they are forged and fabricated.
39. PW1 also denied that notice (Ex.PW-1/G) was never served or sent to the defendants. He stated that he never received the notice dated 23-7-2016 under Order 12 Rule 8 CPC at any point of time and denied that he is concealing the fact regarding service of said notice, which was marked as Mark A, and documents mentioned in the said notice. He did not know anything about the property bearing no. 494 near Delite Cinema, Delhi and hence, the question of selling any portion thereof did not arise. He did not know any tenant namely, Nisar Ahmed who was residing in property no.410. He stated that Nisar was a tenant in property bearing no.491.
40. In order to discharge their burden, the defendants have also examined only one witness i.e. DW1 Smt. Bano.
41. While entering into witness box, the defendant no.1 as DW-1 has deposed on identical lines of her affidavit in evidence (Ex.DW-1/A). She was also cross-examined at length.
42. In her cross-examination, DW1 admitted that prior to death of her grand father, her father had expired but her mother was alive. She stated that at the time of death of her grand father, she was around 8 to 10 years old. She stated that her CS DJ No.:11303/2016 Page 22 of 35 -23- father was running business of selling the meat at his shop and her father's family was comprising of his wife and seven children. She stated that her grand father was also doing business of meat shop and used to bring the material from Kabela (slaughter house) but prior to his death, he left his work. She stated that late Abdul Sattar, father of the plaintiff, was her uncle, however, she denied that he had been residing in the suit property during the lifetime of her grand father. She did not know when and where the marriage ceremony of her grand father with Khadija was held. She denied that the marriage ceremony of her uncle, namely, Abdul Sattar (father of the plaintiffs) was held in the suit property. She admitted that part of the suit property was lying vacant and same was in dilapidated condition and voluntarily stated that the entire suit property was in dilapidated condition. She did not know as to when and where the stamp paper containing the agreement (Ex.DW1/1) was purchased. She stated that the stamp paper was written by the writer but she did not remember his name. However, she denied that the said agreement was not prepared in her presence nor signed by any person, therefore, she did not know his name and that the said agreement is forged and fabricated document. She also denied that the stamp paper pertaining to said agreement (Ex.DW1/1), was also not purchased in the year 1975 as written on it and endorsement on the back side of the stamp paper, is also forged and fabricated. She also denied that the document (Ex.DW1/1) was an after thought and was got prepared in her defence after service of summons CS DJ No.:11303/2016 Page 23 of 35 -24- of the present suit. She stated that except the house tax receipt (Ex.DW1/3), she has no document to prove that the name of her mother has been incorporated in the official MCD record.
43. She stated that she is illiterate and cannot read and write any document. She knew Sh. Sameer who is the son of her uncle Late Abdul Sattar. She stated that she cannot read the contents of Ex.DW1/1 as she is illiterate, however, stated that the said document was got prepared in the suit property in the presence of her grand mother as well as Ayub and Siraj Ahmed and other family members, who are not her relatives. She denied the suggestion that the said document was not got prepared in the presence of aforesaid persons. She also denied that financial condition of her father was not sufficient so as to purchase the suit property. She could not tell the date, month, year and day of preparation of the document (Ex.DW1/1) and denied that she did not remember the said date because the said document was never prepared in her presence and same is forged and fabricated. She stated that her grand father and her mother did not visit the court or any office to prepare the document (Ex.DW1/1) as the same was got prepared in her house. She feigned ignorance whether her grand father had any bank account or that he was paying any house tax of the suit property. She neither admitted nor denied if the property is still in the name of her grand father and voluntarily stated that her mother had paid the house tax. She denied that house tax was paid only once by her CS DJ No.:11303/2016 Page 24 of 35 -25- mother and voluntarily stated that her mother paid house tax several times. She denied that house tax was being paid till date by her cousin Sameer Qureshi, son of late Sh. Abdul Sattar and that name of his grand father was still in the record of MCD and that the suit property was never sold by her grand father to her mother at any point of time and that she had filed incorrect site plan with respect to the suit property.
44. After referring to the case of the plaintiffs as mentioned in the plaint and evidences led by the parties during the course of trial, counsel of plaintiffs vehemently argued that Mohd. Saddiq was absolute and exclusive owner of the suit property bearing bearing no.7559,comprising of Ground Floor and First Floor situated near Badi Masjid, Quresh Nagar, Sadar Bazar, Delhi-110006 and since he died intestate on 20-06-1976, the suit property devolved upon the plaintiffs and the defendants in the manner as stated in para no.11 of the amended plaint, since parties to the suit are governed by Muslim Hanafi Law of Shariat. He also pointed out that portion as shown in Red colour in the site plan is a constructed portion of the suit property and the portion as shown in Yellow colour thereof is demolished portion lying vacant. He further argued that the said Yellow portion was previously under use and occupation of Sh. Abdul Sattar, who is predecessor-in- interest of the plaintiffs. He further argued that Sh. Abdul Gaffar, who was predecessor in interest of the defendants, had pre-deceased Mohd. Saddiq, and left behind 4 CS DJ No.:11303/2016 Page 25 of 35 -26- daughters and 3 sons. He further submitted that Mst. Bashiran, who was grand mother of the parties to the suit, also died on 06-12-1999. It was also pointed out that Mohd. Saddiq had no daughter. Ld. Counsel of plaintiffs further argued that the defence raised by the defendants that Sh. Mohd. Saddiq had sold the suit property to Smt. Rashida Begum during his lifetime remained unsubstantiated and therefore, preliminary decree thereby determining the share of the parties to the suit, may be passed by the Court. It was also pointed out that the suit property was assessed in the name of Mohd. Saddiq, who was the original owner of the suit property, in the house tax department of MCD, for which reliance has been placed upon copies of letters dated 29-9-1976 and 26-8-1981 (Mark X and Y), issued by Assessment & Collection Department, MCD. He, therefore, urged that the Court may pass preliminary decree in this case.
45. In support of the aforesaid submissions, Ld. Counsel of plaintiffs also placed reliance upon the following two judgments passed by our own Hon'ble High Court :-
(i) "Narender Nath v. Krishna Gupta & Ors" reported as 2017(3) CLJ 409 Del.
(ii) "Mrigendra Pritam Vimkram Singh Steiner & ORs.
v. Jaswinder Singh & ORs" reported as 2011 I AD (Delhi) 65
46. Per contra, Ld. Counsel of defendants vehemently argued that the plaintiffs have failed to prove their case even on the basis of preponderance of probability and therefore, the CS DJ No.:11303/2016 Page 26 of 35 -27- present suit is liable to be dismissed. He argued that Mohd. Saddiq had sold the suit property in favour of Smt. Rashida Begum i.e. mother/predecessor-in-interest of the defendants vide Agreement dated 06-1-1975, on the basis of which, Smt. Rashida Begum had become absolute owner thereof and therefore, the plaintiffs have no right, title or interest whatsoever in the suit property and are not entitled to seek its partition by way of present suit. Further, it was submitted that the suit property was also mutated in the name of Smt. Rashida Begum in the record of MCD and after her death, the suit property has been devolved upon defendants as per Muslim Hanafi Law of Shariat. For the said purpose, counsel of the defendants also referred to the relevant portions of the testimony of the DW1 Smt. Bano and relied upon documents i.e. Agreement dated 06-01-1975 and receipt dated 02-02-1975, purportedly issued by Mohd. Saddiq in favour of Smt. Rashida Begum concerning the suit property and also House tax receipt dated 21-11-1989. Ld. Counsel of defendants also argued that limitation for filing a suit for partition, as per Muslim Law, is 12 years from the death of actual owner but the present suit has been filed by plaintiffs after 36 years of death of Mohd. Saddiq and therefore, the present suit is liable to be dismissed being barred by Muslim Law. Based on these submissions, he urged that the suit of the plaintiffs be dismissed.
47. In support of his aforesaid submissions, counsel of the defendants also placed reliance upon unreported judgment CS DJ No.:11303/2016 Page 27 of 35 -28- passed by Hon'ble Bombay High Court in the case titled as "Mubarakunnis Mohammed Naseem v. Moinuddin Mohd. Usman Khan" decided on 01-4-2009, however, other particulars such as Suit/Appeal number etc., are not found mentioned in the copy of judgment filed by defendants.
48. Before considering the rival submissions advanced on behalf of both sides on merits, it is necessary to ascertain as to whether or not Mohd. Saddiq is shown to be sole and absolute owner of the suit property of which partition is being sought by way of present suit. Reason is very obvious that in case it is not proved on record by parties to the suit that the person, through whom they are claiming to have acquired their right, title or interest in the suit property, did not have any ownership right, then obviously necessary consequence thereof would be that they are not entitled to any such decree of partition in respect of any such immovable property. Although parties to the present suit have not disputed the fact that their predecessor-in- interest namely Mohd. Saddiq (their grand father) was owner of the suit property but none of the parties has been able to establish this fact even on the basis of preponderance of probability during the course of trial. Mere bald assertion made on behalf of both sides in this regard, would not be suffice so as to enable this Court to entertain their plea of partition or to pass any preliminary decree by determining their shares in respect of such an immovable property.
CS DJ No.:11303/2016 Page 28 of 35 -29-49. In the aforesaid backdrop, evidence led by the parties, as already discussed in the preceding paragraphs, needs to be appreciated by the Court. As already noted above, both the sides have examined one witness each i.e. PW1 Sh. Mustaqeem and DW1 namely Ms. Bano, during trial.
50. Apart from one site plan, copies of death certificates of Mohd. Saddiq and Mst. Bashiran, office copy of legal notice dated 03-11-2010, its postal receipts and courier receipts, PW1 has relied upon photocopies of two letters dated 29-9-1976 and 26-8-1981 purportedly issued by Assessment & Collection Department, MCD. Same have been marked as Mark X and Y respectively. Apart from this, he also relied upon two Fatwas in Urdu Script purportedly issued by Islamic Juris (Maulavi) and their translated copies in English language. Same are marked as Mark Z to Mark Z3 respectively. Pertinently, the plaintiffs preferred not to summon relevant record from the office of House Tax Department of MCD for proving these two letters dated 29-9-1976 and 26-8-1981 (Mark X and Mark Y). Likewise, they have also failed to examine concerned Maulavi having issued both the said Fatwas (Mark Z to Z1) during the course of their evidence for the reasons best known to them. Having failed to do so, the inevitable conclusion which follows is that all these documents (which are marked as Mark X, Mark Y, Mark Z and Mark Z1), could not be proved in accordance with law of evidence, and as such, they cannot be considered or read in evidence by the Court in their favour. Besides, all these CS DJ No.:11303/2016 Page 29 of 35 -30- documents are suggested to be forged and fabricated documents from the side of defendants during the cross-examination of the PW1. The main emphasis of defendants during the cross-examination of PW1, remained on the factum of Mohd. Saddiq having transferred the suit property in favour of Smt. Rashida Begum by virtue of agreement dated 06-01-1975 and receipt dated 02-02-1975, as also about other ancestral properties bearing no. 491 and 494, Ward No.X, Gali Baharwali, Chhata Lal Miyan, Darya Ganj, Delhi.
51. Now, let me examine the documents placed on record from the side of defendants during the testimony of DW1 Ms. Bano. As already mentioned above, DW1 has solely relied upon one original agreement dated 06-01-1975 (Ex.DW1/1) and its Hindi translated copy (Mark D1), receipt dated 2-2-1975 and its Hindi translated copy (Mark D2) and one house tax receipt dated 21-11-1989 (Ex.DW1/3). Although, DW1 also relied upon copy of notice u/o 12 Rule 8 CPC but no proof regarding service of said notice upon plaintiffs, has been placed or proved during the course of evidence, without which no adverse inference, in the opinion of this Court, can be drawn against the plaintiffs. Moreover, in the said notice, the defendants have called upon plaintiffs no.9 namely Mr. Mustaqeem to produce relevant documents concerning the suit property no.491 Ward No.X, Gali Baharwali, Chhata Lal Miyan, Darya Ganj, Delhi, which is undisputably not the suit property involved in the present CS DJ No.:11303/2016 Page 30 of 35 -31- suit. For this reason also, the said notice is of no relevance so far as the adjudication of controversy involved in the present suit is concerned. Again, Ex.DW1/3 i.e. house tax receipt dated 21-11-1989 is purportedly shown to have been issued in the name of Smt. Rashida Begum who was mother/predecessor-in-interest of the defendants herein but merely on the basis of said house tax receipt,Court cannot arrive at the conclusion that Mohd. Saddiq was sole and exclusive owner of the suit property and after his death, the suit property devolved upon his legal heirs by virtue of law of inheritance.
52. At this juncture, it is also important to highlight that while hearing the final arguments, this fact was duly taken note of by the Court and parties to the present suit were given sufficient time and opportunity to file relevant title documents concerning the suit property showing that it was owned by Mohd. Saddiq, as has been claimed in the pleadings of the suit. Despite that, none of the parties has been able to produce the title documents concerning the suit property in favour of Mohd. Saddiq or in the name of any other person. That being so and in the light of evidence which is available on record, as already discussed above, the Court is of the view that parties to the suit have miserably failed to establish the factum of ownership of Mohd. Saddiq concerning the suit property even on the basis of preponderance of probabilities.
53. At this juncture, it is useful to mention here that as per law of the partition, the partition essentially means putting an CS DJ No.:11303/2016 Page 31 of 35 -32- end to joint ownership to be effected by destruction of the unities, i.e. unity of ownership and unity of possession. It covers both, viz. division of title and division of possession. It is a kind of mixture of surrender and conveyance of rights in the property. Thus, grant of preliminary decree by determining the shares of the concerned parties to the suit for partition in respect of an immovable property, presupposes the existence of ownership right in favour of the person(s) through whom parties to such suit, are claiming their inheritance.
54. Ld. Counsel of plaintiffs made feeble attempt to argue that any person need not always be owner of an immovable property on the basis of title documents and he / she may also be ostensible owner or having acquired ownership on the basis of possessery rights and therefore, the plaintiffs and the defendants despite not filing titled documents of the suit property on record, are still entitled to the decree of partition under the law. No doubt, a person may acquire ownership based on possessery rights and he may also have the status of ostensible owner but both the said expressions connotes entirely different meaning and operate differently from the term 'ownership' based on title documents. In the case in hand, the plaintiffs or even the defendants nowhere claimed or pleaded the ownership of Mohd. Saddiq in respect of suit property on the basis of possessery rights and never pleaded that he was ostensible owner of the suit property. The evidence led on behalf of both the sides, is also found to be silent in this regard. That CS DJ No.:11303/2016 Page 32 of 35 -33- being so, neither the plaintiffs nor the defendants can be allowed to depart from their specific stands as taken in the pleadings available on record.
55. The judgment in the case of Narender Nath (supra) as relied on behalf of plaintiffs, and the only judgment relied by defendants in the case of Mubarakunnis Mohammed Naseem (supra), deal with law of limitation for filing a suit for partition in case of joint family property or jointly owned properties, whereas the other judgment in the case of Mrigendra Pritam Vikram Singh Steiner & Ors. (supra) again relied by plaintiffs, deals with the rejection of plaint in terms of Order VII Rule 11 CPC. Both the said judgments are therefore, not of any help to the case of the plaintiffs as the issue of limitation is not being considered as the case is at final stage after evidence is already led by both the sides, due to which, stage of Order VII Rule 11 CPC is already over. Lastly, counsel of plaintiffs placed reliance upon recent judgment of Hon'ble Supreme Court of India in the case titled as "Trinity Infraventures Ltd. and Others v. M. S. Murthy and Others" reported as 2023 SCC OnLine SC 738, in order to buttress his submission that Civil Court cannot go into the question of title in a suit for partition. This submission made on behalf of plaintiffs and the reliance placed by them on the aforesaid judgment, are misplaced and misconceived. In the referred judgment, few persons obstructed or resisted the execution of part decree for possession after preliminary decree was passed by Hon'ble High Court in suit for partition. In this backdrop, CS DJ No.:11303/2016 Page 33 of 35 -34- the Hon'ble Apex Court has observed in para no.113 of the judgment, on which emphasis has been put by the counsel of the plaintiffs, as under:-
"113. In the case on hand, the obstructionists do not claim title under any of the parties to the litigation. They set up independent title in themselves. What was filed by Dildar-Un- Nissa Begum was only a suit for partition. In a suit for partition, the Civil Court cannot go into the question of title, unless the same is incidental to the fundamental premise of the claim"
56. Same is further cleared from the relevant observations appearing in para no.115 of the same judgment, whereby it has been observed that in a simple suit for partition, parties cannot assert title against strangers and also that when the strangers are impleaded in partition suit, they may have nothing to say about the claim to partition but they may have claim to title to the property and such a claim cannot be decided in a partition suit. Hence, the said judgment is also of no help to the case of plaintiffs.
57. In the absence thereof, it is not open for the plaintiffs or the defendants to seek partition thereof from the court of law. Hence, Court is of the considered view that no decree of partition can be passed in favour of either of the parties for this reason. Issues nos. 1 to 4 stand decided in these terms.
ISSUE NO.5 AND 6:
Issue no.5 - Whether the plaintiffs are entitled for decree of possession of the suit property? OPP Issue no.6 - Whether the plaintiffs are entitled for a decree for permanent injunction as prayed? OPP CS DJ No.:11303/2016 Page 34 of 35 -35-
58. The onus to prove above said issues was placed upon the plaintiffs. In view of the findings on issues nos. 1 to 4, it is held that the plaintiffs are not entitled to decree of possession and permanent injunction, as prayed for. Hence, both these issues are decided against the plaintiffs.
RELIEF:
59. In view of the findings rendered on issue nos.1 to 6, the present suit deserves dismissal and is hereby dismissed accordingly. However, there shall be no order as to cost.
60. Decree sheet shall be drawn up accordingly.
61. File be consigned to record room, after due compliance. Announced in the open Court On 24th Day of November, 2023 (VIDYA PRAKASH) ADDL. DISTRICT JUDGE-09 CENTRAL/THC/DELHI CS DJ No.:11303/2016 Page 35 of 35