Delhi District Court
Nitin Khandelwal vs S.K Maheshwari on 21 December, 2018
IN THE COURT OF DR. HARDEEP KAUR, ADDITIONAL DISTRICT
JUDGE2, DISTT. SHAHDARA, KARKARDOOMA COURTS,
DELHI.
(New Civil Suit No.:2241/16)
(Old No.: 212/2010)
1.Nitin Khandelwal
2. Mayur Khandelwal
3. Shakuntala Devi W/o Sunil Khandelwal All R/o D6, Gali No.8, Jyoti Colony, Shahdara, Delhi 110032 ............ Plaintiffs.
VERSUS
1. S.K Maheshwari S/o Beni Parshad, R/o House No. 1449/210 Old No. 210, Durgapuri Shahdara, Delhi 110032
2. Mahender Kumar Maheswari (Through LRs) S/o Beni Parshad R/o House no. 3157, Lal Darwaja, Sita Ram Bazar, Chandani Chownk, Delhi 110006
3. Rajender Kumar Maheshwari (Through LRs) S/o Beni Parshad, R/o 1449/211, Durga Puri, Loni Road, Shahdara, Delhi 110032
4. Pushpa Kumari W/o K.C Gupta R/o Krishna Medical Hall, CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 1 Bilsi, Dist. Badayun, U.P
5. Kusum Inani W/o Sh. S.P Inani R/o 202, Yash Apartment, 8/2C, New Palasia, Indor, M.P
6. Sushma Aggarwal W/o Late Girish Babu Aggarwal R/o Holi Chauraha, House No. 110, Pilibhit, U.P ........... Defendants.
Date of Institution of present suit :08.02.2010 Date of receiving in this Court : 11.07.2016 Date of Preliminary Decree : 21.12.2018 [SUIT FOR PARTITION AND POSSESSION]
1. Plaintiff has filed the present suit for partition and possession against the defendants.
2. Brief facts as culminated from the plaint is that property bearing no. 1449/210, Old No. 210, Durgapuri , Delhi 110032 was owned by Sheelwati W/o Sh. Beni Parshad R/o 3157, Lal Darwaja, Seetaram Bazaar, Delhi 110006 vide sale deed dated 15.05.1971 duly registered with Sub Registrar IV bearing registration no. 8427, book no. 1, volume no. 381 from page 136 to 137. Smt. Sheelwati left for heavenly abode on 16031983 leaving behind following legal heirs: (A) Smt Pushpa Kumari (Daughter) CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors.
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(B) Smt. Kusum Inani (Daughter)
(C) Smt. Sushma Aggarwal (Daughter) (D) Sh. M.K. Maheshwari (Son) (E) Sh. S.K. Maheshwari (Son) (F) Sh. Rajender Kumar Maheshwari (Son) At the time of death of Smt. Sheelwati. Sh. M.K Maheshwari, S.K. Maheshwari and Rajender Kumar Maheshwari were in possession of the suit property and had been using specific portions therein individually. Smt Pushpa Kumari, Smt. Kusum Inani, Smt. Sushma Aggarwal released their shares in respect of the suit property in favour of Sh. M.K Maheshwari vide registered Relinquishment Deed as number 4064 in additional book no.1, volume no. 204 on pages 71 to 75 dated 882006 in the office of Sub Registrar IVA. Sh. Rajender Maheshwari vide a family settlement deed dated 16620074 transferred his share in respect of the suit property along with possession in favour of Sh. M.K Maheshwari.
Sh. M.K. Maheshwari out of his total 5/6 th share sold 2/6th undivided share along with possession to plaintiff no 1 & plaintiff no.2 vide sale deed dated 14052008, rectified vide rectification deed dated 25072008.
Sh. M.K. Maheshwari similarly sold 3/6th share to plaintiff no.3 along with possession in two parts i.e 2/6th CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 3 share vide sale deed dated 14052008, rectified vide rectification deed dated 25072008 and 1/6th share vide sale deed dated 30102009. The copy of the sale deed and rectification deed dated 2572008 along with the site plan showing the possession handed over to the plaintiff no.3 and the copy of sale deed dated 30102009 are annexed herewith. Plaintiff no.1&2 are sons of plaintiff no.3. Plaintiff no.1 & 2 are owners of 2/6th share in property bearing no. 1449/210, Old No.210, Durgapuri, Delhi 110032. Plaintiff no.3 is owner of 3/6th share in property bearing no. 1449/210, Old No.210, Durgapuri, Delhi 110032. The Plaintiff no 1, 2 & 3 are in settled actual physical possession of the aforesaid property Defendant no. 1 had knowledge that the plaintiff no. 1, 2 & 3 have purchased shares in the suit property from the other legal heirs of Late Smt. Sheelwati along with the possession in the suit property and at no point of time defendant no. 1 has raised any objection transferring of possession to the plaintiffs in the suit property.
The plaintiffs several time requested the defendant no.1 to partition the property bearing no. 1449/210, Old No. 210, Durgapuri, Delhi 110032 in accordance to the shares coming to each of the co owners, but the defendant no.1 deliberately neglected the CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 4 requests of the plaintiffs and as such the plaintiffs served upon the defendant no. 1 a legal notice dated 2632009 calling upon the defendant no. 1 to partition the aforesaid property mutually and amicably. The defendant no.1 neither replied the notice nor complied the same.
Defendant no. 2 to 6 have been impleaded as performa defendants just to avoid any legal technicalities despite the fact that the said performa defendants have already released their respective shares by way of relinquishment to the other share holder or by way of sale to the plaintiff.
3. Defendant no. 1 contested the suit by filing his written statement on 20.09.2014. It is stated in the written statement that the present suit of the plaintiffs is not maintainable in the present form as the defendant no. 2 has illegally transferred the right and title in house no. 1449/210 (old no. 210), Durga Puri, Shahdara, Delhi in favour of the plaintiffs respectively by way of executing illegal sale deed dated 14.05.2008 of measuring area 83.61 sq. mtr./100 sq. yds in favour of the plaintiff no. 1 and 2; there was no dispute in the title of the property as per contents of para 6 of the sale deed executed in favour of plaintiffs respectively on 14.05.2008 for the measuring area of 100 sq.yds. The defendant no. 2 has sold the measuring area of 200 sq. yds through aforesaid two sale deeds on CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 5 14.05.2008 in favour of the plaintiff no. 1, 2 and 3 respectively and totally ignored the share of the defendant no. 1 who is the equal shareholder in the property left behind by the deceased mother.
It is further stated that the transfer of the disputed property in favour of the plaintiffs by the defendant no. 2 is without right, title and possession and against the provisions u/s 5 of Transfer of Property Act.
The present transfer through the alleged two sale deeds also illegal as per provision under Section 4 of the law of partition and the defendant no.1 was always willing to purchase the share of the other defendants and was ready to pay the consideration amount, but the defendant no. 2 never asked the defendant no. 1 for the alleged execution of the sale deed in favour of the plaintiffs and the defendant no. 1 only came to know about the execution of the sale deeds, its rectification only after the due service of the present suit on 02.03.2010 and surprised that the entire act of the defendant no. 2 for the transfer of the disputed property in favour of the plaintiffs are totally illegal without any right and title to transfer the same and hence the present suit is liable to be dismissed.
The present suit is not properly valued for the purpose of Court fees and jurisdiction and thereby the plaintiffs are legally liable to pay the ad volerum court fees CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 6 as they are not in possession of the green portion as falsely alleged by them in the present suit.
4. Plaintiff filed replication to the written statement wherein plaintiff denied the contents of written statement and reiterated the averments made in plaint.
5. Following issues were framed by this Court of Delhi on 12.04.2017 :
1. Whether plaintiff is entitled for decree of partition as claimed?OPP
2. Relief
6. Plaintiff no. 2 Sh. Mayur Khandelwal examined himnself as PW 1 on 13.07.2017 and he tendered his evidence by way of affidavit (Ex. PW 1/A) and relied upon the following documents :
1. Certified copy of sale deed dated15.05.1971 as EX PW 1/1
2. Copy of relinquishment deed dated 08.08.2006 as EX PW 1/2 (OSR)
3. Copy of sale deed dated 14.05.2008 as EX PW 1/3 (OSR)
4. Copy of rectification deed dated 25.07.2008 as EX PW 1/4 (OSR)
5. Copy of sale deed dated 14.05.2008 as EX PW 1/5 (OSR)
6. Copy of rectification deed 25.07.2008 as EX PW 1/6 (OSR)
7. Copy of sale deed dated 30.10.2009 as EX PW 1/7 (OSR)
8. Legal notice dated 26.05.2009 as EX PW 1/9
9. Registered post receipt as EX PW 1/10
10. Certificate of posting as EX PW 1/11 However, none was appeared on behalf of CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors.
Page 7 defendants on 13.07.2017, hence cross examination of PW 1 was deferred for the next date of hearing and last and final opportunity was given to the defendants to cross examine PW1.
Since none has appeared on behalf of defendants thereafter, defendants were proceeded ex parte vide order dated 23.01.2018. Thereafter, vide separate statement of plaintiff no. 2 plaintiff evidence was closed on 14.08.2018.
7. This court has heard the arguments of Ld. Counsel for plaintiff and perused the material available on record.
8. Perusal of the record shows that plaintiff no. 2/ PW1 in his affidavit by way of evidence (Ex.PW 1/A) deposed that property bearing no. 1449/210 Old No. 210 Durgapuri Delhi32 was owned by Late Smt Sheelwati W/o Sh. Beni Parshad R/o 3157, Lal Darwaja, Seetaram Bazaar, Delhi 110006 vide registered sale deed dated 15.05.1971 (EX PW 1/1) He further deposed that at the time of death of Smt. Sheelwati. Sh. M.K Maheshwari, S.K. Maheshwari and Rajender Kumar Maheshwari were in possession of the suit property and had been using specific portions therein individually. Smt Pushpa Kumari, Smt. Kusum Inani, Smt. Sushma Aggarwal released their shares in respect of the CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 8 suit property in favour of Sh. M.K Maheshwari vide registered Relinquishment Deed dated 882006 (EX PW 1/2) He has further deposed that Sh. Rajender Maheshwari vide a family settlement deed dated 166 2007 transferred his share in respect of the suit property along with possession in favour of Sh. M.K Maheshwari. Sh. M.K. Maheshwari out of his total 5/6th share sold 2/6th undivided share along with possession to plaintiff no 1 & plaintiff no.2 vide sale deed dated 14052008, rectified vide rectification deed dated 25072008 and sold 3/6th share to plaintiff no.3 along with possession in two parts i.e 2/6th share vide sale deed dated 14052008, rectified vide rectification deed dated 25072008 (EX PW 1/3 :& EX PW 1/4) and 1/6th share vide sale deed dated 30102009 (EX PW 1/7).
He further deposed that plaintiff no.1 & 2 are the owners of 2/6th share in the suit property and plaintiff no.3 is owner of 3/6th share in suit property (EX 1/5 & EX PW 1/6) Furthermore, the defendants have failed to cross examine PW1, thus, testimony of plaintiff remained unassailed and unrebutted. Hence, no reason to disbelieve the case of the plaintiffs, more so when it is also supported by the documentary evidence on record.
CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 9 Accordingly, the plaintiffs are entitled to the relief prayed for.
A preliminary decree of partition is passed declaring that the plaintiff no. 1 & 2 have 2/ 6 th share and plaintiff no. 3 has 3/6th share and defendant no. 1 is having 1/6th share in the suit property bearing no. 1449/210 Old No. 210 Durgapuri Delhi32. Decree sheet be drawn up accordingly.
9. List on 23.01.2019 for directions with regard to mode of partition and appointment of Local Commissioner in respect thereof.
Dr. Hardeep Kaur) DJ02(SHD)/KKD/Delhi 21.12.2018 (Typed to the dictation directly, corrected and pronounced in the open court on 21.12.2018) (This judgment contains ten pages) Digitally signed by HARDEEP HARDEEP KAUR KAUR Date:
2018.12.24 17:04:02 +0530 CS- 2241/16 Nitin Khandelwal & Ors vs S.K Maheshwari & Ors. Page 10