Delhi District Court
Smt. Jai Shree vs Sh. Surender Kumar on 24 December, 2014
IN THE COURT OF ANURAG SAIN, ADJ03 (EAST),
KARKARDOOMA COURTS, DELHI
C.S. No.: 370/14
Unique Case ID No. 02402C0180352009
Smt. Jai Shree
W/o Late Sh. Aetram
R/o H. No.383/14,
East Azad Nagar,
Gali No.17, Delhi51
.........Plaintiff
Versus
1. Sh. Surender Kumar
2. Sh. Ramesh Kumar
3. Sh. Naresh Kumar
4. Sh. Narender Kumar
5. Sh. Anil Kumar
All S/o Late Aetram
R/o 383/14, East Azad Nagar,
Gali No.17, Delhi51.
.......Defendants
Date of institution : 12.06.2009
Date of reserving judgment : 28.11.2014
Date of pronouncement : 24.12.2014
C.S. No.: 370/14 Page 1 of 20
JUDGMENT
1. The present suit for partition and permanent injunction has been filed by the plaintiff against the defendants.
2. Briefly stated the facts of the case are that:
(a) The plaintiff is the mother of all the defendants. The husband of the plaintiff as well as the father of the defendants late Sh. Aetram was the owner of the property bearing Old Khasra No.634, min situated in Mohalla Dalai, Area of Village Chandrawali, Delhi measuring 200 sq. yds. approximately presently known as 383/14, East Azad Nagar, Gali No.17, Delhi51 which was his self acquired property. The husband of the plaintiff expired on 18.12.1996 intestate leaving behind the plaintiff and the defendants. The plaintiff as well as all the defendants are the coowners of the property mentioned above as well as shown in the site plan.
(b) At present the defendants are living without any partition in the portion indicated in the site plan and the plaintiff is also residing with defendant Sh. Naresh Kumar but now defendant Sh. Naresh Kumar is trying C.S. No.: 370/14 Page 2 of 20 to dispossess the plaintiff from the suit property.
(c) The plaintiff in the month of February 2008, on 15.06.2008 and also on 12.07.2008 requested the defendants to make the partition of the suit property and to give her share in the suit property but the defendants threatened to dispossess the plaintiff from the suit property and also flatly refused to make the partition of the suit property and to give her share. The defendants are jointly trying to dispossess the plaintiff from the suit property including defendant Sh. Naresh Kumar.
(d) None of the defendants are making any arrangement for daily expenses of the plaintiff although all the defendants are liable for making the maintenance to the plaintiff, being her son but despite the same, the defendants are not fulfilling their liabilities as per the law. The suit property was almost constructed by late Sh. Aetram and after his death, the repair if any etc. and minor construction in the suit property, is raised by any of the defendants then the plaintiff has also spent money for the same. The property in question is undivided C.S. No.: 370/14 Page 3 of 20 which is to be partitioned amongst the plaintiff and the defendants. Even threats of dire consequences are being given by the defendants to the plaintiff on raising issue of partition of the suit property and the defendants have also disclosed that they have prepared some documents in their favour and now the plaintiff cannot claim any share in the suit property. The plaintiff is entitled for 1/6th share in the suit property being one of the LRs of late Sh. Aetram.
(e) On these premise, the plaintiff has filed the present suit for partition and permanent injunction against the defendants.
3. Written statement was filed by defendant no.1 wherein he has taken preliminary objections such as the plaintiff has suppressed the material facts from this court; The plaintiff has filed the present suit with ulterior motives at the instigation and in collusion with defendant namely Naresh Kumar in order to harass the remaining defendants and the plaintiff is playing as puppet in the hands of defendant no.3; The plaintiff has filed the present suit without any cause of action as the suit property C.S. No.: 370/14 Page 4 of 20 was already verbally partitioned by the father of the defendants during his life time and handed over the possession of their respective portions to which all the defendants and even the plaintiff herself are enjoying till date and have raised more construction in their respective portions by spending huge amount and defendant no.1 has deposited the house tax also of his already partitioned portion in his exclusive possession in the house tax department; The present suit has been filed by the plaintiff in collusion with defendants no.2 to 5 and specially with defendant no.3 in order to harass and cause financial loss to defendant no.1 as defendant no.1 earlier filed a civil suit no. 175/2008 for declaration, permanent and mandatory injunctions against the rest of the defendants which was compromised on 07.05.2008; This court has no jurisdiction to entertain and try the present suit as the market value of the suit property is Rs. 1,50,00,000/.
4. On merits, it has been averred that the suit property was already partitioned by the father of the defendants and the husband of the plaintiff during his life time and a Bathak (front room) in the front portion of the property which was in possession and C.S. No.: 370/14 Page 5 of 20 use of the father and mother, is still in the possession of the defendants till date and the plaintiff is in physical peaceful possession of the said Baithak with use of common latrine and bathroom but now the bathroom has been converted into latrine by defendant no.3 which has caused inconvenience to the plaintiff. It has been further averred that the portion in possession of the plaintiff as well as the portion in possession of defendant no.3 has not been shown in the site plan filed by the plaintiff. It has been further averred that the defendants have raised construction on their respective portions as per their choices and requirements and the answering defendant himself as incurred about Rs.9,00,000/ on his divided/partitioned portion and still furnishing work is in progress. It has been further averred that the suit property is liable to be partitioned by meets and bounds but after the exclusions of the amount incurred by defendant no.1 on the construction in the portion in his possession and defendant no.1 is entitled for 1/6th share in the suit property being LR of late Aet Ram. Rest of the contents of the plaint have been denied by defendant no.1 in his written statement.
C.S. No.: 370/14 Page 6 of 20
5. Written statement was also filed by defendants no.2 to 5 wherein they have taken preliminary objections such as the plaintiff has suppressed the material facts and the present suit is without any cause of action. On merits, it has been averred that defendants no.2 to 5 are ready for the partition of the suit property being LRs of Aetram but in fact, it is defendant no.1 who does not want the partition of the suit property due to malafide intention. Rest of the contents of the plaint have been denied by defendants no.2 to 5 in the written statement.
6. My learned Predecessor, by order dated 24.08.2011 framed following issues: (1) Whether the plaintiff is entitled to the decree of partition? OPP (2) Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP (3) Whether the suit of the plaintiff is not maintainable? OPD (4) Whether the plaintiff has not affixed the requisite court fees on the plaint? OPD (5) Whether the suit of the plaintiff is without any cause of action? OPD (6) Whether the value of the suit property is 1.50 crore? OPD (7) Relief C.S. No.: 370/14 Page 7 of 20
7. In order to prove her case, the plaintiff examined herself as PW1. She has tendered her examination in chief by way of affidavit Ex. PW1/1 which is on the line of the averments mentioned in the plaint. PW1 has also relied upon document i.e. site plan of the suit property Ex. PW1/A. This witness was crossed examined on behalf of the defendants and the plaintiff closed her evidence on 26.07.2012.
8. To rebut the case of the plaintiff, defendant no.4 namely Narender Kumar examined himself as DW1 who tendered his examination in chief by way of affidavit Ex. DW1/1. He also relied upon document i.e. photocopy of the Sale Deed dated 20.02.1964 as Ex. DW1/A (OSR). This witness was cross examined by the ld. counsel for the plaintiff.
9. Defendant no.1 namely Sh. Surender Kumar examined himself as DW2 who tendered his examination in chief by way of affidavit Ex. DW2/A. This witness was also cross examined by the ld. counsel for the plaintiff. Thereafter, on the submission of ld. counsel for defendant no.1 and defendant no.1 is no more desirous to lead any evidence and vide separate statement made by ld. counsel for defendants no.2 to 5 on 31.05.2013, DE was C.S. No.: 370/14 Page 8 of 20 closed on 31.05.2013.
10.Thereafter, the plaintiff moved an application under Order 6 Rule 17 CPC on 09.10.2013 for amendment in the plaint regarding the description of the property. Defendants no.2 to 5 submitted that they have no objection in case the application under Order 6 Rule 17 CPC is allowed however defendant no.1 filed reply to the same on 31.10.2013. During the course of arguments, on the application under Order 6 Rule 17 CPC, counsel for defendant no.1 submitted that let the application under Order 6 Rule 17 CPC filed by the plaintiff be allowed. Considering the facts of the matter, the application under Order 6 Rule 17 CPC was allowed vide order 28.04.2014. Amended written statement was filed by defendant no.1 only. Since in the amended written statement, defendant no.1 has incorporated new facts, the court asked the maintainability with respect to the same. The counsel for defendant no.1 sought time to move appropriate application in this regard. An application under Order 6 Rule 1 CPC was filed by defendant no.1 but the same was subsequently withdrawn by defendant no.1.
11. It is settled preposition of law that where amendment is C.S. No.: 370/14 Page 9 of 20 allowed, the opposite party is supposed to file its amended reply only to the extent of what has been allowed to be amended. Anything beyond the same, cannot be looked into or considered by the court.
12.Our Own Hon'ble High Court in a case titled as Kedar Nath & Ors. Vs. Ram Perkash & Ors. 1999, Rajdhani Law Reporter 45, has held in para 22 that : "22. To sum up, we are of the opinion that:
(i) merely because an amendment has been allowed in the plaint, the defendant does not get a right and certainly not an unbridled right to file new W/S; (ii) any additional pleading cannot be at variance or inconsistent with the original pleadings; (iii) a pleading inconsistent with or in departure from an original pleading can be allowed only by way of amendment subject to the leave being granted by the Court under Order 6, Rule 17, CPC; (iv) Order 6, Rule 17, CPC applies to amendment in the plaint and the W/Sboth. It applies to amendment sought for by one party and also to consequential amendments in the pleadings sought for by the opposite party. Any amendmentwhether original or consequential, shall be only by the leave of the Court.
13.Thus, the amended written statement so filed by defendant no.1 C.S. No.: 370/14 Page 10 of 20 shall be considered only with respect to the amendment application of the plaintiff is permissible.
14. Plaintiff also examined Sh. Shiv Kant Sharma, Patwari from the office of SDM Vivek Vihar, Delhi as PW2. He has brought the summoned record with respect to the property bearing No. 383/14, East Azad Nagar, Gali No.17, Delhi110051, Old Khasra No. 634, Village Chandrawali @ Shahdara. He has also brought the record with regard to adjoining property of the said property bearing no. 383/13 East Azad Nagar, Gali No.17, Delhi110051 and 383/D11, East Azad Nagar, Gali No.17, Delhi110051. He has also recorded the statements of the owner of the properties stated above. He has deposed that as per demarcation report through TSM, the said properties falls in Khasra no. 634, Chanderawal @ Shahadara. The report with regard to the same has been exhibited as Ex.PW2/A (Colly. Page 1 to 9). This witness was cross examined on behalf of defendant no.1.
15.The plaintiff again examined herself on 07.06.2014 as PW1 and tendered her examination in chief by way of additional affidavit Ex. PW1/2. She was cross examined by the ld. counsel for the C.S. No.: 370/14 Page 11 of 20 defendants. Vide separate statement, the plaintiff closed her evidence on 07.06.2014.
16.No evidence in rebuttal to that has been led on behalf of the defendants and on 07.06.2014, they stated that they have already concluded their evidence.
17. I have heard ld. counsel for the parties. I have also gone through the entire records of the case including pleadings of the parties, evidence led by the parties and documents proved by the parties during trial.
18.My issuewise findings are:
Issues no.3 and 5 (3)Whether the suit of the plaintiff is not maintainable? OPD (50Whether the suit of the plaintiff is without any cause of action? OPD
19.Since both these issues are interconnected therefore I am going to decide both these issues together. Onus to prove these issues was upon the defendants.
20.The plaintiff has stated in the plaint and evidence the husband of the plaintiff late Aet Ram was owner of the suit property and she has requested the defendants many times of the partition of C.S. No.: 370/14 Page 12 of 20 the suit property viz February, 2008, 15.06.2008 and 12.07.2008. It is not disputed by the defendants that their father late Aet Ram was the owner of the suit property being his self acquired property. It has come in the cross examination of DW1 where he admits that the plaintiff asked for the partition in the month of February, 2008, 15.06.2008 and 12.07.2008 for her share. Defendant no.1 during cross examination has stated that he has not denied to get the partition property when it was demanded by the plaintiff on February, 2008, 15.06.2008 and 12.07.2008. It has further come in the cross examination of this witness that he has not denied to give share to his mother. From the above, it is clear that the plaintiff has every right to maintain the present suit and accordingly the issue is decided in favour of the plaintiff and against the defendants.
21. To prove the same, defendant no.4 and defendant no.1 examined themselves as DW1 and DW2 respectively and filed their examination in chiefs by way of affidavit Ex.DW1/1 and Ex. DW2/A. However, in the entire evidence, DW1 and DW2 did not aver anything as to how the present suit is not maintainable. Accordingly, this issue is decided against the defendants. C.S. No.: 370/14 Page 13 of 20
22.Issue no.4 Whether the plaintiff has not affixed the requisite court fees on the plaint? OPD
23.Onus to prove the same was upon the defendants. The plaintiff has stated in para1 of the plaint that the plaintiff is residing in the suit property which is not disputed by the defendants wherein the defendant has admitted the averment of the plaintiff stated in the plaint. It is the settled preposition of law that in a suit for partition where the plaintiff and the defendants are the coowner of the property, the valuation for the purpose of the partition of the suit property is fixed at Rs.200/. It is only when there is complete ouster of the plaintiff from the suit property and the party claims possession thereof in that eventuality the plaintiff has to pay the court fees on the share which the plaintiff claims to be the owner. In the present case, the plaintiff is admittedly in possession of the suit property and affixed requisite court fees of Rs.20/. Moreover, neither the counsel for defendant no.1 during the course of argument raised the issue nor any evidence led by defendant no.1 in this regard. Accordingly, the onus upon the defendants is not discharged C.S. No.: 370/14 Page 14 of 20 and thus, this issue is decided in favour of the plaintiff and against the defendants.
24.Issue no.:6 Whether the value of the suit property is 1.50 crore? OPD
25.Onus to prove this issue was upon the defendants. The plaintiff has stated in the plaint as well as in the evidence that the value of the suit property is approximately Rs.17,50,000/. Defendants no.2 to 5 in the written statement did not dispute the same. It has been averred by the defendants in reply to the valuation of the suit property as stated by the plaintiff in para13 of her plaint, that the contents of para 13 and 14 of the suit are legal paras and need no reply. Defendants no.2 to 5 have not challenged the value of the suit property in the written statement. Interestingly, defendant no.1 also in his written statement in reply to the valuation of the suit property as stated by the plaintiff in para13 of her plaint, that the contents of para 13 and 14 of the suit are legal paras and need no reply. However, as preliminary objection, the defendant no.1 has stated that the value of the suit property is 1.5 crore.
C.S. No.: 370/14 Page 15 of 20
26.During the cross examination of the plaintiff also, none of the defendants gave any suggestion to the plaintiff with respect to the valuation of the suit property. Defendant no.4 examined himself as DW1. In his affidavit Ex.DW1/A, defendant no.4 uttered no word with respect to the valuation of the suit property. Defendant no.1 Surender Kumar examined himself as DW2 and tendered his affidavit as Ex.DW2/A. In the affidavit, this witness has stated the value of the suit property to be Rs.1.5 Crore however during cross examination, it has come on record that he has not filed any valuation report on the judicial record as to whether the wroth of the suit property is Rs.1.5 Crore at the time of filing of the suit. Except to the self serving statement of defendant no.1 only, there is nothing on record with respect to the valuation of the suit property. Perusal of the record shows that none of the defendants have filed any document or examined any person who could substantiate their version with respect to the valuation of the property. Accordingly, this issue is decided against the defendants.
27.Issue no.1.
Whether the plaintiff is entitled for decree of partition? C.S. No.: 370/14 Page 16 of 20 OPP
28.Onus to prove this issue was upon the plaintiff. The property of a Hindu male who died intestate shall devolve as per Class I of the Schedule of Hindu Succession Act, 1956. Admittedly, late Sh. Aet Ram died intestate. It is admitted case of the parties to the suit that the parties are Class I heirs of late Sh. Aet Ram.
29.The plaintiff in her plaint and affidavit has stated that her husband late Aet Ram was the owner of the suit property being his self acquired property and he died intestate. It has been further deposed by the plaintiff that she has made various requests to the defendants on February 2008, 15.06.2008 and 12.07.2008 for the partition of the suit property however, the defendants threatened the plaintiff for dire consequences in case the plaintiff raises the issue of partition. The plaintiff was cross examined wherein the defendants have not disputes the ownership of the suit property by late Aet Ram, father of the defendants and husband of the plaintiff nor they disputed that Aet Ram died intestate.
30.The defendant DW1 has also not disputed in his evidence that Sh. Aet Ram was the owner of the suit property and he died C.S. No.: 370/14 Page 17 of 20 intestate. It has been further stated by the witness that he along with defendants no.2, 3 and 5 have no objection to the partition of the suit property. From the record also, it is clear that it is defendant no.1 who is the main contesting party to the suit. The defendant no.1 who examined himself as DW2 has stated in his plaint and affidavit Ex.DW2/A that his father late Sh. Het Ram during his life time made oral partition of the suit property and he has been given 40 sq. yards out of the suit property. He further deposed that he has thereafter made constructions in the portions so given to him and has spent around 9 lacs in the renovation and construction of the same. He further deposed that he is paying separate house tax. Nothing has been proved by the defendant no.1 on record to substantiate his version. It has come on record that it is correct that he has not filed any document with respect to the expenses incurred by him as mentioned by him in his plaint and affidavit. It has come in cross examination of defendant no.1 as DW2 that it is correct he has not filed any document with respect to the house tax. It has further come on record during the cross examination of this witness that suit property was constructed by his father late Sh. C.S. No.: 370/14 Page 18 of 20 Aet Ram.
31. The cross examination of this witness further reveals that this witness admits that the plaintiff i.e her mother is also entitled to get 1/6th share out of property in question and has not denied the partition. The relevant cross examination of the DW2 is reproduced as under :
"It is correct that my mother also is entitled to get 1/6th share out of the property in question. It is wrong to suggest that as and when my mother asked me and my brothers for her share, the same was denied by me and my brothers. It is incorrect to suggest that I denied to get partition of the property in question when it was demanded by my mother in the month of February 2008, on 15.06.08 and on 12.07.2008. It is incorrect to suggest that I denied to give share to my mother as I want to grab her share."
32.From the above, it is clear that the plaintiff has discharged the onus and defendant no.1 failed to disprove the same. I have already stated above that defendant no.2 to 5 have no objection for the partition of the suit property. Accordingly, the issue is decided in favour of the plaintiff and against the defendants.
33.Issue no.2: Whether the plaintiff is entitled to a decree for permanent C.S. No.: 370/14 Page 19 of 20 injunction as prayed for? OPP
34. The onus of the proof was upon the plaintiff. The plaintiff has not stated any fact in his evidence Ex.PW1/A. Thus, the plaintiff has failed to discharge the onus and accordingly this issue is decided against the plaintiff.
35.Issue no.7: Relief.
36.In view of the observations made hereinabove, a preliminary decree for partition is passed in favour of the plaintiff with the directions that the plaintiff and the defendants are entitled for the partition to the extent of 1/6th share each in property bearing no. 383/14, East Azad Nagar, Gali No.17, Delhi51.
37. Preliminary decree sheet be prepared accordingly.
38.File be consigned to record room.
Announced in the open court On 24.12.2014 ( Anurag Sain) Addl. District Judge03 (East) Karkardooma Courts, Delhi C.S. No.: 370/14 Page 20 of 20 C.S. No.: 370/14 24.12.2014 Present: None.
Vide separate judgment announced in the open court today, a preliminary decree for partition is passed in favour of the plaintiff with the directions that the plaintiff and the defendants are entitled for the partition to the extent of 1/6th share each in property bearing no. 383/14, East Azad Nagar, Gali No.17, Delhi51. Preliminary decree sheet be prepared accordingly. File be consigned to record room.
(Anurag Sain) ADJ3, East, Karkardooma Court, Delhi/24.12.2014 C.S. No.: 370/14 Page 21 of 20