Delhi District Court
Sardar Singh vs Rai Singh Ors on 26 September, 2023
IN THE COURT OF SH. AMAN PRATAP SINGH
ADDITIONAL DISTRICT JUDGE -01
SOUTH WEST DISTRICT, DWARKA COURTS
NEW DELHI.
CS DJ ADJ No. 516570/2016
CNR No. DLSW01-002277-2016
(More than 30 years old matter)
AND
CS DJ ADJ No. 516571/2016
CNR No. DLSW01-002278-2016
(More than 20 years old matter)
IN CIVIL SUIT NO. 516570/2016
Jagmal Singh
s/o. Late Sh Bhagwan Sahai
r/o. Village Kapashera
Tehsil Mahrauli, New Delhi ... Plaintif
Versus
1. Naresh Kumar
2. Naveen Kumar
3. Ajit Kumar
4. Pawan Kumar
all s/o. Late Sh Hira Lal
5. Sunita Kumari d/o. Late Sh Hira Lal
6. Jagwati w/o. Late Sh Hira Lal
all r/o. H No.7399, Sector D, Pocket 7, Vasant Kunj, New Delhi-70
Jagmal Singh vs. Naresh Kumar & Ors
AND
Sardar Singh vs. Rai Singh & Ors
Page 1 of 84
7. Roshan Lal s/o. Late Sh. Bhagwan Sahai
r/o. H No. F-1, Kh No.26/19, Village & PO Kapashera, opposite
DC Office Kapashera, New Delhi-110037
8. Sardar Singh s/o. Late Sh. Bhagwan Sahai
9. Rai Singh s/o. Late Sh. Bhagwan Sahai
Both r/o. Village Kapashera, Tehsil Mehrauli, New Delhi-110037
10. Sumitra d/o. Late Sh. Bhagwan Sahai
r/o. C/o. Sanjay Yadav, Yadavanshi House, RZ-96N, B Block,
Prem Nagar-III, Najafgarh, New Delhi-110043
11. Birmo w/o. Roshan Lal(since deceased through LRs)
(a) Roshan Lal; (b) Karan Singh; (c ) Ishwar Singh
all r/o. H No. F-1. Kh No. 26/19, Village & PO Kapashera,
opposite DC Office Kapashera, New Delhi-110037
(d) Phoolwati; (e) Gita Devi
both r/o. Village & PO Garhi Bazidpur, Gurugram, Haryana
12. Subhash
13. Braham Prakash
both sons of Rai Singh
14. Hem Lata d/o. Rai Singh
15. Kailash Devi w/o. Sardar Singh
16. Parmeshwari Devi w/o. Jagmal
all r/o. Village Kapashera
Tehsil Mahrauli, New Delhi-110037 ....Defendants
IN CIVIL SUIT NO. 516571/2016
Sardar Singh
s/o. Late Sh Bhagwan Sahai
Jagmal Singh vs. Naresh Kumar & Ors
AND
Sardar Singh vs. Rai Singh & Ors
Page 2 of 84
r/o. Village Kapashera
Tehsil Mahrauli, New Delhi ... Plaintif
Versus
1. Rai Singh
s/o. Late Sh. Bhagwan Sahai
r/o. Kapashera, Mandiwali Gali
Kapashera, New Delhi
2. Jagmal Singh
s/o. Late Sh. Bhagwan Sahai
r/o. Near Ocean Complex
State Bank of India wali Gali
Kapashera, New Delhi
3. (i)Naresh Kumar
(ii)Naveen Kumar
(iii)Ajit Kumar
(iv)Pawan Kumar
all s/o. Late Hira Lal
(v)Sunita Kumari
d/o. Late Sh. Hira Lal
(vi) Jagwati
w/o. Late Sh Hira Lal
all r/o. H No. 277,Village Kapashera
New Delhi ....Defendants
Jagmal Singh vs. Naresh Kumar & Ors
AND
Sardar Singh vs. Rai Singh & Ors
Page 3 of 84
Date of Filing(Suit No 516570/16): 10.06.1992
Date of Filing(Suit No 516571/16): 27.08.2002
Date of Final Arguments : 26.09.2023
Date of Judgment : 26.09.2023
Both Civil Suits were clubbed by Justice T.S.Thakur, vide order
dated 22.03.2005, therefore, both the Civil Suits are being
disposed of by this Common Judgment.
JUDGMENT
1. The suit bearing No. CS DJ ADJ No. 516570/2016 is for partition. The suit bearing No. CS DJ ADJ No. 516571/2016 is for partition and mandatory injunction with directions for release of specific 1/3rd share in the fixed deposits and saving bank accounts. It is pertinent to mention here that the parties herein are referred to as plaintiff and defendant as per the suit bearing No. 516570/2016.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 4 of 84 PLAINT
2. As per the amended plaint, it is stated that parties to the suit are the members of the Joint Hindu Family, having joint kitchen and lodging since the time of their respective forefathers. They hail from the family of a agriculturist. They are holding and detaining agricultural land in the village Kapasehra, Delhi, village Nanuka and Manderka of Haryana.
2.1 That the father and grandfather of the parties were cultivating the land in the village Kapasehra and were declared bhumidar of the land in 1958 and bhumidari certificates were issued to them alongwith other cultivators of the village. Their father Sh. Bhagwan Sahai died in 1968 leaving behind plaintiff and his four brothers namely Hira Lal, Roshan Lal, Sardar Singh and Rai Singh alongwith sisters Sumitra and his widow mother Lalli as his legal heirs. Their father was declared bhumidar of the land bearing khasra no. 65/1 (28), 68 (416), 71 (416), 72 (416), 73 (516), 74/1 (30), 74/2 (212), 78/3 (1 Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 5 of 84
16), 79/2 (28), 80/2 (14) (11 numbers) total measuring 38 bighas 8 biswas, khewat no. 166/152 having half share and khasra no. 130/2(44), 131(58), 132(48), 133(416), 134(416), 138/1 (30), 139(017), 140(318), 141(416), 142 (217), 143(2
14), 144(28), 13 numbers, total measuring 46 bhigas 5 biswas, khewat no. 129/128 having 5/24 share and the other land bearing khasra no. 264(36), 265(416), 441(416), 442(416), 460(416), 461(416), 462(416), 569/2(114), 573(612), 574(0
10), 719(416), 724(416), 725(416), 726(416), 727(612), 49(013), 16 numbers, total measuring 67 bhigas 7 biswas, khewat no. 90/60, situated in the revenue estate of Village Kapashera, Delhi having full share. Thereafter, the land was mutated in the name of plaintiff and his four brothers, his sister and his mother. The father of the plaintiff left three houses in the abadi of the village Kapashera, Delhi, as per details of site plan A1, A2, A3 and A5. Father of plaintiff left jewelleries and other domestic goods and articles which remain in the custody of the elder brother Late Sh. Hira Lal and after his death the same are in possession of defendant no. 1 to 6. The father of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 6 of 84 the plaintiff had built and installed three big wells and borings, and he also installed a tubewell in the village Kapashera. The elder brother of the plaintiff Sh. Hira Lal became the 'Karta' of the family after the demise of their father. Fortunately, he was educated and well versed with the affairs of the society and the family. The other members of the family were not educated and having been doing the agricultural job. So they also made Sh. Hira Lal, the manager of the family. Everyone was having love and affection for him and his integrity was never doubted. Other family members felt difficulties in managing the affairs of huge property left by their father. So they fixed all responsibilities upon him qua the family management and maintenance, births and deaths and marriages and the transfer and purchase of the properties and to keep the money. There was complete unity in the family. Sh. Hira Lal proceeded to sell the agricultural land and to purchase the other properties including agricultural land and the plots and shops in Delhi as well as outside and all the members of the family (including the parties to the present suit) consented his proposal and he was allowed to do the job of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 7 of 84 property dealing qua the agricultural land and other properties of the family. Sh. Hira Lal accordingly started the job of sale and purchase of the land, in the year 197071. Sh. Hira Lal sold away the entire agricultural land except the land comprising in khasra no. 264(36) and 265(416) total measuring 8 bhigas 2 biswas in khewat no. 90/60 of village Kapashera, Delhi. Out of the sale proceeds of the aforesaid agricultural land, Sh. Hira Lal purchased the plot of land of 180 sq. yards in the abadi of village Kapashera, Delhi in the year 198485 in the names of the plaintiff and four brothers Roshan Lal, Sardar Singh, Rai Singh and Hira Lal out of the sale proceeds of the land, then the plot was built up and the construction includes two rooms, two kitchen and one veranda. The plaintiff alongwith his family members is living in this house. Another plot of 160 sq. yards was also purchased in village Kapashera, and it was also built up by all the brothers. A piece of land measuring 30 sq. yards is merged with the aforesaid plot. It is a double and triple storeyed building.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 8 of 84 2.2 The family of Sh. Hira Lal is in the occupation of this house. Further a shop in Shalimar Shopping Centre in Shalimar Bagh was purchased in the name of Sh. Hira Lal. Further a plot measuring 217 sq. yards in khasra no. 262 min. of Village Kapashera was purchased in the name of Jagwati w/o Sh. Hira Lal. Further out of two plots measuring 262 sq. yards & 200 sq. yards in khasra no. 262 min. and 266 min. of khatauni number 109, situated in revenue estate of Village Kapashera, plot of 262 sq. yards was purchased in the name of all the four brothers and plot of 200 sq. yards was purchased in the name of Sh. Naresh Kumar s/o Sh. Hira Lal. Further consideration amount for three shops bearing no. 19, 28 and 30 in Kapashera Shopping Complex, Delhi was paid by Sh. Hira Lal and for shop no. 20, Kapashera Shopping Complex was paid by Sh. Rai Singh. Further half share of the Agricultural land in khasra no. 17/17/2(117), 18/2(213), 19(915), 23(318), 24(718), 710(0
8), total measuring 29 kanal 1 marla, situated in the revenue estate of village Mandarka, Tehsil nooh, District Gurgaon, Haryana was purchased in the name of Smt. Jagwati, w/o Sh.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 9 of 84 Hira Lal and half share was purchased by Smt. Dhaneshwati, widow of Sh. Mahender Singh S/o Ram Mehar of village Kapashera, Delhi. The mutation was sanctioned in respect of half share of Smt. Jagwati Devi. Further land bearing khasra no. 2/18(617), 19/1(69), 19/2(111), 20/1(313) out of khewat no. 50/47 and khasra no. 1/15/2(210), 2/11(80), 12(67), 4/3(80), 4(80), 7(80), 9/1(32) out of khewat no. 26/11 was purchased in the joint name of Sh.Hira Lal and Jagwati w/o Hira Lal. Hira Lal also purchased the land bearing khasra No 1/6/1(412); 2/10(218); 24(66) in the name of Jagwati, his wife out of khewat No 25/10/28 min in the Revenue Estate of Village Nanuka, Tehsil Nooh, Distt Gurgoan, Haryana.
2.3 The aforesaid land was purchased by Hira Lal with the family fund. Further Hira Lal purchased land about 6 killas in Village Budhera, Tehsil & Distt Gurgoan, Haryana owned by his relations and he made full payment to Om Prakash etc. However, he could not get the sale deed registered as he died in an accident in the year 1989. After his death, the sale deeds Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 10 of 84 were registered with the Office of Sub Registrar, Gurgoan in the name of Shanti Devi w/o. Rai Singh; Kailash Devi w/o. Sardar Singh; Birmo Devi w/o. Roshan Lal; Jagwati Devi w/o. Hira Lal and Parmeshwari Devi w/o. Jagmal Singh and now the said lands are with them.
2.4 It is further stated that the money received from the sale price of the agricultural land of the joint khewat, was invested in purchasing other lands in the Revenue Estate of Village Kapashera, Delhi. Consolidation proceedings started in Village and the family members received the land accordingly.
(a) It is further stated that Hira Lal and his wife Jagwati are joint owners and bhumidars as per record with respect to khasra No. 26/23(412); 30(04); 24(416); South 18 min (018); 37/4 min (15); 1171(14); 1261(10) (1 bigha only); 1262(10); 1263(10). Hira Lal is having 1/3rd share whereas Jagwati is having 2/3rd share therein. It is further stated that Hira Lal received khasra No 1250(10); 1251(10); 1252 min(04);
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 11 of 84 1260(10) under consolidation in lieu of the original land in Vilage Kapashera, Delhi.
(b) It is further stared that Hira Lal had purchased land bearing khasra No 656(03); 591 min (04); South 26/22 min (018); 37/2(60); 3(416); 4(210); West 9 min (09); 664 min(4
9) in the name of Naresh Kumar s/o. Hira Lal which he had received in lieu of his original land under consolidation. (c ) It is further sated that Birmo Devi w/o. Roshan Lal(D7) is the owner of the khasra No 29/8 min; 13 min West measuring 4 bighas under consolidation in lieu of her land.
(d) It is further stated that Roshan Lal had received land in lieu of original land held by him before consolidation bearing khasra No 664 min (12); 1212 min (012); 591 min(04); 35/6(4
16); 7 min(28); 14/27(16); 16/27(43); 31(19); 17/30(19); 26/18 min(318); 19(33); 12/6(212); 15(416); West 13/10 min (16). It is further stated that the original land was purchased by family funds and the khasra No. 12/6; 15; 13 were deleted from the chack/ portion of Roshan Lal and khasra No 1255 min (22) including 1256 min; 1253(36); 1254(36) were added in the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 12 of 84 chack of Roshan Lal.
(e) It is further stated that Sardar Singh got khasra No. 1211(12); 1212 min (010); South 34/9 in(45); South 10 min (015); North 12 min (118); 27(01); North 13 min (116); South 8 min (28) in lieu of the land originally held by him and the original land was purchased with family fund.
(f) It is further stated that Rai Singh is holding land bearing khasra No 1249(10); North 1252(016); South 33/2 min (18); North 9 min(010); 33/20 (018); 34/2 min South (110); 34/8 min North (28); 34/9 min North (006) (6 biswas); 35/7 min(28); 8(416); 664 min (08) after consolidation in lieu of its original land measuring 16 bighas 8 biswas.
(g) It is further stated that Jagmal Singh is holding land after consolidation bearing khasra No. 1210(12); 1213(12); 34/1(49); North 21 min (36) measuring 9 bighas 19 biswas, in lieu of his land originally held by him.
(h) It is further stated that Hira Lal had purchased a land measuring about 18 kanals(18 bighas) in Village Gurgoan Khas at Daulatabad Road with family funds and the said land was Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 13 of 84 purchased in beginning when the joint land of Kapashera was being sold to different purchasers. The land was filled with earth and godown was constructed in collaboration with Tara Chand(father in law of Hira Lal) and other defendants. The whole property was sold except 1 bigha being the share of defendants. It is further stated that Hira Lal had not made account of this property and the sale proceeds thereof is held by his sons Naresh etc and his wife. It is further stated that the plaintiff and defendants are equally entitled to receive their share in the aforesaid land and the plaintiff craves partition in respect of the aforesaid property also.
2.5 It is further stated that in the month of February March 1989, one Om Prakash Yadav from New Rohak Road, Karol Bagh, New Delhi approached the plaintiff and Rai Singh etc to purchase their land and all of them agreed and prepared agreement in favour of Om Prakash Yadav.
(a) It is further stated that Jagmal executed agreement Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 14 of 84 in favour of Om Prakash Yadav with respect to 7 bigha 15 biswas out of 9 bigha 19 biswas and Hira Lal received Rs.1,00,000/ from Om Prakash Yadav towards earnest money and Hira Lal assured that the amount would be invested for purchasing some plot in Delhi.
(b) It is further stated that Rai Singh executed agreement in favour of Om Prakash Yadav with respect to 2 bigha and Hira Lal received Rs.50,000/ from Om Prakash Yadav towards earnest money and Hira Lal assured that the amount would be invested for purchasing some plot in Delhi. (c ) It is further stated that Sardar Singh executed agreement in favour of Om Prakash Yadav with respect to 15 biswas and Hira Lal received Rs.50,000/ from Om Prakash Yadav towards earnest money and Hira Lal assured that the amount would be invested for purchasing some plot in Delhi.
(d) It is further stated that the plaintiff and the defendants except LRs of Hira Lal have not received any benefits in lieu of the land sold and do not know where the amount was invested.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 15 of 84 2.6 It is further stated that after death of Hira Lal in the month of June 1989, the plaintiff, Rai Singh and Sardar Singh visited the house of Om Prakash to return the amount but he refused to take the money and insisted to purchase the land and he filed three suits for specific performance qua aforesaid agreements against the plaintiff, Rai Singh and Sardar Singh before Hon'ble High Court of Delhi and are pending.
2.7 It is further stated that Hira Lal also purchased a land from Suraj Bhan & Ors of Kapashera, Delhi and the sale deed was executed in the name of Rai Singh. But Sh.Chander challenged the validity of the said sale deed by filing objections and the same is pending. It is further stated that Rai Singh is bearing the expenses of these cases.
2.8 It is further stated that Smt Sumitra@ Lalli daughter of Bhagwan Sahai has also inherited land as well as Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 16 of 84 immovable properties including house and others. It is further stated that whenever any land was being sold, she was also one of the signatory. She was not given any share from the sale proceeds nor any property in her name. She lived with the mother of plaintiff in the house builtup within the abadi of Village Kapashera having her goods, jewelleries, utensils etc. Sardar Singh derived her out of the house and she had to shift to Village Khera where she was married. Sardar Singh misappropriated articles of Sumitra @ Lalli as well as of mother of plaintiff which was to the tune of about 10 Tola of Gold and more than 5 Kg Silver. Sardar Singh failed to tell about the whereabout those belongings despite several panchayats. It is further stated that Sardar Singh had also taken away the jewelleries of Rajesh w/o. Sanjay Yadav (daugther of Sumitra).
2.9 It is further stated that Hira Lal had got opened several bank joint accounts in his name, in name of his wife and sons and also in the name of plaintiff. It is further stated that FDRs were prepared in the name of his son Naresh Kumar and Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 17 of 84 his wife Jagwati but nothing was disclosed about those FDRs. It is further stated that the account books are with Sardar Singh. The details of the Bank and the deposits are as follows:
i. State Bank of India, Kapashera Branch, Delhi in the joint name of Jagmal Singh, Hira Lal, Rai Singh, Sardar Singh and Roshan Lal.
ii. Another joint account in the name of Rai Singh, Jagmal Singh, Sardar Singh.
iii. Two FDRs for a sum of Rs.6,00,000/ and Rs.4,00,000/ in joint account in the name of Rai Singh, Jagmal Singh and Sardar Singh. iv. Union Bank of India, Samalkha Branch, New Delhi in the joint name of Jagmal Singh, Hira Lal, Rai Singh, Roshan Lal and Sardar Singh.
v. Oriental Bank of Commerce, Mohammed Pur,Munerka Branch, New Delhi in the joint name of five brothers vi. Another account in the name of Hira Lal vii. Oriental Bank of Commerce, Palam Goan, New Delhi viii. Two FDRs for a sum of Rs.2,00,000/ in the name of Sardar Singh, Rai Singh and Jagmal Singh. ix. Seven bank accounts in the name of Sardar Singh, Rai Singh and Jagmal Singh in which Rs.80,000/ was lying Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 18 of 84 x. An FDR in the name of Hira La and his wife Jagwati for a sum of Rs.2,00,000/ xi. An FDR for Rs.1,17,000/ in the name of Jagwati xii. Oriental Bank of Commerce, Ditachau Kalan, New Delhi in the joint name of Sardar Singh, Rai Singh and Jagmal Singh in which Rs.1,15,000/ is lying.
xiii. Another joint account in the joint name of Naresh Kumar & Rai Singh in which huge amount is lying xiv. Another joint account in the joint name of Naresh & Roshan in which Rs.6000/ is lying.
2.10 It is further stated that one land deal through Ramesh Chand was brought and Hira Lal had proposed to purchase the land measuring 13 bighas which was belonging to the wife of one Deepak Bhardwaj of Village Kapashera, Delhi.
The deal was settled for a total consideration of Rs.16,25,000/ and the consideration for the same was made as under:
(i) Hira Lal paid Rs.6,00,000/ in cash to Mr.& Mrs. Bhardwaj in presence of four brothers.
(ii) Land measuring 7 bighas 5 biswas of the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 19 of 84 parties was to be given to Bhardwaj and the price was settled as Rs.9,00,000/ accordingly transfer documents were prepared.
(iii) Rs.1,25,000/ given to Bhardwaj in cash at the time of registration of the sale deed.
(iv) Rs.1,42,000/ was given by plaintiff and other brothers to Ramesh as commission for the deal 2.11 It is stated that Bhardwaj had received Rs.15,00,000/ and the plaintiff and his brothers approached Bhardwaj and Ramesh for final settlement of the deal/ registration of the sale deed but they avoided and the said amount being joint property is matter of partition.
2.12 It is further stated that LRs of Hira Lal and other defendants have become dishonest and they are withdrawing amount for their own purpose. It is further stated that beside the agricultural land and bank balance, the parties are occupying several houses also.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 20 of 84 2.13 The value of the agricultural land in Delhi has been fixed to the tune of Rs.4,65,000/ per acre(416) and the agricultural land in Haryana has been fixed to the tune of Rs.1,25,000/ per kanal(bigha). The value of the Gold, Silver and other articles should be assessed at the market rate at the time of institution of the suit.
2.14 It is further stated that on 29.7.1990, in panchayat meeting a written compromise was arrived between the parties regarding partition of land, houses, household articles and jewelleries which was duly signed by the parties but the LRs of Hira Lal and other defendants have resiled from the compromise. Hence, the present suit has been filed.
WRITTEN STATEMENT ON BEHALF OF D1 TO D6
3. In the written statement filed on behalf of D1(Naresh Singh s/o. Hira Lal), D2(Naveen Kumar s/o. Hira Lal), D3(Ajit Kumar s/o. Hira Lal), D4(Pawan Kumar s/o. Hira Lal), D5(Sunita Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 21 of 84 d/o. Hira Lal) and D6(Jagwati w/o. Hira Lal), preliminary objection has been taken stating that this Court has no jurisdiction to entertain the present suit as the alleged agricultural land sought to be partitioned is situated in the territory of Delhi and comes under the provisions of Delhi Land Reform Act and therefore only the Revenue Assistant is competent to do the partition. It is further stated that the suit is bad for nonjoinder of Kailash Devi w/o. Sardar Singh; Shanti Devi w/o. Rai Singh; Parmeshwari w/o. Jagmal Singh in whose name the property is alleged to be owned. It is further stated that suit is also bad for non joinder as Deepak Bhardwaj and his wife with whom the land deal of 13 bighas was done is not party to the suit. The suit is also bad for non joinder as Om Prakash with whom there are litigation between the parties is not party to the suit. It is further stated that the D7 to D11 who have joined with the plaintiff want to grab the properties from D1 to D6 which they are entitled to succeed after the death of Hira Lal. It is further stated that D1 to D6 never formed joint Hindu Family with any person including the plaintiff and D7 to D11 and even Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 22 of 84 Hira Lal had never formed any such joint Hindu Family. It is further stated that Hira Lal and his brothers were always separate after death of Sh. Bhagwan Sahai, father of plaintiff and D7 to D10. It is further stated that Hira Lal had sold the properties left by Sh. Bhagwan Sahai and has distributed the sale proceeds according to their share and the share which came in the share of any party became their personal property and was never a joint family property.
3.1 It is admitted that Sh. Bhagwan Sahai was holding agricultural land in Village Kapasera as bhumidar. It is further stated that Sh. Bhagwan Sahai and his forefathers did not had any agricultural land in Village Nanuka and Mundarka. It is admitted that the father and grandfather of parties were cultivating the land in Village Kapasera because of which he was declared bhumidar of the land in the year 1958. It is admitted that Sh. Bhagwan Sahai died in the year 1968 leaving behind his sons and daughter and widow as his LRs i.e. the plaintiff and his four brothers namely Hira Lal, Roshan Lal, Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 23 of 84 Sardar Singh and Rai Singh and sister Sumitra(Lalli) and his widow mother Anaro Devi. It is also admitted that their names were entered in the mutation in respect of the land left by him. It is further stated that after death of Sh. Bhagwan Sahai, the defendants and their mother had succeeded to the property according to Hindu Succession Act. Hira Lal and plaintiff the D7 to D9 had succeeded as karta of their own families but there was not joint Hindu Family between the heirs of Sh. Bhawan Sahai. It is further stated that D1 to D6 have always lived separately from other defendants. D1 to D6 and Hira Lal were given some portion in House A2 and A3 but they were living separately from other defendants. It is further stated that the house is a one big house with different portions to different parties. It is further stated that the elder brother in the family is Rai Singh and not Hira Lal. It is stated that D1 to D6 are not in possession of any jewelleries as stated in the plaint. It is admitted that plaintiff and defendants have succeeded to the legal estates of Sh. Bhagwan Sahai as Class I as per order the of succession under the Hindu Succession Act. It is further Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 24 of 84 stated that whatever assets was left by Sh Bhagwan Sahai was succeeded by the parties and there was no joint succession but they had individual share in the property especially the land. As regard the three builtup houses is concerned, A1 is in possession of Roshan Lal, A2 and A3 is in possession of Sardar Singh, Rai Singh , Jagmal Singh and Hira Lal, A4 is with Jagmal Singh, A5 is also with Roshan Lal. It is further stated that Sardar Singh was a Government Servant; Jagmal Singh was in Taxi business attached with different hotels; Hira Lal was in cultivation and later started property dealing.
3.2 It is further stated that the only property of Sh.Bhagwan Sahai was agricultural land and all the parties are agriculturist. Everybody had a share in the agricultural property and their names were mutated as Class I Heirs according to Hindu Succession Act. It is further stated that Hira Lal never proposed to sell the agricultural land and purchase other properties as stated in the plaint. It is further stated that Hira Lal had done the business of sale and purchase of property as an Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 25 of 84 individual. It is further stated that the land which was left by Sh.Bhagwan Sahai came to the share of all the parties to the suit and all had their individual share in the land and the land was sold by all of them and sale proceed became their individual property and the same was utilized by the parties according to their own wishes.
3.3 It is further stated that out of the land comprising in khasra No 264(36) and 265(416) the total measuring 8 bigha 2 biswa in khasra No 90/60 in Village Kapashera which came to the share of the parties to the suit, only the share of Hira Lal has been sold and the remaining land is still owned by remaining parties. One plot measuring 160 Sq Yard was purchased by Naresh Kumar and construction was also made by him and his mother. It is further stated that Naresh Kumar do not own any shop in Shalimar Bagh. It is further stated that one plot bearing No. 217 Sq Yard in khasra No 262 min at Village Kapashera, Delhi was purchased in the name of Jagwati in individual capacity. It is further submitted that no shop was Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 26 of 84 purchased jointly. It is further stated that Hira Lal had purchased shop No. 19,20 and 30 and made the payment from his individual funds. The shop No. 28 was purchased by Rai Singh as the payment was made by him. It is admitted that these shops are situated in Kapashera Shopping Complex, Delhi. It is further stated that the land was purchased by Smt. Jagwati and Smt. Dhaneshwati. It is not denied that Hira Lal and his wife Jagwati Devi jointly purchased the land bearing khasra No. 2/18(617); 19/1(69); 19/2(111); 20/1(313) out of khewat No. 50/47 and khasra No 1/15/2(210); 2/11(80); 12(67); 4/3(80); 4(80); 7(80); 9/1(32) out of khewat No 26/11. It is not denied that the land bearing khasra No 1/6/1(1412)' 2/10(218); 24(66) was purchased by Smt. Jagwati Devi out of khewat No. 25/10/228 min in the Revenue Estate of Village Nanuka, Tehsil Nooh, District Gurgoan, Haryana. It is further stated that the land about 6 killa in Village Budhera Tehsil & District Gurgoan Haryana was owned by relations of Sardar Singh from wife side and this land was purchased jointly by Smt. Shanti Devi w/o. Rai Singh; Kailash w/o. Sardar Singh; Birmo Devi w/o. Roshan Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 27 of 84 Lal; Jagwati Devi w/o. Hira Lal and Parmeshwari Devi w/o. Jagmal Singh. It is further stated that the land purchased by Roshan Lal; Sardar Singh; Rai Singh; Hira Lal out of their own funds. It is further stated that Hira Lal had no link in regard to the deal with Om Prakash Yadav. Execution of the agreement by Rai Singh, Sardar Singh and plaintiff is denied. Opening of various bank account is also denied. The deal in respect of Deepak Bhardwaj is also denied.
WRITTEN STATEMENT ON BEHALF OF D7, D9, & D10
4. In the written statement filed on behalf of D7(Roshan Lal), D9(Rai SIngh) and D10(Sumitra), it is stated that different members of the family are having their separate kitchens and lodging. It is further stated that the lands were sold from time to time and the sale consideration was deposited in the name of brothers, some land was purchased out of the amount received from the sale consideration in the name of different members of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 28 of 84 the family as well as in the name of their wives. It is further stated that Hira Lal and Sardar Sngh were having custody of all the family jewellery which was not in daily use as well as the cash and ancestral jewellery. It is further stated that after death of Hira Lal his LRs and Sardar Singh had sold various properties without rendering any account to other family members. It is further stated that the land which had been sold and which still remains is a joint family property. It is admitted that all the properties were owned by Sh Bhagwan Sahai which were either in his name or in the name of any family member. It is further stated that after death of Hira Lal, his LRs in collusion with Sardar Singh wanted to deprive other members of their due shares. It is also admitted that various properties were purchased out of the sale proceeds in the name of different family members and some were constructed from the sale proceeds. It is also admitted that one shop was purchased out of joint fund in Ring Road, Shalimar Bagh in the name of Hira Lal which is now in the possession of his sons. It is also admitted that Hira Lal agreed to sell the land of various families Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 29 of 84 members and received earnest money and the entire amount remained with Hira Lal being the karta of the family. It is also admitted that after death of Hira Lal the litigation was financed by Rai Singh. The fact that the Sumitra was also one of the signatory of the sale proceedings is admitted and also the fact that she was not given any share. It is further stated that the amount in various bank account was joint fund.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 8
5. In his written statement, defendant No. 8(Sardar Singh) taken preliminary objection that preliminary objection has been taken stating that this Court has no jurisdiction to entertain the present suit as the alleged agricultural land sought to be partitioned is situated in the territory of Delhi and comes under the provisions of Delhi Land Reform Act and therefore only the Revenue Assistant is competent to do the partition. It is further stated that Sumitra and the widow of Sh. Bhagwan Sahai had Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 30 of 84 inherited the properties. It is stated that Rai Singh was not paying the expenses but he was paying the same. It is further stated that defendant No. 10 was married long before the demise of Sh. Bhagwan Sahai and she used to occassionaly visit the ancestral village. It is stated that he is entitled for his share of deposits. It is further stated that he had not withdrawn any amount from the joint account. It is further stated that he is not averse to any mutual partition. It is denied that he had taken forcibly the custody of family Gold, Silver, utensils etc. WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 11
6. In her written statement defendant No. 11(Birmo w/o. Roshan Lal), it is stated that there is no cause of action for present suit for partition. It is further stated that she is not co owner of any joint family property. It is stated that the parties to the suit had been separated from each other for long time and there is no joint Hindu family. It is further stated that the land Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 31 of 84 owned by Bhagwan Sahai was inherited by his sons which was sold out by them and appropriated the entire consideration amount to themselves as per their share and they had purchased other land as per their requirement. It is further stated that only the sons had inherited the estate of Sh.Bhagwan Sahai. It is further stated that the land shown in her name is self acquired out of the consideration amount received after selling the share of the ancestral property by her husband. She is the sole owner of the land bearing khasra No. 29/8 min, 13 min towards West measuring 4 bighas vide sale deed. It is further stated that this Court has no jurisdiction to try with regard to the property situated in Haryana as the said agricultural land is in the individual name over which Revenue Court has exclusive jurisdiction to effect partition. Other contents are denied.
REPLICATION
7. In the replication filed on behalf of plaintiff to the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 32 of 84 written statement of D1 to D6, plaintiff has not denied that the Revenue Estate of Village Kapashera consolidation proceeding is pending. It is stated that there had been a joint Hindu Family amongst the plaintiff and other defendants. It is further reiterated that Hira Lal had sold number of properties left by Sh.Bhagwan Sahai but has never distributed the sale proceed amongst the brothers particularly the plaintiff and Hira Lal had after selling the ancestral properties had purchased various other properties in individual name and since the source of the purchase of those properties were from the joint funds, as such those new properties become the joint family properties and are liable to be partitioned. Further, the individuals in whose name the properties were purchased had no other source of income except the sale proceeds of the ancestral properties. It is again reiterated that t he parties have been the members of the joint Hindu Family and their kitchen and lodging have been joint since the time of their respective forefathers. It is further stated that all the properties standing in the name of any individuals are the joint family properties. It is admitted that Rai Singh was Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 33 of 84 the elder brother in the family. It is further stated that since Hira Lal was treated as karta of the family as he was the only educated person in the family and he used to look after all the affairs of the family including the properties was controlled by him. It is further stated that since no partition took place after death of Sh. Bhagwan Sahai, the properties still are joint properties even if, any properties has been sold by Hira Lal and purchased other properties with the sale proceeds of the ancestral properties. It is further stated that all members of the family had been doing only agricultural job, cultivation of land except the plaintiff who is in Taxi business and Sardar Singh who is Government Servant. Later Hira Lal started dealing in properties. It is further stated that dispute arose when the plaintiff and other defendants started claiming their right in the joint properties. It is further stated that Hira Lal had no individual funds of his own.
7.1 It is further stated that Hira Lal had purchased a plot of land measuring 180 Sq Yards in the abadi Village Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 34 of 84 Kapashera, Delhi in the year 198485 in the name of plaintiff and four brothers. It is denied that the sale proceeds of the properties were utilized by every individual accordingly to their own wishes. It is further stated that Hira Lal had purchased a plot measuring 160 Sq Yards in Village Kapashera and not by Naresh Kumar and the same was built by all the brothers. The shop at Shalimar Bagh was purchased by Hira Lal and the defendants have now sold the shop and pocketed the sale proceeds excluding other defendants. The plot of 217 Sq Yards in Village Kapashera was purchased in name of Jagwati w/o. Hira Lal. It is denied that this the individual property of Jagwati as she had no individual source of income of her own. It is further stated that two plots of 260 Sq Yards and 200 Sq Yards were purchased in Village Kapashera in name of all the brothers, out of the joint funds of the parites, however the children of Hira Lal are illegally asserting their right over these plots. The four shops bearing No.19,20,28 and 30 were also jointly purchased by the parties so the plaintiff has right to claim partition on them also. It is again reiterated that Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 35 of 84 Hira Lal had purchased 29 kanal 1 marla in Village Mundarka, Gurgoan Haryana in the name of Jagwati out of the joint finds of the parties so is liable to be partitioned. The land purchased by Hira Lal in the name of his wife Jagwati in Village Nanuka Tehsil Nooh, Gurgoan, Haryana was also out of the joint family fund. It is further stated that Hira Lal had purchased 6 killas in Village Budhera and Hira Lal had made payment to Om Prakash but due to death of Hira Lal in 1989, sale deed could not be executed. However the sale deed was executed thereafter in the name of parties and the properties is joint properties. It is further stated that Hira Lal had also purchased land measuring 18 bighas in Village Gurgoan Khas at Daulatabad out of family funds which was from the sale proceeds of the agricultural land at Kapashera. The details of the agricultural land in the name and possession of the parties has been stated in schedule A and A1. It is further stated that Hira Lal had received a sum of Rs. 1,00,000/-; Rs.50,000/- and Rs.50,000/- on behalf of plaintiff, Rai Singh and Sardar Singh with regard to the sale of the ancestral land to Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 36 of 84 Om Prakash Yadav but did not distribute the sale proceeds to them. It is further stated that Hira Lal had also purchased a land from Suraj Bhan of Kapashera out of joint family funds. It is further reiterated that Sardar Singh had misappropriated the jewelleries of the mother of plaintif. It is further stated that Hira Lal had got opened several joint bank accounts and FDRs in which the sale proceeds were deposited but the details of the same was not disclosed. It is further stated that Hira Lal had also purchased 13 bighas of land belonging to the wife of one Deepak Bhardwaj of Village Kapashera for total consideration of Rs.16,25,000/ out of which Rs.15,00,000/ was already paid which was a joint funds and the plaintiff is also entitled for his share from this also. It is further stated that all the properties which have been purchased from the joint funds of the parties is liable to be partitioned and no member in whose name the land was purchased had any individual source of income except the cultivation of joint agricultural land and further the land allotted to Roshan Lal, Sardar Singh, Rai Singh, Hira Lal, Birmo Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 37 of 84 Devi, Jagmal Singh in lieu of the original land was also joint family properties. Rest of the contents are denied.
8. No replication was filed by the plaintiff to the written statement of other defendants.
ISSUES IN SUIT NO. 15570/20169. On the basis of pleadings, following issues were framed vide order dated 24.03.2003
1. Whether the suit is barred by East Punjab Hoarding(Consolidation) & Prevention of Fragmentation) Act, 1948 ? OPD
2. Whether the suit is barred under Delhi Land Reform Act ? OPD
3. Whether the suit is bad for non joinder of necessary parties i.e. Kailash Devi, Shanti Devi, Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 38 of 84 Parmeshwari Devi, Deepak Bhardwaj, his wife, Om Prakash? OPD
4. Whether there is a collusion between the plaintiff and defendant No. 6 to 11 ? OPD
5. Whether there was a Joint Hindu Family between the parties ? OPP
6. Whether the suit properties formed Joint Hindu Family properties and what are the Joint Hindu Family properties, if any ? OPD
7. Whether the suit has not been properly framed for the purpose of Court Fee and Jurisdiction ? OPD
8. Whether after the death of Sh Bhagwan Sahai, his LRs succeeded as Joint Hindu Family ? OPP
9. Whether Hira Lal was the karta of the Joint Hindu Family, at any point of time ? OPP
10. Whether Hira Lal was in possession of any jewelleries belonging to the Joint Hindu Family and Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 39 of 84 if so, to what effect ? OPP
11. Whether the plaintiff is entitled to the partition of the suit properties and if so, what is the share of the respective parties ? OPP
12. Whether any of the suit properties are selfacquired property of any of the defendants, as alleged in para VI of the plaint ? PO
13. Relief EVIDENCE ON BEHALF OF PLAINTIFF
10. In order to his case, plaintiff has examined himself as PW1. On 10.01.2006, Sh. Jagmal Singh has tendered his evidence by way of affidavit dated 05.09.2005. The affidavit is Ex.PW1/A. Ld counsel on behalf of defendant No.1 to 6 objected to tendering of the affidavit on the ground that the verification part is not in accordance with law. He also objected to the Ex.PW1/4; Ex.PW1/5; Ex.PW1/25 on ground of mode of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 40 of 84 proof as the same are not original, beside Ex.PW1/25 is neither stamped nor registered.
10.1 In his cross examination on behalf of defendant No. 8, PW1(Jagmal Singh) stated that before filing of the suit, their family were joint and the properties was also joint. PW1 stated that initially his father was the bhumidar in respect of the agricultural land in Village Kapashera, Tehsil Mehrauli, New Delhi measuring 150 acre. After death of his father, the five brothers, sister and mother became the owners in equal share in respect of the properties left by his father. Hira Lal was the karta of the family as he was looking after the entire properties left his their father. All had full confidence upon Hira Lal. Hira Lal had sold ancestral property with their consent. Witness volunteered that with the sale proceeds, Hira Lal had purchased other properties in the name of relatives or in the name of all the five brothers but after death of Hira Lal, they came to know that no property was purchased by Hira Lal in his name. He has mentioned the details of the properties purchased by Hira Lal in Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 41 of 84 his affidavit. He is entitled to 1/6th share in the properties left by his father. Jagmal Singh admitted that consolidation operation has been done his Village. He denied the suggestion that they moved an application for separation of kewat during consolidation of holdings. He stated that the fard jamavadi placed on record is prior to the consolidation proceedings. He denied the suggestion that Sumitra is not one of the LRs of Sh. Bhagwan Sahai. He stated that as he and his brothers were holding joint passbooks, he enquired from the banks and came to know about the deposits in different bank accounts.
10.2 Ld counsel on behalf of defendant No. 7,9,10 and 11 choose not to cross examine PW1.
10.3 In his cross examination on behalf of defendant No. 1 to 6, PW1 stated that he was illiterate. The eldest brother is Rai Singh. Hira Lal was educated till 12 th standard. He admitted that there no land in the name of his father in Village Nanku and Mandarka. His father died in 1968. He admitted that Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 42 of 84 on demise of his father, the properties left by him were mutated in the name of five brothers including himself, his sister and mother in the Revenue Record. His brother namely Rai Singh became karta of the family on demise of his father in 1968. He denied the suggestion that Hira Lal was 21 years at time of death of his father. PW1 volunteered that Hira Lal was elder to him and less than 21 years of age. He admitted that Sardar Singh was in Government Service when his father died and he(PW1) was doing his own job. Rai Singh was looking after the entire affairs inside and outside the house after death of his father. He stated that he cannot tell the date when the properties was mutated in the name of all brothers. He stated that Rai Singh may be aware of the same. The land was sold after 56 years of death of his father in parts to three purchasers on different occasion. He stated that he is not aware of the price of the sale. Nothing was paid to his mother out of the sale proceeds. He admitted that they all used to be present before the Office of Sub Registrar for all the time of registration of sale deed in respect of the agricultural land except his mother and Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 43 of 84 sister whose signatures used to be taken at home. The sale proceeds were deposited in different banks. His brother told them that the amount was deposited in joint account of five brothers in different banks i.e. Union Bank of India, Kapashera; another bank at Dichaukala and other at Palam. He had personally visited those banks and came to know that the amount is lying in the bank in the name of Roshan and Naresh. He cannot tell the exact age of Naresh at the time of sale of the land but he was small. He stated that he cannot tell whether Naresh was born in year 1972. He do not possess any copy or certified copy of the sale deed. He admitted that the land measuring 8 bighas 2 biswas belonging to his father is still not sold. He denied the suggestion that Hira Lal had sold his share. He further stated that they had purchased the land in Village Kapashera, Delhi and Haryana with the sale proceeds of ancestral properties. The land in Kapashera was purchased in three different occasion in name of five brothers. He cannot tell the year when the said land was purchased and its price. He had requested Hira Lal to supply the copy of the sale deed and Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 44 of 84 after death of Hira Lal to his LRs however he was not supplied the same. He further stated that the present plaint was drafted under his instruction as well as of Rai Singh.
10.4 Ld counsel on behalf of defendant No. 12,13,14,16 choose not to cross examine PW1.
10.5 In his further cross examination, PW1 stated that the land of his father was measuring 150 bigas. The said land was sold by them including Hira Lal. The said land was sold after 12 13 years of death of his father. He further stated when the land was sold, another land in Kapashera was purchased jointly in name of five brothers. They had also jointly purchased one tubewell with 45 killas land in Kapashera. After gap of 12 months another tubewell with 45 killas land and then again after gap of 12 months another tubewell with 45 killas of land in Village Kapashera, Delhi. 45 sale deeds were executed in the name of five brothers jointly. They had given written notice to the wife and children of Hira Lal after his death to produce Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 45 of 84 the sale deeds in respect of the land purchased.
10.6 PW1 further stated that 12 killas of agricultural land was purchased in Village Kapashera, Delhi in joint name of five brothers. He had not seen any document with regard to the said purchase as Hira Lal was the sole incharge of the same. He further stated that he is not aware whether any agricultural land was purchased in then name of his sisterinlaw Jagwati, Roshan Lal, Ramesh and Birmo Devi. He further stated that he do not know whether the land purchased in Village Kapashera, Delhi was during the consolidation proceeding. He further stated that he do not know the contents of Ex. PW1/A as he cannot read. He admitted that after death of his father, the jewellries remained in the possession of his mother. His mother was residing with all the five brothers. After death of his mother, the jewellries was in the custody of Sardar Singh. He stated that Hira Lal was made the karta of the family on the basis of trust. He admitted that during the lifetime of his father also, Hira Lal remained the sole incharge and was having Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 46 of 84 domineering position. He denied the suggestion that since Hira Lal was not karta darta of the family during the lifetime of his father, that is why he has not mentioned this fact in the plaint. PW1 stated that he do not have any document to show that the sale deed was prepared in name of five brothers. He further stated that after death of Hira Lal, he had received one book(kitab) from the concerned Patwari showing the details of the land which had fallen in his share. He further stated that all the documents with regard to the purchase of land measuring 180 Sq Yards is in the possession of Hira Lal. He admitted that after partition the plot of 180 Sq Yards fell in his share. He stated that he cannot tell when and from whom the plot of 160 Sq Yards was purchased. He denied the suggestion that the plot of 160 Sq Yards was purchased by Hira Lal for himself and his family. He further stated that all the five brothers are living together. He stated that no plot measuring 30 Sq Yards was lying adjacent to the plot 160 Sq Yards and the same was merged. He admitted that the plot of 160 Sq Yards which is builtup is in the possession of Jagwati. He admitted that the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 47 of 84 shop at Shalimar Bagh purchased by Hira Lal is in the possession of Naresh Kumar. He further stated that the said shop was purchased when all the brothers were living together. He admitted that the present suit was filed after due consultation with all the four brothers namely himself, Rai Singh, Sardar Singh and Roshan Lal.
10.7 During further cross examination, PW1 stated that he is not aware the price of the plot of 217 Sq Yards in khasra No 262 min of Village Kapashera in the name of Jagwati. He stated that the same was purchased from Balbir Singh, Samay Singh and Shri Chand. He has not seen its documents. Hira Lal, Rai Singh, Sardar Singh and Roshan Lal were present at the time of purchase of said plot and he was away for driving. PW1 stated that he do not know when, from whom and price the plot of 200 Sq Yards and 262 Sq Yards in 262 min and 266 min in khasra 109 in Revenue Estate of Village Kapashera was purchased. He do not know in whose possession the said plots are.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 48 of 84 10.8 He admitted that shops bearing No. 19,20,28,30 are in the Kapashera Shopping Complex. He denied that the payment towards the purchase of shop No. 20 was made by Rai Singh confronted with his affidavit where it is so recorded. He stated that he cannot read the site plan. The witness on being further cross examined admitted that shop No. 20 is in the name of Rai Singh and he had made the payment. He stated that he do not know the year when the land in Village Mandarka, Tehsil Nooh, District Gurgoan, Haryana was purchased but it was purchased when the ancestral land was sold. He stated that the same was purchased in the name of all five brothers and he was not present before the office of Registrar. In reply to the suggestion that the abovesaid plot at Mandarka was purchased in the name of Jagwati and Dhaneshwati, he stated that it must have been. He stated that Dhaneshwati is the wife of Dharam s/o. Ram Mehar(son of their elder uncle(Tauji)). He further stated that Dhaneshwati had married Dharam when her previous husband Mahinder Singh expired. He stated that Mahinder Singh had already expired Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 49 of 84 when the land at Village Mandarka was purchased. He denied the suggestion that Dhaneshwati had a share in the land at Village Mandarka. He further stated that Jagwati had succeeded Hira Lal after his death in respect of the land at Village Mandarka. He stated that the fard Ex.PW1/21 pertaining the land at Village Mandarka was obtained by him from concerned Patwari and Tehsildar. He denied the suggestion that the said fard was given to him by Rai Singh. He stated that the land at Village Mandarka was measuring about 12 bigas.
10.9 In his further cross examination, PW1 stated that he came to know about the purchase of the land at Village Mandarka after death of Hira Lal and the said fact was told to him by his brothers. He stated that the land measuring 11 Killas at Village Nanuka was purchased by his brother Hira Lal and the payment was done by Hira Lal. He did not know the share of the money paid by him to Hira Lal for purchase of the said land. The said land was purchased in the name of all the five brothers. He further stated that each part of said land was Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 50 of 84 situated across the road. He denied the suggestion that the said land was purchased in the name of Hira Lal land his wife Jagwati. He stated that the land situated at Kapashera, Delhi was being irrigated by well. He further stated that the land situated in Village Budhera, Tehsil & Distt Gurgoan, Haryana measuring 6 killas was purchased by Hira Lal and after death of Hira Lal, it was transferred in the name of wife of Hira Lal and his(plaintiff's wife name). He cannot tell when the said land was purchased and its price. He further stated that he came to know about the purchase of said land when SriChand(brotherinlaw of Sardar Singh) alongwith his son Om Prakash came to their house and asked him to get the land registered in respect of the 6 killas. He admitted that the said land at Village Budhera is in the name of Shanti Devi, Kailash Devi, Bermi Devi, Jagwati and Parmeshwari Devi. In his further cross examination, PW1 stated that prior the said land was in the name of Sri Chand. He further stated that the payment in respect of the said land was made 6 months earlier to the execution of the sale deed. He further stated that the payment was made to Sri Chand and the same Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 51 of 84 was kept by his son Om Prakash in bank. He further stated that Sri Chand is the fatherinlaw of his Sardar Singh and he is also their uncle(mausa).
10.10 In further cross examination, PW1 stated that they are coowners of the land at Daulatabad, Gurgoan Haryana measuring 34 killas and the same was purchased by Hira Lal. He admitted that beside all the brothers, fatherinlaw of Hira Lal namely Chaman Lal and one Tara Chand was also having 1/3rd share in the said land. He stated that he do not know the amount for which the said land was purchased nor he had seen the sale deed. He is also not aware of the khasra number and khatoni number of the said land. He admitted that godowns were constructed in the land at Daulatabad. He also admitted that the said godowns were sold by all the five brothers, Tara Chand and Chaman Lal. He had not gone to the office of Registrar at Daulatabad at the time of sale of the said godowns and his signatures were taken at Kapashera by his brother Hira Lal. He stated that he do not know the sale proceeds of the said Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 52 of 84 godowns nor he had asked about it from Hira Lal.
10.11 In his further cross examination, PW1 denied the suggestion that in the year 1989, he agreed to sell the land measuring 7 bighas 15 biswas to Om Prakash Yadav. He denied that he had received a sum of Rs.1,00,000/ for said transaction. He denied the suggestion that documents were executed in writing between him and Om Prakash Yadav. He stated that no suit was instituted by Om Prakash or MS Yadav against him. He stated that he do not know whether Rai Singhand Sardar Singh agreed and executed to sell 2 bigas to Om Prakash Yadav. He admitted that in pursuance to the three suit for specific performance instituted by Om Prakash Yadav, the money was returned to him. In his further cross examination, PW1 denied the suggestion that the sale consideration was taken by him, defendant No. 8 and 9 and not by Hira Lal. He admitted that in the relevant document, he is shown as owner in respect of the land sold by him to Om Prakash Yadav. He admitted that in the relevant documents, Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 53 of 84 Sardar Singh is shown as owner in respect of the land sold by him to Om Prakash Yadav. He admitted that in the relevant documents, Rai Singh is shown as owner in respect of the land sold by him to Om Prakash Yadav. He also admitted that in pursuance to the suit filed by Om Prakash and the agreement between them, he had paid as sum of Rs.2,26,000/; Sardar Singh and Rai Singh had paid a sum of Rs.1,40,000/ each to Om Prakash.
10.12 In his further cross examination, PW1 stated that he has no documentary evidence to show that Hira Lal has brought a land from Suraj Bhan. He do not know the consideration paid by Hira La to Suraj Bhan. He also do not know if sale deed was executed in favour of Rai Singh in respect of the said land. He do not know if Chander Hans has challenged the said sale deed in favour of Rai Singh. He further stated that he do not know who is in occupation o the said land as on today. PW1 further stated that he do not the share of Sumitra in the land of his father. Sumitra has not sold her share. He further stated that the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 54 of 84 land was sold in portions after construction of 78 farm house on the land vide sale deed signed by all five brothers ad sister. He admitted that Sumitra was married at the time of demise of his father and she was residing at her matrimonial home. The jewellery of his mother and sister remained in possession of his mother and after death of his mother, it remained with his sister in the house and when his sister left, the same are in possession of Sardar Singh as the jeweller are kept in Iron chest which remained in the house in the possession of Sardar Singh.
10.13 In his further cross examination, PW1 stated that after death of their father the properties were mutated in the brothers and not in the name of his mother. He admitted that at the time of death of his mother certain immovable properties were still unsold. He is not aware as to in whose share the property belonging to his mother(Anaro Devi) fell. He further stated that he do not know in which year the five brothers have opened bank account. He further stated that he do not know, if Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 55 of 84 any account exists in name of Jagwati and her children or any FDR in their name in said bank. He also have no information with respect to any joint bank account of five brothers or separate account of Hira Lal or any other brother or with their wife and children either. He admitted that all the brothers are the owners of their respective land in their respective names.
EVIDENCE OF DEFENDANT NO. 111. Defendant No. 1 examined himself as DW1 and tendered his evidence by way of affidavit Ex.DW1/A. 11.1 In his cross examination, DW1 stated that his DOB is 05.02.1972. His grandfather expired in the year 1968. There were 23 rooms in his house and he used to reside with his friends. He further stated that he do now know if his uncles were living in the same place however they were in the same village in their respective portion of their residence. The Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 56 of 84 boundaries of the said residence was not common. He further stated that he do not recollect the distance between his kitchen and that of his uncles. H cannot say whether the houses of his uncles and his was in same plot. He cannot recollect whether the electric connection was in the name of his parents or not at that time. He cannot say whether the electric connection was in the name of his eldest uncle Rai Singh and from that, electricity used to be consumed by all. He cannot recollect whether the water connection was there in his house at that time. He volunteered that there was common hand pumps in the Village. He cannot recollect that the electric connection was in the name of Roshan and water connection was in the name of Rai Singh.
11.2 He further stated that he alongwith his family continued to reside in the said house till his school days. Thereafter, his family purchased a house in the same Village and shifted there in around 1990. He admitted that his family shifted to said house after death of his father who expired in the year 1989. He was studying in the year 1990. His family was Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 57 of 84 not into cultivation. He volunteered that in the year 1990 his family was not in possession of any ancestral land. He do not recollect whether his grandfather left more than 90 bigas of agricultural land when he expired. His father got 1/7th share. His father used to cultivate the land that fell in his share in Village Kapashera. He cannot recollect whether there was any demarcation between the share that came to his father and his uncle. He used to assist his father in cultivation. The agricultural land was within 23 Km from his house.
11.3 In his further cross examination, DW1 stated that his grandfather left agricultural land at two places i.e. eastern and western side of Village Kapashera in several portions. He stated that he do not recollect whether his grandfather had left agricultural land at Ramalwala Kuan measuring 38 bigas 8 biswa in kewat No 166/152. He also do not recollect that his grandfather had left 9 bigas land at Nai Tod and the said land was sold by his father and uncles to Deepak Bhardwaj. He also do not know whether his grandfather was having agricultural Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 58 of 84 land measuring 9 bigas at Badwala Kuan Village Kapashera and the same was sold by his father and four uncles in year 198586. He denied the suggestion that on 06.11.1986 his father and uncles transferred the ancestral agricultural land measuring 2 bigas 5 biswa in the name of his mother Jagwati Devi. He denied the suggestion that on 06.11.1986, his mother had purchased a land measuring 18 bigas from the proceeds of sale of ancestral land and on 25.03.1986, his father purchased land measuring 2 bigas from the sale proceeds. He further stated that his mother had purchased 1/5th share of 6 acre land in Village Budheda, Gurgoan, Haryana out of her own individual funds. He admitted that his father had purchased a land at Daulatabad, Gurgoan from his own funds but stated that he do not recollect where other uncles had also purchased any agricultural land at Daulatabad and whether the land was got registered in his name. He admitted that his parents were having bank accounts but he could not recollect the bank name. He admitted that his mother was having a plot measuring 217 Sq Yards in Kapashera which was purchased from her own Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 59 of 84 funds. He further stated that her mother had purchased the said land from the earnings of agricultural land in her name and in the name of her husband and her son and the sale proceeds of the sale of share of his father. He admitted that his family has three shops in Ocean Complex, Kapashera and the same is presently with Jagmal Singh, Roshan Lal and Rai Singh as licensee after death of his father as relations between the parties was normal at that time. He admitted that he has different plots/ lands in Kapashera but could not tell its details like the area etc. He stated that the land in Calista Garden was received in pursuance to the consolidation proceedings. He stated that the land after consolidation proceedings was three times more than the original land in Kapashera Village. The witness regarding the details of the lands purchased by his father and mother in their name was unaware about of it.
EVIDENCE OF DEFENDANT NO. 912. Defendant No. 9 i.e. Rai Singh examined himself as Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 60 of 84 DW2 and tendered his evidence by way of affidavit. The same is Ex.DW2/1.
12.1 During his cross examination on behalf of plaintiff, defendant No. 9 i.e. Rai Singh stated that defendant No.1(Naresh) left the joint property probably in the year 199091 and prior to that all the properties, family funds were owned jointly by all the members. The kitchen was also used to be run jointly. The food for whole was mostly prepared by Jagwati and Parmeshwari with help of other ladies. He further stated that marriage of daughter of Sardar Singh was solemnized in the year 1990 with joint funds and similarly the marriage of Jagmal Singh was solemnized in the year 1991 and money was arranged from the joint account of him and Naresh. The cross examination of defendant No. 9 i.e. Rai Singh on behalf of plaintiff was struck off as there is no adverse interest claimed by defendant No. 9 and he is supporting the case of plaintiff.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 61 of 84 12.2 In his cross examination on behalf of defendant No. 1 to 6, defendant No. 9 i.e. Rai Singh stated that he is older than his brother Hira Lal by 12 years. He further stated that Sardar Singh, Roshan Lal, Sumitra Devi are elder to Hira Lal. Jagmal Singh is younger to Hira Lal. He was 33 years and Hira Lal was about 21 years at the time of death of his father. He admitted that after death of his father he was looking after the affairs of the family and the entire properties stood mutated in the name of himself, his mother, his four brothers and sister and all are I Class legal heirs and have inherited 1/7th share. He further stated that all the properties except 8 bigas 2 biswas left by his father was sold out. He further stated that firstly in the year 1980, 19 bigas was sold, in year 198384, 10 bigas was sold, in year 198485, 9 bigas was sold and in year 198687, 50 bigas(10 killas) were sold and thereafter no inherited property was sold out. He had signed all the documents regarding the sale transaction. He further stated that Hira Lal was looking after the sale transaction. He denied the suggestion that all the family were having separate kitchens. He admitted that his Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 62 of 84 father was having three separate houses. The old house was about 300 Sq Yards, second house was about 150 Sq Yards, third house was about 10001100 Sq Yards. Presently, he alongwith Sardar Singh, Jagmal Singh are residing in the third house. He admitted that land was purchased in the Village Chandu, District Gurgoan in the name of wives of all the brothers. He had sold his land in Village Chandu in year 2013. He admitted that after consolidation proceedings all the four brothers got land in return of their share. The witness to the Court Question as to how the LRs was not having any share in the land in question in suit No. 2728/1998, the witness stated that after consolidation the share of the land of Hira Lal and Roshan was allotted at some other place. He also stated that Hira Lal was looking after the affairs of the joint sale purchase of family properties.
12.3 In his cross examination on behalf of defendant No.8 and 15, defendant No. 9 i.e. Rai Singh denied the suggestion that no jewelery was ever entrusted to Sardar Singh. He also Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 63 of 84 denied that sale proceeds were distributed according to share of the parties.
EVIDENCE OF DEFENDANT NO. 613. Defendant No. 6 Smt Jagwati s/o. Hira Lal examined herself as DW2. She tendered her evidence by way of affidavit Ex.DW2/A. 13.1 During her cross examination on behalf of plaintiff, defendant No. 6 Jagwati stated that she is 56 class pass and she had read the contents of her affidavit. She had no knowledge of English language. She is not aware of the land left behind by her father in law. She do not know the share of her husband. She stated that at the time of her marriage, Jagmal was unmarried and the kitchen was separate. Jagmal used to live with his parents. The affairs of the family was being looked after individually as the families were living separately.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 64 of 84 Her mother in law expired in the year 199778 and the share of her mother law was divided in all the five brothers and one sister. She admitted that after death of her mother in law, 1/6th share was inherited by her husband. She could not recollect whether she was having bank account in the year 1977 or 1980 or 1985 or 1986 or 1987. She further stated that her husband was a property dealer and used to earn handsomely in lacs. She admitted that her husband alongwith his brothers had sold a land in the year 1986 in Kapashera. She stated that separate properties were purchased by the family members from their individual share of sale proceeds received.
13.2 In her further cross examination, defendant No. 6 Jagwati admitted that she was engaged in agricultural work and likewise plaintiff, Rai Singh, Roshan Lal and Sardar Singh. They were having Tractor and Bullock Carts. She cannot recollect whether the said Tractor was owned by plaintiff, Rai Singh, Roshan Lal and Sardar Singh or not. She stated that the shop NO 19,20,28 and 30 situated in Kapashera Shopping Complex Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 65 of 84 are in the name of herself, her son and her daughter. She further stated that she had purchased the land measuring 910 acre in Village Nanuka, Tehsil Nooh, Haryana. She also admitted that an agreement in the year 1989 was executed by Hira Lal in respect of land measuring 6 acres in Village Budheda, Haryana. Witness volunteered that all the five brothers had executed the agreement in respect of their respective shares. She stated that she do not know whether there was single or separate registered sale deed in respect of the aforesaid land since the registry was done after death of her husband. The registry was done in her name and other four brothers of her husband. She admitted that the properties were sold at Kapashera and thereafter sale proceeds was divided between five brothers and thereafter they purchased the separate properties in their separate names.
13.3 In her further cross examination, defendant No. 6 Jagwati admitted that on 06.11.1986, her husband purchased about 18 bigas and few biswas land in Village Kapashera in her Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 66 of 84 name. She further stated that 6 bigas land was purchased in her name in Village Budhela, Haryana by her husband from his earnings. She stated that she do not know Ramesh Chand who is a friend of her husband. In her further cross examination, defendant No. 6 Jagwati stated that she do not remember that any shop was purchased by her or her husband in Shalimar Shopping Center. She do not know in whose possession the jewellery of her mother in law remained at time of her death. He husband had purchased plot measuring 160 Sq Yards which is now builtup till three story. She had purchased plot measuring 217 Sq Yards at Village Kapashera from her own funds and lateron it was sold out.
13.3 In her further cross examination, defendant No. 6 Jagwati admitted that her fatherinlaw was having three tubewell in Village Kapashera. She cannot tell the sale consideration of the four shop in shopping complex. The sale deed of 6 acre was in the name of Rai Singh, Sardar Singh, Roshan Lal, Jagmal Singh and himself. She do not know if Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 67 of 84 Sumita had filed any complaint against Sardar Singh. She do not have any joint account with her brotherinlaw. She do not remember when consolidation of land was done but it may be about 20 years ago. She had land in Kapashera but do not know its area.
FINDINGS AND ANALYSIS
14. Heard Ld counsel for the parties and perused the complete record file. I have also gone through the written submissions filed by Ld counsel for the parties. My issuewise findings are as follows:
ISSUE NO. 1 & 2 Whether the suit is barred by East Punjab Hoarding(Consolidation) & Prevention of Fragmentation) Act, 1948 ? OPD Whether the suit is barred under Delhi Land Reform Act ? OPD Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 68 of 84
15. The onus to prove the said issues was upon the defendants. Sh. Sudhanshu Tomar, Advocate, Counsel for defendants No.9 & 11 has argued that according to para No.3 of the plaint, Sh.Bhagwan Sahai father of the plaintiff was a bhumidhar as admitted in para No.3 of the amended plaint. There are three schedules appended with the plaint and Schedule 1 contains the agricultural properties which are sought to be partition, but Ld. Counsel for defendants No.7 & 11 has argued that it is an admitted fact that consolidation proceeding were going on in respect of the suit land and according to Section 44 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948) jurisdiction of the Civil Court is barred. Section 44 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948) is reproduced here.
16. Section 44 of The East Punjab Holdings (Consolidation and Prevention of Fragmentation Act, 1948) : Jurisdiction of Civil Court barred as regards matter Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 69 of 84 arising under this Act - No Civil Court shall entertain any suit instituted or application made, to obtain a decision or order in respect of any matter which the Chief Commissioner or any Officer is, by this Act, empowered to determine, decide or dispose of. He has further argued that according to Section 11 of Delhi Land Reforms Act, 1954, Late Sh. Bhagwan Sahai who was predecessor in interest of the parties to the suit, was declared a bhumidhar in respect of the suit land and inheritance to his property is devolved by the order of Succession given in Section 50 of Delhi Land Reforms Act, 1954. The relevant portions are reproduced are as follows:
17. Section 11 of Delhi Land Refrorms Act, 1954:
Declaration of Bhumidhari rights in favour of the proprietors and superior class of tenants, compensation and land revenue. - (1) Subject to the provisions of Section 10, the Deputy Commissioner shall declare as Bhumidhars persons holding the following lands, namely:
(a) Khudkash land or a proprietor's grove in the tracts to Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 70 of 84 which the Punjab Tenancy Act, 1887, was applicable or sir land khudkasht land or a proprietor's grove in the tracts to which the Agra Tenancy Act, 1901, was applicable;
(b) land held by occupancy tenant under Section 5 of the Punjab Tenancy Act, 1887, with right of transfer by sale; and
(c) land held under Patta Dawami or Istamrari by tenants with right of transfer by sale.
18. Section 50: General order of succession from males Subject to the provisions of Section 48 and 52, when a Bhumidhar or Asami being a male dies, his interest in his holding shall devolve in accordance with the order of the succession given below:
(a) male lineal descendants in the male line of the descent:
Provided that no member of this class shall inherit if any male descendant between him and the Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 71 of 84 deceased is alive:
Provided further that the son or sons of a predeceased son howsoever low shall inherit the share which would have devolved upon the deceased if he had been then alive;
19. Ld. Counsel has further argued that if the parties wanted to get the suit land partitioned they could have file an application for partition before the concerned Revenue Assistant, he has further argued that according to Section 55 of Delhi Land Reforms Act, 1954, Gaon Sabha concerned shall be made a party. Ld. Counsel has further argued that the Civil Court has no jurisdiction in view of the law laid down in Section 20 & 21 of Delhi Land Reforms Act, 1954, on the other hand Ld. Counsel for the plaintiff has argued that the land was admittedly agricultural land at the time of filing of the present Civil Suit, but now it has been declared as Urbanized land, so the Civil Court has jurisdiction because the rights of the parties are to be seen at the time of judgment and not at the time of filing of Civil Suit, Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 72 of 84 on the other hand Ld. Counsel for the defendants have argued that the rights of the parties are crytalized at the time of filing the Civil Suit and the jurisdiction is to be seen at the time of filing of the civil suit. This Court is of the view that contention advanced by Ld. Counsel for the defendants is right. The rights of the parties are crystallized on the date of filing of the civil suit and when the civil suit was filed in the year of 1992, at that time Civil Court was not having jurisdiction to entertain and try the present Civil Suit with regard to the properties mentioned in Schedule1, which are admittedly agricultural land.
20. Since issue No.1 & 2 are the common. These issues are decided in favour of the defendants and against the plaintif, this Court has no jurisdiction in respect of the properties shown in Schedule-A, therefore the Civil Suit is dismissed qua the properties mentioned in Schedule-1 appended with the plaint.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 73 of 84 ISSUE NO.3 Whether the suit is bad for non joinder of necessary parties i.e. Kailash Devi, Shanti Devi, Parmeshwari Devi, Deepak Bhardwaj, his wife, Om Prakash? OPD
21. The present issue was not pressed neither by the plaintiff nor by the defendants, so it is decided against the defendants and in favour of the plaintif.
ISSUE NO. 4 Whether there is a collusion between the plaintiff and defendant No. 6 to 11 ? OPD
22. Neither pressed nor argued before this Court by any of the parties, so it is decided in favour of the defendants and against the plaintif.
Jagmal Singh vs. Naresh Kumar & Ors
AND
Sardar Singh vs. Rai Singh & Ors
Page 74 of 84
ISSUE NO. 5 & 6
Whether there was a Joint Hindu Family
between the parties ? OPP
Whether the suit properties formed Joint
Hindu Family properties and what are the
Joint Hindu Family properties, if any ? OPD
23. Both these issues are taken up together. It is vehemently argued by the Counsel for the plaintiff that there was a Joint Hindu Family consisting of common ancestral Sh.Bhagwan Sahai and his successors in interest i.e. all the parties to the present civil suit forms the Joint Hindu Family. It is further argued by the Counsel for the plaintiff that there was a common kitchen and communality of interest between the number of Joint Hindu Family.
24. The treatise in the name of Modern Hindu Law written by Dr. Paras Diwan, it is written that what should be Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 75 of 84 the composition of Joint Family "a joint Hindu Family consist of the common ancestor and all his lineal male descendants upto any generation together with the wife or wives and unmarried daughters of the common ancestors and of the lineal male descendants." It is further prescribed at page No.284 that no presumption that joint family holds joint property "there is no presumption that joint family possess joint property (vide Chander Vs. Godhani reported in 1981, Patna, 43). It has not be seen that normally a joint Hindu Family is joint in estate, but there is no presumption that the properties held by a member of Joint Family are joint family properties (vide Shadilal Versus Lal Bahadur, 1933, P.C. page No.85) in Hindu Law existence of joint property is not a condition precedent to the existence of joint family. When properties purchased in the joint names, it is for the person who alleged it is to be a separate property to prove it. However, in the present civil suit the concept is converse, the plaintiff is alleging that the properties purchased in the name of various defendants were purchased by a joint Hindu Family funds therefore, they have acquired the form of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 76 of 84 joint Hindu Family property and therefore, the plaintiff is entitled to a share in the joint Hindu Family property, therefore, the present civil suit may be decreed.
25. On the other hand, Sh. Anil Bhasin, Counsel for the defendants has argued that it is not a case of the plaintiff that he was a coparceners in the joint Hindu Family and therefore, entitled to a share in the property by birth. Ld. Counsel for the defendants has further argued that the properties acquired by late Sh. Bhagwan Sahai were the selfacquired properties of him and therefore, the properties left by him are not to be partitioned. It is further argued by the Counsel for the defendants that the plaintiff could have filed a civil suit for declaration to get the properties sold out by some of the defendants as null and void and since the plaintiff has not filed a civil suit for declaration and only filed a suit for partition that's why the simplicitor suit for partition is not maintainable.
26. After perusing the case file, evidence led by all of Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 77 of 84 the parties and arguments advanced by the Counsel for the parties this Court is of the view that plaintiff has failed to prove the properties contained in ScheduleB & ScheduleC, as joint Hindu Family properties. Moreover, there is a force in the contention of Ld. Counsel for the defendants that the plaintiff could have filed a civil suit for declaration to get the properties sold out to be declared has null and void. Accordingly, issue No. 5 & 6 are decided against the plaintif and in favour of defendants.
ISSUE NO. 7 Whether the suit has not been properly
framed for the purpose of Court Fee and
Jurisdiction ? OPD
27. Since the present Civil Suit was filed with the allegations that the plaintiff wants to get the properties of joint Hindu Family partitioned and he is in constructive possession of the suit properties, therefore, the present suit bears a correct valuation and correct Court fee. This issue is hereby decided Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 78 of 84 in favour of the plaintif and against the defendants.
ISSUE NO. 8 Whether after the death of Sh Bhagwan
Sahai, his LRs succeeded as Joint Hindu
Family ? OPP
28. It is vehemently argued by the Counsel for the plaintiff that there was a Joint Hindu Family consisting of common ancestral Sh. Bhagwan Sahai and his successors in interest i.e. all the parties to the present civil suit forms the Joint Hindu Family. It is further argued by the Counsel for the plaintiff that there was a common kitchen and communality of interest between the number of Joint Hindu Family. The treatise in the name of Modern Hindu Law written by Dr. Paras Diwan, it is written that what should be the composition of Joint Family "a joint Hindu Family consist of the common ancestor and all his lineal male descendants upto any generation together with the wife or wives and unmarried daughters of the common Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 79 of 84 ancestors and of the lineal male descendants." It is further prescribed at page No.284 that no presumption that joint family holds joint property "there is no presumption that joint family possess joint property (vide Chander Vs. Godhani reported in 1981, Patna, 43). It has not be seen that normally a joint Hindu Family is joint in estate, but there is no presumption that the properties held by a member of Joint Family are joint family properties (vide Shadilal Versus Lal Bahadur, 1933, P.C. page No.85) in Hindu Law existence of joint property is not a condition precedent to the existence of joint family. When properties are purchased in the joint names, it is for the person who alleged it is to be a separate property to prove it. However, in the present civil suit, the plaintiff is alleging that the properties held by the plaintiff and defendants are acquired in the form of joint Hindu family property. However, the plaintiff has not appended the three mutations required to be proved as ancestral property/joint Hindu Family. In view of the contention advanced Ld. Counsel for the defendants that since Late Sh.Bhagwan Sahai was declared as bhumidhar, therefore, all Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 80 of 84 the parties have succeeded as cobhumidhars of the property and the properties are not inherited by them as ancestral/joint Hindu Family property. Moreover, it is contended on behalf of the Counsel for the defendants that after selling out the suit properties no subject matter of partition is present herein between the parties, so, the partition is not possible. Accordingly, the issue No.8 is also decided in favour of the defendants and against the plaintif.
ISSUE NO. 9 Whether Hira Lal was the karta of the Joint Hindu Family, at any point of time ? OPP
29. The onus to prove this issue was placed upon the plaintiff. In reply to this issue, Counsel for the defendants have attracted the attention of this Court of crossexamination of Rai Singh(DW2), he has attracted my attention on page No.3 of the examination 7th line from the above, which was conducted on 30.01.2017, it states that "it is correct that after death of my Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 81 of 84 father, I being the eldest brother was looking after the family affairs. In view of the admission made by DW2 Rai Singh, it is clear that he was the karta instead of Hira Lal as alleged by plaintiff and he was also the eldest member of the family, therefore, according to Hindu Succession Act, 1956, he should be the karta of the family. Accordingly, issue No. 9 is decided in favour of the defendants and against the plaintif.
ISSUE NO. 10 Whether Hira Lal was in possession of any jewellries belonging to the Joint Hindu Family and if so, to what effect ? OPP
30. Smt.Jagwati Devi W/o Late Hira Lal was examined as DW2. However, nothing was put to her in the cross examination about the jewellries by Ld. Counsel for the plaintiff, the affidavit by way of examinationinchief is also silent in this regard, therefore, the this issue is also decided against the plaintif and in favour of the defendants.
Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 82 of 84 ISSUE NO. 11 Whether the plaintiff is entitled to the partition of the suit properties and if so, what is the share of the respective parties ? OPP
31. On the perusal of the case file, the pleadings advanced by the parties, evidence led by the parties and the arguments advanced by the parties and my discussion on the other issues, this issue is decided against the plaintif and in favour of the defendants.
ISSUE NO. 12 Whether any of the suit properties are self acquired property of any of the defendants, as alleged in para VI of the plaint ? PO
32. Since the plaintiff has failed to prove the suit properties as joint Hindu Family properties, therefore, the suit Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 83 of 84 properties are to be deemed to be selfacquired properties of the defendants, issue No. 12 is also accordingly decided in favour of the defendants and against the plaintif.
ISSUE NO. 13/RELIEF
33. Keeping in view the discussion on the Issues No.1 to 12, the civil suit for partition filed by the plaintiff titled as Jagmal Singh vs. Naresh & Ors and the connected civil suit titled as "Sardar Singh vs. Rai Singh & Ors are hereby dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Pronounced in the open Court on 26.09.2023 in Dwarka Courts, Delhi.
This judgment contained 84 pages and each and every pages has been signed by me.
(AMAN PRATAP SINGH) ADDITIONAL DISTRICT JUDGE -01 SW DISTRICT, DWARKA COURTS Jagmal Singh vs. Naresh Kumar & Ors AND Sardar Singh vs. Rai Singh & Ors Page 84 of 84