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[Cites 16, Cited by 0]

Delhi District Court

Shri Dharambir Singh vs Shri Ram Kishan on 30 November, 2022

IN THE COURT OF SUMIT DASS, ADDITIONAL DISTRICT JUDGE­
        04, SOUTH WEST DISTRICT, DWARKA COURTS,
                       NEW DELHI.


CNR No.DLSW01­004482­2016


CS No.517274 of 2016


In the matter of:

1.     Shri Dharambir Singh

2.     Shri Jai Bhagwan

       Both s/o late Sh. Munshi Ram
       R/o House No.44,
       Village Nangli Sakrawati,
       Delhi.                               .......Plaintiffs.


                                   VERSUS

1.     Shri Ram Kishan

2.     Shri Jai Narain,

       both sons of late Sh. Meer Singh,
       R/o Village Nangli Sakrawati,
       Delhi.                               ......Defendants.




CS No. 517274/16                                    Page No. 1/21
                       Date of Filing    : 18.09.2012
                      Date of Arguments : 23.11.2022
                      Date of Decision : 30.11.2022

JUDGMENT

1. The plaintiffs have filed the present suit for partition and permanent injunction against the defendants.

2. In brief the case of the plaintiffs is that parties in the present case are successors in interest of a common ancestor namely Sh. Dhala who had two sons namely Munshi and Meer Singh. On the death of Shri Dhala in the year 1965, his above named two sons inherited his properties in equal shares to the extent of ½ share each. Plaintiffs are successor of Sh. Munshi while the defendants are successors of late Sh. Mir Singh. During consolidation of holdings proceedings in the village carried out in the year 1970­71, both the brothers were allotted agricultural holdings and also residential plots bearing Khasra Nos.176/1/1 (1­18), 176/2/2/ (0­3), 176/3(2­0) and 103 in lieu of their pre­consolidation holdings.

2.1 It is further averred in the plaint that on the death of Sh. Mir Singh on 28.12.1995, his right title and interest have devolved upon defendant Nos.1 and 2 in equal shares which have been duly recorded in the revenue record. Similarly on the death of Sh. Mushi, his rights devolved on the plaintiffs by succession through Will.

2.2 It is also averred that residential plots mentioned above have been partitioned by the father of the parties during their life time and constructions have been raised on the plots by both the parties as per site plans filed with the CS No. 517274/16 Page No. 2/21 plaint. Under the family partition the defendants have about 1376 sq yards of land in their possession as shown in site plan A and entire 200 sq yards of land in Khasra No.103 as shown in site plan B. The plaintiffs have 1484 sq yards of the land in their occupation as shown in green colour in site plan A. Both the parties have erected their structures on the land since long and during the life time of their predecessors. There is a piece of land which was sold by both the predecessors of the parties on which structures of the purchasers are in existence same is reflected in orange colour in the site plan. Agricultural holdings continue to be joint and the same are being cultivated by the parties as per mutual arrangement as per their share(s).

2.3 It is also stated in the plaint that subject matter of the present suit is the Gher/Residential Plot comprised in Khasra No.176/3 measuring 900 sq yards in extended Lal Dora of village Nangli Sakrawati, New Delhi i.e. suit property. This plot was kept as open vacant by the predecessors of the parties and has always been used as Gher/Gitwar by them for the purpose of tying cattle, stocking dung cakes, throwing garbage and storing agricultural implements etc. This piece of land has been in common use and possession of the parties. The plaintiffs and defendants and their predecessors had mutually agreed that the plaintiffs shall get their share of 495 sq yards on the eastern side of the plot in dispute whereas the defendants shall have the balance 405 sq yards on the western side.

2.4 It is further stated that plaintiffs had been requesting the defendants to partition the suit land keeping in mind the old partition and mutual oral understanding of the predecessors of the parties and the defendants CS No. 517274/16 Page No. 3/21 had orally agreed to effect the partition on number of occasions. The plaintiffs with a view to separate their land had started erecting a wall but the defendants did not permit the plaintiffs and stopped the plaintiffs from proceedings with the erection of wall and demolished the same. The plaintiffs made a police complaint on 09.07.2012 and further police has filed a Kalandara U/s 107/150 CrPC on 30.7.2012. The plaintiffs have also filed a private complaint U/s 200 CrPC. Plaintiffs have requested the defendants a number of times to divide the suit plot in accordance with their shares and mutual understanding but in vain. Hence, the present suit.

3. Defendants in their joint Written Statement have raised the preliminary objections that the suit has not been properly valued for the purpose of Court fee and jurisdiction, hence, liable to be dismissed. It is stated that the plaintiffs and defendants are Bhumidars/co­sharers of 38 Bighas and 8 Bishwas land, however, the plaintiffs by way of present suit is seeking partition of 2 Bighas of land out of it only. It is further stated that Civil Court has no jurisdiction to entertain the present suit in view of the provisions of Section 185 and 33 and 55 of the Delhi Land Reforms Act, 1954. Plaintiffs have not made Gaon Sabha as party in the present suit and as such the suit is liable to be dismissed for non­joinder of necessary parties.

3.1 It is further stated that the plaintiffs have suppressed the material facts that the partition has already taken place in the year 1971 at the time of consolidation of holdings of land and ever since the defendants are residing peacefully in the said property. It is also averred that the plaintiffs are seeking partition of only Khasra No.176/3 ad­measuring 2 Bighas situated in extended CS No. 517274/16 Page No. 4/21 Lal Dora, though the plaintiffs and defendants are the co­owners of land ad­ measuring 38 Bighas and 8 Biswas. It is also stated that said Khasra No.176/3 is of an area of 2.0 Bigha (approx 2000 sq yards). Further, even as per plaint the plaintiffs are at the most entitled to one half of the area out of it and for remaining once half of the area of the said Khasra number, the defendants are entitled being legal heirs of common ancestor namely Sh. Dhala. It is also stated that the defendants are in possession of only one half of the said Khasra number i.e. of 1 Bigha (approx 1000 sq yards), whereas the plaintiffs were also in possession of the remaining 1 Bigha (approx 1000 sq yards), however, the plaintiffs have transferred their half of the share i.e. half Bigha (approx 500 sq yards) to some one and in another half Bigha (approx 500 sq yards), the plaintiffs have constructed various rooms and rented it out and as such the defendants being entitled are in their lawful possession of half of the area of said Khasra No.176/3. It is further stated that out of this 2000 sq yards, the plaintiffs got at 500 sq yards at Western side, which the plaintiffs have transferred to somebody else and then in the middle, the defendants were having another piece of 500 sq yards out of it. The defendants possess 500 sq yards at North East side and the plaintiffs at North West side possess the remaining 500 sq yards and as such the plaint is stated to be without any cause of action and filed with ulterior motive to grab property on which defendants are residing with their family and keeping buffaloes. On merits, the defendants have denied the contrary version of the plaintiff and sought dismissal of the suit.

4. Replication was filed to the Written Statement. Contrary CS No. 517274/16 Page No. 5/21 averments were denied as false and incorrect and the stand pleaded in the plaint was reiterated and reaffirmed as correct.

5. Vide order dated 27.08.2016, following issues were settled:

(1)Whether the present suit is not maintainable in view of Section 185 of Delhi Land Reforms Act as alleged by the defendants?OPD (2)Whether the suit has been valued properly for the purposes of Court fees and jurisdiction and whether appropriate court fees has been affixed on the plaint? OPP (3)Whether the plaintiffs are entitled to decree of partition in respect of the suit property i.e. plot of land measuring 900 sq yards comprised in Khasra No.176/3, village Nangli Sakrawati, New Delhi, as prayed for? OPP (4)Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for?OPP (5)Relief.

Thereafter, the matter was posted for plaintiff's evidence.

6. Plaintiff No.2 Jai Bhagwan entered into witness box as PW1 and tendered his evidence by way of affidavit Ex.PW1/A. He relied upon following documents:

(1)Copies of Khatoni as Ex.P1 and Ex.P2, (2)Site plan as Ex.P3, (3)Site plans of suit property as Ex.PW1/1 and Ex.PW1/2, (4)Copy of complaint dated 09.07.2012 lodged by him in PS Najafgarh as Ex.PW1/3, (5)Certified copy of Kalandra u/s 107/150 CrPC as Ex.PW1/4, CS No. 517274/16 Page No. 6/21 (6)Certified copy of complaint u/s 200 CrPC filed by him in the court of Ld. ACMM as Ex.PW1/5.

PW1 was cross­examined and discharged.

7. PW2 Sh. Hari Om, Patwari from Tehsil Dwarka was also examined. He had proved Khatoni of Khata No.91/56 as Ex.P1. He further deposed that Khasra number mentioned in Ex.P1 as 176/1/1, 176/2/2 and 176/3 are plots in extended Abadi of village Nangli Sakrawati and rest of the land is agricultural land. He further deposed that Khatoni Ex.P2 of Khata No.285/189 is also correct as per their record and that Khasra No.103 mentioned therein is a plot situated in extneded Abadi of village Nangli Sakrawti.

PW2 was cross­examined and discharged.

8. Plaintiff No.1 Dharambir Singh entered into witness box as PW3. He filed his evidence by way of affidavit Ex.PW3/A. He relied upon following documents:

(1)Sizra­Akas (Map) in respect of residential plot/land situated in the lal dora area of village and of agricultural land of plaintiffs and defendants as Ex.PW3/1 and Ex.PW3/2, (2)Replies given from the office of SDM to the RTI applications of the plaintiffs as Ex.PW3/3 and Ex.PW3/4 (Colly), (3)Certified copies of Khataunis in respect of agricultural land and residential plot/land of plaintiffs and defendants and Sizra­ Akas (map) of residential land/plot in extended Abadi/lal dora as Ex.PW3/5 (colly) and Ex.PW3/6 (colly), CS No. 517274/16 Page No. 7/21 PW3 was duly cross­examined and discharged.

Thereafter, plaintiff's evidence was closed.

9. Defendant Ram Kishan entered into witness box as DW1. He tendered his evidence by way of affidavit Ex.DW1/A. He relied upon following documents:

(1)Khata Khatoni Ex.P1, (2)Site plan as Ex.DW1/1, (3)Photographs collectively as Ex.DW1/2 (colly), (4)Copy of electricity bill as Mark A. DW1 was cross­examined and discharged.

Thereafter, defendants' evidence was closed.

10. I have heard Sh. G.K. Pathak and Sh. Shiv Ram Singh Ld Counsel for the plaintiffs and Sh. Kunal Manav, Ld counsel for the defendants. Written arguments have also been filed and the same have been perused.

11. My issuewise findings are as under.

Issue no.1 reads as under:

(1)Whether the present suit is not maintainable in view of Section 185 of Delhi Land Reforms Act as alleged by the defendants?OPD 11.1 This issue was settled taking into account objection raised by defendants side that land is still agricultural land and in view of the bar contained U/s 185 of the Delhi Land Reforms Act, 1954 the suit for partition CS No. 517274/16 Page No. 8/21 does not lie before the Civil Court and the competent authority is Revenue Assistant.

Insofar as this particular aspect is concerned suffice to note herein that it has come on record that the suit property is in the Laldora/Abadi. 11.2 Insofar as plots/land in Lal Dora/abadi is concerned, it is but apparent that in lieu of agricultural land which is appropriated during consolidation proceedings, some portion of the land is earmarked for residential needs. The said purpose is achieved by converting the contiguous residential area into a larger residential area - a sort of extension of the abadi and the Bhumidar in lieu of the said land surrenders some of his agricultural land. This process is done during the consolidation proceedings. Same is primarily to cater the growing needs of occupants/residents as families grows and the need for residential or for assorted purposes increase. In this regard plaintiff side has relied upon certain judgments i.e. first is judgment of Hon'ble High Court of Delhi in the case of Shri Kishan v. Ram Kishan & Ors RFA (OS) No.59/2009 and relevant portion of the same reads as hereunder:

"12.Suffice would it be to state that there is no clarity with respect to properties listed at serials No.5, 7, 8 and 9, on the subject whether said plots were within the abadi or the extended abadi. We clarify, as and when consolidation is effected in a village, some part of existing agricultural lands are brought within the abadi and are allotted for non­agricultural operations. These lands would prima facie be outside the purview of a suit for partition before the Revenue Assistant.

13.Thus, holding that the appellant would be permitted to amend the plaint by highlighting the nature of the land as per serials No.5, 7, 8 and 9 of Annexure­A and if it is CS No. 517274/16 Page No. 9/21 pleaded that said land is non agricultural land, suit for the said lands would be maintainable, and in respect of land described in Annexure­B noting that with respect to lands at serials No.4, 5, 7 and 8 wherein it is stated that said lands are within the LalDora, declaration sought for said lands would also be maintainable for adjudication before the learned Single Judge, we dispose of the appeal setting aside the impugned decision as aforesaid, but clarify that with respect to other lands which admittedly are agricultural lands, necessary relief has to be sought before the Court of Revenue Assistant.

11.3 Now plaintiffs' side has also relied upon the judgment by Hon'ble Single Bench of High Court of Delhi in the case of Gyanender Singh v. NarainSingh & Ors passed in RFA No.497/2005 wherein Hon'ble High Court has made following observations:

4. The Trial Court, in my opinion, has clearly misdirected itself inasmuch as though all lands defined under Section 3(13) are the subject matter of the Delhi Land Reforms Act, 1954, however, a suit for partition, only of the nature comprised in Section 55 of the said Act, has to be filed before the Revenue Assistant. As per Schedule 1 read with Section 185, of the Delhi Land Reforms Act, 1954, it is clear that the suit for partition which is subject matter of the Schedule 1 at serial no.11 is a suit for partition of a "holding" of a Bhumidar. The expression "holding" is defined in Section 3(11a) of the Act to mean "Sir" or "Khudkasht" lands only. "Khudkasht" land is defined under Section 3(12A) to mean self­cultivated land by a proprietor either by himself or by his servants or by hired labour, i.e. agricultural lands which have not been let out to a tenant.
"Sir" lands are also basically self owned and self­cultivated CS No. 517274/16 Page No. 10/21 lands. The expression "Sir" is not defined in the Delhi Land Reforms Act, 1954, however, since the Delhi Land Reforms Act actually is an amalgam of different provisions/aspects of Land Reforms Acts which were prevalent in Delhi in 1954 when the Delhi Land Reforms Act, 1954 was passed, therefore, the definition of "Sir" lands will have to be seen from the Uttar Pradesh Land Revenue Act, 1901. As per Section 3(12) & (13) of the Uttar Pradesh Land Revenue Act, 1901, "Sir" land is defined as basically self owned and self­cultivated land. Therefore, "Sir" or "Khudkasht" lands are actually cultivable lands and therefore basically agricultural lands where cultivation takes place. Therefore, lands in village abadi, though would be the subject matter of Section 3(13) of the Act, however, the same would not fall within the definition of "holding" as contained in Section 3(11a) of the Delhi Land Reforms Act, 1954. Once, the land is not part of a "holding" of a Bhumidar, the same cannot be the subject matter of a partition suit under Section 55, and therefore, would not fall under serial no. 11 of Schedule 1 of the Act, and consequently, there would be no bar of a Civil Court to try and decide such suits for partition allegedly because of the bar in Section 185 of the Act.
6. A reference to para 5 of the plaint shows that except the land which is stated in para 5(B)(II), all other lands are non­agricultural/non­ cultivable lands, i.e. they are abadi lands falling in Lal Dora. Therefore, so far as the suit for partition is concerned, the same can continue except for the land which is the subject matter of para 5(B)(II) of the plaint, and only which latter land is agricultural/cultivable land which will fall in the definition of a "holding" under Section 3(11a) of the Act.
11.4 Plaintiff side has also relied upon another judgment titled as Smt. Indu Khurana v. Gram Sabha & Ors i.e. WP(C) No.4143 of 2003 with CS No. 517274/16 Page No. 11/21 regard to the proposition that pursuant to the notification U/s 507 of the Delhi Municipal Corporation Act, the area ceases to be rural areas and revenue authorities have no jurisdiction to deal with the matter. The Hon'ble Division Bench has observed in para no.11 that once rural area is urbanized by issuance of notification U/s 507 (a) of Delhi Municipal Corporation Act, 1957, provisions of Delhi Land Reforms Act will cease to apply. Now in this regard there is also a notification which is there on record dated 16.05.2017 i.e. notification No.F.7/79/ADLB/2016/CD­000383132/3827­3841 wherein the areas falling in Village of Nangli Sakrawati has been urbanized.
Though this notification is of subsequent date i.e. after the filing of the suit but in view of the ratio of the judgment i.e. of the of Shri Krishan (supra) and Gyanender Singh (supra), the provisions of Delhi Land Reforms Act, 1954 does not apply to land which falls in lal dora or village abadi.

This issue is accordingly decided in favour of the plaintiffs and against the defendants.

12. Now Issue no.2 reads as under:

(2)Whether the suit has been valued properly for the purposes of Court fees and jurisdiction and whether appropriate court fees has been affixed on the plaint?

OPP 12.1 Onus to prove this issue was casted upon the plaintiffs. 12.2 It is but apparent that the suit property is a plot in the extended abadi/lal dora. Plaintiffs also claimed that the property belongs to their CS No. 517274/16 Page No. 12/21 ancestors and a joint property i.e. was left from the bounds of partition which was effected between their predecessors in interest and continued to be jointly possessed. Plaintiff has valued the suit for the purposes of Court fees and jurisdiction for the relief of partition as Rs.54 lakhs and had affixed Court fee of Rs.20/­ as per para no.11 of the plaint. However, later on plaintiffs have filed Court fee to the tune of Rs.1,08,000/­.

12.3 Now admittedly if I go by the concept of cost of acquisition then the suit property would be valued at the rate of allotment of land which would be cost of the acquisition in the year 1971.

12.4 The plaintiffs have filed the Court fees in terms of order dated 11.12.2012 wherein the plaintiffs were directed to file the Court fees as per their share. The circle rate for Nangli Sakrawati which as per case of the plaintiffs falls under category H is Rs.13800/­ per sq mtr. Even if the suit property is valued at the said rate i.e. Rs.500/­ sq yards X Rs.13800/­ the value comes to Rs.69 lakhs upon which the plaintiffs have already filed Court fee of Rs.1,0800/­ which is much more than the Court fees as determined. 12.5 The defendants have also not led any evidence to substantiate the plea that the said valuation is incorrect or in any manner lower than the market price.

12.6 Consequently, in view of the evidence led, this issue is decided in favour of the plaintiffs and against the defendants.

13. Now coming to crux of the case i.e. issues no.3 and 4.

Issue Nos.3 and 4 read as under:

(3)Whether the plaintiffs are entitled to decree of partition in respect of the suit property i.e. plot of CS No. 517274/16 Page No. 13/21 land measuring 900 sq yards comprised in Khasra No.176/3, village Nangli Sakrawati, New Delhi, as prayed for?OPP (4)Whether the plaintiffs are entitled to decree of permanent injunction, as prayed for?OPP Plaintiffs have propounded the case that entire land inter­se which the parties to the suit had inherited from their ancestors was partitioned except land which falls in Khasra no.176/3 measuring 900 sq yards at the spot/otherwise 1 Bigha i.e. 1000 sq yards. Plaintiffs further contended that this portion of land was being used for the purpose of Gher/Gitwar i.e. for tethering animals, putting cow dung and for keeping agricultural tools and implements etc. Plaintiffs have calculated that their share in remaining 900 sq yards comes to 495 sq yards and balance 405 sq yards would be of the defendants.

13.1 This case as propounded by the plaintiffs is sought to be repelled as it is contended by the defendants that the earlier partition interse their predecessor in interest was complete and the defendants are in possession of their shares i.e. approximately 1 Bigha. The plaintiffs had disposed of 500 sq yards of land and the remaining land out of 2 Bighas which was total land in Khasra No.176/3 was occupied by the plaintiffs. In short the defendants justified that the land in their possession was their legitimate share. 13.2 Admittedly in order to prove their case, the plaintiffs have to first of all to satisfactorily prove that earlier partition which was effected between the parties was incomplete in the sense that this particular portion of land was left common and which would be later on partitioned wherein the shortfall of land in their share would be taken note of/they would be compensated CS No. 517274/16 Page No. 14/21 accordingly. Secondly, in the event if the earlier partition effected is sought to be re­opened for the reason that the same was incomplete, then it is also imperative that terms of earlier partition have to be proved on record coupled with the subsequent developments till date i.e. with respect to disposal of 500 sq yards of land in Khasra No.176/3. I am just putting up this aspect for the reason that the plaintiff has propounded a case that their ancestors had disposed of 500 sq yards of lands jointly and as such the balance land which remains has not been partitioned.

13.3 Coming to this aspect as to the said 500 sq yards of land in Khasra No.176/3 has been disposed of jointly or not. Now obviously since this plea has been propounded by the plaintiffs themselves, they were supposed to place on record the details of the buyers and manner in which transaction was carried out - in the event that title was transferred by the plaintiffs then obviously it would have been plaintiffs share which was sold of or if land was disposed of jointly then only this plea could have been established. 13.4 Qua said aspect, strangely nothing has been placed on record and there is no whisper in pleadings including replication and despite cross­ examination of PW1 and PW3, they have not placed on record document of sale or name of the buyer. Adverse inference is to be taken against the plaintiffs for withholding the evidence qua the said aspect. Atleast the names of the buyers and the mode and manner in which the transaction was carried out could have been specified by the plaintiffs. Vaguely they have just asserted and deposed that the land was disposed of jointly.

CS No. 517274/16 Page No. 15/21

13.5 Delving on the plaint a little further, admittedly the land belong to Dhala their common ancestor who had two sons Munshi and Mir Singh. Munshi had expired in the year 2010 and Mir Singh expired in the year 1995. Dhala had expired in the year 1965. Obviously, any arrangement or partition, even if the case of the plaintiffs is deemed to be correct was effected in the year 1981­82 between Munshi and Mir Singh. Both of them have expired long back. They were putting up in their respective shares. The plaintiffs have also claimed that they were owning the property/share of late Munshi by virtue of a Will. Now the said Will never saw the light of the day. In any eventuality the said Will ought to have been placed on record for the reason as to what was exactly the bequeath of Munshi and whether the Khasra No.176/3 was bequeathed to the plaintiffs as alleged by them in the suit i.e. with regard to the fact that the remaining property was 1500 sq yards in Khasra No.176/3 inasmuch as 500 sq yards was sold as per case of the plaintiffs jointly. To put it pithily the Will ought to have been placed on record to substantiate the case that 500 sq yards was sold of jointly and the remaining portion qua which the plaintiffs could have asserted any right was 495 sq yards. Non production of the Will is a circumstance which goes adverse to the plaintiffs. 13.6 Now delving on the merits of the case, plaintiffs have contended that earlier partition which was effected was incomplete. In this regard Ld counsel for the defendants has relied upon judgment titled as Kesharbai v. Tarabai Prabhakarrao Nalawade reported in (2014) 4 SCC 707, and salient observations made in the said case read as under:

"7.In the written statements filed by the defendants, it was pointed out that there was no ancestral joint family nucleus CS No. 517274/16 Page No. 16/21 to purchase the agricultural lands and the house at Sl.No.III. It is further claimed that the suit properties are not coparcenary properties in which Deorao and Saluba had equal shares. It was contended that at the most property can be deemed as a joint property of Deorao, Saluba, Eknathrao and Prabhakarrao. It was also claimed that the partition of the suit property had taken place on 22­ 4­1985, the respective shares were allotted, and final distribution of the property was made. It was contended that the partition having been completed, the suit ought to be dismissed.
Xxxxx
21.In our opinion, the aforesaid presumption is wrong in law in view of the fact that the High Court has affirmed the findings of the trial court that in 1985, there was a complete partition and the parties had acted on the same. It is a settled principle of law that once a partition in the sense of division of right, title or status is proved or admitted, the presumption is that all joint property was partitioned or divided. Undoubtedly the joint and undivided family being the normal condition of a Hindu family, it is usually presumed, until the contrary is proved, that every Hindu family is joint and undivided and all its property is joint. This presumption, however, cannot be made once a partition (of status or property), whether general or partial, is shown to have taken place in a family. This proposition of law has been applied by this court in a number of cases. We may notice here the judgment of this Court in Bhagwati Prasad Sah & Ors. Vs. Dulhin Rameshwari Kuer & Anr. [1], wherein it was inter alia observed as under:
"7. Before we discuss the evidence on the record, we desire to point out that on the admitted facts of this case neither party has any presumption on his side either as regards jointness or separation of the family. The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved, but where it is admitted that CS No. 517274/16 Page No. 17/21 one of the coparceners did separate himself from the other members of the joint family and had his share in the joint property partitioned off for him, there is no presumption that the rest of the coparceners continued to be joint. There is no presumption on the other side too that because one member of the family separated himself, there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co­parceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief."

This principle has been reiterated by this court in A. Raghavamma v. A. Chenchamma.

22.In this case, the trial court as well as the High Court has held that there was a complete partition in the year 1985. Therefore, the presumption would be that there was complete partition of all the properties. Consequently,the burden of proof that certain property was excluded from the partition would be on the party that alleges the same to be joint property. Therefore, in our opinion, the High Court clearly committed an error in placing the burden of proof on the petitioners, who were defendants in the suit to prove that the Nageshwarwadi property at Aurangabad was a self­acquired property of Eknathrao.

13.7 It is but apparent that once partition is pleaded then the first presumption is that there would be a complete partition of all the properties. The burden to prove that some portion of the property was left out from the said partition is upon the party who claims that the said left out property continuous to be joint. The reason is quite obvious. Once the family has split it CS No. 517274/16 Page No. 18/21 is but invariable that the entire corpus is divided and one who asserts the contrary that some portion remains to be partitioned, necessarily has to prove the said fact.

13.8 Now in discharge of the said burden except the self serving evidence of the plaintiffs to contend that this portion/property No.176/3 remains unpartitioned there is no cogent evidence led by them. Again I note herein that Munshi and Mir Singh had not contested on the said aspect during their lifetime and furthermore they were the parties which had effected the partition as per the case of the plaintiffs, and the present plaintiffs are only the successors in interest of Munshi and agitating/seeking re­opening of the partition or otherwise claiming same to be incomplete which was done in the year 1981­82 as per their testimonies.

13.9 Coming to another aspect which has been relied upon and argued by Ld counsel for the defendants taking cue from the judgment of Hon'ble Bombay High Court in the case of Govindrao s/o Gangaramji Ajmire v. Dadarao @ Shrawan s/o Gangaramji, 2004 (4) MhLj 653 that sisters of the plaintiffs were not impleaded. Particularly reliance was made on para no.14 and 18 of the said judgment.

13.10 Now in my opinion insofar as non­joinder of necessary parties is concerned, no such issue was raised or taken up by defendants during pleadings. This objection cannot be taken now at the stage of final arguments in absence of any specific issue framed.

13.11 Delving a little further on the evidence led by the plaintiffs. He was cross­examined and he admitted that the partition was done in the year CS No. 517274/16 Page No. 19/21 1981­82. He admitted that no partition deed was executed. The factum of partition was not got recorded in revenue record. No partition suit was filed in the Court. He further deposed that the revenue authorities had not demarcated the total land measuring 38 Bigha 8 Biswa. He deposed that they had demarcated the entire land but not demarcated our respective shares. He also admitted that the defendants are in possession of one Bigha. 13.12 Now a careful reading of his cross­examination reveals that the plaintiffs - PW1 was cagey in admitting the factum of there being a partition at the first place. Infact he has gone to the extend to say that though there has been a family partition but said factum was not recorded in any document neither in revenue records nor the actual land parcel particularly the agricultural land was physically partitioned. If this plea of the plaintiffs/PW1 is deemed to be correct it knocks the basic edifice of the case of the plaintiff that all lands were partitioned except the plot in Khasra No.176/3. 13.13 Coming to the testimony of PW3 Dharambir Singh. He admitted that the partition effected in the year 1982 plaintiffs and defendants got equal share and no dispute whatsoever was left. He also admitted that the defendants are in the possession of land as per their entitlement of Khatonis. Relevant to note herein that plaintiffs have not led any evidence except their self serving statement that plot in question was being used by them for the purposes of Gher/Gitwar. It is an important aspect as the factum of use of said plot would only have probablized the case of there being joint ownership. 13.14 Now considering the totality of facts and circumstances i.e. the plaintiffs not able to substantiate the contours of the partition effected between CS No. 517274/16 Page No. 20/21 their predecessor in interest whereby land in question was left as joint/remained unpartitioned coupled with the fact that they have also not been able to prove the fact that their predecessors in interest had jointly disposed of 500 sq yards of land in Khasra No.176/3 and lastly with the fact that they have not led any evidence to substantiate their possession over the disputed portion of land i.e. balance 900 sq yards of plot - all such facts goes against the plaintiffs and as a consequence the issue no.3 and 4 are decided against the plaintiffs and in favour of the defendants.

Issues are decided accordingly.

Relief.

14. In view of aforesaid discussion, suit of the plaintiffs stands dismissed. No order as to cost.

Decree sheet be prepared accordingly.

File be consigned to record room.

Announced in the open Court on 30.11.2022.

(SUMIT DASS) Additional District Judge­04, South West, Dwarka Courts, New Delhi/30.11.2022 CS No. 517274/16 Page No. 21/21