Shri Raj Kumar v. Sumitra & Ors.

II. SH.

PRAVEEN KUMAR S/o Late Sh. Ramphal Delhi. -110041

III. SH.

SANJEEV KUMAR Digitally

IV. SH.

ANIL GUPTA

V. SMT.

ANITA GUPTA.....Defendants Through: Mr. Rajesh Kumar, Advocate for LRs of Defendants except Vinay Jain and Master Rishabh Jain. CORAM: HON'BLE MS.

JUSTICE NEENA BANSAL KRISHNA

JUDGMENT

NEENA BANSAL KRISHNA, J.

1. The plaintiff has filed the present suit, against his real brothers Shri Ram Kumar and Shri Ram Phal, for Partition, Permanent Injunction and Mesne Profits/ Damages.

2. Admittedly, the suit property bearing No.21, measuring about 400 square yards, comprised in khasra No.33/19min, Dharam Colony, Village Nangloi Jat, Delhl-110041, (hereinafter referred to as the “suit property”), was jointly purchased by the plaintiff and the defendants in the year 1978, on the basis of GPA, Agreement to Sell, Affidavit, Will and Receipt dated 22.02.1978 and thus, all of them have 1/3rd undivided share in it. After the Digitally purchase of the suit property, the same was constructed from time to time in parts.

3. Two rooms along with bathroom and Kitchen on the ground floor and two rooms on the first floor were constructed at the back portion of the suit property in the year 1978. In addition to the same, two shops on the ground floor were also constructed at the front portion of the property. The Plaintiff and the Defendant No. 1/ Sh. Ram Kumar occupied one room each out of the two rooms on the First floor, while the Defendant No.2 Sh. Ram Phal and their mother, were residing in the Two rooms on the Ground Floor, occupying one room each. Out of the two shops, one was in possession of Defendant No. 1 Sh. Ram Kumar and the other was in possession of Defendant No. 2/ Sh. Ram Phal. Thus, the parties started living together in their respective portions.

4. According to the plaintiff, in the year 1992, the ground floor of the suit property was further jointly expanded and the three brothers jointly constructed a basement, a third shop and a Hall between the shops. The possession of the Hall was taken by the plaintiff and the third shop was taken by Defendant No. 1/ Sh. Ram Kumar.

5. Later in the year 1994, the additional seven more rooms along with two bathrooms, toilets and 2 kitchens, were constructed on the first floor at the front portion, in addition to the previously constructed four rooms, at the back portion of the suit property. The plaintiff asserts that the construction was raised jointly by them. Thus, the plaintiff and the defendants, shifted to the newly constructed first floor by occupying two rooms each with common drawing room, bathroom toilets and kitchen. The parties started Digitally using the previously constructed four rooms at the back portion of the suit property, as store rooms.

6. The plaintiff claims that in 2017, out of said four rooms on the back portion of the suit property, two rooms on the first floor collapsed due to very old construction and the remaining two rooms on the ground floor are at present in joint possession of parties, but are in a dilapidated condition.

7. The plaintiff states that in the month of June, 1995, he shifted to rented accommodation at LU-89, Pitampura, Delhi, along with his wife and child and out of love and affection, he allowed the Defendant No. 2/ Sh. Ram Phal to occupy the two rooms (first floor of the front portion) in his possession, on license basis and without taking any charges for the occupancy. Further, in the year 2012, the Plaintiff gave possession of the two rooms to the son of the Defendant No. 2 i.e. Mr. Anil Mittal on license basis, the possession of which was returned to him on 16.03.2018.

8. The Hall on the ground floor which was also in possession of the Plaintiff through his family friend Mr. Ashish Jha, who has been occupying it since 8-9 years on licence basis, without paying any charges for the same.

9. It is thus, asserted that presently the two rooms (ground floor, back portion), Hall, basement and two rooms (on the first floor, front portion) are in possession of the Plaintiff. Five rooms along with two bathrooms and a kitchen which were being constructed on the second floor of the suit property, are in possession of the Defendants and their family members.

10. The plaintiff requested for partition of the suit property by metes and bounds in the month of August, 2017, but the defendants refused and threatened the Plaintiff to change the structure of the suit property and to create third party interest qua the shops, first and second floor of the suit Digitally property, without any absolute right, title and interest in their favour. Thus, the plaintiff has sought a Decree of Partition of the suit property, in respect of 1/3rd share each of the parties.

11. It is further stated that the Plaintiff is not residing in the suit property and is residing separately on rent, while the Defendant No.1/Sh. Ram Kumar has been in possession of one shop from where he is running a store in the name of "Fair Price Shop", the Defendant No.2/Sh. Ram Phal has been in possession of second shop from where he running a Medical Store in the name of "Shivangi Medical Store". Mr. Naveen Mittal, son of Defendant no.1 Sh. Ram Kumar, has been running a Grocery store from third shop in the name of "Shiv Kirana".

12. Therefore, the Plaintiff has also sought damages/mesne profits from the Defendants for the suit property which have been illegally and unlawfully occupied by them.

13. Hence, the present suit has been filed for Partition by metes and bounds, Permanent Injunction and Mesne Profits/ Damages.

14. The suit is defended by the Defendants who in their Written Statement have asserted that no construction on the suit property was ever carried out jointly; rather even at the time of purchasing the suit property as well as at the time of starting the construction, it was only the Defendants who had purchased and constructed the property from their own funds and resources as the Plaintiff did not have any money.

15. It is further contended that the property has already been divided by metes and bounds in 1987 vide Oral Partition whereby the plaintiff is already in possession of 133 sq. yds. of land in the back portion of the suit property for which the defendants had executed the GPA and Affidavit dated Digitally 23.09.1987 in favour of the plaintiff. The plaintiff has been using his share since then and no question arises of jointly constructing the property after the partition of the suit property in 1987 after which the portion falling in the respective share of Defendant No.1 and 2, has acquired the character of their exclusive property. They have subsequently developed and constructed the same and the Plaintiff has no locus standi to seek partition of the property.

16. Though the plaintiff has already taken the backside portion of the property and had constructed his portion long back, however, the same is presently in a dilapidated condition as his portion was abandoned by him. It is evident that no joint construction was carried out on the entire property, because then the portion of the plaintiff would not have been in a dilapidated condition.

17. On merits, it is denied that the Defendant No. 2 or his son Shri Anil Mittal were allowed by the plaintiff to occupy the two rooms on the first floor which were allegedly in his possession, on license basis and without taking any charges. Thus, there is no question of Shri Anil Mittal handing over the possession of the two rooms (first floor) to the plaintiff on 16.03.2018. Rather, the entire story to show that plaintiff is in possession of the rooms in collusion with Shri Anil Mittal, is only to grab the rightful portion of the defendants. It is further denied that the Hall on the ground floor is in possession of the plaintiff or the same has been occupied by Mr. Ashish Jha for past 8-9 years, on license basis.

18. It is asserted that though the plaintiff has tried to show that he is in possession of different portions of the suit property, but in reality the suit property was never in joint possession of the parties. Since the suit property Digitally already stood partitioned way back in 1987 and the plaintiff has already taken his portion of the property, no cause of action arises for filing the present suit.

19. In the Replication, the plaintiff has asserted that the defendants have admitted the title documents of the purchase of suit property filed by the plaintiff such as the GPA, Agreement to Sell, Affidavit, Will dated 22.09.1987, which clearly establishes the right of the plaintiff to 1/3rd undivided share in the suit property. There are clear admissions in the Written Statement of the defendants that the plaintiff is a co-owner in the suit property.

20. It is further submitted that the only defence of the defendants is that the suit property has already been orally partitioned between the parties in 1987 and the plaintiff has taken possession of his 133 sq. yds. of the suit property i.e. the back portion. However, there is no document to support this plea of oral partition.

21. The GPA and Affidavit dated 23.09.1987, produced by the defendants are false and self-serving documents created for the sole purpose of denying the plaintiff his rightful share in the suit property. Pertinently, neither the GPA nor the Affidavit refer to any Oral Partition nor the possession of 133 sq. yds. in the back portion of the suit property has ever been handed over to the plaintiff. Rather, these documents state that the defendants are in possession and owner of the property and the GPA was executed only for the purpose of sale. Moreover, the GPA and affidavit do not bear the signatures of the plaintiff.

22. It is also contended that no document has been produced by the defendants which was executed by the plaintiff in favour of the defendants Digitally for transferring his rights qua the remaining portion admeasuring about 267 sq. yds of the suit property.

23. Even the original title deeds of the suit property are in possession of the plaintiff and the Electricity Bills which pertain to the Ground, First and Second floor of the front portion of the suit property, are in the name of the plaintiff demonstrating that the said portion is in the name of the plaintiff.

24. Further, the Possession Letter dated 16.03.2018 along with other documents, executed by Mr. Anil Mittal support the stand of the plaintiff that he is still in possession of the Basement, Hall on the ground floor and two rooms of the first floor, in the front portion of the suit property.

25. Further, the plea of oral partition is not rational because the portion is not identifiable in a manner which would entitle either of the parties to sell or dispose of the same in the desired manner.

26. Therefore, since no oral partition has taken place between the parties, there is no severance of legal status of the suit property and the plaintiff is entitled to the partition of the suit property.

27. The issues on the pleadings were framed on 29.04.2019 which read as under: - " (i) Whether the property No.21 measuring 400 sq. yds. comprising Khasra No.33/19 min. Dharam Colony, Village Nangloi Jaat, Delhi has already been partitioned between the plaintiff and the defendants in the year 1987 and if so to what effect? OPD

(ii) Whether the parties have been dealing separately with respect to their separate portions and if so to what effect? OPD

(iii) If the above issues are decided against the defendants, whether the plaintiff is entitled to any mesne Digitally profits/ damages for use and occupation after enquiry they are to be ordered? OPP

(iv) Relief. "

28. The plaintiff in support of his case examined himself as PW1/Shri Raj Kumar and tendered his Affidavit of Evidence which is Ex. PW1/A and has placed reliance upon documents which are Ex. PW1/1 to PW1/5.

29. The Defendant No. 1 has examined himself as DW1/Shri Ram Kumar, who has tendered his Affidavit of Evidence as Ex. DW1/A which bears his signatures at point A and B respectively. He has relied upon and tendered documents, GPA and Affidavit dated 23.09.1987 which are “Mark A” and “Mark B” respectively.

30. The Defendant No. 2, Shri Ram Phal though tendered his Affidavit of Evidence, but he did not appear for his cross- examination and his affidavit of Evidence thus, cannot be read in evidence.

31. Submissions heard and record along with evidence perused. The issue-wise findings are as under:- Issue No. 1:- Whether the property No. 21 measuring 400 sq. yds. comprising Khasra No.33/19 min. Dharam Colony, Village Nangloi Jaat, Delhi has already been partitioned between the plaintiff and the defendants in the year 1987 and if so to what effect? OPD

32. At the outset, it may be observed that admittedly the parties had jointly purchased the suit property measuring 400 sq. yds. vide GPA, Agreement to Sell, Will, Receipt dated 22.02.1978 Ex. PW1/1 Colly. Thus, all three brothers became co-owners of the suit property and are entitled to 1/3rd undivided share in the suit property. Digitally

33. While not denying that the documents of purchase of the suit property, are in the joint name of plaintiff and the defendants, but it was claimed by the defendants that at the time of purchasing the property, the plaintiff had no funds or resources to contribute for purchase or construction of the property and was his name was added by the defendants and he was permitted to reside in the property out of love and affection. This has been seriously refuted by the plaintiff in his evidence.

34. Pertinently, DW1/Sh. Ram Kumar has admitted in his crossexamination that the entire sale consideration to purchase the suit property was paid by the plaintiff and the defendants, proving that the suit property was purchased jointly by the three brothers. Thus, the defendants have not denied that the plaintiff is entitled to 1/3 rd share in the suit property.

35. The defendants however, have taken a specific plea that in 1987, oral partition of the property by metes and bounds took place whereby they handed over 133 sq. yds. of the back portion of the suit property to the plaintiff. Per contra, this factum of oral partition is seriously contested by the plaintiff.

36. The validity of an oral partition has been recognised in the case of Kale vs. Director of Consolidation 118 (1976) 3 SCC 119, wherein the Apex Court observed that the family arrangement for fair and equitable division or allotment of properties between the various members of the family may be even oral, in which case no registration is necessary. However, the said settlement must be voluntary and should not be induced by fraud, coercion or undue influence to be final and binding on the parties to the settlement.

37. The Apex Court in Kalwa Devadattam vs. Union of India AIR 1964 SC 880, also endorsed that an oral partition was permissible. Digitally

38. The validity of oral family arrangement for partition of joint properties, is thus, well recognized under the Hindu Law. However, considering that such ingenious pleas of oral partition can be abused or even used as a bargaining tactic by dishonest litigants to refute the bonafide claims of aggrieved parties, a word of caution was sounded by the Supreme Court in Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1 to protect the genuine parties. It was observed that such plea of oral partition or Memorandum of Partition which is unregistered, can be manufactured at any point of time without there being any contemporaneous Public Document to support it and thus, when such a defence of oral partition is taken, the Court may entertain such plea only if cogent, impeccable, and contemporaneous documentary evidence by way of public documents in support, is available.

39. The factors/ circumstances which may be relevant to establish the oral partition may be the separate occupation of portions, division of the income of the joint property, defining of shares of the joint property in the revenue or land registration records and mutual transactions, as observed by the Apex Court in the case of Bhagwani Kunwar vs. Mohan Singh AIR 1925 PC 132 and in the case of Digambar Adhar Patil vs. Devram Girdhar Patil AIR 1995 SC 1728.

40. Thus, it is no more res-integra that in the absence of any such registered Partition Deed, the plea of oral partition and the division of property by metes and bounds if raised by the parties, needs to be established by way of corroborative evidence and/or supported by public documents.

41. In the present case, the claim of the defendants that an oral partition took place between the parties in 1987 is vehemently disputed by the Digitally plaintiff, which needs to be judged by the supervening circumstances. The burden of proof is on the person who asserts such partition, as has been held by the Apex Court in the case of Kalwa Devadattam vs. Union of India AIR 1964 SC 880.

42. To prove the plea of Oral Partition, DW-1 Sh. Ram Kumar in his Affidavit of Evidence Ex. DW1/A has deposed that the oral partition has already taken place in the year of 1987and the Plaintiff has already taken his 1/3rd share in the suit property i.e. 133sq yds. in the back portion of the property in question exclusively, while the defendants have constructed and have been occupying their respective shares in the front portion.

43. First and foremost, the defendants while taking the plea of Oral partition, aside from claiming that the oral partition has already taken place in the year of 1987, have failed to give any specific date of this alleged partition. Moreover, it is asserted that plaintiff was given 133 sq. yards of back portion exclusively, but there is no averment as to how the shares of the defendants got determined. There is no averment that the parties together met and agreed to the division of the property as alleged by the defendants. From the pleadings itself, it is evident that the defendants unilaterally without involving the plaintiff, decided that the plaintiff be given 133 sq. yards in the back portion of the suit property as his share in the suit property. Such unilateral decision by the defendants without the consensus of the plaintiff, cannot be termed as partition. It is a vague plea of alleged oral partition not supported by any details.

44. The only two documents relied upon by the defendants to establish partition is the GPA dated 23.09.1987, Mark A executed by the defendants in favour of the plaintiff on which their entire case rests and the Affidavit Digitally dated 23.09.1987 Mark B, in support thereof stating therein that they have constituted the plaintiff as their attorney in respect of the back portion admeasuring 133 sq. yds.

45. At this juncture, it becomes apposite to understand the nature of the two documents. The relevant clauses of GPA dated 23.09.1987 read as under:- “ GENERAL POWER OF ATTORNEY Stamp duty Rs. l0/- KNOW ALL MEN BY THESE PRESENTS THAT, we, Ram Phal, and Sh. Ram Kumar Sons of Shri Puran Mai R/o 10, Dharam Colony, Rohtak Road, Nangloi, Delhi, do hereby appoint nominate and constitute Sh. Raj Kumar S/o Shri Puran Mai. R/o H.No. 21, Dharam Colony, Rohtak Road, Nangloi, Delhi, as my true and lawful general attorney to do the following acts deeds and things in my name and on my behalf, as under:- Whereas the executants are the owner and in possession of a built-up property consisting of two rooms, Baranda. on ground floor, and two rooms, on first floor on a piece of land area measuring 133 Sq. Yards. Bearing plot NO. 21. out of Khasra No. 33/19, situated at Village Nangloi, in the abadi of Dharam Colony, Rohtak Road, Delhi State Delhi and bounded as under; East: property of Sh. Kishan Swaroop West: Gali 4 Ft. North: Property of the executants South: property of Sh. H.C. Chander. Now for performance authorized the said my our general attorney to manage control look after and supervise the now the said executant do hereby authorized the said Digitally attorney to manage and transfer the said plot/property under this own signatures on behalf of the executants:-

1. To sell Mortgage, Lien, gift, favour of any one execute the same get it registered in the office of the S.R. Delhi and to receive consideration amount with respect the said plot/property.

2. To sign and get sanctioned plan of the said plot/property in the office of the MCD or proper authority with respect the said plot/property.

3. To submit the plan for the construction of the said plot/property in the office of the MCD or proper authority.

4. To appoint any other person attorney for the state of the said plot/property under this own signature.

5. To pay the house tax of the said plot/property to the office of MC Delhi.

6. To file suit for the recovery of rent in the court of laws and to do all acts deeds and things which are necessary for the same.

7. To file suit or the ejectment for the said tenant from the said plot/property in the court of law and to do all acts deeds and things which are necessary for the same.

8. To apply and get the electrification water and other services in the said plot/property from the office of the govt. or proper authority with respect of the said plot/property.

9. To file affidavit or reply of any letter or notice issued by the Govt. or proper authority regarding the said plot/ property.

10. To apply and get the compensation of the said plot/property from the Govt. or proper authority if the award of the said plot/property is announced by the govt. or proper authority.

11. To do acts deeds and things in respect of all the matter of the said plot/property even if they are not covered by the foregoing clauses of this power of attorney. Digitally In witness whereof, the executant has signed this deed on the day month and year first above written. WITNESSES: EXECUTANT RO & AC”

46. Before even considering the legal implications of the GPA, it is pertinent to observe that it has not been proved in accordance with law as merely a copy of the same has been produced. Inspite of not being proved, it is of little assistance to the defendants.

47. A bare perusal of the GPA shows that the defendants had appointed the plaintiff, Sh. Raj Kumar as the lawful general attorney with respect to 133 sq yds. of the suit property (situated in the rear portion), comprising of two rooms, Baranda on the ground floor and two rooms on the first floor.

48. Firstly, it is evident that the above GPA dated 23.09.1987 was only a document which empowered the Plaintiff, the named agent or attorney-infact, to act on behalf of defendants i.e. the executants. Thus, the document was merely an arrangement which authorized the plaintiff to act for and in the name of the defendants and manage or look after or supervise the suit property. It is evident that the necessity to execute this GPA arose because the property was joint and no act could be done without the consensus of all. The GPA did not vest any ownership rights in the plaintiff qua his 1/3rd share in the suit property. This unregistered GPA dated 23.09.1987, neither mentions being executed pursuant to an oral partition, nor does it disclose the division of respective shares amongst the parties.

49. Secondly, even if it is assumed that the GPA pertains to the transfer of rights of the defendants in respect of the 133 sq. yds of the suit property in Digitally favour of the plaintiff, but the same does not refer to the relinquishment of the rights of the Plaintiff qua the remaining portion of the property in favour of the defendants. There is no division of the shares of the defendants as is evident from the said GPA dated 23.09.1987 and admittedly, there is no other document executed by the parties which proves that the plaintiff has also given up his right in the remaining portion of the property to effectuate the oral partition.

50. Thirdly, the document cannot aid the defendants as the same does not bear the signatures of the Plaintiff. Though the signature of the Agent is not mandatory to execute a GPA, however to record a partition of an immovable property mutually arrived at by the parties, it is apposite that the document records consensus ad idem of all the parties. The GPA does not reflect that there was a meeting of minds amongst all the parties or that the brothers orally agreed to the division of the property.

51. Fourthly, the document cannot be of any relevance because it is not even established if the GPA was ever in the knowledge of the Plaintiff. PW[1] Sh. Raj Kumar, the plaintiff has deposed that the GPA was neither signed and nor had been received by him. Though, DW[1]. Sh. Ram Kumar had stated in his cross-examination dated 27.11.2019 that the GPA was handed over to the Plaintiff, but no receipt was obtained from him nor is there any evidence that it was ever handed over to him. DW-1 has also admitted he has not filed any document to show that the GPA and affidavit were ever handed over or given to the plaintiff before filing the present suit. Thus, it establishes the assertion of the plaintiff that he was never even aware of the execution of such a unilateral self-serving GPA with the supporting Affidavit. Digitally

52. Thus, in light of the above and considering the lack of any other public documents such as House Tax Receipts or Mutation Records to support the plea of oral partition, it can only be deduced that this unilateral unregistered GPA (Mark A) was only a legal document vide which the plaintiff was authorized to act on behalf of the Defendants for managing the back portion of the suit property. It does not in any manner support the plea of oral partition or be construed as a document for dividing the jointly owned suit property amongst co-owners.

53. Another significant set of documents are the Electricity Meters that exist in the suit property in the name of the plaintiff. The plaintiff has proved three Electricity Bills all dated 27.01.2018 Ex. DW1/P[1], Ex. DW1/P[2] and Ex. DW1/P[3] in support of his case that the parties were always in joint possession of the suit property. Though the DW1/ Sh. Ram Kumar in his cross-examination dated 27.11.2019 has asserted that the plaintiff had gotten the electricity and water connection in his portion of the suit property on the basis of the GPA and the supporting Affidavit dated 23.09.1987 but he has also admitted that there no document placed on record by him to prove that any such connection was gotten by the Plaintiff.

54. A perusal of the Electricity Bills dated 27.01.2018 produced by the plaintiff shows that three separate electricity meters were installed for the Ground floor, the first floor and the second floor, in the name of the plaintiff. Thus the plea of the DW1/Sh. Ram Kumar that the electricity connection was obtained by plaintiff only for his back portion of the property on the basis of the GPA, is not tenable and falls flat.

55. Further, the perusal of the Bill Ex. DW1/P[3] shows that it pertains to the metre installed on the ground floor in the name of the plaintiff for Non- Digitally Domestic purpose and the date of energization is 14.10.2016. Similarly, from the Bill Ex. DW1/P[1], it is evident that it pertains to the Metre installed on the second floor in the name of the plaintiff for domestic purpose and the date of energization is 20.06.2012. The Electricity Bill ExDW1/P[2] pertains to the First Floor, though it does not contain the date of energization.

56. This further negates the entire plea of oral partition or of the plaintiff getting the back portion, because if the property was already divided by metes and bounds in 1987, there would not have been any question of installing the meters in the name of the plaintiff in 2012 and 2016 in the main portion of the suit property. This clearly is indicative of the joint possession of the suit property with no partition ever having taken place.

57. The other significant factor relied upon by the defendants is they had raised the construction in the front portion out of their own funds and resources and no joint construction was ever carried out since the year 1987 with no contribution from the plaintiff. However, aside from bald assertions, no documents have been filed to show nor any cogent evidence has been led that the construction was raised exclusively by them. Linked to the Construction, is the possession of the parties in different portions. Whether it defines their respective shares or are they in occupation as per mutual agreement, as a joint family is again a pertinent question, which is considered in detail in the next issue.

58. Thus, it is held that no oral partition had been affected in 1987 and all the parties are entitled to 1/3rd undivided share each in the suit property.

59. The issue is decided accordingly. Issue No. 2:- Digitally Whether the parties have been dealing separately with respect to their separate portions and if so to what effect? OPD

60. Another factor of extreme significance in proof of the oral partition, is the exclusive possession of the parties in clearly demarcated areas.

61. The rights of co-owners in a joint holding and the consequences thereof were laid down by the Apex Court in the case of Jai Singh and Ors. v. Gurmej Singh bearing Civil Appeal No. 321 of 2009 decided on 09.01.2009. It was elucidated that a co-owner has an interest in the whole property and also in every parcel of it. Possession of joint property by one co-owner is in the eye of law, possession of all even if all but one are actually out of possession. A mere occupation of a larger portion or even of an entire joint property does not necessarily amount to ouster as the possession of one is deemed to be on behalf of all. Where a co-owner is in possession of separate parcels under an arrangement consented by the other co-owners, it is not open to any body to disturb the arrangement without the consent of others except by filing a suit for partition. Therefore, mere possession of one may not be an indicator of division by metes and bounds. However, in order to negative the presumption of joint possession on behalf of all on the ground of ouster, the possession of a co-owner must not only be exclusive but also hostile to the knowledge of the other as, when a coowner openly asserts his own title and denies, that of the other.

62. In the present case, the defendants have asserted that on the basis of the Oral partition of 1987, they have been occupying the respective shares and essentially the Hall, the three shops, the seven rooms on the first floor and the five rooms on the second floor of the suit property, are exclusive Digitally properties of the defendants, and the plaintiff does not have any right or title on the said exclusive portions.

63. In this context, it would be relevant to refer the manner in which the property has been constructed in phases and how the family members arrived at new arrangements qua occupation of the respective portions with the passage of time:- Year Construction details Arrangement qua occupation of the rooms (Phase 1)

2 Shops on G Floor in Front Portion Defendant 1 + Plaintiff Defendant 2 + Mother D[1] + D[2] (Phase 2) Hall on G Floor, Front Portion Basement on G Floor, Front Portion 3rd Shop on G Floor, Front Portion Plaintiff - gave to Ashish Jha (licensee) Plaintiff Defendant no. 1 (Phase 3) 7 Rooms 1st Floor, Front Portion + 2 bathroom and 2 kitchens Defendant[1] & Defendant[2] & Plaintiff (with Family) shifted to 1st Floor; Occupying 2 rooms each 4 rooms in back portion = store rooms 1995 __ P shifted on rent. Plaintiff gave his 2 rooms on 1st Floor, Front Portion) to Defendant 2 (Phase 4)

5 Rooms 2nd Floor, Front Portion + 2 bathrooms and 1kitchen Defendant 1+Defendant 2 (w. family) 2012 __ P gave Anil Mittal (licensee) (2 rooms, 1st Floor, Front Portion) 2018 __ Anil Mittal returned possession to Plaintiff Digitally (2 rooms, 1st Floor, Front Portion)

64. Admittedly, the first phase of construction was in 1978, when the four rooms in the back portion and two shops in the front portion were constructed in the suit property. The arrangement was that out of the four rooms, two rooms along with bathroom and Kitchen on the ground floor were occupied by the Defendant No.2/ Sh. Ram Phal and their mother, while the other two rooms on the first floor were occupied by the Plaintiff and the Defendant No. 1 Sh. Ram Kumar, respectively. Out of the two shops on the ground floor in front portion of the property, one was managed by Defendant No. 1 Sh. Ram Kumar and the other was managed by Defendant No. 2 Sh. Ram Phal.

65. The second phase of constructions is of 1992 when the Ground floor, front portion of the suit property was expanded. PW1/Sh. Raj Kumar, has deposed that the Hall, the basement and the third shop was jointly constructed in the front portion and the possession of the Hall was taken by the plaintiff while the possession of the third shop was taken by the Defendant No. 1 Sh. Ram Kumar.

66. PW[1] Sh. Raj Kumar had further deposed that the temporary possession of the hall was handed over to one Sh. Ashish Jha who has been in possession of the same on license basis for about 8-9 years, and returned the possession vide Original Certificate dated 20.10.2018 Ex. PW1/3 duly signed by the plaintiff and Sh. Ashish Jha in the presence of two witnesses namely, Smt. Veena Mittal and Sh. Arun Kumar Gupta.

67. DW[1] Sh. Ram Kumar while denying that the possession of the Hall was ever with the plaintiff, admitted that the possession of the Hall had been given to Ashish Jha but qualified it by claiming that Ashish Jha was put in Digitally possession by Sh. Sanjeev Kumar Gupta, other son of Defendant no. 2, and not the plaintiff.

68. The testimony of the plaintiff duly corroborated by the documentary evidence, proves that the plaintiff was in possession of the Hall on the ground floor, after it was constructed.

69. The third phase of construction is in year 1994 on the first floor, front portion of the suit property. PW1/Sh. Raj Kumar has deposed that the parties jointly constructed seven more rooms along with two bathroom toilets and 2 kitchens, on the first floor, front portion of the suit property. Thus, the plaintiff and the defendants, shifted from the back portion to the newly constructed first floor by occupying two rooms each with common drawing room, bathroom toilets and kitchen. It cannot be overlooked and has also not been denied that the seventh room on the first Floor was used as a common drawing room. The parties started using the previously constructed four rooms at the back portion of the suit property, as store rooms.

70. Subsequently, in the month of June, 1995, the plaintiff shifted to rented accommodation at LU-89, Pitampura, Delhi, along with his wife and child. Pertinently, since the plaintiff has moved out of the suit property only in 1995, it is but obvious that he, as deposed by him, would have resided in the two rooms on the first floor from 1994 till 1995, i.e. when he shifted out of the suit property. The circumstances are a clear indicator of plaintiff being in possession of the two rooms on the first floor.

71. PW[1] Sh. Raj Kumar has further deposed that when he shifted to his rented accommodation in Pitampura in the year 1995, he permitted the defendant no. 2/Sh. Ram Phal to occupy his two rooms out of love and affection, as a licensee. Subsequently, in 2012, the plaintiff gave the Digitally possession of the two rooms to Sh. Anil Mittal, the son of defendant no. 2 who in 2018, handed over the possession of the two rooms on the first floor vide Original Possession Letter dated 16.03.2018 Ex. PW1/2, duly signed by the Plaintiff and Sh. Anil Mittal in the presence of two Witness namely, Smt. Veena Mittal and Sh. Arun Mittal.

72. DW1/Sh. Ram Kumar in his cross-examination has admitted that Sh. Anil Mittal was indeed residing on the first floor, though he qualified it by claiming that he had occupied only one room. He has also admitted that he had handed over the possession of his room on the first floor to the plaintiff before he shifted to Budh Vihar.

73. The testimony of the plaintiff duly corroborated with the documents Ex. PW1/2 and Ex. PW1/3 in proof of receiving possession from Anil Mittal and Ashish Jha, coupled with the admissions of the defendant no. 1/ Sh. Ram Kumar, makes it abundantly clear that the plaintiff was in possession of the two rooms on the first floor and one Hall on the ground floor. The deposition of DW1/ Sh. Ram Kumar to the contrary gets demolished by his own admissions in the cross-examination.

74. Pertinently, though the Plaintiff has pleaded that he is also in possession of the basement, however, no details or explanation as to how the possession of the basement came with the plaintiff are entailed in the pleadings or the evidence led by the plaintiff. Even the defendants have merely refuted the plea by stating that the basement was constructed after the oral partition of 1987 and is thus, exclusive property of the defendants. Significantly, no explanation qua the occupation of the basement is forthcoming either from the entire pleadings or evidence led by the parties, Digitally to show its possession. This again indicates that no partition ever took place as claimed by the defendants and there was joint possession.

75. The fourth phase of construction pertain to the year 2009, when the second floor of the property was constructed. PW1/Sh. Raj Kumar has deposed that five rooms along with two bathrooms and a kitchen which were constructed on the second floor of the suit property, are in possession of the Defendants and their family members.

76. On scanning the facts with a wider lens, it can be easily discerned from the aforesaid evidence and documents that the three brothers were residing with their families in the suit property as a joint family and had from time to time, been in possession of the rooms as mutually agreed.

77. To sum up, when the property was jointly purchased in 1978, the mutually decided arrangement was that the parties would reside in the four rooms in the back portion of the suit property till 1994 and subsequently, when the property was expanded, they altered the arrangement and occupied the newly constructed rooms on the first floor in the front portion and thus, started using the old rooms in the back portion as store rooms. Subsequently, since the plaintiff decided to move to rented accommodation in Pitampura in 1995, he temporarily permitted the vacated two rooms on the first floor to be used by defendant No.2 Sh. Ram Phal. Thereafter, these two rooms were permitted to be used by Sh. Anil Mittal, son of Defendant No. 2, by the plaintiff, who eventually returned the possession to the plaintiff.

78. The overwhelming evidence led by the plaintiff establishes that no partition by metes and bounds ever took place. The conduct of the parties further proves that the property always remained in joint possession of the three brothers and they had merely been in “occupation” of the respective Digitally portions in the suit property which was not adverse or hostile to the rights of each other. Mere occupation of certain portions of the suit property, cannot be termed as “exclusive possession” or implied ouster of the other co-owner qua that portion. Rather, it is reflective only of the interse arrangement between the parties to occupy the different portions of the property which is inevitable in a joint family setup when the entire family resides in the same house. Though assumption of exclusive portions is a significant factor to prove the factum of partition, but in the present case the manner in which the rooms are being shared also reflects only a occupational arrangement and not a partition. The parties occupied different portions of the property but neither was the status severed nor were the parties dealing with their portions separately or exclusively and there was always a unity of possession.

79. The issue is decided accordingly. Issue No. 3: - If the above issues are decided against the defendants, whether the plaintiff is entitled to any mesne profits/ damages for use and occupation after enquiry they are to be ordered? OPP

80. The plaintiff has raised a claim that out of the three shops, the Defendant No.1/Sh. Ram Kumar has been in possession of one shop from where he is running a store in the name of "Fair Price Shop", the Defendant No.2/Sh. Ram Phal has been in possession of second shop from where he running a Medical Store in the name of "Shivangi Medical Store" and Mr. Naveen Mittal, son of the Defendant no.1/ Sh. Ram Kumar, has been running a Grocery store from third shop in the name of "Shiv Kirana". Digitally Therefore, since the defendants have been conducting commercial activities on the suit property, the plaintiff is entitled to seek mesne profits from the defendants who are in illegal and unlawful occupation of the same.

81. To address the issue at hand, it would be beneficial to understand the law pertaining “mesne profits”.

82. According to Section 2(12) of the Code of Civil Procedure, 1908, “mesne profits” refer to the profits or pecuniary benefits accrued from land or property during the period a wrongful possessor holds it until they return it to the rightful owner. A rightful owner of a property, who has been wrongfully dispossessed or deprived of its possession and potential profits arising therefrom, may claim mesne profits from the person who has wrongfully occupied the property.

83. Thus, it is essential to prove that the party, from whom mesne profits are sought, were actually in wrongful possession of the suit property. The natural corollary to the above is that the absence of wrongful dispossession negates the basis for a mesne profits claim.

84. In the present case, the property in question remained to be a joint property of the three brothers, as co-owners and they were in joint possession of the suit property, therefore all co-owners had rights to use and enjoy the property, especially in absence of any evidence of exclusion or ouster of any party. Thus, a claim for mesne profits by one co-owner is untenable since a co-owner cannot be said to be in illegal occupation or would wrongfully possess his own property.

85. Further, the parties had possession of different portions which they chose to use in the manner that suited them. Pertinently, while the shops were in the possession of the defendants, plaintiff as per his own assertions, Digitally was in possession of the Hall on the ground floor and had also taken a Non- Domestic Electricity Connection in his name, as reflected in the Electricity Bill dated 27.01.2018 Ex. DW1/P[3]. Thus, it can only be deduced that while the defendants were conducting commercial activities in their respective three shops in the front portion, the plaintiff had the Hall in his occupation with a Non-domestic Electricity metre. Each of the parties may have used their respective portions in accordance with their preference, but that does not entitle one to claim a share in the income of the other.

86. Further, it is also discernible from the respective assertions of the parties that after mutual agreement, the defendants and the son of defendant no. 1/Sh. Naveen Mittal are running the three shops on their own and out of their own funds and resources, without any contribution from the plaintiff. Essentially, the plaintiff cannot be entitled to any profits arising from the personal and individual business set-ups of the defendants.

87. The principle of mesne profits is rooted in compensating a party who has been deprived of their rightful possession due to the unlawful occupation by another, which is not the case at hand. The claim for mesne profits is therefore not sustainable.

88. The issue is decided accordingly. Issue No. 4:- Relief.

89. It is held that no Oral Partition took place between the parties. Therefore, the plaintiff as well as the defendant Nos. 1 and 2 are entitled to their 1/3rd share each in the suit property.

90. A preliminary Decree is passed accordingly. Digitally CS(OS) 341/2018

91. List for determination of mode of partition of the suit property by metes and bounds, for Final Decree, on 05.09.2024.

JUDGE AUGUST 20, 2024 PT Digitally