Full Text
HIGH COURT OF DELHI
Date of Decision: 25.07.2019
MS SHARMILA ..... Plaintiff
Through Mr.J.K.Jain and Mr.Tushant, Advs.
Through Mr.Satbir Singh, Adv. for D-1 to D-6 Mr.Parvinder Chauhan, Adv.for D-15
JUDGMENT
1. This suit is filed by the plaintiff seeking a preliminary decree for partition of the joint properties of the plaintiff and defendant Nos.[1] to 8 by metes and bounds as per their share in the joint properties, details of which are as follow (para 5 of the plaint):
ANNEXURE: P.1.
ANNEXURE: P.2, while the other brothers of Shri Prem Chand took his share in khasra No.471/1 (4-10). The portion of Shri Prem Chand was otherwise less than his share cumulatively. Shri Prem Chand raised his exclusive construction on the portion so allotted to him. Likewise, on the 2019:DHC:3638 portion of Khasra No.471/1, constructions were raised by the predecessors of defendant No.9 to 21. The property of khasra number 471/1 is shown in the plan
ANNEXURE: P.3.
ANNEXURE: P.4.
2. It is the case of the plaintiff that the parties are the descendants of late Sh.Mangat Ram who left behind four sons, namely, Sh.Ram Kishan, Sh.Attar Sigh, Sh.Prem Chand and Sh.Bal Kishan, out of whom only Sh.Attar Singh, defendant No.9 is alive. The plaintiff and defendant Nos.[1] to 8 are successors of late Sh.Prem Chand, defendant Nos.10 to 12 are successors of late Sh.Ram Kishan and defendant Nos.13 to 21 are successors of late Sh.Bal Kishan. Smt.Shakuntala, widow and Ms.Poonam have relinquished their rights by registered relinquishment deed. It is stated that the present suit is for partition of the properties of late Sh.Prem Chand between the plaintiff and defendant Nos.[1] to 8. Defendant Nos.[9] to 21 have been impleaded as proforma defendants because in some plots their predecessors’ names are recorded, but in mutual partition the said portions have come to the share of Sh.Prem Chand.
3. The plaintiff claims 1/7th share in the suit properties. The shares of the parties are stated as follows: “Plaintiff: 1/7th share Defendant Nos.l to 3 1/7th share Defendant Nos.[4] to 6 1/7th share each Defendant No.7 1/7th share; and Defendant No.8 1/7th share.”
4. Defendant Nos.[1] to 6 have filed their written statement. In the written statement, it is admitted that the properties stated in para 5 of the plaint other than the property measuring 322 Sq.Yds situated in extended Lal Dora, Khasra No.53/1/1 shown in Annexure-P[4], all other properties are liable to be partitioned as these belonged to Sh.Prem Chand. It is stated that the said property Annexure-P[4] was owned and possessed by Sh.Sandeep, predecessor of defendant Nos.[1] to 3 and Sh.Tej Pal, defendant No.7 for which the plaintiff cannot seek partition. It is also not disputed that the shares of the parties are as mentioned in para 8 of the plaint i.e. 1/7th share each.
5. Defendant No.7 has also filed his written statement where he has denied that the properties in question were liable to be partitioned. However, no further details are stated in the written statement. Written statement was also filed by defendants No. 10 to 12. They have accepted the properties as stated in para 5 of the plaint except to the extent of Annexure P-3.
6. Despite several opportunities, defendants No. 8, 9 and 13 to 21 did not file their written statements. Their right to file written statement was closed on 23.08.2017.
7. On 21.11.2017, this court proceeded ex-parte against defendant Nos.10 to 12 and the following issues were framed: “1. What are the joint properties of plaintiff and defendant Nos.l to 8 and what are their shares? OPP
2. Whether the plaintiff is entitled to decree for partition, as claimed? OPP
3. Whether this Court has no jurisdiction to entertain the present suit? OPD-7
4. Relief.”
8. Parties have filed their respective evidence. The plaintiff has filed her evidence by way of affidavit as PW[1]. Defendant Nos.[1] to 6 have filed their evidence by way of affidavit of Smt.Gurmeet Kaur, namely, defendant No.1. None of the other parties has filed any evidence or done crossexamination of any witness.
9. Learned counsel appearing for the plaintiff states that essentially the suit pertains to partition within the family of Shri Prem Chand. He further states that the family of Shri Prem Chand, namely, plaintiff and defendants No.1 to 8 have no share in Khasra No.471/1 on account of a mutual division by Mr.Prem Chand with his brothers. He also states that he is claiming partition only of built up house and not of any agricultural land.
10. Learned counsel appearing for defendant No.15 states that he has no objection to this suit in view of the submissions made by learned counsel for the plaintiff.
11. Learned counsel appearing for defendant No.1 to 6 states that they have no objection to the present suit except regarding the property being part of Sub-clause(c) of para 5, namely, property measuring 322 sq.yds. situated in extended Lal Dora Plot No.53/1/1 which is shown in the plan Annexure P-4. He states that this property is owned by the deceased husband of defendant No.1 and defendant No.7.
12. I will first deal with issue No.1, namely, what are the joint properties of plaintiff and defendant Nos. l to 8 and what are their shares? It is admitted by defendant Nos.[1] to 6 in the written statement that other than the property appearing in Annexure P[4] being part of Sub-clause(c) of para 5, namely, property measuring 322 sq.yds. situated in extended Lal Dora Plot No.53/1/1 all other properties as stated in para of the plaint are joint properties of the plaintiff and defendant Nos.[1] to 8. The only issue that survives is about the property being part of Sub-clause(c) of para 5, namely, property measuring 322 sq.yds. situated in extended Lal Dora Plot No.53/1/1. The best document to show their title to the said property would be with defendant No.1 who has to lead her evidence. Defendant No.1 has filed photocopies of Khatauni and GPA said to have been executed by one Sh.Ram Kumar who claims to be owner of plot No.27, measuring 322.[5] sq.yds. out of Khasra No.53/1/1 situated in Village Mitraon, Delhi also known as Gangotri Enclave, Gopal Nagar, Najafgarh, New Delhi in favour of Sh.Sandeep and Sh.Tej Pal, which is notarised on 21.07.1999. In regard to the aforesaid property, an Agreement to Sell was executed on 21.07.1999 by which Sh. Ram Kumar Sharma agreed to sell the aforesaid property to Sh. Sandeep and Sh. Tej Pal for a consideration of Rs.1,06,500/- and the consideration for the same has been received by Sh. Ram Kumar. I may note that there are no signatures of the second party on this document. Some other documents were filed including Receipt, Affidavit, Possession Letter, Will etc.
13. I may note that on 06.11.2017, admission-denial of the document was carried out. The plaintiff did not admit the aforesaid documents.
14. Defendant Nos.[1] to 6 have in their affidavit by way of evidence failed to prove the aforenoted documents. The original of the documents have not been filed. The only evidence led by DW[1] Smt.Gurmeet Kaur, wife of defendant No.1, reads as follows: “2. That the defendants No.l to 6 do not dispute about the share of the plaintiff and defendant No.l to 7 in respect of the property shown in Annexure P.l, P.2, P.[3] and P.[5] (site plans). However, the property detailed in para 5(c) and site plan Annexure P.[4] was purchased by Shri Sandeep, predecessor of defendants No.l to 3 and Shri Tej Pal, defendant No.7 out of their own funds. Shri Prem Chand was neither owner of this plot nor the plot was purchased during the lifetime of Shri Prem Chand. Since Shri Prem Chand had no right in the plot shown in the site plan, Annexure P.4, the plaintiff has no right in the same and there is no question of partition of the same and giving any share to the plaintiff. To that extent the suit of the plaintiff is liable to be dismissed.”
15. The said DW[1] in her cross-examination states as follows: “DWl: Mrs. Gurmeet Kaur, W/o Mr.Sandeep Age 33 years, R/o Village Mitraon, Najafgarh, New Delhi. Commencement of evidence-12:20 pm. ON S.A. I tender in evidence my chief examination, affidavit Ex. DW1/X which bears my signature at Points A & B. XXXX by Mr. J.K.Jain, counsel for the plaintiff. The plot at Najafgarh as shown in site plan Annexure P-4 was purchased prior to my marriage. I am having title documents of this property. Today I have not brought the same and have not filed the same on record. It is incorrect to suggest that this property was never purchased by Mr.Sandeep, i.e. my husband and Mr.Tej Pal. It is incorrect to suggest that this property belonged to Mr.Prem Chand who was the owner and possession of the property before his death. It is incorrect to suggest that plaintiff and defendants 1 to 8 inherit this property also”
16. Clearly, defendant Nos.[1] to 6 have not filed original title documents based on which they can claim title of the said property. The best documents were available with the said defendants and they have failed to produce the same. Reference in this context may be had to the judgment of the Supreme Court in the case of Union of India vs. Ibrahim Uddin and Anr., (2012) 8 SCC 148 wherein it was held as follows:- “12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the court may draw adverse inference under Section 114 Illustration (g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence.” Clearly an adverse inference is liable to be drawn against defendants No. 1 and 7 for their failure to produce the original title documents.
17. Hence, I hold that the said property at Najafgarh, Delhi also belonged to late Sh.Prem Chand and is liable to the partitioned.
18. In view of the above, I hold that the properties as spelt out by the plaintiff in para 5 of the plaint are the joint properties of the plaintiff and defendants No. 1 to 8. As stated in para 8 of the plaint, the plaintiff, defendants No. 1 to 3, defendants No. 4 to 6, defendants No. 7 and defendant No. 8 have respectively 1/7th share each in the properties. Issue No. 1 is decided accordingly.
19. Coming to issue No. 2, it is manifest that the plaintiff is entitled to a decree of partition as claimed.
20. Regarding, issue No. 3, namely, as to whether this court has jurisdiction to entertain the present suit, no submissions have been made in this behalf. Accordingly, I hold this court has jurisdiction to entertain the suit as the properties are located within the jurisdiction of this court.
21. In view of the above a preliminary decree of partition is passed in favour of the plaintiff and against defendants No. 1 to 8 as described in para 8 of the plaint as follows:- “Plaintiff: 1/7th Share Defendants No. 1 to 3: 1/7th Share Defendants No. 4 to 6: 1/7th Share Defendant No. 7: 1/7th Share Defendant No. 8: 1/7th Share”
22. Mr.Rishi Manchanda, Advocate (Mobile No. 9911681178) is appointed as the local commissioner to visit site properties and to see if the same can be partitioned by metes and bounds. He may also engage a draftsman to draw property map of the site. Fees of the local commissioner is fixed at Rs.75,000/-, which shall be paid by the plaintiff subject to cost in the suit. The local commissioner shall also be entitled to out of pocket expenses. Local commissioner will submit his report within two months from today.
23. List on 17.10.2019.