IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1036/1998
*
Reserved on: 14th February, 2012
Decided on: 28th February, 2012
SHAHID KHALIL ..........PLAINITFF
Through: Mr. Raman Kapur, Sr. Adv.
with Mr. Aviral Tiwari and
Mr. R.P. Singh, Advs.
Versus
ZAHID KHALIL & ORS. ...........DEFENDANTS
Through: Mr. Rajeev Saxena and Mr.
Rajat Mittal, Advs. for D-2.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK
A.K. PATHAK, J.
1. Plaintiff has filed this suit for declaration, partition, rendition of accounts and permanent injunction against the defendants.
2. Defendant nos. 1 and 2 are step brothers of plaintiff. Disputes between the parties relate to property bearing no. C-47 and C-48, Jangpura (B), New Delhi (hereinafter referred to as "suit property"). As per the registered sale deed dated 3rd March, 1964, the suit property stands in the name of Shahid Khalil and Zahid Khalil. Shahid Khalil and Zahid Khalil are the joint owners of the suit property by virtue of the aforementioned sale deed. Defendant CS (OS) No. 1036/1998 Page 1 of 10 no. 3 is a tenant in the suit property.
3. Case of the plaintiff, as set out in the plaint, is that he along with defendant no. 1 is joint owner of the suit property. Defendant no. 2, in order to grab the suit property, started asserting that he was also known as Shahid Khalil and that the suit property is jointly owned by him and his brother, defendant no. 1. Father of the plaintiff, under the influence of his second wife, also joined defendants no.1 and 2 in claiming that the suit property belonged to defendant nos. 1 and 2. In order to achieve their this objective, defendant nos. 1 and 2 filed a Civil Suit No. 1475/1991 in the court of Sub Judge, Delhi against defendant no. 3. The said suit was filed by defendant no. 2 as "Shahid Khalil". When plaintiff came to know about this fact, he filed an application for his impleadment in the said suit on the ground that he was the joint owner of the suit property. However, learned Sub Judge, vide order dated 10th March, 1998, held that the suit being against the tenant (defendant no.3) could not have been converted into a partition suit, consequently, his application was dismissed. In view of ill designs of defendant nos. 1 and 2, in collusion with their father, to grab the property, plaintiff was compelled to file the present suit seeking declaration that he, being "Shahid Khalil", was the joint owner of the suit property along with defendant no.1, "Zahid Khalil", as also CS (OS) No. 1036/1998 Page 2 of 10 to seek partition of the suit property besides permanent injunction against the defendants that they shall not interfere in plaintiff‟s peaceful enjoyment of the suit property as also a decree of rendition of accounts in respect of the rents realized from defendant no. 3.
4. Defendant nos. 1 and 2 have filed a composite written statement; whereas defendant no. 3 has filed separate written statement. In their written statement, defendant nos. 1 and 2 have claimed that the plaintiff had no locus standi to file the present suit as he was not having any right, title or interest in the suit property and that the plaintiff had not come to Court with clean hands. Defendant nos. 1 and 2 claim that the suit property was purchased by their maternal grandmother, namely Smt. Musharaf Jahan Begum, in the name of defendant nos. 1 and 2. Their maternal grandmother used to call Hamid Khalil (defendant no. 2) as "Shahid Khalil". Plaintiff was never in possession of the suit property nor did he deal with the same in any manner whatsoever. Suit property was being maintained by defendant no. 2 in association with defendant no. 1. It was denied that defendant nos. 1 and 2, in conspiracy with their father, tried to grab the suit property. It was asserted that the property was purchased in the name of defendant nos. 1 and 2 by their maternal grandmother Smt. Musharaf Jahan Begum. Thus, they were joint owners of the suit property. CS (OS) No. 1036/1998 Page 3 of 10
5. Defendant no.3, in his written statement, admitted that he was occupying the suit property as a tenant. It was alleged that defendant no. 2 never dealt with defendant no. 3 with regard to suit property. It is only defendant no. 1, who had been approaching the defendant no. 3 for collecting the rent. It was stated that in the civil suit defendant no. 1 did not disclose that defendant no. 2 was also known as "Shahid Khalil". As per defendant no. 3, after the disposal of application of the plaintiff, he had filed Civil Revision Petition in the High Court, which was pending.
6. Plaintiff has filed replication(s) to the written statement(s) wherein he denied the allegations in the written statement. It was denied that defendant no. 2 was also known as Shahid Khalil. It was reiterated that the plaintiff and defendant no. 1 were joint owners of the suit property, in terms of the sale deed.
7. Subsequently, defendant no. 3 stopped appearing and was proceeded against ex-parte vide order dated 7th March, 2005.
8. Vide order dated 9th November, 2012, following agreed issues were taken on record:-
1. Whether the Suit as framed is not maintainable? OPD
2. Whether the Plaintiff has no locus standi to file the present suit? OPD
3. Whether the plaintiff has any right, CS (OS) No. 1036/1998 Page 4 of 10 title, interest or claim in the suit property? OPP
4. Whether the plaintiff is entitled for a declaration as owner of 50% the suit property? OPP
5. Whether the plaintiff has any prima facie case in his favour? OPP
6. Relief, if any.
9. Plaintiff has examined himself as PW1. Defendant nos. 1 and 2 have examined themselves as DW1 and DW2 respectively. They have also examined their father, Mohd. Khalilur Rehman, as DW3. I have heard the learned senior counsel for the plaintiff, counsel for defendant nos. 1 and 2 and perused the entire material on record and my issue wise findings are as under:- Issue No. 1
10. Defendants have failed to point out as to why the suit is not maintainable, inasmuch as this issue has not been pressed during the course of hearing. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
Issue No. 2
11. This issue has not been pressed by the parties, inasmuch as, defendants have failed to point out as to how the plaintiff has no locus standi to file the present suit. Name of the plaintiff is "Shahid Khalil". Sale deed Ex. PW 1/3 clearly shows that the suit property CS (OS) No. 1036/1998 Page 5 of 10 had been purchased in the name of Shahid Khalil and Zahid Khalil. As per the plaintiff, he is the joint owner with defendant no. 1. Defendant no. 2 had been falsely claiming himself to be "Shahid Khalil" in order to grab the suit property. Thus, in my view, plaintiff has locus standi to file the present suit. Accordingly, this issue is also decided in favour of the plaintiff and against the defendants.
Issue Nos. 3 and 4
12. Both the above issues require common discussion hence are decided together.
13. Sale deed Ex. PW1/3, in respect of the suit property is in the joint name of "Shahid Khalil" and "Zahid Khalil". Name of plaintiff is "Shahid Khalil" and that of defendant no. 1 is "Zahid Khalil", meaning thereby as per the sale deed, suit property stands jointly in the name of plaintiff and defendant no.1. Name of defendant no. 2 is "Hamid Khalil" and this fact is not in dispute. However, case of the defendant no. 2 is that he is also known as "Shahid Khalil". According to defendant no.2, his maternal grandmother used to call him as "Shahid" and for this reason she had purchased the suit property jointly in his name and defendant no.1. For this reason, his name was mentioned as "Shahid Khalil" in the sale deed. Thus, defendant no. 2 claims himself to be joint CS (OS) No. 1036/1998 Page 6 of 10 owner of the suit property along with defendant no.1, who happens to be his real brother.
14. In his affidavit of evidence, defendant no. 2 has mentioned that his maternal grandmother Smt. Musharaf Jahan Begum used to call him as "Shahid Khalil" which also happened to be the name of his elder step brother i.e. the plaintiff. However, his this stand completely stands demolished in his cross-examination, wherein he has deposed that his maternal grandmother used to call him "Bhure". He admitted that his maternal grandmother used to call him "Hamid". He did not remember his maternal grandmother having called him "Shahid". He further admitted that his maternal grandmother used to call everyone by their nick name. He also feigned his ignorance about the name by which his maternal grandmother used to call him in his childhood. Relevant excerpt of his testimony reads as under:-
"I am called by the name of „Hamid‟ and „Bhure‟ in the house as well as outside the house. The plaintiff is however only called „Bhaijan‟ in the house and even outside and he is not called by his name. The elders however call him „Nanhe‟. After I grew up my grandmother used to call me Hamid till her death in 1988. I do not know what she used to call me in my childhood. Again said, she also used to call me „Bhure‟. I do not know whether in my childhood she ever called me by the name of „Shahid‟. However, as per my memory, she never CS (OS) No. 1036/1998 Page 7 of 10 called me „Shahid‟. My grandmother (Nani) used to call all the children by their nicknames. She never used to have any confusion regarding the name of the children of the house. It is correct that prior to her death in 1988 my nani was in sound mental state of health. She used to call plaintiff by the name „Nanhe‟. In my presence my Nani never called the plaintiff by the name Shahid. She always used to call him „Nanhe‟."
(emphasis supplied)
15. The answers given by him, as quoted above, clearly demolish the case of defendant no. 2 that his maternal grandmother used to call him as "Shahid" and for this reason she had given his name as "Shahid" instead of "Hamid", in the sale deed. No other documentary evidence has been placed on record to show that defendant no. 2 was also known as "Shahid Khalil" besides his original name i.e. "Hamid Khalil". The plea taken by him also appears to be improbable since his step brother was known as "Shahid Khalil". It is hard to find the same name of two brothers even if they are step brothers.
16. In his cross-examination, defendant no. 2 has admitted that in his school record as well as in his passport, his name is recorded as "Hamid Khalil". He further admitted that he was not in possession of any document issued by any Government authority wherein his name has been mentioned as "Shahid Khalil". Testimony of DW1 CS (OS) No. 1036/1998 Page 8 of 10 and DW3 are not sufficient to establish that defendant no. 2 was also known by the name of "Shahid Khalil" besides his original name "Hamid Khalil". In his cross-examination, defendant no. 2 has admitted that his maternal grandmother used to call him "Bhure" and he does not remember that his maternal grandmother ever called him by the name "Shahid Khalil". In view of the evidence on record, a finding can safely be returned that the name of defendant no. 2 is "Hamid Khalil" and he was not known by the name of "Shahid Khalil", which is the name of his step brother, that is, plaintiff. Sale deed Ex. PW 1/3 is jointly in the name of "Shahid Khalil" and "Zahid Khalil". Thus, it is held that plaintiff and defendant no. 1 are joint owners of the suit property and have equal share therein.
17. In view of the above discussions, both the above issues are decided in favour of plaintiff and against the defendants. Issue No. 5
18. This issue appears to has been inadvertently framed, inasmuch as, the same has not been pressed by either of the parties. Issue No. 6
19. In view of the findings returned on issue nos. 3 and 4, it is declared that the plaintiff along with defendant no. 1, is the joint owner of the suit property that is C-47 and C-48, Jangpura (B), New CS (OS) No. 1036/1998 Page 9 of 10 Delhi, and has 50% share therein. A preliminary decree of partition is also passed in respect of the suit property. Till the property is partitioned, defendant nos.1 and 2 are restrained from creating any third party interest in the suit property. As regards relief of rendition of accounts, the same has not been pressed by the parties. Parties to bear their own cost. Decree sheet be drawn accordingly.
A.K. PATHAK, J.
FEBRUARY 28, 2012 ga CS (OS) No. 1036/1998 Page 10 of 10