Sh. Deep Chand vs Sh. Kunda Mal
2001 Latest Caselaw 1258 Del

ORDER

A.K. Sikri, J.

1. The plaintiff has filed this suit for partition and injunction. It is claimed in the plaint that plaintiff and defendants are in possession of property II-D/1, Lajpat Nagar, New Delhi the site of which is leasehold property. The plaintiff has 19787.73/26300 share while the defendant has 6,512.27/26300 share in the property which was purchased from Government of India and lease deed dated 25th September, 1974 was executed to this effect. It is also averred in the plaint that the plaintiff and defendant are in possession of the said property. Although the share of the plaintiff is about 1/4th, he is in possession of much more portion of the property than he is legally entitled to. Allegations about illegal and unauthorised construction by the defendant in the suit property are also made ad according to the plaintiff inspite of repeated request the defendant is not removing the illegal construction. It is further stated tat the plaintiff does not wish to keep the property joint with the defendant and as he has got right to the get the property partitioned, present suit is filed for partitioning the property. Decree for mandatory injunction is prayed for seeking direction against the defendant to demolish the unauthorised construction, namely, shop and stores shown red in the plan attached. The plaintiff has also prayed for decree of prohibitory injunction restraining the defendant and all his employees and agents from making any further construction or alterations in the aforesaid property and from causing obstruction and interference in the plaintiff's enjoyment of the property.

2. In the written statement filed on behalf of the defendant, it is averred that although the property was purchased jointly by the plaintiff and the defendant, the plaintiff was not interested in the suit property as he considered the bid money to be exorbitant. On the initiative taken by the defendant, provisional possession letter was issued to the parties on 15th March, 1958 at a belated stage. However, actual physical possession of the premises could not be handed over to the parties as the property was found to be in possession of one Sh. Panna Lal as suit property was allotted to him by mistake. In these circumstances and as he was also not interested in pursuing the litigations that were initiated at the instance of the defendant to recover possession of the suit property. The plaintiff became disinterested in the suit property. Accordingly, it was mutually agreed between the parties, who are related to each other, that defendant would pay to the plaintiff the value of the rehabilitation scheme got adjusted by the plaintiff towards the bid money and the defendant would pursue the litigation and other proceedings to get the possession of the suit property. It was also agreed that the defendant would pay to the plaintiff the proportionate and prevalent market value of the rehabilitation scheme which was got adjusted by the plaintiff. Calculating in this manner the defendant paid to the plaintiff a sum of Rs. 10,500/- towards his claim. After getting his entire consideration in respect of his claim, the plaintiff left Delhi for Nagpur and settled there in the year 1960. It is also alleged that keeping in view the closeness of the relations the defendant did not take any receipt from the plaintiff for the amount paid to him. The defendant fought a lone legal battle and spent substantial amount for recovery of the possession of the premises and actual physical possession was finally handed over to the defendant in the absence of the plaintiff sometime in September, 1965. In this manner the defendant became the absolute owner of the premises. It is also claimed that possession of defendant became adverse in 1960 or in any case in the year 1965 when he took actual physical possession to the exclusion of the plaintiff. It is also contended that the suit is barred under the provisions of Section 27 and Article 65 of the Limitation Act, 1963. Number of other objections regarding maintainability of the suit for partition, valuation of the suit for the purpose of court fee and jurisdiction etc. are taken.

3. It may be mentioned that during the pendency of this case, the defendant No. 1 died and his LRs. were brought on record. On the basis of the pleadings, following issues were framed:

1. Whether the suit is properly valued for the purpose of court fee? OPP.

2. Whether the suit is barred by limitation? OPD.

3. Whether the defendant is not liable to remove any construction? In case it is found out that he is liable to remove any construction, then to what extent and in which portion?

4. Whether the defendant is in exclusive possession as claimed? OPD.

5. Relief.

4. On 6th August, 1996 following additional issue was also framed:

1. Whether in view of the prohibition in the lease, granted by the Government, the property in question cannot be partitioned and can only be enjoyed as one unit as pleaded in preliminary objection No. 3 taken in the written statement? OPD.

5. In support of his case, the plaintiff appeared himself alone as PW-1. The defendants, on the other hand, examined two witnesses namely, DW-1, Sh. Ghanshyam s/o deceased defendant (Even he died during pendency of this case and on his death his LRs. are also brought on record) and one Sh. Ishwar Dass Bhutani as DW-2.

6. The plaintiff in his statement has deposed to the facts mentioned in the plant. He has also proved two letters which are Ex. P-1 and Ex. P-2 received by the plaintiff from the defendant, site plan as Ex. PW-1/1 and lease deed as Ex. P-4. Legal notice before filing the suit is Ex. PW-1/2 and AD card as Ex. PW-1/3. In his evidence, he has also stated that he is living in a part of the property and is in possession of a verandah and a room marked 'X' & 'Y' in the plan (Ex. PW-1/1). He has denied the suggestion put to him in the cross-examination that he told the defendant Sh. Kunda Mal that he might take plaintiff's share or that plaintiff gave him his share or that he received any amount from the defendant.

7. DW-1, Sh. Ghanshyam has generally deposed in respect of the averments made in the written statement including that his father had paid to the plaintiff a sum of Rs. 10,500/- at the rate of 10 anna per rupee which was the prevalent rate at that time. He has also stated that the plaintiff came back from Nagpur about 5-6 years back (his deposition is dated 7th August, 1996). Prior to that in October, 1984 the wife of the plaintiff who was ill at that time, alone had come back to Delhi from Nagpur as she was mentally sick. The room which is presently in the possession of the plaintiff was given by the defendant to the wife of the plaintiff for her residence. Thereafter, sone of the plaintiff also came from Nagpur to Delhi. He has further deposed that plaintiff and his son are carrying on the business of photostat just outside the portion of the suite property which is under their occupation where they have constructed a temporary (kacha) structure and have installed a photocopier machine. He further stated that he has resided in the suit property form 1965 to 1978. The plaintiff never resided in this property from 1965 to 1984. He has denied the suggestion that for eviction of Sh. Panna Lal, proceedings were initiated by the plaintiff and the defendant jointly or that plaintiff used to come to Delhi for pairvi of that case or that the plaintiff shared the expenses in connection with the said eviction proceedings. He further admitted that now the property tax in respect of suit property was being paid by the plaintiff. He also admitted that one Sh. Chandi Ram was an occupant of the portion of the suit property but he has denied that he has occupied the said portion as tenant of the plaintiff stating that he was permitted by the defendants to occupy that portion of the suit property. Sh. Chandi Ram remained in occupation of that portion for about 2-3 years. He could not tell the exact years during which Sh. Chandi Ram remained in occupation of the suit property. He has denied the suggestion that during the period from 1965 to 1978, the plaintiff used to visit the suit property at Delhi from Nagpur on two-three times in a year and during those visits, he used to reside in the suit property. he has also admitted that defendants have raised a temporary unauthorised construction where they are running a shop and that they have also constructed an unauthorised store at the back of the portion presently in possession of the plaintiff. He further stated that suit property cannot be partitioned as per the information received from the L & DO.

8. DW-2, Sh. Ishwar Dass Bhutani is the resident of first floor, Shop No. 30, Pushpa Market, Lajpat Nagar, New Delhi since 1951. He has deposed that the suit property is situated at a distance of about 50 to 60 ft. from his house. He knew Sh. Kunda Mal and Sh. Ghanshyam Dass. He deposed to the effect that he saw Sh. Ghanshyam Dass and the plaintiff for the first time about 5-6 years ago. He has also stated that his children and children of Sh. Ghanshyam Dass used to study together and for that reason, he was on visiting terms with Sh. Ghanshyam Dass. In cross-examination he stated that he did not know whether the wife of the plaintiff was residing in suit property prior to 1984. He further stated that he had seen the wife of the plaintiff residing with the plaintiff for last 5-6 years. Prior to that he did not notice the wife of the plaintiff residing in the suit property. He also stated that he did not see the son of the plaintiff by the name Kishore residing in the suit property for about 12 years. It was also not in his knowledge as to whether the plaintiff used to come from Nagpur and used to stay in the suit property during the period from 1965 to 1978. He also did not know as to whether in the suit property, any person by name Sh. Chandi Ram was residing as a tenant or not. He also did not know as to whether any person by the name Sh. Panna Lal was even in occupation of the suit property.

9. From the pleadings and evidence on record, the admitted position is that the suit property was purchased by both plaintiff and the defendant, Sh. Kunda Mal in the year 1955 for a consideration of Rs. 26,300/-. The lease deed is not in dispute as per which the plaintiff holds share in the property as 19,787.73/300 and the defendant as 6,512.27/26,300. In this manner, the share of the plaintiff is 75.24 per cent and that of the defendant late. Sh. Kunda Mal is 24.76 per cent. The area of the plot is 300 sq. yards and on this reckoning the plaintiff's share comes to 74.28 sq. yards. While the factum of joint purchase of the suit property is not disputed by the defendants. The case of the defendants is that the plaintiff was not interested in the suit property after its purchase for certain reasons and thus as per the agreement between the parties, the defendant paid a sum of Rs. 10,500/- to the plaintiff as the share of the plaintiff's rehabilitation scheme which was adjusted while making payment to the Government. Market rate of this rehabilitation scheme i.e. at the rate of 10 anna per rupee was paid. The defendant thereafter initiated legal proceedings against Sh. Panna Lal of evicting him and took the possession of the suit property in 1965 to the exclusion of the plaintiff. Therefore, having admitted that the suit property was purchased jointly it was for the defendant to prove that whether any such alleged settlement took place between the parties as per which share of the plaintiff was paid off by the defendant. Although the defendant has alleged that he had paid a sum of Rs. 10,500/- to the plaintiff, it is specifically denied by the plaintiff. The defendant could not place on record any evidence showing the factum of this payment. This story of the defendant does not appeal to the reason. When lease deed contains 3/4th share of the plaintiff why the defendant would pay the amount that too in cash and will not take an receipt and there would not be any writing between the parties regarding the alleged agreement that plaintiff had given his share in the property to the defendant and was not interested in the said property any longer. For want of any cogent evidence, I am not inclined to believe the case of the defendant regarding alleged settlement or payment of Rs. 10,500/-. Even otherwise for transfer of interest in immovable property,it was necessary to execute document in writing on requisite stamp paper which required compulsory registration.

10. The defendant knew this position in law. Apparently because of this reason that in the alternative he is claiming exclusive right over the property by taking the plea adverse possession. Therefore, what is to be seen is as to whether the defendant took the exclusive possession of the property from Sh. Panna Lal in 1965 and remained in possession of this property uninterruptedly till 1984. Here the case of the plaintiff is that both plaintiff and defendant initiated legal proceedings against Sh. Panna Lal jointly and took the joint possession. However, neither the plaintiff nor the defendant has produced any record relating to the case filed against Sh. Panna Lal. As far as taking possession in 1965 is concerned, it is deposed by the plaintiff that when the possession of the property was taken at that time he was not in Delhi and was at Nagpur. He was summoned from Nagpur by his uncle. The defendant had also sent a letter to him. Letters from his uncle and defendant Sh. Kunda Mal are Ex. P-1 and P-2. Significantly, there is no cross-examination by the defendant on these two letters. Ex. P-1, letter of Sh. Kundan Lal Sadhwani, uncle of the plaintiff is dated 25th April, 1973. In this letter it is, inter alia, stated that Ghanshyam (son of defendant) is going to occupy a Government quarter soon and then probably the plaintiff would stay there. This letter and Ex. P-2 written by the defendant demolish the defense set up by the plaintiff. Thus these documents Along with unchallenged testimony of the plaintiff to the effect that he had come to Delhi after the possession was taken proved that it was not exclusive possession of the premises with the defendant. This conclusion would get strength from the fact that the possession of the plaintiff in the part premises as on the date of filing of the suit is admitted by the defendant. The case of the defendant is that possession of the portion of the premises was given to the plaintiff in 1984 when plaintiff's wife came to reside in Delhi. If the story projected by the defendant is correct, namely, there was settlement between the plaintiff and the defendant pursuant to which entire consideration was paid to the plaintiff and defendant became exclusive owner of the property in question, why he would give possession of part premises to the plaintiff in the year 1984? Therefore, the version of the defendant is not worthy of any credence. Even the statement of DW-2 also does not inspire any confidence except confining his statement to the effect that he saw Sh. Ghanshyam Dass and the plaintiff for the first time about 5-6 years ago. He has not answered any question put to him in cross-examination which would show that he knew the parties or was on visiting terms. It seems that he was tutored to the extent he deposed and in respect of other questions put to him, he field ignorance which is not possible if he knew the parties. Significantly, although he states that he is residing in his premises 50-60 ft. away from the suit property since 1951, he did not know that the suit property was once occupied by Sh. Chandi Ram and he ever lived there when even as per the case of the defendant, Sh. Chandi Ram was residing in the suit property earlier who gave the possession in the year 1965. It seems that the portion of the property remained in possession of the plaintiff from the very beginning. It may be stated that the plaintiff got lesser portion at that time as he was settled in Nagpur. It also seems probable that whenever the plaintiff used to come to Delhi he would reside at the portion of the suit premises in his occupation. If this is the state of affairs and facts established on record, the theory of adverse possession putforth by the defendant also warrants to be rejected.

11. After analysing the evidence and giving the aforesaid conclusions, let us proceed to record the findings on each issue:

1. Whether the suit is properly valued for the purpose of court fee?

12. The suit is valued at Rs. 5,00,260/- by the plaintiff. The defendant has challenged valuation. However, no evidence is produced on record to show that the value of the suit property at the time of filing the suit was more. On the other hand, the plaintiff has stated on oath that at the time of filing of the suit, the value of the property was approximately Rs. 6 lacs. There is no suggestion to the plaintiff to the contrary. On the other hand, question is put to plaintiff in cross-examination about the valuation of the property at the time of his evidence i.e. in August, 1996 which is of no consequence. In these circumstances, I am inclined to hold that the valuation given by the plaintiff in respect of suit property for the purpose of court fee is correct. Since in his evidence he has stated the value of the suit property at Rs. 6 lacs at the time of filing of the suit, he would be bound by the statement and on this reckoning the suit should have been valued at Rs. 6 lacs and the court fee thereon. Therefore the plaintiff shall pay the balance court fee within four weeks.

2. Whether the suit is barred by limitation?

13. Onus of this issue was upon the defendant. No evidence worth the name is produced by the defendant in support of his plea on limitation. Even otherwise, the plea of limitation is founded on the allegations that right from the very beginning the defendant remained in exclusive possession of the suit property. That plea having already been rejected for the reasons recorded above, it is held that suit is not barred by limitation. This issue is decided in favor of the plaintiff and against the defendant.

3. Whether the defendant is not liable to remove any construction? In case it is found out that he is liable to remove any construction, then to what extent and in which portion?

14. The defendant's witness DW-1 in his evidence has himself admitted that in one corner of the suit property, the defendants have raised a temporary unauthorised construction where they are running a shop. It is also admitted that they have constructed an unauthorised store at the back of the portion and the portion is in possession of the plaintiff whereas store is in the possession of the defendants. Thus store and shop being unauthorisedly constructed stands proved in view of the aforesaid admissions of DW-1 himself. Once it is proved that this construction is unauthorised, defendants are liable to remove this construction and they are directly accordingly. This issue is also decided in favor of the plaintiff and against the defendant.

4. Whether the defendant is in exclusive possession as claimed?

15. Onus was upon the defendant to prove exclusive possession. The defendant has failed to lead any evidence. On the other hand, the defendant has admitted that certain portion was in possession of the plaintiff. This aspect has also been discussed in detail above while analysing the evidence. This issue is decided in favor of the plaintiff and against the defendant.

16. Additional Issue:

Whether in view of the prohibition in the lease, granted by the Government, the property in question cannot be partitioned and can only be enjoyed as one unit as pleaded in preliminary objection No. 3 taken in the written statement?

17. It is the contention of the defendant that in view there being prohibition in the lease granted by the government, property in question cannot be partitioned and can only be enjoyed as one unit, this aspect can be gone into at the time of passing the final decree as at this stage only a preliminary decree is to be passed declaring the share holdings of the parties.

18. Relief: In view of the fact that suit property was purchased jointly by the plaintiff and the defendant Sh. Kunda Mal, also in view of the fact that defendant has not been able to prove that the share of the plaintiff was settled and payment made or that the defendant remained in exclusive possession and in view of the fact that the defendant has miserably failed to prove that has become the owner of the property in question by adverse possession, the plaintiff becomes entitled to a decree of partition. In view of the findings on issue No. 3 the plaintiff is also entitled to decree of mandatory as well as prohibitory injunction. Accordingly:

a) A preliminary decree of partition is hereby passed. Sh. P.P.S. Premi, Advocate is appointed as Local Commissioner who would visit the suit premises and suggest the modes of partitioning the property by metes and bounds. He shall submit his report within two months. His fee is fixed are Rs. 15,000/-. It is declared that the share of plaintiff is 19787.73/26300 and defendant's share is 6,512.24/26300.

b) Decree of mandatory injunction is hereby passed directing the defendant to remove the shop and store shown red in the site plan which is unauthorisedly constructed by the defendant.

c) Decree of prohibitory injunction is passed restraining the defendant, his employees and agents from making any further construction or alterations in the suit property and from causing obstruction and or interference in the plaintiff's enjoyment of the property which is in possession of the plaintiff. The plaintiff shall also be entitled to costs.

19. List on 5th December, 2001 to await the report of the Local Commissioner.