Sh. Brij Krishen S/O Late Sh. Jai ... vs Shri Gopal Krishen, Shri Mahender ...
2005 Latest Caselaw 1077 Del

JUDGMENT

Swatanter Kumar, J.

1. This suit for partition and possession was filed by Sh. Brij Krishen plaintiff against his three brothers who are defendants in this suit. The plaintiff and defendants have jointly purchased the built-up property bearing No. A-455, defense Colony, New Delhi measuring 217 Sq. Yds. for a total sale consideration of Rs. 28 lacs by registered sale deed dated 09.09.2002. According to the plaintiff, they are co-owners of the said property in equal undivided 1/4th share. While executing the sale deed dated 09th September, 2002, M/s. Krishen and Company through the eldest brother Shri Ram Krishen of the parties was shown as a tenant with a view to protect the possession of the parties over the suit property. The parties in fact had filed a suit for specific performance on the basis of the said agreement against the owner of the property and during the pendency of the said suit, a compromise was arrived at and a sale deed was executed in favor of the parties. In fact, there was no tenancy in favor of Kishen and Company. According to the plaintiff, he had been requesting the defendants to partition the property and give possession of the property as per the share of the parties. It is also the case of the plaintiff that defendants may succeed in creating third party interest in the property by creating an equitable mortgage over the suit property since they are in possession of the original sale deed of the property. Being threatened by the defendants, the plaintiff had requested the defendants to do the needful and partition the property but the defendants failed to adhere to the request of the plaintiff, thus compelling the plaintiff to file the present suit for partition by metes and bounds.

2. After the defendants were served with the summons in this suit, they had filed written statement and counter claim. They denied the share of the plaintiff to the extent of 1/4th but submitted that the plaintiff would be entitled to 1/4th share in the suit property only after the payment of his share to the extent of Rs. 7 lacs towards sale consideration to the defendants.

3. In the replication, the facts averred in the written statement were denied and the case pleaded by the plaintiff was reiterated. It has been stated that the plaintiff did not owe the sum of Rs. 7 lacs as alleged by the defendants and has 1/4th share in the property in question. The suit of the plaintiff and the counter claim thus were being heard and decided together. As the value of the suit for the purposes of pecuniary jurisdiction was Rs. 7 lacs, the case was transferred to the District Courts. Where after the plaint was amended and the pecuniary value of the suit for the purposes of jurisdiction was enhanced to Rs. 28 lacs that being the value stated in the suit and the counter claim and as such the case was again transferred to this court vie order dated 09th September, 2004 which was passed in presence of the parties. Subsequently, nobody appeared on behalf of the defendants and the matter was adjourned to 10th March, 2005 vide order dated 03rd December, 2004

4. The defendants were ordered to be proceeded against ex parte, but they had already filed their written statement and counter claim. Even though, the counter claim of the defendants had been dismissed by the court as afore-noticed, but the written statement is on record before the court, thus, in my opinion, the issues should be framed. The following issues fall for consideration of the court in the present suit:-

1. Whether the suit of the plaintiff is false, frivolous and is not maintainable? OPD

2. Whether the plaint does not disclose cause of action? OPD

3. Whether the property bearing no. A-455, defense Colony, New Delhi is incapable of being partitioned by metes and bounds and the suit is not maintainable? OPD

4. Whether the plaintiff holds 1/4th share jointly with the defendants as alleged in the plaint? OPP

5. Whether the parties are joint owners of the property as claimed by the plaintiff? OPP

6. Whether the plaintiff had failed to pay sum of Rs.7 lacs and would be entitled to his share only after payment of the suit amount with interest, as claimed in the written statement? OPD

7. Whether the defendants are entitled to the counter claim for recovery of Rs.8,43,500/-.OPD

8. Relief to which the parties are entitled to?

Discussion on all issues

5. The defendants have neither filed any documents on record, nor led any evidence. In fact, they were ordered to be proceeded against ex parte vide order dated 10th March, 2005. The plaintiff has examined PW1 and has tendered the affidavit along with annexures Ex.P.W1/1 to Ex. P.W.1/18. The evidence led by the plaintiff remains unquestioned and in his statement the plaintiff has claimed that the property was jointly purchased by the parties by means of a registered Sale Deed dated 9th September, 2002. This witness has given the entire background leading to the registration of the sale deed. There were disputes between the seller and the purchasers of the property (plaintiff and defendants) which was compromised before this court in Suit No. 595/2000. This witness has specifically stated in paragraph 10 of the affidavit that he had paid a sum of Rs. 8,50,000/- against Rs.7 lacs payable by him towards 1/4th share of the total sale consideration, out of the initial consideration paid to the extent of Rs. 17 lacs. The payments to seller Sh. G.M. Bali were made against receipts which have been exhibited on record. An amount of Rs.11 lacs was to be paid at the time of registration of the sale deed. According to the plaintiff he was being pressurized by the defendants to pay an additional sum of Rs.91,000/- towards stamp duty and balance consideration which he declined to pay as he had already contributed more than the share of the total sale consideration.

6. In terms of the registered Sale Deed dated 9th September, 2002, exhibit P.W.1/11 the plaintiff claims to have an equal share in the said property. The averments made in the written statement are not supported by the contents of the registered Sale Deed. As per the terms of the sale deed, which is the document transferring the title to the parties, it has been recorded that the total sale consideration is Rs.28 lacs and if the same is divided into 4 equal shares and each party would have to pay Rs. lacs, while according to the plaintiff he has already paid a sum of Rs. 8 lacs, as stated in the affidavit. In the entire sale deed, it was nowhere specified that the plaintiff is to pay any additional sum or that his title is subject to performance of certain conditions stated in the sale deed. On the contrary, at page 9 of the sale deed, the language of the sale deed rather shows that the property is jointly owned by the parties unconditionally. At this stage, it may also be noticed that when the parties filed the earlier suit being Suit No. 595/2000 titled as Brij Kishan and Ors. v. G.M. Bali, in the entire plaint there was no reference to the story put forward by the defendants in their written statement. That plaint was signed by all the for owners. Even in the order passed by the court, Ex.P.W.1/18, there is no reference to performance of any obligations by the present plaintiff in regard to payment of the alleged balance sale consideration. In fact, the stand taken by the defendants in their written statement is entirely demolished by the eviction petition which was filed by Ram Kishan and Virender Kumar and has been exhibited on record as Ex.P.W.1/13, where it has been recorded as under:-

"The said property bearing No. A-455, defense Colony, New Delhi comprises of 2 bed rooms, one drawing/dining room besides kitchen, bath and latrine and is a single storeyed house and the petitioner is in occupation of only one room in the said house where he is passing the days of his life with great difficulty along with his family members and has got no legal right to stay in the said house. The above said owners of House No. A-455, defense Colony, New Delhi are pressing hard to the petitioner No. 1 tvacate the accommodation in the occupation of the petitioner in this house No. A-455, defense Colony, New Delhi. The petitioner is in occupation of only one room in this house and the other rooms are in the occupation of thhe owners of this said proper. The family members of the petitioner comprises of himself, his wife, his daughter Miss Meenakshi Gupta aged about 23 years and another daughter Miss Anshu Gupta aged about 20 years and another daughter Miss Reetu Gupta aged about 16 years and son Master Vikram Gupta aged about 14 years and one servant and all the children of the petitioner No. 1 are studying and are dependent on the petitioner No. 1 for the purpose of residence and they have no accommodation with them for even their studies. The petitioner No. 1 is a man of status and is an income-tax payee. The petitioner no. 1 has got no other property of his own anywhere excepting this property No. A-439, defense Colony, New Delhi which is owned by both the petitioners jointly."

7. The above evidence is a clear admission on the part of the two defendants and the stand taken by them in paragraph 3 to 5 of the written statement (reply on merits) stands falsified. The plaintiff by the unchallenged evidence on record has been able to establish the fact that he is a joint owner of the property to the extent of 1/4th and had paid his part of the total sale consideration of Rs. 8 lacs and was not liable to pay any additional sum demanded by the defendants. The case of the plaintiff is supported by oral and documentary evidence, while the counter claim of the defendants was already dismissed in default and they have led no documentary or oral evidence to substantiate their pleas. The defendants were proceeded ex parte and obviously they have failed to discharge the onus of the issues placed upon them. The issues number 1, 2, 3, 6 and 7, the onus of which is on the defendants are therefore, decided against the defendants, while the issues no. 4 and 5, the onus of which was on the plaintiff are decided in favor of the plaintiff and against the defendants.

8. In view of the above discussion, I pass a preliminary decree holding and declaring that the plaintiff and defendants own the property no. A-455, defense Colony, New Delhi-110024, in equal shares of 1/4th and would be entitled to partition of the said property in accordance with law.

9. The plaintiff is at liberty to take steps in accordance with law after passing of the preliminary decree as afore-noticed.