Shri Shambhu Dayal vs Shri Maan Singh & Others
2009 Latest Caselaw 638 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.1079/1998

%                       Date of Decision: 25.02.2009

Shri Shambhu Dayal                                       .... Plaintiff
                       Through Mr.Dinesh K. Bhardwaj, Advocate.

                                  Versus

Shri Maan Singh & Others                                    .... Defendants
                    Through Nemo.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR

1.    Whether reporters of Local papers may be                  YES
      allowed to see the judgment?
2.    To be referred to the reporter or not?                    NO
3.    Whether the judgment should be reported in                NO
      the Digest?


ANIL KUMAR, J.

*

1. This suit for partition and permanent injunction has been filed by

the plaintiff against his brothers and sisters in respect of the property of

his father being House No.16/628-E, situated at Tank Road, Bapa

Nagar, Karol Bagh, New Delhi-110005 constructed on a plot of about

100 sq.yards.

2. The plaintiff has contended that Shri Umrao Singh was the owner

of the suit property and he died on 30th January, 1982 leaving behind

plaintiff and defendants No.1 to 8 as his legal representatives.

Defendants No.1 to 6 are the brothers of plaintiff and defendants No.7

and 8 are the married sisters. According to the plaintiff, he is residing

in the suit property along with other defendants. The plaintiff has

asserted that the mother of the plaintiff and defendants had pre-

deceased their father Shri Umrao Singh who had died on 30th January,

1982.

3. The defendants No.7 and 8 are stated to be residing separately

with their husbands in their matrimonial homes. The plaintiff has also

contended that he is in possession of one room in the property in

dispute which was locked by him after he moved to House No.F-1/431,

Sultanpuri, Delhi, which plot was allotted in the name of his wife and

on which a house was constructed by the plaintiff.

4. Since the rights in the property being House No.16/628-E,

situated at Tank Road, Bapa Nagar, Karol Bagh, New Delhi-110005 had

devolved upon plaintiff and defendants No.1 to 8, the plaintiff sought

partition of the said property. However, according to the assertions of

the plaintiff the defendants have refused to partition the property and

has rather threatened the plaintiff that they will sell the property and

buy a new house out of the sale consideration of the property.

Defendants No.4, 5 and 6 are also alleged to have inducted tenants in

the property whose partition is sought by the plaintiff.

5. In the circumstances, plaintiff has filed the present suit seeking

partition of the suit property being House No.16/628-E, situated at

Tank Road, Bapa Nagar, Karol Bagh, New Delhi-110005 measuring

about 100 sq.yards and a decree of permanent injunction seeking

restraint against the defendants and any other person acting through

defendants from selling, alienating, or disposing of the suit property.

6. The defendants were served with summons of the suit and the

written statement has been filed only by defendants No.1 and 4.

Defendant No.1 in his written statement dated 27th January, 1999 has

admitted that the property has devolved upon plaintiff and defendants

No.1 to 8 from their father, late Shri Umrao Singh. However, it is

contended that the plaintiff never sought partition of the suit property.

The defendant No.1, however, admitted that some tenants have been

inducted in the portion of the suit property and rent from these tenants

were charged by defendants No.4, 5 and 6 and the rent is not shared

with defendant No.1 and the plaintiff.

7. The claim of the plaintiff for partition and for permanent

injunction is challenged by defendant No.4 who filed the written

statement on 25th January, 1999 contending inter alia that the plaintiff

is not in physical possession of the suit property or any part thereof. It

has been alleged by the defendant No.4 that the plaintiff had left the

house in the year 1970 during the lifetime of the parties‟ father and has

never come back to the property in dispute. It is stated that the plaintiff

had received his share from the parties‟ father, Shri Umrao Singh, when

he left the house in 1970 and consequently plaintiff has no right, title or

interest in the property nor is he entitled to seek partition of the said

property.

8. The defendant No.4 has also asserted that property was

partitioned verbally and the defendant No.4 is the owner and in

physical possession of his share in the property as defendant No.4

constructed his share on the ground floor in 1987, first floor in 1990,

second floor in 1995 and 4th Floor in 1997 with his own funds without

any interruption from anyone. The property in the share of defendant

No.4 is stated to be constructed on a piece of land measuring 25

sq.yards and defendant No.4 is in possession of the property as has

been shown in the plan alleged to have been filed with the plaint. On

the basis of the pleadings and the documents of the parties, the court

had framed the following issues on 22nd February, 2005:-

"1. Whether there was an oral partition of the suit property in the year 1970 as alleged by defendant No.4 and the same fell to the share of defendants 3 to 6 to the exclusion of others. OPD

2. Whether the plaintiff is in physical possession of a portion of the suit property? If not, its effect. OPP

3. Whether the plaintiff is entitled to a decree of partition and permanent injunction as prayed for? OPP"

9. The defendant No.1 was proceeded ex parte on 16th April, 2004.

Defendants No.2, 3, 5 to 8 were proceeded ex parte on 27th January,

1999. The defendant No.4 was also proceeded ex parte on 26th

September, 2007.

10. After the issues were framed, the plaintiff had filed his deposition

on affidavit and none of the defendants cross-examined the plaintiff in

respect of his deposition filed on affidavit.

11. Issue No.2 is regarding physical possession of a portion of the

suit property by the plaintiff. The onus to prove this issue was on the

plaintiff. The plaintiff in his deposition dated 20th August, 2005 has

categorically deposed that he is in possession of one room which was

locked by him after his wife got a plot allotted in her name from Delhi

Development Authority measuring about 25 sq.yards which was later

on transferred by the wife of the plaintiff in the name of the plaintiff and

the plaintiff constructed a small house on the said plot of 25 sq.yards

bearing House No.F-1/431, Sultanpuri, Delhi. The plaintiff has proved

the site plan as Ex.PW1/1 and the room shown in possession of the

plaintiff is in yellow colour.

12. The plaintiff has categorically deposed that he even visits the

portion of the property in his possession from time to time and stay in

the room in the property in dispute whose partition has been sought by

the plaintiff. The plaintiff has also stated that whenever he is not

visiting his room in the property in dispute, the said room is locked by

him.

13. The deposition of the plaintiff in the affidavit dated 20th August,

2005 has not been challenged as the plaintiff has not been cross-

examined by any of the defendants. In the circumstances, the

deposition of the plaintiff that he is in possession of the one room which

is shown in yellow colour in Ex.PW1/1 remains unrebutted. The

deposition of the plaintiff that he visits property in dispute and stay in

the room and whenever he is not staying in the room he locks the said

room remains un-rebutted.

14. In the facts and circumstances, the inevitable inference on the

basis of the pleas and deposition of the plaintiff is that he is in

possession of one room shown in yellow colour in the plan Ex.PW1/1.

The issue is thus decided in favour of plaintiff holding that the plaintiff

is in physical possession of the portion of the suit property.

15. The onus of issue whether there had been an oral partition of the

suit property in the year 1970 was on defendant No.4. No evidence has

been led on behalf of defendant No.4 or any other defendants that there

had been an oral partition of the suit property in the year 1970.

16. The plaintiff has rather refuted the averment that the property

was orally partitioned in his deposition dated 20th August, 2005. The

deposition of the plaintiff that the property was not partitioned orally

has not been challenged as the plaintiff has not been cross examined.

Since the defendant No.4 has not led any evidence in support of his

plea about the oral partition of the suit property and the plaintiff has

denied that the property was orally partitioned which statement of the

plaintiff has remained unrebutted, the inevitable conclusion is that the

property in dispute was not orally partitioned in the year 1970, nor has

the suit property fallen to the share of defendants No.3 to 6 to the

exclusion of others. Consequently, issue is decided against the

defendants holding that the suit property was not orally partitioned in

1970 and that the suit property has not fallen in the exclusive share of

defendants No.3 5o 6 to the exclusion of plaintiff and other defendants.

The issue is decided accordingly.

17. The next issue is whether the plaintiff is entitled for a decree of

partition and permanent injunction. The plea of the plaintiff is that the

property was owned by Shri Umrao Singh who had died on 30th

January, 1982. The wife of late Shri Umrao Singh, mother of the

plaintiff and defendant had pre-deceased him. Consequently, on the

death of Shri Umrao Singh on 30th January, 1982, the rights in the

property devolved on all his children, plaintiff and defendants No.1 to 8,

in equal share. Consequently, the plaintiff and defendants No.1 to 8,

being nine legal representatives of deceased Shri Umrao Singh, will

inherit 1/9th share each in the said house.

18. The deposition of the plaintiff to this effect has remained un-

rebutted and unchallenged. In the facts and circumstances, the

inevitable conclusion is that the plaintiff is the owner of 1/9th undivided

share in the property being House No.16/628-E, situated at Tank Road,

Bapa Nagar, Karol Bagh, New Delhi-110005 and defendants No.1 to 8

are also co-owners of 1/9th undivided share each in the suit property.

19. Since the plaintiff and defendants No.1 to 8 are the co-owners of

1/9th share each in the property being House No.16/628-E, situated at

Tank Road, Bapa Nagar, Karol Bagh, New Delhi-110005, therefore,

none of the parties have any right to dispose of their share or to part

with the possession of any portion of the property to a third party

during the pendency of the present suit. Learned counsel for the

plaintiff has also relied on Section 22 of Hindu Succession Act

contemplating that since the father of the plaintiff Shri Umrao Singh

had died on 30th January, 1982 intestate leaving behind plaintiff and

defendants No.1 to 8 as his legal representatives, none of the legal

representatives/heirs can sell his or her share without offering it for

sale to the plaintiff. The plaintiff had been granted interim order of

injunction against the transfer of rights in the property till the disposal

of the suit.

20. In the circumstances the issue is thus decided in favour of

plaintiff holding that the plaintiff is the owner of 1/9th share in the

property being House No.16/628-E, situated at Tank Road, Bapa

Nagar, Karol Bagh, New Delhi-110005 and defendants No.1 to 8 are

also co-owners of 1/9th share each in the property.

21. Therefore, a preliminary decree of partition is passed in favour of

plaintiff holding that the plaintiff is owner of 1/9th undivided share of

property being House No.16/628-E, situated at Tank Road, Bapa

Nagar, Karol Bagh, New Delhi-110005 and the property of deceased

Shri Umrao Singh is liable to be partitioned.

22. Consequently, in the facts and circumstances, Mr. Bhagwat

Saxena Advocate, 348 Lawyer‟s Chambers, Civil Side, Tis Hazari Courts,

Delhi (Phone no.9811373684) is appointed as a Local Commissioner to

suggest the mode of partition of the property being House No.16/628-E,

situated at Tank Road, Bapa Nagar, Karol Bagh, New Delhi-110005 by

metes and bounds. The fees of the Local Commissioner shall be

Rs.10,000/-, in the first instances, which shall be payable by the

plaintiff. Parties are directed to appear before the Local Commissioner

on March 27th, 2009 at 5.00 PM. The Commissioner shall submit his

report within three months. A copy of this order be sent to the Local

Commissioner and copy of the order be also given dasti to the counsel

for the plaintiff.

23. Since there is already an interim injunction order that the

defendants shall not part with the possession of the property and will

not create third party rights during the pendency of the suit, the relief

of perpetual injunction sought by the plaintiff shall be decided at the

time of passing of final decree.

24. In the circumstances, a preliminary decree of partition as stated

hereinabove is passed and the parties are left to bear their own costs.

25. List on July 10, 2009 for awaiting the report of the Local

Commissioner.

February 25, 2009                                       ANIL KUMAR, J.
„Dev‟