Shri Shyam Lal vs Shri Khushal Chand Ahuja And ...
2009 Latest Caselaw 2922 Del

R-7
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                           DECIDED ON: 30.07.2009

+                         CS (OS) 2078/1995


      SHRI SHYAM LAL                                ..... Plaintiff
                   Through: Mr. Akshay Makhija, for
                   Mr. Sanjiv Bahl, Advocate.

                    versus

      SHRI KHUSHAL CHAND AHUJA
      AND OTHERS                                 ..... Defendants
                   Through: Mr. Sanjeet Singh, Advocate.



      CORAM:
      HON'BLE MR. JUSTICE S. RAVINDRA BHAT

1.

Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to Reporter or not?

3. Whether the judgment should be reported in the Digest?

S.RAVINDRA BHAT, J. (OPEN COURT)

% The plaintiff sues the defendants for partition claiming 1/3rd share in

the property bearing No.3/55, Old Rajinder Nagar, New Delhi (hereafter

referred to as suit property).

2. The facts emerging from the pleadings are that the plaintiff and

the father of defendant Nos.1-8 Late Govind Ram Ahuja, who died in

August, 1989 and Triloki Nath Ahuja, the ninth defendant were the

CS (OS) 2078/1995 Page 1 three sons of Late Murlidhar Ahuja. The plaintiff claims 1/3rd share in

the suit property as a joint undivided owner. According to him,

Murlidhar Ahuja expired on 22.2.1949 and was survived by the

present parties to the proceedings. It is stated that the said property

was allotted to Late Murlidhar Ahuja in the wake of the country's

partition after he migrated to India.

3. The plaintiff has, in support of his submissions, alluded to a

conveyance deed executed by the President of India conferring lease

hold rights in respect of the suit property on 21.11.1961. The same

are marked as PW-1/1 and PW-1/2.

4. The plaintiff also relies upon a certified copies of order dated

19.10.1962 by the Assistant Settlement Officer mutating the property

in his favour jointly with his brothers.

5. The common defence made out in the written statement of

defendant Nos.1-8 (who have contested these proceedings) is that the

parties had conveniently partitioned the property soon after the death

of Murlidhar Ahuja, in 1949. They rely upon the circumstance that

the three sons of Late Murlidhar Ahuja are in occupation of distinct

portions of the property. It is also alleged that one of the sons,

defendant No.9 is a tehbazari holder and carries on his trade from a

portion earmarked for this purpose.

6. It is also alleged that the ninth defendant has constructed upon

a portion of the property without any hindrance or objection by the

CS (OS) 2078/1995 Page 2 plaintiff and the other co-owners/defendant No.1-8. On the basis of

the pleadings and the materials on record, this Court had framed the

following issues on 17.08.2001

1. Whether the Suit filed by the plaintiff is time barred?

2. Whether the Suit has been properly valued for the purposes of

court fee and jurisdiction? OPP

3. Whether the suit property has already been partitioned as

alleged in para 3 of the written statement? OPD

4. If issue No.3 is not proved, whether the plaintiff is entitled to

the partition of the suit property and what are the shares of the

parties in the suit property? OPP

5. Relief.

Issue No.-1-

7. The common written statement filed in this case does not object

the Suit on the ground of limitation. Besides it is a settled law that

there is no period of limitation prescribed in the case of Suit for

partition. In the circumstances, issue is answered in favour of the

plaintiff and against the defendants.

Issue No.-2-

8. No arguments were made on this issue on behalf of the

defendant; in any event, in the event of the plaintiff succeeding in the

CS (OS) 2078/1995 Page 3 claim, at the stage of final decree, the shares would have to be

appropriately valued and Court fee paid. This issue is accordingly

answered.

9. These issues go to the root of dispute between the parties. The

plaintiff asserts that the property is owned jointly and that all parties

(i.e. the plaintiff, defendant Nos.1-8 being the heirs of Govind Ram

Ahuja) and Triloki Nath Ahuja are entitled to 1/3 share each as the

heirs of the original allottee i.e. Murlidhar Ahuja. The contesting

defendants, on the other hand, submits that partition has effectively

taken place sometime in 1949 around the time of the death of

Murlidhar Ahuja. Concededly, there is no documentary evidence in

support of the defendants' arguments about partition having agreed in

1949. Defendants examined DW-1, i.e., Om Prakash Ahuja, who is

also the second defendant in the Suit and one of the heirs of Govind

Ram Ahuja and DW-2 Raj Kumar Ahuja, the son of ninth defendant.

They deposed more or less in the same way. In the cross-examination,

DW-1 admitted that he was born in 1953 after the death of Murlidhar

Ahuja and that the partition settlement never took place in his

presence. He also conceded that no documents had been executed,

partitioning the property, and Govind Ram Ahuja did not write any

letter or communicate to any authority about the partition. He states

that L&DO prepared joint lease deed in 1966 in the names of three

CS (OS) 2078/1995 Page 4 sons of Murlidhar Ahuja i.e. his father Govind Ram Ahuja, plaintiff and

the defendant No.9.

10. The defendants rely upon what are termed as admissions by the

plaintiff in the course of his cross-examination. In the plaintiff's

cross-examination, the defendants were able to elicit the existence of

three kitchens in the premises and also a statement about some

mutual understanding between all legal heirs of Late Murlidhar

Ahuha that one room and kitchen were to be occupied by each legal

heir. The witness i.e. plaintiff also stated that he did not contribute

any money towards the alteration or renovation made by DW-2, son of

defendant No.9 in his portion that formed a part of the property. It

was submitted that on the strength of these, the plaintiff has

unambiguously admitted to the parties and that he never objected to a

construction of a distinct portion by the ninth defendant.

11. Learned counsel Mr. Sanjeet Singh persuasively submitted that

the above circumstances bear out the defendants' arguments that

there was a partition to the mutual satisfaction of all parties sometime

1949, which is evidenced by the by their conduct; he further

emphasized on the statement of the plaintiff that all co-sharers of Late

Murlidhar had been occupying the property according to their mutual

understanding.

12. The above discussion shows that the defendants dispute the

plaintiff's claim for partition on the ground that the Suit property had

CS (OS) 2078/1995 Page 5 been partitioned in 1949 itself. The defendants concededly were

unable to produce any evidence in support of this plea. It is

undisputed position that in 1966, the lease deed was prepared in the

names of the plaintiff and his brother i.e. the father of defendant

Nos.1-8 and the 9th defendant. No doubt, the plaintiff has deposed

about existence of some mutual understanding with regard to the

occupancy of the property by the three co-sharers. The defendants

have also been able to secure a concession that there were three

kitchens in the premises.

13. It is a matter of record that construction on one portion of the

property was carried out by ninth defendant. The defendants contend

that there is no need for a written document to evidence the partition

deed. It is also urged that partition can be inferred through conduct.

There may not be any dispute on these propositions. The law is

settled to this extent that oral partition may be evidenced by

memorandum drawn later and even documents which purport to be

something else can be treated as settlement. The question, however,

is whether in the facts of this case, the defendant has been able to

successfully establish a partition in 1949 was as to non-suit the

plaintiff claim

14. The Suit property is a plot allotted to Late Govind Ram Ahuja in

the year 1949. The DW-1/1 mentions a dimension of the land as 85.9

Sq. Yds. It is a common case of the parties that the land is

CS (OS) 2078/1995 Page 6 constructed only to the extent of a ground floor. Apparently, the

parties have been living together for the last 60 years or so in distinct

portions. In such circumstances, where the original allottee - owner

dies and is survived by heirs which has substantial family, some kind

of understanding is inevitable and perhaps necessary. Failing such

living on a day-to-day basis could be a nightmare. The evidence

brought on the record discloses that the parties entered into a lease

deed with the President of India in 1966; all the proposed heirs (i.e.

the heirs of Late Murlidhar Ahuja) were shown as co-owners. This

clearly establishes that each one of them had undivided 1/3rd share to

the property.

15. The admissions or statements elicited from the plaintiff, which

are highlighted by learned counsel during the course of the

submissions, in the opinion of the court, cannot be so construed - (in

the circumstances of this case) as to inevitably lead to an inference of

partition for more than one reason. The precise time when such

partition took place is unknown. The plaintiff stated in the course of

his deposition that he was married in 1959. If such were the position,

it is unclear whether the three distinct kitchens, separate portion was

earmarked then or at a later date. Similarly, the fact that the parties

concerned occupied different portions without any clearly demarcated

entitlement by itself would not lead to the inference that they wish the

partition in the manner as existing. This aspect is important, because

CS (OS) 2078/1995 Page 7 the existing arrangement does not determine the shares in the

property, nor they indicated which is the only basis for future

development or construction - on the suit property. There can be no

dispute about the fact that all the legal heirs of late Murlidhar Ahuja

are equally entitled to the shares in the land. In view of this

discussion, these two issues are held in favour of the plaintiff and

against the defendants.

Issue No.- 5 -

16. In view of the findings in Issue No.3&4, it is held that the

plaintiff is entitled to 1/3rd share in the Suit property; the other 1/3rd

shares each would fall to defendant Nos.1-8 on the one hand and

defendant No.9 on the other.

17. During the course of submissions, the counsel for the defendant

has stated that yet another attempt could be made to try and resolve

their disputes through mediation. Since the Court has now rendered

its findings as to the entitlement of the respective parties to the share

in the partition, they are first directed to approach the Delhi High

Court Mediation and Conciliation Centre, for working out the

modalities for partition by meets and bounds or by any other

appropriate method.

18. List on 17th August, 2009 before the Delhi High Court Mediation

and Conciliation Centre. Parties or their representatives shall be

present before the Delhi High Court Mediation and Conciliation

CS (OS) 2078/1995 Page 8 Centre on 17th August, 2009.

19. List on 18th September, 2009 for further proceedings. In case

mediation efforts cannot succeed, the Court shall proceed by

appointing Local Commissioner for partition by meets and bounds.

20. For the above reasons, the Court is of the opinion that the

defence setup by the defendant that the Suit property was partitioned

in 1949 cannot be countenanced. The plaintiff has, therefore,

established his entitlement to 1/3rd share in the property. Let

preliminary decree be drawn up in these terms.

                                                 S. RAVINDRA BHAT
                                                     (JUDGE)
 JULY 30, 2009
/vd/




CS (OS) 2078/1995                                               Page 9