Smt. Shakuntala Devi & Ors. vs Shri Shiv Om Vats
2010 Latest Caselaw 5868 Del

 *           IN THE HIGH COURT OF DELHI AT NEW DELHI
 +                         RFA No. 318/1996
 %                                                    23rd December, 2010


 SMT. SHAKUNTALA DEVI & ORS.                                ...... Appellants
                                         Through:     Mr. Sanjeev Anand,
                                                      Advocate with Mr.
                                                      Dibya Nirhant,
                                                      Advocate and Mr.
                                                      Vipin Kumar Singh,
                                                      Advocate.
                           VERSUS

 SHRI SHIV OM VATS                                         .... Respondent

                                         Through:     Mr.    T.C.    Sharma,
                                                      Advocate     and   Mr.
                                                      Sachin Vats, Advocate.
 CORAM:
 HON'BLE MR. JUSTICE VALMIKI J.MEHTA

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

2. To be referred to the Reporter or not?

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

VALMIKI J. MEHTA, J (ORAL)

1. The challenge by means of the present appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC), is to the

impugned judgment and decree dated 15.2.1996 of the trial Court

whereby the suit filed for partition and injunction by the

respondent/plaintiff has been decreed. The trial Court has granted the

relief of partition and appointed a Local Commissioner to suggest the

RFA No. 318/1996 Page 1 mode of partition.

2. The facts of the case are that the subject property WZ-188,

Village Palam, New Delhi admeasuring 77 sq. yds. was originally owned

by late Sh. Chaturbhuj. Late Sh. Chaturbhuj executed his last will

dated 3.1.1973 and which was registered on 4.1.1973. As per this will,

the property was to devolve in two parts to the two sons of late Sh.

Chaturbhuj, namely, late Sh. Hari Om, who is the deceased husband of

the defendant No.1/appellant No.1 and the respondent/plaintiff Sh.

Shiv Om Vats. The front portion of the property was to fall in the share

of the respondent/plaintiff and the back portion was to fall in the share

of late Sh. Hari Om. On denial by the appellants to give the

respondent his rightful half share of the property the subject suit was

filed by the respondent/plaintiff seeking the relief of partition and

permanent injunction. After pleadings were complete, trial Court

framed the following issues:-

"1. Whether the plaintiff has locus standi to file the present suit? OPD

2. Whether the defendant has purchased the suit property for Rs.30,000/- as alleged? OPD

3. Whether the plaintiff is not in physical possession of the suit property, if so its effect? OPD

4. Whether the suit property is not capable of partition? OPD

5. Whether the suit is not properly valued for court fees and jurisdiction? OPD

6. Whether the plaintiff is entitled to the relief of injunction and partition as prayed?

7. Relief."

RFA No. 318/1996 Page 2

3. It is a common case of the parties that the property

originally belonged to Sh. Chaturbhuj who is the predecessor in

interest. The fact that late Sh. Chaturbhuj died leaving behind a will

dated 3.1.1973 is also not disputed, meaning thereby, the fact that the

front portion of the suit property fell to the share of the

respondent/plaintiff and the back portion of the property fell to the

share of late Sh. Hari Om is not disputed. The basic stand of the

appellants/defendants was that the share of the respondent/plaintiff

was purchased for a sum of Rs.30,000/-. While dealing with this issue,

the trial Court, for not accepting the alleged transaction of sale by the

respondent/plaintiff and purchase by the appellants/defendants has

given its reasons, conclusions and findings in para 10. This para 10

reads as under:-

"10. The counsel for the defendant contended that the share of the plaintiff was purchased and same was not reduced in writing because of family relations. I do not agree with the contentions of the counsel for the plaintiff, for the following reasons.

A) If the share of the plaintiff was purchased by late Hari Om in front of late Chaturbhuj then why this change was not effected in the will executed prior to the death of late Hari Om. Not only this, but the defendant have also never challenged the said WILL. The most important factor in this case is that late Chaturbhuj was having five legal heirs that is three sons and two daughters, but by way of said WILL, the plot in question was given only to two and that is why the other two legal heirs do not find place in the array of parties.

This fact has not find place in the array of parties. This fact has not been satisfactorily explained by the defendants in the pleadings and evidence not at the time of arguments. The

RFA No. 318/1996 Page 3 WILL of late Chaturbhuj has been accepted by the defendants in toto by said WILL, the other two legal heirs have been deprived of their right in the property in question. The defendant owe serious explanation on that account but nothing is put forth.

B) The defendants have not disclosed the mode of payment and the source of getting this huge amount of Rs.30,000/- at the alleged time. Admittedly, late Hari Om was a driver in DTC and having a salary of Rs.300/- to Rs.400/- p.m. No other sources of income is alleged.

C) The only supporting evidence is the statement of DW-2 and his statement is also not trust worthy and cannot be relied upon for deciding this issue because DW-2 claims himself to be a very close to the family of late Chaturbhuj but even does not know the name of the family members and no further details except the details of the property in question. Moreso, DW-2 is not even aware about the date of death of the father and the person on whose instance he claims to be a witness. The alleged consideration of Rs.30,000/- for a vacant plot of 38 sq. yds which comes to Rs.790/- per sq. yds. and the same appears to be highly exaggerated and unbelievable. The Hon'ble Delhi High Court in case reported in 57 (1995) DLT-410 (DB) has assessed the value of the land of Palam Village as on 27.1.1984 at the rate of Rs.47.22 per sq. yd. Admittedly, the rate of land before 1970 and in the early 1970's was not high. The rate of land in Lal Dora and outside do not very much.

D) DW-1 was examined on 18.1.94. In her cross- examination, she has admitted that the market value of the whole plot is Rs. 60,000/-. I could not understand how the same price can be in the year 1972 or before.

E) WILL is accepted by the defendants which is the last testamentary disposition of the property of late Chaturbhuj and same was executed during the life time of Hari Om. The defendants have accepted the said WILL and same was never challenged. Therefore, the admission of DW-1 cannot be disbelieved by oral statement of DW-1.

F) No date of transaction of sale is given by the defendants neither in the pleadings nor in the evidence.

RFA No. 318/1996                                                   Page 4
       G)    Ex.PW1/1 is the site plan duly proved by the plaintiff.

The total plot is of 77 sq. yds. In Ex.PW1/1, two up-stairs are shown one is in the front portion and second is in the rear portion. No explanation has been put forth by the defendants neither in the pleadings nor in the evidence of arguments.

H) In para 6 of the plaint, the plaintiff has submitted that he was in possession of the aforesaid property alongwith the father and the defendants. After the death of Hari Om, the defendants have been in possession in their share as joint owners. This fact has not been denied by the defendants in the written statement. On the other hand, this fact has been further admitted by DW-1 in her statement.

I) The defendants have not disclosed in the written statement or at the earliest possible opportunity the names of the independent witnesses to the alleged sale transaction.

J) The defendants have not filed any documentary evidence to substantiate their case and the alleged sale transaction."

4. Clearly, therefore, the respondent/plaintiff was half owner

of the property and he is entitled to physical partition of the same by

separating his portion and giving to him his portion in the suit for

partition. Partition is an act of physical division of the property. By

partition, a particular share is given out to the person who is entitled to

the said share. The concept of partition is not limited to division of a

common property. Partition is a very wide concept and seeking actual

physical division and taking possession of a share is included in a

partition.

5. The aforesaid reasons given by the trial Court in para 10 of

the impugned judgment and decree are clearly unexceptionable.

RFA No. 318/1996 Page 5 Surely, there could not have been in the facts of the present case any

transaction of sale by the respondent/plaintiff of his share for

Rs.30,000/- to the appellants/defendants, and as was claimed by the

latter.

6. Before this Court, the learned counsel for the appellants

has very strenuously argued that the suit for partition was not

maintainable because by the will, defined portions being the front

portion and the back portion specifically devolved to the two sons and

therefore the suit for partition was not maintainable and has also relied

upon Harinder Pal Chawla Vs. Nirmal Dariere & Ors. 51 (1993)

DLT 191. I am unable to accede to this argument because firstly there

is no such pleading in the written statement. Not only there is no such

pleading in the written statement of the suit not being maintainable,

no issue was also therefore framed on this basis. Not only no issue

was not framed on this basis, this case has not even so been so argued

on this point in the trial Court because the judgment of the trial Court

does not reflect this position and the counsel for the appellant agrees

that this issue was not argued before the Court below. In my opinion,

therefore, since there was no pleading, written statement, no issue and

no argument before the trial Court, it cannot therefore be said that the

judgment of the trial Court can be faulted with. A totally new case

cannot be brought up in an appeal by claiming that the same is a legal

RFA No. 318/1996 Page 6 issue. This is not a legal issue because if the appellants/defendants

would have set up this case in their written statement, the plaintiff

would have had adequate opportunity to meet this case by appropriate

basis/stand/pleadings as per law. In any case, seeking a physical

partition is also a claim for partition because as per the defendants and

the factual position is that the entire property is in the physical

possession of the appellants/defendants and I have already dwelt on

this aspect in para 4 above. The plaintiff in the plaint, when it refers to

possession being with him, the same can be taken also to mean a legal

possession because an undivided property is always held for and on

behalf of other owners also even if there are theoretically (though not

actually by physical division) defined portions in the property. Unless

and until there is proved and shown ouster and which would have to be

the case in the pleadings and on which an issue had also to be framed

and which the respondent/plaintiff would have had an opportunity to

meet the same, all these aspects cannot be urged for the first time in

an appeal.

7. Accordingly, neither in law it is permissible to raise this

plea of the suit not being maintainable for the first time in the appeal,

even on facts and law this plea is incorrect because physical partition

of the property has to take place to give the respondent/plaintiff his

share in the property. The suit for partition was therefore in any case

RFA No. 318/1996 Page 7 maintainable and the judgment of Harinder Pal Chawla (supra)

is therefore not applicable to the present case.

8. In view of the above, neither in law nor in equity, the well

reasoned judgment of the trial Court needs to be interfered with. In

fact, in the opinion of this Court, the present litigation which is forced

upon the respondent is a case of clear cut unjust stand of the

appellants/defendants and the respondent/plaintiff has been put to

litigation right from the year 1992 i.e. for more than 18 years. During

the course of arguments, I put it to the counsel for the appellants as to

whether his client would be interested in settling the matter and after

taking appropriate time, hand over the possession to the

respondent/plaintiff of his share in the property. The learned counsel

for the appellant after instructions from the appellant No.2/defendant

No.2 said that they are not agreeable. This attitude of the appellants

in therefore unfairly pursuing the litigation and putting the

respondent/plaintiff to costs should be appropriately burdened with

actual costs. It has been held by the Supreme Court in the judgment

of Salem Advocate Bar Association Vs. Union of India

(2005)6SCC 344 that it is high time that actual costs should be

awarded. In view of what I have narrated above, the present is a fit

case where actual costs ought to be imposed, and hence I impose

costs of Rs.50,000/- in the interest of justice.

RFA No. 318/1996 Page 8

9. Accordingly, the appeal is dismissed with costs of

Rs.50,000/- which shall be payable by the appellants to the respondent

within a period of two weeks from today.

The appeal is therefore disposed of as dismissed. Trial

Court record be sent back.

Interim orders stand vacated.

DECEMBER 23, 2010                                  VALMIKI J. MEHTA,J
Ne




RFA No. 318/1996                                                      Page 9