Om Prakash & Ors vs Jai Singh & Ors
2011 Latest Caselaw 2583 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 13.05.2011

+           CS(OS) No. 1423/2010

OM PRAKASH & ORS                                 .....Plaintiff

                            - versus -

JAI SINGH & ORS                                  .....Defendant

Advocates who appeared in this case:
For the Plaintiff:      Mr Bhuvan Gugnani, Adv.
For the Defendant:      None.

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

1. Whether 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 Digest?

V.K. JAIN, J. (ORAL)

1. This is a suit for partition of property comprised in

Khasra No. 798/505 min. situated in Abadi Deh, Municipal

No. 153-A, Shahpur Jat, New Delhi. Late Shri Risal Singh,

late Shri Chhatar Singh and late Shri Nyaddar Singh were

brothers, being sons of late Shri Surjan Singh. The case of

the plaintiff is that the suit land was jointly purchased by

late Shri Risal Singh, late Shri Chhatar Singh and late Shri

Nyaddar Singh. Late Shri Risal Singh was survived by three

sons Jai Singh (defendant No. 1), Sher Singh (defendant No.

2) and Inder Singh. Shri Inder Singh has died and is

survived by his widow Raj Bala, who is defendant No. 3 in

the suit and two sons Manish and Vikas who are defendant

No. 4 and 5 respectively in the suit. Late Shri Nyaddar

Singh was survived by five sons, namely, plaintiff No. 1 Om

Prakash, plaintiff No. 2 Kuldeep Singh, plaintiff No. 3

Braham Prakash, plaintiff No. 4 Surinder Singh and late

Shri Ved Prakash and two daughters, plaintiff No. 1

Satyawati and plaintiff No. 10 Lajwanti. Late Shri Ved

Prakash was survived by his widow Chandrakala (plaintiff

No. 8), son Lalit Kumar (plaintiff No. 5) and two daughters

respectively.

2. The case of the plaintiff is that though initially late

Shri Risal Singh, late Shri Chhattar Singh and late Shri

Nyaddar Singh owned equal shares in the suit land in an

oral family settlement amongst them in the year 1960, late

Shri Chhattar Singh was given property No. 348, measuring

200 sq. yards and his share to the suit land came to late

Shri Risasl Singh. Thus, late Shri Risal Singh became the

owner of 2/3rd share, whereas late Shri Nyaddar Singh

became the owner of 1/3rd share in the suit land.

3. It is also alleged in the plaint that since some

disputes arose amongst the sons of late Shri Risal Singh, a

suit for permanent injunction bearing No.470/1991 was

filed by defendant No. 1 Jai Singh against defendant No. 2

Sher Singh and late Shri Risal Singh. During the pendency

of the suit, late Shri Risal Singh died and therefore all his

legal heirs were impleaded as parties to the suit. A

Memorandum of Settlement dated 08th September, 1993

was entered into between the parties to the suit which

included all the surviving legal heirs of late Shri Risal Singh.

In the MoU, it was, inter alia, agreed that 2/3 rd share of late

Shri Risal Singh in the suit land shall devolve on defendant

No. 1 Jai Singh, defendant No. 2 Sher Singh and late Shri

Inder Singh, all sons of late Shri Risal Singh, in the ratio of

1/3rd each.

4. The plaintiffs are now seeking partition of the

aforesaid land and have also claimed that the suit property

is in the joint possession of the parties.

5. Defendant No.1 Jai Singh, filed an affidavit

admitting the averments made in the plaint and stated that

he has no objection if the suit for partition is allowed.

Defendant Nos. 2 to 5 were proceeded ex parte on vide order

dated 21st April, 2010.

6. Plaintiff No. 1 Om Prakash, plaintiff No. 2 Kuldeep

Singh, plaintiff No.3 Braham Prakash, plaintiff No. 4

Surinder Singh, plaintiff No. 5 Lalit Kumar, plaintiff No. 6

Deepti, plaintiff No. 7 Rekha, plaintiff No. 8 Chandrakala,

plaintiff No. 9 Satyawati and plaintiff No. 10 Lajwanti have

filed affidavits, stating on oath the averments made in the

plaint. All of them have stated that the suit land

admeasuring 17 Biswa, comprised in Khasra No. 798/508

min, situated in Abadi Deh, Municipal No. 153-A, Shahpur

Jat, New Delhi was purchased by late Shri Risal Singh, late

Shri Chhatar Singh and late Shri Nayaddar Singh with

equal shares and in an oral family settlement in the year

1960, late Shri Chhatar Singh had agreed to take property

No. 348, Shahpur Jat, New Delhi which was owned by late

Shri Risal Singh and give his share in the suit land to Shri

Risal Singh. They have also stated that that the aforesaid

family settlement was acted upon and possession of the

share of late Shri Chhatar Singh in the suit land went to

late Shri Risal Singh, whereas the share of late Shri Risal

Singh in property bearing No. 348 was given to late Shri

Chhatar Singh. They have also stated that all the parties are

now in joint possession of the property which comprises an

open area and four rooms.

7. Ex.PW-1/6 is the copy of Khasra Girdawari of the

year 1995-99 which shows that land comprised in 798/505

min., measuring 0-15 acre was entered in the name of Shri

Risal Singh, Shri Chhatar Singh and Shri Nyaddar Singh in

the revenue record. Ex.PW-1/84 is the Memorandum of

Family Settlement recorded on 08th September, 1993

between Shri Jai Singh, Shri Sher Singh, Shri Inder Singh,

Smt. Barfo Devi, W/o Shri Attar Singh, Smt. Kailash Wati,

W/o C.S. Verma, Smt. Ramo Devi, W/o Shri Abhey Ram,

Smt. Saravati Devi, W/o late Shri Risal Singh. A perusal of

this document would show that the parties to the family

settlement had agreed that only the sons of Shri Risal Singh

would inherit his estate and Smt. Barfo Devi, Smt. Kailash

Wati, Smt. Ramo Devi and Smt. Saravati would not take

anything from that estate. It was further agreed that Shri

Jai Singh, Shri Sher Singh and Shri Inder Singh would have

1/3rd share each in 2/3rd share in the land measuring 800

sq. yards situated in Khasra No. 718/58, Shahpur Jat.

8. I see no reason to disbelieve the unrebutted

testimony of the plaintiffs when examined along with the

documents filed by them. The ownership of late Shri Risal

Singh, late Shri Chhatar Singh and late Shri Nyaddar Singh

is evident from the revenue record. In the oral family

settlement of the year 1960, the share of late Shri Chhatar

Singh came to late Shri Risal Singh, thereby making him

owner of 2/3rd share in the suit land, whereas the

remaining 1/3rd share remained with late Shri Nyaddar

Singh. In view of the MoU dated 08th September, 1993,

defendant No. 1 Jai Singh and defendant No. 2, Sher Singh

are entitled to 1/3rd of the share of late Shri Risal Singh in

the suit land, whereas defendant No. 3 Raj Bala, defendant

No. 4 Manish and defendant No. 5 Vikas are collectively

entitled to the remaining share of late Shri Risal Singh in

this land. Plaintiff No. 1 Om Prakash, plaintiff No. 2 Kuldeep

Singh, plaintiff No. 3 Braham Prakash, plaintiff No. 4

Surinder Singh, plaintiff No. 9 Satyawati and plaintiff No.10

Lajwanti are entitled to 1/7th share each of the share which

was owned by late Shri Nyaddar Singh in the suit land.

Plaintiff No. 8 Chandrakala, plaintiff No. 5 Lalit Kumar,

plaintiff No. 7 Rekha and plaintiff No. 6 Deepti are

collectively entitled to 1/7th of the share of late Shri Nyaddar

Singh in the suit land. Therefore, the share of the parties to

the suit in the land subject matter of this suit comes as

under:-

Defendant No. 1               Jai Singh                    2/9

Defendant No. 2               Sher Singh                   2/9

Defendant No. 3               Raj Bala                    2/27

Defendant No. 4               Manish                     2/27

Defendant No. 5               Vikas                      2/27

Plaintiff No. 1               Om Prakash                 1/21

Plaintiff No. 2               Kuldeep Singh             1/21

Plaintiff No. 3               Braham Prakash               1/21

Plaintiff No. 4               Surinder Singh               1/21

Plaintiff No. 9               Satyawati                    1/21

Plaintiff No. 10              Lajwanti                     1/21

Plaintiff No. 8               Chandrakala                  1/84

Plaintiff No. 5               Lalit Kumar                  1/84

Plaintiff No. 7               Rekha                        1/84

Plaintiff No. 6               Deepti                       1/84

9. A preliminary decree of partition is hereby passed,

declaring the parties to the suit to be the owner of the suit

land in the aforesaid ratio. Shri K.K. Nagia, Joint Registrar

of this Court is appointed as Local Commissioner to suggest

the mode of partition of the suit land by metes and bounds.

The fee of the Local Commissioner is fixed at Rs 20,000/-

which shall be paid by the plaintiff, but will be borne by the

parties to the suit in the ration of their share in the suit

land.

Decree sheet be drawn accordingly.

(V.K. JAIN) JUDGE

MAY 13, 2011 BG