Mohan Singh (Died) Through His Lrs vs Mahendra Singh & Ors.
2013 Latest Caselaw 1245 Del

*      THE HIGH COURT OF DELHI AT NEW DELHI

+                  CS (OS) 1972/2003

                                           Date of Decision:13.03.2013

MOHAN SINGH (DIED) THROUGH HIS LRs
                                                     ......PLAINTIFF

                          Through:     Mr. Rahul Shukla and Ms.
                                       Bachita Baruah, Advocates.


                                Versus

MAHENDRA SINGH & ORS.
                                               ......DEFENDANTS
                          Through:     Mr. G.S. Shukla, Advocate for
                                       defendant Nos. 1,2 & 4.


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

M.L. MEHTA, J.

1. This is a suit for partition of properties and recovery of

possession of one room on the ground floor of premises bearing No. B-

389, Gali No. 4, Majlis Park, Delhi. The present suit was initially filed

by Mohan Singh against his brothers Mahendra Singh, Sujan Singh,

Arjun Singh and sister Shashi Bala (defendants No. 1 to 4

respectively). The defendant No. 2 Sujan Singh died during the

pendency of the suit and his wife Sarbansh Kaur was impleaded in his

place. The defendant Arjun Singh also died and was substituted by his

wife and sons. The case of the plaintiff was that three properties

bearing No. B-389, 290 A-Block and 291 A-Block, all in Majlis Park,

Delhi were owned and purchased by their father in the name of their

mother Motia Devi. Their mother Motia Devi died in the year 1982

leaving behind her husband, the plaintiff and the defendants as her

legal heirs. Their father also expired in the year 1985 and thus, after

his death, the plaintiff and the defendants became the co-owners of the

aforesaid properties. The case of the plaintiff was that his brother

Arjun Singh took his share and relinquished his rights in his favour

and that of the defendants No. 1 and 2. Likewise, his sister defendant

No. 4 gave oral consent and relinquished all her rights in his favour

and defendants No. 1 and 2. According to him, in this way, he

(plaintiff) and defendants No. 1 and 2 became the absolute owners of

the aforesaid properties. The defendant No. 2 Sujan Singh died leaving

behind his wife, sons and daughters as his legal heirs. It was his case

that he made three storyed building at his own costs on plot bearing

No. B-389 and by mutual consent, gave to defendants No. 1 and 2

second and first floors for their use and occupation while he retained

the possession of the ground floor. The terrace was for the common

use of all the three. It was averred that he allowed the defendant no. 1

to use one room on the ground floor for entertaining his guests

temporarily, but, he found defendant No. 1 having unauthorizedly

constructed some portion on the terrace floor when he was posted at

Calcutta. It was also alleged that the defendant No. 1 had refused to

vacate the ground floor room. It is in this background that he has

sought partition of the aforesaid suit properties claiming one-third

share for himself and one-third as that of the defendants No. 1 and 2.

He also sought possession of one room on the ground floor allegedly in

possession of defendant No. 1 unauthorizedly. Further, the prayer is

also made seeking permanent injunction restraining the defendant No.

1 from carrying out any construction in the suit properties or creating

third party interest therein.

2. The defendants No. 1, 2 and 4 filed their common written

statement. They all disputed the case as set up by the plaintiff. They

had raised the preliminary objection stating that the suit is bad for non-

joinder of necessary parties as all the legal heirs of deceased Sujan

Singh (defendant No. 2) are not impleaded. The jurisdiction of this

court was also disputed as value of the suit property was stated to be

below Rs. 20 lakhs. On merits, their case was that the properties No.

B-389 and 291 were purchased by the defendant No. 1 from his own

funds and it is he, who is the owner of these properties. The property

No. 290 was stated to have been already sold by defendant No. 1. It

was their case that the plaintiff had taken his shares and shifted to

Calcutta in 1973-74 and has no right in the suit properties. It was all

denied that the defendant No. 3 Arjun Singh and defendant No. 4

Shashi Bala relinquished their rights and shares in the properties in the

manner as alleged by the plaintiff. It was their case that the defendants

No. 2 and 4 have exchanged their rights in property No. 290 A-Block

with the rights of the plaintiff in B-389 and by this oral understanding,

the second floor was given to the defendant No. 1 and the ground floor

to the defendant No. 4. It was also averred that the plaintiff has

occupied the major portion of ground floor of B-389 taking advantage

of the absence of defendant No. 4 and for which, she has filed a suit for

possession and injunction against him. The case was tried on the

following issues:

(1) Is the suit barred on account of non-joinder?OPD.

(2) Does the defendants prove that the plaintiff is disentitled to claim partition on account of a previous division in the family in respect of the properties mentioned in para 12 of the written statement or for any other reason? OPD.

(3) Is the plaintiff entitled to decree for partition in respect of the suit property described in Schedule-A? OPP.

(4) Is the plaintiff entitled to decree for possession of the room situated at ground floor of B-389, Gali No. 4, Near Gurudwara Majlis Park, Delhi, as claimed in Schedule-B to the suit? OPP;

(5) Relief.

3. The plaintiff Praveen Kumar Arora S/o deceased Mohan Singh

was the only witness examined by the plaintiffs. He led his evidence

by way of affidavit (Ex.PW1/A). The defendant No. 1 Mahendra

Singh examined himself as DW1 and led his evidence by way of

affidavit.

4. I have heard learned counsel for the parties and perused the

records. Discussion and findings on the issues are as follows:

ISSUE NO.1:

5. On the defendants having taken objections that the LRs of the

deceased No. 2 Sujan Singh are not impleaded, this issue was framed

with the onus to prove the same upon the defendants. There is no

dispute that Sujan Singh died leaving behind his wife, sons and

daughters. In the original plaint, it was only Sarbansh Kaur, W/o late

Sujan Singh, who was impleaded as defendant No. 2. However, on the

objections having been taken by the defendants, an application under

Order 1 Rule 10 CPC was filed by the plaintiff for impleading the

other LRs of deceased Sujan Singh. This application was allowed on

19.01.2005. However, it is seen from the record that despite several

opportunities taken by the plaintiffs, neither any step was taken for

service of these newly added LRs of deceased Sujan Singh, nor any

amended memo of parties was filed. The situation remains the same

even today i.e. eight years after passing of the said order.

6. It was the plaintiff's own case that Sujan Singh had died on

21.11.1977 leaving behind his wife, sons and daughters as his legal

heirs, and who had inherited the shares of Sujan Singh. That being so,

the sons and daughters of deceased Sujan Singh being his legal heirs

and having inherited his shares are undoubtedly necessary parties. The

plaintiff deliberately having not joined them despite the order in this

regard, the suit is apparently bad for their non-joinder, and is liable to

be dismissed on this ground alone. The issue thus stands decided

against the plaintiff and in favour of the defendants.

ISSUE NO.2:

7. The onus of this issue was upon the defendants. In paragraph 12

of the written statement filed by the defendants No. 1, 2 and 4, they

have averred that the plaintiff has taken his share in the properties and

purchased the properties in Calcutta and Solan and thus, could not seek

partition of the suit properties. The defendant No. 1 Mahendra Singh

had examined himself as DW1 whereas defendant No. 4 Shashi Bala,

who has filed her affidavit of evidence, did not tender herself for cross

examination. That being so, the only evidence that is led by the

defendants is of the statement of DW1 Mahendra Singh. He has only

stated that an oral partition had taken place in the year 1968, and

plaintiff Mohan Singh had taken his share and subsequently, settled in

Calcutta. There is nothing on record to substantiate this bald statement

of defendant No. 1 Mahendra Singh. This oral and vague statement in

itself is not sufficient inasmuch the defendants themselves are not sure

as to when the oral partition had taken place. To say that it was around

the year 1968, is vague to arrive at a conclusion. In any case, if such a

partition had taken place as stated by DW1 Mahendra Singh, the

defendants might be in possession of some documents to substantiate

the same. DW1 even did not remember as to whether he had shown

any property in the income tax returns. He even did not know as to in

whose name the property bearing No. 290 was purchased. Further, he

also did not remember as to when the property No. 291 was purchased

and as to whether he had mentioned about the sale of the same in his

income tax returns. That being the type of evidence led by the

defendants, they have failed to establish that the oral partition had

taken place wherein the plaintiff had taken his share and settled and

purchased the properties in Calcutta and Solan. This issue is

accordingly decided against the defendants.

ISSUE NO. 3:

8. The onus of this issue was upon the plaintiff. The only

documents which are placed on record are Ex.PW1/1 to Ex.PW1/3.

Ex.PW1/1 purports to be an agreement to sell of property No. 290

executed by Rakesh Gupta in favour of Motia Devi on 20.11.1981.

Ex.PW1/2 is the General Power of Attorney executed by Rakesh Gupta

in favour of Jagan Nath, father of the parties. Ex.PW1/3 is the site plan

of the property No. B-389. From none of these documents, the title in

the property No. 290 is transferred by Rakesh Gupta in favour of the

mother or father of the parties. None of these documents are

registered. Agreement to sell (Ex.PW1/1) is only signed by Rakesh

Gupta and not by Motia Devi. Thus, this agreement to sell, by any

means, is no agreement at all in the eyes of law. Vide General Power

of Attorney (Ex.PW1/2), the father of the parties was only appointed as

Attorney to manage, control and look after the affairs of property No.

290 on behalf of Rakesh Gupta. PW1 stated to be not in possession

of any document pertaining to property No. B-389 and 291 A-Block.

He is also not aware if property No. 291 A-Block was purchased in the

name of defendant No. 1. At one place, he stated that on verbal

partition, premises No. 291 A-Block came to the share of defendant

No. 1 and premises No. 290 to their shares. He also admitted having

not filed any documents showing his father having constructed three

storey building on property No. B-389. Further, he also admitted

having not filed any document of relinquishment deed allegedly

executed by defendant No. 3 in favour of his father. Then, he stated

that he could not say in this regard that no such relinquishment deed

was ever executed by the defendant No. 3. With regard to the

plaintiff's plea that defendant No. 4 had by oral consent relinquished

her shares, he also stated he has no knowledge about this. It was

suggested to him that his father had relinquished his shares in respect

of all the suit properties at Delhi and shifted to Calcutta. The type of

evidence led by PW1 as noted above is not sufficient to conclude that

the properties in question were owned by their mother or that, after her

death, he along with his brothers and sister acquired the equal rights

therein, and further that, those rights were subsisting to enable him to

seek partition. The evidence led by the plaintiff is entirely insufficient

to record a finding of his being entitled to any share in the properties.

The issue is accordingly decided against the plaintiff.

ISSUE NO. 4:

9. The onus of this issue was upon the plaintiff. The plaintiff and

defendant No. 1 have led oral evidence, one stating that a room on the

ground floor was given to the defendant No. 1 temporarily for

entertaining his guests and the other stating that the ground floor came

in the share of defendant No. 4 in oral understanding with her and that

since she was residing at Dehradun, he had permitted the plaintiff to

have a room on the ground floor for his visits for treatment in Delhi. It

is also stated by DW1 Mahendra Singh that the defendant No. 4 Shashi

Bala had already filed a suit for possession and injunction against the

plaintiff in respect of the said portion of the ground floor of premises

B-389. The evidence led by both the parties in this case is not only

vague, but highly insufficient to arrive at any conclusion. The plaintiff

has not been able to discharge the onus adequately. The issue in this

regard is the subject matter of the suit that has been filed by the

defendant No. 4 Shashi Bala against the plaintiff and which is sub-

judice. Thus, no finding can be recorded on this issue because of lack

of sufficient and cogent evidence in this case.

RELIEF:

10. In view of the above, the plaintiffs are not entitled to any relief.

The suit merits dismissal and is hereby dismissed with no order as to

costs.

M.L. MEHTA, J.

MARCH 13, 2013 akb