Ramwati & Anr vs Shashi & Ors
2014 Latest Caselaw 5093 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                            Order delivered on: 13th October, 2014

+                      CS (OS) No.1714/2011

       RAMWATI & ANR                                 .....Plaintiffs
                    Through        Ms. Nikita Sharma, Adv with
                                   Mr. Jitender Parashar, Adv.

                       versus

       SHASHI & ORS                            .....Defendants
                       Through     Mr. Anupam Gangwar, Adv.

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. The plaintiffs have filed a suit for partition and permanent injunction in respect of property bearing No. 179, M.G. Road, New Mangla Puri, Mehrauli, New Delhi-110030 ad measuring area 200 sq. yds. (hereinafter referred to as the "suit property") against the defendants.

2. Brief facts of the case are that the suit property was a self acquired property of Late Sh. Pusa Ram which he purchased in two parts (100 sq. yards in each part) through registered sale deeds dated 11th August, 1967 and 3rd September, 1970 respectively. Late Sh. Pusa Ram, husband of the plaintiff No.1 and father of the plaintiff No.2 and the defendants expired on 27th January, 1982 and left behind him the suit property. The plaintiffs and the defendants are the only legal heirs/ successors of Late Sh. Pusa Ram. After his death,

the plaintiffs and defendants all became joint share holders in the suit property and had equal share in the suit property i.e. 40 sq. yards each.

3. The plaintiffs are in the possession of one part i.e. 100 sq. yards of the suit property and defendant No.3 is in possession of another part i.e. 100 sq. yards of the suit property. However, defendant No.3 does not reside in the suit property and had let out the same to someone else.

4. It is averred in the plaint that Late Sh. Pusa Ram got constructed the suit property after purchasing the same and due to poor condition of the old structure of the suit property, it had become unsuitable for the plaintiffs to reside and thus, required new construction after demolishing the old construction.

5. Thereafter, plaintiff No.2 requested defendant No.3 for partition and to demark the respective portions of each other as per their shares but defendant No.3 refused by stating that he is the sole owner of the suit property as being the elder brother and he had allowed plaintiff No.2 to reside in the suit property only because of the plaintiff No.1.

6. It is averred that on 2nd January, 2011, defendant No.3 sent his wife along with some un-social elements to the suit property who tried to dispossess the plaintiffs illegally and unlawfully.

7. It is averred that defendant No.3 is an influential person and by personating himself to be as the absolute owner of the suit property, he may sell the same to anyone or create third party interest in the suit property and may dispossess the plaintiffs from the suit property. It is stated that plaintiff No.1 is 85 years old widow lady who is fully

dependent on plaintiff No.2 and the plaintiff No.1 is willing to give her share in the suit property to the plaintiff No.2 which was declared to all the defendants.

8. Written statements have been filed by defendant Nos.1, 2 and 3 respectively. Defendant No.1 in her written statement pleaded that the defendant No.1 is also an aggrieved party and has her due share in the suit property after partition which is lying with plaintiff No.1 and 2 and defendant No.3 who is in possession of the suit property. The defendant No.1 is the sister of plaintiff No.2 and daughter of plaintiff No.1 and is one of the legal heirs of deceased husband of plaintiff No.1. It is contended that the suit property is divided equally between all the legal heirs and defendant No.1 should be granted possession of her share in the suit property.

9. It is contended by defendant Nos.2 and 3 in their written statements that as per mutual family settlement, the suit property has already been divided in two parts. The possession of the portion shown as "A, B, C, D, E, F" has been handed over to the plaintiffs and possession of the property shown as "B, G, H, F" has been handed over to the defendant No.3. It is contended that plaintiffs did not disclose the fact that the defendants and plaintiffs were also present and gave their consent to the said settlement. The plaintiffs also concealed the fact that the plaintiffs had filed a suit before the District Court in 2011 for partition but the same was dismissed on the ground of pecuniary jurisdiction.

10. It is contended by defendant No.3 that the plaintiffs have concealed the fact that the plaintiffs along with defendant No.1 have roped defendant No.3 in various criminal litigations and have lodged

two FIR's against defendant No.3. Defendant No.3 alongwith his wife is not residing in the suit property because of the abovementioned reason and the same is given on rent to the tenants. Defendant No.3 lodged FIR against the plaintiff No.2 and defendant No.1 before the Gurgaon District Court wherein the plaintiff No.2 and defendant No.1 were convicted. It is further contended by defendant No.3 that the plaintiffs have also concealed the fact that the portion under the plaintiffs and defendant No.3 is the pucca construction.

11. The plaintiffs in the replication to the written statements have denied the contentions of the defendants. It is specifically denied by the plaintiffs in the replication that the suit property has been partitioned in year 1994 in presence of elder family members. It is denied that as per mutual family settlement the suit property has already been divided in two parts out of which portion A B C D E F has been handed over to the plaintiffs and portion B G H F has been handed over to defendant No.3.

12. The defendants No. 2 and 3 have not filed copy of the Memorandum of Understanding nor have they proved the same in evidence rather they stopped appearing in the Court.

13. As regards the filing of the earlier suit is concerned, it is admitted position that the said suit was withdrawn in view of lack of pecuniary jurisdiction. Thus, the suit filed by the plaintiffs is maintainable.

14. Issues were framed in this matter on 18th February, 2014 and the matter was listed before the Joint Registrar for evidence of the parties.

15. The plaintiffs filed affidavit of evidence and proved the facts as stated in the plaint by evidence by way of affidavits of Mr.Sudarshan Kumar, plaintiff No.2 as PW1 and Smt. Ramwati, plaintiff No.1 as PW2.

16. On 10th September, 2014 PW-2 Ramwati was present however no one appeared on behalf of the defendants for cross examination. The Joint Registrar listed the matter before Court.

17. When the matter is listed today, the learned counsel for the defendant No.1 appeared and stated that he does not want to cross examine the plaintiffs' witnesses. No one appeared on behalf of the other defendants i.e. defendant Nos. 2 and 3.

18. The plaintiffs' evidence by way of affidavit has gone unrebutted. No cross examination was conducted by the defendants No. 2 and 3. Therefore the pleas raised by the defendants No.2 and 3 have not been proved.

19. In view of the facts and circumstances of the present case, this Court is of the considered opinion that a preliminary decree defining the shares of the suit property can be passed at this stage. Accordingly, a preliminary decree is passed by declaring that the plaintiff and the defendants are entitled to 1/5th share each in the suit property bearing No.179, M.G. Road, New Mangla Puri, Mehrauli, New Delhi-110030 measuring 200 sq. yards which is specifically shown in red clolour in the site plan.

20. The only dispute is with regard to the actual physical partition of the suit property by metes and bounds. To resolve the same, Ms.Latika Choudhury, Advocate (Mob.9313964463) is appointed as the Local Commissioner to suggest the modes of partitioning the

same by metes and bounds and demarking the respective shares of the defendants separately and shares of plaintiffs jointly. The Local Commissioner shall hear the submissions of the parties and shall also physically inspect the suit property. She shall be provided with relevant plans of the same by the parties who shall also cooperate with the Local Commissioner. The fee of the Local Commissioner is fixed at Rs.60,000/- apart from all other out of pocket expenses which shall be borne by the parties in proportion to their respective shares in the suit property.

21. The parties shall appear before the Local Commissioner on 20th December, 2014.

22. The Local Commissioner is expected to file her report by the next date.

23. List on 25th February, 2015 to await the report of the Local Commissioner.

(MANMOHAN SINGH) JUDGE OCTOBER 13, 2014