Rakesh Sharma vs Surender Sharma & Ors.
2016 Latest Caselaw 7213 Del

       *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Reserved on: 3rd October, 2016
                                       Pronounced on: 2nd December, 2016
       +       CS (OS) 3121/2014
               RAKESH SHARMA                            ..... Plaintiff
                       Through:        Mr. Mohit Chaudhary, Advocate with
                                       Ms. Damini Chawla, Advocate

                         Versus
           SURENDER SHARMA & ORS.                         ..... Defendants
                    Through: Ex-parte
       CORAM:
       HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT

R.K. GAUBA, J:

1. This civil suit for partition and injunction (permanent and mandatory) was instituted by Rakesh Sharma son of Late Shri Tilak Raj Sharma (the plaintiff) who claims to be the brother of the two defendants, they being Shri Surendra Sharma son of Late Shri Tilak Raj Sharma (first defendant) and Smt. Shobha Sharma (since deceased) described as married daughter of Late Shri Tilak Raj Sharma (second defendant) represented by her legal heirs, the reliefs being sought concerning third floor (along with terrace rights) of property bearing No.C-46, old number A/168, measuring 225 sq. yards, out of Khasra No.351, 352 and 353, situated in Mahendru Enclave, Village Malikpur Chhawni, G.T. Road, New Delhi-110033 ("the suit property"), more particularly described in site plan mark „F‟, affirmed on oath by Affidavit Ex.PW-1/A, inter alia, stating it to be bounded on east and west by

passages, on the north by property no.A/167 and on the south by property no.A/169.

2. As per the averments in the plaint, Late Shri Tilak Raj Sharma, the predecessor-in-interest/father of the parties hailed from area now in Pakistan and had moved, at the time of partition of the country in 1947, from there to Delhi and had purchased property bearing No.7203, Beriwala Bagh, Pul Bangash, Delhi-110006 where he with his family including the parties herein lived till 1996. Late Shri Tilak Raj Sharma statedly married Smt. Sudershan Kanta @ Sudershan Rani and out of the said wedlock, the plaintiff and the two defendants were born. The second defendant Smt. Shobha Sharma having been married in 1982 to Mr. Vijay Kumar Sharma and having given birth to two children, namely, Dakshit Sharma and Mansi Sharma, she (Shohba Sharma) passed away in 2003 leaving behind her husband Vijay Kuamr Sharma and the said two children Dakshit Sharma and Mansi Sharma, who are collectively shown in the array of parties as second defendants.

3. It is further the case of the plaintiff that in 1995 Late Shri Tilak Raj Sharma had sold off the property at Beriwala Bagh and from out of the proceeds of the said sale he had purchased the suit property, in the name of his wife Smt. Sudershan Kanta @ Sudershan Rani (mother of the parties herein), on 17.05.1996 for consideration of ₹80,000/- from its then owner Mr. Sanjay Sharma who executed the documents in the nature of Irrevocable General Power of Attorney, for consideration, in favour of Shri Tilak Raj Sharma, which was registered as document no.16205 in volume no.3969 on page(s) 157 to 160; Special Power of Attorney in favour of Shri Tilak Raj

Sharma, registered as document no.16206 in volume no.3969 on page(s) 161 to 162 in the office of the Sub-Registrar, Sub-District No.1, Delhi; Affidavit affirming execution of the General Power of Attorney and Special Power of Attorney; Agreement to Sell in favour of Smt. Sudershan Kanta duly notarized besides Will duly registered as document no.20019 in volume no.2061 on page(s) 69 to 70 bequeathing the right, title and interest in the suit property in favour of Smt. Sudershan Kanta; in addition to Indemnity Bond and possession letter respecting suit property in her favour and acknowledging the receipt of the said sale consideration of ₹80,000/-.

4. It is the case of the plaintiff that Smt. Sudershan Kanta, mother of the parties, in whose name the suit property was purchased by Late Shri Tilak Raj Sharma died intestate on 28.01.2002 followed by the death of Shri Tilak Raj Sharma, again intestate, on 12.02.2008. It is averred that after the demise of their parents, the three children of the erstwhile owner, i.e., plaintiff and the two defendants, are entitled to one-third share each in the suit property. The cause of action for bringing the suit was alleged to be the conduct of the first defendant who statedly had started picking fights with the plaintiff asking him to move out from the property in a portion of which he claims to be in occupation and the alleged misrepresentation about the said defendant to the people at large intending to dispose of the property for consideration for his own benefits and to the detriment of the interest of the plaintiff.

5. The suit prays, inter alia, for preliminary decree of partition, for appointment of a Local Commissioner to visit and inspect and suggest the means of ways and means of partitioning and for appropriate orders to be

passed thereupon and, in the event of it being found that the property cannot be partitioned by metes and bounds, the partition to be ordered by sale and apportioning of the proceeds thereof amongst the co-sharers. In addition, the plaintiff had prayed for permanent and mandatory injunction against the defendants so as to restrain them, their agents, representatives, nominees, etc. against interfering in any manner in the peaceful possession of the portion of the suit property vested in the plaintiff.

6. After having been served, the defendants appeared through counsel on 16.01.2015 but in spite of time being granted for the purpose, written statements were not filed. The right to file written statement was thus closed by the Joint Registrar (Judicial) by the proceedings recorded on 27.05.2015, taking note that on the said date or on the subsequent dates of hearing the defendants had chosen not even to appear. The defendants have thus suffered the proceedings ex-parte.

7. On being called upon to adduce ex-parte evidence, the plaintiff tendered his own Affidavit (Ex.PW-1/A) on 17.05.2016, proving therewith all the requisite documents including the General Power of Attorney (Ex.PW-1/1), Special Power of Attorney (Ex.PW-1/2), Will (Ex.PW-1/5) - all registered documents, in addition to agreement to sell (Ex.PW-1/4), Affidavit (Ex.PW-1/3), Indemnity Bond (Ex.PW-1/6), Possession Letter (Ex.PW-1/7) and Receipt (Ex.PW-1/8) evidencing the acquisition of right, title and interest in the suit property for consideration in the name of Smt. Sudershan Kanta wife of Late Shri Tilak Raj Sharma (mother of the parties), besides copies of the death certificates mark „D‟ in respect of Smt. Sudershan Kanta and mark „C‟ in respect of Late Shri Tilak Raj Sharma,

duly affirmed on oath by the aforementioned affidavit to show the said persons to have died on 28.01.2002 and 12.02.2008 respectively. Further, copy of the death certificate mark „B‟, again duly affirmed on oath by the said affidavit, shows that Smt. Shobha Sharma, the predecessor-in-interest of the second defendant (collectively) she being the daughter of the predecessor-in-interest of the plaintiff and first defendant and therefore entitled to one-third share, had also died on 21.08.2003.

8. The defendants have failed to come up with any contest to the suit as, in spite of the opportunities, they did not file any written statement. They have chosen to suffer the proceedings ex-parte. The ex-parte evidence led by the plaintiff has gone unchallenged. In these circumstances, there is no reason why the case of the plaintiff should be disbelieved.

9. In view of the above, this court records satisfaction that the plaintiff has proved that the suit property was purchased, for consideration, in the name of the mother of the parties herein and since she died intestate in the year 2002, followed by the death of the father of the parties in 2008, also intestate, the right, title and interest in the suit property has devolved, by inheritance, in favour of the plaintiff, the first defendant and the predecessor-in-interest of the second defendant in equal shares, i.e., one- third each. Therefore, a preliminary decree to this effect is hereby passed in favour of the plaintiff and against the defendants. Decree-sheet shall be accordingly drawn up.

(R.K. GAUBA) JUDGE DECEMBER 02, 2016 vk