Smt Omwati Koak & Ors vs Charan Pal Singh Koak
2017 Latest Caselaw 6706 Del

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*     IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                    Reserved on: 13th November, 2017
                                   Pronounced on: 24th November, 2017

+     CS(OS) 80/2016 and IA No. 2369/2016

      SMT OMWATI KOAK & ORS
                                                            ..... Plaintiffs
                            Through :   Mr.Shiv Charan Garg, Advocate.

                   versus
      CHARAN PAL SINGH KOAK
                                                               ..... Defendant
                            Through :   None being ex parte.



CORAM:
HON'BLE MR. JUSTICE YOGESH KHANNA

YOGESH KHANNA, J.

1. The plaintiffs have filed this suit for partition, possession, declaration and permanent injunction claiming to be the owners of property in question bearing Khasra No.49/20, 1 Bigha 1 Biswas (1-1) & Khasra No.19/1, (0-10) (0-10), Khasra No.359 (2-2) (1-1), Killa No.3 (3-

13) (2-1), property approximately 2600 square yards situated at the village Bijwasan, Tehsil Vasant Vihar, New Delhi (hereafter referred as the 'suit property') more specifically shown in the site plan Annexure-A. It is submitted out of the total land of 2 bighas and 12 biswas the plaintiffs are owners of half of the property.

2. The case of the plaintiff is as follows:

a) The aforesaid property was purchased by Sh.Jai Singh and Sh.Udai Ram, both were the cousin brothers. Sh.Jai Singh has expired on 4th May, 1988, leaving behind the plaintiffs as legal heirs;

b) Sh.Udai Ram has also expired leaving behind the defendant as his legal heir;

c) the revenue record prepared by the Govt. of NCT of Delhi duly mentions the name of Late Sh. Jai Singh as 1/2 owner of the property in question. The copy of the revenue record is enclosed herewith as Annexure-C (Colly);

d) the plaintiffs have their legal rights over 1/2 portion of the property in question, though the plaintiffs are also in possession of the property in question and visit the property whenever they desire;

e) Sh. Charan Pal Singh, defendant is an unscrupulous person, though is relative of Sh. Jai Singh Koak, is claiming his possession over the portion as shown green colour in the site-plan of the property and has illegally raised construction of a room in the said portion without seeking any permission from the plaintiff as well as MCD, hence, the plaintiffs have filed a criminal complaint on dated 18th December, 2011 at Kapashera police station. The petitioner then lodged a complaint dated 28-12-2011 to the MCD and the same was duly received by the department, however, no action was

taken by the MCD. The plaintiff No.1 then filed a Civil Writ Petition No.839/2012, titled as Smt. Omwati Koak Vs. MCD & Ors wherein directions were issued to the MCD to take action in accordance with law, vide order dated 23.03.2012;

f) on 6.11.2013 the plaintiff No.l approached the defendant for partition of the suit property, however the defendant did not show his interest in this regard. Earlier also the plaintiff made requests to the Defendant for partition of the property in question and for constructing the wall over their respective portions, but the defendant is not ready to give consent and on the other hand had threatened to sell or to transfer possession to goonda elements in case partition is sought;

g) the plaintiffs filed a Petition under Section 6 of the Delhi Land Reforms Act, bearing No.46/RA/KH/2014, titled as Smt. Omwati Koak & Others Vs. Shri Charan Pal Singh Koak, which was assigned to the Revenue Assistant, Kapashera, New Delhi. However, the Revenue Assistant gave observation vide order dated 23.11.2015 that since the agricultural land does not exceed 08 standard and therefore the Court of Revenue Assistant has no jurisdiction hence liberty was granted to the plaintiffs to approach the Civil Court hence, this suit;

h) it is alleged the cause of action arose when Sh.Jai Singh purchased the property in question alongwith Sh.Udai Ram.

It further arose when Late Sh. Jai Singh expired on 4th May, 1988 and the Plaintiffs became co-owners of the property in question being legal heirs of late Sh.Jai Singh. It again arose on 6-11-2013 when the Plaintiffs requested the Defendant to partition the property and to construct a wall and it again arose when the Defendant threatened to create third party interest. The cause of action further arose when the petition under section 6 of the Delhi Land Reforms Act was filed by the plaintiff and the Court of Revenue Assistant granted liberty to approach the appropriate court because the agricultural land is less than 08 standard Acres. The cause of action is continuing one.

3. The defendant no.1 was served but did not appear hence was proceeded ex-parte on 08.09.2016. The plaintiffs examined seven witnesses in support of their case. PW1, PW2 were examined and were discharged on 08.12.2016. PW3, PW4 and PW5 were examined and were discharged on 03.02.2017. PW6 was examined and discharged on 06.03.2017. PW7 was examined on 22.05.2017. The ex-parte evidence was complete and the matter was listed for arguments.

4. The plaintiff PW1 had deposed for plaintiffs no.2 and 3 and had proved GPA executed by plaintiffs no.2 and 3 in her favour as Ex.PW1/A;; the site plan as Ex.PW1/2; the death certificate of Sh.Jai Singh as Mark A; the copy of the revenue record as Ex.PW1/4; the complaints filed against the defendant with the MCD are Mark B and Mark C respectively; certified copy of the order dated 23.03.2012 is

Ex.PW1/7 passed in Writ Petition (Civil) No.839/2012; the certified copy of the order dated 23.11.2015 of the revenue court is Ex.PW1/8.

5. Similarly PW2 Mr.Yashwant Pal Singh Koak deposed on affidavit in the line of deposition of PW1 and proved the above facts as also the documents again.

6. PW3 Mr.Krishnavir, Patwari, District South-West, Kapashera, Delhi, brought the Aksijra of Khasra No. 259, Village Bijwasan and the Aksijra of Khasra no. 49/19, Village Bijwasan and proved those as Ex.PW3/1 and Ex.PW3/2. He also brought the copy of the register of Karyawahi of Khasra No. 49/20, 19/1 and 359 of Village Bijwasan, which is Ex.PW3/3.

7. PW4 ASI Chaner Bhan, Police Station Kapashera brought an order with a covering letter of the SHO Kapashera and proved it as Ex.PW4/1 stating inter alia the record was destroyed by the order of the DCP(South- West District) New Delhi.

8. PW5 Mr.Umesh Verma, JJA of this Court brought the record of the Writ Petition (Civil) 839/2012 along with the certificate issued under section 65(B) (4) (c) of the Indian Evidence Act issued by AO(J) of this Court as Ex.PW5/1. The certified copy of the order dated 23.03.2012 is proved as Ex.PW1/7.

9. PW6 Mr.Mohd. Ahmed, AE, Building, Najafgarh Zone, SDMC, Delhi brought the summoned record pertaining to the unauthorized construction in property no.49/120, adjoining Gokul Dham Ashram, Village Bijwasan, New Delhi. The copy of the notices issued under

Section 343 and 344 (1) of DMC Act were proved as Ex.PW6/1 collectively. The photocopy of the record pertaining to sealing and complaints taken on record was proved as Ex.PW6/2 colly.

10. PW7 Mr.Harish Kumar Kanuoongo, SDM, Kapashera brought the order dated 23.11.2015 passed by the SDM in 46RA/AH/2014 titled as Smt.Omwati Koak & ors. Vs. Charan Pal Singh Koak and it is Ex.PW1/8. The photocopy of the requisite record is Ex.PW7/1.

11. The depositions on behalf of the plaintiffs proved they are the co- owners of the suit property. The evidence on record proved initially the suit property belonged to late Shri Jai Singh and his cousin brother late Sh.Udai Ram. Shri Jai Singh expired leaving behind the plaintiff No.1 as his widow and plaintiffs No.2 & 3 his sons. Shri Udai Ram also expired and he executed a Will in favour of the defendant, which fact is stated in documents Ex.PW3/1 (Colly). It has been proved on record by the plaintiffs that the defendant made unauthorized construction on the suit property for which reason they filed police complaints as well as complaint with the MCD and even a Writ Petition (Civil) No.839/2012 before this Court, since MCD failed to take any action against such unauthorized construction. Later action was taken. However, since the defendant had refused to partition the suit property and since the plaintiffs No.1 & 2 are residing abroad, hence they have filed this suit and have claimed partition and separate possession of half of their share in the suit property as have apprehension the defendant may not dispossess them from the suit property.

12. The plaintiffs have proved on record that they approached the Revenue Court for this very relief, but vide order dated 23.11.2015 passed by the SDM in 46RA/AH/2014, they were directed to approach the Civil Court for partition and hence this suit was filed.

13. Considering the evidence and material on record coupled with the fact that the defendant is ex parte and has chosen not to appear and contest the suit and had refused to partition despite requests; and there being no rebuttal to the entire claim of the plaintiffs, the suit of the plaintiffs is liable to be decreed in their favour and against the defendant.

14. For the reasons mentioned above, a) a decree for declaration is passed in favour of the plaintiffs and against the defendant in respect of the suit property i.e. Khasra No.49/20, 1 Bigha 1 Biswas (1-1) & Khasra No.19/1, (0-10) (0-10), Khasra No.359 (2-2) (1-1), Killa No.3 (3-13) (2-

1), property approximately 2600 square yards situated at the village Bijwasan, Tehsil Vasant Vihar, New Delhi declaring the plaintiffs as owner of half of the suit property as stated above and shown in the site plan Ex.PW1/2; b) a decree of permanent injunction is also passed in favour of the plaintiffs and against the defendant thereby restraining the defendant, his agents, servants, associates from creating any third party interest in the suit property belonging to the plaintiff till the final decree of partition is drawn; c) a preliminary decree of partition is also passed in favour of the plaintiffs and against the defendant thereby holding that plaintiffs are entitled to half portion of the suit property.

15. List on 18.12.2017 for directions when the plaintiff will furnish the suggestions with respect to partition by metes and bounds of the suit

property and in what manner the possession thereof has to be restored to the plaintiff etc.

IA No. 2369/2016

16. In view of above order, the application stands disposed of.

YOGESH KHANNA, J NOVEMBER 24, 2017 DU/M