Nandan Singh vs Gopal Singh Dangwala & Anr.
2018 Latest Caselaw 1009 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No. 150/2018

%                                                 12th February, 2018

NANDAN SINGH                                            ..... Appellant
                          Through:       Ms. Sunita Arora, Advocate.
                          versus

GOPAL SINGH DANGWALA & ANR.                          ..... Respondents

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No. 5443/2018 (Exemption)

Exemption allowed subject to just exceptions

CM stands disposed of.

CM No. 5444/2018 (delay in re-filing)

For the reasons stated in the application, delay in re-filing is condoned.

CM stands disposed of.

RFA No. 150/2018

1. This Regular First Appeal is filed under Section 96 of the

Code of Civil Procedure, 1908 (CPC) by the plaintiff in the suit

impugning the judgment of the trial court dated 23.9.2017 by which

the trial court has decreed the suit for partition of 120 sq. yards of the

property bearing no. L-10, Gali No. 3, Jaiprakash Nagar, Ghonda,

Delhi but has dismissed the suit with respect to the remaining 65 sq.

yards area, and which area as per the appellant/plaintiff was also

jointly owned by the appellant/plaintiff with the respondent

no.1/defendant no.1/brother.

2. There is a very limited issue which is called upon for

decision in this Regular First Appeal because the suit for partition has

been decreed with respect to the property L-10 for 120 sq. yards. It is

not disputed that the title documents executed by the erstwhile owner

Sh. Tula Singh in favour of the appellant/plaintiff and respondent

no.1/defendant no.1 is with respect to 120 sq. yards and not 185 sq.

yards. Once therefore the title documents are for only 120 sq. yards

executed by Sh. Tula Singh in favour of the appellant/plaintiff and the

respondent no.1/defendant no.1, trial court in my opinion has

committed no error in holding that the appellant/plaintiff and the

respondent no.1/defendant no.1 were joint owners only of 120 sq.

yards and not 185 sq. yards.

3. I may also note that the respondent no.1/defendant no.1

has proved in his favour the power of attorney Ex.DW1/A executed by

owners of 65 sq. yards, and who were sons of Sh. Devi Dutt namely

Sh. Dharam Dutt, Sh. Bacchi Ram and Sh. Krishna Nand, whereas the

appellant/plaintiff was not able to substantiate his case of co-

ownership of 65 sq. yards along with respondent no.1/defendant no.1.

Appellant/plaintiff may have claimed that he did not have the title

documents of 65 sq. yards, however once respondent no.1/defendant

no.1 proved that he had purchased 65 sq. yards from Sh. Dharam Dutt,

Sh. Bacchi Ram and Sh. Krishna Nand by virtue of a power of

attorney Ex.DW1/A then onus shifted upon the appellant/plaintiff to

show that 65 sq. yards was jointly purchased by the appellant/plaintiff

with the respondent no.1/defendant no.1 and in this regard no evidence

whatsoever was led by the appellant/plaintiff which a court can

believe.

4. Learned counsel for the appellant/plaintiff sought to

argue that Sh. Tula Singh who had executed the title documents for

property L-10 deposed as PW-2 in favour of the appellant/plaintiff,

and therefore, it should be held that appellant/plaintiff is also a co-

owner with respondent no.1/defendant no.1 with respect to 65 sq.

yards, however I cannot agree because the minimum which the

appellant/plaintiff ought to have done was to show that the ownership

of 65 sq. yards in addition to 120 sq. yards was with Sh. Tula Singh

and not with Sh. Dharam Dutt, Sh. Bacchi Ram and Sh. Krishna Nand

which has not been done and therefore the trial court has rightly

arrived at a conclusion that the appellant/plaintiff is not a co-owner

with the respondent no.1/defendant no.1 with respect to 65 sq. yards of

land which was purchased by the respondent no.1/defendant no.1 from

Sh. Dharam Dutt, Sh. Bacchi Ram and Sh. Krishna Nand.

5. Learned counsel for the appellant/plaintiff argues that the

power of attorney Ex.DW1/A is not properly notarized, but even if

that be so at best that will show that the power of attorney is not

notarized but not the fact that the power of attorney was never

executed by Sh. Dharam Dutt, Sh. Bacchi Ram and Sh. Krishna Nand

in favour of the respondent no.1/defendant no.1/Sh. Gopal Singh.

6. There is no merit in the appeal. Dismissed.

FEBRUARY 12, 2018/ib                       VALMIKI J. MEHTA, J