Varinder Pal Singh vs Davinder Pal Singh
2018 Latest Caselaw 6592 Del

                                                                        #F-66
$~
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CS(OS) 2263/2015

       VARINDER PAL SINGH                         ..... Plaintiff
                    Through            Mr. Anurag Sharma, Adv.

                          versus

       DAVINDER PAL SINGH                           ..... Defendant
                    Through            None


%                                  Date of Decision: 31st October, 2018

       CORAM:
       HON'BLE MR. JUSTICE MANMOHAN

                             JUDGMENT

MANMOHAN, J: (Oral)

1. Present suit has been filed for partition, rendition of accounts, recovery of possession and damages/mesne profits, and permanent and mandatory injunction.

2. It is stated in the plaint that plaintiff and the defendant are real brothers and the co-owner of 32/54 West Patel Nagar, Delhi (hereinafter referred to as the suit property), which was purchased by Late Shri Inderjit Singh, father of the parties vide Sale Deed dated 10th May, 1963. It is stated that the suit property comprises of a two storeyed building, on a land

measuring 100 sq yards.

3. It is the stated in the plaint that the plaintiff and the defendant are the only class I legal heirs of Late Shri Inderjit Singh and are entitled to equal share in the suit property.

4. It is stated in the plaint that the defendant personally resides on the ground floor of the suit property and has given the first floor on rent. It is stated that the plaintiff has no knowledge about the quantum of the rent. It is further stated that the defendant's wife is carrying on tailoring business from the ground floor of the suit property.

5. It is stated in the plaint that on 5th May, 2013, the plaintiff and the defendant jointly filed a petition before the Court of District Judge, West Delhi, District Courts Tis Hazari, under Section 278 of the Indian Succession Act for the grant of letters of administration in respect of the suit property. It is stated that the above suit was dismissed on account of non- prosecution.

6. Learned counsel for the plaintiff states that the plaintiff has on numerous occasions requested the defendant to partition the property. He however states that the defendant has refused to partition the suit property and has threatened to dispose off the suit property.

7. Learned counsel for the plaintiff states that the defendant has failed to handover vacant, peaceful and physical possession of the 'tenanted property' to the plaintiff after the termination of the tenancy. He also states that the defendant is liable to pay damages/mesne profit for the unauthorised use and occupation of the 'tenanted property'.

8. Vide order dated 5th August, 2016, the following issues were framed:

" i) Whether the suit of the Plaintiff is not maintainable in

view of an oral family settlement, as alleged by the Defendant? OPD

ii) Whether the suit of the Plaintiff has not been properly valued for the purposes of court fees? OPD

iii) Whether the suit is bad for non-joinder of tenant, who is stated to be in possession of part of the suit property? OPD

iv) Whether first floor portion of the suit property has been constructed by the Defendant from his own earnings? OPP

v) Whether the Plaintiff is entitled to decree for partition, as prayed? OPP

vi) Whether the Plaintiff is entitled for possession, as prayed? OPP

vii) Whether the Plaintiff is entitled to a decree for rendition of account, as prayed? OPP

viii) Whether the Plaintiff is entitled to relief of permanent injunction, as prayed? OPP

ix) Whether the Plaintiff is entitled to arrears of damages/mesne profits, if so, at what rate and for what period? OPP

x) Whether the Plaintiff is entitled to claim interest. If so, at what rate and for what period? OPP

xi) Relief."

9. Since none had appeared on behalf of the defendant, the right of the

defendant to lead evidence was closed on 1st May, 2018 and vide order dated 9th August, 2018, the defendant was proceeded ex-parte. ISSUE Nos.(i), (ii), (iii) and (iv)

10. The defendant raised the defence that the suit property was partitioned between the parties vide an oral family settlement. The plaintiff has denied the existence of any oral family settlement. The onus to prove the same was placed on the defendant

11. Since the defendant failed to appear before this court, the right of the defendant to lead evidence was closed on 1st May, 2018 and he was proceeded ex-parte on 9th August, 2018. The defendant has only produced his examination-in-chief. It is settled law that an affidavit is not evidence within Section 3 of The Evidence Act, 1972. Filing of an affidavit of one's own statement in one's own favour, cannot be regarded as sufficient evidence for any court. Where the deponent is available for cross- examination, an opportunity has to be given to the other side to cross examine him. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross examination (See Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2003) 4 SCC 465). Therefore, the defendant has failed to prove the oral family settlement and has failed to discharge the onus cast on him. ISSUE Nos.(v),(vi),(vii),(viii)

12. The plaintiff has filed his evidence by way of his affidavit stating the the father of the plaintiff and the defendant was the owner of the suit property and had died intestate on 30th July, 2001. He stated that the defendant had refused to partition the property despite repeated requests. He

further stated that the defendant had admitted in his written statement that he had given the property on rent and the plaintiff had no knowledge regarding the same.

13. The PW1 has proved the sale deed dated 10th May, 1963 executed in favour of the father of the plaintiff and the defendant, as Ex.PW1/1 and the death certificate of the father of the plaintiff and the defendant dated 30 th July, 2001 as Ex.PW1/3. PW1 has also proved the petition filed by the parties under Section 278 of the Indian Succession Act before the Court of District Judge, West Delhi, District Courts Tis Hazari, as Ex.PW1/5.

14. The plaintiff has proved that the suit property was owned by the father of the parties who died intestate and the plaintiff and the defendant are his only legal heirs. Moreover since the defendant has failed to prove existence of any oral family settlement, this Court is of the view that the plaintiff is entitled to the reliefs in Issue Nos. (v), (vi), (vii) and (viii).

15. Consequently, a preliminary decree is passed declaring the plaintiff and the defendant to be joint co-owners to the extent of 50% of the suit property bearing No. 32/54 West Patel Nagar, Delhi.

16. The parties are given eight weeks to partition the property by metes and bounds. The reliefs sought with regards to arrears of damages/mesne profits and interest, if any, shall be considered subsequently. Registry is directed to prepare a decree sheet accordingly.

17. List before the court on 17th January, 2019.

MANMOHAN, J OCTOBER 31, 2018 sp