Mohinder Singh vs Om Prakash Gahlot & Ors
2019 Latest Caselaw 2099 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                      Date of decision: 22nd April, 2019.
+      CS(OS) 564/2016, IA No.5347/2019 (of D-2(III) for serving
       interrogatories on D-3&4) & IA No.5348/2019 (of D-2(III) for
       framing additional issue)
       MOHINDER SINGH                                      ..... Plaintiff
                   Through:            Mr. N.S. Dalal & Mr. Amit Rana,
                                       Advs.

                                    Versus

    OM PRAKASH GAHLOT & ORS                     ..... Defendants
                  Through: Mr. Dilip Singh, Adv. for D-1.
                           Mr. Ashok Kumar Gahaloth, Adv. for
                           D-2(III).
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

The plaintiff has instituted this suit against i) Sh. Om Prakash Gahlot;

ii) Sh. Prem Singh Gahlot through legal heirs viz. a) Smt. Rajo, b) Sh. Sunil,

c) Sh. Sushil, d) Sh. Satish, and, e) Sh. Sanjay; iii) Sh. Sat Narain, and iv) Sh. Bir Singh, for (I) partition of property bearing Khasra No.28/7 min (1-

9), 12 min (3-7), 12/2 (0-5), 13 min south (3-11), 14 (5-3), 18 (4-4), 19 (4-

4), 195/2 min (0-2 ½) total measuring 21-7 Bighas approx. (Excluding 920 sq. yards out of 22-5 ½ Bighas as shown in Red Colour in the site plan) situated in the revenue estate of village Kakrola, New Delhi; (II) apportionment of the amount lying in the saving bank account No.20383359134 in the joint names of Sat Narain and Prem Singh maintained with Allahabad Bank, Kakrola Housing Colony, New Delhi having branch Code 2233, and, (III) permanent injunction restraining the defendants from dealing with the suit properties.

2. The suit came up first before this Court on 7 th November, 2016 when, while entertaining the same and issuing summons / notice thereof, vide ex parte order status quo qua title and possession was directed to be maintained with respect to the suit property.

3. The written statements have been filed by, (a) defendant no.1 Om Prakash Gahlot; (b) Sunil, Satish and Sanjay being the three sons of defendant no.2 Prem Singh Gahlot; and, (c) Sushil, another son of defendant no.2 Prem Singh Gahlot. No written statement has been filed on behalf of defendants no.3 and 4 though recorded in the order dated 11th January, 2017 to have been served on 3rd January, 2017. The counsel, who till then was appearing for defendant no.1 Om Prakash Gahlot however on 2 nd February, 2018 stated that he was appearing also for defendants no.3 &4. However, Mr. Anil Gahlot, Advocate who on 2nd February, 2018 had stated so today states that though he is an advocate but is represented through Mr. Dilip Singh, Advocate and Mr. Dilip Singh, Advocate states that he is not representing the defendants no.3 and 4. However, the counsel for the plaintiff today states that defendant no.3 Sat Narain is present in Court and points out to a gentleman who on asking has furnished his proof of identify and the Court Master confirms that the person present is defendant no.3 Sat Narain. A copy of the Aadhaar Card of defendant no.3 is kept on record and the original returned. The defendant no.3 states he represents defendant no.4 Bir Singh also. The counsel for the plaintiff also states that defendants no.3 and 4 are brothers of the plaintiff.

4. On 2nd February, 2018, inter alia the following order was passed:

2. The suit is ripe for framing of issues.

3. The counsel for the defendant No.1 and who states that he is today also appearing for defendants No.3&4 Sat Narain and Bir Singh, the counsel for defendant No.2(II),(IV)&(V) and the counsel for the defendant No.2(III) appear.

4. The counsel for the plaintiff states that the written statement of none of the defendants discloses any defence requiring issues to be framed and a preliminary decree for partition can be passed forthwith.

5. It is stated that according to the plaintiff, the share of the plaintiff and defendants No.3&4 in the property together is 50% and the share of the defendants No.1&2 together is 50%.

6. The counsel for the plaintiff, on enquiry, also states that the land subject matter of the suit, though earlier agricultural, has been urbanised and is partly constructed and within the boundary wall.

7. The counsel for the defendant No.2(II),(IV)&(V) has contended (i) that in the written statement of defendant No.2(III), it has been pleaded that the land aforesaid has already been partitioned in the year 2003; (ii) that the plaintiff has already sold remaining land (but on enquiry states that the said land has not been made part of the property of which partition has been claimed); (iii) that there are a large number of other joint properties also (but for partition of which also no relief has been sought in the written statement or by way of counter claim).

8. The counsel for the defendants No.1,3&4 are agreeable to a preliminary decree for partition being passed immediately.

9. However the counsel for defendant No.2(II),(IV)&(V) states that though in the written statement of defendant No.2(II),(IV)&(V) this defence has not been taken, it has been taken in the written statement of defendant No.2(III) and he has made arguments on behalf of counsel for the defendant No.2(III).

10. Otherwise, it is not in dispute that the shares of the plaintiff and defendants No.3&4 together is 50% and of defendants No.1&2 together is 50%.

11. The counsel for the plaintiff has argued that the defence of defendant No.2(III) of oral partition is palpably false. It is argued that the sale proceeds of the land sold in the year 2003 are till date in a joint account.

12. Be that as it may, the same can still not lead to a decree under Order XV of the Code of Civil Procedure, 1908 being passed and an issue will have to be framed.

13. As far as the pleas of defendant No.2(III) of other properties and for partition of the sale proceeds of the land earlier sold are concerned, the counsel for the defendant No.2(II),(IV)&(V) arguing for defendant No.2(III) states that no claim for partition of the said properties has been made. If the defendant No.2(III) even has not made such a claim, no issues are required to be framed to the said effect.

14. In the aforesaid state of affairs, the following issues are framed in the suit:

(I) Whether the property subject matter of the suit has already been partitioned in the year 2003 and if so, in what manner, and which portion has fallen to share of which of the parties and whether such a partition, if any has been effected and implemented and if so, to what effect? OPD-

        2(III)

        (II)      Relief.

        15.       No other issue arises or is pressed.",

and the parties relegated to recording of evidence on commission, initially at the cost of the plaintiff and subject to final order as to costs of the suit.

5. The defendant no.2(III) Sushil thereafter filed IA No.4226/2018 for amendment of the written statement and to make a counterclaim in the suit. The said application was dismissed vide order dated 11 th May, 2018 and FAO(OS) No.111/2018 found to have been preferred thereagainst by the

defendant no.2(III) Sushil is also found to have been dismissed by the Division Bench of this Court vide order dated 14th January, 2019.

6. The recording of evidence has been completed and the final arguments have been heard in the suit.

7. Having gone through the affidavit by way of examination-in-chief of the defendant no.2(III), on whom the onus of the only issue in this suit was, as well as his cross-examination and being unable to find the defendant no.2 (III) to have proved the sole issue of which onus was on defendant no.2(III), I have enquired so from the counsel for the defendant no.2(III) Sushil who is the only contesting defendant.

8. The counsel for the defendant no.2(III) Sushil though fairly admits but wants to argue the matter beyond the issues and which cannot be permitted.

9. It is also found that not only the defendant no.2(III) Sushil in his affidavit by way of examination-in-chief has deposed beyond the issues framed but has also been cross-examined at length by the counsel for the plaintiff on the aspects which are not in issue. However all counsels agree that findings are required to be returned only on the issue framed and not on other aspects.

10. The counsel for the defendant no.2(III) is unable to state as to how the defendant no.2(III) Sushil has discharged the onus of the sole issue save for making a bare statement. Nothing has come on record to indicate that the property, for partition of which this suit has been filed, was amicably/ mutually partitioned in the year 2003. On the contrary, the defendant no.2(III) in his cross-examination is found to have admitted that the

property in the revenue records is in the joint names of the parties and the bank account aforesaid in which sale proceeds of a part of the property are deposited and of which apportionment is also claimed, is also in the joint names of the defendants no.2 and 3 representing the two branches of the family.

11. Else, it is not in dispute that the share of the plaintiff Mohinder Singh, defendant no.3 Sat Narain and defendant no.4 Bir Singh, together in the property is 50% and the share of the defendant no.1 Om Prakash Gahlot and defendant no.2 Prem Singh Gahlot through his legal representatives, together is 50%.

12. The counsel for the plaintiff who also represents defendants no.3 and 4 states they do not want inter se partition.

13. The counsel for the defendant no.1 however states that defendant no.1 wants partition with defendant no.2.

14. The counsel for the defendant no.1 as well as the counsel for the defendant no.2(III) Sushil state that the share of defendant no.1 out of 50% is 25% and the share of the legal heirs of defendant no.2 together is 25%.

15. None appears for the other legal heirs of defendant no.2.

16. A preliminary decree for partition is thus passed, declaring the shares in the property aforesaid as under:

 Sl.                Description of the parties                   Share of the
 No.                                                               Parties
  (i)     Plaintiff Mohinder Singh, defendant no.3 Sat               50%
          Narain and Defendant no.4 Bir Singh



   (ii)     Defendant no.1 Om Prakash Gahlot                       25%
 (iii)     Defendant no.2 Prem Singh Gahlot through               25%
           heirs Smt. Rajo, Sunil, Sushil, Satish and
           Sanjay.

17. Preliminary decree for partition be drawn up.

18. The counsels state that the immovable property as well as the monies in the bank account are to be partitioned as per shares in the preliminary decree for partition.

19. The counsels, on enquiry state that out of the amount in bank account No.20383359134 maintained with Allahabad Bank, Kakrola Housing Colony, New Delhi, some FDRs have also been made and the total amount in the account No.20383359134 and in the FDRs made thereout of is about Rs.29 lacs.

20. A direction is accordingly issued to Allahabad Bank, Kakrola Housing Colony, New Delhi having branch Code No.2233 to distribute the monies lying in saving bank account No.20383359134 and also in the FDRs made thereout of amongst the parties as per their shares aforesaid.

21. The plaintiff alone has incurred an amount of Rs.1.25 lacs on the commission issued for recording evidence. The defendant no.2(III) Sushil, owing to objection of whom alone trial was necessitated, is held liable to reimburse the said costs of commission to the plaintiff.

22. Accordingly, out of the monies due to the defendant no.2(III) Sushil from the aforesaid bank account / FDRs, a sum of Rs.1.25 lacs be deducted and added to the share of the plaintiff Mohinder Singh.

23. The counsels, on enquiry state that there is a possibility of partition of the immovable property by metes and bounds.

24. It is deemed appropriate to grant an opportunity to the parties to amicably present a site plan of the property as per the location and the proposal if any, for division thereof. If the parties are unable to amicably present such a proposal, it shall be deemed that division by metes and bounds is not possible and a decree for partition of sale of the property and distribution of sale proceeds as per shares declared in the preliminary decree for partition shall be passed.

25. At this stage, it seems that parties are unable to settle amongst themselves. Commission is issued to Mr. Amitabh Narayan, Advocate (Mob.9818200333) to visit the premises and to draw up a site plan of the property aforesaid as per location and to, in consultation with such of the parties who may be forthcoming, present proposals for division of the property by metes and bounds as per their shares aforesaid.

26. The fee of the commissioner, besides out of pocket expenses, is fixed at Rs.1.50 lacs of which 50% is to be borne by the plaintiff Mohinder Singh and defendants no.3 and 4 Sat Narain & Bir Singh, 25% is to be borne by defendant no.2(III) Sushil and 25% is to be borne by defendant no.1 Om Prakash Gahlot.

27. List on 20th May, 2019.

RAJIV SAHAI ENDLAW, J.

APRIL 22, 2019 'gsr'