Jai Parkash vs Risal Singh and Others

V.K. Jain, J.—The case of the plaintiff is that late Shri Babban, grandfather of plaintiffs and defendants 1 to 5 and great grandfather of defendants 6 to 8 and deceased Shri Pratap, was the owner and in possession of land measuring 1000 sq. yards, situated in village Burari Garhi, Delhi. Defendants 9 to 16 are the legal heirs of deceased Shri Pratap. The pedigree table would show that Babban had two sons, namely, Neki Ram and Phool Singh. Neki Ram died leaving behind three sons, namely, defendant No. 1 Risal Singh, defendant No. 2 Om Prakash and the plaintiff Jai Prakash. Phool Singh died leaving three sons behind, namely, defendant No. 3 Ram Niwas, defendant No. 4 Shri Niwas and defendant No. 5 Surinder. Defendants 6 to 8 are the sons of defendant No. 1 Risal Singh. Shri Pratap was the fourth son of defendant No. 4. Risal Singh died leaving behind defendants No. 9 to 16 as his legal heirs. The case of the plaintiff is that he along with defendants 1 to 5 are entitled to 1/6th share each in the suit property. The plaintiff claims to have served a legal notice dated 02.04.2009 upon the defendants seeking partition. It is alleged that the service of notice was avoided by the defendants. The plaintiff is now seeking partition of the suit property and also an injunction, restraining the defendants from selling, transferring, alienating or otherwise parting with the same.

The defendants were proceeded ex parte vide order dated 25.04.2011, since they did not appear, despite service upon them. The plaintiff has filed affidavit by way of evidence in which he has supported on oath the case set out in the plaint and has stated that late Shri Babban was the owner in possession of land measuring 1000 square yards in village Burari Garhi. He has further stated that Shri Babban was his grandfather and he along with defendants 1 to 5 is entitled to 1/6th share each in the suit property. He has also proved in his deposition the documents relied upon by him in support of his case.

It is alleged in para 1 of the amended plaint that the suit property is situated in old Abadi Deh (Lal Dora) of village Burari Garhi. The Learned Counsel for the plaintiff has drawn my attention to Ex. PW-1/1 which is the certified copy of the plaint in a civil suit filed by Attar Singh and others against the plaintiff and defendants 1 to 8. Deceased Shri Pratap, predecessor-in-interest of defendants 9 to 16 was also a party to the suit. It was alleged in para 1 of the plaint of that suit that the plaintiffs in that suit, i.e., Attar Singh and others were the absolute owners of a house measuring 1000 sq. yards, situated in the old deh of village Burari (Garhi), Delhi. It is thus confirmed that the property in question is situated in the Abadi of Village Burari Garhi, Delhi. The Learned Counsel for the plaintiff states that the plaintiff despite efforts has not been able to lay hands on any revenue record with respect to Khasra No. 146 (New) of Village Burari Garhi of which the suit land forms a part. Ex. PW-1/2 is the certified copy of the written statement filed in that suit. It is stated in para 1 of the written statement that the property in dispute was owned and possessed by the defendants in that suit who were in its actual physical possession. It was also stated that the property was the ancestral property of the defendants in that suit. Thus, this written statement contains an admission on the part of the defendants 1 to 8 and predecessor-in-interest of defendants 9 to 16 to the effect that the suit property was jointly owned and possessed by them. The suit filed by Attar Singh was dismissed vide judgment, copy of which is Ex. PW-1/3. The appeal filed by Attar Singh and others against that judgment was dismissed in default vide order dated 19.12.2000, certified copy of which is Ex. PW-1/4.

I see no reason to disbelieve the unrebutted deposition of the plaintiff. His deposition, coupled with the admission made by the defendants in the written statement filed in the suit instituted by Attar Singh and others, clearly shows that the plaintiff is one of the co-owners in possession of the suit property. Since the property was owned by late Shri Babban, who had two sons, namely, Nekhi Ram and Phool Singh and Neki Ram had three sons, namely, defendant No. 1 Risal Singh, defendant No. 2 Om Prakash and the plaintiff Jai Prakash, whereas Phool Singh had three sons, namely, defendant No. 3 Ram Niwas, defendant No. 4 Shri Niwas and defendant No. 5 Surinder, the plaintiff and defendants 1 to 5 have 1/6th share each in the aforesaid property. The rights of defendants 6 to 16, if any, would be in the share which falls to defendant No. 1 Risal Singh. For the reasons stated hereinabove, a preliminary decree for partition of the suit property is hereby passed, declaring that the plaintiff and defendants 1 to 5 have 1/5th share each in the suit property.

Mr. Amol Sharma, Advocate, who is present in the Court, is appointed as Local Commissioner to visit the suit property and suggest its partition by metes and bounds, in case it is capable of such a partition. He would be entitled to take the assistance of an architect for giving his report. His fee is fixed at Rs. 50,000/- which shall be paid by the plaintiff. If any architect is engaged by him, the fee of that architect would also be paid by the plaintiff. The Local Commissioner would submit is report within 08 weeks.

Renotify on 14.01.2013, awaiting the report of the Local Commissioner. Dasti.