Mohan Singh (Died) vs Mahendra Singh and Others

M.L. Mehta, J.—This is a suit for partition of properties and recovery of possession of one room on the ground floor of premises bearing No. B-389, Gali No. 4, Majlis Park, Delhi. The present suit was initially filed by Mohan Singh against his brothers Mahendra Singh, Sujan Singh, Arjun Singh and sister Shashi Bala (defendants No. 1 to 4 respectively). The defendant No. 2 Sujan Singh died during the pendency of the suit and his wife Sarbansh Kaur was impleaded in his place. The defendant Arjun Singh also died and was substituted by his wife and sons. The case of the plaintiff was that three properties bearing No. B-389, 290 A-Block and 291 A-Block, all in Majlis Park, Delhi were owned and purchased by their father in the name of their mother Motia Devi. Their mother Motia Devi died in the year 1982 leaving behind her husband, the plaintiff and the defendants as her legal heirs. Their father also expired in the year 1985 and thus, after his death, the plaintiff and the defendants became the co-owners of the aforesaid properties. The case of the plaintiff was that his brother Arjun Singh took his share and relinquished his rights in his favour and that of the defendants No. 1 and 2. Likewise, his sister defendant No. 4 gave oral consent and relinquished all her rights in his favour and defendants No. 1 and 2. According to him, in this way, he (plaintiff) and defendants No. 1 and 2 became the absolute owners of the aforesaid properties. The defendant No. 2 Sujan Singh died leaving behind his wife, sons and daughters as his legal heirs. It was his case that he made three storyed building at his own costs on plot bearing No. B-389 and by mutual consent, gave to defendants No. 1 and 2 second and first floors for their use and occupation while he retained the possession of the ground floor. The terrace was for the common use of all the three. It was averred that he allowed the defendant no. 1 to use one room on the ground floor for entertaining his guests temporarily, but, he found defendant No. 1 having unauthorizedly constructed some portion on the terrace floor when he was posted at Calcutta. It was also alleged that the defendant No. 1 had refused to vacate the ground floor room. It is in this background that he has sought partition of the aforesaid suit properties claiming one-third share for himself and one-third as that of the defendants No. 1 and 2. He also sought possession of one room on the ground floor allegedly in possession of defendant No. 1 unauthorizedly. Further, the prayer is also made seeking permanent injunction restraining the defendant No. 1 from carrying out any construction in the suit properties or creating third party interest therein. The defendants No. 1, 2 and 4 filed their common written statement. They all disputed the case as set up by the plaintiff. They had raised the preliminary objection stating that the suit is bad for non-joinder of necessary parties as all the legal heirs of deceased Sujan Singh (defendant No. 2) are not impleaded. The jurisdiction of this court was also disputed as value of the suit property was stated to be below Rs. 20 lakhs. On merits, their case was that the properties No. B-389 and 291 were purchased by the defendant No. 1 from his own funds and it is he, who is the owner of these properties. The property No. 290 was stated to have been already sold by defendant No. 1. It was their case that the plaintiff had taken his shares and shifted to Calcutta in 1973-74 and has no right in the suit properties. It was all denied that the defendant No. 3 Arjun Singh and defendant No. 4 Shashi Bala relinquished their rights and shares in the properties in the manner as alleged by the plaintiff. It was their case that the defendants No. 2 and 4 have exchanged their rights in property No. 290 A-Block with the rights of the plaintiff in B-389 and by this oral understanding, the second floor was given to the defendant No. 1 and the ground floor to the defendant No. 4. It was also averred that the plaintiff has occupied the major portion of ground floor of B-389 taking advantage of the absence of defendant No. 4 and for which, she has filed a suit for possession and injunction against him. The case was tried on the following issues:

(1) Is the suit barred on account of non-joinder? OPD.

(2) Does the defendants prove that the plaintiff is disentitled to claim partition on account of a previous division in the family in respect of the properties mentioned in para 12 of the written statement or for any other reason? OPD.

(3) Is the plaintiff entitled to decree for partition in respect of the suit property described in Schedule-A? OPP.

(4) Is the plaintiff entitled to decree for possession of the room situated at ground floor of B-389, Gali No. 4, Near Gurudwara Majlis Park, Delhi, as claimed in Schedule-B to the suit? OPP;

(5) Relief.

The plaintiff Praveen Kumar Arora S/o deceased Mohan Singh was the only witness examined by the plaintiffs. He led his evidence by way of affidavit (Ex. PW 1/A). The defendant No. 1 Mahendra Singh examined himself as DW 1 and led his evidence by way of affidavit.

I have heard learned counsel for the parties and perused the records. Discussion and findings on the issues are as follows:

ISSUE NO. 1:

On the defendants having taken objections that the LRs of the deceased No. 2 Sujan Singh are not impleaded, this issue was framed with the onus to prove the same upon the defendants. There is no dispute that Sujan Singh died leaving behind his wife, sons and daughters. In the original plaint, it was only Sarbansh Kaur, W/o late Sujan Singh, who was impleaded as defendant No. 2. However, on the objections having been taken by the defendants, an application under Order 1 Rule 10 CPC was filed by the plaintiff for impleading the other LRs of deceased Sujan Singh. This application was allowed on 19.01.2005. However, it is seen from the record that despite several opportunities taken by the plaintiffs, neither any step was taken for service of these newly added LRs of deceased Sujan Singh, nor any amended memo of parties was filed. The situation remains the same even today i.e. eight years after passing of the said order.

It was the plaintiff''s own case that Sujan Singh had died on 21.11.1977 leaving behind his wife, sons and daughters as his legal heirs, and who had inherited the shares of Sujan Singh. That being so, the sons and daughters of deceased Sujan Singh being his legal heirs and having inherited his shares are undoubtedly necessary parties. The plaintiff deliberately having not joined them despite the order in this regard, the suit is apparently bad for their non-joinder, and is liable to be dismissed on this ground alone. The issue thus stands decided against the plaintiff and in favour of the defendants.

ISSUE NO. 2:

The onus of this issue was upon the defendants. In paragraph 12 of the written statement filed by the defendants No. 1, 2 and 4, they have averred that the plaintiff has taken his share in the properties and purchased the properties in Calcutta and Solan and thus, could not seek partition of the suit properties. The defendant No. 1 Mahendra Singh had examined himself as DW 1 whereas defendant No. 4 Shashi Bala, who has filed her affidavit of evidence, did not tender herself for cross examination. That being so, the only evidence that is led by the defendants is of the statement of DW 1 Mahendra Singh. He has only stated that an oral partition had taken place in the year 1968, and plaintiff Mohan Singh had taken his share and subsequently, settled in Calcutta. There is nothing on record to substantiate this bald statement of defendant No. 1 Mahendra Singh. This oral and vague statement in itself is not sufficient inasmuch the defendants themselves are not sure as to when the oral partition had taken place.

To say that it was around the year 1968, is vague to arrive at a conclusion. In any case, if such a partition had taken place as stated by DW 1 Mahendra Singh, the defendants might be in possession of some documents to substantiate the same.

DW 1 even did not remember as to whether he had shown any property in the income tax returns. He even did not know as to in whose name the property bearing No. 290 was purchased. Further, he also did not remember as to when the property No. 291 was purchased and as to whether he had mentioned about the sale of the same in his income tax returns. That being the type of evidence led by the defendants, they have failed to establish that the oral partition had taken place wherein the plaintiff had taken his share and settled and purchased the properties in Calcutta and Solan. This issue is accordingly decided against the defendants.

ISSUE NO. 3:

The onus of this issue was upon the plaintiff. The only documents which are placed on record are Ex. PW 1/1 to Ex. PW 1/3. Ex. PW 1/1 purports to be an agreement to sell of property No. 290 executed by Rakesh Gupta in favour of Motia Devi on 20.11.1981. Ex. PW 1/2 is the General Power of Attorney executed by Rakesh Gupta in favour of Jagan Nath, father of the parties. Ex. PW 1/3 is the site plan of the property No. B-389. From none of these documents, the title in the property No. 290 is transferred by Rakesh Gupta in favour of the mother or father of the parties. None of these documents are registered. Agreement to sell (Ex. PW 1/1) is only signed by Rakesh Gupta and not by Motia Devi. Thus, this agreement to sell, by any means, is no agreement at all in the eyes of law. Vide General Power of Attorney (Ex. PW 1/2), the father of the parties was only appointed as Attorney to manage, control and look after the affairs of property No. 290 on behalf of Rakesh Gupta. PW 1 stated to be not in possession of any document pertaining to property No. B-389 and 291 A-Block. He is also not aware if property No. 291 A-Block was purchased in the name of defendant No. 1. At one place, he stated that on verbal partition, premises No. 291 A-Block came to the share of defendant No. 1 and premises No. 290 to their shares. He also admitted having not filed any documents showing his father having constructed three storey building on property No. B-389. Further, he also admitted having not filed any document of relinquishment deed allegedly executed by defendant No. 3 in favour of his father. Then, he stated that he could not say in this regard that no such relinquishment deed was ever executed by the defendant No. 3. With regard to the plaintiff''s plea that defendant No. 4 had by oral consent relinquished her shares, he also stated he has no knowledge about this. It was suggested to him that his father had relinquished his shares in respect of all the suit properties at Delhi and shifted to Calcutta. The type of evidence led by PW 1 as noted above is not sufficient to conclude that the properties in question were owned by their mother or that, after her death, he along with his brothers and sister acquired the equal rights therein, and further that, those rights were subsisting to enable him to seek partition. The evidence led by the plaintiff is entirely insufficient to record a finding of his being entitled to any share in the properties. The issue is accordingly decided against the plaintiff.

ISSUE NO. 4:

The onus of this issue was upon the plaintiff. The plaintiff and defendant No. 1 have led oral evidence, one stating that a room on the ground floor was given to the defendant No. 1 temporarily for entertaining his guests and the other stating that the ground floor came in the share of defendant No. 4 in oral understanding with her and that since she was residing at Dehradun, he had permitted the plaintiff to have a room on the ground floor for his visits for treatment in Delhi. It is also stated by DW 1 Mahendra Singh that the defendant No. 4 Shashi Bala had already filed a suit for possession and injunction against the plaintiff in respect of the said portion of the ground floor of premises B-389. The evidence led by both the parties in this case is not only vague, but highly insufficient to arrive at any conclusion. The plaintiff has not been able to discharge the onus adequately. The issue in this regard is the subject matter of the suit that has been filed by the defendant No. 4 Shashi Bala against the plaintiff and which is sub-judice. Thus, no finding can be recorded on this issue because of lack of sufficient and cogent evidence in this case.

RELIEF:

In view of the above, the plaintiffs are not entitled to any relief. The suit merits dismissal and is hereby dismissed with no order as to costs.