IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR PARTITION

CS(OS) No.1497/2006

Date of hearing: 25.09.2007

Date of Decision: 28.09.2007

SHRI SANTOKH SINGH ....... .... ... PLAINTIFF

Through: Mr.R.S. Chhabra, Mr.Sanjay Chhabra and

Mr.Alok Agarwal, Advocates

- VERSUS –

-

SMT. SURJEET KAUR and ORS. . ... ..... ... DEFENDANTS

Through: Mr.Dhananjay Pandey and Mr.Arvind

Pandey, Advocates for D-1 to 3.

Mr.Kunal Sinha, Advocate for

defendant no.4.

SANJAY KISHAN KAUL, J.

1.The plaintiff, defendant no.4 and late Shri Anup Singh are brothers and sons of

late Shri Hazara Singh. Defendants no.1 to 3 are the legal heirs of late Shri Anup

Singh. The plaintiff has filed a suit for partition in respect of residential house

situated at D-81, Naraina Residential Scheme, New Delhi (hereinafter referred to

as the suit property).

2.It is the case of the plaintiff that the suit property was purchased by the plaintiff,

late Shri Anup Singh, and his two brothers who became joint owners in equal share

in the suit property in pursuance to a perpetual lease deed dated 5.3.1970, executed

by the Land and Housing Department. A house was constructed in 1973 on the

aforesaid land but since all the brothers were married and there were discord and

disagreement amongst the women member of the family, the plaintiff decided to

shift to another accommodation at C-128, Naraina Industrial Area, New Delhi, a

property jointly owned by the brothers.

3.The plaintiff states that he along with his two brothers were also running the

business under the name and style of M/s Prakash Radio from C-128, Phase-1,

Industrial Area, Naraina Vihar, New Delhi-28, which was a plot allotted in 1970 as

an alternative to plot No.55/6 situated at South Patel Nagar, New Delhi, from

where the brothers were earlier running their business under the name and style of

M/s Prakash Radio. A perpetual lease deed is also stated to have been executed in

this behalf on 24.2.1976.

4.The plaint states that subsequently disputes arose between the three brothers with

the result that the plaintiff filed a suit for permanent injunction restraining late Shri

Anup Singh and defendant no.4 from creating any hindrance, obstruction in the

peaceful use and enjoyment and possession of the plaintiff from his portion in

respect of the property situated at C-128, Phase-1, Industrial Area, Naraina Vihar,

New Delhi-28. The suit was filed on 7.8.2000. The defendants in the suit admitted

that the plaintiff was a partner in the firm and joint owner of the property and was,

thus, entitled to ownership of 25% of the plot by virtue of the partnership

agreement. This was in pursuance to a partnership deed between the three brothers

dated 3.4.1963 wherein the plaintiff was entitled to 25% of the profits of the said

partnership concern. The plaintiff claims that the said percentage was only in

respect of the profits and losses and did not pertain to the division of immovable

property and that the plaintiff has filed an appropriate arbitration application for

decision on the differences and disputes between the partners.

5.The plaintiff states that during the filing of the said proceedings, it came to the

knowledge of the plaintiff that the defendants were actively negotiating for sale of

the suit premises and it is in view thereof that a suit for permanent injunction

No.211/2001 was filed for restraining the defendants from selling, parting,

alienating any part or portion of the suit property. The only defence raised by the

defendants was that the plaintiff had been given an alternative property at Hari

Nagar in exchange of his share in suit premises, but the plaintiff pointed out in the

replication that the Hari Nagar property stood in the name of Smt. Kiranjit Kaur. It

is in these circumstances that the defendants had appeared before the court on

3.8.2001 and had given a statement that they had no interest in alienating, selling

any part or portion of the suit property, whereby the suit was disposed of in terms

of the said undertaking.

6.The plaintiff claims that the endeavour made to settle the disputes has not

succeeded and, thus, the plaintiff has been left with no option but to file the present

suit for partition. The plaintiff is also claiming mesne profits at Rs.5,000/- per day

on account of the defendants utilizing the suit premises to the exclusion of the

plaintiff.

7.A common written statement was filed by all the defendants whereby a plea was

raised that the present suit was not maintainable in view of the provisions of Order

2 Rule 2 CPC. It is claimed that the property has been purchased from the hard

earned money of late Shri Anup Singh, husband of defendant no.1 and father of

defendants no.2 and 3. The plaintiff has neither contributed anything to the suit

property nor paid the lease money. The claim of the plaintiff in the suit property is

stated to have been settled long time back in the year 1976 when the plaintiff

shifted to the firm property at C-128, Naraina Industrial Area, New Delhi and

thereafter to the Hari Nagar property which is alleged to have been acquired from

the funds given by late Shri Anup Singh.

8.The defendants claim that the suit is barred by the Law of Limitation since the

plaintiff never claimed his right in the suit property and that the plaintiff has

become greedy on account of increase in the value of the property.

9.On the pleadings of the parties, the following issues were framed on 28.5.2007:

“1) Whether the suit is barred by time” (OPD) 2) Whether the plaintiff is entitled

to mesne profit @Rs.5,000/- per day or any other amount in respect of the suit

property from the date of the suit till vacation of the property” (OPP) 3) Relief”

10.The request of the learned counsel for the defendants for framing of an issue

based on the bar of Order 2 Rule 2 CPC was declined for the reason that the earlier

suit was filed only for permanent injunction against sale of the suit property and in

view of the statement of the defendants that they were not selling the property, the

suit was disposed of. Thus, such an injunctive suit would not prevent the plaintiff

from claiming the substantive relief of partition.

11.The defendants moved an application seeking amendment of the written

statement by incorporating preliminary objections to the effect that a settlement

between the parties had been arrived at long time back in 1976 and the plaintiff

had been given consideration in lieu thereof. An allegation was also made about

concealment of relevant facts based on the plea that the terms of the lease cannot

be deviated from. The application was dismissed on 25.7.2007 on account of the

fact that the amendment did not fall within the parameter of the proviso of Order 2

Rule 17 CPC since the issues had been framed and parties were directed to file

affidavits by way of evidence.

12.The plaintiff has filed his own affidavit as PW1 while defendant no.4 appeared

himself in support of his case as DW4. Defendants no.1 and 2 filed their affidavits

but failed to appear for their cross-examination and their evidence was closed.

13.On hearing learned counsel for the parties and perusal of the pleadings, it is

apparent that the suit property was jointly owned by the three brothers.

14.The plaintiff appeared in the witness box as PW-1 and proved his affidavit by

way of examination-in-chief as PW-1/A. The said witness has affirmed to what is

stated in the plaint. The witness has also proved as Exhibit PW-1/1 the perpetual

lease deed dated 5.3.1970 in respect of the suit premises. The perpetual lease deed

is executed in favour of late Shri Anup Singh, the plaintiff and defendant No.4.

The plaintiff has also stated that the suit premises is built up on a 500 sq.yds. plot

and on an enquiry from a local property dealer, it has come to light that the same

can fetch a rent of Rs.30,000.00 per month. The plaintiff has claimed 1/3rd share in

the suit premises and thus claims Rs.10,000.00 per month from the defendants.

15.In the cross-examination of the said witness, nothing material has come out.

The witness has affirmed that he was married in the suit premises. There is no

cross-examination on the issue of mesne profits/damages.

16.The affidavits of evidence by way of examination-in-chief were filed by

defendants 1 to 3 but the said defendants failed to appear in the witness box for

cross-examination, thus their evidence was struck off.

17.Defendant No.4 appeared in the witness box as DW-4 and proved his affidavit

of examination-in-chief as DW-4/A. The witness has stated that the perpetual lease

deed in respect of the suit premises was executed in favour of all three brothers but

that a part of the consideration was paid out of M/s. Parkash Radio and balance

from their own resources. The suit premises is stated to have been constructed by

all the three brothers. The said witness has also stated that for family reasons, the

plaintiff and his family shifted out in 1975-76 but the business carried on till 1996.

The said witness stated that late Shri Anup Singh, being the elder brother

maintained an unequal share in the partnership business in his favour though all the

brothers were putting in equal efforts. The disputes stated to have arisen in the year

2000 when Shri Anup Singh along with his sons attempted to create third party

interest in the suit premises. Defendant No.4 claims that even he was asked to

vacate the premises in question at that stage on the assurance of an alternative

premises but he refused to do so. Defendant No.4 also alleges that there was

misbehaviour on the part of defendants 2 and 3, being the children of Shri Anup

Singh and since they started refuting the share and title of the plaintiff in the year

2006, the plaintiff had to file a suit. The statement, thus, more or less supports the

plaintiff. In the cross-examination, the witness has also admitted the proceedings in

the earlier suit filed by the plaintiff. The certified copies of the statements have

been proved as Exhibit DW-4/X/1 and of the order sheet as DW-4/X/2.

18.It may be noticed that in view of the pleadings and the statements made in the

earlier proceedings by the three brothers, it was really not in dispute that the

property was owned by the three brothers. The perpetual lease deed (Exhibit PW-

1/1) being the document of title was executed in favour of the three brothers. No

oral testimony contrary to the documents would be admissible under Section 94 of

the Indian Evidence Act, 1872. It is in view thereof that issues were framed on

28.5.2007, limited to the aspect of the claim of bar of time and mesne profits. No

issue was claimed in respect of any dispute about the title.

19.On consideration of the pleadings and the evidence aforesaid, the findings on

the issues are as under: Issue No.1: Whether the suit is barred by time” (OPD)

20.It is the case of defendants 1 to 3 that the plaintiff left the suit premises in the

year 1976 and thus the suit filed 30 years hence would not be maintainable. It is

further pleaded that even the partnership ceased to exist in 1996.

21.I find no merit in the aforesaid plea of the learned counsel for the said

defendants. The property is jointly owned, the parties were in joint business till

1996 though the plaintiff with his family started residing separately since 1976.

The plaintiff never gave up his rights in the suit property. The plaintiff, in fact,

asserted the rights when the disputes arose between the parties. In those

proceedings, the predecessor-in-interest of defendants 1 to 3, appeared, being Shri

Anup Singh and made the statement that he had no intention to sell, part with or

alienate any part or portion of the suit premises “without the consent of the

plaintiff”. The suit was disposed of accordingly. Thus, the predecessor-in-interest

of defendants 1 to 3 himself as on the date of the statement of 3.8.2001 accepted

that plaintiff had a share in the suit property. If the plaintiff resides elsewhere with

his family on account of family differences that does not preclude the plaintiff

from claiming his share in the suit premises.

22.The issue is accordingly answered. Issue No.2: Whether the plaintiff is entitled

to mesne profit @ 5,000/- per day or any other amount in respect of the suit

property from the date of the suit till vacation of the property” (OPP)

23.The only other issue is in respect of the claim for mesne profit/damages. The

plaintiff has led evidence only by filing his own affidavit that on enquiry, it was

found that the rental was Rs.30,000.00 per month and thus the plaintiff should get

a share of Rs.10,000.00 per month. No doubt that there has been no cross-

examination by the defendants on this aspect but I do not consider it appropriate to

accept a mere statement in this behalf without any further material being placed on

record. Further, if a preliminary decree is passed, an enquiry can always be made

about the rate of damages/mesne profit but such an enquiry should be for a period

of three years prior to the date of the institution of the suit and thereafter, the suit

having been instituted on 19.7.2006. Issue No.3 Relief.

24.A preliminary decree is passed for partition of the suit premises bearing No.D-

81, Naraina Vihar, New Delhi-110028 declaring that the plaintiff has 1/3rd share,

defendant No.4 has 1/3rd share and defendants 1 to 3 collectively have 1/3rd share.

The defendants are also liable to pay mesne profit to the plaintiff on the enquiry to

be carried out for the period from 20.7.2003 till the defendants remain in

possession.

25.Mr. Vikram Nandrajog, Advocate, 224, Lawyers' Chamber, Delhi High Court,

New Delhi-110003 (Phone No.23385295) is appointed as the Local Commissioner

to suggest the mode of partition and for determining the mesne profits payable for

the aforesaid period.

26.The fee of the Local Commissioner shall be Rs.25,000.00 apart from out of

pocket expenses to be shared by the parties in proportion of their shares in the suit

premises.

27.List on 3.12.2007 for report of the Local Commissioner.

Sd/-

SANJAY KISHAN KAUL, J.