IN THE COURT OF SH. [ENTITY], CIVIL JUDGE 6, WEST DISTRICT, TIS HAZARI COURTS, DELHI. [CASE NUMBER] 1. Sh. [ENTITY] S/o Sh. Mahinder Kumar, R/o 4228, Arya Pura, Subzi Mandi, Delhi7. 2. Sh. [ENTITY] S/o Sh. Mahinder Kumar, R/o D7, Satyawati Nagar, Ashok Vihar Phase III, Delhi52. Plaintiffs Versus 1. Sh. [ENTITY] (since deceased) represented by the following LRs. 1 (a) Smt. [ENTITY], W/o Late Sh. [ENTITY] 1 (b) Sh. [ENTITY], aged adult, S/o Late Sh. [ENTITY] 1 (c) Sh. Ashok Kumar, age adult grand S/o Late Sh. [ENTITY] [ENTITY] Vs [ENTITY] Page No.1of34 1 (d) Sh. [ENTITY], age adult grand S/o Late Sh. [ENTITY] 1 (e) Smt. [ENTITY], aged adult D/o Late Sh. [ENTITY] 1 (f) Smt. [ENTITY] W D/o Late Ram Kumar S/o Late Sh. [ENTITY] 1 (g) Smt. [ENTITY] D/o Late Sh. [ENTITY] 1 (h) Smt. [ENTITY] D/o Late Sh. [ENTITY] 1 (i) Smt. [ENTITY] D/o Late Sh. [ENTITY] 1 (j) Smt. [ENTITY] D/o Late Sh. [ENTITY] All LRs of Late Sh. [ENTITY] R/o H. No. 1, Village Kurani, Narela, Delhi110040 2. Sh. [ENTITY] [ENTITY] Vs [ENTITY] Page No.2of34 S/o Late Sh. [ENTITY], R/o H.No.6, Village Kurani, Narela, Delhi40. 3. Sh. [ENTITY] S/o Late Sh. [ENTITY], R/o H.No. H.P.1, Pitampura, Delhi34. 4. Sh. [ENTITY] S/o Late Sh. [ENTITY], R/o H.No. 4383, Arya Pura, Subzi Mandi, Delhi7. 5. [ENTITY] (since deceased) represented by following LRs a. Smt. [ENTITY] W/o Late Sh. [ENTITY] b. [ENTITY] S/o Late Sh. [ENTITY] Both R/o H.No.105, Village Kurani, Narela, Delhi40. c. Smt. [ENTITY] D/o Late Sh. [ENTITY] [ENTITY] Vs [ENTITY] Page No.3of34 R/o A791, Shastri Nagar, Delhi52. d. Smt. [ENTITY] D/o Late Sh. [ENTITY] R/o Flat No. C1, Block15, Hindustan Times, Apartments, Mayur Vihar, New Delhi91. 6. Sh. [ENTITY] S/o Late Sh. [ENTITY], R/o H.No. 105, Village Kurani, Narela, Delhi40. 7. Sh. [ENTITY] S/o Late Sh. [ENTITY] 8. Sh. [ENTITY] S/o Late Sh. [ENTITY] 9. Sh. [ENTITY] S/o Late Sh. [ENTITY] All the Nos.7, 8 and 9 are R/o H.No. 105, Village Kurani, Narela, Delhi40. Defendants [ENTITY] Vs [ENTITY] Page No.4of34 Date of filing of Suit : 27.05.1999 Date of decision : 03.07.2013 JUDGMENT
1. Case of the plaintiff in brief is that property measuring 2 Bighas and 14 [ENTITY]s of land situated in Khasra No. 188 of Village Sadhoran Kalan, Delhi was jointly owned by Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY]. Sh. [ENTITY] was coowner of 15/32 share, Sh. [ENTITY] 5/32 share and Sh. [ENTITY] was owner of 12/32 share respectively in the joint land. Out of the aforesaid land the coowners had earmarked the land measuring 2 Bighas and 14 [ENTITY]s for constructing temple, dharamshala and dispensary for religiouscum charitable purposes. Sh. [ENTITY] constructed temple and piao on a portion of land out of his own funds before the death of Sh. [ENTITY] in the year 1961. In the year 1959 the said coowners mutually partitioned the land. Sh. [ENTITY] got the portion shown in colour red, Sh. [ENTITY] got the land shown in colour green and Sh. [ENTITY] got the land shown in colour blue. The temple is shown in colour yellow and the said temple falls in the share of Sh. [ENTITY]. Sh. [ENTITY] was [ENTITY] Vs [ENTITY] Page No.5of34 managing the temple and he also constructed nine shops in the area in his possession. He remained in possession of the said land till his death. After the death of Sh. [ENTITY], the plaintiffs who are his grand sons became the owners of the said land by virtue of will left by him. The plaintiffs are in possession of land in dispute from the month of March, 1984. Before 09.03.1984 Sh. [ENTITY] was in possession of land in dispute after partition of the land in the year 1959. The rates of land were normal but after the developments of colonies known as Ashok Vihar, Shakti Nagar Extn and other surrounding localities, the rates have gone very high and the defendants because of their greed started denying fact of partition made in the year 1959 and started claiming share in the land shown in colour red in the site plan.
2. The defendants made false complaint to police. They implicated the plaintiffs and their father in a criminal case u/[SECTION] [ACT] and are contemplating to implicate the plaintiffs in other false cases. They are also extending threats to occupy the property in dispute forcibly. On 19.05.99 defendant no.3 along with Sh. [ENTITY] and four other persons threatened the plaintiffs and their father that they will dispossess the plaintiffs forcibly. Thus, the plaintiffs prayed for decree of perpetual injunction restraining defendants from forcibly dispossessing the [ENTITY] Vs [ENTITY] Page No.6of34 plaintiffs from property (shown in red colour in site plan) constructed on a plot comprised in Khasra no. 188 of Village Sadhora Kalan, Delhi. They also prayed that defendants be restrained from interfering in the management of Shiv Temple constructed in portion shown in yellow colour in site plan.
3. Defendants filed their written statement and took several preliminary objections. They pleaded that plaintiffs have not come to the court with clean hands. They have concealed material fact that land measuring 7 [ENTITY]s out of the total land has been acquired vide Award No. 10 of 199091. Hence, the Union of India is a necessary party. They also raised objections that suit property is not properly valued, the parties being cosharers, the plaintiffs cannot seek relief of injunction against cosharers /defendants and the suit is barred by [SECTION] of [ACT] because a more efficacious remedy of partition is available to the plaintiffs.
4. On merits, the defendants admitted that plaintiffs are grandsons of Sh. [ENTITY]. However, it was denied that they have become owners of specific portions. They pleaded that plaintiffs are cobhumidars of 12/32 share of Khasra No. 188 of Village Sadhora Kalan, Delhi. They also denied that plaintiffs are in possession of specific portion of Khasra [ENTITY] Vs [ENTITY] Page No.7of34 No. 188 of Village Sadhora Kalan, Delhi and also denied that their grandfather was in possession of any specific portion of aforesaid land.
5. The defendants admitted that Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] were joint [ENTITY]/cosharers. They denied that the land was earmarked for construction of Dharamshala/dispensary. A temple was constructed from joint funds of all the three brothers. Since Sh. [ENTITY] was living in Delhi, Sh. [ENTITY] was living at Kuraini, Narela. He supervised the construction of temple. They also denied that Sh. [ENTITY] had constructed the piao/Chah as alleged. It was in existence even in the year 1940 i.e. on 08.03.1940 when mutation was sanctioned in the name of Sh. [ENTITY]. In the jamabandi of the year 194748 the piao/Chah was situated in 5 [ENTITY]s of land. The parties are still joint [ENTITY] having share as shown in revenue record. They denied the remaining averments of plaint and prayed that suit be dismissed with special costs.
6. The plaintiffs filed replication. In the replication plaintiff admitted that 7 [ENTITY]s of land has been acquired by government. They denied the remaining averments. From the pleadings following issues were framed:
(i) Whether the suit of the plaintiff is barred by [SECTION] of Specific [ENTITY] Vs [ENTITY] Page No.8of34 [ACT]? OPD.
(ii) Whether the suit is properly valued for purpose of court fees and jurisdiction? OPD.
(iii) Whether the suit is bad for nonjoinder of UOI as a necessary party? OPD.
(iv) Whether the suit land has already been partitioned amongst the co sharers? OPP.
(v) Whether the plaintiffs are entitled to relief of injunction? OPP.
(vi) Relief.
7. In order to prove their case plaintiffs examined PW1 Sh. [ENTITY], UDC, Labour Department. This witness proved the registration certificate of establishment issued by chief inspector, shop & establishments, Delhi in the name of plaintiff Sh. [ENTITY] as Ex. PW1/1. PW2 Sh. [ENTITY], LDC, House Tax Department, Delhi proved the house tax receipts Ex. PW2/1 to Ex. PW2/5. PW3 Sh. [ENTITY] tendered his affidavit Ex. PW3/A. He stated that he was a witness of partition that took place between Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] in the month of May, 1959. PW4 Sh. [ENTITY] also tendered his affidavit Ex. PW4/A. He proved the power of attorney Ex. PW4/1, revenue record Ex. PW4/2, site plan Ex. PW4/3, [ENTITY] Vs [ENTITY] Page No.9of34 record of Kalandra Ex. PW4/4, order of SDM dropping proceeding u/[SECTION] [ACT] as Ex. PW4/5 and another site plan Ex. PW4/6, certified copy of judgment dated 31.07.94 is Ex. PW4/7, order of appellate court Ex.PW4/9, license for running shop issued by MCD Ex. PW4/9, certificate of Delhi Shop and Establishment Act as Ex. PW4/10, bills of electricity as Ex. PW4/11 & Ex. PW4/12, bill of water Ex. PW4/13, bills of house tax of the year 1964 as Ex. PW4/14, enquiry of MCD and its inspection as Ex. PW4/15, receipt of house tax of the year 1976 as Ex. PW4/16 to Ex. PW4/18, order of MCD dated 14.06.1990 Ex. PW4/19 and out of these documents, document Ex. PW4/1 to Ex. PW4/9 were deexhibited.
8. Plaintiffs also examined PW5 Sh. [ENTITY], LDC, SDM, Sadar Bazar, Delhi. He proved the order of SDM already proved as Ex. PW4/5. PW6 [ENTITY] posted in the office of Special Executive Magistrate Court, North District, Sarai Rohilla, Delhi proved the order of DCP as Ex. PW6/1, certified copy of document issued by SEM as Ex. PW6/2 and its intimation Ex. PW6/3. The plaintiff also examined PW7 Sh. [ENTITY]. He stated that he is a tenant under Sh. [ENTITY] as shown in the premises as site plan Ex. PW4/6. He stated that he raised the construction on it under the permission from Sh. [ENTITY]. Sh.
[ENTITY] Vs [ENTITY] Page No.10of34 [ENTITY] told him that he was owner of suit property in pursuance of partition. The counsel for plaintiff closed PE in affirmative on 26.09.2008.
9. On the other hand, defendants examined DW1 Sh. [ENTITY], [ENTITY], posted at SDM, Civil Lines, NorthDistrict, Delhi. He proved the copy of [ENTITY] of khasra no.188 Ex. DW1/1 and stated that there is no partition in [ENTITY] in Khasra no. 188. DW2 Sh. [ENTITY] tendered his affidavit Ex. DW2/A and stated that no partition took place. He proved the copy of award no.10 of 199091 as Ex. DW2/1 and Ex. DW2/2 respectively. He also proved the notice issued u/[SECTION] of the [ACT] in the name of Sh. [ENTITY] and Sh. [ENTITY] as Ex. DW2/3 and Ex. DW2/4 respectively. He also deposed that the compensation was assessed in the name of shareholders and proved the copy of [ENTITY] as Ex. DW2/5. He also proved notice u/[SECTION] of [ACT] in the name of Sh. [ENTITY] and [ENTITY] Ex. DW2/6 and Ex. DW2/7 respectively. He also proved the copy of petition pending in the Hon'ble High Court as Ex. DW2/8. He also tendered the jamabandi of the year 194748 as Ex. DW2/9 and its translation as Ex. DW2/9A. The said witness also proved the copy of mutation Ex. DW2/10 and its Hindi translation as Ex.
[ENTITY] Vs [ENTITY] Page No.11of34 DW2/10 (A). He also proved the Khasra girdawaris for the years 197677, 198586 to 198788 as Ex. DW2/11 to Ex. DW2/12.
10. Defendants examined DW3 Sh. [ENTITY], Patwari at Sadar Kanoongo Branch, Tehsil Building, Tis Hazari Court, Delhi. He again proved the copy of jamabandi of the year 194748 as Ex. DW3/1 and record of mutation of the year 194748 as Ex. DW3/2. DW4 Sh. [ENTITY] tendered his affidavit Ex. DW4/A. In his affidavit he stated that suit property is still joint and it was never partitioned. DW5 Sh. [ENTITY] also tendered his affidavit Ex. DW5/A and reiterated in his affidavit that no partition took place. DW6 Sh. [ENTITY], Patwari, office of Kanoongo Branch, Tehsil Bulding, Tis Hazari Court, Delhi. He could not prove any record as it was not available. Defendant examined DW7 Sh. [ENTITY], Patwari, LAC (North), 1, Delhi. He proved the certified copy of award Ex. DW2/1 and Ex. DW2/2 respectively. He also brought on record certified copy of possession record dated 09.03.2000 as Ex. PW7/1, certified copy of [ENTITY] Ex. DW7/2 and deposed about notice u/[SECTION] of [ACT] Ex. DW2/3 and Ex. DW2/4. Certified copy of notice U/[SECTION] of [ACT] as Ex. DW2/6 and Ex. DW2/7 respectively. The counsel for defendants tendered the copy of translation Mark A and closed DE on behalf of defendants on [ENTITY] Vs [ENTITY] Page No.12of34 03.03.2012.
11. I have heard the arguments of counsels for the parties. The counsel for plaintiffs argued that there is no dispute regarding the shares of Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY]. The partition took place between [ENTITY] in the year 1959. The defendants have alleged that no partition took place. The plaintiffs have examined 7 witnesses to prove their case. All these witnesses including PW1 have proved that plaintiffs are in possession of there portion of suit land. The house tax record and receipts, certificate of shop and establishment, electricity and water bills also establish that plaintiffs are in exclusive possession of their land.
12. The oral partition has been proved on the basis of testimony of PW3 Sh. [ENTITY] who deposed that partition took place in his presence. The circumstances also show that partition had taken place. No objection was raised when the property was constructed and tenants were inducted. PW7 has deposed that he was inducted as a tenant of Sh. [ENTITY]. None of the legal heirs of Sh. [ENTITY] had appeared and stated that he was not inducted as a tenant. Thus, testimony of this witness has gone completely unchallenged. He further argued that DW1 has stated that there is no record of partition in [ENTITY]. In his crossexamination [ENTITY] Vs [ENTITY] Page No.13of34 DW2 admitted the signatures of Ms. [ENTITY] and [ENTITY] i.e LRs of Sh. [ENTITY]. The testimony of DW5 is not reliable. In his cross examination he stated that he is related to defendants. He was not aware about the family members of plaintiffs. He also stated that he does not know the contents of his affidavit. He had come to depose at the saying of defendants. Thus, the oral testimony of witnesses of plaintiffs has to prevail on the oral testimony of witnesses of defendants.
13. On the other hand, the counsel for defendants argued that suit for injunction is not maintainable. The plaintiffs are infact trying to seek declaration that oral partition took place in 1959. The plaintiff concealed the fact that 7 [ENTITY]s of land was acquired. Jurisdiction of this court is barred by [ACT].
14. In site plan Ex. PW4/3 area of plaintiffs has been mentioned but area of defendants has not been mentioned. There is no pleading regarding area in possession of plaintiffs and defendants. The property was acquired from joint Khasra. The acquisition was made as per shares of parties. The total area in possession of plaintiffs was alleged as 639 sq. yards and if 7 [ENTITY] i.e. about 360 sq. yards is taken from share of plaintiffs then they would be left with about 289 sq. yards. However, the site plan of the plaintiffs shows that area in their possession is much [ENTITY] Vs [ENTITY] Page No.14of34 more than that. Document Ex. PW1/1/ is dated 20.04.88, whereas, Sh. [ENTITY] died in the year 1984.
15. He also argued that Ex. PW2/1 shows that Sh. [ENTITY] paid his house tax but it does not show that he was recorded as owner for the purpose house tax or the fact that partition took place between them. The aforesaid house tax relates to Shiv Temple and not to remaining part of suit property. Ex. PW2/4 shows that temple is in existence since 1947 and nothing else is shown till 199091. The revenue record in the form of Ex. PW4/2 shows that the shares of the parties are still joint. The certificate of registration is dated 20.04.80 and plaintiffs are alleging partition and possession since 1959. Suit was filed in 1991 whereas Sh. [ENTITY] expired on 1984. PW2 proved the record pertaining to the year 2002 to 2004 and it is irrelevant.
16. PW3 in his crossexamination stated that his daughter is married to brother in law of father of plaintiff. He did not state the area which was divided between the parties. PW4 in paragraph no. 5 of his affidavit did not state the month and date of partition. PW4 could not tell the area falling in the share of all the three brothers. He stated that other persons were also present but plaintiffs did not examine them for reasons best known to them.
[ENTITY] Vs [ENTITY] Page No.15of34
17. He further argued that as per [SECTION] of [ACT] Gaon Sabha is necessary party but no notice was given to Gaon Sabha. Piao was constructed prior to 1947. There is no way to land of Sh. [ENTITY]. Kacha Road was in existence before 1980. PW4 stated that architect of site plan was alive but still he was not examined and this site plan is not proved on record. PW7 in his crossexamination stated that no partition was effected in his presence. He stated that there is no document of tenancy. He is unreliable witness and cannot be relied.
18. On the other hand documentary evidence in the form of DW 2/1 and DW3/2 i.e. order of award shows that the land is still joint and the compensation has been awarded to all the cosharers. Notice Ex. PW2/3 and Ex. PW2/4 were duly served. Similarly notice Ex. DW2/7 and Ex. DW2/8 were also served but the plaintiffs did not take objection that the land has been partitioned. The other revenue record in the form of Ex. DW2/8, Ex. DW3/2, Ex. DW2/11 and Ex. DW2/12 also shows that land is still undivided and joint. Thus, he argued that the suit be dismissed.
19. In rebuttal, the counsel for plaintiffs argued that there is no rebuttal to testimony of PW7. No suggestion was given to him for putting the case of defendants. Though PW7 was not present at the time of partition but there was infact representation of Sh. [ENTITY] to him about [ENTITY] Vs [ENTITY] Page No.16of34 partition. Nobody from the family of Sh. [ENTITY] came to depose that PW7 was not a tenant. PW3 is related to both the parties. There is only one suggestion that he is deposing falsely because he is related to plaintiffs. He has not been crossexamined qua partition. Hence there is presumption that partition is admitted. There is no rebuttal to the judgment in favour of Sh. [ENTITY] and to statement of Sh. [ENTITY] before SDM proved as Ex. PW4/4. Sh. [ENTITY] is a defendant no.3 in the present case but he has not been brought to disprove the aforesaid fact. There is a statement of Ms. [ENTITY] before the Hon'ble High Court that partition took place in the year 1959. Smt. [ENTITY] being the legal heir of Sh. [ENTITY] admitted the fact of partition. It is not an admission but a relevant piece of evidence as it is contrary to the interest of Sh. [ENTITY]. Successor of Sh. [ENTITY] also says that there was no partition but nobody from the legal heirs of Sh. [ENTITY] appeared in the witness box. DW7 has stated that LAC has no connection with division of land. Thus, prayed that suit be decreed.
20. I have heard the arguments and gone through the evidence on record very carefully. My issuewise findings are given as below: [ENTITY] Vs [ENTITY] Page No.17of34 Issue no. 1:
21. Onus to prove this issue was on the defendants. The defendants plead that equal and efficacious remedy of suit for partition was available with the plaintiffs. However, the present suit is for permanent injunction. It is a settled proposition of law that cosharer in settled possession cannot be dispossessed otherwise than in the due course of law. In [PRECEDENT], the hon'ble High court held that, " when Plaintiff is a cosharer in exclusive possession of part of property with consent of other cosharers (defendants) , a suit for injunction restraining defendants from interfering with his possession is maintainable. The contention that plaintiff could get equally efficacious relief by bringing partition suit and hence suit was barred under [SECTION] of [ACT] was untenable because what plaintiff wants is to keep his exclusive possession undisturbed and not partition." Therefore, a simplicitor suit for injunction restraining the other cosharers from dispossessing the plaintiff's from the suit property is maintainable. Thus, this issue is decided in favour of the plaintiff's.
ISSUE NO:2
22. Onus to prove this issue was placed on defendants. No argument has [ENTITY] Vs [ENTITY] Page No.18of34 been advanced on this issue. The present case for permanent injunction has been valued according to the provisions of The [ACT]. Therefore, the suit has been properly valued for the purpose of court fees and jurisdiction. Hence, this issue is decided in favour of the plaintiffs and against the defendants.
Issue no. 3
23. Onus to prove this issue was again on the defendants. It is an admitted fact that some part of the land was acquired by Union of India. The acquisition proceedings are not under challenge in this case. The cause of action is only alleged against the defendants alleging threats given by the defendants. Hence, in a suit for permanent injunction between cobhoomidars, Union of India is neither a necessary nor a proper party for the reason that its presence can neither assist the Court in coming to right conclusion nor decree passed without Union of India will be rendered infructuous. Hence, this issue is decided against the defendants and in favour of plaintiffs.
ISSUE No.4
24. Onus to prove this issue was on the plaintiffs. The admitted case of the parties is that the suit property, initially measuring 2 Bighas and 14 [ENTITY]s comprised in Khasra No. 188 of Village Sadhora Kalan, Delhi, [ENTITY] Vs [ENTITY] Page No.19of34 was jointly owned by Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] in 15/32 share, 5/32 share and 12/32 share respectively. The case of plaintiffs is that the property was partitioned in the year 1959 between the aforesaid joint owners. However, it has been argued for defendants that oral partition is not permissible under the law. However, neither any provision of law nor any citation has been quoted which provides that oral partition between the cosharers is impermissible. The provisions of [ACT] do not bar the oral partition of agricultural land. It merely specifies the procedure whereby the parties can get the land partitioned by applying before revenue officials. It simply provides that if the partition has to be effected by taking recourse to machinery of law, then the jurisdiction of civil court is barred and only the revenue officials have jurisdiction.
25. It is settled proposition of law that oral partition amongst members of Joint Hindu Family is not barred. In [PRECEDENT] Hon'ble Apex Court has held that, " the deed of partition is required to be registered but the record/memorandum of partition which took place earlier is not required to be registered". Thus, as a necessary corollary as per dictum of the hon'ble Apex Court, oral partition is permissible under the law [ENTITY] Vs [ENTITY] Page No.20of34 and any record of such partition recorded subsequently does not require registration. Further in [PRECEDENT], the hon'ble apex court held that, "Under the Hindu Law, it is not necessary that the partition should be effected by a registered partition deed. Even a family arrangement is enough to effectuate the partition between coparceners and to confer right to a separate share and enjoyment thereof ". Thus, the argument does not find force in law. The joint property was capable of division orally amongst the members of joint family.
26. Burden to prove oral partition lied very heavily on the plaintiffs. In [PRECEDENT], it has been held, that, "In law there exists a presumption in regard to the continuance of a joint family. The party which raises a plea of partition is to prove the same. Even separate possession of portion of the property by the cosharers itself would not lead to a presumption of partition. Several other factors are required to be considered therefore."
27. In the present case, the plaint is silent as to whether the memorandum of partition was prepared or not but in the evidence it has come up that the said partition was an oral partition and it was not [ENTITY] Vs [ENTITY] Page No.21of34 reduced into writing even subsequently. Thus, there is no memorandum or record of the aforesaid partition which according to case of plaintiff took place in the year 1959.
28. It is an admitted fact that the revenue record continues to show the property as joint between aforementioned persons. The case of the plaintiff is that revenue record could not be changed due to lack of awareness of all the joint owners but the parties had taken possession of their respective shares after partition.
29. Admittedly the partition of entire joint family property has not been reflected in the revenue record till date. The revenue record continues to show the property as joint amongst all the co sharers. . In [PRECEDENT], the hon'ble apex court also held that, "The entires in the Record of Rights regarding the factum of partition is a relevant piece of documentary evidence in support of the oral evidence given by the respondent and his brother to prove the factum of partition."
30. So the plaintiffs had to establish to the preponderance of probability only by means of oral evidence and other circumstantial evidence that such a partition infact took place. In this endeavor the plaintiffs examined PW4 Sh. [ENTITY] i.e. attorney of plaintiffs. In Janki [ENTITY] Vs [ENTITY] Page No.22of34 Vashdeo Bhojwani & Anr. Vs. Indusind Bank Ltd. & Ors. 2005 AIR 439 , 2004(6 )Suppl.SCR681 , 2005(2 )SCC217 , 2004(10 )SCALE244 , 2004(10 )JT264, it has been held that, "[SECTION] [ACT], empowers the holder of power of attorney to "act" on behalf of the principal. In our view the word "acts" employed in [SECTION] [ACT], confines only in respect of "acts" done by the power of attorney holder in exercise of power granted by the instrument. The term "acts" would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some "acts" in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be crossexamined."
31. Thus PW4 could have deposed only about the facts which were specifically in his knowledge and his testimony cannot be considered as on behalf of the other plaintiffs. This witness had not seen the partition taking place in the year 1959. In his crossexamination he stated that he was not personally present when the partition took place in the year [ENTITY] Vs [ENTITY] Page No.23of34 1959.
32. The most important witness of the plaintiffs was PW3 Sh. [ENTITY]. This witness stated that he is resident of H. No. 18/34, Shakti Nagar, Delhi since 1957. He also stated that in the month of May, 1959 he witnessed the partition being carried out by Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY]. He further stated that besides him Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] one or two other persons were also present. In his crossexamination he stated that he is related to plaintiff Sh. [ENTITY]. Even otherwise his testmony cannot be relied solely for coming to conclusion as to whether partition had actually taken place in the year 1959 or not as this witness deposed about an occurrence of few hours after about fifty years band gave account of the month of partition which does not find mention even in the plaint. Besides him plaintiffs did not examine other persons who had witnessed the alleged partition. It is not the case of plaintiffs that besides the predecessors of the plaintiffs only PW3 was present, still the other witnesses were not examined. Neither any reason for not examining them has been pleaded. In such circumstances, the non examination of the other eye witnesses also casts a doubt on the authenticity of the plaintiff's version.
[ENTITY] Vs [ENTITY] Page No.24of34
33. On the other hand defendants have examined DW2 Sh. [ENTITY], DW4 Sh. [ENTITY] and DW5 Sh. [ENTITY] who stated that no partition took place and property continues to be joint. DW4 Sh. [ENTITY] in his crossexamination stated that he had deposed at the instance of defendant no.3 and he had mentioned whatever was told by defendant no.3 to him in his affidavit. He did not know about the family of plaintiffs. The affidavit tendered in his examination in chief was not read over to him and he does not know about its contents. Hence, the testimony of such a witness cannot be relied.
34. DW5 in his crossexamination stated that he came to know about measurement of property as he had heard the conversation of Sh. [ENTITY] and Sh. [ENTITY]. He also admitted that talks of partition between Sh. [ENTITY], Sh. [ENTITY] and Sh. [ENTITY] took place in the year 1959 but he denied that partition had taken place in the year 1959. The perusal of the testimonies of all these witnesses mentioned above shows that they are not free from doubts.
35. Besides PW3 plaintiffs have examined PW7 Sh. [ENTITY] in order to establish that the property was duly partitioned and all the co bhumidars occupied their respective portions. This witness has deposed that he was inducted as a tenant by Sh. [ENTITY] in the portion [ENTITY] Vs [ENTITY] Page No.25of34 shown in points A, B,C and D as reflected in site plan Ex.PW4/6 at a monthly rent of Rs. 30 p.m. In his crossexamination he stated that partition did not take in his presence but he was told by Sh. [ENTITY] that he is the owner of the land so let out to him. Therefore, this witness only deposed to the extent that the portion let out to him was in occupation of Sh. [ENTITY]. By no account, the testimony of this witness can be taken as direct proof of partition. His testimony qua creating of tenancy by Sh. [ENTITY] cannot even lead to an inference that the land was partitioned as any cosharer can let out the portion of joint land as well. Therefore, the fact that the Lr's of deceased [ENTITY] did not appear in the witness box or the fact that this witness was not cross examined to that effect is of no consequence qua proof of oral partition.
36. The next piece of evidence to support the case of the plaintiffs is in the form of record of MCD. The aforesaid evidence in the documents Ex.PW2/1 to Ex.Pw2/3 show that the MCD of Delhi had recorded the predecessor of the plaintiff's i.e Sh. [ENTITY] as the person in occupation for the assessment of house tax. However, it is the settled preposition of law that the record of house tax does not establish proof of ownership. Moreover the receipt Ex.Pw2/1 is with respect to Shiv [ENTITY] Vs [ENTITY] Page No.26of34 Mandir and receipts Ex.PW2/2 and Ex.Pw2/3 are with respect to Siri Nagar, Delhi52.
37. The judgments Ex.PW4/7 and Ex. PW4/8, so relied by the plaintiffs do not establish the factum of oral partition in the year 1959 directly or indirectly. In the judgment Ex.PW4/7 it is recorded that PW2 and PW3 who are also coowners of the land where temple is situated have deposed that plaintiff (Sh. [ENTITY]) constructed the temple over the said land and was in exclusive possession of the same. Similarly, in judgment Ex.PW4/A it has been observed that Sh. [ENTITY] S/o Sh. [ENTITY] had stated that it was plaintiff who constructed the temple. The aforesaid observations were clearly with regard to the dispute with respect to temple premises only. Moreover there is no direct admission of the predecessor in interest of defendants namely, Sh. [ENTITY] and Sh. [ENTITY] to the effect that partition took place and the portion of land where temple is constructed belonged to [ENTITY] i.e predecessor in interest of the plaintiff. It is further necessary to note that partition took place, the plaintiff's had to prove that the property in dispute fell in the share of Sh. [ENTITY]. There is absolutely no evidence as to which portion fell in the share of which of the cobhoomidars. The plaintiffs have neither pleaded nor lead any [ENTITY] Vs [ENTITY] Page No.27of34 evidence as to how much area fell in the share of [ENTITY] or in the shares of [ENTITY] as well as Sh. [ENTITY] at the time of partition. Even the site plans filed by the plaintiff are silent with respect to the exact measurement of the respective portion of each of the parties. The site plan Ex.Pw4/3 bears the dimensions of the portion in possession of the plaintiffs before acquisition and site plan Ex.Pw4/6 shows the dimensions of the land as referred above after acquisition. If the partition had been affected between the parties, there would have been detailed account of the areas specifically in possession of each of the co bhumidars. The absence of mentioning of the areas by the alleged witness i.e Pw3 as well as by plaintiffs in plaint or in evidence cast a serious doubt as to the version of the plaintiff qua partition. Mere simple averments of the plaintiff that the line in the site plan was the actual boundaries of partition cannot be believed. The lack of clear proof of boundaries also leads to a conclusion against the case of plaintiff that oral partition was affected.
38. The argument of the counsel for defendants also appear to be correct that if the portion in possession of the plaintiffs as per site plan was 639 sq. yards and 7 biswas i.e about 360 sq. yards was acquired by the Government, then the plaintiffs should have been left with only 289 sq. [ENTITY] Vs [ENTITY] Page No.28of34 yards of land, whereas, as per the site plans filed by the plaintiffs the area in their possession is much more than that. The plaintiffs have also failed to prove the respective areas which allegedly fell in possession in each of the cosharers .This fact further buttresses the conclusion that no oral partition had taken place between the predecessors of the parties. The fact that Sh. [ENTITY] had constructed nine shops in the property in dispute does not in itself establish the factum of mutual partition. Any of the cosharers or cobhoomidars could have raised the construction on the joint land. In [PRECEDENT], (as mentioned above) it had been held that , "Even separate possession of portion of the property by the cosharers itself would not lead to a presumption of partition." Moreover, the construction was not made immediately after the year 1959, it was made much later. Therefore, the aforesaid fact cannot lead to a conclusion that partition had taken place between the predecessors of the parties in the year 1959.
39. It was the duty of the plaintiff to establish that the partition took place orally in the year 1959. In [PRECEDENT], the Hon'ble High Court has held that,"it is well settled law that the plaintiff has to prove his own case and would have to [ENTITY] Vs [ENTITY] Page No.29of34 stand on his own legs." Therefore, plaintiff cannot take advantage of the weaknesses of the case of defendants by saying that legal heirs of deceased [ENTITY] did not grace the witness box, so they are deemed to have admitted the factum of oral partition. The case of the plaintiff had to stand on its own legs. Hence, in nut shell since there is absolutely no documentary evidence to support the theory of oral partition as propounded by the plaintiffs, the oral testimony of PW's qua partition is not reliable and there are no such circumstances which directly or indirectly point to a definite conclusion of oral partition, therefore, in view of the aforesaid discussion, it has to be concluded that the plaintiffs have failed to prove that oral partition of suit property took place in the year 1959. Accordingly, this issue is decided against the plaintiffs.
Issue 5:
40. Onus to prove this issue was placed on the plaintiffs. It is admitted proposition that land was joint between the predecessors of plaintiff's i.e. Sh. [ENTITY] and predecessors of defendants namely Sh. [ENTITY] and Sh. [ENTITY]. In issue no. 4 it has already been held that plaintiff's have failed to prove the factum of oral partition. However, the plaintiff's are admitted to be cobhoomidars in exclusive possession of joint land.
[ENTITY] Vs [ENTITY] Page No.30of34
41. In issue no 1, it has already been held that the present suit for injunction is maintainable. Cosharers in possession of joint land cannot be dispossessed from it, otherwise, than by following due process of law. The plaintiff's witnesses have proved to the preponderance of probability that the threats of dispossession were advanced and thereby the cause of action to file the present suit arose in their favour. The defendants have admittedly filed a suit for partition; therefore, the possession from the plaintiffs can only be taken in pursuance of the judgments and orders of the Hon'ble High Court, where the aforesaid partition proceedings are pending.
42. The second relief qua restraining the defendants from claiming right title and interest in the suit property is not maintainable as the plaintiffs have failed to prove the oral partition and the defendants being co bhoomidars are cosharers in every inch of joint land. Moreover, the plaintiff by seeking the said relief is infact seeking declaration which cannot be couched in the form of suit for injunction. Hence, on both these grounds the plaintiff is not entitled to permanent injunction restraining the defendants from claiming right or title in the suit property.
43. The third relief of permanent injunction sought by the plaintiffs is [ENTITY] Vs [ENTITY] Page No.31of34 for restraining the defendants from interfering in the management of Shiv Temple. In this regard the judgments Ex. PW4/7 and Ex. PW4/8 are extremely relevant as these judgments contain admissions of the predecessors of the defendants to the extent that Sh. [ENTITY], i.e predecessor of the plaintiff's was the owner and he had constructed the temple. As per [SECTION] of The [ACT], the aforesaid admission of the predecessors in interest of defendants is binding on them being their successors. Thus, the defendants cannot be allowed to allege that plaintiffs are not solely responsible for the management of the temple.
44. However, it has to be remembered that the plaintiffs had failed to prove that the aforesaid temple was part and parcel of the land which fell to their share. Perusal of the Ex PW2/4 i.e document of MCD produced by the plaintiff itself shows that the temple has been constructed since the year 1947. The judgments EX PW 4/7 & 4/8 also find mention that it was in existence since 1947. Thus, as per the evidence produced by the plaintiffs themselves it is revealed that the temple was in existence even prior to 1959. The admission of the predecessors of defendants was only qua the premises of temple and the evidence of plaintiffs as referred above shows that the temple was constructed much prior to 1959. The [ENTITY] Vs [ENTITY] Page No.32of34 aforesaid evidence contradicts the case of plaintiff that the premises of temple were constructed by Sh. [ENTITY] after the partition had taken place in the year 1959.
45. Thus, the admission of construction of temple by Sh. [ENTITY] is not the indicator of oral partition, but it certainly leads to a conclusion that the predecessor of the plaintiffs was admitted to be a sole incharge of the temple. Hence, the plaintiff's are entitled to permanent injunction restraining the defendants from interfering in the management of the temple. Thus, this issue is partly decided in favour of the plaintiffs. ISSUE NO: 6 RELIEF.
46. Thus, in view of the findings given on issue no 1,2,3 & 5 suit of the plaintiff is decreed accordingly with costs, to the extent that it is decreed for permanent injunction to the extent that the defendants are restrained form dispossessing the plaintiffs from the suit property shown in colour red of the site plan forcibly otherwise than by following due process of law i.e in pursuance of the orders of the Hon'ble High Court, where the aforesaid partition proceedings are pending or otherwise as the case may be. The suit is also decreed for relief of permanent injunction restraining the defendants from interfering in the management of the temple. However, the suit of plaintiff seeking permanent injunction restraining [ENTITY] Vs [ENTITY] Page No.33of34 the defendants from claiming right or title in the suit property is dismissed. Decree sheet be prepared. The file be consigned to record room after due compliance.
Announced in the open court ([ENTITY]) On 03.07.2013 CIVIL JUDGE06 (WEST) [ENTITY] Vs [ENTITY] Page No.34of34