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In The Court Of Sh. M. P. Singh vs Ganga Ram on 8 November, 2019

IN THE COURT OF SH. M. P. SINGH, ADDITIONAL DISTRICT JUDGE­03
(EAST DISTRICT), KARKARDOOM COURTS, DELHI
CS No. 1727/16
Smt. Savitri Devi
W/o Late Sachindra
R/o D­175, First Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi – 92 ……Plaintiff

Versus

1. Ganga Ram s/o Late Sarzu Thakur
R/o D­138, Ground Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi – 92
2. Sunil Thakur s/o Late Sarzu Thakur
R/o D­138, Ground Floor,
Ganesh Nagar, Pandav Nagar Complex
Delhi – 92 ……Defendants
SUIT FOR PARTITION
Suit instituted on ­ 22.03.2010
Date of decision – 08.11.2019

JUDGMENT

1. Plaintiff’s case, as set out in the amended plaint, is as follows: ­

I) Plaintiff is defendants’ real sister. They are the surviving legal heirs of late
Sarzu Thakur and Smt. Posh Pati. They are co­owners of property no. D­
138, Ganesh Nagar, Pandav Nagar Complex, Delhi measuring 25 sq. yards
in khasra no. 305/212/2 in village Shakarpur Khas, Shahdara, Delhi (for
short the ‘suit property’) having 1/3 undivided share each therein. The suit
property is two storeyed.

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 1 of 18
II) In paragraph no.4 of her amended plaint, plaintiff makes the following
averments: ­

“4. That the suit property was purchased by Smt. Posh Pati, wife of
Sh. Sarzu Thakur from the erstwhile owner by virtue of the sale
purchase documents on 09.01.1980 which were a general power of
attorney and an agreement to sell. All the original sale purchase
documents pertaining to the suit property which was executed in
favour of Smt. Posh Pati at the time when she purchased the suit
property i.e. on 09.01.1980 is in the custody and possession of
defendant no.1. The plaintiff only has the photocopy of the general
power of attorney dated 09.01.1980 executed in favour of Smt. Posh
Pati which she is filing alongwith the present suit.”

III) Father Sarzu Thakur expired when plaintiff was only 09 years old. Mother
Ms. Posh Pati brought up the plaintiff and the two defendants. The suit
property was self acquired property of Smt. Posh Pati, who died intestate
on 10.05.1989 leaving behind parties to this suit as her only legal heirs.

IV) Defendant no.1 Ganga Ram occupies the entire ground floor portion of the
suit property and defendant no.2 Sunil Thakur, a room on the first floor.
Plaintiff faced hardships due to extreme paucity of space and her two
children were compelled to sleep on the terrace.

V) At the time of filing of the instant suit, plaintiff was in occupation of a
small room, which could otherwise be used for kitchen, on 1 st floor of the
suit property. She was in possession of the suit property for the last almost
three decades. But, on 27.04.2010, after receipt of summons of this suit,
defendants forcibly dispossessed her. Plaintiff went to the police station,
but police refused to lodge her complaint. When she returned home from
the police station, defendants and their spouses assaulted her and pushed
her down from first floor to the ground floor. Plaintiff sustained injuries.

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 2 of 18
She became unconscious. She regained her consciousness at Lal Bahadur
Shastri Hospital from where she was discharged on 28.04.2010. Police did
not register any FIR and instead made it appear that the matter had been
compromised. On plaintiff’s complaint bearing no. 150/2010, the Court of
Ld. Metropolitan Magistrate, Karkardooma Courts, Delhi was pleased to
direct the concerned SHO to register an FIR under sections 323/506/341,
SectionIPC against the accused persons. Plaintiff then shifted to her new address of
D­175, 1st floor, Ganesh Nagar, Pandav Nagar, Complex, Delhi ­ 92.

VI) In December 2009 plaintiff unsuccessfully requested the defendants to
partition the suit property. On these averments, plaintiff filed the present
suit seeking the relief of partition with the prayer that her 1/3 rd share be
identified/demarcated and possession of the same be handed over to her
and, in the alternative, the suit property be auctioned and the sale proceeds
thereof be divided equally amongst the parties.

2. Defendants, in their written statement to the amended plaint, state that
plaintiff is not their real sister. They aver that their parents after their marriage,
when no child was borne to them for few years, had verbally adopted the plaintiff
as their daughter in their native village and it was thereafter that they (defendants)
were born from their parents’ wedlock. They go on to aver that plaintiff being
their ‘step sister’, is not entitled to any share in partition of the suit property. As
per them, plaintiff is not entitled to a share in partition also because their mother
had performed her marriage and had given her sufficient amount and gift/
stridhan in her marriage. They refute plaintiff’s assertion that she is a co­owner of
the suit property. According to them, they are the only two co­owners of the suit
property and as such they are entitled to receive ½ share each therein. They state
that as per law only the legal heirs of a deceased can seek partition and not the

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 3 of 18
adopted daughter. In response to paragraph no.4 of the plaint, defendants state as
follows: ­

“4. That the contents of para no.4 of the suit are matter of
record.”

3. Defendants aver that suit property consists of only ground and first floor.
As regards plaintiff’s possession, they state that she was never in occupation of
the suit property at any point of time. They allege that plaintiff tried to take
forcible possession of the suit property which resulted in a quarrel, and they
(defendants) sustained serious injuries on their person; that when police took no
action despite the matter being reported to it, defendant no.2 Sunil Thakur lodged
a police complaint dt. 06.05.2010. They submit that plaintiff in fact resides at D­
176, 2nd floor, Ganesh Nagar, Pandav Nagar Complex, Delhi – 92 and her version
about common possession of the suit property is baseless. They assert that it is
only they (defendants) who are in actual physical possession of the suit property
with defendant no.1 Ganga Ram occupying ground floor and defendant no.2
Sunil, the first floor. They aver that plaintiff’s site plan itself shows that she was
not in possession of any small room on the first floor; that going by plaintiff’s own
site plan, there is only one room and no other room on the first floor.

4. Defendants’ version of the incident of 27.04.2010 is as follows. On
27.04.2010 at about 08:00 pm plaintiff and her associates, armed with deadly
weapons, entered defendant no.2 Sunil’s house. They beat up the defendants and
threatened that if they did not give plaintiff’s share they (defendants) would be
thrown out on the road. Plaintiff and her associates then put a lock on one room of
the house and threatened to come 15 days later and went away intimidating that
they would kill the entire family of defendant no.2 if the house was not vacated.
Defendants sustained serious injuries. Defendant no.2 called the police and he was

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 4 of 18
medically examined at Lal Bahadur Shastri Hospital from where he was referred
to GTB Hospital. Police took no action and instead started to pressurise defendant
no.2 for an amicable settlement. Defendant no.2 then lodged a police complaint dt.
06.05.2010. Defendant no.2 also filed a criminal complaint against the culprits,
which is sub judice before the Court of Ld. Metropolitan Magistrate,
Karkardooma Courts, Delhi.

5. Besides the above, defendants state that the suit is sans cause of action; that
plaintiff suppressed material facts; that she did not pay ad valorem court fee; that
suit property is valued more than Rs. 25 lacs and that the suit is not drafted as per
Delhi High Court Rules and Orders. Denying other averments, defendants seek
dismissal of the suit.

6. Plaintiff in her replication has reaffirmed and reiterated her averments as
set out in her amended plaint and refuted those of the defendants as set out in their
written statement. In her replication she states that she, as also both the
defendants, were born out of the wedlock of Sarzu Thakur and Ms. Posh Pati.

7. Issues framed on 02.05.2013 are: ­

1. Whether plaintiff is entitled to a decree for partition of the suit property,
as prayed for? OPP

2. Whether the suit of the plaintiff is without any cause of action? OPD

3. Whether suit of the plaintiff is not maintainable? OPD

4. Whether the plaintiff has not paid the requisite court fee? OPD

5. Whether the value of the property is more than Rs. 25 lakhs and this
court is lacking pecuniary jurisdiction to adjudicate upon the matter?
OPD

6. Relief.

8. In plaintiff’s evidence, plaintiff Savitri Devi (PW1) was the sole witness. In

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 5 of 18
support of her case, she placed reliance on photocopy of a General Power of
Attorney dt. 09.01.1980 of the suit property in favour of Smt. Posh Pati executed
by one Shri Ved Prakash. This document is Mark A.

9. In defendants’ evidence, following witnesses were examined: ­

 DW1 Ganga Ram, defendant no.1.

 DW2 Sunil Kumar, defendant no.2.

 DW3 Vinod Kumar, an official witness from the court of Sh. Rakesh
Kumar Singh, Metropolitan Magistrate, East District, Karkardooma Courts.
He appeared with the judicial file of criminal complaint no. 55164/16 titled
SectionSunil Thakur v. Savitri Ors., PS Mandawali, under Sectionsection 200 CrPC
alleging commission of offences under Sectionsections 147, Section148, Section149, Section323, Section308,
Section452, Section448, SectionIPC read with Sectionsections 511/Section34, SectionIPC. This criminal complaint was
still at the stage of pre­summoning evidence. He exhibited the criminal
complaint as Ex. DW3/A.

 DW4 Masrur Hussain, an official from Lal Bahadur Shastri Hospital,
Khichripur, Delhi. He appeared with the record of MLC no. 4111/10 dt.
27.04.2010 of defendant no.2 Sunil and exhibited the same as Ex.DW4/A.

10. Arguments heard. Record perused. Written arguments of both the sides
considered.

11. Issuewise findings are as follows.

12. Issue no.5 – The issue is whether the value of the suit property is more than
Rs. 25 lakhs and the court lacks pecuniary jurisdiction to adjudicate upon the
matter; onus being on defendants to prove it. Defendants in their pleadings state

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 6 of 18
that the suit property is valued ‘more’ than Rs. 25 lacs. Defendant no.1 Ganga
Ram (DW1) in his examination­in­chief deposed that the suit property was valued
‘more’ than Rs. 25 lacs in 2010. However, defendants do not precisely state as to
what is/was the exact valuation of the suit property. ‘More’ than Rs. 25 lacs can
mean anything over and above Rs. 25 lacs. The pecuniary jurisdiction of this
Court is between Rs. 3 lacs to Rs. 2 crores. There is no evidence from the side of
the defendants that the suit property is valued more than Rs. 2 crores. This Court
thus holds that there is no evidence to show that value of the suit is more than Rs.
25 lacs. This Court further holds that the present suit is within the pecuniary
jurisdiction of this Court. This issue is answered in plaintiff’s favour and against
the defendants.

13. Issue no.4 – The issue is whether plaintiff has not paid the requisite court
fee, onus to prove being on the defendants. Plaintiff in her plaint states that market
value of the suit property is Rs. 18 lacs and its government circle rate is Rs. 4.50
lacs. For the purpose of court fee, plaintiff valued the suit on her 1/3rd share at Rs.
6.00 lacs and paid court fee of Rs. 8,250/­ thereon. On the other hand, as per the
defendants, the suit property is valued ‘more’ than Rs. 25 lacs. However,
defendants led no evidence to show that the suit property is ‘more’ than Rs. 25
lacs. Thus, the defendants have been unable to prove this issue. It is held that the
plaintiff has paid adequate Court fee. This issue is thus answered in plaintiff’s
favour and against the defendants.

14. Issue no.3 – The issue is whether the suit is not maintainable, onus to prove
being on the defendants. It is not shown as to how the present suit for partition is
not maintainable under the law. It is one thing to say that a suit is not maintainable
under the law and quite a different thing to say that plaintiff has not been able to
prove his/her case. I see no reason for non­maintainability of this suit. This issue

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 7 of 18
is accordingly answered in plaintiff’s favour and against the defendants.

15. Issue no.1 – The issue is whether plaintiff is entitled to a decree for
partition of the suit property, onus to prove being on the plaintiff. To begin with,
there is absolutely no evidence on record to show that Ms. Posh Pati and Sarzu
Thakur were not plaintiff’s biological parents. There is also no evidence to show
that some other couple was actually the biological parents of plaintiff. There is
neither any evidence to show that Ms. Posh Pati and Sarzu Thakur, ever in their
lifetime, either individually or jointly, had represented to any authority or ever
written and/or stated to anyone that plaintiff was not their biological daughter.
There is no independent witness to depose that plaintiff was not born out of the
wedlock of Ms. Posh Pati and Sarzu Thakur. Defendants do not state in their
pleadings as to who, if not Ms. Posh Pati and Sarzu Thakur, were plaintiff’s
parents. It is pertinent to mention that defendants in their pleadings aver that it was
Ms. Poshi Pati who had got the plaintiff married. Defendant no.1 Ganga Ram in
his examination­in­chief (affidavit Ex. DW1/A) deposes that Ms. Posh Pati had
nourished the plaintiff. Thus, defendants’ mere self­serving ipse dixit, without
anything more, will not suffice to hold that plaintiff is not their real sister.

16. Next, defendants aver in their pleadings that their parents, post­marriage,
when no child was borne to them for few years, had ‘verbally adopted’ the
plaintiff in their native village and it was thereafter that they (defendants) were
born. Assuming arguendo that Ms. Posh Pati and Sarzu Thakur had adopted the
plaintiff, yet under the law, she has every right to claim a share in their property. It
is not the defendants’ stand that plaintiff’s adoption by their parents was contrary
to law. Her adoption never ever came to be challenged by anyone before any
Court of law. The law does not require that adoption must be accompanied by any
religious ceremony (Proviso to section 11 of Hindu Adoption and Maintenance

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 8 of 18
Act, 1956). The law neither requires that an adoption should mandatorily be
through a written instrument. Under Sectionsection 11 (vi) of Hindu Adoption
Maintenance Act, 1956 for an adoption, the child must actually be given and taken
in adoption. Section 11 of the Act nowhere requires that for an adoption to be
valid, it must be through a document in writing. Further, Sectionsection 12 of this Act,
inter alia, provides that an adopted child shall be deemed to be the child of his/her
adoptive father or mother for all purposes from the date of adoption and from such
date all the ties of the child in the family of his/her birth shall be deemed to be
severed and replaced by those created by the adoption in the adoptive family. SectionIn
Sitabai v. Ramchadra, (1969) 2 SCC 544 it has been, inter alia, held, “The true
effect and interpretation of Sections 11 and 12 of Act No. 78 of 1956 therefore is
that when either of the spouses adopts a child, all the ties of the child in the family
of his or her birth become completely severed and these are all replaced by those
created by the adoption in the adoptive family.” In Basavarajappa v.
Gurubasamma, (2005) 12 SCC 290, it has been held that on adoption, the
adoptee gets transplanted in adopting family with the same rights as that of natural
born child. Therefore, the contention vis­à­vis adoption being raised by the
defendants is in the teeth of sections 11 and 12 of Hindu Adoption and
SectionMaintenance Act, 1956. Consequently, the stand that plaintiff is actually the
adopted daughter of Ms. Posh Pati and Sarzu Thakur, even if accepted to be
correct, will not disentitle her from any share in partition of the suit property.

17. It was next the defendants’ contention that plaintiff, who seeks partition of
the suit property on the premise that Ms. Posh Pati had purchased it, has failed to
prove her ownership. Paragraph no.4 of the plaint has been reproduced verbatim
hereinabove. It is evident that in paragraph no. 4 of her plaint, plaintiff states that
Ms. Posh Pati had purchased the suit property vide sale­purchase documents dt.

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 9 of 18
09.01.1980 (General Power of Attorney and Agreement to Sell) and that such
original documents were in custody and possession of defendant no.1 Ganga Ram
and she only had a photocopy of the GPA dt. 09.01.1980. In response thereto,
defendants in their written statement state, “That the contents of para no.4 of the
suit are a matter of record.” It is crystal clear that defendants in their pleadings
impliedly admit plaintiff’s assertion that Ms. Posh Pati had purchased the suit
property vide sale­purchase documents dt. 09.01.1980 and that the originals
thereof were in custody and possession of defendant no.1 Ganga Ram. It is also
crystal clear that defendants in their pleadings impliedly admit plaintiff’s assertion
that she (plaintiff) only had a photocopy of the GPA dt. 09.01.1980 of the suit
property purchased by Ms. Posh Pati. At this stage, it would be relevant to note
that defendant no.1 Ganga Ram (DW1) in his affidavit Ex. DW1/A of
examination­in­chief states that his mother late Ms. Posh Pati had purchased the
suit property. However, in his cross­examination he (DW1 Ganga Ram) turned
around to say that such an averment in his affidavit Ex. DW1/A had been wrongly
written by his younger brother (defendant no.2 Sunil). It was the argument of
defendants’ counsel that such an averment came to be wrongly stated in the
affidavit Ex. DW1/A of defendant no.1 Ganga Ram (DW1). However, this
turnaround by defendant no.1 Ganga Ram (DW1) and the contention of
defendants’ counsel appears to be on a complete afterthought. As already stated
hereinabove, defendants in their pleadings impliedly admit that Ms. Posh Pati was
the owner of the suit property in terms of sale purchase documents dt. 19.01.1980;
they also impliedly admit in their pleadings that original sale purchase documents
were in power and possession and defendant no.1 Ganga Ram; they also impliedly
admit in their pleadings that the plaintiff had in her possession photocopy of GPA
dt. 19.01.1980 in favour of Ms. Posh Pati qua the suit property. Given these
circumstances, it is difficult to accept the contention of defendants’ counsel that

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 10 of 18
such an assertion came to be wrongly mentioned in paragraph no.2 of evidence by
way of affidavit Ex. DW1/A of defendant no.1 Ganga Ram (DW1).

18. Photocopy of the General Power of Attorney dt. 09.01.1980 (Mark A) in
favour of Smt. Posh Pati shows that it had been executed by one Shri Ved Prakash
in her favour. It is pertinent to mention here that defendant no.1 Ganga Ram
(DW1) in his cross­examination admits that the suit property had been purchased
from Sh. Ved Prakash. Although, in the very same breath he also adds that it had
been purchased prior to 1980.

19. Now, Sectionsection 65 (a), SectionEvidence Act mandates that secondary evidence of
document(s) can be given in case where the originals thereof are in power and
possession of the adverse party in the litigation. This provision reads as follows: ­

Secondary evidence may be given of the existence, condition, or
contents of a document in the following cases: ­

(a) When the original is shown or appears to be in the
possession or power­
of the person against whom the document is sought to be proved,
or of any person out of reach of, or not subject to, the process of
the Court, or any person legally bound to produce it, and when,
after the notice mentioned in Sectionsection 66, such person does not
produce the same.

20. In the trial, plaintiff led in evidence photocopy of the GPA dt. 09.01.1980
(Mark A). It is not the defendants’ stand that this document Mark A is not the true
copy of the original GPA dt. 09.01.1980. It is pertinent to mention here that on
04.05.2017 plaintiff had moved an application under Order XI Rules 12, 14 and
15 read with Sectionsection 151, CPC with the prayer that inasmuch as the defendants
in their pleadings had admitted her contentions vis­à­vis the sale­purchase
documents dt. 09.01.1980 of the suit property, they should be asked to make

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 11 of 18
discovery of the same. Defendants in their reply to this application, while denying
that such documents were in their possession, took the stand that Ms. Posh Pati
had in fact not purchased the suit property. Vide order dt. 25.05.2017 this
application under Order XI Rules 12, 14 and 15 read with Sectionsection 151, CPC was
disposed of. Operative portion of Order dt. 20.05.2017 is as follows: ­

Be that as it may, keeping in view plaintiff having put defendants
to the notice of the property being purchased in the name of
Poshpati and original documents being in possession of
defendants in the plaint itself in reply whereof defendants stated
the same to be matter of record, but now contending in reply to
the present application that these documents are not with them, I
deem it proper to list the matter for cross­examination of
defendants and the inferences in respect of non production of the
originals will be seen and taken care of during the final
arguments.

21. To my mind, filing of such an application together with Order dt.
20.05.2017 was a sufficient notice to the defendants as required under Sectionsection 66
of Evidence Act. Section 66 of Evidence Act requires ‘such notice to produce as
is prescribed by law, and if no notice is prescribed by law, then such notice as the
Court considers reasonable under the circumstances of the case’.

22. SectionIn Prem Chandra Jain v. Sri Ram, 2009 (113) DRJ 617 it has been held
that there is no need to file an application for leading secondary evidence. It was
further held that a party seeking to prove documents by secondary evidence is
required to lead evidence of the existence of circumstances/situations in which
secondary evidence is permissible and whether or not a case for leading secondary
evidence was made out is to be decided at the stage of disposal of the suit. To
similar effect is the ratio decidendi of SectionSanyogta Prakash v. Dhir Bala Malhotra
Ors., 2010 (115) DRJ 109. Thus, it was not at all incumbent on the plaintiff to
move any application for leading secondary evidence.

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 12 of 18

23. Given the aforesaid circumstances, this Court is of the view that this is a
case where the plaintiff has proved on the basis of secondary evidence that Ms.
Posh Pati was the owner of the suit property. Although she may not have been the
owner in the true classic sense, yet she had the rights akin to that of an owner.

24. Next, irrespective of whether Ms. Posh Pati is proved to be owner of the
suit property or not, yet the plaintiff would be entitled to a share in the partition. It
is not in dispute that Ms. Posh Pati, before her demise on 10.05.1989, was in
occupation/possession of the suit property. Defendant no. 1 Ganga Ram (DW1) in
his cross­examination admits that his mother Ms. Posh Pati used to reside in the
suit property. He deposed, “It is correct that my late mother used to ordinarily
reside in the suit property till her death.” Defendant no.2 Sunil (DW2) in his
examination­in­chief (affidavit Ex. DW2/A) stated that he has been residing in the
suit property since his birth and in his cross­examination he deposed, “It is correct
that my mother was in possession of suit property at the time of her death.” It thus
stands proved that Ms. Posh Pati, mother of the parties, de hors ownership rights
on paper, had rights in the suit property, whether they be by way of adverse
possession or merely possessory rights. On Ms. Posh Pati’s demise, defendants are
exclusively enjoying the said rights. Defendants, while continuing to enjoy the
said rights, cannot deny plaintiff’s share on the specious pleas that Ms. Posh Pati
is not proved to be the owner of the suit property. In this regard, the decision of
SectionSurjit Singh v. Ekta Gulati, 2012 SCC OnLine Del 4233 can be referred to,
wherein it was observed: ­

5. In the circumstances, what stands admitted/proved is that the
father of the parties, namely Shri Purushottam Singh was having rights
in the said shop, whether they be ownership rights or rights by way of
adverse possession or merely possessory rights. The said rights, on the
demise of Shri Purushottam Singh, are being enjoyed by the appellants

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only who are but two out of five legal heirs of Shri Purushottam Singh.
The appellants, while continuing to enjoy the said rights, cannot deny
the share of the daughters of Shri Purushottam Singh therein on the
specious plea of Shri Harbhajan Singh being the recorded owner of the
shop.

6. It is significant to note that the appellant do not claim the
possessory rights of the shop from Shri Harbhajan Singh and the
appellant no 1 in his cross examination recorded on 30th April 2011
expressly admitted, “I am in possession of this property through my
father”. On specific query today also as to whether the appellants claim
to be occupying the shop under any authority from the legal heirs of
Shri Harbhajan Singh, the counsel replies in negative.

7. Once it stands proved that the possession of the appellants of
the shop is by inheritance from the father, I am of the view that
possessory rights i.e. the right to control property including the right to
exclude others are a facet of different kinds of rights over immoveable
property and can be subject matter of partition and such possessory
rights by a person who is not necessarily the owner cannot be
appropriated by few only of the legal heirs to the exclusion of others
and all the legal heirs are entitled to a share in the said possessory
rights with respect to the property.

25. SectionSunil Gupta v. Nargis Khanna, 2018 SCC OnLine Del 9082 too is a
precedent for the proposition that even possessory rights in an immovable
property can be subject matter of partition. There are precedents to hold that even
tenancy rights can be partitioned {SectionIresh Duggal v. Virender Kumar Seth, 2014
SCC OnLine Del 6674; SectionBharat Insulation Company v. Suraj Prakash, (2015)
221 DLT 216 and SectionDalip Kumar v. Om Prakash, 2015 SCC OnLine Del 11768}
SectionIn Shyam Behari Ors. v. Ram Kishan Ors., 2013 X AD (Delhi) 236,
partition suit had been filed qua a property allotted by DDA to one late Munna
Lal. It was held that though late Munna Lal did not own the suit property allotted
by DDA, yet the partition suit was very much maintainable. It was held, “The law
of inheritance/succession covers all assets of the deceased; an immovable

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 14 of 18
property, even if on license, would be a valuable asset of the deceased and in the
absence of the law or any provision under which the said allotment was made,
making a distinction, I am unable to accept the argument of the counsel for the
appellants/defendants.” Further, there are also precedents to hold that conditions
in the lease deed prohibiting partition of leasehold interests do not come in the
way of partition of the superstructure {SectionUOI v. Mohinder Pratap Soni, 2016
(157) DRJ 221; SectionMadan Lal v. Kuldeep Kumar, SectionMANU/DE/4039/2013, Pragun
Builtech (P) Ltd. v. Sarla Aggarwal, 190 (2012) DLT 164}. The point therefore
is that it is not necessary that only those properties can be subject matter of
partition that are proved to have been under ‘ownership’ rights on paper.

26. It was the argument of defendants’ counsel that plaintiff (PW1) in her
cross­examination failed to state the purchase price of the suit property and its
date of purchase. In view of the findings/observations of this Court hereinabove,
this argument is of no merit. Next, defendant no.1 Ganga Ram (DW1) in his cross­
examination stated that he too had contributed in purchase of the suit property by
his mother. His mere self serving ipse dixit to this effect will be of no avail.
Further, defendant no.2 Sunil (DW2) in his examination­in­chief (affidavit Ex.
DW2/A) stated that he had never seen any documents of sale­purchase of any
property, including the suit property, in the name of his parents. This stand of
defendant no.2 Sunil is a meritless one and is noted only to be rejected. His not
seeing the ownership documents of the suit property can be of no legal
consequence whatsoever in the present case.

27. Now to the judgments relied upon by defendants’ counsel in support of his
arguments. Narayan Dass Vs. Mahadevi Anr., 2013 Legal Eagle 897 : 2013
MPRN 426 involved a suit filed by a father for permanent injunction, declaration
of ownership and for declaration that order of partition, allotting disproportionate

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 15 of 18
shares, passed by Tehsildar on 16.03.2003 under section 178 of Madhya Pradesh
Land Revenue Code was void. In the previous suit the father and daughter
(defendant no.1) had filed joint written statement stating that they were the joint
owners of the property. It was under such circumstances that it came to held that
the father having failed to prove his title/ownership over the suit property was not
entitled to the reliefs claimed. This judgment does not at all apply to this case. SectionIn
Sital Singh v. Ram Prasad Singh, AIR 1957 Pat 398 it was held that in a suit for
partition when a party claims that any particular item of property held by an
individual member is a joint family property, the burden of proving so rests on
him. This judgment is inapplicable to the facts of the instant case. Plaintiff Savitri
does not say that the suit property is a joint family property. Her case is that suit
property individually belonged to late Ms. Posh Pati. SectionArunachalam Piliai v.
Sorimuthu Piliai, AIR 2004 Mad 185 was a suit for declaration vis­à­vis a certain
pathway and for injunction that plaintiff’s use of the pathway be protected. It
emerged that plaintiff claimed ownership of the pathway, but there was no
evidence to prove the same. It was thus held that plaintiff having failed to prove
ownership over pathway could not then claim easementary right. This judgment is
inapplicable to the facts of this case. The instant suit involves no right to
easement. SectionIn Appasaheb Peerappa Chandgade v. Devendra Peerappa
Chandgade Ors., (2007) 1 SCC 521 partition suit was filed on the plea that
properties were joint Hindu family properties. Defendants contested and claimed
that the properties were self­acquired and therefore there was no question of
partition. It was in these circumstances that it came to be held that initial burden is
on the plaintiff to show that the properties were joint Hindu family properties and
it is then that the burden shifts to the defendants to prove that the property claimed
by them was not purchased out of the joint family nucleus. This judgment is

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 16 of 18
inapplicable. In the present suit, it not the case of either of the parties that the suit
property had been purchased out of joint family nucleus / funds. SectionIn Vijay Gupta
Ors. v. Ashok Kumar Gupta, AIR 2007 Del 166 it was, inter alia, held that in
spite of admission of a fact having been made by a party to the suit, the Court may
still require the plaintiff to prove the fact admitted by the defendant. This
judgment does not hold that in all cases it is mandatory for the Court to seek
independent proof of the admitted facts. Whether or not to ask a party to prove the
admitted facts is discretionary and not mandatory. SectionIn Shiv Charan v. Siri Ram
Anr., 2008 (3) RCR (Civil) 454 in a specific performance suit, it was, inter alia,
held that defendant’s title to immovable property cannot be decided on conjectures
and surmises and that plaintiff should stand on his own legs and not take benefit of
the weakness of defendant’s case. This judgment is inapplicable to this case. The
present is not a suit for specific performance. It has already been held hereinabove
that it stands proved that Ms. Posh Pati, de hors ownership rights on paper, had
rights in the suit property, whether by way of adverse possession or merely
possessory rights; that on Ms. Posh Pati’s demise, defendants are exclusively
enjoying the said rights; that defendants, while continuing to enjoy the said rights,
cannot deny plaintiff’s share on the specious pleas that Ms. Posh Pati is not proved
to be the owner of the suit property; and that under the law it is not necessary that
only those properties can be subject matter of partition that are proved to have
been under ‘ownership’ rights on paper.

28. To sum up the discussion on this issue, it is held that plaintiff is entitled to
a share in partition of the suit property. It is held that the plaintiff has 1/3 share in
the suit property. Both the defendants too have 1/3 share each in the suit property.
This issue is answered in plaintiff’s favour and against the defendants.

29. Issue no.2 -The issue is whether the suit is without cause of action, onus to

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 17 of 18
prove being on the defendants. Outcome of issue no.1 a fortiori entails that
plaintiff certainly had cause of action to sue. This issue is accordingly answered in
plaintiff’s favour and against the defendant.

30. Relief ­ It is held that plaintiff is entitled to a share in partition of the suit
property. It is held that the plaintiff has 1/3 share in the suit property i.e. D­138,
Ganesh Nagar, Pandav Nagar Complex, Delhi measuring 25 sq. yards in khasra
no. 305/212/2 in village Shakarpur Khas, Shahdara, Delhi. Both the defendants
too have 1/3 share each in the suit property. Preliminary decree sheet be drawn up.

Digitally signed
by MURARI
PRASAD SINGH
MURARI Location: Court
No.7,
PRASAD Karkardooma

ANNOUNCED IN THE OPEN SINGH Courts, Delhi
Date:

2019.11.08
11:10:08 +0530

COURT ON 08.11.2019
(M. P. SINGH)
ADJ­03 (EAST)
KARKARDOOMA COURTS
DELHI/08.11.2019

CS No. 1727/Section16 Savitri Devi vs. Ganga Ram Anr. Page No. 18 of 18

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