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NARINDER BHATIA & ANR vs SATISH CHANDER BHATIA

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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:28th November, 2023
Pronounced on: 14th February, 2024

+ CS(OS) 239/2012 & IAs 1861/2012 & 17462/2019
NARINDER BHATIA & ANR. ….. Plaintiff
Through: Mr.Amulya Dhingra and Mr.Diwakar Singh, Advocates.

versus

SATISH CHANDER BHATIA …..Defendant
Through: Mr.S.K.Kashyap, Advocate

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The plaintiffs, who are the two brothers, filed a suit in 2012 seeking Partition of property bearing No. 4/12, Ramesh Nagar, New Delhi 110015along with consequential relief of Mandatory and Permanent injunction, from the defendant who is their paternal uncle (brother of their father).
2. The property bearing No. 4/12, Ramesh Nagar, New Delhi 110015 (hereinafter referred to as the “suit property”) was originally acquired by Shri Dewan Chand from the Government of India by virtue of duly registered Lease Deed dated 27.05.1960. Shri Mela Ram, grandfather of the plaintiffs and father of the defendant, purchased the suit property vide Sale Deed dated 04.06.1960 from Shri Dewan Chand (the previous owner) and started residing in the suit property along with the family. Shri Mela Ram died intestate on 01.11.1979 and after his demise, the suit property was inherited jointly and equally by Smt. Kaushalya Devi, wife of late Shri Mela Ram and his two sons namely, Shri Tilak Raj Bhatia, father of the plaintiffs and Shri Satish Chandra Bhatia, the defendant, each having undivided 1/3rd share in the suit property.
3. Smt. Kaushalya Devi, the grandmother of the plaintiffs, died intestate on 18.06.2007 without leaving any Will or testament. After her death, her 1/ 3rd undivided share in the suit property devolved equally upon her Class I legal heirs who were her two surviving sons, namely, Shri Tilak Raj Bhatia, the father of the plaintiffs and Shri Satish Chandra Bhatia, the defendant. Thus, both the brothers became the joint owners of 1/2 undivided share in the suit property.
4. Shri Tilak Raj Bhatia, the father of the plaintiffs joined Air Force in the year 1963–64 and he with his family lived mostly in official accommodation at his place of posting. Shri Tilak Raj Bhatia was posted at Delhi in the year 1993 and he decided to live along with his family, permanently in the suit property. The first floor of the suit property comprised of one room and a kitchen. After shifting in the property he added the lounge and kitchen. The first floor of the suit property has been exclusively occupied and used by the family of the plaintiffs. It is asserted that in the year 1995, Shri Tilak Raj Bhatia, removed the stairs from the inside of the house and constructed independent stairs from outside.
5. The defendant has been in possession of the ground floor while the father of the plaintiffs was in possession of the first floor of the undivided suit property. It is asserted that Shri Tilak Raj Bhatia and his family were not welcomed by the family of the defendant in the suit property and from the date of their shifting in the property, the relations between the parties have been acrimonious due to uncooperative behaviour of the defendant and his family who used abusive language against the family of late Shri Tilak Raj Bhatia.
6. The ground floor of the suit property was used for commercial purpose by the defendant who is running a shop in the front portion thereof. In the year 1997, the defendant demolished the front passage from the ground floor to the first floor and extended the area of his commercial shop and when Shri Tilak Raj Bhatia tried to stop the defendant, he threatened to kill Shri Tilak Raj Bhatia and his family members. A police complaint was lodged at Kirti Nagar Police Station, New Delhi on 30.12.1997 by Shri Tilak Raj Bhatia. However, due to the intervention of Smt. Kaushalya Devi, the grandmother of the plaintiffs, no FIR was lodged in this regard.
7. Smt. Darshana Bhatia, the wife of Tilak Raj Bhatia and the mother of the plaintiffs died from a stroke, on 20.05.1998. Shri Tilak Raj Bhatia, alone continued to live and be in exclusive possession and occupation of the first floor of the suit property as at that time, Plaintiff No.1 was settled in Ahmedabad. Plaintiff No.2 shifted to Bangalore in May 2000, after which he moved to United Kingdom in May, 2001 where he settled with his family.
8. It is alleged that after the death of Smt. Kaushalya Devi, the grand-mother of the plaintiffs, the relationship between Shri Tilak Raj, the deceased father of the plaintiffs, and the defendant further worsened. The defendant started extending threats to Shri Tilak Raj Bhatia, who was living alone, to vacate the first floor and move out of the suit property or he would kill Shri Tilak Raj Bhatia with his sons. On 3.03.2008 the defendant assaulted Shri Tilak Raj Bhatia and seriously injured him and he was taken to Deen Dayal Upadhaya Hospital, Hari Nagar by the neighbours. A complaint against the defendant was lodged at the Police Station Kirti Nagar, New Delhi and the defendant was taken in police custody. Upon the apology tendered by the defendant and his promise to behave appropriately in the future, no case was registered against him.
9. However, despite this compromise the defendant did not mend his ways and continued to threaten and abuse Shri Tilak Raj Bhatia, who on 21.04.2008, sent a letter to SHO, Kirti Nagar, New Delhi, and requested for protection in the category of a senior citizen but no action was taken by the SHO. Left with no other option, Shri Tilak Raj Bhatia on 30.04.2008, sent a letter to the Chief of Indian Air Force, narrating the whole incident and requested for grant of protection being an Ex-Service man. The Secretary, Rajya Sainik Board, Delhi upon receipt of the letter from Shri Tilak Raj Bhatia, wrote a letter to DCP, West Zone and requested him to take action, who in turn, directed the SHO, Tilak Nagar, to take appropriate action against the defendant. Only after this intervention by SHO, Tilak Nagar did the defendant promise to behave properly for the second time.
10. This time Shri Tilak Raj Bhatia insisted on a written assurance and an Agreement dated 25.06.2008 was executed between the brothers for peaceful sharing of their joint and undivided property. It was recorded that the defendant would continue in possession of the ground floor of the suit property while Shri Tilak Raj Bhatia would have possession of the first floor of the suit property. It was also agreed that the defendant would not interfere in the occupation and use of the first floor of the suit property by Shri Tilak Raj Bhatia and the defendant would allow Shri Tilak Raj Bhatia to raise necessary pillars and columns as may be required for further construction above the first floor of the property. It was also agreed that the House Tax of the first floor would be in the name of Shri Tilak Raj Bhatia in the records of Municipal Corporation of Delhi and would be paid by him. It is claimed that the Agreement was only a temporary arrangement for joint and peaceful possession of the suit property even though the suit property continued to be undivided and unpartitioned.
11. Shri Tilak Raj Bhatia, thereafter on several occasions requested the defendant to get the suit property converted into Freehold and mutually partition the same by metes and bounds. However the defendant, holding a vantage point, as he was using the property for commercial purpose, kept refusing the partition on one reason or another.
12. It is asserted that as the plaintiff Nos.1 and 2 were settled in Ahmedabad and London respectively, they would along with their family often visit and live with their father. On the last occasion when the plaintiffs visited their father in the suit property, they all requested the defendant to partition the suit property but the defendant declined. Defendant also refused their request of further constructing the suit property in terms of their mutual Agreement and threatened that he would complain to the police and other authorities for any illegal and unauthorised construction. Since the building was old, no further construction could be done by the plaintiffs as pillars or columns needed to be constructed from the ground floor.
13. Shri Tilak Raj Bhatia died on 5.12.2011 due to a massive heart attack. It is asserted that since the death of their father, the plaintiffs are in exclusive possession of the first floor of the suit property. Smt. Darshana Bhatia, the mother of the plaintiffs had already passed away and the only daughter Smt. Sonika Dudeja of Shri Tilak Raj Bhatia had also expired on 9.02.2004 without any children. Therefore, the plaintiffs, being the only Class I legal heirs of Shri Tilak Raj Bhatia, inherited his 1/2 share in the undivided suit property, equally and jointly.
14. The plaintiffs approached the defendant and requested him on 09.12.2011 and 21.12.2011 for fair and equal partition of the suit property by metes and bounds, keeping in mind the difference in rates of the ground and first floor, but the defendant bluntly refused for the partition of the suit property and openly declared that he would not give any share in the suit property to the plaintiffs or their family members. He also extended threats that he would throw away all their belongings and take forceful possession of the first floor of the suit property as well. The plaintiffs apprehend that in the absence of the plaintiffs, the defendant may forcibly enter the first floor of the property and take its possession. The efforts of the plaintiffs to amicably resolve the disputes aided by the intervention of few other people, have not been successful.
15. It is asserted that since the suit property is still unpartitioned and undivided, the plaintiffs are entitled to receive a share in the benefits of the commercial usage of the suit property. Hence, the plaintiffs has claimed mense profits amounting to Rs.50,000/- per month from the defendant, the rental value of the property being more than Rs.1,00,000/- per month.
16. The plaintiffs, have thus, sought a Preliminary Decree of partition with respect to the suit property and the appointment of Local Commissioner for inspection of the suit property who may partition the same by metes and bounds and put the parties in physical possession of their respective shares whereupon Final Decree of partition may be passed. A decree of Permanent Injunction against the defendants for restraining them from creating any third party interest, is also sought along with the costs of the suit and incidental proceedings.
17. The defendant Shri Satish Chandra Bhatia in his Written Statement took the preliminary objection that the present suit of the plaintiff is liable to be dismissed as the plaintiffs have not disclosed that after the death of Smt. Kaushalya Devi, the suit property had been partitioned on 20.08.2007 between Shri Tilak Raj Bhatia, father of the plaintiffs and the defendant. At the time of partition, the entire property was valued at approximately Rs.20,00,000/- and the share of the deceased father of the plaintiffs amounting to Rs.10,00,000/- was given to him in terms of the settlement arrived at, in the presence of close relatives and respectable members of the Society namely, Shri Madan Lal Bhatia, Shri Sanjeev Kumar Bhatia, Dr Rajkumar Bhatia, and Shri Arvind Singh. However, in good faith, no document was executed to record this partition. On receiving the amount, Shri Tilak Raj Bhatia, deceased father of the plaintiffs, shifted from the above suit property. The suit property is claimed to have been already been equally divided between the father of the plaintiffs and the defendant and nothing remains in the suit.
18. On merits, it is denied that the plaintiffs are in exclusive possession of the first floor of the suit property and it is claimed that the defendant is the owner and has exclusive possession of the entire suit property.
19. The defendant has denied that he used abusive language against the family of late Shri Tilak Raj Bhatia. It is explained that the demolition of the front passage from the ground floor to 1st floor, was undertaken in 1997 to extend the area of his commercial shop, with the consent of the father of the defendants and grandfather of the plaintiffs.
20. It is further asserted that after the death of their mother Smt. Kaushalya Devi, it was the defendant who made every effort to maintain a good relationship with his brother Shri Tilak Raj Bhatia but it was he who created disturbance between both the families and fought with the defendant on petty matters. The deceased father of the plaintiffs was in the habit of lodging false complaints in the Police Station by making false allegations against the defendant and his family members. It is asserted that that Shri Tilak Raj Bhatia mentally and physically harassed the defendant and his family members but in order to maintain peace, they did not take any action against Shri Tilak Raj Bhatia and remained silent.
21. The defendant has claimed that he was made to sign certain documents without disclosing the contents and the alleged mutual Agreement dated 25.06.2008 was a part of the said documents.
22. The defendant has asserted that the plaintiffs have nothing to do with the ground floor of the suit property. The plaintiffs have no right to interfere with the running of the shop by the defendant on the ground floor as he is the sole owner of the suit property. The suit property has already been partitioned and the suit of the plaintiffs is liable to be dismissed.
23. The plaintiffs in the Replication to the Written Statement denied the assertions made by the defendant that the suit property was ever partitioned by the defendants or that money in lieu of the share of the deceased father of the plaintiffs was given to him or that after receiving his share, the deceased father of the plaintiffs shifted from the suit property.
24. It is claimed that that even though the defendant has alleged that settlement of Rs.10,00,000/- (Ten lakhs) took place between Shri Tilak Raj Bhatia and the defendant, but has miserably failed to produce any documentary proof in order to substantiate his assertion. It is further asserted that the alleged payment of Rs.10,00,000 does not find mention in the Tax documents of the defendant.
25. Moreover, Transfer of Property Act, 1882 (hereinafter referred to as the “TPA”) mandates that the transfer of any property by any person can be effected only through a registered instrument. Hence, the assertion of the defendant that a payment of Rs.10,00,000 was made to the deceased father of the plaintiff is false, vexatious and made with the intent to usurp the property of the plaintiffs.
26. It is further denied that the defendant was made to sign certain documents without disclosing that they included the mutual Agreement dated 25.06.2008. It is asserted that the defendant had signed the documents after going through them and that he was aware about the mutual Agreement.
27. The issues were framed on 06.01.2015 as under:
(i) Whether the Suit property bearing No.4/12, single story, Ramesh Nagar, Delhi-110015 was earlier partitioned between the father of the plaintiffs and defendant? (OPD)
(ii) If the answer to the above issue is in the negative, whether the plaintiffs are entitled for a decree of partition with respect to the said suit property? (OPP)
(iii) Relief.
28. PW1 Shri Rakesh Bhatia, Plaintiff No.2, tendered his evidence by way of affidavit Ex.PW1/A in support of his case and reiterated the assertions as made in the plaint. He proved the copy of the Lease Deed as Ex.P-1, copy of the Sale Deed dated 04.06.1960 as Ex.P-2, photo copy of Death Certificate of his grandmother as Ex. P-3, photocopy of the House Tax receipt as Ex. P-4, photocopy of the Death Certificate of the father Sh. Tilak Raj as Ex-P-5, photocopy of the Complaint to SHO, Kirti Nagar, dated 30.12.1997 as Mark B, prescription of DDU Hospital dated 03.03.2008 as Mark C, photocopy of another complaint dated 21.04.2008 as Mark D, copy of letter sent by Secretary, Rajya Sainik board to DCP Rajouri garden as Mark E, Letter written by Tilak Raj Bhatia to Air Force Commanding Officer as Mark F, Original site plan as Ex.PW 1/1, Mutual Agreement as Ex.PW1/2, copy of the Original Death Certificate of his grandmother as Ex.PW1/3, the Original House Tax receipt as Ex. PW1/4, copy of the Original Death Certificate of the father Sh. Tilak Raj as Ex-PW1/5 and the complaint to P.S. Kirti Nagar, dated 20.12.2011 as Ex. PW1/6.
29. DW-1 Shri Satish Chander Bhatia, the defendant in support of his case, tendered his evidence by way of affidavit which is Ex. DW-1/A. He re-iterated the assertions made in his Written Statement and deposed regarding the factum of Oral Partition.
30. DW-2 Sanjeev Bhatia, son of the defendant, tendered his evidence by way of affidavit which is Ex. DW-2/A. He supported the case of the defendant that the property had been partitioned and a sum of Rs.10,00,000/- was paid to the father of the plaintiffs in lieu of his share in the suit property.
31. DW-3 Shri Arvinder Singh, friend of defendant, in his affidavit of evidence Ex. DW-3/A testified that he had known the family of the defendant from the last 15 years approximately and that he was present at the time of the Oral Partition, on 20.08.2007. He further narrated the events of the date of the partition.
32. DW-4 Dr. Raj Kumar Prajapati, tendered his evidence by way of affidavit, but did not appear for cross-examination.
33. Vide Order dated 16.01.2019, the evidence of the defendant was closed.
34. The plaintiffs in their Written Submissions reiterated the facts as stated in the Plaint and argued that the onus to prove that suit property was earlier partitioned between the father of the plaintiffs and defendant was on the defendant, which he has failed to prove. Rather, the evidence of the defendant supports the case of the plaintiffs that suit property is joint and undivided till date.
35. Reliance was placed on the case of Sunil Gupta v. Nargis Khanna Manu/DE/1897/2018; Surinder Pal Singh v. Ravinder Pal Singh Manu/DE/1128/2014; and Madan Lal versus Kuldip Kumar & Ors. Manu/DE/4039/2013.
36. The defendant in his Written Submissions reiterated that the Oral Partition of the suit property had already taken place which is proved by the witnesses examined by the defendant. Thus, the present case is liable to be dismissed with heavy costs.
37. Submissions heard and the record perused.
38. The undisputed facts are that the plot no. 4/12, i.e. the suit property was leased by the Government of India to Shri Dewan Chand vide Lease Deed dated 21.05.1960, Ex. P-1. Thereafter, the suit property, (single storey) was sold by Shri Dewan Chand to Mela Ram, grandfather of the plaintiffs and father of the defendant through a registered Sale Deed dated 04.06.1960 Ex. P-2 after which Shri Mela Ram started residing in the said property along with his family members.
39. Shri Mela Ram died intestate on 01.11.1979 leaving behind his wife Smt. Kaushlaya Devi and two sons namely Tilak Raj Bhatia, father of the plaintiffs and Satish Chand Bhatia, defendant as his Class 1 heirs, who became owners of 1/3rd share each in the suit property as per the provisions of Hindu Succession Act, 1956 (hereinafter referred to as the “Act, 1956”).
40. On 18.06.2007 Smt. Kaushlaya Devi wife of late Mela Ram also died intestate leaving behind her sons Shri Tilak Raj Bhatia and the defendant, who are her legal heirs as per Section 15 of the Act, 1956. Thus, they became co-owners to the extent of 1/2 share in the suit property.
41. Shri Tilak Raj Bhatia died on 05.12.2011 and his half share devolved in equal share upon his two surviving sons, who are the plaintiffs. The only daughter Smt. Sonika Dudeja of Shri Tilak Raj Bhatia had already expired on 9.02.2004 without any children. The mother of the plaintiffs also died on 20.05.1998.
42. Thus, the suit property came to be owned by the plaintiffs to the extent of 1/2 share in the suit property and the defendant for the other 1/2 share.
Issue No.1
“i) Whether the Suit property bearing No.4/12, single story, Ramesh Nagar, Delhi-110015 was earlier partitioned between the father of the plaintiffs and defendant? (OPD)”
43. It is admitted case that suit property was purchased by the Sh. Mela Ram, grandfather of the plaintiffs and upon the demise of him and his wife, Kaushalya Devi, the property devolved in equal share upon his two sons. The defendant has asserted that after the death of their mother, Kaushalya Devi, the deceased father of the plaintiffs and the defendant entered into a settlement on 20.08.2007 whereby the value of entire property was ascertained to be approximately Rs. 20,00,000/-. The half share of deceased Shri Tilak Raj Bhatia, father of the plaintiff came to a sum of Rs. 10,00,000/- which was given to him in the presence of closed relatives and respectable members of the Society i.e. Madan Lai Bhatia, Sanjeev Kumar Bhatia, Dr. Raj Kumar and Shri Arvinder Singh.
I. The defendant has taken a plea of Oral Partition/Settlement on 20.08.2007 between the parties.
44. The validity of an oral partition has been recognised in the case of Kale vs. Director of Consolidation 118 (1976) 3 SCC 119, wherein the Apex Court observed as under: –
“10. In other words to put the binding effect and the essentials of a family settlement in a concretised form, the matter may be reduced into the form of the following propositions:
(1) The family settlement must be a bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;

(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;

(3) The family arrangement may be even oral in which case no registration is necessary;

(4) It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made **under the document** and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2)of the Registration Act and is, therefore, not compulsorily registrable;

(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;

(6) Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”
45. In Teg Bahadur Bhujil vs. Debi Singh Bhujil AIR 1966 SC 292, the Hon’ble Supreme Court observed that a family arrangement can also be arrived at orally and registration would not be required only if its terms may be recorded in writing as a Memorandum of what has been agreed upon between the parties. The Memorandum need not be prepared for the purpose of being used as a document on which future title of the parties be founded. It is usually prepared as a record of what has been agreed upon so that there is no hazy notion about it in future.
46. In Kalwa Devadattam vs. Union of India AIR 1994 SC 880, while endorsing that an oral partition was permissible, the Hon’ble Apex Court observed that the burden of proof remained on the person who asserted such partition. The separate occupation of portions, division of the income of the joint property, defining of shares of the joint property in the revenue or land registration records, mutual transactions, though not conclusive proof of partition, could be the factors which may become significant to prove an oral agreement as observed in Bhagwani Kunwar vs. Mohan Singh AIR 1925 PC 132 and Digambar Adhar Patil vs. Devram Girdhar Patil AIR 1995 SC 1728.
47. Thus, while Law recognizes Oral Partition as permissible mode of partition, but the same must be proved by the party asserting the factum of Partition by leading cogent evidence.
48. To corroborate this plea of Oral settlement dated 20.08.2007, DW-1 Sh. Satish Bhatia, the defendant deposed that on that date, in the presence of close relatives and respectable members of the Society namely, Shri Madan Lal Bhatia, Shri Sanjeev Kumar Bhatia, Dr Rajkumar Bhatia, and Shri Arvinder Singh, the value of suit property was assessed as Rs. 20,00,000/- and he paid Rs. 10,00,000/- to Sh. Tilak Raj, his brother, towards his half share in the suit property and he/the defendant became the rightful owner of the entire suit property. What thus, needs to be considered is whether the defendant has been able to discharge the onus to prove this alleged plea of oral partition.
49. Admittedly, no receipt of this alleged payment was executed, which is quite unbelievable especially in the backdrop of admitted acrimony between the two families. Significantly, DW-1 has admitted in his cross-examination that he is ‘not having any document pertaining to partition of suit property’ and does not have ‘any receipt of payment of Rs l0 lac’. Further, no details have been given to substantiate from where the money was arranged and the mode of payment.
50. The defendant had deposed that pursuant to receiving the money, Sh. Tilak Raj vacated the suit property and he became the owner of the suit property. He however, admitted that the keys of the 1st floor are in the possession of the plaintiffs, though they are not residing there. Pertinently, when he was confronted with the House Tax receipts Ex. P-4 in the name of Sh. Tilak Raj Bhatia, he was unable to give any cogent explanation. If the partition and settlement by payment of money did take place in 2007 and the defendant indeed became the owner of the entire suit property, why would his brother pay the house tax for the same. These admissions by defendant in his cross examination bely his claim of oral partition.
51. DW-2 Sanjeev Bhatia, son of Defendant No.2 corroborated the testimony of his father, DW-1, Sh. Satish Bhatia. He however, admitted in his cross-examination that ‘at the time of his death late Shri Tilak Raj Bhatia was residing on the first floor in the property in dispute, he went to the market and at a distance of about 100 meters from our residence he collapsed due to sudden heart attack and died. All the cremation connected rituals and “Tehrahwin” took place from the property in dispute itself’. He further admits that the first floor is locked by the plaintiffs (sons of Late. Sh. Tilak Raj) though they are not residing in Delhi and that they have never gone to the first floor. Further, he has deposed that Sh. Tilak Raj was supposed to vacate the property after sometime but he never vacated it till his death.
52. DW-3 Shri Arvinder Singh, friend of defendant, in his affidavit of evidence Ex. DW-3/A also testified that he had known the family of the defendant from the last 15 years approximately and that he was present at the time of the Oral Partition, on 20.08.2007. In his cross-examination dated 16.01.2019, he specifically states that even though in para no. 3 of his affidavit he has written that the property was equally divided between the parties but infact no partition took place; only the money was exchanged between the parties.” Thus, he denied that the partition of the suit property had taken place between the parties and further stated that he did not know “who instructed the typist to type that property was partitioned equally” in his affidavit of evidence. Similarly, though he deposed that since 20.08.2007, the defendant and his family are residing in the entire suit property but in his cross-examination he admits that he has met the defendant 5-6 times in all and he has never visited the first floor and has no idea if there exist two rooms on the same. The defendant had deposed that DW-4 Dr. Raj Kumar Prajapati was also allegedly present when Rs.10,00,000/- were paid to Sh. Tilak Raj. However, DW-3 in his cross-examination denies that he knows any such person.
53. The admissions made in the cross-examination by the defendant and his witnesses makes it abundantly evident that no oral partition ever took place in 2007 as alleged by the defendant.
54. Except the oral testimony, no cogent evidence or document whatsoever had been adduced on behalf of the defendant to corroborate this transaction of alleged payment of the money in lieu of the share of the father of the plaintiffs. Thus, it is evinced that the defendant has not been able to prove that any Oral partition and settlement was ever arrived at between the parties.
II Mutual Agreement dated 25.06.2008 for peaceful possession of the respective portions of the suit property by the parties:
55. The Plaintiffs have asserted that because of the continuous acrimony and harassment, police intervention was sought and their late father and the defendant arrived at the Mutual Agreement dated 25.06.2008 Ex.PW1/2 by the parties for the peaceful possession of the suit property, as under:
“MUTUAL AGREEMENT
We the brothers namely. (1) Raj Bhatia S/o Lase Shri Mela Ram Bhatia and (2) Shri Satish Chander Bhatia S/o Late Shri Mela Ram Bhatia both residing in House No. 4/12 (S.S.) Ramesh Nagar, New Delhi-110015 hereby mutually, agree to sharing the rights of the property i.e. House No. 4/12 (S.S. Ramesh Nagar, New Delhi-110015, (hereinafter called as (“Property”).
The mutually agreed terms and conditions the said sharing are as follows:
1. Whereas hereafter the ground floor of the said property will be under the possession of ‘Shri Satish Chander Bhatia and First Floor with roof right of the said house will be under the possession of Shri Tilak Raj Bhatia
2. Hereafter Shri Satish Chander Bhatia will not interfere/object in any way to Shri Tilak Raji Bhatia for any kind of alteration/addition/renovation in his share of the house i.e. 1st Floor land and above.
3. Hereafter Shri Tilak Rag Bhatia will not interefere/object in any way to Shri. Satish Chander Bhatia for any kind of alteration/addition/renovation in his share of the house i.e. Ground Floor of the said property.
4. Hereafter Shri Satish Chander Bhatia will be liable for pay the House Tax for Ground Floor of the property.
5. Hereafter the House Tax of 1st Floor onwards of the property will be paid by Shri Tilak Raji Bhatia:
6. Hereafter the separate Electricity/water meter for Ground Floor as well as First Floor onwards will be installed and the same will be paid by individually.
7. That Shri Tilak Raj Bhatia will make necessary arrangements at his own cost of property close the existing opening in the roof of the Ground Floor. Shri Satish Chander Bhatia will allow proper wide stair case of 3 feet width from the Ground Floor to First Floor.
8. For further construction above First Floor Shri Satish Chander Bhatia will allow to raise necessary pillars/columns as may be required.
9. Shri Tilak Raj Bhatia and Shri Satish Chander Bhatia will equally share the expenses of the mutation and getting freehold of the property.
10. Shri Satish Chander Bhatia will pay for any penalty due to L&DO for misuse of the Ground Floor of the property.
11. All kind of Government dues till date in respect of individual share of the property should be paid individually by Shri Tilak Raj Bhatia and Shri Satish Chander Bhatia themselves.”

56. The plaintiff Shri Rakesh Bhatia as PW1 has explained that after the Mutual Agreement, Ex.PW1/2 or Ex.DW1/P1 was executed for ensuring the peaceful sharing of the joint and undivided property, the same was also acted upon by the parties. Shri Tilak Raj, their father was paying the House Tax in respect of the First Floor of the suit property vide House Tax Receipt Ex.P-4. To corroborate his assertions the House Tax Receipt Ex.P-4 has been produced, which shows that the House Tax in respect of First Floor was being paid by the plaintiff. It is further admitted by the plaintiff, that there was a separate water and electricity connection for the First Floor in the name of Late Shri Tilak Raj and that all the taxes/bills were being paid by Shri Tilak Raj during his life time and after his demise, by his sons, till recently when the electricity and water connection got disconnected on account of non-payment of bills.
57. The defendant Satish Chand Bhatia has denied the execution of this Agreement in the Written Statement as well as his testimony as DW1 by stating that he was made to sign this Agreement along with other papers in the Police Station without disclosing that the alleged Mutual Agreement Ex.DW1/P1 was a part of them. Interestingly, while admitting his signatures on certain documents before the police, he in his cross-examination denied completely that he was ever called by the SHO, P.S. Kirti Nagar or that he had signed any papers, whatsoever. The stand of defendant No.1 is inconsistent, purely to wriggle out of the admission of his signatures on the mutual Agreement Ex.DW1/P1.
58. Similarly, DW-2 Shri Sanjeev Bhatia in his cross-examination has deposed that this Agreement came to their knowledge when they received the summons for the present suit. He further clarifies that it was at time that they came to know that in the guise of other documents under the pressure of SHO, P.S. Tilak Nagar, Delhi, Shri Tilak Raj also got signed the Agreement dated 25.06.2008. DW2 admits the mutual Agreement Ex. PW1/2 or Ex.DW1/P1 to be bearing the signatures of defendant, his father.
59. It is established from the evidence of both the parties that a Mutual Agreement Ex. PW1/2 or Ex.DW1/P1was indeed entered into between the parties. The claim of the defendant that he was not aware about this Agreement or had been forcibly made to sign some documents at Police Station without being aware of the contents is not sustainable as the terms were acted upon by the Parties as established from the evidence as discussed below.
60. The first aspect which shows that the Agreement was acted upon is the separate payment of House Tax by the parties. DW-1, the defendant in his testimony dated 15.05.2017, categorically stated that he was paying the house tax for the suit property and it was in his name. Upon being confronted with House Tax Receipts Ex.P4 which were in the name of Sh. Tilak Raj for the first floor of the suit property, he stated that he was ‘not sure of when and how he got the house tax assessed temporarily in his name’. There is therefore, sufficient evidence to corroborate that pursuant to the Mutual Agreement Ex.DW-1/P1, the parties separated the House Tax liability for their respective portions in the suit property.
61. Likewise, DW2 Sanjeev Bhatia has explained that the property was assessed for the purpose of House Tax in the name of his grandfather late Shri Mela Ram. His explanation of the first floor house Tax Bills in the name of Sh. Tilak Raj after 2008 was that till the period MCD was sending house tax bills, they used to pay the house tax and since MCD has started self-assessment of House Tax, they have stopped paying the House Tax. He denied that the House Tax was ever assessed in the name of his father, defendant and the Plaintiff’s father individually floor wise, which is clearly against the House Tax receipts on record.
62. Another aspect in favour of the case of the plaintiff is the admission of the defendant that there was a separate water and electricity connection for the first floor. Notably, he only asserted that charges against electricity connections in the ground floor were being paid by him. The admission made by him is as under-
“It is correct that the first floor is having separate water and electricity connection. In the ground floor there are two separate electricity connections, one residential and one commercial. It is also correct that the charges against electricity connections in the ground floor are being paid by me.”
*** *** ***
“It is correct that Tilak Raj Bhatia got installed separate electricity meter for floor portion of suit property.”

63. Further, DW2 in has deposed that the electricity connection continues to be in the name of the father of the plaintiffs and was disconnected due to non-payment “only 3-4 months ago”.
64. From the above statements it is clear that there is a separate electricity connection and admittedly, the same has not been changed till date by the defendant. This shows that the plaintiffs continue to have an interest in the suit property and continue to occupy the 1st floor thereof, even though they might not be residing there.
65. As it is proved above that the 1st floor of the suit property continues to be in the possession of the plaintiffs and that a separate Electricity/water meter for Ground Floor and First Floor was installed along with separation of payment of House Tax, it is evident that the Mutual Agreement between the parties was acted upon for the peaceful possession of the property by father of the plaintiffs and the defendant respectively.
66. In light of the evidence led by the plaintiffs and the admissions made by the defendants as discussed above, it is established that the property continued to be joint in nature and there was no Oral Partition that took place in 2007. The Mutual Agreement Ex. DW1/P1 was executed and was accordingly acted upon for the peaceful co-existence and enjoyment of the separate portions of the suit property by the parties whereby the defendant took the exclusive possession of the Ground floor while the plaintiff’s father took possession of the First Floor. No partition of the properties was affected and the parties continue to be co-owners.
III. Mesne Profits and Rental Value
67. The plaintiffs have claimed that the defendant is using the ground floor of the suit property for commercial purpose of running a shop and earning from there and since the suit property is still unpartitioned and undivided and equally owned by the parties, the plaintiffs are also entitled for the recovery of mesne profits amounting to Rs.50,000/- per month from the defendant. It is also claimed that since the ground floor of the suit property has a higher value than the first floor and the defendant has unlawfully deprived the plaintiffs from occupying the ground floor, they are also entitled to recover the amount of Rs.50,000/- as a share of rental value from the defendants, the rental value of the said property being more than Rs.1,00,000/- per month.
68. In this regard, it is observed that there was a Mutual Agreement entered into between the father of the plaintiffs and the defendant whereby the exclusive possession of the ground Floor of the suit property was taken by the defendant while exclusive possession of the First Floor was taken by the father of the plaintiffs. The defendant has been utilizing his portion for running his business and the plaintiffs cannot claim profits from the business of the defendant which is a sole proprietorship or a share of rental value from the defendants. Thus, the claim of the plaintiffs for recovery of mesne profits or rental value thereof, is rejected.
69. In the light of above discussion, it is held that no partition of the suit property ever took place, though the parties by mutual Agreement were occupying their respective shares for peaceful co-existence.
70. Issue No.1 is accordingly, decided in favour of the Plaintiffs.
Issue No.2
(ii) If the answer to the above issue is in the negative, whether the plaintiffs are entitled for a decree of partition with respect to the said suit property? (OPP)
71. Since, it has been held in Issue No. 1 that no partition had taken place of the suit property, it is hereby held that the plaintiffs, Shri Narinder Bhatia and Shri Rakesh Bhatia, sons of Sh. Tilak Bhatia are together entitled to 1/2 share, in terms of Section 19 of the Act, 1956. The defendant, Shri Satish Chander Bhatia is entitled to 1/2 share. The plaintiffs and the defendant are held to be entitled to 1/2 share each in the suit property.
72. Issue No.2 is decided accordingly.
Relief
73. In light of the findings on the Issues discussed above, a Preliminary Decree of Partition is hereby passed in respect of suit property defining the shares of the parties as under: –
(i) Shri Narinder Bhatia and Shri Rakesh Bhatia are together entitled to 1/2 share.
(ii) Shri Satish Chander Bhatia is entitled to 1/2 share.
74. The claim for mesne profits is rejected.
75. List on 20.02.2024 for further proceedings in respect of Final Decree.

(NEENA BANSAL KRISHNA)
JUDGE

FEBRUARY 14, 2024/nk

CS (OS) 239/2012 Page 24 of 24