RAJ KUMAR vs RAM KUMAR & ANR.

* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on:10th November, 2023
Pronounced on:23rd January, 2024

+ CS(OS) 341/2018
RAJ KUMAR
….. Plaintiff
Through: Mr. Varun Mehlawat, Advocate.
versus
RAM KUMAR & ANR.
…..Defendants
Through: Mr. Rajesh Kumar, Advocate for LRs of Defendants except Vinay Jain and Master Rishabh Jain.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T
NEENA BANSAL KRISHNA, J.
I.A. 16891/2023 (under Order XII Rule 6 read with Section 151 CPC on behalf of the plaintiff for Judgment on Admission)

1. An application has been filed on behalf of the plaintiff under Order XII Rule 6 of the Code of Civil Procedure, 1906 (hereinafter referred to as “CPC”) read with Section 151 CPC seeking judgment on admission made by the defendants.
2. The plaintiff has filed a suit for Partition, Permanent Injunction and Mesne Profits/ Damages in which the defendant has already led his evidence and now the matter is listed for plaintiff’s evidence. It is asserted in the Application that the suit property bearing No.21, measuring about 400 square yards, comprised in khasra No.33/19min, Dharam Colony, Village Nangloi Jat, Delhl-110041, (hereinafter referred to as the “suit property”), was purchased jointly by the plaintiff and the defendants (who are the brothers) in the year 1978 on the basis of GPA, Agreement to Sell, Affidavit, Will and Receipt and all of them have 1/3rd undivided share in it. After the purchase of the suit property, the same was constructed from time to time in parts and the parties started residing there. The plaintiff in the month of June, 1995 along with his family, shifted to rented accommodation at Pitampura, Delhi. However, in the month of August, 2017 when the plaintiff requested for partition of the suit property by metes and bounds, the defendants failed to do so. Hence, the suit has been filed for Partition, Permanent Injunction and Mesne Profits/ Damages.
3. The plaintiff has asserted that the defendants have admitted the title documents filed by the plaintiff such as the GPA, Agreement to Sell, Affidavit, Will dated 22.09.1987, which clearly show that the plaintiff has 1/3rd undivided share in the suit property. Thus, there are clear and unambiguous admissions in the Written Statement of the defendants that the plaintiff is a co-owner in the suit property.
4. It is further submitted that the only defence of the defendants is that the suit property has already been orally partitioned between the parties in 1987 and the plaintiff has taken possession of his 133 sq. yds. of the property in the back portion. However, there is no document to support this plea of oral partition. The GPA and Affidavit dated 23.09.1987 referred to by the defendants does not refer to any oral partition and it no where mentions that possession of 133 sq. yds. in the back portion of the suit property has been handed over to the plaintiff. Rather, these documents state that the defendants are in possession and owner of the property and the GPA was executed only for the purpose of sale. Moreover, this GPA has not been signed by the plaintiff.
5. In Vineeta Sharma vs. Rakesh Sharma (2020) 9 SCC 1, the Supreme Court has clearly held that the plea of oral partition or Memorandum of Partition which is unregistered, can be manufactured as any point of time without there being any contemporaneous public documents to support it. Such plea of oral partition has to be rejected and cannot be taken into consideration.
6. The plaintiff has also placed reliance on the case of Urmila Sharma v. Jai Bhagwan & Ors. 2021 SCC OnLine Del 4552.
7. In view of the above submissions, the plaintiff has asserted that a Preliminary Decree be passed in respect of 1/3rd share each of the parties in the suit property.
8. The application is contested by the defendants orally who have contended that the property has already been divided by metes and bounds vide oral partition which took place in 1987 and the plaintiff is already in possession of 133 sq. yds. of land in the back portion of the suit property. The suit in fact, is liable to be dismissed.
9. Submissions heard.
10. It is an admitted case of the parties that they had jointly purchased the suit property measuring 400 sq. yds. vide GPA, Agreement to Sell, Will, Receipt dated 22.02.1978.
11. There is no denial by any of the parties that all three brothers became owner of 1/3rd undivided share in the suit property. The defendants in their Written Statement have explained that the suit property was purchased by them out of their funds and that the name of the plaintiff was added out of love and affection. Be as it may, there is a clear and unequivocal admission of all the three parties being entitled to 1/3rd undivided share.
12. However, the defendants have taken a specific plea of oral partition in 1987 and division of the property by metes and bounds which resulted in them handing over 133 sq. yds. of the property in the back portion of the property in question to the plaintiff. They have relied on the GPA and Affidavit dated 23.09.1987 to support their plea of oral partition.
13. The factum of oral partition is seriously contested by the plaintiff. The plea of oral partition and the division of property by metes and bounds which is disputed by the parties needs to be substantiated by way of evidence. The defendants have already concluded their evidence. Pertinently, the parties are claiming title to the property through GPA, Agreement to Sell, it is a matter of evidence as to whether they actually acquired ownership rights in the property and also the plea of oral partition has to be substantiated by way of evidence.
14. In the case of Urmila Sharma (Supra) relied upon by the plaintiff, this Court took into consideration the contradiction in the defence raised by the parties wherein they had pleaded both oral partition and oral agreement of relinquishment, and observed that the defence raised was ambiguous and contradictory. It is in the background of the defence being vague and there being no details regarding the factum of ‘oral partition’, that the defence was held liable to be rejected at the threshold. The case relied on is distinguishable on the facts of the case and does not aid the case of the petitioner as in the present case, there are details provided by the defendants regarding the factum of Oral Partition and they have already led their evidence.
15. The case is pending only for conclusion of evidence by the plaintiff. In case the plaintiff considers it to be a fit case where the matter stands admitted by the defendants, he is at liberty to limit his evidence. Therefore, it is not considered expedient at this stage to pass a Preliminary Decree without determining the plea if the property already stands divided by metes and bounds as claimed by the defendants.
16. The application under Order XII Rule 6 CPC is, therefore, dismissed.
CS(OS) 341/2018
17. List before the learned Joint Registrar on 18.03.2024 for Plaintiff’s Evidence.

(NEENA BANSAL KRISHNA)
JUDGE

JANUARY 23, 2024
Va/nk

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