SHRI POONAM CHAND GOEL & ORS. THRU LEGAL HEIRS vs. SHRI HANUMAN DASS GOEL & ANR.

$~ 36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 81/2007
% Judgment dated 08.05.2014

SH. POONAM CHAND GOEL & ORS.
THROUGH LEGAL HEIRS ..... Plaintiffs
Through: Mr.Anil Sapra, Sr. Advocate with
Mr.Sandeep Sharma and Mr.Ankur Goel, Advs

versus

SH. HANUMAN DASS GOEL & ANR ..... Defendants
Through: Mr.S.B. Tripathi, Advocate along
with defendant no.1 in person

CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J ( ORAL )
th
1. The plaintiff No.1 has filed the present suit for partition, claiming 1/5
share in the suit property bearing no.17-A, New Colony, Model Basti,
New Delhi -110 005, ad measuring 200 sq. yrds. Parties to the suit are
brothers. During the pendency of the suit, defendants no.3 and 4 were
transposed as plaintiffs.
2. As per the plaint, a plot of land was purchased by all the parties to the suit
on 19.1.1968 from one Sh.Kashi Nath Khemka and registered the same on
31.1.1968. Since the property was purchased by all the parties, thus they
are entitled to 20% share each in the property.
3. The written statement was filed by defendants no.1 and 2. As per their
written statement, the suit property was purchased out of earnings of
defendant no.1 and 2. But as per the desire of their father, the suit plot
was purchased in the name of all the five brothers. It was agreed that the
CS(OS) 81/2007 Page 1 of 14


payments made for the purchase of the plot would be reimbursed by all
the brothers to defendant no.1. The defendant no.1 as an obedient son
carried out the wishes of his father and paid the entire sale consideration
and got the plot registered in the name of all brothers. Except for
defendant no.2, the plaintiff, defendants No.3 and 4 (now transposed as
plaintiffs) did not pay the price of the plot, resultantly the plaintiff filed a
suit for declaration being CS(OS)No.602/1971 and a decree of declaration
was granted in favour of the defendants no.1 and 2, holding that they
alone are the owners and in possession of the suit property. The
defendant no.1, who appears for himself and for defendant no.2 submits
that the plaintiffs have been residing at the suit property as tenants, for
which they are paying rent to defendants. It is the case of the plaintiff that
the suit filed was only to enable the defendant no.1 to take loan for
building the property.
4. On the pleadings of the parties the following issues were framed:

―(i) Whether the plaintiffs are entitled to partition of the suit
property? OPP
(ii) Whether defendants no.1 and 2 are the absolute owners of the
suit property on the basis of judgment and decree passed on
28.9.1971 in C.S.No.602/1971? OPD
(iii) Whether the suit of the plaintiffs is barred by limitation?
OPD
(iv) Whether the suit of the plaintiffs is without any cause of
action and thus liable to be dismissed under Order VII Rule
11 of the CPC? OPD
(v) Relief.‖
5. The onus to prove issue no.(i) was on the plaintiffs, while the onus to
CS(OS) 81/2007 Page 2 of 14


prove issue nos.(ii), (iii) & (iv) were on the defendants. While affidavits
by way of evidence have been filed by all the three plaintiffs, no evidence
has been led by the defendant.
6. In support issue no.(i) all the three plaintiffs i.e. PW-1 , Mr.Poonam Chand
Goel; PW-2 , Mr.Bhagwan Dass Goel; and PW-3 Mr.Subhash Chand Goel
have filed affidavits by way of evidence. Affidavit by way of evidence
has also been filed by Mr.Sanjeev Goel, son of Mr.Poonam Chand Goel,
who died during the pendency of the suit.

7. As per the evidence of all the three plaintiffs, the suit property was
purchased by all the parties, which is evident from the registered sale deed
dated 19.1.1968 Ex.D-1 , as per which the suit property stands in the name
of all the five brothers. PW-2 , Mr.Bhagwan Dass Goel has testified that
the sale deed dated 19.1.1968 Ex.D-1 was filed by defendant nos.1 and 2
and on the basis of the said document alone a decree for partition can be
passed. It has further been testified by PW-2 Mr.Bhagwan Dass Goel that
a building was constructed on the plot out of joint funds of all the brothers
and upon completion of the building all the parties occupied the building
and have been in occupation of the same in their own right, although in
disproportionate portions as per their requirements till date. It has also
been deposed that before raising the constructions, the defendants wanted
to raise funds by taking a loan and for the said purpose they wished to
mortgage the property in question and to enable them to mortgage the
property the plaintiffs agreed to the request of the defendants in good faith
and the defendants executed indemnity bonds-cum-undertaking to secure
the interest of the plaintiffs [ Ex.PW-2/1 and Ex.PW-2/2] , but the
plaintiffs never appeared in any court or ever received any summons or
engaged any lawyer for appearing of their behalf in any Court
proceedings. It has also been testified by the plaintiffs that the defendant
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no.1 has been filing property-tax returns in the name of all the brothers ;
copies of the returns filed for the financial year 1997-98 and 1994-95 have
been exhibited as Ex.P-3 and Ex.P-4 . The house-tax assessment order
dated 25.1.1972 and house-tax bills pertaining to the year 1974-75, 1976-
77, 1978-79, as per which the deponent has been shown as one of the co-
owners of the suit property, has been exhibited as Ex.PW-2/3 to Ex.PW-
2/6. The house-tax receipts have been exhibited as Ex.PW-2/7 and
Ex.PW-2/8. Letters addressed by defendant no.1 to the MCD on behalf of
all the brothers dated 4.5.1977 and 6.1.1978 have been exhibited as Ex.P-
1 & P-2 respectively. It has also been testified that the property in
question stands in the name of all the brothers, including the plaintiffs and
has never been mutated in the names of the defendants on the basis of an
alleged decree dated 29.8.1971, which was neither acted upon, nor was
ever intended to be acted upon.
8. It has also been testified that a telephone was installed at the premises in
the name of all the brothers. Telephone bills have been filed and
exhibited as Ex.PW-2/9 to Ex.PW-2/13 . The witness has also testified
that the defendants in fact never denied the share of the plaintiffs till a suit
was filed in the year 1998 in the court of Senior Civil Judge, Delhi
wherein for the first time defendants asserted that a decree had been
passed in their favour and claimed that they are the only owners of the suit
property.
9. It is submitted that as per mutual understanding, the suit was simply filed
with a view to facilitate a loan transaction for the purpose of raising
construction and it is at that stage that the indemnity was signed by the
defendants in favour of the plaintiffs.
10. It is also the case of the plaintiffs that they contributed proportionately
towards the cost of construction by depositing the amount in the family
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concern M/s.Haryana Sudh Ghee Bhandar by cheques. The details of
cheques have been extracted in the affidavit and reproduced below:

11. Some of the extracts of the books of account showing payments having
been made, have been exhibited as Ex.PW-2/14 collectively. It has also
been deposed that the share of the plaintiffs have been admitted in present
Court proceedings which is reflected in the order dated 22.10.2003 and
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also in proceedings before the Mediator.
12. PW-3 , Subhash Chand Goel has supported the case of his brother and has
relied upon the affidavit of Sh.Bhagwan Dass Goel.
13. As during the pendency of suit, Mr.Poonam Chand Goel expired, his son
Mr.Sanjeev Goel has also filed an affidavit, who has also testified on the
lines of the affidavit of his father’s brother ( PW-2 ). PW-1, Mr.Sanjeev
Goel was cross-examined by the defendant no.1 for himself and on behalf
of defendant no.2. Mr.Bhagwan Dass Goel was also cross-examined by
defendant no.1 for himself and on behalf of defendant no.2.
14. It is pointed out by counsel for the plaintiffs and defendant no.1, who
appears in person that arguments were heard and the judgment was
reserved on 4.3.2010 and thereafter on 23.7.2010 an order was passed
stating that part III file (documents file) has been inadvertently tagged
along with some other judicial file and parties were directed to place
photocopies of the documents on record, which was to be verified by the
Joint Registrar. The Joint Registrar had passed the following orders on
13.12.2010 and 4.2.2011:

― 13.12.2010
Present: Mr. Lalit Gupta counsel for the plaintiff no.1 Mr.
Ankur Goel counsel for the plaintiff no. 2 and 3
Mr. Hanuman Dass, defendant no. 1 in person

CS(OS) 81/2007

Defendant no. 1 is present in court and he is also appearing for
the defendant no. 2. He has filed the photocopies of the
documents today in the court as per the index (page no. 1 to
30), the same are taken on record. The copies of the same are
supplied to the counsel for the plaintiffs who inform that
except document no. 1 to 8 which are written submissions
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only, other documents are correct photocopies of the
documents previously filed by the defendant no. 1 and 2 in this
suit. On the other hand, the defendant no. 1 who appears in
person for himself as well as for defendant no. 2 admits that
the photocopies of the documents filed by the plaintiff are the
correct copies of the documents previously filed by the
plaintiff no. 1 to 3 herein.

Let the matter be placed before the Registrar (Original Side)
th
on 20 December, 2010 in terms of order dated 29.10.2010
passed by the Hon’ble Court.‖


“04.02.2011
Present: None.

CS(OS) 81/2007
th
By order dated 29 October, 2010, the Hon'ble Court
directed the undersigned to hold an enquiry regarding missing
Part – III of CS(OS)No.81/2007 and also to check the
authenticity of the copies of the documents filed by the
respective parties for reconstruction of missing Part –III. The
Hon'ble Court also directed the parties to file photocopies of
their respective documents filed by them earlier.
Pursuant to the above directions of the Hon'ble Court
the plaintiffs and defendant no.2 filed photocopies of their
respective documents before the Joint Registrar. Both the
parties admitted the photocopies of the documents filed by
their respective opposite party to be correct copies of the
documents filed & placed in original Part –III of the case file
earlier.

The enquiry regarding missing Part –III is in progress
and the report thereon may be permitted to be submitted as
soon as the enquiry is concluded.‖

15. Counsel for the plaintiff submits that plaintiff and the defendants both
have filed a copy of the sale deed, which shows that the property stands in
favour of all the parties.
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16. No evidence has been led by the defendants. During the course of
hearing, the defendant no.1 appeared for himself and for defendant no.2,
when the matter was heard in part, defendants were also represented
through counsel, Mr.S.B. Tripathi, Advocate. Strong reliance has been
placed on a decree passed by the trial Court dated 28.9.1971, by which the
plaintiffs in the said suit (defendants herein) were declared the owners in
possession of the plot of land measuring 200 sq. yrds and thus it is
contended that the defendants (plaintiffs herein) would have no right, title
or interest or claim in the said plot. Counsel for the plaintiffs submits that
defendants have failed to lead any evidence and has thus failed to
discharge the onus to prove issue No.(ii) to (iv). It is further submitted
that no reliance can be placed on the decree dated 28.9.1971, as the
defendants have failed to prove the same in accordance with law, as only
a photocopy of the decree has been placed on record.
17. I have heard counsel for the parties, perused the evidence placed on
record and considered their rival submissions. The onus to prove issue
no.(i) was fixed on the plaintiffs. Issue No.(i) reads as under:

18. The onus to prove issues no.(ii), (iii) and (iv) was on the defendant. In the
absence of any evidence and in the absence of defendant nos.1 and 2 not
even producing certified copy of the decree, the defence sought to be
raised by the defendants, cannot be looked into.
19. In order to discharge the onus fixed to prove issue No.(i), three affidavits
have been placed on record. The plaintiffs have placed reliance on Ex.D-
1, sale deed, a copy of which has been placed on record. The sale deed to
show that the property was purchased jointly in the name of all the five
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brothers. It may be noticed that defendants have not denied the factum of
the sale deed, but an explanation has been rendered that the sale deed was
executed in the name of all the five brothers, as per the wish of their
father, but in fact the sale consideration was provided by defendant no.1
with the understanding that all the brothers would re-pay to defendant
no.1, but except defendant no.2 all the other brothers i.e. the plaintiffs
herein did not pay their share of the sale consideration to defendant no1.
While no evidence has been filed by defendants, to support their case.
The plaintiffs have placed on record copies of the telephone bills, Ex.PW-
2/9, Ex.PW-2/10, Ex.PW-2/11, Ex.PW-2/12 and Ex.PW-2/13 pertaining
to the year 1994, 1995, 1996 and 1997 to show that the telephone was
installed at the premises in the name of Sh.Bhagwan Das and Brothers,
Ex.PW-2/3. Copies of the pass-port issued to late Smt.Poonam Chand
Goel and his wife have been filed as Ex.PW-1/5 and Ex.PW-1/6
respectively. Copies of the property-tax returns for the year 1994, 1995,
1997 and 1998, duly admitted by defendants Ex.P-3 and Ex.P-4 have been
filed to show that the property was in the records of MCD continues to
remain joint till date. Thus in my view, on the basis of the documents
placed on record and the fact that the evidence of the plaintiffs have gone
unrebutted and unchallenged, the plaintiffs have been able to discharge
their onus successfully to prove issue no.(i).
20. The onus to prove issues No.(ii) to (iv) was fixed on the defendants. In
the absence of any evidence having been led, the defendants have failed to
discharge the onus fixed on them. During the course of hearing, however,
an argument was raised with regard to the decree passed by the trial Court
dated 28.9.1971 by which the plaintiffs in the said suit (defendants herein)
were declared to be the owners of the property in question. The
defendants cannot gain any advantage on the basis of the said decree:
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firstly the defendants have failed to prove the same in accordance with
law, as only a photocopy has been filed and secondly a decree which
creates a new right, title or interest in presenti in immovable property is
compulsorily registrable document under section 4 of the Registration
Act. Section 47 of the Registration Act, reads as under:

Singh Vs. Ram Singh Major and Ors. reported at (1995) 5 SCC 709:
―16. We have to view the reach of clause (vi), which is an
exception to sub-section (1), bearing all the aforesaid in mind. We
would think that the exception engrafted is meant to cover that
decree or order of a court, including a decree or order expressed to
be made on a compromise, which declares the pre-existing right
and does not by itself create new right, title or interest in praesenti
in immovable property of the value of Rs.100/- or upwards. Any
other view would find the mischief of avoidance of registration,
which requires payment of stamp duty, embedded in the decree or
order.
17. It would, therefore, be the duty of the court to examine in each
case whether the parties have pre-existing right to the immovable
property, or whether under the order or decree of the court one
party having right, title or interest therein agreed or suffered to
extinguish the same and created right, title or interest in preasenti in
immovable property of the value of Rs.100/- or upwards in favour
of other party for the first time, either by compromise or presented
consent. If latter be the position, the document is compulsorily
registerable.‖

22. It may also be noticed that during the pendency of this matter all the
parties had made a statement in Court on 22.10.2003 which reads as
under:
CS(OS) 81/2007 Page 10 of 14


―Present : Mr.Lalit Gupta for the plaintiff with
plaintiff in person.
Mr.M.L. Sharma for defendants 1-2
with Mr.Hanuman Dass Goel and
Mr.Radhey Shyam Goel.
Mr.Mahender Singh for defendant
nos.3-4 with Mr.Bhagwan Dass
Goel and Mr.Subhash Chander Goel.

S.No.598/1999

Learned counsel for the parties submit that parties have now
th
agreed that they have 1/5 share each, i.e., the plaintiff and the
defendants 1-4 and therefore a preliminary decree for partition may
be passed. In view of the earlier development in this case, I
consider it expedient to require the parties to move a formal
application supported by the affidavits of the parties within two
weeks from today.

th
Renotify on 13 November, 2003.

Parties shall be present on the next date.‖

23. After making the statement, the defendants sought to back-track, as
neither a compromise application was filed and in fact counsel appearing
in the matter for defendants had to seek discharge only after he made a
statement which was recorded separately by the Court on 15.12.2003.
Order dated 15.12.2003 and the statement made on the same very date,
read as under:

CS(OS) 81/2007 Page 11 of 14


Mr.Mahinder Singh, Advocate for defendants 3-4
with Mr.Subhash Chander Goel.
Mr.Sandeep Sharma, counsel for defendant.

S.No.598/99 and IA 11364/03.

CS(OS) 81/2007 Page 12 of 14


Renotify on 21st January, 2004. Parties to be present
on the next date of hearing.‖


―15.12.2003

―I had been engaged by Mr.Hanuman Das Goel &
Mr.Radhey Shyam Goel. It is correct that submission was
th
recorded to the effect that each of the parties have 1/5 share.
The submission was made on oral instructions given. The
defendants no.1 & 2 had even signed a statement before Shri
Mahinder Singh, Advocate to similar effect.‖

24. Taking into consideration the sale deed, which is not disputed by the
parties, as per which all the parties are joint owners and having regard to
the fact that the plot was jointly constructed by all the parties out of
common funds, some of the amounts deposited in the common bank
account; and also taking into consideration that even after the alleged
decree was passed, all the parties continue to reside in the house, which
would show that the defendants never acted upon the decree, as the
defendants never sought mutation of the property in their name in the
record of the MCD, nor took any steps to evict the plaintiffs from the suit
property; also taking into consideration the telephone bills, which show
that the telephone was applied jointly by the parties after the passing of
the decree, and the property-tax bills, which are also placed on record,
other than that the defendants have not led any evidence and also there is
nothing in the cross-examination, which would affect the case of the
plaintiffs. The statement made by the defendants in Court and thereafter
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having back-track, and also taking into consideration that the defendants
have neither filed certified copy of the decree in order to prove the same
and even otherwise, since as per the decree fresh rights to be created in
praesenti in the immovable property, the decree having been not being
registered, no reliance can be placed on this. Consequently, a preliminary
th
decree is passed, defining the share of all the parties as 1/5 each.
25. Defendant no.1, who is present in Court for himself and for his brother
defendant no.2 submits that the property cannot be divided by metes and
bounds. Counsel for the plaintiffs also submits that the property cannot
remain joint, neither it can be divided by metes and bounds, and
accordingly a final decree be passed. Accordingly, three months time is
granted to the parties to arrive at an arrangement for dividing the property
or purchase shares of each others. In case no arrangement can be arrived
at within three months, it would be open for any of the party to seek
execution of the decree. Accordingly, a final decree is passed defining
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shares of the parties as 1/5 each. Decree-sheet be drawn up accordingly.


G.S.SISTANI, J
MAY 08, 2014
ssn /pdf

CS(OS) 81/2007 Page 14 of 14