RAM NARAYAIN Vs. VED PRAKASH

JUDGEMENT

(1.) Shri Ram Narain has sought for partition of the property situated in Abadi Area/laldora of Village Mangolpur Kalan, Delhi alleged to be owned jointly by the parties. The facts in brief are that after the death of the father of the plaintiff, the property devolved on the plaintiff and his brother Jai Narain and after Jai Narain's death on his legal heirs (defendants herein). The said property has always been jointly owned. It has not been divided so far. In fact the plaintiff and the defendants have got equal share in the entire properties shown in the plan. The plaintiff is alleged to be in occupation of vacant plot measuring 300 sq. yards, built up property of 750 sq.yards and another built up plot of 550 sq.yards shown as 'B', 'D' and 'E' on the plan. Whereas defendants are shown to be in occupation of the old house measuring 350 sq. yards, built up area measuring 350 sq.yards, built up plot measuring 550 sq. yards Thus, according to plaintiff, he is in actual physical possession of 1600 sq. yards whereas the defendants occupies 1250 sq. yards. According to the plan, there is a vacant plot measuring 750 sq. yards mark 'E' on the site plan. This the plaintiff alleges the defendants are trying to raise construction by building shops and godown on the same. Part of this plot belongs to plaintiff as it is a joint property and being co- owner without his consent the defendants could not have raised the construction on the same. It is in this back ground that the present application seeking injunction against the defendants had been filed. Ad interim injunction directing the parties to maintain status quo with regard to property marked 'E' shown in the site plan was ordered.

(2.) By this application, the defendants want the said interim order to be vacated, inter alia, on the grounds that property stood partitioned long back. The said partition was acted upon and therefore, the parties are in actual and physical possession of their respective portions. Moreover, the plot in question marked 'E' on the site plan had all along been in the physical possession of the defendants. Defendants demolished the already existed building and structure in under to rebuilt pacca construction in order to carve out proper shops as has been done by the plaintiff on his adjacent plot marked 'd' on the site plan It is alleged that the plaintiff has not come to the Court with clean hands. He has wrongly alleged that the plot marked 'E' was lying vacant. In fact, the plaintiff knew all along that on plot 'E' there were built up shops which had been let out by the defendants to defferent tenants earlier and now they were renovating/reconstructing the same on the same plot. The partition took place about 30 years ago It was then agreed between the parties that henceforth the parties could construct building on their plots according to their need. it has been denied that the area under the old house is 350 sq yards. In fact, as per the Municipal Corporation record the area is about 200 sq. yards. The father of the defendants constructed the shops and small residential house on the plot mark 'E' way back in the year 1980-81. It is only the old construction which was demolished in the beginning of February, 1994 and the defendants were trying to reconstruct the same. The physical possession of plot has through out been with the defendants. Because of this injunction, irreparable loss has been caused to the defendants, the construction already raised is getting ruined. Only roof is to be laid. Plaintiff contested this application and denied that the partition has already taken place. He being the co- owner without his consent the defendant could not raise construction on the plot. On the date of filing of the suit, plot Marked 'E' in the site plan was vacant and, therefore, was in joint possession. He denied that the partition took place about 30 years ago.

(3.) I have heard the learned counsel for the parties and perused the record. In order to get relief of interim injunction, the plaintiff was to satisfy this Court that he has placed all the material facts before the Court, but the perusal of the reply to the application shows that he did not approach this Court with clean hands. In the suit, he took a specific plea that no partition took place and that the plot measuring 750 'sq.ya.rds mark 'E' has always been lying vacant. Whereas in reply to the present application, he has admitted that there was an understanding between the parties in respect of the joint properties. What was that understanding he has not explained but this admission is in response to the specific averments that there was oral partition. Hence, the inference that the plaintiff by using the work "understanding' is admitting oral partition as alleged by the defendants. This final corroboration from the site plan filed by the plaintiff on record, shows the position at site. Perusal of the plan shows that properties shown in red Colour are in possession of the plaintiff, whereas properties shown in green colour are in possession of the defendants. The plot shown in Blue colour marked 'E' is shown vacant. If we analyse this plan, it is apparent that the parties had partitioned their properties. Fur example, plots marked 'G' and 'F' are of equal size i.e. 550 sq. yards each. Both having shops. One is in possession of the plaintiff and the other possessed by the defendants. Similarly, plot marked 'B' and 'C' of the same area - one is in possession of the plaintiff and the other with the defendants. Plots marked 'D'and 'E' are having the same area i.e. 750 sq. yards. The plot shown in red colour on which shops are built is in possession of the plaintiff and the portion marked 'E' of the same area with the defendants. Mark 'A' is the old house winch according to the plaintiff is 350 sq. yards whereas according to the defendants, 200 sq. yards. Be that as it may, the fact remans that all other properties except 'A' are equally apportioned Hence, the admission of the plaintiff in reply that there was an understanding with regard to properties lend support to the version of the defendants that parties had in fact divided their joint properties and had been acting upon the same, otherwise parties could not have been in possession of almost equal shares. Moreover, reading of para 4 of the reply filed by the plaintiff shows that at the time of partition, there was some understanding regarding of compensating the plaintiff for extra 200 sq. yards of land given to the defendants i.e. of old house marked 'A'. Prom that assertion of the plaintiff it is clear that it was with regard to the area under-neath the old house which was to be adjusted or compensated. The averment that the defendants have now started raising construction on the plot marked 'E' is nullified from the documentary evidence placed on record, namely, the Lal Dora Certificate of the Sub Divisional Magistrate, Kotwali and the electricity bill paid, the house tax certificates and bills paid and the list of tenants occupying the earstwhile built up area on portion mark 'E'. Earlier there existed shops on this plot and were let out to different tenants. They had been paying rent to the defendants. It was only after demolition that re- construction started by the defendnats. Therefore, prima facie it cannot be said in view of the documentary evidence that plot marked 'E' was lying vcant or that on this vacant plot defendnts for the first time started construction. As a matter of fact from the documentary evidence placed on record, it is prima facie established that the defendants were in the exclusive enjoyment of this plot and the construction earlier existed on the same. Moreover, the plaintiff has not denied the partition, though gave the name as 'Understanding'. His only objection to the partition Is that it was not by a decree fromthe Court. In his words "that joint properties having not been partitioned by metes and bounds or through a decree of Court and the parties were having some understanding (under lining is mine). This shows that partition is admitted, but it was not obtained through a decree of court and, therefore, has been denied by the plaintiff. From the reading of this reply, it can be inferred that there was a purtition by metes and bounds by oral understanding between the parlies and they acted upon the same though the said partition was not through decree of the Court. But that will not make any difference. The assertion of the plaintiff that plot marked 'E' was lying vacant for the last so many years is belied from the house tax receipts issued by M.C.D. as well as rent receipts regarding rent received from the tenants. The house tax on the constructed building on plot marked 'E' was paid way back in 1983-84 in the individual name of the defendant. Therefore, I am prima facie of the view that the plot marked 'E' has been a built up plot since 1981 -82. It had been in the exclusive possession of the defendants. After demolition of the already existing structure the defendants have started raising new construction on the same. Construction has been raised upto the roof level as on the date of filing of the suit. Therefore, prima facie it cannot be said that plot mark 'E' was a vacant piece of land.