The main legal point established is that in a partition suit, the burden of proof lies on the defendant to establish exclusive possession or settlement of the plaintiff's share, and failure to do so can result in the grant of a preliminary decree of partition in favor of the plaintiff.

(AUGUST 24, 2001) 2001 (TLS)125862

2001-AD (Del)-7-556 :: 2001-ILRDLH-7-246

DIP CHAND Vs. Kunda Mal

A. K. SIKRI

( 1 ) THE plaintiff has filed this suit for partition and injunction. It is claimed in the plaint that plaintiff and defendants are in possession of property II-D/1, Lajpat Nagar, New Delhi the site of which is leasehold property. The plaintiff has 19787. 73/26300 share while the defendant has 6,512. 27/26300 share in the property which was purchased from Government of India and lease deed dated 25/9/1974 was executed to this effect. It is also averred in the plaint that the plaintiff and defendant are in possession of the said property. Although the share of the plaintiff is about 1/4th, he is in possession of much more portion of the property than he is legally entitled to. Allegations about illegal and unauthorised construction by the defendant in the suit property are also made and according to the plaintiff inspite of repeated request the defendant is not removing the illegal construction. It is further stated that the plaintiff does not wish to keep the property joint with the defendant and as he has got right to the get the property partitioned, present suit is filed for partitioning the property. Decree for mandatory injunction is prayed for seeking direction against the defendant to demolish the unauthorised construction, namely, shop and stores shown red in the plan attached. The plaintiff has also prayed for decree of prohibitory injunction restraining the defendant and all his employees and agents from making any further construction or alterations in the aforesaid property and from causing obstruction and interference in the plaintiff s enjoyment of the property.

( 2 ) IN the written statement filed on behalf of the defendant, it is averred that although the property was purchased jointly by the plaintiff and the defendant, the plaintiff was not interested in the suit property as he considered the bid money to be exorbitant. On the Initiative taken by the defendant, provisional possession letter was issued to the parties on 15/3/1958 at a belated stage. However, actual physical possession of the premises could not be handed over to the parties as the property was found to be in possession of one Sh. Panna Lal as suit property was allotted to him by mistake. In these circumstances and as he was also not interested in pursuing the litigations that were initiated at the instance of the defendant to recover possession of the suit property, the plaintiff became disinterested in the suit property. Accordingly, it was mutually agreed between the parties, who are related to each other, that defendant would pay to the plaintiff the value of the rehabilitation scheme got adjusted by the plaintiff towards the bid money and the defendant would pursue the litigation and other proceedings to get the possession of the suit property. It was also agreed that the defendant would pay to the plaintiff the proportionate and prevalent market value of the rehabilitation scheme which was got adjusted by the plaintiff. Calculating in this manner the defendant paid to the plaintiff a sum of Rs. 10,500. 00 towards his claim. After getting his entire consideration in respect of his claim, the plaintiff left Delhi for nagpur and settled there in the year 1960. It is also alleged that keeping in view the closeness of the relations the defendant did not take any receipt from the plaintiff for the amount paid to him. The defendant fought a lone legal battle and spent substantial amount for recovery of the possession of the premises and actual physical possession was finally handed over to the defendant in the absence of the plaintiff sometime in September, 1965. In this manner the defendant became the absolute owner of the premises. It is also claimed that possession of defendant became adverse in 1960 or in any case in the year 1965 when he took actual physical possession to the exclusion of the plaintiff. It is also cont