The legal effect of unregistered documents and the principle that dismissal in default does not constitute res judicata were central to the judgment.

Prathiba M. Singh, J.

1. The present appeal arises out of the judgment dated 21st March, 2016 by which the Trial Court has dismissed the suit for partition filed by the Plaintiff/Appellant (hereinafter ‘Plaintiff’), Shri Manoj Kumar(PW-1). The Plaintiff is the real brother of Shri Ashok Kumar (DW-1). Defendant Nos.2, 3 & 4 are the sisters of Defendant No.1. The instant suit for partition and injunction has been filed in respect of property bearing No. B-3, Village Gopal Pur, Delhi, measuring 90 sq. yards.

2. It is the case of the Plaintiff that Late Smt. Shanti Devi is the owner of the suit property. It is Plaintiff’s further case that he used to reside in the suit property on the 1st floor with his family but after his marriage due to various differences and disputes which arose between the two brothers and their families, the plaintiff was forced to move out of the property and live with his in-laws. Various police complaints etc. have been pleaded in the plaint to show the extent of the disputes between the two parties. In view of the fact that the brothers can no longer live together, the Plaintiff prays for the following reliefs:

“[i] pass a preliminary decree of Partition of the suit properties i.e. B-3, Village Gokalpur, Delhi ascertaining the 1/5th share of the plaintiff in the said suit property being the legal heir;

[ii] to effect the physical partition of the suit property, as shown in the Site plans Annexures A by dividing the same in FIVE equal shares;

[iii] to pass the final decree of the partition of the suit properties i.e. B-3, Village Gokalpur, Delhi

[iv] restrain the defendants, their successors, assignees, legal heirs, representatives etc. etc, from creating any third party interest, on the said suit property I.E. B-3, Village Gokalpur, Delhi in any manner, considering the above facts and circumstances of the case, in the interest of justice,”

3. In the written statement, the Defendant No.1 claims that the suit property is only 50 sq. yards and the remaining 40 sq. yards belonged to the father of the parties and that it was transferred in the name of the Plaintiff. It is stated in the Written Statement that he is not aware as to what the Plaintiff has done with the said property. The Defendant further pleads that he has purchased the 50 sq. yards portion of the property vide notarized General Power of Attorney, Agreement to Sell, Receipt and Will for a consideration of Rs.60,000 from his mother on 16th May 2002. The Defendant No.1 further pleads that the Plaintiff had filed an earlier suit for injunction which was dismissed in default after the Defendant had contested the matter. In Rejoinder, the Plaintiff points that the father did not own any property and hence he has not obtained any property from the father. Further, the Plaintiff states that the documents which are relied upon by the Defendant No.1 are fake and forged. In support of this plea, the Plaintiff refers to the written statement filed by the Defendant No.1 in the earlier suit where the said Defendant had pleaded an oral sale from the mother. In view of the pleadings the following issues were framed.

“(1) Whether the area of the suit property is 90 sq. yards as claimed by the plaintiff or 50 sq. yards as claimed by defendant No.1? OPP

(ii) Whether the plaintiff is entitled to the preliminary decree for partition of 1/5th share in the suit property? OPP

(iii) Whether the plaintiff is entitled to the decree for permanent injunction as prayed for? OPP

(iv) Whether the defendant No.1 is the owner of the suit property? OPD1

(v) Relief.”

4. The Plaintiff and Defendant No.1 appeared as PW-1 and DW-1. The Plaintiff also led the evidence of the police officials and the record keeper of the GTB hospital to prove the various complaints. Two further important witnesses who deposed in favour of the Plaintiff are the two sisters –Smt. Saroj (PW-6) and Mrs. Neetu (PW-7) both of whom testified that they had no objection if a decree for partition was passed. The