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2018 Supreme(Del) 2793
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
ARABPATI LAL - Appellant
Versus
RAJENDER & ORS - Respondents
RFA No. 1033 of 2017
Decided on : 19-09-2018
Advocate Appeared:
For the Appellant :Mr. Jai Prakash, Advocate
For the Respondent:Mr. Hemant Payak, Advocate
The main legal point established is that in the absence of documentary proof, the court may rely on the conduct of the parties, including separate constructions and usage of the property, to determine the occurrence of a partition.
Headnote:
Partition - Property Dispute - Code of Civil Procedure, 1908 (CPC) - Section 96 - [Partition] - [CPC] - [Section 96] - The court discussed the oral partition of the property in 1971 and the separate constructions carried out by the parties on their respective portions. It highlighted the absence of documentary proof of partition but emphasized the separate entrances, electricity, water connections, and the lack of joint usage of the property. The court accepted the reasoning and conclusions of the trial court, affirming that a partition had indeed taken place.
Fact of the Case:
The plaintiff filed a suit for partition of a property purchased jointly with his deceased brother, claiming that no partition had taken place and requested the court to grant a decree of partition.
Finding of the Court:
The trial court found that an oral partition had occurred in 1971, supported by separate constructions and usage of the property by the parties. The court accepted the trial court's findings and dismissed the appeal.
Issues: The main issues were whether the property was joint and undivided, and whether an oral partition had taken place in 1971, with the parties in possession of their respective shares.
Ratio Decidendi: The court relied on the separate constructions, entrances, and utilities, as well as the admissions made by the plaintiff during cross-examination, to conclude that a partition had indeed taken place.
Final Decision: The appeal was dismissed, affirming the trial court's decision that a partition had occurred in 1971.
VALMIKI J. MEHTA, J.
1. By this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), the plaintiff impugns the Judgment of the Trial Court dated 16.08.2017 by which the trial court has dismissed the suit for partition filed by the appellant/plaintiff with respect to the property bearing no. WZ-1018C, Nangal Raya, Pankha Road, New Delhi on account of the fact that the trial court found that the partition of the suit property had already taken place in the year 1971 and each of the parties had constructed on their own portions and are enjoying the same since the year 1971.
2. The facts of the case are that the appellant/plaintiff pleaded that he alongwith his deceased brother Sh. Mohan Lal, the predecessor-in-interest of the respondents/defendants, purchased the suit property in terms of a registered Sale Deed dated 31.01.1970. It is pleaded that there was no partition between the appellant/plaintiff and his deceased brother, Sh. Mohan Lal, or their successors-in-interest being the respondents/defendants and since though requests for partition were made, the same was not agreed to, and thereafter the subject suit for partition was filed.
3. Respondents/Defendants contested the suit and pleaded that the suit property was already partitioned under an oral partition which took place between the appellant/plaintiff and his brother Sh. Mohan Lal in the year 1971. After the oral partition in the year 1971, the suit plot was divided in two parts, and these two separate parts have been constructed upon, by the respective parties, as regards their portions. Whereas the portion of the plot of the appellant/plaintiff was 54% of the total plot area, as it was the back portion of the plot, the brother, Sh. Mohan Lal/respondents/defendants had the front portion and therefore only had 46% of the total plot area. It was contended that Sh. Mohan Lal/respondents/defendants have constructed a building, to the extent of third floor, on their own portion of the plot, whereas the appellant/plaintiff had constructed on the plot till the second floor. It was prayed that the suit be dismissed.
4. After the pleadings were complete, the trial court framed the following issues and parties led evidence, and these aspects are recorded in paras 7 to 9 of the impugned judgment and these paras read as under:-
“7. On the basis of pleading of parties, on 3.11.2016 following issues were framed by my Ld. Predecessor Court : -
1. Whether the plaintiff is entitled for partition of suit property being joint and undivided? OPP
2. Whether the suit property has been orally partitioned from 1971 and parties are in possession of their respective share as shown in their respective site plan? OPD
3. Whether there is no cause of action in favor of plaintiff and against defendants? OPD
4. Whether the plaintiff is entitled for relief of permanent injunction against defendants in respect of suit property? OPP
5. Relief.
8. The plaintiff in support of his case has appeared in witness box as PW-1 and lead his evidence by way of affidavit EX.PW1/A and brought on record sale deed dt. 31.1.1970 as Ex.PW1/1 and site plan as Ex.PW1/2. The witness was cross examined at length and same shall be discussed during the appreciation of evidence. PE was closed.
9. On behalf of defendants, defendant no.1 Rajender Goel was examined as DW-1. He has lead his evidence by way of affidavit Ex.DW1/A and has relied upon site plan Ex.DW1/1. The witness was cross examined at length and same shall be discussed during the appreciation of evidence. DE was closed.”
5. While dealing with issues no. 1 and 2, the trial court has held that though no documentary proof is filed with respect to partition of the property in the year 1971, between the appellant/plaintiff and his deceased brother Sh. Mohan Lal, however, it was held that the partition had taken place in the year 1971 because the respective parties have constructed over their respective shares and both portions have separate el
