CM(M) 633/2004 & RFA 416/2002 Page 1 of 28

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IN THE HIGH COURT OF DELHI

Judgment reserved on : October 03, 2008

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Judgment delivered on : October 20, 2008

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CM(M) 633/2004

PREMA DEVI RASTOGI

..... Petitioner

Through: Mr. Davinder Singh, Sr. Adv. with

Mr. Saurabh Tiwari, Advocate

VERSUS

BIMLA DEVI RASTOGI

..... Respondent

Through:

Mr. Bharat Sangal, Advocate

Mr. R.R.Kumar, Advocate and

Ms. Ipsita Borthakur, Advocate

RFA 416/2002

BIMLA DEVI RASTOGI

..... Appellant

Through: Mr. Bharat Sangal, Advocate

Mr. R.R.Kumar, Advocate and

Ms. Ipsita Borthakur, Advocate

VERSUS

PREMA DEVI RASTOGI

..... Respondent

Through: Mr. Davinder Singh, Sr. Adv. with

Mr. Saurabh Tiwari, Advocate

CORAM:

Hon'ble Mr.Justice Pradeep Nandrajog

Hon'ble Mr.Justice J.R. Midha

1. Whether reporters of local papers may be allowed

to see the judgment?

2. To be referred to the Reporter or not?

3. Whether judgment should be reported in Digest?

: PRADEEP NANDRAJOG, J.

2008:DHC:2866-DB

CM(M) 633/2004 & RFA 416/2002 Page 2 of 28

1.

The original suit bearing Suit No.359/95 was filed by the

Appellant in RFA No.416/2002, Smt.Prema Devi Rastogi, seeking

a decree of partition, declaration and permanent injunction in

respect of the property bearing Municipal No.54-A, East Azad

Nagar, Krishna Nagar, Delhi (hereinafter referred to as the “Suit

Property”) against the Respondent in RFA No.416/2002, Bimla

Devi Rastogi.

2.

For the sake of convenience, we shall be referring to the

parties by their nomenclature in the suit.

3.

Case set up by the plaintiff was that she and the

defendant, who is the wife of the real brother of her husband,

had purchased the suit property which was a 'single storeyed

building' from one Sh.Devi Chand Khanna on 04.08.1971 vide

registered sale deed dated 12.08.1971 for a consideration of

Rs.22,000/-. That the parties contributed Rs.11,000/- each for

the purchase of the suit property. That since the date of its

purchase the entire suit property except one room remained in

the possession of the defendant and her family. That the said

room remained under the lock and key of the plaintiff and was

occupied by the plaintiff and her family for short intervals of

time. That on 28.10.1995 the intention of the defendant to raise

constructions on the first floor/roof of the suit property came to

the knowledge of the plaintiff therefore she was constrained to

file the suit seeking partition of the suit property as also to

2008:DHC:2866-DB

CM(M) 633/2004 & RFA 416/2002 Page 3 of 28

restrain the defendant and her family from raising any

construction on the first floor/roof of the suit property.

4.

The suit was contested by the defendant who in the

written statement took a defence that the plaintiff had no right,

title or interest in the suit property as she was a mere

benamidar inasmuch as the defendant was the real owner of the

suit property having paid the entire sale consideration in respect

of the suit property. As regards the factum of execution of the

sale deed pertaining to the suit property in name of the plaintiff

it was averred in the written statement that 'the execution of

the sale deed is however, not denied'. It was further pleaded

that

after

purchasing

the

suit

property

the

defendant

demolished the building and reconstructed the same with her

own funds and contributions made by her family. It was pleaded

that the claim of the plaintiff that the defendant is attempting to

raise construction on the roof of the suit property is false

inasmuch as defendant had raised said construction much prior

to the filing of the present suit. It was pleaded that the claim of

the plaintiff of hav