RFA No. 209/2013 Page 1 of 7

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 209/2013

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14^th February, 2019

SWARUPI DEVI AND ORS.

..... Appellants

Through:

Mr. Vijay Kumar Shukla, Advocate

(Mobile No. 9810120927).

versus

SURESH NAGAR

..... Respondent

Through:

None.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1.

This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit

impugning the Judgment of the trial court dated 15.03.2013 by which

the trial court has decreed the suit filed by the respondent/plaintiff for

partition of the suit property bearing no. 495, Block-A, Ganesh Nagar,

Shakarpur, Delhi-110092. The respondent/plaintiff is the son of the

appellant no.1/defendant no.1. Appellant no.2/defendant no.2 is the

brother of the respondent/plaintiff and appellant no.3/defendant no.3 is

RFA No. 209/2013 Page 2 of 7

the sister of the respondent/plaintiff. The suit property for which

partition is sought was the property of Sh. Sauda Ram, the father of

the

respondent/plaintiff

and

the

husband

of

the

appellant

no.1/defendant no.1. Appellants no. 2 and 3/defendants no. 2 and 3

are the other son and daughter of Late Sh. Sauda Ram.

2.

The respondent/plaintiff pleaded that his father, Sh.

Sauda Ram, was the owner of the suit property and the father, Sh.

Sauda Ram, died intestate in 1996 leaving behind four legal heirs who

were parties to the suit. The respondent/plaintiff therefore sought the

decree of partition claiming 1/4^th share in the suit property.

3.

The appellants/defendants contested the suit and denied

that the respondent/plaintiff was the son of Sh. Sauda Ram as it was

pleaded that the respondent/plaintiff, who was the natural son of Sh.

Sauda Ram, was adopted by Sh. Khila Ram the elder brother of Sh.

Sauda Ram in the year 1958.

4.

The following issues were framed in the suit:-

“1.

Whether the plaintiff has not approached the court with clean

hands, if so, its legal effect? OPD.

2. Whether there is no cause of action in favour of the plaintiff and

against the defendants? OPD.

RFA No. 209/2013 Page 3 of 7

3. Whether the plaintiff had been adopted by Sh. Khila Ram in the

record of Samvat 2014? if so, its effects. OPD.

4. Whether the plaintiff is/has been deriving his rights from his

natural parents? OPD.

5. Whether the plaintiff is entitled to relief of partition? OPP.

6. Whether the plaintiff is entitled to relief of possession? OPP.

7. Whether the plaintiff is entitled to relief of permanent injunction?

OPP.

8. Relief.”

5.

The parties led evidence and these aspects are recorded in

the following portion of the impugned judgment:-

xxx

xxx

xxx

“In order to prove his case the plaintiff has examined himself as

PW1 and filed his affidavit Ex.PW1/1 wherein he has supported his case

as mentioned by him in his plaint.

PW2 is Sh. Uma Shankar Sharma, a teacher from Sarvodhaya Bal

Vidhayalaya, Mandawali, Delhi-92. He has proved the school certificate

of the plaintiff as Ex.PW2/A.

The defendants have examined four witnesses in support of their

case.

The defendant no. 1 examined herself as DW1 and filed her

affidavit Ex.DW1/A, wherein she has supported her case as mentioned in

the written statement.

DW-2 is Smt. Ram Kali. She is the real sister of the defendant

no.1. She has filed her affidavit Ex.DW2/A, wherein she has stated that the

plaintiff was adopted by Sh. Khela Ram as Sh. Khela Ram was not having

any issue.

DW-3 is Sh. Sita Ram Sharma. He is Purohit by profession. He

has filed his affidavit Ex.DW3/A, wherei