Ancestral property passes through four generations with coparcenary birthright. Inherited property vests absolute ownership. A grandson has no right in grandfather's separate property when father is alive. Property devolving under Section 8 is self-acquired.
["Four-generation ancestral property vs inherited property distinction","Grandson no right in grandfather separate property when father alive","Section 8 devolution equals self-acquired","Inheritance through succession gives full alienation authority","Family settlement property is inherited not ancestral"]
[Cites 22 , Cited by 0 ]
Delhi District Court
Umed Singh Sehrawat vs Shiv Narain Ors on 7 November, 2025
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
DISTRICT JUDGE(COMMERCIAL COURT)-01, NORTH WEST,
ROHINI COURTS, DELHI.
DLSW010023042016
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
UMED SINGH SEHRAWAT
S/O LATE SH. JAISHI RAM
R/O B-36, VPO MAHIPALPUR
NEW DELHI-110037
(NOW DECEASED)
THROUGH HIS LEGAL HEIRS:
1.MRS ARADHNA SINGH
W/O COL. VIKRAM SINGH,
D/O LATE UMED SINGH SEHRAWAT
ARMY HEADQUARTER TPT UNIT
ST. MARTIN AD, OPP. ARSD COLLEGE
DHAULA KUAN, NEW DELHI-21
2.MS. VANDANA SARAS
D/O LATE UMED SINGH SEHRAWAT
R/O 4106, 50TH STREET,
APT. 5M, WOODSIDE,
NEW YORK-11377, U.S.A.
3.MR. AJAY SEHRAWAT
S/O LATE UMED SINGH SEHRAWAT
R/O B-36, DESU WALI GALI, VILL. &
P.O. MAHIPALPUR NEW DELHI-110037
4.MR. VISHAL SEHRAWAT
S/O LATE UMED SINGH SEHRAWAT
Page no.1 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
R/O B-24, DESU WALI GALI
VILL. & P.O. MAHIPALPUR
NEW DELHI 110037 .......PLAINTIFF
VERSUS
1. SH. SHIV NARAIN
S/O LATE SH. JAISHI RAM
R/O VPO: MAHIPALPUR,
NEW DELHI
2. SH. MAHABIR SINGH
S/O LATE SH. JAISHI RAM
R/O VPO: MAHIPALPUR
NEW DELHI
SINCE DECEASED THROUGH LRS
2A SMT. MANJU DEVI
W/O LATE SH. MAHABIR SINGH
2B SH. MOHIT
S/O LATE SH. MAHABIR SINGH
2C MS. MEENAKSHI
W/O SH. MUKESH
2D MS. MADHU
W/O SH. RAJIV HOOD
ALL R/O VPO MAHIPALPUR,
NEW DELHI-110037
3. SH. YUDHVIR SINGH
S/O LATE SH. JAISHI RAM
R/O VPO MAHIPALPUR
NEW DELHI
4. SH. SATISH KUMAR
S/O LATE SH. JAI NARAIN
R/O KHASRA NO. 539/1
VPO: MAHIPALPUR
NEW DELHI
5. SH. PRADEEP KUMAR
S/O LATE SH. JAI NARAIN
Page no.2 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
R/O KHASRA NO. 539/1
VPO MAHIPALPUR
NEW DELHI
6. KARAN SINGH
S/O LATE SH. BASTI RAM
R/O H. NO. 1022,
SECTOR: C-1, VASANT KUNJ
NEW DELHI
7. DELHI DEVELOPMENT AUTHORITY
THROUGH ITS CHAIRMAN
SHAKTI SADAN, INA
NEW DELHI
8. SMT. PREM WATI
D/O LATE SHRI JAISHI RAM
W/O SUKHBIR SINGH
R/O 416 VILLAGE DEOVLI NEW DELHI-62
9. SMT. VIR MATI
D/O LATE SHRI. JAISHI RAM
W/O SHRI. RAM PRASAD
R/O H. NO. В-5
JAI SHIV APARTMENT, PITAMPURA DELHI-110034
.....DEFENDANTS
Date of Filing(before Hon'ble High Court) : 19.09.2006
Date of Final Arguments : 24.09.2025
Date of Judgment : 07.11.2025
JUDGMENT
1. In view of transfer order no.40/D-3/Gaz.IA/DHC/2025 dated 17.10.2025
of the Hon'ble Delhi High Court, the file has been brought by the
undersigned and taken up for orders/judgment as detailed final arguments
were already heard.
Page no.3 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
2. The present suit for recovery of possession and partition in respect of
1/5th share in plot bearing no.1, Sector-10, Dwarka, New Delhi or in the
alternative, damage to the extent of entitlement of share at the prevalent
market value, was filed by the plaintiff Sh. Umed Singh Sehrawat, before
the Hon'ble Delhi High Court on 19.09.2006.
3. During the course of trial the plaintiff Sh. Umed Singh Sehrawat had
expired on 22.11.2017 and vide order dated 19.01.2018 the application
under order XXII Rule 3 CPC moved on behalf of Lrs of deceased
plaintiff was allowed and Lrs of deceased plaintiff were taken on record.
4. Initially the suit was filed against seven defendants i.e. defendants no.1 to
7. However, vide order dated 17.05.2018 the application under order 1
Rule 10 CPC moved on behalf of plaintiff was allowed and defendants
Smt. Veermati and Premwati were impleaded as defendants no.8 and 9.
5. During the course of trial defendant no.2 Sh. Mahabir Singh also expired
and vide order dated 01.09.2009 passed by Hon'ble High Court, the
application under order XXII Rule 4 CPC , IA no.8906/08 was allowed
and Lrs of defendant no.2 were brought on record.
BRIEF FACTS
(PLAINT)
6. The facts of the case in brief as per plaint are that the plaintiff is the real
son of Late Sh. Jaishi Ram who died on 02.06.1998 and leaving behind
the following lineal descendant as under:
Pedigree Table
JAISHI RAM
Smt. Chota Devi (Wife) Deceased Sh. Jai Narain (Son) Deceased
Page no.4 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
Sh. Shiv Narain (Son) Sh. Umed Singh (Son)
Sh. Mahabir Singh (Son) Yudhbir Singh (Son)
Prema Wati(Daughter) Sh. Satish Kumar(Nephew)
Sh. Pradeep Kumar (Nephew) Smt. Virmati (Daughter)
7. It is stated that the father of the plaintiff left behind the above named sons
and daughters and the mother of the plaintiff had already expired on
26.02.1986. That the father of the plaintiff had a number of properties
standing in his own name, and the property in question in the present suit
is comprising plot no. 1, sector-10, Dwarka, New Delhi. It is stated that
the said plot was allotted to the father of the plaintiff in lieu of acquisition
of agricultural land belonging to the plaintiff's father as an ancestral
property.
8. It is stated that the ancestral property was in the hands of the father of the
plaintiff who received the allotted plot in lieu thereof, as the compulsory
acquisition took place by the government. It is stated that the DDA had
allotted the above said plot in the name of the father of the plaintiff
wrongly, as the said allotment was given without enquiring as to the status
of the subject matter of acquisition proceeding was going on. That the
plaintiff's father never purchased agricultural land out of his own income.
It is stated that the agricultural land, which was acquired by the
government, was hold by the father of the plaintiff as a joint holding of all
co-parceners, who are the male lineal descendants as shown in the
pedigree table. That the male co-parceners have a equal rights with that of
karta in the family in the present matter. It is stated that the father of the
plaintiff was a karta or manager of the Joint Hindu Family, and the same is
governed under Mitakashara School, therefore, each and every male
Page no.5 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
member being a co-parcener of equal share in the agricultural land and
hence become entitled to have their individual respective share which
come 1/5th each. Therefore the plaintiff was having his 1/5th share in the
agriculture land.
9. That the plot was allotted by the defendant/DDA to the late father of the
plaintiff on 11.08.1989 and the possession thereof was never gained by the
father of the plaintiff and the allotment remained on the paper only as
possession was never delivered to any one except defendant no. 6,
therefore, the possession of the plot still remained only with the defendant
no.7 i.e. DDA. That number of litigations went before different courts,
however, the actual partition of the plot in question was never done.
10.It is stated that the nephew of the plaintiff i.e. defendant no.4, is stating
himself to be the testate successor to the above stated plot, which is under
challenge but till date none of the party has been successful in getting the
plot in question.
11. It is stated that the defendant no.6 Sh. Karan Singh in collusion with other
defendants had filed the case against the defendants leaving the plaintiff in
that matter. Thereafter the plaintiff impleaded himself as a party in one of
the matter pending in the High Court of Delhi, which was later on
transferred to the lower court on account of pecuniary jurisdiction. It is
stated that the defendant no. 6 is claiming himself to be the purchaser of
the plot in question.
12. That the defendant no. 6 is alleged to have been purchased the plot on
06.01.1995 directly from the deceased father of the plaintiff and further
the deceased father is alleged to have executed a Will subsequently on
24.05.1996 in favor of nephew of the plaintiff which is under challenge
Page no.6 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
before the court of law. That the aforesaid facts clearly shows that the plot
in question has been dealt without consulting the plaintiff at any point of
time, though he was entitled for 1/5th share in the plot in question. That
the suit property is an ancestral property, hence its partition to the extent
of 1/5th share is required to be carried out. Hence the present suit for
recovery of possession for 1/5th share in the plot in question as well as
simultaneously the partition thereof is filed by the plaintiff against the
defendant. The plaintiff has also prayed that if partition of the plot is not
feasible, then the prevalent market rate of the property in question may be
directed to be given to the plaintiff as an alternative relief.
13. It is stated that the 'Will' which is alleged to have been executed by the
father of the plaintiff is under challenge on two account, firstly the
disputed plot was the product of ancestral property, hence the deceased
father was not empowered to execute any documents for disposition of the
property in any manner being the ancestral property, secondly being the
ancestral property, the deceased father of the plaintiff was not even
entitled to execute 'Will' in favour of the defendant no. 4.
14. With the aforesaid facts, the plaintiff has filed the present suit with the
following prayer:
"The preliminary decree of partition may kindly be
drawn up to the extent of 1/5th share of the plot
measuring 400 sq. yards as per site plan and further
decree for partition may be followed. After partition the
possession to the extent of 1/5th share of total
measurement of the plot in question may kindly be
directed to be handed over to the plaintiff by the
Page no.7 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
defendant /DDA and decree to that effect may be passed
or in alternative the above referred relief are not feasible
or not possible then damage against the defendants as per
prevalent market value to the extent of 1/5th share in the
plot may kindly be decreed in favour of the plaintiff and
against the defendants".
15. Summons of the suit were issued to the defendants vide order dated
19.09.2006. The defendants on being served, put the appearance and
contested the present suit.
WRITTEN STATEMENT
16. The defendants no.1 & 3 to 5 filed joint written statement stating therein
that the plaintiff is a habitual litigant person and has a habit to file false
and frivolous suit/s against the innocent persons and the present suit is
also the result of the same. It is stated that the suit filed by the plaintiff is
hit by the provision of section 10 of CPC. It is submitted that it is an
admitted case of the plaintiff that Sh. Jaisi Ram had executed a 'Will'
dated 17.05.1996 and bequeathed the plot No. 1, Sector-10, Dwarka,
Residential Scheme, New Delhi in favour of defendant No. 4. That the
defendant No. 4 has also filed a petition for grant the probate in respect of
the property of deceased Sh. Jaisi Ram under the Will dated 17.05.1996 in
his favour, which is pending disposal. That the main issue involved in the
present case is directly and substantial involved in the probate petition
filed by the defendant No. 4.
17. That the suit filed by the plaintiff is barred under Order 2 Rule 2 CPC . It
is submitted that on 29.01.1996 the plaintiff had filed a suit for permanent
Page no.8 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
injunction with regard to the suit plot bearing No.1, Sector-10, Dwarka,
Residential Scheme, New Delhi, against Late Sh. Jaisi Ram whose legal
heirs are the defendant No. 1 to 5 and Smt. Prem Wati and Smt. Veer Mati.
That in the said suit and on the date of filing of the said suit, the plaintiff
was in the position to seek the relief which he has sought in the present
suit but at the time of filing of the above noted suit for permanent
injunction, the plaintiff had omitted to seek the said relief. Hence the
present suit is not maintainable and is liable to be dismissed.
18. That the present suit filed by the plaintiff is also barred under Order 22
Rule 9 (1) C.P.C as before filing the present suit, the plaintiff had also
filed the suit for permanent injunction against Late Sh. Jaishi Ram. That in
the said suit, after the death of Sh. Jaishi Ram, the plaintiff had filed an
application under order 22 rule 4 for impleading of the legal heirs of late
Sh. Jaishi Ram, but the said application was admittedly time barred and
the other legal heirs of late Sh. Jaishi Ram strongly opposed the said
application. That during the course of the argument upon the said
application on 06.08.2005 the plaintiff made a statement before the Ld.
Civil Judge seeking withdrawl of the suit with liberty to file afresh, as
defendant had already expired on 02.06.1998. The said statement was
strongly opposed by the Ld. Counsel of the legal heirs of late Sh. Jaishi
Ram. That the Ld. Civil Judge, Delhi vide order dated 06.08.2005
declined the above said request of the plaintiff and passed a detailed order
observing that the suit of the plaintiff has already been abated. Hence, the
plaintiff after the abatement of the said suit, plaintiff cannot agitate the
cause of action involved in the said suit, in the present suit. That the
present suit is not maintainable and is liable to be dismissed.
Page no.9 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
19. It is stated that the suit of the plaintiff is also hit by the provision of the
Order 1 Rule 9 CPC as two daughters of deceased late Sh. Jaishi Ram i.e.
Smt. Premwati and Smt. Veermati have not been impleaded as party.
20. That there is no cause of action in favour of the plaintiff to file the present
suit. That the plaintiff has filed the present suit in collusion with the
defendant no.2 and 6. That in the probate suit filed by the defendant no.4,
the defendant no.2 had given 'no objection' with regard to the Will dated
17.05.1996, but thereafter at the instance of plaintiff, he had filed an
application for withdrawn of 'no objection' which was dismissed by Ld.
ADJ, Delhi. That the defendant no.6 also in collusion with the plaintiff
forged and drafted an agreement cum receipt alleged to be executed by
Jaishi Ram. The averments on merits are denied. It is prayed that the suit
may kindly be dismissed.
21. The defendant no.2 filed the written statement thereby stating therein that
he is also entitled 1/5th share in the suit property and the decree to this
extent may also be passed. The averments made in para 1 of the plaint are
admitted. It is stated that the averments in para 2, 3, 4, 5, 6, 8 & 9 are
matter of record. It is stated that the alleged 'Will', if any in favour of
nephew of plaintiff is false and fabricated.
22. The defendant no.6 filed the written statement stating therein that the
present suit is not maintainable under the provision of order II Rule 2
CPC . That the suit is liable to be rejected under the provisions of order VII
Rule 11 CPC , being without cause of action. That the plaintiff has not
come to the court with clean hands. It is denied that after the death of Sh.
Jaishi Ram, the plaintiff or any of the legal heirs of deceased Sh. Jaishi
Ram had any interest, right or title in the suit property or the suit property
Page no.10 of 46
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Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
was ancestral property. It is stated that the present suit has been filed with
malafide intention in order to delay the disposal of the suit filed by
defendant no.6 for specific performance. That the plaintiff has no locus
standi to file the present suit as he has no right, title or interest in the suit
property. That the defendant no.6 is the bonafide purchaser having
purchased this suit property from the deceased father/grand father of the
plaintiff. That the suit is not maintainable on account of mis-joinder and
non joinder of parties. The averments on merits are denied. The factum of
acquiring the land of deceased father of the plaintiff and allotment of the
plot in question in alternative is not disputed. It is prayed that the suit may
kindly be dismissed.
23. The defendant no.7/DDA filed written statement thereby stating therein
that the Land and Building Department vide their letter dated 11.8.1989
recommended the name of Shri Jaishi son of Shri Ram Saran for allotment
of alternative residential plot measuring 400 sq. yds. That vide letter dated
5.4.1990, the defendant/DDA directed Shri Jaishi to deposit a sum of
Rs.5000/-. A draw of plots was thereafter held on 21.12.1995 and a plot of
land bearing No. 1, Sector 10, Dwarka Residential Scheme measuring
334.04 sq. mtrs, New Delhi was allotted to Shri Jaishi by the DDA. It is
stated that subsequently complaints dated 26.04.1995 and 15.07.1996
were received from the plaintiff alleging the illegal sale of the said plot to
Shri Karan Singh. That it was also alleged that the plot had been secured
on the basis of false documents furnished by Shri Jaishi to the Land and
Building Department. That subsequently, Sh. Jaishi Ram appeared in
public hearing on 11.7.1996 and filed an undertaking to the effect that if at
any later stage, it is found that the recommendation of the allotment has
Page no.11 of 46
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Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
been obtained on the basis of false documents, suppression/concealment
of facts to the Land & Building department, the allotment of the said plot
in his favour may be withdrawn/cancelled and accordingly, the demand
cum allotment letter was issued in favour of the allottee on 12.7.1996.
24. It is further stated that thereafter vide letter dated 19.7.1996, the
defendant/DDA was intimated by one Karan Singh about the suit bearing
no. 1693/96 titled 'Sh. Karan Singh V/s Sh. Jaishi', wherein the Hon'ble
Delhi High Court vide order dated 18.7.1996, had passed restraint orders
against the defendant. That subsequently the plaintiff vide letter dated
30.8.1996, intimated the defendant DDA about the order dated 7.8.1996,
passed in suit no. 16/96, titled 'Umed Singh Sehrawat V/s Shri Jaishi
Ram', by the Court of Sh. Manu Rai Sethi, Senior Civil Judge, Delhi
25. It is further stated that subsequently, Sh. Jaishi Ram, vide his letter dated
19.2.1998, intimated the defendant/DDA about the order dated 15.2.1998
passed by the Hon'ble Delhi High Court in suit bearing no. 1693/96,
whereby, the earlier order dated 18.7.1996 was modified to inter-alia to
the effect that the DDA be allowed to execute the lease deed and hand
over possession. That in view of the orders of the Hon'ble Delhi High
Court, the letter of handing over the possession was issued on 6.4.1998
and pursuant thereto the possession of the said plot was handed over to the
allottee on 13.4.1998. However, the issue of execution of the Lease Deed
was kept pending.
26. It is stated that subsequently, Sh. Jaishi, vide his letter dated 4.5.1998,
informed the defendant/DDA about the clarification given by the Court of
Sh. Manu Rai Sethi, Senior Civil Judge, dated 29.4.1998, passed in suit
no. 16/96, whereby it was clarified that interim order dated 07.8.1996 did
Page no.12 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
not create any bar upon execution of lease deed in favour of the defendant
or allotment in his favour.
27. It is stated that during the pendency of further action in the matter, the
defendant/DDA received intimation from the plaintiff about the death of
Sh. Jaishi, the allottee and vide letter dated 12.6.1998, the plaintiff filed
the list of legal heirs and also forwarded the death certificate giving the
date of death of the allottee as 2.6.1998. It is stated that thereafter, one
Shri Satish Kumar vide his letter dated 30.6.1998, came forward with a
request for mutation of the said plot in his name on the basis of a
registered 'Will' executed Sh. Jaishi dated 17.5.1996, in his favour and
submitted documents including the death certificate of Sh. Jaishi which
indicated the date of death as 1.6.1998. That a letter dated 2.7.1998
written by Sh. Karan Singh was received, stating that mutation be not
carried out till the decision of the suit bearing no. 1693/96. That
subsequently, vide letter dated 17.7.98, a request was made by the plaintiff
to mutate the plot in question in his favour on the basis of a 'Will'
executed by Sh. Jaishi dated 4.5.1998. It is stated that vide his letter dated
21.4.2005, Sh. Satish Kumar intimated the defendant DDA that a Probate
case titled 'Satish Kumar V/s The State' is pending in the court of the
Additional District Judge, Delhi.
28. The factum of allotment of the plot in question in favour of Sh. Jaishi is
admitted. It is stated that in view of facts and circumstances of the case,
the suit be dismissed with cost.
29. Written statement on behalf of defendants no.8 Smt. Premwati and
Defendant no.9 Smt. Veermat not filed. On 17.05.2018 it was submitted
by Sh. Izhar Hashmi, Ld.counsel for defendants no.8 and 9 that the
Page no.13 of 46
CS DJ ADJ No. 516584/16
Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
defendants no.8 and 9 does not want to file written statement in the
present case.
REPLICATION
30. The plaintiff filed detailed replication to the written statements of
defendants no.1, 3, 4, 5 and 7 thereby reaffirming his claim. The
submissions of defendants raised in written statement are vehemently
opposed.
31. After completion of pleadings of the parties, following issues were
framed by Hon'ble High Court vide order dated 16.02.2010:-
(i) Whether the suit filed by the plaintiff is barred under Order 2
Rule 2 CPC ? OPD
(ii) Whether the suit filed by the plaintiff is barred under Order 22
Rule 9(1) CPC ? OPD
(iii) Whether the suit is bad for non-joinder of the daughter of
Late Shri Jaishi Ram namely Smt Prem Wati and Veer Wati? OPD
(iv) Whether the present suit has been filed by the plaintiff in
collusion with defendant No.2 and 6? If so, to what effect? OPD
(v) Whether the suit property in question is an ancestral property?
OPP
(vi) Whether the deceased father of the plaintiff was empowered
to sell the suit property being ancestral property? OPP
(vii) Whether the suit property is allotted to the deceased by DDA
in lieu of acquisition of ancestral property? OPP
(viii) Whether the plaintiff is entitled to 1/5th share in the suit
property? OPP
(ix) Whether the defendants have no right, title and interest in the
Page no.14 of 46
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Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
plot bearing no.1, Sector-10, Dwarka, New Delhi? OPD
(x) Whether suit of the plaintiff is not maintainable in view of the
facts mentioned in para no.9 of the written statement filed by
defendant nos.1, 3 to 5? OPD
(xi) Whether the plaintiff is entitled to recovery of possession and
petition in respect of the 1/5th share of the said plot? OPP
(xii) Reliefs.
(PLAINTIFF EVIDENCE)
32. After framing of issues, the matter was fixed for plaintiff evidence. The
plaintiff in order to prove his case has examined Mr. Parvind Tomar,
Patwari from Tehsil of Vasant Vihar, Kapashera, Delhi as PW-1. He is a
summoned witness and has produced the summoned record i.e. the Field
Book of village Mahipalpur, for the year 1953-54 pertaining to new
Khasra Nos. 198/2, 199, 649, 650, 651, 652/2, 652/1, 653/1, 653/2, 654/1,
654/3, 655/1 and 655/2. PW-1 was cross-examined at length by
Ld.counsel for defendants.
33. PW-2 Mr. D. P. Gautam is the draftsman who had prepared the site plan
of the suit property. He proved the site plan as Ex. PW2/1. He was cross-
examined at length by Ld.counsel for defendants.
34. PW-3 Sh. Ramesh Kumar, Patwari from Revenue Department, Tis
Hazari, Delhi has produced on record the jamabandi for the year 1946-47
as Ex. PW3/1.
35. PW-4 Lt. Col. Ajay Sehrawat is the son of the plaintiff. He adduced his
evidence by way of affidavit Ex. PW-4/A and relied upon following
documents viz.:-
"1. Letter dated 05.04.1990 Mark A .
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2. Check memo submitted by Sh.Jaishi Ram with DDA Ex.PW-4/3
3. Application form submitted by sh.Jaishi Ram with DDA
Ex.PW-4/4.
4. Two affidavits of Sh.Jaishi Ram Ex.PW-3/5 and Ex.PW4/6.
5. Copy of Khatoni pertaining to the year 1964-65 Ex.PW-4/7.
6. Noting by Sh.Divakar Singh, Asstt. Legal Advisor Ex.PW-4/8.
7. Certified copy of order dated 20.04.1995 passed in LAC
No.466/72 Ex.PW-4/9.
8. Certified copy of order/record filed in the mater Jaishi Ram v.
Union of India dated 27.04.2000 Mark B.
9. Certified copy of record of suit no.2816/1993 Mark C.
10. Certified copy of order dated 31.01.2000 Mark D.
11. Revenue record i.e. Hadbast 224 and field book of 1953-54 of
village Mahipalpur, New Delhi Ex.PW-3/1. Ex.PW4/14 is already
exhibited as Ex.PW3/1
12. Certified copy of cross-examination of Sh. Umed Singh in Suit
no.58172/2016 dated 08.10.2016 Ex.PW-4/15"
36. PW-4 was cross-examined at length by Ld.counsel for defendants.
37. PW-5 Sh. Rajeev Sharma, Assistant Section Officer from Central Record
Room, Tis Hazari Courts, Delhi has proved the summoned record i.e. the
record relating to khatauni for the year 1964-65 Ex.PW5/A and B.
38. PW-6 Sh. Vishal Yadav, Jr. Secretriate Assistant, DDA, has produced the
summoned record i.e. allotment of alternative plot dated 05.09.1990 as
Ex.PW6/1. He also produced on record the another letter for allotment of
alternative plot dated 12.07.1996 Ex. PW6/2. He also produced on record
the copy of site plan as mark A.
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Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
39. PW-7 Sh. Afaq Ahmad, Translator has proved the translated copy of
document Ex. PW4/13 as Ex. PW7A(colly).
40. PW-8 Sh. Satish Kumar, JJA from the Record Room(Sessions), Tis
Hazari Courts, Delhi has produced the summoned record i.e. LAC No.
123/2000, titled as Jaishi Ram Vs. Union of India, Goshwara No. 77 dated
27.04.2000 as Mark A (Colly) except order dated 24th to 27th April 2000,
an application for payment of Rs. 45,915/- with affidavit dated 29.01.2000
and receipt dated 27.04.2000, the same are Ex.PW8/A (Colly).
41. PW-9 Sh. Amit Kumar Yadav, Kanoongo from the Revenue Department,
Tis Hazari Courts, Delhi has produced on record the certified copy of
scheme file of village Mahipalpur as Ex. PW9/A(colly).
42. No other witness was examined on behalf of plaintiff and plaintiff's
evidence was closed vide order dated 24.08.2022.
(DEFENDANTS EVIDENCE)
43. In defence, the defendant Sh. Pradeep Sehrawat examined himself as
DW1. He adduced evidence by way of affidavit Ex. DW1/A. He deposed
in terms of his defence taken in the written statement and relied upon the
following documents viz.
1. Photocopy of certified copy of plaint in CS No. 16/1996 Mark
DW1/X
2. Photocopy of certified copy of order in probate case filed by D4
Mark DW1/Y
3. Certified copy of complaint filed under Section 190 Cr.P.C Ex.
DW1/3
4.Certified copy of statement of D6 dated 27.9.2001 Ex.DW1/4
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5.Certified copy of order dated 1.10.2005 Ex.DW1/5
6.Certified copy of statement with affidavit of plaintiff Ex.DW1/6.
7.Certified copy of statement evidence of D4 dated 31.8.2006
Ex.DW1/7.
8. Certified copy of proceedings of Compensation Case
Ex.DW1/8.
9. Copy of letter dated 11.6.1998 filed by plaintiff before DDA
Mark DW1/A
10. Copy of affidavit filed by plaintiff before DDA dated
10.6.1998 Mark DW1/B
11. Copy of letter dated 15.6.1998 filed by plaintiff before DDA
Mark DW1/C
12. Copy of letter dated 2.7.1998 vide diary No 4636 filed by
plaintiff before DDA Mark DW1/D
13. Copy of letter dated 2.7.1998 vide diary No 4634 filed by
plaintiff before DDA Mark DW1/E
14. Copy of letter dated 17.7.1998 filed by plaintiff before DDA
Mark DW1/F
15. Copy of Will dated 4.5.1998 filed by plaintiff before DDA
Mark DW1/G
16. Copy of letter dated 15.6.1998 vide diary No 4046 filed by
plaintiff before DDA Mark DW1/H
17. Copy of Will dated 17.5.1996 executed by Late SH Jaishi Ram
in favour of D4 Mark DW1/I
18. Copy of judgment dated 29.11.2010 Mark DW1/K
19. Copy of judgment dated 25.01.2011 passed in FAO No.
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29/2011 Mark DW1/L
20. Copy of judgment dated 21.1.2016 passed by Hon'ble Supreme
Court of India in CA No. 7385/2013 Mark DW1/M
21. Copy of Bankers Cheque paid to Karan Singh by D4 Mark
DW1/N"
44. DW-1 Sh. Pardeep Sehrawat was cross-examined at length by Ld.counsel
for plaintiff.
45. The defendants also examined Sh. Vishal Yadav, JSA, Vikas Sadan, New
Delhi as DW-2. He is a summoned witness and produced on record the
following documents:-
i)copy of letter dt 20.5.1997 written by plaintiff to DDA
Ex.DW2/1(OSR);
(ii)copy of letter dt 22.5.1997 written by plaintiff to DDA
Ex.DW2/2(OSR);
(iii)copy of letter dt 30.9.1997 written by plaintiff to DDA
Ex.DW2/3(OSR);
(iv)copy of letter dt 3.11.1997 written by plaintiff to Lt
Governor Ex.DW2/4(OSR);
(v)copy of letter dt 3.12.1997 written by plaintiff to Lt
Governor Ex.DW2/5(OSR);
(vi)copy of letter dt 8.1.1998 written by plaintiff to Lt Governor
Ex.DW2/6(OSR);
vii)copy of letter dt 2.7.1998 written by plaintiff to DDA vide
diary No.4543 Ex.DW2/7(OSR);
(viii)copy of letter dt 2.7.1998 written by plaintiff to DDA vide
diary No.4634 Ex.DW2/8(OSR)
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46. No other witness was examined on behalf of defendants and defendants'
evidence was closed vide order dated 07.10.2023.
'ARGUMENTS OF PARTIES'
47. Arguments at length have been advanced by Sh. Vaibhav Kush,
Ld.counsel for plaintiff, Sh. Pradeep Sehrawat(advocate) defendant no.5
himself and Sh. Ravi Chand, Ld.counsel for defendants no.1, 3 and 5.
Detailed written arguments on behalf of parties also filed.
48. It is argued on behalf of plaintiff that the predecessor in interest of the
parties to the suit was allotted the suit property by the DDA against the
ancestral property, being the karta of joint Hindu Family. That the father
of the plaintiff never deposited any money in DDA from his own funds.
That the deceased father of the parties to the suit was not bhumidar but
karta of the family and the status of the ancestral property never changes.
That the suit property being ancestral in nature, is liable to be partitioned
equally between the parties to the suit and the plaintiff is entitled for 1/5th
share in the suit property.
49. On the other hand it is argued on behalf of defendants no.1, 3 and 5 that
the deceased Plaintiff had been residing separately from his father and
other elder brothers at house No.B-36 as mentioned in the Plaint itself.
That most of time of his job, the deceased Plaintiff was residing at R. K.
Puram in a government accommodation. That the Plaintiff had no cordial
relations with his father and other brothers since childhood. It is also
stated that the deceased Plaintiff also failed to prove that as to why he
didn't file his objection to the DDA either for acquisition proceedings qua
the self-acquired properties of deceased Jaishi Ram or the allotment of the
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suit plot to him. That the Plaintiff has also failed to prove that DDA or
govt. departments had acquired agricultural properties from the alleged
HUF through its Karta or suit plot was allotted in the name of Karta of
alleged HUF. None of the Plaintiff's witnesses have produced any
documents showing that the suit property belonged to HUF through Karta.
It is stated that Shri Jaishi Ram had received the properties in hands from
his father as his self-acquired properties. That the suit Plot is also a self-
acquired property of the deceased Jaishi Ram and he had rightly
transferred it's all right to defendant No.4 by executing a registered WILL
dated 17.5.1996 (Ex.PW1/2). It is prayed that the suit may kindly be
dismissed.
FINDING AND ANALYSIS
50. I have carefully perused the material on record and considered the
submissions made by Ld.counsel for parties. My issuewise findings are as
under:-
ISSUE NO.1
(i) Whether the suit filed by the plaintiff is barred under Order 2 Rule 2
CPC ? OPD
51. The onus to prove this issue was upon the defendants. The defendants
no.1, 3, 4 and 5 in their written statement pleaded that a Civil Suit for
Permanent Injunction was filed by the plaintiff against Shri Jaishi Ram
vide CS No.16/1996 in respect of the Suit Plot which stood dismissed vide
Abatement Order dated 6.8.2005 (Ex.PW1/6). That the plaintiff Umed
Singh in order to continue with the said suit was duty bound to bring
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Legal representatives of Late Shri Jaishi Ram (Who expired on 1.6.1998)
on record of the said case but till 6.8.2005, he had failed to bring all the
Legal representatives on record, who had come in the shoes of Shri Jaishi
Ram. Thus, cause of action for filing of the case against all the defendants
(LR's of Jaishi Ram) if any was accrued on 1.6.1998 on the death of Jaishi
Ram which was lost by virtue of Abatement Order dated 6.8.2005. That
the plaintiff has himself admitted the said facts in the para No.5 of the
plaint. Therefore, the present case could not have filed against the
defendants (LR's of Jaishi Ram). That the deceased Plaintiff could have
agitated all reliefs in the said suit, but, he had failed to do so which had
already been abated vide Order dated 6.8.2005 on failure of bringing of
Legal representatives of Jaishi Ram on record. Therefore the present suit
is barred under the provisions of Order 2, Rule 2 of CPC .
52. On the other hand it is argued on behalf of plaintiff that the present suit
for partition is not barred under the provisions of Order II Rule 2 CPC , as
it is founded upon a distinct and subsequent cause of action. That during
the lifetime of Late Shri Jaishi Ram(the deceased predecessor-in-interest),
the Plaintiff had instituted a suit for injunction to restrain him from
alienating the suit property, ie., the property allotted in lieu of acquisition
of ancestral land. That the said proceeding was limited to protecting the
family's interest in the suit property from unlawful alienation by the then
Karta. That subsequently, upon the demise of Shri Jaishi Ram, when the
legal heirs and other co-parceners denied the Plaintiff's entitlement to
partition in the said suit property, a new and independent cause of action
arose based on the continuing denial of his coparcenary rights. Therefore
the present suit for partition of the suit property stands on an independent
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cause of action and is not barred under order II Rule 2 CPC .
53.Before adverting to the facts of the case, it is necessary to go through the
relevant case law regarding applicability of order II Rule 2 CPC . The law
governing the scope and application of Order II Rule 2 CPC is now well
settled. The Hon'ble Supreme Court in Prem Lala Nahata v. Chandi
Prasad Sikaria , (2007) 2 SCC 551 : 2007 SCC OnLine SC 152 held that
the bar under Order II Rule 2 arises only when the cause of action in the
subsequent suit is identical to that in the previous suit and the relief
claimed in the later proceeding could and ought to have been claimed
earlier. Likewise, in Cuddalore Powergen Corpn. Ltd. v. Chemplast
Cuddalore Vinyls Ltd. , 2025 SCC OnLine SC 82, the Court reiterated that
the test for applying Order II Rule 2 is whether the second suit is founded
on a distinct and independent cause of action which was not in existence
when the earlier suit was filed.
54.In Inbasagaran v. S. Natarajan , (2015) 11 SCC 12, the Supreme Court
observed that the bar does not apply where the subsequent claim is based
on a right that accrues after the filing of the earlier suit. Similarly, in LIC
v. Sanjeev Builders (P) Ltd. , (2022) 16 SCC 1, it was held that the object
of Order II Rule 2 is to prevent multiplicity of litigation but it cannot be
stretched to defeat a legitimate claim founded on a distinct or later-arising
cause of action. In SBI v. Gracure Pharmaceuticals Ltd., (2014) 3 SCC
595, the Court emphasised that the true test is the identity of the cause of
action and not merely the identity of the subject matter. Further, in Sucha
Singh Sodhi v. Baldev Raj Walia , (2018) 6 SCC 733, it was held that the
bar is attracted only when both suits are founded on the same bundle of
essential facts giving rise to the same relief.
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55.The same view was adopted by the Delhi High Court in Suresh Kakkar v.
Mahender Nath Kakkar, 2008 SCC OnLine Del 740, where it was held
that an earlier suit for injunction and a later suit for partition/declaration
filed after the death of the father rest on distinct causes of action and
therefore the latter is not barred under Order II Rule 2 CPC .
56.In the present case it is an admitted fact that the suit for permanent
injunction was filed by the plaintiff against Sh. Jaishi Ram regarding the
same property praying for restraining Sh. Jaishi Ram from alienating the
suit property. The factum of filing of the suit is not disputed by any of the
parties. In view of admitted position regarding filing of the suit for
permanent injunction, it is evident that the earlier suit for permanent
injunction was filed by the plaintiff against Late Sh. Jaishi Ram during his
lifetime restraining him from alienating the suit property whereas in the
present suit the plaintiff has pleaded the cause of action to file the present
suit has arose only on the death of Sh. Jaishi Ram, predecessor in interest
of the plaintiff and defendants. It is specifically stated by the plaintiff that
upon the demise of Sh. Jaishi Ram when the other legal heirs and other
co-parceners denied the plaintiff's entitlement and in view of independent
cause of action arose, based on the continuous denial by the co-parceners,
the present suit was filed. It is no doubt true that the present suit for
declaration and partition of the suit property stand on independent cause
of action apart from cause of action in the suit for permanent injunction
filed earlier by the plaintiff.
57. It is a settled principle that in order to invoke the bar under Order II Rule
2 CPC , the Defendant must establish that the earlier suit and the
subsequent suit are based on the same cause of action and that the relief
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claimed in the latter could and ought to have been claimed in the former.
In the present case, the earlier suit filed by the Plaintiff was one for
permanent injunction against Late Shri Jaishi Ram in respect of the suit
property. The cause of action therein was confined to restraining
alienation or dispossession during the lifetime of the said defendant. The
present suit, on the other hand, is for declaration and partition of the same
property, which has arisen only after the death of Late Shri Jaishi Ram,
when his legal heirs have claimed exclusive ownership on the basis of a
Will dated 17.05.1996. The present cause of action is therefore distinct,
independent and subsequent in point of time. The relief of partition could
not have been sought in the earlier injunction suit, as no right of
succession or division had then accrued. Consequently, the bar under
Order II Rule 2 CPC is not attracted, and the present suit is not barred
thereunder.
58. Hence, in view of the aforesaid judicial precedents, and above
observations, it is held that the present suit is not barred under Order II
Rule 2 CPC . This issue is accordingly decided in favour of the Plaintiff
and against the Defendants.
ISSUE NO.2
(ii) Whether the suit filed by the plaintiff is barred under Order 22 Rule
9(1) CPC ? OPD
59. The onus to prove this issue was upon the defendants. The
defendants no.1, 3, 4 and 5 in their written statement have pleaded that
admittedly, deceased Plaintiff had already filed an Application under
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Order 22, Rule 4 in the earlier Civil Suit for Permanent Injunction filed
against Late Shri Jaishi Ram in respect of the suit plot vide CS
No.16/1996, for bringing legal heirs of Late Shri Jaishi Ram in which the
deceased Plaintiff made a request to withdraw the said suit as it was
strongly opposed by the Legal Heirs of Late Shri Jaishi Ram since, the
said Application was highly time barred. That Ld. Civil Judge passed a
detailed order and disallowed the request of the deceased Plaintiff and
passed an Abatement Order dated 6.8.2005 (EX.PW1/6). Therefore, in
terms of provisions of Order 22, Rule 9(1) CPC , the earlier suit of the
Plaintiff had been stood abated and no fresh suit (Present one) can be
brought against the defendants.
60. On the other hand it is argued on behalf of plaintiff that the said was
founded upon a distinct and subsequent cause of action. Therefore, the
objections raised by the defendants is not maintainable.
61.The legal effect of abatement under Order XXII Rule 9 CPC has been
explained in a catena of decisions. The Hon'ble High Court of Telangana
(then Andhra Pradesh) in M/s J.P. Estates v. Mecca Madina Allauddin
Waqf , 2019 SCC OnLine TS 2043(decided on 23 September 2019), after
considering earlier precedents of the Madras High Court and the Privy
Council, held that once a suit is dismissed as abated, it operates as a
judgment in favour of the defendant and the only course open to the legal
representative of the deceased plaintiff is to apply to set aside the
abatement. If such abatement is not set aside, it becomes conclusive of the
defendant's rights in the property. The Court, relying upon Rahimunnissa
Begam v. M.A. Srinivasa Ayyangar, AIR 1920 Mad 580, and Kamatchi
Ammal v. Athigamudaya Pillai , AIR 1969 Mad 426, reiterated that where
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Umed Singh Sehrawat(through LRs) Vs. Shiv Narain & Ors.
a plaintiff's earlier suit has abated and no steps have been taken to revive
it, a subsequent suit on the same cause of action is barred, as the earlier
order of abatement must be deemed to have decided the rights in favour of
the defendant.
62.The same principle was reaffirmed by the Madras High Court in
Muthuraja & Anr. v. Lakshminarayana, S.A. No. 1576 of 2003, decided on
14.07.2015, where it was held that under Order XXII Rule 9(1) CPC , no
fresh suit shall be brought on the same cause of action once the earlier suit
has abated. The Court observed that an abatement order, if not set aside,
operates as a judgment in favour of the defendant, and the only remedy
available to the legal representative of the deceased plaintiff is to seek
setting aside of the abatement. So long as such order remains in force, it
bars the filing of a fresh suit on the same cause of action.
63.However, both these decisions also clarify that the bar under Order XXII
Rule 9 applies only when the cause of action in the subsequent suit is
identical with that of the abated suit. Where the second suit arises from a
new or subsequent cause of action, or from facts that occurred after the
abatement, it is not hit by the said provision.
64.In the present case, the Defendants have contended that the present suit is
barred under Order XXII Rule 9(1) CPC , on the ground that an earlier suit
for permanent injunction filed by the Plaintiff against Late Shri Jaishi
Ram had abated upon the death of the said defendant, as no application for
substitution of legal representatives was filed within the prescribed time.
It is, however, settled law that the bar under Order XXII Rule 9 CPC
applies only when the subsequent suit is based on the same cause of action
as the abated suit. In the instant case, the earlier injunction suit was filed
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during the lifetime of Late Shri Jaishi Ram, whereas the cause of action to
file present suit for declaration and partition has arisen only after his
demise, when rights of succession and inheritance came into question. The
cause of action in the present case is therefore distinct and subsequent.
The abatement of the earlier suit for permanent injunction does not
preclude the Plaintiff from instituting a fresh suit founded on a new cause
of action which arose after the death of the original defendant.
65. Hence, this issue no.2 is also decided in favour of the Plaintiff and against
the Defendants.
ISSUE NO.3
(iii) Whether the suit is bad for non-joinder of the daughter
of Late Shri Jaishi Ram namely Smt Prem Wati and Veer
Wati? OPD
66. The onus to prove this issue was upon the defendants. The perusal
of the record reveals that though at the intital stage Smt. Prem Wati and
Smt. Veerwati daughters of the late Sh. Jaishi Ram were not impleaded as
party in the present suit. But subsequently vide order 17.05.2018 passed
by Hon'ble High Court an application under 1 Rule 10 PC was allowed
and Smt. Premwati and Smt. Veerwati were impleaded as party in the suit.
In view of impleadment of daughters of the deceased Sh. Jaishi Ram, this
issue has become infructuous and accordingly decided in favour of the
plaintiff and against the defendants.
ISSUE NO.4
(iv) Whether the present suit has been filed by the plaintiff
in collusion with defendant No.2 and 6? If so, to what
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effect? OPD
67.The onus to prove this issue was upon the defendants. The defendants
no.1, 3, 4 and 5 in their written statement pleaded that the defendant no.6
Sh. Karan Singh had also filed a case against Shri Jaishi Ram in respect of
suit plot vide Suit No.1693/1996 which was decided in favour of
defendant No.6 on the basis of statement given by Plaintiff. However,
deceased Plaintiff filed an Appeal vide RFA No.446/2010 before the
Hon'ble Delhi High court and he withdrew it before its hearing in
collusion with the defendant No.6 and defendant No.2. the plaintiff has
specifically denied any collusion with the defendants no.2 and 6 for filing
of the present suit. The defendants have failed to bring on record any
positive evidence to prove the fact regarding collusion between the
plaintiff and defendants no.2 & 6.
68. It is well settled law that the bald averments made by the parties in their
pleadings, in the absence of any cogent evidence shall not have any
authority in the eyes of law. Therefore, in the absence of any
corroborating evidence brought on record, it is clear that the defendants
have failed to prove the collusion between the plaintiff and defendants
no.2 &6. This issue is accordingly decided against the defendants and in
favour of the plaintiff.
ISSUE NO.5
(v) Whether the suit property in question is an
ancestral property? OPP
69. The onus to prove this issue was upon the plaintiff. The plaintiff has filed
the present suit for declaration and partition of the suit property i.e. plot
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bearing no.1, Sector-10, Dwarka, New Delhi. The plaintiff has pleaded
that the suit property suit property is an alternative plot given to Sh.Jaishri
Ram in lieu of Acquisition of Ancestral land situated in Village
Mahipalpur is ancestral in nature, as evident from the revenue records i.e.
Jamabandi of 1946-47, Hadbast no.224 and Khatauni records of 1954-55
(Ex. PW-2,3/1,PW-7 and 9,PW-4/7 and 4/13) which reflect the names of
the plaintiff's forefathers, thereby affirming the said status. That the
plaintiff, born on 6th December 1939, became a coparcener by birth under
Mitakshara law, prior to the enactment of the Hindu Succession Act, 1956 ,
and thus acquired an undivided interest in the family property. The
plaintiff's grandfather, Shri Ram Saran, died in 1948 as per Sanad
no.1394(Mark DW1/P1), confirming that the ancestral property devolved
upon the family before the 1956 cut-off. It is further submitted that the
property was never partitioned inter se and was acquired by the
Government under Award No. 2182-B. In lieu of the same, the suit
property was allotted. It is submitted that the suit property continued to
retain its ancestral character even after the enactment of the Hindu
Succession Act, 1956 . It is stated that the late father of the parties to the
suit never deposited any amount to DDA with respect to the suit property
from his own funds. That the status of Late Sh. Jaishi Ram in respect of
the suit property was only that of a karta of ancestral property and not that
of an absolute owner. That the conferment of bhoomidari rights on Late
Shri Jaishi Ram did not change the character of the land from ancestral to
self-acquired. The land continued to be HUF property, and Late Shri Jaishi
Ram, as Karta, held the suit property on behalf of all coparceners. The
nature of the property being ancestral did not change at any point of time
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and remained coparcenary in law.
70. On the other hand, on behalf of defendants no.1, 3 and 5, it is argued that
the deceased Plaintiff had been residing separately from his father and
other elder brothers at house No.B-36 as mentioned in the Plaint itself.
That most of his job, the deceased Plaintiff was residing at R. K. Puram in
a government accommodation. That the Plaintiff had no cordial relations
with his father and other brothers since childhood, resulting, deceased
plaintiff had filed various court cases against his father, uncle and
brothers. Admittedly, deceased filed a suit for partition against his father,
uncle and brothers vide suit No.2816/1993 before the Hon'ble Delhi High
Court in respect of the entire immovable properties. Deceased Plaintiff
had also filed various complaints before DDA for asking cancellation of
the Suit Plot ie. Ex.DW2/1, Ex.DW2/2, Ex.DW2/3, Ex.DW2/4,
Ex.DW2/5, Ex.DW2/6, Ex.DW2/7 and Ex.DW2/8. It is stated that two
FIR's were got registered against deceased plaintiff vide FIR No.487/07,
u/s 120-B/463/464/467/468/471/474/191/192/193/195/199/200/209/418/
420/423/511 IPC with PS Dwarka for forging, manufacturing and using a
fake WILL in respect of the Suit Plot & the other FIR No.338/07 with PS
Vasant Kunj for forging, manufacturing property documents for younger
brother of Late Shri Jaishi Ram namely Late Shri Jasrath for which
deceased Plaintiff was remained in judicial custody for some times. The
said both FIR's were got registered against deceased Plaintiff by the police
with the direction of the court after procuring opinion of the Forensic
Science Laboratory. It is also stated that the deceased Plaintiff also failed
to prove that as to why he didn't file his objection to the DDA either for
acquisition proceedings qua the self-acquired properties of deceased Jaishi
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Ram or the allotment of the suit plot to him. That the Plaintiff has also
failed to prove that DDA or govt. departments had acquired agricultural
properties from the alleged HUF through its Karta or suit plot was allotted
in the name of Karta of alleged HUF. None of the Plaintiff's witnesses
have produced any documents showing that the suit property belonged to
HUF through Karta. It is stated that Shri Jaishi Ram had received the
properties in hands from his father as his self-acquired properties. That the
suit Plot is also a self-acquired property of the deceased Jaishi Ram and he
had rightly transferred it's all right to defendant No.4 by executing a
registered WILL dated 17.5.1996 (Ex.PW1/2).
71. In the present case it is an admitted position of both the parties that the
suit property was allotted to Late Sh. Jaishi Ram as an alternate plot given
in lieu of acquisition of his agricultural land situated in the village
Mahipalpur, Delhi. On the one hand it is pleaded by the plaintiff that the
suit property was allotted as an alternate plot in lieu of ancestral land of
deceased Sh. Jaishi Ram, therefore, the suit property had also acquired the
status of ancestral land.
72. On the other hand the defendants have pleaded that late Sh. Jaishi Ram
had received the suit property as an alternative plot in acquisition of his
agriculture land, therefore, it had acquired the status of the self acquired
property.
73.Before proceeding further on the facts it is incumbent to consider the land
acquisition policy/scheme and the relevant case law in this regard for
guidance. The Government of India has formed as policy titled as "Large
Scale Acquisition, Development and Disposal of Land in Delhi -
Entitlement Scheme, 1961," whereby the landowners whose agricultural
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lands were acquired for public purposes were granted a preferential right
to seek allotment of an alternate residential plot. The said policy,
administered by the Land & Building Department, Government of NCT of
Delhi, operates through a structured procedure involving verification by
the Land Acquisition Collector, recommendation by a
Scrutiny/Recommendation Committee, and final allotment by the Delhi
Development Authority (DDA).
74. The procedure for such alternate allotment begins when the recorded
bhumidhar or owner of the acquired agricultural land applies for an
alternate plot. The applicant must establish
(i) ownership prior to the Section 4 notification under the Land
Acquisition Act ,
(ii) receipt of compensation for acquisition,
(iii) absence of any other residential house, plot, or flat in Delhi, and
(iv) possession of land meeting the minimum prescribed area under the
policy. Upon verification, the Land & Building Department forwards the
recommendation to DDA, which then allots a residential plot subject to
conditions of premium, leasehold restrictions, and terms of use.
75. On this issue I have relied upon one judgment of Hon'ble Supreme Court
in case titled as Rohit Chauhan v. Surinder Singh & Ors. , 2013 SCC
OnLine SC 621. The Hon'ble Supreme Court has defined the words and
phrases 'coparcener' & 'coparcenary' and was pleased to held as under:-
11. We have bestowed our consideration to the rival submissions and we
find substance in the submission of Mr Rao. In our opinion coparcenary
property means the property which consists of ancestral property and a
coparcener would mean a person who shares equally with others in
Inheritance in the estate of common ancestor. Coparcenary is a narrower
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body than the joint Hindu family and before the commencement of the
Hindu Succession (Amendment) Act, 2005 , only male members of the
family used to acquire by birth an interest in the coparcenary property. A
coparcener has no definite share in the coparcenary property but he has an
undivided interest in it and one has to bear in mind that it enlarges by
deaths and diminishes by births in the family. It is not static. We are
further of the opinion that so long, on partition an ancestral property
remains in the hand of a single person, It has to be treated as a separate
property and such a person shall be entitled to dispose of the coparcenary
property treating it to be his separate property but if a son is subsequently
born, the alienation made before the birth cannot be questioned. But, the
moment a son is born, the property becomes a coparcenary property and
the son would acquire interest in that and become a coparcener.
12. The view which we have taken finds support from a judgment of this
Court in M. Yogendra v. Leelamma N. in which it has been held as
follows: (SCC p. 192, para 29)
"29. It is now well settled in view of several decisions of this Court
that the property in the hands of a sole coparcener allotted to him in
partition shall be his separate property for the same shall revive only
when a son is born to him. It is one thing to say that the property
remains a coparcenary property but it is another thing to say that it
revives. The distinction between the two is absolutely clear and
unambiguous. In the case of former any sale or alienation which has
been done by the sole survivor coparcener shall be valid whereas in the
case of a coparcener any alienation made by the karta would be valid."
13. Now referring to the decision of this Court in Bhanwar Singh relied on
by the respondents, the same is clearly distinguishable. In the said case the
issue was in relation to succession whereas in the present case we are
concerned with the status of the plaintiff vis-à-vis his father who got
property on partition of the ancestral property.
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14. A person, who for the time being is the sole surviving coparcener as in
the present case Gulab Singh was, before the birth of the plaintiff, was
entitled to dispose of the coparcenary property as if it were his separate
property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was
competent to sell, mortgage and deal with the property as his property in
the manner he liked. Had he done so before the birth of plaintiff, Rohit
Chauhan, he was not competent to object to the alienation made by his
father before he was born or begotten. But, in the present case, it is an
admitted position that the property which Defendant 2 got on partition was
an ancestral property and till the birth of the plaintiff he was the sole
surviving coparcener but the moment plaintiff was born, he got a share in
the father's property and became a coparcener. As observed earlier, in view
of the settled legal position, the property in the hands of Defendant 2
allotted to him in partition was a separate property till the birth of the
plaintiff and, therefore, after his birth Defendant 2 could have alienated the
property only as karta for legal necessity. It is nobody's case that
Defendant 2 executed the sale deeds and release deed as karta for any
legal necessity. Hence, the sale deeds and the release deed executed by
Gulab Singh to the extent of entire coparcenary property are illegal, null
and void. However, in respect of the property which would have fallen in
the share of Gulab Singh at the time of execution of sale deeds and release
deed, the parties can work out their remedies in appropriate proceeding".
76. The Hon'ble Delhi High Court in recent judgment reported as Birbal
Saini Vs. Smt. Satyawati decided on 24.12.2024, reported as 2024 DHC
10044 has elaborated the legal position between the coparceners and
inherited property and was pleased to held as under:-
"By definition, an ancestral property is a coparcenary property, where
"coparceners" are legal heirs with an inherent interest in the property from
birth. Such properties remain undivided within joint families, with legal heirs
enjoying their shares. The Supreme Court in the case of Matkul v. Mst.
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Manbhari and Others clucidates upon the concept of ancestral property in the
following terms:-
"6. So far as the statement of the customary law itself is concerned,
Rattigan's Digest which is regarded as an authority on the subject, does
not support the appellant's case. In para 59 of the Digest of Civil Law for
the Punjab chiefly based on the cutomary law it is stated that ancestral
immovable property is ordinarily inalienable (especially amongst Jats,
residing in the Central Districts of the Punjab) except for necessity or
with the consent of male descendants or, in the case of a sonless
proprietor, of his male collaterals. Provided that the proprietor can
alienate ancestral immovable property at pleasure if there is at the date of
such alienation neither a male descendant nor a male collateral in
existence. Following this statement of the law the learned author
proceeds to explain the meaning of ancestral property in these words:
"Ancestral property means, as regards sons, property inherited from a
direct male lenial ancestor, and as regards collaterals property inherited
from a common ancestor". Thus, so far as the customary law in Punjab
can be gathered, the statement of Rattigan is clearly against the
appellant.""
17. In Rohit Chauhan v. Surinder Singh & Ors ', the Supreme Court
emphasized that coparcenary properties are typically ancestral and should
remain undivided. A coparcener is defined as an heir inheriting common
ancestral property alongside others. Only coparceners can claim
ownership interests in ancestral property. Non-coparceners have no
ownership rights. If a coparcener is the sole surviving heir, they inherit
the entire property. In cases with multiple coparceners, each heir receives
a proportional share based on the number of coparceners.
18. Conversely, a property obtained through inheritance, whether by way of
a will or upon the demise of the property owner, is classified as inherited
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property. The inheritor holds exclusive ownership over the said property,
and is entitled to freely transfer, sell, or dispose of it at their discretion.
There are no claims based on birthright, with ownership being governed by
the legal owner's directives, will, or the applicable succession laws. The
interest of a legal heir in inherited property is not established at birth, as
with ancestral property. Rather, it is formally conferred through a
testamentary will or agreement. A legal heir can even be disqualified as a
successor. The property owner holds absolute authority over designating
their successor and setting the conditions for such succession.
19. It is, thus, clear from the factual background of the case at hand that the
suit property could not have been held to be an ancestral property, as the
same was received by the erstwhile owner, Sh. Bharat Singh, by way of a
family settlement, wherein, the two brothers divided two equally measuring
plots between themselves. Hence, the property could not have been said to
be delved on the father by virtue of him being a coparcener in that property.
The Courts below have rightly laid down the distinct position of the suit
property from that of an ancestral property. Therefore, the Court does not
find any error in the decisions of the Courts below and refrains from
interfering with the same".
77. The plaintiff in the present case has led the evidence and proved on
record the following documents with regard to allotment of the suit
property viz. Record of allotment of alternative plot Ex. PW6/1 and Ex.
PW6/2 produced on record by PW-6 Sh. Vishal Yadav, Jr. Secretriate
Assistant, DDA.
78. It is also not disputed by the defendants that the suit property was allotted
to Late Sh. Jaishi Ram as alternative plot under the scheme "Large Scale
Acquisition, Development and Disposal of Land in Delhi - Entitlement
Scheme, 1961. Therefore it is to be decided by the court whether the suit
property on being allotted to deceased Sh. Jaishi Ram has become the
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ancestral property or the self acquired property. If the plaintiff is able to
prove that the suit property fails in the hand of the deceased Sh. Jaishi
Ram as ancestral property then, the plaintiff is legally right in saying that
their father Sh. Jaishi Ram was not competent to dispose off the suit
property during his lifetime either by way of sale or testamentary
succession. If it is proved on record that the suit property falls in the hands
of Late Sh. Jaishi Ram as self acquired property, then Late Sh. Jaishi Ram
was free to dispose off the same either by way of sale or by way of
testamentary succession, may be to the exclusion of the plaintiff.
79. The suit property i.e. plot no.1, Sector-10, Dwarka, New Delhi was
allotted to the deceased Sh. Jaishi Ram by the defendant no.7/DDA in
compliance of policy of Government of India i.e. "Large Scale
Acquisition, Development and Disposal of Land in Delhi - Entitlement
Scheme, 1961" whereby the landowners whose agricultural lands were
acquired for public purposes were granted a preferential right to seek
allotment of an alternate residential plot. It is not out of place to mention
that the acquisition of the agriculture land gives the land owners only the
preferential rights to seek allotment of residential plot, that too upon the
payment of necessary cost of the plot, leasehold registration and terms of
use. Once a property is obtained under a new legal mechanism, whether
by statutory inheritance, family arrangement, or testamentary transfer, the
earlier ancestral or coparcenary character stands extinguished, and the
successor's title is founded upon a fresh and independent source of
ownership. The new title does not flow from, nor does it continue, the
incidents of the previous estate.
80.The same reasoning is applicable when allotments of alternate plots were
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made to land-losers upon acquisition of agricultural holdings. The original
agricultural land, once acquired by the State, stands completely
extinguished, and the allottee's entitlement arises only by virtue of a
subsequent statutory or policy-based grant. The allotment of such an
alternate plot, therefore, does not revive or perpetuate the nature of the
erstwhile agricultural holding. It constitutes a fresh grant, made by the
State in lieu of compensation, carrying with it a new and distinct title,
unconnected with the ancestral or agricultural character of the acquired
land.
81.Accordingly, on a parity of reasoning with the principle elucidated by
Hon'ble Delhi High Court in judgment Birbal Saini v. Smt.
Satywati(supra), the allotment of an alternate plot must be regarded as an
independent statutory creation of ownership, and not a continuation of the
original title, that stood extinguished upon acquisition.
82.Hence, in the context of the present dispute, even assuming that the
Plaintiff's predecessors held ancestral agricultural land prior to its
acquisition, the alternate plot allotted by the DDA under the 1961
Entitlement Scheme was conferred in the name of Late Sh. Jaishi Ram in
his individual capacity as the recorded bhumidhar and verified applicant.
The allotment did not ensure to the benefit of the entire family nor
continue any existing coparcenary, since the right itself arose from the
administrative act of the Land & Building Department and not by descent.
The property thus partakes the character of self-acquired property in the
hands of Late Sh. Jaishi Ram.
83.It is settled that the moment agricultural land is acquired by the State
under the Land Acquisition Act, 1894 or the Delhi Land Reforms Act ,
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1954, the rights of the original bhumidhar or proprietor are completely
extinguished, and the land vests absolutely in the Government, free from
all encumbrances. What the erstwhile landholder receives thereafter,
whether in the form of monetary compensation or an alternate residential
plot under the Entitlement Scheme, 1961 is not a continuation of his old
title but a new right created by statute or policy. Such a right is a product
of state action, not of inheritance or survivorship, and therefore falls
outside the purview of Mitakshara coparcenary principles.
84.In Commissioner of Wealth Tax v. Chander Sen , (1986) 3 SCC 567, and
later in Yudhishter v. Ashok Kumar , (1987) 1 SCC 204, the Hon'ble
Supreme Court categorically held that property which devolves or accrues
by virtue of a statutory right or independent grant cannot be regarded as
ancestral or HUF property in the hands of the recipient. Applying the
same reasoning to the present case, once the agricultural land of Late Sh.
Jaishi Ram was acquired by the Government, his status as bhumidhar
ceased, and the alternate plot subsequently allotted by the DDA in his sole
name became his exclusive and self-acquired property.
85.Accordingly, even though the Plaintiff may have been born prior to the
enactment of the Delhi Land Reforms Act, 1954 , and may claim lineage
through ancestral agricultural holdings, such rights do not extend to the
property presently in question, which originated not by descent but by
fresh statutory allotment. The Mitakshara School of law therefore has no
application to this property, and the same must be treated as self-acquired
property of Late Sh. Jaishi Ram.
86.In view of aforesaid discussions, the Plaintiff cannot claim that the suit
property is ancestral or coparcenary under Mitakshara law, as the original
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agricultural right stood extinguished upon acquisition, and the alternate
allotment represents a new, independent title. Hence, in view of above
discussions, I am of the considered opinion that the plaintiff has failed to
prove that the suit property i.e. plot no.1, Sector-10, Dwarka, New Delhi
is ancestral or coparcenary property and it is held that suit property was a
self acquired property in the hands of Late Sh. Jaishi Ram. This issue is
accordingly decided against the Plaintiff and in favour of the Defendants.
ISSUE NO.6
(vi) Whether the deceased father of the plaintiff was
empowered to sell the suit property being ancestral
property? OPP
87. this court while deciding the issue no.5 has held that the suit property
was not an ancestral property in the hands of Late Sh. Jaishi Ram. In view
of findings on issue no.5, Sh. Jaishi Ram being the owner of the self
acquired property was having right to dispose off the same as per his wish,
either by way of sale or testamentary succession. This issue is accordingly
decided against the plaintiff and in favour of the defendant.
ISSUE NO.7
(vii) Whether the suit property is allotted to the deceased
by DDA in lieu of acquisition of ancestral property? OPP
88. It is an admitted case of parties that the suit property was allotted to Sh.
Jaishi Ram in lieu of acquired land under the scheme "Large Scale
Acquisition, Development and Disposal of Land in Delhi - Entitlement
Scheme, 1961. The allotment of the suit property by DDA is proved by
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the document Ex. PW6/2. The allotment of the suit property to Late Sh.
Jaishi Ram is also corroborated by defendant no.7/DDA in its written
statement. The defendants have also not disputed the fact of the allotment
of the suit property as alternative plot by the defendant no.7/DDA in terms
of "Large Scale Acquisition, Development and Disposal of Land in Delhi
- Entitlement Scheme, 1961 policy. In view of admissions of the parties,
this issue is accordingly decided in favour of the plaintiff.
ISSUE NO.8
(viii) Whether the plaintiff is entitled to 1/5th share in the
suit property? OPP
89.This court while deciding the issue no.5(supra), has held that the suit
property was not an ancestral property and it is the self acquired property
of deceased late Sh. Jaishi Ram, being allotted as alternative plot under
the scheme "Large Scale Acquisition, Development and Disposal of Land
in Delhi - Entitlement Scheme, 1961. It is an admitted fact that late Sh.
Jaishi Ram had executed the Will dated 17.05.1996 in favour of defendant
no.4 Sh. Satish Kumar during his lifetime. The suit for probate of Will
dated 17.05.1996 is also stated to have been decreed in favour of
defendant no.4. Late Sh. Jaishi Ram had full authority to dispose off the
suit property in any manner he like, as per law. Therefore, the plaintiff is
having no right to seek partition in the self acquired property of Late Sh.
Jaishi Ram as the same has already been disposed off by testamentary
succession/sale during his lifetime. This issue is accordingly decided
against the plaintiff and in favour of defendant.
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ISSUE NO.9
(ix) Whether the defendants have no right, title and interest
in the plot bearing no.1, Sector-10, Dwarka, New Delhi?
OPD
90. The onus to prove this issue was upon the defendants. It has been proved
while deciding the issue no.5 that the suit property was self acquired
property of Sh. Jaishi Ram. Late Sh. Jaishi Ram was having authority to
dispose off the suit property in any manner, he like, as per law. The suit
property is admittedly disposed off by way of testamentary
succession/execution of the Will dated 17.05.1996 by Late Sh. Jaishi Ram
in favour of defendant no.4 Sh. Satish Kumar . Therefore the right, title or
intest of defendant no.4 Sh. Satish Kumar has been created by Late Sh.
Jaishi Ram in the suit property by execution of the registered Will dated
17.05.1996 Ex. PW1/2, against which a probate has been granted in his
favour by the competent court of law in favour of the defendant no.4. It is
not out of place to mention that the plaintiff has also filed objections in the
said suit and he had also filed an Appeal before the Hon'ble High Court of
Delhi which was dismissed. Therefore it is held that the defendant no.4
Sh. Satish Kumar has right, title or interest in the suit property i.e. plot
no.1, Sector-10, Dwarka, New Delhi by virtue of registered will dated
17.05.1996 Ex. PW1/2. This issue is accordingly decided in favour of the
defendants and against the plaintiff.
ISSUE NO.10
(x) Whether suit of the plaintiff is not maintainable in view
of the facts mentioned in para no.9 of the written statement
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filed by defendant nos.1, 3 to 5? OPD
91. The defendants no.1, 3 and 5 in para 9 of their written statement have
stated that the deceased Sh. Jaishi Ram was an Ex Army personnel and
after retirement he joined the services in Central Ordinance Depot and till
his death he was getting two persons. That the plaintiff had no cordial
relations with his father and other brothers and nephews. That during the
lifetime of his father the plaintiff had also filed an application regarding
the compensation in lieu of acquired agriculture land declaring his father
as mad but the court after examining the father of the plaintiff found the
allegations of the plaintiff as false, frivolous and baseless. That the
plaintiff also forged and manipulated a Will alleged to be executed by
Late Sh. Jaishi Ram and also produced a death certificate of his father
containing wrong date of his death. It is stated that the plaintiff has also
forged, drafted and manipulated various documents in relation to the
property left behind by Late Sh. Jasrath, brother of Late Sh. Jaishi Ram.
That the defendants no.2 and 6 are in collusion with the plaintiff and
mastermind for filing the present suit is defendant no.6. Hence, the present
suit is not maintainable and liable to be dismissed.
92. The perusal of the record reveals that the defendants no.1, 3 and 5 in para
9 of their written statement have disclosed about various false and
fabricated documents stated to be procured by the plaintiff and that there
were no cordial relations of the plaintiff with his father late Sh. Jaishi
Ram. Therefore, it is prayed that in view of objections raised in para 9 of
the written statement, the present suit is not maintainable.
93. The defendants have sought dismissal of the suit on the ground that the
plaintiff has not approached the court with clean hands and has levelled
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false and frivolous allegations and provided forged and manipulated
documents in respect of various properties. It is also stated that there were
no cordial relations between the plaintiff and his father Late Sh. Jaishi
Ram. The defendants have examined DW1 Sh. Pradeep Sehrawat in
support of their submissions. DW1 has produced on record various
complaints lodged by the plaintiff against the allotment of the suit
property in the name of Late Sh. Jaishi Ram. The documents placed on
record by the defendants and various complaints lodged by the plaintiff
and suit for permanent injunction filed by the plaintiff against Late Sh.
Jaishi Ram clearly establish that the relation between the plaintiff and
deceased were not cordial in nature. However, it is not out of place to
mention that the existence of strained relations between the plaintiff and
Late Sh. Jaishi Ram is not itself a ground for dismissal of the suit filed by
the plaintiff. The defendants were required to prove the concealment of
material facts or forgery of the documents against the plaintiff. However,
the defendants have failed to prove on record any concealment of material
facts or forgery of documents. Therefore, this issue is decided against the
defendants and in favour of the plaintiff.
ISSUE NO.11
(xi) Whether the plaintiff is entitled to recovery of possession and
partition in respect of the 1/5th share of the said plot? OPP
94. In view of detailed findings on issue no.5 and 8, the plaintiff is not
entitled for recovery of possession and partition in repsect of the 1/5th
share in the suit property. This issue is accordingly decided against the
plaintiff and in favour of defendants.
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ISSUE NO.12
(xii) Reliefs.
95. In view of aforesaid discussions and findings on issues the plaintiff is not
entitled for any relief. The suit filed by the plaintiff for the relief of
declaration and partition in respect of suit property i.e. plot no.1,
Sector-10, Dwarka, New Delhi is dismissed. Parties shall bear their own
costs. Decree sheet be prepared accordingly.
96. File be sent back to the concerned court at South West District, Dwarka
Courts and be consigned to record room on completion of necessary
formalities through the concerned Ahlmad.
Announced in the open court (DEVENDER KUMAR JANGALA)
on this 7th Day of November 2025 District Judge(Commercial Court)-01
North West, Rohini Courts, Delhi
Digitally signed
by DEVENDER
DEVENDER KUMAR
KUMAR JANGALA
JANGALA Date:
2025.11.07
22:20:02 +0530
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