* HIGH COURT OF DELHI: NEW DELHI Judgment pronounced on: 13.12.2011 + CS(OS) No.1848/2009 VIKRAM KAUSHIK and ANR ..... Plaintiffs Through Mr. Sanjay Jain, Sr. Adv. with Mr. Arjun Mitra, Ms. Ruchi Jain and Ms. Sunanda, Advs. versus VIVEK KAUSHIK ..... Defendant Through Mr. Hemant Budakoti, Adv. with Mr. Joydeep, Adv. CORAM: HON'BLE MR. JUSTICE MANMOHAN SINGH MANMOHAN SINGH, J..

1. By this common order, I propose to decide the following applications filed by the parties: (i) I.A. No.3742/2010 filed by the defendant, under Order XI, Rules 12 and 14 read with Section 151 CPC, (ii) I.A. No.16735/2010 filed by the plaintiffs, under Section 151 CPC, (iii) I.A. No.4327/2011 filed by plaintiffs, under Order VII, Rule 14 read with Section 151 CPC, and (iv) I.A. No.8387/2011 filed by plaintiffs, under Order XVIII, Rule 1 read with Section 151 CPC. CS(OS) No.1848/2009 Page No.1 of 11.

2. The brief facts of the case are that the plaintiffs have instituted the instant suit for partition and mandatory and permanent injunction against the defendant in respect of immoveable properties indentified as property No.L-19, Lajpat Nagar-III, Delhi-110024; Flat No.1402, Marathon Galaxy-1, L.B.S. Marg, Mulund Mumbai; and agricultural land in two parts comprising about 10 acres each in the village and Post Office Shedawan, Distt. Bulandshahar, Uttar Pradesh (hereinafter referred to as the suit property). The plaintiffs and the defendant are the legal heirs of Shri Hem Chandra Kaushik, (hereinafter referred to as the deceased) who died intestate on 10.08.2008 leaving behind his two sons and a daughter..

3. It is averred in the plaint that all the suit properties which devolved upon the parties are ancestral properties and therefore, they are amenable to partition by metes and bounds. It is stated that the defendant along with the deceased used to reside at the Lajpat Nagar property and after his death the defendant misappropriated the property papers with respect to the agricultural land and the details of bank accounts of the deceased. It is also stated that even after various requests from the plaintiffs to partition the suit properties and disclose the details of amounts lying in the bank accounts of the deceased, the defendant has failed to do so. Therefore, the plaintiffs filed the present suit for partition and injunction on 19.09.2009..

4. In the written statement filed on behalf of the defendant, it is stated that the present suit is in breach of Order VII, Rule 11 of CPC as the plaintiffs have failed to produce any documents on which they are relying or on which their claims are based. CS(OS) No.1848/2009 Page No.2 of 11.

5. During the pendency of the suit, the parties have filed these four applications, the details of which are mentioned in para No.1 of this order..

6. I shall now take up the said applications which are pending for disposal. I.A. No.3742/2010.

7. In this application, the defendant has stated that after the death of the deceased, plaintiff No.1 illegally transferred a sum of Rs.15,00,000/- from the account of the deceased bearing No.20070100006293 maintained with Veera Nagar Branch of Bank of Baroda in the name of his wife Mrs. Vandana Sharma. Therefore, it is necessary that the plaintiffs be directed to show the document showing the basis of transfer of above-mentioned amount of Rs.15,00,000/- as well as the statement of A/c No.20070100006293 and the details of the funds received by the plaintiff Nos.1 and 2 from the deceased since the year 2000 till date and also the documents/details of the properties purchased in the name of Plaintiff No.1 or his wife or the plaintiff No.2 from the funds of the deceased withdrawn from A/c No.20070100006293..

8. Mr. Jain, learned Senior counsel appearing on behalf of the plaintiffs, after some hearing, submits that the plaintiffs, without prejudice to their rights and contentions on merits, are prepared to provide the details and the documents as sought in the application. Let the same be filed along with an affidavit except the details already provided in the affidavit dated 04.05.2010, within four weeks from today. The application is accordingly disposed of. CS(OS) No.1848/2009 Page No.3 of 11 I.A. No.16735/2010.

9. In this application, it is stated by the plaintiffs that the second floor of the Lajpat Nagar property is lying vacant, and the agricultural property is also not fetching any income. Therefore, if the second floor of the Lajpat Nagar property is given on rent and the agricultural suit property is also given on contract, the income that would be so derived can be accrued to the common benefit of the parties. However, this is not agreeable to the defendant who has stated in the reply to this application that the second floor of the Lajpat Nagar property is being used by him and that he is also making efforts to put the agricultural property to some commercially viable use..

10. In order to verify the position, vide order dated 05.04.2011 passed in I.A. No.16735/2010, a Local Commissioner was appointed to visit the suit premises situated at L-19, Lajpat Nagar-III, Delhi-2 and to report about the site with regard to position of basement and the second floor of the suit property. The Local Commissioner has filed his report along with the photographs. As far as the basement of the suit property is concerned, it was mentioned in the report that some old books, wooden cupboard, bookshelf and some furniture were lying there. However, a large part of the hall at basement was lying vacant. On the second floor, a T.V. set, sofa set, armchair, small table and some other articles were lying. However, it was clarified that the Local Commissioner did not find a bed in any of the rooms nor in the kitchen any cooking appliances or utensils were found. In the bathroom also, there were no soaps, cosmetics etc. CS(OS) No.1848/2009 Page No.4 of 11.

11. The learned counsel for the defendant has also denied the contentions raised by the plaintiffs in the application..

12. Without going into the merits of the contentions of the parties, I am of the view that at this stage, since the matter is ripe for evidence, it would be appropriate to expedite the trial of the suit. Therefore, a separate order is passed in this regard by appointing a Local Commissioner to record the evidence of the parties as per the schedule fixed by the Court. This application is accordingly disposed of. I.A. No.4327/2011.

13. This third application which is also filed by the plaintiffs, under Order VII, Rule 14 read with Section 151 CPC is for filing the additional documents to disprove the case of the defendant. It is stated therein that the said documents filed on 09.12.2010 are required to be received in evidence in order to disprove the case set-up by the defendant in the written statement and to support to the stand of the plaintiffs in replication..

14. It is the admitted position that the said documents were filed before the framing of issues. The Court while exercising its discretion can allow the party to file the additional documents before framing of issues if the same are required for the purpose of deciding the real controversy between the parties. Under these circumstances, the plaintiffs' application is allowed and the documents filed by the plaintiffs vide list of documents dated 09.12.2012 are taken on record..

15. The application is disposed of. CS(OS) No.1848/2009 Page No.5 of 11 I.A. No.8387/2011.

16. This is the last application of the plaintiffs, in which the prayer is made requiring the defendant to lead evidence at the first instance and for granting liberty to the plaintiffs to lead evidence in rebuttal to the evidence which may be led by the defendant in support of issue No.2. Both the parties have made their submissions on this application..

17. The facts and circumstances of the matter are that the plaintiffs have filed the above-mentioned suit for partition and injunction. The issues were framed on 05.04.2011. The same are reproduced as under:- '1. Whether the plaintiff is entitled to partition of the suit properties bearing Nos.L-19, Lajpat Nagar-III, Delhi-24, Flat No.1402, Marathon Galazy-I, LBS Marg, Mulund, Mumbai and agricultural land in two pieces comprising of about 10 acre each in Village and Post Office Shedawan, district Bulandshahar (UP)? OPP.

2. Whether the aforesaid properties were orally partitioned during the lifetime of one Sh. H.C.Kaushik, who is the father of the parties herein? OPD.

3. Whether the suit is liable to be rejected under Order 7 Rule 11(b)/(c) CPC? OPD.

4. Whether the plaintiff is entitled to rendition of accounts from the defendant, if so, to what effect? OPD.

5. Relief.'.

18. There is no denial by any of the parties that the suit properties in respect of which partition has been claimed, belonged to late Shri H.C. Kaushik who passed away intestate and the parties to the suit are the only legal heirs of the deceased Shri H.C.Kaushik. The defence set-out by the defendant in the written statement is that the suit properties were orally CS(OS) No.1848/2009 Page No.6 of 11 partitioned by late Shri H.C.Kaushik during his lifetime. In view of this contention of the defendant, issue No.2 was framed wherein the onus of proof was put on the defendant. Onus of proof of issues No.3 and 4 is also on the defendant. Now, the question that as to whether the suit properties were orally partitioned is the main issue which is to be determined by the Court after the trial of the suit. In case issue No.2 is decided against the defendant, then the plaintiffs have to lead evidence for discharging the burden of proof of issue No.1 only..

19. In view of the above said facts, the plaintiffs have prayed that although the issues were framed in the presence of the parties, however, in view of settled law on this point, it is the defendant who has to lead evidence at the first instance. In support of his submissions, the learned Senior counsel for the plaintiffs has referred the following case laws:- (1) Raghubir Singh vs. Raghuraj Singh, VI-1995(2) Current Civil Cases, 606 (Patna), the relevant para of which reads as under:- '5. In this case, it appears that the plaintiff is claiming right in the suit for partition by way of succession on the allegation that one of the co-sharers Somaru Singh has dis-inherited the property. On the other hand, the defendants are claiming their right by virtue of deed of gift executed in favour of the wife of defendant No.1 Keshwar Singh and also by deed of gift executed in 1975 by Somaru Singh. It is settled principle that a person who seeks to displace the natural succession to the property should begin with the evidence.' CS(OS) No.1848/2009 Page No.7 of 11 (2) Ram Narain Prasad vs. Seth Sao, reported in AIR 1979 Patna 174, the relevant para No.7 of which reads as under:- '.........In the present case, the Court below directed the defendant to begin with the case for the simple reason that the defendant admitted the facts alleged by the plaintiff and the defendant also pleaded certain additional facts which compelled the Court to direct him (defendant) to begin with the case. In our opinion, the Court below was justified in exercising the discretion. We also hold that the case of the defendant does not come within the proviso to Section 115 of the Code as added by the Amendment Act. By this order, the Court has not finally disposed of the suit in favour of any party. The order simply directs the defendants to begin with the case on the basis of O.18, R.1 of the Code.......' (3) Mrs. Bama vs. Mrs. Rukiyal Bivi, reported in AIR 2004 Madras 243, the relevant para of which reads as under:- '6. As a general rule, the plaintiff has to prove his claim by positive proof, but the Court has to see whether there is a proof of claim before it need enquire to the truth or otherwise of the defence. It is open to the plaintiff to say that although he has right to begin, he may rest content with relying upon the averments made in the written statement and may say that he does not propose to adduce further evidence. If the defendant admits material allegations in the plaint, the defendant may begin. However, the plaintiff must prima facie satisfy that there are reasons to believe that particular thing is within the knowledge of the defendant. If the denial by the defendant is without substance in view of the other admitted facts, the onus lies on the defendant and he must be directed to lead the evidence first.' CS(OS) No.1848/2009 Page No.8 of 11 (4) Smt. Jagran and others vs. Smt. Basanti Bai and others, reported in 2001 AIHC1030, the relevant para No.6 of which reads as under:- '............There is no iota of doubt if the issue No.2 is answered in favour of the contesting defendants, the plaintiff's suit is bound to fail and he will not be entitled to any relief. It is well settled in law that the person who alleges that the property is the self acquired property the burden lies on him to prove the same. It is worth noting here that the plaintiff has averred that the properties belong to joint family properties, and hence, she has to prove that the joint family had such nucleus from which the property could be acquired but this assertion has been controverted and a positive plea has been taken by the contesting defendants that the property was purchased from the earnings of Jagannath. If the defendants are successful in discharging the onus the plaintiff's suit is bound to meet with failure. In this context, I may profitably refer to the decision rendered in the case of Jhadiram v. Manpyare, 1978(2) MPWN (Note) 63 wherein the plaintiff pleaded that the suit property was the property of Joint Hindu Family and liable for partition. The defendant took the plea that the partition in respect of the suit property had already taken place earlier, and hence, the plaintiff was not entitled to bring the suit for partition. The trial Court cast the onus on the plaintiff and directed him to begin. Reversing the said order the learned Judge held as under:- 'On going through the record, I find that in the present suit there are several issues the burden to prove the some of which lies on the plaintiff and some on the defendants. I also find that if the plea of the defendants that partition had already been effected and the plaintiff had got his share is proved, the plaintiff will not be entitled to any part of the relief which he seeks. Thus, the provisions of Order 18, Rule 1 of the Code of Civil Procedure are attracted.' CS(OS) No.1848/2009 Page No.9 of 11.

20. In view of the above said settled laws, I am of the view that the contention made by the plaintiffs in the present application is tenable. Therefore, as the burden of issue No.2 is upon the defendant, it is for the defendant to lead the evidence first. The application is allowed. The defendant is granted four weeks' time to adduce his evidence by way of affidavit(s)..

21. The application is disposed of. CS(OS) No.1848/2009.

22. As already mentioned, I am of the view that the evidence of the parties be recorded by the Court Commissioner. Let the defendant produce evidence by way of affidavit(s) within six weeks from today. Hence, for the purpose, Mr. Dinesh Dayal, Retired Additional District Judge is appointed as the Court Commissioner to record the evidence of the parties in the High Court premises. List the matter before the Court Commissioner on 16.02.2012 for directions. The fee of the Court Commissioner is fixed at Rs.80,000/- which shall be paid by the parties in equal proportion. The direction for additional fee if necessary would be passed by the Court depending upon the evidence produced by the parties..

23. The Dealing Assistant of the matter will produce the record of the case before the Court Commissioner on all the dates as required by him for the purpose of recording of evidence of the parties and he/she be paid diet money by the parties in equal share. The parties are also granted liberty to take the assistance of the Registry for the purpose of summoning the witness(s) of the parties, in case it is required. The parties shall not take any unnecessary adjournment(s) in the matter. The Court Commissioner CS(OS) No.1848/2009 Page No.10 of 11 will make endeavour to complete the evidence within the period of 6-9 months. A copy of this order be sent to the Local Commissioner. MANMOHAN SINGH, J. DECEMBER 13, 2011 ka CS(OS) No.1848/2009 Page No.11 of 11