IN THE COURT OF ADDITIONAL DISTRICT JUDGE,

SOUTH EAST DISTRICT, SAKET COURTS, NEW

DELHI

CSDJ NO. OF 2019

IN THE MATTER OF:

...Plaintiff

VERSUS

...Defendants

INDEX
S.No. Particulars Page no.
1. Suit for Declaration, Partition and
Injunction alognwith suppording
Affidavit
2.

NEW DELHI

DATE:
 IN THE COURT OF ADDITIONAL DISTRICT JUDGE,
SOUTH EAST DISTRICT, SAKET COURTS, NEW
DELHI

CSDJ NO. OF 2019

IN THE MATTER OF:

...Plaintiff

VERSUS

...Defendants

MEMO OF PARTIES

2. Mr. Niranjan Bathija

S/o. late Sh. Thakar Das Bathija,

R/o. M-46, Second Floor,

Lajpat Nagar-II,

New Delhi-110024

3. Mrs. Janki Dulari

W/o. late Sh. Thakar Das Bathija

R/o. M-46, Ground Floor,

Lajpat Nagar-II,

New Delhi-110024

4. Land and Development Office,

Nirman Bhavan,

New Delhi

5. South Delhi Municipal Corporation,

MC Primary School, Sanwal Nagar,

New Delhi-110049

through Assistant Assessor & Collector,

Central Zone. ......Defendants

DATE:__.07.2019
DELHI
 IN THE COURT OF ADDITIONAL DISTRICT JUDGE,
SOUTH EAST DISTRICT, SAKET COURTS, NEW
DELHI

CSDJ NO. OF 2019

IN THE MATTER OF:

...Plaintiff

VERSUS

...Defendants

SUIT FOR DECLARATION, PARTITION AND

INJUNCTION

MOST RESPECTFULLY SHOWETH:

1. That the Suit is filed for the partition of property

bearing No. M-46, Lajpat Nagar-II, New Delhi-
110024 admeasuring 300 sq. yards (hereinafter
referred to as 'suit property') alongwith the decree
for declaration and injunction.

2. That the Plaintiff no. 1 alongwith Defendant No. 1,

2 and 3 are senior citizens and are jointly holding
lease rights of the suit properties in the records of
Defendant No. 4, upon the death of Late Shri Hasa
Nand ("deceased/ testator").

3. That the suit property bearing property No/ M-46,

Lajpat Nagar-II, New Delhi-110024, admeasuring
300 Sq. Yds., was originally granted to Shri Nanik
Ram s/o Shri Prem Chand by the President of India
through the concerned department vide lease deed
dated 23.01.1961 registered with the Sub-
Registrar, New Delhi, as document no. 788, in addl.
book no. 1, vol. 620 on page 155-157, dt. 1-2-1961.
4. Thereafter the sale deed dated 27.12.1971 was
executed between Shri Nanik Ram s/o Shri Prem
Chand and Shri Hasa Nand S/o Sh. Moti Ram,
which was duly registered with Sub- Registrar New
Delhi as no. 829, in addl. book no. 1, Vol. no. 2793
on pages 77 to 81 dated 30.12.1971. By virtue of
the said registered sale deed in favour of Shri Hasa
Nand, the suit property was sold by Shri Nanik Ram
to Shri Hasa Nand with all rights of ownership,
possession, leasehold and other rights pertaining to
the suit property, with all the structural standing
thereon, with all fittings, connections, etc. free of
encumbrances for a consideration of Rs.45,000/-.
That the Plaintiff was the sole bread earner of the
family and the Father of Plaintiff Sh. Thakur Das
Bathija and his grandfather were dependent upon
the earnings of Plaintiff. That there was no
financial contribution from the brother of the
Plaintiff i.e. Defendant no. 2 as he was studying in
school then. That the entire consideration of Rs.
45,000/- paid towards purchase of the suit
property was taken by late Sh. Hasa Nand from
Plaintiff.

5. That the family of uncle of Plaintiff i.e. Sh. Tirath

Bathija alongwith his wife i.e. Defendant no. 1 used
to reside in 398, Vinobha Puri, Lajpat Nagar-II, New
Delhi in the year 1979-1989 which was the last
known address to the plaintiff. That they migrated
to Afghanistan in 1990. That the respondent no.2
and her husband did not reside in the suit property
and therefore had no financial contribution towards
the purchase of the suit property neither towards
the household expenses of the family.

6. That a new building was constructed upon the 200

Sq. Yds. of the suit property in the year 1985 by the
funds provided by the Plaintiff to his father. That
 there remained a kaccha construction of tin
barracks on the remaining 100 Sq. Yds. of the suit
property.

7. That in the year 1993, the kaccha construction of

barrack which was on 100 sq. yards of the suit
property came down due to rain as a result it was
completely demolished. The debris was removed
by the officials of MCD upon complaint made by the
plaintiff. Shri Hasa Nand who was until then
residing in the said kaccha construction of barrack
was shifted to the ground floor of the said building
in 200 sq. yards alongwith father of plaintiff.

8. In the year 1996 Shri Hasa Nand expired leaving

behind a Will dated 26.2.1991 which was registered
as Serial no. 1936, Book no. III, Volume no. 601 on
pages 5 to 8 on 26.04.1991, with effect to bequeath
part of suit property in favor of Plaintiff, Defendant
no. 2 and Defendant no. 3, in the following manner.
The relevant extract of the said Will of late Shri
Hasa Nand is stated herein below:

"I hereby bequeath the remaining portion of the plot

measuring 200 sq. yds. (30' x 60'), which portion has
been constructed by my elder son Shri Thaker Das
Bathija in 1985, to be held and enjoyed jointly and
collectively and in equal shares for the purposes of
leasehold rights to the following persons:

i) My grandson Shri Rajesh Bathija, S/o Shri

Thaker Das Bathija.

ii) My grandson Shri Hiranjan Bathija, S/o Shri

Thaker Das Bathija.

iii) My daughter-in-law Mrs. Janak Dulari, W/o

Shri Thaker Das Bathija."
"Smt. Janak Dulari, W/o Shri Thaker Das shall be
the absolute and full owner of the superstructures,
constructions and all other fittings and fixtures and
connections and amenities apurtenant thereof on the
ground floor of the said house raised and
constructed on the said remaining portion of 200 sq.
yds by Shri Thakar Das in 1985. She will have full
and absolute powers of disposal of the same and
shall own and enjoy the said portion of the house
exclusively.
Similarly my grandson shri Rajesh Bathija, S/o Shri
Thaker Das will be the sole and absolute owner of
the superstructures and constructions that exist
today or that may be constructed hereafter with his
own resources on the first floor of the said house
no.II-M/46, Lajpat Nagar, New Delhi, and he will
hold and enjoy the same absolutely and forever and
will have the full and absolute powers of disposal of
the same.
Likewise my other grandson Shri Niranjan Bathija,
S/o Shri Thaker Das will be the owner of the second
floor of the said house no. II-M/46, Lajpat Nagar,
New Delhi, along with the superstructure that may
be exists today or that may be constructed hereafter
with his own resources and he will hold and enjoy
the same exclusively and forever with full powers of
disposal of the same.
The Barsati floor of the said property no.II-M/46,
Lajpat Nagar, New Delhi will be owned and occupied
by all the three above named persons i.e. my
grandson Shri Rajesh Bathija, my second grandson
Shri Niranjan Bathija and my daughter-in-law Smt.
Janak Dulari, jointly and collectively and the power
of disposal of the same shall vest collectively and
jointly in all of them."
9. That Sh. Hasa Nand also bequeath part of suit
property in favor of Defendant no. 1.

"I hereby leave, give, demise and bequeath

absolutely and forever to Mrs. Raj Kumari wife of my
younger son Shri Tirath Das Bathija, out of the said
house a portion of the house constructed on 100 sq.
yards (measuring 15' x 60') adjoining the house no.II-
M/47, together with leave hold rights,
superstructures, constructions and all other fittings
and fixtures and connections and amenities
appurtenant thereto in the said portion to be held
and enjoyed by her with full and absolute powers of
disposal."

10. That the wife of late Shri Hasa Nand namely Smt.
Radha pre-deceased him in Pakistan in year 1940.
That Shri Hasa Nand expired on 17.06.1996 leaving
behind the following class 1 legal heirs, as per
Hindu Succession Act:-

S.No. Name Relationship

with deceased
1. Shri Thakar Das Bathija Son
2. Shri Tirath Das Bathija Son
3. Smt. Janki Sundari Married
daughter

11. That the 100 sq. yard area towards house no.M-47,
Lajpat Nagar-II, New Delhi remained vacant plot
ever since the demolition of the kaccha barrack in
1993 and therefore there existed no structure upon
the death of late Shri Hasa Nand to be bequeathed
in favour of respondent no.1.
12. That respondent no.1 and her husband visited the
suit property in the year 2002. That respondent
no.1 and 2 were having sufficient funds to develop
the vacant 100 sq. yards of the suit property. It was
orally agreed between plaintiff, respondent no.1, 2
and 3 in the presence of above mentioned legal
heirs that the name of deceased late Shri Hasa
Nand shall be substituted jointly in favour of
plaintiff, respondent no.1, 2 and 3 in the books of
defendant no.4 with respect to the suit property. It
was further agreed between plaintiff, respondent
no.1, 2 and 3 that they shall be entitled to equal
share in the suit property to the extent of 1/4th
share of the suit property each. Thus, the name of
plaintiff, respondent no.1, 2 and 3 was substituted
vide Memorandum dated 30.06.2016 in the books
of defendant no.4.
13. That plaintiff no.1, respondent no.1, 2 and 3, Shri
Thakar Das Bathija, Shri Tirath Das Bathija and
Smt. Janki Sundari executed their respective
affidavits dated 16.05.2002 in order to give effect to
the oral joint settlement.

14. That till date Plaintiff, Defendant No. 2, Defendant

No. 3 and Shri Thakar Das Bathija since the demise
of the deceased, Shri Hasa Nand, exclusively and
absolutely enjoyed the possession of the 200 sq
yard plot of the suit property and the remaining 100
sq. yards of the suit property as remained vacant.

15. That in the month of December, 2018, respondent

no.1 visited the suit property and had agreed with
plaintiff, respondent no.2 and 3 to get the suit
property freehold in order to reconstruct the entire
building over 300 sq. yards of the suit property.
That the existing super-structure on 200 sq yards
of the suit property in which Plaintiff along with
Defendant No. 2 and 3 are residing is constructed
 out of the funds of plaintiff is in a deteriorated
condition and needs to be rebuilt for inhabitable
and requires immediate reconstruction. Further,
the families of Plaintiff and Defendant No. 2 have
further extended to generations and it is difficult for
all of them to co-habit together in the existing
house. Further, defendant no.1 has no money to
spend for construction of the building over the suit
property plot and has therefore sought cooperation
of plaintiff, respondent no.2 and 3 to find a builder
who will take over the construction of the new
building over the suit property. It was orally agreed
between plaintiff, Defendant No. 1, 2 and 3 that a
new building will be rebuilt over the entire 300 sq.
yards of the suit property after demolition of the
existing building after converting the suit property
into freehold.

16. In order to implement the oral settlement the

plaintiff approached builders for construction of
new building over the suit property under a
collaboration agreement. But the plaintiff is not
able to contact the respondent no.1 in order to
implement the arrangement agreed with the builder
for the purpose of construction of new building over
the suit property in a collaboration agreement being
joint holder of lease hold rights in the suit property
in the records of defendant no.4.
17. Further the suit property has to be converted from
lease hold to freehold in order to enter any
collaboration agreement with any builder for
carrying out any new construction over the suit
property. But as the respondent no.1 is not
approachable and absent ever since December,
2018 therefore the oral settlement is not being
implemented till date. That plaintiff alongwith
defendant no. 2 and 3 had orally agreed to
 construct the new building over the suit property
on the following terms:
FOR THE PURPOSE OF FREEHOLD OF THE SUIT
PROPERTY
a) In case the Hon'ble Court directs respondent no.4
for bifurcation of the suit property by granting
freehold for 200 sq. yards of the suit property. Then
the conveyance deed be executed jointly in favour
of Plaintiff, respondent nos. 2 and 3, upon deposit
of the requisite fees for conversion of freehold of 200
sq. yards of the suit property.
b) Otherwise in case the Hon'ble Court directs
respondent no.4 to grant freehold of the entire suit
property of 300 sq. yards then the conveyance deed
may be executed jointly in favour of plaintiff,
respondent no.1, 2 and 3.

FOR THE PURPSOE OF SANCTION OF NEW BUILDING

PLAN OF THE SUIT PROPERTY

a) In case the Hon'ble Court directs respondent no.5

to grant sanction plan for construction of new
building on 200 sq. yards of the suit property then
the plaintiff, respondent no.2 and 3 shall jointly
contribute for construction of new building upon
200 sq. yards of the suit property.
b) Otherwise in case the Hon'ble Court directs
respondent no.5 to grant sanction plan for
construction of new building on 300 sq. yards then
the plaintiff, respondent no.2 and 3 shall enter into
a collaboration agreement with a builder for
construction of 300 sq. yards of the suit property
upon reserving 25% share of respondent no.2 in the
suit property.

FOR THE PURPOSE OF CONSTRUCTION OF NEW

BUILDING ON THE SUIT PROPERTY
 a) In case the conveyance deed of 200 sq. yards
separately executed jointly in favour of plaintiff,
respondent no.2 and 3 then they shall jointly
contribute for construction of new building upon
the suit property.
b) Otherwise in case the conveyance deed of entire
300 sq. yards is executed jointly in favour of
plaintiff, respondent no.1, 2 and 3. Then plaintiff,
respondent no.2 and 3 shall enter into
collaboration agreement with a builder for
construction of new building of the suit property
and shall preserve 25% share of respondent no.1 in
the said suit property.
c) In case respondent no.2 decides to sell out her
share to the extent of 25% in the suit property then
the plaintiff shall exercise his right under Section
22 of Hindu Succession Act.

18. That the Plaintiff reserves his right under section

22 of Hindu Succession Act to buy back/ purchase
the 100 sq yards of the suit property, forming part
of the share of Defendant No.1, in case she objects
to partition of the suit property by metes and bound
or intends to sell her share in the open market. That
Plaintiff further seeks liberty to amend the plaint
accordingly.

19. In light of the above mentioned facts, the Plaintiffs

and Defendant No. 2 & 3 are entitled to seek
partition of the suit property in terms of the will
dated 26.04.1991, by metes and bound. Further,
the Plaintiffs and Defendant No. 2 & 3 are entitled
to seek declaration that they are joint owner-in-
possession to the extent of 200 sq yards of the suit
property till final partition is affected.
20. That the Plaintiff further seeks entitlement of
separate conveyance deed, sanction plan, house tax
for 100 sq yards and 200 sq yards of the suit
property.

21. That the cause of action arose upon the demise of

late Shri Hasa Nand on 26.04.1991. That the cause
of action again arose when Plaintiff, Defendant no.
2 and Defendant No. 3 unanimously agreed to
demolish the existing superstructure and re-built
the new residential super-structure on 200 sq.
yards of the suit property after converting the suit
property freehold, in the records of Defendant No.
4. That Defendant No.1 and Defendant No.4 have
failed to convert into freehold and bifurcate the suit
property as per the terms of the said will, being 200
sq yds and 100 sq yards each. That cause of action
continues till date.

22. That the value of suit property is assessed at

Rs.50.00 lakhs and this Hon'ble Court has
jurisdiction territorial and pecuniary jurisdiction of
the suit property as the cause of action and the suit
property are within the jurisdiction of this Hon'ble
Court.

23. The relief of partition is valued for the purpose of

jurisdiction at Rs.30.00 lakhs and as the plaintiff
are in possession of their share in the suit property
a fixed court fee of Rs.10/- has been paid as per
Schedule II, Article XVII (vi) of Court Fee Act for the
prayer of partition i.e. prayer a). That the relief for
declaration is valued for the purpose of jurisdiction
and court fee at Rs.200/-, on which court fee of Rs.
20/- for each prayer of declaration i.e. prayer b),
has been paid. That relief of injunction is valued for
the purpose of jurisdiction and for the purpose of
court fees at Rs.130/- on which a court of Rs. 13/-
 for each prayer of injunction i.e. prayer c) has been
paid. The Plaintiffs undertakes to pay further court
fee as per directions of this Hon'ble Court on
amount valued and payable. The cumulative court
fee of Rs. 100/- is deposited.
24. That the present suit is filed within limitation and
the Plaintiff has filed no other similar suit before
any other court of law.

PRAYER

It is therefore most humbly prayed before this

Hon'ble Court, may be pleased to:

a) Pass a preliminary decree for Partition of the

suit property bearing No. M-46, Lajpat Nagar-

II, New Delhi-110024 admeasuring 300 sq.

yards in favor of Plaintiff, Defendant No. 2 and

3 being 2/3 share, i.e. 200 sq yards , holder

collectively and thereafter final decree of

partition be passed;

b) Pass a decree of declaration to the effect that

Plaintiff and Defendant No. 2 and 3 are co-

owners in possession of 2/3 share, i.e. 200 sq

yards, collectively of the suit property M-46,

Lajpat Nagar-II, New Delhi-110024

admeasuring 300 sq. yards;

c) Pass a decree of mandatory injunction

directing Defendant No. 1, Defendant No. 2

and Defendant No. 3 to deposit their share of

requisite fee/ payment, as per the demand

 raised by Defendant No. 4, for conversion of

the suit property into freehold.

d) Pass a decree of mandatory injunction

directing Defendant No. 4 to freehold 300 sq

yd. of the suit property, M-46, Lajpat Nagar-

II, New Delhi-110024 to the extent of the joint

share of the Plaintiff and Defendant No. 2 and

3 in the suit property, upon deposit of the

requisite fee for freehold by Plaintiff,

Defendant No. 1, Defendant No. 2 and

Defendant No. 3, as per their respective share

in the suit property.

e) Pass a decree of mandatory injunction

directing Defendant No. 4 to issue two

separate conveyance deed bifurcating the 200

sq yards of the suit property in favour of

Plaintiff, Defendant No. 2 and Defendant No.

3 (jointly) and 100 sq yards of the suit

property in favour of Defendant No.1.

f) Pass a decree of mandatory injunction

directing Defendant No. 5 to approve separate

sanction plans and house tax for 100 sq yards

of the suit property and 200 sq yards of the

suit property.

g) Alternatively, pass a decree of mandatory

injunction directing the Defendant No. 1 to

sell 100 sq yards of the suit property M-46,

 Lajpat Nagar-II, New Delhi-110024 to

Plaintiff, as per the prevalent market rate,

under Section 22 of Hindu Succession Act.

h) Award cost of litigation in favor of the

Plaintiffs.

i) Pass such other or further order(s) as this

Hon'ble Court may deem fit in the facts and

circumstances of the case and in the interest

of justice.
 AND FOR THIS ACT OF KINDNESS THE
PLAINTIFFS SHALL IN DUTY BOUND EVER
PRAY.

PLAINTIFF

Through

DATE:
NEW DELHI

Verification:
Verified at Delhi on this __ day of July, 2019 that
the contents of Para 1 to __ of the Plaint are true
and correct to the best of my knowledge and belief
and the contents of para __-__ of the Plaint are
believed to be true as per legal advice received. That
last para is the prayer to this Hon'ble Court. That
no part of the above Plaint is false and nothing
material has been concealed therefrom.

PLAINTIFF
IN THE COURT OF ADDITIONAL DISTRICT JUDGE,
SOUTH EAST DISTRICT, SAKET COURTS, NEW
DELHI

CSDJ NO. OF 2019

IN THE MATTER OF:

...Plaintiff

VERSUS

...Defendants

AFFIDAVIT

I, , do hereby solemnly affirm and declare as under :-

1. That I am Plaintiff in the above noted matter and

am well conversant with the facts of the case and
competent to swear this affidavit.

2. That the accompanying suit has been drafted by my

counsel under my instructions and the contents of
the same are true and correct to the best of my
knowledge and belief. That no part of the suit is
false and nothing material has been concealed
therefrom.

Deponent
Verification:
Verified at New Delhi on this__ day of July, 2019 that
the contents of my above affidavit are true and correct
to my knowledge. No part of it is false and nothing
material has been concealed therefrom.

Deponent