IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR DECLARATION, PARTITION,

RENDITION

CS(OS) 1036/1998

Reserved on: 14th February, 2012

Decided on: 28th February, 2012

SHAHID KHALIL ……….PLAINITFF

Through: Mr. Raman Kapur, Sr. Adv. with Mr. Aviral Tiwari
and Mr. R.P. Singh, Advs.

Versus

ZAHID KHALIL & ORS. .……DEFENDANTS

Through: Mr. Rajeev Saxena and Mr. Rajat Mittal, Advs. for
D-2.
Coram:
HON’BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Plaintiff has filed this suit for declaration, partition,

rendition of accounts and permanent injunction against the
defendants.

2. Defendant nos. 1 and 2 are step brothers of plaintiff.

Disputes between the parties relate to property bearing no.
C-47 and C-48, Jangpura (B), New Delhi (hereinafter
referred to as “suit property”). As per the registered sale
deed dated 3rd March, 1964, the suit property stands in the
name of Shahid Khalil and Zahid Khalil. Shahid Khalil and
Zahid Khalil are the joint owners of the suit property by
virtue of the aforementioned sale deed. Defendant no. 3 is a
tenant in the suit property.
3. Case of the plaintiff, as set out in the plaint, is that he
along with defendant no. 1 is joint owner of the suit
property. Defendant no. 2, in order to grab the suit
property, started asserting that he was also known as
Shahid Khalil and that the suit property is jointly owned by
him and his brother, defendant no. 1. Father of the plaintiff,
under the influence of his second wife, also joined
defendants no.1 and 2 in claiming that the suit property
belonged to defendant nos. 1 and 2. In order to achieve
their this objective, defendant nos. 1 and 2 filed a Civil Suit
No. 1475/1991 in the court of Sub Judge, Delhi against
defendant no. 3. The said suit was filed by defendant no. 2
as “Shahid Khalil”. When plaintiff came to know about this
fact, he filed an application for his impleadment in the said
suit on the ground that he was the joint owner of the suit
property. However, learned Sub Judge, vide order dated
10th March, 1998, held that the suit being against the
tenant (defendant no.3) could not have been converted into
a partition suit, consequently, his application was dismissed.
In view of ill designs of defendant nos. 1 and 2, in collusion
with their father, to grab the property, plaintiff was
compelled to file the present suit seeking declaration that
he, being “Shahid Khalil”, was the joint owner of the suit
property along with defendant no.1, “Zahid Khalil”, as also
to seek partition of the suit property besides permanent
injunction against the defendants that they shall not
interfere in plaintiff’s peaceful enjoyment of the suit property
as also a decree of rendition of accounts in respect of the
rents realized from defendant no. 3.

4. Defendant nos. 1 and 2 have filed a composite written

statement; whereas defendant no. 3 has filed separate
written statement. In their written statement, defendant
nos. 1 and 2 have claimed that the plaintiff had no locus
standi to file the present suit as he was not having any right,
title or interest in the suit property and that the plaintiff had
not come to Court with clean hands. Defendant nos. 1 and 2
claim that the suit property was purchased by their maternal
grandmother, namely Smt. Musharaf Jahan Begum, in the
name of defendant nos. 1 and 2. Their maternal
grandmother used to call Hamid Khalil (defendant no. 2) as
“Shahid Khalil”. Plaintiff was never in possession of the suit
property nor did he deal with the same in any manner
whatsoever. Suit property was being maintained by
defendant no. 2 in association with defendant no. 1. It was
denied that defendant nos. 1 and 2, in conspiracy with their
father, tried to grab the suit property. It was asserted that
the property was purchased in the name of defendant nos. 1
and 2 by their maternal grandmother Smt. Musharaf Jahan
Begum. Thus, they were joint owners of the suit property.

5. Defendant no.3, in his written statement, admitted that

he was occupying the suit property as a tenant. It was
alleged that defendant no. 2 never dealt with defendant no.
3 with regard to suit property. It is only defendant no. 1,
who had been approaching the defendant no. 3 for collecting
the rent. It was stated that in the civil suit defendant no. 1
did not disclose that defendant no. 2 was also known as
“Shahid Khalil”. As per defendant no. 3, after the disposal of
application of the plaintiff, he had filed Civil Revision Petition
in the High Court, which was pending.

6. Plaintiff has filed replication(s) to the written

statement(s) wherein he denied the allegations in the
written statement. It was denied that defendant no. 2 was
also known as Shahid Khalil. It was reiterated that the
plaintiff and defendant no. 1 were joint owners of the suit
property, in terms of the sale deed.

7. Subsequently, defendant no. 3 stopped appearing and

was proceeded against ex-parte vide order dated 7th March,
2005.
8. Vide order dated 9th November, 2012, following agreed
issues were taken on record:-
1. Whether the Suit as framed is not maintainable? OPD

2. Whether the Plaintiff has no locus standi to file the

present suit? OPD

3. Whether the plaintiff has any right, title, interest or

claim in the suit property? OPP

4. Whether the plaintiff is entitled for a declaration as

owner of 50% the suit property? OPP

5. Whether the plaintiff has any prima facie case in his

favour? OPP

6. Relief, if any.

9. Plaintiff has examined himself as PW1. Defendant nos.

1 and 2 have examined themselves as DW1 and DW2
respectively. They have also examined their father, Mohd.
Khalilur Rehman, as DW3. I have heard the learned senior
counsel for the plaintiff, counsel for defendant nos. 1 and 2
and perused the entire material on record and my issue wise
findings are as under:-
Issue No. 1

10. Defendants have failed to point out as to why the suit

is not maintainable, inasmuch as this issue has not been
pressed during the course of hearing. Accordingly, this issue
is decided against the defendants and in favour of plaintiff.
Issue No. 2

11. This issue has not been pressed by the parties,

inasmuch as, defendants have failed to point out as to how
the plaintiff has no locus standi to file the present suit.
Name of the plaintiff is “Shahid Khalil”. Sale deed Ex. PW
1/3 clearly shows that the suit property had been purchased
in the name of Shahid Khalil and Zahid Khalil. As per the
plaintiff, he is the joint owner with defendant no. 1.
Defendant no. 2 had been falsely claiming himself to be
“Shahid Khalil” in order to grab the suit property. Thus, in
my view, plaintiff has locus standi to file the present suit.
Accordingly, this issue is also decided in favour of the
plaintiff and against the defendants.
Issue Nos. 3 and 4

12. Both the above issues require common discussion

hence are decided together.

13. Sale deed Ex. PW1/3, in respect of the suit property is

in the joint name of “Shahid Khalil” and “Zahid Khalil”.
Name of plaintiff is “Shahid Khalil” and that of defendant no.
1 is “Zahid Khalil”, meaning thereby as per the sale deed,
suit property stands jointly in the name of plaintiff and
defendant no.1. Name of defendant no. 2 is “Hamid Khalil”
and this fact is not in dispute. However, case of the
defendant no. 2 is that he is also known as “Shahid Khalil”.
According to defendant no.2, his maternal grandmother
used to call him as “Shahid” and for this reason she had
purchased the suit property jointly in his name and
defendant no.1. For this reason, his name was mentioned as
“Shahid Khalil” in the sale deed. Thus, defendant no. 2
claims himself to be joint owner of the suit property along
with defendant no.1, who happens to be his real brother.

14. In his affidavit of evidence, defendant no. 2 has

mentioned that his maternal grandmother Smt. Musharaf
Jahan Begum used to call him as “Shahid Khalil” which also
happened to be the name of his elder step brother i.e. the
plaintiff. However, his this stand completely stands
demolished in his cross-examination, wherein he has
deposed that his maternal grandmother used to call him
“Bhure”. He admitted that his maternal grandmother used
to call him “Hamid”. He did not remember his maternal
grandmother having called him “Shahid”. He further
admitted that his maternal grandmother used to call
everyone by their nick name. He also feigned his ignorance
about the name by which his maternal grandmother used to
call him in his childhood. Relevant excerpt of his testimony
reads as under:-
“I am called by the name of ‘Hamid’ and ‘Bhure’ in the house
as well as outside the house. The plaintiff is however only
called ‘Bhaijan’ in the house and even outside and he is not
called by his name. The elders however call him ‘Nanhe’.
After I grew up my grandmother used to call me Hamid till
her death in 1988. I do not know what she used to call me
in my childhood. Again said, she also used to call me
‘Bhure’. I do not know whether in my childhood she ever
called me by the name of ‘Shahid’. However, as per my
memory, she never called me ‘Shahid’. My grandmother
(Nani) used to call all the children by their nicknames. She
never used to have any confusion regarding the name of the
children of the house. It is correct that prior to her death in
1988 my nani was in sound mental state of health. She
used to call plaintiff by the name ‘Nanhe’. In my presence
my Nani never called the plaintiff by the name Shahid. She
always used to call him ‘Nanhe’.”
(emphasis supplied)

15. The answers given by him, as quoted above, clearly

demolish the case of defendant no. 2 that his maternal
grandmother used to call him as “Shahid” and for this
reason she had given his name as “Shahid” instead of
“Hamid”, in the sale deed. No other documentary evidence
has been placed on record to show that defendant no. 2 was
also known as “Shahid Khalil” besides his original name i.e.
“Hamid Khalil”. The plea taken by him also appears to be
improbable since his step brother was known as “Shahid
Khalil”. It is hard to find the same name of two brothers
even if they are step brothers.

16. In his cross-examination, defendant no. 2 has admitted

that in his school record as well as in his passport, his name
is recorded as “Hamid Khalil”. He further admitted that he
was not in possession of any document issued by any
Government authority wherein his name has been
mentioned as “Shahid Khalil”. Testimony of DW1 and DW3
are not sufficient to establish that defendant no. 2 was also
known by the name of “Shahid Khalil” besides his original
name “Hamid Khalil”. In his cross-examination, defendant
no. 2 has admitted that his maternal grandmother used to
call him “Bhure” and he does not remember that his
maternal grandmother ever called him by the name “Shahid
Khalil”. In view of the evidence on record, a finding can
safely be returned that the name of defendant no. 2 is
“Hamid Khalil” and he was not known by the name of
“Shahid Khalil”, which is the name of his step brother, that
is, plaintiff. Sale deed Ex. PW 1/3 is jointly in the name of
“Shahid Khalil” and “Zahid Khalil”. Thus, it is held that
plaintiff and defendant no. 1 are joint owners of the suit
property and have equal share therein.

17. In view of the above discussions, both the above issues

are decided in favour of plaintiff and against the defendants.
Issue No. 5

18. This issue appears to has been inadvertently framed,

inasmuch as, the same has not been pressed by either of
the parties.
Issue No. 6

19. In view of the findings returned on issue nos. 3 and 4,

it is declared that the plaintiff along with defendant no. 1, is
the joint owner of the suit property that is C-47 and C-48,
Jangpura (B), New Delhi, and has 50% share therein. A
preliminary decree of partition is also passed in respect of
the suit property. Till the property is partitioned, defendant
nos.1 and 2 are restrained from creating any third party
interest in the suit property. As regards relief of rendition of
accounts, the same has not been pressed by the parties.
Parties to bear their own cost. Decree sheet be drawn
accordingly.

Sd./-
A.K. PATHAK, J.
FEBRUARY 28, 2012