A. K. SIKRI, J. ( 1 ) BY means of this suit the plaintiff seeks partition of property bearing no. G-41, Radhey Puri, Delhi (hereinafter referred to as the 'suit property' ). Prayer for permanent injunction is also made to the effect that the defendants be injuncted from selling, transferring, alienating or creating or creating third party interest in the suit property and also from raising any construction on any portion of the suit property. These prayers are made on the basis of the averments to the effect that the plaintiff and the father of the defendants, namely, late Shri Nand Lal Sharma, were the joint owners of the suit property. They were close friends and as they were living in rented accommodation, they decided to buy a plot of land bearing No. G-41, Radhey puri, Delhi from International Land and Finance Company Ltd. (for short, 'colonizer'), who were carving out the place in the colony known as Radhey pur. Both of them paid Rs. 20 to the aforesaid company and later on approximately Rs. 550 for the purchase of the said land. It is stated that because of inter se disputes in colonizer's company, the colonizer developed the aforesaid colony and, therefore, allowed the plaintiff and late Shri Nand lal Sharma to raise construction. Because of the inter se disputes, transfer documents like sale deed etc. could not be executed in favour of the plaintiff and late Shri Nand Lal Sharma. Since these two persons were put in possession, they jointly constructed ground floor and one room on the roof top. Plan of the suit properties is filed along with the plaint and it is pointed out that portion marked as Green in the said plan is in possession of the plaintiff since the construction and the portion marked as Red in the site plan is in possession of the legal representative of Shri Nand Lal Sharma, namely, the defendants herein, after the death of Shri Nand Lal Sharma. Portion marked as Blue is in common possession of both the parties which comparises of Courtyard, latrine and bathroom. The portion marked as black shows the construction raised by the plaintiff from his own sources after the demise of Shri Nand Lal Sharma. Portion marked as Blue is in common possession of both the parties which comparises of Courtyard, latrine and bathroom. The portion marked as black shows the construction raised by the plaintiff from his own sources after the demise of Shri Nand Lal Sharma. ( 2 ) IT is averred that in order to ensure that there are no disputes in future, an agreement was executed between the plaintiff and late Shri Nand lal Sharma on 6. 1. 1956 wherein it was recorded by the parties that they had pvrchased the plot as co-owners having 50% share each and had jointly raised the construction on the said plot. The parties lived peacefully during the lifetime of Shri Nand Lal Sharma and even after his demise in November 1958. However, after the death of Smt. Kamlawati, widow of late Shri Nand lal Sharma, who died on 13. 11. 1996, the defendants started creating troubles and harassing the family members of the plaintiff. Allegations of such troubles created are mentioned in the plaint and it is stated that because of this reason, the plaintiff is forced to file this suit praying for a decree of partition and permanent injunction. ( 3 ) IN the written statement filed by the defendants, plea taken is that late Shri Nand Lal Sharma bought the plot of land in his exclusive name and plaintiff was never a joint owner with Shri Nand Lal Sharma. Similarly, construction was also carried out by Shri Nand Lal Sharma exclusively out of his own funds. The plaintiff was only inducted as a tenant in the suit property and as he is not a joint owner, he has no cause of action for filing the present suit and claiming injunction. ( 4 ) ON the basis of the above pleadings, following issues were framed on 25,4. 2000:- 1. Whether the plaintiff and the defendants are co-owners of the suit property? If so, to what effect? 2. If Issue No. 1 is proved in the affirmative, what is the share of the respective parties in the property? 3. Whether the plaintiff is a tenant in the suit property? 4. To what relief, if any, is the plaintiff entitled? Whether the plaintiff and the defendants are co-owners of the suit property? If so, to what effect? 2. If Issue No. 1 is proved in the affirmative, what is the share of the respective parties in the property? 3. Whether the plaintiff is a tenant in the suit property? 4. To what relief, if any, is the plaintiff entitled? ( 5 ) IT may be mentioned that along with the suit the plaintiff had also filed application under Order XXXIX Rule 1 and 2 of the Code of 'civil procedure (hereinafter referred to as 'cpc' ). On this application, order dated 15. 12. 1998 was passed recording the statement of counsel for the defendants that they would not transfer, alienate or sell the property in question and also will not carry out any construction except the minor repairs of the premises in their possession. While framing the issues on 25. 4. 2000 in the said application, parties were directed to maintain status quo and order dated 15. 12. 1998 was confirmed till the decision of the suit. During the pendency of this suit, the defendant No. 1 died and his legal representatives are brought on record. Mr. Rohit Minocha, Advocate, appeared for defendant nos. 1 (a ). and 1 (b) and other defendants have appeared in person. ( 6 ) IN support of his case, the plaintiff has produced as many as five witnesses. PW-1 is the LDC in the Record Room of Tis Hazari Courts, Delhi, who was summoned to produce file of Suit No. 304/64 entitled Hari Ram v. Kamla Devi and Ors. decided on 5. 11. 1964. He stated that the said file has since been destroyed in the fire which took place on 15/16. 03. 1996. The file of other Suit No 122/57 entitled Kishan Chand v. Ram Prashad decided on 27. 11. 1958 had also been destroyed. PW-2 is the UDC from the office of sub-Registrar, Kashmere Gate, Delh. He produced mortgage deed dated 8. 5. 1957 (Ex. PW-2/1) executed by late Shri Nand Lal Sharma in favour of shri Hari Ram. PW-3 is the Sub-Inspector at Police Station Krishna Nagar, delh. He produced original DD No. 25-A dated 28. 11. 1998 in connection with dispute in respect of suit property between the parties. PW-4 is Shri hari Ram, in whose favour mortgage deed was executed by late Shri Nand lal Sharma. PW-3 is the Sub-Inspector at Police Station Krishna Nagar, delh. He produced original DD No. 25-A dated 28. 11. 1998 in connection with dispute in respect of suit property between the parties. PW-4 is Shri hari Ram, in whose favour mortgage deed was executed by late Shri Nand lal Sharma. He has explained that he had given a loan of Rs. 1500 to late shri Nand Lal Sharma in the presence of the Sub-Registrar and by way of security, Shri Nand Lal Sharma had executed mortgage deed (Exhibit pw-2/1 ). He has also stated that the said amount was never returned and, therefore, he filed a suit for recovery of this amount which was decreed. He did not get the decree executed as there was a settlement with Smt. Kamlawati, w/o. late Shri Nand Lal Sharma who died before the filing of the suit. Plaintiff himself appeared as PW-5 and has stated about his case set out in the plaint. His testimony shall be discussed at an appropriate stage. ( 7 ) THE defendants, on the other hand, produced one witness, namely, shri Surender Kumar Sharma, as DW-1. Shri Surender Kumar Sharma was defendant No. 1 and son of late Shri Nand Lal Sharma. He has also, in his evidence, stated the case of the defendants namely that the suit property is the exclusive property of late Shri Nand Lal Sharma wherein plaintiff has no interest. ( 8 ) LEARNED counsel for the parties as well as the defendants appearing in person made oral submissions. These parties have also filed their written submissions which were referred to at the time of arguments. After hearing the arguments and perusing the documents, my issue-wise findings are as under:- ( 9 ) ISSUE NO. 1 and 3 since these issues are interconnected, they are taken up together. In order to prove that the plaintiff is the co-owner of the property, learned counsel for the plaintiff relied upon the following documents in which late Shri Nand Lal Sharma had admitted the fact that plaintiff was joint owner of the property along with him: (a) Agreement dated 6. 1. 1956 between the plaintiff and Shri Nand lal Sharma; (b) Mortgage Deed dated 8. 5. 1957 executed by Shri Nand lal sharma in favour of Shri Hari Ram (DW-4); and (c) Statement of Shri Nand Lal Sharma recorded as DW-1 in Suit no. 1. 1956 between the plaintiff and Shri Nand lal Sharma; (b) Mortgage Deed dated 8. 5. 1957 executed by Shri Nand lal sharma in favour of Shri Hari Ram (DW-4); and (c) Statement of Shri Nand Lal Sharma recorded as DW-1 in Suit no. 122/57 entitled Kishan Chand v. Ram Parshad decided on 25. 11. 1958. (d) In addition to the above, learned counsel for the plaintiff referred to the ledger account maintained by the plaintiff and submitted that authenticity of this document was accepted by late Shri nand Lal Sharma itself in his statement as DW-1 in the aforesaid suit. ( 10 ) LET me first discuss these documents and the effect thereof. The agreement dated 6. 1. 1956, which is proved as Exhibit PW-5/2 is in Urdu which is signed by the plaintiff and late Shri Nand Lal Sharma at points 'a' and 'b'. Though the exhibition of this document is denied in the written statement, significantly, in the cross-examination of PW-5, there is not even a suggestion put that the document is not signed by late Shri Nand Lal sharma. The entire cross-examination on this document is confined to the receipt issued by the developer/colonizer as per which t he name of'shri Nand lal Sharma was only mentioned. Documents produced by the plaintiff are more than 30 years old and having regard to the provisions of Section 90 of the India Evidence Act, 1872 (for short, 'the Act'), strict rule of proof regarding the admissibility of these documents is done away with as held by the Supreme Court in Sri Lakhi Baruah and others v. Sri Padma kanta Kalita and Ors. , AIR 1996 SC 1253 . Therefore, I am inclined to hold that this document was executed between the plaintiff and late Shri nand Lal Sharma. Let me now reproduce the English translation of this document, which is proved as Exhibit PW-5/2a. Authenticity of this translation is not disputed by the defendants in the cross-examination: That i, Nand Lal son of Pt. Charan Dass , Brahiman , r/o G-41-Rahdeypuri, Gandhi Nagar , Delhi Province as party No. I Ram Parshad son of Shri Pearey Lal , Vaish , Rohatgi r/o G-41, Radheypuri , Delhi Province, as party No. II, that we both the parties had purchased a plot No. G-41, measuring 260 sq. yds. Charan Dass , Brahiman , r/o G-41-Rahdeypuri, Gandhi Nagar , Delhi Province as party No. I Ram Parshad son of Shri Pearey Lal , Vaish , Rohatgi r/o G-41, Radheypuri , Delhi Province, as party No. II, that we both the parties had purchased a plot No. G-41, measuring 260 sq. yds. Situated in Abadi Radheypuri , Gandhi Nagar , IIIaqa Shahdra , Delhi Province from International Land & Finance Ltd, Delhi . We both the parties had already paid to the Company about Rs. 550 of the price, the receipts of payment were in the name of Nand Lal Party No. 1. The name of the party No. II is not mentioned as purchaser in the receipts, but we both parties are owner of the plot No. G-41, as equal shares. Whatever the money paid to the Company was equally paid by both of us to the company. The Company has not fully developed the colony as per terms, therefore, the remaining amount was not demanded by the Company and the registered sale deed was not executed. Both the parties have already constructed one storey building on the plot with the permission of the Company and now we are residing there. The party No. 1 has spent Rs. 3750 towards construction and party No. II has also spent Rs. 3750 towards construction. Now we both the parties are owner of the above said house. If and when the company will execute the sale deed then names of both the parties will be mentioned in the sale deed as purchasers of the plot No. G-41. Therefore this deed of agreement is being written on 6. 1. 56. Sd /- Kishan Lal Deed Writer BTNIND = Kinari Bazar , Delhi . WITNESSES Sd /- Rattan Lal in Hindi Kinari Bazar , Delhi . Sd /- Nand Lal in English Party no. 16. 1. 56. Sd /- IIIigible English in Hindi Sd /- Ram Parshad in Party No. II 6. 1. 56. This document, in no uncertain terms and unequivocally, attempts that both the plaintiff and late Shri Nand Lal Sharma had purchased the plot in question jointly; both had paid a consideration of Rs. 16. 1. 56. Sd /- IIIigible English in Hindi Sd /- Ram Parshad in Party No. II 6. 1. 56. This document, in no uncertain terms and unequivocally, attempts that both the plaintiff and late Shri Nand Lal Sharma had purchased the plot in question jointly; both had paid a consideration of Rs. 550, though the receipt was in the name, of late Shri Nand Lal Sharma only; both had spent equal amount on the construction of the house on the said plot; and both parties were the owners of the said house. This document acknowledges that receipt of the payment was in the name of late Shri Nand Lal Sharma only, but still clarifies that both parties are the owners in equal shares and the price was also paid to the company equally by both of them. It is also accepted that developer/colonizer had not fully developed the colony and remaining amount was not demanded and also that registered sale deed was not executed because of this reason. ( 11 ) TO the same effect is the admission of late Shri Nand Lal Sharma in Judicial proceedings,. e. in Suit No. 122/57 entitled L. Kishan Chand v. Shri Ram Parshad. This statement is filed as Mark-X (attested copy of this statement is filed on record along with its true translation ). Plaintiff had taken steps to summon the original record, but it was reported by the court clerk that the record has been destroyed and, therefore, in my considered view there is no reason not to act upon this secondary evidence as original has been lost. From this statement, it appears that L. Kishan chand had supplied timber to Shri Ram Parshad (plaintiff herein) and in that connection case was filed by him against the plaintiff. Shri Nand Lal sharma had appeared as a witness of the plaintiff and in his statement he stated that house for which timber was purchased (. e. the suit property) from L. Kishan Chand is on a plot which is jointly owned and constructed by him and the plaintiff. They had jointly purchased the timber. He had also stated in the cross-examination that there is no registered sale deed in respect of the suit property and has specifically referred to the written agreement. e. Ex. PW-5/2. He had also stated that on the construction both had spent equal amount. They had jointly purchased the timber. He had also stated in the cross-examination that there is no registered sale deed in respect of the suit property and has specifically referred to the written agreement. e. Ex. PW-5/2. He had also stated that on the construction both had spent equal amount. He had even mentioned that accounts were maintained and all the details are there is those accounts. ( 12 ) MORTGAGE deed executed by late Shri Nand Lal Sharma is the next relevant document which is proved as Ex. PW-2/1. This document is in Urdu and is duly registered with the Sub-Registrar. Witness from the office of sub-Registrar was summoned to produce on record the certified copy of the said document. In this mortgage deed executed by late Shri Nand Lal sharma following recital appears: "i and Ram Parshad son of Pearey Lal resident of G-41, Radheypuri, krishan Nagar, Shahadra - Delhi-6, are having one half share each and are in possession thereof, that is I and Ram Parshad are as afresaid (sic) are joint owner and in joint possession of the aforesaid house. " ( 13 ) PW-4, Shri Hari Ram, in whose favour this mortgage deed was executed, has also admitted in the evidence box and has testified to this effect. ( 14 ) ALL the aforesaid three documents are clinchers and contain categorical admission of the late Shri Nand Lal Sharma that he and Ram parshad (plaintiff herein) jointly purchased the plot and thereafter jointly constructed the property by contributing the funds in equal proportion. Possession of the plaintiff in the half share of the property is also accepted in these documents. In the cross-examination, not even a suggestion is put regarding construction by the plaintiff even when the plaintiff categorically stated that he constructed half portion from his funds. Plaintiff has produced ledger account and cash book also as Ex. PW-5/3 A to J. As pointed out above, reference is made by late Shri Nand Lal Sharma to the ledger account being maintained and, therefore, authenticity of this ledger account also cannot be disputed. In this ledger account, the plaintiff has shown meticulously the expenditure incurred by him on the construction. Mere receipt in favour of late Shri Nand Lal Sharma would not militate against the aforesaid documents, more so when admittedly there is no sale deed executed. In this ledger account, the plaintiff has shown meticulously the expenditure incurred by him on the construction. Mere receipt in favour of late Shri Nand Lal Sharma would not militate against the aforesaid documents, more so when admittedly there is no sale deed executed. Position could have been different had there been a sale deed of the property in the exclusive name of late Shri Nand Lal Sharma. The defence of the defendants that plaintiff was only inducted as a tenant also stands falsified in view of the documentary evidence on record in the form of admissions of late Shri nand Lal Sharma. Merely because in the municipal records the plaintiff is shown as tenant would be of no help to the defendants in view of the overwhelming documents in favour of the plaintiff establishing his joint ownership in the suit property. Defendants could not produce a single document on record in support of their plea of the plaintiff being a tenant, namely, rent/lease agreement, rent receipts etc. It is not even stated that the plaintiff was paying rent in respect of the suit property. Plaintiff is in possession of the suit property ever since it was constructed in the year 1954 and his uninterrupted possession till 1996 is not questioned. Disputes are raised only after the death of Smt. Kamlawati, widow of late Shri Nand Lal sharma. The aforesaid findings and the consequential effect thereof, namely, that the plaintiff is the joint owner o the suit property, has the legal support in the form of provisions of Section 13 (a) of the Act read with Section 32 (7) of the said Act which read as under:- "13. Facts relevant when right or custom is in question where the question is as to the existence of any right or custom, the following facts are relevant- (a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted, or denied, or which was inconsistent with its existence; 32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. Cases in which statement of relevant fact by person who is dead or cannot be found, etc. , is relevant statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases:- (7) or in document relating to transaction mentioned in section 13, clause (a) -When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in section 13, clause (a ). " In Srinivas Krishnarao Kango v. Narayan Devji Kango and Ors. , air 1954 SC 379 , Judgment in the earlier litigation was held to be admissible in evidence in view of the provisions of Section 13 (a) of the Act. Further in Tirumala Tirupati Devasthanams v. K. M. Krishnaiah, AIR 1998 SC 1132 , the Supreme Court held that the earlier Judgment, even though not inter partes, would be admissible as evidence to prove title in respect of the suit property. This dicta is found in para 9 of the Judgment, which is reproduced below:- "in our view, this contention is clearly contrary to the rulings of this court as well as those of the Privy Council. In Srinivas Krishna Rao kango v. Narayan Devji Kango, AIR 1954 SC 379 , speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar,. held that a Judgment not inter partes is admissible in evidence under section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that Judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B. K. Mukerjea, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram, AIR 1954 SC 606 , held that a previous Judgment not inter partes, was admissible in evidence under Section 13 of the Evidence act as a 'transaction' in which a right to property was 'asserted' and 'recognised'. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Bramohini, (1992) ILR 29 Cal 190 (198) (PC) that a previous Judgment, not inter partes was admissible in evidence under section 134 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, (1895) ILR 22 Cal 533 (PC) by Sir John woodroffe in his commentary on the Evidence Act (1931, p. 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram sunder, AIR 1934 PC 157:61 IA 286. " Various High Courts have followed this view and some of these judgments are reported as Atma Ram v. Smt. Parsini and Ors. , AIR 1979 pandh 234; Rama Chandra v. Gadadhar Mohapatra and Ors. , AIR 1980 orissa 54; and Parkash Chand and Ors. v. Hans Raj and Anr. , AIR 1994 himachal Pradesh 144. ( 15 ) ACCORDINGLY, it is held that plaintiff is the joint owner of the property in question having half share therein and he is not the tenant in the property as alleged by the defendants. These issues are, therefore, decided in favour off the plaintiff and against the defendants. 10. ISSUE NO. 2 ( 16 ) THE plaintiff has filed the site plan which is proved as Ex. PW-5/1. The portions in occupation of the plaintiff and defendants are earmarked. This could not be dislodged by the defendants in their cross-examination. Learned counsel for the defendants as well as the defendants who appeared in person also could not dispute that the possession in the respective portions is virtually equal. Therefore, when both the parties are having equal shares in the property and possession of respective portions also comes to half, it is not even necessary to first pass a provisional decree of partition and appoint any Local Commissioner for suggesting the partition by metes and bounds. Therefore, when both the parties are having equal shares in the property and possession of respective portions also comes to half, it is not even necessary to first pass a provisional decree of partition and appoint any Local Commissioner for suggesting the partition by metes and bounds. Thus, while holding that both the parties are having equal shares in the property, the portion marked as Green in the site plan, which is in possession of the plaintiff, shall belong to the plaintiff; portion marked Red in the site plan shall fall in the share of the defendants; and portion marked Blue, which comprises of Courtyard, latrine and bathroom, would fall in their common share. Decree in terms thereof is accordingly passed. ( 17 ) IN view of this decree of partition, it is not necessary to pass a decree of permanent injunction as both the parties shall have right to deal with their respective portions in any manner they like. However, the decree of permanent injunction is passed to the extent that defendants shall not sell, transfer, alienate or create third party interest in the portion which has fallen to the share of the plaintiff or make any constructions in the said portion. ( 18 ) DECREE be prepared accordingly. Keeping in view the nature of the dispute, parties are directed to bear their respective costs.