Amritpal Singh Gambhir vs Dr. Sukhdev Singh Gambhir And Anr.
2006 Latest Caselaw 1013 Del

JUDGMENT

Swatanter Kumar, J.

Dr. Sukhdev Singh Gambhir (hereinafter referred to as the respondent) had filed a suit for partition of the property bearing No. 13A/6A, Western Ext. Area, Karol Bagh, New Delhi against Shri Amrit Pal Singh Gambhir appellant herein and Sh. Inderjit Singh Gambhir, performa respondent in this appeal. The parties to the suit are brothers. Originally the suit was filed in the year 1994 in the court of the District Judge, Delhi. During the pendency of the suit, the court ordered that the value of the suit was more than Rs. nine lakhs, as such, the suit was beyond the pecuniary jurisdiction of the court. Vide order dated 31.7.1997, the plaint was returned and it was presented on the original side of the High court on 27.2.1998 and was registered as Suit No. 371/98. However, in the meanwhile, even the pecuniary jurisdiction of the High Court was raised and as the High Court also had no pecuniary jurisdiction to entertain and decide the suit, the suit was again transferred to the court of the District Judge for its disposal in accordance with law. According to the respondents, they were entitled to 1/3rd share each and the property was liable to be partitioned by metes and bounds. In the trial court, the plaintiff took up the plea that there was no proper written statement before the court. Furthermore, according to the appellant, the partition had already taken place and the parties were in possession of their respective shares. An application under Order 7 Rule 10 CPC was also filed by the appellant stating that there was no proper plaint before the court and the original plaint which was returned ought to have been filed and for these reasons the suit should be dismissed. The appellant had also taken up the plea before the trial court that no preliminary decree can be passed because there was no proper plaint before the court.

2. It may be noticed that on 27.9.2003, the suit was transferred to the court of District Judge as a result of rise in pecuniary jurisdiction of the High Court. The parties were also attempting to settle their disputes and for that purpose various dates were granted. On 4.12.2003, the parties had made statements before the court about the share of each one of them and the statements of the said parties made before the court and the order passed on 4.12.2003 reads as under:

Statement of Shri Amrit Pal Singh S/o Shri Jawahar Singh Aged 40 years, Advocate, R/o 13-A/6A, W.E.A., Karol Bagh, New Delhi on S.A. Without prejudice to the my contentions in the written statement and without prejudice to my rights, I admit that plaintiff has 1/3rd share in the suit property. The deft. No. 2 has 1/3rd share and I also have 1/3rd share in the suit property. The mode of partition shall be discussed by the parties and it will be reported to the Court. ROandAC Sd/-

Statement of Shir Inder Jit Singh S/o Shri Jawahar Singh Aged 39 years, Business, R/o 13-A/6A, W.E.A., Karol Bagh, New Delhi on S.A. Without prejudice to the my contentions in the written statement and without prejudice to my rights, I admit that plaintiff has 1/3rd share in the suit property. The deft. No. 1 has 1/3rd share and I also have 1/3rd share in the suit property. The mode of partition shall be discussed by the parties and it will be reported to the Court. ROandAC Sd/-

Statement of Shri Sukhdev Singh Gambhir S/o Shri Jawahar Singh Aged 46 years, Doctor, R/o 13-A/6A, W.E.A., Karol Bagh, New Delhi on S.A.

I have heard the statements of defendants recorded above. I admit their statements and also admit that I have also 1/3rd share in the suit property and defts No. 1 and 2 have 1/3rd share each. The mode of partition shall be discussed by the parties and it will be reported to the Court. This statement is without prejudice to my rights. ROandAC Sd/-

ADJ/Delhi/04.12.2003

4-12-03 Pr. Plaintiff in person with Sh. P.S. Sharda, adv. Defts No. 1 and 2 in person. Parties are negotiating compromise. Statement of parties recorded. Put up for reporting compromise/further proceedings on 02-01-2004 Sd/- ADJ

3. The case was fixed for arguments and where after by judgment and decree dated 29.10.2005, the trial court passed a preliminary decree as follows:

4. The plaintiff is seeking a partition of the suit property against his brothers defendant Nos 1 and 2. The defendants have already made a statement on 4.12.2003 admitting that the parties have one third share each in the suit property. Accordingly a preliminary decree of partition is passed in favor of the plaintiff and against the defendants. Shri S.K. Arora, Adv. is hereby appointed as a Local Commissioner who will visit the spot and ascertain if the suit property is partible by metes and bounds and if so suggest the mode of partition. His fees is fixed at Rs. 15,000/- which will be borne by the plaintiff. The Local Commissioner shall file his report before 30th November, 2005.

4. The grievance of the appellant in the present appeal is that the statements made by the parties before the trial court on 4.12.2003 were without prejudice to their rights and contentions and if the court was hearing the case on merits and was passing even a preliminary decree, it ought to have framed the issue and dealt with the contention raised in the written statement that there was an oral family settlement on 25.1.94 vide which the parties had admitted 1/3rd share each and had even divided the portion and they were in possession of their respective portions. In these circumstances, the preliminary decree passed by the trial court is liable to be set aside as once a party claims an issue and such claim is disputed by the plaintiff, the court should record its findings in accordance with law and could not take benefit of the statements which were made on 4.12.2003 without prejudice to his rights and contentions. There appears to be some merit in this contention. But its acceptance as per the suggestion made by the learned Counsel appearing for the appellant would tantamount to multiplicity of litigation and in fact exercise of jurisdiction in futility. The learned trial court while passing the preliminary decree has appointed a Local Commissioner to suggest the mode of partition. The dispute between the parties is very limited and can safely be covered under the subsequent proceedings after passing of the preliminary decree and prior to passing of the final decree. The purpose is to resolve the issue between the parties in accordance with law and it is not necessary for the court to set aside the decree of the court particularly when there is no dispute between the parties in regard to the extent of the share and the dispute primarily relates to the mode of partition. According to the appellant, the property has already been partitioned and parties are in possession of the respective shares while according to the respondent, the property is still to be partitioned. As such, the preliminary decree is factually correct and this technical approach suggested by the appellant would hardly serve the interest of justice.

5. During the course of hearing, the learned Counsel appearing for the parties have agreed and fairly stated that a consented order may be passed by the court. We are of the considered view that in view of what we have afore- stated and the fair stand taken by the learned Counsel appearing for the parties on behalf of their respective clients, it will be appropriate to dispose of this appeal in the following agreed terms:

(i) The preliminary decree dated 29.10.2005 does not call for any interference except that the Commissioner with the consent of the counsel for the parties would be named by this Court.

(ii) In the preliminary decree, correct finding has been recorded that the parties to the suit have 1/3rd share each.

(iii) The statements made before the trial court on 4.12.2003 were without prejudice to the rights and contentions of the parties. As such, the parties should be given an opportunity to prove their case before a final decree is passed.

(iv) The appellant would be at liberty to prove before the court that the partition has already taken place and the parties are in possession of their respective share which is otherwise just and proper and the parties are bound by the oral settlement.

(v) The Local Commissioner would visit the site and would also make his report as to whether the parties are in possession of the property in the portions stated in the written statement already filed by the appellant.

(vi) The Commissioner in addition to such other mode as he may deem fit and proper in the facts and circumstances of the case, would also suggest if the stand of the appellant is correct whether the property is in possession of each party as per their agreed share of 1/3rd each.

(vii) The report so submitted by the Commissioner will be examined by the court after the parties have been granted an opportunity to file objections, if any, to the said report.

(viii) The parties would be at liberty to lead evidence and none of them would be entitled to more than two opportunities each for closing their evidence.

(ix) The trial court would dispose of the case as expeditiously as possible and in any case not later than one year from the date of passing of this order.

6. The appeal is, thus, disposed of in the above terms. The preliminary decree would stand modified to the above extent. Mr.is appointed as Local Commissioner. His fee shall initially be Rs. 20,000/- in addition to the incidental expenses that the Commissioner may incur.

7. The parties are left to bear their own costs.