Smt Beena Sharma & Another vs Shri Narinder Kumar Sharma Etc
2008 Latest Caselaw 1218 Del

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) 1426/2007

%                                   Date of decision : 04.08.2008

SMT BEENA SHARMA & ANOTHER                                   ....... Plaintiff
                  Through:   Mr. B.L. Anand, Advocate


                                       Versus


SHRI NARINDER KUMAR SHARMA                                 ....... Defendants
ETC
                  Through : Mr.   Virender Mehta, Advocate for the Defendant No. 1
                            Mr.   Ashok Kumar Sharma, Defendant No. 2 in person
                            Mr.   Anil Kumar Sharma, Defendant No. 3 in person
                            Mr.   T.S. Chaudhary, Advocate for Defendants No. 4 & 5


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
     1.

Whether reporters of Local papers may be allowed to see the judgment? YES

2. To be referred to the reporter or not? NO

3. Whether the judgment should be reported NO in the Digest?

RAJIV SAHAI ENDLAW, J

1. This suit is listed for framing of issues. However, on perusal

of pleadings and the admitted documents, it is found that the parties

are not at issue and as such I am proceeding to pronounce the

judgment under Order 15 Rule 1 CPC. The plaintiffs are the widow

and son of late Shri Surinder Kumar Sharma. Shri Surinder Kumar

Sharma was the brother of the defendant Nos 1 to 5. Shri Surinder

Kumar Sharma and the defendant Nos 1 to 5 were the sons and

daughter of one Shri N.L. Sharma.

2. The suit is for partition with respect to House No.G-41,

Radhey Puri, Delhi admeasuring 260 sq yards. The defendant No.6

claiming one half share of the said house had instituted a suit in

this Hon'ble Court being CS(OS) 2646/1998 against Shri Surinder

Kumar Sharma (predecessor of the plaintiffs) and the defendant Nos 1

to 5 herein. The said suit was decided by judgment dated 5th July,

2006 vide which the defendant No.6 was held to be owner of one half

share i.e. 130 sq yards in the said house and shri Surinder Kumar

Sharma (predecessor of plaintiffs) and defendant Nos 1 to 5 held to be

owners of other half share i.e., 130 sq yards in the said house; the

house was also partitioned by metes and bounds with the green

portion in the site plan filed in the said suit falling to the share of

defendant No.6 and the red portion falling to the share of Shri

Surinder Kumar Sharma (predecessor of the plaintiffs) and the

defendant Nos 1 to 5 and the portion marked Blue comprising of court

yard, latrine and bath room remaining for common use. The plaintiffs

now claim 1/6th share in half of the house shown in the red colour in

site plan (supra). Defendant No. 1, 2 and 3, 4 and 5 and defendant

No.6 have filed separate written statements. The defendant No.6, of

course, claims no share in the other half share of the house and of

which partition is claimed in the present suit. The plaintiffs also have

impleaded the defendant No.6 only as a proper party to the suit.

3. The defendant Nos 4 and 5 have supported the case of the

plaintiff. The defendant No.1 and the defendant Nos 2 and 3 have, in

their written statements, not disputed (i) that the plaintiffs are the

widow and son of Shri Surinder Kumar Sharma; (ii) the judgment in

CS(OS)2646/1998. They have not claimed that the share of Shri

Surinder Kumar Sharma in the house has devolved upon them in any

manner whatsoever. They have, however, contended that the

plaintiffs are not in possession of the property and have also stated

that the defendant Nos 2 and 3 have preferred an appeal against the

judgment dated 5th July, 2006 in CS(OS) 2646/1998 and which appeal

is stated to be pending.

4. A perusal of the judgment dated 5th July, 2006 in CS(OS)

2646/1998 shows that the defence of Shri Surinder Kumar Sharma

and the defendant Nos 1 to 5 in the said suit was common. Shri

Surinder Kumar Sharma and the defendant Nos 1 to 5 contested the

said suit claiming that the defendant No.6 had no share in the house

and that their father Shri N.L. Sharma was the sole owner of the

house and upon the demise of Shri N.L. Sharma, Shri Surinder Kumar

Sharma and defendant Nos 1 to 5 were the only owners of the entire

house. This court, however, found that Shri N.L. Sharma was the

owner of one half undivided share only in the house and the remaining

half share in the house belonged to the defendant No.6 and,

accordingly, a decree for partition as aforesaid was passed. I had,

during the course of hearing, put to the counsel for the defendant Nos

2 and 3 that since their case in CS(OS) 2646/1998 was of the

defendant No.6 having no share in the house, the appeal filed by the

defendant Nos 2 and 3 herein could only be on the said aspect and

could not possibly be challenging the share of Shri Surinder Kumar

Sharma (predecessor of the plaintiffs) in the house. The counsel for

the defendants admitted that as per their case and the case of Shri

Surinder Kumar Sharma in the said suit, Shri S.K. Sharma and each of

the defendant Nos 1 to 5 had 1/6th share in the house. Thus, the

shares in the property subject matter of partition are not in issue.

5. The only impediment which remains to the passing of a

preliminary decree is the plea of the defendants of the plaintiffs not

being in possession. It is, however, not disputed that Shri Surinder

Kumar Sharma (predecessor of the plaintiffs) was in possession of the

house. The rights of Shri Surinder Kumar Sharma have devolved

upon the plaintiffs. The present is, thus, not the case of ouster any of

the co-sharer requiring payment of ad valorem court fees. The

possession of one co-sharer is the possession of the other. Thus, no

issues arise for adjudication in the present suit. The preliminary

decree for partition is passed declaring the plaintiffs together to be

having 1/6th undivided share and each of the defendant Nos 1 to 5

having 1/6th undivided share in half portion of the house shown in

green colour in the site plan in this suit and filed in CS(OS) 2646/1998

and which has not been disputed by any of the parties. Similarly, they

have equal share in the common portions also of the house. Decree

sheet be drawn up accordingly

RAJIV SAHAI ENDLAW JUDGE August 04, 2008 M

% 04-08-2008

Present : Mr. B.L. Anand, Advocate for the Plaintiffs Mr. Virender Mehta, Advocate for the Defendant No. 1 Mr. Ashok Kumar Sharma, Defendant No. 2 in person Mr. Anil Kumar Sharma, Defendant No. 3 in person Mr. T.S. Chaudhary, Advocate for Defendants No. 4 & 5

+CS (OS) No.1426/2007

Vide separate judgment, a preliminary decree for partition has

been passed. However, since the appeal against judgment in CS(OS)

2646/1998 is stated to be pending, the further steps for partition of

the property are deferred with liberty to any of the parties to apply as

and when need arises. The status quo order made on 31.08.2007 to

continue till final decree for partition.

RAJIV SAHAI ENDLAW,J August 04, 2008 M