Surjit Kaur & Ors. vs Smt. Nirmal Kaur
2010 Latest Caselaw 970 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Judgment delivered on: 19.02.2010


+     RFA (OS) 13/2010

SURJIT KAUR & ORS.                             ..... Appellants
              Through:         Mr. Prem Kumar with Mr. Shiv K. Goyal,
                               Mr. Ashok Bansal and Mr. Nilesh Sahni,
                               Advocates

                        -versus-


SMT. NIRMAL KAUR                               ..... Respondent

             Through:          Mr. Raman Kapur with Mr. Dhiraj
                               Sachdeva, Advocates


CORAM:-
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON'BLE MS. JUSTICE VEENA BIRBAL

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in Digest?

SANJAY KISHAN KAUL, J (ORAL)

CM No. 3183/2010 (exemption)

Allowed, subject to just exceptions.

RFA (OS) No. 13/2010 & CM No. 3181/2010 (u/o 41 R 25 CPC for framing of issues), CM No. 3182/2010 (for additional evidence) & CM No. 3180/2010 (stay)

Admit.

Learned counsel for the respondent accepts notice.

At the request of learned counsel for the parties, appeal is

taken up for final disposal.

A suit for partition was filed by the respondents in respect of

property bearing no. C-18, Mansarover Garden, New Delhi

measuring 800 sq. yds. Late Shri Chanan Ram was the original

owner of this property and prior to his demise executed a Will dated

27.03.1979 giving rights in terms thereof of 50 per cent each to the

predecessors of the appellants and respondents respectively. This

Will is not in dispute nor the shares of the parties as specified in the

Will.

The defence raised by the appellants in their written

statement is that the cause of action for filing of the suit has been

wiped out on account of the memorandum of partition executed

between the two groups dated 22.04.1994. The original document

was not filed by the appellants who claimed that the same was in

possession of the respondent.

A preliminary decree was passed by the learned Single Judge

of this court on 29.09.2008 after all endeavours of Mediation had

failed. In terms of the preliminary decree, shares of the two groups

were declared as 50 per cent each and a Local Commissioner was

appointed to suggest the mode of partition.

The order dated 29.09.2008 was assailed by the appellants in

RFA(OS) No. 1/2009. The only ground urged by the counsel

appearing for the appellants therein was that an issue was liable to

be cast on the basis of the defence raised by the appellant as to

whether a preliminary decree was at all required to be passed in

view of the earlier memorandum of partition. The appeal was

decided by the Division Bench on 07.01.2009. The Division Bench

noted that the sole defence raised was based on the Deed of

Partition, a copy of which was on record and the relevant Clause 3

of that Deed was interpreted not to amount to a partition of the

property requiring no further partition. The plea of the counsel for

the appellants was based only on this Clause which reads as under:-

"3. That a plot No. 18-C, measuring 800 sq. yds. situated at Mansarover Garden, New Delhi was given to both the parties through a Will dated 27.03.1979 by Shri Chanan Ram son of Jatti Ram. In the half portion of this plot Ravi Dhiman is running a workshop, the name of which is Ravi Autos. In this land the party No. 2 has ½ share i.e. 400 sq. yds. But all the members of party No. 2 have right and share in this workshop. All parties are owners and in possession and responsible as per their shares. This writing has been executed, therefore, the same may be used at the time of need."

The relevant observations of the Division Bench are as under:-

"It is the submission of the learned counsel for the appellants that the aforesaid clause amounts to a partition of the property in question and thus no further partition is required. The plea is thus predicated only to this clause of the said deed.

A bare reading of the aforesaid clause shows that no partition by metes and bounds has taken place. All that has been stated is the declaration of the shares of the parties and as to who is in occupation. Learned Single Judge thus rightly passed a preliminary decree for partition declaring the undisputed shares of the parties with a local commissioner to suggest the mode of partition.

It is trite to say that it is open to the appellants to plead before the learned Single Judge as to what should be the appropriate mode of partition keeping in mind that present position of occupation of the property. That will be an aspect to be considered when passing the final decree.

At this stage, learned counsel for the appellants also submits that there is an application pending for framing of issues to the aforesaid extent. Once we have come to the conclusion that no issue is required to be framed in this behalf, the application really does not

survive and that is the purport and intent of the impugned order.

We find no merit in the appeal.

Dismissed."

The appellants aggrieved by this order preferred a Special

Leave to Appeal (Civil) No. 2140/2009 in which the following order

was passed on 09.02.2009.

"Heard counsel for the petitioner and Mr. R. Sundervardhan, learned Senior Advocate and Mr. Rahul Shukla on behalf of the respondent.

We do not find any reason to interfere with the impugned order.

However, all questions shall remain open, including the question about the report of the Local Commissioner.

The special leave petition is disposed of with these observations."

The Local Commissioner proceeded to suggest the mode of

partition dividing the property in equal share which suggestion has

been accepted and a final decree was passed on 23.12.2009 which

is now sought to be assailed by the appellants.

Learned counsel for the appellants fairly submits that his real

grievance is that there was no need to repartition the property in

view of the partition which had already occurred. He thus concedes

that in case it is held that no partition had earlier taken place, then

he cannot fault the report of the Local Commissioner or the

conclusion arrived at by the learned Judge at the time of passing of

the impugned order.

In our considered view, the question as to whether an issue

was required to be cast and a trial held on the aforesaid aspect of

there being earlier partition cannot be raised by the appellants once

again in view of the order of the Division Bench dated 07.01.2009 in

RFA(OS) No. 1/2009 which has received the impromptu of the

Supreme Court in terms of the order dated 09.02.2009. The order

dated 07.01.2009 categorically held that there was no prior partition

and the division should take place by metes and bounds. The

appellants, thus, chose to invite an order on merits on the premise

on which the preliminary decree had been passed and thus the

question of there being a prior partition was foreclosed by the

Division Bench on 07.01.2009. The matter did not rest at this since

the SLP filed by the appellant was dismissed categorically stating

that there was no reason to interfere with the impugned order of the

Division Bench dated 07.01.2009.

Learned counsel for the appellants, however, seeks to take

strength from the observation in the order of the Supreme Court

dated 09.02.2009 where, after observing that there was no reason

to interfere with the impugned order, it has been further added

"However, all questions shall remain open, including the question

about the report of the Local Commissioner."

In our considered view, if the order is read as a whole, the only

conclusion which can be drawn is that post passing of the

preliminary decree insofar as the mode and manner of division is

concerned, including the aspect of the report of the Local

Commissioner would be examined by the learned Single Judge. The

order does not imply that once again the appellants can have a

second round of litigation on the question of there being an earlier

partition and, thus, not requiring the subsequent partition as prayed

for by the respondents in the suit.

Learned counsel for the respondents has rightly pointed out to

us that the repeated prolongation is occurring in the litigation on

account of the fact that the appellants are in possession of the site

while the respondents have been excluded which fact has been

verified by the Local Commissioner in his report dated 08.11.2006

observing in Para 5 of the report:-

"That on site inspection it is clear that the plaintiff is not in possession of any part of the suit property No. C-18, Mansarover Garden. The suit property is entirely in possession of Defendant No. 4."

We must deprecate the endeavour of the appellants to again

and again rake up the same issue which stands decided by the

Supreme Court. Not only that, interim applications have been filed

once again seeking framing of issues which relief has been declined

by the order of the Division Bench dated 07.01.2009. There is also

no ground to permit any additional evidence at this stage.

The appeal and applications are accordingly dismissed with

costs of Rs. 15,000/- to be paid within 15 days.

SANJAY KISHAN KAUL, J.

VEENA BIRBAL, J.

FEBRUARY 19, 2010/kks