Ved Prakash & Others vs Braham Prakash & Another
2010 Latest Caselaw 55 Del

                                  UNREPORTED
*     IN THE HIGH COURT OF DELHI AT NEW DELHI



+                            RFA 140/2007

      VED PRAKASH & ORS.                     ..... Appellants
                    Through: Mr. Sukhbir Singh, Advocate

                    versus

      BRAHAM PRAKASH & ANR.                           ..... Respondents
                           Through: Dr. Suman Chaudhary, Advocate
                                     for the respondent No.1
                                     Mr. S.K. Tyagi, Advocate for the
                                     applicant Smt. Archana Devi in
                                     CM No.3367/2008
      CORAM:
      HON'BLE MS. JUSTICE REVA KHETRAPAL
1.    Whether reporters of local papers may be allowed
      to see the judgment?
2.    To be referred to the Reporter or not?
3.    Whether judgment should be reported in Digest?

                      ORDER

%                     08.01.2010

:     REVA KHETRAPAL, J. (Oral)

CM No.3367/2008 in RFA 140/2007

1. This is an application filed on behalf of Smt. Archana Devi, wife

of Shri Ashok Kumar (the respondent No.2 herein) under Order I Rule

10 CPC seeking impleadment as a necessary party and for setting aside

of the judgment and decree dated 02.02.2007.

2. The brief facts leading to the filing of the present appeal are as

follows.

3. The appellants and the respondents, being the real brothers, were

the legal heirs of late Shri Ram Kishan. The late father of the parties

had three other brothers, namely, Shri Rishal Singh, Shri Amar Singh

and Shri Manohar Singh. Late Shri Ram Kishan, Shri Rishal Singh,

Shri Amar Singh and Shri Manohar Singh were the co-owners of

property/residential plot comprised in Khasra No.3/38 (0-12), 3/39 (0-

5), 59 (0-10) and 60 (1-0) situated in Village Baghraula. It is stated that

no partition had been effected between late Shri Ram Kishan and his

brothers and all the co-owners were residing in the property by way of a

family settlement. During the lifetime of late Shri Ram Kishan himself,

there was a further family settlement in the year 1980 whereby a

partition took place between the appellants and the respondents. Since

then, the appellants and the respondents had been residing in their

respective portions. As per the revenue records, the total land

measuring 47 Biswas, i.e., 2350 sq. yards is under the joint possession

of the appellants, the respondents and the LRs of Shri Rishal Singh, Shri

Amar Singh and Shri Manohar Singh, though each of the appellants and

the respondents had 1/20th share out of the said land, which comes to

117.5 sq. yards each. It is further stated that the appellants No.1 and 2

out of their own resources had constructed the house/building at Khasra

No.3/38 measuring 155 sq. yards, in on about the year 1979. However,

as already stated, in 1980, a family settlement had been arrived at

between the parties and accordingly partition had taken place. It was

agreed between the appellants and the respondents that the respondent

No.1 shall remain in the built up area situated at Khasra No.3/38

measuring 155 sq. yards approximately. The appellants were moved out

of the said built up property to their respective shares. As mutually

agreed, the appellants were given their respective shares at Khasra

No.59, but the same was in the form of cultivated land and no

construction was existing that time. It is stated that later on the

construction was raised by the appellants out of their own funds and the

respondent No.2 was given his share at Khasra No.3/38, being the

remaining area of Khasra No.3/38 measuring 145 sq. yards. It was also

agreed that the respondent No.1 shall make a payment of Rs.15,000/-

each to the appellants No.1 to 3 and Rs.25,000/- to the respondent No.2

in lieu of the built up property-cum-share retained by the respondent

No.1, and in case of failure, the respondent No.1 shall hand over the

peaceful and vacant possession of the built up property in his occupation

to the appellants and the respondent No.2. The respondent No.1 neither

paid the said amount nor handed over the possession of the portion

shown in red colour in the site plan. The respondent No.1 thereafter

filed a suit for partition and permanent injunction.

4. A suit for partition having been filed, on the averments made in

the plaint a preliminary decree for partition was passed by the learned

trial court holding that suit property is liable to be partitioned. The

respondents (the defendants therein) were also restrained from

constructing any building upon the suit property or parting with the suit

property to any other person.

5. The present appeal has been filed against the aforesaid

preliminary decree of partition passed by the learned trial court, dated

2nd February, 2007. In the application under Order I Rule 10 CPC filed

by the applicant Smt. Archana Devi, however, it is claimed that the

property bearing Khasra No.27, which was the subject matter of the suit,

is in the possession and ownership of the applicant and it is, therefore,

necessary that the applicant, who was not impleaded as a party in the

suit, be also impleaded as a necessary party for the adjudication of the

suit in which partition of the aforesaid property is claimed in the

absence of the applicant.

6. It is averred in the application that on 10th July, 2007 when the

applicant was at her residence, summons issued by this Court against

the applicant's husband, Shri Ashok Kumar (the respondent No.2

herein) were received by her and on receipt of the said summons, the

applicant came to know that the present appeal was pending and was

fixed for 17.07.2007. The applicant claims that she tried to know about

the said appeal from her husband, who refused to impart any

information to her in this regard. The applicant also tried to know from

her other brothers-in-law about the matter and eventually discovered

that a suit for partition was pending in the Court of the learned

Additional District Judge and that the subject matter of the said suit

included property belonging to the applicant and purchased by the

applicant by way of registered Sale Deed dated 29.07.2005 vide

registration No.10062 in Book No.I, Vol. No.2177, pages 92 to 101 in

the office of the Sub-Registrar-IX, New Delhi.

7. The applicant thereupon, in order to protect her interest, moved

the present application for getting herself impleaded in the present

appeal. Notice of the application was issued to the parties. The learned

counsel for the appellants on receipt of the notice states that he has no

objection to the impleadment of the applicant. The learned counsel for

the respondent No.1, however, contends that the applicant has no right

to be impleaded as a party in view of the fact that she being the wife of

the defendant No.4 in the suit (the respondent No.2 herein) was all

along aware of the pendency of the suit for partition. This is strongly

refuted by the learned counsel for the applicant who submits that the

applicant was kept in the dark throughout, and that though the applicant

is the absolute owner of property bearing Khasra No.27 measuring 125

sq. yards, the husband of the applicant instead of protecting her interest

is, in connivance with his brothers, seeking to oust her from her

property. It is also submitted that the suit property was purchased by

the applicant from her mother-in-law Smt. Mewa Devi for a

consideration of Rs.62,500/- and Smt. Mewa Devi had executed a

registered Sale Deed in favour of the applicant in respect of the

aforesaid property.

8. A perusal of the judgment of the learned trial court shows that in

paragraph 25 of the aforesaid judgment the trial court had observed that

the defendants had not placed any document on record to show that

Khasra No.27, measuring 125 sq. yards had been purchased by the

defendant No.4, Shri Ashok Kumar and for this reason the trial court

had proceeded to opine that the said property along with the other suit

property was liable to be partitioned in equal shares between the parties.

The applicant herein claims to be the absolute owner of the property by

virtue of a registered Sale Deed which has been filed by her along with

her application. In this view of the matter, her impleadment in the suit

for partition must be allowed and is accordingly allowed.

9. The application stands disposed of with the direction to the

plaintiff to file an amended memo of parties before the learned trial

court. The matter is remanded to the learned trial court to be considered

in the light of the averments made by Smt. Archana Devi and the sale

deed placed on record by her. Smt. Archana Devi shall file her written

statement on or before the next date of hearing.

10. List before the learned trial court on 15th March, 2010 for

consideration.

RFA 140/2007

In view of the application under Order I Rule 10 CPC having

been allowed, the appeal as also CM Nos..3590/2007 and 3591/2007

stand disposed of.

REVA KHETRAPAL,J January 8, 2010 km