Delhi High Court
Sh. Hari Prakash Sharma & Ors. vs Smt. Lado Devi & Ors. on 9 November, 2010
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
CM (M) Nos. 1201/2010 & CM No. 16773/2010
% Judgment reserved on: 17th September, 2010
Judgment delivered on: 09th November, 2010
1. Sh. Hari Prakash Sharma (deceased)
S/o Late Shri Kehar Singh Sharma,
Through Legal Heirs.
2. Sh. Trilok Sharma,
S/o Late Sh. Hari Prakash Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
3. Sh. Mukesh Sharma,
S/o Late Sh. Hari Prakash Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
4. Sh. Yogesh Sharma,
S/o Late Sh. Hari Prakash Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
5. Smt. Vimla Devi.
w/o Late Sh. Hari Prakash Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
6. Smt. Seema Sharma,
D/o Late Sh. Hari Prakash Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
....Petitioners
CM (M) No. 1201/2010 Page 1 of 13
Through: Mr. Vaibhav Gaggar, Adv.
Versus
1. Smt. Lado Devi (deceased)
W/o Late Shri Kehar Singh Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
2. Smt. Kusum Lata,
D/o Late Shri Kehar Singh Sharma,
R/o H. No. 240, Hari Nagar,
Ashram, New Delhi-110040.
Presently at;
R/o H. No. 703, Dayal Pura,
Karnal, Haryana.
3. Smt. Shiksha Devi Sharma,
W/o Sh. Arvind Kumar,
R/o Rajkiya Senior Secondary School,
Ismailabad, Distt, Kurukshetra,
Haryana.
4. Smt. Raksha Devi Sharma,
W/o Sh. Hari Ram,
R/o Village Dagripur, Karnal,
Haryana.
5. Smt. Nirmala,
W/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
6. Smt. Sangeeta Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
CM (M) No. 1201/2010 Page 2 of 13
7. Smt. Sunita Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
8. Smt. Tripta Anand Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
9. Ms Meenu Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
10. Ms. Meenakshi Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
11.Ms. Poonam Sharma,
D/o Late Ved Praksh Sharma,
R/o Room No. 296, RCS Colony Type II,
Building No. 21, Chambur-400074.
12.Shri Rajesh Kumar Saini,
S/o Sh. Nathu Ram Saini,
R/o H. No. 281, Hari Nagar Ashram,
New Delhi-110014.
....Respondents
Through: Nemo.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
CM (M) No. 1201/2010 Page 3 of 13
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
V.B.Gupta, J.
This petition under Article 227 of the Constitution of India has
been filed on behalf of petitioners seeking quashing of orders dated 7th
August, 4th September, and 8th September, 2010, passed by Additional
District Judge, Delhi.
2. Brief facts as emerges from record are that in year 1997, a suit
for partition of property bearing no. 240, Hari Nagar, Ashram, Delhi
was filed by respondents no. 1 to 3 against petitioner no. 1 and
respondents no. 4 to 11.
3. Petitioner no. 1 (since deceased) was proceeded ex-parte in the
suit. A preliminary decree was passed by Additional District Judge,
Delhi on 15th January 1998 and a Local Commissioner was appointed
to visit the spot and partition the suit property.
4. On 30th July, 1998, Additional District Judge passed the final
decree for partition on the basis of report submitted by the Local
Commissioner.
5. Since, respondents/decree holders did not pay the fee of the
Local Commissioner, therefore, Local Commissioner, could not visit
the suit property as directed. On 13th December, 2005, application of
respondents/decree holders was dismissed for non prosecution.
6. During pendency of the proceedings, Smt. Lado Devi
(respondent no.1) died. However, in her life time she bequeathed her
share in the property to respondent no. 2 (Smt. Kusum Lata) vide
registered Will. Now, Smt. Kusum Lata holding two shares i.e. 1/6th
of herself and 1/6th of Smt. Lado Devi, Smt. Shiksha Devi (respondent
no. 3), Smt. Raksha Devi (respondent no. 4) holding 1/6th share each,
Smt. Nirmala, Smt. Sangeeta Sharma, Smt. Sunita Sharma, Smt.
Tripta Anand Sharma, Ms. Meenu Sharma, Ms. Meenakshi Sharma
and Ms. Poonam Sharma (respondents no. 5 to 11 respectively) all
legal heirs of Ved Prakash Sharma, jointly holding 1/6th share in the
said property, have sold their undivided shares in favour of Shri
Rajesh Kumar Saini (respondent no. 12) for consideration and have
executed Sale Deed of their respective undivided shares in his favour.
7. During this period, petitioner no. 1 (Hari Prakash Sharma) also
died, leaving behind his wife Smt. Vimla Devi Sharma (petitioner no.
5) three sons namely, Trilok Sharma, Mukesh Sharma, Yogesh
Sharma (petitioners no. 2 to 4) and daughter Smt. Seema Sharma
(petitioner no. 6), who are in possession of the suit property.
8. After purchasing the shares in the above mentioned property,
respondent no. 12 got served a legal notice on the legal heirs of Late
Hari Prakash Sharma, who are in possession of the property, calling
upon them to vacate 5/6th shares of the suit property and hand over
possession of the same to him being co-sharer, having purchased 5/6th
share by virtue of registered Sale Deeds dated 19.5.2008 and
22.5.2008. However, said legal heirs of Late Sh. Hari Prakash
Sharma, have neither vacated nor handed over 5/6th share of the suit
property.
9. Respondent no. 12 also offered the legal heirs of Late Sh. Hari
Parkash, to purchase their share and pay market price but they have
refused to sell their 1/6th share to him. Respondent no. 12 is still ready
to pay L.Rs of Sh. Hari Parkash, market price of their share.
10. Accordingly, respondent no. 12, filed an application under
Section 50 read with Section 151 of the Code of Civil Procedure (for
short as „Code‟) for appointment of Local Commissioner to partition
the suit property in terms of order dated 30th July, 1998 and put him in
possession of his share of the suit property.
11. Trial court, vide order dated 7th August, 2010, allowed the
application and appointed a Local Commissioner and directed her to
effect the partition of the property, as per order dated 30th July, 1998.
12. Respondent no. 12, thereafter filed an application under Section
151 of the Code, for providing Police help to execute order dated
7th August, 2010, which was allowed, vide order dated 4th
September, 2010.
13. In the meanwhile, petitioners filed an application under Section
4 of the Partition Act, 1893 (for short as „Act‟) praying that they be
given liberty to repurchase the undivided share in the suit property
from purchaser Sh. Rajesh Kumar Saini (respondent no. 12) at a fair
price as determined by the Court. This application had been kept
pending by the trial court and was fixed for 8 th September, 2010 for
disposal. Meanwhile, petitioners filed this petition challenging the
above three impugned orders.
14. It is contended by learned counsel for the petitioners that
impugned orders passed by the trial court are totally perverse and
contrary to the facts and evidence on record. The Court below has
erred in fulfilling the mandatory requirement under Order 21 Rule 22
of the Code whereby petitioners have not been made a party nor they
have received any notice under the said order.
15. Other contention is that, vide order dated 7th August, 2010, trial
court appointed a Local Commissioner to partition the suit property as
per order dated 20th July, 1998 and also recorded that the respondent
no. 1 had executed a Sale Deed in respect of her share in the suit
property in favour of respondent no. 12, however, no Sale Deed till
date exists between respondents no. 1 and 12.
16. Another contention is that application moved on behalf of
petitioners under Section 4 of the Act has not been considered by the
trial court, since they are willing to purchase the undivided share in
the suit property.
17. In support of its contention, learned counsel cited following
judgments;
(i) S. P. Chengalvaraya Naidu (Dead) By LR's Vs.
Jagannath (Dead) By LRs & Ors.,
1993 (4) SCALE 277;
(ii) V. Uthirapathi Vs. Ashrab Ali and Ors,
(1998) 3 SCC 148;
(iii) Hurmat Bibi and Ors. Vs. Prodosh Kumar Bajpayee
and Anr.
1988 (Supp) SCC 507;
(iv) Kalipatnapu Atchutamma Vs. Kommana Sambamurthy
(Died) PER LRs,
2003-ALT-3-82 and
(v) S.K. R. A. K. N. Athappa Chettior and Ors. Vs. S.K. A.
R. K. Somasundaram Chettiar and Ors.
AIR 1944 Mad 428.
18. At the outset, it is pertinent to point out that till date, petitioners
have not challenged the order dated 15th January, 1998 of the
Additional District Judge, passed against their predecessor-in-interest,
vide which preliminary decree of partition was passed, as well as
Local Commissioner was appointed to visit the spot and partition the
property in suit.
19. On 30th July, 1998, Additional District Judge passed the final
decree for partition on the basis of report submitted by the Local
Commissioner, which read as under;
"As per the report, the property consists of six
portions as detailed in para 9 (a to f). In this
regard, site plan has also been filed by the Ld.
Local Commissioner. I have given a considerable
thought to the repot of L.C. and agree that the
division as such is best possible and all the co-
sharer can get their due share by way of this
partition. I, therefore, pass a final decree thereby
partitioning the suit property as per the report of
the L. C. given in para (a to f). The division as
such be made by the L. C. appointed in this case
by again visiting the spot, as per the choice of the
parties and if it is not possible and anybody raises
objection as regards the particular portion, then the
division be made by lottery system and/or by
holding draw of lots and this exercise be also done
by the L. C. in presence of all the parties after
giving them notice of her visit at the spot."
20. Judgment dated 30th July, 1998 was also never challenged by
the petitioners. Accordingly, order dated 15th January, 1998 and
judgment dated 30th July, 1998 have become final.
21. Trial court, vide impugned order dated 7th August, 2010
allowed respondent‟s no. 12 application under Section 50 read with
Section 151 of the Code. Accordingly, it appointed a Local
Commissioner and directed her to effect the partition of the property
in terms of order dated 30th July, 1998. In its impugned order trial
court observed;
"It appears that non-applicant (petitioner) have
taken such plea only to delay the disposal of the
application or execution of the partition decree."
22. Trial court also relied upon the decision of Supreme Court in
Kartar Singh Vs. Harjinder Singh and Ors, AIR 1990 Supreme
Court 854, wherein the court observed;
"Whenever a share in the property is sold the
vendee has a right to apply for the partition of the
property and get the share demarcated."
23. Trial court also observed that at this stage the objections are not
being adjudicated but only a Local Commissioner is being appointed
in terms of order dated 30th July, 1998. Hence, it appointed a Local
Commissioner and adjourned the matter for 4th September, 2010.
24. On application of respondent no. 12, seeking Police aid for
executing order dated 7th August, 2010, trial court vide its order dated
8th September, 2010, directed the Police to provide adequate security
to the Local Commissioner.
25. Present petition has been filed under Article 227 of the
Constitution of India. It is well settled that jurisdiction of this Court
under this Article is limited.
26. In Waryam Singh and another vs. Amarnath and another,
AIR 1954, SC 215, the court observed;
This power of superintendence conferred by
Article 227 is, as pointed out by Harries, C.J., in
- „Dalmia Jain Airways Ltd. V. Sukumar
Mukherjee‟, AIR 1951 Cal 193 (SB) (B), to be
exercised most sparingly and only in appropriate
cases in order to keep the Subordinate Courts
within the bounds of their authority and not for
correcting mere errors."
27. In light of principles laid down in the above decision, it is to be
seen as to whether present petition under Article 227 of the
Constitution of India against impugned order is maintainable or not.
28. After going through the record it is apparent that there is no
ambiguity or illegality in the impugned order dated 7 th August, 2010,
appointing a Local Commissioner and order dated 8 th September,
2010 for providing necessary Police aid to Local Commissioner.
29. As far as application under Section 4 of the Act, filed on behalf
of present petitioners is concerned, part arguments on this application
was heard and in its order dated 4th September, 2010 trial court made
the following observations;
"During the course of arguments, ld. counsel for
DH submits that let JD make offer for the price to
buy the share of the DH. If DH is able to make
offer of high value then DH is ready to purchase
share of the JD.
Ld. counsel for JD is not able to make any offer
for the price and in these circumstances when JD is
not able to make offer, let JD file reply to the
application under Section 151 of CPC and
application under Section 4 of the Partition shall
remain kept pending. JD shall file reply on the
next date and shall supply advance copy of reply to
DH within three days. Failing which JD shall be
burdened with a cost of Rs.1000/-.
Relist this case on 08.09.2010 for disposal of
application."
30. Thus, as apparent from the record, application under Section 4
of the -Act filed by petitioners, has not yet been disposed of.
31. Under these circumstances, it is ordered that the trial court shall
dispose of application under Section 4 of the Act filed on behalf of
petitioners, within two weeks from receipt of the present order.
32. Parties shall be at liberty to challenge the same in accordance
with the provisions of law.
33. With these observations, present petition stands disposed of.
34. Copy of this order be sent to the trial court forthwith.
35. Both the parties are directed to appear before the trial court on
15th November, 2010.
November 09, 2010 V.B.GUPTA, J.
ab
