Shri Bhim Singh & Others vs Shri Billu & Others
2011 Latest Caselaw 1138 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               RFA No.504/2001


%                                                 24th February, 2011

SHRI BHIM SINGH & OTHERS                                ...... Appellants
                    Through:          None

                          VERSUS


SHRI BILLU & OTHERS                                     ...... Respondents
                          Through:    Mr. S.P. Pandey, Advocate with Ms.
                                      Rashmi Pandey, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    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 the Digest?


VALMIKI J. MEHTA, J (ORAL)

1.            This case is on the „Regular Board‟ of this Court since 17.1.2011

and today it is effective item No.14 on the „Regular Board‟. No one appears

for the appellants although it is 2.40 P.M. I have therefore heard the learned

counsel for the respondents and have perused the record and am proceeding

to dispose of the appeal.

2.            The challenge by means of this Regular First Appeal under

Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned

judgment and decree dated 11.10.2001 whereby the suit for partition and
RFA No.504/2001                                                   Page 1 of 4
 mesne profits with respect to the immovable property being the House

situated in Khasra No.252/84/1 and 253/84/1 both measuring 1 Bigha and 11

Biswas situated in Jheel Khuranja was dismissed.              The suit has been

dismissed on two grounds. The first ground was that the daughters being

entitled to a share were necessary parties but were not made parties to the

suit. The second ground was that there was a partition of the joint family

property whereby the parties were enjoying their respective shares since

1954.

3.            The trial Court framed the following issues:-

               "1.   Whether the plaintiffs No.1 and 2 are entitled to 1/3 rd
        share in the suit property?
               2.    Whether the plaintiffs are entitled for partition of the
        suit property?
               3.    Whether the plaintiffs are entitled to any mesne profits?
        If so, at what rate and for what period?
               4.    Relief?"

4.            With regard to issue No.1, trial Court has rightly held that merely

because a daughter cannot claim partition of a residential house cannot

mean that a share will not be inherited by the daughter.           Daughter was

therefore rightly held to be a necessary party and since there was no

impleadment of the necessary parties the suit was dismissed because the

daughter of Sukhdev, Smt. Nando would have inherited 1/4th share in the

property, Smt. Bhimo would have inherited 1/3rd of the 1/4th share of Kale

Ram and Smt. Heero and Prem who would have inherited 1/6 th share each of

the 1/4th share of Rizak Ram and Smt. Shanti would have inherited 1/3rd of

the 1/4the share of Sh. Ramji Lal were not made parties to the suit.             No
RFA No.504/2001                                                    Page 2 of 4
 interference is called for with respect to this finding of the trial Court and in

any case now Section 23 of the Hindu Succession Act, 1956 stand repealed

from the statute book.

5.          The second issue was issue No.2 in which the trial Court has held

that plaintiffs were admittedly lesser than 11 years of age when their father

had died and they were brought up by their uncles. Admittedly since 1954

different parties have been in physical possession and enjoyment of different

portions of the residential property, and which therefore      was a clear cut

pointer to the fact that the portion in their possession were in lieu of their

shares which fell to them on partition. This finding of the trial Court calls for

no interference because in reality if there was no partition in the year 1954,

the plaintiffs would not have waited for over 40 years to claim partition, and

in any case more than 30 years after they became major. The trial Court has

also rightly disbelieved the stand of the plaintiff that they were forcibly

dispossessed from the shops inasmuch as no proof at all was filed that they

were in possession of the four shops of which the plaintiff was dispossessed.

To this, I may add that possession of an immovable property is a very

valuable right and in reality if the plaintiffs were allegedly dispossessed,

then, the plaintiffs would have surely filed an FIR to complain about

dispossession and which admittedly is not the position.

6.          In view of the above, I do not find any reason to interfere with

the impugned judgment and decree.        The appeal being devoid of merit is


RFA No.504/2001                                                   Page 3 of 4
 dismissed, leaving the parties to bear their own costs. Interim orders are

vacated. Trial Court record be sent back.




FEBRUARY 24, 2011                            VALMIKI J. MEHTA, J.

Ne