Anshumalee Sood vs Din Dayal Sood And Anr.
2013 Latest Caselaw 5219 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Order delivered on: November 18, 2013

+                     CM(M) 1089/2012 & CM No.17210/2012

        ANSHUMALEE SOOD                                    ..... Petitioner
                    Through           Mr.Ashish Mohan, Adv. with
                                      Mr.Chetan Rai, Adv.

                           versus

        DIN DAYAL SOOD AND ANR                    ..... Respondents
                     Through  Mr.K.S. Patharia, Adv. for R-1.
                              Mr.Yogendra Kumar, Adv. for R-2.
        CORAM:
        HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J.

1. Smt. Sudarshana Kumar Blagan/respondent No.2 herein (plaintiff in the suit) in the year 1984 filed a suit for partition of immoveable property bearing No.I-13, Jangpura Extension, New Delhi-110014, before the Additional District Judge, Delhi, against the defendants namely Smt.Tulsan Devi, Sh.Din Dayal Sood and Smt.Devi Kumari Sood. The said suit was contested by all the parties.

2. On 9th August, 1984 Smt.Tulsan Devi (original defendant No.1) maternal grandmother of the petitioner herein died. On 5 th October, 2007 Smt.Dev Kumari Sood (original defendant No.3) died and her son Shri Anshumalee Sood, petitioner herein, was impleaded as legal heir in the year 2009. On 15th April, 2010 a transfer petition, being Transfer Petition No.53/3009, filed by the petitioner herein seeking transfer of the suit to Sought District was dismissed by this Court.

3. On 19th May, 2010 the suit for partition was decreed awarding 25% share each to the two daughters namely Smt.Dev Kumari Sood through legal representative (petitioner herein) and Smt.Sudershana Kumari Blagan, respondent No.2 (original plaintiff in the suit).

4. Being aggrieved by the said order, the petitioner, legal representative of Smt.Dev Kumari Sood, filed an appeal, being RCA No.125/2010, before District Judge, East, Karkardooma Court, Delhi. Similarly, respondent No.2 Smt.Sudershana Kumari Blagan (original plaintiff in the suit) filed an appeal, being RCA No.124/2010, before the District Judge, East, Karkardooma Court, Delhi. Respondent No.1 herein Sh.Din Dayal Sood (original defendant No.2 in the suit) filed an appeal, being RCA 16/2010, renumbered before the District Judge, South, Patiala House Court, Delhi, which is now pending in the Saket Court.

5. On 15th November, 2010 the respondent No.1 withdrew the transfer petition, being Transfer Petition No.41/2010, filed by him seeking transfer of the appeals, being RCA No.125/2010 filed by the petitioner and RCA No.124/2010 filed by the respondent No.2, from East District to South District. Additional District Judge decided the said appeals and awarded 1/3rd share each to the surviving heirs of late Sh.Mela Ram Sood namely Smt.Dev Kumari Sood (original defendant No.3) through legal representative, Smt. Sudershana Kumari Blagan (plaintiff) and Sh.Din Dayal Sood (original defendant No.2).

6. It is not in dispute that the suit being a partition suit, every party is in the position of a plaintiff. The determination of shares by the first appellate Court i.e. Additional District Judge in the above said appeals constitutes a binding judgment for all the three parties.

7. Both the respondents No.1 and 2 being aggrieved by the judgment and order dated 27th April, 2011 have filed second appeals before this Court, being RSA Nos.159, 163, 171, 172 & 173 of 2011, which are pending consideration.

8. In the meanwhile, the learned ADJ, Saket Court, has by the impugned order dated 23rd August, 2012 held that he has jurisdiction to consider and adjudicate the appeal filed by the respondent No.1, being RCA No.16/2010. The petitioner herein has challenged the said order before this Court.

9. The main contention of the petitioner is that the Additional District Judge, South, has no jurisdiction to sit in appeal over the findings and determination made by the learned Additional District Judge, East. The findings of the Additional District Judge, East, arising from the same partition suit would unequivocally be binding upon the Additional District Judge, South. There is nothing left for the Additional District Judge, South to decide a factor which has not at all been taken into account while passing the impugned order.

10. The respondent No.1 has opposed the prayer of the petitioner and has raised the following pleas:

a) By notification dated 28th June, 2008, Government of NCT of Delhi created/constituted Nine Civil Districts and pursuant to the same, this Court by notification dated 24th October, 2008 made the Sough Civil District functional at Patiala House with effect from 1st November, 2008. It is submitted that on 1st July, 2010 appeal No.16/2010 was filed by the respondent No.1 at Patiala House and later the South City Civil Courts were shifted to Saket Courts Complex and accordingly this appeal was also shifted to Saket

Courts Complex on the functioning of the courts from the said complex. Therefore, the impugned order passed by the learned Additional District Judge is proper and as per law.

b) That the filing of the appeal in South Delhi Court in respect of the cases pertaining to property situated in South Delhi is not barred by any order and notification or under the provisions of Civil Procedure Code.

c) The filing of the appeals by the petitioner and respondent No.2, being RCA No.124/2010 and 125/2010, at Karkardooma, Delhi, would not take away the jurisdiction of South Delhi Court and because the said appeals were contested by the respondent No.1 at Karkardooma Court would not amount to waiving of the right to file an appeal before the competent court having jurisdiction.

11. After having considered the rival submissions of the parties there is no dispute between the parties that the respondents No.1 and 2 have filed the second appeals before this Court, being RSA Nos.159, 163, 171, 172 & 173 of 2011 and they had also contested the appeals being RCA No.124/2010 and RCA No.125/2010. No doubt, this Court is to decide in the said second appeals as to whether the shares of the parties have been correctly determined by the judgment and order dated 27th April, 2011 passed in RCA No.124/2010 and RCA No.125/2010 wherein the parties including respondent No.1 willingly participated and contested.

12. I agree with the submission of the learned counsel for the petitioner and in view of the facts and circumstances of the case that virtually there is nothing left for the Additional District Judge, South, to decide the fate of the appeal filed by the respondent No.1, being RCA No.16/2010 in view of the

pendency of the second appeals which are pending before this Court. Under these circumstances, I feel that at present it would be appropriate that the appeal filed by the respondent No.1, being RCA No.16/2010, be adjourned sine die till the disposal of the second appeals, being RSA Nos.159, 163, 171, 172 & 173 of 2011 and if necessary, the same be revived in accordance with law. The present petition and pending applications are accordingly disposed of.

(MANMOHAN SINGH) JUDGE NOVEMBER 18, 2013