Kamal Kant Kataria & Anr vs Rupendra Kataria & Ors
2017 Latest Caselaw 7102 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           RFA No. 722/2017
%                                                 8th December, 2017

KAMAL KANT KATARIA & ANR                               ..... Appellants

                            Through:     Mr. Arvind Kr. Gupta and Mr.
                                         Gautam Choubey, Advocates.

                            versus

RUPENDRA KATARIA & ORS                                 ..... Respondents

                            Through:     Mr. Mohinder Mohan, Adv. for
                                         R-1 with R-1 in person.

                                         Mr. R.S.Kela, Adv. for R-2

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

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This Regular First Appeal under Section 96 CPC is filed by

the defendant nos.1 and 2 in the suit/brothers impugning the judgment of

the trial court dated 18.4.2017 by which the trial court has passed a final

decree with respect to a total of four properties as stated in para 9 of the

impugned judgment. This para 9 of the impugned judgment reads as

under:-

"(9) This being the background and in view of the no objection given by the plaintiff and the defendant no.1 and

2, the final decree is being passed in respect of all the immovable properties left behind by late Hari Chand Kataria i.e property No.B-201, Derawal Nagar, Delhi- 110007 (154 square yards); property No.A-155, Nehru Kutia, Malkaganj, Delhi (30 to 40 square yards); property No. 242, Main Bazar, Subzi Mandi, Delhi and property at Bhagirath Place. I now proceed to decide the possible modes of partition of the said properties as under:"

2. Learned counsel for the appellants/defendant nos. 1 and 2

contends that the property situated at 242, Main Bazar, Subzi Mandi,

Dahiwala Katra, Delhi is a property in the exclusive ownership of the

appellants/defendant nos. 1 and 2 and the trial court by the impugned

judgment could not have passed a preliminary and final decree without

any trial for this property simply by showing this property as being in the

hotchpotch of the properties belonging to the father of the parties i.e it is

argued that a partition decree can be passed only with respect to a

property which is admitted to be of the father of the parties, and no

decree can be passed with respect to a property which is not admitted to

be of the father of the parties but is pleaded to be the exclusive and self-

owned property of the appellants/defendant nos. 1 and 2. It is further

argued that there was no trial and no finding of the property no. 242,

Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi being the property of

the father and available for partition to his children who were the parties

to the suit. It is argued that without deciding disputed questions of fact

the property no. 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi

being or being not the property of the father, this property could not have

been held to be a property of which preliminary and final decree could be

passed.

3. Learned counsel for the respondents very fairly concedes

that in an affidavit filed by the appellants/defendant nos.1 and 2 it was

not admitted that the property 242, Main Bazar, Subzi Mandi, Dahiwala

Katra, Delhi belonged to the father Late Sh. Hari Chand Kataria and in

this affidavit the Subzi Mandi property has been stated to be exclusively

owned property of the appellants/defendant nos. 1 and 2. Therefore, in

my opinion, this property could not be held to be of the father without

evidence being led by the parties as to whether or not this property is

belonged to the father or belonged exclusively to the

appellants/defendant nos. 1 and 2.

4(i) Learned counsel for the respondent no.1/plaintiff states that

one other error has also been committed by the trial court while passing

the impugned judgment by adding the property bearing no. 1840/1,

Bhagirath Place, Delhi as a property of the father because in fact the

respondent no.1/plaintiff nowhere had admitted that this property was a

property of the father and therefore was available to all the children of

the father after the death of the father intestate. It is argued that the sale

deed of this Bhagirath Place property is in the name of the respondent

no.1/plaintiff, and therefore, this property was not the property of the

father.

(ii) In the opinion of this Court even so far as this Bhagirath

Place property there could not be a preliminary and final decree passed

without trial and without deciding the issue that whether or not this

Bhagirath Place property belonged to the father Late Sh. Hari Chand

Kataria or was exclusively owned by the respondent no.1/plaintiff.

5. The sequitur of the aforesaid discussion is that the

impugned judgment will stand as a final decree of partition with respect

to the two properties namely B-201, Derawal Nagar, Delhi (154 square

yards), property No.A-155, Nehru Kutia, Malkaganj, Delhi (30 to 40 sq.

yds) but the preliminary and final decree will not operate with respect to

the two properties which are claimed by the appellants/defendant nos. 1

and 2 and respondent no.1/plaintiff as their exclusive properties, namely

242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi and 1840/1,

Bhagirath Place, Delhi.

6. It is also noted that the final decree will however stand

passed with respect to movable properties which are subject matter of the

impugned judgment as there is no dispute for the same.

7. Accordingly, the impugned judgment and decree is set

aside to the extent of the aforesaid two properties namely 242, Main

Bazar, Subzi Mandi, Dahiwala Katra, Delhi and 1840/1, Bhagirath Place,

Delhi pleaded to be in the exclusive ownership of the

appellants/defendant nos. 1 and 2 and respondent no.1/plaintiff, and that

whether the stands of the appellants and respondent no.1/plaintiff are

correct as regards these two properties which they claim to be in

exclusive ownership or whether these properties belong to the father, will

be aspects on which issues will be framed and these issues will be

decided after parties are given opportunity to lead evidence in support of

their respective cases.

8. Accordingly the impugned judgment and decree dated

18.4.2017 is set aside to the extent as stated above. With respect to the

properties at 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi and

1840/1, Bhagirath Place, Delhi trial court will now give opportunities to

the parties to file documents, and thereafter the issues will be framed

with respect to the aforesaid two properties and which issues will be

decided after trial and giving opportunity to the parties to prove their

cases in accordance with law.

9. Parties to appear before the District and Sessions Judge,

Central, Tis Hazari Courts, Delhi on 16.1.2018 and the District and

Sessions Judge will now mark the suit for disposal to a competent court

in accordance with law and the observations made in the present

judgment.

10. The appeal is accordingly allowed and disposed of to the

extent as stated above.

11. As agreed to by the counsels for the parties let the parties

appear before the Delhi High Court Mediation and Conciliation Centre

on 20.12.2017 at 4.00 PM inasmuch as there is a possibility of the

disputes of the parties being resolved by settlement out of Court.

VALMIKI J. MEHTA, J

DECEMBER 08, 2017/ib