Delhi High Court
Tara Chand Gaur vs Satish Chand Sharma & Anr. on 13 December, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 906/2016
% 13th December, 2018
TARA CHAND GAUR
..... Appellant
Through: Mr. Arvind Bhatt, Advocate
with Mr. Kuber Giri, Advocate
(M. No.9810354101).
versus
SATISH CHAND SHARMA & ANR.
..... Respondents
Through: Ms. Amrit Kaur Oberoi,
Advocate (M. No.9899347698).
CORAM:
HON'BLE MR. JUSTICE VALMIKI J. MEHTA
To be referred to the Reporter or not? YES
VALMIKI J. MEHTA, J (ORAL)
1. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
impugning the Judgment of the trial court dated 09.09.2016 by which
the trial court has dismissed the suit for partition by deciding three
preliminary issues against the appellant/plaintiff. The three
preliminary issues pertained to the bar of limitation to filing of the
suit, proper court fee not having been paid and the necessary parties,
being the sisters of the appellant/plaintiff, not joined as parties.
2. The facts of the case are that the subject suit for partition
was filed for the property no. J-111A, Main Road 4th Pusta, Kartar
Nagar, Delhi-110053 which was said to have been owned by the
mother of the appellant/plaintiff, Smt. Angoori Devi. Smt. Angoori
Devi is also the mother of the two defendants in the suit. It was
pleaded in the plaint that Smt. Angoori Devi expired intestate and she
left behind three sons and four daughters. The suit was only against
two sons because the appellant/plaintiff pleaded that the sisters, i.e.
daughters of Smt. Angoori Devi, had given up their shares in favour of
the three brothers being the three parties to the present suit.
Accordingly, the appellant/plaintiff claimed the relief of partition,
injunction etc.
3. It is trite that when a preliminary issue is decided, the
same is decided by taking the contents of the plaint as correct. At the
stage of decision of the preliminary issue, parties have not led their
evidence and the suit is not decided at the stage of final arguments,
after all the parties have led their evidence on disputed questions of
fact. It is therefore to be seen that whether the suit could have been
dismissed by taking three issues of limitation, deficiency of court-fee
and non-joinder of necessary parties as preliminary issues.
4. So far as the aspect of non-joinder of necessary parties
being sisters of the parties, counsel for the appellant/plaintiff states
that appellant/plaintiff be allowed to join the sisters as the defendants
in the suit though it is pleaded that the sisters have relinquished their
shares in favour of the brothers. It is argued that even if the sisters
were not added, the suit could not have been dismissed because it was
only if the appellant/plaintiff after leading evidence had failed to prove
the relinquishment by the sisters, only then the appellant/plaintiff
would have failed in the suit for partition, otherwise, the trial court
would have at the stage of final arguments, after evidence was led,
held that the relinquishment has been proved by the sisters and
therefore they were not necessary parties. In any case, now since the
appellant/plaintiff admits that the four sisters will be added as
defendants to the suit, it is ordered accordingly, and the
appellant/plaintiff will now file before the trial court on remand of the
suit, an amended memo of parties alongwith the amended plaint, and
notices will now be issued to the four sisters of the parties who would
also be the defendants in the suit.
5. So far as the issue of limitation is concerned, the trial
court has committed a complete illegality in holding that the limitation
for filing a suit for partition is three years from the date the cause of
action arose. A partition suit is a suit by which a person claims his
share in an immovable property. With respect to such a suit,
limitation will be a period of 12 years as per Article 65 of the
Limitation Act, 1963 and this period of limitation will commence
when the defendants in the suit plead and prove that they have denied
the title of the appellant/plaintiff in the suit property earlier than 12
years from filing of the suit for partition. Therefore, this aspect is a
disputed question of fact as to whether or not the
respondents/defendants will or will not prove that they have denied the
title of the appellant/plaintiff 12 years prior to the filing of the suit.
Once there is a disputed question of fact, the contents of the written
statement cannot be taken as proved at the stage of deciding the
preliminary issue, inasmuch as and as already stated above, a
preliminary issue is decided not at the stage of final arguments after
the parties have completed their evidence, but on admitted facts
arising from the record. Therefore, this finding of the trial court is set
aside that the suit was barred by limitation inasmuch as this issue of
limitation is a disputed question of fact and could only have been
decided at the stage of final arguments after all the parties had led
evidence.
6. So far as the third aspect of the court-fee having not been
paid is concerned because the appellant/plaintiff has only affixed a
court fee of Rs. 20/-, once again, the trial court has erred in holding
that since the appellant/plaintiff had valued the suit at Rs. 1 crore, and
he was not in possession of the suit property, therefore, the
appellant/plaintiff was liable to pay court-fee on his 1/3rd share. In
law, when a partition is sought by a co-owner, court-fee which is
payable is a fixed court-fee in terms of Schedule II, Article 17 (vi), of
the Court-fees Act, 1870 inasmuch as every co-owner is either in
actual physical possession of whole or part of the property or in law
has to be taken in deemed possession or constructive possession of the
co-owned property. If a defendant is a co-owner who is in actual
physical possession of the complete property, even then, the
possession of one or more such co-owners who are defendants in
possession, the possession is for and on behalf of all co-owners
including the plaintiff(s), and whether there exists exclusive
possession of the respondents/defendants and the same acts as an
ouster of the plaintiff(s) is a question of fact, and only when this
question of fact is proved by the respondents/defendants by leading
evidence, it can be held that the appellant/plaintiff was not in
possession, physical or constructive, of the suit property, so that court-
fee is payable for the 1/3rd share as claimed by the appellant/plaintiff.
In fact, this issue of court-fee is very much inter-linked with the issue
of limitation because the appellant/plaintiff is not in possession, and
both are factual issues which will have to be proved by the
respondents/defendants that the appellant/plaintiff was not in physical
possession of the suit property and ouster has been proved against the
appellant/plaintiff by respondents/defendants after leading evidence.
7. In view of aforesaid discussion, this appeal is allowed.
Impugned Judgment of the trial court dated 09.09.2016 is set aside.
The appellant/plaintiff will implead the sisters as defendants in the suit
and file amended memo of parties, as also the amended plaint before
the trial court. It is held that issue of limitation and requirement of
filing ad valorem court-fee being factual issues will be decided at the
stage of final arguments after parties have led evidence.
8. Parties to appear before the District & Sessions Judge,
North East, Karkardooma Courts, Delhi on 23rd January, 2019 and the
District & Sessions Judge will now mark the suit for disposal to a
competent court in accordance with law and the observations made in
the present order.
DECEMBER 13, 2018 VALMIKI J. MEHTA, J
Ne
