Gurpinder Pal Singh vs Jagjit Singh And Ors
2024 Latest Caselaw 17502 P&H

Punjab-Haryana High Court

Gurpinder Pal Singh vs Jagjit Singh And Ors on 20 September, 2024

                                          Neutral Citation No:=2024:PHHC:125139




CR-5250-2024
        2024 (O&M)               1




            IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

     116                                             CR-5250-2024 (O&M)
                                                     Decided on: 20.09.2024

     Gurpinder Pal Singh

                                                            ...Petitioner

                                        Versus

     Jagjit Singh and others
                                                            ...Respondents



     CORAM: HON'BLE MRS JUSTICE RITU TAGORE

     Present:     Mr. Arvind Kashyap, Advocate
                  for the petitioner.

                  Mr. Aman Bahri, Advocate
                  for respondents No.1, 2, 3(a) and 3(b).

                                 ****

RITU TAGORE, TAGORE J.

1. This revision is directed against the order dated 21.08.2024

(Annexure P-1), P passed by Additional Civil Judge (Senior Division),

Chandigarh,, whereby objections filed by the petitioner to the passing of final

decree in a partition suit, suit were dismissed.

2. Learned counsel contends that respondents No.1 to 3 (plaintiffs plaintiffs

before learned trial Court) filed a suit for inju injunction and, alternatively, for a

partition and possession, possession against the petitioner (defendant No.2 before

learned trial Court) and respondent No.4. The suit was partly decree decreed d on

12.04.2018 vide judgment and decree dated 12.04.2018 (Annexure P P-2), and

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a preliminary decree for partition of subject house was passed, granting ing 25%

share to respondent No.4 and to other respondents No.1 to 3 as specified,,

with further directions to partition the subject house as detailed in the decree.

3. The learned counsel submits that respondents No.1 to 33, filed

an application (Annexure P-3) P 3) for passing final decree. The petitioner filed

reply/objections (Annexure P-4) P inter aliaa raising the plea that issue of

partition can be settled between the parties, being co co-owners. It is stated that

the learned Court dismissed the objections and issued warrant of sale, fixing

the schedule..

4. The learned counsel contends that order is against the

provisions of law. Section 3 of the Partition Act Act, 1893 allows the

shareholders to first bid amongst themselves for the property, and this aspect

was not considered. The objections were dismissed, and the property was

wrongfully ly put up for sale. It is also contended that the learned trial Court

did not provide any mode of auction, and a valuation of the property was

also not called for. Furthermore,, expenses incurred by the petitioner on the

first and second floor were not adjusted.. It is contended that mode of

partition must be determined on passing of final decree, which was not done..

On these submissions, submissions impugned order was assailed as unsustainable able in the

eyes of law and a prayer was made to set it aside.

5. Contrarily, learned counsel supported the order order, stating that

same is legal and valid. It is stated that the preliminary decree dated

12.04.2018 has not been challenged and has attained ffinality.

inality. Learned

counsel further contends that the petitioner petitioner's argument regarding his

expenditure on the construction of the first and second floor of the house

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was dealt with by the learned trial Court while deciding the suit aass well as

the objections and an same was decided against him. It is stated by the learned

counsel for the respondents that learned trial Court categorically observed

that partition of the property by metes me s and bounds is not permissible in

Chandigarh. This position is unlikely to be denied by the petitioner. It is

argued by the learned le counsel that the order regarding sale of subject

property and distribution of sale proceeds amongst the parties as per their

share was passed on the consensus of the parties. Now the petitioner is

estopped from m challenging the order.

6. Learned counsel submits that the Court Commission shall

auction the property as per rules, including obtaining a valuation of the

property, based on its structure and other relevant factors factors.. No prejudice

would be caused cause to the petitioner, as he may participate in the open auction

and purchase the same.

7. Learned counsel also submits that the learned trial Court did not

grant preferential rights to the respondents No.1 to 3 to purchase 25% of

share of petitioner, petitioner vendee of respondent No.4 (defendants before the

learned trial Court). In these circumstances, the order for an open sale is

valid, which shall allow the parties and outsider to participate in the sale

proceedings,, ensuring in obtaining the best price of the house. A prayer is,

therefore, made to dismiss the revision, being without any merits.

8. I have heard learned counsel for the parties and gone through

the paper book.

9. It is a matter of record th that the respondents No.1 to 3,,

filed a suit for injunction and alternatively alternatively, for partition and possession,

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which was partly decreed, and preliminary decree (Annexure P-2)) was

passed vide judgment and decree dated 12.04.2018. The operative part of the

judgment dated 12.04.2018 (Annexure P-2)) reads as under:

under:-

"26. In view of my findings on Issues no.1 to 3, suit filed by the plaintiffs partly succeeds and the same is hereby partly decreed with proportionate costs to the effect that a preliminary decree for partition of the house in question is passed holding that Smt. Mohinderjit Kaur Teja, LR of deceased plaintiffs no.1 and 2 is the owner to the extent of 50% share, plaintiff no.3 Sh. Bir Birender Singh is the owner to the ext extent ent of 25% share and defendant No.2 o.2 Sh. Gurpinder Pal Singh is the owner to the extent of 25% share in the house in question. The house in question is to be partitioned by such mode of partition as may be determined and settled by the Court at the stage of passing the final decree, which may include putting the house to auction and distributing the sale proceeds as per shares, or such other mode as may be determined by the Court. However, the plaintiffs are not held entitled to any preferential right to purchase 25% share of defendants in the house in question or to an injunction directing the defen defendants dants to transfer such 25% share in the house in question in favour of plaintiffs or to restrain the defendants from interfering into peaceful possession and enjoyment of plaintiffs over the house in question, and suit qua said reliefs is dismissed. Decree sheet be prepared accordingly. File be consigned to record room after due compliance."

10. The respondents No.1 to 3, move moved an application (Annexure P--

3)) for passing final decree in terms of judgmen judgmentt and decree dated

12.04.2018. The T petitioner filed reply/objection ply/objection (Annexure P P-4), that were

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dismissed, vide impugned order dated 21.08.2024 (Annexure P P-1),

1), which

reads as follows: -

"Arguments on objections heard. The only objection raised by objector is that he has raised some construction from his own pocket, ocket, upon the first floor of house in question and he should be compensated for the amount paid by him for that construction. Perusal of judgment and decree dated 12.04.2018 passed by learned Predecessor shows that the objector was granted 25% share in tthe he whole property. Once, learned Predecessor of this Court has decided the partition proceedings and has granted the share of the whole property to the objector, this Court, at this stage, can not pass any order with respect to awarding compensation qua th thee construction allegedly raised by the objector on the first floor of the house in question. In such circumstances, the objections are hereby dismissed.

Since, partition of property by metes and bounds is not allowed in Chandigarh, as such, both the part parties ies agreed that suit property be put on sale and the sale proceeds be disbursed as per share of the parties. Accordingly, let warrant of sale of property in question be issued as per following schedule:-

Court Notice : 09.09.2024 Spot Notice : 30.09.2024 Auction and sale : 15.10.2024 Report : 04.11.2024"

11. The argument presented on behalf of the petitioner that sale

should first be held between the parties, cannot be countenanced for the

reasons; firstly, firstly the order for the sale was passed based on the consensus of

the parties. Secondly, Secondly the restriction ion placed on the respondents No.1 to 3,,

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from exercising a preferential right to purchase 25% share of the petitioner,,

in the preliminary decree would work inequitable for them them, as it would allow

only the petitioner the opportunity to exercise preferential right, not the

respondents. The provisions of Section 3 (ibid ibid)) cannot be read differently for

the parties. The appropriate and equitable course of action, in these

circumstances would be to put the suit property for sale so that parties or circumstances,

any other interested persons can participate in the sale sale,, thereby obtaining the

best price of the property. The sale proceeds can then be shared d according to

respective shares or one of the parties may choose to purchase the suit

property.. The contention of the counsel for the petitioner that he never

consented to putting the suit property for sale is untenable, as no plea has

been raised in the present petition,, nor has any evidence been placed on

record to show that that he ever moved any application for review of the order order,,

whereby his consent was recorded.

recorded

12.. An Another plea by the petitioner that expenditure made by him

on the first and second floor of the house was not considered is again not

acceptable. A perusal perusal of the preliminary decree and the objection reveal revealss

that his plea was duly considered and was rejected. As far as the contention ntion

that a final decree has not been passed, is concerned concerned, the impugned order

was passed in response to the reply/objection objection raised by the petition petitioner to an

application for the passing of the final decree. Therefore, this contention is

also untenable.

13.. The other contention of the counsel for the petitioner that

valuation of the property was not obtained bef before passing the order for

putting the suit property on sale is concerned, aall necessary procedures will ill

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be followed by the Court Auctioneer, before putting suit property on

auction/sale.. In I case of any infraction of the rules oor procedure, the

petitioner may ay raise a challenge to the same as permissible to him under the

law.

14. As a sequel to the foregoing discussion, it is held that the

learned trial Court has rightly exercise the jurisdiction that vested in it and

the order does not suffer from any illegality, irregularity, infirmity or

perversity so as to warrant any intervention intervention by this Court. Accordingly, the

revision evision petition is dismissed.

15. Pending applications, applications, if any, also stands disposed of accordingly.

(RITU TAGORE) JUDGE 20.09.2024 Rimpal Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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