I-6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 19.01.2011
+ RSA No.225/2006
SHRI ASHOK KUMAR ...........Appellant
Through: Mr.Vinod Sharma, Advocate.
Versus
SHRI BACHU SINGH & ORS. ..........Respondents
Through: Mr.Niraj Chaudhary and
Mr.A.S. Sharma, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
1. This appeal has been directed against the impugned
judgment and decree dated 26.4.2005 which had endorsed the
finding of the trial judge dated 02.3.2005 whereby the suit filed by
the appellant/plaintiff Ashok Kumar seeking partition and
injunction had been dismissed.
2. The plaintiff was the son of Lakhi Ram. Lakhi Ram had died
on 16.4.1987 leaving behind his widow Shanti Devi, four sons and
one married daughter. Contention was that the following four
properties being joint family properties were co-owned by all the
legal heirs viz:
i. House No.2726-A, Gali Arya Samaj, Bazar Sita Ram,
Delhi.
RSA No.225/2006 Page 1 of 4
ii. House No.3886, Gali Nimwali Near Jagat Cinema KhirtiTafzul Hussain , Machli Bazar, Jama Masjid, Delhi
iii. House and shop bearing No.3603 and 3604 situated in
Bazar Sita Ram, Delhi.
iv. House No.4202, Gali No.10, Ajit Nagar, Shahdara,
Delhi.
All the legal heirs are co-sharers in the aforenoted properties
having 1/6 share each. Suit was accordingly filed.
3. A common written statement was filed by defendants no.1
and 4. Defendant No.1 Shanti Devi who was the widow of Lakhi
Ram stated that she was the exclusive owner of property bearing
No.2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi. Defendant
no.4 had stated that the property bearing No.4202, Gali No.10, Ajit
Nagar, Shahdara, Delhi is owned by him exclusively. It was
however admitted that the property bearing No.3603 and 3604
situated in Bazar Sita Ram, Delhi and the property bearing
No.3886, Gali Nimwali Near Jagat Cinema Khirti Tafzul Hussain,
Machli Bazar, Jama Masjid, Delhi were joint family properties.
4. Issues were framed; evidence was led before the trial judge.
From the pleadings of the parties and the evidence adduced before
the court it was held that the only two properties are the joint
family properties i.e. (i) property bearing No.3603-3604 situated in
Bazar Sita Ram, Delhi, (ii) property bearing No.3886, Gali Nimwali
Near Jagat Cinema Khirti Tafzul Hussain , Machli Bazar, Jama
Masjid, Delhi. The property bearing No.2726-A, Gali Arya Samaj,
Bazar Sita Ram, Delhi was admittedly in the name of Shanti Devi; it
was not a joint family property.
RSA No.225/2006 Page 2 of 4
5. Before this Court also it has been urged that the dismissal of
the suit by the two Courts below is an illegality and the contention
of the plaintiff all along was that the aforenoted property i.e.
property bearing No.2726-A, Gali Arya Samaj, Bazar Sita Ram,
Delhi although in the name of Shanti Devi was purchased out of the
funds of his father Lakhi Ram. Perusal of the plaint negatives this
contention. Nowhere in the entire averments in the plaint is there
a whisper that this property although in the name of Shanti Devi
was purchased from the funds of his father Lakhi Ram and is thus a
joint family property. The defence of Shanti Devi was that this was
her exclusive property. No specific issue has been framed by the
court about this dispute.
6. It had also come on record that property bearing No.4202,
Gali No.10, Ajit Nagar, Shahdara, Delhi was the property belonging
to defendant no.2. There was inter se dispute between the
defendant no.2 and defendant no.4 qua title to this property but it
was not a joint family property.
At this stage learned counsel for the appellant has filed a
certified copy of a judgment of the trial judge dated 20.9.2010
which was a suit for declaration filed by the present appellant /
Ashok Kumar against defendants no.2 and 4 i.e. Bachu Singh and
Jagdish Prasad wherein he had raised the same contention; he had
sought a declaration that this is a joint family property and not
belonging either to Bachu Singh or Jagdish Prasad. This
contention was dismissed vide the aforenoted judgment. This
subsequent fact has been brought on record and is admitted.
7. Trial judge had noted that in the course of the proceedings,
the property No.3886, Gali Nimwali Near Jagat Cinema Khirti
RSA No.225/2006 Page 3 of 4
Tafzul Hussain , Machli Bazar, Jama Masjid, Delhi had been sold by
all the parties and was no longer the subject matter of the partition
suit.
8. Further the last property i.e. the property bearing No.3603
and 3604 situated in Bazar Sita Ram, Delhi was the subject matter
of a preliminary decree in another suit proceeding and was also
thus excluded from the subject matter of the present suit.
9. All these are admitted facts.
10. Only contention raised before this Court is that the suit for
partition could not have been dismissed as the plea of the appellant
all along was that the property baring No. 2726-A, Gali Arya Samaj,
Bazar Sita Ram, Delhi was a joint family property although it was
in the name of his mother Shanti Devi. As aforenoted this is not
borne out in the averments made by the appellant/plaintiff in his
plaint. A partition suit could be maintained only if the properties
were admittedly joint family properties; and not if there was a
cloud on the title. It was in these circumstances that the suit for
partition was dismissed. This finding was upheld by the first
appellate Court i.e. in the impugned judgment dated 26.4.2006.
There is no perversity in this finding; it calls for no interference.
11. Substantial questions of law have been formulated in the
body of the appeal and have been perused. No such substantial
question of law having arisen the appeal is dismissed in limine.
INDERMEET KAUR, J.
JANUARY 19, 2011
nandan
RSA No.225/2006 Page 4 of 4