(August 27, 2001) 2001 (TLS)125748

2001-DLT-94-719 :: 2002-AD (Del)-1-356

JAGDISH RAI Vs. TEK CHAND

V. S. AGGARWAL

( 1 ) JAGDISH Ral (plaintiff) seeks partition of the property in dispute. The present suit has been filed against Tek Chand who is the brother of the plaintiff besides other defendants 2 to 6 who are not contasting the civil suit.

( 2 ). It has been alleged that in a civil suit for partition between late Ram Prasad (father of the plaintiff) and his brother Deep Chand have one of the property no. 7/5285-86, Krishan Nagar, Karol Bagh new Delhi, fell to the share of Ram Prasad and other to the share of Deep Chand. Ram Prasad had,executed a will dated 24/9/1982 whereby he bequeathed his share in the said house to the plaintiff and defendant no. 1 in equal share. It was also provided in the will that his other heirs, namely defendants 2 to 6 shall have no concern whatsoever with the said house. Ram Prasad died in Delhi on 4/10/1982. Thereafter the said suit for partition between Ram prasad and Deep Chand was settled between the parties. One half portion of the house adjacent to house no. 5287 belonging to Kanwar Sain Maurya fell to the share of Ram Prasad. Plaintiff and defendant no. 1. being the exclusive owners of the said house took possession of the said house and are stated to be in Joint possession.

( 3 ). Plaintiff asserts that he does not want to keep the share of the said house Joint with defendant no. 1. . Defendants 2 to 6 have no right, title or interest in the property and therefore seeks partition of the said house.

( 4 ). In the written statement filed defendant no. 1 has contested the suit. Preliminary objections, have been taken that suit is not maintainable. It ie not properly valued for purposes of court fees and jurisdiction. However, it has been asserted that property in question already stands partitioned by means of family settlement dated 5/9/1986. It was agreed that defendant no. 1 would be the sole and exiclusive owner of the half share of the property of the ground floor shown in blue colour in the plan attached with the will and plaintiff would be the sole and absolute owner of the first, floor of the house. The plaintiff and defendant no. 1 came in possession of their respective portions. This fact was evidenced by family settlement arrived at between the parties on 5/9/1986. Thereafter parties have been in continuous and uninterrupted exclusive possession of their respective portions. Thus, it is denied that the said house is joint or there can be a partition.

( 5 ). In the replication that has been filed the plaintiff re-asserts his pleas.

( 6 ). From these pleadings of the parlies on 5. 4. 1989 following issues were framed,

1. whether the suit is not maintainable in the present form. 2. whether the suit is not properly valued for the purpose of. court fee and jurisdiction? 3. Whether the property in question already stands partitioned by means of family settlement dated 5/9/86? If so, its effect? 4. To what relief is the plaintiff entitled?

( 7 ). Issues 1 and 2 Both theses issues had not been pressed during the course of arguments and therefore are decided in favour of the plaintiff.

( 8 ). Issue no, 3: With respect to this controversy as is apparent from the pleadings of the parties the sole question that comes up for consideration and requires adjudication is as to whether on 5/9/1986 the property in question was already partitioned between the parties i. e. the plaintiff and defendant no. 1 by means of a family settlement.

( 9 ). Defendant no. 1 appeared as DM1. He stated that he is in possession of two rooms, kitchen bath and latrine on the ground floor. The accommodation on the first floor is identical. Plaintiff is in possession of the same. On 3/6/1986 it had been decided between the parties, namely plaintiff and defendant no. 1, that ground floor would remain in occupation of defendant no. 1. Plaintiff would construct a separate staircase. A statement to that effect