Important Point – Right in immovable property cannot be created by admissions in legal proceedings without a pre-existing right.

Rajiv Sahai Endlaw, J.

This first appeal under Section 96 of the Code of Civil Procedure (CPC), 1908 impugns the judgment and preliminary decree of partition dated 5th May, 2010 (of the Court of Additional District Judge (ADJ)-06 (Central), Delhi in CS No.397/09 filed by the respondent for partition, possession and permanent injunction with respect to land ad measuring, 1 bigha 10 biswas in Khasra No.132, 1 bigha in Khasra No.133 and 1 bigha 40 biswas in Khasra No.194 situated in Lal Dora of Village Majri, P.O. Karala, Delhi) declaring the respondent/plaintiff to be having ¼th share in the property and restraining the appellants/defendants from selling, alienating or disposing of the same in any manner whatsoever. The appeal also impugns the order dated 1st October, 2011 of the learned ADJ in the proceedings pursuant to the preliminary decree for partition, inter alia directing the property to be auctioned.

2. The appeal came up before this Court first on 8th December, 2011 when the following order was passed:-

"1. Appellant no.1 appears in person. I have pointed out to the appellant no.1 the judgments in the cases of Commissioner of Wealth Tax, Kanpur v. Chander Sen AIR 1986 SC 1753 and Yudhishter v. Ashok Kumar AIR 1987 SC 558 for the proposition that the appellant when he inherits property from his father, on the father's death in 1982, will take the property as his own/individual property in his hands and not as ancestral property.

2. Accordingly, in my opinion, prima facie, the impugned judgment wrongly holds the respondent/plaintiff/son entitled to the properties which the appellant inherited from his father.

3. Till further orders unless varied by the Court, there shall be stay of the impugned judgment and decree dated 5.5.2010 and all orders consequential thereto.

4. Notice be issued to the respondent on filing of process fee, both in the ordinary method as well as by registered AD post, returnable before the Registrar on 24th January, 2012.

5. Respondent be additionally served through his counsel who was appearing in the suit in the Trial Court.

6. Trial Court record be requisitioned."

3. After notice, on 17th April, 2012 the ex parte ad interim order was confirmed and the appeal admitted for hearing and ordered to be listed in the category of "Regular" matters as per its turn.

4. The appellants filed CM No.17493/2012 for early hearing and finding that the appellants had filed the appeal in person and the appellant no.1 was pursuing the appeal in person, an Amicus Curiae was appointed to assist the appellants. On 6th March, 2013 the counsel for the respondent informed of the demise of the respondent and the Amicus Curiae earlier appointed for the appellants was substituted. The application filed for substitution of the legal heirs of the deceased respondent remained pending till it was allowed on 20th March, 2014. Thereafter the appeal is being adjourned from time to time for hearing. During the hearings on 19th March, 2015 and 5th October, 2015 it was the contention of the counsel for the legal heirs of the deceased respondent that the appeal, insofar as against the preliminary decree for partition, had been filed belatedly and the appeal insofar as against the order in the final decree proceedings for auction of the property was barred by Section 97 of the CPC as the preliminary decree for partition had not been challenged. Thereafter the appeal came up on 8th February, 2016 when the appellant no.1 appeared in person and the Amicus Curiae earlier appointed did not appear; though the appellant no.1 stated that he is ready to argue but the counsel for the legal heirs of the deceased respondent stated that he had not come prepared for arguments. In the light of the order dated 8th December, 2011 supra, attention of the counsel for the respondents was also invited to the judgment dated 18th January, 2016 of this Court in CS(OS) No.1737/2012 titled Surender Kumar v. Dhani Ram and to enable the counsel for the legal heirs