The main legal point established in the judgment is that the non-impleadment of necessary parties in a partition suit goes to the root of the matter, and the non-pleading of Wills by the Defendants may not be faulted in certain circumstances.

Prathiba M. Singh, J.

1. Ghan Shyam Dass Sharma (hereinafter, “D1”) purchased property no. 1/3581, Gali No.3, Ram Nagar, Loni Road, Shahdara, Delhi – 110032 area measuring 120 sq. yds (hereinafter, “suit property”). He had five children i.e. three sons and two daughters. They are as follows :

i. Suresh Chand Sharma (hereinafter, “Plaintiff”)

ii. Subhash Chand Sharma (hereinafter, “D2”)

iii. Hari Om Sharma (hereinafter, “D3”)

iv. Kamlesh (hereinafter, “D4”)

v. Madhu Sharma (since deceased)

Plaintiff’s case

2. The Plaintiff – Suresh Chand Sharma, Appellant herein, filed a suit for partition, possession and permanent injunction in respect of the suit property. He pleaded that his father, D1, purchased the suit property by disposing of ancestral property in Rajasthan and that he was living with his wife in the suit property all along. Plaintiff claimed that he was dispossessed from the suit property in the year 1982. He sought his share from D1 some years later but D1 refused to give him any share. D1, thereafter, got a publication issued in Rastriya Sahara dated 10th December 2008 that he has debarred and disowned the Plaintiff and his wife from any share in the suit property. Upon seeing this publication, the Plaintiff got a legal notice served upon the father, two brothers and a sister. The suit for partition, thereafter, came to be filed.

Defendants’ case

3. A common written statement was filed by the Defendants which is only signed by Shri Hari Om Sharma/D3. It is the case of the Defendants that the suit property was a self acquired property of D1 and that the Plaintiff was paid a sum of Rs.1.50 lakhs in cash 36 years ago. Thus, the filing of the suit for partition after a period of 30 years was claimed to be malafide. The allegation that the suit property was ancestral property was denied.

4. D1 expired on 25th February, 2010 but mother Smt. Triveni Devi was not impleaded in the suit. The Trial court erroneously records in its order dated 5th July, 2011 as under :

“It is submitted that D-1 who is father of the parties has since expired in February, 2010. All his LRs i.e. his sons and wife are already on record as plaintiff, D-2 to D-4. Application of the plaintiff under Order 33 to sue as an indigent is pending disposal.

Issue notice to SDM, Shahdara to give report regarding financial status of plaintiff on filing of PF for 27.08.2011.

Plaintiff to file an appropriate application for bringing on record LRs.”

5. Following issues were framed in the suit on 29th October 2014 :

“(1) Whether the plaintiff is entitled for decree of partition as prayed in the suit? OPP

(2) Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP

(3) Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP

(4) Relief.”

6. In the suit, Shri Suresh Chand Sharma/Plaintiff appeared as PW-1. The Defendants led evidence of Shri Subhash Chand Sharma/D2 (DW-1) and Shri Hari Om Sharma/D3 (DW-2).

7. Mediation was attempted between the parties, but to no avail. On 9th May, 2016 a preliminary decree was passed by which it was held that Plaintiff is the joint owner of the suit property and is entitled to 1/4th share in the property. A Local Commissioner was thereafter appointed, but the report clearly stated that the property could not be partitioned by metes and bounds. Order dated 15th October 2016 reads as under :

“Pleader fee form filed by counsel for plaintiff. It be taken on record.

The report of the local commissioner filed.

Arguments heard and gone through the record.

Ld. Counsel for the plaintiff prayed to pass final decree as the property could not be partitioned by metes and bounds.

Plaintiff filed the suit with relief for partition, possession and permanent injunction in respect of the property bearing no.1/3581, Gali No.3, Ram Nagar, Loni Road, Shahdara, Delhi (as shown in the site plan Ex.PW1/1). Vide judgment dated 09.05.2016, a preliminary decree was passed and plaintiff was held entitled to 1/4th share