Back
2018 Supreme(Del) 649
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J.MEHTA, J.
R.C. Arora – Appellant
Versus
Shammi Dewan & Anr. – Respondents
RFA No.199 of 2018
Decided On : 23-02-2018
For the Appellant :Mr. Prag Chawla, Advocate.
For the Respondent:Mr. Raman Kapur, Senior Advocate with Mr. Aviral Tiwari, Advocate and Mr. Varun Kapur, Advocate.
The main legal point established is the requirement for separate appeals against preliminary and final decrees in partition suits, and the necessity of a preliminary decree for partition in cases of undivided property.
Headnote:
CPC - Partition Suit - Section 96 of CPC - [Section 96 of the Code of Civil Procedure, 1908] - The court discussed the maintainability of the appeal under Section 96 of the CPC and the requirement for separate appeals against preliminary and final decrees. The court also examined the ownership of specific portions of the suit property and the necessity of a preliminary decree for partition. The court dismissed the appeals and imposed costs on the appellant.
Fact of the Case:
The respondent filed a suit for partition of a property. The appellant challenged the preliminary and final decrees passed in favor of the respondent, claiming exclusive ownership of specific portions of the property.
Finding of the Court:
The court found that the appeal was not maintainable under Section 96 of the CPC and dismissed the appeals. It held that the property remained undivided and a preliminary decree for partition was necessary. The court also concluded that physical partition of the property was not feasible, and the parties should receive their monetary share through the sale of the property.
Issues: The issues included the maintainability of the appeal, ownership of specific portions of the property, entitlement to a decree of partition, and relief sought by the plaintiff.
Ratio Decidendi: The court held that separate appeals were required for preliminary and final decrees, and a preliminary decree for partition was necessary due to the undivided nature of the property. The court also emphasized the need to determine monetary shares through the sale of the property.
Final Decision: The appeals were dismissed, and costs of Rs.50,000/- were imposed on the appellant to be paid to the respondent.
VALMIKI J. MEHTA, J.
Caveat No.151/2018
1. Counsel appears for the caveators. Caveat accordingly stands discharged.
C.M. No.7070/2018 (exemption)
2. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. Nos.7071/2018 (for condonation of delay in filing) & 7069/2018 (for condonation of delay in re-filing)
3. For the reasons stated in the applications, delay of 23 days in filing and 32 days in re-filing the appeal is condoned.
C.M.s stand disposed of.
RFA No.199/2018 and C.M. No.7068/2018 (stay)
4. This regular first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no.2 in the suit impugning the preliminary decree dated 29.8.2017 and the final decree dated 5.12.2017 passed in favour of the respondent no.1/plaintiff with respect to the suit property bearing no.4/19, East Patel Nagar, situated on a plot of 200 sq. yards.
5. At the outset, I would like to note that the appeal is not maintainable because once there are two separate decrees, one being a preliminary decree and another being a final decree, there had to be filed two separate appeals against the two separate decrees but appellant/defendant no.2 for some strange reasons has preferred to file only one appeal against two separate decrees. However, at this stage at the request made on behalf of the appellant/defendant no.2, who prays that this one appeal be treated as two appeals, accordingly the Registry will give an additional RFA number to this appeal with the existing RFA number being that of challenge to the preliminary decree dated 29.8.2017 and the additional number to be given to the RFA will be taken as the RFA to challenge to the final decree dated 5.12.2017.
6. The facts of the case are that respondent no.1/plaintiff filed the subject suit for partition of the suit property. The undisputed facts which have emerged in the record of the suit in the trial court are as under:-
(i) The original owner of the suit property was one Sh. Chandi Ram.
(ii) Sh. Chandi Ram died intestate and 50% undivided share each therefore devolved upon the two sons of Sh. Chandi Ram, namely Sh. Sevak Ram and Sh. Govind Jagtiani.
(iii) Respondent no.1/plaintiff purchased rights in the suit property being 50% undivided share of Sh. Sevak Ram in terms of the agreement to sell dated 12.10.1992/Ex.PW1/3, Will and General Power of Attorney/Ex.PW1/4 and Ex.PW1/5. It may be noted that the agreement to sell dated 12.10.1992 is registered with the Sub-Registrar along with the Will. The agreement to sell dated 12.10.1992 in favour of the respondent no.1/plaintiff clearly specifies that the owner Sh. Sevak Ram transferred to the respondent no.1/plaintiff half undivided share in the suit property and this is found in the third para of the first page of the agreement to sell, numerical paras 1 and 3 of the second page of the agreement to sell as also similar expressions found in other clauses of the agreement to sell dated 12.10.1992. This agreement to sell also does not talk of any partition having already been effected between two co-owners namely Sh. Sevak Ram and Sh. Govind Jagtiani so that Sh. Sevak Ram and Sh. Govind Jagtiani could be said to be owners of separate specific shares in the suit property.
(iv) The appellant/defendant no.2 states to have purchased the share of the other co-owner Sh. Govind Jagtiani to the extent of top floor/ second floor of the suit property. It is the case of the appellant/defendant no.2 that in terms of the agreement to sell dated 11.9.1986 executed by Sh. Govind Jagtiani in favour of Sh. Kamal Malhotra (predecessor-in-interest of the appellant/defendant no.2), Sh. Kamal Malhotra purchased specific portions of the suit property being first floor and the top floor/second floor and the appellant/defendant no.2 purchased the top floor/second floor from Sh. Kamal Malhotra.
(v) When we read the agreement to sell dated 11.9.1986 executed by Sh. Govind Jagtiani in favour of Sh. Kamal Malhotra with respect to the fi
