Once a property has been partitioned, it cannot be sought to be re-partitioned, even if one or more persons' shares may be slightly bigger or smaller.

VALMIKI J. MEHTA, J.

CM No. 38768/2017 (Exemption)

1. Exemption allowed subject to just exceptions. CM stands disposed of.

CM No. 11124/2018 (U/o VI Rule 17 CPC)

2. This application for urging additional ground is allowed. CM stands disposed of.

RFA No. 906/2017 & CM Nos. 38767/2017 (interim direction), 38769/2017 (U/o XXVI Rule 10 CPC

3. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiffs in the suit impugning the judgment of the trial court dated 3.7.2017 by which the trial court has dismissed the suit for partition filed by the appellants/plaintiffs with respect to the property bearing no.10060-62, Gali Zamir Wali, Nawab Ganj, Pul Bangash, Delhi-110066 situated on a plot of land admeasuring 440 sq. yards.

4. The cause of action as stated in the plaint was that appellants/plaintiffs are the legal heirs of Sh. Onkar Nath Kapoor and which Sh. Onkar Nath Kapoor was the son of Sh. Muni Lal Kapoor. Sh. Muni Lal Kapoor was the son of Sh. Karam Chand and who was the original owner of the suit property. Appellants/plaintiffs therefore claimed to be the co-owners of the suit property on account of 1/3rd of the share of Sh. Karam Chand in the suit property devolving upon Sh. Muni Lal Kapoor and Sh. Muni Lal Kapoor had three sons namely Sh. Onkar Nath Kapoor/original plaintiff, Sh. Jawahar Lal/respondent no.1/defendant no.1 and Sh. Jagdish Kapoor/respondent no.2/defendant no.2. Sh. Karam Chand is stated to have expired intestate in the year 1964. The suit when was filed, it was filed by Sh. Onkar Nath Kapoor, son of Sh. Muni Lal Kapoor, and on the death of Sh. Onkar Nath pendente lite the present appellants/plaintiffs were substituted as legal heirs of Sh. Onkar Nath Kapoor. The cause of action as stated in the plaint is therefore essentially the entitlement of the appellants/plaintiffs originating from the 1/3rd share of Sh. Muni Lal Kapoor as one of the three sons of Sh. Karam Chand who owned the suit property and that Sh. Muni Lal Kapoor had three sons of which one son was Sh. Onkar Nath Kapoor, the husband and father of the appellants/plaintiffs.

5. The relationship between the parties has been delineated in paras 1 and 2 of the impugned judgment and which paras read as under:-

“1. Brief facts of the case are that Sh. Karam Chand was the grandfather of the parties who expired in the year 1964. He was survived by his three sons i.e. Sh. Muni Lal Kapoor, Sh. Pyare Lal and Sh. Kunj Bihari. Sh. Muni Lal Kapoor who has three sons Sh. Onkar Nath Kapoor, plaintiff herein, Sh. Jawahar Lal, defendant no. 1 Sh. Jagdish Kapoor, defendant no. 2. Sh. Pyare Lal has two sons namely Sh. Jugal Kishore defendant no. 3 and Sh. Nawal Kishore defendant no. 4 and Sh. Kunj Bihar has also three sons namely Nand Kumar defendant no. 6, Sh. Ashok Kumar defendant no. 5 and Sh. Vijay Kumar, defendant no. 7. It has been stated that Late Karam Chand acquired custodian property bearing no. 10060-62, Gali Zamir Wali, Nawab Ganj, Pul Bangash, Delhi ad measuring 440 sq. yards in an open auction held by Custodian of Evacuee Properties on the basis of joint claims filed along with his sons and after acquiring of the said property they started living jointly in the aforesaid property along with their family members and continued to live together till the death of Karam Chand in the year 1964. It has been further stated that the said house is four storied building and while making unauthorised construction by Late Pyare Lal, the uncle of plaintiff, certain cracks and damages have been caused in the property as well as in the portion in possession of plaintiff.

2. It has been further stated that after the death of Karam Chand, the entire property in equal shares devolved upon his three sons namely Sh. Muni Lal Kapoor, Sh. Pyare Lal Kapoor and Sh. Kunj Bihari being the members of Joint Hindu Family and the said property was mutated in the record of MCD in equal ratio notwithstanding the fact that there was no pa