Point of law: Family property – Settlement – Admission - Statement made in the earlier plaint constitutes an admission under Order XII Rule 6 CPC. Thus, the Plaintiffs would be bound by the said admission.

JUDGMENT :

Prathiba M. Singh, J.

1. This hearing has been done through video conferencing.

2. The present second appeal has been filed challenging the judgment dated 18th November, 2019 passed by the ld. ADJ-VII (Central), Tis Hazari Courts, Delhi (hereinafter, “Appellate Court”) in RCA No.11/2019 titled Sh. Rajinder Pershad v. Sh. Ved Prakash v. Ram Niwas & Ors. By the impugned order, the Appellate Court has dismissed the first appeal filed against the judgment and decree dated 30th January, 2016 passed by the Ld. Civil Judge-14, Central District, Tis Hazari Courts, Delhi (hereinafter, “Trial Court”) in Suit No.38/15 titled Sh. Rajender Pershad & Ors. v. Ram Niwas & Ors. Therefore, in effect, the Appellate Court and the Trial Court have arrived at concurrent findings.

3. The dispute in the present case is between the legal heirs of the brothers i.e., Sh. Udey Ram, Sh. Teeka Ram, Sh. Tokh Ram, Sh. Ram Niwas & Sh. Yad Ram, who are all sons of Pt. Har Lal. The Plaintiffs are the legal heirs of Sh. Udey Ram. A suit for partition was filed by the Plaintiffs seeking partition and permanent injunction. The reliefs sought in the said suit are as under :

“i) a decree for partition be passed in favour of the plaintiffs and against the defendants in respect of joint properties bearing Kh. No. 70/2/3 measuring’ 1250 sq. yds, situated at within the colony of Village Palam, New Delhi as shown in red colour in the site plan, by metes and bounds and holding the plaintiffs as co-sharer of 1/5th share in the said property.

ii) a decree of permanent injunction be passed in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants and associates and any other person, acting on their behalf from, raising any illegal and unauthorized construction in any manner in the aforesaid property as shown in the site plan attached and also from selling, transferring or alienating, or part with possession and creating any third party interest in respect of the aforesaid property.

iii) a decree of mandatory injunction may also be passed in. favour of the plaintiffs and against the defendants thereby directing the defendants, to remove and demolish the illegal and unauthorized construction as shown in the site plan of the property no.70/2/3, measuring 1250 sq. yds. situated within the colony, of Palam, New Delhi .

iv) Costs of the suit be also awarded in favour of the plaintiffs.

v) Any other relief which this Hon'ble Court deems fit and proper in the circumstances of the case be also granted in favour of the plaintiffs.”

4. As per the plaint, the case of the Plaintiffs in the said plaint was that all the properties are joint properties. In paragraph 5 of the said plaint, the Plaintiffs pleaded that there was a settlement and agreement between the parties. Apart from the settlement, the Plaintiffs staked their entitled to 1/5th share in the suit property. The Plaintiffs further claimed that the Defendants have raised illegal and unauthorised construction on the suit property, during the pendency of the suit being Civil Suit No. 17/2004 titled “Sh. Rajinder Pershad v. Sh. Ram Niwas”. However, the said suit was withdrawn with permission to file afresh. Thereafter, the Defendants threatened to take forceable possession of the suit property. Under such circumstances, on the strength of joint ownership, the partition and injunction in respect of the suit property was sought by the Plaintiffs before the Trial Court.

5. Vide judgment and decree dated 30th January, 2016, the Trial Court framed the following issues:

“1. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD

2. Whether the suit of the plaintiff is barred in view of Section 185 of the DLR Act? OPD

3. Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD

4. Whether the plaintiff is entitled to a decree of partition as prayed for in prayer clause-1 of the plaint? OPP

5. Whether the plaintiff is enti