JUDGEMENT

MANMOHAN, ACJ: (ORAL) CM APPL. 14849/2024 (for exemption) Allowed, subject to all just exceptions.

Accordingly, the present application stands disposed of.

FAO(OS) 35/2024

1. The present appeal has been filed under Section 10 of the Delhi High Court Act, 1966, (‘Act of 1966’) challenging the impugned order dated 18th December, 2023, passed in CS (OS) No. 657/2017, whereby the learned Single Judge dismissed the I.A. No. 8954/2023 filed by the Appellants herein under Chapter IX Rule 6 of the Delhi High Court (Original Side) Rules, 2018 (‘DHC Rules’) read with section 151 of Code of Civil Procedure, 1908 (‘CPC’).

Brief facts

2. The Appellants herein are the plaintiffs and the Respondents are the defendants. The civil suit has been filed by the Appellants herein seeking declaration, partition and permanent injunction. The parties herein are the lineal descendants of late Sh. Lo Ram, who died intestate on 14th May, 2001 leaving behind several immoveable properties.

2.1. The reliefs sought in the said suit have been opposed by the Respondents herein on the ground that there was an oral partition in the year 1980, which had been acted upon by the parties and pursuant thereto, Respondents are in possession of their respective portions of immovable properties. The Respondents pleaded that this fact of partition is evidenced from the mutation entry with respect to the land bearing Khasra no. 509 and 462, situated in the Revenue Estate of Village Mahipalpur, National Capital Territory of Delhi, carried out in favor of the Respondents herein vide mutation order dated 18th February, 2002, passed by the Tehsildar. The Respondents therefore, asserted their right to lead evidence in the suit to prove the oral partition.

2.2. The issues were framed in the suit on 25th November, 2019 and parties was set down for trial. A specific issue was framed with respect to the plea of partition as issue no. (iv). 2.3. At the stage of recording of evidence of the plaintiffs, the Appellants/plaintiffs filed an application bearing I.A. No. 8118/2020 under Chapter IX Rule 6 of the DHC Rules seeking pronouncement of judgment, on the plea that alleged defence of oral partition has no relevance in the eyes of law. The said application was dismissed by the learned Single Judge vide order dated 27th July, 2022 and the appeal1 filed against the said order was dismissed by the Division Bench vide order dated 31st January, 2023.

2.4. The Appellants state that I.A. No. 8118/2020 was dismissed in view of the existence of the mutation order dated 18th February, 2002. It is stated that the said mutation order has since been set aside by the Financial Commissioner vide order dated 6th April, 2023.

2.5. It is stated that in light of this subsequent development, the Appellants have filed a fresh application i.e., I.A. No. 8954/2023 under Chapter IX Rule 6 of the DHC Rules, once again seeking pronouncement of judgment in their favor.

2.6. This new application has been dismissed by the learned Single Judge vide impugned order dated 18th December, 2023, inter-alia on the ground that the I.A. No. 8118/2020 filed seeking similar reliefs already stands dismissed.

3. Learned counsel for the Appellants states that the entire basis of the rejection of the earlier I.A. No. 8118/2020 by the learned Single Judge and the Division Bench, was the existence of the mutation order dated 18th February, 2002; and with the setting aside of the said order, the reliance of the Respondents to prove oral partition based on the said mutation order does not survive for consideration. She states that since the ownership of late Sh. Lo Ram of the immoveable properties is admitted, the Appellants herein are entitled to a decree of partition forthwith without awaiting trial. She states that the plea of oral partition set up by the Respondents is not a legally 1 FAO(OS) No. 109/2022 admissible plea and there is therefore, no justification for holding a full- fledged tri