Punjab-Haryana High Court
Krishan Kumar Arora vs Sushma Devi And Ors on 24 April, 2025
Neutral Citation No:=2025:PHHC:053117
Page 1 of 12
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
128
RSA-2865-2022(O&M)
Date of decision: 24.04.2025
Krishan Kumar Arora
...Appellant(s)
Vs.
Sushma Devi & Others
...Respondent(s)
CORAM: HON'BLE MS. JUSTICE NIDHI GUPTA
Present:- Mr. D.K. Singal, Advocate
for the appellant.
***
NIDHI GUPTA, J.
The defendant No.1 is in second appeal against the concurrent judgments and decrees of the learned Courts below whereby the suit filed by the plaintiff/respondent plaintiff/respondent No.1 herein herein, for partition, declaration, permanent and mandatory injunctions, rendition of accounts and recoveryy of possession, has been decreed in specific terms, by both the Courts below.
below
2. Brief facts of the case are that the plaintiff had filed a suit for partition, declaration, permanent permanent and mandatory injunction injunction,, rendition of accounts, accounts and recovery of possession in respect of the suit properties of her deceased father Jeewan Dass Arora who had expired intestate on 09.05.2011. The plaintiff and defendant no.1/appellant and 1 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 2 of 12 defendants no.2 to 5 are the children of late Jeevan Das Arora. The he suit was filed seeking share and partition of the suit properties described as as:
i) Residential house bearing No.5 N/11 A A, NIT Faridabad;
ii) Property roperty bearing No.5 N/1, NIT Faridabad;
iii) along with the three trucks and a car which were in the name of late Jeewan Dass Arora.
3. It was averred in the plaint that plaintiff is in exclusive possession of ground floor of Residential house No.5 N/11 A; and basement of property No.5N/1. It was further averred that defendant No. No.33 is in possession of first floor of house No.5 N/11 A; and defendant No.1/appellant is in possession of second floor of house No.5 N/11 A and ground floor of House No.5 N/1;
N/1 and had rented out the first floor of the house No.5 N/1 at the rate of Rs.10,000/-
Rs.10,000 per month. Accordingly, suit was filed for rendition of accounts in respect of rent received by defendant No.1; and suit for injunction restraining defendant defendants from alienating any property; and for declaration declaring plaintiff and other legal heirs as lawful owners as per Hindu Succession Act to claim amount lying in term deposit account.
4. The suit was resisted by the defendant No.1 by filing written statement and counterclaim. In both, it was pleaded by the appellant that besides the properties bearing number 5 N/1 NIT and 5N/11A NIT, along with three trucks, one car, and the money lying in some 2 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 3 of 12 accounts, late Jeevan Das Arora was also running a proprietorship firm in the name of M/s.
M . Arora Goods Carrier in respect of which no partition had taken place. It was further alleged that shop no.39 situated at Bata Mor Faridabad was purchased by the deceased father in name of the plaintiff which had not been disclosed by the plaintiff. It wa wass also pleaded that plaintiff and defendants 2 to 5 were entrusted with ₹85 lakhs by the deceased father and share of the appellant had not been handed over to him.
5. Vide order dated 26.09.2016, in an application filed by the plaintiff under Order 39 Rules Rules 1 and 2 CPC, parties were directed to maintain status quo regarding alienation, possession and constructions of over all the properties.
6. On the basis of pleadings of the parties, following issues were framed by the learned trial Court:-
"1)
1) Whether the plaintiff is entitled for preliminary decree of partition of all the properties mentioned in Schedule 'A' and Schedule 'B' of the plaint, as prayed for?OPP
2) Whether plaintiff is entitled for decree of rendition of accounts against the defendant endant No.1, as prayed for? OPP
3) Whether the plaintiff is entitled for the decree of permanent injunction against the defendants No.1 to 3, as prayed for? OPP
4) Whether the plaintiff is entitled for the decree of mandatory injunction against the defendants dants No. 1 to 5, as prayed for?OPP 3 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 4 of 12
5) Whether any oral partition had taken place during the lifetime of Late J.D. Arora regarding the properties mentioned in Schedule 'A' of the plaint? OPD OPD-1
6) Whether the defendant No.1/counter claimant is entitled to declaration that they are owners in possession of the property mentioned in Schedule 'A' as per the respective share described in site plan filed by the defendant No.1? OPD OPD-1
7) Whether the defendant No.1/counter claimant is entitled to the declaration that hat plaintiff and defendants are the joint owners of a Shop No.39, Bata Mode, Faridabad, Plot No. 326, Sec-58, 58, Transport Nagar, Faridabad, Flat No. Q Q-10-02-SF, SF, BPTP, Faridabad and of a Swift Car as prayed for? OPD OPD-1
8) Whether the defendant No.1/counter claimant is entitled for rendition of accounts against defendant No.3, as prayed for?OPD for?OPD-1
9) Whether the Counter claim is not maintainable for want of proper Court fee?OPP-Non Non counter claimant.
10) Relief."
7. On the basis of pleadings and oral & documentary evidence adduced by the parties, vide judgment and decree dated 05.12.2017, learned Civil Judge, Junior Division, Faridabad decided the suit of the plaintiff and counterclaim of the appellant; and passed final decree of partition, mandatory injunction and permanent injunction to the following effect: issue No.5 was decided in negative against the defendant No.1 and in favour of the plaintiff;
plaintiff; issue No.7 was decided to the effect that defendant No.1 is not entitled to any declaration qua shop No.39, Bata Mor, Faridabad and the flat in BPTP Faridabad. However, he is entitled to 4 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 5 of 12 equal share in plot No.324, trucks and the car; issue No.8 was decided to the effect that the plaintiff and defendants No.1 to 5 are entitled to equal shares/rights in the said trucks; issues No.1, 4 and 6 were disposed of on the basis of above discussion;
discussion issue ssue No.2 was disposed of being not pressed; issue ssue No.3 was also disposed of;
of issue ssue No.9 was disposed of being not pressed;; and issue No.10/ No.10 relief was decided cided in detail.
8. Against the judgment and decree decree,, Civil Appeal No.1 dated 05.01.2018, 05.01.2018 and Civil Appeal No.6 dated 18.01.2018 were filed by the defendant No.1/appellant No.1/ herein. Another Civil Appeal No.5 dated 18.01.2018 was filed by the defendants No.9 and 10/ sons of the present appellant against the above said judgment and decree dated 05.
05.12.2017..
All the three appeals were dismissed by the learned lower Appellate Court vide judgment and decree dated 25.08.2021 thereby upholding the judgment and decree dated 05.12.2017. Hence, present second appeal by defendant No.1. Present second appeal has been filed in the Civil Appeal No.1 dated 05.01.2018, filed by the appellant before the learned lower Appellate Court.
9. It may be pointed out at this stage that it has nowhere been stated in the present second appeal or at the time of argument that any appeal has been filed by the defendant defendants No.1, 9 or 10 against the dismissal of the other two Civil Appeals by the learned lower Appellate Court. Nothing has been brought to the notice of this Court that any appeal 5 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 6 of 12 has been filed by the appellant in Civil Appeal No.6 of 2018 or by defendants No.9 and 10 in Civil Appeal No.5 of 2018 2018.
10. It is inter alia submitted by learned counsel for the appellant/defendant No.1 that partial partition is not permissible as per law. It is submitted that the plaintiff plaintiff had admitted in her cross cross-examination examination that 6-6 6 vehicles came in the share of appellant and respondent No.3. Yet plaintiff had not included the said 12 vehicles in the present case for partition nor had claimed any right over the same. It is submitted th that at it was also admitted by the plaintiff that proprietorship firm namely M/s Arora Goods Carrier in the name of late Jeewan Dass Arora is still being run in shop No.39, No.39 Bata Mor, Faridabad.. However, the plaintiff had not included the said firm in the suit for partition. It is contended that it is no longer res integra that partial partition is not permissible and therefore, the impugned judgments and decrees deserve to be set aside on this short ground itself.
11. It is further submitted that the learned Courts below have failed to consider that the appellant also has equal rights along with other legal heirs of late Jeewan Dass Arora over the shop No.39, Bata Mor, Faridabad, as admittedly, the said shop was purchas purchased ed by late Jeewan Dass Arora from joint funds although in the name of plaintiff. As such, Section 14 of the Hindu Succession Act will not come in play as wrongly held by the learned Appellate Court. It is accordingly prayed that the present appeal be 6 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 7 of 12 allowed, ed, and the impugned judgements and decrees of the learned Courts below be set aside.
12. No other argument is made on behalf of the appellant.
13. I find no merit in the submissions made on behalf of the appellant. Vide judgment and decree dated 05.12.2017, the learned trial court had decided the suit of the plaintiff and counterclaim of the appellant, in the following terms: -
"46. In view of the findings of all the above issues, the suit of the plaintiff namely Sushma as well as the counter counter-claim claim of defendants namely Krishan and Satish are hereby decided to the effect that it is hereby declared that the plaintiff Sushma and the defendants ndants namely Krishan, Satish, Suresh, Veena and Santosh, being the first class legal heirs of deceased Jeewan Dass Arora, are entitled to inherit the 1/6th share in the following properties:
Immovable properties:(as mentioned in Schedule A)
1. House No. 5 N/ 11 A NIT Faridabad
2. House No. 5 N / 1 NIT Faridabad Movable Properties: (as mentioned in Schedule B and as reflected from the account statements)
1. Trucks bearing Nos. HR55 C 5525, HR63 2884 and HR64 5525
2. Swift Car Model 2010 bearing regist registration ration number HR51 AJ 6457.
3. Bank Accounts of the Proprietorship Firm M/s Arora Goods Carrier at ING VYSYA Bank, now Kotak Mahindra Bank bearing No. 584011005617 and nominee name name-Banish Kumar Arora.
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4. Account No.584010028654 at Kotak Mahindra Bank in name of deceased.
5. Account No. 584091021381 at Kotak Mahindra Bank in name of deceased with term deposit.
6. Term deposit No.584092028238 at Kotak Mahindra Bank in name of deceased.
7. Saving Accounts No.189676, 76938 & 15168 at Post Office, Nehru Ground NIT Branch Faridabad.
47. At this stage, the plaintiff as well as the defendant No. 2 to 5, present in person before the Court have requested that a final decree of partition may be passed and distribution of the amount lying in all the accounts as well as the sale of the trucks and car be passed. However, the counsel for defendant No.1 has submitted that the court cannot pass a final decree for partition at this stage and only a preliminary decree of partition can be passed. Heard. It is to observe that as per the provision of Order XX, Rule 18 CPC, it is the discretion of the court to pass a preliminary decree in a partition suit, when the partition cannot be conveniently made without further inquiry and there is no legal mandate that a final decree for partition cannot be passed. In this regard, I also draw support from the authority of Vijay Kumar Taneja Vs. Rajkumar Taneja & Others 2017 (162) DRJ 386,, wherein Hon'ble Delhi High Court with the observation that the property was incapable of division by metes and bounds, passed a final decree for partition. Now, in the present case, considering the complexity of the nature properties involved as well as considering the fact that the defendant No.1 is not interested to effect the partition by metes and bounds, I am of the view that no purpose will be 8 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 9 of 12 served to pass a preliminary decree of partition and rather the same will further ensue the disputes betwee betweenn the parties and will delay the determination of their controversy. Accordingly, being satisfied the final decree of partition, mandatory injunction and permanent injunction is passed to the following effect:
That the immovable properties mentioned above and the three trucks and the swift car will be sold by the plaintiff and defendant No. 1 to 5 within three months from date of decree and distribution of sales proceeds thereof will be distributed between the plaintiff and the defendant No. 1 to 5 in the equal shares.
That the plot No. 324 situated at Sec Sec-58 58 will be allotted in name of the plaintiff Sushma and defendant No. 1 to 5 by HUDA on payment of the remaining consideration amount. The said payment shall be made by all the six persons in equal sharess and the payment of Rs. 59,100/ 59,100/- already given by defendant Suresh shall be set off against his share of payment.
It is further made clear that if one or more persons out of these parties are interested to purchase the same, they shall be at liberty to make ke the complete payment of the same and no objection shall be given by the other interested persons in this regard subject to the payment of their share by the purchasers in the value of the said plot, which shall be assessed at the market rate.
Again, that at the defendant No.10 namely Ish Kumar Arora is hereby directed to put the amount of Rs. 5,60,000/ 5,60,000/- in the joint estate within two months from date of decree and same shall 9 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 10 of 12 be divided between the plaintiff and the defendant No. 1 to 5 in equal shares.
Again, ain, the concerned bank authorities as well as the postal authorities are hereby directed to distribute the said money lying in the accounts of Late Jeewan Dass Arora equally amongst the first class legal heirs i.e. the plaintiff and defendant No. 1 to 5 within ithin two months from date of decree.
Lastly, the plaintiff as well as defendant No.1 to 5, 9 & 10 are hereby directed to maintain the status status-quo, quo, qua possession in the respective portions of the immovable properties as well as of trucks and cars and again n they are hereby restrained to alienate the same in any manner except the alienation of all the properties in compliance of judgment.
judgment."
14. It has been contended on behalf of the appellant that vide the impugned judgements and decrees, properties properties/estate of late Jeevan Das Arora has been partially partitioned. It has been alleged that: i) 12 vehicles; ii) proprietorship firm in the name and style of M/s Arora Goods Carrier;
Carrier and iii) shop No.39, Bata Mor, Faridabad Faridabad, which were also part of the state of Late Jeevan Das Arora, have been excluded and not partitioned in the impugned decree.
decree. However, the said contention on behalf of the appellant is misleading and incorrect as, the record reveals eals that in the suit, the only vehicles mentioned were the 3 trucks and one Swift wift car. The appellant has nowhere mentioned 12 other vehicles either in his written statement or in his counter claim. As such, it is not clear on what 10 of 12 ::: Downloaded on - 29-04-2025 23:42:50 ::: Neutral Citation No:=2025:PHHC:053117 Page 11 of 12 basis the appellant has raised this ground in the present second appeal for the first time. The same can therefore not be entertained.
15. As regards the proprietorship firm M/s Arora Goods Carrier, it was found by both the courts below that the said firm was run by Jeevan Das Arora as sole proprietor. After his death, the said firm became extinct, and the property had to be considered as property of deceased proprietor. Accordingly, the same was directed to be inherited by all the Legal representatives of Jeevan Das Arora, which included the plaintiff, the appellant, and the other defendants. Accordingly, the properties of the said firm being Account no. 584010028564; and Account no. 584091021381; and Term Deposit 584092028238, which were in the name of father of parties were directed to be equally inherited by all the legal heirs. Thus, argument of the appellant in this regard is also misleading.
16. As regards, the shop No.39, Bat Bata Mor, Faridabad, it is the clear category and concurrent finding of both the courts below that the said property was purchased by the plaintiff by way of a registered sale deed and was the exclusive property of the plaintiff. The appellant had failed to lead ead any evidence whatsoever to prove/support his contention that the said property was purchased by Jeevan Das Arora from joint funds. Moreover, the said property was purchased by the plaintiff much before the death of Jeevan Das Arora, and was in the know knowledge of the appellant.
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17. Ld. Counsel for the appellant is unable to dispute or controvert the above set facts and findings.
18. The present appeal accordingly stands dismissed.
19. Pending application(s) if any also stand(s) disposed of.
24.04.2025 (Nidhi Gupta) Sunena Judge
Whether speaking/reasoned: Yes/No Whether reportable: Yes/No 12 of 12 ::: Downloaded on - 29-04-2025 23:42:50 :::