Delhi District Court
Sh. Ganga Singh vs Sh. Ganga Singh on 8 August, 2014
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IN THE COURT OF SH. SANJEEV AGGARWAL
ADJ03 (NorthWest) Rohini Courts DELHI
Suit No. 163/14
Smt.Jaiwanti Chauhan,
W/o Sh. Shi Kumar Chauhan,
R/o 104, Village Dhaka,
Delhi
Sh. Ganga Singh
S/o Lt. Sh. Lal Singh
R/o 104, Village Dhaka,
Delhi .....Plaintiffs
Versus
1. Sh. Ganga Singh
S/o Late Sh. Lal Singh
R/o 104, Village Dhaka
Delhi
2. Sh. Sharvan Singh Chauhan,
S/o Sh. Ganga Singh,
R/o H.No. 569, Parmanand West,
3rd Floor, Delhi110009
3. Smt Dayawati
W/o Sh. Brijpal
Village & Post Datawali
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 1/51
2
Distt. Merrut(U.P)
4. Smt. Nemwati,
W/o Sh. Suresh Chauhan
R/o 3545/7, Gali Jatwara,
Daryaganj, Delhi110002
5. Sh. Anand Singh Chauhan,
S/o Sh. Ganga Singh,
R/o 104,Village Dhaka,
Delhi ...Defendants
Date of Institution of the Suit : 16.07.2009
Date on which order was reserved : 23.05.2014
Date of decision : 08.08.2014
J U D G M E NT
1. Vide this judgment I shall dispose off suit for partition and
permanent injunction.
2. Brief facts are it is stated that plaintiffs and defendants are the
members of the Joint Hindu Undivided family and their
relationships with each other has been shown in the following
pedigree table:
Ganga Singh Father Defendant no.1
Sanno Devi Mother Deceased Died on
17.02.88
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 2/51
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Sharavan Singh Son Defendant no. 2
Chauhan
Dayawati Daughter Defendant no. 3
Nemwati Daughter Defendant no. 4
Jaywati Daughter Plaintiff no. 1
Chauhan
Mithilesh Daughter Plaintiff no. 2
Chauhan
Anand Singh Son Defendant no. 5
Chauhan
3. It is further submitted that the plaintiffs and defendants are the
brothers and sisters except defendant no. 1, who is the father of
the plaintiffs and the defendants and they are the legal heirs of
the defendant no. 1.
4. It is further submitted that defendant no. 1 inherited the property
bearing no. 104, Village Dhaka, Delhi(hereinafter referred to as
the suit property) from his father Lt. Sh. Lal Singh, with a total
area admeasuring 180 Sq. Yds approx. All the family members
lived together with their father in the said house with the
growing size of the family and marriage of brothers and sisters
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 3/51
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and some of the family members moved out of the said house
and started living separately.
5. It is further submitted that the mother of the plaintiffs and
defendants no. 25 namely Lt. Smt. Sanno Devi died on
17.02.1998 leaving behind the above said legal heirs. The
father of the plaintiffs after the demise of his wife was not
permanently residing in the said suit property and as he was
mentally disturbed with the sudden demise of his wife.
6. It is further submitted that the plaintiffs are the real sisters and
are married in the same family with the real brothers. The
husband of the plaintiff no.1 is in government service in Delhi
and the husband of plaintiff no.2 is doing his own business at
his native place in Baghpat. The plaintiff no. 1 is residing in the
suit property alongwith her husband and children as being the
coowner of the suit property and besides this is also looking
after her father i.e defendant no. 1and providing him with all the
facilities and taking care of the minutest need of the defendant
no. 1.
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 4/51
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7. It is further submitted that the suit property is two sided opened
and consists of the accommodation as shown in the site plan
annexed alongwith the plaint. The plaintiff no.1 is in the
possession of two rooms, open verandah, toilet and bathroom
on the ground floor besides this rooms on the first floor which is
in the occupation of the tenants and defendant no. 6 is also in
the possession of the two rooms, toilet and the bathroom, open
verandah, Bathak and the ground floor and two rooms on the
first floor in the occupation of the tenants.
8. It is further submitted that the plaintiffs had also spent the
substantial amount for the repairing and upkeep of the suit
property which was in bad condition before the plaintiff no. 1
started living in their. It is pertinent to mention that none of the
other defendants/coparceners were interested in maintain the
ancestral property and on seeing this the plaintiffs came forward
to maintain the said suit property with their own funds and are
still maintaining the same.
9. It is further submitted that defendant no. 1 was very happy with
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Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 5/51
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plaintiff no. 1 with the way plaintiff no.1 was keeping the suit
property and taking care of his needs in the old age, but the
other defendants specially defendant no. 2 to 4 were not happy
with the way defendant no.1 mingling and living happily with
plaintiff no.1 and defendants no. 2 & 4 in order to built up
gap/souring the relationship with plaintiff no. 1 with defendant
no.1 always poison the mind of defendant no. 1 against the
plaintiff no.1 and are quite successful in doing that and they
turned down the eyes of defendant no. 1 not only against the
plaintiff no. 1 and also against the plaintiff no. 2. On being
poisoned the defendant no. 1 created unruly scene at home but
despite all these acts of the defendant no.1, the plaintiffs never
forgot their duty towards him and always took care of him even
for his minutest needs.
10.It is further submitted that the plaintiff no.1 is residing in the suit
property with her family and holding the same in the capacity of
coparcener as coowner as the property in question is the
ancestral property of the grandfather of the plaintiffs. The right
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 6/51
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of the plaintiffs flows from Section 6 of the Hindu Succession
Act, as amended up to date, the property in question is not the
self acquired property of defendant no. 1. The plaintiffs are
within their legal right to seek partition of the property as
provided under the Act.
11.It is further submitted that the plaintiffs are within their right to
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ask for their 1/7 share each from the defendants, but the
defendants are denying the right of the plaintiff and defendants
have also threatened that they will also sell the suit property in
the open market and the plaintiff no.1 also came to know in
June 2009 that defendants in collusion with each other had
contacted the property dealer of the area and trying to dispose
off the suit property. Therefore it is stated that plaintiffs have
been forced to file the present suit for decree of partition against
the defendants for dividing the share of the plaintiffs by metes
and bounds in the suit property bearing no. 104, Village Dhaka,
Delhi and a decree of permanent injunction be also passed
restraining the defendants from selling, transferring, alienating
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 7/51
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or creating any third party interest in the suit property and
further restraining the defendants from forcible dispossession of
the plaintiff no.1 from the suit property, as shown in Red Colour
in the site plan.
12.Common written statement have been filed on behalf of
defendant no.1, 2, 4 & 5 and vide order dated 04.08.10 it was
stated that defendant no. 3 was residing at Meerut(UP) and
defendant no. 3 has adopted the written statement filed by
defendants no.1, 2, 4 & 5.
13.In the written statement filed on behalf of defendant no. 1, 2, 4
& 5 number of preliminary objections have been taken including
that plaintiff has no right, title or interest in the suit property. It is
also questioned that the suit is not properly valued for the
purposes of court fees and jurisdiction, as it is stated that
minimum value of the suit property as per circle rate(s)
prevailing in Delhi is Rs. 13,700/ per square meter and the suit
property as alleged by the plaintiffs in the plaint is measuring
180 Sq. Yds(150.56 meters) and as such the total value of the
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 8/51
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suit property comes out to be Rs. 20,62,672/ according to the
circle rates. The suit has been valued for the amount of Rs. 10
lacs, same cannot be allowed to be done. It is further stated that
the suit is not maintainable, as the plaintiffs have allegedly
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claimed 1/7 share each in the suit property, whereas plaintiffs
are not in legal, actual and physical possession of the suit
property. The plaintiffs have not prayed for the relief of
possession of their respective shares in the suit property. In the
absence of the relief for possession of their alleged share in the
suit property, the suit is legally not maintainable and the same is
liable to be dismissed.
14.On merits, it is denied that plaintiffs and defendants are
members of Joint Hindu Undivided Family. The relationship
between the parties is not denied. However, it is stated that
defendant no. 1 was still alive and the question of legal heirs
would arise only after the demise of the defendant no. 1 and not
during his lifetime.
15.It is further submitted that the true facts are that Sh. Lal Singh
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Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 9/51
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was the father of four sons and three daughters. The names of
the four sons are Sh. Ram Gopal, Sh. Shiv Raj Singh, Sh.
Ganga Singh and Sh. Hari Singh. The names of three
daughters of Sh. Lal Singh are Rumali Devi, Laxmi Devi and
Maya Devi.
16.It is further submitted that Sh. Lal Singh was the owner of three
properties. The first property bears house no. 104, measuring
150 sq. yds. The second property bears house no. 105
measuring 120 sq. yds. The third property bears house no. 98,
measuring 90 sq. yds. All the said properties are situated at
village Dhaka, Delhi. After the demise of Sh. Lal Singh, the said
seven children became the joint owners of the said undivided
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properties and each one of them is entitled to 1/7 share in the
said three properties.
17.It is further submitted that the said three properties are in the
area of total 360 Sq. Yds., and the share of each child of
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deceased Lal Singh comes out to be 1/7 share in the said total
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area of 360 sq. yds. The 1/7 share of each child of Sh. Lal
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 10/51
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Singh in the said total area of 360 sq. yds., comes out to be
about 51 sq. yds. However, the said properties have not been
partitioned and divided amongst the said legal heirs of
deceased Lal Singh and they continue to be undivided
properties. It is pertinent to mention here that one son Sh. Ram
Gopal and one daughter named Sh. Laxmi Devi have also
expired and their legal heirs are entitled to the respective shares
of deceased ram Gopal and deceased Laxmi Devi.
18.It is further submitted that the defendant no. 1 who is the father
of the plaintiffs and the defendants is still alive and the plaintiffs
have got no right, title or interest to seek the partition of the
property bearing no. 104, Village Dhaka, Delhi. The provisions
of Hindu Succession Act as amended upto date do not apply to
the case of the plaintiffs.
19.It is further stated that infact the true facts are that the plaintiff
no. 1 had approached the defendant no. 1 requested him in the
month of December 2008 to permit her to use and occupy one
room on ground floor in the suit property purely on licence
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 11/51
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basis, as the husband of the plaintiff no. 1 is posted in Delhi
Police. The defendant no. 1 out of love and affection permitted
the plaintiff no. 1 to use and occupy one room on the ground
floor of the said property purely on licence basis without
charging anything from her. Plaintiff no.1 had assured the
defendant no. 1 that after getting suitable residence in Delhi, the
plaintiff no.1 alongwith her children would move to suitable
accommodation or she would leave the portion occupied by her
as and when she is directed to remove her goods and
belongings by defendant no. 1. Thereafter intentions of the
plaintiff no.1 become malafide and she in collusion with the
plaintiff no.2 made a conspiracy to grab the suit property. The
licence of plaintiff no.1 has also been revoked on 01.07.10 by
the defendant no.1 and she had been directed to remove her
goods and handover the vacant peaceful possession to the
defendant no. 1, but he has failed to do so. Therefore plaintiff
no. 1 has become illegal occupant in respect of the said portion.
It is denied that plaintiff no.1 is the coparcener and coowner of
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 12/51
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the suit property or the right of the plaintiff flows from Section 6
of Hindu Succession Act as amended upto date. It is stated that
all the allegations made in the plaint are absolutely false.
Therefore it it stated that suit of the plaintiff is liabel to be
dismissed.
20.Replication has been filed by the plaintiffs to the aforesaid
written statement of defendants, in which the allegations made
in the written statement have been denied and those made in
the plaint have been reaffirmed as correct.
21.Vide order dated 09.06.11, from pleadings of the parties
following issues were framed:
Issues
1. Whether the suit has been properly
valued for the purpose of court fees
and jurisdiction ? OPD
2. Whether the suit is bad for misjoinder
of necessary parties ? OPD
3. Whether this court has no pecuniary
jurisdiction to try and entertain the suit
? OPD
4. Whether the plaintiff is entitled to a
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 13/51
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decree of partition by metes and
bounds of impugned property no. 104
Village Dhaka, Delhi ? OPP
5. Whether the plaintiff is entitled to her
share of partition, as prayed ? OPP
6. Relief
22.Vide order dated 09.06.11 itself issue no. 3 which was with
regard to valuation of suit for the purposes of court fees and
jurisdiction was treated as preliminary issue and vide order
dated 12.09.11 this preliminary issue was decided frima facie on
the basis of the price of the land @ Rs. 6900/ per sq. mtrs in
favour of plaintiffs and against the defendants. However, it was
also observed that the same involves evidence of fact, therefore
matter was not dwelled upon that issue further. Therefore it
appears that the said issue is still open for the consideration of
this court and needs determination.
23.Thereafter plaintiffs in support of their case have examined
herself as PW1. She has also examined PW2 Sh. Devinder
Singh, UDC from the office of Sub Registrar VIA, Pitam Pura
and PW3 is HC Rohtash Kumar from PS Mukherjeet Nagar,
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 14/51
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PW4 is SI Amrendra Kumar from Crime Team, West District,
Rajouri Garden, Delhi In rebuttal defendants have examined Sh.
Sharwan Singh Chauhan as DW1.
24.I have heard Ld. Counsel for the plaintiff Sh. Pradeep Kumar
and Counsel for defendants Sh. Yashbeer Singh and have
perused the record. Counsel for plaintiff has relied upon
following judgments:
1. 198(2013) DLT 85
2. 2013(9) SCALE 433
3. 2013 VII AD(S.C) 611
4. 2013(4) ALLMR 972
5. 2013(4) CTC539
Counsel for defendant has also relied upon following
judgments:
1. 196(2013) DLT 29
2. 197(2013) DLT 52(CN)
3. IV(2010) CLT 35
My issue wise findings are as under:
Issue No. 1 and 3
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 15/51
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25.These issues are taken up together, as they are interconnected
with each other.
26.Plaintiff no. 1 has claimed that she is in joint possession of the
suit property bearing no. 104 Village Dhaka, Delhi measuring
180 sq yds(i.e 150.56 sq. mtrs) and for the purpose of
jurisdiction and court fees she has assessed the value of the
suit property to be Rs. 10 lacs and since she has claimed joint
possession of the suit property. She has paid fixed court fees of
Rs. 20/.
th
27.Regarding plaintiff no. 2 she has claimed her 1/7 share in the
property, as plaintiff no. 2 has stated that she is not in
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possession of suit property, therefore her 1/7 share in the suit
property comes to Rs. 1,42,858 on which she has paid
advoleram court fees of Rs. 3,759.20. Clause 19, 19A and 19b
of the plaint which are necessary for the valuation of court fees
are reproduced as under:
19. That the value of the suit for
the purpose of court fees and jurisdiction
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 16/51
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is assessed at Rs. 10 lacs. The plaintiff no.
1 is in possession of the property in
question whereas the plaintiff no. 2 also
claims her 1/7th share in the property and
which comes to Rs. 1,42,858/ and
advalorem court fees of Rs. 3,759.20 is
paid thereon. That value for the purpose of
court fees and jurisdiction of this Hon'ble
Court, the court fees is assessed as
under:
a) That for the purpose of partition
the suit is valued at Rs. 200/ and the ad
valorem court fees of Rs. 20/ is being paid
and the plaintiffs undertakes to file and
submit and further court fees on her share
as adjudicated by this court as per value of
the property assessed at the time of
judgment and decree.
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 17/51
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b) That for the purpose of
permanent injunction the present suit is
valued at Rs. 130/ and advalorem court
fees of Rs. 13/ is being paid on the same.
Total court fees of the present
suit is valued at Rs. 330/ and advalorem
court fees of Rs. 33/ is being paid.
Total Court fees paid on the suit
is Rs. 3792.20
28.The defendant has questioned the said valuation of the plaintiff
no. 1 and 2 on the ground that the suit property has not been
properly valued for the purposes of court fees and jurisdiction
and the same has been arbitrarily fixed at Rs. 10 lacs by the
plaintiffs. The minimum circle rate with regard to the suit
property is Rs. 13700/ per sq. mtr for the suit property
measuring 150.56 sq. mtrs, as per which the value of suit
property comes to Rs. 20,62,672/ according to the circle rate
proclaimed by Govt of NCT of Delhi, therefore it is stated that
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 18/51
19
suit has not been properly valued for the purpose of court fees
and jurisdiction. In this regard issue no. 3 was treated as
preliminary issue vide order dated 09.06.11 i.e the date on
which the issue were framed. Thereafter vide detailed order
dated 12.09.11 it was held by Ld. Predecessor that since the
said issue involved evidence of fact, therefore it would not be
appropriate to decide this issue on that stage and the matter
was accordingly deferred. Since the trial has already
culminated, it is to be seen whether the said suit has been
properly valued for the purposes of court fees and jurisdiction or
whether this court has pecuniary jurisdiction to try the present
suit. In this regard counsel for plaintiff has relied upon the
judgment 198(2013) DLT 85 in which in para no 52 it has been
held as under:
52. In the case entitled Sudershan Kumar
Seth V. Pawan Kumar Seth & Ors, reported
as 124 (2005) DLT 305, it was held that it is
settled law that in order to decide as to
what relief has been claimed by the
plaintiff, the averments made in the plaint
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 19/51
20
are germane and only upon regarding the
entire plaint can it be inferred that the
plaintiff is in possession of any of the
properties to be partitioned, and if so, then
the Court fees is payable under Article 17
(vi) of Schedule II of the Court Fees Act,
i.e, fixed Court fees at the time of
institution of the suit. However, if the
conclusion is contrary thereto, then the
plaintiff has to pay the Court fees under
Section 7 (iv) (b) of the Court Fees Act, i.e,
on the value of the plaintiff's share [Ref
Chief Inspector of Stamps V. Indu Prabha
Vachaspati & Ors., 1998 (9) SCC 157;
Jamila Khatoon V. Saidul Nisa, AIR 1999
Delhi 48; Smt. Prakash Wati V. Smt.
Dayawanti, 42 (1990) DLT 421 = AIR 1999
Delhi 48; Ms. Ranjana Arora V. Satish
Kumar Arora, 80 (1999) DLT 357; Rajiv
Oberioi & Ors. V. Santosh Kumar Oberioi &
Ors., 2005 (80) DRJ 120) & Smt. Sonu Jain
V. Shri Rohit Garg & Ors., 128 (2006) DLT
633 & Sarabjit Prakash & Another V.
Udyajit Prakash & Ors., FAO (OS) No.319
of 2010].
29.Keeping in mind the aforesaid principle of law taking the
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 20/51
21
pleadings of the plaint of the plaintiff as a whole, though it is
alleged by the defendants that plaintiff no.1 is only a licencee in
respect of one room in her possession, but it is the claim of the
plaintiff that she is occupying the said accommodation, as co
owner of the suit property and the remaining portion is in joint
possession of tenants and other defendants.
30.Regarding plaintiff no. 2 it is alleged that she is not in
possession of any portion of the alleged property and therefore
she has 1/7th share in the suit property in joint family consisting
of father of plaintiff and other defendants, the plaintiff no. 1
claimed herself to be in the joint possession of the suit property,
therefore she is bound to pay fixed court fees as per Article
17(VI) of Schedule II of Court Fee Act 1870 and not advalorem
court fees on the share claimed by her, but at the same time the
value of the suit for the purposes of pecuniary jurisdiction of this
court cannot be Rs. 200/ as has been claimed in para 19A of
the plaint for the relief of partition. The valuation for the
purposes of jurisdiction shall be the value of the whole of the
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 21/51
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suit property sought to be partitioned i.e suit property measuring
150.56 sq. mtrs, or 180 sq. yds. Similarly, though plaintiff no.2 is
only bound to pay the court fees on her 1/7th share claimed in
the suit property, but the value for the purposes of jurisdiction
shall be the value of whole of the suit property. The suit property
which is situated in village Dhaka falls in Civil Line Zone falls in
the category "G" and prior to 08.02.11 the minimum circle rate
prescribed for the said area by the Government of NCT of Delhi
was Rs. 13700/ per sq. mtrs., multiplying the same with the
total area measuring 150.56 sq. mtrs., the same would come to
be Rs. 20,62,672. Since plaintiff no. 2 is admittedly not in
possession of the suit property, yet she has valued the suit for
the purposes of pecuniary jurisdiction at Rs. 10 lacs, same
cannot be accepted as correct in view of rules framed by
Hon'ble Delhi High Court in Chapter 3 Part C, Rule 8 which are
reproduced as under:
8. Suits for partition of property
Court Fee (a) As determined by
the Court Fee Act, 1870
Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 22/51
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Value(b) For the purposes of the
Suits Valuation Act, 1887 and the Punjab
Court Act, 1918 the value of the whole of
the property as determined by Sections 3,
8 and 9 of the Suits Valuation Act, 1887.
31.In view of the aforesaid rules it is clear that for the purpose of
Suit Valuation Act and Punjab Courts Act, the value for the
purpose of jurisdiction shall be the value of whole property and
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not of 1/7 share as claimed by the plaintiff no. 2. Law in this
regard has been laid down in Judgment Jagdish Prasad &
Anr. Vs. Jyoti Prasad & Anr. AIR 1975 RLR 203, the facts of
which are apposite to the present case. The relevant paras of
the said judgment are reproduced as under:
(2)The findings of the trial Court were
assailed on the ground that the case
set up by the respondent was to
enforce his right to share in the immovable property in suit on the plea that it was joint family property and he being not in possession of the same as averred in the written Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 23/51 24 statement, the courtfees payable ought to have been computed as per provisions of Section 7 (iv)(b) of the Courtfees Act (herein to be called 'the Act') on the market value of his share in the immovable property; that he further claims share in the jewellery in the sum of Rs. 13927/ th and 1/7 share of Rs. 6000/ and he admittedly being not in possession of any portion of the said assets the suit should have been separately valued for purposes of jurisdiction and courtfee and should have paid separate and ad valorem courtfees on the said amounts.
(3) It is settled law that to determine prima fade the nature of the suit it is the plaint which has to be examined. For the purpose of determining the appropriate provision of the Act applicable to a suit, the criterion to be kept in view is the frame of the suit. It is not of much relevance for the purpose of ascertaining the courtfees payable on a plaint as to Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 24/51 25 what terminology is used in the plaint but what in fact is the substance of the plaint. The Courtfees payable on a plaint has to be determined on the allegations in the plaint as the suit would proceed on the assumption set out in the plaint.
(21)There is however, substance in the second contention of the learned counsel for the petitioners that the trial Court was wrong in holding that the value of the suit for the purposes of jurisdiction would be Rs. 22910/ being he value of the respondents 1/7 share in the suit properties.
(22) Section 9 of the Suits Valuation Act, 1887 (vii of 1887) envisages that when the subjectmatter of suits of any class, other than suits mentioned in the Courtfees Act, 1870, Section 7, paragraphs v and vi, and paragraph x, clause (d), is such that in the opinion of the High Court it does not admit of being satisfactorily valued, the High court may with previous Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 25/51 26 sanction of the State Government direct that the suits of that class, shall, for the purposes of Court Fees Act, 1870, and of the Suits Valuation Act and any other enactment for the time being in force, be treated as if their subject matter were of such value as the High Court thinks fit to specify in that behalf.
(23) Pursuant to its aforesaid power the Punjab High Court has framed Rule 8 in Chapter 3C of the Punjab High Court Rules and Orders, Volume
1. which are applicable to Delhi, providing for the value regarding courtfee and jurisdiction which a plaintiff is required to state in the plaint in suits for partition of property. The said rules for facility of reference is reproduced below:
" 8. Suits for partition of property Courtfee(a) as determined by the Courtfees Act, 1870. Value (b) for the purposes of Suits Valuation Act, 1887, and the Punjab Courts Act, 1918the value of the whole of the Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 26/51 27 property as determined by section 3, 8 and 9 of the Suits Valuation Act, 1887"
(24) It would, therefore, be seen that so far as value for the purpose of jurisdiction is concerned, for the purposes of Suits Valuation Act, 1887, value of the whole of the property, sought to be partitioned, as determined by Section 3, 8, and 9 of the Suits Valuation Act has to be stated.
(25)Section 8 and 9 of the Suits Valuation Act indicate that value for courtfee and jurisdiction must be the same except in case of contrary rules made under section 9 of the Suits Valuation Act Rule 8 of Chapter 3C of Punjab High Court Rules and Orders, Volume I, being a contrary rule requiring that value for the purposes of jurisdiction shall be the value of the whole of the property, the trial Court was wrong in determining the value turn the Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 27/51 28 purpose of jurisdiction at Rs. 22910 being the value of the 1/7111 share of the respondent in the joint family property. The value for the purpose of jurisdiction should have been stated as the value of the whole of the property in terms of Rule 8 of Chapter 3C of Punjab High Court Rules and Orders, Volume I, in accordance with section 9 of the Suits Valuation Act.
(26)I am fortified i the above view from a decision of the Punjab & Haryana High Court in case Mangal Dass v.
Nannihal Singh and others, 1974 P.L.R. 255, in which it was observed that the jurisdictional value of suits for partition of property had to be determined on the value of the whole of the property in accordance with the provisions of Rule 8 of Chapter 3 C of Punjab High Court Rules and Others, Volume I and provisions of section 9 of the Suits Valuation Act. (27) In this view of the matter cases cited by the learned counsel for the respondents to the effect that the Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 28/51 29 jurisdictional value shall be the value of the share of the respondent need not be noted because of the mandatory requirement of rule 8 of Chapter 3C of the Punjab High Court Rules and Orders, Volume I, framed by the High Court under the powers conferred by section 9 of the Suit Valuation Act, 1887.
32.The said judgment is squarely applicable to the facts and circumstances of the present case. In view of the said judgment the value for the purposes of jurisdiction for the purposes of Suit Valuation Act shall be the value of the whole property sought to be partitioned.
33.Since the value of the suit property is more than Rs. 20 lacs as discussed above. Though plaintiff no. 1 is claiming herself to be in joint possession of the suit property, therefore she is bound to pay the fixed court fees, as per Article 17(VI) of Schedule II of Court Fee Act 1870 and not advalorem court fees. However, the valuation of the suit for the purposes of jurisdiction shall be the value of whole property and not Rs. 10 lacs and Rs. 200/, as Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 29/51 30 claimed by plaintiff no. 1 & 2 respectively. Since the value of the suit property for the purposes of jurisdiction is more than Rs. 20 lacs, therefore this court has no pecuniary jurisdiction to try the present suit. Therefore it is also held that the suit is not property valued for the purposes of court fees and jurisdiction and that this court has no pecuniary jurisdiction to try the suit. This court has only pecuniary jurisdiction to try the suit upto the pecuniary jurisdiction of Rs. 20 lacs at present. These issues are accordingly decided in favour of defendants and against the plaintiffs.
ISSUES No. 2, 4 & 5
34.All of them are taken up together, as they are interconnected with each other. Plaintiff has herself appeared in the witness box as PW1 and has reiterated the contents of her plaint in her examination in chief. Para 1, 2, 3 & 4 of the plaint are reproduced as under:
1. That plaintiffs and defendants are the members of the Joint Hindu Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 30/51 31 Undivided family and their relationships with each other as shown in the following pedigree table: Ganga Singh Father Defendant no.1 Sanno Devi Mother Deceased Died on 17.02.88 Sharavan Son Defendant no. 2 Singh Chauhan Dayawati Daughter Defendant no. 3 Nemwati Daughter Defendant no. 4 Jaywati Daughter Plaintiff no. 1 Chauhan Mithilesh Daughter Plaintiff no. 2 Chauhan Anand Singh Son Defendant no. 5 Chauhan
2. That the plaintiffs and defendants are the brothers and sisters except defendant no. Suit No. 163/14
Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 31/51 32 1, who is the father of the plaintiffs and the defendants and they are the legal heirs of the defendant no. 1.
3.That defendant no. 1 inherited the property bearing no. 104, Village Dhaka, Delhi(hereinafter referred to as the suit property) from his father Lt. Sh. Lal Singh, with a total area admeasuring 180 Sq. Yds approx. All the family members lived together with their father in the said house with the growing size of the family and marriage of brothers and sisters and some of the family members moved out of the said house and started living separately.
4. That the mother of the plaintiffs and defendants no. 25 namely Lt. Smt. Sanno Devi died on 17.02.1998 leaving behind the above said legal heirs. The father of the Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 32/51 33 plaintiffs after the demise of his wife was not permanently residing in the said suit property and as he was mentally disturbed with the sudden demise of his wife.
35.Same has been reiterated in the evidence of plaintiff no.1 who has appeared as PW1. Plaintiffs are not entitled to relief of partition mainly for two reasons, firstly the plaintiff no. 1 has nowhere stated that the suit property is a coparcenary property and that there existed an HUF consisting of her father and grandfather and that after amendment of 2005 she had also become coparcenar in the said HUF property of which defendant no. 1 was Karta. No such averment has been made in the pleadings or the evidence of the plaintiff. It is also not pleaded that defendant no. 1 was holding the suit property as the Karta of HUF where plaintiffs no.1 & 2 were also coparcenary.
36.The only difference after the recent amendment to Hindu Succession(Amedment Act 2005) in a Joint Hindu Family Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 33/51 34 governed by Mitakshara law is that a daughter/coparcener by birth shall become the coparcener in her own right in the same manner as a Son i.e after the said amendment the plaintiffs being the coparceners can also claim partition, whereas earlier they were not entitled to seek partition in the joint family or coparcenary property. Since the plaintiffs have only stated that defendant no. 1 inherited the suit property from Sh. Lal Singh i.e the Grandfather of plaintiff and the father of defendant no.1 who had already expired. By virtue of Section 8 of Hindu Succession Act the said property inherited by defendant no. 1 from his late father Sh. Lal Singh would be held by him as a self acquired property in which his children does not acquire any right by birth. In this regard judgment relied by counsel for defendant 197(2013)DLT 52(CN) SUPRA is relevant. The pertinent paras are reproduced as under:
3. The Hindu Succession Act, 1956 enacted more than half a century ago did away with the concept of ancestral properties, as existed prior thereto. After the coming Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 34/51 35 into force thereof, the property inherited by a male from his father is held as self acquired property in which children of such male do not acquire any right by birth. Reference in this regard can be made to Commissioner of Wealth Tax, Kanpur V. Chander Sen, AIR 1986 SC 1753 and Yudhishter V. Ashok Kumar, AIR 1987 SC 558. The counsel for defendants No.1 to 5 in this regard has also referred to Master Daljit Singh V. S. Dara Singh 85 (2000) DLT 794=II (2000) DMC 134 = AIR 2000 Del. 292 and Pratap V. Shiv Shanker, 164 (2009) DLT 479. However the popular misconception of ancestral properties continues to hold field, as is apparent from plethora of claims, even in courts, being made on the said premise.
4. Thus, the properties inherited by the grandfather of the plaintiffs on the demise of his own father in the year 1974, were held by him as his personal properties and in which his son i.e the father of the plaintiffs is merely on the basis of the properties being ancestral properties. No case of any coparcenary of grandfather Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 35/51 36 and father of plaintiffs is pleaded
5. The counsel for the plaintiffs has relied on Om Prakash Gulshan Vs J.D. Gulshan ,118(2005) DLT 91(DB), particularly to para 14 thereof.
However the said para 14 refers to the case of coparcenary. On the contrary the case of plaintiffs is merely on the basis of the properties. No case of any coparcenary of grandfather and father of the plaintiffs is pleaded.
7. However, what the plaintiff say therein becomes clear from para no. 14 of the plaint, where it is mentioned that "the said ancestral properties are the joint family properties which have never been divided by metes and bounds....". The claim of the plaintiffs of the properties being joint family properties is thus based only on the factum of the same being ancestral properties in the hands of their grandfather and not on the factum of there being any coparcenary of HUF in existence and of which no foundation whatsoever is Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 36/51 37 laid in the plaint.
8. A plea of property being 'Joint Family Property' owing to being jointly owned by members of a family is not the plea of existence of a coparcenary or a HUF. The Supreme Court in Satyaprema Manjunatha Gowda V. Controller of Estate Duty, Karnatka, III (1997) CLT 44(SC)=(1997) 10 SCC 684 held that even HUF & coparcenary are not one and the same under the Hindu Law though for the purposes of taxation under the taxation laws are treated as one and the same. The law of succession after coming into force of the Hindu Succession Act is governed thereby only. Of course, Section 6 thereof carved out an exception qua interest held by the deceased in a Mitakshara coparcenary property and provides that such interest shall devolve by survivorship upon the surviving members of coparcenary and not in accordance with the Act. However, it is not the case of the plaintiff that there was any coparcenary of which Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 37/51 38 their grandfather, his father and the plaintiff's father were a member. This Court recently in Premwati V. Bhagwati Devi, MANU/DEL./4784/2012 held that for a case for claiming a share in the property otherwise than under the Hindu Succession Act, it has to be pleaded that there existed an HUF since prior to coming into force of the Succession Act and which HUF by virtue of Section 6 of the Act has been permitted to continue. There is no such plea in the present case also.
37.Since plaintiffs have nowhere pleaded that there was any coparcenary of their father i.e defendant no. 1 and other defendants or that defendant no. 1 was holding the suit property as Karta of an HUF where the plaintiffs were the coparceners. The plaintiffs have only based their rights on the basis of the fact that the suit property is ancestral property and therefore the said property which has been inherited by defendant no. 1 from his late father Sh. Lal Singh is ancestral property in the hands of Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 38/51 39 defendant no. 1, which needs to be partitioned. Therefore the plea of the plaintiffs that suit property is ancestral property in the hands of defendant no. 1 and not on the factum of there being any coparcenary or HUF in existence, in such a scenario the suit property inherited by defendant no. 1 from his late father Sh. Lal Singh would be held by him as his self acquired property for which the present suit for partition is not maintainable.
38.Though the plaintiffs have not pleaded that the said suit property was Joint Family Property jointly owned by members of family and that there was a coparcenary consisting of defendant no. 1 and other coparceners or HUF, but at the same time defendants in their written statement have stated that Sh. Lal Singh who was the father of defendant no. 1 had four sons and three daughters. The names of four sons have been mentioned as Sh. Gopal, Sh. Shiv Raj Singh, Sh. Ganga Singh and Sh. Hari Singh and the names of three daughters are Rumali Devi, Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 39/51 40 Laxmi Devi and Maya Devi. It is also stated that Sh. Lal Singh was the owner of three properties, first the suit property, second bearing house no. 105, measuring 120 sq. yds., third bearing house no. 98, measuring 90 sq. yds., in the same village and after the demise of Sh. Lal Singh the said 7 children became the joint owners of his undivided properties and each th one of them is entitled to 1/7 share. All the said properties of Sh Lal Singh have not been partitioned so far and each children of Lal Singh is entitled to 51 Sq. yds.
39.It is also stated that one Sh. Ram Gopal and one daughter namely Smt. Laxmi Devi have also expired and their legal heirs are entitled to their respective shares in the suit property. In view of the pleadings made by defendants in their written statement which have also been reiterated by DW1 in his affidavit, it is apparent that the defendants admit that the suit property was a Joint Hindu Family property in which no partition had taken place and thereby the defendants have also stated that there was in existence coparcenary between the LRs of Sh. Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 40/51 41 Lal Singh including defendant no.1 in which no partition has taken place at yet. Since after 2005 amendment the females have also become coparcener(s) by birth in HUF properties, therefore they can also claim partition with respect to their share in the coparcenary property i.e the suit property. However, in the present case PW1 in her cross examination has admitted the entire case of the defendants with regard to the fact that the other LRs of Sh. Lal Singh were not made a party to the present suit and PW1 has also admitted that there was no written partition in respect to the suit property and other property left behind by Sh. Lal Singh. PW1 also admitted that four sons and three daughters have become the coowners of suit property after the demise of Sh. Lal Singh. The relevant cross examination of PW1 is reproduced as under:
It is correct that Late Sh. Lal Singh was my grandfather. It is correct that Sh. Lal Singh has got four sons and three daughters. It is correct that names of four sons of Late Sh. Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 41/51 42 Lal Singh are Ram Gopal, Sh. Shivraj Singh, Sh. Ganga Singh and Sh. Hari Singh. It is correct that names of three daughters of Late Sh. Hari Singh are Rumali Devi, Lakshmi Devi and Maya Devi. It is correct that daughters of Sh. Lal Singh named Lakshmi Devi and one son name Ram Gopal have expired. It is correct that Sh. Hari Singh, S/o Late Sh. Lal singh has also expired. It is correct that deceased Ram Gopal was married and he is having children from his marriage. The deceased Ram Gopal has got four sons and two daughters. Two children of Ram Gopal have expired but the remaining are alive. It is correct that Smt. Lakshmi Devi was also married and she has also got children. Smt. Lakshmi Devi has five daughters and Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 42/51 43 two sons. The names of sons of Lakshmi Devi are Jai Vijay, Vishw Vijay and the names of daughters of Lakshmi are Shashi, Sunita, Geeta, Anju & Manju. All the seven children of Late Sh. Lakshmi Devi are alive. The names of children of Late Ram Gopal are Raj Singh, Rajinder, Rajbir, Krishan and names of daughters are Satto and Suresh. Out of six children of late Ram Gopal two have expired and the remaining four are alive. The names of two deceased sons of late Ram Gopal are Rajinder and Krishan. It is correct that Sh. Hari Singh son of late Sh. Lal Singh has also expired. Hari Singh was married and having three sons only. Out of the said three sons Sh. Durgesh has expired and the remaining two sons are alive. The name of one son is Bharat but I Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 43/51 44 do not know the name of other son. It is correct that the name of other son is Sohan Pal. It is correct that Sh. Lal Singh was the owner of the property bearing house no. 104 measuring 150 sq. yds., and other property baring no. 98 measuring 90 sq. yds. It is correct that all the said three properties are situated in village Dhaka, Delhi, Vol. Sh. Lal Singh was the owner of other property no. 155D or C, Dhaka Delhi. I did not see any document of ownership no. 155 C or D, Dhaka, Delhi in the name of Sh.
Lal Singh. It is wrong to suggest that since Sh. Lal Singh was not the owner of property no. 155 C or D, Dhaka Delhi and because of this reason I have not seen any document of ownership in the name of Sh. Lal Singh., Vol. The property no. 155 C or D Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 44/51 45 was purchased by Sh. Lal Singh in the name of Shivraj Singh. I did not see any document of ownership of property no. 155 C or D in the name of Sh. Shivraj Singh. It is wrong to suggest that since Sh. Lal Singh did not purchase the property no. 155 C or D in the name of Shivraj Singh and because of this reason I have not seen any document of ownership in the name of Shivraj Singh. It is correct that after the demise of Sh. Lal Singh, there was no written partition in respect of properties no. 104, 105 & 98 Village Dhaka, Delhi amongst the four sons and three daughters of late Lal singh. It is correct that after the demise of Lal Singh the said three properties were inherited by his four sons and three daughters having 1/7th share Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 45/51 46 each. It is correct that said four sons and three daughters of Lal Singh became co owners of said properties after demise of Lal Singh.
40.DW1 in his cross examination has also admitted that suit property has not been partitioned/divided, whereby it is clear that no partition by metes and bounds had been taken with regard to the suit property between LRs of Late Sh. Lal Singh. Since it is claimed by defendants, as stated above that number of LRs of Lal Singh has not been impleaded as parties in the present suit. It is also admitted so by PW1 in her cross examination reproduced as above. Therefore secondly the present suit is not maintainable for non joinder of necessary parties. In this regard counsel for defendants has relied upon the judgment IV(2010) CLT 35. The relevant para(s) of which are reproduced as under:
45 It is well settled that in a Suit for partition, all the necessary parties have to be impleaded. In this context, it is Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 46/51 47 necessary to look into the decision of the Honourable Supreme Court reported in Dhanlakshmi V.P. Mohan, 2007 (3) CTC 332 (SC), wherein in para No.5, it was held as follows:
"5..........In the instant case, the Appellants have admittedly purchased the undivided shares of Respondents 2,3,4 and 6. It is not in dispute that the First Respondent P. Mohan has got an undivided share in the said suit property. Because of the purchase by the Appellants of the undivided share in the suit property, the rights of the First Respondent herein in the Suit or proceeding will not affect his right in the suit property by enforcing a partition. Admittedly, the Appellants, having purchased the property from the other cosharers, in our opinion, are entitled to come on record in order to work out the equity in their favour in the final decree proceedings. In our opinion, the Appellants are necessary and proper parties to the Suit, which is now pending before the Trial Court. We also make it clear that we are not concerned with the other Suit filed by the mortgage in these Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 47/51 48 proceedings".
46 In this connection, I am also fortified by the judgment of this Court reported in Kaliammal V. Karuppan and two Others, 2001 (2) CTC 601. Wherein this Court held that nonimpleadment of necessary party in a Suit for partition is fatal to the case. In Para Nos.11 and 14, it was held as follows:
"11 It is now settled law that in a Suit for partition, all the cosharer are necessary parties and if those parties have not been added, the Suit is liable to be dismissed for nonjoinder of any one of the parties.
14. There is also no dispute in the proposition that it is not desirable to keep out a sharer on the basis of a mere pleading by one if the rival parties contending in the absence of a particular sharer that he has no interest in the property. In this case, even though it is mentioned in the plaint that Muruvayee was a cosharer, no steps were taken by the plaintiff to implead her, who had been Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 48/51 49 left out."
47. Similarly, in the decision of this Court reported in R.Palanisami and two Others V R.Subramania Gounder and six Others, 2009(3) CTC539, a Ld. Judge of this Court held that nonimpleadment of any one of the cosharers/transferors in a Suit for partition is liable to be dismissed. In para No. 10, it was held as follows:
"10 It is trite proposition of law that there cannot be any piecemeal partition and in a partition suit, all necessary parties, should be added and only in their presence comprehensively a partition suit could be decided. As such, both the Courts below were right in dismissing the Suit with the aforesaid finding that the suit was bad for non joinder of necessary parties and also bad for adequate pleadings in support of plaintiff's prayer.
41.The said judgment is squarely applicable to the facts and circumstances of the present case, as in a suit for partition, all the cosharers and coowners or heirs of Late Sh. Lal Singh were the necessary parties and if those parties have not been Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 49/51 50 added or impleaded then the present suit is liable to be dismissed for nonjoinder of necessary parties, as it is settled proposition of law that there cannot be any piecemeal partition and in a partition suit, all the necessary parties should be added and only in their presence comprehensively a partition suit can be decided. Infact PW1 has also admitted that Sh. Lal Singh had left two other properties bearing no. 105 and 98 Village Dhaka Delhi, which had also not been partitioned yet.
42.Those properties were also not made subject matter of the present suit for partition for which no plausible explanation has been furnished. As discussed above, there cannot be any piecemeal partition and in partition suit the entire corpus of the property which need to be partitioned and all the parties, which are necessary parties, who are the cosharers or coowners should be added and only in their presence, the suit for partition can be decided once for all and the entire corpus has to be put in and partition suit cannot be maintained for one property by filing one suit and thereafter for another property and so on, Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 50/51 51 same is not permissible. In these circumstances, suit of the plaintiff is also not maintainable for this reason, same is also bad for non joinder of necessary parties. As a consequence, it follows that plaintiff is not entitled to a decree of partition by metes and bounds with respect to the suit property bearing no. 104, Village Dhaka, Delhi. These issues are answered accordingly.
(RELIEF)
43.In view of my findings on above issues, suit of the plaintiff stands dismissed with no order as to costs. Decree be drawn
44.File be consigned to Record Room. ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 08.08.2014 ADJ(N/W) Rohini Courts Delhi/08.08.2014 Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 51/51 52 Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 52/51 53 Suit No. 163/14 Jaiwati Chauhan & Ors Vs. Ganga Singh & Ors 53/51