Allahabad High Court
Durga Prasad Sharma Dead And 6 Others vs Smt Rajkumari And 3 Others on 24 May, 2024
Author: Saral Srivastava
Bench: Saral Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:94595 Court No. - 7 Case :- SECOND APPEAL No. - 395 of 2024 Appellant :- Durga Prasad Sharma Dead And 6 Others Respondent :- Smt Rajkumari And 3 Others Counsel for Appellant :- Abhai Singh,Virendra Singh Hon'ble Saral Srivastava,J.
1. Heard learned counsel for the appellants.
2. The present appeal has been preferred by the defendant/appellant (hereinafter referred to as 'defendant') challenging the judgement and decree dated 24.05.2016 passed by the trial court in Original Suit No.454 of 1990 by which suit of the plaintiff/respondent (hereinafter referred to as 'plaintiff') for partition has been decreed, and a direction was issued to prepare preliminary decree, and judgement and decree dated 13.03.2024/27.03.2024 passed by the first appellate court dismissing the Civil Appeal No.60 of 2016 preferred by the appellants challenging the judgement and decree passed by the trial court in Original Suit No.454 of 1990.
3. The brief facts of the case are that the plaintiff instituted Original Suit No.454 of 1990 claiming half share in the house bearing Municipal No.163 (New No.8/173) situated at Mohalla- Raghuvirpuri, Aligarh. It is the case of the plaintiff that the plaintiff and defendant are real brothers and when they were minor, the suit property was purchased by their father in their name as minor by sale deed dated 31.07.1940 registered on 03.08.1940. Initially, municipal number of the suit property was 5/128, 5/128A, 5/128B, and now the municipal number of the suit property has been changed to 8/163 and 8/173.
4. Further case of the plaintiff is that the plaintiff and defendant are in joint possession. However, for the past sometime, the plaintiff found it difficult to continue joint possession of the suit property with the defendant since the plaintiff is unable to enjoy his half share in the suit property to the best of his interest. The plaintiff requested the defendant to sit together and partition the suit property amicably, but the defendant did not agree to the suggestion of the plaintiff which gave cause of action to the plaintiff to institute the present suit. On the aforesaid facts, the plaintiff prayed for the relief of partition of half share in the suit property.
5. The suit was contested by the appellants. Besides taking other plea, it was pleaded that the suit of the plaintiff is hit by doctrine of partial partition inasmuch as the entire property in which the plaintiff and defendant have interest, have not been included in the suit. The said plea has been set up on the ground that beside the suit property, one house bearing number 8/351 situated at Sarai Lavariya constructed over 600 square yard land was purchased by the father of the plaintiff and defendant in his name, and in the said house, plaintiff and defendant and other brothers and sisters of the plaintiff and defendant have also interest, and since in the said property, the plaintiff and defendant has interest, therefore, the said property should also have been included in the plaint for the purpose of partition.
6. It appears that before the trial court, a specific point of partial partition was not pressed. The trial court besides other issue framed an issue "whether the suit is hit is by Order 2 Rule 2 of C.P.C". The trial court returned the finding on the said issue against the defendant by holding that the suit is not hit by Order 2 Rule 2 of C.P.C.
7. In the Civil Appeal preferred by the defendant, the defendant pressed the point that the suit is hit by doctrine of partial partition inasmuch as all the properties in which plaintiff and defendant has interest, have not been included in the plaint, therefore, the suit is liable to be dismissed.
8. The first appellate court framed specific issue as issue no.3 which reads as under:-
"3- क्या वाद में आंशिक विभाजन का दोष है?"
9. The first appellate court decided the said issue against the defendant on the ground that it is not in dispute between the parties that the House No.8/351 situated at Sarai Lavariya was purchased by the father of the plaintiff and defendant in the year 1928, and after the death of father of plaintiff and defendant, and all the heirs of Omkar Ballabh Jha (father of the plaintiff and defendant) had interest in the said property.
10. The first appellate court further held that since it is admitted between the parties that the suit property had been purchased by the father of plaintiff and defendant in their name when they were minors, and only plaintiff and defendant have interest in the suit property and other brothers and sisters of the plaintiff and defendant have no interest in the suit property, therefore, the suit for partition would lie with respect to the suit property being exclusively owned by the defendant and plaintiff. Accordingly, appellate court held that it is not necessary for the plaintiff to include the suit property i.e. House No.8/351 situated in Sarai Lavariya which was owned by the father of plaintiff and defendant, and after the death of their father, all the brothers and sisters of the plaintiff and defendant have interest in the said property.
11. The first appellate court further considered the judgement of Apex Court in the case of Shashidhar and Others Vs. Smt. Ashwini Uma Mathad and Another (SC) AIR 2015 (109) relied upon by the appellants and held that the said judgement is not applicable in the facts of the present case.
12. Learned counsel for the appellants has assailed the finding of the first appellate court only on the issue no.3 in the present appeal. He has contended that it is not in dispute that the House No.8/351 situated in Sarai Lavariya was owned by the father of plaintiff and defendant and they have interest in the said house, therefore, in such view of the fact, the plaintiff ought to have included the house situated at Sarai Lavariya in the suit, therefore, the suit for partition in respect of the suit property is not maintainable and is hit by doctrine of partial partition. It is further contended that the first appellate court has failed to correctly appreciate the law on the point that doctrine of partial partition is applicable in the facts of the present case and the suit of the plaintiff deserved to be dismissed. In this respect, he has placed reliance upon the two judgements of the Apex Court in the cases of Shashidhar (supra) and R. Mahalakshmi Vs. A.V. Anantharaman and Others 2009 (O) Supreme SC 1372.
13. I have considered the submission advanced by the learned counsel for the appellants and perused the record.
14. The facts as emanates from the record are that it is not in dispute that the suit property was purchased by the father of the plaintiff and defendant in their name when they were minors by sale deed dated 31.07.1940. It is also borne out from the record that it is nobody's case that after plaintiff and defendant became major, other brothers and sisters of the plaintiff and defendant claimed any interest in the suit property. The suit property is exclusively owned by the plaintiff and defendant and has been exclusively enjoyed by them. Thus, it is evident that it is only plaintiff and defendant have legal interest in the suit property.
15. Since, the suit property is in the joint name of plaintiff and defendant and has been enjoyed by them jointly, and except them, none had interest in the suit property, therefore, this Court is of the view that the finding returned by the first appellate court that the doctrine of partial partition is not applicable in the facts of the present case is just and proper and does not warrant any interference by this Court.
16. So far as the judgement relied upon by the learned counsel for the appellants in the case of Shashidhar (supra) is concerned, it emanates from the facts quoted in paragraph nos.4 & 5 of the said judgement that the partition was sought by one of the heirs of Late Basavantayya who had several properties and while instituting the suit, the plaintiff did not include all the properties owned by Basavantayya wherein all the heirs of Basavantayya including plaintiff had interest in the property owned by Basavantayya. In such background, the Apex Court held that the suit is barred by principle of partial partition whereas in the present case, it is not in dispute that in the suit property, only plaintiff and defendant have interest and nobody else has interest in the suit property.
17. The facts in the case of R. Mahalakshmi (supra) relied upon by the learned counsel for the appellants are also different from the facts of the present case inasmuch as in the said case, the plaintiff did not include in the suit for partition all the properties inherited by his father by virtue of registered deed of partition and in such factual backdrop, the Apex Court held that the suit is hit by doctrine of partial partition. Thus, the judgement relied upon by the learned counsel for the appellants are not applicable in the facts of the present case.
18. Since, no substantial question of law is involved in the instant appeal which needs to be answered by this Court, therefore, the appeal lacks merit, and is accordingly dismissed with no order as to costs.
Order Date :- 24.5.2024 NS