Delhi District Court
Bimla vs Dalip on 1 March, 2025
IN THE COURT OF SH. SHIV KUMAR
DISTRICT JUDGE -02, WEST DISTRICT:
TIS HAZARI COURTS, DELHI.
Civ DJ no. 610699/2016
CNR No. DLWT01-001138-2010
DLWT010001382010
1. Smt. Bimla Wd/o Late Sh. Daya Nand
2. Sh. Satpal S/o Late Sh. Daya Nand
3. Sh. Vijender S/o Late Sh. Daya Nand
All R/o Gali No. 3, Hari Nagar,
Bahadurgarh, Haryana
. . . Plaintiffs
Versus
1. Sh. Dalip S/o Sh. Chattar Singh
( Since Deceased) through his LR's
a) Smt. Lacho Devi W/o Late Sh. Dalip
b) Sh. Kuldeep S/o Late Sh. Dalip
c) Smt. Nirmala D/o Late Sh. Dalip
d) Smt. Babita D/o Late Sh. Dalip
Note: LR'S of Defendant No. 1 substituted vide order dated
09.10.2013.
2. Sh. Mahender Singh S/o Sh. Chattar Singh
(Since Deceased) thrugh his LR's
a) Smt. Shakuntla W/o Mahender
b) Sh. Balraj S/o Chattar Singh
c) Sh. Rahul S/o Chattar Singh
d) Smt. Sonia D/o Chattar Singh
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 1/ 35
Note: LR'S of Defendant No. 2 substituted vide order dated
25.02.2022.
3. Sh. Rajbir S/o Sh. Ramphal
4. Sh. Pradeep S/o Sh. Ramphal
All R/o Village & Post Office, Tikri Kalan,
Delhi
. . . Defendants
Date of institution of the case : 30.01.2010
Date on which reserved for judgment : 03.02.2025
Date of pronouncement of Judgment: : 01.03.2025.
SUIT FOR PARTITION AND PERMANENT INJUNCTION
JUDGMENT
1. Vide this judgment, I shall decide, the present suit for partition and permanent injunction.
CASE OF THE PLAINTIFFS AS PER THEIR PLAINT
2. The plaintiff has averred in the plaint that the defendant no. 1 & 2 are the real uncles and defendant no. 3 & 4 are the cousins of the plaintiffs no. 2 & 3 and the plaintiffs and defendants are belongs to the same family.
3. It is further averred by the plaintiffs that the plaintiffs and the defendants are the co-owners and having respective shares in the ancestral properties/land situated in the old abadi lal dora area and Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 2/ 35 extended abadi lal dora area of Village Tikri Kalan, Delhi. The details of the properties are as under:
S. No. Khasra No. Area Status 1. 154 (extended Lal dora) 0-08 Biswa Vacant 2. 460 ( extended lal dora) 0-03 Biswa Built up 3. 125 ( old Lal Dora) 0-03 Biswa Built up
4. It is further averred by the plaintiffs having 1/4th share ( approx. 150-160 sq. yds) in the above said properties/land and the remaining 3/4th share out of the above said properties/lands belongs to the defendants. It is further averred that plaintiffs presently residing at Bahadurgarh, Haryana and the defendants are residing in the Village, Tikri Kalan, Delhi. The father of the plaintiffs no. 2 & 3 and the defendants had constructed residential house total measuring 150 sq. yds approx. in the old Lal Dora area from joint funds and all the family members had resided in the said constructed house for many years.
5. It is further averred by the plaintiffs that during the lifetime of the father of the plaintiffs no. 2 & 3, a mutual settlement was accrued between the family members and as per the said settlement, the land measuring 100 sq. yds i.e. 2 biswas out of Khasra no. 154 situated within the extended lal dora abadi area of Village Tikri Kala, Delhi and land ad-measuring 50 sq. yds, in the old house out of Khasra no. 125 within old lal dora area, will go to the share of the father of the plaintiffs no. 2 & 3. It is further averred that, father of plaintiffs no. 2 & 3 remained in possession of the land ad-measuring 100 sq. yds of Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 3/ 35 the said plots/portioned out of Khasra no. 154 till his death and after the death of their father, the plaintiffs are in actual physical possession of the said land/plots/portioned ad-measuring 100 sq. yds.
6. It is further averred by the plaintiffs that defendant no. 1 is presently residing in the house situated within the Old Lal Dora area ad-measuring 100 sq. yds as well as defendant no. 3 & 4 also sharing a portion of the said property. The defendant no. 2 is residing in the property/Khasra No. 460, total area in the said property/khasra no. is measuring 150 sq. yds. It is further averred by the plaintiffs that the defendant no. 2 has constructed his house in the said land/plot/Khasra no. It is further averred that defendant no. 1 is also having 50 sq. yds land in the Khasra no. 154 as well as the defendant nos. 3 & 4 also having 80 sq. yds in the said plot/Khasra as per the oral family partition.
7. It is further averred by the plaintiffs, that as per the above said oral family settlement, the plaintiffs are entitled to get their ¼ share in plot/Khasra no. 154 and plot/Khasra no. 125. But after the death of father of the plaintiff no. 2 & 3, the defendants are not bothered to give the proper share of the plaintiffs and they dishonest in this regard.
8. It is further averred by the plaintiffs that plaintiffs are the recorded co-owners/co-sharers in the properties/Khasras No. 460 and 154 within extended lal dora and they are the also co-owners of their Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 4/ 35 respective share i.e. ¼ share in the property/house situated within the old lal dora area bearing Khasra No. 125, Village Tikri Kalan, Delhi.
9. It is further averred by the plaintiffs that parties to suit are in possession of the portions as shown in site plan attached with plaint which may be read as part and parcel of the plaint. The portion in occupation of the defendants has been specifically shown in red colour in the site plan.
10. It is further averred by the plaintiffs that during the lifetime of the father of the plaintiffs no. 2 & 3, the plaintiffs and defendants had been peacefully enjoying/using their respective undivided shares/portions without any interference from any side. However, after the death of the father of plaintiff no. 2 & 3 in the year 2009, the defendants have started threatening to the plaintiffs that they have no right, title or interest in the land/property/Khasra no. 460 and 154 and old abadi area of Lal Dora bearing Khasra no. 125, Village Tikri Klan, Delhi and defendants have also started creating interference in the peaceful possession and use of the portion of the above said lands out of Khasra no. 154.
11. It is further averred by the plaintiffs that with a view to overcome the unpleasantness created by the defendants, the plaintiffs had been requesting them to get the property partitioned by metes and bounds so that they can enjoy their respective shares and portions peacefully without interference from each other. However, the Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 5/ 35 defendants refused to get the suit property partitioned by metes and bounds as per the shares of the parties to this suit.
12. It is further averred by the plaintiffs that now the defendants trying to raise illegal construction on the undivided suit property un- authorisedly. The defendants have no right, title or interest to raise illegal construction in the undivided suit properties without getting the same partitioned by metes and bounds.
13. It is prayed by the plaintiffs that a decree of partition in favour of the plaintiffs and against the defendants thereby declaring that the plaintiffs have 1/4th share in the suit properties/Khasra no. 460 and 154 and Old abadi area bearing Khasra no. 125, Village Tikri Kalan, Delhi, as shown in the site plan.
CASE OF THE DEFENDANT NOS. 1, 3 & 4 AS PER THEIR WRITTEN STATEMENT
14. In the written statement, the contents of para no. 1 & 2 are not denied by the answering defendants, however, they submitted that the answering defendants are filing three different site plans for specification of the property of the parties which gives the exact dimension, location and extent of the property in dispute. The contents of para no. 3 are not denied, however, in respect of para no. 4 of the plaint, it is contended that the parties to the suit have without partition of the suit property by metes and bounds, started living in their constructed house with their convenience. It is further contended Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 6/ 35 that the portion which is in use and occupation of defendant no. 1 in the property no. 125, is shown in blue colour whereas the portion which is in use and occupation of the defendant no. 2 & 3 is shown in light green colour, whereas the property located in Khasra no. 460 to the extent of 150 sq. yds was given for use and occupation to the plaintiff's predecessor-in-interest and to the defendant no.4, but at present the same is in use and possession of the defendant no. 4 which is shown in red colour. However, it is further contended that the property located in Khasra no. 154 ad-measuring 400 sq. yds is in the joint use and occupation of the parties to the suit as there is no partition even for its use and occupation.
15. The contents of para no. 5 are not completely denied, it is denied that the defendant no. 1 is having 50 sq. yds and defendants no. 3 & 4 are having 80 Sq. yds in the land of Khasra No. 154 as per the oral family partition. It is submitted that the answering defendant no. 1 has 1/4th share in the entire suit property, whereas the defendant no. 3 & 4 also have 1/4th share in the entire suit property.
16. The contents of para no. 6 of the plaint are not denied to the extent that the plaintiffs have ½ share in the suit property, but it is specifically denied that after the death of predecessor-in-interest of the plaintiff, the defendants have not bothered to give the proper share to the plaintiffs and they became dishonest. It is submitted that the defendants are ready to partition the suit property by metes and bounds, but it is the defendant no. 2 who is not interested to partition Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 7/ 35 the property as he has occupied the excess area than to his entitlement.
17. It is further contended that the possession shown by the plaintiffs in the site plan is not clear, hence the same is not commented upon. It is further contended that plaintiffs have never asked for partition of the suit property from the answering defendants. The allegations made by the plaintiffs are vague and without any specific date, time, month and year as and when they claimed the partition. It is further contended that when the answering defendants have not tried to raise any illegal construction, then the question of not listening the request of the plaintiffs do not arise at all. The contents of remaining paras of the plaint are denied as wrong.
18. Plaintiffs have filed replication to the written statement of defendant nos. 1, 3 & 4 and submitted that there is no need to reply para no. 1 to 3 being admitted by the defendant nos. 1, 3 & 4 and they denied all the rest contentions of defendant no. 1, 3 & 4 and reiterated the contents of their plaint.
CASE OF DEFENDANT NO. 2 AS PER HIS WRITTEN STATEMENT
19. Defendant no. 2 has filed his separate written statement and submitted that the suit filed by the plaintiff is great abuse of the process of the court and is based upon false and frivolous allegations, Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 8/ 35 which are false even to the knowledge of the plaintiffs and contrary to the record of the case.
20. It is further contended by defendant no. 2 that the present suit has been filed by the plaintiffs with the malafide intention to harass and drag the defendants into unnecessary and uncalled litigation and also to extract money from them by blackmailing them. It is further contended that plaintiffs have not come to this court with clean hands and are guilty of suppressing the true and correct facts from this court.
21. It is further contended that on 04.05.1972, Sh. Chattar Singh predecessor-in-interest of the parties, had sold the plot no. 460, ad- measuring 3 biswas, situated in Village Tikri Kalan, Delhi to Pt. Shiv Kumar for a sum of Rs. 3,000/- in order to fulfill his bonafide requirement to arrange money for the marriage of his daughter namely Smt. Santra, with the consent of late Sh. Dayanand, husband and father of plaintiffs and defendant no. 1. It is further contended that at that time, defendant no. 2 was in Military service and posted at Badmar, Rajesthan and Sh. Ramphal was at Bombay. It is further contended that on 14.05.1972, the defendant no. 2 purchased the said plot no. 460, ad-measuring 3 biswas, situated in the Village, Tikri Kalan, Delhi from Pt. Shiv Kumar in the presence of Maha Singh, Sh. Hari Singh , Pardhan Sh. Chandan Singh and Sh. Ranbir Singh, all resident of Village Tikri Kalan, Delhi, hence the above said plot is the self-acquired property of defendant no. 2.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 9/ 35
22. It is further contended that the predecessor-in-interest of the parties, namely late Sh. Chatter Singh, during his life time, in the year 1973-74 partitioned the agricultural land and the residential plots/houses amongst his four sons namely Sh. Dayanand, husband and father of plaintiffs, defendant no. 1 and 2 and father of defendant no. 3 & 4, namely Sh. Ramphal. It is further contended that during this partition instead of the other properties, the built-up house of Khasra No. 125 came to the share of Sh. Dalip Kumar, Defendant no. 1 and late Sh. Ramphal, father of defendant no. 3 & 4 and the vacant plot bearing no. 154, came to the share of husband and father of plaintiffs namely Sh. Dayanand and defendant no. 2. It is further contended that after the said partition, in the year 1975, husband and father of the plaintiffs Sh. Dayanand shifted to Bahadurgarh, Haryana,
23. It is further contended that on 15.12.1994, Sh. Dayanand, husband and father of the plaintiffs sold his share in the plot of land bearing Khasra No. 154 to the defendant no. 2 for a total sale consideration of Rs. 50,000/- by executing the agreement, receipt, affidavit and GPA in favour of defendant no. 2, therefore after purchasing the same, defendant no. 2 has become the absolute owner of the said plot. It is further submitted that in the agreement to sell, the sale consideration amount is mentioned as Rs. 20,000/- instead of Rs. 50,000/- but in the receipt the fact that defendant no. 2 paid a sum of Rs. 50,000/- to Sh. Dayanand has been mentioned.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 10/ 35
24. It is further contented that in year 1984-85, Sh. Dalip defendant no. 1 and husband and father of plaintiffs, Sh. Dayanand had sold their ½ share of the land which falls inKhasra No. 1291, ad-measuring 1 bigha 3 biswas to Sh. Inder Singh S/o Sh. Maha Singh, Sh. Daryao Singh and Sh. Joginder Singh, both sons of Sh. Inder Singh and in the revenue record same is also mutated in the name of said purchasers.
25. It is further contended that in the year 1993-94, from the land bearing Khasra no. 33/13/1, ad-measuring 1 bigha 2 biswas, the defendant no. 1, husband and father of the plaintiffs namely Sh. Dayanand sold their ½ share to Sh. Dharampal S/o Raghu Nath by executing the agreement to sell and GPA etc. Later on in the year 2008, defendant no. 3 & 4 also sold their 1/4th share in the land bearing Khasra No. 33/13/1 to other person.
26. It is further contended that in the year 1995, Sh. Dalip defendant no. 1 and husband and father of the plaintiffs Sh. Dayanand had sold their ½ share in the land bearing Khasra No. 93/5 and 53/4 to Sh. Het Ram S/o Sh. Jage Ram, R/o Village Dharampura, Delhi and in the revenue record same is also muted in the name of said purchaser.
27. It is further contended that on 20.08.2004 in the police post Tikri Kalan, during the life time of Sh. Dayanand, a compromise was also arrived between Sh. Dayanand and defendant no. 2, whereby the defendant no. 2 agreed to re-convey the land of plot bearing Khasra no. 154 to Sh. Dayanand subject to the condition that Sh. Dayanand had to pay a sum of Rs. 45,000/- as principal amount and Rs.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 11/ 35 1,64,000/- as an interest to the defendant no. 2 upto 20.10.2004 and if Sh. Dayanand failed to pay the said amount to defendant no. 2 upto 20.10.2004 then said plot will become the absolute property of defendant no. 2. But Sh. Dayanand had failed to pay the said amount to defendant no. 2, upto 20.10.2004, hence the said compromise has not been fulfilled at any point of time and defendant no. 2 has become the absolute owner of the said plot.
28. It is further contended that on 18.05.2007, a settlement was arrived between the parties i.e. defendant no. 1, defendant no. 2 and son of defendant no. 1, in the presence of Sh. Ranbir Singh and Sh. Rai Singh and same was also reduced into writing, wherein it has been mentioned that (1) old lal dora house bearing Khasra no. 125 situated near the electric poll no. 57, in the said house, defendant no. 1 and the father of the defendant no. 3 & 4 (including defendant no. 3 &
4) shall have ½ share each (ii) in the plot no. 154 father of the plaintiffs and defendant no. 2 will have ½ share each ( iii) that the plot no. 460 had been purchased by defendant no. 2 from his own income and it is his self acquired property.
29. It is further submitted that in view of the above said facts, it clearly shows that all the properties amongst the four sons of late Sh. Chattar Singh had already been partitioned by late Sh. Chattar Singh during his life time and the present suit by which the plaintiffs are seeking the partition is a false and frivolous suit and same is liable to be dismissed.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 12/ 35
30. It is further contended that there is no cause of action arose in favour of the plaintiffs to file the present suit and the suit is barred under the provision of order 7 rule 11 CPC and is liable to be dismissed. It is further contended that the suit has not been properly valued for the purpose of court fee and jurisdiction or that plaintiffs are not in possession of any part of the suit properties and plaintiffs are residing at Bahadurgarh, Haryana since the year 1975.
31. It is further contended that the present suit is hit under the provisions of section 185 and 55 of Delhi Land Reforms Act, 1954, as the suit land situated in the village Tikri Kalan is being governed by the provisions of Delhi Land Reforms Act, 1954 and only the revenue authority has the jurisdiction to entertain and try the present suit. It is further contended that in the present suit the plaintiffs have not sought any relief of possession.
32. It is further contended that the present suit filed by the plaintiffs is hit by the provisions of section 41(h) & (i) of Specific Relief Act, 1963, in as much as mere admittedly the plaintiffs have no right, title and interest over the suit properties.
33. It is further contended that the present suit is a collusive suit amongst the plaintiffs and defendant no.1, 3 & 4, in order to grab the valuable properties of answering defendant which had been purchased by him for consideration.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 13/ 35
34. Plaintiffs have filed replication to the written statement of defendant no. 2 and denied all the preliminary objections taken by the defendant no. 2 and submitted that the plaintiffs and the defendants are the co-owners and having respective shares in the ancestral properties/land situated in the old abadi lal dore area and extended abadi lal dora area of Village Tikri Kalan, Delhi and reiterated the contents of the their plaint.
35. On 02.01.2014, from the pleadings of both the parties, following issues have been framed for adjudication:
1. Whether the plaintiffs are entitled to a decree of partition, declaring them to have 1/4th share in respect of suit property i.e. 460 and 154, old abadi area, Khasra No. 125, Village Tikri Kalan, Delhi, as prayed ? OPP
2. Whether the plaintiffs are entitled to a decree of permanent injunction restraining the defendants from raising unauthorised and illegal construction in the suit property as prayed for? OPP
3. Relief EVIDENCE OF THE PLAINTIFFS
36. In order to prove his case, the plaintiff no. 1 has examined herself as PW-1 and tendered her evidence by way of affidavit Ex PW-1/A, wherein she reiterated the contents of her plaint and relied upon documents which are as follows:-
i). Ex. PW-1/2 : Site Plan ( objected to with regard to mode of proof).
ii). Mark A : Copy of Khatoni ( Ex. PW-1/1 in her affidavit and de-exhibited being the photocopy).
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 14/ 35
37. PW-1 has been duly cross-examined by the ld. Counsel for the defendant no. 2.
38. It is pertinent to mention that vide order dated 16.07.2019, the evidence on behalf of plaintiffs was closed.
EVIDENCE OF THE DEFENDANT NO. 239. In order to prove his case, defendant no. 2, Sh. Rahul son of late Sh, Mahender Singh, one of the LRs of deceased defendant no. 2, has examined himself as DW2W1, he tendered his evidence by way of affidavit Ex. DW2W1/A and he reiterated the contents/objections in their written statement and he relied upon the following documents:-
i) Ex.D2W-1/1: Agreement dated 14.05.1972 executed between Pt. Shiv Kumar and his deceased father.
ii) Ex.D2W-1/2: Agreement dated 15.12.1994 executed by late Sh. Dayanand in favour of his father.
iii) Ex.D2W-1/3: Original GPA dated 15.12.1994 in favour of his father.
iv) Ex.D2W-1/4: Original Receipt 15.12.1994.
v) Ex.D2W-1/5: Affidavit dated 15.12.1994 of late Sh. Dayanand in favour of his father.
vi) Mark A: Copy of Khatauni for the year 1980-81.
vii) Ex.D2W-1/6: Original Khatauni for the year 1998-99.
viii) Mark B: Copy of compromise dated 20.08.2004 Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 15/ 35
ix) Ex.D2W-1/7: Original compromise/settlement dated 18.05.2007.
x) Mark C: Photographs of the plot bearing Khasra no. 154.
( all the documents have been objected to by ld. Counsel for the plaintiff and defendant no. 1, on the ground of mode of proof).
DW2W1 has been cross-examined at length, on behalf of plaintiffs as well as on behalf of defendant no. 1, 3 & 4.
40. Sh. Balraj son of late Sh, Mahender Singh, one of the LRs of defendant no. 2 appeared as DW2W2 & he tendered his evidence by way of affidavit Ex. DW2W2/A and reiterated the contents/objections mentioned in their written statement and relied upon the documents exhibited in the testimony of DW2W1.
DW2W2 has been cross-examined at length, on behalf of plaintiffs as well as on behalf of defendant no. 1, 3 & 4.
41. Vide separate statement of Sh. Balraj S/o late Mahender Singh, one of the legal heirs of defendant no. 2, evidence on behalf of L.Rs of defendant no. 2 stood closed on 11.03.2024.
EVIDENCE OF DEFENDANT NO. 1, 3 & 4.
42. Sh. Pradeep, defendant no. 4 has appeared in the witness box as DW-4 and tendered his evidence by way of affidavit Ex. DW-4/A and he relied upon the site plan Ex. DW-1, 3 4-W-1/1 ( Colly).
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 16/ 35 FINAL ARGUMENTS
43. Arguments heard on behalf of the defendants. None has appeared on behalf of the plaintiff for addressing final arguments despite giving him several opportunities and thereafter right of plaintiffs, to address final arguments stood closed on 03.02.2025. I have perused the complete case file.
My issuewise findings is as under:
Issue No. 1Whether the plaintiffs are entitled to a decree of partition, declaring them to have 1/4th share in respect of suit property i.e. 460 and 154, old abadi area, Khasra No. 125, Village Tikri Kalan, Delhi, as prayed ? OPP
44. The onus to prove issue no. 1 is upon the the plaintiffs. In order to prove the said issue, plaintiffs have examined only one witness i.e. plaintiff no.1 herself.
45. The case of the plaintiffs is that the plaintiffs are co-owner in the suit properties to the extent of 1/4th share.
46. In the present case the plaintiffs are seeking partition of properties i.e. Khasra No. 460 (0-03), 154 ( 0-08) and 125 ( 0-03), situated at Village Tikri Kalan, Delhi.
47. During cross-examination, PW-1 has admitted that it is correct land of Khasra No. 460, Khasra No. 154 and Khasra no. 125 of Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 17/ 35 Village Tikrai Kalan, were in the Bhumidari of late Sh. Chattar Singh. PW-1 further admitted that "revenue record still reflect the name of all his sons and successor of late Sh. Chattar Singh as joint owners of the suit land".
48. Plaintiffs have not proved any document regarding title of deceased Sh. Chattar Singh, over the suit property. No official from Revenue department has been examined to prove the revenue record i.e. Khatoni, in the name of late Sh. Chattar Singh.
49. Plaintiff/PW-1 has deposed in his affidavit in evidence that during the lifetime of the father of the plaintiffs no. 2 & 3, a mutual settlement was arrived between the family members and as per the said settlement the land measuring 100 sq. yds i.e. 2 biswas out of Khasra no. 154 situated within the extended lal dora abadi area of Village Tikri Kala, Delhi and measuring 50 sq. yds, in the old house out of Khasra no. 125 within old lal dora area will go to the share of the father of the plaintiffs no. 2 & 3. It is further deposed by PW-1 that father of plaintiffs no. 2 & 3 remained in possession of the land measuring 100 sq. yds of the said plots/portioned out of Khasra no. 154 till his death and after the death of their father, the plaintiffs are actual physical possession of the said land/plots/portioned measuring 100 sq. yds.
50. DW2W1 has deposed that late Sh. Chattar Singh, during his life, in the year 1973-74 partitioned the agricultural land and the residential plots/houses amongst his four sons namely Sh. Dayanand, Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 18/ 35 husband and father of plaintiffs, defendant no. 1 and 2 and father of defendant no. 3 & 4, namely Sh. Ramphal. DW2W1 further deposed that during this partition instead of the other properties, the built-up house of Khasra No. 125 came to the share of Sh. Dalip Kumar, Defendant no. 1 and late Sh. Ramphal, father of defendant no. 3 & 4 and the vacant plot bearing no. 154, came to the share of husband and father of plaintiffs namely Sh. Dayanand and defendant no. 2. DW2W1 further deposed that after the said partition, in the year 1975, husband and father of the plaintiffs Sh. Dayanand shifted to Bahadurgarh, Haryana,
51. The plaintiff has not mentioned the date, month and year when the above said mutual settlement arrived between the family members. The defendant no. 2 has also not mentioned the date and month and specific year when partition of the properties of late Sh. Chattar Singh took place during the life time of late Sh. Chattar Singh. Even no detail has been given by plaintiff as well as defendant no. 2 of mutual settlement or partition. No document in this regard has been filed on record. No witness of the said mutual settlement/Family partition has been examined by the plaintiffs or by the defendants. Moreover, during his life time, only late Sh. Chattar Singh was competent to distribute his assets by way of execuiton of registered documents of immovable properties having value of Rs. 100/- and upwards, as per Section 17 of the Registration Act. The sons and daughters of late Sh. Chattar Singh have no right to divide the assets of late Sh. Chattar Singh, during his life time. In the absence of any document regarding above said mutual Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 19/ 35 settlement/Family patition, the evidence of PW-1/plaintiff and defendant no. 2 regarding mutual settlement/Family Partition is not reliable. In view of the above said discussions, it is held that plaintiffs as well as defendant no. 2 have failed to prove that any mutual settlement/Family partition took place between the family members, during the life time of late Sh. Chattar Singh. Even for the sake of arguments, it is presumed that mutual settlement/Family partition has been taken place between the family members, during the life time of late Sh. Chattar Singh regarding division of properties of late Sh. Chattar Singh, the said mutual settlement/Family settlement does not confer any right, title and interest in the said properties to the sons of late Sh. Chattar Singh, in the absence of registered document, in this regard as per section 17 and section 49 of the Registration Act, 1908.
52. Son of the deceased defendant no. 2 i.e. Sh. Rahul/ DW2W1 has deposed by way of affidavit in evidence that on 4.07.1972, Sh. Chattar Singh had sold plot no. 460 admeasuring 3 biswa to Pt. Shiv Kumar for a sum of Rs. 3,000/- with the consent of late Sh. Daya Nand, husband and father of the plaintiffs and with the consent of deceased defendant no. 1.
53. The plaintiffs have denied the selling of plot no. 460 ad- measuring 3 biswas by late Sh. Chattar Singh to Pt. Shiv Kumar. The defendant no. 2 has not examined any witness of the said sale transaction to prove the above said sale of plot no. 460. During cross- examination DW-2W1 deposed that the only document that he has to show that Sh. Chattar Singh sold 3 biswas of Khasr No. 460 to Sh.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 20/ 35 Shiv Kumar is marked as Mark D1. Defendant no. 2 has not examined any witness to prove the document Mark D1. Mark D-1 is only a photocopy of hand written letter and this letter does not transfer ownership of 3 biswa land out of Khasra no. 460 upon Shiv Kumar. There is no evidence on record except the bald assertion of the defendant no. 2 to the fact that late Sh. Chattar Singh had sold the plot no. 460 to Pt. Shiv Kumar. In view of the above said fact, it is held that defendant no. 2 has failed to prove that late Sh. Chattar Singh had sold the plot no. 460 to Pt. Shiv Kumar on 4.05.1972.
54. DW-2W1 further deposed that on 14.05.1972, his father purchased the said plot no. 460 from Pt. Shiv Kumar and the said plot is self acquired property of his deceased father. DW-2 has exhibited the original agreement to sell dated 14.05.1972 as Ex. D2W1/1.
55. DW2W1 deposed during his cross-examination that he does not know about the transaction of year 1972 and he only heard the said fact from his father. DW2W1 further deposed that it is correct that neither Sh. Shiv Kumar has filed any suit for getting a sale deed registered against late Sh. Chattar Singh nor did his father filed any suit against Sh. Shiv Kumar for getting the sale deed regarding the transaction dated 04.05.1972 or 14.05.1972.
56. DW2W1 further deposed that on 15.12.1994, Sh. Dayanand husband and father of the plaintiffs sold his share in the plot of land bearing Khasra No. 154 to the defendant no. 2 for a total sale consideration of Rs. 50,000/- by executing the agreement, receipt, Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 21/ 35 affidavit and GPA in favour of defendant no. 2, therefore after purchasing the same, defendant no. 2 become the absolute owner of the said plot. DW2W1 further deposed that in the agreement to sell, the sale consideration amount is mentioned as Rs. 20,000/- instead of Rs. 50,000/- but in the receipt the fact that defendant no. 2 paid a sum of Rs. 50,000/- to Sh. Dayanand has been mentioned.
57. DW2W1 has exhibited the original agreement to sell dated 15.12.1994 as Ex. D2W1/2, original power of attorney dated 15.12.1994 as Ex. D2W1/3, original receipt dated 15.12.1994 as Ex. D2W1/4 and affidavit dated 15.12.1994 as Ex. D2W1/5.
58. DW2W1 has been duly cross-examined by ld. Counsel for the plaintiffs and plaintiffs have denied the above said testimony of DW2W1.
59. It is settled law that GPA, agreement to sell, affidavit and receipt do not confer any right, title or interest in the suit properties upon defendant no. 2. At the best, on the basis of agreement to sell, the deceased defendant no. 2 could have filed the suit for specific performance. The above said agreement to sell is of 14.05.1972 and 15.12.1994 but till date no suit for specific performance has been filed on behalf of deceased defendant no. 2. The agreement to sell is not a conveyance deed and it does not transfer ownership in the suit property in favour of deceased defendant no. 2. On the basis of GPAs, agreement to sells, receipts and affidavits, the defendant no. 2 cannot become owner of the suit properties. Reliance has been placed on the Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 22/ 35 following judgment passed by the Hon'ble Supreme Court of India and Hon'ble High Court of Delhi.
1. Shakeel Ahmad Vs Syed Akhlaq Hussain, Civil Appeal no. 1598 of 2023, decided on 01.11.2023.
2. Ganshyam Vs Yogendra Rathi, Civil Appeal no. 7527-7528 of 2012 decided on 02.06.2023.
3. Munishamappa Vs M. Rama Reddy & Ors. Civil Appeal no. 10327 of 2011 decided on 02.11.2023.
4. Raj Kaur Vs Mitlesh & Ors, AIR on-line, 2021 DEL 850, decided on 05.05.2021 by the Hon'ble High Court of Delhi.
60. None of the parties has disclosed the date of death of Sh. Chattar Singh. From the testimony of the witnesses, one thing is clear that Sh. Chattar Singh has died after 4.5.1972. It is also not the case of the parties that Sh. Chattar Singh has died after leaving a will. From the pleadings as well as from the evidence of the parties, it is established that Sh. Chattar Singh has died intestate. No evidence has been led by the parties that the suit properties are the ancestral properties and were inherited by late Sh. Chattar Singh from his forefathers. In view of the pleadings and evidence on record, it is established that the the suit properties are the self acquired properties of late Sh. Chattar Singh.
61. The parties in the present case are Hindu by religion. The parties are not alleging leaving of any Will behind by late Sh. Chattar Singh. So, the estate of late Sh. Chattar Singh will be distributed among his legal heirs by way of instate succession as per section 8 of the Hindu Succession Act, 1956.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 23/ 35
62. During cross-examination, PW-1 deposed that she is seeking the partition qua the properties left by late Sh. Chhatar Singh who was her father-in-law. PW-1 further deposed during her cross- examination that late Sh. Chatar Singh died leaving behind four sons and three daughters, namely, Sh. Dalip, Sh. Ram Phal, Sh. Daya Nand, Sh. Mohinder Singh, Smt. Parmaeshwari , Smt. Birmo and Smt. Santra. PW-1 further deposed that Smt. Parmeshwari has died leaving behind two sons and Smt. Birmo has also died leaving behind three sons and one daughter.
63. During cross-examination, PW-1 further deposed that she cannot tell any reason as to why in the present suit, the plaintiff has not impleaded Smt. Santra and legal heirs of late Smt. Parmeshwari and late Smt. Birmo. She voluntarily deposed that Smt. Santra, Smt. Parmeshwari and Smt. Birmo are married daughters of late Sh. Chattar Singh. PW-1 further deposed that Chattar Singh died before the death of Smt. Parmeshwari and Smt. Birmo. PW-1 further admitted that " it is correct that Smt. Santra, above said LH of Smt. Parmeshwari and Smt. Birmo are the legal heirs of late Sh. Chattar Singh.
64. From the testimony of PW-1, it is proved that late Sh. Chattar Singh was having four sons and three daughters at the time of his death. In view of section 8 of Hindu Succession Act, the class I legal heirs of late Sh. Chattar Singh are entitled to inherit his properties in equal shares.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 24/ 35
65. As per schedule of Hindu Succession Act, 1956, sons and daughters of the deceased/late Sh. Chattar Singh are his class-I legal heirs. Therefore, the daughters of late Sh. Chattar Singh have also equal share in the properties of the deceased/late Sh. Chattar Singh. So, the daughters are also entitled to inherit in the property of the deceased late Sh. Chattar Singh in equal shares alongwith their brothers.
66. After death of late Smt Parmeshwari and Smt. Bimro, their children and husbands have the right to inherit the share of Smt Parmeshwari and Smt. Bimro but neither Smt. Santra nor legal heirs of deceased Smt. Parmeshwari and Smt. Birmo have been made party in the present case. Question regarding this fact has also been put to plaintiff/PW-1 by ld. Counsel for defendant no. 2 but despite that plaintiff has not made them party in the present case.
67. Order 1 rule 9 CPC states as under:
Misjoinder and non-joinder- No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
[Provided that nothing in this rule shall apply to non-joinder or a necessary party]
68. It is settled law that the suit of the plaintiffs is liable to be dismissed if all the necessary parties have not been joined in the proceedings and some of the judgments have been discussed below:
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 25/ 35
69. In a judgment titled K. Christy Caroline E.G & Ors. Vs. Karipali Shepard kinghs Burgh, Suit no. 2672 of 1999, decided on 05.02.2024, the Hon'ble High Court of Andhra Pradesh has held as follows:
"25. The legal position in this regard is no more res integra. In the case of Kanakarathanammal v. V. S. Loganatha Mudaliar 2, a five- Judge Bench of the apex Court held at para-14 as follows:
"14. We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage. We have already noticed that the plea of non- joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention. While the suit was being tried, the appellant might have applied to the trial Court to add her brothers, but no such application was made. Even after the suit was dismissed by the trial Court on this ground it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point. The fact that the High Court came to the contrary conclusion on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself. In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard. Under the circumstances, we do not think it would be possible for us to entertain the said application. In the result, the application for amendment is rejected."
2 AIR 1965 SC 271 24 VGKRJ AS_2672_1999 In the case on hand, as stated supra, a specific plea was taken by defendants in the additional written statement that all the legal representatives of plaintiffs 1 and 2 are not added as a parties to the suit and therefore the suit for partition is bad for non- joinder of necessary parties. The material on record clearly reveals that the five daughters of the deceased first plaintiff were not added as a parties to the suit for the reasons best known to the plaintiffs. It is also made it clear that the wife of the 12th plaintiff was not added as a party to the suit for the Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 26/ 35 reasons best known to the plaintiffs. Therefore, certainly, the suit is bad for non-joinder of necessary parties.
29. The learned counsel for plaintiffs/respondents placed a reliance in Harihar Prasad Singh and others vs. Balmiki Prasad Singh and others 4 , the facts in the aforesaid decision relates to Order 41 Rule 33 Cr.P.C. Here the case on hand, the suit is for partition of the plaint schedule properties. Admittedly the suit is instituted by the plaintiffs in the year 1988 for claiming the relief of partition of the plaint schedule property. Admittedly, the defendants have taken a specific plea in the additional written statement itself that the suit for partition is bad for non-joinder of necessary parties before the commencement of trial. An issue was also framed by AIR 1975 SC 733 27 VGKRJ AS_2672_1999 the trial Court and evidence was adduced by both the parties, the plaintiffs did not evince any interest to add the daughters of the deceased first plaintiff, and wife of the deceased 12 th plaintiff as a party to the suit, for the reasons best known to them. Therefore, certainly the suit for partition is bad for non- joinder of necessary parties. Therefore, in view of the above reasons, the suit for partition is a bad for non-joinder of necessary parties. Accordingly, the point No.2 is answered against the plaintiffs.
70. In a case titled as Rathinaswamy vs Achi Kannu on 4 March, 2020, the Hon'ble Madras High Court has held as under:
12. In this regard, the learned counsel appearing for the first defendant relied upon the judgment reported in 2010 6 MLJ 351 in Venkataramana and Others Vs. N.Munuswamy Naidu and others, this Court held as follows:-
"20. The learned Senior Counsel for the Respondents would strenuously contend that two co-sharers by name Rajendran and Ravindran have not been included in the Suit, who are sons of Govindasamy Naidu, 6th Defendant in the Suit, who remained ex parte and died pending the trial of the Suit. He invited attention of the Court to the provision in Order 1, Rule 9 of C.P.C. which reads as follows:
?9. Misjoinder and non-joinder:
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 27/ 35 No Suit shall be defeated by reason of the misjoinder or non- joinder of parties and the Court may in every Suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it.?
21. When proper parties were not included in the Suit, the Suit is not bad for non-joinder, but if the parties who are not on the array of the parties in the Suit who are necessary parties in whose absence no final adjudication cold be made, then the Suit has to be held bad for non-joinder of necessary parties. If proper parties are not added, the Court may allow further time affording opportunity to the Plaintiff to include them. But if the necessary parties were http://www.judis.nic.in omitted to be included in the Suit, then the Plaintiff has to face the legal consequence of dismissal of the Suit. In the absence of necessary party, no effective decree could be passed. In short, non-joinder of proper party is not fatal while non-joinder of necessary party is fatal to the case. When the Court sees that a particular party, who has been ignored by the Plaintiff in the suit, there is no option for the Court except to dismiss the same.
23. The learned Senior Counsel for the Respondent has also admitted that specific defence as to the non-joinder of necessary party has not been raised in the Written Statement. However, it is open to the Defendant to raise the same at any stage of the case as it goes to the root of the matter. To establish has contention, he garnered support from a decision of this Court in Shanmugham and others v. Saraswathi and others, AIR 1997 Mad. 226 where it is held as follows:
?9. ? ? The contention of non-joinder of necessary parties in a Suit for partition can be raised at any time as it goes to the root of the matter. It is well settled that a Suit for partition is not maintainable in the absence of some of the co-owners. See A. Ramachandra Pillai v. Valliammal, 1987 (100) Mad LW 486.?
In view of the above said principles, this Court is of the considered view that non-joinder of necessary party in this partition Suit is fatal and the Suit has to face dismissal on this point. The point is answered accordingly."
13. In the above case, this Court held that the appropriate parties were not included in the suit, the suit is not bad for Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 28/ 35 non-joinder but, if the parties who are not on the array of the parties in the suit, who are necessary parties, in the absence, no final adjudication could be made, then the suit has to be held bad for non-joinder of necessary parties. Therefore, the plaintiff has to face the legal consequences on dismissal of the suit. In the case on hand, http://www.judis.nic.in admittedly, one Kamalammal was born to Muthaiyan through his first wife. He is none other than the own sister of the first defendant. When the first defendant specifically pleaded in his written statement that his sister has not been added as a party and as such prayed for dismissal of the suit for non-joinder of necessary parties. If the Trial Court failed to frame any issues in this regard and the plaintiff also failed to take any steps to implead the sister of the first defendant as a party to the suit. Especially, the suit for partition, all the parties have to be shown as a parties so that the partition can be completely effected. In the absence of necessary party no effective decree can be passed. Therefore, non- joinder of necessary party is fatal to the case. In view of the above said principles, this Court is of the considered opinion that non- joinder of necessary party in this partition suit is fatal and the suit is liable to be dismissed on this ground alone. Accordingly, the first substantial question of law is answered against the plaintiffs and in favour of the defendants. Therefore, this Court is of the considered opinion that the Courts below completely erroneous in holding that the suit is maintainable without adding the necessary party to the suit for partition and against the evidence on ground. Therefore, this Court is necessarily to interfere with the findings of the Courts below
71. In a case titled Poonam vs State of UP & Ors., Civil appeal No. 6774 of 2018, decided on 29.12.2015, the Hon'ble Supreme Court of India has relied upon para no. 31 of the judgment titled J.S. Yadav Vs State of U.P. & Anr, 2011(6) SCC 570 , in which it is held as under:
"No order can be passed behind the back of a person adversely affecting him and such an order if Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 29/ 35 passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order 1 Rule 9 of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the petitioner-plaintiff may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the court, be it a plaintiff or a defendant, otherwise the proceedings will have to fail. In service jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity. In case the services of a person are terminated and another person is appointed at his place, in order to get relief, the person appointed at his place is the necessary party for the reason that even if the petitioner-plaintiff succeeds, it may not be possible for the Court to issue direction to accommodate the petitioner without removing the person who filled up the post manned by the petitioner- plaintiff. (Vide Prabodh Verma V. State of U.P, Ishwar Singh Vs. Kuldip Singh, Tridip Kumar Dingal Vs. State of W.B, State of Assam V. Union of India and Public Service Commission V. Mamta Bisht). More so, the public exchequer cannot be burdened with the liability to pay the salary of two persons against one sanctioned post".
72. In a case titled Public Service ... vs Mamta Bisht And Ors on 3 June, 2010 (2010) 3 ESC 371, AIR 2010 SUPREME COURT 2613, the Hon'ble Supreme Court of India has held as under: -
7. In case the respondent No.1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 30/ 35 party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a Constitution Bench of this Court in Udit Narain Singh Malpaharia Vs. Additional Member, Board of Revenue, Bihar & Anr., AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called CPC) provide that non- joinder of necessary party be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh Vs. State of Gujarat ;
AIR 1965 SC 1153; Babubhai Muljibhai Patel Vs. Nandlal, Khodidas Barat & Ors., AIR 1974 SC 2105; and Sarguja Transport Service Vs. State Transport Appellate Tribunal, Gwalior & Ors. AIR 1987 SC 88).
73. In a case titled Moreshar Yadaorao Mahajan vs Vyankatesh Sitaram Bhedi(D) Tr.Lrs., 2022 Live law (SC) 82, decided on 27 September, 2022, the Hon'ble Supreme Court has held as under:
17. This Court, in the case of Mumbai International Airport Private Limited (supra), has observed thus:
"15. A "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a "necessary party" is not impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 31/ 35 is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance."
18. It could thus be seen that a "necessary party" is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. It has been held that if a "necessary party" is not impleaded, the suit itself is liable to be dismissed.
74. In a case titled Udit Narain Singh Malpaharia vs Additional Member, Board Of Revenue, 1963 AIR 786, decided on 19 October, 1962 the Hon'ble Supreme Court of India has held as follows:
The next question is whether the parties whose rights are directly affected are the necessary parties to a writ petition to quash the order of a tribunal. As we have seen, a tribunal or authority performs a judicial or quasi- judicial act after hearing parties. Its order affects the right or rights of one or the other of the parties before- it. In a writ of certiorari. the defeated party seeks for the quashing of the order issued by the tribunal in favour of the successful party. How can the High Court vacate the said order without the successful party being before it ? Without the presence of the successful party the High Court cannot issue a substantial order affecting his right. Any order that may be issued behind the back of such a party can be ignored by I the said party, with the result that the tribunal's order would be quashed but the right vested in that party by the wrong order of the tribunal would continue to be effective. Such a party, therefore, is a necessary party and a petition filed for the issue of a writ of certiorari without making him a party or without impleading him subsequently, if allowed by the court, would certainly be incompetent. A party whose interests are directly affected is, therefore, a necessary party. In addition, there may be parties who may be described as proper parties, that is parties whose presence is not necessary for making an Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 32/ 35 effective order but whose presence may facilitate the settling of all the questions that may- be involved in the controversy. The question of making such a person as a party to a writ proceeding depends upon the judicial discretion of the High Court in the circumstances of each case. Either one of the parties to the proceeding may apply for the impleading of such a party or such a party may suo motu approach the court for being impleaded therein.
To summarize: in a writ of certiorari not only the tribunal or authority whose order is sought to be quashed but also parties in whose favour the said order is issued are necessary parties. But it is in the discretion of the court to add or implead proper parties for completely settling all the questions that may be involved in the controversy either suo motu or on the application of a party to the writ or an application filed at the instance of such proper party. In the present case Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner (1) A. I. R. 1954 Bom. 33, 34.
(2) A. I. R. 1955 Nag. 49, as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses t ?at the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected. That order was made on July 3, 1962;
and the special leave petition was- filed on July 18, 1962. Even in the special leave petition the said two parties were not impleaded. Learned counsel for the appellant suggests that this Court may at this very late stage direct them to be made parties and remand the matter to the High Court for disposal. This request is belated and cannot, therefore, be granted. In this view it is not necessary to express our opinion on the other questions raised.
The appeal fails and is dismissed with costs.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 33/ 35
75. From the foregoing discussion, it is proved that sons and daughters of the deceased/late Sh. Chattar Singh are class-I legal heirs and have equal shares in the properties of the deceased/late Sh. Chattar Singh. After death of late Smt Parmeshwari and Smt. Bimro, their children and husbands have the right to inherit their share, in the properties of the deceased late Sh. Chattar Singh but neither Smt. Santra nor legal heirs of deceased Smt. Parmeshwari and Smt. Birmo have been made party in the present case. Neither plaintiff has made them party in the present suit nor the defendants have taken any steps for making them party in the present suit.
76. Smt. Santra and class-I legal heirs of deceased late Smt. Parmeshwari and Smt. Birmo are co-owners in the suit properties alongwith parties of the present suit. The plaintiff as well as defendants were aware about the rights of daughters of late Sh. Chattar Singh, in the suit properties since the filing of the present suit. After the death of Smt. Parmeshwari and Smt. Birmo, their legal heirs have legal right to inherti their shares, in the suit properties. But despite this, none of the parties i.e. plaintiffs and defendants, have taken any pain to make them party in the present suit. The plaintiffs as well as their counsel has not even appeared in the court for addressing final arguments despite giving them several opportunities and even court notice was also issued to the plaintiffs as well as to the ld. Counsel for the plaintiffs. In the absence of above said necessary parties who are co-sharers in the suit properties, decree of partition cannot be passed. Issue no. 1 is accordingly decided against the plaintiffs.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 34/ 35 Issue no. 2 Whether the plaintiffs are entitled to a decree of permanent injunction restraining the defendants from raising unauthorised and illegal construction in the suit property as prayed for? OPP
77. In view of finding on issue no. 1, plaintiffs are not entitled to a decree of permanent injunction whereby restraining the defendants from raising unauthorized and illegal construction in the suit property as prayed for, accordingly issue no. 2 is also decided against the plaintiffs.
Relief
78. in view of the findings on issue no. 1 & 2, the suit filed by the plaintiff stands dismissed. No order as to cost. Decree sheet be prepared accordingly.
79. File be consigned to record room after comliance.
Digitally signed
SHIV by SHIV KUMAR
KUMAR Date: 2025.03.01
15:14:34 +0530
Announced in open Court (SHIV KUMAR)
today on 1st March, 2025 ADJ-02, West Distt.Tis Hazari
courts Delhi.
Civ DJ No. 610699-16 Bimla & Ors Vs Dalip & Ors. 35/ 35