Delhi District Court
Sh. Ramzan vs Abdul Rehman on 20 December, 2023
IN THE COURT OF SH. CHANDER JIT SINGH
ADDITIONAL DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Appeal No. : RCA 17/2019
Appeal registered on : 18.04.2019
Arguments concluded on : 01.11.2023
Date of order : 23.12.2023
IN THE MATTER OF :
Sh. Ramzan S/oi Sh. Abdul Rehman & Ors
R/o House NO. 59 Kalu Sarai,
New Delhi-110009
......Appellant
Versus
1. Abdul Rehman S/o Late Sh. Abdul Latif
R/o 65, A/3, Village Kalu Serai,
New Delhi.
2. Sh. Nizam S/o Late Sh. Abdul Latif
3. (a) Smt. Haseena Begum
W/o Late Sh. Chotu Khan
(b) Sh. Imtiaz Ali
S/o Late Sh. Chotu Ram
(c) Smt. Ashrat Praveen
W/o Late Sh. Muntiaj
(d) Sh. Ansar
(e) Sh. Waseem
both s/o Late Sh. Muntiaj
(f) Smt. Sanjeeda w/o Sh. Saleem
(g) Smt. Sayna w/o Sh. Samun
(h) Ms. Sayda
(I) Ms. Shama
all daughters of Late Sh. Muntiaj
RCA DJ 17/2019
Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh)
ADJ-05, South Saket, New Delhi
Page no. 1 of 10
4. Smt. Waseela w/o Sh. Akbar
5. Smt. Sanno w/o Sh. Chote
6. Smt. Farjana w/o Sh. Pappu
7. Shri Amitabh s/o Late Sh. Chottu Khan
All residents of house NO. 59, Kalu Sarai, New Delhi
-110016
........Respondents
ORDER
1. This order shall dispose of appeal against impugned order dated 16.3.2019 passed by Ld. CJ-03 (South) in the present matter.
FACTUAL MATRIX:-
2. In brief, facts of this case are that suit for partition was filed by respondent No.1 against appellant and other respondents on the ground that appellant and respondent NO. 1 and 2 and Late Sh. Chootu Khan were the real brothers. That appellant, respondent No.2 and Late Sh. Chhotu Khan were in possession of property i.e. bearing No. 59, Village Kalu Sarai, New Delhi (hereinafter referred as suit property). The said suit property was purchased from Sh. Pooran Chand vide sale deed dated 2.2.1979 in public auction. That after death of Sh. Pooran Chand, legal heirs of Sh. Pooran Chand transferred the property to one Sh. Yashpal and a dispute arose between Yashpal and appellant as well as respondents. In this regard, settlement was arrived at between the parties whereby suit property was jointly RCA DJ 17/2019 Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh) ADJ-05, South Saket, New Delhi Page no. 2 of 10 purchased by appellant and respondents from Sh. Yashpal vide registered sale deed. After that appellant and respondents were in joint possession of the suit property except respondent No. 1 who was in actual and physical possession of suit property. Respondent No.1 has objected to the construction being raised on suit property but dispute was resolved mutually. After that, respondent No.1 had filed a suit for partition and possession. Written statement was also filed on behalf of respondent No.1 submitting his no objection. Written statement was also filed by appellant and Late Sh. Chhotu Khan submitting that the respondent No.1 has no locus standi as he has received Rs. 40,000/- towards full and final consideration towards his share . Other objections were also taken. Issues were framed on 08.10.2003. The Ld. Trial court had decided the issue regarding suit being barred for non payment of court fee and suit not being properly valued in favour of respondent No.1. That vide order dated 10.4.2015, preliminary decree was passed for partition. It was held that preliminary decree was passed holding that Sh. Abdul Rehman, Sh. Nizam and Sh. Ramzan and Late Sh. Chhotu Khan got their ¼ share in the suit property. Subsequently, vide order dated 16.3.2019, final decree was passed and it is the said order dated 16.3.2019 which is under challenge.
GROUNDS OF APPEAL:-
3. The ground of appeal were set out are that the Ld. Trial court had failed to appreciate the fact that suit property is RCA DJ 17/2019 Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh) ADJ-05, South Saket, New Delhi Page no. 3 of 10 being occupied by the appellant, respondent No.2 and LRs of Chhotu Khan. That there is no need for selling the entire suit property including the share of the appellant who is having possession of his separate portion considering ground, first, second and third floor and one room on the top floor. That Rs.
40,000/- has already been paid to respondent No.1. That no objection was ever been raised on behalf of parties on the report of Local Commissioner which states that suit property cannot be partitioned by metes and bounds. That Ld. Trial court had failed to apprise the judgment of Hon'ble High Court in case titled as Indu Singh and another Vs Prem Chaudhary, decided on 11.5.2018. The Ld. Trial court failed to appreciate that appellant and respondents except respondent NO.1 have been living in the suit property from last so many years that even before the execution of sale deed on 30.9.1998. Sh. Ramzan, Sh. Nizam and Sh. Chhotu Khan were residing in the suit property. That Sh. Abdul Rehman can be compensated monetarily by selling two portions with vacant portion. There is no need to sell the portion of appellant. That respondent No.1 can be given due share by above said sell of portion. That family of appellant including minor children and females are residing in the suit property. That respondent NO.1 had never occupied the suit property and has paid for the excess areas occupied. That the construction was raised in the year 1984-85 on Ground Floor and First Floor. That further construction was raised in the year 1998. That respondent No.2 has already sold the top floor to one Sh. Syeed Mohd. @ RCA DJ 17/2019 Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh) ADJ-05, South Saket, New Delhi Page no. 4 of 10 Mohd. Sayeed who is in possession thereof. That Ld. Trial court did not apply the mind in passing the impugned order has been passed in a hasty, arbitrary and biased manner. This impugned order is fully bad in law and for the above said reasons, the same be set aside.
ARGUMENTS:-
4. On behalf of appellant, it is argued that respondent No.1 had never occupied the suit property. It is argued that respondent No.1 has already been paid Rs. 40,000/- for the excess area occupied. It is also argued that there is no need to sell the entire suit property and respondent No.1 can be monetarily compensated. It is further argued that family of appellant including minor children and females are residing in the suit property. It is also argued that appellant is residing in the suit property since long and invested money by way of raising construction. It is submitted that impugned order should be set aside.
5. On behalf of respondents, written arguments were filed. It is submitted that appeal is not maintainable in fact of law.
The preliminary decree was never challenged. It is submitted that the appeal should be dismissed.
DISCUSSION:
6. I have heard both the parties and gone through record carefully.RCA DJ 17/2019
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7. In the present matter, the appeal has been filed against impugned judgment and decree dated 16.3.2019 raising one of the ground that parties have not put forward any objection in respect of report of Ld. Local Commissioner. However, besides this, bare denial, nothing was referred or shown from the record nor it is pleaded even in the appeal that this report was ever objected to and thus, in absence of any material in this regard that the report of Ld. Local Commissioner stating that property cannot be partitioned by way of metes and bounds for the reason that same is so scattered that it would not be possible to partition the same giving each party ¼ share was ever challenged, this bare denial cannot sustain.
8. Further, the admitted position in the present matter is that preliminary decree was passed on 10.4.2015 and there is nothing on record to show nor it is even being pleaded that the said preliminary decree was challenged. Thus, it implies that the said decree has attained its finality. In this regard, court is guided by judgment titled as Shobha Diwan Vs Ramesh Chanrda Kapoor & Ors, 626 of 2015; 20631 of 2015 decided on 23.2.2016 by Hon'ble High Court of Delhi wherein, inter-alia held that:-
Section 97 of the CPC is as under:
10. ""97. Appeal from final decree where no appeal from preliminary decree--Where any party aggrieved by a RFA No.626/2015 Page 4 of 7 preliminary decree passed after the RCA DJ 17/2019 Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh) ADJ-05, South Saket, New Delhi Page no. 6 of 10 commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.
11. The purport of the aforesaid provision is to bar a challenge to th e preliminary decree for partition in the appeal against the final decree. A party to a suit for partition who though prefers an appeal against the preliminary decree but whose appeal has been dismissed, cannot be in a better position than a party to the partition suit who has not preferred an appeal against the preliminary decree. The appellant having allowed the order dismissing his appeal against the preliminary decree to attain finality, cannot now in this appeal against the final decree, challenge the preliminary decree for partition.
12. Supreme Court as far back as in Sital Parshad Vs. Kishorilal AIR 1967 SC 1236 held where the preliminary decree has been confirmed in toto and the appeal therefrom has been dismissed and the final decree is in terms of the preliminary decree, no challenge to the final decree can be entertained. In Venkatrao Anantdeo Joshi Vs. Sau. Malatibai (2003) 1 SCC 722 it was held that non-challenge to a preliminary decree precludes a party from disputing its correctness in any appeal which may be preferred from the final RFA No.626/2015 Page 5 of 7 decree. In Manjit Singh Vs. Punjab & Sind Bank 1994 (31) DRJ 299 (DB) an ex-parte preliminary decree for partition was passed, application under Order 9 Rule 13 of the CPC for setting aside RCA DJ 17/2019 Sh. Ramzan Vs Abdul Rehman & Ors. (Chander Jit Singh) ADJ-05, South Saket, New Delhi Page no. 7 of 10 thereof was dismissed and the order of dismissal was upheld in appeal. It was held that the preliminary decree became final and the final decree passed on the basis of preliminary decree was not liable to challenge in appeal, as the decree had attained finality. Reference in this regard may also be made to Patel Ranhhodbhai Bhaichanddas Vs. Rabari Jiva Java AIR 1998 Guj. 207 and Tapan Kumar Bhattacharjee Vs. Ratan Kr.
Bhattacharjee AIR 2004 Gau. 27.
9. Adverting to the facts of the case wherein it is admitted position that appeal under challenge, preliminary decree is not met. Therefore, the above noted law is squarely applies to the facts of the present case. Once a order which has been pronounced is not challenged, after the expiry of prescribed period of limitation within the appeal could be filed, said order attains finality as appeal is not so filed. Similar is position in the present matter. It is not even pleaded that preliminary decree was ever challenged. Therefore, by operation of law, there is necessary implications that the said preliminary decree has attained its finality. In the above noted judgment, it has been settled that once a preliminary decree has attained its finality, the same cannot be challenged in the final decree. Though, in the present matter, appellant is not challenging the correctness of preliminary decree directly but same is so done indirectly which is not permissible in law as repeated reference is being made to payment of Rs. 40,000/- to respondent No.1 which was the case of appellant in his written statement.
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10. Further, at the time of passing of final decree, the court has to see whether the property can be partitioned by metes and bounds and possession of separate share (s) can be vested in the parties. If the partition by metes and bounds is not possible, the option before the court is to order to issue directions for sale of property. As discussed above, except the avernments regarding decision on the report of Ld. Local Commissioner as wrong, no material or substance has been put to show the incorrectness of said observation and decision of Ld. Trial court. Once the report has come on record to the effect that partition is not possible by metes and bounds, the plea of not selling the property to give sharers to the share holders cannot sustain.
11. Thus, in view of above discussion, the appeal filed by appellant Sh. Ramzan is hereby dismissed. TCR be sent back.
Appeal file be consigned to Record Room after due compliance.
Announced in the open court.
Dated. 23.12.2023 CHANDER JIT SINGH ADJ-05, SOUTH SAKET COURTS NEW DELHI/23.12.2023 This judgment contains 09 pages. Each page has been checked and signed by me.
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