Shri Ashok Kumar vs Shri Bachu Singh and Others

Indermeet Kaur, J.—This appeal has been directed against the impugned judgment and decree dated 26.4.2005 which had endorsed the finding of the trial judge dated 02.3.2005 whereby the suit filed by the Appellant/plaintiff Ashok Kumar seeking partition and injunction had been dismissed.

The plaintiff was the son of Lakhi Ram. Lakhi Ram had died on 16.4.1987 leaving behind his widow Shanti Devi, four sons and one married daughter. Contention was that the following four properties being joint family properties were co-owned by all the legal heirs viz:

i. House No. 2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi.

ii. House No. 3886, Gali Nimwali Near Jagat Cinema Khirti Tafzul Hussain , Machli Bazar, Jama Masjid, Delhi

iii. House and shop bearing No. 3603 and 3604 situated in Bazar Sita Ram, Delhi.

iv. House No. 4202, Gali No. 10, Ajit Nagar, Shahdara, Delhi.

All the legal heirs are co-sharers in the aforenoted properties having 1/6 share each. Suit was accordingly filed.

A common written statement was filed by Defendants No. 1 and 4. Defendant No. 1 Shanti Devi who was the widow of Lakhi Ram stated that she was the exclusive owner of property bearing No. 2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi. Defendant No. 4 had stated that the property bearing No. 4202, Gali No. 10, Ajit Nagar, Shahdara, Delhi is owned by him exclusively. It was however admitted that the property bearing No. 3603 and 3604 situated in Bazar Sita Ram, Delhi and the property bearing No. 3886, Gali Nimwali Near Jagat Cinema Khirti Tafzul Hussain, Machli Bazar, Jama Masjid, Delhi were joint family properties.

Issues were framed; evidence was led before the trial judge. From the pleadings of the parties and the evidence adduced before the court it was held that the only two properties are the joint family properties i.e. (i) property bearing No. 3603-3604 situated in Bazar Sita Ram, Delhi, (ii) property bearing No. 3886, Gali Nimwali Near Jagat Cinema Khirti Tafzul Hussain , Machli Bazar, Jama Masjid, Delhi. The property bearing No. 2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi was admittedly in the name of Shanti Devi; it was not a joint family property.

Before this Court also it has been urged that the dismissal of the suit by the two Courts below is an illegality and the contention of the plaintiff all along was that the aforenoted property i.e. property bearing No. 2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi although in the name of Shanti Devi was purchased out of the funds of his father Lakhi Ram. Perusal of the plaint negatives this contention. Nowhere in the entire averments in the plaint is there a whisper that this property although in the name of Shanti Devi was purchased from the funds of his father Lakhi Ram and is thus a joint family property. The defence of Shanti Devi was that this was her exclusive property. No specific issue has been framed by the court about this dispute.

It had also come on record that property bearing No. 4202, Gali No. 10, Ajit Nagar, Shahdara, Delhi was the property belonging to Defendant No. 2. There was inter se dispute between the Defendant No. 2 and Defendant No. 4 qua title to this property but it was not a joint family property.

At this stage learned Counsel for the Appellant has filed a certified copy of a judgment of the trial judge dated 20.9.2010 which was a suit for declaration filed by the present Appellant / Ashok Kumar against Defendants No. 2 and 4 i.e. Bachu Singh and Jagdish Prasad wherein he had raised the same contention; he had sought a declaration that this is a joint family property and not belonging either to Bachu Singh or Jagdish Prasad. This contention was dismissed vide the aforenoted judgment. This subsequent fact has been brought on record and is admitted.

Trial judge had noted that in the course of the proceedings, the property No. 3886, Gali Nimwali Near Jagat Cinema Khirti Tafzul Hussain , Machli Bazar, Jama Masjid, Delhi had been sold by all the parties and was no longer the subject matter of the partition suit.

Further the last property i.e. the property bearing No. 3603 and 3604 situated in Bazar Sita Ram, Delhi was the subject matter of a preliminary decree in another suit proceeding and was also thus excluded from the subject matter of the present suit.

All these are admitted facts.

Only contention raised before this Court is that the suit for partition could not have been dismissed as the plea of the Appellant all along was that the property baring No. 2726-A, Gali Arya Samaj, Bazar Sita Ram, Delhi was a joint family property although it was in the name of his mother Shanti Devi. As aforenoted this is not borne out in the averments made by the Appellant/plaintiff in his plaint. A partition suit could be maintained only if the properties were admittedly joint family properties; and not if there was a cloud on the title. It was in these circumstances that the suit for partition was dismissed. This finding was upheld by the first appellate Court i.e. in the impugned judgment dated 26.4.2006. There is no perversity in this finding; it calls for no interference.

Substantial questions of law have been formulated in the body of the appeal and have been perused. No such substantial question of law having arisen the appeal is dismissed in limine.