Shri Surya Kumar Pande and Others vs Shri Hirdesh Kumar and Others

S. Ravindra Bhat, J.

I.A.-227/2009 (for restoration)

For the reasons mentioned in the Application, the same is allowed. Suit is restored to its original position on the file of the Court.

CS (OS)-567/2008

Heard counsel for parties, with their consent.

The plaintiffs seek decree for partition in respect of the properties listed in paragraph-6 of the Suit.

According to the Suit averments, the parties in this case are related to each other being the children of Late Shri Uma Shankar Pande. The

plaintiff No. 1 is a son. The plaintiff Nos. 2 and 3 are the daughters of late Shri Uma Shankar Pande. The defendants-1 and 2 are brothers, and

defendant No. 3 is the sister of the plaintiffs.

It is submitted that Uma Shankar Pande died on 3.2.1995 at Mool Chand Hospital, and was survived by present parties as well as his widow

Smt. Premwati Pande. The latter i.e. Premwati Pande died on 22.8.2002. It is further alleged that deceased parents of the plaintiffs (and the

defendants) died into state and that till her death Smt. Premwati Pande, continued to manage the properties. It is further averred that the plaintiff

Nos. 2 and 3 have executed a power of attorney in favour of the first plaintiff. The plaintiffs further state that second plaintiff has relinquished her

share in favour of the plaintiff No. 1.

The plaintiffs contend that despite several efforts, the parties to the proceedings have not resolved their differences and that the defendants are

not yielding to their demand for partition. In these circumstances, the present Suit has been filed.

The defendants Nos. 1 and 2 in their common written statement do not dispute the essential facts pertaining to the relationship between the

parties. They initially alleged that the first plaintiff occupied portions of the property i.e. E-232, Greater Kailash-II. The defendants further dispute

the relinquishment pleaded in the Suit.

During the course of hearing today, Ms. Sushma Jain, counsel for the defendant Nos. 1 and 2 submitted that according to her instructions, the

Court may pass an appropriate decree partitioning the property, according to Suit averments.

The above discussion would show that there is no dispute about the inter se relationship between the parties. The plaintiff No. 1 and defendant

Nos. 1 and 2 are sons of Late Uma Shankar Pande; plaintiff Nos. 2 and 3 and defendant No. 3 are the daughters. The plaintiffs have placed on

record power of attorneys executed in favour of the first plaintiff; in addition, a registered relinquishment deed executed on behalf of the third

plaintiff is placed on the record. By this deed, the third plaintiff has released her share of the properties in favour of the plaintiff. In view of the

submissions made today, the Court is of the opinion that the Suit is required to be decreed.

The documents placed on the record would reveal that the third plaintiff executed registered power of attorney as well as caused a

relinquishment to be executed by which her share was given to the plaintiff No. 1. In the circumstances, plaintiff No. 1 is entitled to 1/3rd share of

the Suit property described in paragraph-6 of the plaint (being 176th share he is entitled to + 1/6th share of the third plaintiff). plaintiff No. 2 and

the defendants i.e. Nos. 1-3 are entitled to the balance share which works out to 1/6th each.

Let a preliminary decree be drawn in the above terms.

Ms. Bharti Kochhar, Advocate (Mobile No. 9818030020) is appointed as Local Commissioner to inspect the Suit properties, to assist the

Court in ascertaining if partition by meets and bounds is possible. The fee of the Local Commissioner is hereby fixed at Rs. 55,000/ -, to be shared

equally by plaintiffs and defendants.

List before the Court on 20th October, 2009, for considering Local Commissioner''s report.