Suresh and Others vs Virender Singh

L.N. Mittal, J.—Plaintiffs-Suresh etc., who were successful in the trial Court, but have been non-suited by the lower appellate Court, are in second appeal.

Plaintiffs are six sons and widow of Udayvir Singh who was brother of defendant-respondent-Virender Singh. Plaintiffs'' case is that their predecessor Udayvir Singh and defendant-Virender Singh jointly purchased plot being western 1/4th share of Killa No. 46/12/2 measuring 1 kanal 12 marlas whereas their sister Shanti Devi purchased the remaining 3/4th eastern part of the said killa. Udayvir Singh and defendant jointly constructed house over their 1/4th western portion and started residing therein. Plaintiffs sought partition of the said house claiming half share therein.

Defendant admitted that sale deed of the suit property was executed in favour of Udayvir Singh and defendant jointly, but in fact Udayvir Singh was not co-owner or in possession of the suit property. The defendant alleged that he alone had paid the entire sale consideration and he alone has raised construction in the suit land. Name of Udayvir Singh was mentioned in sale deed on account of love and affection only being real brother of the defendant. Defendant claimed to be exclusive owner in possession of the suit property. The defendant also set up family settlement dated 24.07.1982 in this regard. The defendant also raised various preliminary objections and other pleas.

Learned Additional Civil Judge (Senior Division), Faridabad vide judgment and decree dated 12.01.2008 decreed the plaintiffs'' suit for partition and passed preliminary decree of partition. However, first appeal preferred by the defendant has been allowed by learned Additional District Judge, Faridabad vide judgment and decree dated 29.11.2008 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have filed the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

Learned Counsel for the appellants vehemently contended that the lower appellate Court erroneously held the suit to be bad for partial partition and non-joinder of Shanti Devi co-sharer. It was pointed out that Shanti Devi had purchased eastern 3/4th portion whereas Udayvir Singh and defendant jointly purchased the western 1/4th portion of Killa No. 46/12/2 and accordingly Udayvir Singh and defendant were exclusive owners in possession of the western 1/4th portion and Shanti Devi was exclusive owner in possession of eastern 3/4th portion. It was submitted that Shanti Devi had no concern with the suit property i.e western 1/4th part and similarly plaintiffs and defendant have no concern with eastern 3/4th part purchased by Shanti Devi.

On the other hand, learned Counsel for defendant-respondent contended that Udayvir Singh and defendant and their sister Shanti Devi jointly purchased 1 kanal 12 marlas land of Killa No. 46/12/2 by a single sale deed and all of them are cosharers in the entire land and, therefore, the suit is bad for partial partition and non�joinder of Shanti Devi. This plea has found favour with the lower appellate Court.

I have carefully considered the rival contentions. It may be mentioned at the outset that Shanti Devi had since died. Her husband Nihal Singh has appeared as PW-2 and stated that they have constructed their house in the eastern 3/4th protion. It is also the case of the present parties that their house stands constructed in the western 1/4th portion. The defendant in the written statement did not even plead that Shanti Devi is cosharer in the suit property and, therefore, suit is bad for her non-joinder nor it was pleaded that the suit is bad for partial partition as eastern 3/4th portion has not been included in the suit. On the contrary, the defendant claimed himself to be exclusive owner in possession of the suit property. Consequently, the question of Shanti Devi being co-sharer in the suit property did not arise at it was not the pleading of either party. Similarly there is no pleading by either party that eastern 3/4th portion is also joint property of the parties. So the suit cannot be said to be bad for partial partition or for non-joinder of Shanti Devi or her legal heirs. The lower appellate Court has thus made out a new case to non-suit the Plaintiffs by holding the suit to be bad for partial partition and non-joinder of Shanti Devi co-sharer. The defendant took vague and general plea that the suit is bad for misjoinder and non-joinder of parties, but the defendant did not even remotely plead that Shanti Devi was also cosharer in the suit property or that parties are also cosharers in the 3/4th eastern part of Killa No. 46/12/2. On the contrary, perusal of the sale deed reveals that Udayvir Singh and the defendant purchased specific western 1/4th portion whereas Shanti Devi purchased specific 3/4th eastern portion and they also constructed their houses accordingly in the said portions separately. It is thus manifest that Shanti Devi was not cosharer in the suit property and parties are not cosharers in the eastern 3/4th portion. Consequently, the suit is not bad for partial partition or for non-joinder of Shanti Devi or her legal representatives. Finding of the lower appellate Court to the contrary is patently perverse, illegal and unsustainable in law. Substantial question of law to this effect arises for determination in the instant second appeal and is accordingly answered in favour of the plaintiffs/appellants.

For the reasons aforesaid, the instant second appeal is allowed. Judgment and decree of the lower appellate Court are set aside and judgment and preliminary partition decree passed by the trial Court are restored.