Virender Kumar Jain and Others vs Sangeeta Jain

Paramjeet Singh, J.—This regular second appeal by defendants is directed against the judgment and decree dated 03.02.2011 passed by learned Civil Judge (Jr. Divn.), Karnal whereby suit for partition filed by respondent-plaintiff has been decreed and against the judgment and decree dated 12.03.2014 passed by learned Additional District Judge, Karnal whereby appeal preferred by the appellants-defendants has been dismissed.

For convenience sake, hereinafter, reference to parties is being made as per their status in civil suit.

The detailed facts are already recapitulated in the judgments of the courts below and are not required to be reproduced. In brief, the facts relevant for disposal of this second appeal are to the effect that the father of the plaintiff and defendants no. 1 and 2 died intestate on 20.10.1988 and mother of plaintiff died intestate on 06.07.2002. It was pleaded that father of plaintiff and defendants no. 1 and 2 had inherited suit property detailed in para nos. 4(i) and (ii) of the plaint from his father. The suit property detailed in para no. 4(iii) was purchased by Smt. Sumitra Jain exclusively whereas suit property detailed in para no. 4 (iv) was purchased by said Sumitra Jain along with defendants no. 2 to 4. The plaintiff is co-sharer/co-owner in the suit properties detailed in para no. 4(i) to (iii) to the extent of 1/3rd share and defendants no. 1 and 2 are also having 1/3rd share each in the said properties. The plaintiff has got 1/12th share in the suit property detailed in para no. 4(iv) of plaint while defendants no. 3 and 4 have got 1/4th share each, defendant no. 2 has got 1/3rd share and defendant no. 1 has got 1/12th share in the said property. It was further pleaded that parties to the suit are the joint co-owners and in possession to the extent of their respective shares in all the suit properties. It was pleaded that in order to maintain harmony and peace in the family, it is just and expedient that all the properties may be partitioned in accordance with their respective shares. Hence, suit was filed.

Upon notice, the defendants resisted the suit and filed joint written statement taking various preliminary objections. It was pleaded that father of the plaintiff had constituted a joint Hindu family with his sons. The suit properties detailed in para no. 4(i) and (ii) of the plaint were inherited by the said Vijay Kumar from his father namely Sita Ram and as such these two properties were the joint Hindu family properties in the hands of Vijay Kumar Jain. The suit property mentioned in para no. 4(iii) of the plaint was purchased by defendants no. 1 and 2 in the name of their mother, Smt. Sumitra Jain. The suit property detailed in para no. 4(iv) of the plaint was also purchased by defendants no. 1 and 2 in the name of their mother. It was further pleaded that a family settlement was arrived at between the legal heirs of said Vijay Kumar after his death and it was resolved that Smt. Sumitra Devi would be the owner of the suit properties detailed in para no. 4(i) and (ii) of plaint during her life-time and after the death of Smt. Sumitra, the above mentioned properties would pass on to defendants no. 1 and 2 in equal shares as absolute owners. In pursuance of said family settlement, defendants no. 1 and 2 had also suffered a civil court decree with regard to suit properties detailed in para no. 4(i) and (ii) of plaint. It was further pleaded that family settlement-cum-arrangement was also arrived at between the parties after the death of Smt. Sumitra Devi in which the entire jewellery of Smt. Sumitra Devi was given to the plaintiff and she relinquished her alleged claim in the suit properties in favour of defendants. The plaintiff in furtherance of said family settlement also swore an affidavit on 05.09.2002 stating that she would have no objection if the property which stood in the name of her mother be transferred in the name of defendants no. 1 and 2 in the municipal records. Other averments in plaint were denied and dismissal of suit was prayed for.

On the basis of pleadings of parties, the Court of first instance framed following issues:

Whether the plaintiff is entitled a decree for partition with regard to the property mentioned in Annexure A, B, C and D along with the plaint as prayed for? OPP

If issue no. 1 is answered in favour of the plaintiff what will be the share of the parties to the suit? OPP

Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPP

Whether the plaintiff has got no locus standi and cause of action to file and maintain the present suit? OPD

Whether the plaintiff estopped from filing the suit by her own act and conduct? OPD

Whether the suit of the plaintiffs is not properly valued for the purposes of court fee and jurisdiction? OPD

Relief.

After appreciating the evidence, the Court of first instance decreed the suit. Feeling aggrieved, the defendants preferred an appeal which has been dismissed by the lower Appellate Court. Hence, this second appeal.

I have heard learned counsel for the parties and perused the record.

Learned counsel for the appellant has submitted that the lower Appellate Court has only dealt with the impleadment of party to the suit in para no. 14 of the judgment and no other issue has been dealt with. Even, the lower Appellate Court has not properly dealt with the issue of impleadment of party.

Without going into the merits of the case, learned counsel for the parties agree that matter needs to be remanded for fresh decision.

Keeping in view the consent of learned counsel for the parties, judgment and decree dated 12.03.2014 passed by the lower Appellate Court is set aside and the case is remanded to the lower Appellate Court with a direction to decide the appeal afresh including the issue decided by it, after taking into consideration the evidence of the parties, within a period of three months from the date of appearance of the parties. Parties through their counsel are directed to appear before the lower Appellate Court on 16.07.2014.

Disposed of in the aforementioned terms.