Dismissed

Khem Chand Sharma v. Jagdish Prashad Sharma and Others

Allahabad HC15 Apr 2019FAPL/430/2010

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a partition suit where the appellant sought to share in a second property while attempting to set aside the family settlement in a first property. The court held the stand was hit by the principle of approbate and reprobate and dismissed the appeal.

What did the court decide?

The appeal was dismissed. It was held that the appellant is hit by principles of approbate and reprobate, and the appeal has no merit.

Khem Chand Sharma Vs Jagdish Prashad Sharma and Others — Partition | Allahabad HC (2019)

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Court No. - 59

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Case :- FIRST APPEAL No. - 430 of 2010

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Appellant :- Khem Chand Sharma Respondent :- Jagdish Prashad Sharma And Others Counsel for Appellant :- Manoj Kumar Sharma,M.K.Sharma Counsel for Respondent :- Ashok Kumar Pandey

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Hon'ble Surya Prakash Kesarwani,J.

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Heard Sri Manoj Kumar Sharma, learned counsel for the plaintiff-appellant and Sri Ashok Kumar Pandey, learned counsel for the defendant-respondent Nos.1 and 2.

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Briefly stated facts of the present case are that the plaintiff and defendants are real brothers. They all are sons of Netram Sharma S/o late Sri Ram Prasad.

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Sri Ram Prasad originally owned House No.3/1281 and House No.3/1290, both situate in Mohalla Khan Alampura, Deharadun Road, Saharanpur. Both the properties were succeeded by his only son, Sri Netram. The plaintiff and the defendants are the sons of Netram Sharma. It appears that O.S. No.356 of 1988 (Khem Chand Sharma vs. Netram Sharma and others) was filed by the plaintiff appellant for permanent injunction against his father and four brothers, in respect of house No.3/1281. In that suit, the parties voluntarily filed a compromise dated 12.01.1994/ 14.01.1994 and the suit was accordingly decreed in terms of the compromise. As per compromise decree, out of total area of House No.2/1281, the south portion of the house measuring 42'3'' x 14'9'' was given to the plaintiff.

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It was also clearly agreed by the plaintiff in paragraph-1 and

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2 of the compromise that he shall be alone owner and in possession of the aforesaid south portion of House No.3/1281 and shall have no concern with the remaining portion of House No.3/1281 and House No.3/1290.

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As per copy of map forming part of the compromise decree in O.S. No.356 of 1988, the total area of House No.3/1281 was 1722 square feet, out of which the plaintiff appellant received ownership right by way of settlement for an area of 639 square feet. The area of the house is 201 square yards which, comes to 1809 square feet. Thus, the total area of both the houses comes to about 3531 square feet out of which plaintiff-appellant in family settlement got his share being the south portion of House No.3/1281 measuring 639 square feet, which comes to slightly less than one fifth share in the total area of both the houses. Thus, from the compromise decree in family settlement took place with respect to the aforesaid two residential houses between the plaintiff-appellant and his four brothers and in which the plaintiff-appellant got about one fifth area out of the total area of both the houses. After the settlement, the parties occupied their portion as per aforesaid settlement of the year 1994 in O.S. No.356 of 1988. After about 15 years, the plaintiff appellant filed O.S. No.534 of 2009 for partition claiming one fifth share in House No.3/1290 also. Dishonestly he has not filed the aforesaid suit for partition in the House No.3/1281. The facts and figures as noted above, clearly show that out of the aforesaid two family properties, the plaintiff-appellant has already received about one fifth share by way of south

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portion of House No.3/1281 with measurements as noted above. The plaintiff-appellant is bound by the compromise decree in O.S. No.356 of 1988. He cannot accept the compromise decree for the purposes of claiming his absolute right over the south portion of House No.3/1281 on the one hand and on the other hand, dispute the compromise decree with respect to House No.3/1290. The stand taken by the plaintiff-appellant is hit by principles of approbate and reprobate. I completely agree with the findings recorded by the court below to dismiss the O.S. No.534 of 2009 (Khem Chand Sharma vs. Jagdish Prasad Sharma and others) by the impugned judgment dated 22.09.2010.

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The Appeal has no merit and is, therefore, dismissed .

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Order Date :- 15.04.2019 NLY

Khem Chand Sharma v. Jagdish Prashad Sharma and Others

Case brief

What is this about?

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Khem Chand Sharma v. Jagdish Prashad Sharma and Others

Case brief

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What did the court decide?

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