This second appeal concerns a partition suit dismissed because the plaintiffs were not in possession and knew of a sale to a third party. The High Court upheld dismissal, holding the suit was not maintainable without amending the plaint to seek cancellation of the sale.
Present second appeal dismissed without costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Date of Decision: 11.02.2016
MEHAR CHAND ..... Appellant Through: Mr.Gaurav Singh, Mr. Tribindh Kumar & Mr. Trivendu Chauhan, Advs.
versus
DHARAM SINGH & ORS ..... Respondents Through: Mr. Vinod Dubey & Mr. A.K. Shukla, Advs. for R-1 to R-4.
CORAM: HON'BLE MR. JUSTICE ASHUTOSH KUMAR
ASHUTOSH KUMAR, J. (ORAL)
RSA 391/2014 Page 1 of 6
biswas in Village Karawal Nagar, Delhi. Out of the aforesaid property land measuring 350 sq. yds. remained in joint possession of the appellant/plaintiffs and respondents/defendants No.1 to 3. The aforesaid plot of land which fell in the abadi area was sold by defendants No.1 to 3 to defendant No.4 in an unauthorised and illegal manner. The appellant/plaintiffs could learn about such fraudulent conveyance of the suit property when respondent/defendant No.4 tried to get forcible and illegal possession of plot by raising a boundary wall and constructing a room. Since the respondent/defendants were not agreeable for handing over their 2/3rd share of the suit property, a partition suit was filed seeking allotment of 2/3rd share in the suit property and possession of the aforesaid demarcated plot.
RSA 391/2014 Page 2 of 6
RSA 391/2014 Page 3 of 6
purchaser of the property was decided against the appellant/plaintiffs. The Trial Court held that the purchase of the suit property by defendant/respondent No.4 stood admitted in the pleadings of the appellant/plaintiffs.
RSA 391/2014 Page 4 of 6
imperative upon the appellant/plaintiffs to have sought cancellation of the sale documents and were also required to seek relief of possession. This could not have been done without payment of appropriate court fee. The appellant/plaintiffs had only got the suit valued for the relief of partition and consequently court fee with respect to 2/3rd share in the suit property was filed. There was no valuation for the relief of possession.
RSA 391/2014 Page 5 of 6
appellants being the co-sharers of the suit property, the Trial Court was justified in holding that without the partition, the major part of the property in whole could not have been disposed of or sold.
costs.
ASHUTOSH KUMAR, J
FEBRUARY 11, 2016
ns
RSA 391/2014 Page 6 of 6
3 issues framed by the court
Whether the suit for partition simplicitor was maintainable when the appellate court found the plaintiffs were not in possession and were aware of the sale to a third party?
Whether an amendment of the plaint to include cancellation of sale documents and recovery of possession was necessary given the plaintiffs' knowledge of the transfer?
Whether the Trial Court was justified in holding that co-sharers cannot claim partition relief for a fragment of property that was sold without prior partition?
Colour shows how this judgement treated each authority
Resham Pal & Others vs. Dharam Singh & OthersReferred
RCA No.17/14 (Ram Pal & Others vs. Dharam Singh & Others)
Ram Pal & OthersReferred
RCA No.17/14
2 provisions across 2 enactments
MEHAR CHAND
DHARAM SINGH & ORS
ASHUTOSH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
