This regular first appeal was dismissed on the ground of res judicata. The High Court held that the issue of partition, previously litigated and decided against the appellants' father in Suit No. 7488/2016, barred the present claim.
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.
*** IN THE HIGH COURT OF DELHI AT NEW DELHI**
% 14th May, 2018
KULDEEP SHARMA & ORS. ..... Appellants
Through: Mr. Rajeshwar Tyagi, Advocate.
versus
SURINDER KUMAR & ORS. ..... Respondents
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. Appl. No. 19822/2018 (for exemption)
C.M. stands disposed of.
C.M. Appl. No. 19823/2018 (for delay)
C.M. stands disposed of.
RFA No. 408/2018 and C.M. Appl. No. 19821/2018 (for stay)
of Civil Procedure, 1908 (CPC) is filed by three of the defendants in
RFA No.408/2018 Page 1 of 8
the suit, impugning the judgment of the Trial Court dated 1.3.2018 whereby the trial court has decreed the suit filed by the plaintiffs for partition etc of the suit property being 1/3rd share comprised in Khasra no. 889/226 measuring 2 bighas and Khasra no. 891/227 measuring 2 bighas 1 biswas of land situated within the Abadi Deh of Village Haidarpur, Delhi. Plaintiffs are the legal heris of the branch of Sh. Ram Kishan the son of Sh. Har Dutt Sharma the original owner of the property, and the defendants (including the three of the defendants being the appellants) were the legal heirs of Sh. Shiv Narain, the other son Sh. Har Dutt Sharma. I may note that there is no dispute that the subject suit property is also numbered as property no. 222, Village Haidarpur, Delhi.
RFA No.408/2018 Page 2 of 8
other deceased son Sh. Shiv Narain. The issue was that whether the
suit property was already partitioned by late Sh. Har Dutt Sharma in his lifetime whereby as per the defendants in the suit (including the three appellants), the suit property was given to Sh. Shiv Narain the predecessor-in-interest of the defendants including the appellants.
“36. Further during the course of final arguments it was brought to the notice of the court that vide detail judgment dated 26.09.2017 suit
RFA No.408/2018 Page 3 of 8
bearing no. 7488/16 filed by the father of the defendants was dismissed and copy of the said judgment was placed on record and Ld. Counsel for defendant fairly conceded during the course of the arguments that said judgment can be taken on record and considered by this court. It is also brought to the notice of the Court that no appeal has been preferred by the defendants against the said judgment and therefore, the findings recorded therein have attained finality. In the said judgment also defendant’s contention that suit property was partitioned by Late Sh. Har Dutt Sharma during his lifetime was held to have been not proved therein. Similarly, Will was also held to have been not proved therein. Therefore, the present question as to whether the suit property was partitioned by the Late Sh. Har Dutt Sharma already stands decided against the defendants and therefore, the same is required to be held res judicata. Even otherwise in the present case also, on merits, defendants have failed to prove that partition had already taken place in the year 1978 during the life time of Late Sh. Har Dutt Sharma. Hence, issue No. 2 is decided against the defendants and in favor of the plaintiff.”
earlier judgment dated 26.9.2017 passed by the Court of the Civil Judge, Delhi, since these paras will show that the very issue urged in the present suit of the defendants (including the appellants, being the legal heirs of Sh. Shiv Narain) that the suit property was allotted to Sh. Shiv Narain during his lifetime, was also very much in issue in the earlier litigation. These paras are paras 1, 2, 3, 22, 23 and 28, and the same read as under:-
“1. The case of plaintiff is that in the year 1978 Sh. Hardutt Sharma divided his property among his LRs including the sons of his predeceased son i.e. defendant no. 1 to 3 and one Sh. Vinod Kumar (since deceased), all sons of Late Sh. Ram Kishan and the plaintiff. According to the said agreement house no. 58 (known as house no. 75) situated in the inner part of village Haiderpur along with portion of property no. 222 consisting of seven quarters/rooms shown in the site plan in red colour
RFA No.408/2018 Page 4 of 8
and some open portion in front thereof, besides the land on the side of canal (nahar) about 15 feet wide were given to the sons of late Sh. Ram Kishan (defendant). Plaintiff has submitted that he was given the remaining entire portion of plot no. 222 wherein 12/13 rooms were already constructed (shown in green colour at the site plan mark A) besides the six shops constructed on the roadside in the abovesaid property besides the remaining land adjoinging the canal.
xxxxx xxxxx xxxxx
RFA No.408/2018 Page 5 of 8
had effected the said portion and he gave aforesaid shares to the parties. It is further claimed that in January, 1992 the defendants demolished five rooms out of the seven room of their share and re-constructed the five rooms after encroaching into the share of plaintiff. Subsequently, defendants constructed three room towards the south side in the plot as shown in site plan mark B in red colour. In February, 1993 the defendant broke open the lock of plaintiff’s son in one room and forcibly occupied it and subsequently let out the room. On the basis of said allegations, the relief sought by the plaintiff is the removal of five rooms and their reconstruction at the original place and directing the defendant to remove their lock from the shop forcibly possessed by them and had over its vacant possession. Thus, the plaintiff has the onus to prove the oral partition of the property thereby giving the allege portion to the plaintiff and further prove the construction of the rooms in the area falling under the share of plaintiff and the forcible possession by the defendants in one of the rooms falling in the share of plaintiff.
xxxxx xxxxx xxxxx
RFA No.408/2018 Page 6 of 8
I have considered said submissions. It is to be noted that in his replication the plaintiff has pleaded that late Sh. Hardutt Sharma during his lifetime had sold the said house of Bawana and the plaintiff was never in possession thereof and that expenses of marriage of plaintiff’s daughter were borne by late Hardutt Sharma himself. On the contrary, PW1 i.e. son of plaintiff has deposed that he had no knowledge if Hardutt Sharma had agriculture property as well as house in village Bawana. Accordingly, the LR of plaintiff has deposed even against the contents of replication itself. Thus, the credibility of PW1 is further diminished as it appears that he has tried to avoid answering about property of his ancestor at village Bawana. As far as testimony of DW2 is concerned, it is to be noted that he has given the details of the plot at Bawana and its owner. He has mentioned that Hardutt Sharma and his brothers Lekh Ram and Prabhu Dayal were the owners of plot no. 372, which was in three parts and he has purchased each of them. Though he has claimed that he purchased the property without any documents and therefore his evidence is very weak, however, the plaintiff gains no advantage due to failure on part of defendant to set up his defence. From the part admissions of defendants and lack of evidence in support of pleas of defendant, at maximum it can inferred that there was some sort of arrangement or partition in the family but it cannot be concluded as to whether the property in question (plot no. 222) was partitioned in the manner alleged by plaintiff or was partitioned otherwise. It cannot be concluded as to which party got what share in plot no. 222 and in which portion thereof. Thus, on the basis of aforesaid discussion, both issues no. 1 and 2 are decided against the plaintiff.” (underlining added)
7. Since admittedly the earlier judgment passed between
the parties dated 26.9.2017 has become final as it was not appealed from, the issues decided therein would operate as res judicata between the parties, including the issue that Sh. Shiv Narain (and now represented by his legal heirs being the defendants/appellants) was held not to be the owner of the suit property allegedly on account
of the suit property falling to the share of Sh. Shiv Narain because of
RFA No.408/2018 Page 7 of 8
partition effected by Sh. Har Dutt Sharma the father of Sh. Shiv Narain and Sh. Ram Kishan.
merit in the appeal and the same is hereby dismissed.
MAY 14, 2018 AK
VALMIKI J. MEHTA, J
RFA No.408/2018 Page 8 of 8
2 issues framed by the court
Whether the defence of res judicata applies when the appellants raised the same claim regarding partition in earlier litigation (Suit No. 7488/2016) without appeal
Whether the earlier judgment that dismissed the father's partition claim precludes the heirs from raising the same issue
Kuldeep Sharma & Ors.
Surinder Kumar & Ors.
Valmiki J. Mehta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
