Second appeal against a partition decree. The High Court held that substantial questions of law do not arise as findings of the lower courts were supported by evidence. Upheld the trial court's grant of a final decree without a preliminary decree, citing Supreme Court precedent.
The second appeal and accompanying application were declined and dismissed.
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.
Through: Mr. Manish Aggarwal, Advocate.
Versus
UMESH UPPAL ..... Respondent
Through: Mr. Ramesh Kumar, Advocate.
CORAM:
HON'BLE MS. JUSTICE ANU MALHOTRA
ANU MALHOTRA, J.
RSA 151/2018 Page 1 of 15
appellants to the present appeal were joint owners of the property bearing No.153-A situated at Khasra no.589/333, Sarai Rohilla, Old Rohtak Road area of Village Chowkri Mubarkabad, Delhi and it was submitted to the effect that the plaintiff i.e. the respondent to the present appeal had purchased half portion of the property bearing No.153-A, measuring about 50 sq. Yds., comprising of one hall with tin roof sheets and the other remaining half portion measuring 50 sq. Yds. of the property was purchased by the defendant no.1 arrayed to the said suit and arrayed on record as appellant no.1 to the present appeal and it had been submitted through the said plaint that the plaintiff and the defendant no.1 had become joint owners of the said property with a total area measuring 100 sq. Yds. and it was further contended that the suit property had not been partitioned by metes and bounds and that the defendant no.1 i.e. the appellant no.1 to the present appeal had transferred his share i.e. 50 sq. Yds. of the suit property in favour of his wife i.e. the defendant no.2 arrayed as appellant no.2 to the present appeal. 4. It was submitted before the learned Trial Court by the plaintiff i.e. the respondent to the present appeal that the plaintiff had approached the defendants a number of times for partition of the said property by metes and bounds which they avoided and that even when the plaintiff on 05.08.2004 had finally approached the defendants for partition of the said property, they refused to do so and thus the plaintiff sought the grant of a decree of partition. As indicated vide the judgment
RSA 151/2018 Page 2 of 15
dated 04.06.2015 of the learned Trial Court, the defendants claimed that the suit property was not a plot and was in the shape of a hall constructed over a piece of land measuring 100 sq. Yds. and stated “that the same was in the possession of the defendants ( the appellant nos. 1 & 2 herein) since the year 1995” and was under their lock and key and categorically denied that the suit property was in joint possession. Furthermore, the defendants also denied that the plaintiff was co-owner/ co-sharer in the suit property.
RSA 151/2018 Page 3 of 15
and observed categorically to the effect vide para 16 of the said judgment, which reads to the effect:-
From the above it is clear that in the present case there is no dispute as to the equal share of the parties in the suit property. However, so far as defendant no.1 transferring his share i.e. 50 sq yrds to his wife i.e. defendant no.2, there is no dispute raised by the plaintiff who admits this transfer.”,
4 of 15
RSA 151/2018 Page
which indicated that the defendant no.1 i.e. the appellant no.1 in his testimony dated 13.08.2013 had categorically admitted that he and the plaintiff i.e. the respondent to the present appeal purchased ½ undivided share each in the said property and also stated that the plaintiff i.e. the respondent to the present appeal had never relinquished his one half share in writing. The relevant portion of the testimony dated 09.02.2013 of DW-1 i.e. the defendant no.1 is as under:-
RSA 151/2018 Page 5 of 15
de hors the issue of partition raised in the civil suit disposed of vide the impugned judgment dated 04.06.2015.
“ 22. During the course of final arguments it was argued by the Ld. Counsel for the defendant that the plaintiff is without possession and the present suit must fail as no relief of possession has been sought. This contention was opposed by Ld. Counsel for the plaintiff who argued that both parties are in joint possession. In this regard firstly, it is noted that a Local Commissioner was appointed in the beginning of the suit who gave his report Ex.DW1/P1 along with photographs and stated that there were two iron shutters and a grilled rolling shutter in between them and thus there were 3 shutter and the outer shutter was broken having no lock, the grill gate after this was opened by the workers of defendant and thereafter the last gate i.e. iron shutter was having 3 locks and out of which 2 locks are not working and both
RSA 151/2018 Page 6 of 15
parties were having key of the outside lock. It is observed that the defendant/DW1 in his testimony dated 09.02.2015 clearly deposed that he is satisfied with the Local Commissioner report Ex.DW-1/P1. When it was suggested to DW-1 that both parties had one key each he denied the same and then only volunteered to state that the plaintiff had duplicate key which he got manufactured. It is pertinent to note that no such objection was raised by defendant either before the proceedings of the Local Commissioner, who was appointed on 14.09.2004 till his inspection of the suit property on 01.10.2004 or prior to this date of his cross examination while even he filed his WS (original WS) in November, 2004 i.e. after the Local Commissioner visit. Even no complaint is seen to be made regarding the plaintiff allegedly having made/ manufactured a duplicate key. This clearly implies that defendants had knowledge of the plaintiff having duplicate key and which cannot be necessarily said to have been obtained without defendants’ knowledge. Thus, it cannot be said that he plaintiff did not have a joint possession with the defendants in the suit property. it may also be noted here that admittedly the suit property even today consists just a hall without any further construction. Merely, that some drums are kept in it, which even is not proved to whom it belongs, cannot make the plaintiff without possession. Even otherwise the suit property being just a godwon
RSA 151/2018 Page 7 of 15
having no construction except for the entry door/shutters, of which plaintiff even has the key, therefore, the possession goes along with title.”,
and it has been specifically stated that DW-1 i.e. the appellant no.1 in his testimony dated 09.02.2015 had categorically deposed to the effect that he was satisfied with the Local Commissioner’s report Ex.DW1/P1. The learned Trial Court has also taken into account the aspect that the report Ex.DW1/P1 indicated that both the plaintiff and the defendants had one key each of the suit premises though initially DW-1 i.e. the appellant no.1 denied the factum of both parties having one key each, went on to volunteer that the plaintiff i.e. the respondent herein had a duplicate key which he had got manufactured in relation to which no such objection is indicated to have been raised by the defendants i.e. the appellants herein neither before the Local Commissioner appointed on 14.09.2004 nor on the date of the inspection of the suit property i.e. 01.10.2004.
RSA 151/2018 Page 8 of 15
plaintiff and against the defendants holding that the plaintiff was entitled to and the defendants were liable for partitioning the suit property i.e. property bearing no. 153-A, measuring about 100 sq. Yds., bearing Khasra no.589/333, situated at Sarai Rohilla, Old Rohtak Road, area of Village Chowkri Mubarkbad, Delhi by metes and bounds equally in terms of para 23 and 24 of this judgment.
RSA 151/2018 Page 9 of 15
favour of the appellant no.1 and the respondent herein and thus when there were two separate sets of documents, there was no partition of the said property required. During the course of submissions made before the learned Trial Court as observed vide para 23 of the judgment dated 04.06.2015 of the learned Trial Court, it is indicated that a submission was made on behalf of the defendant no.1 i.e. the appellant no.1 herein by his counsel that physically the share in the suit property was not ascertained in relation to which there was a submission made on behalf of the plaintiff adverting to the title document Ex.PW1/2 which described the suit property. During the course of submissions made now, it has been submitted on behalf of the appellants that the said contention raised before the learned Trial Court was erroneous. Apparently, taking into account the submission that had been made before the learned Trial Court to the effect that there had been no ascertainment of the share in the suit property, the grant of a decree of partition in the circumstances cannot be held to be erroneous. The learned Trial Court verdict also categorically indicates that DW-1 i.e. the appellant no.1 herein had categorically stated that “ It is correct that the plaintiff has a right to claim his one half share in the suit property” though he went on to state that the said right arose only after the payment of money due upon him in relation to which it was not so mentioned in the pleadings or affidavit in relation to what amount of money he had to receive from the plaintiff i.e. the respondent herein qua which it has also been
RSA 151/2018 Page 10 of 15
submitted during the arguments addressed today that there is a civil suit for recovery in relation to such payments of money to be made allegedly by the respondent to the appellants which is pending. The testimony dated 09.02.2015 of the appellant no.1 examined as DW-1 also during the course of proceedings in the Civil Suit bearing no. 243/11, indicates that it was stated by the appellant no.1 “ there is no document to the effect that the plaintiff will not demand any partition of the suit property unless he returns the amount allegedly due to him.”
RSA 151/2018 Page 11 of 15
“6.1 The Respondent has submitted that it is not statutorily required that preliminary must follow before passing of final decree. In the course of written argument it is submitted by the Respondent as under:
“In the judgment reported as SLP(C) No.17932/2009 titled as “Subh Karan Bubna v. Sita Saran Bubna” decided on 21.08.2009 in para 9.2 (I), para 10 and in the Appeal (Civil) 2508/1997 titled as “Rachakonda Venkat Rao v. R. Satya Bal” decided by the Supreme Court on 11.09.2003 (second last para) it has been categorically held that it is not always necessary to pass a preliminary decree when share of the parties are not in dispute. A final decree of partition can be passed straightway with or without passing a preliminary decree.” ,
and reliance has thus been placed on behalf of the respondent on the verdict of the Hon’ble Supreme Court in “ Shub Karan Bubna @ Shub Karan Prasad Bubna Vs. Sita Saran Bubna and Ors.” decided on 21.08.2009 reported in 2010(79) ALR 144 with observations in para 9.2 specifically to the effect:-
“ 9.2 In regard to immovable properties (other than agricultural lands paying land revenue), that is buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further enquiry make the division without the assistance of any Commissioner, or where parties agree upon the manner of division, the court will
RSA 151/2018 Page 12 of 15
pass a single decree comprising the preliminary decree declaring the rights of several parties and also a final decree dividing the suit properties by metes and bounds.
(ii) where the division by metes and bounds cannot be made without further inquiry, the court will pass a preliminary decree declaring the rights of the parties interested in the property and give further directions as may be required to effect the division. In such cases, normally a Commissioner is appointed (usually an Engineer, Draughtsman, Architect, or Lawyer) to physically examine the property to be divided and suggest the manner of division. The court then hears the parties on the report, and passes a final decree for division by metes and bounds.
The function of making a partition or separation according to the rights declared by the preliminary decree, (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.”,
RSA 151/2018 Page 13 of 15
wherein it has been categorically laid down as a principle emerging in relation to partition suits that in relation to immovable properties i.e. buildings, plots etc. or in relation to moveable properties, where the Court can conveniently and without further inquiry make division without the assistance of any Commissioner or where the parties agreed upon the manner of division, the Court will pass a single decree comprising a preliminary decree declaring the rights of several parties and also a final decree dividing the suit property by metes and bounds.
“(a) Is a suit for partition of the property maintainable if the joint possession of the said
RSA 151/2018 Page 14 of 15
property was never proved either of the parties ?
(b) Whether a preliminary decree of partition is required to be granted before passing of a final decree of partition under statutory mandate?
(c) Whether a final decree can be passed without considering the material evidences brought on record and admission made in cross examination?
(d) Whether the suit for partition of a property is maintainable where admittedly Plaintiff/Respondent and Appellant/Defendant are owners by different set of documents?”,
do not arise in the facts and circumstances of the instant case. Thus, the present RSA 151/2018 and the accompanying application are declined and dismissed.
ANU MALHOTRA, J
DECEMBER 05, 2018/NC
RSA 151/2018 Page 15 of 15
3 issues framed by the court
Whether a preliminary decree is required to be passed before granting a final decree of partition under statutory mandate.
Whether substantial questions of law arising from the impugned judgment can be formulated given that findings of fact were not perverse.
Whether a final decree of partition can be passed without a preliminary decree when shares are not in dispute and division requires no further inquiry.
Colour shows how this judgement treated each authority
Shub Karan Bubna v. Sita Saran BubnaReferred¶59
2010(79) ALR 144 Shub Karan Bubna v. Sita Saran Bubna
Rachakonda Venkat Rao v. R. Satya BalReferred¶59
Appeal (Civil) 2508/1997 Rachakonda Venkat Rao v. R. Satya Bal
1 provisions across 1 enactments
Narinder Khullar & Anr.
Umesh Uppal
Anu Malhotra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
