partition suit

Case BriefsHigh Courts

Delhi High Court: Pratibha M. Singh, J. allowed an application under Order 7 Rule 11 CPC filed by the defendant in the subject partition suit. The said application sought rejection of plaint (partition suit) on two grounds — that the suit lacked cause of action and the suit was time-barred.

The plaintiff was the son of defendant’s deceased brother. The property in question originally belonged to Kundan Lal Kapur, the father of the defendant. The plaintiff had brought a suit for partition of the property. The defendant filed the present application for rejection of the suit. It was proved that the suit property was in occupation and possession of the defendant. It was mutated in his name after the execution of three General Power of Attorneys and relinquishment deeds in his favour by remaining heirs of Kundan Lal Kapur, including plaintiff’s father. Also, the said documents were executed in 1979, i.e., more than 36 years before filing of the partition suit.

The High Court noted that the GPAs and the relinquishment deeds were duly registered under Section 17 of the Registration Act, 1908 with the relevant authorities, and therefore they were not required to be proved by an attesting witness as is evident from Section 68 of the Evidence Act, 1872. It was observed: “under the provisions of the Registration Act read with the provisions of the Indian Evidence Act, registered documents ought to be read in evidence. The same carries a sanctity in law and are presumed to have been executed.” Further, “The fact that these documents were executed way back in 1979, i.e. almost 40 years ago and 36 years by the time the suit was filed, itself shows that they have enormous sanctity especially in view of Section 90 of the Evidence Act, 1872.”

Since the GPAs and the relinquishment deeds were all registered documents, the same were presumed to be valid and legal. In these circumstances, the Court held that the plaintiff did not have any cause of action, and his partition suit was therefore rejected. The application of the defendant under Order 7 Rule 11 was allowed.[Rajinder Kumar Kapur v. Madan Mohan Lal Kapur, 2019 SCC OnLine Del 9472, decided on 29-07-2019]

Case BriefsHigh Courts

Calcutta High Court: Tapabrata Chakraborty, J. dismissed a writ petition filed by the petitioner, Dr Kashninath Ghosh Hazra, under Article 226 of the Constitution of India.

The petitioner claimed to be the owner of an un-partitioned land at plot nos. 4933, 4934, 4935 and 4936 of Mouza Sadpur, Block- Kandi, Khatian No. 714, P.O. & P.S. Kandi, Pin 742 137, District- Murshidabad, West Bengal. On 10-02-2019 the petitioner came to learn that the private respondents were demolishing the structures existing on the said property. The petitioner maintained that without taking steps towards the partition of the said property and without obtaining any appropriate sanction plan from the municipal authorities, the private respondents had started raising unauthorized construction including a boundary wall. Aggrieved thereby, this petition was filed.

The Court had passed an interim order on 26-02-2019 restraining the private respondent’s 14 to 20 from demolishing any structure existing on the said property and from raising any fresh construction till the end of April, 2019 or until further orders.

Respondent 14 by filing an affidavit-in-opposition and a vacating application stated that a partition suit pertaining to the said property, being T.S. No. 38 of 2003, was initially filed by Amala Bala Ghosh impleading the petitioner herein. The final decree was passed on 17-01-2014. The said decree was executed and the 3 parties obtained possession of the decretal property in the year 2014. Thereafter, the names of the respondent’s 14 and 15 were mutated and some portions of the said property had also been sold to third parties.

In reply, the petitioner submitted that he had no knowledge about the institution of the said partition suit and the preliminary decree and the final decree were passed ex parte.

The Court, in view of the arguments made by the parties, held that the said property had already been partitioned and hence no direction could be passed in the present writ petition. The Court observed that the grievance of the petitioner was that he was not given appropriate notice for which he could not appear and contest the partition suit. It was opined that such grievance ought to have been ventilated by the petitioner before the competent civil forum. But without taking such steps the petitioner had preferred the present writ petition involving the municipal authorities. In view thereof, the petition was dismissed.[Dr Kashinath Ghosh Hazra v. State of West Bengal, An application under Article 226 of the Constitution of India filed on 19-02-2019, In re, 2019 SCC OnLine Cal 655, decided on 15-05-2019]

Case BriefsSupreme Court

Supreme Court: A Bench comprising of N.V. Ramana and M.M. Shantanagoudar, JJ., dismissed an appeal filed against the judgment of a Division Bench of Madras High Court whereby it allowed a letters patent appeal filed by the plaintiff in a partition suit.

The plaintiff filed a suit in regard to a property dispute wherein he prayed for partition of the subject property. The trial court decreed the suit, which decision was reversed by the first appellate court on an appeal by the defendant. The plaintiff then filed a letters patent appeal thereagainst which was allowed by the said Division Bench. The facts of the matter were that earlier, the defendant and father of the plaintiff were co-defendants in two original suits relating to the same subject property filed against them. In the said suits, the court had decided in favour of the defendant’s title over the subject property. Now, therefore, in the present suit, the defendant claims applicability of the doctrine of res judicata against the plaintiff as the father of the plaintiff was a co-defendant with him in the suits wherein his title was declared over the said property.

The Supreme Court, referring to a plethora of judgments reiterated the principles for the applicability of the doctrine of res judicata. The Court cited Mahboob Sahab v. Syed Ismail, (1995) 3 SCC 693 wherein the Supreme Court considering the applicability o the said doctrine between co-defendants held that the four conditions must be satisfied, namely-

  1. There must be a conflict of interest between defendants concerned;
  2. It must be necessary to decide the conflict in order to give reliefs which the plaintiff claims;
  3. The question between the defendants must have been finally decided, and
  4. The co-defendants were necessary or proper parties in the former suit.

The Court reiterated that if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound between each other.

On the facts of the instant case, the Court found that all the above conditions were not present. Therefore, no res judicata was applicable between the parties. In light of the above and other holdings, the appeal was dismissed. [Govindammal v. Vaidiyanathan,2018 SCC OnLine SC 2117, decided on 23-10-2018]

Case BriefsHigh Courts

Jharkhand High Court: A Single Judge Bench of Shree Chandrashekhar, J., dismissed a writ petition filed against the order of the trial Judge, whereby petitioner’s application seeking abatement of partition suit on the ground of death of one of the defendants was rejected.

The main issue that arose before the Court, in this case, was ‘whether the suit can be abated in case of death of either party.’

The High Court observed that Order 22 Rule 1 CPC specifically states that the suit cannot be abated on account of death of either party if the right to sue still survives. There are different procedures given under Rules 1, 2 and 4 of Order 22 CPC which talk about the death of a party, death of one of several plaintiffs or defendants but survival of right to sue and death of one of several defendants or of sole defendant respectively.

The Court held that from a bare perusal of different provisions laid down under Order 22  CPC, it can be reasonably concluded that in cases where either of the party dies but the right to sue survives, there shall be no abatement of suit. Observing that the case of the petitioner falls within the ambit of Order 22 Rule 1, it was held that the application of the petitioner for abatement of the suit had been rightly rejected by the lower court. Hence, the writ petition was dismissed. [Radhu Napit v. Tarapdo Napit,   2018 SCC OnLine Jhar 635, dated 16-07-2018]

Case BriefsHigh Courts

Delhi High Court:  Disposing of an appeal filed in 1985 against a judgment and decree in a partition suit, the Court observed that, “It is really very unfortunate that this appeal has remained pending on the Board of this Court for almost 30 years and has to pass through hands of as many as 75 Hon’ble Judges or so but still the solution to the problem of dividing the property (which happens to be the piece of land measuring approximately 7794.63 sq yd along with super structure) could not be found out to the satisfaction of all the parties.”

The Bench of V.K. Shali, J. observed that, “In the city of Delhi, the prices of land have risen beyond the imagination. As a matter of fact, the prices have become prohibitive to own the house, plot or flat. As a necessary consequence of this, wherever there is a dispute between the co-sharers of a property, effort of one party is to bring the other party to its knees by tiring out its resources and patience so that it becomes almost a distress sale by such a party to the other co-sharer.”

With reference to Sections 2 and 3 of the Partition Act, 1893 the Court observed that “a perusal of the aforesaid section would clearly show that the court can order sale of the property if it is convinced that the division of the property reasonably and conveniently cannot be effected by metes and bounds. In the present case, the Court is of the view that partition of the suit property cannot be reasonably and conveniently affected then the Court has no other option but to order sale of the property. In the present case, the partition by metes and bounds could not be affected for the last 30 years. Therefore, the only alternative is to order sale”.

The Court appointed Senior Counsel Ms Meenakshi Arora as the Court Commissioner and Ms Natahsha, Advocate to assist her for the purpose of conducting an open, transparent and fair sale of the suit property by inviting bids from members of the general public, directing the process to be completed within a period of four months. [Ramesh Dutt Salwan v. Shiv Dutt Salwan, 2016 SCC OnLine Del 2909, order dated May 10, 2016]