Richh Pal & Ors v. Nihal Chand & Ors

RAJIV SAHAI ENDLAW, J. MAY 03, 2016 "gsr"

(Corrected and released on 17th June, 2016).

*IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd May, 2016 + RFA 217/2014, CMs No.9307/2014 (for interim relief), 9308/2014 (for condonation of 1461 days delay in filing the appeal) & 179/2015 (u/O V R-20 CPC) RICHH PAL & ORS ..... Appellants Through: Mr. B.L. Gupta, Adv. Versus NIHAL CHAND & ORS ..... Respondents Through: Mr. Prem Chhetri, Adv. for R- 1,2,3,6,7,8 & 10.. CORAM:- HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns (i) the final decree/judgment/decree dated 30th January, 2014 and preliminary amended decree dated 6th May, 2010 of the Court of Additional District Judge (ADJ), Central – 14 in CS No.244/206; and, (ii) the "entire auction process" and seeks a direction allowing the five appellants to purchase the property. 2. The appeal is accompanied with an application for condonation of 1461 days delay in filing thereof. 3. Notice was issued and though all the ten respondents are reported to have been served but the counsel only for respondents no.1,2,3,6,7,8&10 appears. None appears for the other respondents who are proceeded against ex parte. 4. On 19th August, 2015, it was the contention of the counsel for the appearing respondents that against the preliminary decree for partition, RFA No.310/2010 had been preferred by the same five appellants and which stood dismissed. 5. In this light of the matter, the file of RFA No.310/2010 was also directed to be produced before this Court and has been received. 6. The trial court record requisitioned in this Court has also been perused. 7. What emerges is: (i) That vide order dated 31st May, 2007 in the suit for partition from which this appeal arises, the following Issues were framed: 1. Whether the Plaintiff is entitled to the relief of partition, as prayed for? OPP 2. Whether the Plaintiff is entitled to the relief of mandatory injunction, as prayed for? OPP 3. Whether the Plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP 4. Whether the suit is not maintainable? OPD 5. Whether the Plaintiff has no cause of action? OPD 6. Whether Chhotey Lal had executed the Will dated 04.06.1980. If so, its effect? OPD. 7. Relief. and the suit listed for plaintiff"s evidence and the respondent no.1 / plaintiff viz. Sh. Nihal Chand filed his affidavit by way of examination-in-chief but subsequently filed an application under Order XII Rule 6 of the CPC and vide order dated 20th January, 2010 the said application was allowed and it was ordered that the suit property be divided between the respondent no.1 / plaintiff and "defendants no.1 to 5" by metes and bounds by giving equal share to all the parties and a preliminary decree for partition was passed and a Court Commissioner appointed to divide the property by metes and bounds giving 1/6th share in the property to each of the respondent no.1 /plaintiff and the five defendants. (ii) Sh. Richh Pal and Sh. Braj Bhushan who are the appellants no.1 and 3 herein filed RFA No.310/2010 in this Court against the preliminary decree for partition dated 20th January, 2010; the said appeal was entertained and vide order dated 11th May, 2010 therein, the operation of the impugned judgment and decree stayed. (iii) However before that, vide order dated 26th February, 2010, the trial court finding that the property was very small and partition by metes and bounds was not feasible ordered the property to be sold by public auction with liberty to the defendant no.3 in the suit to purchase his share and appointed a Court Commissioner to sell the property. (iv) The respondent no.1 / plaintiff filed an application under Order I rule 10 of the CPC to implead the daughters of common ancestors of the parties and who are respondents no.6 to 8 in this appeal. The said application was allowed and the preliminary decree earlier passed on 20th January, 2010 was on 6th May, 2010 amended and instead of the preliminary decree earlier passed being f