Dalip Kumar v. Om Parkash & Ors

RAJIV SAHAI ENDLAW, J. AUGUST 13, 2015 bs (corrected & released on 5th September, 2015)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 13th August, 2015. + RFA 73/2010 DALIP KUMAR ..... Appellant Through: Mr. Khush Bir Singh, Adv. Versus OM PARKASH & ORS ..... Respondents Through: Mr. Bhagwat Prasad Gupta, Adv. for R-8 to 10. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 31st August, 2009 of the Court of Sh. Bhupesh Kumar, Additional District Judge (ADJ)-06 (West), Delhi of dismissal of a suit filed by the appellant for partition of the estate left behind by his father late Sh. Ram Prasad. 2. Notice of the appeal was issued. The respondents No.1, 4 & 5 died during the pendency of the appeal and their legal representatives were substituted vide orders dated 2nd May, 2013, 17th July, 2013 and 13th March, 2015 respectively. The Registrar (Appellate) has in orders dated 4th December, 2014 and 20th January, 2015 recorded that all the respondents have been served. However only the counsel for the appellant and the counsel for the respondents No.8 to 10 appear. The other respondents are proceeded against ex-parte. Though the Trial Court record has not been requisitioned but considering the nature of the controversy, need therefor is not felt. The counsels have been heard. 3. The suit as aforesaid, was for the reliefs of partition and rendition of accounts with respect to the estate of late Sh. Ram Prasad of whom the appellant and the respondents are the legal heirs. The said estate comprises of (i) tenancy rights in two commercial premises (shops) being at 28/24, East Patel Nagar, New Delhi and at 4340, Ansari Road, Daryaganj, New Delhi; (ii) tenancy rights in a residential premises at 1997, Ganj Mir Khan, Daryaganj, New Delhi; (iii) a Maruti Car; (iv) jewellery; and, (v) cash in the savings bank account (in Allahabad Bank, Ansari Road). 4. On the pleadings of the parties, there was no dispute that, the (i) appellant; (ii) respondent No.1; (iii) respondents No.2 to 6 together; (iv) respondent No.7; (v) respondents No.8 to 10 together; (vi) respondent No.11; and, (vii) respondent No.12, have 1/7th share each in the estate of late Sh. Ram Prasad. Only the following issues were framed in the suit: "1. Whether the tenancy right can be partitioned? OPP. 2. Whether D-8 to the exclusion of all others has inherited the tenancy in respect of shop no.4340, Ansari Road, Darya Ganj, N.D.? OPD-8. 3. Whether D-7 to the exclusion of all others has inherited the tenancy right of shop no.28/24, Patel Nagar, N.D. and house no.1997, Ganj Mir Khan, Daryaganj, Delhi? OPD-7. 4. Whether the plaintiff is entitled the decree of partition? OPP 5. Whether the plaintiff is entitled to rendition of account? OPP 6. Relief." 5. The learned ADJ, in the impugned judgment, has held: (i) that the tenancy rights cannot be partitioned, owing to the small size of the tenancy premises and owing to the landlords having not been impleaded as parties to the suit and in the absence of the landlords, the tenancy rights being impartible; (ii) that the defendant No.8 and the defendant No.7 had failed to prove Issues No.2 & 3 respectively, which were thus decided against them; (iii) that since the tenancy rights are impartible, the appellant is not entitled to a decree for partition; (iv) that the appellant, in his evidence, has not established any claim for rendition of accounts. 6. The counsel for the appellant today also has confined his contentions to Issue No.1 only, decided against him, i.e. of the tenancy rights being not partible. 7. The counsel for the respondents No.8 to 10 contended, (a) that the rent of the tenancy premises at Daryaganj was Rs.100/- per month; (b) however the appellant, after the demise of the father mixed with the landlord and purported to increase the rent to Rs.2,200/- per month and in collusion with the landlord, got a petition for eviction under the Delhi Rent Control Act, 1958 filed against himself only; (c) t