Mohd Shamim v. Mst. Aman Jamal & Ors

RAJIV SAHAI ENDLAW, J. MARCH 23, 2016 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 23rd March, 2016 + RFA 37/2014 & CMs No.1754/2014 (for stay) & 7780/2016 (of R- 3&4 for direction) MOHD. SHAMIM .... Appellant Through: Ms. Gyan Mitra, Adv. Versus MST. AMAN JAMAL & ORS ..... Respondents Through: Mr. Ajay Sharma, Mr. Punam Lau and Mr. S.U. Abbas, Advs. for R-3&4. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns a judgment and preliminary decree of partition of the Court of Additional District Judge (ADJ)-08 (Central), Tis Hazari Courts, Delhi in Suit No.121/2010 declaring that "all the sisters are entitled to 1/8th share in the suit property and 1/24th in the share of Mohd. Shamil and the brothers are entitled to 1/4th share in the suit property and 1/12th in the share of Mohd. Shamil". 2. The appeal is pending in this Court since 28th January, 2014. However, a perusal of the order sheet shows that the respondents No.1&2 namely Mst. Aman Jamal and Mst. Surraiya Jamal appeared on caveat and though no notice of the appeal was issued but the counsel for the respondents No.3&4 Mst. Shahida Jamal and Mst. Hoor Jamal also started appearing and the Trial Court record was requisitioned and the parties were referred to mediation. 3. On 9th February, 2016, though no report from the mediation cell had been received but the counsel for the appellant and the counsel for the respondents No.1&2 stated that before the Mediation Centre a Settlement Agreement dated 18th January, 2016 had been arrived at between the appellant and the respondents No.1&2 whereunder the respondents No.1&2 had agreed not to claim any right, title, interest or share in the property or against the appellant on receipt of Rs.18 lakhs each from the appellant. The appellant on 9th February, 2016 paid the said sum of Rs.18 lakhs to each of the respondents No.1&2 and the decree impugned in this appeal insofar as in favour of respondents No.1&2 was modified in terms of Settlement Agreement which was ordered to form part of the decree. 4. On 9th February, 2016 itself arguments on the appeal vis-a-vis the respondents No.3&4 were also heard and certain observations made and recorded in the order and the counsel for the respondents No.3&4 sought time to respond thereto. Thereafter, the matter was adjourned on a few dates to explore the possibility of settlement between the appellant and the respondents No.3&4 also but no settlement could be arrived at. 5. The counsel for the respondents No.3&4 has been heard further. 6. The position which emerges is as under: (i) that the respondents No.3&4 along with the respondents No.1&2 had filed the suit for partition from which this appeal arises; (ii) that in the said suit, besides the appellant who is the brother of the respondents No.1 to 4, one Mohd. Shamil another brother of the appellant and respondents No.1 to 4 was impleaded as the defendant No.2; (iii) that however the respondents No.3&4 subsequent to the filing of the suit withdrew themselves from the suit stating that they did not claim any share in the property and that they admitted the appellant being the sole owner of the property; (iv) though the counsel for the respondents No.3&4 on 9th February, 2016 had stated that the respondents No.3&4 after so withdrawing from the suit filed an application for again joining in the suit and their said application was rejected and that order had attained finality and this Court had recorded so in the order dated 9th February, 2016 and also observed that the order of rejection of the application was not under challenge in these proceedings but the counsel for the respondents No.3&4 today states that only the respondent No.4 Mst. Hoor Jamal had made such an application and no application for re- joining the suit was filed by the respondent No.3 Mst. Shahida Jamal; (v) the Trial Court nevertheless in the preliminary decree impugned in this appeal, declared the respondents No.3&4 also to be having a share in the property. 7. It was in the afor