Mohit & Anr v. Ram Pyari & Ors

RAJIV SAHAI ENDLAW, J. FEBRUARY 03, 2016 Bs..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd February, 2016. + CM(M) 775/2015 & CMs No.4062/2016 (for exemption) & 4063/2016 (of R-1 for condonation of 133 days delay in filing reply) MOHIT & ANR ..... Petitioners Through: Mr. Anupam Srivastava and Mr. Abhishek Yadav, Advs. Versus RAM PYARI & ORS ..... Respondents Through: Mr. Davinder Varma, Adv. for R-1. Mr. Ramesh Kumar and Mr. H.C. Nainawal, Advs. for R-2 & 4 to 6. Mr. Y.K. Solanki and Mr. Rakesh Kumar, Advs. for R-3 & 7 to 9. AND + RFA 490/2015 & CMs No.13210/2015 (for condonation of 1947 days delay in filing the appeal) & 13211/2015 (for stay) MOHIT & ANR ..... Appellants Through: Mr. Anupam Srivastava and Mr. Abhishek Yadav, Advs. Versus RAM PYARI & ORS ..... Respondents Through: Mr. Davinder Varma, Adv. for R-1. Mr. Ramesh Kumar and Mr. H.C. Nainawal, Advs. for R-2 & 4 to 6. Mr. Y.K. Solanki and Mr. Rakesh Kumar, Advs. for R-3 & 7 to 9. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. Both proceedings arise from the same suit before the learned Additional District Judge (ADJ) and accordingly CM(M) No.775/2015, though not in the Roster of this Bench was ordered to be placed before this Bench to be decided along with RFA No.490/2015. 2. The counsels have been heard. 3. The nomenclature of the parties hereinafter is as per their nomenclature in RFA No.490/2015. 4. The respondent No.1 Smt. Ram Pyari instituted the suit from which these proceedings arise, for partition of as many as seven properties left by her husband, between herself and her sons (respondent No.2 Sh. Shishu Pal, respondent No.3 Sh. Inderjeet Singh, respondent No.4 Sh. Raj Singh) daughters (respondents No.7 to 9 namely Smt. Nirmala, Smt. Anita and Smt. Kavita) and widow (respondent No.5 Smt. Kamla Devi) / children (respondent No.6 Smt. Chanchal and the two appellants namely Sh. Mohit and Sh. Shobhit) of the pre-deceased son Sh. Satbir Singh. 5. The two appellants at the time of institution of the suit on 29th May, 2004 were minors and their mother respondent No.5 Smt. Kamla Devi was appointed as their guardian for the purpose of the suit and was representing the appellants and had engaged Mr. H.R. Verma, Advocate who filed written statement dated 2nd August, 2004 on behalf of the respondent No.5 Smt. Kamla Devi for herself and as guardian of the two appellants and on behalf of the respondent No.6 Smt. Chanchal being the sister of the appellants. 6. The counsel for the appellants informs that it was a defence inter alia in the said written statement that the properties already stood partitioned and each of the parties was in possession / occupation of their respective share as per the said partition which was averred to be oral. 7. On 29th October, 2009, a settlement / compromise was arrived at in the said suit being Suit No.370/2004 of the Court of ADJ Central-7, Delhi and in terms of the said compromise, Mr. H.R. Verma Advocate, on behalf of the respondent No.5 Smt. Kamla Devi being the mother of the two appellants who were mentioned in the proceedings as as "Master" and on behalf of the respondent No.6 Smt. Chanchal, made a statement that the two appellants and their mother and sister i.e. respondents No.5&6 namely Smt. Kamla Devi and Smt. Chanchal were together entitled to 1/8th share in the seven properties and that they had no objection to a preliminary decree for partition being passed declaring the respondents No.1 to 4 and the respondents No.7 to 9 having 1/8th share each in the properties and to the two appellants and the respondents No.5&6 together having the remaining 1/8th share in the properties. The said settlement was however made subject to the condition that the two appellants and their mother and sister shall be given 1/8th share jointly out of the properties under their occupation and that they will surrender the excess portion beyond 1/8th share held by them. 8. A preliminary decree for partition was accordingly passed on 29th October, 2009. 9. Mr. H.R. Verma, Advoc