Shri Bhim Singh and Others vs Shri Billu and Others

Valmiki J Mehta, J.—This case is on the ''Regular Board'' of this Court since 17.1.2011 and today it is effective item No. 14 on the ''Regular Board''. No one appears for the Appellants although it is 2.40 P.M. I have therefore heard the learned Counsel for the Respondents and have perused the record and am proceeding to dispose of the appeal.

The challenge by means of this Regular First Appeal u/s 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 11.10.2001 whereby the suit for partition and mesne profits with respect to the immovable property being the House situated in Khasra No. 252/84/1 and 253/84/1 both measuring 1 Bigha and 11 Biswas situated in Jheel Khuranja was dismissed. The suit has been dismissed on two grounds. The first ground was that the daughters being entitled to a share were necessary parties but were not made parties to the suit. The second ground was that there was a partition of the joint family property whereby the parties were enjoying their respective shares since 1954.

The trial Court framed the following issues:

Whether the Plaintiffs No. 1 and 2 are entitled to 1/3rd share in the suit property?

Whether the Plaintiffs are entitled for partition of the suit property?

Whether the Plaintiffs are entitled to any mesne profits? If so, at what rate and for what period?

Relief?

With regard to issue No. 1, trial Court has rightly held that merely because a daughter cannot claim partition of a residential house cannot mean that a share will not be inherited by the daughter. Daughter was therefore rightly held to be a necessary party and since there was no impleadment of the necessary parties the suit was dismissed because the daughter of Sukhdev, Smt. Nando would have inherited 1/4th share in the property, Smt. Bhimo would have inherited 1/3rd of the 1/4th share of Kale Ram and Smt. Heero and Prem who would have inherited 1/6th share each of the 1/4th share of Rizak Ram and Smt. Shanti would have inherited 1/3rd of the 1/4the share of Sh. Ramji Lal were not made parties to the suit. No interference is called for with respect to this finding of the trial Court and in any case now Section 23 of the Hindu Succession Act, 1956 stand repealed from the statute book.

The second issue was issue No. 2 in which the trial Court has held that Plaintiffs were admittedly lesser than 11 years of age when their father had died and they were brought up by their uncles. Admittedly since 1954 different parties have been in physical possession and enjoyment of different portions of the residential property, and which therefore was a clear cut pointer to the fact that the portion in their possession were in lieu of their shares which fell to them on partition. This finding of the trial Court calls for no interference because in reality if there was no partition in the year 1954, the Plaintiffs would not have waited for over 40 years to claim partition, and in any case more than 30 years after they became major. The trial Court has also rightly disbelieved the stand of the Plaintiff that they were forcibly dispossessed from the shops inasmuch as no proof at all was filed that they were in possession of the four shops of which the Plaintiff was dispossessed. To this, I may add that possession of an immovable property is a very valuable right and in reality if the Plaintiffs were allegedly dispossessed, then, the Plaintiffs would have surely filed an FIR to complain about dispossession and which admittedly is not the position.

In view of the above, I do not find any reason to interfere with the impugned judgment and decree. The appeal being devoid of merit is dismissed, leaving the parties to bear their own costs. Interim orders are vacated. Trial Court record be sent back.