RSA-2117-1990

IN THE HIGH

Whether only operative part of the judgment is

Pronounced or the full judgment i

Seeta Bai (Since Deceased) through LRs

Sadha Nand (Since

CORAM : HON’BLE MS. JUSTICE MANDEEP PANNU

Present: Mr. Ajay K. Gupta, Advocate and

M r. Hritik Gupta, Advocate for the appellants.

Mr. Mani Ram Verma, Advocate

Mr. Surinder Dhull, Advocate and

Mr. Nipun Verma, Advocate for the respondents.

MANDEEP PANNU, J.

1. This Regular Second Appeal has been filed by the appellant/defe

against the findings of the learned Lower Appellate Court dated 04.06.1990

whereby the suit of the plaintiff was decreed while modifying the judgment and

decree of the learned Trial Court dated 21.03.1989, which had partly decreed the

suit of the plaintiff.

Brief facts

2. In brief, the facts of the case are that the plaintiff claimed to be the

joint owner in possession of the house in dispute bearing Municipal No.YA

Bhiwani, to the extent of 1/2 share. During the pendency of the suit, defendant

No.1 Sita Bai died and her legal representatives were brought on record. The

plaintiff is the son and defendant No.6 is the daughter of deceased Ram Kishan

1990 (O&M)

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

-.-

RSA

Reserved on:

Pronounced

Uploaded on:

Whether only operative part of the judgment is

Pronounced or the full judgment is pronounced:

Seeta Bai (Since Deceased) through LRs

VERSUS

Since deceased) through LRs

HON’BLE MS. JUSTICE MANDEEP PANNU

Mr. Ajay K. Gupta, Advocate and

r. Hritik Gupta, Advocate for the appellants.

Mr. Mani Ram Verma, Advocate

Mr. Surinder Dhull, Advocate and

Mr. Nipun Verma, Advocate for the respondents.

-.-

MANDEEP PANNU, J.

This Regular Second Appeal has been filed by the appellant/defe

against the findings of the learned Lower Appellate Court dated 04.06.1990

whereby the suit of the plaintiff was decreed while modifying the judgment and

decree of the learned Trial Court dated 21.03.1989, which had partly decreed the

intiff.

In brief, the facts of the case are that the plaintiff claimed to be the

joint owner in possession of the house in dispute bearing Municipal No.YA

Bhiwani, to the extent of 1/2 share. During the pendency of the suit, defendant

No.1 Sita Bai died and her legal representatives were brought on record. The

plaintiff is the son and defendant No.6 is the daughter of deceased Ram Kishan

- 1-

OF PUNJAB AND HARYANA

AT CHANDIGARH

RSA-2117-1990 (O&M)

Reserved on:-02.12.2025

Pronounced on:- 10.12.2025

Uploaded on:-10.12.2025

operative part/full judgment

....Appellant

....Respondent

HON’BLE MS. JUSTICE MANDEEP PANNU

r. Hritik Gupta, Advocate for the appellants.

Mr. Nipun Verma, Advocate for the respondents.

This Regular Second Appeal has been filed by the appellant/defendant

against the findings of the learned Lower Appellate Court dated 04.06.1990

whereby the suit of the plaintiff was decreed while modifying the judgment and

decree of the learned Trial Court dated 21.03.1989, which had partly decreed the

In brief, the facts of the case are that the plaintiff claimed to be the

joint owner in possession of the house in dispute bearing Municipal No.YA-124,

Bhiwani, to the extent of 1/2 share. During the pendency of the suit, defendant

No.1 Sita Bai died and her legal representatives were brought on record. The

plaintiff is the son and defendant No.6 is the daughter of deceased Ram Kishan

-

ndant

against the findings of the learned Lower Appellate Court dated 04.06.1990

whereby the suit of the plaintiff was decreed while modifying the judgment and

decree of the learned Trial Court dated 21.03.1989, which had partly decreed the

In brief, the facts of the case are that the plaintiff claimed to be the

124,

Bhiwani, to the extent of 1/2 share. During the pendency of the suit, defendant

No.1 Sita Bai died and her legal representatives were brought on record. The

plaintiff is the son and defendant No.6 is the daughter of deceased Ram Kishan

RSA-2117-1990

from his first wife. After the demise of their mother, their father Ram Kishan

married again with de

defendants No.3 to

purchased the plot vide registered sale deed dated 29.11.1957 and constructed the

house in question. Upon his death in 1965, th

and deceased Sita Bai in equal shares, but since it was not possible for the plaintiff

to remain joint in possession, he shifted to another house though his symbolic

possession continued. Alleging that Sita Bai was at

property by fabricating an adoption deed dated 21.01.1985 in favour of defendant

No.2, which the plaintiff alleged to be false and invalid, the suit for declaration was

filed. Defendant No.6 admitted the claim of the plaintiff

3. The contesting defendants denied the entitlement of the plaintiff,

pleaded that the plaintiff had already sold his share in the suit property, and

claimed that the entire house was bequeathed to deceased Sita Bai under a Will

executed by Ram Kishan.

No.2 according to Hindu rites and thus he was entitled to the property.

4. The stand of the defendants was that the plaintiff had no concern with

the suit property as he had already sold his share

They contended that the answering defendants were in exclusive possession of the

property and that deceased Sita Bai had legally adopted defendant No.2. They

raised the pleas of estoppel, mis

further asserted that the house was not joint property as claimed by the plaintiff,

and that the suit was false and frivolous.

5. The following issues were framed by the learned Trial Court:

1.

the house as fully described in the heading of the plaint? OPP

1990 (O&M)

from his first wife. After the demise of their mother, their father Ram Kishan

married again with deceased defendant No.1 Sita Bai and from this wedlock

defendants No.3 to 5 were born. It was averred that deceased Ram Kishan had

purchased the plot vide registered sale deed dated 29.11.1957 and constructed the

house in question. Upon his death in 1965, the house was inherited by the plaintiff

and deceased Sita Bai in equal shares, but since it was not possible for the plaintiff

to remain joint in possession, he shifted to another house though his symbolic

possession continued. Alleging that Sita Bai was at

property by fabricating an adoption deed dated 21.01.1985 in favour of defendant

No.2, which the plaintiff alleged to be false and invalid, the suit for declaration was

filed. Defendant No.6 admitted the claim of the plaintiff

The contesting defendants denied the entitlement of the plaintiff,

pleaded that the plaintiff had already sold his share in the suit property, and

claimed that the entire house was bequeathed to deceased Sita Bai under a Will

executed by Ram Kishan. They further pleaded that Sita Bai had adopted defendant

No.2 according to Hindu rites and thus he was entitled to the property.

The stand of the defendants was that the plaintiff had no concern with

the suit property as he had already sold his share

They contended that the answering defendants were in exclusive possession of the

property and that deceased Sita Bai had legally adopted defendant No.2. They

raised the pleas of estoppel, mis-joinder of parties and lack of

further asserted that the house was not joint property as claimed by the plaintiff,

and that the suit was false and frivolous.

The following issues were framed by the learned Trial Court:

Whether the plaintiff is joint owner in

the house as fully described in the heading of the plaint? OPP

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from his first wife. After the demise of their mother, their father Ram Kishan

ceased defendant No.1 Sita Bai and from this wedlock

were born. It was averred that deceased Ram Kishan had

purchased the plot vide registered sale deed dated 29.11.1957 and constructed the

e house was inherited by the plaintiff

and deceased Sita Bai in equal shares, but since it was not possible for the plaintiff

to remain joint in possession, he shifted to another house though his symbolic

possession continued. Alleging that Sita Bai was attempting to alienate the suit

property by fabricating an adoption deed dated 21.01.1985 in favour of defendant

No.2, which the plaintiff alleged to be false and invalid, the suit for declaration was

filed. Defendant No.6 admitted the claim of the plaintiff.

The contesting defendants denied the entitlement of the plaintiff,

pleaded that the plaintiff had already sold his share in the suit property, and

claimed that the entire house was bequeathed to deceased Sita Bai under a Will

They further pleaded that Sita Bai had adopted defendant

No.2 according to Hindu rites and thus he was entitled to the property.

The stand of the defendants was that the plaintiff had no concern with

the suit property as he had already sold his share during the lifetime of Sita Bai.

They contended that the answering defendants were in exclusive possession of the

property and that deceased Sita Bai had legally adopted defendant No.2. They

joinder of parties and lack of locus standi. It was

further asserted that the house was not joint property as claimed by the plaintiff,

The following issues were framed by the learned Trial Court:

Whether the plaintiff is joint owner in possession of 1/2 share in

the house as fully described in the heading of the plaint? OPP

-

from his first wife. After the demise of their mother, their father Ram Kishan

ceased defendant No.1 Sita Bai and from this wedlock

were born. It was averred that deceased Ram Kishan had

purchased the plot vide registered sale deed dated 29.11.1957 and constructed the

e house was inherited by the plaintiff

and deceased Sita Bai in equal shares, but since it was not possible for the plaintiff

to remain joint in possession, he shifted to another house though his symbolic

tempting to alienate the suit

property by fabricating an adoption deed dated 21.01.1985 in favour of defendant

No.2, which the plaintiff alleged to be false and invalid, the suit for declaration was

The contesting defendants denied the entitlement of the plaintiff,

pleaded that the plaintiff had already sold his share in the suit property, and

claimed that the entire house was bequeathed to deceased Sita Bai under a Will

They further pleaded that Sita Bai had adopted defendant

The stand of the defendants was that the plaintiff had no concern with

during the lifetime of Sita Bai.

They contended that the answering defendants were in exclusive possession of the

property and that deceased Sita Bai had legally adopted defendant No.2. They

locus standi. It was

further asserted that the house was not joint property as claimed by the plaintiff,

possession of 1/2 share in

RSA-2117-1990

2.

defendant No.1 as alleged? OPD

3.

OPP

4.

OPP

5.

and conduct? OPD

6.

7.

of court fee and jurisdiction? OPD

8.

entitled to special costs? If so, how much? OPD

9.

6. Both the parties have led oral and documentary evidence.

Findings of the trial Court

7. On issue No.1, the learned Trial Court held that deceased Ram Kishan

had purchased the plot and constructed the house in dispute and that the plaintiff

and defendant No.6 were admittedly the children of deceased Ram Kishan from his

first wife. It was further held that Sita Bai, the second wife, was also alive at the

time of the death of Ram Kishan and

defendant No.6, as well as her own

property in accordance with Hindu Succession Act and were each entitled to 1/6th

share. The Trial Court

possession of the house.

1990 (O&M)

Whether defendant No.2 is not adopted son of deceased

defendant No.1 as alleged? OPD

Whether the plaintiff is entitled to the partition of the suit land?

OPP

Whether the plaintiff is entitled to the injunction prayed for?

OPP

Whether the plaintiff is estopped from filing the suit by his act

and conduct? OPD

Whether the suit is bad for mis

Whether the suit has not been valued pr

of court fee and jurisdiction? OPD

Whether the suit is false and frivolous and the defendants are

entitled to special costs? If so, how much? OPD

Relief.

Both the parties have led oral and documentary evidence.

the trial Court

On issue No.1, the learned Trial Court held that deceased Ram Kishan

had purchased the plot and constructed the house in dispute and that the plaintiff

and defendant No.6 were admittedly the children of deceased Ram Kishan from his

st wife. It was further held that Sita Bai, the second wife, was also alive at the

time of the death of Ram Kishan and, therefore

defendant No.6, as well as her own daughters (defendants No.3 to 5

in accordance with Hindu Succession Act and were each entitled to 1/6th

share. The Trial Court, therefore, concluded that the plaintiff was a joint owner in

possession of the house.

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Whether defendant No.2 is not adopted son of deceased

Whether the plaintiff is entitled to the partition of the suit land?

Whether the plaintiff is entitled to the injunction prayed for?

Whether the plaintiff is estopped from filing the suit by his act

Whether the suit is bad for mis-joinder of parties? OPD

Whether the suit has not been valued properly for the purpose

Whether the suit is false and frivolous and the defendants are

entitled to special costs? If so, how much? OPD

Both the parties have led oral and documentary evidence.

On issue No.1, the learned Trial Court held that deceased Ram Kishan

had purchased the plot and constructed the house in dispute and that the plaintiff

and defendant No.6 were admittedly the children of deceased Ram Kishan from his

st wife. It was further held that Sita Bai, the second wife, was also alive at the

therefore, she along with the plaintiff and

daughters (defendants No.3 to 5), inherited the

in accordance with Hindu Succession Act and were each entitled to 1/6th

concluded that the plaintiff was a joint owner in

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Whether defendant No.2 is not adopted son of deceased

Whether the plaintiff is entitled to the partition of the suit land?

Whether the plaintiff is entitled to the injunction prayed for?

Whether the plaintiff is estopped from filing the suit by his act

operly for the purpose

Whether the suit is false and frivolous and the defendants are

On issue No.1, the learned Trial Court held that deceased Ram Kishan

had purchased the plot and constructed the house in dispute and that the plaintiff

and defendant No.6 were admittedly the children of deceased Ram Kishan from his

st wife. It was further held that Sita Bai, the second wife, was also alive at the

she along with the plaintiff and

), inherited the

in accordance with Hindu Succession Act and were each entitled to 1/6th

concluded that the plaintiff was a joint owner in

RSA-2117-1990

8. On issue No.2, the Trial Court found that the alleged adoption of

defendant No.2 was not proved in accordance with law. There was no evidence to

show that deceased Sita Bai had the competence to adopt or that defendant No.2

had actually been taken in adoption. The adoption deed was held inadmissible for

want of proof. The i

9. On issue No.3, the Trial Court held that although the plaintiff was

found to have 1/6th share in the property, the question of partition of a dwelling

house could not arise since the female heirs had

as the male heirs chose to keep the property joint. The issue was accordingly

decided in favour of the plaintiff to the extent of recognising his share, but the

prayer for partition was not granted.

10. On issue No.4,

in possession of the house and that the defendants had no right to alienate the suit

property to the exclusion of the plaintiff, the Trial Court granted injunction in

favour of the plaintiff restrainin

11. Issues No.5 to 8 were decided against the defendants as they failed to

lead any evidence in support of their objections.

12. On the relief issue, the learned Trial Court decreed the suit of the

plaintiff to the extent that he was declared owner in possession of 1/6th share of the

house described in the head note of the plaint and restrained defendants No.3 to 5

from alienating the suit property.

Findings of the lower Appellate Court

13. Feeling aggr

plaintiff filed an appeal before the lower appellate court.

14. The Lower Appellate Court examined the judgment of the learned

Trial Court and the evidence on record. It noted that the Trial Court had

1990 (O&M)

On issue No.2, the Trial Court found that the alleged adoption of

endant No.2 was not proved in accordance with law. There was no evidence to

show that deceased Sita Bai had the competence to adopt or that defendant No.2

had actually been taken in adoption. The adoption deed was held inadmissible for

want of proof. The issue was, therefore, decided against the defendants.

On issue No.3, the Trial Court held that although the plaintiff was

found to have 1/6th share in the property, the question of partition of a dwelling

house could not arise since the female heirs had

as the male heirs chose to keep the property joint. The issue was accordingly

decided in favour of the plaintiff to the extent of recognising his share, but the

prayer for partition was not granted.

On issue No.4, in view of the finding that the plaintiff was co

in possession of the house and that the defendants had no right to alienate the suit

property to the exclusion of the plaintiff, the Trial Court granted injunction in

favour of the plaintiff restraining the defendants from alienating the suit property.

Issues No.5 to 8 were decided against the defendants as they failed to

lead any evidence in support of their objections.

On the relief issue, the learned Trial Court decreed the suit of the

ntiff to the extent that he was declared owner in possession of 1/6th share of the

house described in the head note of the plaint and restrained defendants No.3 to 5

from alienating the suit property.

Findings of the lower Appellate Court

Feeling aggrieved by the judgement and decree of trial court, the

plaintiff filed an appeal before the lower appellate court.

The Lower Appellate Court examined the judgment of the learned

Trial Court and the evidence on record. It noted that the Trial Court had

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On issue No.2, the Trial Court found that the alleged adoption of

endant No.2 was not proved in accordance with law. There was no evidence to

show that deceased Sita Bai had the competence to adopt or that defendant No.2

had actually been taken in adoption. The adoption deed was held inadmissible for

ssue was, therefore, decided against the defendants.

On issue No.3, the Trial Court held that although the plaintiff was

found to have 1/6th share in the property, the question of partition of a dwelling

house could not arise since the female heirs had no right to claim partition so long

as the male heirs chose to keep the property joint. The issue was accordingly

decided in favour of the plaintiff to the extent of recognising his share, but the

in view of the finding that the plaintiff was co-owner

in possession of the house and that the defendants had no right to alienate the suit

property to the exclusion of the plaintiff, the Trial Court granted injunction in

g the defendants from alienating the suit property.

Issues No.5 to 8 were decided against the defendants as they failed to

lead any evidence in support of their objections.

On the relief issue, the learned Trial Court decreed the suit of the

ntiff to the extent that he was declared owner in possession of 1/6th share of the

house described in the head note of the plaint and restrained defendants No.3 to 5

ieved by the judgement and decree of trial court, the

plaintiff filed an appeal before the lower appellate court.

The Lower Appellate Court examined the judgment of the learned

Trial Court and the evidence on record. It noted that the Trial Court had decreed

-

On issue No.2, the Trial Court found that the alleged adoption of

endant No.2 was not proved in accordance with law. There was no evidence to

show that deceased Sita Bai had the competence to adopt or that defendant No.2

had actually been taken in adoption. The adoption deed was held inadmissible for

On issue No.3, the Trial Court held that although the plaintiff was

found to have 1/6th share in the property, the question of partition of a dwelling

no right to claim partition so long

as the male heirs chose to keep the property joint. The issue was accordingly

decided in favour of the plaintiff to the extent of recognising his share, but the

owner

in possession of the house and that the defendants had no right to alienate the suit

property to the exclusion of the plaintiff, the Trial Court granted injunction in

g the defendants from alienating the suit property.

Issues No.5 to 8 were decided against the defendants as they failed to

On the relief issue, the learned Trial Court decreed the suit of the

ntiff to the extent that he was declared owner in possession of 1/6th share of the

house described in the head note of the plaint and restrained defendants No.3 to 5

ieved by the judgement and decree of trial court, the

The Lower Appellate Court examined the judgment of the learned

decreed

RSA-2117-1990

the suit of the plaintiff partially by granting a declaration of 1/6th share and

injunction against alienation, while declining the relief of partition. The Lower

Appellate Court re

15. The Court observed that the learned

the judgment of the Trial Court primarily on Issue No.3 regarding partition and

Issue No.1 concerning share of the plaintiff, asserting misreading of evidence and

misconception of law. From the discussion of the Trial Co

Appellate Court that the Trial Court treated the suit incorrectly as having been filed

by female heirs, whereas the present suit was filed by Sadha Nand, a male heir, for

partition. The Trial Court had held that Sadha Nand had 1/6th

was entitled to partition and possession. The Appellate Court confirmed that

defendants No.3 to 6 were female heirs of Ram Kishan.

16. Regarding Section 23 of the Hindu Succession Act, the Appellate

Court held that female heirs cannot

male heirs choose to keep it joint. However, this prohibition applies only to female

heirs. Since the present suit for partition was filed by the male heir, Sadha Nand,

the bar under Section 23 did not apply.

error by treating the suit as if filed by female heirs. The Appellate Court observed

that the house in dispute was in possession of defendants No.3 to 6 and during the

lifetime of Sita Bai, she also resided in the ho

Sita Bai would alienate the property

permanent injunction and partition. The suit was, therefore, held maintainable.

17. The Appellate Court referred to

vs. TAS Palani Mudaliar

heir has no right to claim partition of a dwelling house when male heirs choose t

keep it joint. It also cited

1990 (O&M)

the suit of the plaintiff partially by granting a declaration of 1/6th share and

injunction against alienation, while declining the relief of partition. The Lower

Appellate Court re-evaluated these findings.

The Court observed that the learned

the judgment of the Trial Court primarily on Issue No.3 regarding partition and

Issue No.1 concerning share of the plaintiff, asserting misreading of evidence and

misconception of law. From the discussion of the Trial Co

Appellate Court that the Trial Court treated the suit incorrectly as having been filed

by female heirs, whereas the present suit was filed by Sadha Nand, a male heir, for

partition. The Trial Court had held that Sadha Nand had 1/6th

was entitled to partition and possession. The Appellate Court confirmed that

defendants No.3 to 6 were female heirs of Ram Kishan.

Regarding Section 23 of the Hindu Succession Act, the Appellate

Court held that female heirs cannot seek partition of a dwelling house so long as

male heirs choose to keep it joint. However, this prohibition applies only to female

heirs. Since the present suit for partition was filed by the male heir, Sadha Nand,

the bar under Section 23 did not apply. Therefore, the Trial Court committed an

error by treating the suit as if filed by female heirs. The Appellate Court observed

that the house in dispute was in possession of defendants No.3 to 6 and during the

lifetime of Sita Bai, she also resided in the ho

Sita Bai would alienate the property, therefore, he filed the suit for declaration,

permanent injunction and partition. The suit was, therefore, held maintainable.

The Appellate Court referred to Janabai Ammal alias Gu

vs. TAS Palani Mudaliar and Others AIR 1981 Madras 62

heir has no right to claim partition of a dwelling house when male heirs choose t

keep it joint. It also cited Saroj Kumar Mondal

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the suit of the plaintiff partially by granting a declaration of 1/6th share and

injunction against alienation, while declining the relief of partition. The Lower

The Court observed that the learned counsel for the appellant assailed

the judgment of the Trial Court primarily on Issue No.3 regarding partition and

Issue No.1 concerning share of the plaintiff, asserting misreading of evidence and

misconception of law. From the discussion of the Trial Court, it appeared to the

Appellate Court that the Trial Court treated the suit incorrectly as having been filed

by female heirs, whereas the present suit was filed by Sadha Nand, a male heir, for

partition. The Trial Court had held that Sadha Nand had 1/6th share and therefore

was entitled to partition and possession. The Appellate Court confirmed that

defendants No.3 to 6 were female heirs of Ram Kishan.

Regarding Section 23 of the Hindu Succession Act, the Appellate

seek partition of a dwelling house so long as

male heirs choose to keep it joint. However, this prohibition applies only to female

heirs. Since the present suit for partition was filed by the male heir, Sadha Nand,

Therefore, the Trial Court committed an

error by treating the suit as if filed by female heirs. The Appellate Court observed

that the house in dispute was in possession of defendants No.3 to 6 and during the

lifetime of Sita Bai, she also resided in the house. Sadha Nand apprehended that

therefore, he filed the suit for declaration,

permanent injunction and partition. The suit was, therefore, held maintainable.

Janabai Ammal alias Gunabooshani

and Others AIR 1981 Madras 62 , holding that a female

heir has no right to claim partition of a dwelling house when male heirs choose t

Saroj Kumar Mondal (minor) vs Anil Kumar Mondal

-

the suit of the plaintiff partially by granting a declaration of 1/6th share and

injunction against alienation, while declining the relief of partition. The Lower

counsel for the appellant assailed

the judgment of the Trial Court primarily on Issue No.3 regarding partition and

Issue No.1 concerning share of the plaintiff, asserting misreading of evidence and

urt, it appeared to the

Appellate Court that the Trial Court treated the suit incorrectly as having been filed

by female heirs, whereas the present suit was filed by Sadha Nand, a male heir, for

share and therefore

was entitled to partition and possession. The Appellate Court confirmed that

Regarding Section 23 of the Hindu Succession Act, the Appellate

seek partition of a dwelling house so long as

male heirs choose to keep it joint. However, this prohibition applies only to female

heirs. Since the present suit for partition was filed by the male heir, Sadha Nand,

Therefore, the Trial Court committed an

error by treating the suit as if filed by female heirs. The Appellate Court observed

that the house in dispute was in possession of defendants No.3 to 6 and during the

use. Sadha Nand apprehended that

therefore, he filed the suit for declaration,

nabooshani

, holding that a female

heir has no right to claim partition of a dwelling house when male heirs choose to

vs Anil Kumar Mondal

RSA-2117-1990

and Others 1979 Hindu Law Reporter 237

provision restricting only female heirs, not male heirs, from seeking partition.

Applying these precedents, the Court concluded that Sadha Nand, being the male

heir, could maintain th

18. The Court further held that Ram Kishan had left two dwelling houses,

one in possession of Sadha Nand and another forming the subject matter of the

dispute. Since the suit was filed by Sadha Nand and not by female heirs, the suit

for partition along with the declaratory relief and injunction was legally

maintainable. The Trial Court’s findings declining partition were, therefore,

erroneous.

19. On the objection of the respondents that Ram Kishan had sold half

share of the house to

not amount to a completed sale, and since no sale deed was executed and no suit

for enforcement was filed by Ram Chander, such a claim had no merit. Hence,

non-joinder of Ram Chander was not fatal

20. As regards cross

Lower Appellate Court noted that these were dismissed, and in view of the

observations in

respondents who f

findings now.

21. After considering the entire matter, the Lower Appellate Court held

that the Trial Court erred in denying partition. The declaration and permanent

injunction granted by the Trial

partition were set aside. Consequently, the appeal was accepted, and a preliminary

decree for partition was ordered. No order was made regarding costs.

1990 (O&M)

ers 1979 Hindu Law Reporter 237, supporting that Section 23 is a special

provision restricting only female heirs, not male heirs, from seeking partition.

Applying these precedents, the Court concluded that Sadha Nand, being the male

heir, could maintain the suit for partition.

The Court further held that Ram Kishan had left two dwelling houses,

one in possession of Sadha Nand and another forming the subject matter of the

dispute. Since the suit was filed by Sadha Nand and not by female heirs, the suit

for partition along with the declaratory relief and injunction was legally

maintainable. The Trial Court’s findings declining partition were, therefore,

On the objection of the respondents that Ram Kishan had sold half

share of the house to one Ram Chander, the Court held that a mere agreement does

not amount to a completed sale, and since no sale deed was executed and no suit

for enforcement was filed by Ram Chander, such a claim had no merit. Hence,

joinder of Ram Chander was not fatal to the suit.

As regards cross-objections filed by the defendant

Lower Appellate Court noted that these were dismissed, and in view of the

observations in State of Bihar Vs. Jehal Mahto and Others

respondents who filed cross-objections unsuccessfully could not dispute the

After considering the entire matter, the Lower Appellate Court held

that the Trial Court erred in denying partition. The declaration and permanent

injunction granted by the Trial Court were maintained, but the findings declining

partition were set aside. Consequently, the appeal was accepted, and a preliminary

decree for partition was ordered. No order was made regarding costs.

- 6-

, supporting that Section 23 is a special

provision restricting only female heirs, not male heirs, from seeking partition.

Applying these precedents, the Court concluded that Sadha Nand, being the male

The Court further held that Ram Kishan had left two dwelling houses,

one in possession of Sadha Nand and another forming the subject matter of the

dispute. Since the suit was filed by Sadha Nand and not by female heirs, the suit

for partition along with the declaratory relief and injunction was legally

maintainable. The Trial Court’s findings declining partition were, therefore,

On the objection of the respondents that Ram Kishan had sold half

one Ram Chander, the Court held that a mere agreement does

not amount to a completed sale, and since no sale deed was executed and no suit

for enforcement was filed by Ram Chander, such a claim had no merit. Hence,

to the suit.

objections filed by the defendant–respondents, the

Lower Appellate Court noted that these were dismissed, and in view of the

State of Bihar Vs. Jehal Mahto and Others AIR 1964 Patna 207

objections unsuccessfully could not dispute the

After considering the entire matter, the Lower Appellate Court held

that the Trial Court erred in denying partition. The declaration and permanent

Court were maintained, but the findings declining

partition were set aside. Consequently, the appeal was accepted, and a preliminary

decree for partition was ordered. No order was made regarding costs.

-

, supporting that Section 23 is a special

provision restricting only female heirs, not male heirs, from seeking partition.

Applying these precedents, the Court concluded that Sadha Nand, being the male

The Court further held that Ram Kishan had left two dwelling houses,

one in possession of Sadha Nand and another forming the subject matter of the

dispute. Since the suit was filed by Sadha Nand and not by female heirs, the suit

for partition along with the declaratory relief and injunction was legally

maintainable. The Trial Court’s findings declining partition were, therefore,

On the objection of the respondents that Ram Kishan had sold half

one Ram Chander, the Court held that a mere agreement does

not amount to a completed sale, and since no sale deed was executed and no suit

for enforcement was filed by Ram Chander, such a claim had no merit. Hence,

respondents, the

Lower Appellate Court noted that these were dismissed, and in view of the

AIR 1964 Patna 207,

objections unsuccessfully could not dispute the

After considering the entire matter, the Lower Appellate Court held

that the Trial Court erred in denying partition. The declaration and permanent

Court were maintained, but the findings declining

partition were set aside. Consequently, the appeal was accepted, and a preliminary

RSA-2117-1990

22. Aggrieved by the judgment of learned Lower Appel

appellants/defendants

appeal, which w

Submissions of learned counsel for the appellant

23. Learned counsel for

Lower Appellate Court by submitting that the judgment dated

from serious legal and factual infirmities. It was argued that the learned Lower

Appellate Court erred in reversing the well

the issue of partition, particularly Issue No.3, where the Trial Court had correctly

held that the suit was not maintainable in view of Section 23 of the Hindu

Succession Act and that the property being a dwelling house, the daughters had no

right of partition. It was further contended that the Trial Court had rightly treated

the suit to be in the nature of a partition claim brought by daughters, whereas the

Lower Appellate Court misdirected itself in holding that the suit was filed by a

male heir and therefore maintainable, although the entire pleading and conduct of

the plaintiff showed that he was seeking a declaration for himself alone and not for

all heirs.

24. Learned counsel

maintainable as the p

of one property, whereas the pleadings admitted existence of two houses owned by

deceased Ram Kishan. Since a person seeking declaration of joint ownership or

partition must include all joint

which related only to one property, was bad for partial partition. The plaintiff did

not plead that the other house was exclusively in his possession nor did he allege

that he was occupying more than his

include all the properties of the deceased rendered the suit defective in law and

1990 (O&M)

Aggrieved by the judgment of learned Lower Appel

appellants/defendants approached this Court by way of the present regular second

was contested by the plaintiff/respondent.

Submissions of learned counsel for the appellant

Learned counsel for the appellant assailed the f

Lower Appellate Court by submitting that the judgment dated

from serious legal and factual infirmities. It was argued that the learned Lower

Appellate Court erred in reversing the well-reasoned findings of the Tria

the issue of partition, particularly Issue No.3, where the Trial Court had correctly

held that the suit was not maintainable in view of Section 23 of the Hindu

Succession Act and that the property being a dwelling house, the daughters had no

ht of partition. It was further contended that the Trial Court had rightly treated

the suit to be in the nature of a partition claim brought by daughters, whereas the

Lower Appellate Court misdirected itself in holding that the suit was filed by a

r and therefore maintainable, although the entire pleading and conduct of

the plaintiff showed that he was seeking a declaration for himself alone and not for

Learned counsel further argued that the suit itself was not

maintainable as the plaintiff sought a declaration of joint ownership only in respect

of one property, whereas the pleadings admitted existence of two houses owned by

deceased Ram Kishan. Since a person seeking declaration of joint ownership or

partition must include all joint properties left by the deceased, the present suit,

which related only to one property, was bad for partial partition. The plaintiff did

not plead that the other house was exclusively in his possession nor did he allege

that he was occupying more than his share in any property. The omission to

include all the properties of the deceased rendered the suit defective in law and

- 7-

Aggrieved by the judgment of learned Lower Appellate Court, the

approached this Court by way of the present regular second

contested by the plaintiff/respondent.

Submissions of learned counsel for the appellant

assailed the findings of the learned

Lower Appellate Court by submitting that the judgment dated 04.06.1990 suffers

from serious legal and factual infirmities. It was argued that the learned Lower

reasoned findings of the Trial Court on

the issue of partition, particularly Issue No.3, where the Trial Court had correctly

held that the suit was not maintainable in view of Section 23 of the Hindu

Succession Act and that the property being a dwelling house, the daughters had no

ht of partition. It was further contended that the Trial Court had rightly treated

the suit to be in the nature of a partition claim brought by daughters, whereas the

Lower Appellate Court misdirected itself in holding that the suit was filed by a

r and therefore maintainable, although the entire pleading and conduct of

the plaintiff showed that he was seeking a declaration for himself alone and not for

further argued that the suit itself was not

laintiff sought a declaration of joint ownership only in respect

of one property, whereas the pleadings admitted existence of two houses owned by

deceased Ram Kishan. Since a person seeking declaration of joint ownership or

properties left by the deceased, the present suit,

which related only to one property, was bad for partial partition. The plaintiff did

not plead that the other house was exclusively in his possession nor did he allege

share in any property. The omission to

include all the properties of the deceased rendered the suit defective in law and

-

late Court, the

approached this Court by way of the present regular second

indings of the learned

1990 suffers

from serious legal and factual infirmities. It was argued that the learned Lower

l Court on

the issue of partition, particularly Issue No.3, where the Trial Court had correctly

held that the suit was not maintainable in view of Section 23 of the Hindu

Succession Act and that the property being a dwelling house, the daughters had no

ht of partition. It was further contended that the Trial Court had rightly treated

the suit to be in the nature of a partition claim brought by daughters, whereas the

Lower Appellate Court misdirected itself in holding that the suit was filed by a

r and therefore maintainable, although the entire pleading and conduct of

the plaintiff showed that he was seeking a declaration for himself alone and not for

further argued that the suit itself was not

laintiff sought a declaration of joint ownership only in respect

of one property, whereas the pleadings admitted existence of two houses owned by

deceased Ram Kishan. Since a person seeking declaration of joint ownership or

properties left by the deceased, the present suit,

which related only to one property, was bad for partial partition. The plaintiff did

not plead that the other house was exclusively in his possession nor did he allege

share in any property. The omission to

include all the properties of the deceased rendered the suit defective in law and

RSA-2117-1990

contrary to the settled principle that a co

several properties.

25. It was also argued tha

facts. The plaintiff had himself, in an earlier litigation titled

Bai, made admissions regarding alienation by him or his father, and that certain

sale deeds or agreements existed concernin

of Ram Chander, who was not impleaded as a necessary party. Once the plaintiff

pleaded joint ownership and other persons were claiming independent possession,

non-joinder of Ram Chander constituted a fatal defect.

the Trial Court had rightly observed that an agreement to sell is not a sale deed, but

the fact that such agreement was executed and acted upon made Ram Chander a

necessary party to a proper adjudication of the matter. The Lower A

however, failed to consider this and erred in rejecting the plea of non

26. With respect to the two applications filed in

counsel argued that the appellant sought to lead additional evidence under Order

41 Rule 27 to bring on record property IDs recently created by the Municipal

Authorities in Bhiwani. It was averred that the properties now bear new municipal

numbers, property ID of H.No.26 (suit property) and property ID of H.No.25

Gandhi Nagar, Krishna C

documents contain complete description of the property. The appellant claimed

that these property IDs were not available at the time of filing of the appeal in 1990

and, therefore,

correctly and to assist the Court in reaching a just decision.

27. The second application under Section 151 read with Order 41 Rule 2

was filed seeking permission to raise an additional plea that the suit was not

maintainable because the plaintiff sought declaration only in respect of one house

1990 (O&M)

contrary to the settled principle that a co-sharer cannot seek partition of only one of

several properties.

It was also argued that the plaintiff deliberately withheld material

facts. The plaintiff had himself, in an earlier litigation titled

, made admissions regarding alienation by him or his father, and that certain

sale deeds or agreements existed concerning portions of the suit property in favour

of Ram Chander, who was not impleaded as a necessary party. Once the plaintiff

pleaded joint ownership and other persons were claiming independent possession,

joinder of Ram Chander constituted a fatal defect.

the Trial Court had rightly observed that an agreement to sell is not a sale deed, but

the fact that such agreement was executed and acted upon made Ram Chander a

necessary party to a proper adjudication of the matter. The Lower A

however, failed to consider this and erred in rejecting the plea of non

With respect to the two applications filed in

counsel argued that the appellant sought to lead additional evidence under Order

Rule 27 to bring on record property IDs recently created by the Municipal

Authorities in Bhiwani. It was averred that the properties now bear new municipal

numbers, property ID of H.No.26 (suit property) and property ID of H.No.25

Gandhi Nagar, Krishna Colony, Bhiwani (adjoining house), and that these

documents contain complete description of the property. The appellant claimed

that these property IDs were not available at the time of filing of the appeal in 1990

additional evidence was necessary to identify the properties

correctly and to assist the Court in reaching a just decision.

The second application under Section 151 read with Order 41 Rule 2

was filed seeking permission to raise an additional plea that the suit was not

inable because the plaintiff sought declaration only in respect of one house

- 8-

sharer cannot seek partition of only one of

t the plaintiff deliberately withheld material

facts. The plaintiff had himself, in an earlier litigation titled Sadha Nand vs. Sita

, made admissions regarding alienation by him or his father, and that certain

g portions of the suit property in favour

of Ram Chander, who was not impleaded as a necessary party. Once the plaintiff

pleaded joint ownership and other persons were claiming independent possession,

joinder of Ram Chander constituted a fatal defect. The appellant argued that

the Trial Court had rightly observed that an agreement to sell is not a sale deed, but

the fact that such agreement was executed and acted upon made Ram Chander a

necessary party to a proper adjudication of the matter. The Lower Appellate Court,

however, failed to consider this and erred in rejecting the plea of non-joinder.

With respect to the two applications filed in the present RSA, learned

counsel argued that the appellant sought to lead additional evidence under Order

Rule 27 to bring on record property IDs recently created by the Municipal

Authorities in Bhiwani. It was averred that the properties now bear new municipal

numbers, property ID of H.No.26 (suit property) and property ID of H.No.25

(adjoining house), and that these

documents contain complete description of the property. The appellant claimed

that these property IDs were not available at the time of filing of the appeal in 1990

cessary to identify the properties

correctly and to assist the Court in reaching a just decision.

The second application under Section 151 read with Order 41 Rule 2

was filed seeking permission to raise an additional plea that the suit was not

inable because the plaintiff sought declaration only in respect of one house

-

sharer cannot seek partition of only one of

t the plaintiff deliberately withheld material

a Nand vs. Sita

, made admissions regarding alienation by him or his father, and that certain

g portions of the suit property in favour

of Ram Chander, who was not impleaded as a necessary party. Once the plaintiff

pleaded joint ownership and other persons were claiming independent possession,

The appellant argued that

the Trial Court had rightly observed that an agreement to sell is not a sale deed, but

the fact that such agreement was executed and acted upon made Ram Chander a

ppellate Court,

RSA, learned

counsel argued that the appellant sought to lead additional evidence under Order

Rule 27 to bring on record property IDs recently created by the Municipal

Authorities in Bhiwani. It was averred that the properties now bear new municipal

numbers, property ID of H.No.26 (suit property) and property ID of H.No.25,

(adjoining house), and that these

documents contain complete description of the property. The appellant claimed

that these property IDs were not available at the time of filing of the appeal in 1990

cessary to identify the properties

The second application under Section 151 read with Order 41 Rule 2

was filed seeking permission to raise an additional plea that the suit was not

inable because the plaintiff sought declaration only in respect of one house

RSA-2117-1990

and not the entire property left by the deceased, and

bad for partial partition. It was submitted that this was a pure question of law

which could be raised at any stage and that the interest of justice required the Court

to permit the appellant to raise this additional ground.

Submissions of learned counsel for the respondent

28. Learned counsel for the responde

foundation of the appellant’s case was beyond the pleadings and that the only

controversy in RSA relates to the correctness of the findings of the Lower

Appellate Court on Issue No.3. It was argued that the Trial Court clearly

each legal heir had 1/6th share in the property left by Ram Kishan and that the

plaintiff, being a male heir, had the right to claim partition under law. The Trial

Court mistakenly treated the suit as one filed by daughters and wrongly applied

Section 23 of the Hindu Succession Act, but the Lower Appellate Court corrected

this error by applying the correct interpretation of Section 23, which prohibits only

female heirs from seeking partition of the dwelling house but does not bar a male

heir. The respondent argued that this legal position is well

Appellate Court rightly relied on judgments such as

(supra) and Sar

is sought by a male heir, the bar under Section 23 does no

29. Le a

partial partition is wholly misconceived. It was contended that no document was

placed on record by the appellant to prove that the deceased owned any other

property besides the suit house or that any

available for partition. Mere assertions without proof cannot make the suit

defective. The respondent further argued that the burden lay on the appellant to

prove existence of other joint properties, which he failed to di

1990 (O&M)

and not the entire property left by the deceased, and

bad for partial partition. It was submitted that this was a pure question of law

be raised at any stage and that the interest of justice required the Court

to permit the appellant to raise this additional ground.

Submissions of learned counsel for the respondent

Learned counsel for the responde

foundation of the appellant’s case was beyond the pleadings and that the only

controversy in RSA relates to the correctness of the findings of the Lower

Appellate Court on Issue No.3. It was argued that the Trial Court clearly

each legal heir had 1/6th share in the property left by Ram Kishan and that the

plaintiff, being a male heir, had the right to claim partition under law. The Trial

Court mistakenly treated the suit as one filed by daughters and wrongly applied

ction 23 of the Hindu Succession Act, but the Lower Appellate Court corrected

this error by applying the correct interpretation of Section 23, which prohibits only

female heirs from seeking partition of the dwelling house but does not bar a male

respondent argued that this legal position is well

Appellate Court rightly relied on judgments such as

roj Kumar Mondal’s case (supr

is sought by a male heir, the bar under Section 23 does no

arned counsel for the responde

partial partition is wholly misconceived. It was contended that no document was

placed on record by the appellant to prove that the deceased owned any other

property besides the suit house or that any other house was jointly owned and

available for partition. Mere assertions without proof cannot make the suit

defective. The respondent further argued that the burden lay on the appellant to

prove existence of other joint properties, which he failed to di

- 9-

and not the entire property left by the deceased, and, therefore, the present suit was

bad for partial partition. It was submitted that this was a pure question of law

be raised at any stage and that the interest of justice required the Court

to permit the appellant to raise this additional ground.

Submissions of learned counsel for the respondent

Learned counsel for the respondent contended that the entire

foundation of the appellant’s case was beyond the pleadings and that the only

controversy in RSA relates to the correctness of the findings of the Lower

Appellate Court on Issue No.3. It was argued that the Trial Court clearly held that

each legal heir had 1/6th share in the property left by Ram Kishan and that the

plaintiff, being a male heir, had the right to claim partition under law. The Trial

Court mistakenly treated the suit as one filed by daughters and wrongly applied

ction 23 of the Hindu Succession Act, but the Lower Appellate Court corrected

this error by applying the correct interpretation of Section 23, which prohibits only

female heirs from seeking partition of the dwelling house but does not bar a male

respondent argued that this legal position is well-settled, and the Lower

Appellate Court rightly relied on judgments such as Janabai Ammal’s c

ra), holding that where the partition

is sought by a male heir, the bar under Section 23 does not apply.

ent also submitted that the plea of

partial partition is wholly misconceived. It was contended that no document was

placed on record by the appellant to prove that the deceased owned any other

other house was jointly owned and

available for partition. Mere assertions without proof cannot make the suit

defective. The respondent further argued that the burden lay on the appellant to

prove existence of other joint properties, which he failed to discharge before the

-

the present suit was

bad for partial partition. It was submitted that this was a pure question of law

be raised at any stage and that the interest of justice required the Court

nt contended that the entire

foundation of the appellant’s case was beyond the pleadings and that the only

controversy in RSA relates to the correctness of the findings of the Lower

held that

each legal heir had 1/6th share in the property left by Ram Kishan and that the

plaintiff, being a male heir, had the right to claim partition under law. The Trial

Court mistakenly treated the suit as one filed by daughters and wrongly applied

ction 23 of the Hindu Succession Act, but the Lower Appellate Court corrected

this error by applying the correct interpretation of Section 23, which prohibits only

female heirs from seeking partition of the dwelling house but does not bar a male

settled, and the Lower

case

, holding that where the partition

also submitted that the plea of

partial partition is wholly misconceived. It was contended that no document was

placed on record by the appellant to prove that the deceased owned any other

other house was jointly owned and

available for partition. Mere assertions without proof cannot make the suit

defective. The respondent further argued that the burden lay on the appellant to

scharge before the

RSA-2117-1990

Trial Court, before the Lower Appellate Court, and even at the stage of RSA. The

additional plea now sought to be raised was neither supported by any evidence nor

taken at any earlier stage, and thus cannot be allowed at this late stage.

30. On the question of identity of the property, it was argued that the suit

property has always been clearly identified and described in the plaint and in the

evidence. All along there has been no dispute that deceased Ram Kishan owned

two houses and that t

No.3 to 6. Whether the house number is recorded as YA

mentioned in Mark B, the identity of the property remains the same and has never

been contested by the defendants. Therefore,

led by producing property IDs is wholly unnecessary and cannot change the nature

of the property or the findings of the Lower Appellate Court. The respondent

argued that the application under Order 41 Rule 27 is a misu

Court because additional evidence cannot be permitted to fill lacunae or introduce

new facts which were never an issue in the case.

31. The findings of the Lower Appellate Court are well

based on evidence and correct appli

under Order 41 Rule 27 and Section 151 CPC do not satisfy the statutory

requirements and deserve to be dismissed. It was prayed that both the applications

as well as the RSA be dismissed.

Findings of this

32. It is the case for the a

disclose a proper cause of action and that the suit is not maintainable since it seeks

a declaration as to joint ownership qua only one of the properties left by the

deceased, and that the plaintiff has not incl

declaration. Learned counsel for the appellant points to evidence and documents

1990 (O&M)

Trial Court, before the Lower Appellate Court, and even at the stage of RSA. The

additional plea now sought to be raised was neither supported by any evidence nor

taken at any earlier stage, and thus cannot be allowed at this late stage.

On the question of identity of the property, it was argued that the suit

property has always been clearly identified and described in the plaint and in the

evidence. All along there has been no dispute that deceased Ram Kishan owned

two houses and that the house in dispute is the one in occupation of defendants

No.3 to 6. Whether the house number is recorded as YA

mentioned in Mark B, the identity of the property remains the same and has never

been contested by the defendants. Therefore, the additional evidence sought to be

led by producing property IDs is wholly unnecessary and cannot change the nature

of the property or the findings of the Lower Appellate Court. The respondent

argued that the application under Order 41 Rule 27 is a misu

Court because additional evidence cannot be permitted to fill lacunae or introduce

new facts which were never an issue in the case.

The findings of the Lower Appellate Court are well

based on evidence and correct application of law. The appellant’s applications

under Order 41 Rule 27 and Section 151 CPC do not satisfy the statutory

requirements and deserve to be dismissed. It was prayed that both the applications

as well as the RSA be dismissed.

s Court

It is the case for the appellant-defendants that the plaint does not

disclose a proper cause of action and that the suit is not maintainable since it seeks

a declaration as to joint ownership qua only one of the properties left by the

deceased, and that the plaintiff has not included other properties while seeking a

declaration. Learned counsel for the appellant points to evidence and documents

- 10-

Trial Court, before the Lower Appellate Court, and even at the stage of RSA. The

additional plea now sought to be raised was neither supported by any evidence nor

taken at any earlier stage, and thus cannot be allowed at this late stage.

On the question of identity of the property, it was argued that the suit

property has always been clearly identified and described in the plaint and in the

evidence. All along there has been no dispute that deceased Ram Kishan owned

he house in dispute is the one in occupation of defendants

No.3 to 6. Whether the house number is recorded as YA-124 or YA-135 as

mentioned in Mark B, the identity of the property remains the same and has never

the additional evidence sought to be

led by producing property IDs is wholly unnecessary and cannot change the nature

of the property or the findings of the Lower Appellate Court. The respondent

argued that the application under Order 41 Rule 27 is a misuse of the process of the

Court because additional evidence cannot be permitted to fill lacunae or introduce

new facts which were never an issue in the case.

The findings of the Lower Appellate Court are well-reasoned and

cation of law. The appellant’s applications

under Order 41 Rule 27 and Section 151 CPC do not satisfy the statutory

requirements and deserve to be dismissed. It was prayed that both the applications

defendants that the plaint does not

disclose a proper cause of action and that the suit is not maintainable since it seeks

a declaration as to joint ownership qua only one of the properties left by the

uded other properties while seeking a

declaration. Learned counsel for the appellant points to evidence and documents

-

Trial Court, before the Lower Appellate Court, and even at the stage of RSA. The

additional plea now sought to be raised was neither supported by any evidence nor

On the question of identity of the property, it was argued that the suit

property has always been clearly identified and described in the plaint and in the

evidence. All along there has been no dispute that deceased Ram Kishan owned

he house in dispute is the one in occupation of defendants

135 as

mentioned in Mark B, the identity of the property remains the same and has never

the additional evidence sought to be

led by producing property IDs is wholly unnecessary and cannot change the nature

of the property or the findings of the Lower Appellate Court. The respondent

se of the process of the

Court because additional evidence cannot be permitted to fill lacunae or introduce

reasoned and

cation of law. The appellant’s applications

under Order 41 Rule 27 and Section 151 CPC do not satisfy the statutory

requirements and deserve to be dismissed. It was prayed that both the applications

defendants that the plaint does not

disclose a proper cause of action and that the suit is not maintainable since it seeks

a declaration as to joint ownership qua only one of the properties left by the

uded other properties while seeking a

declaration. Learned counsel for the appellant points to evidence and documents or

RSA-2117-1990

agreements to c

of an agreement/sale and that such pe

33. These preliminary contentions were raised before the Trial Court by

the defendants in their written statement and were considered by that Court. The

Trial Court recorded the factual position

and constructed houses

plaintiff and defendants were legal heirs

was accepted on the material on record and no convincing evidence was led to

prove that the plaintiff had sold any portion of the property. The Trial Court also

observed that no sale deed relevant to

merely an agreement or alleged sale was not acted upon and no sale deed was

executed, such assertion could

plaintiff from claiming his share. These findings were recorded after perusal of

Ex.D1, Ex.D2 and other material and upon hearing the witnesses.

34. The Lower Appellate Court examined the plead

the alleged sale in favour of one Ram Chander and concluded that mere agreement

does not amount to a completed sale and that no sale deed had been executed nor

any suit filed by the alleged purchaser. The Appellate Court therefore held that

non-joinder of Ram Chander was not a ground to dismiss the appeal or disturb the

rights of parties on the record.

35. On careful consideration of the entire material

reason to take a different view. Where the record discloses that no completed sale

deed was produced and where the alleged purchaser has taken no step to assert his

interest or seek to be made a party, the omission,

to the root of jurisdiction or maintainability. The Trial Court spe

considered and negatived the plea that the

1990 (O&M)

contend that some portion of the estate had been the subject matter

of an agreement/sale and that such persons are necessary parties.

These preliminary contentions were raised before the Trial Court by

the defendants in their written statement and were considered by that Court. The

t recorded the factual position that Ram Kishan had purchased the plot

and constructed houses, upon his death the property devolved upon his heirs

and defendants were legal heirs, the plaintiff’s plea of having 1/6th share

was accepted on the material on record and no convincing evidence was led to

he plaintiff had sold any portion of the property. The Trial Court also

observed that no sale deed relevant to the disputed house was produced

merely an agreement or alleged sale was not acted upon and no sale deed was

executed, such assertion could not be treated as an effective alienation to oust the

plaintiff from claiming his share. These findings were recorded after perusal of

Ex.D1, Ex.D2 and other material and upon hearing the witnesses.

The Lower Appellate Court examined the plead

the alleged sale in favour of one Ram Chander and concluded that mere agreement

does not amount to a completed sale and that no sale deed had been executed nor

any suit filed by the alleged purchaser. The Appellate Court therefore held that

nder of Ram Chander was not a ground to dismiss the appeal or disturb the

rights of parties on the record.

On careful consideration of the entire material

reason to take a different view. Where the record discloses that no completed sale

was produced and where the alleged purchaser has taken no step to assert his

interest or seek to be made a party, the omission,

to the root of jurisdiction or maintainability. The Trial Court spe

considered and negatived the plea that the plaintiff had sold his share

- 11-

that some portion of the estate had been the subject matter

rsons are necessary parties.

These preliminary contentions were raised before the Trial Court by

the defendants in their written statement and were considered by that Court. The

Ram Kishan had purchased the plot

roperty devolved upon his heirs,

the plaintiff’s plea of having 1/6th share

was accepted on the material on record and no convincing evidence was led to

he plaintiff had sold any portion of the property. The Trial Court also

the disputed house was produced, where

merely an agreement or alleged sale was not acted upon and no sale deed was

not be treated as an effective alienation to oust the

plaintiff from claiming his share. These findings were recorded after perusal of

Ex.D1, Ex.D2 and other material and upon hearing the witnesses.

The Lower Appellate Court examined the pleading of non-joinder and

the alleged sale in favour of one Ram Chander and concluded that mere agreement

does not amount to a completed sale and that no sale deed had been executed nor

any suit filed by the alleged purchaser. The Appellate Court therefore held that

nder of Ram Chander was not a ground to dismiss the appeal or disturb the

On careful consideration of the entire material, this Court finds

reason to take a different view. Where the record discloses that no completed sale

was produced and where the alleged purchaser has taken no step to assert his

interest or seek to be made a party, the omission, does not in the circumstances go

to the root of jurisdiction or maintainability. The Trial Court specifically

plaintiff had sold his share. This finding

-

that some portion of the estate had been the subject matter

These preliminary contentions were raised before the Trial Court by

the defendants in their written statement and were considered by that Court. The

Ram Kishan had purchased the plot

the

the plaintiff’s plea of having 1/6th share

was accepted on the material on record and no convincing evidence was led to

he plaintiff had sold any portion of the property. The Trial Court also

where

merely an agreement or alleged sale was not acted upon and no sale deed was

not be treated as an effective alienation to oust the

plaintiff from claiming his share. These findings were recorded after perusal of

der and

the alleged sale in favour of one Ram Chander and concluded that mere agreement

does not amount to a completed sale and that no sale deed had been executed nor

any suit filed by the alleged purchaser. The Appellate Court therefore held that

nder of Ram Chander was not a ground to dismiss the appeal or disturb the

no

reason to take a different view. Where the record discloses that no completed sale

was produced and where the alleged purchaser has taken no step to assert his

does not in the circumstances go

cifically

his finding

RSA-2117-1990

is supported by the absence of a sale deed and the evidence on record. The Lower

Appellate Court’s conclusion in this respect is not perverse nor is it vitiated

mis-appreciation of evidence. Accordingly the preliminary objections on cause of

action, non-joinder and maintainability

sustain the present challenge.

36. A central plank of the appellant’s case is the submissio

is bad for “partial partition”. Learned counsel for the appellant argued that the

plaintiff admitted in pleadings the existence of two houses left by Ram Kishan and

that declaration of joint ownership should have been sought qua the entire

properties and seeking relief qua only one property renders the plaint defective and

not maintainable. This plea was formulated again as an additional ground sought to

be raised in this RSA by way of

Rule 2 CPC.

37. The Lower Appellate

Hindu Succession Act and the distinction between the rights of male and female

heirs in respect of partition of a dwelling house. It relied on decisions recorded in

the judgments J

(supra) and held that Section 23 is a special provision designed to postpone the

right of female heirs to seek partition of a dwelling house where male heirs elect to

keep the property joint. It concluded that such re

heirs and does not preclude a male heir from claiming partition. On that basis the

Court found that the Trial Court erred in declining partition and therefore set aside

that part of its order.

38. It is manifest from the language and legislative scheme of Section 2

that the statutory restriction is designed to protect the dwelling interest against

fragmentation by married daughters

1990 (O&M)

is supported by the absence of a sale deed and the evidence on record. The Lower

Appellate Court’s conclusion in this respect is not perverse nor is it vitiated

appreciation of evidence. Accordingly the preliminary objections on cause of

joinder and maintainability, on the specific factual matrix

sustain the present challenge.

A central plank of the appellant’s case is the submissio

is bad for “partial partition”. Learned counsel for the appellant argued that the

plaintiff admitted in pleadings the existence of two houses left by Ram Kishan and

that declaration of joint ownership should have been sought qua the entire

seeking relief qua only one property renders the plaint defective and

not maintainable. This plea was formulated again as an additional ground sought to

be raised in this RSA by way of application und

The Lower Appellate Court dealt with the scope of Section 23 of the

Hindu Succession Act and the distinction between the rights of male and female

heirs in respect of partition of a dwelling house. It relied on decisions recorded in

Janabai Ammal’s case (supra)

and held that Section 23 is a special provision designed to postpone the

right of female heirs to seek partition of a dwelling house where male heirs elect to

keep the property joint. It concluded that such re

heirs and does not preclude a male heir from claiming partition. On that basis the

Court found that the Trial Court erred in declining partition and therefore set aside

that part of its order.

is manifest from the language and legislative scheme of Section 2

that the statutory restriction is designed to protect the dwelling interest against

gmentation by married daughters, where the heir seeking partition is a male heir,

- 12-

is supported by the absence of a sale deed and the evidence on record. The Lower

Appellate Court’s conclusion in this respect is not perverse nor is it vitiated by any

appreciation of evidence. Accordingly the preliminary objections on cause of

on the specific factual matrix, cannot

A central plank of the appellant’s case is the submission that the suit

is bad for “partial partition”. Learned counsel for the appellant argued that the

plaintiff admitted in pleadings the existence of two houses left by Ram Kishan and

that declaration of joint ownership should have been sought qua the entire

seeking relief qua only one property renders the plaint defective and

not maintainable. This plea was formulated again as an additional ground sought to

der Section 151 read with Order 41

Court dealt with the scope of Section 23 of the

Hindu Succession Act and the distinction between the rights of male and female

heirs in respect of partition of a dwelling house. It relied on decisions recorded in

) and Saroj Kumar Mondal’s c

and held that Section 23 is a special provision designed to postpone the

right of female heirs to seek partition of a dwelling house where male heirs elect to

keep the property joint. It concluded that such restriction is applicable to female

heirs and does not preclude a male heir from claiming partition. On that basis the

Court found that the Trial Court erred in declining partition and therefore set aside

is manifest from the language and legislative scheme of Section 2

that the statutory restriction is designed to protect the dwelling interest against

where the heir seeking partition is a male heir,

-

is supported by the absence of a sale deed and the evidence on record. The Lower

by any

appreciation of evidence. Accordingly the preliminary objections on cause of

cannot

n that the suit

is bad for “partial partition”. Learned counsel for the appellant argued that the

plaintiff admitted in pleadings the existence of two houses left by Ram Kishan and

that declaration of joint ownership should have been sought qua the entire

seeking relief qua only one property renders the plaint defective and

not maintainable. This plea was formulated again as an additional ground sought to

Section 151 read with Order 41

Court dealt with the scope of Section 23 of the

Hindu Succession Act and the distinction between the rights of male and female

heirs in respect of partition of a dwelling house. It relied on decisions recorded in

case

and held that Section 23 is a special provision designed to postpone the

right of female heirs to seek partition of a dwelling house where male heirs elect to

striction is applicable to female

heirs and does not preclude a male heir from claiming partition. On that basis the

Court found that the Trial Court erred in declining partition and therefore set aside

is manifest from the language and legislative scheme of Section 23

that the statutory restriction is designed to protect the dwelling interest against

where the heir seeking partition is a male heir,

RSA-2117-1990

there is no statutory bar. The Trial Court’s treatment of the matter as if the suit h

been filed by daughters was, in this Court’s view, based upon a misapprehension of

the pleadings and of the identity of the claimant. The Lower Appellate Court

rightly directed attention to this aspect and to the authorities which confine the

operation of Section 23. On this legal proposition

with the view taken by the Lower Appellate Court.

39. On the second point the contention that a party cannot claim

declaration qua one property when other properties remain unclaimed is not an

absolute rule of law but depends on whether the property in question is properly

described, whether the plaintiff pleaded his case consistently and whether the

omission to include other properties adversely affects the rights of co

the present case

and the plaintiff’s possession and claim

the Trial Court or the Appellate Court showing that other properties were being

treated as joint property

assertion that other properties exist is not enough to vitiate a suit where the disput

concerns a specifically described dwelling house. The appellant had the

opportunity at the Trial Court a

such other properties being joint and to press the non

point, that opportunity was not successfully availed of. In these circumstances the

raising of the objection for the first ti

the settled facts and findings of the courts below.

40. For these reasons

bad for partial partition in law or fact so as to warrant interference with the

Appellate Court’s

1990 (O&M)

there is no statutory bar. The Trial Court’s treatment of the matter as if the suit h

been filed by daughters was, in this Court’s view, based upon a misapprehension of

the pleadings and of the identity of the claimant. The Lower Appellate Court

rightly directed attention to this aspect and to the authorities which confine the

of Section 23. On this legal proposition

with the view taken by the Lower Appellate Court.

On the second point the contention that a party cannot claim

declaration qua one property when other properties remain unclaimed is not an

ute rule of law but depends on whether the property in question is properly

described, whether the plaintiff pleaded his case consistently and whether the

omission to include other properties adversely affects the rights of co

the present case the plaint and evidence consistently describe the house in dispute

laintiff’s possession and claim. There was no reliable proof placed before

the Trial Court or the Appellate Court showing that other properties were being

treated as joint property and that their omission would result in an injustice. Mere

assertion that other properties exist is not enough to vitiate a suit where the disput

concerns a specifically described dwelling house. The appellant had the

opportunity at the Trial Court and before the Appellate Court to produce proof of

such other properties being joint and to press the non

that opportunity was not successfully availed of. In these circumstances the

raising of the objection for the first time in RSA cannot be permitted to overthrow

the settled facts and findings of the courts below.

For these reasons this Court is not persuaded that the present suit is

bad for partial partition in law or fact so as to warrant interference with the

Appellate Court’s judgment.

- 13-

there is no statutory bar. The Trial Court’s treatment of the matter as if the suit h

been filed by daughters was, in this Court’s view, based upon a misapprehension of

the pleadings and of the identity of the claimant. The Lower Appellate Court

rightly directed attention to this aspect and to the authorities which confine the

of Section 23. On this legal proposition, this Court does not find fault

with the view taken by the Lower Appellate Court.

On the second point the contention that a party cannot claim

declaration qua one property when other properties remain unclaimed is not an

ute rule of law but depends on whether the property in question is properly

described, whether the plaintiff pleaded his case consistently and whether the

omission to include other properties adversely affects the rights of co-sharers. In

the plaint and evidence consistently describe the house in dispute

here was no reliable proof placed before

the Trial Court or the Appellate Court showing that other properties were being

and that their omission would result in an injustice. Mere

assertion that other properties exist is not enough to vitiate a suit where the disput

concerns a specifically described dwelling house. The appellant had the

nd before the Appellate Court to produce proof of

such other properties being joint and to press the non-joinder/partial-partition

that opportunity was not successfully availed of. In these circumstances the

me in RSA cannot be permitted to overthrow

the settled facts and findings of the courts below.

not persuaded that the present suit is

bad for partial partition in law or fact so as to warrant interference with the

-

there is no statutory bar. The Trial Court’s treatment of the matter as if the suit had

been filed by daughters was, in this Court’s view, based upon a misapprehension of

the pleadings and of the identity of the claimant. The Lower Appellate Court

rightly directed attention to this aspect and to the authorities which confine the

find fault

On the second point the contention that a party cannot claim

declaration qua one property when other properties remain unclaimed is not an

ute rule of law but depends on whether the property in question is properly

described, whether the plaintiff pleaded his case consistently and whether the

sharers. In

the plaint and evidence consistently describe the house in dispute

here was no reliable proof placed before

the Trial Court or the Appellate Court showing that other properties were being

and that their omission would result in an injustice. Mere

assertion that other properties exist is not enough to vitiate a suit where the dispute

concerns a specifically described dwelling house. The appellant had the

nd before the Appellate Court to produce proof of

partition

that opportunity was not successfully availed of. In these circumstances the

me in RSA cannot be permitted to overthrow

not persuaded that the present suit is

bad for partial partition in law or fact so as to warrant interference with the

RSA-2117-1990

41. The appellant seeks to lead municipal Property ID documents now

created for the urban properties and contends that these documents were not

available in 1990 and are

Property IDs bear comprehensive descriptions and would assist in correct

identification of the suit property and the adjoining house.

42. The respondent’s case is that identity of the suit property was n

dispute, that the Trial Court and the Appellate Court have properly identified the

property from the evidence and marks relied upon at the trial, and that municipal

numbering or the creation of property IDs in more recent times cannot alter the

identity or the rights adjudicated upon. The respondent further contends that the

production of these documents is unnecessary and will serve only to introduce

peripheral technicalities.

43. Order 41 Rule 27 allows the Appellate Court to frame its own view on

whether additional evidence is receivable, bearing in mind whether the evidence is

fresh, could not be produced earlier with reasonable diligence, and whether it is

relevant to the real controversy. In the present case the Property IDs admittedly

post-date the original proceedings

and description of the disputed house was always part of the trial evidence and was

never the subject of a genuine controversy between the parties. The material on

record establishe

the house in dispute was in the possession of defendants No.3 to 6 and that

plaintiff’s symbolic possession remained. The Lower Appellate Court considered

these aspects and came to the concl

correctly established and that recent municipal numbering does not change the

nature or identity of the property so as to affect substantive rights.

1990 (O&M)

The appellant seeks to lead municipal Property ID documents now

created for the urban properties and contends that these documents were not

available in 1990 and are, therefore, fresh evidence. The appellant urges that the

Property IDs bear comprehensive descriptions and would assist in correct

identification of the suit property and the adjoining house.

The respondent’s case is that identity of the suit property was n

dispute, that the Trial Court and the Appellate Court have properly identified the

property from the evidence and marks relied upon at the trial, and that municipal

numbering or the creation of property IDs in more recent times cannot alter the

ntity or the rights adjudicated upon. The respondent further contends that the

production of these documents is unnecessary and will serve only to introduce

peripheral technicalities.

Order 41 Rule 27 allows the Appellate Court to frame its own view on

ether additional evidence is receivable, bearing in mind whether the evidence is

fresh, could not be produced earlier with reasonable diligence, and whether it is

relevant to the real controversy. In the present case the Property IDs admittedly

he original proceedings, however, it is also plain that the identification

and description of the disputed house was always part of the trial evidence and was

never the subject of a genuine controversy between the parties. The material on

record establishes that the father, Ram Kishan, had constructed the house and that

the house in dispute was in the possession of defendants No.3 to 6 and that

plaintiff’s symbolic possession remained. The Lower Appellate Court considered

these aspects and came to the conclusion that the identity of the property is

correctly established and that recent municipal numbering does not change the

nature or identity of the property so as to affect substantive rights.

- 14-

The appellant seeks to lead municipal Property ID documents now

created for the urban properties and contends that these documents were not

fresh evidence. The appellant urges that the

Property IDs bear comprehensive descriptions and would assist in correct

identification of the suit property and the adjoining house.

The respondent’s case is that identity of the suit property was never in

dispute, that the Trial Court and the Appellate Court have properly identified the

property from the evidence and marks relied upon at the trial, and that municipal

numbering or the creation of property IDs in more recent times cannot alter the

ntity or the rights adjudicated upon. The respondent further contends that the

production of these documents is unnecessary and will serve only to introduce

Order 41 Rule 27 allows the Appellate Court to frame its own view on

ether additional evidence is receivable, bearing in mind whether the evidence is

fresh, could not be produced earlier with reasonable diligence, and whether it is

relevant to the real controversy. In the present case the Property IDs admittedly

however, it is also plain that the identification

and description of the disputed house was always part of the trial evidence and was

never the subject of a genuine controversy between the parties. The material on

s that the father, Ram Kishan, had constructed the house and that

the house in dispute was in the possession of defendants No.3 to 6 and that

plaintiff’s symbolic possession remained. The Lower Appellate Court considered

usion that the identity of the property is

correctly established and that recent municipal numbering does not change the

nature or identity of the property so as to affect substantive rights.

-

The appellant seeks to lead municipal Property ID documents now

created for the urban properties and contends that these documents were not

fresh evidence. The appellant urges that the

Property IDs bear comprehensive descriptions and would assist in correct

ever in

dispute, that the Trial Court and the Appellate Court have properly identified the

property from the evidence and marks relied upon at the trial, and that municipal

numbering or the creation of property IDs in more recent times cannot alter the

ntity or the rights adjudicated upon. The respondent further contends that the

production of these documents is unnecessary and will serve only to introduce

Order 41 Rule 27 allows the Appellate Court to frame its own view on

ether additional evidence is receivable, bearing in mind whether the evidence is

fresh, could not be produced earlier with reasonable diligence, and whether it is

relevant to the real controversy. In the present case the Property IDs admittedly

however, it is also plain that the identification

and description of the disputed house was always part of the trial evidence and was

never the subject of a genuine controversy between the parties. The material on

s that the father, Ram Kishan, had constructed the house and that

the house in dispute was in the possession of defendants No.3 to 6 and that

plaintiff’s symbolic possession remained. The Lower Appellate Court considered

usion that the identity of the property is

correctly established and that recent municipal numbering does not change the

RSA-2117-1990

44. I have carefully considered the documents tendered as annexures

the petition for additional evidence. Even if the Court were to receive those

documents, I am satisfied that they would not have any material bearing on the

core question which decides the rights of the parties, namely whether the plaintiff,

being a male heir, could maintain partition/declaration and whether the defendants

had validly ousted the plaintiff by any proved alienation. The additional property

ID evidence is therefore of cumulative or purely formal value and would not alter

any finding of fac

exercise its discretion to permit additional evidence at this late stage. Accordingly

the application under Order 41 Rule 27

45. The appellant sought leave to raise an additional

cannot claim declaration of joint ownership qua only a single property left by his

father and that the suit is thus bad for partial partition. Section 151 and Order 41

Rule 2 are not a roving commission to permit the introduction of

substantial pleas or grounds at a belated stage which could have been and ought to

have been raised earlier. The Court must be satisfied that the proposed ground is

one which arises inevitably on the record and that it would be in the interests of

justice to permit it.

46. As noted earlier, the Trial Court and the Appellate Court had an

opportunity to and in fact did consider the pleadings and the evidence with respect

to the number of properties and the nature of the claim. The appellant cannot show

sufficient cause why this distinct legal plea was not advanced and adduced at the

proper stage. Even were the plea permitted, the fundamental difficulty for the

appellant is absence of material to demonstrate that omission of other properties

from the plaint caused any miscarriage of justice with respect to the suit property.

The record does not contain proof of any exclusive ownership claim over other

1990 (O&M)

I have carefully considered the documents tendered as annexures

the petition for additional evidence. Even if the Court were to receive those

documents, I am satisfied that they would not have any material bearing on the

core question which decides the rights of the parties, namely whether the plaintiff,

le heir, could maintain partition/declaration and whether the defendants

had validly ousted the plaintiff by any proved alienation. The additional property

ID evidence is therefore of cumulative or purely formal value and would not alter

any finding of fact or law in the appeal. In such circumstances the Court should not

exercise its discretion to permit additional evidence at this late stage. Accordingly

the application under Order 41 Rule 27 CPC is dismissed.

The appellant sought leave to raise an additional

cannot claim declaration of joint ownership qua only a single property left by his

father and that the suit is thus bad for partial partition. Section 151 and Order 41

Rule 2 are not a roving commission to permit the introduction of

substantial pleas or grounds at a belated stage which could have been and ought to

have been raised earlier. The Court must be satisfied that the proposed ground is

one which arises inevitably on the record and that it would be in the interests of

justice to permit it.

As noted earlier, the Trial Court and the Appellate Court had an

opportunity to and in fact did consider the pleadings and the evidence with respect

to the number of properties and the nature of the claim. The appellant cannot show

sufficient cause why this distinct legal plea was not advanced and adduced at the

proper stage. Even were the plea permitted, the fundamental difficulty for the

appellant is absence of material to demonstrate that omission of other properties

nt caused any miscarriage of justice with respect to the suit property.

The record does not contain proof of any exclusive ownership claim over other

- 15-

I have carefully considered the documents tendered as annexures

the petition for additional evidence. Even if the Court were to receive those

documents, I am satisfied that they would not have any material bearing on the

core question which decides the rights of the parties, namely whether the plaintiff,

le heir, could maintain partition/declaration and whether the defendants

had validly ousted the plaintiff by any proved alienation. The additional property

ID evidence is therefore of cumulative or purely formal value and would not alter

t or law in the appeal. In such circumstances the Court should not

exercise its discretion to permit additional evidence at this late stage. Accordingly

is dismissed.

The appellant sought leave to raise an additional plea that the plaintiff

cannot claim declaration of joint ownership qua only a single property left by his

father and that the suit is thus bad for partial partition. Section 151 and Order 41

Rule 2 are not a roving commission to permit the introduction of new and

substantial pleas or grounds at a belated stage which could have been and ought to

have been raised earlier. The Court must be satisfied that the proposed ground is

one which arises inevitably on the record and that it would be in the interests of

As noted earlier, the Trial Court and the Appellate Court had an

opportunity to and in fact did consider the pleadings and the evidence with respect

to the number of properties and the nature of the claim. The appellant cannot show

sufficient cause why this distinct legal plea was not advanced and adduced at the

proper stage. Even were the plea permitted, the fundamental difficulty for the

appellant is absence of material to demonstrate that omission of other properties

nt caused any miscarriage of justice with respect to the suit property.

The record does not contain proof of any exclusive ownership claim over other

-

I have carefully considered the documents tendered as annexures to

the petition for additional evidence. Even if the Court were to receive those

documents, I am satisfied that they would not have any material bearing on the

core question which decides the rights of the parties, namely whether the plaintiff,

le heir, could maintain partition/declaration and whether the defendants

had validly ousted the plaintiff by any proved alienation. The additional property

ID evidence is therefore of cumulative or purely formal value and would not alter

t or law in the appeal. In such circumstances the Court should not

exercise its discretion to permit additional evidence at this late stage. Accordingly

plea that the plaintiff

cannot claim declaration of joint ownership qua only a single property left by his

father and that the suit is thus bad for partial partition. Section 151 and Order 41

new and

substantial pleas or grounds at a belated stage which could have been and ought to

have been raised earlier. The Court must be satisfied that the proposed ground is

one which arises inevitably on the record and that it would be in the interests of

As noted earlier, the Trial Court and the Appellate Court had an

opportunity to and in fact did consider the pleadings and the evidence with respect

to the number of properties and the nature of the claim. The appellant cannot show

sufficient cause why this distinct legal plea was not advanced and adduced at the

proper stage. Even were the plea permitted, the fundamental difficulty for the

appellant is absence of material to demonstrate that omission of other properties

nt caused any miscarriage of justice with respect to the suit property.

The record does not contain proof of any exclusive ownership claim over other

RSA-2117-1990

properties by the appellant which could have fatal effect on the present suit. In

short, the proposed addi

it would entail further remand and delay without any real prospect of changing the

result.

47. Therefore the application under Section 151 read with Order 41 Rule

2 CPC for raising the plea of “partial par

Conclusion

48. For the foregoing reasons

(a)

receiving additional evidence under Order 41 Rule 27 C.P.C. and for

leave to raise additional ground under Section 151 read with Order 41

Rule 2 are dismissed.

(b)

The judgment and decree dated 4.6.1990 of the learned Addl. District

Judge, Bhiwani

49. Pending application(s), if any, also stands disposed of.

December 10, 2025

tripti

Whether speaking/non

Whether reportable

1990 (O&M)

properties by the appellant which could have fatal effect on the present suit. In

short, the proposed additional ground is speculative and cannot succeed

it would entail further remand and delay without any real prospect of changing the

Therefore the application under Section 151 read with Order 41 Rule

for raising the plea of “partial partition” is refused.

For the foregoing reasons, this Cou

The applications moved by the

receiving additional evidence under Order 41 Rule 27 C.P.C. and for

leave to raise additional ground under Section 151 read with Order 41

Rule 2 are dismissed.

The Regular Second Appeal is without substance and is dismissed

The judgment and decree dated 4.6.1990 of the learned Addl. District

Judge, Bhiwani are hereby affirmed and shall stand.

Pending application(s), if any, also stands disposed of.

2025

Whether speaking/non-speaking : Speaking

Whether reportable : Yes/No.

- 16-

properties by the appellant which could have fatal effect on the present suit. In

speculative and cannot succeed, allowing

it would entail further remand and delay without any real prospect of changing the

Therefore the application under Section 151 read with Order 41 Rule

tition” is refused.

urt concludes as under:-

The applications moved by the appellant in this High Court for

receiving additional evidence under Order 41 Rule 27 C.P.C. and for

leave to raise additional ground under Section 151 read with Order 41

The Regular Second Appeal is without substance and is dismissed

The judgment and decree dated 4.6.1990 of the learned Addl. District

are hereby affirmed and shall stand.

Pending application(s), if any, also stands disposed of.

(MANDEEP PANNU)

JUDGE

speaking : Speaking

: Yes/No.

-

properties by the appellant which could have fatal effect on the present suit. In

allowing

it would entail further remand and delay without any real prospect of changing the

Therefore the application under Section 151 read with Order 41 Rule

Court for

receiving additional evidence under Order 41 Rule 27 C.P.C. and for

leave to raise additional ground under Section 151 read with Order 41

The Regular Second Appeal is without substance and is dismissed.

The judgment and decree dated 4.6.1990 of the learned Addl. District