SHOBHA AGGARWAL & ORS. vs KRISHAN KUMAR 7 ANR.

$~36
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 19th January, 2024
+ CS(OS) 347/2018 & I.As. 12302/2019, 15705/2019, 708/2021, 1010/2021, 5771/2021, 18298/2023, 24646/2023, 440/2024, 1397/2024

SHOBHA AGGARWAL & ORS. ….. Plaintiffs
Through: Mr. P.K. Agrwal & Mr. Akshay Chitkara, Advocates.
versus

KRISHAN KUMAR & ANR. ….. Defendants
Through: Mr. Abhishek Aggarwal, Advocate for D-1.
Mr. Manish Srivastava, Mr. Hardik Vashisht, Mr. Moksh Arora & Mr. Yash S., Advocates for D-2.
Mr. Anish Shrestha & Mr. Firoz Khan, Advocates for D-2(i).
Mr. Kirti Man Singh, Mr. Vikhyat Oberoi, Mr. Jagriti Pandey & Mr. Onmichon Ramrar, Advocates for applicant/impleader in I.A. 10102021.

CORAM:
HON’BLE MS. JUSTICE NEENA BANSAL KRISHNA

% J U D G M E N T (oral)
I.A. 1010/2021 (u/O I Rule 10 r/w Section 151 of CPC, 1908 by Vijay Kumar for his impleadment)

I.A. 24646/2023 (u/ S 151 of CPC, 1908 by Vijay Kumar (Impleader) for placing on record additional facts, grounds and documents)

1. A suit for partition had been filed by the plaintiffs for the partition of the suit properties. The plaintiff Nos. 1 & 2 (sisters) and defendant Nos. 1 & 2 (sons) are the children of late Shri Nitya Nand Aggarwal. Plaintiff No. 3 is the son of another deceased daughter of Shri Nitya Nand Aggarwal.
2. It is claimed that the parties to the suit, have inherited from their father late Shri Nitya Nand Aggarwal, the following properties:
a) 12/171, Sunder Nagar Market, New Delhi ,110 003 measuring 150 sq. yards,
b) Shop cum Flat No.l 1& 12, Sector 22, Chandigarh,
c) Plot No. 1-A, Block No. B-1, Mohan Industrial Estate, New Delhi measuring 900 sq. yards.
d) Jewellary left behind by Smt. Vidyawati weighting 50 tolas consisting of 2 sets of karas, 2 necklace, 8 churls and other miscellaneous items and money received by Smt. Vidyawati from LIC on the death of Shri Nitya Nand.
3. The applicant/Vijay Kumar has filed the impleadment application, under Order I Rule 10 CPC as he has recently come to know about the pendency of the present Suit pertaining to the suit properties when he received an e-mail through a lawyer, perhaps engaged by one of the parties to the present Suit. His father/ defendant No.1, had told him that Late Shri Nitya Nand Aggarwal, had come to Delhi in 1932 with some money which he had got from the sale proceeds of the common family property in his Village, Tira, near Chandigarh.
4. He has claimed that he is in exclusive possession of the second floor of the suit property bearing No. 12-A, Sunder Nagar Market, 2nd floor. Initially, from the shop on the ground floor of the suit property, he had started the business under the name and style of M/s Regalia in partnership with defendant Nos. 1 and 2 in the same premises in 1995. However, defendant No.1/Krishan Kumar, father of the applicant/Vijay Kumar, and the defendant No. 2 vide Dissolution Deed dated 31.07.2011 dissolved the partnership and transferred all the rights in favour of the applicant/Vijay Kumar. Accordingly, the status of the business got changed. The copy of the Dissolution Deed dated 31.07.2011 and Department of Trade and taxes (DVAT) registration document have been annexed with the application. Thereafter, he started running his proprietary business under the name and style of ‘Asia Tea House’ and is mainly trading in tea from the shop admeasuring approximately 1000 sq. ft. The area adjacent to his shop on the ground floor, has been rented to Mittal Stores who are in its possession.
5. The applicant/Vijay Kumar further claims that he has been taking care of his father/ defendant No. 1 and mother with love and affection and has been paying for all the necessary expenses of him and the family including all the bills pertaining to the electricity, water etc., since 1995.
6. The applicant/Vijay Kumar had filed the Suit for Permanent and Mandatory Injunction in the Court of learned Senior Civil Judge, Senior Division, South-East District, Saket Courts, Delhi when an attempt to dispossess him from portion the Sunder Nagar property of which he is in exclusive possession. Therefore, his rights would be jeopardised in case he is not allowed to be impleaded as a necessary party to the present Suit. It is further submitted that his impleadment would prevent multiplicity of proceedings and would further result in effective and fair disposal of the case. Hence, the present application has been filed by applicant/Vijay Kumar to be impleaded as defendant in the present Suit.
7. The applicant/Vijay Kumar has placed reliance on the decision in Kamlesh Gupta vs. Mangat Rai and Ors. MANU/SC/1337/2019.
8. The applicant/Vijay Kumar also by way of I.A. 24646/2023 under Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as “CPC, 1908”) has sought to bring on record the additional facts.
9. It is submitted that after having sold the lands at Tira, Punjab, Late Shri Gopiramji, the Great Grandfather of the applicant/Vijay Kumar, distributed money amongst his six children. From this money along with certain personal savings, Late Shri Nityanand Aggarwal, Grandfather of the applicant/Vijay Kumar, purchased several properties, including the Suit Property No. 12/171, Sunder Nagar Market, New Delhi.
10. Late Shri Nityanand Aggarwal also rented Shop Nos. 10 and 11 at Bengali Market, New Delhi where he set up his business in the name and style of ‘Vishnu Stores/Vishnu Dry Cleaners’. Defendant No. 1/Krishan Kumar used to assist his father in running the business, while defendant No. 2 was a minor at that time.
11. After the demise of Shri Nityanand Aggarwal in 1971, the defendant No. 1 primarily continued the business in Bengali Market and was later joined by defendant No. 2. Together, they continued the business of dry cleaning. The defendant No. 1/Krishan Kumar, in addition, also operated his business of renting tents and catering separately under the name of ‘Kumar Tent House’.
12. It is further submitted that in the year 1985-86, the defendants started to wind up their business of dry cleaning since it was no longer profitable and started looking for setting up of a new business. Thereafter, the applicant/Vijay Kumar decided to get involved in the family business and he suggested the opening of a gift shop/gift gallery in the name of ‘Regalia’.
13. As the applicant/Vijay Kumar continued his Engineering course at Nagpur University at Gondia, Maharashtra, he was also actively in the business, especially customer relations and getting new customers for the shop.
14. Allegedly, one Hans Raj (M/s Andre) was illegally occupying part of the ground floor of the Sundar Nagar Market property in 1994. Pursuant to the Court’s Order of eviction, that portion of the property came in the occupation of the family.
15. A Partnership Deed dated 01.08.1994 was executed between the applicant/Vijay Kumar and the defendants herein, pursuant to which, the applicant/Vijay Kumar commenced the business of leather products in the name of ‘M/s Regalia’ from the said portion of the ground floor. The partnership consisted of the defendants as well as the applicant/Vijay Kumar, but in actuality, it was only the applicant/Vijay Kumar who was carrying on the business of M/s Regalia from the portion of the ground floor. The defendants in contrast were involved in the operation of the shops at Bengali Market and were assisted by the applicant/Vijay Kumar in its day-to-day affairs.
16. In 1996, the applicant/Vijay Kumar shifted from the business of Regalia into the business of Tea which has been continuing till date. Post 1995, disputes arose between the applicant/Vijay Kumar and the defendants when they started harassing and unlawfully demanding huge sums of money from him as their share from the business being run by the applicant/Vijay Kumar alone to which the applicant/Vijay Kumar always acceded as he could not say no to his father and the uncle.
17. In 1997, a new Partnership Deed dated 01.12.1997 was entered into between the applicant/Vijay Kumar and the defendants wherein it was specifically stated that not only was the applicant/Vijay Kumar exclusively managing the affairs of business at Sunder Nagar Market, but would continue to do so and would also be paid extra remuneration. However, in flagrant violation of the aforesaid Deed, the defendants continued to demand money from the applicant/Vijay Kumar which was also acceded to by him. When the applicant/Vijay Kumar vehemently opposed this unfair arrangement and demanded that he be allowed to enjoy the majority of the profits, they once again entered in the Supplementary Agreement dated 04.04.2005 modifying his remuneration.
18. The applicant/Vijay Kumar has further asserted that in first week of December, 2006, an Oral Settlement was arrived at between the applicant/Vijay Kumar and the other parties, wherein it was decided that he would be the owner and run his business from the portion of the ground floor and would get barsati/second floor of the property at Sunder Nagar for his residence. It was also decided that he would no longer have any claims in the other existing properties and he would not claim back the money that he had given from Sunder Nagar Market business to the defendants.
19. The defendant No. 2 was to take the rented Bengali Market properties which were generating large revenues.
20. It is asserted that the plaintiff No. 1 was to give Rs. 5,00,000/- per year as compensation for using the brand name ‘Regalia’ and she was allowed to retain the said brand name and her long standing dues were written off.
21. Further, the plaintiffs were given half portion of the first floor the said property is to be handed over to them after the lifetime of the parents of the applicant/Vijay Kumar. The other half portion is with the defendant No. 1.
22. Pursuant thereto, the accounts were finally settled in 2011-12 where the applicant/Vijay Kumar transferred the specified amounts to the defendants and the mother of the applicant. Pursuant thereto, a Dissolution Deed dated 31.07.2011 was also entered dissolving the partnership of Sunder Nagar business.
23. It is also asserted that after the settlement, defendant No.2 was evicted from Bengali Market shops in May, 2013. It has become clear that the parties to the instant Suit never wished to honour the terms of the settlement/partition and have now filed the instant collusive Suit in order to overcome the said settlement.
24. The applicant/Vijay Kumar has further asserted the aforesaid facts as detailed by him, also prove that there was an HUF interse the applicant/Vijay Kumar and the defendants which is also clear from the proceedings of the parties. Hence, even as a Coparcener, he has interest in the suit properties, especially Sunder Nagar property.
25. Furthermore, the applicant/Vijay Kumar holds an irrevocable licence in the suit property and is entitled to the protection of his rights as a licencee. The father of the applicant/Vijay Kumar was a GPA Holder of his siblings who had executed an NOC dated 19.06.2011 in favour of the applicant/Vijay Kumar permitting him to continue his business, M/s Asia Tea House in the suit property. The said NOC pertinently was issued after the partition had taken place in 2006 which was eventually executed in 2011/2012 to be submitted to relevant authorities, such as VAT, GST and Weight and Measurement Department etc., till the Sale documents were to be executed.
26. Further, while being in possession of the ground floor and the barsati/second floor, the applicant/Vijay Kumar had undertaken permanent construction in the said property and had incurred the costs of Rs. 15 to 20 lakhs. This fact of construction is also within the knowledge of the parties. In April-June, 2007 an area for about 275 sq. ft. on the rear side of the ground floor of the suit property was got constructed with permanent structures in the said open space, by him. Walls admeasuring approximately 23 (length) X 12 (breadth) X 11 (height) (in feet) were got built. The new construction was also bounded by grills. Additionally, he being the occupant of the suit property for last more than 3-4 decades and since 1995 at least, he has undertaken consistent, innumerable repairs and construction work without any demur from any quarter.
27. It is also submitted that it is only in 2014-15, when the health of the applicant/Vijay Kumar’s mother-in-law, who is a widow, started deteriorating, the applicant/Vijay Kumar and his family also started residing at Lajpat Nagar along with his mother-in-law for two to three days in a week.
28. The applicant/Vijay Kumar has also placed reliance on the following documents: –
(i) No Objection Certificate dated 19.06.2011 executed by defendant No. 1 as GPA holder in favour of the applicant/Vijay Kumar,
(ii) Partnership deeds, their amendment and dissolution deeds,
(iii) Electricity bills of part of ground floor in occupation of applicant/Vijay Kumar, first floor and second floor along with proof of payment made by the firm,
(iv) Water bills along with proof of payment made by the firm,
(v) VAT and GST documents,
(vi) Aadhar Card of the applicant/Vijay Kumar,
(vii) Marriage Certificate of the applicant/Vijay Kumar and his wife,
(viii) Birth Certificates of the applicant/Vijay Kumar’s children,
(ix) Ration Card of the applicant/Vijay Kumar and his family members,
(x) Voter ID Card of applicant/Vijay Kumar and his wife,
(xi) House Tax Bill for the year 2022-2023 along with their payment receipt.
29. The applicant/Vijay Kumar has stated that immediately upon coming to know about the case in November, 2020, he preferred this application for impleadment and has made a prayer that on the additional facts and grounds as stated by him, he be impleaded as a defendant in the array of parties.
30. It is thus, asserted that in view of the partition and family settlement, the applicant/Vijay Kumar is a necessary party to be impleaded in the present Suit. Reliance has been placed on the decisions in Ram Sarup Gupta vs. Bishun Narain Inter College (1987) 2 SCC and Zila Panchayat Etah vs. Om Prakash Shah and Ors. MANU/SC/1644/2017 in support of his assertions.
31. The application is contested by the plaintiffs who have taken a preliminary objection that the present application is mala fide and intended to delay the I.A. No. 13520/2019 under Section 6(1) of the Partition Act, 1893 filed on behalf of the non-applicants/plaintiffs for sale of the suit property.
32. Further, all the averments made in the application are denied. It is claimed that the applicant/Vijay Kumar has no independent interest, right and title in the suit property and is not entitled to be impleaded in the present Suit; the application for impleadment is liable to be dismissed.
33. The applicant/Vijay Kumar in his Rejoinder has reiterated his assertions as contained in his two above captioned applications. He has asserted that the present collusive suit has been filed by the plaintiffs in collusion with the defendant No. 2 to oust him of his legitimate possession.
34. Submissions heard.
35. Briefly stated, the non-applicants/plaintiffs (two sisters and the son of third sister who has expired) have filed the Suit for Partition against the defendant Nos. 1 & 2 (the two brothers of the plaintiff Nos. 1& 2 and uncles of plaintiff No.3).
36. Admittedly, Late Shri Nityanand Aggarwal, the father of the plaintiffs and the defendant Nos. 1 and 2, was the owner of the Suit Property No. 12/171, Sunder Nagar Market, Delhi. Late Shri Nityanand Aggarwal died on 11.01.1971 and he was survived by his two three daughters and two sons.
37. According to the applicant himself, the great Grandfather, Late Shri Gopi Ramji, had sold his lands at Tira, Punjab, now part of new Chandigarh, and all the money received was distributed amongst his six children of which, Late Shri Nityanand Aggarwal, Grandfather of the applicant/Vijay Kumar, was one of the sons. Thereafter, Late Shri Nityanand Aggarwal had purchased and was the exclusive owner of the Sunder Nagar property, aside from various other properties.
38. After his demise on 11.01.1971, his property devolved and is to be distributed to his two sons and three daughters by way of succession, in terms of Section 8 of the Hindu Succession Act. The three daughters/three legal heirs of Shri Nityanand Aggarwal have filed the present Suit for Partition claiming 1/5th share each in the suit property.
39. The defendant Nos. 1 & 2 in their Written Statement have contested the Partition Suit submitting that on the demise of their father, Late Shri Nityanand Aggarwal, the five children and their mother, Late Smt. Vidyawati became entitled to 1/6th share in the suit property. However, soon after the death of their father, Shri Nityanand Aggarwal in 1971, the three sisters, who are the non-applicants/plaintiffs, executed a Relinquishment Deed dated 25.07.1972, relinquishing their respective shares in the suit property.
40. Therefore, it is the case of the defendants that they along with their mother, Late Smt. Vidyawati, who was alive at that time, inherited 1/3rd share each in the suit properties. Smt. Vidyawati, their mother, died on 28.02.1991. Thus, the plaintiffs are only entitled to claim a share in the 1/3rd share of Smt. Vidyawati in which the three daughters and two sons(who are the plaintiffs and defendants) would each be entitled to 1/15th share.
41. An Interim Order dated 23.07.2018 was passed for maintaining the status quo of the suit properties.
42. However, during the pendency of the present Suit, the learned Single Judge vide Order dated 16.07.2019 observed that the parties desired to enjoy their respective shares in the property and therefore, the directions were given for the sale of suit property. The relevant part of the said Order reads as under: –
“I.A. 9353/2018 (u/O XXXIX Rules 1 & 2 CPC), I.A. 10498/2018 (u/O XXXIX Rule 4 CPC), I.A. 14034/2018 (u/O VI Rule 17 CPC)

*** *** ***
23. Coming to the interim relief that is required to be passed in the
present suit, the applications, i.e., for interim injunction and vacation of injunction have been heard by the Court. The initial order was passed under the presumption that on the basis of the case made out in the plaint – Plaintiffs’ parents had both passed away intestate and all the children were entitled to an equal share. The Defendants have placed on record enough documentary evidence to support the plea that there is a relinquishment deed executed by each of the sisters along with the rectification deeds to the said relinquishment deeds. Therefore, prima facie it is clear that the plaintiffs have relinquished their shares in their father’s assets in favour of their mother and their brothers. Thus, as per the documents available on record at this stage, the only share which the Plaintiffs would be entitled to would be the share of their mother who is since deceased. None of the Plaintiffs are residing in the suit property. They all reside in their matrimonial homes as the memo of parties itself suggests. Defendant No. 2 admittedly lives in the Yojana Vihar property. Under these circumstances, this court is of the opinion that the interest of all parties would be served if the parties can enjoy their respective shares in the Sunder Nagar property during their lifetime as the Defendants are senior citizens who are more than 81 and 70 years of age and all the Plaintiffs are either in their 60s or 70s. One of the sisters is in fact deceased and her legal heirs are the Plaintiffs.

24. It is the submission of the Defendants that, at best, the Plaintiffs would be entitled to 1/15share and as per the Plaintiffs, they would be entitled to 1/5th share. The Defendants, as per the submissions of Ld. Counsels appearing for them, wish to monetize the suit property and enjoy the sale proceeds inasmuch as the Defendants do not continue to wish to reside in the suit property any longer. Accordingly, the Defendants are permitted to explore a buyer for the suit property and if an appropriate buyer is found, the Defendants are permitted to approach the Court by means of an application by placing the draft agreement to sell on record. At that stage, the Court would consider as to what amounts should be deposited in this Court in order to secure the interests of the Plaintiffs who are also senior citizens and if any other terms are to be imposed, before permitting sale of the property. The interim order is modified to this extent alone in respect of the Sunder Nagar property. Since the Chandigarh and Mohan Nagar property are already sold, the interim order is vacated qua these properties.

25. The applications under Order XXXIX Rules 1 & 2 CPC, XXXIX Rule 4 CPC and u/0 VI Rule 17 CPC are disposed of in the above terms.”

43. An Appeal bearing Number FAO(OS) 171/2019 against the Order dated 16.07.2019 was preferred by the non-applicants/plaintiffs which was disposed of by the Division Bench of this Court vide Order dated 06.09.2019 by observing as under: –
“FAO(OS) 171 and CM APPL. 40134/2019 (stay)

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4. The three Plaintiffs in CS(OS) 347 of 2018 which is a partition suit filed by them against the Respondents/Defendants 1 and 2 have filed this appeal against an interim order dated 16th July 2019 passed by the learned Single Judge in IA Nos.9353 of 2018 and 10498 of 2018.

5. Appellant Nos. 1 and 2 are the sisters of Respondent Nos.l and 2 and Appellant No.3 is the son of one of the deceased sisters. Although there are several properties of their father which form the subject matter of the partition suit, the interim order pertains to the property at Sunder Nagar where Respondent No.l was residing.

6. It is obvious that on this interim stage the respective shares of the parties had not yet been determined. Noting the respective contentions of the parties in that regard the learned Single Judge has in the impugned order in para 24 observed as under:

“24. It is the submission of the Defendants that, at best, the Plaintiffs would be entitled to 1/15th and as per the Plaintiffs, they would be entitled to 1/5th share. The Defendants, as per the submissions of Ld. Counsels appearing for them, wish to monetize the suit property and enjoy the sale proceeds inasmuch as the Defendants do not continue to wish to reside in the suit property any longer. Accordingly, the Defendants are permitted to explore a buyer for the suit property and if an appropriate buyer is found, the Defendants are permitted to approach the Court by means of an application by placing the raft agreement to sell on record. At that stage, the Court would consider as to what amounts should be deposited in this Court in order to secure the interests of the Plaintiffs who are also senior citizens and if any other terms are to be imposed, before permitting sale of the property. The interim order is modified to this extent alone in respect of the Sunder Nagar property. Since the Chandigarh and Mohan Nagar property are already sold, the interim order is vacated qua these properties.”

7. There are three grievances put forth by learned counsel for the Appellants. First, he states that it was mandatory for the learned Single Judge to first determine the respective shares of the parties in the properties in question before proceeding to direct sale of any one of the parties. Secondly, he states that the mandatory provision of Section 6(1) of the Partition Act was not complied with and in this regard places reliance on the decision in Rani Aloka Dudhorla v. Goutam Dudhoria and Ors. (2009) 13 SCC 569. Thirdly, he takes exception to the Defendants alone, being permitted to locate a buyer for the suit property.

8. The Court would like to observe that what the learned Single Judge has done is only to note the contentions of the parties as regards their respective shares. The observations are obviously not conclusive. Secondly, the Court finds that what weighed with the learned Single Judge was the advanced age of all the parties. The present Appellant Nos.l and 2 are well about 60 years of age and Respondent Nos.1 and 2 are 81 and 70 years respectively. It was accordingly considered appropriate that if the Sunder Nagar property is sold, a substantial sum could be recovered which would then help the parties in their advanced age. The Court prima facie does not find is to be an unreasonable approach.

9. As regards the apprehension that the sale may take place de hors the Partition Act, in view of the observations of the Supreme Court in Rani Aloka Dudhoria (supra) the Court permits the present Appellants to file an appropriate application before the learned Single Judge drawing attention to Section 6(1) of the Partition Act and asking that a Court Commissioner be appointed to first fix a reserve price before proceeding to accept bids for the property in question. It is clarified that although the learned Single Judge has in the impugned order permitted the Defendants to locate a buyer, it will equally be open to the Plaintiffs/Appellants herein to locate an appropriate buyer and produce such buyer before the Court Commissioner. It will be open to the learned Single Judge, in the application to be filed by the Appellants to fix other terms for the Court Commissioner to adhere to in the matter of fixing of the reserve price, publication of the notice and acceptance of the bids which will then be placed before the Court for its further orders.

10. It is further directed that the money obtained on the sale of the property would be deposited in the Court and would be subject to further orders of the learned Single Judge. The learned Single Judge will further pass orders on the amount that should be disbursed to the parties pending the final disposal of the suit. With the above directions the appeal is disposed of. Pending application also stands disposed of.”

44. The non-applicants/plaintiffs then preferred an Application bearing I.A. No. 13520/2019 under Section 6(1) of the Partition Act, 1893 for the sale of the suit property. As the case stood thus, the captioned applications have been filed by the applicant/Vijay Kumar for his impleadment as a defendant in the present Suit.
45. The applicant/Vijay Kumar has nowhere disputed the ownership of his Grandfather, Late Shri Nityanand Aggarwal. The applicant/Vijay Kumar has claimed his right to be impleaded as a necessary and proper party on four premises:
(i) There being an existence of an HUF;
(ii) There were business were being done jointly by the applicant/Vijay Kumar with the defendants under various Partnership Deeds;
(iii) Pursuant to the oral settlement, the non-applicants/plaintiffs had executed pursuant to the family settlement, and the defendants have permitted the applicant/Vijay Kumar to do his business from the entire ground floor and to reside on the barsati/second floor;
(iv) Irrevocable license issued by defendant No. 1 allowing the applicant to continue his business in the Sunder Nagar property.
46. The first ground taken is that there existed an HUF. However, nothing pertaining to the creation or continuation of the alleged HUF has been stated by him.
47. In fact, applicant/Vijay Kumar himself has stated that his great Grandfather had sold properties and distributed the funds amongst his six children, of which, Late Shri Nityanand Aggarwal, the Grandfather was one of the sons. It is his own case that late Shri Nityanand Aggarwal had purchased the suit property as its exclusive owner. Not a single averment has been in regard to the creation of an HUF, thereafter.
48. Pertinently, neither the plaintiffs, nor the defendants have taken the plea of there being an HUF. It has been the consistent stand of all the parties that, including the father of the applicant i.e. defendant No. 1, that late Shri Nityanand Aggarwal was the exclusive owner of the suit properties. The only point of conflict between the parties is with respect to the share that the plaintiffs are entitled to inherit.
49. Moreover, the applicant had initially filed I.A. 1010 of 2021 wherein he only pleaded to be in possession of the Sunder Nagar property (one of the suit properties) for which he sought his impleadment in the suit. There is not a single mention of his ownership in the said application. However, after a span of two years, he modified his stance vide I.A. 24646 of 2023 for bringing on record additional facts, stating the existence of an HUF. This change in stance has been made when he realized that his application for impleadment is a partition suit, merely based on his possession of the suit property, is not tenable. Therefore, this ground of the applicant is baseless and is nothing but an after-thought to somehow establish his co-ownership in the suit properties.
50. The second contention raised by the applicant is that under the Oral Settlement inter se the parties in first week of December, 2006, it was decided that the applicant/Vijay Kumar would be the owner and run his business from a portion of the ground floor and would get the barsati/second floor for his residence.
51. The applicant in the present case, is claiming his ownership of the ground floor and barsati of the Sunder Nagar Market property through a Family Settlement. At the outset, it is observed that the division of shares through a family settlement/ arrangement can only take place between co-owners and no interest can be transferred to an individual who never had a share in the common properties, through such an arrangement. The applicant’s rights flow only from defendant no.1, his father and he has no independent right. Evidently, the applicant has failed to show how he became a co-owner of the suit properties in the first place.
52. It is also significant to note that the applicant/Vijay Kumar has given in detail the entire scheme of various businesses conducted by him in partnership with the defendants. The Partnerships had dissolved vide Dissolution Deed dated 31.07.2011 wherein the applicant had been given permission and possession of the ground floor of the Sunder Nagar Market property to run his business and reside in its barsati. Therefore, the applicant was only a permissive user of the said portions of the property. Not a single averment is made in the entire application, aside from he being in possession, as to how he become the owner of any portion of the Sunder Nagar Market property.
53. Being in possession, by virtue of various Partnership Deeds and subsequent settlement, does not amount to ownership in the suit property. The oral settlement alleged by the applicant/Vijay Kumar is only to do the business from the ground floor and to reside on the barsati/second floor but he never got any ownership right ever in any part of the suit premises.
54. The applicant may be able to claim some right only from his father, who is defendant No. 1 or assert an irrevocable Licence against the defendants to protect his possession. However, the right of being a co-owner accrues only through defendant No. 1. At this stage when the defendant No. 1 i.e., his father is alive, the applicant/Vijay Kumar cannot claim any ownership in the suit property.
55. The dispute between the parties in the Partition suit of whether the three sisters (plaintiffs) executed a Relinquishment Deed way back in 1972 in favour of the defendants is an inter se dispute between the co-owners of the property i.e. plaintiffs and the defendants, in which the applicant/Vijay Kumar is neither a necessary nor proper party.
56. The applicant/Vijay Kumar, aside from his possessory rights, has not been able to show any iota of facts to even establish a vestige of his title in the suit property. All the rights flow from defendant No. 1, his father. The applicant/Vijay Kumar is at liberty to assert his rights in the appropriate independent proceedings, if he so desires. He is neither necessary nor a proper party to the present Suit.
57. I.A. 1010/2021 under Order I Rule 10 read with Section 151 of CPC, 1908 is without any merit and the same is hereby dismissed. I.A. 24646/2023 under Section 151 of CPC, 1908 for bringing on record additional facts, is also disposed of.

I.A 13520/2019 (u/S 6(1) of the Partition Act r/w Section 151 of CPC, 1908 by plaintiffs)

58. The plaintiffs have filed the present application for the sale of the property at 12/71 Sunder Nagar Market and the appointment of a Local Commissioner.
59. The learned counsel appearing on behalf of the defendant No. 1 had initially consented to the sale of the suit property. Thereafter, the learned Single Judge held that the plaintiffs are prima facie entitled to 1/15th share in the Sunder Nagar property through their deceased mother as they had allegedly earlier relinquished their share in the suit property on the demise of their father. Therefore, the said property was to be sold and the shares were to be distributed in the said ratio.
60. The Division Bench vide its Order dated 06.9.2019, held that the approach taken in Order dated 16.07.2019 for the sale of the property was reasonable. However, the individual shares of the parties determined Order dated 16.07.2019 was not conclusive. It was also directed that the appropriate Application under Section 6(1) of the Partition Act, 1893 may be filed by the parties for appointment of Local Commissioner who may fix the Reserve price before proceeding and accepting the bids for the property in question. Though learned Single Judge had permitted the defendants to locate a buyer, but it was clarified that it would be equally open to the plaintiffs to locate an appropriate buyer and produce him before the Court Commissioner. It was further directed that the money obtained from the sale of the property be deposited in the Court and would be subject to further orders of the learned Single Judge.
61. It is pursuant to the directions of the Division Bench that the Application bearing No. I.A. 13520/2019 under Section 6(1) of the Partition Act, 1893 has been filed by the plaintiffs seeking sale of the suit property.
62. The learned counsel for defendant No. 1 has contested the present application submitting that, since the shares have not been conclusively determined, the sale of the property cannot take place until the individual shares are determined through a Preliminary Decree of Partition.
63. Mr. Kirtiman Singh, learned counsel for the Vijay Kumar (applicant in I.A. 1010 of 2021), has vehemently argued that his father/defendant No. 1 and mother are being looked after by him. They are aged persons and have no intent to sell the property. In addition to the above, the serious objection that the applicant/Vijay Kumar has is that he was in possession of the ground floor and the barsati/second floor and that he cannot be ousted by virtue of the Sale intended to be carried out for the parties to the suit.
64. List for further arguments on I.A 13520/2019 on 21.05.2024.

(NEENA BANSAL KRISHNA)
JUDGE
JANUARY 19, 2024
S.Sharma/Ek

CS(OS) 347/2018 Page 21 of 21