SHARVAN KAPUR Vs. ANUP KAPUR

JUDGEMENT

(1.) This appeal is against an order passed by learned Single Judge on 5.8.1998 directing partition of the suit property by metes and bounds in accordance with the shares declared in the preliminary decree dated 12.1.1996.

(2.) Facts in brief are that Dewan Chand Kapur filed a suit for partition of property No. 49/7, Rajpur Road, Delhi against his three sons, namely, Shri Anup Kapur, Shri Aman Kapur, and Shri Naveen Kapur claiming that property is the Joint Hindu Family property having been inherited by him and his three sons from his late father Shri Lajjya Ram Kapur. The property is in joint possession of the parties in which parties have 1/5 th undivided share. After summons had been duly served on the defendants, an application under Order 23, Rule 3, Civil Procedure Code was filed. It was allowed and a preliminary decree was passed on 12.1.1996 declaring that of the parties have l/5th share each in the suit property. Simultaneously, a Local Commissioner was appointed to suggest mode of partition. The Local Commissioner submitted his report dated 15.3.1996 expressing his inability to execute the commission on account of the alleged non-cooperative attitude of Smt. Neelu Kapur wife of Shri Anup Kapur. Accordingly, I.A. 11489/98 was filed by the plaintiff Shri Dewan Chand Kapur for direction that the property be ordered to be partitioned by metes arid bounds as per the shares declared in the preliminary decree. The said application was taken up on 5.8.1998, after notice had been issued to Smt. Neelu Kapur also. On the said application, learned Single Judge passed the impugned order directing partition of the property by metes and bounds in accordance with the shares declared in the preliminary decree. This appeal has been preferred against the said order by Smt. Neelu Kapur with her son and daughter.

(3.) The grievance of the appellants, who admittedly are not parties to the suit for partition is that three applications: (i) I.A. 7431/96 filed by the appellants seeking impleadment in the suit; (ii) I.A. 7432/96 seeking stay of the operation of the partition decree on the ground that it had been obtained collusively; and (iii) I.A. 7433/96 for setting aside the collusive preliminary decree were pending. Without deciding the three applications, learned Single Judge proceeded to direct partition of the property, which had the effect of jeopardising valuable rights of the appellants. In case the property is allowed to be partitioned, it is likely to cause prejudice to the appellants and will thereby have the effect of making the suit (S. No. 1826/ 95) filed by the appellants as infructuous.