VIJAY GUPTA Vs. MOHD ARIFEEN

JUDGEMENT

(1.) AT the outset, counsel for the appellant states that though the appeal challenges various orders and also the final judgment/final decree dated 30.4.2011, he confines the present appeal as a challenge only to the final judgment dated 30.4.2011 which draws out the final decree in the partition suit because one appeal otherwise would not have been maintainable.

(2.) THE facts of the case are that a suit for partition was filed with respect to the property bearing no. 3741 to 3745, Sarak Churiwalan, Chawri Bazar, Delhi. In this suit, a preliminary decree of partition was passed on 14.12.2009. THE preliminary decree not only decided shares of the parties but decided the issue as to whether defendant no.1, one of the co-owners, who was running a guest house namely ,,Seema Lodge was also, in fact, a tenant of the property. It was held in this preliminary decree that the defendant no.1 thus in fact was also a tenant in the property. Admittedly, this preliminary decree became final and was not challenged by any of the parties. Once the preliminary decree becomes final and is not challenged by any of the parties, the conclusions/findings therein operate as res judicata between the parties vide Hope Plantations Vs. Taluk Land Board, 1999 (5) SCC 590.

(3.) SO far as the first argument of the appellant/plaintiff is concerned that the impugned judgment has wrongly directed auction of the property and the Court ought to have directed inter se bidding for purchase of the property and that the plaintiff had an entitlement to purchase the property from other co-owners, is an argument which goes against the admission of the appellant/plaintiff recorded in the order dated 9.11.2010 of the Trial Court and which has been reproduced above. This order of the Trial Court dated 9.11.2010, and which is an order which is preceded by earlier orders wherein efforts were made for inter se purchase by the co-owners, records that the appellant/plaintiff agreed that the property should be auctioned. The earlier part of the order dated 9.11.2010 records the lack of agreement as to the price at which one co- owner will purchase from the other co-owner. A party is not allowed to challenge the factual statement as recorded in the order by stating that the order does not correctly record the fact. Right from the decision in the case of the State of Maharashtra vs. Ramdas Shrinivas Nayak & Anr. AIR 1982 (2) SCC 483, it has been a consistent view of the Supreme Court that it is not open to a party to pray before an Appellate Court that the Trial Court in an order has wrongly mentioned a factual aspect. The only way in which a factual aspect which is recorded in the order that something has happened or not happened before the Court below, can be corrected, is by approaching the same Court which records the factual aspect and that too immediately after the order has been passed, when the matter is fresh in the mind of the judge who has passed the order. If that is not done the matter must necessarily rest there. Therefore, I reject the argument raised on behalf of the appellant that the Trial Court has wrongly directed sale of the property and should have, in fact, directed inter se purchase by the different shareholders. I also reject the weak attempt on behalf of the counsel for the appellant to state that the order dated 9.11.2010 wrongly records the stand of the appellant/plaintiff that when it was said that the property should be auctioned. On this aspect I may however finally note that if the appellant is entitled to participate in the auction as per law, then he can participate on such terms as the trial court finds appropriate.