KRISHAN SHARMA Vs. RAJ RANI BHARDWAJ

JUDGEMENT

(1.) This is a regular second appeal under Section 100 CPC against the judgment/decree dated 12.10.2009 passed by the learned Additional District Judge in R.C.A. No.19/2003 dismissing the first appeal of the appellant.

(2.) Briefly stated the facts of the case are that the plaintiffs/respondent Nos.1 and 2 herein had filed a suit bearing No.399/2001 for declaration, injunction, partition and possession in respect of House No.118, Gali No.6, Kishan Nagar, Safdarjung Enclave, New Delhi, which was decided by the Civil Judge in favour of the plaintiffs/respondent Nos.1 and 2 on 11.3.2003.

(3.) The case setup in the plaint was that the aforesaid property belonged to Gopal Devi and her husband, Baboo Ram Sharma (parents of the parties). On account of death of Gopal Devi and Baboo Ram, it is stated that the four sons and two daughters, who were left behind by them, were legally entitled to 1/6th share each in the said property. The respondent Nos.1 and 2 (herein) are the two daughters while as the present appellant Krishan Sharma is the grandson of Gopal Devi. So far as the other sons and daughters are concerned, they are respondents in the present appeal and are represented by their legal heirs. The appellant, who was the defendant No.7 in the suit, filed his written statement admitting that the suit property belonged to Gopal Devi and that she was survived by four sons and two daughters; however, he resisted the prayer of the respondent Nos.1 and 2 for partition of the suit property on the ground that the suit property was the only dwelling unit available to the appellant and the other respondents and, therefore, by virtue of Section 23 of the Hindu Succession Act, the respondent Nos.1 and 2, being the daughters, could not claim partition and would only have a right of residence. The learned trial court framed following four issues :-