AMRITPAL SINGH GAMBHIR Vs. SUKHDEV SINGH GAMBHIR

JUDGEMENT

(1.) Dr. Sukhdev Singh Gambhir (hereinafter referred to as the respondent) had filed a suit for partition of the property bearing No. 13A/6A, Western Ext. Area, Karol Bagh, New Delhi against Shri Amrit Pal Singh Gambhir appellant herein and Sh. Inderjit Singh Gambhir, performa respondent in this appeal. The parties to the suit are brothers. Originally the suit was filed in the year 1994 in the court of the District Judge, Delhi. During the pendency of the suit, the court ordered that the value of the suit was more than Rs. nine lakhs, as such, the suit was beyond the pecuniary jurisdiction of the court. Vide order dated 31.7.1997, the plaint was returned and it was presented on the original side of the High court on 27.2.1998 and was registered as Suit No. 371/98. However, in the meanwhile, even the pecuniary jurisdiction of the High Court was raised and as the High Court also had no pecuniary jurisdiction to entertain and decide the suit, the suit was again transferred to the court of the District Judge for its disposal in accordance with law. According to the respondents, they were entitled to 1/3rd share each and the property was liable to be partitioned by metes and bounds. In the trial court, the plaintiff took up the plea that there was no proper written statement before the court. Furthermore, according to the appellant, the partition had already taken place and the parties were in possession of their respective shares. An application under Order 7 Rule 10 CPC was also filed by the appellant stating that there was no proper plaint before the court and the original plaint which was returned ought to have been filed and for these reasons the suit should be dismissed. The appellant had also taken up the plea before the trial court that no preliminary decree can be passed because there was no proper plaint before the court.

(2.) It may be noticed that on 27.9.2003, the suit was transferred to the court of District Judge as a result of rise in pecuniary jurisdiction of the High Court. The parties were also attempting to settle their disputes and for that purpose various dates were granted. On 4.12.2003, the parties had made statements before the court about the share of each one of them and the statements of the said parties made before the court and the order passed on 4.12.2003 reads as under:-

(3.) The case was fixed for arguments and whereafter by judgment and decree dated 29.10.2005, the trial court passed a preliminary decree as follows:-