(1.) This first appeal under Sec. 96 of the Code of Civil Procedure, 1908 impugns the judgment and decree dated 9th March, 2010 of the Court of Sh. Pitamber Dutt, Additional District Judge (ADJ), Delhi in Suit No. 394/2009 filed by the deceased respondent no.1 / plaintiff against the appellant/defendant no.1 and the respondents no.2&3/defendants no. 2 and 3 namely Sh. Tony Mehta & Ms. Meenakshi Periera for partition of immovable property No. 7A/70, WEA, Karol Bagh, New Delhi ad -measuring 173.25 sq. yds. and for declaration that the deceased respondent no.1 / plaintiff was the owner of ground and barsati / second floor of the said property and that the appellant and the respondents no.2 and 3 were entitled to the first floor of the said property.
(2.) Notice of the appeal was issued and the Trial Court record requisitioned. The appeal, on 1st December, 2011 was admitted for hearing and ordered to be listed in due course. Vide order dated 8th April, 2013 on the application of the respondent no.1 / plaintiff that inspite of there being no stay of execution, execution was held up owing to the trial court record having been requisitioned in this Court, the trial court record was sent back. The appeal came up for hearing on 14th July, 2015 when the appellant appeared in person and stated that she had lost faith in her advocate and the appeal be decided. Accordingly the counsel for the respondent no.1 / plaintiff was heard, trial court record re -requisitioned and the judgment reserved giving opportunity to the appellant or her counsel to file written arguments within four weeks. No written arguments have been filed on behalf of the appellant. The trial court record has been received and perused.
(3.) The respondent no.1 / plaintiff in or about October, 1998 filed the suit from which this appeal arises pleading i) that Late Sh. Bhag Mal Mehta who was the father of the respondent no.1 / plaintiff, father -in -law of the appellant and grandfather of the respondents no.2&3 died on 8th March, 1990 at 7A/70, WEA, Karol Bagh, New Delhi; ii) the said Sh. Bhag Mal Mehta during his lifetime executed his last Will on 21st July, 1989 and which Will was registered with the Sub -Registrar, New Delhi as Document No. 3495 in Additional Book No.III, Volume No. 514 at Pages 75 -80 dated 21st July, 1989; iii) that in the aforesaid Will Sh. Bhag Mal Mehta mentioned property No. 7A/70, WEA, Karol Bagh, New Delhi, measuring 173.25 sq. yds. as his self acquired property and the suit was being filed seeking partition of the said property by metes and bounds as per the said Will; iv) that the respondent no.1 / plaintiff had already obtained Succession Certificate in respect of movable assets of Late Sh. Bhag Mal Mehta; v) that after the death of Sh. Bhag Mal Mehta, the respondent no.1 / plaintiff requested the appellant and the respondents no.2&3 / defendants to partition the property by metes and bounds as per the Will but they were refusing to do so; vi) that as per the said Will, the respondent no.1 / plaintiff had become the absolute owner of the entire ground floor and the barsati floor and the appellant and the respondents no.2 &3 / defendants were entitled to first floor only of the property; vii) that the respondent no.1 / plaintiff was in possession of the entire ground floor and the appellant and the respondents no.2&3/defendants were in possession of first floor of the property; the barsati floor was jointly occupied by the respondent no.1 / plaintiff and the appellant and the respondents no.2&3 / defendants "though the defendants allegedly claim their possession over the same"; viii) accordingly, the relief of partition of the property by metes and bounds as per their respective shares by virtue of the Will was claimed.