TARA CHAND GAUR Vs. SATISH CHAND SHARMA

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the Judgment of the trial court dated 09.09.2016 by which the trial court has dismissed the suit for partition by deciding three preliminary issues against the appellant/plaintiff. The three preliminary issues pertained to the bar of limitation to filing of the suit, proper court fee not having been paid and the necessary parties, being the sisters of the appellant/plaintiff, not joined as parties.

(2.) The facts of the case are that the subject suit for partition was filed for the property no. J-111A, Main Road 4th Pusta, Kartar Nagar, Delhi-110053 which was said to have been owned by the mother of the appellant/plaintiff, Smt. Angoori Devi. Smt. Angoori Devi is also the mother of the two defendants in the suit. It was pleaded in the plaint that Smt. Angoori Devi expired intestate and she left behind three sons and four daughters. The suit was only against two sons because the appellant/plaintiff pleaded that the sisters, i.e. daughters of Smt. Angoori Devi, had given up their shares in favour of the three brothers being the three parties to the present suit. Accordingly, the appellant/plaintiff claimed the relief of partition, injunction etc.

(3.) It is trite that when a preliminary issue is decided, the same is decided by taking the contents of the plaint as correct. At the stage of decision of the preliminary issue, parties have not led their evidence and the suit is not decided at the stage of final arguments, after all the parties have led their evidence on disputed questions of fact. It is therefore to be seen that whether the suit could have been dismissed by taking three issues of limitation, deficiency of court-fee and non-joinder of necessary parties as preliminary issues.