HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No.: 21 of 2001. Decided on: 22.5.2008. Manohar Lal Kapoor and others ………Appellants. Versus Nawal Kapoor ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellants: Mr.Bhupender Gupta, Senior Advocate, with Mr.Anand Sharma, Advocate. For the respondent: Mr.K.D. Sood and Mr.Rajneesh K.Lall, Advocates. V.K. Ahuja, J. (Oral): This is a regular second appeal filed by the appellants/defendants against the judgment and decree passed by the learned District Judge, Chamba, dated 29.12.2000, vide which the appeal filed by the appellants was dismissed and the judgment passed by the learned Sub Judge, Dalhousie, dated 19.4.1999, decreeing the suit of the respondent/plaintiff by passing a preliminary decree for partition of the property in suit, as detailed in the plaint, was upheld. Briefly stated the facts of the case are that respondent as plaintiff filed a suit for declaration, partition and injunction before the learned trial Court ___________ 1.Whether reporters of Local papers may be allowed to see the judgment? No. - 2 - alleging that the plaintiff and defendants No.1 to 5 are joint owners of ‘Chandan Estate’ by way of succession. The plaintiff alleged that he was owner in possession of half share in ‘Chandan Estate’ while defendants are owners of the remaining half share. It was alleged that there are two built houses besides some land in this ‘Chandan Estate’ and the plaintiff is in physically possession of the houses and the property in dispute. The plaintiff alleged that he has half share of the property and the defendants are creating obstructions in the use and enjoyment of the property and he requested the defendants for partition of the property but the partition had not been effected, hence the suit filed for partition claiming 1/2 share in the suit property. The suit was contested by the defendants, who pleaded that the plaintiff and defendant No.5 have nothing to do with the suit property and on the detailed pleadings made by the defendants, the suit was tried by the learned trial Court, which held that the plaintiff is owner to the extent of 1/2 share. Preliminary decree for partition of 1/2 share was passed in favour of the plaintiff. On appeal by the defendants, the findings recorded by the learned trial Court decreeing the suit for partition were affirmed. A perusal of the findings recorded by the learned trial Court shows that under Issue No.4, it was held that the suit was not bad for non-joinder of necessary parties. A perusal of the reasons given by the learned trial Court under Issue No.4 shows that a plea was taken by the defendants that the sisters of the plaintiff, namely, Ranjna, Rami and Neeta were also the necessary parties because they were daughters of Gaur Kishore, the father of the plaintiff. In the - 3 - replication, the plaintiff had allegedly pleaded that the daughters had relinquished their respective shares in the property and had also given affidavits to that extent and thus, it was contended that they were not necessary parties. The learned trial Court observed that the plaintiff had produced PW-5 Smt.Neeta, one of the sisters of the plaintiff who made statement that the sisters have not taken any share in the property and gave the same to the present plaintiff. Accordingly, the learned trial Court decided this issue against the defendants, which findings were affirmed on appeal by the learned First Appellate Court. The plaintiff has not specifically alleged how he got the property; as to whether by way of succession or on the basis of the Will and he simply alleged that he was owner to the extent of 1/2 share, while the other 1/2 share was owned by the defendants. It is clear from the perusal of the record of the case that the plaintiff has succeeded to the property from his father Gaur Kishore who was earlier the owner of the suit property alongwith other two persons, namely, Arun Kumar and Manohar Lal. The said Gaur Kishore has been succeeded by the plaintiff as son and three daughters, namely, Ranjna, Rami and Neeta, but the plaintiff simply filed the suit without alleging in the plaint that he has succeeded to the property specifically by way of Will or he succeeded to the property alongwith his sisters, but they all have relinquished their shares in his favour. Some allegations were made in this regard in the replication referred to above but the mere fact that one of the sisters has been examined as PW-5 (Smt.Neeta) is not sufficient to hold that the other two sisters, namely, Ranjna, and Rami have also relinquished their shares in favour of the plaintiff. The plaintiff has alleged that some affidavits were given by the sisters but those - 4 - affidavits never saw the light of the day. No presumption can be drawn that these two sisters have also relinquished their shares in favour of the plaintiff. The plaintiff has no exclusive right to the suit property and therefore, until and unless his three other sisters including PW-5 Neeta were made party to the suit and given an opportunity to accept the claim of the plaintiff, no decree in favour of the plaintiff could have been passed in regard to the 1/2 share which he allegedly inherited from his father in the absence of his sisters having given an opportunity to defend the case. The mere fact that sufficient time has elapsed is not sufficient to hold that no opportunity can be given to the other sisters of the plaintiff to contest the case and file written statement, if they deem it necessary, but no relief in favour of the plaintiff can be granted in the absence of the sisters having been impleaded as party and given an opportunity to contest the claim of the plaintiff. In view of the above discussion, I accordingly hold that the findings of both the courts below under Issue No.4 are not sustainable in the eye of law and three sisters of the plaintiff named above are necessary parties to the suit and an opportunity shall be given to the plaintiff to implead them as party and in case they admit the claim of the plaintiff, it may not be necessary for the learned trial Court to record the evidence afresh. In case the said sisters contest the claim of the plaintiff, the trial Court shall proceed with the trial of the case in a de novo manner. In view of the above discussion, the appeal filed by the appellants is allowed and the learned trial Court shall give an opportunity to the plaintiff to implead his sisters as party to the suit and thereafter shall proceed with the trial - 5 - of the case in view of the observations made above. The learned trial Court shall decide the suit unaffected by any observations made by the learned First Appellate Court. The findings of the learned trial Court are being set aside in full and in case the suit is not contested by the newly added defendants, the learned trial Court shall hear the parties and dispose of the case. In case they contest the suit, then the suit has to proceed de novo. The parties are directed to appear before the learned trial Court on 7th July, 2008. The learned trial Court shall try to dispose of the case as early as possible being an old case. Copy of this judgment be sent to the learned trial Court alongwith the record of this case. May 22, 2008. (V.K. Ahuja), (TILAK) Judge.