9911796707
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Issues Involved:
1. Application under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC filed by the plaintiff. 2. Application under Order 7 Rule 11 CPC filed by the defendant. Issue-wise Detailed Analysis: 1. Application under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC filed by the plaintiff: The plaintiff and the defendant are real brothers and co-owners of the suit property, each owning a 50% share. The property, a plot with a residential house, was jointly sub-leased to them. The plaintiff contended that their late mother supervised the construction and that he, along with their mother, funded the construction, while the defendant, serving in the Army, did not contribute financially. Post-construction, the property was rented out, and the rent was shared equally between them. The plaintiff claimed that after their mother's death, the defendant managed the property in a fiduciary capacity but later began residing in the suit premises. The plaintiff, residing in the USA, visited India occasionally and used the premises during these visits. Despite multiple requests for partition by metes and bounds, the defendant evaded the issue, leading the plaintiff to send a legal notice and eventually file the current suit for partition. The defendant admitted co-ownership in a previous suit (CS[OS] No. 402/2006) and in various pleadings, which the plaintiff used to support his application for a decree of partition based on these admissions. The court noted these admissions and found them clear and unequivocal, justifying a decree under Order 12 Rule 6 CPC. The court emphasized that the purpose of Rule 6 of Order 12 CPC is to enable speedy justice based on admissions, whether in pleadings or otherwise. The admissions need not be explicit; constructive admissions are sufficient. The court granted the plaintiff's application, passing a preliminary decree for partition, confirming that both parties are co-owners with equal shares, and appointed a local commissioner to suggest the mode of partition by metes and bounds. 2. Application under Order 7 Rule 11 CPC filed by the defendant: The defendant argued that the plaintiff, being out of possession for over 40 years, should correct the valuation for the relief of partition and supply the requisite court fee stamp papers. The defendant claimed that the plaintiff had not been in actual possession or control of the suit property, indicating a complete ouster. The plaintiff countered by providing instances of constructive possession, such as opening a joint bank account, giving power of attorney to the defendant, and contributing to legal fees and property maintenance. The plaintiff also referenced a memorandum of understanding confirming joint ownership. The court referred to the principle that in the case of co-owners, the possession of one is legally the possession of all unless ouster or exclusion is proven. The court found no clear evidence of the plaintiff's exclusion or ouster from the property. Consequently, the court dismissed the defendant's application under Order 7 Rule 11 CPC, holding that the plaintiff's joint possession was legally presumed. Conclusion: The court allowed the plaintiff's application under Order 12 Rule 6 CPC, passing a preliminary decree for partition and appointing a local commissioner to suggest the mode of partition. The defendant's application under Order 7 Rule 11 CPC was dismissed, as the court found no merit in the claim of the plaintiff's exclusion from possession. The case was listed for further proceedings to await the local commissioner's report.
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