Dinesh Dayal v. Yogeshwar Dayal (Since Deceased) Thr Lrs & Ors

order.

¶14The petition and all pending applications are disposed of in the above terms.

PRATHIBA M. SINGH JUDGE

DECEMBER 11, 2019 MR

* IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 11th December, 2019 + CM (M) 944/2018 and CM APPL. 33101/2018 DINESH DAYAL ..... Petitioner Through: Mr. Vivek B. Saharya, Advocate (M: 9811156831). versus YOGESHWAR DAYAL (SINCE DECEASED) THR LRS & ORS ..... Respondents Through: Mr. Arun Kumar Verma, Sr. Advocate with Mr. Akshay Bhandari and Mr. Digvijay Singh, Advocates for R-1 and 2 (M: 9911225571). CORAM: JUSTICE PRATHIBA M. SINGH Prathiba M. Singh, J. (Oral) 1. The present petition challenges the impugned order dated 18th July, 2018, by which the Petitioner's application under Section 151 CPC, for transfer of the suit to the High Court has been dismissed by the ld. Trial Court. 2. The brief background is that a suit for partition and mesne profits, titled Shri Yogeshwar Dayal and Anr. v. Mr. Mahinder Dayal and Ors., was filed by Respondent Nos. 1&2/Plaintiffs (hereinafter, "Plaintiffs") in 2002, seeking partition of various properties forming part of the estate of Late Shri. Pannu Lal. The prayer in the suit reads as under: - "In the aforesaid facts and circumstances of the case, it is most humbly prayed that this Hon'ble Court may be pleased to: i) Pass, a decree dissolving the HUF known as 'Shri Rameshwar Dayal and Brothers' and decree the partition of all the suit properties including those described in paras 3 and 4 above by metes bounds and direct that the Plaintiffs be put into separate possession of their 1/4 share of the suit properties ii) Direct the Defendants to pay to the Plaintiffs a minimum sum of Rs 50,000/- per month with effect from the date of the suit and fix payment by way of mesne profits and decree that the Defendants are jointly and severally liable to compensate the Plaintiffs as aforesaid. iii) Award costs of the suit to the Plaintiffs and against the Defendants. iv) Award damages against Defendant No.1 for damages and loss caused by him to the HUF properties acting as Karta and on account of his acts of omission and commission. V) Pass any further order and direction as this Hon'ble Court may deem fit and appropriate." 3. Written statements were filed by various Defendants, including the Petitioner herein. After considering the written statements and the stand of the various parties, a preliminary decree was passed vide order dated 14th March, 2017. The operative portion of the preliminary decree reads as under: - "Present suit has been filed in the year 2001 therefore Hindu Succession (Amendment) Act 2005 would not apply and Hindu Secession Act 1956 as it stood before 2005 would apply. Therefore, the date of opening of partition is the date when the suit was instituted and accordingly admitted HUF properties shall be divided equally among all male coparcenors as were alive on the date of opening of partition as per Mitakshra's rules of distribution of property. Since four branches were existing at the time of institution of the suit, therefore plaintiff's branch is entitled to 1/4th share in the admitted properties so are the branches of Mahinder Dayal Rameshwar Dayal and Rameshwar Dayal. The admitted HUF properties are:- a. Properties No. 78, 79, 80 and 81, Chawri Bazar, Delhi b. Property No. 1869, Haveli Jugal Kishor Ghantewala Gali, Chandni Chowk, Delhi c. Property No. 96, Babar Road, New Delhi. Accordingly preliminary decree of partition is hereby passed holding that branches of Yogeshwar Dayal, Mahinder Dayal, Maheshwar and Rameshwar Dayal each are entitled to 1/4th share in the admitted HUF properties i.e. (i) properties No. 78, 79, 80 and 81, Chawri Bazar, Delhi, (ii) property No. 1869, Haveli Jugal Kishor Ghantewala Gali, Chandini Chowk Delhi and (iii) property No. 96, Babar Road New Delhi." 4. The above preliminary decree has not been challenged by any of the parties. The suit was initially filed on the Original side of this Court but was transferred to the ld. District Court, owing to an increase in the pecuniary jurisdiction. After transfer took place, the preliminary decree