Partition -- Suit for partition - Cannot be maintained unless all the sharers are made parties to proceedings - Same principle is applicable to in the matter of a decree that can be passed based on a compromise of dispute involved in a partition suit...........
Civil Procedure Code, 1908, Order 7, Rule 11 -- Rejection of plaint - Cause of action - Suit for declaration and injunction without seeking relief of partition and possession is maintainable, as plaintiff has approached the Court with a claim that he is co-sharer and co-sharer are presumed to be in possession of entire property - Cause of action is very well shown in the..........
Civil Procedure Code, 1908, Order 41, Rule 23A -- Remand - Partition suit - When first appellate Court had come to a conclusion that matter needs to be remanded, it was not proper on part of first appellate Court to express an opinion on merits - When order of remand is to be passed, first appellate Court is expected to give reasons which support the order of remand -..........
Civil Procedure Code, 1908, Order 1, Rule 10 -- Impleadment of a party - Partition suit - Defendant stated that his father bequeathed the property in favour of `N', as he used to take care of him - Plaintiff had called for so called Will executed in favour of `N' and same is already on record in suit proceedings - `N' should be allowed to put up his defence in support of..........
Specific Relief Act, 1963, Section 34, Proviso -- Suit for declaration without seeking relief of possession - Maintainability - Parties succeeded to property jointly after death of deceased - They are co-sharers - Every co-sharer is deemed to be in possession of every part of joint property - Plaintiff can pray for delivery of actual physical possession in a partition..........
Civil Procedure Code, 1908, Section 151, Order 23, Rule 1, 3 -- Withdrawal of suit - Partition suit - Plaintiff wanted to withdraw the suit on the ground that some more parties and some more properties are to be added - However, plaintiff has liberty to file a petition U.O.1.R.10 CPC seeking amendment of plaint - Instead of availing such remedy, plaintiff seeks to totally..........
Civil Procedure Code, 1908, Section 24 -- Transfer of a case - Suit for injunction and suit for partition filed in two different Courts - Outcome of one suit to impact the other suit - There is possibility of conflicting findings - In the interest of justice one suit transferred to the Court where another suit is pending...........
Civil Procedure Code, 1908, Order 6, Rule 17 -- Amendment of plaint - Partition suit - Basis of proposed amendment is gathering of knowledge from application for amendment of written statement filed by defendant no.2 which was rejected - However, very basis of acquiring knowledge of plaintiffs being violative of O.6.R.17 Proviso CPC, same cannot be accepted - Proposed..........
Specific Relief Act, 1963, Section 38 -- Suit for permanent injunction - Can be filed on basis of mutual division of property in place between parties - It is not necessary that date on which family partition took place is necessarily to be disclosed particularly, when it has come on record that property stands mutually divided in the year 1980...........
Partition suit -- Long standing entries recorded in 7/12 extracts and also instances of sale that had taken place between defendants - Said transactions were never objected by plaintiff - This silence on the part of plaintiff also speaks for itself and it could have been definitely taken as prima facie indication of previous partition - More so, plaintiff admitted that..........
