Suit for partition and suit for possession and delivery
M Satyanarayana
(Querist) 10 September 2014
This query is : Resolved
Sir,
I file partition suit in the year 1997 against my sister who is occupying the property till date. A preliminary decree is passed in the year 2010 still pending for final decree proceedings and possession.
At this stage of the litigation Can I file suit for recovery of possession and delivery and claim for injunction restraining my sister from occupying my share in the property. As my sister’s daughter has filed false claim of ownership over the entire property. How can they file entire claim of ownership of the property.
Please advise if the suit for possession and declaration can be included in the Partition Suit or partition suit can be converted into suit for possession and declaration.
Thank you,
Yours truly
MSN
anand
(Expert) 10 September 2014
we have to check first what all relef you have claimed for yourself in partition suit and then whats there in the order of the preliminary decree of 2010.
yes in suit for partition , possession and declaration can be claimed by way of amendment, if not claimed earlier
M Satyanarayana
(Querist) 10 September 2014
THANK YOU VERY MUCH FOR REPLY SIR.
MSN
Rajendra K Goyal
(Expert) 10 September 2014
All the documents, case file need to be referred, consult local lawyer.
Dr J C Vashista
(Expert) 10 September 2014
If you did not seek the relief of possession and preliminary decree has been passed in the year 2010, the suit cannot be amended at this stage and it is barred (Or. II Rule 2 CPC).
Consult your lawyer, s/he is the only person to guide/advise you properly. Otherwise, contact another advocate to help you, no comments/opinion/advise can be offered in the absence of the plaint, pleadings and orders.
ROHIT SHARMA
(Expert) 10 September 2014
Dear Mr.M Satyanarayana,
1. You may have inadvertently may not have mentioned in your plaint prayer specifically for possession too.
2. Yet, considering that since the suit is for partition then it automatically implies partition along with possession of the share therein as this fact in law is endorsed u/o 20 Rule 18 of C.P.C.
3. Since only a preliminary decree is passed in 2010 and the final disposal of partition and possession is yet to be concluded then in such event as per the provision u/o 6 Rule 17 of C.P.C. the court reserves its discretion to allow amendment of plaint and prayer at any stage of the proceedings provided that the court comes to conclusion that in spite of of due diligence the party could not have raised the matter before the commencement of trial. You will need to make a motion before the court in this regards since such omission of a separate prayer for possession may have evaded your attention and since it has now been noticed by you you can seek amendment of the plaint. Your plea for amendment will survive to meet the ends of justice.
4. Moreover since the final decree would be awarded u/o 20 Rule 18 of C.P.C. which provides and includes a decree for both partition and possession and separate possession of share therein.
5. For the purpose of restraining the other party from occupying your share in the such property you should have filed a separate I.A. initially along with your plaint u/o 39 Rule 1 of c.p.C. You can possibly attempt to file such I.A. irrespective of the anticipation whether the court would receive such application at this stage.
6. In fact the proviso u/o 2 Rule 2 of C.P.C. does provide that no additional claim can be made once the trial commences. But here the claim is not for any money suit nor any other specific relief. Hence this fact in law can be countered on the basis that the suit is for partition which includes imperatively the condition of possession of the share therein.
7. If need be you may opt for private legal consultation over such issue of your query with this lawyer. To get my contact details click my name (expert) shown in the L.H.S. margin of this reply format.
T. Kalaiselvan, Advocate
(Expert) 15 September 2014
Amendment for including the relief of separate possession is okay, why do you have to seek declaration, what is that you are seeking to declare?,since the preliminary decree is already passed confirming you with a share, a need to declare you share is a repeat and futile exercise. As rightly observed by experts, in a partition suit, separate possession of your share is implied even without a specific prayer to this effect. If the final decree application was filed under the provisions of O20Rule 18, you do not have to file an amendment seeking relief of separate possession.
Do not get confused by thinking of more and more issues based on the day to day developments. Consult your lawyer for further advises on the issue.
