The undersigned, after the hearing of this Second Appeal on 13th July, 2018 had observed that the appeal was entitled to be allowed, being of the view that once the land had been allotted to the father of the parties as far back as in the year 1968 and the father of the parties had raised construction of a permanent nature thereon and continued in occupation thereof till his demise in 1975 and that further since after his demise his heirs had been allowed to continue in occupation for 30 years, at least till the institution of the suit and even thereafter, without any disturbance from the grantor i.e. the DDA, the allotment even if any by way of a license, was of a right and the license was not of such a nature which was determinable by demise of the licensee. Even a license with respect to immovable property, once allowed to continue after the demise of the licensee, is valuable property even if not immovable property and is partible among the legal heirs of the licensee. In this context, I have in Shyam Behari Vs. Ram Kishan (MANU/DE/3688/2013) and Surjit Singh Vs. Ekta Gulati (MANU/DE/3916/2012, appeal where against was dismissed by the Supreme Court in its order dated 3rd March, 2016 in Civil Appeal No. 7332/2013 titled "Inderjit Kaur Vs. Ekta Gulati") held that the law of inheritance/succession covers all assets of the deceased including possessory rights of the deceased to any movable and immovable property. Parity was also drawn with tenancy/leasehold rights, which also are determinable by nature and with respect whereto also it is settled law [Iresh Duggal Vs. Virender Kumar Seth MANU/DE/3068/2014 : 2015 (221) DLT 216, Dalip Kumar Vs. Om Prakash MANU/DE/2534/2015 Ram Lal Sachdev Vs. Sneh Sinha MANU/DE/0222/2000, UOI Vs. Mohinder Pratap Soni MANU/DE/1035/2016, Madan Lal Vs. Kuldeep Kumar MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal MANU/DE/1348/2012 : 190 (2012) DLT 164, Surendra Pal Singh Vs. Ravindra Pal Singh MANU/DE/1128/2014, Satish Kumar Chojar Vs. Subhasini Chopra MANU/DE/1460/2014] that the said rights are partible. It was also felt that the Trial Court as well as the First Appellate Court had fallen in error in dismissing the claim of the appellant/plaintiff for partition for the reason which was not pleaded by the respondents/defendants in the written statement and on which no issue had been framed.
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IN THE HIGH COURT OF DELHI
RSA No. 394/2015
Decided On: 29.04.2020
Hon'ble Judges/Coram:
Rajiv Sahai Endlaw, J.
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