Valmiki J. Mehta, J. - (1.) This Regular First Appeal under Section 96 CPC is filed by the defendant nos.1 and 2 in the suit/brothers impugning the judgment of the trial court dated 18.4.2017 by which the trial court has passed a final decree with respect to a total of four properties as stated in para 9 of the impugned judgment. This para 9 of the impugned judgment reads as under:- "(9) This being the background and in view of the no objection given by the plaintiff and the defendant no.1 and 2, the final decree is being passed in respect of all the immovable properties left behind by late Hari Chand Kataria i.e property No.B-201, Derawal Nagar, Delhi- 110007 (154 square yards); property No.A-155, Nehru Kutia, Malkaganj, Delhi (30 to 40 square yards); property No. 242, Main Bazar, Subzi Mandi, Delhi and property at Bhagirath Place. I now proceed to decide the possible modes of partition of the said properties as under:"
(2.) Learned counsel for the appellants/defendant nos. 1 and 2 contends that the property situated at 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi is a property in the exclusive ownership of the appellants/defendant nos. 1 and 2 and the trial court by the impugned judgment could not have passed a preliminary and final decree without any trial for this property simply by showing this property as being in the hotchpotch of the properties belonging to the father of the parties i.e it is argued that a partition decree can be passed only with respect to a property which is admitted to be of the father of the parties, and no decree can be passed with respect to a property which is not admitted to be of the father of the parties but is pleaded to be the exclusive and selfowned property of the appellants/defendant nos. 1 and 2. It is further argued that there was no trial and no finding of the property no. 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi being the property of the father and available for partition to his children who were the parties to the suit. It is argued that without deciding disputed questions of fact the property no. 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi being or being not the property of the father, this property could not have been held to be a property of which preliminary and final decree could be passed.
(3.) Learned counsel for the respondents very fairly concedes that in an affidavit filed by the appellants/defendant nos.1 and 2 it was not admitted that the property 242, Main Bazar, Subzi Mandi, Dahiwala Katra, Delhi belonged to the father Late Sh. Hari Chand Kataria and in this affidavit the Subzi Mandi property has been stated to be exclusively owned property of the appellants/defendant nos. 1 and 2. Therefore, in my opinion, this property could not be held to be of the father without evidence being led by the parties as to whether or not this property is belonged to the father or belonged exclusively to the appellants/defendant nos. 1 and 2.;