- (1.) The second appeal is against a preliminary decree for partition by a brother against another brother in respect of property in Chandigarh. Admittedly the property stands mutated after the death of the father in the name of two sons said to represent each a 50% share. The plaintiff had filed a suit for mandatory injunction for delivering possession and the suit was dismissed. The appeal appears to have been dismissed. In a subsequent suit for partition defence by younger brother who is in appeal is inter alia, that the brother had received jewellery and cash in the year 1980 and went away from the house, got married to a person without informing any other member of the family or inviting them for the occasion. He had no respect for the family members and he had forsaken the right to the property. A right to the immovable property it must be observed cannot be lost otherwise than in the manner contemplated under Section 17 of the Registration Act through instrument in writing duly registered. Such an oral release cannot be valid and the Courts below have correctly rejected the same. The second point urged is that the Chandigarh Administration has not been made a party nor were brothers or the other relatives made parties. If there is a rule in the administration that prohibits partition of property, the manner of how the decree for partition shall be worked is covered through provisions of the Partition Act 1893 in properties which are not partible shall still be amenable for courts' jurisdiction for working out the rights in the manner set forth under Section 2 and 3 of the said Act. The impartability cannot therefore bar a suit for partition. The third point urged is that in suits relating to matters concerning the family, the court shall endeavour to settle the matter and should have followed the procedure to make efforts for settlement. Learned Senior counsel would therefore seek the indulgence of the Court to invoke Order 32-A of the CPC for making such efforts for settlement. The provisions shall be invoked at an appropriate time before the trial takes place and before the tempers between the parties are frayed to one of serious enmity or ill will. A person that plays through the litigation a full fledged contest, cannot be heard to contend that the case must go through the formulation of what Order 32(a) envisages. It is an obvious ploy to defeat the decree by some process which I shall not allow.
(2.) The case of non-joinder of sisters or mother cannot be again brought now in second appeal, for an issue relating to the non-joinder or mis-joinder must have been taken at a preliminary stage and that cannot be used after decrees are passed by the two Courts. It was a suit for partition and every one of the properties in the position of the plaintiff. Nothing prevented the defendant himself to move an application to implead his sisters or mother. In any event, the decree that is passed is binding only between the parties and if any other person has a right in the property, that will be secured at the instance of the persons who stake such a claim in independent actions. It shall not lie in the mouth of the defendant to plead for the persons who are not before the Court. There is also a plea regarding bar of limitation. The parties are brothers and co-owners and there was no case made for ouster and adverse possession.
(3.) There is no substantial question of law involved in the appeal for admission. The second appeal is dismissed.;