Delhi High Court
Ram Lal Sachdev vs Smt. Sneh Sinha on 16 November, 1999
Equivalent citations: 2000IAD(DELHI)217, AIR2000DELHI92, 83(2000)DLT141, AIR 2000 DELHI 92, (2000) 83 DLT 141
Author: Vikramajit Sen
Bench: Vikramajit Sen
ORDER Vikramajit Sen, J.
1. This suit has been filed for the partition of moveable property bearing Municipal bearing No. D-66, Naraina Residential Scheme, New Delhi. The land, admeasuring 500 sq. yards, has been granted to the Plaintiff and the Defendant under a Perpetual Lease Deed dated 17.4.1970. It is not disputed that the parties have contributed equally towards the cost of the Lease Deed and that they are jointly paying the ground rent to the Lessor, President of India, acting through the Land and Housing Department of the Delhi Administration.
2. Building Plans were sanctioned in the name of both parties and one building comprising of two residential units have been constructed on the land. The Plaintiff constructed a single unit on the ground floor on one half of the plot of land while the Defendant constructed a ground and first floor unit contiguous thereto. The parties have been in occupation of their respective units from the very inception. The plaint discloses that the parties have obtained separate electricity and water connection in respect of the portions in their possession; billing is separately made and paid. It has been further averred in the plaint that a Partition Deed was drawn up by the Plaintiff but was refused to be signed by the Defendant. If the property is partitioned in consonance with the portions constructed by and presently occupied by the parties, it would bring about an equal division of the plot as well as the constructed portion taken vertically.
3. These averments have not been denied by the Defendant in the Written Statement. However, the passing of a decree of a partition has been objected to on the ground that the property was purchased by the parties knowing fully well that the plot cannot be deviated in any manner or sub-divided and that the construction was sanctioned as a single unit. The drainage system is stated to be a single unit. The Occupancy Certificate has not been issued till date. It has been further pleaded that if a dispute has arisen between the parties, the arbitration clause contained in the Lease Deed should be invoked. No doubt other objections have been raised, but the gist of the disputes between the parties has been crystalised by the Defendant itself in the following words contained in para 7 of the application filed by the Defendant under Section 3 of the Partition Act. "The applicant submits that there is no dispute between the parties as to the share of each one of them has in the property in dispute. The only hitch being that this property cannot be divided into two parts in view of the provision of the Lease Deed. As such, a final decree may be passed directing the sale of the shares of the Plaintiff unto the Defendant at the price as valued by the Plaintiff himself or on such other reasonable and appropriate price that this Hon'ble Court may determine."
4. The following issues were framed :
(1) Whether the property cannot be partitioned for any of the reasons mentioned in the written statement?. OPD (2) Relief(s)?. OPP.
Argument were addressed by Mr. A.S. Chandiok, learned counsel appearing on behalf of the Defendant. Mr.Pardeep Nandrajog, learned counsel for the Plaintiff, pre-emting the arguments of the Defendant, has relied on three decisions of this Court in Inderjit Singh Vs. Tarlochan Singh 1991 Rajdhani Law Reporter 239; Chiranjilal & Anr. Vs. Bhagwan Dass & Ors., 1991(3) Delhi Lawyer 350 and Shri Mohinder Singh Vs. Shri Kartar Lal, 1997 III AD(Delhi) 626.
5. In Inderjit Singh's case (supra) Mahinder Narain,J. permitted an application under Order 23 Rule 3 even in the face of an objection taken on behalf of Delhi Development Authority that the parties, although they were dividing between themselves only the constructed portion, the plot in question was there by in effect, sub-divided.
6. In Chiranjilal's case (supra), P.K. Bahri, J. decided the issue whether the property in suit should be partitioned by metes and bounds in the following words:
"A contention was raised that as there exists a joint lease in respect of the plot in question from the Government and the plot cannot be divided in view of the terms of the lease deed, thus, the property in question cannot be partitioned by metes and bounds. Similar question arose for decision in Inderjit Singh Vs. Tarlochan Singh 1991 Rajdhani Law Reporter 239 and it was held that the super structure built on a plot can be partitioned by metes and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the lessor is needed for effecting the partition of the building by metes and bounds. I respectively agree with the ratio expressed in this judgment and hold that no permission is liable to be obtained from the Delhi Development Authority for partitioning the building in question according to the shares of the parties. Now the question whether physically the building could be partitioned by metes and bounds according to shares of the parties mentioned above, could be decided only by the Local Commissioner who is to be appointed for suggesting mode of partition."
7. In Mohinder Singh's case (supra), Dr. M.K. Sharma, J rejected a similar objection in the following words:-
"The next submission of the learned counsel for the plaintiffs is that the terms of the lease specifically prohibits division of property and as such the property could not be divided by metes and bounds. In this connection, the counsel drew my attention to the provisions of Clause 4(d) of the Lease Deed wherein, it has been stipulated that there could be no sub division of the land. However, it is to be noted that the suit property consists of not only land but also the super structure standing thereon. Accordingly, even if it is held that the land beneath the superstructure may not be divisible , there is no bar under any law to make any division with regard to the super structure standing on the land. In this connection, reference may also be made to the decision of this court in Chiranjilal & Anr.Vs. Bhagwan Dass & Ors. reported in 1991(3), Delhi Lawyers 350, wherein it has been held that super-structure standing on a land could be divided. Therefore, this objection also has not merit and is accordingly rejected."
The further submission is that the proposed division will necessitate construction of dividing wall which will not be permissible without sanction from the L&DO and Municipal Corporation of Delhi as per clauses 4 and 5 of the lease agreement and if such a dividing wall is allowed to be erected, the same would damage the roof of the property substantially entailing substantial repairs. In this connection, reference may be made to bye-laws 6.4.1(i) of the Municipal Bye-laws which states that partition walls could be erected for dividing rooms and for that purpose, no permission from the Municipal Corporation of Delhi is necessary. In the light of the provisions of bye-laws 6.4.1(i), this objection has no merit and accordingly, rejected. The allegation that the dividing wall would damage the roof of the property is also without any merit as instead of damaging the roof, it would lend an extra support to the roof.
8. Mr. A.S. Chandiok, learned counsel for the Defendant submits that these decisions are peroincurium as they do not take into consideration the provisions of the Government Grants Act and the Lease Deed between the parties which his statutory force and must therefore be maticulously followed by both sides. In particular he has strenously emphasised that Clause (2) (3) of the Lease Deed contemplates "the residential building" and therefore, if the property is partitioned, this will be contrary to the terms of the lease. He has further relied on Appendix-J to the Delhi Building Bye-laws 1893 which stipulates that in all plots not existing 500 sq. mts. there shall be only one dwelling unit on each floor. It is his contention that, in as much as the plot in question is 500 sq. yd., a partition of the property on the lines prayed for by the Plaintiff would be violative of these bye laws. He has reiterated the contents of the Written Statement that only a single unit had infact been constructed, and that the two so called independent units were not raised on separate foundation. The water and drainage/severage pipes have also been laid treating the construction as a single unit and that there is a common roof. He has vehemently argued that what is prayed for is the division into two equal half of not only the super structure but also the land on which it has been constructed. Mr. Chandiok, learned counsel for the Defendant has further submitted that discretion is vested in the Court in terms of Section 2 of the Partition Act 1983. It is his contention that the word "might" has been employed in this section to effectuate this discretion.
9. I have given my thankful consideration to these submissions and have arrived at the conclusion that the points raised on behalf of the Defendant are not resnova. Although the decision in the case of Chiranjilal Vs. Bhagwan Dass (supra) and Mohinder Singh Vs. Kartar Singh (supra) do not in terms refer to the Lease Deed this has infact been kept in perspective. I am also of the opinion that although the applicability of a Appendix J of the bye-laws had not been raised in these precedents their ratio remains uneffected. This is for the reasons that it is only the super-structure which is being partitioned between the parties. Even though a notional division of the plot may occur as a consequence of the passing of a decree for partition, this would not tantamount to a violation of the covenants of the Lease Deed. As far as the plot is concerned, it would continue in the joint name of the parties. Even if eventually, a wall is constructed dividing the plot, this division would be as between the parties and would not be binding in any manner on the Lessor. Under Section 132 of the MCD Act, the parties can apply for assessment of their respective portion separately and therefore a division as prayed for in the plaint is not an event unforeseen or unrecognized by law. It is also not in dispute that the construction existing on the site is principally in conformity with the sanctioned plans. That they are minor deviation in the construction would not alter these equitable considerations. I am also unable to appreciate the submission that the operations of the Government Grants Act would operate as an embargo in granting the relief prayed for.
10. A perusal of the prayers contained in the plaint in fact substantiates the Plaintiff's contention that it is the property No.D-66, Naraina, New Delhi, as shown in Annexure A in contra distinction to the plot, that is to be partitioned.
11. Ordinarily a preliminary decree would first be passed declaring that the parties here to have a 50 per cent interest in the land and exclusive ownership of the constructed portions in their respective possession. In the normal course, the Local Commissioner would be appointed for proposing a division of the suit property by metes and bounds. I however, feel compelled to pass a final decree in the peculiar circumstances of the present case, for the reasons that there is no dispute in respect of the actual physical division of the super-structure. If a notional line is drawn extending from the wall dividing the orange and blue portion shown in Annexure 'B', there would be an automatic division of the property in equal shares. In conclusion, therefore, Issue No.1 is decided against the Defendant. The Plaintiff is entitled to the relief of the partition of property bearing No.D-66, Naraina, New Delhi by allotting to him the construction shown in blue in Annexure A and B. The parties will be free to carry out further construction on their respective portion in accordance with sanctioned plans. The Plaintiff shall be entitled to costs.
12. Decree sheet be drawn up accordingly.
13. The suit as well as I.A. 6684/98 are disposed of.