Delhi District Court
Cs No.58759/16 vs Sh. Anil Sharma on 1 February, 2020
IN THE COURT OF MS. RAVINDER BEDI:
ADDITIONAL DISTRICT JUDGE4, PATIALA HOUSE COURTS,
NEW DELHI
CS no.58759/16
Jeevan Das
s/o Late Sh. Janki Das
r/o Sh. Hanuman Mandir
Baba Kharag Singh Marg
Connaught Place, New Delhi
.........Plaintiff
VS
1.Sh. Anil Sharma s/o Late Sh. Hari Shankar r/o Sh. Hanuman Mandir Baba Kharag Singh Marg Connaught Place, New Delhi
2. Smt. Vidya Devi w/o Late Sh. Hari Shankar r/o Sh. Hanuman Mandir Baba Kharag Singh Marg Connaught Place, New Delhi ..........Defendants Date of Institution of the suit : 11.11.1997 Date of Preliminary Decree for Partition : 20.12.2007 Transfer From Delhi High Court : 04.04.2016 Date of final arguments : 13.01.2020 Date of Judgment : 01.02.2020 Plaintiff represented by Sh. Jasmeet Singh, ld. Counsel. Defendants are represented by Sh. Suresh Singh, ld. Counsel.
CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 1 of 10 FINAL DECREE OF PARTITION
1. By Order dated 20.12.2007, Hon'ble High Court of Delhi had passed a Preliminary Decree in a Suit for Partition and on the basis of findings in issue no.1, 2, 4 and 9 had directed that the residential complex was liable to be partitioned. A preliminary decree was passed by declaring that both Plaintiff and defendant no.1 had acquired 50% right each qua the construction effected by Late Sh. Janki Das including roof rights thereon i.e. Plaintiff was declared to be 50% owner thereof and defendants to be 50% owner of the same. Pursuant to the preliminary decree, the residential units were to be partitioned between parties.
2. It is pertinent to state that Order dated 20.12.2007 was challenged by both sides by filing separate appeals i.e. RFA no.14/08 (filed by Plaintiff) and RFA no.20/08 (filed by Defendants). The Hon'ble High Court of Delhi by a Common Order dated 04.03.2014 dismissed both appeals of parties. As such the Order dated 20.12.2007 attained finality and pursuant to preliminary decree, the matter was taken up for partition of residential units.
3. By order dated 23.02.2016 of Delhi High Court, the instant suit was transferred to Ld. District Judge, New Delhi and the same was received by this court on 04.04.2016. The record observes that on joint request, matter was also referred for settlement to Mediation Cell, but the settlement could not fructify. The parties also exchanged their proposed CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 2 of 10 options of settlement on final partition but the same were not acceptable to them.
4. It is settled position under law that while effecting partition of such properties, it may not be possible to divide every property by metes and bounds as necessary adjustments in respect of unequal value to the share of a party may have to be made. The portion of lesser value may go to the other side and thus the adjustment of value may also have to be considered. At the same time, it is also settled legal position that generally, the date of valuation of the property has to be the date of passing of a final Decree and not the date of filing of Suit for Partition; the rule may be subject to certain exceptions i.e. a big timelag between date of filing of suit and date of decision thereof because it will be improper valuation in such a situation be taken as it was at the time of filing of suit. By Preliminary Decree in respect of residential complex, both parties are held entitled for 50% of rights each qua construction effected by late Sh. Janaki Das including roof rights thereof. Given the status of present occupation of parties, the nature of the residential unit and also the fact that matter pertains to the year 1997, an endeavour in such a situation is to preserve, protect and respect the possession of both parties as far as possible by equalization their shares, in the wake of their actual physical occupation.
5. As held by Hon'ble Delhi High Court in Preliminary Decree, present case relates to the property a Residential Complex, where neither party claims any title to the land comprised under the residential CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 3 of 10 constructions. By order dated 05.08.2014, Hon'ble Court had asked parties to suggest as to how the residential complex could be partitioned. Ld. counsel for parties submitted that rights of the parties in residential units were not capable of being sold, a mechanism, therefore, for interse bidding or physical partition of the area was suggested by them. Both parties later submitted that interse bidding was not a viable option as none of the parties was in a financial position to carry out the bidding. It is worthwhile to state that both parties filed a proposed Partition alongwith a siteplans/maps on 07.05.2015. The sum and substance of all is that the partition of the Residential Unit thus was not found possible either by metes and bounds or any other mode.
6. Final submissions are heard as addressed by ld. counsel Sh. Jasmeet Singh for the Plaintiff and Ld. Counsel Sh. Suresh Singh for the defendants. Written synopsis, Annexures as well as judgments relied upon by parties in support of their submissions are also considered.
7. My attention was drawn towards the order of Hon'ble Court by which a Local Commissioner was appointed on 26.03.2008 to suggest the modes of partition. Ld. Counsel for parties refer to the order dated 08.03.2010 passed by Hon'ble High Court of Delhi by virtue of which, the findings of said Local Commissioner, which did not pertain to the partible nature of property or otherwise were liable to be ignored.
8. Ld. Counsel for Plaintiff now refers to one earlier Report of Ld. Local Commissioner dated 20.11.97 annexed as AnnexureII and CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 4 of 10 submits that in view of the said Report and as per the site plan annexed, the area in occupation of the Plaintiff was 483 sq ft and area in the occupation of Defendants was 690 sq ft. Ld. Counsel submits that in view of the findings of Local Commissioner, Plaintiff was ready to forgo the excess area of 207 sq ft and confine her claim only to the area in her occupation since • Plaintiff was residing in the area under her occupation for the past 70 years i.e. from the date of her birth.
• Plaintiff was 70 years old with knee problems and was unable to climb to the first or second floor of unit and was running under treatment for the last more than 12 years.
• The defendant who was about 57 years old was not even staying at the premises in his occupation in the Complex.
9. Ld. Counsel for Plaintiff has placed reliance upon the judgments in the matter of Arun Bhatia Vs. Madhuri Bhatia, CS (OS) no.750/2007, decided on 24.04.2008 (at para 12) and M.L Subbaraya Setty (dead) by Lrs Vs. M.L Nagappa Setty (dead) by Lrs and Ors. (2202) 4 SCC 743 (para 29 and 35). Ld. Counsel therefore requests for passing of a final Decree of Partition for the residential portion based upon the Report dated 20.11.1997. Ld. Counsel states that Defendants have shown both toilets and bathrooms alongwith open space on the ground floor of the second residential unit to be common, which is false and contrary to the Report of Local Commissioner dated 20.11.97. Further, it is argued that there was no objection from any corner to the CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 5 of 10 report of Local Commissioner dated 20.11.97 and thus same having attained finality, the same should form basis for final Decree of Partition.
10. Per contra, ld. Counsel for Defendants argues that the reliance of the Plaintiff upon report of Local Commissioner dated 20.11.97 to show her possession over various portions over the residential area is misconceived as Report being part of other evidence was duly considered by Hon'ble High Court of Delhi at the time of passing Preliminary Decree dated 20.12.2017.
11. I observe that plea of Plaintiff to consider the Report at this stage is untenable primarily for the reason that suit was filed in the year 1997 and Report of Local Commissioner was only called for the purpose of deciding an interim application. The Report dated 20.11.97 got merged with the Order dated 20.12.2007 passed by Hon'ble High Court of Delhi. The Report of LC is observed to be contrary to other evidence on record i.e. in respect of outer room in 1 st residential unit and toilet, bath and open space in 2nd unit. It is held in catena of decisions by Hon'ble Superior Courts that the Report of Local Commissioner is a legal evidence as per Order 26 Rule 10 CPC. The Order dated 20.12.2007 of Preliminary Decree was passed after appreciating entire evidence adduced on record including this Report as one of the pieces of evidence. The reliance by the Plaintiff therefore upon the Report dated 20.11.1997 is misplaced one and the request therefore stands rejected.
12. It is not disputed that the relations between the parties are strained because of present litigation which is more than 20 years old.
CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 6 of 10 The claim of Plaintiff that Plaintiff is ready to forgo excess area of 207 sq ft since she is in occupation of 483 sq. ft. as per Report dated 20.11.1997 of Local Commissioner has to be rejected in view of present status of occupation of parties in the light of findings of Hon'ble High Court. Plaintiff has filed site plan alongwith her affidavit, as per which total area of Plaintiff under her occupation is 441 sq ft. The claim of plaintiff in respect of outer room on GF of the 1 st Residential Unit adjacent to Hanuman Temple is contrary to evidence on record. As per evidence, the said room was earlier under the occupation of defendant no.1's mother and now is held to be under occupation of defendant no.1. The site plan filed by defendant shows him to be in occupation of approx 525 sq ft. of area in 2nd residential unit with an area of outer room in the 1 st residential unit.
13. The medical record filed by Plaintiff shows her to be suffering from knee joint problems. Plaintiff has shown her difficulty to go upstairs due to her old age problem. The claim of the Plaintiff in effect is to get the outer room on GF of 1st residential unit as well as the kitchen, toilet, bathroom and open space in 2nd residential unit. Looking into respective site plans of parties and the record in particular pertaining to occupation of respective portions of parties, I find that the claim of the Plaintiff to have the outer room in 1 st residential unit adjacent to Hanuman temple and exclusive occupation of the bath, toilet and open space in 2nd residential unit is unjustifiable, being contrary to the tenor of Preliminary Decree dated 20.12.2007. Plaintiff is seeking possession/occupation of the portion marked in green colour in site plan, CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 7 of 10 which she states to be approximately 590.72 sq ft. The area in the site plan marked red is shown to be in possession/occupation of Defendant no.1 which, he states to be measuring 525 sq. ft in the 2nd residential unit but excludes the toilet, bathroom and open space therein and outer room in 1st residential unit.
14. Defendant was ready to forgo his occupation of the outer room in the 1st residential unit provided Plaintiff forgoes her occupation of half kitchen, joint occupation of toilet and bath on GF at 2 nd residential unit. In such way, Plaintiff will get possession of entire 1 st residential unit i.e. two rooms and store in GF, room on FF and roof above the same with bathroom below staircase. In other words, Plaintiff can occupy the entire first residential unit provided she leaves her occupation of half kitchen, joint occupation of toilet and bath on GF at 2nd residential unit.
15. Ld. Counsel for Defendants submitted that if Plaintiff was not willing to take 1st residential unit adjacent to Hanuman Temple, defendant no.1 could be given the entire 1st residential unit i.e. having two rooms, store on ground floor, room on the first floor, roof of first floor with bath room below staircase and in lieu thereof, Plaintiff could occupy the entire 2nd residential unit near Hanuman Temple i.e. kitchen, toilet and bathroom on GF, one room on the FF and a room on 2 nd floor with roof thereof.
16. Hearing submissions of both sides and from considering the entire factual matrix in hand, I find that the claim of Plaintiff to get the CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 8 of 10 entire 1strResidential Unit as well as open space in 2nd residential unit is an unreasonable claim. The plea of Plaintiff is that Defendant is not even staying at properties in Complex and thus would not be affected in any manner if she be allowed to get the area as desired by her. The said plea is not possible to accept and shall not be a ground to deny Defendants their allotment of share after devision as per tenor of Preliminary Decree. I observe that in present set of facts and circumstances, the present possession of parties as far as possible has to be respected and preserved alongwith an attempt of equalization of their shares. In view of the aforesaid discussion, a Final Decree is hereby passed in respect of the Residential Unit by holding as follows :
• Plaintiff is entitled to occupy the whole of the 1 st residential unit i.e. two rooms and a store on GF, room on FF and roof on FF and bathroom below staircase.
• Plaintiff shall give up her occupation of half kitchen, joint occupation of toilet and bath on GF of 2nd residential unit. Defendant no.1 shall occupy the whole of the 2nd residential unit i.e. kitchen, toilet and bath room on the ground floor, one room on the first floor and one room on the second floor and roof above the second floor room.
• Defendant shall give up his complete occupation of outer room in 1st residential unit and hand over the same to the Plaintiff. • The partition of the areas in the manner decided above will facilitate parties to get the equal areas as far as possible as they were holding earlier i.e. by such an arrangement, Plaintiff shall get approximately 474 sq ft approx area in 1st residential CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 9 of 10 unit and Defendant no.1 shall get 643 sq. ft. approx area in 2nd residential unit.
17. A final Decree of Partition in terms of the manner as observed in para no.18 is hereby passed in respect of the Residential Unit. Decreesheet be prepared and file be sent to record room with parties to bear their own costs.
(Announced in the open Court) RAVINDER BEDI
Additional District Judge04
Judge Code: DL0253
PHC/New Delhi/01.02.2020
CS no.58759/16 Jeevan Dass Vs. Anil Sharma page no. 10 of 10