Delhi District Court
Baldev Raj & Ors. vs . Manmohan & Ors. on 15 November, 2014
Suit No: 97/14 Baldev Raj & Ors. Vs. Manmohan & Ors. 15.11.2014 ORDER:
1. This is to dispose off objections of the defendants to the report dated 10.01.2014 of the Local Commissioner and an application dated 10.01.2014 U/s 151 CPC for stay of further proceedings in the case till the decision of probate case.
2. Starting with the background of case in brief, the plaintiffs had filed this suit for partition of House No. 2575, Main Road, Raghubarpura No. 2, Gandhi Nagar, Delhi - 31 and assets of M/s Vikram Printing Press which was being run in the same house, declaration that Will dated 21.03.1984 propounded by the defendants is invalid, forged and null & Void and injunction to restrain the defendants from selling, transferring or alienating the properties/business, before the District Court on 20.01.1992. The plaintiffs amended their plaint more than once. On completion of pleadings 8 issues were framed on 06.08.1998. The injunction application of plaintiffs was dismissed on 12.02.1992. They had filed FAO no. 35/1992 against the same which was disposed off by Hon'ble the High Court on 04.12.1995 by a consent order that the injunction application may be freshly decided by the trial court. Suit No. 97/14 Page No. 1 of 23
3. The suit was transferred to Civil Judge on enhancement of their pecuniary jurisdiction. Pursuant to an order dated 23.01.1996 passed by the then Ld. Civil Judge the plaintiffs were called upon to fairly value the suit for purposes of court fee and jurisdiction. The plaintiffs then filed an amendment application dated 25.01.1996 for rectifying valuation Para of the plaint. Since the new valuation of suit was beyond the pecuniary jurisdiction of subordinate courts, the plaint was returned for being refiled in the Hon'ble High court of Delhi. It was accordingly filed there on 03.02.1996.
4. On rehearing, the injunction application of plaintiffs was dismissed by the Hon'ble High Court on 10.01.2001 against which their FAO (OS) No. 22/2001 was dismissed by the Division Bench on 21.05.2001. The case was retransferred to the district courts in April, 2004 on further enhancement of their pecuniary jurisdiction. The defendants had filed an application U/o 14 Rule 5 CPC for changing the onus to prove some of the issues. It was dismissed on 20.09.2005. An application for review of said order was also dismissed on 22.02.2006.
5. After examining three witnesses the plaintiff had closed their evidence on 17.07.2009. The defendants had examined four witnesses and Suit No. 97/14 Page No. 2 of 23 closed the opportunity on 08.12.2009. Judgment in the suit was passed on 06.03.2010 and Preliminary decree on 10.05.2010 holding the suit parties to be entitled to 1/6th share each in the demised property left behind by their predecessorininterest. RFA No. 450/2010 filed by the defendants against the same was dismissed by Hon'ble the High court on 18.11.2003 and their SLP (C) No. 816264/2014 were dismissed by Hon'ble the Apex Court on 04.03.2014.
6. To propose the feasibility and mode of partition of the demised property in terms of preliminary decree Sh. Rajesh Kumar Sharma, Advocate was appointed Local commissioner vide order dated 23.07.2010. On the Local Commissioner intimating the intended date of visit to the property, the defendant no. 1 had sought its cancellation vide letter dated 04.09.2010 on the ground that he could not pay his share of fee and further that he will not be available on 06.09.2010. An exception was also taken to the issuance of order of local inspection by the court without beforehand payment/deposit of fee of the local commissioner. The local commissioner actually visited the suit property on the adjourned date on 17.09.2010 after intimating the defendants that their share of fee was also paid by the plaintiffs. The property however was found all locked from outside and therefore, could not be inspected. Suit No. 97/14 Page No. 3 of 23
7. Sh. Amit Batra, Advocate then was appointed Local Commissioner vide order dated 14.12.2013 who visited the suit property on 24.12.2013 and submitted report dated 09.01.2014 in this behalf. He has opined that being one sided open property it cannot be conveniently partitioned in 6 equal shares. When the plaintiffs suggested to him that they are ready to keep their shares joint, he has proposed its partition in the ratio 4:2 amongst the plaintiffs and the defendants.
8. During pendency of the appeal the matter was twice sent to Delhi High Court Mediation & Conciliation Centre but the parties somehow could not clinch the issues. The defendants have filed a probate case in respect of the Will dated 21.03.1984 of Sh. Ram Dayal in July 2010 which is pending before District Court at Karkardooma, Delhi.
9. In the objections to report of Local Commissioner the defendants have submitted that the area of suit property as per 4 sale deeds is 355 sq. yards. The excess land of approximately 18 sq. yards at site was encroached upon and falls exclusively in the share of defendant no. 1. It is contended that the Local Commissioner had proposed to suggest the mode of partition only after being provided with the copies of sale deeds but he proceeded to submit the report without obtaining them. Moreover the site plan submitted by him is Suit No. 97/14 Page No. 4 of 23 ambiguous and earmarked an area of 260 sq. yards to the share of plaintiffs which is much more than their entitlement of 236 sq. yards. The Local Commissioner did not comprehend the value of property in the hands of different share holders which should be equalizing. He also did not propose to offer the property to one or some of the cosharers in exchange of money value of the shares of remaining cosharers.
10. The objections have been filed subject to the decision on some of the ground questions that a decree of mere Declaration is not executable and is just a paper decree. It cannot operate as resjudicata in any subsequent competent proceedings. Moreover the present proceeding are continuation of the suit and liable to be clubbed with pending probate petition. In case the Will of 1984 is found to be not validly executed by the probate court, the previous Will of 1973 of Sh. Ram Dayal would become operative and then the court would be bound to consider the effect of decision in probate case and modify the preliminary decree accordingly. It is contended that only a probate court is competent to give decision upon the validity of Will or its revocation. The grievance of the case having been decided by the court in breach of order dated 03.01.2006 of the Hon'ble High Court and that the court fee paid by the plaintiffs should have been according to the value of property on the date of passing of judgment, have also been raked up.
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11. The plaintiffs have termed the objections to be an abuse of process of law and a dilatory instrument, in their reply. All the questions raised in the objections have been put to rest by the judgment of Hon'ble High Court and rest of the contentions is misconceived. It is for the first time the defendants have pleaded about encroached upon area of about 18 Sq. yards. Since said portion has been included in the suit property, no one can lay exclusive claim over it. The report of local commissioner has been supported and is stated to be within the parameters of his assignment. The suit property is divisible in the reported ratio to be inconsonance with the preliminary decree. The mode of partition suggested in the report and the site plan annexed thereto is acceptable to the plaintiffs. On these averments dismissal of the objections has been sought.
12. In the application dated 10.01.2014 under Section 151 CPC, the defendants have urged for stay of further proceedings in this suit until Probate Case No. 22/10 pending at Karkardooma Courts is decided. After detailed narration of facts and the objections to further continuation of suit alike those mentioned in the objections to the report of Local Commissioner, reference to Balbir Singh Wasu Vs. Lakhbir Singh, (2005) 12 SCC 503 and Nirmala Devi Vs. Arun Kumar Gupta, (2005) 12 SCC 505 has been made wherein it was Suit No. 97/14 Page No. 6 of 23 held that when probate proceedings and civil suit are pending then both should be clubbed as the decision in probate case is final and binding regarding the validity and genuineness of Will as had been held in (1993) 2 SCC 507. The course would also avoid conflict of decisions and further that the decision of the Civil Court will not operate as resjudicata. It is claimed that these points had been raised by the defendants in RFA No. 450/2010 but since an application for stay of appeal had not been filed, their request was not acceded. The defendants however are not precluded from raising the points again as any order passed by the probate court would affect the outcome of civil suit. It has been contended that the continuation of suit at Tis Hazari Courts was in violation of the order dated 03.01.2006 of transfer of the cases, of the Hon'ble High Court. The question of jurisdiction strikes at the very authority of the court to pass a decree which cannot be cured by consent or waiver of the parties.
13. The plaintiffs have denied that there has been any violation in following the administrative orders passed by the Hon'ble High Court. The defendants are just out to delay the final disposal of the suit and have filed multiple applications. The contentions of the applicants have all been dealt with in detail by the Hon'ble High Court and are not open for reagitation. The probate petition filed by them is termed to be totally false and frivolous and Suit No. 97/14 Page No. 7 of 23 therefore the suit is not liable to be withheld on account thereof.
14. I have heard Sh. Dinesh Kapoor, Advocate, Ld. Counsel for the applicants/defendants, Ms. Geeta Luthra, Ld. Senior Advocate and Sh. Arun Sukhija, Advocate, Ld. Counsels for the plaintiff and carefully perused the bulky judicial record. It has been vehemently argued by Sh. Kapoor that on the constitution of fast track courts in three court complexes the District & Sessions Judge, Tis Hazari, Delhi was specifically directed by the Hon'ble High Court to earmark all seven year old cases and the cases of the Senior Citizens to such courts vide order dated 03.01.2006. Since a Fast Track Court had been posted at Karkardooma Courts, this case well covered within laid down parameters and involving property of Gandhi Nagar, Delhi should have been transferred to the Fast Track Court at Karkardooma. The jurisdiction of the court conducting the case at Tis Hazari stood implicitly extinguished. All further proceedings in this suit are therefore nonest. It is argued that a judgment/order passed by an incompetent court can neither operate as res judicata nor is enforceable. He has strongly relied upon the ratio in 'State of Rajasthan Vs. Prakash Chand & Ors'., decided on 25.11.1997 by a three Judge bench of Hon'ble the Supreme Court of India, wherein it was held that the power and jurisdiction to take cognizance of and to hear specified categories or classes of cases and to adjudicate and exercise any judicial Suit No. 97/14 Page No. 8 of 23 power in respect of them is derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other source and no cases which is not covered by such determination can be entertained, dealt with or decided by by the Judges sitting singly or in division courts till such determinations remain operative.
15. Reference to Chiranjilal Shrilal Goenka Vs. Jasjit Singh & Ors, 1993 SCC (2) 507, has also been made to stress that where a probate case is already pending, subsequent reference to the Arbitrator with consent of the parties cannot confer jurisdiction of special court on Arbitrator. The judgments in Sheopersan Singh Vs. Ram Nandan Prasad Singh, (1916) ILR 43 Cal. 694 and Narbharam Jeevram Vs. Jayvallabh Harjeevan, AIR 1933 Bom. 469 laying down that it is settled law that a decree passed by a court without jurisdiction on the subject matter or on the grounds on which the decree made which goes to the root of its jurisdiction or lacks inherent jurisdiction is a corum on judice. A decree passed by such a court is a nullity and is nonest. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the very authority of the court to pass decree which cannot be cured by consent or waiver of the party.
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16. Ld. Senior Counsel for the plaintiffs has controverted that there were any special directions to the Ld. District & Sessions Judge, Delhi to mark the old cases of senior citizens according to the territorial jurisdiction. The contention has been raised just to overreach the court. The defendants have already made repeated attempts to get this case transferred but did not find favour.
17. Exfacie, Ld. Counsel for the defendants has been laboring under misconception. His contention looses sight of a vital fact that the Hon'ble High Court had not enjoined upon the District & Sessions Judge, Delhi to earmark cases to the fast track court of the place where the territorial jurisdiction of a particular suit falls. In fact by that time Delhi had not been bifurcated into several judicial districts. The administrative order simply required the case to be transferred to a Fast Track Court as it was more than seven years old and involved senior citizens. In compliance thereof, the case was transferred to a fast track court at Tis Hazari only which order is well within the parameters of the directions. Moreover the defendants kept lying low about the issue until recently and allowed the court to pass preliminary decree and take suggestions about the mode of actual partition of the suit property. Having tacitly allowed the court to proceed, the defendants are precluded from challenging its Suit No. 97/14 Page No. 10 of 23 jurisdiction on reaching a far end, at their convenience, on the logic of Section 21 of the Civil Procedure Code. The proposition of cited law has no applicability to the facts in hand. The objection therefore, is found to be absurd, hence repelled.
18. Second reservation of defendants is about the maintainability of the suit for declarations simplicitor when consequential relief is visible and available. It is contended that present suit is barred under Section 34 of The Specific Relief Act. It is asserted that the judgment passed in such a case is inoperative and can be challenged in execution or collateral proceedings. For support, Sh. Kapoor has quoted 'Shakuntla Devi Vs. Kamla & Ors., (2005) 5 SCC 390'.,laying that declaratory decree delivered without jurisdiction or contrary to existing law at the time the issue comes up for reconsideration was held not to operate as resjudicata in a subsequent case between the same parties unless it is protected by a special enactment. Further in 'Union of India Vs. Ibrahim Uddin & Anr., 2012 VII AD (SC)128', it was held that it is not permissible to claim the relief of declaration without seeking consequential relief. Such a suit was barred under Section 34 of The Specific Relief Act and therefore, ought to have been dismissed on this ground by relying upon 'Ram Sharan Vs. Ganga Devi, AIR 1972 SC 2685 and 'Gyan Kaur Vs. Raghubir Singh, (2011)4 SCC 567'. The ratio in 'Venkataraja & Suit No. 97/14 Page No. 11 of 23 Ors. Vs. Vidyane Doureradjaperumal (D) Thr. Lrs. & Ors., 2013 IV AD (SC) 596', is that a mere declaratory decree remains nonexecutable in most cases generally as the suit filed by the plaintiffs without seeking consequential relief was not maintainable. Plaintiff could have included the unsought relief by way of amendment provided it had the prescribed limitation, has also been applied in the context.
19. Ld. Senior Counsel for the plaintiffs termed the edifice of defendant's contention to be misconceived. The suit has been held not to be one for declaration simplicitor. The dominant relief of partition of the properties had been claimed in it. The plaintiffs had deposited the requisite court fee in compliance of the preliminary decree. She has placed reliance upon 'Ramagounda Rudregowda Patil & Ors. Vs. Lagmavva & Ors, AIR 1985 Kant.82 wherein with reference to Section 54 and Order XX Rule 18 CPC, it was observed that 'partition' is not confined to mere division of lands concerned into requisite parts, but also includes the delivery of shares to the respective allottees. To elaborate further the word 'partition' was held to mean actual division or partition by metes and bounds and handing over possession of the shares to the parties. On the same lines, it was held in 'Narinder Singh & Anr. Vs. Jagmohan Singh & Anr., 80(1999)DLT 107' that in a suit for partition of the property, the division of property is to be made by metes and Suit No. 97/14 Page No. 12 of 23 bounds.
20. A specific issue about the maintainability of suit was framed on 06.08.1998. It was decided against the defendants/applicants. The judgment dated 06.03.2010 and preliminary decree dated 10.05.2010 have been upheld by the Hon'ble High Court of Delhi vide a comprehensive judgment dated 18.11.2013. Further challenge thereto was dismissed by Hon'ble the Supreme Court of India on 07.03.2014. None of the precedents cited on behalf of the defendants involved similar facts situation. It has been found not to be a suit for declaration simplicitor as the defendants are vying for. The plaintiffs have manifestly claimed the dominant as well as consequential relief of partition entailing the delivery of possession of the property as per their entitlement. The issue therefore was no longer up for further contest. The same issue couched in different form cannot be reagitated as it has become final and binding on the parties.
21. The next contention of Sh. Kapoor that the pending probate proceedings call for stay of further proceedings in this suit are coupled with the ratios in 'Balbir Singh Wasu Vs. Lakhbir Singh & Ors., (2005) 12 SCC 503, it was held that proceedings for final decree amount to continuation of the suit and therefore during pendency of probate proceedings, final decree should be Suit No. 97/14 Page No. 13 of 23 held in abeyance. In 'Nirmala Devi Vs. Arun Kumar Gupta, (2005) 12 SCC 505 it was laid that decision in probate proceedings on question of proof of Will having direct impact on related suit. Suit was therefore transferred to probate court and both were directed to be disposed of together. Similar was held in Virender Gupta Vs. Nitender Gupta, 31 (1987) DLT 406'.
22. Further in Amardeep Singh Vs. The state, 2005 VIII AD (Delhi) 379, it was held that probate court is not a Civil Court within the meaning of term under CPC. The probate court alone is competent to decide on the question of execution, validity or otherwise of the Will. The probate petition filed later in point of time then the civil suit filed by the respondent in Civil Court is not liable to the be stayed. In Chinnasami Vs. Harihrabadra, (1893) ILR 16 Mad. 380, it was held that the judgment of a probate court is a judgment in rem and therefore the judgment of any other court in a proceeding inter parties cannot be pleaded in bar of an investigation by the probate court as to the factum of the Will propounded in that court. It was relied upon in Ram Shankar Vs. Balak Das, AIR 1992 M.P. 224, to hold that the suit instituted in a Civil Court claiming title to the property on the basis of Will. No issue can be struck by the Civil Court to decide if that Will was the last Will. Plaint will have to be rejected in such case. Finally reference to Naresh Chand Suit No. 97/14 Page No. 14 of 23 Singhal Vs. NDPL, W.P.(C) No. 5339/2010, decided by Hon'ble High Court of Delhi on 18.09.2013 had been made to contend that any conclusion or declaration arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of general nature binding as a precedent. The decision passed subsilentio when a particular point of law involved in the decision is not perceived by the court or present to its mind.
23. It is stated that the course needed to be adopted to concile the two cases has been enunciated in 'Binapani Kar Chowdhury Vs. Sri Satyabrata Basu & Anr., AIR 2006 SC 2263, where civil suit was already pending and probate case filed subsequently. It was held that the suit may be disposed off but if it is to be decreed the court shall make it clear that the judgment and decree will come into effect only on production of the probate of the Will and till then the decree should be considered only as 'provisional' and not to the given effect. To the similar effect was held in Ganduri Koteshwaramma Vs. Chakiri Yanadi, JT 2011 (11) SC 483.
24. Ld. Senior counsel for the plaintiffs has opposed the point by stating that a party cannot be made to wait endlessly by the other side in filing a probate case. A fully contested judgment on the issue of Will has already Suit No. 97/14 Page No. 15 of 23 been rendered by Ld. Predecessor of this court which has been upheld upto Hon'ble the highest court of land. The defendants cannot now keep plaintiffs away from the fruits of the decree by resorting to a technical ploy of filing probate case after knowledge that the existence and authenticity of Will of Sh. Ram Dayal is questioned since last twenty years.
25. Ironically, in none of the judgments cited on behalf of the defendants, a preliminary decree of partition of the properties had been passed in the civil suit. Most of the cases pertain to the places where probate of Will is necessary. So far as the proposition of law laid therein is concerned, there can be no dispute but they were rendered in the context of legal requirement of findings of probate court. In Delhi however, probate of a Will is not necessary. It may not therefore be fit to observe that issue about the validity of a Will cannot be struck in a civil suit. The position prevalent in Delhi may be couched from the judgment in 'Dinesh Chand Vs. State, decided by a Division Bench comprising HMJ M. Mudgal and HMJ J. Singh, on 31.01.2007' that even grant of probate does not decide the title of the parties where a Will is set up in a Civil suit and an issue is framed about its authenticity and validity and after recording evidence, the Will is either held to be genuine or fake or forged and on that basis tile of the parties is decided, then that finding, in our view, is binding on the contesting parties specially if it has been upheld upto the Suit No. 97/14 Page No. 16 of 23 highest court of India. It is further observed that where a probate case and a civil suit on the basis of same Will are pending, normally both cases are tried in one court to avoid contradictory judgment but if the validity and genuiness of the Will already stands decided between the same parties, the same issues cannot be reopened in a probate court under the Indian Succession Act. The contesting parties are clearly stopped from reversing their position.
26. The rights and interests of suit parties in the demised property have crystallized with the passing of preliminary decree and the court as well as the parties has converged on the mode of its partition. The probate proceedings have been initiated by the defendants only on being rebuffed by the Hon'ble High Court, with ulterior motive to further delay the disposal of almost 23 years old lis involving most of the senior citizens as parties. The reliance of defendants on the judgments is of no assistance as in none of them the civil suit has matured for final disposal.
27. The fourth point of Sh. Kapoor is that on the Will of 1984 of Sh. Ram Dayal not being proved in the probate case, his previous Will of 1973 will come to the fore then the preliminary decree will have to be modified. He has placed reliance on Venkatanarayana Pillay Vs. Subbammmal & Anr, AIR 1915 Privy Council 37, where it was held that an alternative inconsistent Suit No. 97/14 Page No. 17 of 23 subsequent disposition which is not valid or effectual in itself, does not revoke an earlier disposition of the same property. To the same effect was held in Tajo Ramnath Vs. Baneshwar Nath, AIR 1962 Assam 106, that in order to have the effect of revocation under Section 76 of The Succession Act, 1925, the existence in contents of a subsequent Will must be proved by evidence of a clear and satisfactory kind. Where the scribe of the subsequent Will was not examined as regards its execution and the witness who was said to be the attesting witness did not say whether he saw the testator executing the Will or not, it could not be held that the subsequent Will was proved and as such it did not revoke the earlier Will. Further in Bhagat Ram Vs. Suresh, AIR 2004 SC 436, it was held that Will is required to be executed and prove as per the rules contained in the Succession Act and the Evidence Act but a document explaining, altering or adding thereto and forming part of the Will is not required to be executed or prove in the same manner. Section 70 of The Succession Act reenforces this proposition in as much as revocation of an unprivileged Will or codicil is placed at par in the matter of manner of execution.
28. Ld. Senior counsel for the plaintiffs on the other hand contended that the defendants have manifestly projected a case of Sh. Ram Dayal having revoked his purported Will of 1973, are estopped from changing their posture on remaining unsuccessful in proving Will dated 21.03.1984. Further the Suit No. 97/14 Page No. 18 of 23 principles of constructive resjudicata prohibit them from so doing. Reliance in this behalf is placed on Official Trustee of West Bengal Vs. Stephen Court Ltd., MANU/SC/8791/2006, where it was observed that 'the Official Trustee in his affidavit in opposition filed before the High Court of Calcutta might have raised several contentions. Presumption, however, would be that those contentions which had been accepted by the High Court were put forward by it. If that be so, it does not lie in the mouth of the Official Trustee now to content that it had raised other contentions also. If it had raised any other contention, which had not been considered by the High Court, the remedy of the Official Trustee was to move the said court itself for appropriate directions. Not only no such contention was raised, it will bear repetition to state, that the order has been acted upon. The principles of resjudicata and in particular that of constructive resjudicata shall apply in the aforementioned fact situation.
29. The point has already been dealt with by the Hon'ble High Court of Delhi in judgment dated 18.11.2013. The defendants cannot sail in two boats simultaneously. Having taken a stand that the Will of 1973 was superseded in 1984, they cannot reprobate to contend that the former will automatically revive in case they are not able to prove the latter. The filing of probate case by the defendants after more than one and half decade of contesting the Will may itself raise question on its maintainability on the ground of limitation. Adopting Suit No. 97/14 Page No. 19 of 23 the course suggested by the defendants will amount to putting premium on their default in seeking the necessary adjudication about the veracity of Will/s of the last owner of the property. As has already been observed the legal proposition canvassed on behalf of the defendants may be applicable to the places where obtaining of probate of a Will is essential. It may not be so plain for places like Delhi where filing probate case is not mandatory. The ground of opposition of defendants therefore is rejected.
30. In view of the aforegoing reasons, the stay application of defendants is dismissed with special costs of Rs. 10,000/.
31. So far as the objections to the report of Ld. Local Commissioner are concerned they are just patchy and have no substance. The background of case reveals their thwarting conduct towards local commission proceedings. The record further indicates that the defendants have deployed almost every tool to ensure that final disposal of the suit is protracted in one or the other way as also to exhaust the patience of plaintiffs. While projecting themselves to be so meticulous in protecting/securing their legal rights in the suit property in particular and the conduct of suit in general, the defendants have mischievously suppressed as to why the mention of encroached land of about 18 sq. yards was not disclosed at the earliest. It is manifest that only to cling to that portion of Suit No. 97/14 Page No. 20 of 23 the property exclusively the objections have been filed by spilling their inner motive. Ld. Local Commissioner did not require the copies of sale deeds for assistance in executing the commission. He had taken the measurements of the property and gave the best solution to the posed question in his report on the plaintiffs agreeing to keep their respective shares joint. In view of the subsequent development regarding passing of the final decree, the objections otherwise do not hold water. The same are therefore, dismissed with costs of Rs. 10,000/. For justification regarding imposition of costs reference may be made to Sameer Jasuja Vs. Assotech Reality Pvt. Ltd., CS(OS) No. 2229/09 decided by Hon'ble High Court of Delhi on 21.10.2013, where it was observed that despite it being made clear in court that court was inclined to grant leave to defend to both the defendants unconditionally, Ld. Counsel for the plaintiff continued to argue the matter on a couple of dates and consumed several hours of judicial time. It is high time that parties should be made accountable for unnecessary wasting of time of the court and so as to instill a sense of responsibility and accountability in parties and their respective counsels, imposition of costs on the concern party would not only serve as a deterrent but also appropriately penalized the party wasting the valuable time of court which is burdened with a large number of pending cases.
32. The last contention of defendants that the plaintiffs should have deposited the court fee according to the value of the suit property on the date of Suit No. 97/14 Page No. 21 of 23 passing of the judgment dated 06.03.2010 and not on its value of 1992, has absolutely no basis to stand. Where ever the valuation of suit or court fee are found to be deficient in a suit, the same are always demanded as on the date of bringing the lis before judicial forum unless specified otherwise.
33. The defendants having submitted suggestion as to the mode of partition vide their application under Section 151 CPC dated 13.05.2014 accompanied with affidavits of all concerned and subsequently submitting a measured and appropriately coloured site plan on 28.05.2014, which was readily accepted by the plaintiffs on 28.05.2014 itself through counsel, in pursuance of preliminary decree dated 10.05.2010, final decree is hereby passed in respect of the suit property no. X/2575, Raghubar PuraII, Gandhi Nagar, Delhi31 holding the plaintiffs together to be the owners of Eastern portion of the property measuring 29' 11''x 73' measuring (as against their entitlement of 236.67 sq. yards) earmarked in red colour in site plan now marked Ex. PX to the extent of 1/4th share of each plaintiff in it. The defendants put together are simultaneously declared owners of the western portion of the demised property measuring 14.8/4' x 73' as earmarked in 'green colour' in site plan Ex. PX. The 'yellow' coloured portion measuring 2.75' x 1.58'/2 x 73' that is 17.56 sq. yards shall also belong to the defendants of course without prejudice to the rights of third parties. Legal Heirs of defendant no. 1 put Suit No. 97/14 Page No. 22 of 23 together and defendant no. 2 shall be entitled to half share each in the said green and yellow portions of the property. The defendants being in exclusive possession of the suit property are directed to deliver the vacant and peaceful physical possession of the red portion unto the plaintiffs within 15 days hereof. The plaintiffs shall secure possession of their property by constructing a partition wall on the Western side of their portion at their own costs. The defendants are hereby permanently restrained from selling, transferring, letting, alienating or otherwise parting with whole or a portion of the property bounded in the 'red' colour in site plan Ex. PX.
34. The defendants shall bear costs of the suit which is conservatively quantified at Rs. 25,000/.
35. Final decree be drawn on stamp duty being filed by the plaintiffs. The stamp papers of requisite amount therefore, shall be submitted within 15 days.
Announced (Sunil K. Aggarwal) Addl. District Judge10 (Central) Delhi/15.11.2014 Suit No. 97/14 Page No. 23 of 23