Delhi District Court
Raj Kumari Dubey vs Vijay Shankar Dubey on 15 February, 2025
IN THE COURT OF SH. PARVEEN SINGH, DISTRICT JUDGE-11,
CENTRAL DISTRICT, TIS HAZARI COURT,
DELHI.
CS DJ No. 580/2017
CNR No. DLCT010021722017
Smt. Raj Kumari Dubey,
w/o late Sh. Gopal Shankar Dubey,
s/o late Sh. Avtar Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg,
Delhi-110006. ...Plaintiff.
Versus
1. Vijay Shankar Dubey,
s/o late Sh. Avtar Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg, Delhi-110006.
2. Rajesh Shankar Dubey,
s/o late Sh. Avtar Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg, Delhi-110006.
3. Dhiraj Dubey,
s/o late Sh. Subhash Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
Page No. 1 of 9 Digitally
signed by
CS DJ No. 580/2017 PARVEEN
PARVEEN SINGH
SINGH Date:
2025.02.15
15:59:31
+0530
S.P.M Marg, Delhi-110006.
4. Vishal Dubey,
s/o late Sh. Subhash Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg, Delhi-110006.
5. Kumari Amrita Dubey,
d/o late Sh. Subhash Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg, Delhi-110006.
6. Saroj Shukla,
d/o late Sh. Avtar Shankar Dubey,
r/o 117/N/69, Tulsi Nagar,
Kalka Dev, Kanpur (U.P).
7. Sunita Sharma,
d/o late Sh. Avtar Shankar Dubey,
r/o 6441, Gali Kumharan,
Katra Baniyan, Delhi -110006.
8. Kumari Sushma Dubey,
d/o late Sh. Avtar Shankar Dubey,
r/o 1248/1249, Rang Mahal,
Behind Novelty Cinema,
S.P.M Marg, Delhi-110006.
9. Prateek Shukla,
s/o late Smt. Sudha Shukla &
d/o late Sh. Avtar Shankar Dubey,
r/o 361, Subhash Nagar,
Page No. 2 of 9
CS DJ No. 580/2017
Digitally
signed by
PARVEEN
PARVEEN SINGH
SINGH Date:
2025.02.15
15:59:49
+0530
Opp. SBI, Bareilly (U.P). ...Defendants
Date of Filing : 09.02.2017.
Date of Arguments : 27.01.2025.
Date of Judgment : 15.02.2025.
SUIT FOR PARTITION
JUDGMENT:
1. The present suit for partition had been filed by the plaintiff against the defendants.
2. Briefly stated, the case of the plaintiff was that, the plaintiff had filed the present suit for partition of H. No. 1248/1249, Rang Mahal, Behind Novelty Cinema, S.P.M Marg, Delhi-110006, measuring about 280 sq. meters. The claim of the plaintiff was that the property was initially owned by Prem Shankar Dubey and after his demise, his son Avtar Shankar Dubey inherited the same. It was further the case that the parties to the suit were the legal heirs of late Avtar Shankar Dubey. Hence, the present suit was filed.
3. Vide order dated 09.08.2017, a preliminary decree for partition was passed and it was held that plaintiff was entitled to 1/8th share in the suit property, defendants no. 3 to 5 were entitled to 1/8th share collectively in the suit property, defendant no. 9 was entitled to 1/8th share in the suit property and the remaining defendants were entitled to 1/8th share each in the suit property i.e. property bearing no. 1248/1249, Rang Mahal, Behind Novelty Cinema, S.P.M Marg, Delhi-110006, measuring about 280 sq. Page No. 3 of 9 Digitally signed by PARVEEN CS DJ No. 580/2017 PARVEEN SINGH SINGH Date:
2025.02.15 16:00:02 +0530 meters.
4. Thereafter on 01.06.2018, a local commissioner was appointed for suggesting the actual mode of partition.
5. On 13.07.2018, local commissioner had submitted his report suggesting three modes of partition. Defendants no. 3 to 5 filed their objections to the report of the local commissioner.
6. Thereafter, vide order dated 21.04.2022, there was a little change in the shares of the parties as ordered by my learned predecessor and it was ordered by my learned predecessor that defendants no. 3 to 5, who originally had 1/8th share, would have 2/8th share as they had purchased the share of defendant no. 9.
7. Defendants no. 3 to 5 filed detailed objections to the report of the local commissioner. One such objection taken was that the property had been declared as a heritage property and thus, any structural changes, renovations, repairs, partition etc. could be carried out only after obtaining permission from INTACH and other concerned authorities and thus, suit property could not be partitioned by metes and bounds as suggested by the local commissioner. The other objections were that property was not properly divided by the local commissioner as he failed to understand that the portion which he was allotting to these defendants was having an entrance from the rear portion which was hardly 3.5 feet wide and that would have a reduced value. The back side exit gate was not an exit gate but was the end of stairs coming from first floor which serve as an emergency Page No. 4 of 9 CS DJ No. 580/2017 Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.02.15 16:00:11 +0530 gate. These stairs are hardly 2.25 feet wide.
8. Thereafter, defendants no. 3 to 5 & 9 suggested their own mode of partition. In those suggestions, it was stated that ld. Counsel for plaintiff as well as defendants no. 1, 2, 6, 7 & 8 had stated that defendants no. 3 to 5 and jointly may select any portion of the property so that the said portion of the property could be separated and be given to them. Therefore, they suggested that the portion measuring 45 ft x 14 ft 8 inches which comes to around 74 sq. yds and was shown in site plan as ABCD attached with the application could be separated from other portion by erecting a wall from portion A to D so that the portion below and above the portion ABCD could exclusively be owned by defendants 3 to 5 and 9. The partition would constructed by plaintiff as well as defendants 1, 2, 6, 7, 8 from ground floor to above floors.
9. Plaintiff filed a reply to it and took an objection that the site plan filed by the defendants no. 3 to 5 with the application was not a proper site plan as the property was having main entrance with passage of 14.8 ft. wide and the defendants no.3 to 5 have claimed the entire passage without thinking that from where the other defendants and plaintiff will enter into the premises. The better course was to divide the passage atleast in two equal shares, one half share of the passage can go to the defendants no.3 to 5 and remaining half share of the passage can go to plaintiff and defendants no.1,2,6,7 and 8. This would have been the better partition of the passage. However, the rooms shown by the defendants no.3 to 5 in red colour may be Page No. 5 of 9 Digitally CS DJ No. 580/2017 signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.02.15 16:00:25 +0530 taken by them for which the plaintiff has absolutely no objection. It is further submitted that in case the portion of the defendants no.3 to 5 would be lesser by dividing the passage, the same can be compensated by giving some portion out of the portion shown in yellow colour.
10. Defendants no. 3 to 5 filed a rejoinder to the reply and did not agree with the proposal of plaintiff.
11. Therefore, the parties apparently were not agreeing to each other's suggestions at all. Then repeatedly the parties took time to negotiate an amicable way of partition of property which could be acceptable to all but finally the negotiation failed.
12. I have considered the report of the local commissioner and the objections filed by the parties and the proposals given by them.
13. After perusing the report of the local commissioner, I find that the local commissioner has not suggested any logical mode of partition.
14. The first mode which the local commissioner has suggested is, that as per the site plan filed by the local commissioner, which was at page no. 41 of his report, defendants no. 3 to 5 could get their portions on all the floors and can use the rear entrance.
15. However, as per the said site plan, the defendants no. 3 to 5 have been shown in occupation of portions shown in violet colour and it is evident that on each floor, these portions are scattered in different portions of the property. Then how could there be a proper partition of shares is unfathomable.
Digitally
signed by
PARVEEN
Page No. 6 of 9 PARVEEN
SINGH
SINGH
Date:
2025.02.15
CS DJ No. 580/2017
16:00:34
+0530
16. Similarly, the second suggestion given was that defendants no. 3 to 5 should be given 70 sq. meters on the ground floor and first floor and 35 meters to others on each floor. However, which portion is to be given to which person or party has not been specified.
17. Similar is the fate of third suggestion given by the local commissioner. Therefore, I find that as no proper site plan has been filed by the local commissioner depicting how the partition is to be done, the report of the local commissioner has to be rejected.
18. Coming on to the proposal given by defendants no. 3 to 5, I find that first of all, it is not acceptable to the other parties. Secondly, the property is situated in such a manner and possession of the parties is of such a nature that they are having possession in almost every side of the property. Therefore, defendants no. 3 to 5 have to shift to one side and the other parties have to shift to other side and still there will be a problem of exit and entry. None of the parties, specially defendants no. 3 to 5, are agreeable to having a shared common area from the main entrance of the street which is more than 12 feet wide.
19. At the same time, none of the parties has agreed to accept rear entrance as their allotted entrance and that is rightly so because, the said street is stated to be 3.5 feet wide and it cannot be said to be an equitable partition.
20. Even otherwise, dividing the property into one share of 70 sq. meter and 07 shares of 35 sq. meters each would amount to ghettoization of Page No. 7 of 9 Digitally CS DJ No. 580/2017 signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.02.15 16:00:42 +0530 property and reconstruction is not possible as the property is a heritage property. Therefore, I find that it is not possible to divide this property by metes and bounds. Therefore, in order to give the shares of the parties, it has to be sold off.
21. It is therefore ordered that the property bearing no. H. No. 1248/1249, Rang Mahal, Behind Novelty Cinema, S.P.M Marg, Delhi-110006, measuring about 280 sq. meters be sold off and out of the sale proceeds, the parties be given following shares:-
Party Name Share Plaintiff Raj Kumari Dubey 1/8th share Defendant no. 1 Vijay Shankar Dubey 1/8th share Defendant no. 2 Rajesh Shankar Dubey 1/8th share Defendant no. 3 Dhiraj Dubey Defendant no. 4 Vishal Dubey 2/8th share Defendant no. 5 Kumari Amrita Dubey Defendant no. 6 Saroj Sukla 1/8th share Defendant no. 7 Sunita Sharma 1/8th share Defendant no. 8 Kumari Sushma Dubey 1/8th share
22. Decree sheet be prepared/ engrossed accordingly on the stamp paper supplied by parties on the value of their share at circle rate in force as on date, in accordance with Article 45 Schedule 1 of the Indian Stamp Act Page No. 8 of 9 Digitally CS DJ No. 580/2017 PARVEEN signed by PARVEEN SINGH SINGH Date:
2025.02.15 16:00:53 +0530 as applicable to Delhi. The final decree is compulsorily registrable under Section 17(1) of the Registration Act, 1908. No order as to cost.
23. File be consigned to record room. Digitally signed by PARVEEN PARVEEN SINGH SINGH Date:
2025.02.15 16:00:59 +0530 Announced in the (PARVEEN SINGH) open court on 15.02.2025. District Judge-11, Central Distt. (This judgment contains 09 pages Tis Hazari Court, Delhi. and each page bears my signature.) Page No. 9 of 9 CS DJ No. 580/2017