Delhi District Court
2 Shri Anil Kumar Yadav vs Shyam Bai (Deleted - Ref. To Order Dated on 4 August, 2018
IN THE COURT OF DR. SAURABH KULSHRESHTHA,
ADDITIONAL DISTRICT AND SESSIONS JUDGE,
PATIALA HOUSE COURTS, NEW DELHI
Suit No. 12592/2016
IN THE MATTER OF:
1.Lt. Col. Gaj Singh Yadav (Retd.) S/o Late Ch. Surat Singh Through LRs:
1.1 Sh. Pawan Kumar Yadav S/o late Lt. Col. Gaj Singh Yadav R/o N-21, Greater Kailash-1 New Delhi-110048 1.2 Shri Anil Kumar Yadav S/o Late Lt. Col. Gaj Singh Yadav R/o 105A, Kanchenjunga Apartments Sector-53, Noida, UP.
............Plaintiffs VERSUS
1. Shyam Bai (Deleted - Ref. to Order dated 05.08.1986)
2. Sh. Satish Chander Yadav S/o Late Ch. Surat Singh Through LR's:-
2 (a)Smt. Shail Yadav W/o Later Sh. Satish Chander Yadav R/o 737, Church Mission Road Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 1 of 44 2nd Floor, Shib Sahai Building Fatehpur, Delhi-6 2 (b)Ms. Smita Chaudhry D/o Late Sh. Satish Chander Yadav R/o 737, Church Mission Road 2nd Floor, Shib Sahai Building Fatehpur, Delhi-6 2 (c) Ms. Poonam Chaudhry D/o Late Sh. Satish Chander Yadav R/o E-39A, East of Kailash, New Delhi 2 (d) Ms. Nandita Chaudhry D/o Late Sh. Satish Chander Yadav R/o 737, Church Mission Road 2nd F loor, Shib Sahai Building Fatehpuri, Delhi-6.
2 (e) Ms. Sonal Chaudhry D/o Late Sh. Satish Chander Yadav R/o 737, Church Mission Road 2nd Floor, Shib Sahai Building Fatehpuri, Delhi-6 2 (f) Sh. Ashutosh Chaudhry S/o Late Sh. Satish Chander Yadav R/o 737, Church Mission Road 2nd Floor, Shib Sahai Building Fatehpuri, Delhi-6
3. Ms. Sushila Yadav D/o Sh. Late Ch. Surat Singh 727/737, Church Mission Road, Fatehpuri, Delhi-6
4. Ms. Saroj Nalini Yadav ........ (Deceased) D/o Late Ch. Surat Singh.
Suit No. 12592/2016
Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 2 of 44 Through LR's:-
Defts : 2 (a) to 2 (f), 3, 5, 6, 7, 8, 9
5. Smt. Nirmala Devi W/o Late Sh. Surender Kumar Chaudhary R/o 727/737, Church Mission Road, Fatehpuri, Delhi-6
6. Smt. Anuradha Chaudhary D/o Late Sh. Surender Kumar Chaudhary R/o 727/737, Church Mission Road, Fatehpuri, Delhi-6
7. Ms. Hemangini Chaudhary D/o Late Sh. Surender Kumar Chaudhary R/o 727/737, Church Mission Road, Fatehpuri, Delhi-6
8. Ms. Mrinalini Chaudhary D/o Late Sh. Surender Kumar Chaudhary R/o 727/737, Church Mission Road, Fatehpuri, Delhi-6
9. Lt. Col. Atul Chaudhary (Retd.) S/o Late Surendra Kumar Yadav (aka Late Sh. Surender Kumar Chaudhary) R/o E-39A (East Wing) East of Kailash, New Delhi-110065 And also at 727/737, Church Mission Road, Fatehpuri, Delhi-6
10. Smt. Kamla Devi (Deceased) W/o Late Sh. Jaswant Singh Through LR on record : Deft. No. 11 Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 3 of 44
11. Ms. Taruna Yadav (Also LR of Deft. No.10) D/o Late Sh. Jaswant Singh C/o Ch. Sultan Singh, General Attorney Choudhary Automobile, 733, Church Mission Road, Delhi-6
12. Smt. Umrao Kaur (Deceased) W/o Late Ch. Narayan Singh Through LR's on record : Defts 13, 14, 15 & 16
13. Smt. Rajni Yadav (Deceased) D/o Late Ch. Narayan Singh Through LR's : 14, 15 & 16
14. Smt. Uma Yadav D/o Late Ch. Narayan Singh C/o Ch. Vijay Pal Singh PO Sardhana Village Ghazipur, Tehsil Mawana District Meerut, UP
15. Ms. Bina Kumari Yadav D/o Late Ch. Narayan Singh C/o Ch. Vijay Pal Singh PO Sardhana Village Ghazipur, Tehsil Mawana District Meerut, UP
16. Smt. Usha Rani Yadav (Deceased) D/o Late Ch. Narayan Singh.
Through LR's :-
(a) Sh Ranbir Singh Yadav (Husband)
(b) Sh Vikas Yadav (son)
(c) Sh. Vivek Yadav (son) Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 4 of 44 All resident of:
House No. 728, Arun Vihar, Sector-37, Noida, UP.
17. Life Insurance Corporation of India C/o Zonal Manager, Northern Zone Jeevan Prakash-23, Kasturba Gandhi Marg New Delhi-110001. ..........
Defendants Date of institution of the Suit : 10.09.1975 Date on which judgment was reserved : 01.06.2018 Date of decision : 04.08.2018 Decision : Final Decree Passed SUIT FOR PARTITION
1. This is a suit for partition of the suit properties specified in Schedule A and Schedule B to the plaint which are as under:
Schedule 'A' Property at Delhi:
(I) Shib Sahai Building on Church Mission Road, Delhi, partly four storied, partly three storied and partly two storied, bearing Municipal Nos. 727, 727/1, 728 to 737 Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 5 of 44 in Ward No. III on original site measuring 1040 square yards and bounded by as under :
North : Sarai Ahmed Pai (now Hotel Vikrant) and Mosque.
South : Green Hotel and Delhi Cloth Market, Delhi East : Main Church Mission Road, Delhi West : Delhi Cloth Market Buildings / drain. Schedule 'B'
(II). Properties at Village Kosli, District Rohtak, Haryana
(a) Agricultural unirrigated land measuring 2 acres (16 kanals) in khasra no. 261, rectangle no. 4, square no.
23, 24 and 25 in halqa Kosli.
(b) Baithak Pucca House No. 732
North : Public thorough fare
South : House of Umrao Singh, Randhir Singh
and others
East : Vacant Common land plot
West : House of Sri Ram
(c) Pucca Double storied Residential House No. 716 North : Main gate and thorough fare South : Houses of Ganga Ram, Nihal Singh and others East : Vacant plot of land of Nihal Singh and others West : Public thorough fare
(d) House near well bearing house no. 718 North : Wall and vacant plot.
South : Houses of Shohtaj Singh, Peerdan Nai Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 6 of 44 East : House of Nihal Singh West : Lane
(e) Pucca House bearing no. 728 North : House of Sri Ram and Zorawar Singh South : Entrance and through fare East : Lane and house of Umrao Singh West : Houses of Hari Singh and Zorawar Singh
(f) Vacant plot of land within "Laldora"
North : Public thorough fare
South : Public thorough fare
East : Plots of Hari Singh and Sumer Singh
West : Plots of Hari Singh and Sumer Singh
(g) Vacant plot of land (partly enclosed within Laldora) North : Gate and village common land South : Plot of Ch. Duli Chand East : Thorough fare West : Land of the Math.
2. Thereafter vide order dated 19.04.1989 preliminary decree for partition was passed declaring that the parties to the suit are entitled to the following shares in the properties specified in Schedules 'A' and 'B':
(1) Lt. Col. Gaj Singh Yadav (Retd.) - Plaintiff 300/3600 (2) Shri Satish Chandra Yadav - Defendant no. 2 432/3600 (3) Kumari Sushila Yadav - Defendant no. 3 Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 7 of 44 48/3600 (4) Kumari Saroj Nalini Yadav - Defendant no. 4 48/3600 (5) Smt. Nirmala Yadav - Defendant no. 5 72/3600 (6) Smt. Anuradha Chaudhary - Defendant no. 6 16/3600 (7) Smt. Hemangini Dar - Defendant no. 7 16/3600 (8) Smt. Mirnalini Chaudhary - Defendant no. 8 16/3600 (9) Major Atul Chaudhary - Defendant no. 9 312/3600 (10) Mrs. Kamla Yadav - Defendant no. 10 600/3600 (11) Ms. Taruna Yadav - Defendant no. 11 600/3600 (12) Smt. Rajni Yadav - Defendant no. 13 285/3600 (13) Smt. Uma Devi Yadav - Defendant no. 14 285/3600 (14) Ms. Bina Kumari - Defendant no. 15 285/3600 (15) Smt. Usha Rani Yadav - Defendant no. 16 285/3600 Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 8 of 44
3. Thereafter vide order dated 06.05.1993 Hon'ble Mr. Justice D.R. Khanna (Retired) was appointed as Court Commissioner to suggest the mode of partition and he submitted his reports dated 10.02.1994 and 04.04.1994.
4. The Ld. Court Commissioner had made the following suggestions with respect to the Delhi property described in Schedule A to the plaint:
"....19. After giving out utmost considerations to the circumstances of the case, the pleas raised and feasibilities of the situation, we are filing plans marked A to D of the best possible mode of partition by metes and bounds of this property. Plan A is of the ground floor and is substantially the same as shown in plan 'Y' filed by defendants no. 2 to 8 and 10 and 11.
20. Plan B of the first floor is again substantially the same as shown in these defendants plan Y2 and plan X2 of plaintiff and defendants no. 13 to 16.
21. Plan C is of the second floor with some adjustments of Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 9 of 44 the plans submitted by the parties. This has been rendered necessary as defendants no. 2 to 9 would like to retain their extensive possessions in this floor and defendants no. 10 and 11 would like to disturb those possessions. Adjustments have, therefore, been made from the portion of the plaintiff and defendants no. 13 to 16. These defendants have given up their claim to possession of two rooms 737/S-16 and 737/S-17 and the corridor in front.
22. Plan D is of the third floor, and here again adjustments have been made from the two plans submitted by the parties. Rooms 737, T-3 and T-4 along with store / toilet have been allotted to the defendants No. 10 and 11 as they wanted portions in the front side of the building, as has been given to them on the ground and first floors. Defendants no. 2 to 9 must restore / part with some possession on this floor to defendants no. 10 and 11 as they already have substantial portions in their actual possession on the second and third floors.
23. In these plans, marked A to D portions shown with red lines are given to defendants no. 2 to 9; portions in blue Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 10 of 44 shade are given to plaintiff and defendants no. 13 to 16 and portions shown with green line demarcations are allotted to defendants no. 10 and 11.
24. The yellow portions are left joint and for common use. Nobody would occupy or construct anything in these portions. In case any occupation or construction exists in these portions, they would be removed. This is subject to all the co-sharers consenting in future in writing to otherwise.
.......33. As an alternative, it is suggested that in case defendants no. 10 and 11 do not want the front portion 737/T-3 and T-4 and store and the open space behind them marked as A,B, C, D, E, F, G, H, I, J on the Third Floor Plan, then the same can be given to the plaintiff and defendants no. 13 to 16. This will however be restricted upto the dotted line in red marked as JIK towards north. In otherwise, plaintiff and defendants no. 1 3 to 16 will get alternative additional portion A, B, C, D, K, I, J apart from what has already been given to them i.e. R, M, P, C, B, A. The defendants no. 10 and 11 in alternative get additional Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 11 of 44 portion MNOP apart from the green portion already given to them on this floor. In addition, the defendants no. 10 and 11 will get exclusively the yellow portion on this third floor plan, as the plaintiff and defendants no. 13 to 16 will have right or access to their portion on the third floor through the stairs in their portion from the second floor. The portion towards north side of red dotted link JIK will form part of the red portion of defendants no. 2 to 9 on this floor......."
5. The Ld. Court Commissioner had made the following suggestions with respect to the properties at Village Kosli, Haryana (except the agricultural land) specified in Schedule B to the plaint :
"...6. Accordingly, we suggest the following mode of partition :
(a) Lt. Col. Gaj Singh, plaintiff and Smt. Rajni Yadav, Smt. Uma Devi Yadav, Smt. Bina Kumari and Smt. Usha Rani, defendants No. 13 to 16 be allotted :
(i) Haveli No. 716 with area 1316 square feet shown in Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 12 of 44 plan marked 'M'.
(ii) Naura No. 718 with area 1153 square feet shown in plan marked 'N'.
(iii) Open plot with area 1331 square feet shown in plan marked 'O'.
The plaintiff and defendants no. 13 to 16 will enjoy these properties jointly or severally as they may choose.
(b) Defendants no. 2 to 11, viz., Shri Satish Chandra Yadav, Ms. Sushil Yadav, Ms. Saroj Nalini Yadav, Smt. Hemangani Dar, Smt. Mrinalini Choudhary, Major Atul Choudhary, Smt. Kamla Yadav and Ms. Taruna Yadav are proposed to be given the following properties :
(i) Baithak No. 732 with area 2037 square feet shown in plan marked 'P'.
(ii) Naura No. 728 with area 1925 square feet shown in plan marked 'Q'.
(iii) Plot with walls in three sides and the fourth side opening into village Math having area of 2356 square feet shown in plan marked 'R'.
Suit No. 12592/2016
Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 13 of 44 These properties will be enjoyed by defendants no. 1 to 11 jointly or severally as they may choose....."
6. In so far as two acres of land situated at Village Kosli, Haryana is concerned, an application under Order XX Rule 18 CPC was moved on behalf of the LRs of the plaintiff for partitioning the said agricultural land by metes and bounds. However, the said application was dismissed as withdrawn on 28.03.2018. Even the Ld. Court Commissioner had observed in his report dated 04.04.1994 that the said report does not cover the joint agricultural land, which as directed by the Ld. Court, has to be partitioned by the Revenue authorities. This is also clear from the order dated 06.05.1993 passed by the Hon'ble High Court of Delhi. Be that as it may, in view of the provisions of section 111 read with section 158 of the Punjab Land Revenue Act, as applicable to the State of Haryana, the parties have to approach the appropriate Revenue authorities for partition, by metes and bounds, of the agricultural land situated at Village Kosli, Haryana, and Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 14 of 44 the jurisdiction of the Civil Court is barred. The said agricultural land shall therefore not form part of this final decree.
7. During the course of arguments an issue was raised by the LRs of the defendant no. 2 that 80 bighas of agricultural land at Village Kosli, Haryana was not included in the Scheduled properties and the same should also be included in the preliminary decree and application under Order 20 Rule 18 CPC was moved which was dismissed by my ld. predecessor vide order dated 03.02.2017. Thereafter the petition [CR(P) No. 96/2017] filed by the LRs of the defendant no. 2 by the Hon'ble High Court of Delhi was dismissed vide order dated 26.04.2018. Preliminary decree for partition was passed long back and the same has attained finality and therefore the inclusion of any such land in the preliminary decree or final decree does not arise at this stage. Even otherwise if any such agricultural land was/is available for partition, the partition of the same will have to be carried out by the concerned Revenue Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 15 of 44 authorities in terms of section 111 and Section 158 of the Punjab Land Revenue Act, as applicable to the State of Haryana.
8. Adverting to the reports of the Ld. Court Commissioner, it is seen that he had proposed the partition of the Delhi property by metes and bounds in three groups consisting of the parties to the suit. The first group consisting of the defendants nos. 2 to 9 was allotted the portion shown in red colour in the site plans annexed to the report. The second group consisting of the plaintiff and defendants no. 13 to 16 was allotted the portion shown in blue color in the site plans annexed to the report. The third group consisting of defendants nos. 10 and 11 was allotted the portion shown in green colour in the site plans annexed to the report. The properties at Village Kosli, Haryana were proposed to be partitioned by metes and bounds into two groups - first group comprising of the plaintiff and defendants no. 13 to 16 and the second group comprising of consisting of the defendants nos. 2 to 11. Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 16 of 44
9. The defendant no. 2 had preferred objections against the report of the Ld. Court Commissioner. The prime objection of the defendant no. 2 is that an excess area of 1249.90 square feet has been allotted to group II (plaintiff and the defendants nos. 13 to 16) in the entire property shown in Schedule A (Delhi property) more than the entitlement of Group I. It is further stated that a toilet measuring 6' X 7.3' at the first floor has been arbitrarily allotted to Group II. It is further stated that the Ld. Court Commissioner has committed an illegality by allotting corridors to the Group II. It is further stated that a wall on the first floor has been wrongly shown by the Ld. Court Commissioner. It is further stated that the wall on the second floor of the property has also been wrongly shown and the corridor has been arbitrarily allotted to Group II. It is further stated that bathrooms on the first floor and second floor have been wrongly allotted to the Group II. It is further stated that rooms shown as 737/T-3 and T-4 on the terrace are in possession of the defendant no. 2 since Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 17 of 44 very beginning and same has wrongly allotted to defendants no. 10 and 11. It is further stated Group II has been allotted frontage 58 feet whereas they are entitled to frontage of only 48 feet, out of the total frontage of 120 feet of the property. It is further stated that the defendants have been allotted back side of the premises on each floor without any justification. It is further stated that the site plans of the Ld. Court Commissioner are defective/ flawed. It is further stated that the Ld. Court Commissioner has referred to the value of different portions despite the fact that the Ld. Court Commissioner had not taken the assistance of any valuer. The LRs of the defendant no. 2 have prayed for setting aside of the report of the Ld. Court Commissioner.
10. Objections were also filed by the defendants no. 3 and 4. With respect to the Delhi property they contended that their group has been given 1446.34 sq. feet lesser area than their entitlement. In so far as the village properties are concerned defendants no. 3 and 4 have stated that the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 18 of 44 except the Haveli all other properties are in dilapidated condition and the Ld. Court Commissioner had not got the values of the said properties assessed. It is further stated that the value of the properties which have been allotted to plaintiff's group (Group I qua the Village properties) is much more than the value of the properties allotted to the group of the defendant no. 3 and 4. The said defendants have prayed for setting aside of the report of the Ld. Court Commissioner.
11. The defendants no. 14 to 16 had also filed objections stating that defendant no. 16 had moved an application before the Ld. Court Commissioner and an oral request was made by the defendant no. 14 that their shares should be separately demarcated in the block of 40% (comprising of the plaintiff and the defendants nos. 13 to
16). They have prayed for separation of their shares.
12. The defendant no. 9 had also filed objections to the report of the Ld. Court Commissioner but during the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 19 of 44 course of arguments he has neither addressed any arguments on the same nor he has pressed for the same. He has instead prayed for separation of his share.
13. During the course of arguments the defendant no. 9 had submitted that the defendant no. 10 had expired and the share of the defendant no. 10 had devolved upon the defendant no. 11. This position was not disputed. Thereafter the defendant no. 11 appeared before the court and filed her affidavit on 20.07.2016 stating that she has relinquished her share in the Delhi property in favour of the defendant no. 9 and her statement was also recorded. The defendant no. 9 has therefore contended that he acquires the shares of the defendants nos. 10 and 11 in the Delhi property.
14. During the course of arguments it was stated by the defendant no. 9 that he wants his share to be separated from Group I in the Delhi property and Group II in the Village property and his share be separately carved out Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 20 of 44 while passing the final decree. He filed his affidavit(s) with proposal(s) for inter se division amongst members of the groups. The defendants nos. 2 to 8 also stated that their shares be also separated. Afterwards the defendants no. 6 and 8 filed their affidavits stating that the share of the defendants nos. 6 to 8 be separated from the group and jointly allotted to defendants nos. 6 to 8. They also gave proposals for inter se division. The defendant no. 5 also made a request for separate allotment of her share in the Delhi property. She further sought to conditionally relinquish her share in the Village properties.
15. The attorney of the defendants nos. 14 and 15 had also stated that defendant no. 13 had expired and the share of defendant no. 13 had devolved upon the defendants nos. 14 to 16. He further stated that 2/3rd share of the defendant no. 13 and the share of the defendants nos. 14 and 15 be separated from the portion jointly allotted to the Group II (shown in blue colour in the site plans) in the Delhi property and Group I of the Village Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 21 of 44 property. It was also stated on behalf of the LRs of the defendant no. 16 that their share be also separated and allotted to them under the final decree. Affidavits and proposals were filed in this respect as well. Proposals for such inter se division were also filed on behalf of the LRs of the plaintiff also.
16. It has been further been stated that the defendant no. 4 had expired and a probate case in respect of the Will allegedly executed by defendant no. 4 is pending. It is further stated that if the probate is granted the share of the defendant no. 4 will devolve upon the defendant no. 3 and in case the probate is not granted the share of the defendant no. 4 will devolve upon the defendants nos. 2, 3, 5, 7, 8 and 9.
17. Thus the members of the groups constituted by the Ld. Court Commissioner had expressed their desire to separate from such groups and had prayed that they be allotted their share(s) after such separation while passing Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 22 of 44 the final decree. Thus now the suit properties cannot be straightaway partitioned by metes and bounds in terms of the reports of the Ld. Court Commissioner. However the LRs of the plaintiff and the defendant no. 9 suggested that proposals for inter se division of the properties by metes and bounds within the groups proposed by the Ld. Court Commissioner be called for and accordingly the parties were asked to submit the same. The parties thereafter gave proposals for the same.
18. The defendant no. 9 had filed his affidavit and has listed various options for division of the properties. He has first of all stated that his 42% share in the Delhi property be carved out from the ground upwards in a vertical manner. He has argued that such division would benefit the parties in the eventuality of reconstruction of the building. However, such vertical division is not possible in the existing superstructure and as on date the demolition and reconstruction of the building has neither been proposed by any person nor the same is straightaway Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 23 of 44 possible as there are various tenants in the building. The other options proposed by the defendant no. 9 in respect of the Delhi property as well as the Village properties are conditional and more specifically subject to the fact that the other parties agree not to file any appeal. None of the other parties have accepted the proposals of the defendant no. 9 nor they have undertaken not to invoke the appellate process, therefore, the proposals of the defendant no. 9 cannot be accepted.
19. The defendants no. 6 and 8 have filed their affidavits stating that they are jointly entitled to 852 square feet area in the Delhi property and 350 square feet area in the village property. They have sought allotment of four rooms and one shop in the Delhi property and 350 square feet in plot no. 732 of the village property. However, they have not specified as to which portion of the plot no. 732 of the village property is to be allotted to them nor they have given any justification for allotment of the four rooms in the Delhi property. The defendants no. 2(b) filed her separate Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 24 of 44 proposal but the same is not in line with the report of the Ld. Court Commissioner. She has sought allotment of rooms/ shops shown in red to the defendants no. 2, 3 and 4. However no explanation of or justification for the same has been given. Thus the same cannot be accepted.
20. The defendant no. 5 has stated that she be allotted four rooms on the ground floor facing Church Mission Road in the Delhi property however no justification for the same has been given. She has further stated that in so far as the village properties are concerned she shall relinquish her share in the village property in favour of his son i.e. the defendant no. 9, subject to the condition that the defendant no. 9 relinquishes his share in the agricultural land in favour of defendants no. 6, 7 and 8. This condition has not been fulfilled by the defendant no. 9 and therefore the proposal of the defendant no. 5 cannot be considered.
21. The LR of the plaintiff has submitted that the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 25 of 44 LRs of the plaintiff be allotted the portion shown in purple colour in site plan filed by him in the Delhi property. He has stated that although the LRs of the plaintiffs are entitled to 21% share of the Group II, however, area wise the purple colour portion reflects 30% of the area of the total area of group II. He has justified the same by stating that the value of purple colour portion would be much less than the entitlement of the plaintiff and in terms of money the other defendants i.e. defendants no. 14 to 16 would be getting more than 90% of the current value. Admittedly the division proposed by him would result in allotment of a far greater area than his share to him. The values of the different portions of the Delhi property have not been ascertained and therefore value based division is not possible.
22. Further with regard to the village properties the LR of the plaintiff has stated that he be allotted the Naura and open plot of land of 150 square yards and the Haweli be allotted to the other defendants. The area of the Haveli Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 26 of 44 is 1316 square feet, the area of the Naura No. 718 is 1153 square feet and the area of the open plot is 1331 square feet. Further the division proposed by him would result in allotment of a far greater area than his share to him. The values of the properties have not been ascertained and therefore value based division is not possible. The proposal has not been accepted by the defendants no. 14 to 15 who have contended that they may be allotted the haveli along with 700 sq. feet from the Naura. The LRs of defendant no. 16 further want their separate share. However which portions of which properties are to be allotted have not been specifically stated. Hence the division as proposed is not possible.
23. The result is that none of the parties have accepted the proposal(s) of the other parties.
24. In the judgment titled as Indu Singh v. Prem Chaudhary, 2018 SCC OnLine Del 8951 (FB) the Hon'ble High Court of Delhi has observed: Suit No. 12592/2016
Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 27 of 44 ".........16.(i) At this stage it will be extremely relevant to note two important aspects.
(ii) First aspect is that while Sub-Rule (2) of Order XX Rule 18 CPC provides that a court may on account of the facts and circumstances as regards the properties which are subject matter of the suit for partition, find that straightaway a final decree for partition cannot be passed giving physical shares in the joint properties to the joint owners, then therefore in such cases, the court passes only a preliminary decree declaring the shares of the parties, and that after passing of the preliminary decree, a court has; as per the last line and set of words of Sub-Rule (2) of Order XX Rule 18 CPC; powers to pass "such further directions as may be required". These words appearing at the end of the Sub-Rule (2) of Order XX Rule 18 CPC are very important and of great significance because these words in my opinion has removed the shortcoming which had still remained in spite of passing of the Partition Act as regards the situation when moiety or upwards of the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 28 of 44 shareholders did not want sale of the suit properties. With respect to properties which were not subject matter of payment of land revenue to the government, then with respect to such properties which are subject matter of Order XX Rule 18 Sub-Rule (2) CPC, court was given intendedly the power to pass such further directions as may be required, and such a wide expression therefore in my opinion will entitle a civil court to order for sale of the joint property/properties even if moiety or upwards of the shareholders do not want sale of the joint property/properties. This language of the last few words at the end of Order XX Rule 18 Sub-Rule (2) in my opinion becomes very important and relevant in today's age and date because a considerable number of immovable properties which are subject matter of suits for partition are properties which have been constructed many decades earlier and which is the next aspect which is being immediately adverted to hereinafter. Suit No. 12592/2016
Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 29 of 44
(iii) The second aspect is that over a period of time in urban areas the covered area of construction which is permissible on a plot has been steadily increasing. For example in Delhi previously on a plot ordinarily a ground floor, first floor and a barsati floor (part second floor) was only allowed to be constructed. Barsati floor means that the entire second floor is not allowed to be covered but the second floor which is called as a barsati floor is allowed to be only partly covered. The municipal law thereafter changed whereby almost the entire second floor was allowed to be covered. Thereafter, the municipal law has further changed and a third floor was allowed to be constructed, besides allowing construction of a basement on a property. Now in addition to a plot having a basement and four floors, in view of the scarcity of parking of vehicles in a city like Delhi on account of the existence of unending number of vehicles, stilt parking is also permitted to be made below the ground floor and above the basement floor. Since the ultimate object and the real intention of the joint properties being partitioned is to give a person his Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 30 of 44 monetary value equivalent of his percentage share in the joint property/properties, and since now additional Floor Area Ratio (FAR)/covered area is permissible, therefore in old constructed properties, simply by physically dividing the existing construction the same does not result in a person getting his monetary value of his percentage share in the joint property/properties. Partition therefore really in today's date and age in urban areas is a partition in terms of FAR/covered area, and once that is so, then on such FAR/covered area being available to a co-owner/joint owner then such a person may/would/could want to reconstruct for enjoying more constructed area falling to his share, and which will necessarily require bringing down the old construction and thereafter making fresh construction on the plot of basement plus four floors and stilt parking. Thus in very old constructed properties simply physically partitioning of such joint property/properties is not the answer, and the joint property/properties in many cases have necessarily to be sold so as to give a person his actual monetary share value in the joint property/properties. At Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 31 of 44 this stage I would hasten to add that with respect to sale of a joint property, the entitlement of a co-owner in terms of Sections 3, 4, 6 and 7 of the Partition Act come in, whereby on an order being passed of sale of a joint property, the sale is not necessarily and firstly by public auction/sale, because firstly in the sale proceedings, one or more co-owners can buy out the other co-owner/co-owners i.e. rights of pre- emption.
(iv) Therefore in my opinion the words as found in the last line of Sub-Rule (2) of Order XX Rule 18 CPC would result in a position that as of today there no longer exists any gap or shortcoming or failing which would result in a stalemate if joint owner(s), having less than a 50% share, ask for his/their share by filing a suit for partition of the joint property/properties...."
25. In view of the above I am of the considered opinion that final decree partitioning the property by metes and bounds in terms of the reports of the Ld. Court Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 32 of 44 Commissioner or in terms of the proposals given by the parties or otherwise cannot be passed because of the following reasons:
(i) The reports of the Ld. Court Commissioner were given in the year 1994 however the final decree could not be passed and more than 23 years have elapsed and much water has flown since then and there has been substantial change in circumstances.
(ii) In a suit for partition the endeavor should be to separate the share of each party and allot the same to such party separately, if so desired by such party, so that there is an end to litigation. The parties to the suit, being the members of the groups constituted by the Ld. Court Commissioner for the purpose of division of the suit properties by metes and bounds, have themselves expressed their desire to separate from such groups and have prayed that they be allotted their share(s) after such separation while, passing the final decree. The unwilling parties therefore cannot be forced to jointly enjoy their Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 33 of 44 shares with others as per the groups constituted by the Ld. Local Commissioner. The fact that earlier they might have agreed for taking the property jointly in groups would not preclude them from demanding their shares separately as final decree has yet not been passed and more over 23 years have elapsed after submission of the report of the Ld. Court Commissioner. In fact the defendants nos. 14 and 16 had contended that they had even made such a request before the Ld. Court Commissioner that their portion be separately demarcated. Once that is the position the partition by metes and bounds by allotment of portions to the parties jointly as per the groups proposed in terms the reports of the Ld. Court Commissioner cannot be done.
Thus the suit property cannot be partitioned by metes and bounds straightway in terms of the reports of the Ld. Court Commissioner.
(iii) The Court had made attempts to find out a suitable plan for inter se division amongst the members of the groups constituted by the Ld. Court Commissioner. Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 34 of 44 Various proposals and plans were filed by the parties. However the parties have not been able to arrive at a consensus on such division despite numerous hearings. I have also considered these proposals. Most of the proposals are without adequate justification or are conditional in nature or are not feasible as noted hereinabove. At any rate even as per the said proposals partition of the suit properties by metes and bounds cannot be conveniently made in such a manner that the parties are allotted portions with exact area or nearly exact area falling within their shares. This was also one of the prime objections of the parties to the Ld. Court Commissioner's reports. Moreover if any specific rooms/ portions are proposed to be allotted to one party the other party has been raising one or the other grievance. With respect to the village properties no proper plans showing specific area to be allotted to the each party have been filed nor proper justification has been given.
(iv) Further the values of the different portions of Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 35 of 44 the suit properties were never ascertained and thus it is not possible to partition the suit properties having regard to the values of different portions of the suit properties. In such circumstances on the basis of the material available on record it is also not possible to determine the owelty and direct partition the suit properties by metes and bounds with payment of owelty.
(v) The inter se division amongst members of various groups, carved out by the Ld. Court Commissioner or otherwise, cannot also be conveniently made as it not possible to allot separate shares to the members of the groups while: taking care of area aspect as per their shares; taking care of value aspect as per their shares; respecting the actual possession of the co-sharers; avoiding division of existing tenancies; providing separate entrances to the portions of each party and maintaining contiguity.
(vi) The defendant no. 4 has expired and a probate case in respect of the Will allegedly executed by defendant Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 36 of 44 no. 4 is pending. As per the own submissions of the parties if the probate is granted the share of the defendant no. 4 will devolve upon the defendant no. 3 and in case the probate is not granted the share of the defendant no. 4 will devolve upon the defendants nos. 2, 3, 5, 7, 8 and 9. Thus the dispute with respect to the share of the defendant no. 4 cannot be decided till the probate petition is finally decided and this is again a roadblock to the physical division of the suit properties.
(vii) The suit properties comprise of old constructions and in due course there may be a need to pull down the old constructions and raise new constructions and in such a scenario any division by metes and bounds, as suggested, would be counter productive and would lead to multiplicity of litigation in future. Lot of area is also being wasted as common area in case partition by metes and bounds is allowed.
(viii) The LRs of the defendant no. 2(b) submitted that Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 37 of 44 the possession of one of the Village properties (adjacent to the 'Math' in Village Kosli) was parted with by the defendant no. 11 but no material in this respect was produced. The defendant no. 11 denied the same and submitted that a third party has unlawfully occupied the same. The defendant no. 11 further submitted that the as per the Commissioner's report the same fell with the share of the other defendants and it was for the other defendants to have taken steps for protection of the possession of the same. But the report of the Court Commissioner was suggestive and final division cannot be said to have been effected unless final decree has been passed. Be that as it may the fact of the matter on the basis of the submissions of the parties is that one property in the Village has been occupied/ encroached upon by a third party and therefore none is willing to accept the same in his share during final allotment.
(ix) The parties have not given any proper plans or proposals with appropriate justification for division of the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 38 of 44 suit properties de hors the plans submitted by the Ld. Court Commissioners. The suit was filed in the year 1975 and preliminary decree was passed on 19.04.1989 and the matter has been pending since then for passing of the final decree. Keeping in mind that this suit is a one of the oldest cases pending in the Court it would not be appropriate to appoint any other Court Commissioner and/ or Valuer to suggest afresh any other mode of partition by metes and bounds.
(x) In the opinion of the Court the division of the suit properties by metes and bounds cannot be conveniently made keeping in mind the nature of the suit properties and the large number of parties to the suit and in view of the fact that the same would result in further litigation in future as the parties are not on the same page and there is huge trust deficit.
26. In view of the foregoing reasons and in light of the judgment titled as Indu Singh v. Prem Chaudhary, Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 39 of 44 2018 SCC OnLine Del 8951 (FB) and the provisions of Order XX Rule 18 CPC, I hold that the suit properties cannot be conveniently partitioned by metes and bounds and therefore the most appropriate way to give effect to final partition of the suit properties is by sale of the suit properties. The objections to the reports of the Ld. Local Commissioner are therefore rendered infructuous.
27. In the judgment titled as Indu Singh v. Prem Chaudhary, 2018 SCC OnLine Del 8951 (FB) the Hon'ble High Court of Delhi has further observed:
"......I. An order of sale passed under Section 8 of the Partition Act is a final decree in a partition suit, and all proceedings towards sale of the property which is subject matter of the final decree of partition, have to take place in execution proceedings of this final decree. II. An order of sale in a partition suit passed under Section 8 of the Partition Act is an instrument of Partition under Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 40 of 44 Section 2(15) of the Stamp Act and requires to be stamped in accordance with Article 45 of the Schedule thereof....."
28. I therefore hold that keeping in mind the totality of the facts and circumstances of the case, final decree ought to be passed by ordering the sale of the suit properties mentioned in Schedule A and Schedule B to the plaint (except the agricultural land). The proceedings for sale, however if, necessary will take place in execution proceedings. The sale proceeds shall be distributed amongst the parties (or their successors in interest) in the ratio, as specified in the preliminary decree. The parties (or their successors in interest) to the suit may also participate and bid in the sale proceedings and if any of the parties turns out to be the highest bidder he may purchase the suit property(ies) and make the payment of the shares of the other parties to the others. The parties may, if they desire or if the Executing Court deems appropriate, go in for separate sale(s) of independent units available in the suit properties instead of en bloc sale. The modalities of the Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 41 of 44 sale may further be clarified/ modified/ decided in execution proceedings, as the case may be and the same would be subject to the final decision of the Executing Court.
29. Further in order to preserve the properties the parties to the suit are also required to be restrained from selling, alienating, transferring, parting with the possession or creating any third party interest in the suit properties till the time the suit properties are sold in execution proceedings and sale is finalized and acted upon. Further the rents/ damages already collected or which are subsequently collected from the tenants/ occupants in the suit properties shall also be divided/ distributed amongst the parties (or their successors in interest) in the ratio, as specified in the preliminary decree.
RELIEF
30. Accordingly, it is hereby directed that final decree for partition of the suit properties mentioned in Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 42 of 44 Schedule A and Schedule B to the plaint (except the agricultural land) be prepared ordering for sale of the suit properties. The proceedings for sale, however if, necessary will take place in execution proceedings. The sale proceeds shall be divided/ distributed amongst the parties (or their successors in interest) in the ratio, as specified in the preliminary decree. The parties (or their successors in interest) to the suit may also participate and bid in the sale proceedings and if any of the parties turns out to be the highest bidder he may purchase the suit property(ies) and make the payment of the shares of the other parties to the others. The modalities of the sale shall be finally determined in execution proceedings.
31. Accordingly final decree for partition is passed in the aforesaid terms. The parties to the suit are also restrained from selling, alienating, transferring, parting with the possession or creating any third party interest in the suit properties till the time the suit properties are sold in execution proceedings and sale is finalized and acted Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 43 of 44 upon. The rents/ damages collected or which are subsequently collected from the tenants/ occupants in the suit properties shall be divided/ distributed amongst the parties (or their successors in interest) in the ratio, as specified in the preliminary decree. Any of the parties are at liberty to get the final decree prepared by depositing the requisite non-judicial stamp papers. Final decree be prepared on payment of requisite stamp duty. Schedule A and Schedule B to the plaint shall form part and parcel of the final decree. Parties are left to bear their own costs. File be consigned to Record Room.
Digitally signedby SAURABH
SAURABH KULSHRESHTHA
KULSHRESHTHA
Date: 2018.08.07
16:59:39 +0530
(Dr. Saurabh Kulshreshtha)
Announced in the open Addl District & Sessions Judge Court on 04.08.2018. Patiala House Courts, New Delhi Note : This judgment has been passed in view of the transfer order no. 53/DHC/Gaz./G-1/VI.E.2(a)/2018 dated 04.06.2018 of the Hon'ble High Court of Delhi. Suit No. 12592/2016 Lt. Col. Gaj Singh and others v. Shyam Bai and others Page No. 44 of 44