Delhi District Court
Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta on 11 July, 2012
Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta
IN THE COURT OF SHRI INDER JEET SINGH, ADDL. DISTRICT JUDGE03,
ROOM NO. 309, SOUTH DISTRICT, SAKET COURTS, NEW DELHI
In the matter of
RCA
No. 34/2011
Sh. Surender Kumar Gupta
Deceased through Legal Representatives
i. Smt. Saroj Gupta W/o Late Sh. Surender Kumar Gupta.
ii. Dr. Manju Gupta D/o Late Sh. Surender Kumar Gupta.
iii. Dr. Manoj Kumar Gupta S/o Late Sh. Surender Kumar Gupta.
All R/o 11, Birbal Road, Jangpura Extension,
New Delhi - 110014.
...Appellants
Versus
Mahender Kumar Gupta S/o Sh. B.D. Vaish
R/o 11, Birbal Road, Jangpura Extension,
New Delhi - 110014.
...Respondent
Appeal Presented on : 20.12.2011
Date of Institution : 21.12.2011
Decision Reserved on : 26.05.2012
Date of Decision : 11.07.2012
JUDGMENT
( on Regular Civil Appeal under order XLI rule 1 r/w sec. 96 CPC)
1. The appellant Sh. Surender Kumar Gupta was plaintiff in original suit for partition, filed against Sh. Mahender Kumar Gupta/respondent. The suit was originally filed before Hon'ble High Court of Delhi, at later point of time on the eve of change/enhance of pecuniary RCA No. 34/11 Page No.1 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta jurisdiction of court of Civil Judge, it was assigned to the court of Civil Judge. The subject matter of suit was House No. 11, Birbal Road, Jangpura Extension, New Delhi, which is also subject matter of the present appeal (hence, hereinafter referred as appeal property). The court of Civil Judge passed preliminary decree on 22.12.2003. The final decree of partition has been passed by decree/order dated 24.11.2011 by the Court of Sh. Rakesh Kumar - III, Ld. Civil Judge, Delhi and appellant Sh. Surender Kumar Gupta (through her attorney/daughter Dr. Manju Gupta) filed the present appeal and assails order dated 24.11.2011. However, during the pending of appeal appellant Sh. Surender Kumar Gupta expired and by order dated 23.02.2012 his legal representatives have been substituted, as arrayed in the title of appeal. In order to appreciate the contentions of both sides in appeal, it requires to give introduction precisely, being narrated in paragraph 2.1 to 2.5 below: Introduction 2.1 Appellant/plaintiff filed the suit for partition of property/residential House No. 11. Birbal Road, Jangpura Extension, New Delhi (in brief the appeal property), against the respondent/defendant for decree of partition directing the partition of said property by metes and bounds in equal shares in favour of plaintiff/appellant and the defendant/respondent vis a vis to appoint a Local Commissioner, who may partition the property by metes and bounds and to put the parties in exclusive possession of their respective shares. The respondent/defendant contested the suit. Formal issues were also framed, followed by evidence of the parties. On 22.02.2003 the court of Sh. Prashant Kumar, Ld. Civil Judge, RCA No. 34/11 Page No.2 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta Delhi passed preliminary decree by holding that both the parties are entitled to half shares of the appeal property. A Local Commissioner was also appointed to suggest the mode of partition of the property. 2.2 The Local Commissioner Sh. Rajeev Aggarwal not only visited the appeal property but also held sessions with the parties to explore avenues of partition, he also took services of approved valuer and architect. The Local Commissioner report was furnished on 01.03.2004 by concluding that appeal property cannot be divided equally by metes and bounds as it was existing on that day. It has also been opined that total area of property found was 650.97 sq yard on 20.02.2004 and it was not 609.75 sq. yard, suggested by the appellant/plaintiff. It was followed by objections dated 12.04.2004 by the appellant/plaintiff to the Local Commissioner report, accompanying record/annexures (I) to (V) that not only the appeal property is 609.75 sq yard, but also it divisible by partition and there is also site plain annexure (V) by registered architect reflecting possibility of division by metes and bounds and there is also request in the objections to pass the final decree of partition as per site plan/annextureV proposed. The respondent/defendant replied/filed the objections on 26.08.2004 and appellant/plaintiff filed the rejoinder on 01.10.2004. In addition written submissions were filed on 20.08.2004 by the appellant and by the respondent followed by reply and rejoinder; the respondent requested to put the appeal property to public auction and the proceeds thereof to be distributed in equal shares between the plaintiff/appellant and the defendant/respondent, since there was local commissioner report, the building was old and litigation was pending since 1982. Whereas, the RCA No. 34/11 Page No.3 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta appellant requested to pass a final decree of partition by metes and bounds in equal shares between the plaintiff/appellant and the defendant/respondent in terms of prayer of the plaint and as per site plan/annexure (V) prepared by the architect and furnished with the objections, as partition of the property is feasible. 2.3 By order dated 17.05.2005 the court of Ld. Civil Judge concluded that as per record, all the efforts for partition of suit property by metes and bounds have been failed and as per Local Commissioner report the property cannot be partitioned physically as onehalf each party, it was directed the appeal property be put to sale by auction, final decree of partition be prepared.
The plaintiff/appellant preferred an appeal RCA No. 26/27.06.2005 before the court of Ld. Additional District Judge, against the order dated 17.05.2005 and the court of learned Additional District Judge by judgment dated 13.12.2006 set aside order dated 17.05.2005 and remanded the suit to trial court with directions to decide the objections filed by the parties to the report of Local Commissioner and pass a fresh final decree in accordance with law and both parties were directed to appear before the trial court on 22.12.2006 at 2 pm. 2.4 On 22.09.2007 appellant/plaintiff's wife and power of attorney holder filed an application under section 3 of Partition Act 1893 for grant of preemptive right to the appellant/plaintiff to buy the share of respondent/defendant. On 01.04.2010, the respondent filed an application under section 151 CPC that he has no objection in accepting the mode of partition of property as suggested by the plaintiff/appellant, proposed in RCA No. 34/11 Page No.4 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta site plan annexure V and dividing th property into two equal portions, portion A and Portion B of 2744 sq. feet each.
By order dated 21.08.2010 the plaintiff/appellant's application dated 22.09.2007 was dismissed. The appellant filed petition CM No. 1275/2010 before Hon'ble High Court of Delhi against order dated 21.08.2010, however, the appellant's petition was dismissed on 26.10.2010 and plaintiff/appellant filed a Review Petition No. 510/2010 of review of order dated 26.10.2010, the Review Petition was also dismissed on 17.08.2011 by observing that the matter is yet to be adjudicated upon, prima facie finding is yet to be returned whether the property is capable or incapable of division by metes and bounds. The Review Petition was dismissed. Then appellant/plaintiff challenged order dated 17.08.2011 in S.L.P (C) No. CC 20099 - 01/2011 before Hon'ble Supreme Court of India.
But in the meantime (during the pending of Special Leave Petition), the trial court decided on 24.11.2011 the respondent/defendant's application dated 01.04.2010 U/s 151 CPC , in favour respondent and against the appellant/plaintiff, and suit has also been decided by concluding as a final decree. The appellant withdrew the said SLP on 09.12.2011. The appellant is aggrieved by the decree/order dated 24.11.2011, and the findings returned on the respondent's application dated 01.04.2010 under section 151 CPC.
2.5 The trial court in order dated 24.11.2011 not only narrated the case of both parties and their contentions and the proceedings but also considered their submissions and came to the conclusion that the plaintiff/appellant in his objections also proposed mode of partition and RCA No. 34/11 Page No.5 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta such an offer may be accepted under common law or on the eve of admissions, judgment may be passed straightaway. Further the respondent/defendant had made objection about the mode of partition suggested by the appellant/plaintiff but by virtue of application U/s 151 CPC, the respondent/ defendant accepted the mode of partition and there is no bar to consider it and to allow the application, particularly in the larger interest of justice that the case was filed long back in the year 1982 and preliminary decree for partition was passed on 22.12.2003. In addition there is a prayer clause in the suit, which is similar to the mode of partition suggested in the appellant/plaintiff's objections to the Local Commissioner report, it has also been accepted by the respondent/defendant, he cannot be stopped at this stage to accept the same and it cannot be construed that for want of consent of appellant/plaintiff on such proposed mode of partition, the suit cannot be partitioned finally. The application was allowed for final decree to partition the appeal property as per annexure V appended with the objections of appellant/plaintiff. The application as well as objections were also disposed of.
3.1 The appellant assails the order dated 24.11.2011, in appeal followed by final written arguments, firstly, on the eve of formation and opening of Saket District Court, in was incumbent upon Ld. Civil Judge to transfer the suit to Saket District Court, an application for transfer of suit was filed. Secondly, the trial court in paragraph 7 of order dated 24.11.2011 wrongly held that the suit property had already been partitioned in the year 1965, therefore, such findings are contrary to the preliminary decree/judgment dated 22.12.2003.
RCA No. 34/11 Page No.6 of 14Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta 3.2 The impugned decree/order suffers from illegality, impropriety and unsustainable under the law. The findings have been returned without disposal of objections of the parties to the report of Local Commissioner, which were also the directions to the trial court by order dated 13.12.2006 in appeal No. RCA 26/2005 and also in (Review Petition) order dated 17.08.2011, it was observed that objections were yet to be decided by the trial court. Order XXIII rule 3 CPC talk of compromise of suit but it should be proved to the satisfaction of the court that suit has been adjusted by lawful agreement or compromise, whereas, neither there was any offer nor any acceptance or consent of the parties in respect of division of the property as ordered by the trial court. For want of any agreement or compromise in writing, the findings returned in order dated 24.11.2011 are liable to be set aside, there could not be a consent decree. There is right accrued in favour of appellant/plaintiff under section 3(1) of Indian Partition Act, he is entitled to have preemptive right and to purchase the share of respondent, since the respondent has expressed his intentions that the appeal property cannot be partitioned by metes and bound and it should be put to public auction and proceeds thereof should be divided equally, the preemptive right accrued in favour of appellant/plaintiff cannot be denied nor the partition should have been directed as concluded in order dated 24.11.2011. Therefore, the impugned order is liable to be set aside.
3.3 The written arguments are reflection of the appeal by reiterating that there is already an observation in order dated 17.05.2005 that the property cannot be partitioned by metes and bound and the RCA No. 34/11 Page No.7 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta questions raised in appeal are in favour of appellant/plaintiff that neither there can be consent decree nor there was any joint application of the parties nor the appellant had given his consent to the application of respondent to pass the decree, there could not have been a final order or decree or consent decree directed by the trial court. The rights of pre emption has been accrued in favour of appellant under section 3 of the Partition Act, 1893, the same cannot be extinguished by such order, otherwise objections to Local Commissioner's report are yet to be disposed of by the trial court. The appellant fortfies his contentions while referring:
1. Amteshwar Anand vs Virender Mohan Singh & Ors 2006 (1) Apex Court Judgments 343 - held that the provisions of order XXIII rule 3 CPC casts an obligation on court to be satisfied that a suit has been adjusted wholly or in part by a lawful agreement or compromise in writing and signed by the parties.
2. M/s Sanghi Enterprises vs S.M. Khan, 2001 (1) Civil Court Cases 560 (P&H) - held that courts to obtain written compromise from the parties before recording their statements.
3. Jawan vs Mewa Singh 2001 (2) PLR 397: 2001 (3) RCR (Civil) 343 (P&H) - held that when one party pleads compromise but the other party denies it, it is the duty to court to adjudicate upon the issue of compromise.
4. Whereas the respondent by way of written submissions and arguments, opposed the appeal, while supporting the findings returned in final decree/order dated 24.11.2011 that it is a well reasoned judgment and it cannot be questioned in the present appeal nor it is permissible under RCA No. 34/11 Page No.8 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta the law to challenge such reasoned judgment. During the course of trial the appellant voluntarily and without any fear or force from any quarter suggested a mode of partition by filing site plan/annexure V and the respondent honestly admitted and agreed to the said proposal made by the appellant and believing it, the trial court passed the judgment/decree and settled all dispute between the parties, qua mode of partition. There is no merit in the appeal as the impugned order is exhausted reasoned order, dealing with all aspects of case of the parties. The appeal is liable to be dismissed.
5.1 (Findings): The contentions of both the sides are assessed in the light of material on record, inclusive of trial court record and the provisions of law. The points raised are taken one by one.
5.2 The appellant requests that an application for transfer of suit (No. 1465/2006, from which the present appeal is arising) was filed but the Ld. Civil Judge, Tis Hazari, Delhi, had not transferred the case to the Saket Court. This argument does not sustain, firstly petition for transfer of case lies under Section 24 of CPC and that too before the Superior Court for transfer of case from one district to another; secondly, the District Court at Saket Court Complex was made functional by notification dated 26.08.2010, whereby the cases pertaining to south civil district and south east police districts functioning from Patiala House Courts Complex were shifted to Saket Courts Complex. The suit No. 1465/2006 was pending before Ld. Civil Judge, Tis Hazari, Delhi and notification dated 26.08.2010 was in respect of civil cases pending in courts functioning from Patiala House Courts. Lastly, the present appeal does not pertain to the application RCA No. 34/11 Page No.9 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta for transferring the suit to Saket Courts but it is in respect of impugned order dated 24.11.2011.
5.3 The appellant has pointed out that in para 7 of impugned order dated 24.11.2011, the trial Court recorded that there is already partition in the year 1965, whereas preliminary decree of partition was passed on 22.12.2003. But this objection also does not sustain as paragraph 7 is the recording of submissions of the parties and it is not the finding of the trial Court. The preliminary decree was passed on 22.12.2003. 5.4 It is matter of record that after preliminary decree dated 22.12.2003, Local Commissioner Sh. Rajeev Aggarwal filed his detailed report accompanying valuation of the property as well as his opinion that the property cannot be divided by metes and bounds, both the parties have filed their objections, the appellant/plaintiff in his objections also filed supporting documents. Prior to defendant's application dated 01.04.2010, he was maintaining that the appeal property cannot be partitioned by metes and bound being the opinion of Local Commissioner visavis other factors and let it be auctioned and proceeds be divided between the parties. On the other side, the appellant/plaintiff, since his objections dated 26.03.2004, has also been maintaining that the property can be divided by metes and bounds and a Registered Architect Sh. Anant Khattar has also prepared the site plan (annexure V) depicting equal portions of 2744 sq ft. each (i.e of 609 sq yard).
The appellant contends that by virtue of respondent/defendant's stand that the property cannot be divided by metes and bounds and it is to be auctioned, accrues right of appellant to RCA No. 34/11 Page No.10 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta buy respondent's share pursuant to provisions of the Partition Act, which cannot be denied by permitting the respondent's application dated 01.04.2010 u/s 151 CPC. However, the plea does not sustain for the following reasons:
(a) The appellant based his contention on order dated 17.05.2005 that the civil Court held that the property cannot be divided physically and Local Commissioner also reported so visavis the respondent/defendant has also requested for sale of the property in auction, whereas the reason is misplaced, since order dated 15.05.2005 was set aside in appellant's another appeal No. 26/2005 by the Court of Ld. Additional District Judge, Delhi. The said order dated 17.05.2005 is nonest, therefore, now it cannot be construed findings of the Court.
(b) There is Local Commissioner report dated 01.03.2004, suggesting that the property cannot be divided by metes and bounds on such date.
The report of Local Commissioner is an opinion, which may be accepted and it may not be accepted.
(c) There is also appellant's objections dated 26.3.2004 to Local Commissioner's report while opposing the Local Commissioner report dated 01.03.2004 and making counter submissions along with site/layout plan (annexure V) prepared by Sh. Anant Khattar, Architect that the appeal property can be divided/partitioned by metes and bound.
(d) The order dated 17.05.2005 of Civil Court is nonest. On the one side, there is Local Commissioner's report that the property cannot be divided by metes and bound and simultaneously on the other side there is another expert report and site plan(annexure V) proposing possible RCA No. 34/11 Page No.11 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta partition by metes and bounds in equal two parts, both are standing parallel to each other.
(e) The appellant perceives that because of respondent's stand, the preemptive right to buy respondent's share is existing but on the same footing it can also be said that appellant's report, alongwith the objection is still subsisting proposing division of the property by metes and bounds. The appellant cannot derive any benefit to say that the respondent cannot go back from his stand by putting application u/s 151 CPC. since appellant is also bound by his own report dated 26.03.2004, filed with objections to Local Commissioner's report, that the property is divisible by metes and bounds. That stand is still subsisting.
(f) The plaint does not mention total area of appeal property. However, It is mentioned in the Local Commissioner report that total area of the property is 650.97 sq yards, whereas according to appellant/plaintiff the area of property is 609.75 sq yards. The appellant/plaintiff has filed record of Delhi Development Authority and of Architect Anant Khattar's report that the area of plot is 609.75 sq yards(= 5488 sq ft.). The moment respondent conceded to accept the proposal of division of property as proposed by the appellant in his report dated 26.03.2004, it amounts to not pressing the earlier objections as well as that whatever is stated in the report of appellant/plaintiff, inclusive of area of 609.75 sq yards was acceptable to the appellant/plaintiff. The local commissioner's report also mentions about area of 609.75 sq yds.
(g) The trial Court in order dated 24.11.2011, not only disposed off the application u/s 151 CPC but also the objections of the parties in view of RCA No. 34/11 Page No.12 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta respondent's accepting the partition proposed in the appellant's report dated 26.03.2004 and demonstrated in the site/layout plan (annexure V). 5.5 The appellant has put much emphasis that objections were not disposed off by the trial Court, however, in view of respondent's application u/s 151 CPC, the objections were not pressed for. The objections of appellant were there but there was also plea that appeal property can be partitioned by metes and bound. There was another objection that the actual area of appeal property is 609.75 sq yard. Under such scenario, the appellant at the most could have established his objection with regard to the area, that has been conceded by the respondent by accepting the appellant's report dated 26.03.2004. The rest of the part of the objection was that property could be partitioned as reflected in layout plan (annexure V) that too was conceded/accepted by the respondent, therefore, the appeal carries no merit on this score, otherwise objection have also been disposed off by composite order dated 24.11.2011. 5.6 It is a fact that respondent's application dated 01.04.2010 u/s 151 CPC is not a joint application of the parties nor it bears signature of both sides nor the respondent filed it with the consent of appellant. However, it is also a fact that the trial Court has not passed a consent decree OR decree under compromise, therefore, provisions of Order XXIII CPC would not come into picture.
The trial Court considered the appellant's report dated 26.03.2004 with annexure V prepared by Architect and respondent filed the application u/s 151 CPC to accept those contentions of the appellant and consequently impugned order dated 24.11.2011 was passed, by disposing RCA No. 34/11 Page No.13 of 14 Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta off the application and the objections consequently, the suit has been disposed off as being final decree. There is no illegality or impropriety nor there is any reason to set aside the impugned order. Lastly, it is never the case of appellant that the partition mentioned in the report dated 26.3.2004 and depicted in the layout plan annexure V is not practicable.
6. In view of above discussions and conclusions, the trial Court decree/order dated 24.11.2011 is confirmed and the present appeal is dismissed with direction that for the purposes of convenience and practical purposes the layout plan/annexure V will constitute part of the decree of the trial Court. Both the parties will bear their own costs. Decree sheet be drawn accordingly. Interim order dated 21.12.2011 is vacated. The TCR be sent back to the trial Court/successor court, alongwith copy of present judgment. Appeal file is consigned to record room.
Announced in open Court (INDER JEET SINGH)
on 20th Asadha, Saka 1934 Addl. District Judge03, South District,
Saket/11.07.2012
RCA No. 34/11 Page No.14 of 14
Sh. Surender Kumar Gupta vs Sh. Mahender Kumar Gupta
RCA No. 34/11
11.07.2012
Appearance: Proxy counsel for appellant/plaintiff.
Proxy counsel for respondent/defendant.
Vide separate judgment announced today, the trial Court decree/order dated 24.11.2011 is confirmed and the present appeal is dismissed with direction that for the purposes of convenience and practical purposes the layout plan/annexure V will constitute part of the decree of the trial Court. Both the parties will bear their own costs. Decree sheet be drawn accordingly. Interim order dated 21.12.2011 is vacated. The TCR be sent back to the trial Court/successor court, alongwith copy of present judgment. Appeal file is consigned to record room.
(INDER JEET SINGH) Addl. District Judge03, South District, Saket/11.07.2012.
RCA No. 34/11 Page No.15 of 14