Delhi High Court
Sunil Gupta vs Nargis Khanna on 10 May, 2018
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th May, 2018 + CS(OS) 149/2011 & IAs No.6305/2011 (of defendant u/S 4 of Partition Act) & 17463/2013 (of defendant u/O VII R-11(d) CPC) SUNIL GUPTA .... Plaintiff Through: Mr. P.R. Agarwal, Mr. Y.R. Sharma and Ms. Apoorna Gulati, Advs. with plaintiff in person. Versus NARGIS KHANNA ......Defendant Through: Mr. Harkirat Sawhney and Ms. Bharti Chawla, Advs. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The plaintiff, as per the amended plaint dated 20 th February, 2013, has filed the present, suit for partition of property No.N-47, Panchsheel Park, New Delhi and for rendition of accounts and mesne profits thereof, pleading (i) that the plaintiff purchased 50% undivided unspecified share in the property from Prem Kumar Dewan, brother of the defendant, by way of a registered Agreement to Sell; though the said Agreement to Sell executed by Prem Kumar Dewan was in favour of the plaintiff and one Suneet Seth but the said Suneet Seth executed documents of transfer of his share in favour of the plaintiff, therefore the plaintiff has become the sole owner of undivided, unspecified 50% share in the said property; (ii) that the plaintiff is also in actual, physical, settled, peaceful possession of the entire second floor, entire terrace above the second floor, entire driveway adjoining property No.N-45 of the said property and is also in symbolic and CS(OS) 149/2011 Page 1 of 19 proprietary possession of the remaining portions of the property to the extent of 50% share; (iii) that Jagan Gopal Dewan, father of Prem Kumar Dewan and the defendant, was the original owner of the property; he died on 27th April, 2001, leaving a validly executed last Will dated 9 th December, 1972 whereunder he bequeathed the said property to his wife Amrit Kala Dewan; (iv) that Amrit Kala Dewan also died on 12 th January, 2005 leaving a registered Will dated 6th October, 2004 bequeathing the property in favour of her son Prem Kumar Dewan and her daughter, the defendant herein; (v) that even otherwise, Prem Kumar Dewan and the defendant were the only Class I heirs under the Hindu Succession Act, 1956 of Amrit Kala Dewan; (vi) that by virtue of a Memorandum of Family Settlement dated 24th November, 2005, the said Prem Kumar Dewan and defendant agreed and settled that each of them would be the absolute owner of half undivided share in the property and decided to evict the tenants in the property and to jointly sell the property; (vii) that the defendant however did not cooperate with her brother Prem Kumar Dewan who got the tenant on the second floor vacated and took possession of the second floor and sold his 50% undivided share in the property as aforesaid to the plaintiff; (viii) that immediately after purchasing the 50% undivided share in the property, the plaintiff informed the defendant of the same and talks were being held between the plaintiff and the defendant for partition of the property, but the defendant suddenly instituted a suit under Section 44 of the Transfer of Property Act, 1882 against the plaintiff and which suit was being contested by the plaintiff contending that Section 44 of the Transfer of Property Act was not applicable since there was no joint family and the property was not a dwelling-house belonging to an undivided family; (ix) CS(OS) 149/2011 Page 2 of 19 that the first floor of the property was under the tenancy of M/s Win- Medicare Pvt. Ltd.; on expiry of the said tenancy, the plaintiff filed a suit for ejectment of the said tenant; the defendant also filed a suit for ejectment of the said tenant and in the suit filed by the defendant, a direction for payment of rent by the tenant to the defendant was made; that the plaintiff is also entitled to 50% of the amount paid by the tenant; (x) that the defendant was married long time back, during the lifetime of her father Jagan Gopal Dewan and was after her marriage no longer a part of the family of her father and was residing with her husband at various places in India and abroad and is not entitled to exercise any right under Section 44 of the Transfer of Property Act; (xi) that even otherwise, Prem Kumar Dewan and the defendant had acquired 50% undivided share each in the property, not as members of any joint family but under the Will of their mother; (xii) that after the demise of Jagan Gopal Dewan, his wife Amrit Kala Dewan alone was residing on the ground floor of the property and Prem Kumar Dewan was residing at Calcutta and the defendant was residing from time to time at Bombay/Calcutta/Madras; (xiii) that in the suit under Section 44 of the Transfer of Property Act filed by the defendant against the plaintiff, a decree on admissions was passed against the plaintiff; the plaintiff preferred RFA No.139/2011 against the said decree and which was allowed and SLP(C) No.26680/2011 preferred by the defendant was dismissed by the Supreme court on 16 th October, 2012 and the suit remanded for trial. 2. The defendant contested the suit by filing a written statement, pleading (a) that the defendant and her brother Prem Kumar Dewan, under the Will of their mother Amrit Kala Dewan, have inherited 50% undivided CS(OS) 149/2011 Page 3 of 19 share each in the property and became co-owners of the property and the property is indivisible, unspecified, undivided and jointly possessed by both of them; (b) that the plaintiff, though has no right to joint possession and enjoyment of the property with the defendant, claims to have been given possession of the second floor of the property in pursuance to the registered Agreement to Sell executed in his favour by Prem Kumar Dewan; (c) that the land underneath the property is leasehold and is governed by proviso to Sections 76(4) and 79(a) of the Delhi Cooperative Societies Act, 2003 and Section 3 of Government Grants Act, 1895 and a suit for partition thereof is not maintainable; (d) that moreover, the plaintiff has not acquired any ownership rights and has a mere Agreement to Sell in his favour and which does not constitute title to the property; (e) that Suneet Seth along with whom the plaintiff had entered into the Agreement to Sell with Prem Kumar Dewan is a necessary party to the present suit; (f) that the plaintiff is debarred by Section 44 of the Transfer of Property Act from joint possession and ownership of the property along with the defendant and is in illegal possession of the second floor of the property; (g) denying that there were any talks between the plaintiff and the defendant for partition of the property; (h) that the defendant, in this suit has filed an application under Section 4 of the Partition Act, 1893 and as such the plaintiff is not entitled to any decree for partition. 3. The defendant has filed IA No.17463/2013 under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) seeking rejection of the plaint on the grounds of (i) the suit being barred by proviso to Sections 76(4) and 79(a) of the Delhi Cooperative Societies Act and Section 3 of the Government Grants Act; (ii) the suit being bad for non-joinder of Suneet CS(OS) 149/2011 Page 4 of 19 Seth; and, (iii) the plaintiff having only a registered Agreement to purchase 50% undivided share in the property in his favour and not having a Sale Deed in his favour. 4. IA No.17463/2013 came up for hearing before this Court on 1 st May, 2018 when the counsel for the defendant first contended that since the plaintiff had no Sale Deed in his favour, the suit was not maintainable and the plaint was liable to be rejected. 5. The basis of the contention, that without the plaintiff having title as owner to the property could not sue for partition, was however enquired from the counsel for the plaintiff. The plaintiff admittedly has a registered Agreement to Sell in his favour from Prem Kumar Dewan, again admittedly owner of 50% undivided share in the property and in part performance of which, the plaintiff was put in vacant peaceful physical possession of the second floor of the property as aforesaid and in symbolic/proprietary possession as purchaser of 50% undivided share, of the remaining property and in terms of which, the plaintiff was entitled to evict the tenant on the first floor of the property, realize 50% share of the rent/mesne profits from the tenant on the first floor of the property and upon the tenant on the first floor of the property vacating, take possession of the first floor of the property and to exercise all other rights as owner of 50% undivided share in the property. 6. It was further enquired from the counsel for the defendant, as to how the process of law could be permitted to be abused by the defendant to the detriment of the plaintiff. Though undoubtedly the lease of the land underneath the property prohibits sale/transfer of land, without permission in writing of the lessor i.e. Government of India but neither Prem Kumar CS(OS) 149/2011 Page 5 of 19 Dewan having only 50% undivided share therein nor the plaintiff as agreement purchaser of the rights of Prem Kumar Dewan, could alone, without the defendant, being the owner of remaining 50% rights, apply for such permission. Similarly, though the Government of India has brought out a scheme for conversion of leasehold rights into freehold but again neither Prem Kumar Dewan nor the plaintiff alone could apply for such conversion, without the defendant joining therein. The defendant obviously is refusing to join. Thus, non-execution of the Sale Deed in pursuance to the Agreement to Sell in favour of the plaintiff is also attributable to the defendant. The defendant, though owner of only 50% share in the property, is on the one hand not permitting vesting as owner of the remaining 50% right/share in the plaintiff and on the other hand not allowing the plaintiff to enjoy his 50% share. Certainly the Courts cannot be blind to such a situation and allow such a state of affairs to continue, to the undue advantage of the defendant and to the detriment of the plaintiff. The defendant, though having only 50% share in the property, is in enjoyment of much more than that; she has possession of ground floor and first floor of the property, while the plaintiff has possession only of second floor and which also the defendant in her written statement has pleaded is only half constructed, with the remaining half being open terrace. The value of possession of the ground floor and first floor is far more than the value of a second floor or barsati floor, in a property without an elevator. 7. The counsel for the defendant, in response, on 8th May, 2018, could only refer to para 26 of Kammana Sambamurthy Vs. Kalipatnapu Atchutamma AIR 2011 SC 103 holding that Section 4 of the Partition Act was not attracted in the facts of that case and it is only after the Sale Deed is CS(OS) 149/2011 Page 6 of 19 executed in favour of vendee that rights under Section 4 may be available. However, Kammana Sambamurthy supra was a suit for specific performance of an agreement to sell; the vendor, though had agreed to sell the entire property, was owner of only half share in the property, with his wife owning the other half; the wife had not executed the agreement to sell and it was found that the vendor had no implied authority to agree to sell the share of his wife; the vendee then sought specific performance of part of the contract i.e. of the share of the vendor only; the wife of the vendor then invoked Section 4 of the Partition Act. It was in that context observed that the wife could not invoke Section 4 till in pursuance to a decree for specific performance of part of the agreement, a Sale Deed was executed in favour of the vendee and while holding so, it was also observed that the vendee‟s share could be demarcated only after the Sale Deed was executed. 8. On 8th May, 2018, I thus enquired from the counsel for the defendant as to how Kammana Sambamurthy supra can be said to be a precedent on, partition of possessory rights as the plaintiff has under a registered agreement to sell in his favour, being not possible in law. 9. Attention of the counsel for the defendant was also invited to Iresh Duggal Vs. Virender Kumar Seth 2014 SCC OnLine Del 6674, Bharat Insulation Company Vs. Suraj Parkash (2015) 221 DLT 216 and Dalip Kumar Vs. Om Prakash 2015 SCC OnLine Del 11768 holding tenancy rights to be capable of partition between two or more tenants. The rights as a purchaser in possession are far more. 10. Attention of counsel for defendant has also been invited to Section 22(1)(a) of the Specific Relief Act which entitles any person suing for specific performance of a contract for the transfer of immoveable property CS(OS) 149/2011 Page 7 of 19 to ask for partition and separate possession, again indicating that there is no bar to an agreement purchaser of a share in immoveable property seeking the relief of partition. If, till Sale Deed is executed, there was any bar from seeking partition from others having share in such immoveable property, Section 22 would not have so provided. In the present case, Prem Kumar Dewan, with whom plaintiff has an agreement to purchase, is not disputing or denying performance thereof. There is thus no need for the plaintiff to seek the relief of specific performance against him. At the same time, the plaintiff, in pursuance to Agreement to Sell with Prem Kumar Dewan, cannot have title, owing to defendant, being the other co-owner with Prem Kumar Dewan, not cooperating. However the plaintiff is certainly entitled to seek partition. 11. The counsel for defendant has not pressed the matter further. 12. The counsel for the defendant next argued on the aspect of prohibition of partition under the lease of land underneath the property. 13. Attention of the counsel for the defendant on 1st May, 2018 was however invited to UOI Vs. Mohinder Pratap Soni 2016 (157) DRJ 221, Madan Lal Vs. Kuldeep Kumar MANU/DE/4039/2013, Pragun Buildtech (P) Ltd. Vs. Sarla Aggarwal 190 (2012) DLT 164, Surendra Pal Vs. Ravindra Pal Singh (2014) 5 HCC (Del) 369 and Satish Kumar Chojar Vs. Subhashni Chopra (2014) 7 HCC (Del) 376, holding that conditions in the lease deed prohibiting partition of leasehold interest do not come in the way of partition of the superstructure. 14. The counsel for defendant did not urge anything further in this respect either. CS(OS) 149/2011 Page 8 of 19 15. The counsel for the defendant next contended that partition was prohibited by the provisions of Delhi Cooperative Societies Act and referred to judgment dated 7th September, 2006 in W.P.(C) No.6606/2001 titled Sheela Wati Vs. Registrar Cooperative Societies but which was not found to be applicable. 16. The counsel for the defendant next drew attention to the order dated 5th May, 2014 in this suit, observing that though a number of issues would arise in the present case with regard to maintainability of the suit as framed but the same is to be examined after admission/denial of documents, and contended that as per the said order, the issues have to be framed and the suit put to trial. 17. Attention of the counsel was however drawn to Satyendra Kumar Vs. Raj Nath Dubey (2016) 14 SCC 49 and to Canara Bank Vs. N.G. Subbaraya Setty (2018) SCC OnLine SC 427 holding that on a question of law, there can be no res judicata. If it were to be found that no issues indeed arise, the order dated 5th May, 2014 would not bind this Court today. Moreover, the observations in the said order are not final. 18. The counsel for the defendant then sought adjournment to study the law further. 19. While adjourning the matter to 8th May, 2018, attention of the counsel was drawn to R.S. Madanappa Vs. Chandramma AIR 1965 SC 1812 and in Bhagwati Prasad Vs. Shri Chandramaul AIR 1966 SC 735 holding that even in the absence of a claim for mesne profits, a decree for mesne profits could be granted in a suit for partition. 20. On 8th May, 2018, upon the counsel for the defendant drawing attention to IA No.6305/2011 under Section 4 of the Partition Act, it was CS(OS) 149/2011 Page 9 of 19 enquired from the counsel for the defendant, as to how Section 4 of the Partition Act applies. The said Section is as under: "4. Partition suit by transferee of share in dwelling- house.--(1) where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section. " It was enquired, as to how the property aforesaid could be called a dwelling-house belonging to an undivided family and as to how the defendant and her brother to whom the property was bequeathed under the Will of the mother would qualify as an undivided family. 21. The counsel for the defendant referred to Ghantesher Ghosh Vs. Madan Mohan Ghosh AIR 1997 SC 471 and Dorab Cawasji Warden Vs. Coomi Sorab Warden AIR 1990 SC 867 as well as to the order decreeing the suit under Section 44 of the Transfer of Property Act on admissions, to the judgment dated 6th September, 2011 in RFA No.139/2011 filed by the plaintiff against the said decree and to the order in SLP(C) No.26680/2011 preferred thereagainst and contended that the aspect of applicability of Section 4 of the Partition Act, raises triable issues and on which trial has to be held and the said question cannot be decided at this stage. CS(OS) 149/2011 Page 10 of 19 22. This Court, vide judgment dated 6th September, 2011 in RFA No.139/2011 preferred by the plaintiff against the decree of the Additional District Judge in favour of the defendant in suit filed by the defendant under Section 44 of the Transfer of Property Act held (i) That as per the dicta of the Supreme Court in Narashimaha Murthy Vs. Susheelabai (1996) 3 SCC 644, (a) a dwelling-house is a residential house of a family which is exclusively occupied by and lived in by members of a family and except the members of the family, no one else has resided in the dwelling-house, i.e. no stranger has come into possession of whole or part of the dwelling-house; once a stranger comes into possession of a dwelling-house, then in such circumstances, the dwelling-house loses the character of a family dwelling-house considering the object that the sanctity of a family dwelling-house was required to be preserved till a stranger did not come into possession of the same, (b) the provisions of Section 23 of the Hindu Succession Act, 1956 and provisions of agnate and cognate Acts, being Section 4 of the Partition Act and Section 44 of the Transfer of Property Act, are part and parcel of the same scheme and the intention of the legislature and therefore, the meaning which has to be ascribed to the expression "dwelling-house" in all the three provisions of the three Acts has to be similar; (ii) That though the basic foundation of the provisions of Section 44 of the Transfer of Property Act still continues to protect a dwelling-house of an undivided family, however, one cannot be oblivious to the fact that the society has moved on. Today in metropolitan cities and megapolises such as the capital of this CS(OS) 149/2011 Page 11 of 19 country, traditions and conservative attitude of the ladies not coming into contact with strangers is more or less a thing of the past; (iii) That a family dwelling-house is mostly non-existent because people live in flats in high rises or in small buildings having three or four or about these many number of flats; (iv) That privacy of course is zealously guarded, however, when properties are built on a plot of land which are in the form of flats and which can be occupied by different persons/families/entities, the traditional concept of an undivided family house has almost vanished; (v) That in accordance with the contemporary situations and ground realities which exist today, the expression "dwelling-house" as found in Section 44 must be interpreted, keeping in mind the peculiar facts and circumstances as would be found in the facts of each case; (vi) That once in a part of dwelling-house there is a stranger, then it results in the fact that the whole dwelling-house is not with the family and then in such situation, it cannot be said that an additional stranger cannot come in; (vii) That in the facts of the present case, the first floor of the property was tenanted and already in possession of a stranger; (viii) That a stranger who purchases his share of the co-owner gets his share separated and thereafter can always possess and enjoy his separate share; (ix) Thus, the disability to take possession is only temporary, till partition and when there is already a stranger in the house, factually CS(OS) 149/2011 Page 12 of 19 there is partition of the share of the dwelling-house and in which the tenant/stranger lives; (x) That admittedly the property in the present case is built in the form of independent flats on different floors and it is for this reason only that the first floor was let out to M/s Win-Medicare Pvt. Ltd.; (xi) Thus the property since long has lost the character of a typical dwelling-house which is envisaged as per the provisions of Section 44 of the Transfer of Property Act; (xii) That Brahm Dev Narang Vs. Satyajeet Narang 82 (1999) DLT 979 though holds that the property does not cease to be a dwelling-house for the purpose of Section 44 of the Transfer of Property Act merely because the property had been tenanted but Narashimaha Murthy was not noticed therein; (xiii) That the plaintiff herein had already taken possession of the second floor of the property; (xiv) Thus, the suit of the defendant invoking Section 44 of the Transfer of Property Act was liable to be dismissed. 23. Supreme Court, vide order dated 16th October, 2012 in SLP(C) No.26680/2011 preferred against the aforesaid, held that though this Court did not commit any error by setting aside the decree of the Additional District Judge in favour of the defendant but after setting aside the decree could not have dismissed the suit and should have remanded the matter for fresh disposal of the suit in accordance with law. Thus, the Special Leave Petition (SLP) was "dismissed with clarification that instead of dismissal of the suit as a whole in terms of the impugned judgment, the order passed by the Trial Court shall stand set aside and the suit shall stand remitted to the CS(OS) 149/2011 Page 13 of 19 Trial Court for fresh disposal in accordance with law" and the Trial Court shall decide the matter, without being influenced by the observations contained in the judgment of this Court. 24. It would thus be seen that the Supreme Court "dismissed" the SLP preferred against the judgment of this Court but clarifying that instead of the suit filed by the defendant being liable to be dismissed, stood remanded to the Trial Court for decision afresh in accordance with law. What follows is, that the findings and reasoning given by this Court were not set aside or interfered with. The only thing which appears to have prevailed upon the Supreme Court is, that what was for adjudication was the application of the defendant in her suit for decree on admissions and after finding that there could be no decree on admissions, the suit could not be dismissed. Had the Supreme Court disagreed with the reasoning aforesaid of this Court, the Supreme Court would have "allowed" and not "dismissed" the SLP. Thus, the reasoning and the findings contained in the judgment dated 6 th September, 2011 supra of this Court have attained finality. 25. I am unable to decipher from the order of the Supreme Court, any binding precedent for this Court to, in this suit, not proceed to pass a decree for partition, as no material issue of law or fact requiring evidence to be recorded, is found. I may also add that though the judgment dated 6th September, 2011 supra of this Court only notices letting out of the first floor of the property but it has come on record that the second floor of the property which is now in possession of the plaintiff was also let out. Thus, out of the three floors in the property, the mother of the defendant was in possession of the ground floor only and strangers were in occupation of the other two floors of the property. Even now, it is not as if the plaintiff has CS(OS) 149/2011 Page 14 of 19 entered or is insisting on entering the ground floor and the first floor (of which the defendant claims to have since received possession from the tenant M/s Win-Medicare Pvt. Ltd.) jointly with the defendant. The plaintiff has taken possession of second floor from Prem Kumar Dewan and is seeking partition and if possible separate possession of his 50% share. 26. This Court, in judgment dated 6th September, 2011 supra, also relied on Section 23 of the Hindu Succession Act. The same was as under: "23. Special provision respecting dwelling houses.--Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: PROVIDED that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling- house only if she is unmarried or has been deserted by or has separated from her husband or is a widow." 27. The aforesaid provision was deleted by virtue of the amendment to the Hindu Succession Act with effect from 9th September, 2005 and which fact remained to be noticed in the judgment dated 6th September, 2011 supra. While Section 23, when in force, prevented female heirs from seeking partition of a dwelling-house, obviously to maintain the sanctity of a dwelling-house, now there is no such bar, indicating the legislative intent of partition of a dwelling-house also being possible. In my opinion, the said legislative intent has to be applied to the interpretation of Section 44 of the Transfer of Property Act also. CS(OS) 149/2011 Page 15 of 19 28. Though in the order dated 8th May, 2018 certain queries were made from the counsel for the defendant also with respect to the applicability of Dorab Cawasji Warden supra to the facts of the present case but during the hearing it was enquired from the counsel for the defendant, that even if the application of the defendant under Section 4 of the Partition Act were to be allowed, how did the same prevent a decree for partition to be passed. 29. The counsel for the defendant stated that a preliminary decree for partition declaring the shares of the plaintiff and the defendant may be passed and thereafter the procedure prescribed in Section 4 of the Partition Act be followed. 30. It was enquired from the counsel for the defendant, whether the defendant was willing to buy the share of the plaintiff. 31. At this stage, the plaintiff present in person on 8 th May, 2018 stated that he puts the value of 50% undivided share of the defendant at Rs.25 crores and is willing to pay the same to the defendant within three months and is also willing to pay earnest money as may be directed by this Court. 32. It was on 8th May, 2018 enquired from the counsel for the defendant, whether the defendant was willing to buy the share of the plaintiff for Rs.25 crores, inasmuch as the best manner of valuation to be done under Section 4 of the Partition Act is of fixing the value the plaintiff is willing to pay to the defendant. 33. It was further put to the counsel for the defendant on 8th May, 2018, that if what was to be ultimately done is possible to be done today, why should this Court at the cost of its own time and compelling the litigants to expend, follow the rigma role of trial. It was rather observed on 8th May, 2018 that the suit filed by the defendant against the plaintiff under Section CS(OS) 149/2011 Page 16 of 19 44 of the Transfer of Property Act and pending before the Additional District Judge can also be disposed of on the same terms. 34. The counsel for the defendant, on 8th May, 2018, sought adjournment to take instructions from the defendant, whether the defendant was willing to buy 50% share of the plaintiff in the property on the same terms which the plaintiff was offering i.e. for a price of Rs.25 crores and to pay the earnest money as may be directed by this Court. 35. Accordingly, the suit was adjourned to today and the personal presence of the defendant was also directed. 36. The counsel for the defendant today states that the defendant is learnt to be in the United States of America (USA) and he could not make contact with the defendant and could not get instructions from the defendant and does not even know as to when the defendant is returning from USA and this Court on the basis of hearing held may decide. 37. The same is another abuse of the process of the Court by the defendant. The defendant, after full hearing, cannot be permitted to derail the proceedings in this manner. 38. As far as the plea of the defendant of the suit being bad for non- joinder of Suneet Seth as party to this suit is concerned, the claim of Suneet Seth can be only against the plaintiff and not against the defendant and there is no reason to doubt the stand on oath of the plaintiff, of the said Suneet Seth having transferred his rights under the agreement to sell executed by Prem Kumar Dewan in favour of the plaintiff. 39. Accordingly, a preliminary decree for partition is passed declaring the plaintiff and the defendant to be having 50% undivided share in the property. CS(OS) 149/2011 Page 17 of 19 40. Considering the existing construction on the property and the Municipal Building Bye-Laws preventing more than one dwelling-house on each floor of the property, the partition/division of the property by metes and bounds is not possible. 41. The counsel for the plaintiff agrees and the counsel for the defendant has not controverted. 42. Moreover, the valuation of different floors of the property is different, with the ground floor having the benefit of the front and the rear open space and the second floor being only half constructed. Thus, floorwise division is also not possible and neither floor can be divided into two parts, even if of varying size. 43. It is thus evident that no purpose will be served in appointing a Commissioner to explore the possibility of division of the property by metes and bounds. 44. The property can be partitioned only by sale i.e. either by inter se bidding between the parties or by sale to third parties for the benefit of both the parties. It is also felt that such sale should be carried out after getting the leasehold rights of the land underneath the property converted to freehold since the costs thereof is far less than the costs of obtaining permission for sale of leasehold rights. 45. Accordingly, a final decree for partition is also passed, of partition of property No.N-47, Panchsheel Park, New Delhi of sale thereof as above and of distribution of net sale proceeds between the parties as per their share under the preliminary decree for partition. The plaintiff shall also be entitled to costs of this suit from the defendant. Counsel‟s fee assessed at Rs.2 lakhs. CS(OS) 149/2011 Page 18 of 19 Decree sheet be drawn up. 46. The counsel for the plaintiff states that since the suit is being decreed, the plaintiff is not pressing for the enquiry into mesne profits, in the hope that the defendant will no further deprive the plaintiff of his share in the property and reserves the right to claim mesne profits, if the defendant continues the litigation. RAJIV SAHAI ENDLAW, J.
MAY 10, 2018 „bs‟ CS(OS) 149/2011 Page 19 of 19