Delhi District Court
Rajiv Sharma vs Narender Kumar Sharma on 27 September, 2023
IN THE COURT OF MR. SATYABRATA PANDA, ADJ-04,
PATIALA HOUSE COURTS, NEW DELHI
CS NO.59034 OF 2016
Date of institution: 15.10.2015
Date of arguments: 06.07.2023
Date of judgment:27.09.2023
Rajiv Sharma
s/o Narinder Kumar Sharma
r/o RZ-23-B/2233, first floor
J block, West Sagarpur, Gali no.62
near Govt Primary School
New Delhi 110046 ......Plaintiff
Vs.
1. Narender Kumar Sharma
s/o Late Sh. Nanak Chand Sharma
2. Sanjeev Sharma
s/o Sh. Narinder Kumar Sharma
3. Vandana Sharma
(all r/o RZ-23 B/233, GF
J Block, West Sagarpur, Gali no.62,
near Govt Primary School,
New Delhi 110046) ......Defendants
JUDGMENT
1. The plaintiff has filed the present suit for partition in respect of premises bearing no. RZ-23B/233, J-block, West Sagarpur, Gali no.62 Near Govt Primary School, New Delhi 110046 admeasuring 96 sq. yards within khasra no.233 in village Nasirpur, West Sagarpur (hereinafter referred as the 'suit premises').
CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.1
2. Succinctly stated, as per the plaintiff, the suit premises were purchased by Smt. Harcharan Kaur, the mother of the plaintiff in the year 1979 from her own financial resources as well as from the financial assistance obtained by her from the plaintiff's maternal grandfather. The suit premises are stated to have been purchased from Mr. Risan Singh s/o Shri Bhag Mal pursuant to Agreement to Sell, Receipt, General Power of Attorney alongwith Affidavit dated 15.02.1979. Upon demise of Smt. Harcharan Kaur on 13.06.2008, the plaintiff being one of the class-I heirs of the said deceased has claimed to be entitled to one-fourth share in the suit premises. The defendant no.1 is the father of the plaintiff, defendant no.2 and defendant no.3. The defendants no. 2 and 3 are the brother and sister, respectively, of the plaintiff. It is further the case of the plaintiff that the suit premises comprise of completely built up three floors wherein defendant no.1 is residing on the ground floor alongwith defendant no.2, the second floor has time and again been given by defendant no.1 on rental basis to various tenants and the plaintiff resides on the first floor of the suit premise. Under the said circumstances, the plaintiff has approached this court seeking decree of partition of the suit premises to the extent of his one-fourth share therein.
3. The defendants were served with the summons of the present proceedings and initially contested the suit by filing written statement. However, during the course of proceedings, the parties entered into settlement and on 04.04.2019, the defendant no.1 tendered no-objection on his behalf as well as on behalf of defendants no. 2 and 3 to the effect that prayer sought for in the instant plaint for partition of suit premises may be granted and consequently the suit be decreed to be separated/partitioned by metes and bounds. Subsequently, on CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.2 08.04.2019, similar no-objections were tendered by plaintiff as well as the counsel for defendants no. 2 and 3 on behalf of the said defendants by means of their respective statements.
4. Accordingly, in view of the submissions and statements made by the parties to the present proceedings, a preliminary decree for partition of the suit premise to the extent of one-fourth share each to the plaintiff and defendants was passed by this court vide its judgment dated 01.06.2019. Further, while passing said decree this court had appointed one Mr. Gaurav Dhama, advocate as Local Commissioner to suggest the mode of partition of the suit premise by metes and bounds.
5. Pursuant to the directions issued by this court Mr. Gaurav Dhama, Ld. Local Commissioner filed his report on 10.02.2020 regarding his visit to the suit premise and the proposed mode of partition thereto by metes and bounds. Relevantly, in his said report, the Ld. LC observed that he had visited the suit premise on 06.02.2020 at about 03:30 pm, wherein both the parties were stated to be present. Further as per the said report, the suit premises was noted to comprise of three floors each individually encompassing of three bed rooms, one kitchen and toilet. Accordingly, in their constitution/construction all three floors of the suit premise were stated to be identical. Further as per the report, defendants nos. 1 and 2 were observed to be residing on the ground floor, the first floor was informed to be in the occupation of the plaintiff and the second floor was stated to have been leased out on rental basis. The Ld. LC concluded his report by proposing that the suit premises may be divided between the parties by allocating the ground floor, first floor and second floor to defendant no.1, plaintiff and defendant no.2, respectively as all the said floors comprise of similar layout and rooms. At the same time, as per the Ld. LC, defendant no.3, since being a resident of her CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.3 matrimonial home at Shahdara, was proposed to be compensated in lieu of her one-fourth share allocation in the suit premise by remittance of cash amount against share to be paid equally by the plaintiff and the defendants nos. 1 and 2 as per market value.
6. Significantly, the Ld. LC's report was opposed by the defendants vide their objection dated 11.03.2020 wherein it was inter alia contended that the Ld. LC had visited the suit premises on 06.02.2020 at 03:30 pm without informing any of the defendants and without seeking any advice/correspondence therefrom. At the same time, the report was opposed on the ground that Ld. LC had acted in a biased and illegal manner while executing the commission. Even on the proposed mode of separation of suit premise as stated under the Ld. LC's report, defendant no.1 expressed his incapacity to pay any amount to defendant no.3 on the grounds that he is retired and a senior citizen, suffering from several ailments, deprived of any means except pension which is not sufficient to compensate for such an amount. Similarly, defendant no. 2 has also stated to be not in a position to make any such payments to defendant no. 3 on the ground that he is engaged in a small private job with a salary of Rs.10,000/- per month which is insufficient for the sustenance of his family members, including his school going children.
7. Pertinently, during the subsequent course of the proceedings held before this court, several attempts were made to amicably resolve the dispute by exploring and reaching a possible settlement between the parties. However, despite such attempts no settlement was forthcoming. Needless to mention while on one hand, the plaintiff was persistent on the course of action as suggested by the Ld. LC in his report dated 10.02.2020 as the only mode of distribution of share in the suit premise CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.4 and monetary compensation to defendant no.3 to the extent of her one- fourth share by plaintiff and the defendants nos. 1 and 2, in contrast, the defendants refused to concede to the said proposed mode of settlement. During the course of proceedings, it was also inquired from the parties if any of the parties were willing to buy out the share of the other parties or if any of the parties could arrange for a third-party buyer, however, the parties did not come forth with any proposals.
8. During the course of arguments, ld. counsel for the plaintiff vehemently supported the partition of the suit premises by allocation of the ground floor, first floor and second floor to defendant no.1, plaintiff and defendant no.2, respectively alongwith direction to the said parties to pay amount equivalent to one-fourth share in the suit premises to defendant no.3. In fact, in this regard, the Ld. Counsel for the plaintiff sought to invoke the principle of owelty. In particular, it has been argued by the ld. counsel for plaintiff that present case is fit for invocation of principle of owelty for the reason that the suit premises are incapable of division in specie and that it is not possible to divide the said premises by metes and bounds. Accordingly, it has been argued that by division of share of suit premises in a manner as proposed in Ld. LC's report, the shares of the plaintiff and defendants can be equalized by directing the defendants nos. 1 and 2 and plaintiff to make payment of an amount to defendant no.3 equivalent to her one-fourth share therein, in equal proportions. In support of his contentions, Ld. Counsel has relied upon the decisions in T.S Swaminathaudayar Vs. The Official Receiver of West Tanjore, AIR 1957 SC 577; Aloka Dudhoria Vs. Goutam Dudhoria, AIR 2010 SC 53; Smt. Vandana Vs. Pradip, Second Appeal no.42 of 2013, dated 18.12.2013 (High Court of Judicature at Bombay, CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.5 Nagpur Bench) and R. Ramaprasada Rao Vs. R. Subbaramaiah AIR 1958 AP 647.
9. Per contra, ld. counsel for the defendants has opposed the mode of partition amongst the plaintiff and the defendants nos. 1 and 2 and payment to the defendant no.3 equivalent to her share as has been proposed by the plaintiff. It is reiterated that the defendants nos. 1 and 2 are not in a position to pay any compensation to the defendant no.3 in lieu of her share. It is further submitted that now there is deep animosity between the plaintiff on the one hand and the defendants nos. 1 and 2 on the other, and that it would not be possible for them to reside together in the same building.
10. I have heard the ld. Counsels for parties and perused the case records.
11. Pertinently upon appreciation of arguments addressed before this court, it is noticed that plaintiff has persevered in his demand for allocation of ground floor, first floor and second floor to defendant no.1, plaintiff and defendant no.2, respectively, and consequent invocation of principle of owelty. In distinction, the defendants have expressed their inability to accede to the said proposal, in particular, for the reasons of defendants nos. 1 and 2's inability to pay any amount to defendant no.3 as well as on the ground that the Ld. LC's proposed recourse would not bring about a quietus to dispute between the parties due to the deep animosity between the parties. Infact, in this regard it has been specifically averred that even if the mode of separation of suit premises as proposed by the plaintiff as well as the Ld. LC is accepted, issues regarding common electricity supply, water supply, sewage connection as well as single panel on all three floors would persist. At the same CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.6 time, in the absence of separate entrance to each of the said floors, the defendant no.1 would be encumbered with a responsibility of monitoring ingress and egress to the respective floors by opening and closing the common gate even at odd hours. Further, it has become clear during the course of the final arguments when even the parties were called in person that the relationship between the plaintiff and defendants has turned sour with persistent quarrels. Accordingly, under such circumstances, a possibility of partition of suit premises in the manner as proposed by the plaintiff appears to be too far-fetched to bring about any resolution to the present dispute. Needless to mention, the parties to the present dispute have admitted that the suit premises comprises of three floors built up an area of 96 sq. yards. Therefore, separation thereof amongst all four members by metes and bounds is not a possible recourse.
12. Accordingly, considering the admitted stand of the plaintiff and the defendants that the separation of suit property by metes and bounds would not yield any functional share to the said parties, the recourse suggested by the plaintiff, as also affirmed in the Ld. LC's report, would have been feasible had all the parties before this court mutually agreed to the same, or at least the defendants nos. 1 and 2 also agreed to compensate the defendant no.3 in lieu of her share. However, the said resort fails on both the counts. As stated above, despite several attempts made by the parties under the aegis of this court or otherwise, the plaintiff and the defendants have miserably failed to reach a mutually acceptable solution, notwithstanding lapse of a substantial period of time since the passing of preliminary decree in the instant case. Simultaneously, considering that the defendants nos. 1 and 2 have outrightly expressed their inability to pay any amount to defendant no.3 CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.7 against owelty as well as considering that even upon adoption of the plaintiff's proposal, there would be no quietus to dispute, this court finds that it would not be appropriate to direct invocation of principle of owelty in the instant case.
13. The decisions cited by the ld. counsel for the plaintiff would not be of any assistance to the plaintiff. Notably, the Hon'ble Supreme Court neither in the decision in T.S Swaminathaudayar (supra) nor in Aloka Dudhoria (supra) was faced with a situation, akin to that before this court in the present case. Undoubtedly, though in both the said decisions, the Hon'ble Supreme Court dealt and elucidated the concept of owelty, however, in different contexts. Pertinently, while in T.S Swaminathaudayar (supra) the Hon'ble Supreme Court was called upon to determine the status of owelty as a first charge on the estate, in Aloka Dudhoria (supra), the Hon'ble Supreme Court delved into the issue of fraud and interpretation of certain provisions of Partition Act. Needless to reiterate the said decisions would not be of assistance to determine the issue involved in the present proceedings. Further, the decision in Smt. Vandana & Ors. (supra) is distinguishable on the facts as in the said case all the defendants who were in possession of the premises involved therein had acceded to retain their respective possession and compensate the plaintiff therein by invocation of owelty. Clearly, in the case before this court, neither are all the parties in occupation of the respective floors of the suit premise ready to continue with the possession in the manner as proposed, nor have defendants nos. 1 and 2 expressed their ability and consent to pay the amount computed towards owelty. Accordingly, the decision in Smt. Vandana (supra) too would not prove to be of much assistance to the plaintiff. Lastly, even the decision in R. Ramprasada Rao (supra) is distinguishable on facts, wherein each CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.8 of the parties to dispute in the said case had expressed willingness to obtain the entire estate to itself and to compensate the other. Nonetheless, even in the said decision, the Hon'ble Court had taken recourse to public auction of the estate involved therein in contrast to invocation of owelty.
14. Considering the facts of the present case in another perspective while defendants nos. 1 and 2 cannot be encumbered to live in the same premises as that of the plaintiff, considering that there are still unresolved issues relating to common passage, electricity panel, sewage connections, etc., accentuated by the fact of persistent quarrels between the said family members, at the same time, this court cannot constrain the plaintiff to buy off the entire suit premises or to sell his share to the defendants, when the parties are not agreeable. Indisputably, this court is cognizant of the fact that it cannot, by its order(s), constrain either of the parties to the present dispute to place themselves in a position of inconvenience or accentuate quarrels, when the ultimate objective of a court's dictate is to bring resolution and quietus to dispute. Further it cannot be overemphasized enough that this court cannot be held hostage to the wishes of any one or either of the parties to dispute, adamant on keeping litigations alive, without any resolution forthcoming. Accordingly, under such situation, this court is well within its powers to device a mode that strives towards justice and eventual dispute resolution which is beneficial to all the parties.
15. Conclusively, in conspectus of the above discussion, especially so considering the admitted facts that the suit premises cannot be partitioned by metes and bounds and the parties before this court are unable to reach a mutually workable solution nor this court succumb to CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.9 unilateral wishes of one or the other, interest of justice would be met by directing sale of the suit premises by public auction and directing distribution of amount obtained therefrom between the plaintiff and defendants in proportionate share of one-fourth value thereof in terms of the preliminary judgment/decree dated 01.06.2019. This would be the mode most beneficial to all the parties. Significantly, a proposal to similar effect has in fact also been one of the modes, proposed by the defendants in their objection dated 11.03.2020.
16. Accordingly, it is decreed that the suit premises be sold through a public auction and proceeds so obtained from such auction sale, after deduction of the necessary expenses in the auction, are directed to be distributed amongst the plaintiff and defendants to the extent of their respective one-fourth share, as decreed under the preliminary decree dated 01.06.2019. The plaintiff and defendants are also permitted to participate, individually or jointly, in the auction. The implementation of the decree for sale by public auction of the suit premises and distribution of the proceeds amongst the parties shall now be subject matter of execution proceedings as may be initiated by either of the parties. In case in the execution proceedings the parties are agreeable to any other mutually acceptable solution other than sale by public auction, then the executing court would be free to deal with the situation accordingly. The suit is decreed in the aforesaid terms. Parties to bear own costs. Let the decree-sheet be prepared accordingly.
Judgment pronounced in open Court.
File be consigned to record room.
(SATYABRATA PANDA) Additional District Judge-04 Judge Code- DL01057 PHC/New Delhi/27.09.2023 CS NO.59034/16 RAJIV SHARMA VS. NARENDER KR. SHARMA page no.10