Delhi High Court
Rameshwar Dayal Gupta vs Sh. Mange Ram Gupta on 3 July, 2019
Equivalent citations: AIRONLINE 2019 DEL 947, 2019 (4) ADR 751
Author: Sanjeev Narula
Bench: Sanjeev Narula
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: May 27, 2019
Pronounced on: July 03, 2019
+ CS(OS) 252/2018, CC 31/2018, I.A. 7267/2018
RAMESHWAR DAYAL GUPTA ..... Plaintiff
Through: Mr. Samar Bansal, Mr. Manan
Shishodia and Ms. Pevahuti Pathak,
Advocates.
versus
SH. MANGE RAM GUPTA ..... Defendant
Through: Mr. Rajneesh Kumar Sharma,
Advocate.
CORAM: JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J I.A. 12997/2018 (application on behalf of the Plaintiff under Order 12 Rule 6 CPC)
1. By way of the present application, the Plaintiff seeks a preliminary decree on the basis of the admissions made by the Defendant.
2. Briefly stated, the facts of the case are that, Plaintiff has filed the present suit inter alia, seeking a decree of partition of the residential house bearing No. B-7/33, Safdarjung Enclave, New Delhi- 110029, consisting of a super structure of built up Ground Floor, First Floor and Barsati Floor and land underneath admeasuring approximately 425 square yards (hereinafter CS(OS) 252/2018 Page 1 of 17 referred to as "Suit Property"). The suit was initially filed against his two brothers i.e. Mange Ram Gupta and Rajinder Prasad Gupta as Defendant Nos. 1 & 2 and against the legal heirs of his pre-deceased brother namely (i) Alka Gupta (ii) Sidharth Gupta and, (iii) Aishwarya Gupta, as Defendant Nos. 3 to 5. However, vide order dated 23rd May 2018, Defendant Nos. 2 to 5, were deleted from the array of Defendants.
3. The case as set up in the plaint is that, Plaintiff and Defendant are the co- owners of the suit property by virtue of perpetual lease deed dated 31st December 1968, having equal 50% undivided share each therein . The said property was jointly purchased from their self acquired funds. Late Shri Shambhu Dayal Gupta had four sons - the Plaintiff, the Defendant, Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta. The aforenoted brother namely Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta were allowed to reside in certain portions of the suit property as gratuitous licensees along with their respective families. Suits for eviction were filed against Defendant Nos. 2 to 5. In the pleadings of the said suits, Defendant No. 1 admitted that Plaintiff owned 50% undivided share in the suit property. The parties executed a Memorandum of Understanding (MOU) dated 8th May 2014 agreeing to cooperate in their effort to legally evict the said Defendants. After obtaining the possession of the said portion of the suit property from them, the Defendant with is now denying the title of the Plaintiff and has refused to partition the suit property.
4. In the present application, it is contended that the Defendant has made unequivocal admissions in the written statement and the Plaintiff is entitled CS(OS) 252/2018 Page 2 of 17 to a preliminary decree of partition declaring the Plaintiff and Defendant to be entitled to 50 percent share each in the suit property. It is further contended that the Defendant in his affidavit of admission/denial of the documents filed before this Court, has admitted the following documents:
(i) Perpetual Lease Deed dated 31.12.1968 in joint names of Plaintiff and Defendant.
(ii) Occupancy Certificate dated 31.03.1972.
(iii) Joint electricity bills.
(iv) Joint water bills.
(v) Memorandum of Understanding dated 08.05.2014 between Plaintiff and Defendant.
5. The Plaintiff urges that in view of the admissions made in the pleadings and also of the documents noted above, the parties should not be relegated to a lengthy and expensive trial and that it would be in the interest of justice that a preliminary decree be passed declaring the extent of shares of the parties along with the consequential directions for appointment of Local Commissioner.
6. The Defendant in his reply has opposed the prayer made in the application and has alleged that the Plaintiff has not presented true facts. He contends that no admissions have been made in the written statement that would entitle the Plaintiff to seek the relief under the provisions of Order 12 Rule 6, CPC 1908. It is also contended that the Plaintiff has selectively quoted and relied upon clauses from the MoU and has failed to disclose that he has CS(OS) 252/2018 Page 3 of 17 not honoured the commitments made therein and that the said document was executed at his behest. The property in question came to be allotted pursuant to a successful bid before the Delhi Development Authority (hereinafter referred to as „DDA‟) and this itself does not confer ownership of the suit property in the Plaintiff. Further, Plaintiff has also not shared the cost of the land, construction, ground rent, property taxes etc and expenses towards the maintenance of the suit property. However, the Defendant has incurred substantial expenses towards the same and the Plaintiff is liable to pay an amount of Rs. 22,87,239/-, for which a counter claim has been filed by the Defendant. It is also averred that by virtue of the aforenoted MoU, the suit property has already been partitioned and both the Plaintiff and Defendant continue to reside in the portions demarcated in Clause 6 of the MoU dated 8th May 2014 without any interference.
7. The Court has heard the learned counsels for the parties at sufficient length. From the reading of the written statement and the reply to the application, it undoubtedly emerges that the suit property is in joint names of Plaintiff and Defendant. The suit property was purchased under an auction held by DDA for residential plots under the scheme for "Large Scale Acquisition, Development and Disposal of Land in Delhi". After the payment of the premium amount, the balance installments and on completion of other formalities, the perpetual lease deed dated 31st December 1968 comprising the suit property was executed jointly in favour of the Plaintiff and Defendant as lessees. In this manner, Plaintiff and Defendant became the joint owners of the suit property. From the reading of the written statement, it also emanates that there is no dispute between the CS(OS) 252/2018 Page 4 of 17 parties that earlier a portion of the suit property was in occupation of the other brothers of the parties and that suits had been filed for recovery of possession of the said portion of the suit property. In the said suits, compromise decree/judgment dated 23rd November 2017 were passed whereby Defendant Nos. 3 to 5, legal heirs of deceased, Shri Surinder Gupta and Defendant No. 2 agreed to vacate the portion of the suit property occupied by them. Defendant also does not deny that an MoU dated 8th May 2014 was executed, wherein it was agreed that both of the parties would cooperate in their efforts to legally evict the remaining Defendants i.e. Defendant Nos. 2 to 5 and also to amicably partition the property by physical division or other means once the eviction proceedings were successfully concluded. The MoU dated 8th May 2014, inter alia reads as under:
"1. This document is an understanding, now reduced to writing for future records and reference to the parties and their legal heirs.
2. First Party is Mr. Mange Ram Gupta S/o late Sh Shambhu Dayal Gupta and Second Party is Mr. Rameshawasr Dayal Gupta S/o late Sh Shambhu Dayal Gupta (collectively referred by parties hereinafter).
3. Both the parties as already agreed and reiterate again that they have equal shareholding in the property at B-7/33, Safdarjung Enclave, land admeasuring 425.5 SqYrds and built up portions i.e., Ground Floor, First Floor, Second Floor, and common areas, such as driveway on right hand side, RCC water tank on ground floor etc. That both the parties contributed equal amount of money in purchasing the land and thereafter developing the property.
4. Both the parties willingly and without any coercion confirm CS(OS) 252/2018 Page 5 of 17 that they will never contest and dispute their equal share in any court of law and decide mutually to provide privacy, use of all the facilities and enjoyment of mutual rights to each other of the above property and also undisputedly agree that they shall take appropriate steps mutually after eviction of disputed portion under occupation of Sh. Rajendra Prasad Gupta and Mrs. Alka Gupta so that both the parties and their legal heirs enjoy separate marketable titles of their shares in the property.
5. Both the parties agree that the safety, cleanliness, security and maintenance of the building and the premises are of utmost importance. In this respect following actions within two months shall be immediately initiated and taken for which the cost incurred shall be fully and equally shared:
a) Boundary wall with the gates,
b) Upkeep of the common portions on the ground floor, etc.
c) Repair and whitewashing of building façade and boundary wall.
6. The front portion of the ground floor is in possession of First Party, while equal (less front yard and part of rear) portion on first floor is in possession of the second party. Both are residing in these portions with their families and continue to do so without anybody's interference.
7. That the rear portion on first floor, comprising, 2 bedrooms, 1 Toilet cum Bathroom, 1 kitchen, 1 verandah and 1 balcony, is lying vacant. This portion is in joint possession of both the parties. This portion need immediate repairs by equally contributed funds by both the parties for putting on rent, so that both the parties can cam rental income from this portion at the earliest on top priority.
8. That the rear part of die ground floor under dispute is in possessions of Mr Rajendra Prasad Gupta s/o Shri Shambhu Dayal Gupta and part of second floor under dispute is in possession of Mrs Alka Gupta w/o late Mr Surendra Kumar Gupta. Application for their eviction moved by first party with CS(OS) 252/2018 Page 6 of 17 the consent of the second party is pending in the court of law.
9. That it is agreed that second party will fully cooperate and pursue the court proceedings along with first party as already initiated for getting evacuated die disputed portion under possession of Mr Rajendra Prasad Gupta and Mrs Alka Gupta and render his evidence as and when asked for by the first party. Both the parties will share equal expenses on professional fees, court fees and other charges, etc.
10. That it is also agreed no additional construction shall be made on the portions for which court proceedings are underway and so also on the common areas as mentioned above.
11. Further it is stated that for exclusive use for part of first floor occupied by second party, die second party will apply additional water connection and first pasty will help so that die second party gets this connection. In case of unavoidable reasons he is not able to get it then first party shall allow the second party to make necessary changes in existing setup at die cost of second party."
8. As noted above, in the MOU, Defendant admits the Plaintiff to be the recorded joint owners of the suit property having equal share. Further, unequivocal and unambiguous admissions have been made all throughout in the written statement. This is evident from the following:
Relevant/Corresponding Admissions made in the written paragraph of the Plaint statement Para 7: Consequently, bid for Para 4: That the contents of para no. leasehold rights in the suit property 6-7 are a matter of record and do not was placed in the name of Plaintiff require any comments. alone, who was declared successful bidder for the land comprising suit property by the DDA vide CS(OS) 252/2018 Page 7 of 17 communication dated 25.10.1964 for a premium of Rs. 21,000/-.
Para 9: That after payment of the Para 5: That the contents of para no. premium and completion of other 9 and 10 are a matter of record formalities. Perpetual Lease Deed however it is denied that the dated 31.12.1968 for the land President of India executed the admeasuring approximately 425 Lease Deed in favour of the Plaintiff square yards comprising the suit and Defendant No.l jointly but the property, was executed by the fact is that the said Lease Deed President of India (acting as was executed by the Under Lessor) jointly in favour of the Secretary on behalf of Lieutenant Plaintiff and Defendant No. 1 (as Governor of Delhi and not by the Lessees), on the usual terms and President of India. The conditions. In this manner, Plaintiff aforementioned facts shows that the and Defendant No. 1 became joint plaintiff is unaware about the owners of the suit property, which is execution of Lease Deed and further their self acquired property reflects that he has not taken any purchased out of their own funds, interest or efforts towards the and is not in any manner a joint or allotment of said property and family property. further during the time of even construction.
Para 10: Possession of the suit property was also handed over by DDA to Plaintiff and Defendant No. 1 on 31.12.1968, contemporaneous with execution of the Perpetual Lease Deed, vide Letter of Possession of even date.
Para 13: The Plaintiff and Defendant Para 8: That the contents of para no.
No.1 applied for and obtained water 13 are wrong and denied unless and specifically admitted hereinafter. It electricity connections for the suit is denied to the extent that the property in their joint names in plaintiff had landline telephone 1971. Plaintiff also has had a connection in his alleged portion of
landline telephone connection in his the suit property since 1977. It is portion of the suit property since further submitted that since the 1977. Suit Property also stands allotment of suit property was in the mutated in joint names of Plaintiff joint names therefore the mutation CS(OS) 252/2018 Page 8 of 17 and Defendant No. 1 in records of was done in the joint names of Municipal Corporation of Delhi. plaintiff and Defendant No. l in the records of Municipal Corporation of Delhi. Even at this juncture the plaintiff did not pay the property tax regularly with the Municipal Corporation of Delhi. The copies of payment of house tax by the defendant no.l is annexed with the written statement.
Para 20: Consequently, although Para 11: That the contents of para they were reluctant to take legal no. 20 to 26 are wrong and denied. It action against family members. is submitted that the proceedings Plaintiff and Defendant No. 1 were for eviction of Defendant Nos. 2 to constrained to initiate proceedings 5 were initiated by Defendant No. for eviction of the said Defendant 1 alone. The entire efforts were Nos. 2-5. done by Defendant No. 1 in getting the decree/judgment in his favour Para 21: Defendant No. 1 issued and nothing has been done by the legal notices to Defendant No. 2 and plaintiff. The aforementioned facts Defendant Nos. 3-5 calling upon can be ascertained from the contents them to hand over possession of of notice dated 09.11.2006 sent by portions of the suit property under the Defendant No. 1 and also from their occupation. Although the Legal the pleadings of the plaint filed by Notices were sent only in the name the Defendant No. 1. It is matter of of Defendant No. 1, they were sent trial court records of the suits filed with the knowledge and consent of by the Defendant No. 1 that the Plaintiff, as is clear from perusal of Defendant No. 2 to 5 therein took Memorandum of Understanding objection that the plaintiff was not dated 08.05.2014 by which Plaintiff party to said suit and fact of the authorised Defendant No. 1 to take matter is that the plaintiff refused all necessary actions to retrieve to become the co-plaintiff in the possession of the suit property from said suit just to escape the burden other Defendants on his behalf. of attending the day to day hearings in the said suits and Para 22: Since Defendant Nos. 2-5 further to escape the burden of did not hand over possession to engaging of advocates and Plaintiff and Defendant No. 1 financial burden & collection of CS(OS) 252/2018 Page 9 of 17 despite receipt of legal notices, evidences in support of said suits. Defendant No. 1 filed two Civil The Defendant No. 1 has made Suits for possession, injunction and expenses towards the filing of suit recovery of misuse charges/damages and handling the suit before the on 30.05.2007 &31.05.2007 against District Court. The entire Defendant No. 2 and Defendant professional fees of advocates Nos. 3-5 respectively. These suits appeared from time 1 *0 to time had were instituted and prosecuted in the been paid by the Defendant No. 1 Tis Hazari District & Sessions and plaintiff never paid or Court, New Delhi. contributed a single penny in payment of professional fees etc. Para 23: While the Plaintiff was The Defendant No.l on all the not arrayed as a party in the occasions appeared in the suits abovementioned Civil Suits, as and remained personally present stated above he gave permission to in all the hearing of such suits. It is Defendant No. 1 to do so and had further submitted there were in assured Defendant No. 1 that he totality 76 hearings of the suit before would provide assistance in any the trial court and Defendant No.l manner required. In this regard, it personally attended along with his is necessary to submit that in order son on each and every date of such to formalise the understanding hearings. The plaintiff appeared in between Plaintiff and Defendant No. the suit only once that too as a 1 that Defendant No. 1 was witness to prove the pleadings of the prosecuting the two civil suits in Tis suit. It is submitted that the said suits Hazari District Court against were filed in the year 2007 and the remaining Defendants on behalf of MOU was entered in the year 2014 both co-owners, and also to lay so it is not possible for the plaintiff down an agreed methodology to by virtue of said MOU dated clearly demarcate the respective 08.05.2014 to authorise the portions of the composite suit Defendant No.l to take all property that would fall to their necessary actions to retrieve the respective shares. Plaintiff and possession of suit property from Defendant No. 1 executed a joint the Defendant No. 2 to 5 on his Memorandum of Understanding behalf. It is further wrong and (hereinafter referred to as denied that the legal notice to "Memorandum") dated vacate the suit premises was given 08.05.2014 whereby they agreed to with the knowledge and consent of co-operate in the effort to legally the plaintiff. It is submitted that the CS(OS) 252/2018 Page 10 of 17 evict remaining Defendants and plaintiff from the inception of Lease also to amicably partition the Deed in the year 1964 remained as property by physical division or stranger in the suit property and other means, once the eviction never ever participated or proceedings were successfully contributed in any manner concluded. whatsoever in respect of the suit property. The MOU entered into Para 24: It is further necessary to between the Plaintiff and state that the Defendant No. 1 has Defendant No.l was nothing but unequivocally admitted in his plaints the agreement to partition the and affidavits towards evidence in property and modalities with lieu of examination-in-chief in both respect to the portions to be abovementioned civil suits that the evicted after the disposal of suits suit property is owned jointly by pending before the trial court. It is Plaintiff and Defendant No. 1, each matter of fact that the plaintiff has having 50% undivided share therein. intentionally and mischievously The said Suits are entirely premised failed to honour some of the on the fact that the other two clauses i.e. clause 5 & 7 of said brothers, namely Defendant No. 2 MOU till date and it is Defendant and Late Sh. Surinder Kumar Gupta No.l who single handedly took entire (through his legal heirs Defendant initiative for maintenance and up Nos. 3-5), have no right, title or keep of the common areas and other interest, which vests exclusively in make repairs in the suit property. It Plaintiff and Defendant No. 1. is further matter of record of trial Unfortunately, as will be court proceedings in the two subsequently averred. Defendant suits that the plaintiff refused to No. 1 is now resiling from this stand became the co-plaintiff in that suit taken by him on affidavit in the and due to which the proceedings previous suits, and is denying title of were delayed and the plaintiff only the Plaintiff, for reasons best known after partitioning the suit property in to him, leading to the filing of the the manner as provided in MOU present suit. dated 08.05.2014 agreed to help the Defendant No.1 in becoming one of Para 25: It is further pertinent to the witness to verify and depose the mention that in the course of facts mentioned in the said suits. proceedings in the earlier That clause 9 of the said MOU itself abovementioned Civil Suits, reflect the attitude and conduct of Defendant Nos. 2-5, inter alia, the plaintiff which specifically states CS(OS) 252/2018 Page 11 of 17 sought to raise a spurious defence that ''That it is agreed that second that the suits were not maintainable party will fully cooperate and by a single co-owner and did not pursue the court proceedings have the support of the Plaintiff, alongwith the first party is already who as stated above, had not been initiated for getting evacuated the arrayed as a party in those suits. To disputed portion under possession answer these frivolous objections, of Rajinder Prasad Gupta and and in discharge of his Mrs. Alka Gupta and render his responsibilities undertaken vide evidence as and when asked for by Memorandum dated 08.05.2014, the first party. Both the parties Plaintiff herein tendered evidence will share equal expenses on in both aforesaid Civil Suits professional fees, court fees and affirming his 50% undivided other charges etc." Thus the ownership of the suit property aforementioned clause clearly and fully supporting prayer for reflects that the plaintiff was more eviction of the Defendant Nos. 2 to interested in getting the partition of
5. Plaintiff herein also entered the the suit property then to contest the witness box as a Plaintiff's Witness suits filed before the Trial Court. on behalf of Defendant No. 1 herein, Thus once the partition is already where he was cross examined by affected and it was mutually agreed counsel for Defendant Nos. 2 to 5, by virtue of clause 4 of the MOU however he steadfastly deposed the that both the parties willingly and same facts as averred in the present without any coercion confirm that plaint and affirmed the same under they will never contest and dispute cross examination. their equal share in any court of law but the plaintiff has filed the instant Para 26: That both aforesaid Civil suit against the intent and spirit of Suits were finally argued and said MOU and more specifically be reserved for judgment. However, at stated as partition deed. It is the stage of passing of judgment. submitted that the contents of Defendant Nos. 2 to 5 chose to preliminary objections may be read settle the two cases. Vide order as reply to the contents of paras dated 23.11.2017 passed by the under reply and the same are not Court of Sh. Harish Kumar, ADJ-13 repeated herein for the sake of (Central), Tis Hazari District Court, brevity.
parties agreed that Decrees for Possession of the portions of the suit property occupied by Defendant CS(OS) 252/2018 Page 12 of 17 Nos. 2 to 5 be passed in favour of the Defendant No. 1, who was the sole Plaintiff in those suits. It was further agreed that Defendant No. 2 would hand over possession of portion of Ground Floor occupied by him on or before 23.05.2018, while Defendant Nos. 3 to 5 would hand over possession of second floor occupied by them on or before 23.08.2018, failing which they would be liable to pay damages of Rs. 30,000/- per month for illegal use and occupation, and the decrees would become executable. Needless to say, while the decree for possession was passed in favour of the Defendant No. 1 alone as he was the sole Plaintiff in those suits, the possession of the same would be accepted by him as a trustee on behalf of both coowners including the Plaintiff herein, as that had been his consistent stand throughout the suit.
Para 12: It is wrong to say that Defendant No. 1 claimed to be the owner of the entire suit property.
9. In the reply to the application under consideration, the Defendant admits the ownership documents, the perpetual lease deed dated 31st December 1968 and also the MoU dated 8th May 2014. The application is however opposed primarily on two grounds. Firstly, it is contended that the CS(OS) 252/2018 Page 13 of 17 Defendant has incurred substantial expenses towards the payment of cost of the suit property, construction, maintenance, taxes etc and the Plaintiff therefore cannot claim ownership therein. The said expenses, are in fact subject matter of the counter claim filed by the Defendant for recovery of Rs. 22,87,239/-. Plaintiff contests and disputes that the said amounts were exclusively paid by the Defendant and alleges that the said expenses were shared by the parties and rather the Plaintiff has paid more than his share and deserves the right to recover the excess amount from the Defendant. Be that as it may, even if the Defendant has incurred the expenses as alleged, it does not in any way effect Plaintiff‟s share in the suit property. These expenses can only be a subject matter of a money claim, for which admittedly the Defendant is pursuing its counter claim. The second ground for opposing the application is that the MoU dated 8th May 2014, has already partitioned the suit property and the families of both the parties continue to occupy their respective portions without any interference. This also cannot be a ground to reject the prayer made in the application. The present suit is for enforcement of the terms of the MoU which contemplated that the parties must take steps to effect partition after eviction of the families of other two brothers of the parties from their respective portions in the suit property. The Plaintiff further contends that the suit property has not been demarcated and the possession of one portion or the other does not ipso facto translates into ownership of that portion, unless final partition decree is passed. The MoU is not a Partition Deed. Defendant in the written statement describes it as an "agreement to partition". Moreover, the express terms of the document in clause 4 records that, ''they shall take appropriate steps mutually after eviction of disputed portion under occupation of Sh. Rajendra Prasad and CS(OS) 252/2018 Page 14 of 17 Mrs. Alka Gupta, so that both the parties and their legal heirs enjoy separate marketable titles of their shares In the property", thereby indicating that the Memorandum was executory in nature and contemplated taking further steps towards partition at some time in the future. The MoU is unregistered. It is settled law that a Partition Deed must be by a registered and duly stamped Instrument. Thus, the Memorandum dated 8th May 2014 cannot be construed as a Partition Deed, as held by the Supreme Court in Roshan Singh v. Zile Singh, AIR 1988 SC 881, relevant portion of which reads as under:
"It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, s. 49 of the CS(OS) 252/2018 Page 15 of 17 Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of s. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition."
10. In view of the above discussion and the aforenoted categorical admissions made in the pleadings and by virtue of the admission of the documents on record, the Court has no hesitation to hold that the Plaintiff is entitled to a preliminary decree. Accordingly, a preliminary decree is passed declaring that both Plaintiff and Defendant have 50% undivided share in the suit property.
11. Now we have to move towards passing a final decree. At this stage a comprehensive report of the Local Commissioner would be needed which would consider all factual/legal aspects qua division of property. Hence, before passing a final decree of partition it would be appropriate to appoint a Local Commissioner to suggest the mode of partition. Accordingly, Mr. Abhishek Singh, Advocate (Mobile No. 9910291290) is appointed as the Local Commissioner to visit the suit property bearing no. B-7/33, Safdarjung Enclave, New Delhi- 110029 and suggest the mode of partition. The local commissioner may also take assistance of an architect, if it is found necessary in the circumstances of the case. The fee of the Local Commissioner is fixed at Rs. 1,00,000/-, besides incidental and out of pocket expenses, to be shared by the parties equally. The commission shall be executed within 4 weeks from today and report thereof be filed thereafter. Needless to say that learned Local Commissioner shall put the parties to CS(OS) 252/2018 Page 16 of 17 advance notice prior to his visit/inspection of the suit property.
12. Accordingly, the application stands disposed of. Registry is directed to send a copy of this order to the Local Commissioner. Re-notify on 27th August, 2019.
SANJEEV NARULA, J.
July 03, 2019 nk CS(OS) 252/2018 Page 17 of 17