Delhi District Court
JsccAscjGj (Shahdara) vs Sh. Roop Singh on 16 November, 2018
IN THE COURT OF SUSHANT CHANGOTRA,
JSCCASCJGJ (SHAHDARA), KARKARDOOMA
COURTS, DELHI.
Suit No.: 9461/16
Sh. Thakur Prasad
S/o late Algoo Ram
R/o B72C, East Vinod Nagar,
Delhi91.
(Since deceased)
Through Legal Heirs
(a) Smt. Tilaka Devi
W/o Late Sh. Thakur Prasad
R/o B91, Gali no. 5, East
Vinod Nagar, Delhi91.
(b) Smt. Laxmi
W/o Sh. Shubham
R/o F77, East Vinod Nagar,
Delhi110091.
(c) Sh. Prem Singh Thakur,
S/o Late Thakur Prasad
(d) Sh. Mahesh Thakur
S/o Late Sh. Tahkur Prasad
Both resident of: B91,
Gali no. 5, East Vinod Nagar,
Delhi91.
...... Plaintiff
versus
1.Sh. Roop Singh S/o late Algoo Ram R/o House no. 17/311, Kalyan Puri, Delhi110091. (Since deceased) Through legal heirs CS No.9461/16 Thakur Prasad vs. Roop Singh and Anrs. Page no. 1 of 5 1(a) Smt. Shukka Devi W/o Late Sh. Roop Singh 1(b) Vikram S/o Late Sh. Roop Singh Both R/o 17/311, Kalyan Puri, Delhi110091.
2. Sh. Hemender Singh S/o late Algoo Ram (since deceased) Through legal heirs.
2(a) Smt. Chanderwati w/o late Hemender Singh 2(b) Sh. Sher Singh s/o late Hamender Singh 2(c) Sh. Arjun s/o late Hamender Singh all R/o House No.310, 311 Block No.17, Kalyanpuri, Delhi91.
3. Smt. Premlata w/o Sh. late Dharam Veer R/o E147, Gali No.6, East Vinod Nagar, Delhi91.
......Defendants
DATE OF INSTITUTION : 12.05.2006
DATE OF DECISION : 16.11.2017
Suit for Partition, Permanent Injunction and Mesne Profit
1. The plaintiff had filed the present suit for partition of property bearing no. 10/47, Gali no. 6, Vinod Nagar, Delhi measuring 87 sq. yards.
2. The ld. Predecessor of this court vide judgment dated 06.11.2017, CS No.9461/16 Thakur Prasad vs. Roop Singh and Anrs. Page no. 2 of 5 passed a preliminary decree in favour of plaintiff and declared him to be co sharer in the suit property to the extent of his share of 21.75 sq. yards. Ld. Predecessor had also concluded that the share of Sh. Roop Singh and Late Sh. Haminder Singh was to the extent of 32.625 sq. yards respectively.
3. Subsequently, vide order dated 06.06.2018, Ld. Predecessor of this court passed an order that since no proposal was given by any of the parties, therefore, Sh. Mukesh Kumar Sharma was appointed as Local Commissioner to visit the suit property to find out whether it can be divided by meets and bounds. Local Commissioner was also directed to prepare the site plan alongwith sketch of suit property.
4. The Local Commissioner Sh. Mukesh Sharma filed his report on 19.07.2018 stating therein that the suit property can be divided floor wise as it is four storey building measuring 45 sq. yards. He also stated that defendant no. 3 is in possession of the first floor and second floor and defendants no. 1 & 2 were not living in the suit property. No objection has been filed by any of the parties to the report of Local Commissioner.
5. The parties were directed to file floor wise valuation report of the suit property. However neither of the parties submitted the valuation report.
6. It has to be kept in mind that during the pendency of the suit, defendant no. 2 had passed away and his legal heirs were impleaded. Subsequently, plaintiff and defendant no. 1 also passed away and their LR's were also impleaded vide order dated 13.04.2018. Now there are total of 9 shareholders with respect to share of plaintiff and defendants. CS No.9461/16 Thakur Prasad vs. Roop Singh and Anrs. Page no. 3 of 5
7. As per preliminary decree, share of plaintiff was ascertained as 21.75 sq. yards and share of Sh. Roop Singh and Sh. Harminder Singh was 32.625 sq. yards respectively. The Local Commissioner has suggested that the property can be partitioned in floor wise manner. However, I am of the considered opinion that it will not be possible to divide the share of plaintiff, Sh. Roop Singh and Sh. Harminder Singh (as mentioned above) in floor wise manner especially when none of the parties have given any proposal in that regard.
8. Hence, it has to be concluded that the suit property cannot be partitioned by way of meets and bounds or in floor wise manner. Therefore, the only viable mode to partition the suit property is by selling it and then dividing the shares of sale proceeds as ascertained in preliminary decree.
9. In Indu Singh & Anr. Vs. Prem Chaudhary and Ors, 2018 VI AD (DELHI) 233, Hon'ble Supreme Court held that, "I. An order of sale passed under Section 8 of the Partition Act is a final decree in a partition suit, and all proceedings towards sale of the property which is subject matter of the final decree of partition, have to take place in execution proceedings of this final decree.
II. An order of sale in a partition suit passed under Section 8 of the Partition Act is an instrument of Partition under Section 2 (15) of the Stamp Act and requires to be stamped in accordance with Article 45 of the Schedule thereof.
III. The judgments of this Court in the cases of K. N. Khanna CS No.9461/16 Thakur Prasad vs. Roop Singh and Anrs. Page no. 4 of 5 2000 (55) DRJ 544:2000 (87) DLT 286 (DB) and Sushil Kumar Gupta Vs. Smt. Prem Gupta and Ors. 2013 II AD (DELHI) 598 = 2013 (135) DRJ 341 (DB) are hereby overruled. "
10. Accordingly, it is directed that final decree be prepared that the suit property shall be partitioned by sale. Decree sheet be prepared. File be consigned to record room. Digitally signed by SUSHANT SUSHANT CHANGOTRA CHANGOTRA Date: 2018.11.17 16:19:19 +0530 (Announced in the open court) (SUSHANT CHANGOTRA) th 16 November, 2018 ASCJJSCCGJ (SHAHDARA), KARKARDOOMA COURTS/16.11.2018 CS No.9461/16 Thakur Prasad vs. Roop Singh and Anrs. Page no. 5 of 5