Delhi District Court
Smt. Chitra Harit vs Sh. Vijay Prakash on 25 January, 2014
:1: CS No.: 135/13
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 135/13
In the matter of :
1.Smt. Chitra Harit W/o Late Sh. Ram Prakash
2. Sh. Neeraj Harit S/o Late Sh. Ram Prakash
3. Kumari Shalini D/o Late Sh. Ram Prakash Minor through her mother and natural guardian as guardian Ad Litem Smt. Chitra Harit, Plaintiff no. 1 All R/O: A5/25, Paschim Vihar, New Delhi.
......Plaintiffs VERSUS
1. Sh. Vijay Prakash S/o Sh. Jai Gopal R/o 3497, Gali no. 5, Regarpura, Karol Bagh, New Delhi.
P.No. 1 Of 9
:2: CS No.: 135/13
2. Sh. Braham Prakash (Deceased) Through LRs.
2(a) Smt. Bimla 2(b) Sh. Anurag 2(c) Ms. Anu All R/o: 3497, Gali no. 5, Regarpura, Karol Bagh, New Delhi.
3. Smt. Bimla (Deceased) Through LRs 3(A) Sh. Ayofhya Narain 3(B) Sh. Jitender Narain 3(C) Sh. Surender Narain 3(D) Sh. Grijesh Narain 3 (E) Smt. Madhu Sharma All R/O: 716, Makimpura, Subzi Mandi, Delhi.
4. Kumari Sarla D/o Late Sh. Jai Gopal 1 Address st :
3497, Gali no. 5, Regarpura, Karol Bagh, New Delhi.
P.No. 2 Of 9
:3: CS No.: 135/13
2 nd Address
:
Librarian,
Library of University of Rohtak,
Rohtak, Haryana .
5. Smt. Saraswati
W/o Sh. Avinash Kumar Gautam
R/o 3497, Gali no. 5.
Regarpura, Karol Bagh,
Delhi.
6. Smt. Lata Bhardwaj,
W/o Sh. R.K. Bhatnagar,
2104/5D, Prem Nagar,
Near Zakhira, New Delhi.
.....Defendants
Date of institution: 24.07.1992
Date of decision: 25.01.2014
SUIT FOR PARTITION
JUDGMENT/FINAL DECREE:
1. Brief facts of the case are that plaintiffs have filed the present suit for partition of property measuring 156 ½ sq. yards falling in khasra P.No. 3 Of 9 :4: CS No.: 135/13 no. 94/4 and 95/5, Sadh Nagar, Palam Colony, Delhi, more particularly shows as red in the site plan by metes & bounds, if not so feasible, then by sale of the property(hereinafter be referred to the suit property).
Plaintiffs claims themselves coowner of the suit property alongwith the defendants being legal heirs of late Sh. Jai Gopal who died intestate at Delhi on 29.01.1973.
2. Initially, some of the defendants appeared. Defendant no. 5 and 6 have filed their joint written statement submitting that the present suit is barred u/s 10 of CPC as already a suit for partition between same parties is pending before Hon'ble High Court of Delhi being suit no. 1483/83 titled Sh. Vijay Prakash & Ors. Vs. Chitra Harit & Ors. This court has no pecuniary jurisdiction to try and entertain the present suit. In the suit pending before the Hon'ble High Court of Delhi a compromise had taken place on 27.04.1989 and the final compromise was recorded on 16.05.1990. The dispute of jewellery was referred to Arbitration. The fact of suit property having been purchased by late Sh. Jai Gopal Harit during his lifetime measuring 313 sq. yards falling in khasra no. 94/4 & P.No. 4 Of 9 :5: CS No.: 135/13 95/5, Sadh Nagar, Delhi is not a disputed fact.
3. Defendant no. 3 also filed his written statement which is similar to the written statement of defendant no. 4 and 5.
4. Defendant no. 1 and 2 have not filed any written statement and they had made a statement on dated 07.09.1995 that they have no objection if decree of partition of the suit property is passed.
5. Plaintiff has filed replication reiterating and reaffirming his case as contained in the plaint and has denied the averments of the defendants in the written statement.
6. Since the defendants and their LRs (in later proceedings of the case) stopped appearing, the court had ordered for service of the defendants/LRs of defendants by way of publication. The defendants/LRs of defendants have also been served by way of substitute service in "Veer Arjun" dated 18.05.2009 & 15.04.2010 but even than the defendants did not care to appear and contest the present suit.
7. Vide order dated 28.02.2007, my learned Predecessor has passed preliminary decree of partition declaring that plaintiffs are jointly P.No. 5 Of 9 :6: CS No.: 135/13 entitled to 1/7th share in the suit property but since thereafter none appeared for defendants.
8. The plaintiff had moved an application for sale of the suit property u/s 2 of the partition Act. Notice of this application was issued to the defendants/LRs of the deceased defendant. On dated 23.10.2008 defendant no. 2 (A) and 2 (C) on behalf of LRs of defendant no. 2 and defendant no. 4, defendant no. 6 in person, defendant no. 3 (A) had been served personally but none appeared on their behalf and remaining defendants remained unserved. The LRs of the defendants who were present before the court on 23.10.2008 have submitted that they have no objection to the mode of partition as approved by the court.
9. Defendant no. 6 also gave statement on 07.10.2001 that he has no objection if suit property is sold and the proceeds are distributed amongst the share holders in accordance with their respective shares.
10. In the application u/s 2 of the Partition Act it is submitted that the suit property measuring 156 ½ sq. yards cannot be partitioned by metes & bounds as the claimants to the suit property are large and P.No. 6 Of 9 :7: CS No.: 135/13 therefore, the sale of the property would be more beneficial for all the share holders.
11. Vide order dated 08.10.2010, my learned Predecessor had allowed the application of the plaintiff u/s 2 of the Partition Act. Consequent thereto, the plaintiff found a buyer of the suit property namely Sh. Hoshiyar Singh R/o A1 B /30C , L.I.G. Flats, Pashcim Vihar, New Delhi. Plaintiff has also got the suit property valued from one Sh. Naresh Kumar Saini, Architect/Supervisor who has filed his report on record dated 18.05.2013 and reported that the value of the suit property measuring 156.50 sq yards as per circle rate @ Rs. 38500/ per sq. meter falling in category no. G, vacant plot, is Rs. 50, 40,456.75. In this case a preliminary decree dated 28.02.2007 had already been passed declaring that plaintiffs are jointly entitled of 1/7th share of plot measuring 156 ½ sq yards falling in khasra no. 94/5 and 95/5, Sadh Nagar, Palam Colony, Delhi.
12. In view of the discussion hereinabove and also in view of the application of the plaintiff u/s 2 of Partition Act which has already been P.No. 7 Of 9 :8: CS No.: 135/13 allowed, this court is of the opinion that the suit property cannot be partitioned between the parties by metes and bounds. The only mode of partition now available is to get the suit property sold in the open market in auction. Though on the record the plaintiff has furnished the particulars of the proposed buyer of the suit property, but this court is of the view that selling the property to the proposed buyer would not be technically feasible as who shall executed the necessary property transfer document in favour of said proposed buyer particularly when the defendants are exparte/ are not turning up. Otherwise also, it would be in the better interest of the parties to the suit that if the suit property is sold in auction through court Auctioneer, the suit property is likely to fetch real market price.
13. Accordingly, a final decree is passed to the effect that the suit property be sold in the open market by way of auction through Court Auctioneer and the proceeds thereof be distributed between the stake holders in the suit property as per their entitlement thereto. To get the final decree implemented, the plaintiff shall be at liberty to move P.No. 8 Of 9 :9: CS No.: 135/13 appropriate execution petition as advised in law. Under the circumstances, parties are left to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 25th January, 2014.
(KISHOR KUMAR) CIVIL JUDGE12/CENTRAL Tis Hazari/Delhi.
P.No. 9 Of 9