Delhi District Court
Cs No. 1844/16 Sis Ram (Through Lrs) vs . Lallu Singh (Through Lrs) Page No. 1 Of ... on 30 January, 2021
IN THE COURT OF ADDITIONAL DISTRICT JUDGE01
SHAHDARA DISTRICT, KARKARDOOMA COURTS: DELHI.
Presided by : SH. VINEET KUMAR.
CS No. 1844/16
IN THE MATTER OF
1. Sis Ram (now deceased)
S/o Late Sh. Mam Raj
Through LRs
i) Smt. Chorto Devi (widow) (deceased)
ii) Naresh Kumar (son) (now deceased)
Through LR's
a) Anita Devi (wife)
b) Jai Bharti (daughter)
c) Chander (son)
d) Ms. Meenu (daughter)
e) Master Garvit (Minor son)
Through mother/Natural Guardian
R/o 9/31, School Marg, Babarpur,
Chhajjupur, North East, Delhi.
iii) Sh. Surjeet Kumar (son)
R/o 98, Chopal Ghar, Babarpur, Shahdara, Delhi.
iv) Smt. Sushila Devi (daughter)
w/o Sh. Gajender Singh Raghav
R/o 229/32, Gali No. 13, Railway Colony,
Mandawali, Fazalpur, Delhi
v) Smt. Suresh Roni (daughter)
w/o Sh. Rajeev Kumar
r/o D50, F Block, Gali No. 10,
Bharampuri, Ghonda, Delhi
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 1 of 26
vi) Smt. Rajbala (daughter)
w/o Sh. Ram Gopal
r/o 700/10, Gali No. 22, Kareda Colony,
Airforce Mohan Nagar, Distt. Ghaziabad (UP).
vii) Smt. Sunita (daughter)
w/o Sh. Rajesh Rona
r/o F55/3, Gali No. 6,
Subhash Vihar, Delhi 110053.
viii) Smt. Manju (daughter)
w/o Sh. Harsh Mohan
r/o 157/2, Pratappura, Agra 282001(UP)
2. Sh. Gajey Singh
s/o Late Mom Raj
r/o 2/7293, Nehru Gali, East Gorakh Park, Shahdara, Delhi 110032.
3. Sh. Bir Singh (deceased)
s/o Lt. Sh. Mom Raj
through LRs.
i) Smt. Sunder Devi (widow)
ii) Sh. Radhey Shyam (son)
iii) Sh. Mahesh (son)
iv) Sh. Naresh (son)
v) Sh. Neeraj (son)
All R/o 97, Patwar Ghar, Babarpur, Shahdara, Delhi32.
vi) Smt. Himani (daughter)
w/o Sh. Atul
r/o H. No. 229, Gali No. 1, Rama Garden, Karawal Nagar,
Delhi 110094.
vii) Smt. Anita (daughter)
w/o Sh. Amit
r/o D271, Balbir Nagar, Shahdara, Delhi 110032.
4. Sh. Mahipal (son) (deceased)
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 2 of 26
through LR
Smt. Mona Devi
R/o 2/7293, Nehru Gali, East Gorakh Park, Shahdara, Delhi 110032.
........Plaintiffs
Versus
1. Sh. Lallu Singh (deceased)
s/o Late Sh. Ram Chander (LR of Lt. Chet Ram)
through LR's
i) Smt. Rajwati (wife)
ii) Smt. Sunita (daughter)
iii) Smt. Geeta (daughter)
iv) Smt. Neha (daughter)
v) Smt. Preeti (daughter)
vi) Smt. Teena (daughter)
vii) Sh. Lalit (son)
All r/o Main Road, Babarpur, Near Pancchayat Ghar, Villgate
Babarpur, Shahdara, Delhi 110032.
2. Sh. Kharku Singh
s/o Lt. Ram Chander
3. Sh. Rajbir
s/o Lt. Ram Chander
Both r/o Village Karkardooma, Delhi 110092.
4. Smt. Barfo
w/o Late Sh. Jaimal Singh
s/o Lt. Sh. Ramchander
4 (a) Pushpa
d/o Lt. Sh. Jaimal Singh
w/o Sh. Kapil
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 3 of 26
r/o H. No. 895/E,
Rana Pratap Gali,
Babarpur, Shahdara,
Delhi 110032.
5. Sh. Yogender (son)
s/o Late Sh. Jaimal Singh
6. Sh. Pradeep (son)
s/o Late Sh. Jaimal Singh
7. Sh. Naresh (son)
s/o Late Sh. Jaimal Singh
Through mother being minors
r/o 895, Rana Pratap Gali, Babarpur,
Shahdara, Delhi 110032.
7a. Smt. Angoori Devi (daughter of Lt. Ram Chander)
w/o Sh. Ram Kishan
r/o Village Ghodi Bachera, Tehsil G.B. Nagar (UP)
7b. Smt. Jaiwati (daughter of Lt. Ram Chander) expired on 15.12.2018
w/o Lt. Sh. Dhanpat
Through LRs
i) Sonu (son)
ii) Titu (son)
iii) Asha (daughter)
iv) Rupa (daughter)
r/o 900, Rana Pratap Gali No. 2, Babarpur, Delhi.
7c. Smt. Kela Devi (daughter of Lt. Sh. Ram Chander)
w/o Sh. Dhanpal
r/o 156, Gali No. 13, Karkardooma Village, Delhi.
8. Sh. Omprakash (now deceased) (LRs of Lt. Chet Ram)
w/o Lt. Sohan Lal
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 4 of 26
Through LRs
i) Srimati Devi (wife)
ii) Ashok (son)
iii) Sachin (son)
iv) Rekha (daughter)
v) Asha (daughter)
vi) Omwati (daughter)
vii) Jyoti (daughter)
All r/o 68, Talabwali Gali, Babarpur, Delhi.
9. Sh. Bal Kishan (son of Lt. Sohan Lal) (LRs of Lt. Chet Ram)
10. Smt. Malti Devi (wife)
w/o Late Sh. Babu Ram (son of Lt. Sohan Lal)
11. Sh. Bhagwan Das
s/o Late Sh. Babu Ram (son of Lt. Sohan Lal)
12. Sh. Mohender
s/o Late Sh. Babu Ram (son of Lt. Sohan Lal)
12a. Smt. Birwati
d/o Late Sh. Babu Ram (son of Lt. Sohan Lal)
r/o Talabwali Gali, Babarpur, Delhi.
12b. Smt. Rachna
d/o Late Sh. Babu Ram (son of Lt. Sohan Lal)
w/o not known
r/o Karawal Nagar, Delhi.
12c. Smt. Santosh
w/o Sh. Dhir Singh
r/o 900E, Ronopratap, Gali No. 2, Babarpur, Delhi.
13. Sh. Somay Singh (deceased son of Samai Singh)
Through LRs
13a. Santosh (widow)
13b. Rajesh (son)
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 5 of 26
13c. Kishan Kumar (son)
13d. Parvesh Kumar (son)
All r/o Talabwali gali, Babrpur, Delhi.
13e. Aarti (daughter)
w/o Sh. Deepak
r/o Village Karkardooma, Delhi.
14. Sh. Prempal (son)
15. Sh. Ajit Singh (son)
15a. Smt. Anarkali (widow)
15b. Ms. Poonam (daughter)
15c. Ms. Pinki (daughter)
15d. Ms. Rinki (daughter)
All r/o 311E A, Barbarpur, Delhi.
15e. Smt. Premwati (daughter)
w/o Sh. Mohan Singh Tomor
r/o 886E, Gautam Gali, Lohia Marg, Babarpur, Delhi.
15f. Smt. Kamlesh Chauhan (daughter)
w/o Sh. Lakhpat Singh Chauhan
r/o village Atrawali, Hapur (UP).
15g. Smt. Anju Chauhan (daughter)
w/o Magan Singh Chauhan
r/o 160/61, Uttam Nagar, Delhi.
15h. Smt. Saroj Chouhon (daughter)
w/o Sh. Ravinder Chauhan
r/o A7/317, Ph5, Aya Nagar, Delhi.
16. Sh. Dharam Singh
17. Sh. Nain Singh
18. Tejber Singh
18a. Ramphal (deceased)
All s/o Lt. Sh. Revati
S/o Lt. Sh. Khemchand
Through LR's
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 6 of 26
18 a (i) Shailender (son)
18 a (ii) Vipin Kumar (son)
18 a (iii) Ms. Santlata (daughter)
All r/o Mongal Bazar, Babarpur, Delhi.
18 a (iv) Ms. Pooja (daughter)
w/o Sh. Vinod
18 a (v) Ms. Lalita Devi (daughter)
w/o Sh. Amod Kumar
18 a (vi) Ms. Seema (daughter)
w/o Rakesh
18 a (vii) Ms. Barkha (daughter)
w/o Sh. Sudhir
all r/o Village Khatena Distt. G.B. Nagar (UP).
19. Sh. Braham Singh
s/o Lt. Sh. Ram Swaroop
r/o Babarpur, Delhi.
20. Sh. Deshraj
s/o Lt. Sh. Ram Swaroop
through LR's
20 a) Smt. Somwati (widow)
20 b) Sh. Sunil (son)
Both r/o 220/6, Inder Gali, Babarpur, Delhi.
20 c) Smt. Geeta (daughter)
w/o Sh. Rajender
r/o G54, Vijay Vihar, PhI,
Rohini, Sector 7, Delhi.
........ Respondents
Preliminary decree passed on : 29.09.2006
Order passed on : 30.01.2021
Decision : Final Decree Passed
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 7 of 26
SUIT FOR PARTITION
JUDGMENT
1. The present suit for partition was filed by the plaintiffs against the defendants as legal heirs of Sh. Mam Raj, s/o Sh. Chet Ram, who is stated to be cosharer to the extent of 1/3 rd share in respect of the Abadi land forming part of Khasra No. 429, measuring 18 biswa (900 sq. yds) situated in Village Maujpur, Delhi and recorded as such in the revenue records. Another 1/3rd share in the said land is stated to have originally belonged to Sh. Khem Chand, s/o Sh. Ram Prasad, as co sharer/bhumindar, and after his death about 25 years ago, his rights in 1/3rd share devolved upon his two sons, Revti and Ram Swaroop. Revti also died about 12 years back leaving behind the defendants no. 16 to 18 as his legal heirs, and the rights of Sh. Ram Swaroop, who also expired about 10 years back, devolved upon the defendants no. 19 & 20. The rights in the remaining 1/3rd share of the aforesaid land vested with the defendants 1 to 15, who are the legal heirs of Sh. Ram Chander, Sh. Sohan Lal, Sh. Raghuvir and Smt. Chandra, the three sons and daughter of late Sh. Chet ram and late Smt. Chameli. The present suit was contested by defendant no. 1 to 15 and on the basis of the pleadings of the parties, following issues were framed :
1) Whether the plaintiffs are entitled for partition of property forming portion of Khasra No. 429 situate at CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 8 of 26 Village Maujpur, Delhi ? If so, what is the share of the plaintiffs ? OPP
2) Whether the suit of the plaintiffs is barred under Section 55 of Delhi Land Reforms Act, 1954 as contended by the defendants ? OPD
3) Whether the suit is barred by the principles of res judicata on account of decision of Revenue Court in Suit No. 162/RA/82 dated 27.09.1985 ? OPD
4) Whether the defendants have become bhumidar of the land by adverse possession ? OPD
5) Whether the suit of the plaintiffs is bad for misjoinder of necessary parties ? OPD
6) Whether the suit has been properly valued for the purpose of court fees and jurisdiction ? OPP
7) Whether Mam Raj and Ramji Lal are different persons and they do not have any right in the property left behind by Sh. Chet Ram ? OPD
8) Relief
2. Issue no. 2 was ordered to be treated as preliminary issue and has since been decided in favour of the plaintiffs vide order dated 09.05.2006 passed by Hon'ble Mr. Justice Anil Kumar. On the same date, all the CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 9 of 26 defendants were also proceeded exparte and the plaintiffs in their ex parte evidence have filed by way of evidence affidavit of Sh. Sis Ram, plaintiff no. 1, who has proved on record the site plan of the suit property Ex. PW1/1, copy of the order of the Revenue Assistant Ex. PW1/2, copy of the Khatoni for the year 198687 Ex. PW1/3 along with its English translation Ex. PW1/4, copy of Khasra Girdhawari for the year 2001 2002 Ex. PW1/5 and its English translation Ex. PW1/6. After considering the arguments of the plaintiff and material available on record, all the issues were decided in favour of the plaintiff and the preliminary decree was passed in CS No. 379/2003 through Judgment and decree dated 29.09.2006 as follows: "In view of the fact that the plaintiffs have adduced evidence, including documentary evidence, to prove their case and the same has not been controverted by the defendants by leading any evidence in rebuttal, the plaintiffs on the basis of being cosharers to the extent of 1/3rd share have become entitled to a preliminary decree of partition in respect of the piece of land forming part of Khasra no. 429, measuring 18 biswas (900 sq. Yds) situated in Village Maujpur as shown in red in the site plan attached to the plaint (Ex. PW1/1). The remaining twothirds share in respect of the said land shall be partitioned between the defendants - onethird to the CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 10 of 26 defendants no. 1 to 15 and the remaining onethird to the defendants no. 16 to 20."
3. Further vide the aforesaid order, Sh. S.P. Tara, Ld. Deputy Registrar was appointed as Local Commissioner to partioned the suit property by metes and bounds in accordance with respective shares as determined. Ld. Local Commissioner gave report dated 19.04.2007, whereby he suggested that the mode of partition of the suit property is by auction only and there is no other mode of partition feasible with respect to suit property. It is worthwhile to mention that an application under O. 9 R. 13 CPC for setting aside exparte preliminary decree was filed by D1 to D15 which was dismissed vide order dated 24.04.2007. Aggrieved with the said order, an appeal was filed and the same was dismissed by Hon'ble Chief Justice and Hon'ble Mr. Justice Sanjiv Khanna vide their order dated 14.09.2007. In the meantime, objections qua the aforesaid report of Local Commissioner were filed on behalf of defendants and the same were rejected by Hon'ble High Court of Delhi vide order dated 19.05.2015 passed by Justice Nazmi Waziri thereby holding that the auction is only mode of the partition. Thereafter, vide order dated 24.11.2015, Hon'ble Mr. Justice Valmiki J. Mehta was pleased to allow inter se bidding between the parties for the suit property before the Local Commissioner and Sh. S.K. Sarvaria, Ld. District & Sessions Judge (retd.), was appointed as Local Commissioner in the matter. However, on 06.11.2017, it was submitted on behalf of the parties that interse bidding CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 11 of 26 amongst parties could not take place and the matter was fixed for further proceedings.
4. Thereafter, on 09.07.2019, separate statements were recorded by Smt. Barkha as CW1, Smt. Lalita Devi as CW2, Smt. Seema as CW3, Smt. Pooja nas CW4, Smt. Sant Lata as CW5 and Sh. Shailender Singh as CW6 thereby relinquishing their shares out of the share of their deceased father namely Sh. Ramphal in the suit property in favour of their brother Sh. Vipin Kumar. Their affidavits / NOC / relinquishment are Ex.CW 1/1, Ex.CW2/1, Ex.CW3/1, Ex.CW4/1, Ex.CW5/1 and Ex.CW6/1 respectively. The copies of their Aadhar Card are also Ex.CW1/2, Ex.CW2/2, Ex.CW3/2, Ex.CW4/2, Ex.CW5/2 and Ex.CW6/2 respectively.
5. It is pertinent to mention here that during the course of proceedings, various applications under O 22 R 4 CPC have been filed for substitution of LRs of deceased defendants as well as deceased LRs. Further, applications under O. 22 R 3 CPC have also been filed for bringing on record the LRs of deceased plaintiffs as well as LRs of deceased LR Sh. Naresh Kumar. In addition to the above, applications under O. 1 R 10 CPC on behalf of applicants Santosh D/o Sh. Sohan Lal, Smt. Anguri Devi W/o Sh. Ram Kishan, Smt. Jaiwati W/o Late Dhanpat, Smt. Kela Devi W/o Late Dhanpal all D/o Late Ram Chander, Smt. Anarkali W/o Late Sh. Som Pal, Smt Poonam D/o Late Sh. Som Pal, Smt. Pinki D/o Late Sh. Som Pal, Ms. Rinki D/o Late Sh. Som Pal, Smt. Prem CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 12 of 26 Wati W/o Sh. Mohan Singh Tomar, Smt. Kamlesh Chauhan W/o Sh. Lakhpat Singh Chauhan, Smt. Anju Chauhan W/o Sh. Magan Singh Chauhan, Smt. Saroj Chauhan W/o Sh. Ravinder Chauhan, Sh. Shailender, Sh. Vipin Kumar, Both S/o Late Ramphal S/o Late Reoti, Ms. Sant Lata, Ms. Pooja, Ms. Lalita, Ms. Seema, Ms. Barkha, all married daughters of Late Ram Phal S/o Late Reoti, Smt. Pushpa D/o Late Jaimal Singh, Sh. Naresh, Sh. Jogi @ Yogender, Sh. Pradeep S/o Late Jaimal Singh for impleading the said legal heirs / LRs on record as necessary / proper party were filed and the same were disposed of as allowed, thereby impleading the said applicants on record. Further, separate statement of the applicant Sh. Rajbir Singh, who had preferred an application u/s 340 Cr.P.C., has been recorded dated 08.01.2021, whereby it has been stated that he does not wish to pursue the said application any more.
6. Perusal of record reveals that Local Commissioner Sh. S.P. Tara had suggested aution sale as a mode of partition and objections against the same were dismissed by Justice Nazmi Waziri by holding that auction sale of the suit property is the only mode of partition, whereas, Hon'ble Mr. Justice Valmiki J. Mehta had suggested interse bidding as a possible mode of partitioning the suit property. However, in the considered opinion of this court, before reaching a conclusion with respect to mode of partition of suit property, it is essential at this stage to discuss the CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 13 of 26 principles of auction sale first, which are given in the provisions of the relevent Act as under : PRINCIPLES OF AUCTION SALE Section 2 of the Partition Act, 1893 is reproduced as under :
"2. Power to court to order sale instead of division in partition suits : Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that. by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein, or of any other special circumstance, a division of the property cannot reasonably or conveniently be made, and that a sale of the property and distribution of the proceeds would be more beneficial For all the shareholders, the court may, If it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds."
3. Procedure when sharer undertakes to buy.--
(1)If, in any case in which the court is requested under the last foregoing section to direct a sale, any other shareholder CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 14 of 26 applies for leave to buy at a valuation the share or shares of the party or parties asking for a sale, the court shall order a valuation of the share or shares in such manner as it may think fit and offer to sell the same to such shareholder at the price so ascertained, and may give all necessary and proper directions in that behalf.
(2)If two or more shareholders severally apply for leave to buy as provided in subsection (1), the court shall order a sale of the share or shares to the shareholder who offers to pay the highest price above the valuation made by the court.
(3)If no such shareholder is willing to buy such share or shares at the price so ascertained, the applicant or applicants shall be liable to pay all costs of or incident to the application or applications.
7. The Full Bench of Hon'ble High Court of Delhi has recently dealt the issue of Sale of the property in Partition in Case bearing O. REF. 2/2018 IN CS(OS) 1098/2005 titled as Indu Singh and Anr. Versus Prem Chaudhary and Ors. decided on 11.05.2018. The para Nos.4 to 6 of the said Judgment is reproduced herein: "4(i). The meaning of partition, in one more sense, is ‟to give a person his monetary value of the share in the joint properties. Before passing of the Partition Act 1893, the concept of partition only meant partition by metes and bounds or CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 15 of 26 physical partition of the joint properties. In many cases on account of the fact that physical partition by metes and bounds was not possible, there hence resulted a stalemate, because neither the properties could be physically partitioned by metes and bounds nor could sale take place of the joint properties because there was no concept prevalent of partition having the effect of giving a person his monetary value share in the joint properties by selling the joint properties. Partition Act was enacted to remedy this failing. By the Partition Act it was provided for the first time that in case a joint property could not be physically partitioned by metes and bounds (including by applying the principle of owelty or equalisation) then in such a scenario the joint property could be sold. I may note that owelty means that when by physical partition a coowner gets less or more physical property than falling to as per his percentage share in a joint property, then in such a case final partition is effected by, besides physically partitioning the property, in addition also awarding a monetary amount to a person who gets a lesser share of the property on partition than the monetary value equivalent of his share. The person who gets a share which is larger than his monetary value entitlement on partition becomes liable to pay a monetary amount to a person who gets a share lesser than is his monetary value entitlement of his share in the joint property/properties. Owelty principle is thus an equalisation principle.
"(ii) Enactment of the Partition Act however did not provide a complete cure because an entitlement to sell the joint property/properties was only when more than one moiety or upwards of the shareholders agree that the CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 16 of 26 joint property/properties are to be sold. Moiety means 50% or a half share. Therefore in a scenario where less than 50% of the joint owner(s) wanted an order of sale, then such an order of sale could not be passed.
Therefore though the bringing into force of the Partition Act did remedy some shortcoming in the position of the partition law prevailing before the passing of the Partition Act by entitling the sale of the joint property/properties, yet even after passing of this Act there still remained a failing/shortcoming in the situation where if 50% or more of the joint owners did not agree for sale then once again there was a stalemate because partition could not be effected of the joint property/properties either by physical partition by metes and bounds or by selling the joint property/properties and giving a monetary value from the sale proceeds of the joint property/properties to a coowner as per his share percentage in the joint property/properties. We note that there is an aspect with respect to an order of sale under the Partition Act to be deemed to be a decree in terms of Section 8 of the Partition Act, and this aspect will be adverted to in detail hereinafter inasmuch as the provision of Section 8 of the Partition Act existing in this Act is the main reason for reference to this Full Bench. "5(i). The Partition Act was passed in the year 1893 and Code of Civil Procedure was passed later in the year 1908. There are two provisions of CPC which are relevant to the issues at hand, and which are the provisions of Order XX Rule 18 and Order XXVI Rule 14. These provisions have already been reproduced above. "(ii) A reference to Order XX Rule 18 CPC shows that properties of which partition take CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 17 of 26 place are of two types. First type of properties are agricultural properties i.e. those properties which pay land revenue to the Government. Qua such properties the provision of SubRule (1) of Order XX Rule 18 CPC applies. Second type of properties are the properties in urban areas and with respect to partition of such properties, it is the provision of SubRule (2) of Order XX Rule 18 which applies. "(iii) As per Order XX Rule 18 SubRule (1) in a suit for partition there is only one decree which is passed and the ministerial act of physical division of joint property/properties is left to the Collector or a person deputed by the Collector as is provided in Section 54 CPC. Therefore with respect to partition suits of properties paying land revenue to the Government, after a decree was passed declaring the shares of the parties, then by the same decree the Collector or a person deputed by the Collector is appointed to bring about physical division of the properties in terms of the shares declared in the decree. "(iv) So far as urban immovable properties are concerned which are not the subject matter of SubRule (1) of Order XX Rule 18 CPC, SubRule (2) of Order XX Rule 18 CPC provides that where partition cannot be conveniently made without further enquiry, then first a preliminary decree is passed declaring shares/rights of the parties, and thereafter further directions as are required in the facts and circumstance of the each case are passed. Of course, even with respect to immovable properties which are subject matter of SubRule (2) of Order XX Rule 18 CPC there can be cases where it may not be required to pass first only a preliminary decree, and that in certain cases a Court can pass CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 18 of 26 both a preliminary and final decree by one judgment if the properties which are subject matter of the suit for partition are such that the Court can physically divide the joint properties in terms of the shares of the joint owners. "(v) Of course, the factum of physical division of the properties, whether under SubRule (1) or under SubRule (2) of Order XX Rule 18 CPC, the same would also be; where facts of a case so require; by also applying the principle of owelty, because surely and in many cases partition by metes and bounds does result in a person getting that physical share of the property/properties which will be less or more than the monetary value percentage share of that coowner/joint owner in the properties. The principle of owelty (i.e. an equalization amount) is found and clearly so specified under Order XXVI Rule 14 SubRule (1), and this SubRule (1) of Order XXVI Rule 14 will apply to partition of the properties which are subject matter of both SubRule (1) and SubRule (2) of Order XX Rule 18 CPC. "6.(i) At this stage it will be extremely relevant to note two important aspects. (ii) First aspect is that while Sub Rule (2) of Order XX Rule 18 CPC provides that a court may on account of the facts and circumstances as regards the properties which are subject matter of the suit for partition, find that straightaway a final decree for partition cannot be passed giving physical shares in the joint properties to the joint owners, then therefore in such cases, the court passes only a preliminary decree declaring the shares of the parties, and that after passing of the preliminary decree, a court has; as per the last line and set of words of SubRule (2) of Order XX Rule 18 CPC; powers to pass CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 19 of 26 "such further directions as may be required". These words appearing at the end of the SubRule (2) of Order XX Rule 18 CPC are very important and of great significance because these words in my opinion has removed the shortcoming which had still remained in spite of passing of the Partition Act as regards the situation when moiety or upwards of the shareholders did not want sale of the suit properties. With respect to properties which were not subject matter of payment of land revenue to the government, then with respect to such properties which are subject matter of Order XX Rule 18 SubRule (2) CS No. 498/16 page 6 CPC, court was given intendedly the power to pass such further directions as may be required, and such a wide expression therefore in my opinion will entitle a civil court to order for sale of the joint property/properties even if moiety or upwards of the shareholders do not want sale of the joint property/properties. This language of the last few words at the end of Order XX Rule 18 SubRule (2) in my opinion becomes very important and relevant in today s age and date because a considerable number ‟ of immovable properties which are subject matter of suits for partition are properties which have been constructed many decades earlier and which is the next aspect which is being immediately adverted to hereinafter.
"(iii) The second aspect is that over a period of time in urban areas the covered area of construction which is permissible on a plot has been steadily increasing. For example in Delhi previously on a plot ordinarily a ground floor, first floor and a barsati floor (part second floor) was only allowed to be constructed. Barsati floor means that the entire second floor CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 20 of 26 is not allowed to be covered but the second floor which is called as a barsati floor is allowed to be only partly covered. The municipal law thereafter changed whereby almost the entire second floor was allowed to be covered. Thereafter, the municipal law has further changed and a third floor was allowed to be constructed, besides allowing construction of a basement on a property. Now in addition to a plot having a basement and four floors, in view of the scarcity of parking of vehicles in a city like Delhi on account of the existence of unending number of vehicles, stilt parking is also permitted to be made below the ground floor and above the basement floor. Since the ultimate object and the real intention of the joint properties being partitioned is to give a person his monetary value equivalent of his percentage share in the joint property/properties, and since now additional Floor Area Ratio (FAR)/covered area permissible, therefore in old constructed properties, simply by physically dividing the existing construction the same does not result in a person getting his monetary value of his percentage share in the joint property/properties.
Partition therefore really in today s‟ date and age in urban areas is a partition in terms of FAR/covered area, and once that is so, then on such FAR/covered area being available to a coowner/joint owner then such a person may/would/could want to reconstruct for enjoying more constructed area falling to his share, and which will necessarily require bringing down the old construction and thereafter making fresh construction on the plot of basement plus four floors and stilt parking. Thus in very old constructed properties simply physically partitioning of CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 21 of 26 such joint property/properties is not the answer, and the joint property/properties in many cases have necessarily to be sold so as to give a person his actual monetary share value in the joint property/properties. At this stage I would hasten to add that with respect to sale of a joint property, the entitlement of a coowner in terms of Sections 3,4, 6 and 7 of the Partition Act come in, whereby on an order being passed of sale of a joint property, the sale is not necessarily and firstly by public auction/sale, because firstly in the sale proceedings, one or more coowners can buy out the other coowner/coowners' share i.e. right of preemption. "(iv) Therefore in my opinion the words as found in the last line of SubRule (2) of Order XX Rule 18 CPC would result in a position that as of today there no longer exists any gap or shortcoming or failing which would result in a stalemate if joint owner(s), having less than a 50% share, ask for his/their share by filing a suit for partition of the joint property/properties."
8. Having discussed the law in the preceeding paras and upon perusal of the file, it is worthwhile to mention that there is no requirement of passing of another preliminary decree in this matter because upon impleadment of parties by virtue of applications under O 1 R 10 CPC, the newly impleaded parties are only claiming the share out of the share of parties already on record, to which no objections by the parties already on record has been given. Further, ld. counsels for all the parties on record have also agreed that there is no requirement of redrawing the CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 22 of 26 preliminary decree in this matter as the said shares are already determined by the preliminary decree vide order dated 29.09.2006, which still holds good and the parties now on record by way of applications under O 22 R 3 CPC, O 22 R 4 CPC and O 1 R 10 CPC are all claiming their shares from the shares originally ascertained in the said preliminary decree. Considering the number of parties and size of the suit property and upon perusal of the order passed by the Hon'ble Predecesssors, the only mode which is available under the law is by auction sale of the property in question or to invoke Section3 of the Partition Act, 1893. However, the final decree is required to be passed before invoking Section3 of the Partition Act, 1893 as was held by the Hon'ble High Court in Indu Singh (Supra). The final decree is, thus, required to be engrossed upon the Non Judicial stamp paper, as has been dealt by the Hon'ble High Court in the aforesaid Judgment and the relevant operative portion of the said judgment is reproduced as under:
"ORDER OF THE FULL BENCH (Per majority, R.K. Gauba, J, dissenting):
"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.
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 23 of 26 "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 2000 (55) DRJ 544: 2000 (87) DLT 286 (DB) and Sushil Kumar Gupta v. Smt. Prem Gupta and Ors. 2013 (135) DRJ 341 (DB) are hereby overruled." Section 8 of the Partition Act, 1893 is also reproduced hereunder: "8. Orders for sale to be deemed decrees.Any order for sale made by the court under section 2,3 or 4 shall be deemed to be a decree within the meaning of section 2 of the Code of Civil Procedure (14 of 1552)."
RELIEF
9. Accordingly, considering the facts & circumstances of the present case and in the light of Indu Singh (Supra) as well as in view of the discussion above, the final order is passed as under:
FINAL ORDER (A) The suit property i.e. a piece of land in respect of the Abadi land forming part of Khasra No. 429, measuring 18 biswa (900 sq. yds) situated in Village Maujpur, Delhi as shown in red in site plan Ex.
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 24 of 26 PW1/1, shall be sold out in auction and the auction amount, after deducting necessary expenses, shall be distributed to the parties or their legal heirs / LRs, mentioned in the memo, as per their respective shares passed in the preliminary judgment and decree dated 29.09.2006. The parties or their legal heirs / LRs, mentioned in the memo, are however, at liberty to invoke Section 3 of the Partition Act at the time of execution.
(B) The Final decree in this case is required to be engrossed upon non judicial papers as 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. The parties are directed to place on record the nonjudicial stamp papers of requisite amount, as per Article 45, in accordance with their shares.
(C) If one party or more than one party fails to deposit the nonjudicial stamp papers of their respective shares, then the other party(s) is/are at liberty to file the nonjudicial stamp paper of the value of the defaulting party and the amount so spent by such party(s) shall be recoverable as a cost and the auction amount of the defaulting party(s) shall be reduced accordingly against the said cost and shall be paid to the party who had borne the expenses of defaulting party. Accordingly, the Final Decree is to be drawn upon only on the submission of the requisite Stamp papers.
(D) In the meantime, parties or their Legal Heirs / LRs, as mentioned in the memo, are hereby directed to maintain status quo with respect to CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 25 of 26 ownership, possession or any kind of construction upon the suit property till the said property is sold out in auction or S. 3 of Partition Act is invoked, whichever the case may be.
(E) The application u/s 340 Cr.P.C. stands dismissed as withdrawn in view of separate statement recorded. Other applications, if any, pending on record stands disposed of accordingly.
Decreesheet be prepared in terms of this judgment.
File be consigned to record room after due compliance.
Digitally signed by VINEET VINEET KUMAR
KUMAR Date:
2021.01.30
17:11:53 +0530
(Announced on 30.01.2021) (VINEET KUMAR)
Additional District Judge01
Shahdara District: Karkardooma, Delhi.
(This judgement contains 26 pages.)
CS No. 1844/16 Sis Ram (through LRs) vs. Lallu Singh (through LRs) Page No. 26 of 26