Delhi District Court
Smt. Nazima Begum vs Sayyad Rahmat Ali on 24 September, 2018
Nazima Begum V. Sayyad Rahmat Ali & Anr.
IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
SUIT NO.: 409/2015
UNIQUE CASE ID NO.: 613933/16
IN THE MATTER OF:
Smt. Nazima Begum
W/o Late Iqbal Ahmed
D/o Late Sayyad Muzaffar Ali
R/o 6915, Beri Wal Bagh,
Azad Market, Delhi110006. ...Plaintiff
Versus
1. Sayyad Rahmat Ali
S/o Late Sayyad Muzaffar Ali
R/o 2330, Dugdigi Shah,
Turkman Gate, Delhi6.
2. Smt. Ashifa Begum
W/o Sayyad Usuf Ali
R/o 2034, Kucha Chelan,
Kucha Nahar Khan,
Darya Ganj,
New Delhi2. ...Defendants
Suit No. 409/2015 Page 1 of 19
Nazima Begum V. Sayyad Rahmat Ali & Anr.
SUIT FOR PARTITION AND PERMANENT INJUNCTION
Date of institution of the Suit : 30.01.2013
Date on which Judgment was reserved : 28.08.2018
Date of Judgment : 24.09.2018
JUDGMENT
The plaintiff has filed the present suit for partition and permanent injunction against the defendants.
Succinctly the facts, as stated by the plaintiff, in the suit are as under: The Ld. predecessor of this court vide judgment dated 28/11/2015 has passed the preliminary decree in respect of suit property bearing no. 2330, Dugdigi Shah, Turkman Gate, Delhi, admeasuring 90 Sq. Yds. In terms of the said judgment and preliminary decree, the court came to the conclusion that the plaintiff and defendant no. 2 are respectively entitled to 1/4 th share each in the suit property and defendant no. 1 is entitled to ½ (one half share) of the suit property.
The defendant No.1 has challenged the said judgment and decree before the Hon'ble High Court in case bearing RFA No.243/2016 but the Hon'ble High Court has not stayed the further proceedings of this case. The Hon'ble High Court has passed the Suit No. 409/2015 Page 2 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
order dated 27/04/2016 whereby the Hon'ble High Court has observed that Trial Court record be not requisitioned to enable the final decree proceedings to go on.
Vide order dated 18/1/2017, the Ld. predecessor of this court has appointed Local Commissioner and it was directed to the Local Commissioner to visit the suit property and suggest the mode of partition by metes and bounds of the suit property. The Ld. Local Commissioner has filed his report along with the individual site plan of ground floor, first floor, second floor, third floor and fourth floor.
The Ld. Local Commissioner has interalia suggested the following modes for division of suit property by metes and bounds:
(a) There are six shops on the ground floor. The three shops on the one side and another three shops on the other side. One shop each can be allocated to the plaintiff and defendant no. 2 and one shop may be allocated jointly to the plaintiff and defendant No.2 and after selling the same they may take the consideration amount in their respective shares.
(b) As far as the floors are concerned, all the floors are of equal area. The Local Commissioner has given suggestion that the two floors may be allocated to defendant no. 1 and one floor each may be allocated to plaintiff and defendant no. 2. The Local Commissioner has also given suggestion regarding selling of the floors by mutual consent and dividing the consideration as per their respective shares.
Suit No. 409/2015 Page 3 of 19Nazima Begum V. Sayyad Rahmat Ali & Anr.
The defendant no. 1 has filed objections for passing of the Final Decree on the following grounds:
a) The defendant No.1 is in adverse, uninterrupted, continuous, open and exclusive possession of the suit property since last more than 12 years and the plaintiff has never claimed the ownership and possession in respect of the suit property.
b) The defendant No.1 removed all the old structures and waste and has constructed upto 4th floor i.e. ground floor to fourth floor and defendant no. 1 has spent a sum of Rs. One Crore from his own pocket as such defendant no. 1 is the owner of the super structure. The suit property was consisted of only a plot. As such the plaintiff is entitled to her share in the said plot and not in super structure. Plot in question cannot be divided due to existence of the super structure being under the ownership of the defendant no. 1. The possession is with the defendant no. 1.
c) The partition of the suit property is not feasible and the best way is that the plaintiff can get the value of the plot only from defendant no.1 on the basis of the value as it was at the time of passing of the partition decree.
The plaintiff has filed reply to the said objections and denied the aforesaid version of defendant no. 1. It is submitted by the Plaintiff that none of the grounds, as raised in the objections, has been taken by the defendant no. 1 in the written statement. The defendant no. 1 cannot be allowed to plead beyond the written Suit No. 409/2015 Page 4 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
statement. The rights of the parties are adjudicated by passing the preliminary judgment and decree dated 28/11/2015. The objections filed by defendant no.1 are not tenable, at this stage, after passing of the preliminary judgment and decree dated 28/11/2015.
The plaintiff in para No.4 to 6 has pleaded that suit property has been demolished by defendant No.1 with a view to raise multifloor construction with the help of builder and he also not obtained the required sanction from the MCD/ concerned department to raise the multifloor construction.
The perusal of the written statement filed by defendant no. 1, specifically reply to paras 4 to 6 of the plaint, it is specifically pleaded by defendant no. 1 that defendant no. 1 has not carried out any demolition or new construction in the suit property. It is further pleaded that there was no mean or requirement to take the permission as the defendant no. 1 had only carried out minor renovation work in the suit property. It is further pleaded that defendant no. 1 has not carried out any construction i.e. the multi floor construction in the suit property.
The perusal of the order dated 19.3.2013 reveals that defendant No.1 submitted that defendant No.1 is carrying out repairs at the suit property and the Court has restrained the defendant No.1 from raising any construction. Therefore as per version of defendant No.1 the multifloor was already in existence and he was carrying out the renovation work only.
Suit No. 409/2015 Page 5 of 19Nazima Begum V. Sayyad Rahmat Ali & Anr.
Moreover, vide order dated 09/05/2013, the predecessor of this court, while disposing off the application under Order 39 Rules 1 and 2 CPC, has categorically held that residence of the suit property would be entitled to make construction after obtaining the consent of the occupants of residence of suit property and also with the consent and sanction of civic authorities and all laws enforcement agencies. The defendant No.1 has not placed on record of this case any of such permission or sanction which the defendant no.1 has taken from the civic authorities or law enforcement agencies. The defendant No.1 has also not deposed in the evidence regarding carrying of construction of the property by demolition of the property.
Considered from any view point the defendant no.1 has failed to show that he has carried out the construction in the suit property. The defendant No.1 has also not brought the said facts during the entire proceeding at the time of passing of the Preliminary Judgment and decree dated 28/11/2015.
The defendant No.1 has also argued the ownership by way of adverse possession. The Preliminary decree dated 28.11.2015 has already been passed in this case, now the question of adjudication of ownership by way of adverse possession and moreso on a bald, sham, opaque, frivolous and vexatious plea cannot be allowed to be entertained. The said plea was also not the part and parcel of the written statement. Moreover, issue No.7 regarding suit is barred by law of limitation has already been Suit No. 409/2015 Page 6 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
adjudicated and decided while passing of the Preliminary Judgment and decree dated 28.11.2015. It was categorically held that the suit is within period of Limitation.
The defendant no. 1 has come out with totally new different story which was not the part and parcel of the written statement, evidence and record and after passing of the preliminary judgment and decree dated 28/11/2015, the defendant no. 1 cannot agitate the aforesaid objections. The objections regarding construction and adverse possession are totally after thought and same sans merits and are hereby rejected.
The Ld. Counsel for the plaintiff has also argued that in terms of Section 54 CPC and Order 20 Rule 18(1) CPC, the preliminary decree is required to be sent to the Collector for Partition and the report has to be called from the Collector regarding the partition.
As per the provision of Section 54 and Order 20 Rule 18(1) CPC, the preliminary decree, which relates to the agriculture lands are required to be sent to the Collector and not to the immovable properties, which falls in an urban area. The properties which are falling in the urban area are governed by the provisions of Order 20 Rule 18(2) CPC and not by Order 20 Rule 18(1) CPC. The principles regarding the same are also discussed by the Full Bench of Hon'ble High Court of Delhi recently in Case bearing O. REF. 2/2018 IN CS(OS) 1098/2005 titled as Indu Singh and Anr.
Suit No. 409/2015 Page 7 of 19Nazima Begum V. Sayyad Rahmat Ali & Anr.
Versus Prem Chaudhary and Ors. decided on 11.05.2018. The paras no.4 to 6 of the said Judgment are 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 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 Suit No. 409/2015 Page 8 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 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 Suit No. 409/2015 Page 9 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 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."
Suit No. 409/2015 Page 10 of 19Nazima Begum V. Sayyad Rahmat Ali & Anr.
"(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 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 Suit No. 409/2015 Page 11 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 SubRule (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 "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) CPC, court was given intendedly the power to pass such further directions as may be Suit No. 409/2015 Page 12 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 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 Suit No. 409/2015 Page 13 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 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 Suit No. 409/2015 Page 14 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
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 i.e. rights 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."
(The portions are bolded in order to highlight).
The bare perusal of the aforesaid judgment, it caters the arguments addressed by the Ld. Counsel for defendant no.1 that the decree is required to be sent to the Collector for partition. Accordingly, the said argument of the defendant no.1 sans merit and the same is hereby rejected.
The plaintiff and defendant no.2 have jointly submitted and given the joint statements dated 28.8.2018 before the Court that they are satisfied if the three shops on the ground floor of either side be allocated to the plaintiff and defendant no.2 jointly and further, the third floor and the fourth floor of the suit property Suit No. 409/2015 Page 15 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
jointly be allocated to them. Therefore, they are not harping on the concept of owelty i.e. equalization and they are satisfied if the three shops on the ground floor and third & fourth floors of the suit property are allocated to them towards satisfaction of their respective 1/4th share each in the said property.
I have perused the report of the Local Commissioner, Site Plans of the suit property filed by the Local Commissioner and the statement made by the plaintiff and defendant no.2. The property can be divided by metes & bounds in view of the report of the Local Commissioner, the site plans of the suit property filed by the Local Commissioner and as per the submissions and statement of the plaintiff and defendant no.2.
In view of the submissions and statement of Plaintiff and defendant No.2, the defendant no.1 would be entitled to the best floors i.e. first floor and the second floor and the best three shops on the ground floor. The open terrace above the fourth floor shall remain common for effective use of the occupants of ground floor to fourth floor.
In my considered view, the three shops shown as shops no.1, 4 and 5 as depicted in the site plan filed the Local Commissioner of the ground floor falls to the share of the Plaintiff and defendant No.2 jointly and accordingly they are allocated to plaintiff & defendant no.2 jointly. The Shops no. 2, 3 and 6 as depicted in the site plan filed the Local Commissioner of the ground Suit No. 409/2015 Page 16 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
floor falls to the share of defendant No.1 and accordingly they are allocated to defendant no.1.
The third floor and fourth floor as depicted in the site plan filed the Local Commissioner falls to the share of Plaintiff and defendant No.2 and the said floors are allocated to Plaintiff and defendant no. 2 jointly. The first floor and second floor, as depicted in the site plan filed the Local Commissioner, falls to the share of defendant no.1 and are allocated to defendant no.1. The share of allocation of defendant no.1 appears to be somewhat on the higher side but considering the statements of the plaintiff and defendant no.2 as well as the submissions and statement made before this Court by them that they are satisfied with the allocation of the said shops and the floors, therefore, the question of owelty i.e. equalization are meted out.
RELIEF Accordingly, considering the facts & circumstances of the present case, the following FINAL ORDER (A) Shops no.1, 4 and 5 as depicted in the site plan filed the Local Commissioner of the ground floor falls to the share of the Plaintiff and defendant No.2 jointly and accordingly, they are allocated to plaintiff & defendant no.2 jointly. The Shops no. 2, 3 and 6 as depicted in the site plan filed the Local Commissioner of the ground floor falls to the share of defendant No.1 and accordingly, they are allocated to Suit No. 409/2015 Page 17 of 19 Nazima Begum V. Sayyad Rahmat Ali & Anr.
defendant no.1. The shops of plaintiff and defendant no.2 are marked in red colour in Site Plan filed by Local Commissioner. Similarly, shops of defendant no.1 are marked in yellow colour in Site Plan filed by Local Commissioner. The common area i.e. the gallery/passage and the stair case for leading the upper floors are marked in green colour in Site Plan filed by Local Commissioner. The Site Plan filed by Local Commissioner of ground floor is now exhibited as Ex.C1. (B) The third floor and fourth floor, as depicted in the site plan filed by Local Commissioner, falls to the share of Plaintiff and defendant No.1 and the said floors are allocated to Plaintiff and defendant no. 2 jointly. The first floor and second floor, as depicted in the site plan, filed by Local Commissioner, falls to the share of defendant no.1 and are allocated to defendant no.1. The Site Plans filed by Local Commissioner with respect to first floor, second floor, third floor and fourth floor are marked as Ex.C2 to Ex.C5 respectively. The stair case shown in said Site Plan shall remain common and same is marked in green colour in said Site Plans. The terrace floor above the fourth floor shall remain common between the plaintiff and defendants. The open terrace above the fourth floor shall remain common for effective use of the occupants of ground floor to fourth floor. The site plan filed by Local Commissioner in respect of terrace floor is now marked as Ex.C6.
Suit No. 409/2015 Page 18 of 19Nazima Begum V. Sayyad Rahmat Ali & Anr.
(C) The aforesaid shops and floors, as mentioned hereinabove in the final order clause (A) and (B), pertain to suit property bearing no. 2330, Dugdigi Shah, Turkman Gate, Delhi, admeasuring 90 Sq. Yds.
(D) The Final decree in this case is required to be engrossed upon nonjudicial stamp papers 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 non judicial stamp papers of requisite amount, as per Article 45, in accordance with their shares. (E) If one party or more than one party fails to deposit the non judicial stamp papers of their respective shares within two weeks, then the other party(s) is/are at liberty to file the non judicial stamp paper of the value of the defaulting party and the amount so spent by such party(s) shall be recoverable as a cost from the defaulting party.
Accordingly, the Final Decree is drawn upon only on the submission of the requisite Stamp papers. Final Decreesheet be prepared accordingly in terms of this judgment.
File be consigned to record room after due compliance. Announced in the open court on 24th day of September, 2018.
(ARUN SUKHIJA) ADJ07 (Central) Tis Hazari Courts, Delhi 24/09/2018 Suit No. 409/2015 Page 19 of 19