Delhi District Court
Smt. Kaushalaya Rani vs Sh. Sanjeev Goel on 15 February, 2013
1
IN THE COURT OF SH. S.K. SARVARIA, DISTRICT & SESSIONS JUDGE
(NORTH WEST) ROHINI DISTRICT COURTS, DELHI
C.S No. 45/2011
In the matter of :
Smt. Kaushalaya Rani,
Wife of Late R.K. Aggarwal,
R/o A-4, Swaran Singh Road,
Adarsh Nagar,
Delhi - 110033 .... Plaintiff
VERSUS
1. Sh. Sanjeev Goel,
son of Late Sh. D.K. Goel,
R/o A-4, Swaran Singh Road,
Adarsh Nagar,
Delhi - 110033.
2. Ms. Seema Goel,
D/o Late Sh. D.K. Goel,
R/o A-1B, Rama Road,
Adarsh Nagar,
Delhi - 110033.
3. Ms. Sangeeta Goel,
D/o Late Sh. D.K. Goel,
C/o Sh. Sanjeev Goel,
R/o A-4, Swaran Singh Road,
Adarsh Nagar,
Delhi - 110033. .... Defendants
Date of Institution : 28.01.2011
Date when arguments were heard : 19.01.2013 and 13.02.2013.
Date of judgment : 15.02.2013
Suit for Partition and Permanent Injunction
J U D G M E N T :-
1. This suit for partition and permanent injunction is filed by the Kaushalaya Rani Vs Sanjeev Goel 2 plaintiff against the defendants.
PLAINTIFF'S CASE :
2. The case of the plaintiff in brief is that plaintiff is a widow lady and is the owner of half share of the total property bearing No. A-4, Swaran Singh Road, Adarsh Nagar, Delhi- 110033, total measuring 226 sq. yards (in short suit property). It is the case of the plaintiff that the suit property was purchased by the plaintiff alongwith one Smt. Kailash Gupta (Goel) wife of Sh. D.K. Goel through registered Sale Deed dated 28.10.1974. The said Smt. Kailash Gupta, unfortunately, expired on 21.01.2009 and her husband Sh. D.K. Goel had predeceased her.
3. It is further the case of the plaintiff that relations between the plaintiff and said Smt. Kailash Gupta were very cordial and they accommodated each other during the life time of Smt. Kailash Gupta. Due to that cordial relationship, Smt. Kailash Gupta was allowed to occupy front portion of the suit property as shown in red colour in the site plan and the portion under the occupation of the plaintiff and her family members has been shown in green colour in the site plan. It is further submitted that the suit property has not been partitioned by metes and bounds at any point of time and the portion used by both the parties and their family members has been shown in yellow colour in the site plan. It is further the case of the plaintiff that after the demise of Smt. Kailash Gupta, she has been survived by the defendants. The defendant nos. 2 and 3 are the married daughters of Smt. Kailash Gupta and defendant no.1, the son of Smt. Kailash Gupta is in occupation and possession of the front portion of the suit property.
4. It is the grievance of the plaintiff that defendant no.1 is in the habit of creating problems in the daily affairs of the family of the plaintiff as the entrance to the premises is common one and he used to take undue Kaushalaya Rani Vs Sanjeev Goel 3 advantages of having possession of front portion. The defendant no.1 used to stop postages, essential service providers such as MTNL bills, electricity bills, water bills, newspaper distributor or the clients of the son of the plaintiff, who is practicing advocate for the last about 20 years. It is further submitted that due to the mischievous activities of the defendant no.1 and his quarrelsome nature, the entire family remains under the fear of defendant no. 1 and feels insecure. Due to this, son of the plaintiff was forced to lodge a complaint with the police against the defendant no.1 for passing threat of life for himself and his family. It is further submitted that defendant no.1 is having licensed pistol and on many occasions, the defendant no.1 told the plaintiff and her family members that he wants vacation of the premises.
5. It is the case of the plaintiff that she had made many requests to the defendant no.1 for partition of the suit property by metes and bounds but every time, he avoided the issue of partition on one way or the other. On 02.01.2011, the plaintiff and her son requested the defendant no.1 to have physical partition of the suit property, but defendant no.1 flatly refused to partition the suit property, rather, he passed a threat of selling out the property to some other persons with the help of the local property dealers. It is stated that defendant no.1 is having malafide intentions to grab the entire suit property and to create interest of some third person in the suit property. It is further the case of the plaintiff that plaintiff being co-owner of the suit property is entitled to have physical partition of the suit property by metes and bounds and take appropriate legal remedies to secure her rights.
6. Hence the present suit is filed by the plaintiff praying for a preliminary decree of partition in favour of the plaintiff and against the defendants thereby partitioning the suit property bearing No. A-4, Swaran Singh Road, Adarsh Nagar, Delhi, between the plaintiff and defendants in equal share i.e. one half share to the plaintiff and the other half to the Kaushalaya Rani Vs Sanjeev Goel 4 defendants. It is also prayed that a Local Commissioner be appointed with the directions to visit the suit property and ascertain the mode of partition and submit his report with respect thereto. The plaintiff has also prayed for a final decree of partition in favour of the plaintiff and against the defendants thereby actually partitioning the suit property between the parties and hand over the vacant, peaceful and separate physical possession of the suit property to the extent of ½ share each to the plaintiff and defendants and if the physical partition by metes and bounds is not possible then to pass an order for sale of the suit property in the open market and ½ share each of the sale consideration be ordered to be given to each of the plaintiff and defendants. In addition, the plaintiff has also prayed for decree of permanent injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their agents, assigns, nominees and whosoever on their behalf from selling, disposing of, alienating or in any manner creating third party interest in respect of suit property either in whole or part of the suit property. The costs of the suit is also prayed on behalf of plaintiff.
DEFENDANTS' CASE / COUNTER CLAIM
7. Defendant no.1 has contested the suit and filed written statement cum Counter Claim. It is submitted on behalf of defendant no.1 that house bearing No. A-4, Swaran Singh Road, Adarsh Nagar, Delhi, is a residential property. The man and the brain behind the dispute is Mr. Sanjay Aggarwal, son of the plaintiff, who is an Advocate and Notary and in fact, he is also in the business of property, property documentation and sale/ purchase of computers/spare parts. Mr. Sanjay Aggarwal has also rented out his chamber in Tis Hazari for the purpose of sale/purchase of used and new computers, cartridge refilling, printer and computer repair.
8. It is the case of the defendant no.1 that suit property was purchased on 28.10.1974 in the names of plaintiff and late Smt. Kailash Kaushalaya Rani Vs Sanjeev Goel 5 Gupta, who was the real sister of plaintiff's husband. Soon after the purchase of the property, an oral partition took place between the families and was also acted upon. By virtue of this oral partition, the plaintiff came into exclusive rear portion of the property, whereas the defendants came into exclusive front portion of the property (however with a common staircase leading from ground floor to top floor). By this arrangement plaintiff got additional 150 sq. fts of sanctioned covered area each at ground floor and first floor. Further, the plaintiff was given the rights to construct barsati floor (on the 2nd floor) with the entire permissible sanctioned covered area (11.6" x 19.4"), and the defendants got only an open area on the said 2 nd floor. The parties had also made an arrangement that they shall have their respective separate entrances at the ground floor. The plaintiff to use exclusive rear entrance and the defendants to use exclusive front entrance. Both the families had thereafter, constructed their respective portions and have been living therein as exclusive owners, since last 36 years.
9. It is further the case of the defendant no.1 that common area and other areas shown in the site plan filed alongwith the plaint is incorrect. It is contended that parties are exclusively using their respective portions, as stated therein before. The plaintiff uses the rear gate for the day to day passage and in the alleged site plan filed alongwith the plaint, she has not shown the said gate. It is further stated that plaintiff has raised unauthorized constructions on the ground floor and also at 2nd floor and has mischievously installed a gate in the common passage. The plaintiff has no right to install such a gate there and defendant is filing a counter claim for removal of the said encroachment.
10. It is further contended on behalf of defendant no.1 that the suit filed by the plaintiff is without any cause of action and plaintiff has not valued the suit on the market value and has not fixed the advalorem court fees, Kaushalaya Rani Vs Sanjeev Goel 6 therefore, the suit filed by the plaintiff is liable to be dismissed. It is submitted on behalf of defendant no.1 that plaintiff is the owner of more than half share of the property by way of oral partition. Denying other averments of the suit, defendant no.1 has prayed that suit filed by the plaintiff be dismissed with heavy costs and it is prayed on behalf of defendant no.1 that plaintiff be directed to remove the iron gate from point A in the site plan Annexure R-3 on the common passage.
Defendant nos. 2 and 3 did not file any written statement.
REPLICATION/ WRITTEN STATEMENT TO COUNTER CLAIM ON BEHALF OF PLAINTIFF
11. In her replication/ WS to the counter claim, the plaintiff has denied all the averments of the defendant no.1 and reiterated her case as contained in the plaint. The plaintiff has specifically, denied that an oral partition took place between the families, and was also acted upon and by virtue of this oral partition, the plaintiff is into exclusive rear portion of the property whereas the defendants came into exclusive front portion of the property. It is specifically, denied on behalf of plaintiff that she raised unauthorized constructions on the ground floor and also at 2nd floor, or that she had mischievously installed a gate in the common passage. It is further denied that plaintiff has no right to install such a gate at point A in Annexure R-3 and the defendant is filing a counter claim for removal of the said encroachment. Rather, it is submitted that the said gate has access to the portion under the use and occupation of the plaintiff and her family.
ISSUES :
12. After completion of the pleadings, the following issues were framed vide order dated 24.05.2011 :-
1. Whether suit is valued properly for the purpose of court fee and jurisdiction ? OPP Kaushalaya Rani Vs Sanjeev Goel 7
2. Whether there was oral partition on the terms and conditions as alleged in preliminary objection no.3 (b) of WS ? OPD
3. Whether plaintiff is entitled to preliminary decree of partition ? OPP
4. Whether plaintiff is entitled to decree of permanent injunction, as prayed ? OPP
5. Whether plaintiff is entitled to final decree of partition ? OPP
6. Whether the defendant is entitled to decree of removal of iron gate from point A in the site plan Annexure R-3 on the alleged common passage ? OPD
7. Relief.
EVIDENCE :
13. In support of their evidence, the plaintiff has examined two witnesses.
PW- 1 is plaintiff Kaushalaya Rani herself. She filed her affidavit in evidence as Ex. P-1. She proved the site plan of the suit property Ex. PW-1/1, copy of Sale Deed dated 28.10.1974 Ex. PW-1/2.
PW- 2 is Sh. Sanjay Kumar Aggarwal, son of the plaintiff. He also filed his affidavit in evidence as Ex. P-2. He proved the copy of the complaint made by him against the defendant no.1 in the police station as Ex. PW-2/1 (colly). He deposed on the stand taken by the plaintiff in her plaint and affidavit. After cross-examination of the witnesses, the plaintiff closed her evidence.
14. On the other hand, defendant no.1 Dr. Sanjeev Goel has examined only one witness. He appeared in the witness box as DW-1 and filed his affidavit in evidence as Ex. DW-1/A. He proved the site plan as Ex. DW-1/1 and relevant documents showing that son of the plaintiff is doing miscellaneous jobs are Ex. DW-1/2 (colly) and Ex. DW-1/3. After being cross examined, the defendant no.1 also closed his evidence.
Kaushalaya Rani Vs Sanjeev Goel 8 ARGUMENTS AND FINDINGS :
15. I have heard Ld. Counsel for both the parties at length and have gone through the written arguments filed by them, record of the case and relevant provisions of law. My findings on the issues framed are as under :-
ISSUE NO.1
16. The plaintiff has valued the suit for the purposes of court fee for relief of partition in the sum of Rs. 16,00,000/- being the value of share of plaintiff in the suit property. In addition, the suit is valued by the plaintiff for the purposes of jurisdiction at Rs. 200/- and the value of the suit for the purposes of court fee and jurisdiction for the relief of permanent injunction is fixed at Rs. 130/-. The plaintiff has paid fixed court fee in the sum of Rs 20/- for the relied of partition and in the sum of Rs.13/- for the relief of injunction. The defendant no.1 has alleged that the plaintiff has not valued the suit on the basis of market value of the property. According to him, suit is undervalued and this court has no pecuniary jurisdiction in the matter. It is also alleged that appropriate court fee has also not been fixed on the plaint.
17. The learned counsel for the plaintiff has stressed that the value for the purposes of court fee and jurisdiction is the choice of plaintiff and the plaintiff having valued the same, the defendant no.1 has no right to challenge it. Reliance is placed upon S. Rm. Ar. S. Sp. SATHAPPA CHETTIAR Vs S. Rm. Ar. Rm. RAMANATHAN CHETTIAR AIR 1958 SC 228 wherein following observations were made:-
"Section 7, sub-s. (iv)(b) deals with suits to enforce the right to share in any property on the ground that it is joint family property and the amount of fees payable on plaints in such suits is "according Kaushalaya Rani Vs Sanjeev Goel 9 to the amount at which the relief sought is valued in the plaint or memorandum of appeal." Section 7 further provides that in all suits falling under S.7(iv) the plaintiff shall state the amount at which the value of the relief is sought. If the scheme laid down for the computation of fees payable in suits covered by the several sub-sections of s.7 is considered, it would be clear that, in respect of suits falling under sub-s. (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court fees. The theoretical basis of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim with any precision or definiteness. Take for instance the claim for partition where the plaintiff seeks to enforce his right to share in any property on the ground that it is joint family property. The basis of the claim is that the property in respect of which a share is claimed is joint family property. In other words, it is property in which the plaintiff has an undivided share. What the plaintiff purports to do by making a claim for partition is to ask the court to give him certain specified properties separately and absolutely on his own account for his share in lieu of his undivided share in the whole property. Now it would be clear that the conversion of the plaintiff's alleged undivided share in the joint family property into his separate share cannot be easily valued in Kaushalaya Rani Vs Sanjeev Goel 10 terms of rupees with any precision or definiteness. That is why legislature has left it to the option of the plaintiff to value his claim for the payment of court fees. It really means that in suits falling under s.7 (iv)(b) the amount stated by the plaintiff as the value of his claim for partition has ordinarily to be accepted by the court in computing the court fees payable in respect of the said relief. In the circumstances of this case it is unnecessary to consider whether, under the provisions of this section, the plaintiff has been given an absolute right or option to place any valuation whatever on his relief.
What would be the value for the purpose of jurisdiction in such suits is another question which often arises for decision. This question has to be decided by reading s.7(iv) of the Act along with s.8 of the Suits Valuation Act. This latter section provides that, where in any suits other than those referred to in Court Fees Act s.7, para. 5, 6 and 9 and para. 10 cl.(d), court fees are payable ad valorem under the Act, the value determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. In other words, so far as suits falling under s.7, sub-s (iv) of the Act are concerned, s.8 of the Suits Valuation Act provides that the value as determinable for the computation of court fees and the value for the purposes of jurisdiction shall be the same. There can be little doubt that the effect of the provisions Kaushalaya Rani Vs Sanjeev Goel 11 of s.8 is to make the value for the purpose of jurisdiction dependent upon the value as determinable for computation of court fees and that is natural enough. The computation of court fees in suits falling under s.7(iv) of the Act depends upon the valuation that the plaintiff makes in respect of his claim. Once the plaintiff exercises his option and values his claim for the purpose of court fees, that determines the value for jurisdiction. The value for court fees and the value for jurisdiction must no doubt be the same in such cases; but it is the value for court fees stated by the plaintiff that is of primary importance. It is from this value that the value for jurisdiction must be determined. The result is that it is the amount at which the plaintiff has valued the relief sought for the purposes of court fees that determines the value for jurisdiction in the suit and not vice versa."
18. Ld counsel for plaintiff has also relied upon Division Bench Judgment of our Hon'ble High Court in Anu Vs Suresh Verma & Ors, the civil suit CS (OS) no. 2546/2010 decided by Single Bench of our Hon'ble High Court on 12.07.2011 in which after relying upon S. Rm. Ar. S. Sp. SATHAPPA CHETTIAR's case (Supra) and Neelavathi & ors Vs N. Natarajan & ors AIR 1980 SC 691 and Jagannath Amin Vs Seetharama (dead) by LRs Others 2007 (1) SCC 674 the following observations were made:
"In my view, in order to constitute joint possession, it is not necessary that the plaintiff should claim to be in joint possession of each of the properties in Kaushalaya Rani Vs Sanjeev Goel 12 respect of which CS (OS) No.2546/2010 Page 7 of 11 partition is sought by him/her. If she claims to be in joint possession of even one of the properties either wholly or partly, that would be sufficient to bring the case within the ambit of Article 7(iv) of Court-fees Act, because what is relevant is joint possession of the estate in respect of which partition is sought. The plaintiff is seeking partition not with respect to any one property, but with respect to all the properties which were owned by her late parents. If partition is sought in respect of more than one property and one of the co-owners possesses one property or a part of it and the other co-owners possess the remaining properties, all of them will be deemed to be in joint possession of the properties subject matter of partition."
19. The plaintiff has also relied upon the Division Bench decision in appeal by our Hon'ble High Court in Saroj Salkan Vs Capt. Sanjeev Singh and others FAO (OS) no. 239/2007 decided on 28.11.2008 wherein after analysis of the case law in Jagannath Amin Vs Seetharama (dead) by LRs Others 2007 (1) SCC 674, Parkash Wati Vs Dayawanti and Others AIR 1991 Delhi 48 and Neelavathi & ors Vs N. Natarajan & ors (1980) 2 SCC 247, the following observations were made by Division Bench of our Hon'ble High Court:-
"13. It is settled law that in a suit for partition, the court fees to be paid if joint possession is pleaded by the plaintiff on the basis that he is the co-owner of the property sought to be partitioned, fixed court fees would be payable under Article 17(vi) of Kaushalaya Rani Vs Sanjeev Goel 13 Schedule II of the Court Fees Act presuming the joint possession of the plaintiff even if the plaintiff is not in actual possession. It is because of the reason that in the case of co-owners, the possession of one is in law possession of all, unless from the averments in the plaint read as a whole, a clear case of ouster is made and in that situation the plaintiff is liable to pay ad-valorem court fees on the market value of this share as provided under Section 7 (iv)(b) of the Court Fees Act notwithstanding the fact that it is also pleaded that the plaintiff was in constructive possession."
20. In S. Rm. Ar. S. Sp. SATHAPPA CHETTIAR's case (Supra) it is made clear by Hon'ble Apex Court that in a suit for partition filed by a co- owner, the plaintiff has a choice to value the suit for the purpose of court fee and the value for the purpose of jurisdiction shall also be the same.
21. In Saroj Salkan's case (Supra) and Anu's case (Supra) our Hon'ble High Court has held that in case the co-owner claims the partition of the joint property then fixed court fees is required to be paid. Further, in Smt. Rani Devi Vs. Ashok Kumar Nagi and another AIR 1999 Delhi 109 Single Bench of our Hon'ble High Court has made following observations:-
"11. Under Article 7 (vi) in Schedule II of the Court-fees Act, where it is not possible to decide the money value of the subject-matter in dispute, the suit can be filed by affixing a fixed Court-fee on the plaint. In Jagdish Pershad v. Joti Pershad, 1975 Rajdhani LR Kaushalaya Rani Vs Sanjeev Goel 14 203, it is held that where the plaintiff claims to be in joint possession of the property of which partition is sought, he is to pay only fixed Court-fee as per Article 17 (vi) in Schedule II of the Court-fees Act. In the present case, however, it is not pleaded anywhere that plaintiff is in joint possession of the property and on the other hand in view of the allegations made in paragraph 4 of the plaint, it is clear that the property is in exclusive possession of defendant No. 1. Therefore, in view of the provisions of Section 7 (iv) (b) of the Court-fees Act and in view of the judgment of this Court in Prakash Wati v. Dayawanti, (1990) 42 DLT 421 : (AIR 1991 Delhi 1) the plaintiff was required to pay Court-fee on the value of her share for seeking the relief of partition. The plaintiff has, therefore, not paid proper Court-fee on the suit. This issue is, accordingly, decided against the plaintiff."
22. In Mitthoo Lal Vs Gopal Chand AIR 1979 All. 226 also relied upon by Ld counsel for plaintiff. Following observations were made by Division Bench of Allahabad High Court:-
"20. The result of what has been said above is that in a suit for partition, for the purpose of jurisdiction the share of the plaintiff in the property is to be valued and not the value of the entire property out of which the share is Kaushalaya Rani Vs Sanjeev Goel 15 claimed."
23. Coming to the present case, the plaintiff has claimed to be in possession of rear portion of the suit property which fact is not disputed. The suit is filed on the premises that suit property is joint property of the parties. The law applicable to the co-owners is that possession of a co-owner of a joint property is deemed to be that of all co-owners. Therefore, in the light of S. Rm. Ar. S. Sp. SATHAPPA CHETTIAR's case (Supra) the valuation of the suit for the purpose of jurisdiction should be in accordance with the valuation for the purpose of court fee. The valuation of the suit is required to be on the basis of fixed court fee in the light of Anu's case (Supra), Saroj Salkan's case (Supra) and Rani Devi's case (Supra) as the parties being co-owners are deemed to be in joint possession of the property. The fixed court fee is required to be paid in the light of above case law and the valuation of court fee made by the plaintiff for the relief of partition of the suit property shall also be the valuation for the purpose of jurisdiction in the light of S. Rm. Ar. S. Sp. SATHAPPA CHETTIAR's case (Supra). Further, for the relief of injunction the suit is valued by plaintiff at Rs. 130/- hence it cannot be said that the suit is beyond the pecuniary jurisdiction of this court or proper court fee is not paid. The issue is accordingly decided in favour of plaintiff and against the defendants.
ISSUE NOS. 2 AND 324. These two issues are interconnected and require appreciation of common questions of facts so it is better to decide these two issues together.
25. It is not disputed that plaintiff with her family is living in the rear portion of the suit property as shown in green colour in the site plan Ex PW 1/1 while defendant no.1 and his family is living in front portion of the suit property as shown in red colour in the site plan Ex PW 1/1. It is not disputed Kaushalaya Rani Vs Sanjeev Goel 16 that the defendant nos. 2 and 3 are married sisters of defendant no.1 and are living in their respective matrimonial homes elsewhere. Undisputedly, the plot in question was purchased jointly by plaintiff and mother of defendants, Mrs. Kailash Gupta. The said Mrs. Kailash Gupta admittedly expired on 21.01.2009 leaving behind the three defendants as her legal heirs. Her husband Sh. D.K. Goel having predeceased her. Another undisputed fact is that the contribution for purchase of plot in question and raising construction on it in the suit property was equally borne by the plaintiff and late Mrs. Kailash Gupta who were co-owners in the suit property with equal shares.
26. In the backdrop of above admitted position, the arguments on behalf of defendant no.1 are that the oral partition has taken place from the date of construction of the suit property and the plaintiff and mother of defendants were living in their respective back and front portions in the suit property. Both parties are paying for separate telephone bills, separate electric bills as per respective consumptions, the floor levels of two portions are of different heights. Both parties have their separate gas connections and separate water meters. They are paying house tax in equal proportion. The suit property has two separate entrances, one is on the front side and other is at rear entrance. It is also contended that the plaintiff has constructed exclusively on upper floor in her portion while the portion occupied by defendants is open at the first floor so oral partition took place between the parties and is implemented and the present suit for partition is not maintainable and no preliminary decree of partition can be passed.
27. The contentions on behalf of plaintiff, on the other hand, are that merely because plaintiff along with her family is living in rear portion of the suit property and defendant no.1 in the front portion does not make this arrangement as oral partition or partition of the suit property by metes and bounds. It is argued that the electricity wiring in the suit property is not separate for the different portions. The house tax is jointly in the name of Kaushalaya Rani Vs Sanjeev Goel 17 original owners. There is no independent witness of any such oral partition. Even the date, time and place of oral partition is not given in the written statement or evidence by defendant no.1. No government department is intimated regarding partition of the suit property by the defendants or their predecessor in interest, so there was no oral partition of the suit property and preliminary decree of partition may be passed as prayed in the plaint. Reliance is placed upon Narender Nath Seth and others Vs Mrs. Lata and others 2012 (128) DRJ 507 wherein our Hon'ble High Court has relied upon the decision of single Judge of our Hon'ble High Court in Hari Ram Vs Lala Om Parkash 2003 IV AD Delhi 124 and the subsequent decision of Division Bench of our Hon'ble High court in the appeal in the said case titled Lala Om Parkash Vs Hari Ram AIR 2005 190 and has decided the questions regarding family partition and settlement between the parties, entitlement of the plaintiff to partition of properties by making the following observations:-
"43. In Hari Ram vs. Lala Om Prakash, 2003 IV AD (DELHI) 124: 2003 (68) DRJ 510 the following pertinent observations were made in a case where the parties were living together in demarcated portions of the same property:-
"14. Admittedly partition of the property particularly amongst the brothers has to be rational, practical and enforceable. By way of oral agreement, the parties may decide to live in such portions which are not worthy of partition by metes and bounds but such oral arrangement for that purpose, the agreement between the parties is nothing more than an arrangement of Kaushalaya Rani Vs Sanjeev Goel 18 convenience and not an agreement of partition of property. The partition of the property particularly where there is a plea of oral family agreement should be workable and each portion should be identifiable in such a manner that may entitle either of the parties to sell or dispose of the same in case any of the parties either out of any need or financial crunch decides to sell.
15. In the instant case the plaintiff is in occupation of certain portion on the ground floor and some portion on the first floor and same is the situation of the premises with the defendant. More so, the portion which was in occupation of the mother have also fallen for being divided between the parties. Over and above, the implication of an agreement by living in their respective portion for more than 30 years does not mean that the oral agreement has been implemented particularly when the property continues to be in joint name and has not been mutated till date in their respective names. Inaction on the part of the parties for getting the portion in their occupation mutated in their own names for the purpose of paying house tax shows that it is nothing but an arrangement between the two brothers that they should continue living in the portion which they have Kaushalaya Rani Vs Sanjeev Goel 19 occupied when their father was alive. This nature of arrangement of living in convenient portions of the suit property at relevant time is borne out from the fact that they had one common kitchen for a long period.
18. ........................................The parties are in possession of portions on ground floor, first floor, second floor and terrace and suit property cannot be partitioned as these are not vertically or otherwise single unit. All these facts when taken in totality make out a case of two brothers living peacefully in their respective portions but not a case of oral family agreement of partition of the property. Had there been any intention on the part of father of the parties to give equal shares in the property, there was no difficulty in executing the Will. Merely because parties have been living for more than 30-40 years in different portions of the house separately does not mean that such an agreement tantamounts to agreement for partition of property."
44. In Lala Om Prakash vs. Hari Ram, AIR 2005 DELHI 190: 2005 (79) DRJ 453, a Division Bench of this Court affirmed the findings of the learned Single Judge in the aforesaid case and held:-
"Therefore, the finding of the learned Kaushalaya Rani Vs Sanjeev Goel 20 single Judge that it was only in the nature of arrangement of living in respective portion of the suit property and living without disputes earlier cannot be construed too mean and reach the conclusion that there was an oral agreement. Once they live in their respective portions and the property being so owned and the same has been constructed, renovated or altered in respect of their respective portions, will not lead to a conclusion that there had been an oral agreement or any independent right emerged in relation to the said property. In the absence of any actual partition having taken place and for the aforesaid reasons, we do not see any infirmity with the impugned order by which a preliminary decree for partition was passed and a local commissioner was appointed for suggesting ways of partition of the property by metes and bounds."
45. In the aforesaid legal and factual scenario, the contention of the defendant Nos.1 to 5 that there was a family settlement which had been acted upon by the parties which was evidenced from the fact that they were living in their demarcated portions of the property is devoid of Kaushalaya Rani Vs Sanjeev Goel 21 merit. Merely because the parties have lived together in their individual portions of the property for the last several decades does not mean that a partition of the property has been effected and has no significance so far as the suit for partition is concerned. More so, when the so-called division is wholly inequitable as two branches of the family are living on the ground floor and the entire first floor and the portion above it is in the sole occupation of the third branch of the family, who is also in occupation of the shop owned by the family, being shop No.48, Khursheed Market. "
28. It is true that earlier the mother of defendants and now defendant no.1 is living in the front portion of the suit property while the plaintiff along with her family is living at the rear portion of the same for the last so many years. It is also not disputed between the parties that the mother of defendants and the plaintiff contributed equally for purchase of plot in question and raising construction of building on it. But, in order that a partition between co-owners is effectively made and is mutually agreed to be a partition by metes and bound, the intention of the co-owners should, in my view, go beyond the family arrangement of living in the different portions of the property in question. This partition to be recognizable legally must confer the right upon the co-owners to deal independently with different government departments/local bodies for obtaining electric connection, paying house tax, obtaining water connection, obtaining ration card etc independently for their respective portion. Further, there must exist the right to transfer the respective portion of the suit property by the co-owners as indicated in Hari Ram's case (Supra) and confirmed in Lala Om Parkash's case (supra). In Kaushalaya Rani Vs Sanjeev Goel 22 the present case, since the parties are dealing with different government departments like electricity department, house tax department etc jointly and the plaintiff has no independent right to sell the rear portion of the property occupied by her and the defendants have no independent right to sell all the exclusive rights, title and interest in the front portion of the suit property, the arrangement between the plaintiff and predecessor in interest of the defendants for living in different portion of the suit property is only a mutually agreeable arrangement or a family arrangement but not partition of the suit property amongst them by metes and bound with respect to these two different portions in the suit property in the light of Narender Nath Seth's case (Supra), Hari Ram's case (Supra) and confirmed in Lala Om Parkash's case (supra). Therefore, I hold that there was no oral partition between the plaintiff and the mother of defendants Mrs. Kailash Gupta which can be called a partition of suit property between them by metes and bounds.
29. Undisputedly, the plaintiff and Mrs. Kailash Gupta were co- owners with regard to land and construction in the suit property. After the death of Smt. Kailash Gupta, her children the three defendants succeeded her, her husband having pre deceased her. Therefore, the plaintiff individually and the three defendants jointly are entitled to half share each in the suit property or in other words, the plaintiff is entitled to 1/2th share and the three defendants individually are entitled to 1/6th share each in the suit property.
In view of above discussion, both the issues are decided in favour of plaintiff and against the defendants.
ISSUE NO.4
30. The plaintiff has sought decree of permanent injunction in her favour and against the defendants thereby restraining the defendants and their representatives from selling, disposing off, alienating or in any manner creating third party interest in respect of whole or part of the suit property. In Kaushalaya Rani Vs Sanjeev Goel 23 the light of my findings on the Issue No.3 above, the preliminary decree of partition needs to be pass in this case. Before the suit property is partitioned by meets and bounds, the status quo with regard to its title and possession should be preserved in the interest of justice. However, the relief of injunction sought by the plaintiff against the defendants, though should be allowed but at the same time the plaintiff, in my view, should also be put to similar restriction that she or her representatives shall not create any third party interest of any kind in the suit property. The issue is decided accordingly.
ISSUE NO.5
31. The defendant has sought the mandatory injunction against the plaintiff for removal of iron gate installed by the plaintiff as shown at point A in the site plan Ex DW-1/1 filed by the defendant. The iron gate is allegedly installed in the common passage, since the preliminary decree of partition is to be passed in the light of my findings on Issue No. 3 above and eventually final decree of partition would be passed after obtaining report of the local commissioner and hearing both parties, the question of installation of iron gate on the common passage has become infructuous as it is not clear now that with the partition of the property by metes and bounds, which of the parties would get the right, title and interest to the passage and iron gate. Therefore, I am of the view, that the status quo in the suit property should be maintained by the parties till its partition by metes and bounds, however, it is made clear that this iron gate should not be locked by the plaintiff, so that both parties have free access to the common passage and to the roof. The issue is accordingly decided against the defendants with above observations.ISSUE NO. 6
32. In the light of my findings on the above issues, the decree of injunction is passed in favour of plaintiff and against defendants restraining the defendants from selling, disposing of, alienating or in any manner Kaushalaya Rani Vs Sanjeev Goel 24 creating third party interest in respect of suit property either in whole or part of the suit property. Similarly, the plaintiff is also restrained from creating any third party interest as to title and possession of any part or whole of suit property bearing no A-4, Swaran Singh Road, Adarsh Nagar, Delhi-110033 as shown in the site plan Ex PW 1/1 However, it is clarified that this decree of permanent injunction shall cease to apply after final decree of partition of suit property by metes and bounds is passed and implemented.
33. The preliminary decree of partition is also passed by holding that the plaintiff is entitled to half share in the land and building constructed in the suit property bearing no. A-4, Swaran Singh Road, Adarsh Nagar, Delhi-110033 and the three defendants together are also entitled to remaining half share in the land and building of the suit property and individually the three defendants are entitled to 1/6 th share in the land and building of the suit property bearing no.A-4, Swaran Singh Road, Adarsh Nagar, Delhi-110033.
The preliminary decree of partition and decree of permanent injunction be drawn accordingly.
34. Counter claim filed by defendant no.1 is dismissed, however, it is clarified that plaintiff shall not lock the door of iron gate installed in passage shown at point A in the site plan Ex DW 1/1 till the final decree of partition of suit property is passed and implemented. The decree sheet be drawn accordingly. The judgment be sent to the server (www.delhidistrictcourts. nic.in).
Announced in the open court on 15th February 2013 (S. K. SARVARIA) DISTRICT & SESSIONS JUDGE DISTRICT COURTS ROHINI, DELHI Kaushalaya Rani Vs Sanjeev Goel