Delhi District Court
Ishmeet vs Pankaj Arora on 10 April, 2026
IN THE COURT OF SH. PANKAJ ARORA:
DISTRICT JUDGE-16, CENTRAL DISTRICT:
TIS HAZARI COURTS: DELHI
CSDJ No. 1000/2021
CNR No. DLCT01-010217-2018
Ms. Ishmeet
D/o Late Sh. Pritpal Singh,
R/o 1/41, Ground Floor,
Old Rajender Nagar, Delhi ............Plaintiff
Versus
Sh. Pankaj Arora,
S/o late Sh. Pritpal Singh
R/o 1/57, Ground Floor,
Old Rajender Nagar, Delhi ...........Defendant
Date of Institution : 13.12.2021
Date of Arguments : 09.04.2026
Date of judgment : 10.04.2026
SUIT FOR PARTITION WITH CONSEQUENTIAL RELIEF
OF INJUNCTION.
JUDGMENT
1. Brief facts of this case, as per the plaint, are that the plaintiff and defendant are brother and sister. The late Smt. Ram Pyari w/o Late Sh. Sadhu Singh was the grandmother of the parties to the present suit and during her lifetime she was having lease hold rights in respect of built up entire property bearing no. 1/57, Old Rajender Nagar, Delhi constructed on piece of land admeasuring 55.7 Sq. yards with roof rights situated in the Abadi of Old Rajender Nagar, Delhi-110060 having acquired such rights from President of India vide Registered Lease Deed at serial no. 1599 in Additional Book No. 1, Volume No. 1278 on pages 6 to 8 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 1/18 before the office of the Sub-registrar, Delhi on 16/03/1965 and Conveyance Deed vide serial no. 1600 in Additional Book No. 1, Volume No. 1278 on pages 9 to 10 registered before the Sub- registrar, Delhi on 16-03-1965. During her lifetime, Smt. Ram Pyari bequeathed the above-stated property to his son Late Sh. Pritpal Singh by virtue of a registered Gift Deed dated 25.08.2004 before the office of the Sub-Registrar, Delhi which was recorded at Serial no. 6201, Book no. 1, volume no. 11179 at pages 1-5. Thus, by virtue of the Gift Deed dated 25.08.2004, the lease hold rights pertaining to the said property were donated/transferred to Late Sh. Pritpal Singh in respect to the entire built-up property. The plaintiff and defendant are daughter and son of Late Sh. Pritpal Singh and grandchildren of Late Smt. Ram Pyari. It is further stated in the plaint that in the year 2008, Late Sh. Pritpal Singh entered into a collaboration agreement with one Sh. Mukesh Kumar and as per the terms of the said agreement, Sh. Mukesh Kumar constructed ground, first, second, third, and fourth floors with open roof. It was agreed between them that after the construction of all the floors of the said property, late Sh. Pritpal Singh would remain owner and in possession of Ground and First floors and would vest with Roof rights of the said property whereas Sh. Mukesh Kumar would become owner of second, third and fourth floors of the property. Accordingly, after the construction of the said property, both of them came in possession of their respective floors as mentioned hereinabove. Sh. Mukesh Kumar in the year 2009, sold the 2nd Floor of the property to one Smt. Rakhi, who has been residing in the same since then. Later on, Late Sh. Pritpal Singh in the year 2015 sold the roof rights of the said property to Sh. Mukesh Kumar and he further sold the same to Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 2/18 Smt. Rakhi in the year 2016, who had constructed one room along with toilet and bathroom and the same in her possession and at present she had leased/rented the said floors to some person. Sh. Mukesh Kumar has also leased the third and fourth floors of the said property to some person who are residing therein. After construction of the floors, late Sh. Pritpal Singh during his lifetime remained owner and in possession of the Ground and first floors of the said property where he was residing with his wife namely Smt. Vijay Arora. Late Sh. Pritpal Singh in the year 2016, bequeathed the ground floor of the said property to the defendant by virtue of registered gift deed. Late Sh. Pritpal Singh died intestate in the year 04-01- 2017 leaving behind his wife Smt. Vijay Arora, plaintiff and defendant as the only surviving Legal Heirs of Late Sh. Pritpal Singh. After the death of Sh. Pritpal Singh, his wife Smt. Vijay Arora, plaintiff and defendant were in joint possession of the First Floor of the said property (hereinafter referred to as the 'suit property'). The defendant in the month of April 2017, approached the plaintiff and requested her to provide financial assistance to him as he needed the same. The plaintiff looking at his bonafide needs and requirement, paid a sum of Rs.9,06,000/- to the defendant by way of cheques, which was duly credited in his account. The defendant had assured the plaintiff that he will return the said amount within 6 months however, in spite of assurance given by him, he has failed to repay the aforesaid amount. The plaintiff had been calling upon the defendant to repay the aforesaid amount which was given as loan to him however, in spite of repeated requests, he has failed to pay the loan amount to the plaintiff. Smt. Vijay also expired intestate on 25-06-2020 leaving behind the plaintiff and defendant as her Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 3/18 only surviving legal heirs. Thus, after the death of Sh. Pritpal Singh and Smt. Vijay Arora, the plaintiff and defendant, by way of law of succession, have become joint owners/Co-owners of the suit property in equal share. The plaintiff has requested number of times to the defendant for partition of the suit property by metes and bounds and reminded him that the plaintiff is joint owner of the suit property having her undivided 1/2 share. The defendant has repeatedly promised and had also admitted the plaintiff in having her 1/2 undivided share in the suit property however, he has been avoiding partition of the suit property by metes and bounds on one pretext or the other and had rather been threatening the plaintiff that he will give the suit property on rent or will sell the suit property to some other person despite protest of the plaintiff. The defendant in the month of November 2021, had illegally and unlawfully tried to let-out the suit property to some person without the consent of the plaintiff. The plaintiff immediately contacted the local police and with the intervention of the police, the defendant was prevented from letting the suit property on rent to some other person. However, he had threatened the plaintiff that he will let out or sell the suit property to some other person thereby, defeating the legitimate rights of the plaintiff in respect to her undivided share in the suit property. Hence, this suit.
2.The summons of the suit were served upon the defendant. The defendant filed his written statement wherein he stated that the present suit filed for partition and perpetual injunction is not maintainable as the plaintiff has not approached the court with clean hands and has suppressed the factum of execution of WILL dated 06-05-2016 in favour of Nishant Arora son of the defendant whereby, the suit property has been bequeathed in Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 4/18 favour of Nishant Arora. Besides executing the WILL dated 06.05.2016, late Shri Pritpal Singh also executed two registered gift deeds dated 09.02.2016 in favour of Plaintiff and her minor son Master Pulkit with respect to property no. 1/41, Ground Floor, Old Rajender Nager, New Delhi and in favour of Defendant and his then minor son Master Nishant Arora with respect to property no. 1/57, Ground Floor, Old Rajender Nagar, New Delhi. The parties have been living and enjoying their respective properties as per the wishes of the Late Shri Pritpal Singh. The father of the parties Late Shri Pritpal Singh had immense love and affection for Mr. Nishant Arora as he was in the custody of his grandfather Late Shri Pritpal Singh because his mother had abandoned him on account of matrimonial discord with his father. Mr. Nishant Arora was living with his grandfather till February 2016 at 1/41, Ground Flour, Old Rajender Nagar, New Delhi, however, soon after execution of gift deed by Late Sh. Pritpal Singh, the Plaintiff created a hostile environment within the family and ensured separation of Mr. Nishant Arora from his grandfather. Mr. Nishant Arora had no choice but to move in with his father, the Defendant herein, in the property no. 1/57, Ground Floor, Old Rajender Nagar, New Delhi. The Grandfather could not bear the shock of separation from Mr. Nishant Arora and passed away after couple of months. However, before passing away, Late Shri Pritpal Singh executed the aforesaid WILL dated 06.05.2016 bequeathing 1/57, First Floor, Old Rajender Nagar, New Delhi to Mr. Nishant Arora. After the demise of Late Shri Pritpal Singh on 04.01.2017, the members of the family accepted the family arrangement done by Late Sh. Pritpal Singh. The present suit is therefore not maintainable as there is no property available for Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 5/18 which partition can be sought. The Plaintiff has filed the present suit because when the WILL was executed, the Plaintiff was staying with her father Late Sh. Pritpal Singh and taking advantage of the same, the Plaintiff has stolen certain documents and had perhaps destroyed/ concealed the WILL dated 06.05.2016 and despite numerous requests from the Defendant and his son, the WILL has not been given to them by the Plaintiff. It is further submitted that the Plaintiff is out of possession and ouster has been accepted in the police complaint dated 17.11.2021 which has been filed in the present suit by the Plaintiff and as such, the plaintiff is duty bound to pay ad- valorem court fee on the alleged relief of partition being out of possession. In his reply on merits, the defendant has denied all the averments made in the plaint para-wise.
3. It is pertinent to mention here that preliminary decree has already been passed in the present suit vide judgment dated 23.09.2025. The plaintiff and defendant are held to be entitled for half share each in the suit property i.e., First Floor of property bearing no. 1/57, Old Rajender Nagar, Delhi. It is important to mention that the preliminary decree passed by this Court vide judgment dated 23.09.2025 was never challenged by the defendant in appeal and hence, the said judgment became absolute. Subsequently, Ms. Sarita Dixit, Advocate, was appointed as Local Commissioner from DLSA, as plaintiff was unable to bear the fees of private Local Commissioner, to inspect the suit property and to find out whether the suit property can be divided in two parts by metes and bounds. Pursuant thereto, Ld. Local Commissioner has filed the report stating therein that she has carried out the inspection of the suit property on 19.02.2026, in the presence of plaintiff and son of the defendant Sh. Nishant Arora, who Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 6/18 opened the door of the suit property with the keys which he was carrying. It was found that "there is common staircase for all the floors, and as stated by the parties all the floors are occupied by the different-different occupiers. Property in question is in the shape of flat system and also measuring 50 sq. yds.. There is a common stair case for all the floors as such the suit property can not be divided by metes and bounds as if the property is divided in two portions then way to ingress and outgress for both the parties is not possible in any manner due to common stair case." This report is accompanied with the site plan and photographs of the suit property.
4. Parties have not filed any objections to the report of the Ld. Local Commissioner till date despite being granted ample opportunity.
5. This Court has heard the arguments and perused the record.
6. It is submitted by the Ld. LAC for the plaintiff that she has no objection to the report filed by the Ld. Local Commissioner and a request is made for passing an Order for auction of the suit property as it is not possible to divide the suit property by metes and bounds. On the other hand, Ld. Counsel for defendant did not address any arguments and stated that he would prefer an appeal against the judgment dated 23.09.2025 whereby the preliminary decree has been passed by this Court.
7. It is not in dispute that the suit property is situated on the first floor and there is only a common stair case for all the floors and all the floors are occupied by the different occupiers. Admittedly, no proposal for partition in the suit property by metes and bounds into two parts has been placed on record by parties either before this Court or before the Ld. Local Commissioner at the time of inspection or at any time Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 7/18 subsequent thereto. In view of Judgment dated 23.09.2025 whereby preliminary decree has been passed, both plaintiff and defendant are entitled to half share each in the suit property i.e., First Floor of property bearing no. 1/57, Old Rajender Nagar, Delhi. Thus, it is clear that the suit property is required to be divided into two equal parts. The suit property is a flat which is very small in size i.e., 50 sq. yds. only, comprising of one common hall, one room, one kitchen, one toilet and bathroom. At present, as per the site plan, there is only one staircase to reach to the suit property. The site plan Ex.PW1/4 filed by the plaintiff alongwith the plaint has also not been specifically challenged in the written statement filed on behalf of the defendant. It is not possible to have two separate entry gates and then two separate staircases for reaching the suit property. In these circumstances, in the opinion of this Court, there is no reason to reject the report filed by the Ld. Local Commissioner wherein it is reported that the suit property cannot be divided by metes and bounds. Ample opportunities have been given to the parties to workout settlement, but in vain. Accordingly, this court would now proceed to discuss the principles governing auction sale of suit property hereinafter.
8.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 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 8/18 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."
9. The Full Bench of Hon'ble High Court of Delhi has dealt with the issue of sale of property in Partition in Case bearing O. REF. no. 2/2018 in CS(OS) 1098/2005 titled as Indu Singh and Another Versus Prem Chaudhary and Others. (D.O.D 11.05.2018). The relevant para nos.4 to 6 of the said Judgment are reproduced as under:
"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 equalization) then in such a scenario the joint property could be sold. I may note that owelty means that when by physical partition a co-owner gets less or Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 9/18 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 equalization 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 co-owner as per his share percentage in the joint Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 10/18 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 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 Sub-Rule (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 Sub-Rule (2) of Order XX Rule 18 which applies.
"(iii) As per Order XX Rule 18 Sub-Rule (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 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 11/18 shares declared in the decree. "(iv) So far as urban immovable properties are concerned which are not the subject matter of Sub- Rule (1) of Order XX Rule 18 CPC, Sub-Rule (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 each case are passed. Of course, even with respect to immovable properties which are subject matter of Sub-Rule (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 Sub-Rule (1) or under Sub-
Rule (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 co-owner/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 Sub-Rule (1), and this Sub- Rule (1) of Order XXVI Rule 14 will apply to partition of the properties which are subject matter of both Sub- Rule (1) and Sub-Rule (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 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 12/18 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 Sub-Rule (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 Sub-Rule (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 Sub-Rule (2) 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 Sub-Rule (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 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 13/18 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 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 co-
owner/joint owner then such a person may/would/could Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 14/18 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 co-owner 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 co-owners can buy out the other co-owner/co-owners i.e. rights of pre- emption.
"(iv) Therefore in my opinion the words as found in the last line of Sub-Rule (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."
10.This Court has carefully perused the record. Before proceeding to ascertain the mode of partition, it is important to mention that as far as relief no. (c) of the prayer clause in the plaint is concerned, the same has not been pressed for. Therefore, the said relief has not been considered by this Court. This Court is satisfied with the report of Ld. Local Commissioner that the property cannot be divided by metes and bounds. However, considering the discussion above and in the light of facts and Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 15/18 circumstances of the present matter as well as in view of the submissions of Ld. LAC for plaintiff and the report filed by the Ld. Court Commissioner, this Court is of the opinion that since it is not possible to carve out separate doors for ingress and egress in existing suit property, it is evident that the only mode which is practically available under the law is to auction the property in question or to invoke Section-3 of the Partition Act, 1893. Thus, the only option left is to auction the suit property and to divide the sale consideration in accordance with the respective shares of the parties. However, final decree is required to be passed before invoking Section-3 of the Partition Act, 1893. Further, final decree is required to be engrossed upon non-judicial stamp paper, as has been dealt by the Hon'ble High Court of Delhi 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. "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 CS No. 998/16 Om Bala & Ors. vs. Prakasho & Ors. Page 16 Gupta and Ors. 2013 (135) DRJ 341 (DB) are hereby overruled."
Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 16/18 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)."
11.RELIEF Accordingly, the following order is passed:
12.FINAL ORDER (A) The suit property i.e., First Floor of property bearing no. 1/57, Old Rajender Nagar, Delhi as shown in site plan Ex.PW1/4, shall be sold out in auction and the auction amount, after deducting necessary expenses, shall be distributed amongst the parties, as per their respective re- casted shares ascertained by way of preliminary decree passed vide order dated 23.09.2025. The parties are, however, at liberty to invoke Section 3 of the Partition Act at the time of execution of the Final Decree.
(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 non-judicial 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 non-judicial stamp papers of their respective shares, 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 Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 17/18 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 bore the expenses of defaulting party. (D) In the meantime, parties are restrained from creating any third-party interest in the suit property till the said property is sold out in auction or Sec. 3 of Partition Act is invoked, whichever the case may be.
13.Accordingly, the Final Decree is directed to be drawn only upon submission of the requisite Stamp papers.
14.Decree-sheet be prepared accordingly in terms of this judgment.
15.File be consigned to record room after due compliance.
Digitally signed Announced in the open Court PANKAJ by PANKAJ
ARORA
ARORA Date: 2026.04.11
on 10.04.2026. 17:25:32 +0530
(PANKAJ ARORA)
DISTRICT JUDGE-16/ CENTRAL:
TIS HAZARI COURT:DELHI/10.04.2026
Suit No. 1000/2021 Ms. Ishmeet Vs. Sh. Pankaj Arora, Page no. 18/18