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Showing contexts for: common open plot in Smt. Parsandi Devi & Ors vs Sh. Om Prakash on 12 January, 2016Matching Fragments
9. The defendant has contended that flat in question was not in the sole ownership of late Sh. Sumer Singh as land underneath the Flat No. 3 is in joint lease with the allottee of Flat No. 4 and therefore suit property i.e. the Flat No. 3 in Block No. 12, Pant Nagar, New Delhi could not have been partitioned amongst the legal heirs of late Sh. Sumer Singh.
10. Perusal of the record would reveal that suit filed by the plaintiffs for partition of suit property bearing No. 12/3, Pant Nagar, New Delhi was based on the premise that late Sh. Sumer Singh was leased out the said plot by DDA vide perpetual lease deed dated 10.08.1988 Ex. PW1/1 and later on same was conveyed to late Parsandi Devi & Ors. Vs. Om Prakash Page No. 8 of 14 Sh. Sumer Singh by DDA vide conveyance deed dated 10.08.1988 Ex. PW1/2. Perusal of lease deed Ex. PW1/1 shows that a piece of land in Block No. 12, Pant Nagar, New Delhi measuring 13.95 sq. meter was leased out by President of India in favour of Sh. Sumer Singh jointly with the lessee of Flat No. 4. In the schedule attached with the lease deed Ex. PW1/1, the description of the land leased out to Sh. Sumer Singh jointly with the upper floor allottee was shown as Flat No. 3, Ground Floor in Block No. 12, Pant Nagar, New Delhi. As per para 4 of the Conveyance Deed Ex. PW1/2, the Authority has agreed to sell and the Allottee has agreed to purchase Flat No. 3, Block No. 12, Pant Nagar, New Delhi and an undivided share in the common portions/passage for Rs. 8250/ and the allottee of Flat No. 3 i.e. Sh. Sumer Singh has paid the total sum of Rs. 8250/ in respect of Flat No. 3 in Block No. 12. Schedule 1 attached with the conveyance deed also describes the ground floor flat bearing No. 3 in Block No. 12 consisting of one room, one MP Room, One WC and courtyard. Therefore, it is apparent that as per conveyance deed Ex. PW1/2, DDA has transferred the rights in Flat No. 3 in Block No. 12, Pant Nagar, New Delhi to Sh. Sumer Singh along with common rights with lessee of Flat No. 4. It is also apparent from the conveyance deed Ex. PW1/2 that the dwelling unit i.e. Flat No. 3 is separate from Flat No. 4. Though, lease was joint with the allottee of Parsandi Devi & Ors. Vs. Om Prakash Page No. 9 of 14 Flat No. 4 but same was in respect of common portions i.e. passage leading to staircase, gallery and open space. The description of the plot transferred to late Sh. Sumer Singh categorically reveals that same was in respect of ground floor measuring 13.95 sq. meters and the common portions i.e. passage, staircase etc, shall be common to be used along with the lessee of Flat No. 4. The court vide judgment dated 20.08.2014 has also partitioned the said flat measuring 13.95 sq. meters and no partition has been done in respect of common areas which is in joint lease with allottee of Flat No. 4. Therefore there is no merit in the contention of the defendant the suit property being in joint lease with the allottee of Flat No. 4 could not have been partitioned. Even if the property is leasehold property, there is no bar in partition of the leasehold property and so far the joint lease in respect of land beneath the property in question is concerned, same would remain undivided. Vide conveyance deed, the constructed area has been conveyed, while rights in the land remained uneffected and there is no bar in partitioning the suit property which is separate dwelling unit on the ground floor while the Flat No. 4 is on the first floor and a separate dwelling unit.