ORDER
K. Ramamoorthy, J.
1. The plaintiff and the defendant are brothers. The suit is for partition. On the 24th of March, 1995, this Court passed the preliminary decree in the following terms:-
“Heard the counsel.
This is a suit for partition. The suit property is a house property bearing No.5352-3 Regharpura Gali No.68, Karol Bagh. The plot on which the house stands was obtained on lease by the late father of the parties who constructed the house. On his death, rights have devolved upon two brothers who are parties to the suit. Each of them is entitled to half share in the property. Property also stands mutated in the name of the parties as per will of the late father. On these facts there is no controversy.
Both parties are residing in this very property though in different portions of the property.
In view of the pleadings of the parties there appears to be no impediment in passing a preliminary decree of partition. The suit is decreed. Let a preliminary decree of partition for the above- said property in half share each be drawn up. Mr.R.N.Andley of Andley Associates Architects, South Extension No.1 is appointed a Commissioner to effect the partition of the property. The Commissioner shall make an actual division between the two parties if possible. The division of properties in two share as far as practicable should be vertical. While partitioning the property the Commissioner shall keep in view any change, or addition/alterations required to be made in the property so as to make the independent portions comfortable would not violate the provision of any law applicable to the property.
Parties shall be at liberty to approach this court for directions. In case it is found that property is not capable of being partitioned, the Commissioner shall make a report to that effect to the Court. Warrant of commission shall issue to the Commissioner accompanied by a copy of the decree.
The Commissioner shall be paid a fee of Rs.4,000/- fee to be shared equally by the parties. Costs in the suit shall be borne as incurred.
Let a decree be drawn accordingly.”
2. As per the directions issued by this Court, the architect, the local commissioner filed his report on the 19th of December, 1995. The report reads as under:-
“In accordance with the instructions from the Registrar, Delhi High Court, New Delhi vide letter No.14813 – I dated 20.09.95 the undersigned visited the premises of the residential property bearing No.5352/5353 Reghar Pura, Gali No.68, Karol Bagh, New Delhi at 10 A.M. on 13th November, 1995 in presence of Shri Niranjan Lal and Shri Prem Nath Aggarwal.
The undersigned was given a copy of the plan of the premises which was verified at site.
The property under reference is double storeyed residential building on a plot measuring 143.33 Sq. yards (119.90 Sqm). About half of the ground floor is let out and remaining half portion is under possession of Shri Niranjan Lal Aggarwal. The first floor, Mezzanine floor and terrace are under possession of Shri Prem Nath Aggarwal.
As per the orders, the undersigned has considered the possibility for division of the property in two portions vertically by dividing the plot longitudinally. In this case the plot can be divided/ partitioned in two equal portions but the covered areas and basic accommodation shall not be equal and sufficient to meet the basic requirements of independent dwelling units on the following reasons:-
Portion marked 'A' Portion Marked 'B'
(Ground Floor under possession (Ground Floor under possession
of Shri Niranjan Lal Aggarwal, of a tenant)
one of the owners)
1. Area of proposed 1. Area of proposed parti-
partitioned plot = 645 Sft. tioned plot = 645 Sft.
2. Shall have more covered area 2. Shall have less covered
i.e. area i.e.
(a) Ground Floor (a) Ground Floor
This portion contains 2 rooms, This portion contains 2 rooms,
1 garage, 1 store room, 1 1 kitchen, 1 bathroom, 2 W.C.
kitchen, 1 bathroom, stairs to and open courtyard as per
go up to mezzanine and first plan
floor and open courtyard as
per plan.
Ground Floor Ground Floor
Covered Area = 620 Sft covered area = 413.75
(b) Mezzanine Floor (b) Mezzanine Floor
Covered area = 112 Sft Covered Area = NIL
(one room)
(c) First Floor (c) First Floor
This portion contains 3 rooms The portion contains 2 rooms,
1 kitchen, 1 bathroom, stairs 1 kitchen, 1 bath, 1 W.C. and
to go up to terrace floor and terrace as per plan.
terrace as per plan.
First Floor First Floor
Covered area = 620 Sft. Covered area = 413.75
The provision of stairs and addition of stairs, W.C. and bath- rooms are not possible as no additional covered areas are permissible under prevailing building by laws as the existing covered areas are as per maximum permissible covered areas.
In case the compound wall is provided divided the plot in two equal plots, the central courtyards in each portion shall become less than minimum permissible size as per building bye laws resulting in ill ventilation to kitchen, toilets and rooms facing the Central Courtyard which shall be against the provision of local building bye laws.
Moreover the sub-division of any plot is not permissible by local authorities. Therefore it shall not be possible to divide the property vertically in two portions.
However, the property can be divided horizontally i.e. floor wise. Therefore it is recommended that the valuation of each floor may be worked out separately by a Registered valuer and the property may be partitioned in two portions on the basis of value of each floor.”
3. The plaintiff had filed objections and the defendant has filed the reply. The defendant had accepted the report of the local commissioner. Rejoinder was also filed by the plaintiff to the objections filed by the plaintiff to the report of the local commissioner.
4. The matter came up before this Court for passing final decree in terms of the report of the local commissioner. The local commissioner has filed a sketch along with the report showing that the property could be partitioned only floor wise and not vertical. It is common ground that the parties are in possession of the property and there is also a tenant.
5. It is submitted on behalf of the plaintiff that if the first floor is allotted to the defendant, the plaintiff would lose the benefit of further construction over and above the first floor if the building bye-laws would permit construction over and above the first floor, and the defendant contended that the person to whom first floor is allotted would lose the benefit of the courtyard on the ground floor.
6. I heard the learned counsel for the parties.
7. The local commissioner/architect had expressed the view that the valuation of each floor could be worked out separately by a registered valuer and the property can be allotted in to portions on the basis of the value of each floor. The suit was filed in the year 1986 and already 13 years had rolled by. The matter has to be disposed of early in the interest of the parties. As there is no dispute with reference to the share, an equitable method has to be adopted to bring about the proceedings its logical conclusion.
8. I am of the view that option should be given to the parties to file their offers in a sealed cover relating to the first floor. In view of the Government’s further permission for construction over and above the first floor, the permissibility of construction over and above the first floor cannot be ruled out. Suppose if ground floor is allotted to the plaintiff and the first floor is allotted to the defendant, the defendant will have the benefit of further construction over and above the first floor. One party cannot be put to an advantage in this position and fixing the valuation by a registered valuer would again be a cumbersome procedure and that will be a time consuming process. Therefore, I am of the view that equitable method could be adopted to direct the plaintiff and the defendant to give in sealed covers their offers to take the first floor and whosoever is the highest bidder, he will be given the first floor. For example, if the plaintiff states that he will give X amount towards the benefit that may accrue to him if the first floor is allotted and if B offers X+1, on the same conditions the allotment of first floor could be made to the highest bidder. After opening the sealed covers, this Court can pass appropriate orders, passing the final decree.
9. The parties shall submit their offers in sealed covers on or before the 10th of July, 1998.
10. Post the matter for further direction on the 15th of July, 1998 before the regular Bench, subject to the orders of Hon’ble the Acting Chief Justice.