THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 03.08.2011
+ CS(OS) 765/2010
NRIPENDRA KUMAR AGGARWAL ..... Plaintiff
Through : Mr. K.R.Chawla, Adv.
versus
S.L. AGGARWAL & OTHERS ..... Defendants
Through : Mr. Rajat Aneja, Adv. for D-
14 to 17.
Ms. Jaya Tomar and Ms.
Babli Kaur, Advs. for D-9 to
13.
Mr. Rishabh Jain, proxy for
D-14 to 17.
Mr. S.S.Parashar, Adv. for
D-1.
Defendant No.5 in person.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No.
2. To be referred to the Reporter or not? No.
3. Whether the judgment should be reported No.
in Digest?
V.K. JAIN, J. (ORAL)
IAs 7266/2011 (for review of orders dated 23.02.2011) &
7292/2011(u/S.5 of Limitation Act) & RP No.366/2011
1. Vide these applications, defendant No.1 is seeking
review of the order dated 23.02.2011 whereby defendant
CS(OS)No.765/2010 Page 1 of 10
No.1 was allowed to continue in possession of the suit
property bearing No.61/30, Ramjas Road, Karol Bagh
(towards house No.61/29, Ramjas Road, Karol Bagh), New
Delhi, subject to his giving undertaking to the Court that in
the event of the Court ultimately deciding that his
possession to the exclusion of other co-owners of the
property was not lawful, he would pay 5/6 of the current
market rent of the aforesaid premises to the other co-owners
of the property, he will maintain status quo with respect to
the aforesaid possession, will not part with its possession in
favour of any other person, will not create any third party
interest therein and will not carry out any addition,
alteration, renovation or any repair whatsoever therein
without prior permission of the Court. He was also required
to ensure that the above-referred portion was properly
maintained and does not get damaged in any manner. The
undertaking was directed to be filed within one week.
2. The learned counsel for the applicant states that
only the first and second floor of property No. 61/30,
Ramjas Road, Karol Bagh (towards house No.61/29, Ramjas
Road, Karol Bagh), New Delhi, is the subject matter of this
suit and, therefore, the undertaking should be confined to
CS(OS)No.765/2010 Page 2 of 10
only those two floors of the property and should not cover
the ground floor which is the exclusive property of
defendant No.1. A bare perusal of the order would clearly
show that the undertaking sought from defendant No.1 is
confined to property which is subject matter of the suit. It
is, in any case, clarified that the undertaking to be
furnished by defendant No.1 in terms of the order of this
Court dated 23.02.2011 would be confined to the first and
second floor of property No.61/30, Ramjas Road, Karol
Bagh (towards house No.61/29, Ramjas Road, Karol Bagh),
New Delhi.
3. The learned counsel for the applicant/defendant
No.1 states that there is no justification for requiring him to
give undertaking to pay 5/6 of the current market rent of
the aforesaid premises to the other co-owners since the
applicant/defendant No.1 is not actually occupying the
aforesaid portion of the property and is holding only the
keys of those premises. Since it is defendant No.1 alone
who continues to hold the keys of the aforesaid portions, it
is he who is deemed to be in possession of the aforesaid
portions and there is no reason why he alone should
continue to enjoy the possession of the aforesaid joint
CS(OS)No.765/2010 Page 3 of 10
property.
At this stage, the learned counsel appearing for
defendant No.1 states that defendant No.1 is ready to
deposit the keys of the first and second floor of the property,
during pendency of the suit. The learned counsel
representing other parties state that they would not insist
on an undertaking for payment of 5/6 of the current market
rent of the aforesaid premises to the other co-owners of the
property in case the keys of the first and second floor,
including the staircase leading to the first and second floor
of the suit property No.61/30, Ramjas Road, Karol Bagh
(towards house No.61/29, Ramjas Road, Karol Bagh), New
Delhi, are deposited by defendant No.1 in the Court. Hence,
a consent order is passed directing defendant No.1 to
deposit the keys of the first and second floor and the
staircase of property No.61/30, Ramjas Road, Karol Bagh
(towards house No.61/29, Ramjas Road, Karol Bagh), New
Delhi, in the Court within a week. The undertaking to be
furnished by defendant No.1 will not include an obligation
to pay 5/6 of the current market rent of the aforesaid
premises to the other co-owners of the property. If
defendant No.1 wants the keys of the staircase temporarily
CS(OS)No.765/2010 Page 4 of 10
for the purpose of cleaning it, he will be entitled to apply to
the Court for this purpose.
These applications stand disposed of in terms of
this order.
IA 11089/2011(O.12 R.6 CPC)
4. Vide this application, defendant No.1 is seeking
permission to file written statement. This is a suit for
partition and, the plaintiff as well as defendants No.1 & 5
are practising Advocates. When this matter was taken up
by Hon’ble Mr. Justice J.R.Midha, on 20.05.2010,
defendants No.1 & 5 were present in the Court along with
their counsel and they admitted that Smt. Kailash Wati was
the owner of suit property bearing No. No.61/30, Ramjas
Road, Karol Bagh (towards house No.61/29, Ramjas Road,
Karol Bagh), New Delhi. It was also admitted that the
plaintiff has one-sixth share in the suit property. The
shares of the parties as mentioned in para 10 of the plaint
were also admitted. It was also submitted that defendants
No.1 & 5 had no objection to the preliminary decree being
passed in terms of the order made in the plaint. It was also
submitted to the Court that a Local Commissioner be
appointed for examining whether the suit property can be
CS(OS)No.765/2010 Page 5 of 10
partitioned by metes and bounds. When this matter was
taken up by the Hon’ble Judge on 31.05.2010, defendant
No.1 sought to withdraw the admissions made on
20.05.2010 and submitted that he wanted to contest the
suit. Defendant No.5, however, stuck to her statement
made before the Court on 20.05.2010. The Court was of the
view that this was a fit case for exercising power under
Order 12 Rule 6 of the Code of Civil Procedure, in view of
the unequivocal statements made by defendants No.1 & 5
before the Court on 20.05.2010 and passed a preliminary
decree declaring that the plaintiff has one-sixth share,
defendant No.1 has one-sixth share and defendant No.5 has
1/42nd share in the suit property. Defendant No.2 had
already filed written statement by that time. Defendants
No.3, 4, 6 to 18 were granted thirty days time to file the
written statement. An appeal was preferred by defendant
No.1 against the order dated 31.05.2010. The appellant
stated before the Division Bench that he proposed to file an
application before this Court praying for leave to file written
statement. The appeal was dismissed as withdrawn.
Pursuant to the statement made before the Division Bench
CS(OS)No.765/2010 Page 6 of 10
on 27.05.2011, defendant No.1 has now filed the application
seeking leave to file the written statement.
5. Since a preliminary decree for partition has already
been passed against defendant No.1, there is no occasion
for him to file a written statement at this stage. On passing
of preliminary decree, the Court needs only to ascertain
whether the property is capable of partition by metes and
bounds or not and in case the property is capable of
partition by metes and bounds, a final decree of partition is
to be passed, thereby partitioning the properties by metes
and bounds. In case the property is incapable of metes and
bounds, the Court is to pass an appropriate order with
respect to its sale, on the request of one or more of its co-
owners.
6. Since a decree based on admission before the
Court has already been passed by this Court and an appeal
preferred against that order has also been dismissed, there
is no question of allowing defendant No.1 to file written
statement at this stage. If defendant No.1 has any
submission to make with respect to passing of final decree,
he will get an opportunity to make such submissions, as
CS(OS)No.765/2010 Page 7 of 10
and when, the Court takes up the passing of the final
decree.
The application being devoid of any merit is hereby
dismissed.
CS(OS) 765/2010
7. Defendants No.5, who is an Advocate and
represents defendants No.2 to 4 and 6 to 8, Ms. Jaya
Tomar, Advocate, who represents defendants No.9 to 13 and
Mr. Rajat Aneja, Advocate, who represents defendants No.14
to 17 admit, on instructions, that property No. 61/30,
Ramjas Road, Karol Bagh (towards house No.61/29, Ramjas
Road, Karol Bagh), New Delhi, was owned by late Smt.
Kailash Wati who died on 07.02.1980 leaving behind six
legal heirs, namely, plaintiff – Shri Nripendra Kumar
Aggarwal, defendant No.1 – Shri Surinder Lal Aggarwal, late
Jitender Kumar Aggarwal, late Shri Ravi Aggarwal, late Shri
B.M.Aggarwal and Mrs. Veena Gupta. They also admit that
all the six legal heirs of Smt. Kailash Wati referred above
became entitled to one-sixth share in the suit property, i.e.
first and second floor of property No. 61/30, Ramjas Road,
Karol Bagh (towards house No.61/29, Ramjas Road, Karol
Bagh), New Delhi. They also request that a preliminary
CS(OS)No.765/2010 Page 8 of 10
decree for partition of the suit property be passed in the
aforesaid ratio. It has also been pointed out that defendant
No.18 – Mrs. Veena Gupta, has also admitted the aforesaid
facts in the written statement filed by her.
8. In view of the aforesaid statements and the
admission made in the WS of defendant No.18, a
preliminary decree for partition is hereby passed declaring
that the parties to the suit have the following share in the
suit property:-
Party to Name Share
the suit
Plaintiff Nripendra Kumar Aggarwal 1/6th
Defendant Surinder Lal Aggarwal 1/6th
No.1
Defendants Gayatri Devi 1/42nd
No.2 to 8 Neelam Aggarwal each
Deepak Aggarwal
Poonam parashar
Sunita Aggarwal
Manjushree
Anjali Aggarwal
Defendants Usha Aggarwal 1/30th
No.9 to 13 Kiran Aggarwal each
Ritu Singhal
Seema Gupta
Rajeev Aggarwal
Defendants Manju Aggarwal 1/24th
No.14 to Sonia Daga each
17 Ankush Aggarwal
Ankur Aggarwal
Defendant Veena Gupta 1/6th
No.18
CS(OS)No.765/2010 Page 9 of 10
9. All the parties present and/or represented before
the Court state that the suit property is incapable of
partition by metes and bounds. Since the parties admit
that the property is incapable of partition by metes and
bounds, the only course of action left for the Court is to sale
the suit property, as is provided under Section 3 of the
Partition Act, on the request of one or more co-owners. The
learned Counsel present before the Court, except defendant
No.1, do make a request for sale of the suit property.
List the matter for hearing on 27th January, 2012,
to work-out the modalities for the sale of the suit property.
(V.K. JAIN)
JUDGE
AUGUST 03, 2011
‘sn’/vn
CS(OS)No.765/2010 Page 10 of 10