* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No. 14136/2009 in CS (OS) No. 1251/2008
%
Shri Rajesh Kaushik & Anr. ...Plaintiffs
Through : Mr. R.S. Tomar, Adv. for plaintiff
No.2
Versus
Shri Yogeshwar Kaushik & Ors. ...Defendants
Through : Mr. Anupam Srivastava, Adv. for
defendant No.1
Mr. Aditya Sharma, Adv. for defendant
No. 2
Mr. R.C. Gupta, Adv. for defendant
Nos. 3-4
Decided on: November 19, 2009
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
1. Whether the Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be reported
in the Digest? No
MANMOHAN SINGH, J.
1. The application under consideration being I.A.
No.14136/2009 has been filed on behalf of plaintiff No.1 for passing the
preliminary decree in the suit filed by the plaintiffs for partition in
respect of suit property bearing No.1638-1639, Krishna Gali, Sohan
Ganj, Subzi Mandi, Delhi-110 007 measuring 240 sq. yds. (hereinafter
referred to as the ‘suit property’).
CS (OS) No. 1251/2008 Page 1 of 5
2. The plaintiffs No.1 and 2 and defendants No.1 and 2 are sons
of late Sh. Suraj Bal. Defendants No.3 and 4 are daughters of late Sh.
Suraj Bal. Sh. Suraj Bal died intestate on 25th March, 1976 and was the
absolute owner of the suit property. The suit property thus devolved on
all the legal heirs of Shri Suraj Bal in 1/7th share each. The parties to the
suit i.e. the sons and daughters of Sh. Suraj Bal relinquished their rights
in the suit property in favour of their mother Smt. Parmeshwari after the
death of Sh. Suraj Bal, who therefore became the exclusive owner of the
suit property. Smt. Parmeshwari died intestate on 3rd February, 1996.
On her death, each of the plaintiffs and defendants succeeded to 1/6th
share in the suit property.
3. Defendants No.3 and 4 relinquished their 1/6th share in favour
of their four brothers i.e. plaintiffs No.1 & 2 and defendants No.1 & 2
vide Relinquishment Deed dated 16th July, 2002 registered as document
No.3567, Addl. Book No.1, Volume No.580, Pages 141 to 144 on 5th
August, 2002. Defendants No.3 and 4 are therefore, proforma
defendants and no relief is claimed against them in the suit. Plaintiff
No.1 submits that the suit property is in possession of defendant No.2.
Defendant No.1 has also admitted the case of the plaintiffs in his written
statement.
4. The property was mutated in the records of Municipal
Corporation of Delhi jointly in the names of plaintiffs no. 1 and 2 and
defendants no. 1 and 2.
5. Defendant No.2 during the mediation stated that the property
CS (OS) No. 1251/2008 Page 2 of 5
is divisible and submitted a proposed division plan of the property.
Plaintiff No.1 stated that the division plan given by the defendant No.2
divides the suit property only East-West, North-South giving 54 Sq. yds.
to each. The division plan contains two shares at the front and two at the
back, leaving 3 yards passage in the middle.
6. The plaintiff No.1 states that the suit property is not divisible
by metes and bounds and the proposed partition plan filed by defendant
No.2 is not a lawful division of property. It is further stated that the
division plan filed by defendant No.2 would demolish the existing
constructed structure and would not divide the suit property in four equal
shares. There is also wastage of common land in the form of the afore-
mentioned passage. It is, therefore, prayed that a proper mode of
partition of the suit property be found out by appointing a Local
Commissioner or in the alternative the suit property be sold and the sale
proceeds distributed equally, as they all have an equal share in the
property.
7. The plaintiffs and defendant No.1 are agreeable to the sale of
the suit property but defendant No.2 does not agree with the proposal as
he is in the exclusive possession of the entire suit property and proposed
a partition plan to divide the property by metes and bounds. The
defendant No.2 is admittedly entitled to only one fourth share in the suit
property.
8. Defendant No.2 has admitted all the material facts and the
rights of the plaintiffs. Defendants No.3 and 4 also do not claim any
CS (OS) No. 1251/2008 Page 3 of 5
right in the suit property. All the parties involved in the present suit are
senior citizens and prayed that the matter be decided expeditiously.
9. The plaintiffs are therefore, the co-sharers and joint owners of
undivided half share i.e. they have one-fourth share each in the suit
property. The defendant no. 2 is holding the possession of the suit
property in trust for plaintiffs no. 1 and 2 and defendant no. 1. The
plaintiff no. 2 vide notice dated 19th January, 2008 requested the
defendants no. 1 and 2 and plaintiff no. 1 for partition of the suit
property but no reply came forward to divide the property.
10. The defendant no. 1 in the written statement admitted the
case of the plaintiffs and stated clearly that the plaintiffs no. 1 and 2 and
defendants no. 1 and 2 have one-fourth share each in the suit property.
He agreed for sale of the suit property as the suit property cannot be
partitioned by metes and bounds, as is clear from the site plan annexed
with the application.
11. The defendants no. 3 and 4 also in their written statement
stated that they relinquished their shares in favour of plaintiffs 1 and 2
and defendant no. 1 and 2 vide relinquishment deed dated 16th July, 2002
and does not claim any share in the suit property.
12. The written statement was stated to be filed by the defendant
no. 2. The defendant no. 2 only appeared on 20th July, 2009 before the
Mediation Cell and proposed a division plan of the suit property.
Thereafter, the defendant no. 2 never appeared before the Court or
before the Mediation Centre.
CS (OS) No. 1251/2008 Page 4 of 5
13. As the case in hand relates to partition of the suit property
wherein the shares of plaintiffs no.1 and 2 and defendants no. 1 and 2 are
admitted by all the parties, prima facie, I am of the view that each party
to the suit is entitled to one-fourth share, therefore, the mode of partition
of the suit property be suggested by the Local Commissioner .
14. Accordingly Mr. Balram Chopra, Advocate, (Chamber
No.175, Chambers Block-II, Delhi High Court, Ph. No. 9868908717), be
appointed as Local Commissioner who will visit the site after serving
notice to the parties in advance and after careful inspection of the suit
property, he will suggest the mode of partition of the suit property
bearing no. 1638-1639, Krishna Gali, Sohan Ganj, Subzi Mandi, Delhi-
110 007. The fees of the Local Commissioner is fixed at Rs.30,000/-.
The Local Commissioner shall file his report within two months from
the date of this order. List on 8th February, 2010 for directions and
awaiting the report of Local Commissioner.
MANMOHAN SINGH, J.
NOVEMBER 19, 2009
CS (OS) No. 1251/2008 Page 5 of 5