CS (OS) No.593/2006 Page 1 of 10 * HIGH COURT OF DELHI : NEW DELHI + CS (OS) No.593/2006 Nirmal Kaur ......Plaintiff Through : Mr. Raman Kapur, Adv. Versus Surjit Kaur & Ors. .....Defendants Through: Ms. Pinky Anand, Sr. Adv. with Mr. Himanshu Upadhyaya, Adv. for Defendant No.3 Judgment reserved on: 8th October , 2009 % Judgment decided on : 23rd December, 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 plaintiff filed the present suit for partition and possession of property bearing No. C-18, Mansarover Garden, New Delhi (hereinafter referred to as “the suit property”). 2. The brief facts of the case are that Late Sh. Chanan Ram was owner of the suit property who by his last Will and testament dated 27.03.1979 bequeathed the said property in equal shares to his two sons i.e. Sh. Joginder Singh of whom defendants are legal heirs and Sh. Inderjit Singh, deceased husband of the plaintiff. Sh. Inderjit Singh expired on 03.12.2004, and he, by his last Will and testament dated CS (OS) No.593/2006 Page 2 of 10 02.12.2004 bequeathed his 50% share in the property in favour of plaintiff, his widow. The suit property was also mutated in the names of late Sh. Inderjeet Singh and late Sh. Joginder Singh by MCD vide letter No. TAZ/WZ/AA&C/87/152/M/86-87 dated 21.03.1988. 3. There is no dispute between the parties to the fact that plaintiff on the one hand is owner of 50% of the property and defendants together on the other hand are owners of the remaining 50% of the property. The only dispute that exists between the parties is with respect to the occupation of the suit property in view of the abovesaid admitted position. 4. In view of the above admitted position, vide order dated 05.10.2006, a Local Commissioner was appointed to visit the property, make a site plan and to report respective occupation of the property with the parties. 5. The Local Commissioner submitted his report on 08.11.2006 stating that the property was entirely in occupation of Defendant No. 4, one co-owner. It is also stated that there is no possibility of exit and entry in the suit property through back gate and even the occupant of the temporary structure at rear could use only the front gate. Therefore, there is an entry to the property only from the front side. 6. On the plea raised by the defendants that area of the property though as per sale deed was 800 sq. yards but the same was less than 800 sq. yards and had been encroached upon, another Local Commissioner Sh. Y.D. Nagar, Adv. who is also an Engineer was appointed on 8th August, 2007. The court directed the Local CS (OS) No.593/2006 Page 3 of 10 Commissioner to inspect the suit property and to ascertain whether the same can be divided into two equal shares by metes and bounds. The local commissioner was also directed to give the exact measurement of the suit property with the help of Revenue Authorities and to indicate whether there has been any encroachment in the property. 7. Mr. Y.D. Nagar carried out measurement of the suit property and found the same to be 611 sq. yards instead of 800 sq. yards reflecting that the neighbourers on both sides had encroached upon part of the property. He found that the front of the property facing the main 30 meter wide Rama Road (East) measured 50 feet wide but the same stood reduced to 28 feet at the rear of the property. He also prepared a site plan which is on page 14 of the Report of Mr. Y.D. Nagar dated 29.10.2007. Mr. Y.D. Nagar clearly opined in his report that the property can be divided into two equal parts from the front to the back in the centre horizontally giving 25 feet each to plaintiff and defendants on the front side and 14 feet each on the rear side, each of the parties getting 305.5 sq. yards, total area being 611 sq. yards. 8. Since there was no dispute with regard to share of the parties in the suit property, a preliminary decree was passed on 29th September, 2008 holding each party to be entitled to 50% share each. 9. The defendants in their written statement admitted that late Sh. Chanan Lal executed a Will dated 27.03.1979 by virtue of which his two sons namely Sh. Inderjeet Singh and Sh. Joginder Singh became owner of undivided half share of the suit property. However, it is contended by the defendants that Sh. Inderjeet Singh Dhiman and CS (OS) No.593/2006 Page 4 of 10 defendant Nos. 2-5 decided to partition the property after death of Sh. Joginder Singh and the suit property was divided orally by the alleged Memorandum of partition (hereinafter referred to as „MOP‟) dated 22nd April, 1994. It is alleged by the defendants that the suit property stands partitioned by virtue of said MOP which was duly signed by all the parties. 10. The defendant No. 4 ( son of late Sh. Joginder Singh) contends that he is in possession of half of the suit property since the last two decades and is running an auto workshop with the name of M/s. Ravi Auto. It is alleged that the plaintiff has sold her share of 400 sq. yds. to Sh. Gurinder Dhiman and thus, the suit filed by the plaintiff is not maintainable. The defendants also raised the contention that the Will of Sh. Inderjeet Singh is false and frivolous. 11. The learned counsel for the defendants on 7th December, 2007 stated that he will produce the original MOP dated 22nd April, 1994 before the Court on the next date of hearing. However, they did not produced the original MOP and stated that it is in possession of the plaintiff. The defendant No.4 filed an affidavit to the effect that the MOP was executed on 22nd April, 1994 and that he is running an automobile workshop in the area of 400 sq. yds. in the suit property. 12. Objections to the Local Commissioner‟s report dated 29th October, 2007 have been filed by the defendants. It is stated in the objections filed by the defendant under Order 26 Rule 10 ( 2 & 3) to the report of the Local commissioner dated 29th October 2007 that the Local commissioner has only completed the formalities of taking the CS (OS) No.593/2006 Page 5 of 10 assistance of Revenue authorities and did not insist upon them to survey and measure the plot in dispute. It is also alleged that the Revenue Authority has not taken the measurements of the plot on the basis of lease deed in possession of the parties. It was the duty of the Local commissioner to see that the measurement was made of the plot on the basis of the lease deed. Allegation against the Local commissioner was also made that he is in collusion with the plaintiff and suggested the partition which is detrimental to the interest of the defendants. Since the Revenue authorities could not measure the plot to find out the area of the entire plot, therefore, the report of the Local commissioner dated 29th October, 2007 be set aside. 13. The plaintiff states that the defendants had produced only a photocopy of an alleged partition deed written in Gurumukhi and pleaded that the same did not divide the property by metes and bounds. It is also alleged that since the MOP is not registered, it cannot be relied upon. 14. Against the preliminary decree, defendants filed an appeal before the Division Bench being RFA (OS) No.1/2009. The said appeal was dismissed by the Division Bench observing that there was no original of the alleged partition deed and only photocopy had been produced. It was also observed that the partition deed and clauses relied upon showed that no partition by metes and bounds had taken place. Operative portion of the order dated 7th January, 2009 reads as under :- “The sole defence taken by the appellants is based on the CS (OS) No.593/2006 Page 6 of 10 deed of partition( “The said deed” for short) a copy of which is available on record. The relevant clause 3 of the said deed dealing with the property in question reads as under:- “That a plot No.18-C measuring 800 square yards situated at Maan Sarover Garden, New Delhi was given to both the parties through a Will dated 27.03.1979 by Sh.Chanan Ram son of Jatti Ram. In the half portion of this plot, Ravi Dhiman is running a workshop, the name of which is Ravi Autos. In this land the party No.2 has share i.e. 400 square yards. But all the members of party No.2 have right and share in this workshop. All parties are owners and in possession and responsible as per their shares. This writing has been executed, therefore, the same may be used at the time of need.” It is the submission of the learned counsel for the appellants that the aforesaid clause amounts to a partition of the property in question and thus no further partition is required. The plea is thus predicated only on this clause of the said deed. A bare reading of the aforesaid clause shows that no partition by metes and bounds has taken place. All that has been stated is the declaration of the share of the parties and as to who is in possession. Learned Single Judge thus rightly passed a preliminary decree for partition declaring the undisputed share of the parties with a local commissioner to suggest the mode of partition. It is trite to say that it is open to the appellants to plead before the learned Single Judge as to what should be the appropriate mode of partition keeping in mind the present position of occupation of the property. That will be an aspect to be considered when passing the final decree.” 15. Aggrieved by the abovesaid order, the defendants filed SLP being SLP (Civil) No.2140/2009 in Supreme Court. The Supreme Court also upheld the finding of the Division Bench and passed the following order on 9th February, 2009 :- “……… We do not find any reason to interfere with the impugned order. However, all questions shall remain open , including the question about the report of the Local CS (OS) No.593/2006 Page 7 of 10 Commissioner. The special leave petition is disposed of with these observations.” 16. It is, therefore, clear that the preliminary decree of partition passed by this Court has been upheld by the Supreme Court. The main defence of the defendants that the alleged oral partition deed divides the property by metes and bounds has been rejected both by the Division Bench and Supreme Court. The defendant No.4 on 18th March 2009 filed the additional affidavit and inter-alia has made the statement stating that by way of MOP a clear partition was effected between the parties and even the share of which accrued to each party in the suit property were delineated. It is also stated in the affidavit that defendant No.4 was/is having its auto workshop in an area of 400 sq.yds in the said property. The workshop existed even at the time of execution of MOP. The remaining portion of the suit property went to the share of the predecessor of the plaintiff, thus, there is no ambiguity even with regard to the portion of the suit property which fell to the share of each party. It is also stated in the affidavit that the defendant No.4 has been running his shop of auto parts in the demised property for the last 20 years and portion of the property which was in possession of the plaintiff has been encroached upon. 17. I have heard learned counsel for both the parties and perused the pleadings and documents on record as well as the report of the Local Commissioner and the objections thereto. The defendants‟ contention that the suit property has already been partitioned by MOP dated 22nd April, 1994 has not been proved on record. The defendants admitted to CS (OS) No.593/2006 Page 8 of 10 be in occupation of half share in the suit property which is the share allotted to them by virtue of Will of late Chanan Ram. The report of the Local commissioner clearly reflects that the plaintiff is not in occupation of any portion of the suit property. 18. The plaintiff has not admitted the alleged memorandum of partition dated 22nd April 1994. No original MOP has been filed by the defendants. The said document is admittedly unregistered document. The court granted the time to the defendant no. 4 to produce the original which is not produced by defendant No.4. The defendant No.4 thereafter filed the affidavit stating that the original is with the plaintiff. The plaintiff has denied the said statement. The Division Bench vide order dated 7th January, 2009 in RFA(OS) No.1/09 clearly noted that the photocopy of the alleged memorandum of partition had been filed and the original had not been produced which was stated to be with the plaintiff who has denied the same. 19. The Division Bench even examined the said deed of partition and after perusing the same clearly found on reading of the clause even reproduced in Para 3 of the affidavit which shows that no partition by metes an bounds had taken place and that all that has been stated was a declaration of shares of the parties and not as to who is in occupation. The fact of the matter is that the original has not been produced by the defendants who want to take the advantage of the same. The plaintiff has also denied that the defendant No.4 is in occupation of 400 sq. yds. On the contrary the plaintiff has stated that there is an office to provide detectives, a furniture store, motor garage and property dealer shop. CS (OS) No.593/2006 Page 9 of 10 The plaintiff has also filed the photographs of the same. The report of the Local commissioner Sh. Y.D.Nagar indicates that the suit property as of now measure 611 sq.yds. Thus, there is no force in the objections filed by the defendants to the report of the Local Commissioner. The said objections are, hence, dismissed as being without any merit. 20. Learned counsel for the defendants has argued that the suit property has been divided between the parties on the basis of MOP dated 22/04/1994 and the said document has been acted upon by the parties, a statement which has been specifically denied by the plaintiff. In the absence of original document, this court is unable to accept the contention of the defendants. It is a matter of record that similar contentions were raised by the defendants before the Division Bench and the Supreme Court when the appeal was preferred against the order of preliminary decree. Both the appeals were dismissed. Hence, I do not find any force in the submission of the defendants. 21. Accordingly, after having gone through the entire gamut of the matter, pleadings and documents, I accept the report of the Local Commissioner. The suit property measuring 611 Sq. yards be divided by metes and bounds into two equal halves of 305.5 sq. yards each from the front to the back horizontally in the centre, each party getting 25 feet in the front and 14 feet at the rear with length of 141 feet. 22. As there is no dispute, that the plaintiff is the owner of half share in the suit property and the controversy remains only with the occupation of the property, I am of the view that the property be partitioned by metes and bounds as per the report of the local CS (OS) No.593/2006 Page 10 of 10 commissioner in 305 ½ sq. yds. each. 23. Accordingly, the final decree is passed declaring that the plaintiff and all the defendants jointly are entitled to 50% share in the suit property bearing No. C-18, Mansarower Garden, New Delhi and the same shall be partitioned by metes and bounds as suggested by the Local Commissioner Mr. Y.D.Nagar and decree be drawn accordingly. All pending applications be disposed off. No costs. MANMOHAN SINGH, J DECEMBER 23, 2009 nn