1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Notice of Motion No.3536 of 2007 IN Suit No.2633 of 2007 Khairunisa Haji Mohammed .. ..Plaintiff v/s. Afzal Haji Mohammed & ors. .. ..Defendants Mr.P. Sancheti with Mr.A. Patil, Ms.P.Vegad and Mr.Sachin Chandarana i/by M/s.Manilal Kher Ambalal & Co. for Plaintiff. Mr.V.V.Kanade i/by Mr.P. Patankar for Deft.Nos.1 to 7. Mr.A.Y. Bookwala, Sr. Adv. With Mr.P. Havnoor for Deft.No.9 . Ms.H. Ranose i/by M/s.RMG Law Associates for Deft.Nos.10 & 11. ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 23 rd September, 2008 ORAL JUDGMENT : 1. This is a partition Suit. The Plaintiff has applied for partition of the property initially belonging to one Haji Essa Ebrahim, described in Exhibit- B to the Plaint. The suit property consists of 6 flats, one Ground Floor premises, one garage and the open area being the land on which the building is situate. The property has to be equally partitioned amongst the heirs of Haji Mohammed Haji Essa and Haji Kasam Haji Essa. These heirs are the parties to the Suit. 2 2. Defendants 10 and 11 have admitted and agreed the Plaintiff's case of partition. Defendant 9 has also accepted partition of the property but contended that there are certain other properties also co-owned by the family members which are also to be partitioned. No Suit in respect of those properties has yet been filed. The other Defendants have been served and have not contested the Plaintiff's claim. 3. The heirs of the aforesaid two persons, who are parties to the Suit, are admitted. The fact that the suit property belonged to the predecessor- in-tile of the aforesaid two persons, one Haji Essa Ebrahim has also been admitted. In lieu thereof, a preliminary decree for partition and separate possession of the shares of the co-owners under Order 20 Rule 18 of the C.P.C. would have to be passed. 4. The Counsel on behalf of Defendant 9 states that the branch of Defendant 9 be given flat Nos.4, 6 and 7. Hence the Plaintiff's branch shall be given the remaining flat Nos.3, 5 and 8. The property shall be partitioned accordingly and separate possession of the branch of the aforesaid two persons shall be taken accordingly. 5. It is accepted by both the branches that the Ground Floor premises of 2,500 sq. ft. in area be equally divided amongst 3 the two branches. A plan of the said property showing a vertical partition in the property into two parts on either side of the entrance is submitted to Court by the Plaintiff's branch. A copy of this plan is handed over to the Defendants' branch. The Counsel for Defendant 9 chooses the side to the right of the entry which is stated to be towards the Khar Station. Defendant 9 and his branch shall be entitled to partition and separate possession of 1240 sq. ft. of the entire property as shown in the plan which is to the right of the entrance. The Plaintiff's branch shall be entitled to the other side of the property admeasuring 1240 sq. ft. as shown in the plan. Both the branches shall put up a wooden partition as shown in the plan at their costs. If one branch fails to put up this part of the partition, the other branch shall put up the entire partition and claim the costs of the partition from the other branch. 6. The Counsel for Defendant 9 states that the garage be also divided into two equal parts. Both the branches shall similarly put up a vertical partition in the garage. Defendant 9 agrees to put up the partition. If Defendant 9 does not put up the partition within two months from today, the Plaintiff's branch shall be entitled to put up the partition. If however in the meantime both the branches prefer to sell or value the garage at the market value, they shall be entitled to 4 purchase/sell at the highest price brought by both the branches. 7. The open space in the compound of the building which is compulsory open space cannot be partitioned and hence such partition is refused. However, both the branches shall have equal right in the land below the building. 8. Any of the branches who are in possession of the aforesaid flat Nos.3 to 7 shall hand over separate possession of the flats consequent upon the aforesaid partition to the branch who has been allotted the flats as above. 9. In view of the aforesaid partition, there is no need to appoint Court Receiver. However, no branch shall transfer, encumber or create any third party right in any of the aforesaid flat Nos.3 to 8 or in the garage or in the space on the Ground Floor until the partition is actually effected. 10. Defendants 8 and 12 to 17 have been served. Affidavit of service is filed. There shall be a decree of partition and separate possession in terms of prayer (a) against Defendants 8 and 12 to 17. There shall also be a decree in terms of prayer- (c) for possession against these Defendants as modified by the aforesaid order. 5 11. The Plaintiff has valued his share at Rs.54,65,000/- . The valuation is inadequate and is not accepted. The Plaintiff shall revalue the suit property as per the market value in the Ready Reckoner. Each co-owner, desiring to transfer the specified share in his own name upon partition is required to value his separate share. This order shall operate as transfer of the shares mentioned in the partition as effectuated by this order subject to payment of adequate Court fee as per the market value of the suit property as on the date of the Suit by each of the co-owners. The transfer of the shares as per this judgment and decree shall be effectuated upon registration of documents of transfer and payment of the requisite registration fee and stamp duty. 12. The Suit is disposed of accordingly. [SMT.ROSHAN DALVI, J.]