* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.219/1984
% December 05, 2012
MS. MANJULA SINGH ...... Plaintiff
Through: Mr. Aditya Singh, Advocate for Mr.
Mohit Gupta, Advocate.
VERSUS
MISS PUNITA SINGH ...... Defendant
Through: Mr. Jasmeet Singh, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1.
This is a partition suit. Originally, the two parties to the suit were two sisters. There were two properties of which partition was sought. First was the property at plot No.29, Block 171, Sunder Nagar, New Delhi. The second property was land admeasuring 2200 sq yds, situated at village CS(OS) No.219/1984 Page 1 of 5 Kilokri, Opp. Gurdwara Bala Sahib, off. Ring Road, New Delhi.
2. So far as the property at Sunder Nagar is concerned, the same has been sold long back after passing of the preliminary decree and therefore qua that property no orders are required to be passed.
3. Today, the suit is listed for consideration of objections to the report of the Local Commissioner dated 25.11.2011, and which report directs the partition of the village Kilokri property at 55% and 45% in view of the shape of the plot, location thereof and the access thereto at different sites by means of certain main roads and side roads.
4. It is settled law that when a property is partitioned, partition besides being physical has to be equivalent in terms of monetary value of the property. Putting it differently, two persons may be entitled to 50% rights in a property, however, the property has not to be physically partitioned at 50%, but what is partitioned is 50% of the value. In order to adjust 50% of the value to each of the parties, it is possible that the area which falls to one or other of the parties may be less or more than 50%. The Local Commissioner has specifically reported by giving details in his report dated 25.11.2011 that the property should be divided by 55% to 45%. Since the report is a very short one, I reproduce the same as under:- CS(OS) No.219/1984 Page 2 of 5
"1. Vide order dated 27.9.2011 of this hon'ble court I was appointed as local commissioner to visit the property bearing No. 79 Jeevan Nagar, Kilkori, New Delhi 110014 and make a site plan along with report, after taking measurements, and propose an equal division of property.
2. After intimation to the parties vide my letter dated October 25, 2011, my draftsman visited the site on 1st November 2011 at 10.00 A.M. in the presence of Mrs. Punita Capoor and Mr. M L Pandita from Gammon India.
3. Vide my letters dated 7th November 2001 by speed post, I informed the parties about my visit to the site on 12th November 2011, to carry out the aforesaid commission.
4. I visited the site on 12th November 2011 at 11.30 A.M. to carry out the aforesaid task. The said visit was carried out in the presence of Mrs. Punita Capoor and her Advocate Jasmeet Singh and Mr. M L Pandita from Gammon India. Nobody was present from Shringar Impex Pvt Ltd.
5. Further to my site visit on 12th November 2011, I have deputed my draftsman to take exact measurements of the site on 15th November 2011 at 10.00 A.M.
6. I took the service of V.R. Surveyors, 145/6 Sector 1, Pushp Vihar, Saket, New Delhi 110017 to conduct the survey of the site. They carried out the Topographical survey of the site and submitted the survey plan showing the exact area of the plot.
7. Based on the survey plan and looking at the fact that the front area of the plot (which has two sides abutting on the adjoining roads) will command a higher commercial value as compared to its rear area (which has only one side abutting on the adjoining road) we propose to give 10% more area to the party who shall get/take the rear portion of plot so that the division of the plot between the two concerned parties is equal in terms of land value.
8. The proposed division is shown and marked on the attached survey CS(OS) No.219/1984 Page 3 of 5 plan with the dimensions."
5. The objections which have been filed to this report are on behalf of the plaintiff, who insists on physical partition by giving exactly 50% of the area. In my opinion, such stand is unacceptable because partition really has to be as per the value of the property. In fact, the fairness of the defendant is clear from the fact that the defendant is ready to accept either the 55% portion or 45% portion and gives the first option to the plaintiff to choose either the 55% portion or the 45% portion of the property situated at village Kilokri, Opp. Gurdwara Bala Sahib, off. Ring Road, New Delhi and which is the subject matter of the dispute.
6. Accordingly, accepting the report of the Local Commissioner dated 25.11.2011, the suit is disposed of with the direction that the plaintiff is given the first choice to exercise the option whether to take 55% or 45% of the property aforesaid in terms of the report of the Local Commissioner. This option be exercised within a period of two weeks from today by filing an affidavit in this Court. In case, affidavit is not so filed, the plaintiff will get 55% of the property in terms of report of the Local Commissioner dated 25.11.2011 and the defendant will get 45% of the property. I may note that the portions of the property which are finally allocated have to be correlated CS(OS) No.219/1984 Page 4 of 5 with the plan which is filed by the Local Commissioner alongwith his report, and therefore that plan will form a part of the final decree.
7. The final decree be drawn up in terms of para 6 above, and on the parties filing the necessary non-judicial stamp duty in terms of Article 45 of the Stamp Act, 1899 read with Section 2(15) thereof. Suit stands disposed of accordingly.
VALMIKI J. MEHTA, J DECEMBER 05, 2012 Ne CS(OS) No.219/1984 Page 5 of 5