* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 18.12.2012
+ CS(OS) 1838/2011
RUQAIYA BEGUM & ANR ..... Plaintiffs
Through: Mr Vishal Bhatnagar, Adv.
versus
BASHIR AHMED KHAN & ORS ..... Defendants
Through: Mr N.K. Singh, Adv for D-1
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN
JUDGMENT
V.K.JAIN, J. (ORAL)
1. This is a suit for partition, possession, injunction and recovery of mesne profit/use and occupation charges. The plaintiffs are the sisters of the defendants. Their case is that their father late Abdul Hafeez Khan was the owner of Shop No. 5158, Ward No. XIII, Rui Mandi, Sadar Bazar, Delhi and in his lifetime, he had sold the said property to the parties to the suit vide sale deed dated 24.09.1985. It is alleged that in the year 2006, defendant No. 2 Razia Begum had instituted a suit for partition of the said property. That suit was decreed as compromised between defendant 1 Bashir Ahmed Khan and defendant 2 Razia Begum. Under the compromise, defendant No.1 paid a sum of Rs 3 lakh to defendant No. 2, who relinquished her share in the suit property, in favour of defendant No.1. It is CS(OS) 1838/2011 Page 1 of 5 alleged that despite notice dated 15.05.2010 from plaintiff No.1, defendant No. 1 has not handed over the share of the plaintiffs in the suit property to them. The plaintiffs are now seeking 2/5th share in the suit property along with damages/mesne profits for last three years, amounting to Rs 4,32,000/-.
2. On 27.11.2012, defendant No.1 made statement admitting therein that the plaintiffs have 2/5th share in the suit property and stating that he had no objection if the plaintiffs are given that much share in the said property. As far as defendants 2 and 3 are concerned, they were proceeded ex parte vide order dated 02.02.2012, since they refused to accept the summons issued by the Court.
3. The plaintiffs have filed the affidavit of plaintiff No. 1 Ruqaiya Begum by way of evidence. In her affidavit by way of evidence, plaintiff No. 1 has stated, on oath, the case set out in the plaint and has proved the documents relied upon by the plaintiffs.
4. Ex.PW-1/B is the certified copy of the sale deed purporting to be executed by late Shri Abdul Hafeez Khan in favour of defendant No. 1 Bashir Ahmed Khan, plaintiff No.2 Safia Begum, plaintiff No.1 Ruqaiya Begum, defendant No.2 Razia Begum and defendant No.3 Suraiya Begum, thereby selling a shop situated on the ground floor of property No. 5158, Ward No. XIII, Rui Mandi, Sadar Bazar, Delhi to them for a consideration of Rs 10,000/-. That sale deed is not under challenge by any party. In view of the sale deed in favour of the parties to the suit, they CS(OS) 1838/2011 Page 2 of 5 became its co-owners in equal shares.
5. Ex.PW-1/C (Colly.) is the certified copy of the plaint of the suit filed by defendant No.2 Razia Begum against defendant No.1 Bashir Ahmed Khan and other parties to the suit seeking partition of the very same property which is subject matter of this property. Ex.PW-1/C (Colly.) is the certified copy of the written statement which defendant No. 1 Bashir Ahmed Khan filed in that suit. It appears that there was a compromise between the plaintiff and defendant No.1 in that suit, namely, Razia Begum and Bashir Ahmed Khan respectively. A copy of the compromise deed is Ex.PW-1/C (Colly). Pursuant to the compromise, an order was passed by the learned Additional District Judge on 12.02.2009 decreeing the suit in terms of the compromise. A certified copy of that order has been placed on record.
Plaintiff No.1 in this suit Ruqaiya Begum sought execution of the said judgment and decree dated 12.02.2009. A certified copy of the execution petition has been placed on record. The execution petition was dismissed by the learned Additional District Judge vide order dated 10.01.2011 holding therein that since the compromise was arrived at only between the plaintiff and defendant No.1 in the said suit and no relief had been granted against the applicant Ruqaiya Begum, her rights in the suit property remained unaffected by the compromise dated 12.02.2009 which was binding only on the plaintiff and defendant No.1 in that suit. CS(OS) 1838/2011 Page 3 of 5 The execution petition was dismissed as not maintainable by her.
6. Since all the five co-owners of the suit property were impleaded as parties to the suit instituted by Smt. Razia Begum, the learned Additional District Judge, who passed the order dated 12.02.2009 ought to have been either struck off the names of other parties from the array of parties or he should have taken the suit to its logical conclusion as far as defendants 2 to 4 in that suit were concerned by either dismissing or decreeing the suit qua them. For reasons which remain unexplained, the learned Additional District Judge did not follow the correct procedure which he ought to have followed and simply passed a decree in terms of a compromise which had been entered into only between the plaintiff and defendant No.1 in that suit. Be that as it may, as far as the plaintiffs in this suit are concerned, since they were not parties to the decree dated 12.02.2009, they are not bound by the same and the said decree does not affect their right, title and interest in the suit property in any manner.
7. Since the suit property was purchased by all the five parties to the suit from their father, late Shri Abdul Hafeez Khan and there is no agreement in the sale deed to indicate as to what would be their respective share in the property subject matter of the sale deed, they would have equal share in the suit property being its co- owners. I, therefore, pass a preliminary decree for partition holding that the plaintiffs and defendant No.3 have 1/5th share each in the suit property, whereas CS(OS) 1838/2011 Page 4 of 5 defendant No.1 has 2/5th share in the said property. Defendant No.2 Razia Begum having relinquished her share in the suit property in favour of defendant No.1 is not left with any right, title or interest in the said property.
The learned counsel for the plaintiffs states on instructions that he is not pressing for grant of any other relief considering the relationship between the parties.
8. Ms Samprikta Ghosal, Advocate, who is present in the Court, is appointed as the Local Commissioner to visit the suit property and suggest the mode of its partition by metes and bounds. The fee of the Local Commissioner is Rs 35,000/- which shall initially be paid by the plaintiffs. The Local Commissioner shall be entitled to engage an Architect, if so required by her and if an Architect is engaged by her, the fee of the Architect would also be paid by the plaintiffs. The final order with respect to the fee of the Local Commissioner and the Architect would be passed at the time of passing final decree in the suit.
Decree sheet be drawn accordingly.
List on 01.03.2013, awaiting the report of the Local Commissioner.
V.K. JAIN, J DECEMBER 18, 2012 bg CS(OS) 1838/2011 Page 5 of 5