Ravinder Kishinchand Thadani And ... vs Bhagwan Kundanmal Hira And Anr.
1995 Latest Caselaw 991 Del

JUDGMENT

N.G. Nandi, J.

(1) By this application, defendant No. I prays for direction to New Delhi Municipal Committee (NDMC) to permit defendant No. I to construct the staircase within the area physically allotted to defendant No. I of the property bearing No. D-60, Malcha Marg, Chanakya Puri, New Delhi for excess to the first floor and the Bersati floor of his portion and for appropriate orders in this regard.

(2) It has been submitted by Mr. Thadani, Counsel for defendant No. 1 that suit No. 907/80 came to be filed for partition of property No. D-60, Malcha Marg, Chanakya Puri, New Delhi by the two brothers as the plaintiffs, alleging 50'X undivided share in the suit property against defendant No. 1, who had the balance 50% undivided share in the suit property; that defendant No. 2, Union of lndia underneath building judgment and decree dated 30.3.1987 whereunder the property was divided vertically in two parts A and B, part A going to the plaintiffs and part B to defendant No. 1, on the basis of the report of the Commissioner, appointed to suggest the modes of partition and the property was so divided as per mode No. 3, suggested by the Commissioner with certain modifications.

(3) The judgment and order dated 30.3.1987, suggests that on 14.12.1985, the parties made the statements accepting the joint ownership of the property with each holding50% share in it and also agreed for the final decree being passed by the Court deciding the mode of partition. The local Commissioner appointed, submitted his report and in this view of the matter, the Court passed the decree in the following terms:- "A.. xxx xxx B. xxx xxx C. As and when any Plans for carrying only alterations, additions or reconstructions of any portion in the respective occupations of the parties are required to be filed, neither party shall withhold its submission to the appropriate authorities, by refusing to sign the requisite papers. In case any party raises an objection or refuses to give consent within 60 days of the submission of papers, the Registrar of this Court will be authorised to sign the necessary documents in that behalf. D. xxx xxx E. xxx xxx F. xxx xxx G. xxx xxx H. xxx xxx I. xxx xxx J. xxx xxx K. xxx xxx L. xxx xxx M. xxx xxx

The report of the Local Commissioner/Architect as also the plan annexed with this judgment shall form part of the decree."

(4) As seen above, by this Ia all that defendant No. I wants is the direction to the NDMC with regard to the construction of the stair case by defendant No. I in portion B, which has been allotted to him under the decree of this Court. As pointed out above, the judgment and decree dated 30.3.1987, Clause 3, as reproduced above, specifically provides that as and when any plan for carrying on alterations, additions or constructions of any portion in the respective occupations of the parties are required to be filed, neither party shall withhold its submission to the appropriate authority by refusing to sign the requisite papers.

(5) In the submission of Mr. Thadani, defendant No. 1 intends to construct/ provide stair case which is already in the scheme of the parties and is not in any way an addition or alteration, as contemplated in the decree. In reply, it is stated by the plaintiff that there is one proposed stair case to be constructed on the site of part B for going to first floor and Bersati floor of portion B, is part and parcel of plan alternate Iii, which is accepted by the Court on the basis of which decree was drawn up. The say of the plaintiff in reply, further is that permitting the construction in part B would amount to execution of the decree in part which will defeat the very purpose of passing of the decree. It need hardly be said that the judgment and decree partitioning the property between the plaintiff and defendant No. I, as part A and part B respectively, effects complete severence of the status of the parties as the joint/co-owners of the respective portions in the property. As far as the providing of staircase in part B is concerned, it may be said that the same has been provided in the decree dated 30.3.1987 itself as the same has been shown in the plan which has been made part of the decree. As far as clause (C) in the decree requiring the signatures of the plaintiff and /or the defendant for additions, alterations, reconstruction in part A and/or B respectively is concerned, the same is for the addition, alteration, construction to be done after the decree in part A and/or B. Providing a stair case in part B is already provided in the decree, as aforestated and the rights of the parties have been crystalised by the decree dated 30.3.1987. The putting/ providing of the stair case in part B flows from the decree, a right in favor of defendant No. 1 crystalised in the decree and clause C can be no impediment in the way of defendant No. 1 in putting/providing stair case in part B.

(6) In the result, defendant No. 1 would be entitled to have staircase in part B under the decree dated 30.3.1987. The New Delhi Municipal Committee shall consider the plans / papers (together with the certified copy of the complete decree), submitted by defendant No. 1, for putting/providing staircase leading from ground floor to Bersati Floor in part B of property No. D-60, Malcha Marg, Chanakya Puri, New Delhi under the decree dated 30.3.1987, in accordance with the Building Bye-laws/Rules for sanction.

(7) In the result, the Application stands granted with direction to the New Delhi Municipal Committee, as above.