Brij Mohan Goel vs Om Parkash Goel
1996 Latest Caselaw 530 Del

JUDGMENT

K. Ramamoorthy, J.

(1) The matter is coming up for passing a final decree. The preliminary decree has already been passed declaring half share to the plaintiff and half share to the defendant. This court had appointed a Local Commissioner to prepare a plan and suggest modes of division by metes and bounds. The Local Commissioner had taken assistance of of an Architect. The premises consists of ground floor, first floor and second floor.

(2) The entire ground floor is shown as A, B, C and D. E and F is the line showing in the plan where the Local Commissioner has suggested putting up a wall showing the division.

(3) G and H is red line shown by the Local Commissioner for the division of the property on the ground floor inside the premises. On the top of G H line we see open courtyard. On the right hand side Hi a ventilation is shown. In the Courtyard division is suggested on the line Hi to H2. Mr. Maheshwar Dayal learned counsel appearing for the plaintiff fairly represented that the wall may be put up on the courtyard without disturbing the ventilator. The Architect employed by the Local Commissioner shall put up the wall without affecting the ventilator on the side of the portion marked A, H2, HI. H, G F E and D is now allotted to the plaintiff.

(4) In this portion A, H2, Hi, H G, F, E and D, there is a garage and a servant room in the possession of the defendant's wife. It is represented by the defendant that his wife is a tenant of that portion. I have already held that she cannot claim to be a tenant. There shall be a final decree allotting this portion A, H2, Hi, H, G, F, E and D on the ground floor to the plaintiff. The defendant's wife and the defendant shall vacate the garage and the servant room within four weeks from today. The Supreme Court passed the following orders on 6.5.1996: "We find no ground to interfere with the impugned order passed by the High Court. It is, however, made clear that the observations made in the said order regarding the rights of tenancy claimed by the petitioner in the property would not preclude the petitioner from establishing her rights in the appropriate proceedings. The Special Leave Petition is dismissed."

It is open to the defendant to establish his rights as observed by the Supreme Court in accordance with law.

(5) The portion H2, B, C, E, F, G, H and Hi on the ground floor stands allotted to the defendant. The office shall prepare the decree, accordingly.

(6) The Local Commissioner has shown the division in the first floor Al, A2, A3, A4, A5, A6, A7, A8, A9 and Aio is the first floor. The Local Commissioner has allotted Al, A2, All, A12, A8, A9 and portion E to the plaintiff. The portion A2, A3, A4, A5, A6, A7, A8, All, A12 is allotted to the defendants. There shall be a decree allotted this portion to the plaintiff and the defendant

(7) B1, B2, B3, B4, B5, B6, B7, B8, B9, B10, B11, B12 and B13 is the entire second floor. The Local Commissioner has allotted Bl, B2, B3, B4, B12 and B13 by red line B4, , B5, B6, B7, B8, B9, Bio, Bll, B12, B13 and B14 he has shown as dividing line. The portion marked yellow B shall stand allotted to the plaintiff. The portion marked B6, to B7, B8, B9, Bio, Bll, B12, B4 stands allotted to the defendant. The office shall prepare a final degree with reference to the above directions.

(8) The Mezzanine above the garage the Local Commissioner has allotted the same to the plaintiff. There shall be a decree allotting the portion marked C, C1, C2, C3 to the plaintiff.

(9) In the mezzanine above, bathroom and the water closet the Local Commissioner has allotted yellow portion to the plaintiff and the blue portion to the defendant. The portion parked D, D1, D5, D6 shall be allotted to the plaintiff. The portion marked D2, D3, D4, D5, D7 shall stand allotted to the defendant. The office shall prepare the final decree accordingly with reference to these portions.

(10) The learned counsel for the defendant submitted that the defendant will have to incur expenditure for putting up staircase for the first and second floor in the portion allotted to him and that expenditure must be shared by the plaintiff. The learned counsel for the plaintiff submitted that the plaintiff has no objection to take all the portions that may be allotted to the defendant and the plaintiff is prepared to put up the staircase at his own costs in which case there, will be no need for the defendent to spend any money to put up the staircase. The defendant is not agreeable to this course. I do not think that the defendant is justified in asking for the expenditure for putting up staircase from the plaintiff. The defendant will have to meet the expenses himself. The defendant shall finish the construction of the staircase within three months from today.

(11) The learned counsel for the defendant submitted that the wall on the line E F in the front portion of the ground floor should be put up only after the defendant completes the staircase in his portion. I do not think that such a request can be acceded to because the enjoyment of the property by the plaintiff would be unnecessarily impeded by keeping the front side open to the parties when the feeling between them are very much estranged. Therefore the Architect already appointed by the Local Commissioner shall put up a Wall on E F within two months from the date of this order at a height of nine feet. The construction of the wall shall be completed within five weeks from today. The same Architect who was already appointed shall now implement the final decree. He shall be paid a sum of Rs. 10,000.00 by way of his remuneration. The plaintiff and the defendant each shall pay a sum of Rs. 5000.00 to the the Architect.

(12) The learned counsel submitted that all the expenses incurred by the plaintiff in getting the Local Commissioner appointed and appointment of the Architect and expenses for preparing the plan etc should be borne equally by the plaintiff and the defendant and the defendant should pay half of it to the plaintiff. That is reasonable. The defendant shall pay half of the expenses incurred by the Local Commissioner in this behalf on the production of the bill by the Local Commissioner before this Court.

(13) The learned counsel for the plaintiff and the defendent submitted that the rent collected from the tenants from the portions are held in the joint account and the parties may be permitted to draw the same half of each. The learned counsel for the parties shall submit a report in respect of the amount available in the joint Account. On the filing of the report by the parties, appropriate orders would be passed by this court on the next date of hearing.

(14) The tenants in the respective portions allotted to the plaintiff shall attorn to the plaintiff and the tenant in the portion allotted to the defendent shall attorn to the defendant. The plaintiff and the defendant shall be entitled to collect the rent from their respective tenants from the date of this order. The overhead tank belonging to the defendant shall be shifted within one month.

(15) Accordingly, the office shall prepare the final decree in terms of the above directions and in accordance with the plan filed by the Local Commissioner. The plan filed by the Local Commissioner shall form part of the final decree. Post the matter for further directions on 14.11.1996.