Nirmal Kaur vs Surjit Kaur & Ors.
2009 Latest Caselaw 5386 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                      CS (OS) No.593/2006

Nirmal Kaur                                         ......Plaintiff
                       Through : Mr. Raman Kapur, Adv.

                       Versus

Surjit Kaur & Ors.                                   .....Defendants
                       Through: Ms. Pinky Anand, Sr. Adv. with
                                Mr. Himanshu Upadhyaya, Adv. for
                                Defendant No.3

                       Judgment reserved on:      8th October , 2009
%                      Judgment decided on :      23rd December, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                         No

2. To be referred to Reporter or not?                      No

3. Whether the judgment should be reported
   in the Digest?                                          No

MANMOHAN SINGH, J.

1. The plaintiff filed the present suit for partition and

possession of property bearing No. C-18, Mansarover Garden, New

Delhi (hereinafter referred to as "the suit property").

2. The brief facts of the case are that Late Sh. Chanan Ram

was owner of the suit property who by his last Will and testament dated

27.03.1979 bequeathed the said property in equal shares to his two sons

i.e. Sh. Joginder Singh of whom defendants are legal heirs and Sh.

Inderjit Singh, deceased husband of the plaintiff. Sh. Inderjit Singh

expired on 03.12.2004, and he, by his last Will and testament dated

02.12.2004 bequeathed his 50% share in the property in favour of

plaintiff, his widow. The suit property was also mutated in the names of

late Sh. Inderjeet Singh and late Sh. Joginder Singh by MCD vide letter

No. TAZ/WZ/AA&C/87/152/M/86-87 dated 21.03.1988.

3. There is no dispute between the parties to the fact that

plaintiff on the one hand is owner of 50% of the property and

defendants together on the other hand are owners of the remaining 50%

of the property. The only dispute that exists between the parties is

with respect to the occupation of the suit property in view of the

abovesaid admitted position.

4. In view of the above admitted position, vide order dated

05.10.2006, a Local Commissioner was appointed to visit the property,

make a site plan and to report respective occupation of the property

with the parties.

5. The Local Commissioner submitted his report on 08.11.2006

stating that the property was entirely in occupation of Defendant No. 4,

one co-owner. It is also stated that there is no possibility of exit and

entry in the suit property through back gate and even the occupant of

the temporary structure at rear could use only the front gate. Therefore,

there is an entry to the property only from the front side.

6. On the plea raised by the defendants that area of the property

though as per sale deed was 800 sq. yards but the same was less than

800 sq. yards and had been encroached upon, another Local

Commissioner Sh. Y.D. Nagar, Adv. who is also an Engineer was

appointed on 8th August, 2007. The court directed the Local

Commissioner to inspect the suit property and to ascertain whether the

same can be divided into two equal shares by metes and bounds. The

local commissioner was also directed to give the exact measurement of

the suit property with the help of Revenue Authorities and to indicate

whether there has been any encroachment in the property.

7. Mr. Y.D. Nagar carried out measurement of the suit property

and found the same to be 611 sq. yards instead of 800 sq. yards

reflecting that the neighbourers on both sides had encroached upon part

of the property. He found that the front of the property facing the main

30 meter wide Rama Road (East) measured 50 feet wide but the same

stood reduced to 28 feet at the rear of the property. He also prepared a

site plan which is on page 14 of the Report of Mr. Y.D. Nagar dated

29.10.2007. Mr. Y.D. Nagar clearly opined in his report that the

property can be divided into two equal parts from the front to the back

in the centre horizontally giving 25 feet each to plaintiff and defendants

on the front side and 14 feet each on the rear side, each of the parties

getting 305.5 sq. yards, total area being 611 sq. yards.

8. Since there was no dispute with regard to share of the parties

in the suit property, a preliminary decree was passed on 29th September,

2008 holding each party to be entitled to 50% share each.

9. The defendants in their written statement admitted that late

Sh. Chanan Lal executed a Will dated 27.03.1979 by virtue of which

his two sons namely Sh. Inderjeet Singh and Sh. Joginder Singh became

owner of undivided half share of the suit property. However, it is

contended by the defendants that Sh. Inderjeet Singh Dhiman and

defendant Nos. 2-5 decided to partition the property after death of Sh.

Joginder Singh and the suit property was divided orally by the alleged

Memorandum of partition (hereinafter referred to as „MOP‟) dated 22 nd

April, 1994. It is alleged by the defendants that the suit property stands

partitioned by virtue of said MOP which was duly signed by all the

parties.

10. The defendant No. 4 ( son of late Sh. Joginder Singh)

contends that he is in possession of half of the suit property since the

last two decades and is running an auto workshop with the name of

M/s. Ravi Auto. It is alleged that the plaintiff has sold her share of 400

sq. yds. to Sh. Gurinder Dhiman and thus, the suit filed by the plaintiff

is not maintainable. The defendants also raised the contention that the

Will of Sh. Inderjeet Singh is false and frivolous.

11. The learned counsel for the defendants on 7 th December,

2007 stated that he will produce the original MOP dated 22 nd April,

1994 before the Court on the next date of hearing. However, they did

not produced the original MOP and stated that it is in possession of the

plaintiff. The defendant No.4 filed an affidavit to the effect that the

MOP was executed on 22nd April, 1994 and that he is running an

automobile workshop in the area of 400 sq. yds. in the suit property.

12. Objections to the Local Commissioner‟s report dated 29 th

October, 2007 have been filed by the defendants. It is stated in the

objections filed by the defendant under Order 26 Rule 10 ( 2 & 3) to the

report of the Local commissioner dated 29th October 2007 that the Local

commissioner has only completed the formalities of taking the

assistance of Revenue authorities and did not insist upon them to survey

and measure the plot in dispute. It is also alleged that the Revenue

Authority has not taken the measurements of the plot on the basis of

lease deed in possession of the parties. It was the duty of the Local

commissioner to see that the measurement was made of the plot on the

basis of the lease deed. Allegation against the Local commissioner was

also made that he is in collusion with the plaintiff and suggested the

partition which is detrimental to the interest of the defendants. Since the

Revenue authorities could not measure the plot to find out the area of

the entire plot, therefore, the report of the Local commissioner dated 29 th

October, 2007 be set aside.

13. The plaintiff states that the defendants had produced only a

photocopy of an alleged partition deed written in Gurumukhi and

pleaded that the same did not divide the property by metes and bounds.

It is also alleged that since the MOP is not registered, it cannot be relied

upon.

14. Against the preliminary decree, defendants filed an appeal

before the Division Bench being RFA (OS) No.1/2009. The said

appeal was dismissed by the Division Bench observing that there was

no original of the alleged partition deed and only photocopy had been

produced. It was also observed that the partition deed and clauses

relied upon showed that no partition by metes and bounds had taken

place. Operative portion of the order dated 7 th January, 2009 reads as

under :-

"The sole defence taken by the appellants is based on the

deed of partition( "The said deed" for short) a copy of which is available on record. The relevant clause 3 of the said deed dealing with the property in question reads as under:-

"That a plot No.18-C measuring 800 square yards situated at Maan Sarover Garden, New Delhi was given to both the parties through a Will dated 27.03.1979 by Sh.Chanan Ram son of Jatti Ram. In the half portion of this plot, Ravi Dhiman is running a workshop, the name of which is Ravi Autos. In this land the party No.2 has share i.e. 400 square yards. But all the members of party No.2 have right and share in this workshop. All parties are owners and in possession and responsible as per their shares. This writing has been executed, therefore, the same may be used at the time of need."

It is the submission of the learned counsel for the appellants that the aforesaid clause amounts to a partition of the property in question and thus no further partition is required. The plea is thus predicated only on this clause of the said deed. A bare reading of the aforesaid clause shows that no partition by metes and bounds has taken place. All that has been stated is the declaration of the share of the parties and as to who is in possession. Learned Single Judge thus rightly passed a preliminary decree for partition declaring the undisputed share of the parties with a local commissioner to suggest the mode of partition. It is trite to say that it is open to the appellants to plead before the learned Single Judge as to what should be the appropriate mode of partition keeping in mind the present position of occupation of the property. That will be an aspect to be considered when passing the final decree."

15. Aggrieved by the abovesaid order, the defendants filed SLP

being SLP (Civil) No.2140/2009 in Supreme Court. The Supreme Court

also upheld the finding of the Division Bench and passed the following

order on 9th February, 2009 :-

".........

We do not find any reason to interfere with the impugned order.

However, all questions shall remain open , including the question about the report of the Local

Commissioner.

The special leave petition is disposed of with these observations."

16. It is, therefore, clear that the preliminary decree of partition

passed by this Court has been upheld by the Supreme Court. The main

defence of the defendants that the alleged oral partition deed divides

the property by metes and bounds has been rejected both by the Division

Bench and Supreme Court. The defendant No.4 on 18th March 2009

filed the additional affidavit and inter-alia has made the statement

stating that by way of MOP a clear partition was effected between the

parties and even the share of which accrued to each party in the suit

property were delineated. It is also stated in the affidavit that defendant

No.4 was/is having its auto workshop in an area of 400 sq.yds in the

said property. The workshop existed even at the time of execution of

MOP. The remaining portion of the suit property went to the share of

the predecessor of the plaintiff, thus, there is no ambiguity even with

regard to the portion of the suit property which fell to the share of each

party. It is also stated in the affidavit that the defendant No.4 has been

running his shop of auto parts in the demised property for the last 20

years and portion of the property which was in possession of the

plaintiff has been encroached upon.

17. I have heard learned counsel for both the parties and perused

the pleadings and documents on record as well as the report of the Local

Commissioner and the objections thereto. The defendants‟ contention

that the suit property has already been partitioned by MOP dated 22nd

April, 1994 has not been proved on record. The defendants admitted to

be in occupation of half share in the suit property which is the share

allotted to them by virtue of Will of late Chanan Ram. The report of the

Local commissioner clearly reflects that the plaintiff is not in occupation

of any portion of the suit property.

18. The plaintiff has not admitted the alleged memorandum of

partition dated 22nd April 1994. No original MOP has been filed by the

defendants. The said document is admittedly unregistered document.

The court granted the time to the defendant no. 4 to produce the original

which is not produced by defendant No.4. The defendant No.4 thereafter

filed the affidavit stating that the original is with the plaintiff. The

plaintiff has denied the said statement. The Division Bench vide order

dated 7th January, 2009 in RFA(OS) No.1/09 clearly noted that the

photocopy of the alleged memorandum of partition had been filed and

the original had not been produced which was stated to be with the

plaintiff who has denied the same.

19. The Division Bench even examined the said deed of partition

and after perusing the same clearly found on reading of the clause even

reproduced in Para 3 of the affidavit which shows that no partition by

metes an bounds had taken place and that all that has been stated was a

declaration of shares of the parties and not as to who is in occupation.

The fact of the matter is that the original has not been produced by the

defendants who want to take the advantage of the same. The plaintiff

has also denied that the defendant No.4 is in occupation of 400 sq. yds.

On the contrary the plaintiff has stated that there is an office to provide

detectives, a furniture store, motor garage and property dealer shop.

The plaintiff has also filed the photographs of the same. The report of

the Local commissioner Sh. Y.D.Nagar indicates that the suit property

as of now measure 611 sq.yds. Thus, there is no force in the objections

filed by the defendants to the report of the Local Commissioner. The

said objections are, hence, dismissed as being without any merit.

20. Learned counsel for the defendants has argued that the suit

property has been divided between the parties on the basis of MOP

dated 22/04/1994 and the said document has been acted upon by the

parties, a statement which has been specifically denied by the plaintiff.

In the absence of original document, this court is unable to accept the

contention of the defendants. It is a matter of record that similar

contentions were raised by the defendants before the Division Bench

and the Supreme Court when the appeal was preferred against the order

of preliminary decree. Both the appeals were dismissed. Hence, I do not

find any force in the submission of the defendants.

21. Accordingly, after having gone through the entire gamut of

the matter, pleadings and documents, I accept the report of the Local

Commissioner. The suit property measuring 611 Sq. yards be divided by

metes and bounds into two equal halves of 305.5 sq. yards each from the

front to the back horizontally in the centre, each party getting 25 feet in

the front and 14 feet at the rear with length of 141 feet.

22. As there is no dispute, that the plaintiff is the owner of half

share in the suit property and the controversy remains only with the

occupation of the property, I am of the view that the property be

partitioned by metes and bounds as per the report of the local

commissioner in 305 ½ sq. yds. each.

23. Accordingly, the final decree is passed declaring that the

plaintiff and all the defendants jointly are entitled to 50% share in the

suit property bearing No. C-18, Mansarower Garden, New Delhi and the

same shall be partitioned by metes and bounds as suggested by the

Local Commissioner Mr. Y.D.Nagar and decree be drawn accordingly.

All pending applications be disposed off. No costs.

MANMOHAN SINGH, J DECEMBER 23, 2009 nn