Shri Hari Narain Chadha vs Shri Dhanesh Kumar Chadha & Ors.
2009 Latest Caselaw 2419 Del

*          HIGH COURT OF DELHI: NEW DELHI

+                     CS (OS) No.222/2006


%                     Judgment reserved on:             20th April, 209

                      Judgment pronounced on:             2nd July , 2009


Shri Hari Narain Chadha                            ..... Plaintiff
                     Through: Mr. Manish Kohli, Adv. with
                              Mr. Manjit Pathak, Adv.

                      Versus

Shri Dhanesh Kumar Chadha & Ors.                      ..... Defendants
                   Through: Ex-parte

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                         No
   in the Digest?


MANMOHAN SINGH, J.

1. The plaintiff has filed the present suit for declaration,

partition and rendition of accounts with the prayer to declare that the

plaintiff is the owner to the extent of his half undivided share in the

immovable property bearing municipal No. Old 282, New 474/1,

Mohalla Zeenat, Bari Gali, Hamilton Road, Kashmere Gate, Delhi-

110006 (hereinafter referred to as the 'suit property'). The plaintiff has

further prayed that a preliminary decree for partition be passed with

respect to the aforesaid suit property declaring the plaintiff to be

entitled to one half undivided share in the property as he is entitled to

partition of the same by metes and bounds. The plaintiff has also prayed

that a Local Commissioner be appointed to ascertain the mode of

partition of the property.

2. The plaintiff and his elder brother late Sh. Kundan Lal

Chadha are alleged to be the joint and absolute owners of the suit

property having purchased the same from Sh. Lekh Raj vide registered

sale deed dated 8.7. 1968. The defendants No.1 to 4 are the children of

late Sh. Kundan Lal Chadha. He died intestate on 15.1.1998. Smt.

Bimla Rani, wife of late Sh. Kundan Lal Chadha predeceased him,

having expired in June 1962 and thus the property of Sh. Kundan Lal

Chadha devolved upon his legal heirs i.e. defendants No.1 to 4 in equal

shares.

3. The plaintiff averred in the plaint that the suit property is a

triple storey building and the entire building is being used by the tenants

for commercial purposes. There are about 13 to 14 tenants and about 17

to 18 shops in it. The ground floor consists of about 10 shops, first floor

consists of five shops and second floor consists of 2 to 3 shops. During

the lifetime of Shri Kundan Lal Chadha, he used to receive the rent

directly from the various tenants and thereafter share the same with the

plaintiff. However, after his death, the plaintiff has not being receiving

any rent and presently the rent is being received and appropriated only

by defendants No.2 to 4, who are using the same exclusively for their

own purposes.

4. It is further averred in the plaint that the plaintiff is in joint

possession of the suit property along with the defendants being the

joint/co-owner of the same. After the death of Shri Kundan Lal Chadha,

the plaintiff has been requesting the defendants to partition the suit

property and also to share the rent received by them from the various

tenants, but they have not been acceding to the requests of the plaintiff.

Therefore, the present suit is filed for partition of the suit property in

equal shares among the parties.

5. The plaintiff filed an application under Order XXXIX Rules

1, 2 and 3 read with Section 151 CPC for interim relief and vide order

dated 6th February, 2006 this Court restrained the defendants from

creating any third party interest in the suit property. The plaintiff served

all the defendants, however, despite being duly served, no appearance

was entered nor was any written statement filed on behalf of any of the

defendants. This Court vide order dated 2nd May, 2008, thus

proceeded against all the defendants ex parte and also made the interim

orders dated 6th February, 2006 absolute till the final disposal of the suit.

6. The plaintiff filed his affidavit by way of evidence and

proved on record the registered sale deed dated 8.7.1968 with respect to

the suit property, executed in favour of the plaintiff and his elder brother

late Sh. Kundan Lal Chadha by Shri Lekhraj which is exhibited as Ex.

PW1/1. The plaintiff has also annexed the letter dated 5.8.1971 by the

plaintiff and late Shri Kundan Lal Chadha sent to the Assistant

Assessor and Collector, Municipal Corporation of Delhi, with regard to

the mutation of the suit property. The plaintiff has further proved on

record the original Special Power of Attorney exhibited as Ex. PW1/2

executed by him and his elder brother late Shri Kundan Lal Chadha, in

January, 1982, in favour of Shri Madan Lal Suri, husband of defendant

No.3 to pursue the case in Civil Courts in respect of one room on the

ground floor of the suit property against one tenant Shri Tirath Dass.

The Plaintiff has also proved on record the original notice Ex. PW1/3

sent by him and defendant No.1 Shri Dhanesh Kumar Chadha to M/s.

J.S.B. Bearings, one of the tenants of the suit property for payment of

rent in their favour after death of Sh. Kundan Lal Chadha. The plaintiff

has also proved on record the original legal notice dated 4.3.1998 Ex.

PW1/4 sent by the defendant No.2 Shri Yogesh Chadha through Shri

Mohan Lal Suri, Adv. to M/s. J.S.B. Bearings and a copy of which was

also sent to the plaintiff and Mr. Dinesh Kumar for not paying rent to

them.

7. It is apparent that the Defendants are ex parte in this case

and there is no rebuttal to the case of the plaintiff. None of the

defendants ever appeared in the present case to defend their case against

the plaintiff. From the documents on record, it is apparent that the sale

deed was registered in the name of the plaintiff and father of defendants

late Sh. Kundan Lal Chadha and a joint letter by the plaintiff and

defendant has been sent for the mutation of the property. In the present

circumstances, there is no bar to pass the preliminary decree for

partition in favour of the plaintiff in terms of the prayer made in the

plaint.

8. However, it is to be noted that the plaintiff affixed the fixed

court fees of Rs.20/- for the relief of partition. In view of the well

settled law that when a partition suit is brought to the court by a joint

owner who has been excluded from the joint ownership of the property

and to which he is entitled, he is liable to pay court fee on ad valorem

basis on the value of the property claimed by him. (Ref : Smt.

Prakashwati Vs. Smt. Dayawanti and Anr. 42(1990) DLT 421, Rani

Devi Vs. Ashok Kumar Nagi, 76 (1998) DLT 279, the plaintiff shall

pay the deficient court fee within four weeks from today.

9. In my considered view, therefore, the plaintiff is entitled for

a decree as per the prayers made in the plaint. A preliminary decree for

partition as well as declaration is passed in favour of the plaintiff and

against the defendants thereby declaring that the plaintiff is the owner to

the extent of one-half undivided share in the immovable property

bearing Municipal No. Old 282, New 474/1, Mohalla Zeenat, Bari Gali,

Hamilton Road, Kashmere Gate, Delhi-110006. The Local

Commissioner namely Dr. Chandra Shekhar (Mobile No.

9810472702/27193291)is appointed to ascertain the mode of partition of

the suit property. The defendants shall also render the accounts with

regard to the amount received by them as rent from various tenants of

the suit property from the period beginning January, 2006 till the date of

passing of the preliminary decree. The Local Commissioner shall

submit his report within three months from today. The fee of the Local

Commissioner is fixed as Rs.30,000/-.

CS [OS] NO.222/2006

10. List this matter on 03.10.2009 for awaiting the report of the

Local Commissioner.

MANMOHAN SINGH, J JULY 02, 2009 SD