Sh.Surinder Kumar Kapur & Ors. vs Sh.Krishan Kumar Kapur
2010 Latest Caselaw 5361 Del

*          THE HIGH COURT OF DELHI AT NEW DELHI

+                    CS(OS) No.1612/1993

                                     Date of Decision : 25.11.2010

SH.SURINDER KUMAR KAPUR & ORS.     ......Plaintiffs
                    Through: Nemo.

                                Versus

SH.KRISHAN KUMAR KAPUR                       ...... Defendant
                    Through:             Mr.N.K.Kaul, Sr.Adv. with
                                         Mr.Samar Singh, Adv.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                          YES
2.     To be referred to the Reporter or not ?               NO
3.     Whether the judgment should be reported
       in the Digest ?                                       NO

V.K. SHALI, J. (Oral)

IA No.8169/2008

1. This order shall dispose of the application bearing IA

No.8169/2008 seeking appropriate directions to the Local

Commissioner afresh to suggest modes of dividing the suit

property by metes and bounds between plaintiff no.3 on the

one hand and defendants 1 and 2 on the other hand.

2. Briefly stated the facts of the case are that the plaintiffs who

were originally three in number, had filed the present suit

seeking partition by metes and bounds of the property

bearing No.5C Court Lane, Delhi. It was the case of the

plaintiffs that they and the defendant no.1 are the real

brothers and the suit property was bought by them jointly.

3. A preliminary decree was passed on 17.3.1999 holding that

each of the plaintiffs and the defendant no.1 had 1/4th share

in the suit property as there was no dispute about the shares

of the parties.

4. Vide order dated 14.9.2005, this Court had appointed

Mr.Vikram Nandrajog, Advocate as a Local Commissioner for

inspection of the suit property to suggest ways and means in

which the suit property can be divided amongst the four

brothers by metes and bounds.

5. The Local Commissioner filed his report dated 03.11.2006

wherein it was observed that he was of the opinion that it is

not possible to divide the suit property by metes and bounds

and further that municipal authority will not allow the sub

division of the plot amongst the co -owners. It was also taken

note of that no consensus had emerged amongst the parties,

to develop the property and share the structure so raised on

the plot of land in equitable manner so that each one of them

gets his share of 1/4th in the suit property. Accordingly, it

was suggested that the parties may explore the option of

buying out or settling inter-se rights of the parties failing

which the property may be auctioned.

6. Despite the said report having been filed almost four years

back, no consensus amongst the parties could be arrived at

as a consequence of which no final decree could be passed

till date. The suit property has to be divided by metes and

bounds. However, in the meantime, settlement has taken

place inasmuch as the plaintiff no.1 and plaintiff no.2 have

sold their 1/4th share each in favour of the son of defendant

no.2 by a registered sale deed. Pursuant to the said sale

deed, the son of defendant no.2 filed an application under

Order 1 Rule 10 CPC for being impleaded as a party as he

had 50% interest in the suit property.

7. This application of the proposed defendant no.2 was allowed

vide order dated 20.2.2009 and he was impleaded as the

defendant no.2 in the suit property.

8. Since no solution had been arrived at between plaintiff no.3

and the defendant, parties were directed vide order dated

12.1.2010 to submit their valuation report of the entire suit

property. The plaintiff filed its valuation report on 4.10.2010

wherein it was observed that the suit property was valued

around `45 crores. As against this, the valuation report filed

by defendants had shown the value of the entire property at

`17.45 crores.

9. It has been contended by the learned counsel for the plaintiff

that the valuation report which has been furnished by the

learned counsel for the defendant is absurdly low and this

has been done deliberately so as to reduce the value of the

share belonging to the plaintiff no.3. On the contrary, it was

contended that plaintiff no.3 has put the correct valuation of

the suit property at `45 crores or so and if at all the

defendants want to purchase the share of the plaintiff no.3,

he may pay him assuming the value of the entire property as

`45 crores.

10. Mr.Kaul, learned senior counsel for the defendant has

contended that the valuation which has been given to the suit

property by the plaintiff is grossly exaggerated and therefore,

the defendant is not in a position to pay such a huge amount

on account of 1/4th share of the plaintiff.

11. It was contended by him that by virtue of the present

application, which was filed immediately after submission of

the report by the Local Commissioner wherein it was prayed

that the parties may be permitted to divide the property

themselves or in the alternative, the mode of partition

suggested by the Local Commissioner. It was also contended

that the defendant would not be averse to divide the suit

property by metes and bounds between the plaintiff no.3 on

one hand who is left with only 1/4th share in the suit property

and the defendant nos.1 & 2 who are having 3/4th share of

the suit property.

12. The plaintiff has filed reply to the application filed by the

defendant. He has opposed the prayer of the plaintiff for

either division of the property amongst the plaintiff no.3 on

the one hand and defendants 1 and 2 on the other side or

even the appointment of a fresh Local Commissioner for the

purpose of having re-look on the suit property in the light of

changed circumstances so as to suggest fresh mode of

partition.

13. The plaintiff has taken a plea in the reply that before filing the

suit, the three plaintiffs in all had 75% share while as the

defendant no.1 had 25% and this situation has got reversed

as two of the plaintiffs namely plaintiff nos. 1 and 2 have sold

their interest to the son of the defendant.

14. It is contended that this change in the shareholding pattern

of plaintiff no.3 or the defendants 1 and 2 does not bring any

new effect on record and therefore, the prayer of the

defendant to appoint afresh Local Commissioner for the

purpose of suggesting division of the suit property by metes

and bounds will not be of any consequence. It was also

contended that this will unnecessarily result in delay in

disposal of the suit which is already pending for the last 17

years.

15. I have carefully considered the submission of the learned

counsel for the parties and perused the record.

16. At the outset, it must be stated that there is no dispute about

the shares of each of the party to the suit. The plaintiff and

defendant no.1 are holder of 25% each of the share in the suit

property while as the defendant no.2 son of defendant no.1

has the reaming 50%.

17. Incidentally, Mr.Vikram Nandrajog, earlier Local

Commissioner had specifically suggested that the suit

property cannot be sub divided and therefore, cannot be

divided by metes and bounds in favour of the plaintiff no.3

and defendants 1 and 2. He had suggested that the property

be auctioned and the sale proceeds will be appropriated on

the basis of their holding. As against this, Mr.Kaul, learned

senior counsel for defendants 1 and 2 has contended that no

doubt Mr.Vikram Nandrajog, Local Commissioner has already

furnished a report suggesting therein that the suit property

cannot be sub divided in terms of the policy of the MCD, but

it was suggested that the suit property without being formally

sub-divided could be marked in the proportion of the holding

of the parties so that the property is preserved.

18. It was also contended by Mr.Kaul, learned senior counsel that

since there is a change in the circumstance of the defendant

no.1 inasmuch as his son has been impleaded as a party to

the suit and further that he has 50% of the share in the

immovable property, therefore, it would be worthwhile to

appoint Mr.Vikram Nandrajog, or any other counsel as the

Local Commissioner for the purpose of visiting the suit

property again and consider as to whether the said suit

property can be divided by metes and bounds, so that the

share of each of the party gets segregated from that of the

other. It was also contended by the learned senior counsel for

the defendant that on the basis of the fresh report of the Local

Commissioner, the views of the MCD can also be obtained

subsequently as to whether the said local body, whether it

will be able to grant permission to sub divide the suit

property notionally and further develop or redevelop the

entire plot of land by way of two separate plans.

19. I have carefully considered the respective submissions made

by both the parties.

20. No doubt, an officer of this Court was earlier appointed as a

Local Commissioner who has given his detailed report on

3.11.2006 and suggested that the property cannot be divided

by metes and bounds and further that MCD may not give

permission to divide or sub divide the plot of land in the Civil

Lines area, but it would be worthwhile to direct the same

Local Commissioner to have a relook on the entire matter

afresh in the light of changed share of the holding. I do not

agree with the contention of the learned counsel for the

plaintiff that any serious prejudice would be caused to him. I

accordingly, reappoint Mr.Vikram Nandrajog, Advocate as a

Local Commissioner to re-visit the suit property and then

furnish a fresh report, keeping in view the fact that on

account of changed circumstance, the plaintiff no.3 is left

with only 25% equal to 1/4th share in the suit property while

as the balance 75%, 3/4th share is owned by the defendants 1

and the son of defendant no.2.

21. The question as to whether the suit property can be divided

or sub divided will be considered by the MCD after the report

is received from the Local Commissioner.

22. I therefore, allow the limited prayer of the defendants 1 and 2

for appointment of a Local Commissioner who would visit the

site in question and furnish a report as to whether it would be

possible to device any agreed method of dividing the suit

property by metes and bounds on the basis of holdings of the

parties and also as to whether the MCD would in a changed

scenario and the fact situation be able to give any permission

for the purpose of division or sub division of the suit property.

Needless to say that the Local Commissioner shall inspect the

suit property within two weeks from the date of receiving of

this order and file a report regarding the same within two

weeks from the date of inspection. Keeping in view the facts

and circumstances of the case as Mr.Vikram Nandrajog,

Advocate who has already inspected the suit property and

given a report it would not only be just but also proper that

the same person is appointed as the Local Commissioner for

the purpose of carrying out the aforesaid directions.

23. The Local Commissioner shall be paid a fees of `25,000/-

apart from other expenses. The Local Commissioner shall be

provided all such necessary assistance by both the parties

and he shall further free to take necessary police assistance

in the event of his requiring it to be so.

24. The entire expenses including the fees of the Local

Commissioner for appointment of the Local Commissioner

shall be borne by the defendants.

25. A copy of this order be sent to the Local Commissioner for the

purpose of information.

26. Accordingly, application is partly allowed.

V.K. SHALI, J.

NOVEMBER 25, 2010 RN