Vijay Gupta vs Mohd. Arifeen & Ors.
2011 Latest Caselaw 3701 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.391/2011


%                                                         3rd August, 2011

VIJAY GUPTA                                              ...... Appellant
                          Through:     Mr. N.N.Aggarwal with
                                       Mr. Rohit Gandhi, Advs.

                          VERSUS
MOHD. ARIFEEN & ORS.                                      ...... Respondents

Through: None.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

1. At the outset, counsel for the appellant states that though the

appeal challenges various orders and also the final judgment/final decree

dated 30.4.2011, he confines the present appeal as a challenge only to

the final judgment dated 30.4.2011 which draws out the final decree in

the partition suit because one appeal otherwise would not have been

maintainable.

2. The facts of the case are that a suit for partition was filed with

respect to the property bearing no. 3741 to 3745, Sarak Churiwalan,

Chawri Bazar, Delhi. In this suit, a preliminary decree of partition was

passed on 14.12.2009. The preliminary decree not only decided shares of

the parties but decided the issue as to whether defendant no.1, one of the

co-owners, who was running a guest house namely „Seema Lodge‟ was

also, in fact, a tenant of the property. It was held in this preliminary

decree that the defendant no.1 thus in fact was also a tenant in the

property. Admittedly, this preliminary decree became final and was not

challenged by any of the parties. Once the preliminary decree becomes

final and is not challenged by any of the parties, the conclusions/findings

therein operate as res judicata between the parties vide Hope

Plantations Vs. Taluk Land Board, 1999 (5) SCC 590.

3. After the preliminary decree was passed, it was found that the

property is not capable of partition by metes and bounds. Counsel for the

appellant/plaintiff also admits that this is an undisputed position that the

property cannot be partitioned by metes and bounds. Proceedings

therefore took place in the Trial Court, post the preliminary decree, with

respect to valuation of the property and the possibility of inter se

purchase by the parties. Ultimately, an order was passed on 9.11.2010

which records the submission of the appellant/plaintiff that the property in

suit be auctioned. The order dated 9.11.2010 reads as under:-

"Present : Sh.Vijay Gupta, Attorney of the plaintiff with counsel Sh. M.P.Choudhary, Mohd. Irfan, Legal Representative of defendant no.1.

Today the envelopes submitted by both the sides have been opened in their presence. Out of envelope submitted by attorney of the plaintiff, his proposal has been taken out. The plaintiff has shown his willingness and readiness to purchase the half share of the defendants for a sum of Rs.70 lacs. He has also sown his readiness and willingness to sell his half share for the said

amount. However, Mohd. Irfan has not put forth his proposal specifying as to for which consideration he will purchase the share of the plaintiff. Even when the proposal put forth by the plaintiff has been conveyed to Mohd. Irfan, he has not put forth his willingness and readiness to purchase the share of the plaintiff or sell his share and that of co-defendants.

In the given circumstances, as rightly submitted by counsel for plaintiff, this court finds that the property is required to be auctioned when Local Commissioner has already observed that suit property cannot be partitioned by metes and bounds.

Reader to collect the latest list of the Court Auctioner from Judicial Branch, Office of Learned District & Sessions Judge, Delhi.

Be put up on 20.11.2010.

(Narinder Kumar) ADJ-01(West)/DELHI 09.11.2010"

(Underlining added)

A reference to this order shows that the appellant/plaintiff

himself said that the property is required to be auctioned as the same

cannot be partitioned by metes and bounds. Clearly therefore the right to

inter se purchase the property was given up by the appellant/plaintiff

himself and so recorded in the order dated 9.11.2010. The Trial Court

thereafter passed the impugned judgment being the final decree dated

30.4.2011 directing sale of the property and also the division of the rents

from the tenants in the property as per the shares fixed in the preliminary

decree.

4. Learned counsel for the appellant has sought to argue before

this Court the following points :-

i) The Trial Court has wrongly directed auction of the property

by the impugned final decree and the court should have

considered the inter se bidding for purchase of the property. It is

argued that even if there has to be auction of the property, plaintiff

cannot be prevented from participating in the auction.

ii) M/s. Seema Lodge/defendant no.1 is not a tenant in the

property and therefore the valuation report of the property is not

correct and therefore needs to be set aside.

iii) Final decree cannot be a valid final decree inasmuch as it has

not been directed to be drawn up on the necessary stamp paper

because the partition decree is an instrument of partition under

Section 2 sub-Section 15 of the Stamp Act.

5. So far as the first argument of the appellant/plaintiff is

concerned that the impugned judgment has wrongly directed auction of

the property and the Court ought to have directed inter se bidding for

purchase of the property and that the plaintiff had an entitlement to

purchase the property from other co-owners, is an argument which goes

against the admission of the appellant/plaintiff recorded in the order

dated 9.11.2010 of the Trial Court and which has been reproduced above.

This order of the Trial Court dated 9.11.2010, and which is an order which

is preceded by earlier orders wherein efforts were made for inter se

purchase by the co-owners, records that the appellant/plaintiff agreed

that the property should be auctioned. The earlier part of the order dated

9.11.2010 records the lack of agreement as to the price at which one co-

owner will purchase from the other co-owner. A party is not allowed to

challenge the factual statement as recorded in the order by stating that

the order does not correctly record the fact. Right from the decision in the

case of the State of Maharashtra vs. Ramdas Shrinivas Nayak &

Anr. AIR 1982 (2) SCC 483, it has been a consistent view of the

Supreme Court that it is not open to a party to pray before an Appellate

Court that the Trial Court in an order has wrongly mentioned a factual

aspect. The only way in which a factual aspect which is recorded in the

order that something has happened or not happened before the Court

below, can be corrected, is by approaching the same Court which records

the factual aspect and that too immediately after the order has been

passed, when the matter is fresh in the mind of the judge who has passed

the order. If that is not done the matter must necessarily rest there.

Therefore, I reject the argument raised on behalf of the appellant that the

Trial Court has wrongly directed sale of the property and should have, in

fact, directed inter se purchase by the different shareholders. I also reject

the weak attempt on behalf of the counsel for the appellant to state that

the order dated 9.11.2010 wrongly records the stand of the

appellant/plaintiff that when it was said that the property should be

auctioned. On this aspect I may however finally note that if the appellant

is entitled to participate in the auction as per law, then he can participate

on such terms as the trial court finds appropriate.

6. So far as the second argument that the defendant no. 1 is not

a tenant in the property, I must state that if any judgment or decree

wrongly decides an aspect, then the aggrieved party is bound to file an

appeal against the said judgment and decree. Even, if this Court

disagrees with the earlier view of a judgment and decree, the same is not

good enough to set aside the earlier judgment and decree which, if not

challenged, becomes final. The view of this Court therefore as to whether

M/s. Seema Lodge/defendant no.1 should not be held to be a tenant in the

property, cannot be as expressed inasmuch as the preliminary decree

dated 14.12.2009 specifically recorded a conclusion to this effect after

recording the respective contentions of the parties, and dismissing the

argument/stand/contention of the appellant/plaintiff when it was argued

that M/s Seema Lodge/defendant no.1 is not a tenant. This argument on

behalf of the appellant, that M/s. Seema Lodge/defendant no.1 is wrongly

held to be tenant in the property and therefore the valuation report is

fraud, has no merit because the earlier preliminary decree dated

14.12.2009, and which is final, holds that M/s. Seema Lodge/defendant

no.1 is a tenant in the property. In view of the aforesaid, I also reject the

argument of the learned counsel for the appellant that it is only a legal

issue that whether or not M/s. Seema lodge/defendant no.1 is a tenant in

the property and therefore this issue can again be raised in challenge to

the final decree which has been passed, although the said aspect has

achieved finality as per the preliminary decree which has become final.

7. So far as the third argument is concerned, an instrument of

partition includes a final order effecting partition passed by a Civil Court

by virtue of Section 2 sub-Section 15 of the Indian Stamp Act, 1989. The

Trial Court therefore will before proceeding to direct execution or

implementation of the impugned final judgment and decree dated

30.4.2011 will ensure that the requirements of the Stamp Act, 1899 are

complied with. I may, however, as a matter of caution, state that possibly

the provision of sub-Section 2 of Section 15 of the Stamp Act, 1899 will

apply when the value of the property is deposited pursuant to the auction

sale proceedings and whereafter it is held that there is a final decree

prescribing the different shares in terms of the monetary value of each of

the co-sharer in the suit property out of the deposited sale value.

8. In view of the above, I do not find any merit in the appeal,

which is accordingly dismissed, leaving the parties to bear their own

costs.

AUGUST 03, 2011                                  VALMIKI J. MEHTA, J.
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