Ms. Manjula Singh vs Miss Punita Singh
2012 Latest Caselaw 6970 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) No.219/1984


%                                                        December 05, 2012



MS. MANJULA SINGH                                    ...... Plaintiff
                            Through:     Mr. Aditya Singh, Advocate for Mr.
                                         Mohit Gupta, Advocate.




                            VERSUS


MISS PUNITA SINGH                                   ...... Defendant
                            Through:     Mr. Jasmeet Singh, Advocate.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)


1.

This is a partition suit. Originally, the two parties to the suit

were two sisters. There were two properties of which partition was sought.

First was the property at plot No.29, Block 171, Sunder Nagar, New Delhi.

The second property was land admeasuring 2200 sq yds, situated at village

Kilokri, Opp. Gurdwara Bala Sahib, off. Ring Road, New Delhi.

2. So far as the property at Sunder Nagar is concerned, the same

has been sold long back after passing of the preliminary decree and therefore

qua that property no orders are required to be passed.

3. Today, the suit is listed for consideration of objections to the

report of the Local Commissioner dated 25.11.2011, and which report

directs the partition of the village Kilokri property at 55% and 45% in view

of the shape of the plot, location thereof and the access thereto at different

sites by means of certain main roads and side roads.

4. It is settled law that when a property is partitioned, partition

besides being physical has to be equivalent in terms of monetary value of the

property. Putting it differently, two persons may be entitled to 50% rights in

a property, however, the property has not to be physically partitioned at

50%, but what is partitioned is 50% of the value. In order to adjust 50% of

the value to each of the parties, it is possible that the area which falls to one

or other of the parties may be less or more than 50%. The Local

Commissioner has specifically reported by giving details in his report dated

25.11.2011 that the property should be divided by 55% to 45%. Since the

report is a very short one, I reproduce the same as under:-

"1. Vide order dated 27.9.2011 of this hon'ble court I was appointed as local commissioner to visit the property bearing No. 79 Jeevan Nagar, Kilkori, New Delhi 110014 and make a site plan along with report, after taking measurements, and propose an equal division of property.

2. After intimation to the parties vide my letter dated October 25, 2011, my draftsman visited the site on 1st November 2011 at 10.00 A.M. in the presence of Mrs. Punita Capoor and Mr. M L Pandita from Gammon India.

3. Vide my letters dated 7th November 2001 by speed post, I informed the parties about my visit to the site on 12th November 2011, to carry out the aforesaid commission.

4. I visited the site on 12th November 2011 at 11.30 A.M. to carry out the aforesaid task. The said visit was carried out in the presence of Mrs. Punita Capoor and her Advocate Jasmeet Singh and Mr. M L Pandita from Gammon India. Nobody was present from Shringar Impex Pvt Ltd.

5. Further to my site visit on 12th November 2011, I have deputed my draftsman to take exact measurements of the site on 15th November 2011 at 10.00 A.M.

6. I took the service of V.R. Surveyors, 145/6 Sector 1, Pushp Vihar, Saket, New Delhi 110017 to conduct the survey of the site. They carried out the Topographical survey of the site and submitted the survey plan showing the exact area of the plot.

7. Based on the survey plan and looking at the fact that the front area of the plot (which has two sides abutting on the adjoining roads) will command a higher commercial value as compared to its rear area (which has only one side abutting on the adjoining road) we propose to give 10% more area to the party who shall get/take the rear portion of plot so that the division of the plot between the two concerned parties is equal in terms of land value.

8. The proposed division is shown and marked on the attached survey

plan with the dimensions."

5. The objections which have been filed to this report are on

behalf of the plaintiff, who insists on physical partition by giving exactly

50% of the area. In my opinion, such stand is unacceptable because partition

really has to be as per the value of the property. In fact, the fairness of the

defendant is clear from the fact that the defendant is ready to accept either

the 55% portion or 45% portion and gives the first option to the plaintiff to

choose either the 55% portion or the 45% portion of the property situated at

village Kilokri, Opp. Gurdwara Bala Sahib, off. Ring Road, New Delhi and

which is the subject matter of the dispute.

6. Accordingly, accepting the report of the Local Commissioner

dated 25.11.2011, the suit is disposed of with the direction that the plaintiff

is given the first choice to exercise the option whether to take 55% or 45%

of the property aforesaid in terms of the report of the Local Commissioner.

This option be exercised within a period of two weeks from today by filing

an affidavit in this Court. In case, affidavit is not so filed, the plaintiff will

get 55% of the property in terms of report of the Local Commissioner dated

25.11.2011 and the defendant will get 45% of the property. I may note that

the portions of the property which are finally allocated have to be correlated

with the plan which is filed by the Local Commissioner alongwith his report,

and therefore that plan will form a part of the final decree.

7. The final decree be drawn up in terms of para 6 above, and on

the parties filing the necessary non-judicial stamp duty in terms of Article 45

of the Stamp Act, 1899 read with Section 2(15) thereof. Suit stands

disposed of accordingly.

VALMIKI J. MEHTA, J DECEMBER 05, 2012 Ne