Avtar Singh Through Lrs vs Trilok Singh (Deceased) Through ...
2013 Latest Caselaw 4530 Del

*              HIGH COURT OF DELHI AT NEW DELHI

+                       RSA 215/2013

                                  Decided on : 01st October, 2013

      AVTAR SINGH THROUGH LRS                     ..... Appellant

                 Through             None.

                        versus

     TRILOK SINGH (DECEASED)
     THROUGH LRS AND ORS                 ..... Respondent
              Through  Mr. Sanjeev Sindhwani, Sr. Adv.
                       with Mr. Naresh Kumar Beniwal, Adv.
                       For Lrs. Of R-3 Late Shri Ranjit Singh.

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

     V.K. SHALI, J. (ORAL)

1. This is a Regular Second Appeal filed by the appellant

against the judgment and decree dated 28th May, 2013 passed by

the learned ADJ in RCA-II/2009.

2. I have heard Dr. N.K. Khetrapal, learned counsel for the

appellant on the last date of hearing. The matter was kept for

today for obtaining instructions as to whether the appellant

would like to surrender the excess area over and above the share

to which he is entitled in terms of the concurrent finding of the two

RSA 215/2013 Page 1 courts below. However, today despite second call neither the

counsel has appeared nor the appellant is present.

3. I do not find that any substantial question of law is

involved in the matter. On the last date the learned counsel for the

appellant was not able to point out any substantial question of

law being involved, although he had made three submissions

assailing the judgment and decree passed by the First Appellate

Court.

4. The first submission raised by the counsel was that the

judgment and decree passed by the First Appellate Court

upholding the judgment and decree of partition passed by the

trial court is not sustainable in the eyes of law inasmuch as no

valuation of the property was got done either by the Local

Commissioner or by the court and as a consequence of which the

share which has been given to the appellant at the rear portion of

the suit property commands much lesser value in comparison to the

share in the front portion of the building which has been given to

the respondents.

5. The second submission was that even if the report of the

Local Commissioner in terms of the judgment and decree is

RSA 215/2013 Page 2 accepted, the share which has been allocated to the appellant

does not provide any passage from the building to have an

access to his portion, and consequently the portion which is shown

to have fallen to his share becomes landlocked and therefore the

judgment and decree of partition with regard to both preliminary

and final partition of the suit property is unsustainable in the eyes

of law.

6. The third submission which was urged by the learned

counsel was that even if the argument of the learned counsel for

the respondent is accepted, that the appellant could have access

to his portion from the adjoining street/gali purported to be of 17

ft. in width even then the appellant has the difficulty in obtaining

permission for opening of a door in the gali as the area falls within

the prohibited/regulated zone in terms of the Ancient Monuments

& Archaeological Sites and Remains Act, 1958. Therefore, the

judgment and decree deserves to be set aside and the matter

deserves to be remanded back to the courts below for the purpose

of allocation of the shares of the parties.

7. None of the submissions rendered by the learned counsel

for the appellant involve any question of law much less substantial

RSA 215/2013 Page 3 question of law. Keeping in view the submissions made by the

learned counsel, it would be pertinent here to give a brief

background of the case.

8. A suit for partition was filed by one Ranjit Singh s/o Shri

Trilok Singh against Shri Trilok Singh s/o Shri Dewan Singh,

Kartar Singh s/o Shri Trilok Singh and Shri Avtar Singh s/o Shri

Trilok Singh, for partition. It may also be worthwhile to mention

here that Ranjit Singh, Kartar Singh and Avtar Singh are the real

brothers while respondent Trilok Singh was an outsider. The case

set up by Ranjit Singh was that he has got ½ share in the suit

property whilst the Trilok Singh has got 3/20 share, Kartar Singh

has got 1/4th and Avtar Singh got 1/10th share in the suit property.

Since there was no dispute about the ownership of each of the

parties, learned ADJ passed a preliminary decree way back on

21.5.1981, in respect of the share of the aforesaid four parties. The

said preliminary decree was passed on the basis of the consensus of

the parties and therefore the same never came to be challenged

subsequent thereto.

9. The court appointed a Local Commissioner for the

purpose of preparing a report as to how a property can be

RSA 215/2013 Page 4 partitioned amongst the co-sharers. It was also observed in the

preliminary decree that as far as possible the Local Commissioner

shall make minimum displacement of persons/co-sharers from the

portions which were under their occupation. Mr. R.K. Vats,

Local Commissioner furnished a report and gave the total area of

the property as 1786.60 sq. yards which is equivalent to 16079.40

sq.ft. The Local Commissioner also prepared a tabulation with

regard to the actual portion of the suit and the occupation of

various parties in comparison to the portions or the area to which

they were entitled. The said tabulation is being reproduced as

under :

              S.N    Name      of   Area      in      %age       Area as       Area in Sq.
              o      party          possession                   per           ft.
                                    sq. ft.                      Court's
                                                                 order
              1.     Late Shri      4908.40           30.53      52.50         8441.69
                     Ranjit Singh
              2.     Late Shri      4901.00           30.48      27.50         4421.84
                     Kartar Singh
              3.     Shri Avtar     3148.00           19.58      12.50         2009.93
                     Singh
              4.     Late Shri      ---------         -------    2.50          401.98
                     Hakim Singh
              5.     Late Smt.      ---------         --------   2.50          401.98
                     Ram Piari
              6.     Late           ---------         --------   2.50          401.98
                     Smt.Balwant
                     Kaur
              7.     Open area      3122.00           19.41
                     jointly used
                     by parties
                      Total         16079.40 sq.ft                         16079.40 sq. ft
                                           or                                         or
                                    1786.60 sq.yds.                        1786.60 sq.yds.



RSA 215/2013                                                                                 Page 5

10. In the light of the aforesaid report, the Local Commissioner

also observed that keeping in view the location of the plot as two

sides are open and each of the parties will have uninterrupted right

of passage and light and also their original occupancy can be

maintained so as to cause minimum displacement. It may also be

pertinent to mention that by the time the Local Commissioner

furnished his report, the matter had been transferred to the Court of

learned Civil Judge on account of enhancement of pecuniary

jurisdiction and the learned Civil Judge accepted the report of the

Local Commissioner.

11. The deceased appellant Mr. Avtar Singh filed objections to

the report of the Local Commissioner which was on the same lines

on which the submissions have been urged in appeal before this

court. All the objections were considered by the learned Civil

Judge and the same were disposed of vide a detailed order dated

19.9.2005, culminating into a final decree.

12. The appellant feeling aggrieved by the said judgment and

decree passed by the learned Civil Judge filed an appeal before the

court of learned ADJ titled as Avtar Singh Vs. Tirlok

RSA 215/2013 Page 6 Singh(deceased) & Ors. bearing RCA No. 11/2009 and the same

was also dismissed on 28.5.2013

13. Feeling dissatisfied, the appellant filed the present Regular

Second Appeal. The points which have been now raised by the

learned counsel for the appellant are three fold as stated above.

The learned counsel has raised objection with regard to the non

valuation of the property and has placed reliance on Niranjan Lal

Aggarwal Vs. Shri Prem Nath Aggarwal, 1998 V AD(DELHI)

999 and Saraswati Debi & Ors. Vs. Satya Narayan Gupta, AIR

1977 Calcutta 99. In both these judgments no doubt the court

while passing a final decree of partition has observed that valuation

of the property ought to have been done but the facts of both these

cases are totally different from the facts of the case in hand. No

doubt the valuation of the property is the fundamental principle

which has to be followed by the court in a case where the Local

Commissioner gives a report that the property cannot be

partitioned by metes and bounds but in the instant case, the Local

Commissioner has not given any such report that the property in

question cannot be partitioned by metes and bounds. More so,

when the built up area of the property was huge which was to the

RSA 215/2013 Page 7 extent of 17000 sq ft. approx., and this was to be shared amongst

the four co-sharers, now the legal heirs. Further the share of the

appellant happens to be only 12.5% and the share of remaining

parties happens to be only 87.5%. When the parties who are

owning substantial portion of the share do not raise any objection

on account of non-valuation, in such a contingency the valuation of

the property was not necessary and it is raised only to prolong the

matter. In addition to this the mandate of the court in the very first

order when the preliminary decree was passed was that the Local

Commissioner will ensure that the partition takes place on the

basis of minimum displacement of the parties from their

respective portions of occupation. The suit for partition having

been filed in 1975, the appellant has been successful in prolonging

the partition by metes and bounds for almost 35 years. The

appellant admittedly as on date is entitled to 2009 sq. ft of area

while at present he is holding 1000 sq. ft., more area for the last

more than almost 35 years. In such a contingency the plea of

valuation of the property is not only mala fide but further to

prolong the disposal of the case.

14. The second point which has been raised by the learned

RSA 215/2013 Page 8 counsel for the appellant that the portion which has been allotted

to him has become land locked and the third point with regard to

the objection of opening a door in the gali on account of

prohibition by the authorities under the ASI is interconnected.

15. Mr. Sindhwani, learned Senior counsel for the respondent

has referred to the judgments of the Apex Court in Shub Karan

Bubna alias Shub Karan Prasad Bubna Vs. Sita Saran Bubna and

Ors.; (2009) 9 SCC 689 and Niranjan Lal Aggarwal Vs.Sh.Prem

Nath Aggarwal; 1998 V AD (Delhi) 999, where it has been laid

that once a preliminary decree for partition is passed so far as to

passing a final decree is concerned, that is only ministerial in

nature and it has to be done only after obtaining a report of the

Local Commissioner. If this court is to go by the judgments of the

Apex Court then once the share of the parties was determined the

subsequent passing of the final decree by the court after obtaining

report of the Local Commissioner was only an act which was

ministerial in nature, and the same could not be assailed by filing

the second appeal and raising any question much less a substantial

question of law with regard to the ministerial act. No judgment to

the contrary has been cited by the learned counsel for the appellant

RSA 215/2013 Page 9 in this regard.

16. The third point with regard to opening of a door in the 17 ft.

wide gali where the portion which is falling to the share of the

appellant is concerned, the contention of the learned counsel for

the appellant is that his share has become land locked is not

correct. The submission that he will have difficulty in obtaining

permission from ASI for opening of a door in the gali because the

area is falling in prohibited area near the monument, it may be

pertinent to mention here that the appellant has never applied for

grant of such a permission. My attention has been drawn by the

learned counsel for the respondent to Rule 6.4.1 of the Unified

Building Bylaws of 1983 which clearly lays down that for the

purpose of opening a window and a door which opens in the

street or gali and which is not opening in somebody's' portion,

no permission of MCD is required. The relevant rule reads as

under:

"6.4.1 No notice and building permit is necessary for the following alterations, which do not otherwise violate any provisions regarding general building requirements, structural stability and fire safety requirements of the Bye-laws.

a)... ...

RSA 215/2013                                                        Page 10
                b)... ...

               c)... ...

d) Opening and closing windows, ventilators and doors not opening towards other's property."

17. If that is so then there is absolutely no permission required

for opening a door in the gali by the appellant. Even otherwise

also, the appellant can always apply to the ASI for grant of such a

permission and if the permission is refused then he can have

appropriate recourse of law. All the three submissions in my

considered opinion which have been made before this court by

Dr. Khetrapal on the last date of hearing are not raising any

question of law much less substantial question of law which

cannot be entertainment by this court. I accordingly feel that the

Regular Second Appeal is without any merit and the same is

hereby dismissed.

                                                    V.K. SHALI, J
     OCTOBER 01, 2013/mg




RSA 215/2013                                                       Page 11