M/S Pragun Buildtech (P) Ltd vs Sarla Aggarwal & Ors
2014 Latest Caselaw 39 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CS(OS) 2243/2010
       M/S PRAGUN BUILDTECH (P) LTD              ..... Plaintiff
                Through: Mr.Maninder Singh, Sr. Advocate with
                         Ms.Vibha Mahajan Seth, Adv.

                          versus

       SARLA AGGARWAL & ORS                ..... Defendant
               Through: Mr.S.N. Kumar, Sr. Advocate with Mr.K.B.
                        Soni, Advocate for defendant no.1
                        Defendant no.2 and 3 are present in person.

       CORAM:
               HON'BLE MR. JUSTICE G.S.SISTANI

                          ORDER

%                         03.01.2014
G.S.SISTANI, J

1. Mr.Ankur Goel, Advocate seeks discharge from appearing on behalf of defendant no.1 to 3, as the defendant no.1 to 3 have engaged another counsel. Accordingly, Mr.Ankur Goel, Advocate is discharged from the case.

IA.No.21367/2012 & CS(OS) 2243/2010

2. Plaintiff has filed the present suit for partition and possession. During the pendency of the suit an application was filed by the plaintiff being I.A.No.10564/2011 under Order 12 Rule 6 CPC. The aforesaid application was decided by a detailed order on 30.3.2012. A preliminary decree was passed in favour of the plaintiff and against the defendants no.5 to 9 for partition of 1200 sq. yards in the suit property, which was the share of the erstwhile HUF Arjun Prakash Aggarwal and Sons, which was

purchased by the plaintiff by a registered sale deed dated 7.4.2008. A Local Commissioner was also appointed to suggest the mode of partition in terms of the decree. The Local Commissioner was directed to submit his report. The Local Commissioner has since submitted his report, however, when the matter came up for hearing on 4.10.2013, the following order was passed:

"2. Mr. Anil Sapra, learned Senior counsel appearing for Defendant Nos. 1 to 3, on instructions from Defendant Nos. 2 and 3, Mr. Akshya Kumar Aggarwal and Mr. Ravi Kumar Aggarwal, who are present in Court, submitted that the Defendants would opt for the portions shaded in red and blue in the site plan enclosed with the report of the Local Commissioner („LC‟) together with the compensation for the shortfall of 210 sq.ft. and that unshaded portion may be given to the Plaintiff.

3. Learned counsel for the Plaintiff, on instructions from Mr. Gulshan Kumar Jolly, Authorized representative of the Plaintiff who is present in Court, states that the above suggestion is acceptable but the question regarding entitlement of the Defendants to compensation for the shortfall area of 210 sq. ft. would be subject to the decision in IA No. 21367 of 2012.

4. The above statements are placed on record. The parties are bound by the options exercised by them respectively as regards the portions as delineated in the site plan enclosed with the LC‟s report. It is clarified that the decision regarding entitlement of the Defendants to the compensation for the shortfall area of 210 sq.ft. will await the disposal of IA No. 21367 of 2012."

3. Counsel for the plaintiff submits that in view of the statement so made, the Local Commissioner should be directed to carry out the physical division of the property as per the statement made by the contesting

defendants i.e. defendants no.1, 2 and 3 on the last date of hearing.

4. Mr.S.N. Kumar, learned Senior counsel appearing on behalf of defendant no.1 and the defendants no.2 and 3, who appear in person submit that the lease of the plot stands cancelled and thus no physical division should be carried out till the lease is restored.

5. Counsel for the plaintiffs submits that the plaintiffs have already applied for conversion of the property from lease-hold to free-hold and for which more than Rs.1.0 crore stands deposited with the DDA, and moreover once the preliminary decree has been passed, this objection cannot be raised as the physical division would have no bearing on the fact that the lease has been cancelled.

6. Another objection has also been raised by the defendants that before the physical partition can be carried out, prior permission of the DDA would be required. Counsel for the plaintiffs has relied upon the following judgments in support of his contention that the property can be partitioned by metes and bounds according to the share of the parties while keeping the plot underneath as joint and for which no permission would be required. In the case of Chiranjilal & Anr. Vs. Bhagwan Das and Ors. AIR 1991 DELHI 325, it was held:

"A contention was raised that as there exists a joint lease in respect of the plot in question from the Government and the plot cannot be divided in view of the terms of the lease deed, thus the properly in question cannot be partitioned by metes and bounds. Similar question arose for decision in Inderjit Singh vs. Tarlochan Singh 1991 Rajdhani Lr 239 and it was held that the super structure built on a plot can be partitioned by metes and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint and no permission of the Lesser is needed for effecting the partition of the building by metes and bounds. I respectively agree with the ratio expressed in this judgment and hold that no permission is liable to be obtained from

the Delhi Development Authority for partitioning the building in question according to the shares of the parties. Now the question whether physically the building could be partitioned by metes and bounds according to the shares of the parties mentioned above, could be decided only by the Local Commissioner who is to be appointed for suggesting mode of partition."

7. A similar view was expressed by another Single Judge of this court in the case of Shri Mohinder Singh Vs. Shri Kartar Lal 1997 III AD (DELHI) 626 and more particularly in paragraph 7, which reads as under:

"7. The next submission of the learned counsel for the plaintiffs is that the terms of the lease specifically prohibits division of property and as such the property could not be divided by metes and bounds. In this connection, the counsel drew my attention to the provisions of Clause 4(d) of the Lease Deed wherein, it has been stipulated that there could be no sub division of the land. However, it is to be noted that the suit property consists of not only land but also the superstructure standing thereon. Accordingly, even if it is held that the land beneath the superstructure may not be divisible, there is no bar under any law to make any division with regard to the superstructure standing on the land. In this connection, reference may also be made to the decision of this court in Chiranjilal & Anr. Vs. Bhagwan Dass & Ors. reported in 1991(3), Delhi Lawyers 350, wherein it has been held that superstructure standing on a land could be divided. Therefore, this objection also has not merit and is accordingly rejected."

8. Yet again another Single Judge of this court in the case of Ram Lal Sachdev Vs. Smt. Sneh Sinha reported at AIR 2000 DELHI 92 has held that the property can be partitioned and it would not tantamount to violation of the covenants of the lease deed. This view has been reiterated even by another single judge of this court in the case of Madan Lal Vs. Kuldeep Kumar & Ors. decided on 4.10.2013 reported at MANU/DE/4039/2013. I am in respectful agreement with the view expressed by the courts in the above matters. In this case as well, while

keeping the plot underneath the super structure as joint the super structure can be divided. I am also of the view that merely because the lease has been cancelled, the property should not be divided, is without any force as there is no connection between the division of the properties and the cancellation of the lease.

9. It may be noticed that the defendants No.1, 2 and 3 have no share in the 1200 sq. yrds. which was sold to the plaintiff by HUF, Gajanand & Sons. It may also be noticed that one of the brothers of HUF, Arjun Prakash Aggarwal and Sons, being defendant no.4 herein, has also sold 350 sq. yds. to the plaintiff herein and handed over possession. It may also be noticed and as has been noticed by the Single Judge in his order of 30.3.2012 which has attained finality that the defendant no.4 in his written statement had made admission that he has sold 350 sq. yds. to the plaintiff and he is not contesting the case.

10. Another fact which has been noticed by the Single Judge is that defendant no.1, 2 and 3 had also agreed to enter into an agreement to sell with the plaintiff on 6.12.2008 and have received part consideration of Rs.91.0 lacs and the balance amount of Rs.8.09 crores stand deposited with the Registrar General of this court, by virtue of an order passed in suit for specific performance which is also pending in this court.

11. In this background, I am of the view that the objections which are sought to be raised by the defendants are without any force and are being raised merely to delay the matter. Consequently, the Local Commissioner is directed to visit the property on 25.1.2014 and divide the property by constructing a wall. Local Commissioner will be entitled to take the services of a draftsman and / or architect for the purposes of proper division which shall be as per the statements made by defendants no.1, 2 and 3 in court. No obstruction shall be carried out by either of the parties.

The local Commissioner would be entitled to police aid.

12. List the matter before Court on 6.3.2014.

IA.No.16935/2013

13. Counsel for the plaintiff submits that he does not wish to press the application, as no prior permission was required from the DDA for partitioning the property by metes and bounds, as per the law laid down by this Court in Shri Mohinder Singh Vs. Shri Kartar Lal 1997 III AD (DELHI) 626 and Madan Lal Vs. Kuldeep Kumar & Ors.

MANU/DE/4089/2013 and in view of the order passed in Court today.

14. Accordingly, the application stands dismissed as not pressed.

G.S.SISTANI, J JANUARY 03, 2014 ssn