Delhi High Court
Nripendra Kumar Aggarwal vs S.L. Aggarwal & Others on 17 October, 2014
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 765/2010 & CCP(O) 69/2010, I.A. 8041/2010,
I.A.10294/2011, I.A. 7158/2012, I.A. 8226/2012, I.A. 8227/2012,
I.A. 13723/2012, I.A.19939/2012, I.A. 7566/2013
% Judgment dated 17.10.2014
NRIPENDRA KUMAR AGGARWAL ..... Plaintiff
Through: Mr. K.R. Chawla, Adv.
versus
S.L. AGGARWAL & OTHERS ..... Defendant
Through: Mr.Monika Arora and Mr. Abhishek
Choudhary, Advs. for D-1.
Ms. Jaya Tomar, Adv. for D-9 to D-13.
Mr. Rajat Aneja, Ms. Aarohi Helani, Ms.
Rashmi Verma and Mr. Vijay Kasana, Advs.
for D-14 to D-17.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S. SISTANI, J (ORAL)
1.
Plaintiff has filed the present suit for partition of immovable property
being a flat on the first floor and the second floor of property bearing
No.61/30, Ram Jas Road, Karol Bagh, New Delhi-5 (towards House
No.61/29). A preliminary decree was passed as far back as on
03.08.2011 defining the shares of the parties as 1/6th each. Thereafter
initially all parties had shown interest to redevelop the property and
divide the same but no consensus could be arrived at. Resultantly in
the order dated 01.08.2013 it was recorded that the proposal to erect a
new building cannot be proceeded with. It was also recorded in the
order that sale by public auction would have to take place.
2. In the order dated 01.08.2013 it was also noticed that there was
considerable dispute as regards the access to the suit property i.e. first
floor and second floor from the front side of the suit property as it was
the stand of defendant No.1 that the courtyard (shaded yellow in the
site plan at page 37 of the documents filed by the plaintiff) is in
exclusive possession of defendant No.1 and defendant No.1 cannot
agree to grant access from the ground floor to the first and second
floor. The stand taken by the plaintiff and defendants No.2 to 17 was
that the passage can be split into two equal portions of 7.5 ft. width,
with the half closer to the outer wall being used for ingress from the
front road to the portions above and adjacent to the ground floor.
3. By an order dated 01.08.2013, a Local Commissioner was appointed
to visit the suit property and give a report. Local Commissioner was
directed to:
"(1) will arrange to have photographs and video-graph
taken of:
(a) the portion marked in yellow in the site plan
(which is at page 37 of the Plaintiff's list of
documents and a colour photocopy of which will be
given to the LC by the parties);
(b) of the portions above the ground floor which are
proposed to be sold by way of public auction sale;
(c) the staircase in the rear portion from all angels;
(d) the service-lane in rear as well as the entry into
the property from the said service-lane.
(2) The LC will, where necessary speak to the occupants of
the ground floor as well as occupants of the portions
adjacent to the ground floor as well as the first and second
floor (towards House No. 61/31) to ascertain the means of
their access to the portions at present.
(3) Examine the feasibility of dividing the passage into two
equal halves by a brick wall so that access could be
provided from the front gate to proposed purchasers of the
portions intended to be sold by way of public auction.
(4) the structural safety and soundness of the building in
general and the portions to be sold by way of public
auction."
4. The Local Commissioner filed his report on 23.08.2013. The suit
property has still not been put to auction as the dispute with regard to
the access to the first floor and second floor still remains unresolved.
It may be noticed that no written statement has been filed by
defendant No.1. This court is informed that the right to file written
statement of defendant no.1 was closed and an appeal filed against the
aforesaid order was dismissed.
5. Mr. Chawla, learned counsel for the plaintiff submits that the access
to the suit property is from the front side. He further submits that the
suit property was described in para (4) of the plaint. Para (4) also
refers to a site plan and the site plan refers to a portion marked in red
which is the suit property and the portion marked in yellow has been
shown as the common area i.e. the passage from which access is being
sought. He submits that in the absence of any written statement the
averments made in the plaint are deemed to be admitted thus
defendant No.1 cannot raise any objection on this account.
6. He further submits that a copy of the plan filed alongwith the suit is a
plan which form part of an award wherein also the portion shown in
yellow is shown as common area. On the basis of the award, the
ground floor portion has fallen to the share of defendant No.1. On
this account also the defendant No.1 cannot dispute the plan.
7. Reliance is also placed by Mr. Chawla, counsel for the plaintiff on the
report of the Local Commissioner appointed by the Court on
01.08.2013. He further points out that no objection to the report of the
Local Commissioner has been filed by defendant No.1.
8. Mr. Aneja, learned counsel appearing on behalf of defendants No.14
to 17 also supports the stand taken by counsel for the plaintiff, he
submits that the common passage shown in yellow is the only passage
available for gaining access to the first floor and the second floor of
the suit property. Recognising this fact in mind, the Local
Commissioner was appointed by the Court on 01.08.2013.
9. Mr. Aneja further submits that the report of the Local Commissioner,
to which no objections have been filed by any of the parties, makes it
abundantly clear and leaves no room for doubt that the entrance at the
rear was only to be used for the purposes of sewage and other
essential services and not for the purposes of gaining access. He
further submits that this is also evident from the fact that the door is
barely 5 ft. x 2 ft. wide which is not a normal size of a door.
Mr.Aneja also submits that the rear door is unusuable which is evident
from the photographs filed by the Local Commissioner showing the
condition of the back lane. Reliance is strongly placed by Mr. Aneja,
counsel for defendants No.14 to 17 on the report of the Local
Commissioner as well wherein the statement of an occupant of the
adjoining property was recorded with regard to the access to the
building from the front.
10. Ms. Arora, learned counsel for defendant No.1 has vehemently
opposed the clarification or grant of access to the suit property from
the front area. She submits that in terms of the award the defendant
No.1 was granted full use of the ground floor which includes the
courtyard and passage. She further contends that the properties have
been built in such a fashion that the occupants of the first floor and
second floor can gain access from the door provided at the rear end of
the property where the staircase has been provided and there is no
purpose or logic to permit any outsider to gain access through the
exclusive property of the plaintiff to the first floor and the second
floor. She submits that serious prejudice would be caused to the
rights of the defendant No.1 as the purchaser of the first floor and the
second floor, who may be a stranger to the family, may obstruct the
area which falls exclusively to the share of defendant No.1 and also to
divide that area by erecting a wall would amount to depriving
defendant No.1 of valuable area which is fallen to his share. Counsel
has also submitted that the door available at the rear side is wide
enough for any person to gain access and that is the general
arrangement in the area where the property is situated. Counsel
submits that the award notices the fact that the ground floor of the
property is to fall to the share of the defendant No.1 which was in the
occupation of the tenant and the tenant was in occupation of the entire
ground floor with courtyard and thus there is no ambiguity with
regard to the share of defendant No.1. Learned counsel has also
raised an objection to the report of the Local Commissioner. She
submits that since the time the report has been filed she has been
raising serious objections with regard to the findings of the Local
Commissioner. However, reference has been made by Ms. Arora to
para 3 (b) of the report of the Local Commissioner which supports the
plea of defendant no.1 wherein the Local Commissioner has noticed
that the first and second floor of the property can be approached from
the rear portion, the entrance to stairs is also from the backside of the
building and is also approachable from the service lane. Local
Commissioner has also noticed that ground floor and first floor
residents of adjoining properties have independent entrance from
service road.
11. Counsel appearing for defendants No.9 to 13 submits that all the
residents of the ground floor have separate doors at the rear side of the
building leading to access to the first floor and second floor but the
same are only used for the purposes of sewage, drainage or water
supply but access to their portion is only from the front.
12. I have heard learned counsel for the parties and have given my
thoughtful consideration to the matter. After the passing of the
preliminary decree on 03.08.2011, this matter has been adjourned
from time to time as the terms of auction could not be finalised till it
was made clear as to whether the auction purchaser would have access
to the first floor and second floor i.e. suit property from the front area
as well or not.
13. The objection with regard to the access from the front side was raised
for the first time and noticed in the order dated 28.03.2012 when a
Local Commissioner appointed at an earlier point of time and who
was not allowed entry to the suit property from the front gate. The
court by an order dated 28.03.2012 directed defendant No.1 not to
raise obstruction to enable the Local Commissioner to gain access
from the front portion of the suit property.
14. Reading of the plaint more particularly paragraph (4) would show that
the plaintiff had referred to the suit property as first floor and second
floor and also referred to the site/building plan annexed alongwith the
plaint being Annexure P1 in colour red. No doubt the suit property
has been shown in colour red as rightly pointed out by Ms. Arora but
the same site plan also shows in yellow the common passage
including the passage subject matter of the present controversy. In the
prayer clause as well the plaintiff has referred to the site plan which
refers to the suit property in red and the common areas in yellow. The
defendant No.1 has not filed the written statement and the order by
which right to file written statement has been upheld in appeal as well.
By an order dated 01.08.2013 a Local Commissioner was appointed to
ascertain as to whether a wall can be erected in the open area shaded
in yellow and divide the same into two equal proportions of 7.5 ft. to
enable the access to the first floor and second floor from the front
road. Although no objections to the report of the Local Commissioner
has been filed by defendant No.1 and strictly no objections can be
entertained but being a family matter and to ensure that the occupant
of the ground floor is not put to any inconvenience, the objections
raised by Ms. Arora, counsel for defendant No.1 have been duly
considered. To erect a wall to give access to the first floor and second
floor in my view would deprive the occupant of the ground floor i.e.
defendant No.1 of his valuable right over 7.5 ft. area which would
then indirectly exclusively fall to the share of the occupant of first
floor and second floor. Thus I am of the considered view that even if
access has to be granted to the first and second floor from the front
side no wall should be erected. However, I am also of the view that
the occupant of the first floor and the second floor cannot be deprived
access from the front road of the suit property as the report of the
Local Commissioner leaves no room for doubt that the principal
access to the property is from the front side which is evident upon
reading of the report of the Local Commissioner. Relevant portion of
the Local Commissioner report reads as under:
"4. MEETING WITH THE OCCUPANTS OF THE
GROUND FLOOR AS WELL AS WITH THE FIRST AND
SECOND FLOOR OF ADJOINING PORTION
(TOWARDS HOUSE NO.61/31)
(c) Mrs. Usha Aggarwal, W/o Late Sh. Ravi Aggarwal
(Defendant No.9) and others are residing in the first floor and
second floor of the house, adjoining to disputed property. She
explained that as residents of first floor, their passage to the
road is through the open area of the compound (equitable to
portion marked yellow for disputed property). She also
mentioned that their vehicle (a motorcycle) is rightly parked in
this area. Besides, from front balcony she showed the area
within the compound in the front side of the building. This area
is open and not covered. She further mentioned that residents
of ground floor tried to cover this area. To stop this
unauthorized coverage, they approached local authorities. She
also showed similar front area of disputed property. This area
is covered. The service lane was also inspected. She explained
that this service lane is for services and no resident of the
colony uses the same for parking of vehicles or for entry to first
floor and above. For approaching service lane a door exist
exclusively for their use. From the service lane another door of
same property exist for ground floor residents. Two doors of
adjoining property towards service road also exist and she
explained that one is exclusively meant for the ground floor,
whereas other is for the first floor and above.
5. FEASIBILITY OF DIVIDING THE PASSAGE
After inspection of the total property i.e. disputed property and
adjoining house, it is seen that there are passages on both sides
of the building towards compound walls. Normally, such
common passages are provided as per municipal norms.
Therefore, for entrance to the property, both for ground floor,
first floor and above, this common passage has to be shared.
Such passages remain common property. Therefore, the
passage without any division should be used by all occupants of
ground, first and second floor. However, it has been desired
that feasibility of dividing passage into two equal halves by a
brick wall be examined. This has been examined and found
that it is possible to provide a brick wall 9" thick, between two
portions and this has been marked in red line in the enclosed
plan (Annexure 5). Separate gates can be provided in the front
side. On the back side, once dividing wall is constructed, the
toilets towards compound wall side cannot be approached by
the resident of ground floor."
15. Para 3(d) of the Local Commissioner report reads as under:
"(d) Service Lane in the rear - The service lane in the rear was
visited and it was found that this Service Lane is for services
like water supply, sewarages, drainage etc. It is not used for
movement and parking of vehicles. Details of various
photographs taken are as follows:
(i) Photo No.94 to 95 - Service lane is seen and
measurement of this service lane was taken. It is
8' wide.
(ii) Photo No.25 - Service lane is seen.
(iii) Photo No.26 - From service road the door of
Ground Floor below the disputed property is seen.
Further doors of Ground Floor and First Floor of
adjoining property are also seen.
(iv) Photo No.27 & 29 - From Service Lane the door
of Ground Floor below the disputed property
(near) as also door meant for 1st floor as also
passage (far) is seen.
It is noted that both Ground Floor and First Floor residents of
adjoining property are having independent entrance from
service road. Besides, resident of Ground Floor below the
disputed property also has independent entrance to service road.
The entrance leading to passage for stairs of First Floor and
portion marked yellow is also independent."
16. The Local Commissioner has clearly stated that the service lane in the
rear side upon visit was found to be used for services like water
supply, sewage, drainage and the same was not meant for movement
and parking of vehicles. Various photographs were filed along with
report, which have also been perused by the Court, which also show
that the back lane cannot be used for day-to-day access to the first and
second floors.
17. The site plan filed along with the plaint also shows the passage in
yellow as the common area. At no stage this was disputed by the
defendant No.1.
18. A preliminary decree was passed on 3.8.2011 declaring that the
parties to the suit have the following shares in the suit property:
Party to the suit Name Share
Plaintiff Nripendra Kumar Aggarwal 1/6th
Defendant no.1. Surinder Lal Aggarwal 1/6th
Defendants No.2 Gayatri Devi 1/42nd
to 8 Neelam Aggarwal Each
Deepak Aggarwal
Poonam parashar
Sunita Aggarwal
Manjushree
Anjali Aggarwal
Defendants Usha Aggarwal 1/30th
No.9 to 13 Kiran Aggarwal Each
Ritu Singhal
Seema Gupta
Rajeev Aggarwal
Defendants Manju Aggarwal 1/24th
No.14 to Sonia Daga
17 Ankush Aggarwal Each
Ankur Aggarwal
Defendant Veena Gupta 1/6th
No.18
19. On 3.8.2011, a statement was made by all the parties that the property
is incapable of partition by metes and bounds. The Court observed
that since the parties admit that the property is incapable of partition
by metes and bounds, the only course of action left for the Court was
to sell the suit property, as provided under Section 3 of the Partition
Act, on the request of one or more co-owners.
20. Since the year 2011, the property has not been put to sale on account
of the dispute between the parties relating to the access to the suit
property. In the absence of any consensus between the parties the
property has to be put to sale.
21. Accordingly, a final decree is passed, defining the shares of the parties
as stated hereinabove, wherein it is clarified that the suit property
would comprise of first floor and second floor with access from the
front area. It is also clarified as under:
i) Terms of auction and the sale deed will state the access from the
front gate shall not create any right in favour of the purchaser.
ii) The use of the passage from the front door to the staircase would
be deemed as permissive use only.
iii) No vehicle of any nature would be permitted to be parked by the
purchaser of the first floor and the second floor including putting
of flower pots, cycle or any other movables including genset, etc.
in the passage.
iv) The occupants of the ground floor will park their vehicles in such a
manner that there shall be clear 5 feet passage for the occupant of
the first floor and second floor to gain access at all times.
v) In case the gate is locked, a duplicate key would be provided to the
occupants of the first floor and the second floor.
15. It would be open for the parties to make an application for conversion
of the property from lease hold to free hold and sell the same by
private negotiations as suggested by the plaintiff, defendants no.2 to
17. In case, there is no consensus either of the parties will be free to
execute the decree in accordance with law and seek appropriate
directions.
G.S.SISTANI, J
OCTOBER 17, 2014 ns
