Sh.Dinesh Chand Gupta vs Sh.Mahesh Chand Gupta & Ors.
2014 Latest Caselaw 4054 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+            C.R.P.No.114/2011 & C.M.No.15420/2011(stay)

%                                                    01st September, 2014

SH.DINESH CHAND GUPTA                                         ......Petitioner
                 Through:                Mr.R.L.Sharma, Advocate.

                          VERSUS

SH.MAHESH CHAND GUPTA & ORS.             ...... Respondents

Through: Mr.Pradeep Kumar, Advocate for R-

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. This petition under Section 115 of the Code of Civil Procedure Code,

1908 (CPC) impugns the order of the First Appellate Court dated 27.8.2010

by which the First Appellate Court has set aside the order of the first

court/executing court dated 23.1.2009. The first court/executing court by the

order dated 23.1.2009 allowed the defendant no.3/judgment debtor no.3 to

have possession of the 3/4th share of the suit property, and which direction

the First Appellate Court has held to be illegal because the final judgment

and decree of partition dated 15.3.2004 only states that the plaintiff will take

possession of his share which has been given to him by consent, but the

other share being 3/4th share of the three brothers, defendant nos. 1 to 3 will

remain undivided i.e there is no direction for defendant no.3 to take

exclusive possession of the 3/4th share in the suit property.

2. Since the judgment and decree for partition dated 15.3.2004 is a short

order, I reproduce the same as under:-

"1. The plaintiff has filed the present suit for partition against his three brothers i.e. the defendants herein, in respect of property/house bearing No.1/5746, Gali No.15, Balbir Nagar, Shahdara, Delhi- 110032 (in short, 'suit property') built upon a plot measuring 132 sq. yards.

2. On 20.2.2002, a preliminary decree was passed by the Court in favour of the plaintiff and against the defendant whereby it was held that the plaintiff is entitled to 1/4th share in the suit property and the defendants no. 1 to 3 are also entitled to 1/4 th share each in the suit property. Thereafter, the parties were given an opportunity by the court to amicably partition the suit property amongst themselves by metes and bounds and determined their respective portions. On 24.1.2003, the plaintiff moved an application under Section 151 CPC stating therein that he was ready and willing to take the possession of 1/4th share of the suit property shown in green colour in the site plan filed by him alongwith the said application and his statement to that effect was also recorded by the court on 24.1.2003 and the said site plan was got exhibited as Exhibit P-1. On the same day, defendant no.3, Shri Mahesh Chand Gupta also gave a statement on oath that he has no objection if the portion identified by the plaintiff as shown in the Exhibit P-1 is taken by the plaintiff as his 1/4th share of the suit property and that the plaintiff shall have an absolute right upto the sky on the said portion. In view of the statements made by the

plaintiff and the defendant no.1, court notices were issued to defendants nos. 1 and 2, who were ex-parte in the present suit. The defendants no. 1 and 2 appeared before the Court on 15.2.2003 and stated on oath that they have amicably settled the matter with the plaintiff and have no objection if the portion identified by the plaintiff as shown in Exhibit P-1 is taken by the plaintiff as his 1/4th share of the suit property, of which the plaintiff shall be the exclusive owner and have absolute right upto the sky on the said portion. They also stated that they did not want the remaining portion of the property to be divided by metes and bounds and a final decree be passed accordingly.

3. In view of the statements made by the defendants that they have no objection if the portion identified by the plaintiff as shown in green colour in Exhibit P-1 is taken by the plaintiff as his 1/4th hare of the suit property and that they do not want to partition the remaining portion of the property by metes and bounds between them, the plaintiff is hereby declared as the absolute owner of the portion shown in green colour in the site plan (Exhibit P-1) of the property bearing No.1/5746, Gali No.15, Balbir Nagar, Shahdara, Delhi-110032. The defendants are directed to handover the peaceful and vacant possession of the said portion to the plaintiff. Exhibit P-1 be made part of the decree. Decree sheet be accordingly prepared. File be consigned to the record room."

3. The last para of the judgment and decree dated 15.3.2004 makes it

clear that what is stated therein is that the defendant nos. 1 and 2/judgment

debtor nos. 1 and 2 did not want to partition the remaining 3/4 th portion and

there is no recording in this judgment that defendant no.3 will take

possession of the entire remaining 3/4th portion which was not to fall to the

share of the plaintiff. Accordingly, the First Appellate Court was completely

justified in denying to the defendant no.3/judgment debtor no.3/respondent

no.1 herein, possession of the 3/4th portion of the suit property bearing

no.1/5746, Gali No.15, Balbir Nagar, Shahdara, Delhi-110032.

4. In view of the above, this petition is allowed and the matter is

remanded back to the executing court which will issue notices to the

defendant nos. 1 and 2 in the suit namely Prakash Chand Gupta and Suresh

Chand Gupta. On these two brothers being served, and who are 1/4th owners

each in the suit property, if these two defendants/judgment debtor nos. 1 and

2 give no objection to the respondent no.1 herein i.e judgment debtor no.3

for taking possession of the remaining 3/4th portion of the suit property

except the portion which fell to the share of the petitioner/plaintiff, then, the

executing court in that scenario only will give possession of the remaining

portion of the property which is not to fall to the share of the

petitioner/plaintiff to the defendant no.3/judgment debtor no.3. To clarify

further, no objection of defendant nos. 1 and 2/judgment debtor nos. 1 and 2

will be required for the defendant no.3/judgment debtor no.3 to take

possession of that entire remaining portion of the suit property which is not

the share of the petitioner/plaintiff.

5. The petition is allowed and disposed of in terms of the aforesaid

observations. Parties to appear before the District and Sessions Judge,

Karkardooma Court, Shahdara District, Delhi, and the District and Sessions

Judge will mark the execution petition for disposal in accordance with the

present judgment to a competent court in accordance with law.

VALMIKI J. MEHTA, J SEPTEMBER 01, 2014 KA