Bhawna Bhardwaj vs Rahul Bhardwa
2015 Latest Caselaw 2820 Del

3
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       CS(OS) 52/2011
                                          Decided on : 08.04.2015
IN THE MATTER OF:
BHAWNA BHARDWAJ                                           ..... Plaintiff
                              Through : Mr. Adarsh Verma, Advocate


                        versus

RAHUL BHARDWA                                       ..... Defendant
                              Through : Mr. Suresh Sharma, Advocate
CORAM
HON'BLE MS.JUSTICE HIMA KOHLI

HIMA KOHLI, J.(Oral)


I.A.No.25258/2014 (by the plaintiff u/O XII Rule 6 CPC)


1.

The plaintiff has instituted the present suit for partition and

rendition of accounts against her brother, in respect of a flat bearing

Flat No.D-5, Oriental Enclave, Plot No.32, Patparganj, Delhi.

2. It is an undisputed position that the subject flat was owned by

Mr. Veena Bhardwaj, mother of the parties and she had expired on

29.5.2001. Shri Ashok Kumar Bhardwaj, the father of the parties,

had predeceased his wife having expired on 18.1.1993. As per the

plaintiff, she and her brother are the only class-I legal heirs and

therefore, both the parties are entitled to an equal share in the subject

premises.

3. Counsel for the plaintiff states that there is a clear admission on

the part of the defendant and the same shall suffice for the purpose of

passing a preliminary decree in respect of the suit premises.

4. Counsel for the plaintiff states that while filing the written

statement, the defendant has made explicit admissions on the basis of

which, a preliminary decree of partition may be passed by the Court.

In support of the said submissions, learned counsel for the plaintiff

refers to the averments made by the defendant in para 1 of the

preliminary objections and paras 3, 12, 14 & 15 of the reply on merits

of the written statement.

5. A reply in opposition to the present application has been filed by

the defendant. Counsel for the defendant states that it has been

clearly stated in the written statement that the suit property already

stands partitioned and the parties are in possession of their respective

shares, as per their entitlement. Counsel for the defendant clarifies

that as per his client, the plaintiff is in occupation of 46% share of the

built up area in the subject flat, whereas the defendant is in physical

possession of 54% of the area, with separate entry and exit.

6. The Court has perused the written statement filed by the

defendant. The following admissions made by the defendant are

relevant for deciding the present application:

"Preliminary Objections :

1. .........The plaintiff is in possession of approximately 46% of area and the defendant is in physical possession of 54% approx of the rest of the area with separate entity and exit......

xxx xxx

"On Merits :

xxx

3. .........Since the plaintiff is occupying almost half portion of the flat in question, the allegations of any physical or mental harassment of the plaintiff are apparently false, baseless and motivated........

xxx xxx

12. ......The plaintiff is in occupation of almost half portion of the flat in question as stated above in para 1 of the preliminary objections........

xxxx

14. That in reply to para 14 of the plaint, it is submitted that the plaintiff is already occupying half portion of the flat in question with separate entry and its division by metes and bounds is not practically possible. The defendant is not willing to sell the flat as his sentiments and emotions are attached with the same.

15. Except that the plaintiff got about 55% of the movables left behind by the predecessors-in-interest of the parties and that the flat already stands partitioned between the parties, the rest of the contents of the para call for no comments."

7. On a collective reading of the averments made by the defendant

in the written statement as reproduced hereinabove, he has clearly

admitted the fact that he and the plaintiff are entitled to equal shares

in the subject flat. He has also admitted that the plaintiff is in

possession of about 46% area of the flat, whereas he is in possession

of a larger portion to the extent of 54% of the area available.

8. Based on the admissions made by the defendant in the written

statement, a preliminary decree is passed, by declaring that the

plaintiff and the defendant are entitled to 50% share each in the suit

flat. Decree sheet be drawn up accordingly.

9. The application is allowed and disposed of.

(HIMA KOHLI) JUDGE APRIL 08, 2015 sk/rkb