Dr. Bhagwant Singh Kanwar And Anr vs Ravinder Kaur Kanwar And Anr
2015 Latest Caselaw 7324 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           CS(OS) 2425/2011

                                                 Date of Decision: 24.09.2015

IN THE MATTER OF
DR. BHAGWANT SINGH KANWAR AND ANR                 ..... Plaintiffs
                       Through: Mr. Anil Kumar Verma, Advocate

                          versus


RAVINDER KAUR KANWAR AND ANR                       ....Defendants
                       Through: D-1 and D-1(a) are ex-parte.
                       Ms. Amrita Prakash, Advocate for D-2.


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The plaintiffs have instituted the present suit praying inter alia for

partitioning property No.P-1, Malviya Nagar, New Delhi, measuring 300 sq. yards

and determining the shares of the parties to the suit. Further, they have prayed

for a decree of declaration, declaring them and the defendants No.1 and 1(a) to

be co-owners, having 1/6th share each in the suit property and for directions to

the defendant No.2/L&DO to substitute their names in the records.

2. This order is in continuation of the order dated 04.8.2015. On 04.08.2015,

counsel for the plaintiffs had stated that except for the defendants No.1 and

1(a), all the parties to the suit were agreeable to partitioning the suit premises

by declaring that they were entitled to 1/6th undivided share each therein. It is

relevant to note that the defendants No.1 and 1(a) did not participate in the suit

proceedings and were proceeded against ex-parte vide order dated 01.05.2013.

After considering the averments made in the plaint, the testimony of the

plaintiffs and the submissions made by the counsel for the plaintiffs, issue No.1

framed on 22.07.2013 was answered in favour of the plaintiffs and it was held

that the plaintiffs and the defendants No.1 and 1(a) are entitled to a share in the

suit premises and the shares of the parties were determined as below:-

(a) Plaintiffs No.1(A) and 1(B) together 1/6th share

(b) Plaintiffs No.2(a), 2(b) and 2(c) together 1/6th share

(c) Plaintiff No.3 1/6th share

(d) Plaintiffs No.4(a) and 4(b) together 1/6th share

(e) Plaintiff No.5 1/6th share

(f) Defendants No.1 and 1(a) 1/6th share

3. On the basis of preliminary decree passed above, the share of the

plaintiffs No.1(A) and 1(B) was determined as one half each out of their

1/6th undivided share in the suit premises. Similarly, the share of the

plaintiffs No.2(a), 2(b) and 2(c) was determined as 1/3rd each out of their

1/6th undivided share and that of the plaintiffs No.4(a) and 4(b) was

determined as half share each out of their 1/6th undivided share in the

suit premises.

4. After answering issue No.1 in the aforesaid manner, issue No.2

which was framed with regard to the feasibility of partitioning the suit

premises by metes and bounds was taken up on 04.8.2015 and at the

request of the counsel for the plaintiffs, a Local Commissioner was

appointed to visit the suit premises and submit a report in that regard.

The Local Commissioner has executed the commission and submitted a

report dated 14.09.2015, stating inter alia that before executing the

commission, he had obtained the tracking report of the postal articles

sent to the defendants No.1 and 1(a) by speed post and courier to

ascertain as to whether they had received the same and the tracking

report had confirmed that the articles were duly delivered at their

addresses mentioned in the memo of parties.

5. The Local Commissioner had proceeded to visit the suit premises on

28.08.2015 and after inspecting the same, opined that considering the

size of the plot and the nature of construction existing thereon, it would

not be feasible to divide it by metes and bounds and the only course open

is to sell the suit premises and divide the sale proceeds amongst the

parties in proportion to their respective shares. In the alternate, the

report suggested that one of the parties could be given an option to

purchase the shares of the remaining parties.

6. In view of the report submitted by the Local Commissioner which

has been accepted by the plaintiffs, issue No.2 is answered by holding

that the suit premises is not capable of being partitioned by metes and

bounds.

7. Counsel for the plaintiffs submits that none of the plaintiffs have the

financial capacity to buyout the share of the others and therefore, the

preliminary decree may be converted into a final decree and after the suit

premises is mutated in favour of all the parties in the suit, as per their

respective shares, they be permitted to take joint steps to dispose of the

same in the open market and share the sale proceeds in proportion to

their shares therein.

8. On the last date of hearing, learned counsel for the defendant

No.2/L&DO was directed to obtain instructions as to whether there is any

impediment in mutating the suit premises jointly in favour of the plaintiffs

and defendants No.1 and 1(a), in the context of issue No.3. Counsel for

the defendant No.2/L&DO states on instructions that there is no

impediment in undertaking the mutation of the suit premises jointly in

favour of the plaintiffs and the defendants No.1 and 1(a), they being the

legal heirs of Late Balwant Kaur, who is the recorded owner of the suit

premises. She submits that even earlier hereto, when the plaintiffs had

approached the L&DO with a request for bringing on record the legal heirs

of Smt. Balwant Kaur, the said application had to be turned down only on

account of the absence of the requisite affidavits by two of the legal heirs

of the recorded lessee, namely, defendants No.1 and 1(a), who have been

proceeded ex-parte.

9. Counsel for the plaintiffs states that in view of the clarification given

by the counsel for the defendant No.2/L&DO, and after the preliminary

decree passed on 04.8.2015 is converted into a final decree, directions

may be issued to the defendant No.2/L&DO to mutate the suit premises

jointly in favour of the plaintiffs and defendants No.1 and 1(a) as per their

shares determined above. He further requests that since the defendants

No.1 and 1(a) have been proceeded against ex-parte and despite service

of a notice on them by the Local Commissioner, they have elected not to

participate in the proceedings, an officer of the Court may be appointed to

appear before the competent authority for and on behalf of the

defendants No.1 and 1(a), for taking all necessary steps to get the suit

premises mutated in favour of all the parties in the record of the L&DO.

10. In view of the aforesaid submission, the preliminary decree passed

in respect of the suit premises on 04.08.2015 is converted into a final

decree. The defendant no.2/L&DO is directed to process the application of

the parties for mutation of the suit premises jointly in their favour. Mr.

Mukesh Kumar (Mobile No.9717394825), an officer of this Court is

appointed to act for and on behalf of the defendants No.1 and 1(a) and

appear along with the plaintiffs before the L&DO and other related

government agencies for purposes of mutation/substitution of the parties

to the suit as joint lessees in the records. Mr. Mukesh Kumar shall be

authorized to take all the necessary steps for and on behalf of the

defendants No.1 and 1(a) for mutation/substitution of their names and

that of the plaintiffs in respect of the suit premises on the record, for

which he shall be paid a fee of Rs.50,000/- to be borne by the plaintiffs,

apart from the out of pocket expenses that may be incurred.

11. As counsel for the plaintiffs requests that after the suit premises is

mutated in favour of all the parties to the suit in terms of the final decree,

they may be left to explore the possibility of disposing of the suit

premises on "as is where is" basis at the best possible price that it can

fetch in the open market and share the sale proceeds as per their

entitlement, the suit is disposed of. In the event, the parties are unable to

take joint steps to sell the suit premises within six months or there is any

impediment created in its disposal for the apportionment of the sale

proceeds amongst the parties as per their entitlement, then they shall be

at liberty to seek execution of the judgment and decree, as per law.

Decree sheet be drawn in terms of the order passed above. The parties

are left to bear their own expenses.

12. The suit is disposed of.

(HIMA KOHLI) JUDGE SEPTEMBER 24, 2015 rkb/ap