Delhi High Court
Bhagwan Das Kewal Ramani vs Ishu Ramani & Anr on 22 September, 2016
$~14
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment dated 22nd September, 2016
+ CS(OS) 2096/2013
BHAGWAN DAS KEWAL RAMANI ..... Plaintiff
Through : Mr.Ajay Talesara, Mr. Ambar
Qamaruddin and Mr. Tejasvi Kumar,
Advocates
versus
ISHU RAMANI & ANR ..... Defendants
Through : Mr.Sunil Goel, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
G.S.SISTANI, J (ORAL)
1. The plaintiff has filed the present suit against the defendants for
partition and permanent injunction.
2. The plaintiff seeks partition of property bearing no.3/30, West Patel
Nagar, New Delhi measuring 200 sq. yds. This property stands in the
name of Smt. Parpati Kewal Ramani, the mother of the plaintiff and
mother-in-law of defendant no.1 and grand-mother of defendant no.2.
As per the plaint, this property measuring 200 sq. yds was allotted to
the mother of the plaintiff Smt. Parpati Kewal Ramani vide a registered
Perpetual Lease Deed and Conveyance Deed dated 30.07.1966. As per
the plaint, Smt. Parpati Kewal Ramani during her life time executed a
registered Will dated 13.11.1969. Smt. Parpati Kewal Ramani expired
on 24.07.1982. As per the Will, the property was to devolve in favour
of her three sons:
(i) Sh. Gian Chand-ground floor;
(ii) Sh. Bhagwan Das-first floor; and
CS(OS).2096/2013 Page 1 of 4
(iii) Sh. Dwarka Das-second floor (Barsati).
3. It is not in dispute that Sh. Dwarka Das relinquished his share in the
second floor in favour of his younger brother Shri Bhagwan Das, the
plaintiff herein vide registered Relinquishment Deed dated 21.02.1989.
Thus, Sh. Bhagwan Das, plaintiff became 2/3rd owner of the suit
property.
4. It may also be noticed that on 01.09.1989 and 03.06.1991, Sh. Gian
Chand and the plaintiff requested the Land & Development Officer,
Nirman Bhawan for mutation of the suit property in accordance with
the Will of the mother and on the basis of the Relinquishment Deed of
the brother Sh. Dwarka Das in the respective shares, i.e., 2/3rd in the
name of plaintiff and 1/3rd in the name of Gian Chand. The necessary
mutation was carried out. The respective parties claim that they are in
actual physical possession of their respective shares, i.e., the plaintiff is
in actual physical possession of the first floor and the second floor of
the suit property and legal heirs of Gian Chand(defendants no.1 and 2)
are in actual physical possession of the ground floor of the suit
property.
5. The plaintiff, Bhagwan Das has filed the present suit seeking a Decree
of Partition of the suit property in terms of the Will of Smt. Parpati
Kewal Ramani and Relinquishment Deed executed by Sh. Dwarka Das
in favour of the plaintiff. Written statement was filed by defendants
no.1 and 2. As per the written statement, the suit property already
stood partitioned in terms of the Will and the Relinquishment Deed.
Para 4 of the preliminary averments and para 18 of the written
statement read as under:
"4. That the real objective of the plaintiff is to sell the suit
property, which is also evidenced from prayer (c) in the suit.
The property has been divided floor-wise between the
CS(OS).2096/2013 Page 2 of 4
parties by Will dated 13.11.1969 and the plaintiff cannot
force the defendants to sell their share(ground floor) in the
property. The defendants are within their right to deal with
their share(ground floor) in the suit property in whatever
manner they deem fit. The plaintiff has no right to dictate
terms to the defendants. The conduct of the plaintiff
disentitles him to any relief as he is harassing the 79 year
old mother of defendant no.2 and not allowing her to live
peacefully in her portion in the suit property.
....
18 ....The shares of the parties are already described in the
Will. Each has one floor, which is being separately enjoyed
since beginning. However, if this Hon'ble Court
adjudicates that no partition has taken place, then the
defendants are agreeable to the suit property being
partitioned in accordance with registered Will. With regard
to prayer C, it is submitted that partition by metes and
bounds has already taken place. However, if this Hon'ble
Court adjudicates that no partition has taken place, then it is
submitted that partition by metes and bounds is possible as
per the registered Will and the subsequent mutation and
there is no requirement of selling the suit property and
distributing the sale proceeds...."
6. On the last date of hearing, counsel for the defendants had made a
statement that only the ground floor of the suit property belongs to the
defendants along with 1/3rd undivided share in the land. Matter was
adjourned to enable the plaintiff to seek instructions. Counsel for the
parties submit today that it is not necessary to pass a Preliminary
Decree and a Final Decree may be passed as the parties are in settled
peaceful possession of their respective portions and thus, it is not
necessary to either appoint a Local Commissioner or to partition the
suit property by metes and bounds. Counsel for the parties also submit
that the plaintiff would not interfere in the peaceful physical possession
of the defendants and the defendants will not interfere in the peaceful
physical possession of the plaintiff. Both the parties also agree that
they will allow access to each other for the purpose of water tanks (at
the terrace), water and electricity meters and water motors(at the
ground floor). The plaintiff will allow access to the defendants for the
purposes of repair, etc. of water tanks on the terrace while the
defendants will allow access to the plaintiff for the purpose of reading
of the electricity meters and water meters and the parties will facilitate
maintenance of submersible pump and water pump in the ground floor.
7. As prayed, the present suit is decreed. The plaintiff will be entitled to
2/3rd share of the suit property and 2/3rd share in the plot of land, the
defendants will be entitled to 1/3rd share of the suit property together
with 1/3rd share in the plot of land.
8. Plaintiff will allow access to the defendants to the terrace for repair etc.
of the water tanks. Defendants would allow access to the plaintiff for
the purpose of reading of electricity and water meters and for repair etc.
of water pump.
9. Decree Sheet be drawn up accordingly.
I.A.10050/2015(u/O XXXIX Rule 2A CPC)
10. The application is dismissed as not pressed.
I.A.17423/2013(u/O XXXIX Rule 1 & 2 CPC)
11. In view of the fact that the suit has been decreed, no further orders are
required to be passed in this application.
12. The application stands disposed of.
G.S.SISTANI, J
SEPTEMBER 22, 2016
pst
