Sh Gaurav Agnihotri & Anr vs Sh Aftab Chadha & Anr
2017 Latest Caselaw 5616 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                           RESERVED ON : SEPTEMBER 21,2017
                           DECIDED ON : OCTOBER 11, 2017

+     CS(OS) 239/2016 & IA 6181/2016 (u/O XXXIX R 1&2 CPC)

      SH GAURAV AGNIHOTRI & ANR                             ..... Plaintiffs
                   Through :     Mr.Karnail Singh, Advocate.
                          VERSUS

      SH AFTAB CHADHA & ANR                          ..... Defendants
            Through :     Mr.Jai Bhagwan Dass, A.R. of defendant
                          No.2

      CORAM:
      HON'BLE MR. JUSTICE S.P.GARG


S.P GARG, J.

1. The plaintiffs have filed the instant suit for partition, declaration, permanent and mandatory injunction against the defendants.

2. Briefly stated the facts as pleaded in the plaint are that Gaurav Agnihotri (hereinafter 'plaintiff No.1') and Aftab Chadha (hereinafter defendant No.1) are brothers. Smt.Lakshima Chadha @ Lakshima Agnihotri (in short 'Lakshima') was previously married to Major Tilak Raj Chadha who expired on 14.12.1971. She, thereafter, married Tilak Raj Agnihotri (hereinafter 'plaintiff No.2') on 15.02.1975. Defendant No.1 was born out of the marriage of Lakshima with her previous

husband Tilak Raj Chadha. Plaintiff No.1 was born after her marriage with plaintiff No.2 . Apparently plaintiff No.1 and defendant No.1 are step-brothers.

3. Plot bearing No.144, measuring 215 Sq.Mtrs. situated in the layout plan of Masjid Moth Extn. Residential Scheme, Colony known as Uday Park, New Delhi (hereinafter referred to as 'suit property) was owned by Lakshima by virtue of Conveyance Deed registered on 13.03.2000. Lakshima expired on 19.05.2013. It is further averred that by virtue of Collaboration Agreement dated 18.07.2012 with M/s BMB Developers Pvt.Ltd, defendant No.2, the property was reconstructed. 2nd floor of the new construction was to be owned by defendant No.2 in lieu of the construction expenses incurred by him. The basement, ground, first and third floor with entire terrace above third floor were to belong to Lakshima.

4. Defendant No.1 initially put appearance before the court. Subsequently, he opted to remain absent; no written statement was filed by him despite an opportunity given. Finally, the right of defendant No.1 to file written statement was closed.

5. The suit is contested by defendant No.2. In the written statement, defendant No.2 relied on the Collaboration Agreement dated 18.07.2012, whereby the entire second floor; 25% area in the stilt for the purpose of two car parking with separate gate; use of common areas; and, proportionate undivided, indivisible and impartible ownership rights in the suit property came to his share.

6. Vide order dated 5.7.2017, it was noted that there was no triable issue for which evidence was required. The matter was listed for filing

evidence by way of affidavit along with original documents/certified copies by the plaintiff No.1. Defendant No.2 did not opt to lead any evidence in support of defence. The plaintiff examined himself as PW- 1 and proved various documents.

7. I have heard the learned counsel for the parties and have examined the file. Execution of the Collaboration Agreement dated 18.07.2012 is not in dispute. Both the parties are agreeable to abide by the terms and conditions of the Collaboration Agreement. This Court in the order dated 8.5.2017 noted that the plaintiffs were ready to take either of the ground floor, first and third floor while the basement will have to be divided between the two plaintiffs and defendant No.1. It was further noted that the third floor along with terrace above would have the maximum value and the plaintiffs were willing to take the ground and the first floor; the defendant No.1 taking the third floor with terrace above and equal share in the basement among two plaintiffs and defendant No.1. Defendant No.2 was directed to submit a plan showing equitable division of basement into three portions with each portion having access from the staircase.

8. From the averments in the pleadings and the evidence on record, it stands established that the Collaboration Agreement dated 18.07.2012 was executed as per which the shares of the parties were specified in the re-constructed property.

9. Since the shares of the parties in the suit are not in dispute, the preliminary decree can be passed. It is accordingly held that defendant No.2 shall be entitled to have second floor of the suit property along with 25% area in the stilt for the purpose of two car parking with

separate gate; use of common areas; and, proportionate undivided, indivisible and impartible ownership rights in the plot of land measuring 215 Sq.Mtrs. Plaintiffs and defendant No.1 shall have equal share in the entire basement, ground, first and third floor with entire terrace above the third floor; 75% share in the stilt area; use of common areas, facilities and services; proportionate undivided, indivisible and impartible ownership rights in the suit property.

10. The parties shall suggest ways and means to effect partition in the suit property as per the shares determined above. In compliance of the order dated 8.5.2017, the parties shall file a plan showing equitable division of basement into three parts with each portion having access from the stair case.

11. List on 14th November, 2017.

S.P.GARG (JUDGE) OCTOBER 11, 2017/sa