Radhey Shyam vs Prem Wati & Ors.
2018 Latest Caselaw 2055 Del

$~12
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                        Date of Decision: 3rd April, 2018
+              RFA 921/2016 & CM APPL. 27797/2017 (stay)
       RADHEY SHYAM                                    ..... Appellant
                   Through:             Mr. Mahmood Hasan, Advocate.
                                        (M:9810756377)
                          versus

       PREM WATI & ORS.                                  ..... Respondents
                    Through:            Mr. Karan Sharma, Advocate.
                                        (M:9999777847) for DDA/R-9.
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. None appears for Respondent Nos.1 to 8 despite service. By the impugned judgment and decree dated 13th October, 2016, the property bearing no.752-S, Scooter Market, Jheel Khuranja, Delhi (hereinafter `suit property') has been directed to be sold through public auction and the parties have been directed to be entitled to 1/8th share. Despite service, none appeared for Respondent Nos.1 to 8. It is noticed from the order sheets that for many hearings Respondent Nos.1 to 8 have not been appearing. Accordingly, they are proceeded ex-parte.

2. The present appeal assails the impugned judgement and decree dated 13th October, 2016 in a suit for partition in respect of the suit property. The trial court has passed a decree of partition in the following terms:

"In view of the above discussion, the final decree is prepared and it is ordered that the suit property bearing no. 752-S, Scooter Market, Jheel Khuranja,

Delhi be sold through public auction and its sale proceed be distributed among the parties according to their respective 1/9th share which has been reduced now to 1/8th after death of defendant no.7. Parties are permitted to participate in the public auction. The final decree be prepared accordingly. Parties shall bear their own cost and file be consigned to record room."

3. The only submission of the learned counsel for Appellant assailing the impugned judgment is that the property is a lease-hold property from the DDA and the lease expired in the year 2008. Thus, according to him the property could not have been partitioned. Counsel further submits that since the mutation has not taken place, there cannot be any partition or sale by public auction.

4. The stand of the DDA, which appears from pages 95 & 96 of the paper book, is that though the lease had expired in 2008, renewal of the lease is under consideration before the competent authority. The current status of the same is not known to the Appellant. The queries by the court were answered by the DDA in the following terms:

"MOST RESPECTFULLY SUBMITTED AS UNDER:-

1. That this Hon'ble court had inquired from the answering defendant that whether the suit property can be partitioned through auction of the said property ?

In reply of the said query that the lease of the said property has already been expired in- the year, 2008. Process of renewal of the said lease and other lease properties in the same category is under consideration before the competent authority i.e. Lt. Governor, Delhi. In this regard, this office i.e. DDA has not got any reply so far. Since it is a policy matter regarding the lease hold properties of DDA, it could take' some time.

Hence, until the policy in this regard will not framed, the answering defendant is not in a position to renew the above said lease property and without renewal of' the said lease property in question, the same cannot be partitioned.

Report submitted accordingly by DDA.

           Dated:                       Deputy Director (OSB)
                                        D.D.A., Vikas Sadan, New
                                        Delhi"

Since the DDA's stand is that the property cannot be partitioned until the lease is renewed, parties are given liberty to apply for renewal of the lease.

5. However, on merits, with regard to the decree for partition granted by the Trial Court, the Appellant has no other submission. The impugned judgement and decree for partition is upheld subject to the condition that parties are given liberty to apply to the DDA for renewal of the lease and upon the said renewal being granted, the Trial Court judgment shall be given effect to. No other grounds are pressed.

6. Appeal is disposed of with the above observations. All pending applications also stand disposed of.

PRATHIBA M. SINGH Judge APRIL 03, 2018/dk