Shri Rajesh Kaushik and Another vs Shri Yogeshwar Kaushik and Others

Manmohan Singh, J.—The application under consideration being I.A. No. 14136/2009 has been filed on behalf of plaintiff No. 1 for passing the preliminary decree in the suit filed by the plaintiffs for partition in respect of suit property bearing No. 1638-1639, Krishna Gali, Sohan Ganj, Subzi Mandi, Delhi-110007 measuring 240 sq. yds. (hereinafter referred to as the ''suit property'').

The plaintiffs No. 1 and 2 and defendants No. 1 and 2 are sons of late Sh. Suraj Bal. Defendants No. 3 and 4 are daughters of late Sh. Suraj Bal. Sh. Suraj Bal died intestate on 25th March, 1976 and was the absolute owner of the suit property. The suit property thus devolved on all the legal heirs of Shri Suraj Bal in 1/7th share each. The parties to the suit i.e. the sons and daughters of Sh. Suraj Bal relinquished their rights in the suit property in favour of their mother Smt. Parmeshwari after the death of Sh. Suraj Bal, who therefore became the exclusive owner of the suit property. Smt. Parmeshwari died intestate on 3rd February, 1996. On her death, each of the plaintiffs and defendants succeeded to 1/6th share in the suit property.

Defendants No. 3 and 4 relinquished their 1/6th share in favour of their four brothers i.e. plaintiffs No. 1 & 2 and defendants No. 1 & 2 vide Relinquishment Deed dated 16th July, 2002 registered as document No. 3567, Addl. Book No. 1, Volume No. 580, Pages 141 to 144 on 5th August, 2002. Defendants No. 3 and 4 are therefore, proforma defendants and no relief is claimed against them in the suit. plaintiff No. 1 submits that the suit property is in possession of defendant No. 2. Defendant No. 1 has also admitted the case of the plaintiffs in his written statement.

The property was mutated in the records of Municipal Corporation of Delhi jointly in the names of plaintiffs No. 1 and 2 and defendants No. 1 and 2.

Defendant No. 2 during the mediation stated that the property is divisible and submitted a proposed division plan of the property. plaintiff No. 1 stated that the division plan given by the defendant No. 2 divides the suit property only East-West, North-South giving 54 Sq. yds. to each. The division plan contains two shares at the front and two at the back, leaving 3 yards passage in the middle.

The plaintiff No. 1 states that the suit property is not divisible by metes and bounds and the proposed partition plan filed by defendant No. 2 is not a lawful division of property. It is further stated that the division plan filed by defendant No. 2 would demolish the existing constructed structure and would not divide the suit property in four equal shares. There is also wastage of common land in the form of the aforementioned passage. It is, therefore, prayed that a proper mode of partition of the suit property be found out by appointing a Local Commissioner or in the alternative the suit property be sold and the sale proceeds distributed equally, as they all have an equal share in the property.

The plaintiffs and defendant No. 1 are agreeable to the sale of the suit property but defendant No. 2 does not agree with the proposal as he is in the exclusive possession of the entire suit property and proposed a partition plan to divide the property by metes and bounds. The defendant No. 2 is admittedly entitled to only one fourth share in the suit property.

Defendant No. 2 has admitted all the material facts and the rights of the plaintiffs. Defendants No. 3 and 4 also do not claim any right in the suit property. All the parties involved in the present suit are senior citizens and prayed that the matter be decided expeditiously.

The plaintiffs are therefore, the co-sharers and joint owners of undivided half share i.e. they have one-fourth share each in the suit property. The defendant No. 2 is holding the possession of the suit property in trust for plaintiffs No. 1 and 2 and defendant No. 1. The plaintiff No. 2 vide notice dated 19th January, 2008 requested the defendants No. 1 and 2 and plaintiff No. 1 for partition of the suit property but no reply came forward to divide the property.

The defendant No. 1 in the written statement admitted the case of the plaintiffs and stated clearly that the plaintiffs No. 1 and 2 and defendants No. 1 and 2 have one-fourth share each in the suit property. He agreed for sale of the suit property as the suit property cannot be partitioned by metes and bounds, as is clear from the site plan annexed with the application.

The defendants No. 3 and 4 also in their written statement stated that they relinquished their shares in favour of plaintiffs 1 and 2 and defendant No. 1 and 2 vide relinquishment deed dated 16th July, 2002 and does not claim any share in the suit property.

The written statement was stated to be filed by the defendant No. 2. The defendant No. 2 only appeared on 20th July, 2009 before the Mediation Cell and proposed a division plan of the suit property. Thereafter, the defendant No. 2 never appeared before the Court or before the Mediation Centre.

As the case in hand relates to partition of the suit property wherein the shares of plaintiffs No. 1 and 2 and defendants No. 1 and 2 are admitted by all the parties, prima facie, I am of the view that each party to the suit is entitled to one-fourth share, therefore, the mode of partition of the suit property be suggested by the Local Commissioner.

Accordingly Mr. Balram Chopra, Advocate, (Chamber No. 175, Chambers Block-II, Delhi High Court, Ph. No. 9868908717), be appointed as Local Commissioner who will visit the site after serving notice to the parties in advance and after careful inspection of the suit property, he will suggest the mode of partition of the suit property bearing No. 1638-1639, Krishna Gali, Sohan Ganj, Subzi Mandi, Delhi- 110 007. The fees of the Local Commissioner is fixed at Rs. 30,000/-. The Local Commissioner shall file his report within two months from the date of this order. List on 8th February, 2010 for directions and awaiting the report of Local Commissioner.