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CS(OS) 1491/2008
#F-5 HIGH COURT OF DELHI
CS(OS) 1491/2008
ANIL KUMAR SHUKLA ..... Plaintiff
Through Mr. S.C. Sharma with Ms. Pratibha Shukla and Ms. Priya Gulliya, Advocates
#F-5 HIGH COURT OF DELHI
CS(OS) 1491/2008
ANIL KUMAR SHUKLA ..... Plaintiff
Through Mr. S.C. Sharma with Ms. Pratibha Shukla and Ms. Priya Gulliya, Advocates
VERSUS
SHRI VISHAL SHUKLA & ORS. ..... Defendants
Through Mr. Rajendra Dutt, Advocate for D-4, 5 and 7.
Date of Decision: 6th May, 2013.
Through Mr. Rajendra Dutt, Advocate for D-4, 5 and 7.
Date of Decision: 6th May, 2013.
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
JUDGMENT
MANMOHAN, J (Oral):
Present suit has been filed for partition of the plot No. 93, in the
National Cooperative Housing Building Society Ltd. popularly known as
Ram Vihar, Delhi – 110092 (hereinafter referred to as ‘suit property’).
The admitted position is that on 29th January, 1988 three brothers, namely, plaintiff, defendant no. 3 and Mr. Vipin Kumar Shukla purchased the suit property. Thereafter a three storied property comprising ground, first and second floors as well as terrace was constructed on the suit property.
2013:DHC:2303 All the three brothers occupied the three different floors. While the first floor was occupied by defendant no. 3, second floor as well as terrace was occupied by the plaintiff. Initially the ground floor was in possession of Mr. Vipin Kumar Shukla but after his death, his legal heirs sold their shares in the suit property (that means ground floor) to defendant no. 6 who in turn sold it to defendant no. 7.
Mr. S.C. Sharma, learned counsel for the plaintiff states that during the lifetime of Mr. Vipin Kumar Shukla a deemed partition took place between the three brothers according to which the three brothers were entitled to peaceful use and occupation of the part of the suit property in their possession. He further states that the present suit has been filed as the plaintiff apprehends that the new purchaser may dispute the understanding between the three brothers.
Mr. Rajendra Dutt, learned counsel for defendant nos. 4, 5 and 7 states that his clients only claim ownership of ground floor and they do not dispute the initial understanding between the three brothers. However, Mr. Dutt points out that an application for conversion of the suit property from leasehold to freehold is pending with the Delhi Development Authority.
In the opinion of this Court, just because an application for conversion is pending, this Court is not precluded from passing a decree of partition as the shares of the parties are admitted. Further, if Mr. Dutt’s argument in law is accepted, then it is not understood as to how the legal heirs of Mr. Vipin Kumar Shukla sold the ground floor to defendant no. 6 and how the defendant no. 6 in turn sold it to defendant no. 7.
It is pertinent to mention that neither the share of the parties nor the possession of respective shares of the parties is disputed. In fact, partition by metes and bounds is not required in the present case as all the three contesting parties are not claiming any further share in the suit property than what is in their possession.
Consequently, this Court passes a final decree of partition decreeing the plaintiff to be the owner and in possession of second floor as well as terrace. Similarly, the defendant no. 3 is decreed to be the owner and in possession of first floor; whereas defendant no. 7 is decreed to be the owner and in possession of ground floor. However, as the application for conversion of the suit property is admittedly pending consideration before the statutory authority, it is further decreed that the plaintiff, defendant no. 3 and defendant no. 7 hold one-third undivided share in the land underneath the suit property. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J MAY 06, 2013 rn
Present suit has been filed for partition of the plot No. 93, in the
National Cooperative Housing Building Society Ltd. popularly known as
Ram Vihar, Delhi – 110092 (hereinafter referred to as ‘suit property’).
The admitted position is that on 29th January, 1988 three brothers, namely, plaintiff, defendant no. 3 and Mr. Vipin Kumar Shukla purchased the suit property. Thereafter a three storied property comprising ground, first and second floors as well as terrace was constructed on the suit property.
2013:DHC:2303 All the three brothers occupied the three different floors. While the first floor was occupied by defendant no. 3, second floor as well as terrace was occupied by the plaintiff. Initially the ground floor was in possession of Mr. Vipin Kumar Shukla but after his death, his legal heirs sold their shares in the suit property (that means ground floor) to defendant no. 6 who in turn sold it to defendant no. 7.
Mr. S.C. Sharma, learned counsel for the plaintiff states that during the lifetime of Mr. Vipin Kumar Shukla a deemed partition took place between the three brothers according to which the three brothers were entitled to peaceful use and occupation of the part of the suit property in their possession. He further states that the present suit has been filed as the plaintiff apprehends that the new purchaser may dispute the understanding between the three brothers.
Mr. Rajendra Dutt, learned counsel for defendant nos. 4, 5 and 7 states that his clients only claim ownership of ground floor and they do not dispute the initial understanding between the three brothers. However, Mr. Dutt points out that an application for conversion of the suit property from leasehold to freehold is pending with the Delhi Development Authority.
In the opinion of this Court, just because an application for conversion is pending, this Court is not precluded from passing a decree of partition as the shares of the parties are admitted. Further, if Mr. Dutt’s argument in law is accepted, then it is not understood as to how the legal heirs of Mr. Vipin Kumar Shukla sold the ground floor to defendant no. 6 and how the defendant no. 6 in turn sold it to defendant no. 7.
It is pertinent to mention that neither the share of the parties nor the possession of respective shares of the parties is disputed. In fact, partition by metes and bounds is not required in the present case as all the three contesting parties are not claiming any further share in the suit property than what is in their possession.
Consequently, this Court passes a final decree of partition decreeing the plaintiff to be the owner and in possession of second floor as well as terrace. Similarly, the defendant no. 3 is decreed to be the owner and in possession of first floor; whereas defendant no. 7 is decreed to be the owner and in possession of ground floor. However, as the application for conversion of the suit property is admittedly pending consideration before the statutory authority, it is further decreed that the plaintiff, defendant no. 3 and defendant no. 7 hold one-third undivided share in the land underneath the suit property. Registry is directed to prepare a decree sheet accordingly.
MANMOHAN, J MAY 06, 2013 rn