Full Text
CS(OS) No.1612/1993
Date of Decision: 25.11.2010
SH.SURINDER KUMAR KAPUR & ORS. ……Plaintiffs
Through: Nemo.
Through: Mr.N.K.Kaul, Sr.Adv. with Mr.Samar Singh, Adv.
JUDGMENT
1. Whether Reporters of local papers may be allowed to see the judgment? YES
2. To be referred to the Reporter or not ? NO
3. Whether the judgment should be reported in the Digest ? NO V.K. SHALI, J. (Oral) IA No.8169/2008
1. This order shall dispose of the application bearing IA No.8169/2008 seeking appropriate directions to the Local Commissioner afresh to suggest modes of dividing the suit property by metes and bounds between plaintiff no.3 on the one hand and defendants 1 and 2 on the other hand.
2. Briefly stated the facts of the case are that the plaintiffs who were originally three in number, had filed the present suit seeking partition by metes and bounds of the property bearing No.5C Court Lane, Delhi. It was the case of the plaintiffs that they and the defendant no.1 are the real brothers and the suit property was bought by them jointly. 2010:DHC:5708
3. A preliminary decree was passed on 17.3.1999 holding that each of the plaintiffs and the defendant no.1 had 1/4th share in the suit property as there was no dispute about the shares of the parties.
4. Vide order dated 14.9.2005, this Court had appointed Mr.Vikram Nandrajog, Advocate as a Local Commissioner for inspection of the suit property to suggest ways and means in which the suit property can be divided amongst the four brothers by metes and bounds.
5. The Local Commissioner filed his report dated 03.11.2006 wherein it was observed that he was of the opinion that it is not possible to divide the suit property by metes and bounds and further that municipal authority will not allow the sub division of the plot amongst the co –owners. It was also taken note of that no consensus had emerged amongst the parties, to develop the property and share the structure so raised on the plot of land in equitable manner so that each one of them gets his share of 1/4th in the suit property. Accordingly, it was suggested that the parties may explore the option of buying out or settling inter-se rights of the parties failing which the property may be auctioned.
6. Despite the said report having been filed almost four years back, no consensus amongst the parties could be arrived at as a consequence of which no final decree could be passed till date. The suit property has to be divided by metes and bounds. However, in the meantime, settlement has taken place inasmuch as the plaintiff no.1 and plaintiff no.2 have sold their 1/4th share each in favour of the son of defendant no.2 by a registered sale deed. Pursuant to the said sale deed, the son of defendant no.2 filed an application under Order 1 Rule 10 CPC for being impleaded as a party as he had 50% interest in the suit property.
7. This application of the proposed defendant no.2 was allowed vide order dated 20.2.2009 and he was impleaded as the defendant no.2 in the suit property.
8. Since no solution had been arrived at between plaintiff no.3 and the defendant, parties were directed vide order dated 12.1.2010 to submit their valuation report of the entire suit property. The plaintiff filed its valuation report on 4.10.2010 wherein it was observed that the suit property was valued around `45 crores. As against this, the valuation report filed by defendants had shown the value of the entire property at `17.45 crores.
9. It has been contended by the learned counsel for the plaintiff that the valuation report which has been furnished by the learned counsel for the defendant is absurdly low and this has been done deliberately so as to reduce the value of the share belonging to the plaintiff no.3. On the contrary, it was contended that plaintiff no.3 has put the correct valuation of the suit property at `45 crores or so and if at all the defendants want to purchase the share of the plaintiff no.3, he may pay him assuming the value of the entire property as `45 crores.
10. Mr.Kaul, learned senior counsel for the defendant has contended that the valuation which has been given to the suit property by the plaintiff is grossly exaggerated and therefore, the defendant is not in a position to pay such a huge amount on account of 1/4th share of the plaintiff.
11. It was contended by him that by virtue of the present application, which was filed immediately after submission of the report by the Local Commissioner wherein it was prayed that the parties may be permitted to divide the property themselves or in the alternative, the mode of partition suggested by the Local Commissioner. It was also contended that the defendant would not be averse to divide the suit property by metes and bounds between the plaintiff no.3 on one hand who is left with only 1/4th share in the suit property and the defendant nos.[1] & 2 who are having 3/4th share of the suit property.
12. The plaintiff has filed reply to the application filed by the defendant. He has opposed the prayer of the plaintiff for either division of the property amongst the plaintiff no.3 on the one hand and defendants 1 and 2 on the other side or even the appointment of a fresh Local Commissioner for the purpose of having re-look on the suit property in the light of changed circumstances so as to suggest fresh mode of partition.
13. The plaintiff has taken a plea in the reply that before filing the suit, the three plaintiffs in all had 75% share while as the defendant no.1 had 25% and this situation has got reversed as two of the plaintiffs namely plaintiff nos. 1 and 2 have sold their interest to the son of the defendant.
14. It is contended that this change in the shareholding pattern of plaintiff no.3 or the defendants 1 and 2 does not bring any new effect on record and therefore, the prayer of the defendant to appoint afresh Local Commissioner for the purpose of suggesting division of the suit property by metes and bounds will not be of any consequence. It was also contended that this will unnecessarily result in delay in disposal of the suit which is already pending for the last 17 years.
15. I have carefully considered the submission of the learned counsel for the parties and perused the record.
16. At the outset, it must be stated that there is no dispute about the shares of each of the party to the suit. The plaintiff and defendant no.1 are holder of 25% each of the share in the suit property while as the defendant no.2 son of defendant no.1 has the reaming 50%.
17. Incidentally, Mr.Vikram Nandrajog, earlier Local Commissioner had specifically suggested that the suit property cannot be sub divided and therefore, cannot be divided by metes and bounds in favour of the plaintiff no.3 and defendants 1 and 2. He had suggested that the property be auctioned and the sale proceeds will be appropriated on the basis of their holding. As against this, Mr.Kaul, learned senior counsel for defendants 1 and 2 has contended that no doubt Mr.Vikram Nandrajog, Local Commissioner has already furnished a report suggesting therein that the suit property cannot be sub divided in terms of the policy of the MCD, but it was suggested that the suit property without being formally sub-divided could be marked in the proportion of the holding of the parties so that the property is preserved.
18. It was also contended by Mr.Kaul, learned senior counsel that since there is a change in the circumstance of the defendant no.1 inasmuch as his son has been impleaded as a party to the suit and further that he has 50% of the share in the immovable property, therefore, it would be worthwhile to appoint Mr.Vikram Nandrajog, or any other counsel as the Local Commissioner for the purpose of visiting the suit property again and consider as to whether the said suit property can be divided by metes and bounds, so that the share of each of the party gets segregated from that of the other. It was also contended by the learned senior counsel for the defendant that on the basis of the fresh report of the Local Commissioner, the views of the MCD can also be obtained subsequently as to whether the said local body, whether it will be able to grant permission to sub divide the suit property notionally and further develop or redevelop the entire plot of land by way of two separate plans.
19. I have carefully considered the respective submissions made by both the parties.
20. No doubt, an officer of this Court was earlier appointed as a Local Commissioner who has given his detailed report on 3.11.2006 and suggested that the property cannot be divided by metes and bounds and further that MCD may not give permission to divide or sub divide the plot of land in the Civil Lines area, but it would be worthwhile to direct the same Local Commissioner to have a relook on the entire matter afresh in the light of changed share of the holding. I do not agree with the contention of the learned counsel for the plaintiff that any serious prejudice would be caused to him. I accordingly, reappoint Mr.Vikram Nandrajog, Advocate as a Local Commissioner to re-visit the suit property and then furnish a fresh report, keeping in view the fact that on account of changed circumstance, the plaintiff no.3 is left with only 25% equal to 1/4th share in the suit property while as the balance 75%, 3/4th share is owned by the defendants 1 and the son of defendant no.2.
21. The question as to whether the suit property can be divided or sub divided will be considered by the MCD after the report is received from the Local Commissioner.
22. I therefore, allow the limited prayer of the defendants 1 and 2 for appointment of a Local Commissioner who would visit the site in question and furnish a report as to whether it would be possible to device any agreed method of dividing the suit property by metes and bounds on the basis of holdings of the parties and also as to whether the MCD would in a changed scenario and the fact situation be able to give any permission for the purpose of division or sub division of the suit property. Needless to say that the Local Commissioner shall inspect the suit property within two weeks from the date of receiving of this order and file a report regarding the same within two weeks from the date of inspection. Keeping in view the facts and circumstances of the case as Mr.Vikram Nandrajog, Advocate who has already inspected the suit property and given a report it would not only be just but also proper that the same person is appointed as the Local Commissioner for the purpose of carrying out the aforesaid directions.
23. The Local Commissioner shall be paid a fees of `25,000/apart from other expenses. The Local Commissioner shall be provided all such necessary assistance by both the parties and he shall further free to take necessary police assistance in the event of his requiring it to be so.
24. The entire expenses including the fees of the Local Commissioner for appointment of the Local Commissioner shall be borne by the defendants.
25. A copy of this order be sent to the Local Commissioner for the purpose of information.
26. Accordingly, application is partly allowed. V.K. SHALI, J. NOVEMBER 25, 2010 RN