Full Text
HIGH COURT OF DELHI
Date of Decision: 11th November, 2022
INDU RANI @ INDU RATHI .....Plaintiff Represented by: Ms. Kajal Chandra & Ms. Prerna Chopra, Advocates.
J U D E M E N T
NEENA BANSAL KRISHNA, J. (ORAL)
JUDGMENT
1. The present application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of Ms. Pushpa, legal heir of defendant No.2 seeking clarification with regard to calculation of the area mentioned in the site plan Ex.CA.
2. It is submitted in the application that the matter was finally disposed of vide Order dated 20th December, 2017 and a final Decree of Partition by metes and bounds was passed. While pronouncing the Order, this Court relied upon the site plan filed by the Local Commissioner along with the Report dated 29th January, 2016, which was marked as Ex.CA for the purpose of identification. This Ex.CA was prepared at the behest of Local Commissioner and contained the measurements of the said property.
3. It is asserted that the subject property in Ex.CA was divided in three portions which was marked as Ex.’X’ ‘Y’ and ‘Z’. The measurement mentioned was 750 sq. yards each for portions ‘X’ and ‘Y’ and area 621 sq. yards for the portion ‘Z’. The portion marked ‘Z’ came to the share of the present applicant/Smt. Pushpa.
4. It is asserted that the property was not demarcated. The plaintiff visited the property in the month of September, 2018 and found that the plaintiff had erected a wall inside the said property without getting it measured or demarcated. The applicant, Pushpa objected to the construction of the wall without getting the property actually measured/demarcated in terms of the Ex.CA, but the plaintiff categorically refused to adhere to the measurement mentioned in Ex.CA and went ahead to construct the wall. Thereafter, the applicant with the help of an Architect, measured the actual area falling to her share and the applicant was shocked to know that after the construction of wall by the plaintiff, the area was 495.82 sq. yards. It was further observed by the Architect that the calculation mentioned in Ex.CA itself was not correct and factually, the area mentioned was also not correct. The corrected calculation with the same measurement using the same measurement has now been annexed with the present application.
5. It is claimed that the current measurement of actual area of the property (at site) is 1840.52 sq. yards and the area has not been calculated correctly in Ex.CA that forms part of the final Decree of Partition.
6. It is, therefore, submitted that the correction of the measurement is required to be done in Ex.CA and after the calculation of the area it may then be divided equally in three shares. It is further submitted that Patwari may be directed to do the demarcation of the property to reflect the actual areas which would come to the share of the plaintiff and the defendants.
7. Submissions heard.
8. The Suit for Partition, Injunction and Declaration was filed by the plaintiff in respect of Plot bearing No. 262 admeasuring 2681 sq. yards situated at Village Iradat Nagar, Naya Bans, New Delhi-110082 and House bearing No. 214 (new House No. 113-B) admeasuring 667 sq. yards situated at Village Naya Bans, New Delhi-110082 claiming 1/3rd share each. The preliminary Decree was passed on 26th September, 2014 declaring the plaintiff and the defendant No. 1-Raghvinder Mann and the defendant No. 2-Priyavarat Mann (since deceased) and represented through legal heirs to be having 1/3rd share.
9. For the purpose of ascertaining the division of the property by metes and bounds, a Local Commissioner was appointed, who had filed several Reports dated 08th December, 2014, 12th March, 2015, 30th April, 2015, 28th May, 2015, 29th January, 2016 and 10th February, 2017.
10. Order dated 01st December, 2017 is relevant which is reproduced as under:
10. Finding the preliminary decree for partition to have been passed with respect to property bearing Khasra No.262, admeasuring 2681 sq. yds. approximately, situated at Naya Bans, Delhi-110082 and further finding that the site plan filed by the plaintiff along with the plaint, of property bearing Khasra No.262, situated at Naya Bans, Delhi-110082 and with reference to which the preliminary decree for partition has been passed includes the portion Mark “B” also to which the legal heirs of the defendant no.2 are now claiming exclusive right, I have enquired from the counsel for the legal heirs of the defendant no.2 as to how the said plea is open to him today.
11. The counsel for the legal heirs of the defendant no.2 states that the defendant no.2 was ex parte when preliminary decree for partition was passed.
12. I have further enquired from the counsel for the legal representatives of the defendant no.2 as to whether the legal heirs of the defendant no.2 have got the ex parte decree set aside.
13. The answer is in the negative.
14. Once that is so, it is today not open to the legal heirs of the defendant no.2 to contend that the portion marked „B‟ of property bearing Khasra No.262, situated at Naya Bans, Delhi- 110082 is not subject matter of partition and the legal heirs of the defendant no.2 are bound by the preliminary decree for partition which has attained finality.
15. I have next enquired from the counsel for the legal heirs of the defendant no.2 as to since when has the land of the gali, claimed to be running through property bearing Khasra No.262, situated at Naya Bans, Delhi-110082 been appropriated / encroached upon.
16. The counsel for the legal heirs of the defendant no.2 states that “since time immemorial” but being public land, can be taken away by the Government at any time.
17. The counsel for the plaintiff and the counsel for the defendant no.1 state that they have no objection to the legal heirs of the defendant no.2 taking the portion of property bearing Khasra No.262, situated at Naya Bans, Delhi-110082 which will remain unaffected even if the land claimed to be of the gali is taken away and which they are in any case disputing.
18. I have thus enquired from the counsel for the legal heirs of defendant no.2 as to which portion of the three portions in which the Court Commissioner in the site plan at page 73 has proposed the division by metes and bounds of property bearing Khasra No.262, situated at Naya Bans, Delhi-110082, is he opting for.
17. The counsel for legal representatives of defendants no.2 states that he will have to obtain instructions.
18. List on 5th December, 2017.
19. The legal heirs of the defendant no.2 to remain present in person.”
11. Thus, the parties appeared on 01st December, 2017 and submitted that they had no objection to the partition of House No. 214 new House No. 113- B) admeasuring 667 sq. yards situated at Village Naya Bans, New Delhi- 110082 in terms of the Report of the Local Commissioner dated 28th May, 2015 and as per the site plan at Page 68. It was further stated that the physical partition by metes and bounds in accordance with the report and the site plan had already been effected and the parties were in exclusive possession of their respective portions of House No. 214 (new House NO. 113-B).
12. In respect of Khasra No. 262 admeasuring 2681 sq. yards approximately situated at Village Iradat Nagar, Naya Bans, New Delhi- 110082, which is the subject propery, it was noted in the Order dated 01st December, 2017 that as per the Report of the Local Commissioner, the size of the plot at site is 2121 sq. yards and not 2681 sq. yards as was claimed in the Plaint. It was also noted that the Local Commissioner had proposed division of the plot in three parts as shown in the site plan annexed along with the Report dated 29th January, 2016. All the three parties were agreeable are were given option to take any of the three parts which were proposed by the Local Commissioner.
13. The legal heirs of defendant No.2/applicant raised a contention that the Report of the Local Commissioner giving the measurement of the plot as 2121 sq. yards, is inclusive of area of 16x[6] sq. yards vide gali running through the said 2121 sq. yards and dividing the plot in two portions. It was stated that the said gali had been encroached by the plaintiff and the defendant No. 2. It was contended that the area available in the said plot is minus the gali and the portion marked as Mark-B vests in the legal heirs of the defendant No. 2. It was further stated on behalf of the applicant that one portion of the plot so divided by the gali which was for the sake of identification marked as Mark-B belonged exclusively to the applicant and the defendant No. 1 had no right thereto. On a specific query by the Court about the date when the gali was encroached or appropriated upon, the applicant had stated that this is so since time immemorial, but being public land can be taken away by the Government any time. The plaintiff and the defendant No. 1 stated that they had no objection to the legal heirs of the defendant No. 2 taking the portion of Khasra No. 262 which will remain unaffected even if the land claimed to be the gali is taken away.
14. It was observed by this Court in Order dated 01st December, 2017 that now, it is not open to the applicant now to contend that the portion marked as Mark-B is not a subject matter of the partition, and the legal heirs of the defendant No. 2 are bound by the preliminary Decree for Partition which has attained finality.
15. On 20th December, 2017, the matter was again taken up and the representatives of defendant No. 2 opted to take the portion marked ‘Z’ as indicated in the site plan filed by the Local Commissioner along with her Report dated 29th January, 2016 Ex.CA. Accordingly, a Decree of Partition by metes and bounds was passed in respect of the house as well as the plot vide Judgement dated 20th December, 2017.
16. The legal heirs of the defendant No. 2 had contended that they were ex parte at the stay when the preliminary Decree was passed. However, they conceded that the same had not been set aside.
17. The applicant/legal heirs of defendant No. 2 have now again agitated that the wall has been constructed on the plot by the plaintiff and thereafter, the portion which has come to the share of the applicant measures 495.82 sq. yards.
18. From the submissions made, it appears that the grievance of the applicant is that the plaintiff has not raised the partition wall in terms of the Final Decree dated 20th December, 2017 as on construction of the wall by the plaintiff, the portion which has come to the share of the applicant measures 495.82 sq. yards as against 621 sq. yards which has come to the applicant’s share.
19. If the applicant is aggrieved by the partition wall not being constructed by the plaintiff in accordance with the Final Decree, the grievance does not lie by way of present application under Section 151 of CPC, 1908 and the applicant would have to resort to appropriate legal remedy.
20. During the course of arguments, learned counsel on behalf of the applicant has argued that in fact, in the Report of the Local Commissioner, there is an arithmetical miscalculation and even if we follow the parameters of the Local Commissioner, the total area has not been calculated correctly.
21. It is asserted that the total area comes to 1840 sq. yards and not 2121 sq. yards as has been mentioned in the Report of the Local Commissioner. For this reference may be had to the Order dated 01st December, 2017, wherein it has been noted that there was a portion of gali admeasuring 16 ft. x 6 ft. which had been encroached by the plaintiff and the legal heirs of defendant No. 2/applicant and dehors the gali, the measurement of the plot was 1840 sq. yards.
22. It is evident that the contentions as are being raised by the applicant, were considered before passing of the final Decree and it was noted that there was a certain portion of gali, which if added to the plot, came to about 2121 sq. yards. Taking into consideration the ground reality as existed on the site, the site plan Ex. CA submitted by the Local Commissioner along with her Report dated 29th January, 2016 was accepted and the portion marked ‘Z’ came to the share of defendant No. 2. The areas having been clearly demarcated and also the portion marked ‘Z’ having been taken by the applicant consciously, considering that it was adjoining to the main road. The applicant cannot now be raising any grievance about the division of the plot as has been indicated in the site plan Ex.CA.
23. An objection was being taken by the legal heirs of the defendant No. 2 in regard to incorrect measurement of the plot, before the passing of Final Decree. The Local Commissioner again visited the site on 20th December, 2016, pursuant to the Order dated 08th December, 2016. It is reported in the proceedings that the defendant No. 2 initially did not allow the Local Commissioner to take the measurements, but with the intervention of the Advocate, she was allowed to again take the measurements in their presence, and it was found that there was no discrepancy in the site plan that had been prepared and submitted along with the Report dated 29th January, 2016.
24. It may also be observed that the Local Commissioner had visited the site as many as six times, and on all dates, when the measurements were taken, the applicants had been present and it is with their consensus that the site plan Ex. CA along with specified measurements had been prepared and accepted at the time of passing of final Decree dated 20th December, 2017.
25. It is evident from the Reports of the Local Commissioner and from the Order dated 01st December, 2017 and Final Decree dated 20th December, 2017, that the partition has been effected with the consent of the parties and the applicant had consciously chosen portion marked ‘Z’ in site plan Ex.CA. The applicant has not been able to show any discrepancy in the calculation of the areas in site plan Ex.CA.
26. Accordingly, the application is without merit and is hereby dismissed.
JUDGE NOVEMBER 11, 2022 S.Sharma