Full Text
CS(OS) 541/2018 & IAs No.14618/2018 (u/O XXXIX R-1&2 CPC)
& 2698/2019 (of D-2 u/O I R-10 CPC)
PADAMJIT SINGH AHLUWALIA ..... Plaintiff
Through: Mr. Shekhar Dasi, Adv. with plaintiff in person.
Through: Ms. Preeti Singh and Mr. Shivam Jaiswal, Advs.
11.03.2019
JUDGMENT
1. The counsel for the plaintiff and the counsel for the defendants No.1&2 have been heard.
2. The counsel for the plaintiff states that a preliminary decree for partition of property No.A-39, Nizamuddin East, New Delhi can be passed forthwith.
3. It is argued, (i) that the subject property belonged to Sangat Singh, who was the paternal grandfather of the plaintiff as well as the defendant No.1; (ii) that the defendant No.2 Geeta Bhalla Singh is the wife of the defendant No.1; (iii) that Sangat Singh died intestate leaving only two sons i.e. Tarlochan Singh, father of the plaintiff and defendant No.1 and Gajpal Singh, as his natural heirs; (iv) that after the demise of Tarlochan Singh, a CS(OS) 541/2018 2019:DHC:1480 decree for partition with respect to the estate of Sangat Singh was passed and under which decree, the subject property fell to the exclusive share of the plaintiff and the defendant No.1 along with their mother Joginder Kaur, and some other properties fell to the share of Gajpal Singh; (v) that the mother of the plaintiff and defendant No.1 Joginder Kaur died intestate, leaving the plaintiff and the defendant No.1 as her only natural heirs; and,
(vi) that on the demise of Joginder Kaur, the leasehold rights in the land underneath the subject property were mutated in the names of plaintiff and the defendant No.1 and the conveyance deed of freehold rights in the land underneath the property has also been executed in the joint names of plaintiff and the defendant No.1.
4. On enquiry, as to the cause of action for the present suit, it is argued that the subject property has been attached for the dues owed by the defendant No.1.
5. Though the plaintiff, when the suit came up for admission on 25th October, 2018 had not filed the documents qua attachment but has since filed the documents and which show that on the representation of the decree holder Airads Ltd. that the subject property belonged to the judgment debtor Headstart Advertising & Marketing Pvt. Ltd., the subject property was ordered to be attached vide order dated 31st August, 2013 of Additional District Judge-09 (Central), Tis Hazari Courts, Delhi in Ex. No.19/2015.
6. The counsel for the plaintiff thus states that there is no impediment to a preliminary decree for partition being passed.
7. The counsel for the defendants No.1&2 has argued (a) that on the averments in the plaint itself, the defendant No.2 is not a necessary and proper party and IA No.2698/2019 has been filed for deletion of the name of the defendant No.2; and, (b) that the present suit has been filed by the plaintiff, not because of the order of attachment but because of complaint filed by defendant No.2 against the plaintiff.
8. On enquiry, the counsel for the plaintiff as well as the counsel for the defendants No.1&2 state that the property comprises of ground, first and a fully constructed second floors and all the floors are in joint possession of the plaintiff and the defendant No.1.
9. Notwithstanding the aforesaid position, the counsel for the defendant No.1 states that admission/denial of documents be permitted to be done.
10. When the essential facts for a decree for partition to be passed are not in dispute, it is not understandable, why the counsel is interested in filing affidavit of admission/denial of documents.
11. The counsel for the defendant No.1 states that it is also the plea of the defendant No.1 that only the ground floor of the property was constructed by Sangat Singh, and the first floor and the second floor have been constructed by the defendant No.1 with his own monies and the same is substantiated from the valuation report filed by the defendant No.1.
12. The valuation report referred to only states that the ground floor and mezzanine floor were constructed in the year 1961, the first floor was constructed in the years 1965-1966 and the barsati floor was constructed in the years 1983-1985. The same does not show that the same was constructed by the defendant No.1. It is also not the plea that the defendant No.1 at any point of time claimed any ownership rights in the said first floor and/or second floor or represented to any of the authorities of having become the owner of the first floor and second floor.
13. Else, the law is that accretion on property of any other is for the benefit of other, unless exclusive right are publically claimed adversely to the other without any claim or interference from the other for over 12 years. No rights by such construction arise. Reference in this regard may be made to Jawahar Lal Khanna Vs. Jia Lal Khanna 2009 SCC OnLine Del 1421 (RFA(OS) 70/2009 preferred whereagainst was dismissed on 23rd December, 2011) and Mukesh Nigam Vs. Arun Kumar Khandelwal 2017 SCC OnLine Del 10077. Moreover, the parties since then have jointly applied for mutation of the property in their own names and for execution of the conveyance deed of freehold rights in their joint names and which conduct of the defendant No.1 is also contrary to the claim now made of exclusive ownership of the first and second floors of the property.
14. The counsel for the defendant No.1 states that there are some judgments which she has not brought today.
15. Suits cannot be adjourned on the counsel appearing in the Court without preparation. This has become the root cause of long time taken in disposal of suits and suits remaining pending indefinitely.
16. Thus, no merit is found in the claim of exclusive ownership of the first floor and second floor of the property.
17. Else, it is not in dispute that the shares of the parties would be equal.
18. I may mention that the plaintiff has not placed before this Court any document qua partition claimed with Gajpal Singh and Airads Ltd. who have obtained the order of attachment of the property are not parties to this suit. It is thus clarified that the orders in the present suit would not prejudice the claims and rights, if any of the said persons.
19. A preliminary decree for partition of property No.A-39, Nizamuddin East, New Delhi is thus passed, declaring the plaintiff and the defendant No.1 to be having half undivided share each in the said property. Since the defendant No.2 has disclaimed any rights, the defendant No.2 is deleted from the array of defendants.
20. IA No.2698/2019 is disposed of.
21. The ex-parte order dated 25th October, 2018 is made absolute till the decision of the suit.
22. IA No.14618/2018 is disposed of.
23. A preliminary decree for partition be drawn up.
24. The aspect of the costs of the suit shall be considered at the stage of final decree for partition.
25. The counsel for the plaintiff states that the property is divisible by metes and bounds.
26. The counsel for the defendant No.1 states that the property is not divisible by metes and bounds and in fact the construction on the property has also been raised by encroaching upon some additional land.
27. The counsel for the defendant No.1, at this stage draws attention to preliminary objection in the written statement where it is pleaded that besides the area of 300 sq. yds. with respect to which lease was granted, an area of 64.[4] sq. yds. was self-acquired by the mother i.e. Joginder Kaur who vide oral agreement sold the same to the defendant No.1 in the presence of the defendant No.2 who was then not married to the defendant No.1.
28. The said plea is also not worth any consideration. Neither has it been disclosed as to how the mother of the parties acquired 64.[4] sq. yds. of land nor can rights in any immoveable property be transferred by oral agreement as is pleaded between the defendant No.1 and the mother. The said plea is also not worth putting to trial. Moreover, if the construction of the house is over area more than that subject matter of the lease deed and/or the conveyance deed, it will be open to the authorities concerned to take appropriate action with respect thereto.
29. It is deemed appropriate to grant time to the parties to consider, whether are in a position to divide the property by metes and bounds. Else, on the next date of hearing, a final decree for partition of sale of the property, including by way of the parties making inter se bids, shall be passed.
30. List on 11th April, 2019.
RAJIV SAHAI ENDLAW, J. MARCH 11, 2019 ‘bs’..