Research › Search › Judgment

Delhi High Court · body

2007 DIGILAW 948 (DEL)

SUSHILA GOEL v. MOOL RAJ AGGARWAL

2007-05-07

SANJAY KISHAN KAUL

body2007
SANJAY KISHAN KAUL, J. ( 1 ) SHRIMATI Sushila Goel and her husband Shri Sat Narayan Goel filed a suit for declaration, partition and permanent injunction against the sole defendant in respect of property No. E-5/5, Krishna Nagar, Delhi-110051. The suit was contested by the defendant as the plaintiffs were originally claiming more than half of the share in the suit property. On 22. 8. 2000, the plaintiffs and the defendant appeared in person and agreed that the said suit property be divided equally between the parties. It appears that despite the same, no final settlement could be recorded. This resulted in issues being framed on 11. 5. 2005 and the suit was set down for trial. Trial has not concluded. ( 2 ) PLAINTIFF No. 2 passed away on 6. 12. 2005 and this fact is noticed in the order dated 12. 1. 2006. However, no formal application to bring on record the legal heirs of plaintiff No. 2 was filed. Learned counsel for the plaintiffs states that deceased plaintiff No. 2 is survived only by plaintiff No. 1 and their adopted child and in terms of a Will of late plaintiff No. 2, plaintiff No. 1 is the sole beneficiary. It is stated that, thus, plaintiff No. 2, needs to be deleted from the array of parties with plaintiff No. 1 becoming the sole plaintiff. Learned counsel for the plaintiff states that the adopted son of the plaintiff Mr. Ashish Goel does not contest the Will and is agreeable to the devolution of the share of plaintiff No. 2 on plaintiff No. 1 to which effect he will file the necessary affidavit within a week. ( 3 ) THE original plaintiff No. 1, now the sole plaintiff, and the defendant are present in Court and reiterate that they are agreeable to the division of the suit property in two equal shares of 50 per cent each and the parties give up their claim for a larger share. ( 4 ) THE parties have filed in Court today a site plan, which is exhibited as exhibit 'x' which is duly signed by both the parties. The ground floor of the property is to be divided in two equal shares from point 'a' to 'a'. ( 4 ) THE parties have filed in Court today a site plan, which is exhibited as exhibit 'x' which is duly signed by both the parties. The ground floor of the property is to be divided in two equal shares from point 'a' to 'a'. The ground floor is not to be divided in a straight line because portion marked as 'i' goes to the share of the defendant while portion marked as 'ii' goes to the share of the plaintiff. The defendant needs certain access and that is why in the front portion, the line is giving excess area to the defendant but the line is narrow in the back portion so as to compensate the plaintiff for difference in the area. The object is to have clear access for the defendant as also to provide a passage to the plaintiff in the back portion. ( 5 ) IT is agreed that Mr. Y. D. Nagar, Advocate, 347, Lawyers' Chamber, Delhi High court, New Delhi (Mobile No. 9810550910) who is also a qualified Engineer should be appointed as the Local Commissioner to visit the premises so as to ensure that a wall is built accordingly dividing the ground floor. The Local commissioner is to ensure that the areas falling to the respective two parties is in equal share of 50 per cent each with the option of a difference in area up to the extent of 2 per cent each. This is so provided so that the Local commissioner can at site find out a convenient place for building the wall and both the parties agree that they will not object to any differential of area up to the extent of 2 per cent each. The first floor will also be divided by building a wall in between so as to give 50 per cent each to both the parties and the wall will be built under the supervision of the Local Commissioner. ( 6 ) THE Local Commissioner to make the initial visit to the suit premises on 12. 5. 2007 at 11:00 a. m. The fee of the Local Commissioner shall be Rs. 25,000/-apart from out of pocket expenses to be borne equally by both the parties and apart from other expenses for construction of the wall. ( 6 ) THE Local Commissioner to make the initial visit to the suit premises on 12. 5. 2007 at 11:00 a. m. The fee of the Local Commissioner shall be Rs. 25,000/-apart from out of pocket expenses to be borne equally by both the parties and apart from other expenses for construction of the wall. ( 7 ) THE parties have signed both exhibit 'x' and the order sheet in token of their acceptance and are duly identified by their counsels. ( 8 ) IN view of the aforesaid, a decree of partition is passed declaring the shares of the plaintiff and defendant as 50 per cent each in the suit property to be divided as per exhibit 'x' in the aforesaid manner as directed to the Local commissioner. It has been agreed that the right to further construct shall be of the parties over and above the portion falling to their shares and the same is to be done in accordance with law. ( 9 ) DECREE sheet be drawn up accordingly. ( 10 ) LIST for directions on 6. 7. 2007. ( 11 ) THE suit need not be listed before the Joint Registrar on 21. 5. 2007. IA No. 14418/2006 (u/o 26 R 9 and O 39 R 7 CPC) ( 12 ) THIS is an application seeking appointment of a Local Commissioner to open room Nos. 21 and 22 and kitchen marked as room No. 8 and for the plaintiff to use the said portion. A final decree of partition has now been passed and the parties are now to enjoy their respective portions. It is now directed that the keys be released to the aforesaid Local Commissioner for necessary action to hand over possession of the locked portions, which were earlier with the tenant in terms of the decree passed. ( 13 ) APPLICATION stands disposed of. ( 14 ) A copy of the order to be sent dasti to the Local Commissioner through learned counsel for the plaintiff.