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2019 DIGILAW 1650 (DEL)

Rameshwar Dayal Gupta v. Mange Ram Gupta

2019-07-03

SANJEEV NARULA

body2019
JUDGMENT : I.A. 12997/2018 (application on behalf of the Plaintiff under Order 12 Rule 6 CPC) 1. By way of the present application, the Plaintiff seeks a preliminary decree on the basis of the admissions made by the Defendant. 2. Briefly stated, the facts of the case are that, Plaintiff has filed the present suit inter alia, seeking a decree of partition of the residential house bearing No. B-7/33, Safdarjung Enclave, New Delhi- 110029, consisting of a super structure of built up Ground Floor, First Floor and Barsati Floor and land underneath admeasuring approximately 425 square yards (hereinafter referred to as "Suit Property"). The suit was initially filed against his two brothers i.e. Mange Ram Gupta and Rajinder Prasad Gupta as Defendant Nos. 1 & 2 and against the legal heirs of his pre-deceased brother namely (i) Alka Gupta (ii) Sidharth Gupta and, (iii) Aishwarya Gupta, as Defendant Nos. 3 to 5. However, vide order dated 23rd May 2018, Defendant Nos. 2 to 5, were deleted from the array of Defendants. 3. The case as set up in the plaint is that, Plaintiff and Defendant are the co-owners of the suit property by virtue of perpetual lease deed dated 31st December 1968, having equal 50% undivided share each therein. The said property was jointly purchased from their self acquired funds. Late Shri Shambhu Dayal Gupta had four sons – the Plaintiff, the Defendant, Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta. The aforenoted brother namely Sh. Rajinder Prasad Gupta and Sh. Surinder Kumar Gupta were allowed to reside in certain portions of the suit property as gratuitous licensees along with their respective families. Suits for eviction were filed against Defendant Nos. 2 to 5. In the pleadings of the said suits, Defendant No. 1 admitted that Plaintiff owned 50% undivided share in the suit property. The parties executed a Memorandum of Understanding (MOU) dated 8th May 2014 agreeing to cooperate in their effort to legally evict the said Defendants. After obtaining the possession of the said portion of the suit property from them, the Defendant with is now denying the title of the Plaintiff and has refused to partition the suit property. 4. The parties executed a Memorandum of Understanding (MOU) dated 8th May 2014 agreeing to cooperate in their effort to legally evict the said Defendants. After obtaining the possession of the said portion of the suit property from them, the Defendant with is now denying the title of the Plaintiff and has refused to partition the suit property. 4. In the present application, it is contended that the Defendant has made unequivocal admissions in the written statement and the Plaintiff is entitled to a preliminary decree of partition declaring the Plaintiff and Defendant to be entitled to 50 percent share each in the suit property. It is further contended that the Defendant in his affidavit of admission/denial of the documents filed before this Court, has admitted the following documents: (i) Perpetual Lease Deed dated 31.12.1968 in joint names of Plaintiff and Defendant. (ii) Occupancy Certificate dated 31.03.1972. (iii) Joint electricity bills. (iv) Joint water bills. (v) Memorandum of Understanding dated 08.05.2014 between Plaintiff and Defendant. 5. The Plaintiff urges that in view of the admissions made in the pleadings and also of the documents noted above, the parties should not be relegated to a lengthy and expensive trial and that it would be in the interest of justice that a preliminary decree be passed declaring the extent of shares of the parties along with the consequential directions for appointment of Local Commissioner. 6. The Defendant in his reply has opposed the prayer made in the application and has alleged that the Plaintiff has not presented true facts. He contends that no admissions have been made in the written statement that would entitle the Plaintiff to seek the relief under the provisions of Order 12 Rule 6, CPC 1908. It is also contended that the Plaintiff has selectively quoted and relied upon clauses from the MoU and has failed to disclose that he has not honoured the commitments made therein and that the said document was executed at his behest. The property in question came to be allotted pursuant to a successful bid before the Delhi Development Authority (hereinafter referred to as ‘DDA’) and this itself does not confer ownership of the suit property in the Plaintiff. Further, Plaintiff has also not shared the cost of the land, construction, ground rent, property taxes etc and expenses towards the maintenance of the suit property. Further, Plaintiff has also not shared the cost of the land, construction, ground rent, property taxes etc and expenses towards the maintenance of the suit property. However, the Defendant has incurred substantial expenses towards the same and the Plaintiff is liable to pay an amount of Rs. 22,87,239/-, for which a counter claim has been filed by the Defendant. It is also averred that by virtue of the aforenoted MoU, the suit property has already been partitioned and both the Plaintiff and Defendant continue to reside in the portions demarcated in Clause 6 of the MoU dated 8th May 2014 without any interference. 7. The Court has heard the learned counsels for the parties at sufficient length. From the reading of the written statement and the reply to the application, it undoubtedly emerges that the suit property is in joint names of Plaintiff and Defendant. The suit property was purchased under an auction held by DDA for residential plots under the scheme for “Large Scale Acquisition, Development and Disposal of Land in Delhi”. After the payment of the premium amount, the balance installments and on completion of other formalities, the perpetual lease deed dated 31st December 1968 comprising the suit property was executed jointly in favour of the Plaintiff and Defendant as lessees. In this manner, Plaintiff and Defendant became the joint owners of the suit property. From the reading of the written statement, it also emanates that there is no dispute between the parties that earlier a portion of the suit property was in occupation of the other brothers of the parties and that suits had been filed for recovery of possession of the said portion of the suit property. In the said suits, compromise decree/judgment dated 23rd November 2017 were passed whereby Defendant Nos. 3 to 5, legal heirs of deceased, Shri Surinder Gupta and Defendant No. 2 agreed to vacate the portion of the suit property occupied by them. Defendant also does not deny that an MoU dated 8th May 2014 was executed, wherein it was agreed that both of the parties would cooperate in their efforts to legally evict the remaining Defendants i.e. Defendant Nos. 2 to 5 and also to amicably partition the property by physical division or other means once the eviction proceedings were successfully concluded. The MoU dated 8th May 2014, inter alia reads as under: “1. 2 to 5 and also to amicably partition the property by physical division or other means once the eviction proceedings were successfully concluded. The MoU dated 8th May 2014, inter alia reads as under: “1. This document is an understanding, now reduced to writing for future records and reference to the parties and their legal heirs. 2. First Party is Mr. Mange Ram Gupta S/o late Sh Shambhu Dayal Gupta and Second Party is Mr. Rameshawasr Dayal Gupta S/o late Sh Shambhu Dayal Gupta (collectively referred by parties hereinafter). 3. Both the parties as already agreed and reiterate again that they have equal shareholding in the property at B-7/33, Safdarjung Enclave, land admeasuring 425.5 SqYrds and built up portions i.e., Ground Floor, First Floor, Second Floor, and common areas, such as driveway on right hand side, RCC water tank on ground floor etc. That both the parties contributed equal amount of money in purchasing the land and thereafter developing the property. 4. Both the parties willingly and without any coercion confirm that they will never contest and dispute their equal share in any court of law and decide mutually to provide privacy, use of all the facilities and enjoyment of mutual rights to each other of the above property and also undisputedly agree that they shall take appropriate steps mutually after eviction of disputed portion under occupation of Sh. Rajendra Prasad Gupta and Mrs. Alka Gupta so that both the parties and their legal heirs enjoy separate marketable titles of their shares in the property. 5. Both the parties agree that the safety, cleanliness, security and maintenance of the building and the premises are of utmost importance. In this respect following actions within two months shall be immediately initiated and taken for which the cost incurred shall be fully and equally shared: (a) Boundary wall with the gates, (b) Upkeep of the common portions on the ground floor, etc. (c) Repair and whitewashing of building façade and boundary wall. 6. The front portion of the ground floor is in possession of First Party, while equal (less front yard and part of rear) portion on first floor is in possession of the second party. Both are residing in these portions with their families and continue to do so without anybody's interference. 7. 6. The front portion of the ground floor is in possession of First Party, while equal (less front yard and part of rear) portion on first floor is in possession of the second party. Both are residing in these portions with their families and continue to do so without anybody's interference. 7. That the rear portion on first floor, comprising, 2 bedrooms, 1 Toilet cum Bathroom, 1 kitchen, 1 verandah and 1 balcony, is lying vacant. This portion is in joint possession of both the parties. This portion need immediate repairs by equally contributed funds by both the parties for putting on rent, so that both the parties can cam rental income from this portion at the earliest on top priority. 8. That the rear part of die ground floor under dispute is in possessions of Mr Rajendra Prasad Gupta s/o Shri Shambhu Dayal Gupta and part of second floor under dispute is in possession of Mrs Alka Gupta w/o late Mr Surendra Kumar Gupta. Application for their eviction moved by first party with the consent of the second party is pending in the court of law. 9. That it is agreed that second party will fully cooperate and pursue the court proceedings along with first party as already initiated for getting evacuated die disputed portion under possession of Mr Rajendra Prasad Gupta and Mrs Alka Gupta and render his evidence as and when asked for by the first party. Both the parties will share equal expenses on professional fees, court fees and other charges, etc. 10. That it is also agreed no additional construction shall be made on the portions for which court proceedings are underway and so also on the common areas as mentioned above. 11. Further it is stated that for exclusive use for part of first floor occupied by second party, die second party will apply additional water connection and first pasty will help so that die second party gets this connection. In case of unavoidable reasons he is not able to get it then first party shall allow the second party to make necessary changes in existing setup at die cost of second party.” 8. As noted above, in the MOU, Defendant admits the Plaintiff to be the recorded joint owners of the suit property having equal share. Further, unequivocal and unambiguous admissions have been made all throughout in the written statement. As noted above, in the MOU, Defendant admits the Plaintiff to be the recorded joint owners of the suit property having equal share. Further, unequivocal and unambiguous admissions have been made all throughout in the written statement. This is evident from the following: Relevant/Corresponding paragraph of the Plaint Admissions made in the written statement Para 7: Consequently, bid for leasehold rights in the suit property was placed in the name of Plaintiff alone, who was declared successful bidder for the land comprising suit property by the DDA vide communication dated 25.10.1964 for a premium of Rs. 21,000/-. Para 4: That the contents of para no. 6-7 are a matter of record and do not require any comments. Para 9: That after payment of the premium and completion of other formalities. Perpetual Lease Deed dated 31.12.1968 for the land admeasuring approximately 425 square yards comprising the suit property, was executed by the President of India (acting as Lessor) jointly in favour of the Plaintiff and Defendant No. 1 (as Lessees), on the usual terms and conditions. In this manner, Plaintiff and Defendant No. 1 became joint owners of the suit property, which is their self acquired property purchased out of their own funds, and is not in any manner a joint or family property. Para 10: Possession of the suit property was also handed over by DDA to Plaintiff and Defendant No. 1 on 31.12.1968, contemporaneous with execution of the Perpetual Lease Deed, vide Letter of Possession of even date. Para 5: That the contents of para no. 9 and 10 are a matter of record however it is denied that the President of India executed the Lease Deed in favour of the Plaintiff and Defendant No.1 jointly but the fact is that the said Lease Deed was executed by the Under Secretary on behalf of Lieutenant Governor of Delhi and not by the President of India. The aforementioned facts shows that the plaintiff is unaware about the execution of Lease Deed and further reflects that he has not taken any interest or efforts towards the allotment of said property and further during the time of even construction. Para 13: The Plaintiff and Defendant No.1 applied for and obtained water and electricity connections for the suit property in their joint names in 1971. Plaintiff also has had a landline telephone connection in his portion of the suit property since 1977. Para 13: The Plaintiff and Defendant No.1 applied for and obtained water and electricity connections for the suit property in their joint names in 1971. Plaintiff also has had a landline telephone connection in his portion of the suit property since 1977. Suit Property also stands mutated in joint names of Plaintiff and Defendant No. 1 in records of Municipal Corporation of Delhi. Para 8: That the contents of para no. 13 are wrong and denied unless specifically admitted hereinafter. It is denied to the extent that the plaintiff had landline telephone connection in his alleged portion of the suit property since 1977. It is further submitted that since the allotment of suit property was in the joint names therefore the mutation was done in the joint names of plaintiff and Defendant No. 1 in the records of Municipal Corporation of Delhi. Even at this juncture the plaintiff did not pay the property tax regularly with the Municipal Corporation of Delhi. The copies of payment of house tax by the defendant no.1 is annexed with the written statement. Para 20: Consequently, although they were reluctant to take legal action against family members. Plaintiff and Defendant No. 1 were constrained to initiate proceedings for eviction of the said Defendant Nos. 2-5.Para 21: Defendant No. 1 issued legal notices to Defendant No. 2 and Defendant Nos. 3-5 calling upon them to hand over possession of portions of the suit property under their occupation. Although the Legal Notices were sent only in the name of Defendant No. 1, they were sent with the knowledge and consent of Plaintiff, as is clear from perusal of Memorandum of Understanding dated 08.05.2014 by which Plaintiff authorised Defendant No. 1 to take all necessary actions to retrieve possession of the suit property from other Defendants on his behalf. Para 22: Since Defendant Nos. 2-5 did not hand over possession to Plaintiff and Defendant No. 1 despite receipt of legal notices, Defendant No. 1 filed two Civil Suits for possession, injunction and recovery of misuse charges/damages on 30.05.2007 &31.05.2007 against Defendant No. 2 and Defendant Nos. 3-5 respectively. These suits were instituted and prosecuted in the Tis Hazari District & Sessions Court, New Delhi. 2-5 did not hand over possession to Plaintiff and Defendant No. 1 despite receipt of legal notices, Defendant No. 1 filed two Civil Suits for possession, injunction and recovery of misuse charges/damages on 30.05.2007 &31.05.2007 against Defendant No. 2 and Defendant Nos. 3-5 respectively. These suits were instituted and prosecuted in the Tis Hazari District & Sessions Court, New Delhi. Para 23: While the Plaintiff was not arrayed as a party in the abovementioned Civil Suits, as stated above he gave permission to Defendant No. 1 to do so and had assured Defendant No. 1 that he would provide assistance in any manner required. In this regard, it is necessary to submit that in order to formalise the understanding between Plaintiff and Defendant No. 1 that Defendant No. 1 was prosecuting the two civil suits in Tis Hazari District Court against remaining Defendants on behalf of both co-owners, and also to lay down an agreed methodology to clearly demarcate the respective portions of the composite suit property that would fall to their respective shares. Plaintiff and Defendant No. 1 executed a joint Memorandum of Understanding (hereinafter referred to as "Memorandum") dated 08.05.2014 whereby they agreed to co-operate in the effort to legally evict remaining Defendants and also to amicably partition the property by physical division or other means, once the eviction proceedings were successfully concluded. Para 24: It is further necessary to state that the Defendant No. 1 has unequivocally admitted in his plaints and affidavits towards evidence in lieu of examination-in-chief in both abovementioned civil suits that the suit property is owned jointly by Plaintiff and Defendant No. 1, each having 50% undivided share therein. The said Suits are entirely premised on the fact that the other two brothers, namely Defendant No. 2 and Late Sh. Surinder Kumar Gupta (through his legal heirs Defendant Nos. 3-5), have no right, title or interest, which vests exclusively in Plaintiff and Defendant No. 1. Unfortunately, as will be subsequently averred. Defendant No. 1 is now resiling from this stand taken by him on affidavit in the previous suits, and is denying title of the Plaintiff, for reasons best known to him, leading to the filing of the present suit. Para 25: It is further pertinent to mention that in the course of proceedings in the earlier abovementioned Civil Suits, Defendant Nos. Para 25: It is further pertinent to mention that in the course of proceedings in the earlier abovementioned Civil Suits, Defendant Nos. 2-5, inter alia, sought to raise a spurious defence that the suits were not maintainable by a single co-owner and did not have the support of the Plaintiff, who as stated above, had not been arrayed as a party in those suits. To answer these frivolous objections, and in discharge of his responsibilities undertaken vide Memorandum dated 08.05.2014, Plaintiff herein tendered evidence in both aforesaid Civil Suits affirming his 50% undivided ownership of the suit property and fully supporting prayer for eviction of the Defendant Nos. 2 to 5. Plaintiff herein also entered the witness box as a Plaintiff's Witness on behalf of Defendant No. 1 herein, where he was cross examined by counsel for Defendant Nos. 2 to 5, however he steadfastly deposed the same facts as averred in the present plaint and affirmed the same under cross examination. Para 26: That both aforesaid Civil Suits were finally argued and reserved for judgment. However, at the stage of passing of judgment. Defendant Nos. 2 to 5 chose to settle the two cases. Vide order dated 23.11.2017 passed by the Court of Sh. Harish Kumar, ADJ-13 (Central), Tis Hazari District Court, parties agreed that Decrees for Possession of the portions of the suit property occupied by Defendant Nos. 2 to 5 be passed in favour of the Defendant No. 1, who was the sole Plaintiff in those suits. It was further agreed that Defendant No. 2 would hand over possession of portion of Ground Floor occupied by him on or before 23.05.2018, while Defendant Nos. 3 to 5 would hand over possession of second floor occupied by them on or before 23.08.2018, failing which they would be liable to pay damages of Rs. 30,000/- per month for illegal use and occupation, and the decrees would become executable. Needless to say, while the decree for possession was passed in favour of the Defendant No. 1 alone as he was the sole Plaintiff in those suits, the possession of the same would be accepted by him as a trustee on behalf of both co-owners including the Plaintiff herein, as that had been his consistent stand throughout the suit. Para 11: That the contents of para no. 20 to 26 are wrong and denied. Para 11: That the contents of para no. 20 to 26 are wrong and denied. It is submitted that the proceedings for eviction of Defendant Nos. 2 to 5 were initiated by Defendant No. 1 alone. The entire efforts were done by Defendant No. 1 in getting the decree/judgment in his favour and nothing has been done by the plaintiff. The aforementioned facts can be ascertained from the contents of notice dated 09.11.2006 sent by the Defendant No. 1 and also from the pleadings of the plaint filed by the Defendant No. 1. It is matter of trial court records of the suits filed by the Defendant No. 1 that the Defendant No. 2 to 5 therein took objection that the plaintiff was not party to said suit and fact of the matter is that the plaintiff refused to become the co-plaintiff in the said suit just to escape the burden of attending the day to day hearings in the said suits and further to escape the burden of engaging of advocates and financial burden & collection of evidences in support of said suits. The Defendant No. 1 has made expenses towards the filing of suit and handling the suit before the District Court. The entire professional fees of advocates appeared from time 1 *0 to time had been paid by the Defendant No. 1 and plaintiff never paid or contributed a single penny in payment of professional fees etc. The Defendant No.1 on all the occasions appeared in the suits and remained personally present in all the hearing of such suits. It is further submitted there were in totality 76 hearings of the suit before the trial court and Defendant No.1 personally attended along with his son on each and every date of such hearings. The plaintiff appeared in the suit only once that too as a witness to prove the pleadings of the suit. It is submitted that the said suits were filed in the year 2007 and the MOU was entered in the year 2014 so it is not possible for the plaintiff by virtue of said MOU dated 08.05.2014 to authorise the Defendant No.1 to take all necessary actions to retrieve the possession of suit property from the Defendant No. 2 to 5 on his behalf. It is further wrong and denied that the legal notice to vacate the suit premises was given with the knowledge and consent of the plaintiff. It is submitted that the plaintiff from the inception of Lease Deed in the year 1964 remained as stranger in the suit property and never ever participated or contributed in any manner whatsoever in respect of the suit property. The MOU entered into between the Plaintiff and Defendant No.1 was nothing but the agreement to partition the property and modalities with respect to the portions to be evicted after the disposal of suits pending before the trial court. It is matter of fact that the plaintiff has intentionally and mischievously failed to honour some of the clauses i.e. clause 5 & 7 of said MOU till date and it is Defendant No.1 who single handedly took entire initiative for maintenance and up keep of the common areas and other make repairs in the suit property. It is further matter of record of trial court proceedings in the two suits that the plaintiff refused to became the co-plaintiff in that suit and due to which the proceedings were delayed and the plaintiff only after partitioning the suit property in the manner as provided in MOU dated 08.05.2014 agreed to help the Defendant No.1 in becoming one of the witness to verify and depose the facts mentioned in the said suits. That clause 9 of the said MOU itself reflect the attitude and conduct of the plaintiff which specifically states court fees and other charges etc." Thus the aforementioned clause clearly reflects that the plaintiff was more interested in getting the partition of the suit property then to contest the suits filed before the Trial Court. Thus once the partition is already affected and it was mutually agreed by virtue of clause 4 of the MOU that both the parties willingly and without any coercion confirm that they will never contest and dispute their equal share in any court of law but the plaintiff has filed the instant suit against the intent and spirit of said MOU and more specifically be stated as partition deed. It is submitted that the contents of preliminary objections may be read as reply to the contents of paras under reply and the same are not repeated herein for the sake of brevity. It is submitted that the contents of preliminary objections may be read as reply to the contents of paras under reply and the same are not repeated herein for the sake of brevity. Para 12: It is wrong to say that Defendant No. 1 claimed to be the owner of the entire suit property. 9. In the reply to the application under consideration, the Defendant admits the ownership documents, the perpetual lease deed dated 31st December 1968 and also the MoU dated 8th May 2014. The application is however opposed primarily on two grounds. Firstly, it is contended that the Defendant has incurred substantial expenses towards the payment of cost of the suit property, construction, maintenance, taxes etc and the Plaintiff therefore cannot claim ownership therein. The said expenses, are in fact subject matter of the counter claim filed by the Defendant for recovery of Rs. 22,87,239/-. Plaintiff contests and disputes that the said amounts were exclusively paid by the Defendant and alleges that the said expenses were shared by the parties and rather the Plaintiff has paid more than his share and deserves the right to recover the excess amount from the Defendant. Be that as it may, even if the Defendant has incurred the expenses as alleged, it does not in any way effect Plaintiff’s share in the suit property. These expenses can only be a subject matter of a money claim, for which admittedly the Defendant is pursuing its counter claim. The second ground for opposing the application is that the MoU dated 8th May 2014, has already partitioned the suit property and the families of both the parties continue to occupy their respective portions without any interference. This also cannot be a ground to reject the prayer made in the application. The present suit is for enforcement of the terms of the MoU which contemplated that the parties must take steps to effect partition after eviction of the families of other two brothers of the parties from their respective portions in the suit property. The Plaintiff further contends that the suit property has not been demarcated and the possession of one portion or the other does not ipso facto translates into ownership of that portion, unless final partition decree is passed. The MoU is not a Partition Deed. Defendant in the written statement describes it as an "agreement to partition". The Plaintiff further contends that the suit property has not been demarcated and the possession of one portion or the other does not ipso facto translates into ownership of that portion, unless final partition decree is passed. The MoU is not a Partition Deed. Defendant in the written statement describes it as an "agreement to partition". Moreover, the express terms of the document in clause 4 records that, ''they shall take appropriate steps mutually after eviction of disputed portion under occupation of Sh. Rajendra Prasad and Mrs. Alka Gupta, so that both the parties and their legal heirs enjoy separate marketable titles of their shares In the property", thereby indicating that the Memorandum was executory in nature and contemplated taking further steps towards partition at some time in the future. The MoU is unregistered. It is settled law that a Partition Deed must be by a registered and duly stamped Instrument. Thus, the Memorandum dated 8th May 2014 cannot be construed as a Partition Deed, as held by the Supreme Court in Roshan Singh v. Zile Singh, AIR 1988 SC 881 , relevant portion of which reads as under: “It is well-settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under s. 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration. The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction. The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction. It is equally well-settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Sec. 17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some right in immovable property. Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document. Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it. If it be not registered, s. 49 of the Act will prevent its being admitted in evidence. Secondary evidence of the factum of partition will not be admissible by reason of s. 91 of the Evidence Act, 1872. (2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition.” 10. In view of the above discussion and the aforenoted categorical admissions made in the pleadings and by virtue of the admission of the documents on record, the Court has no hesitation to hold that the Plaintiff is entitled to a preliminary decree. Accordingly, a preliminary decree is passed declaring that both Plaintiff and Defendant have 50% undivided share in the suit property. 11. Now we have to move towards passing a final decree. At this stage a comprehensive report of the Local Commissioner would be needed which would consider all factual/legal aspects qua division of property. Hence, before passing a final decree of partition it would be appropriate to appoint a Local Commissioner to suggest the mode of partition. Accordingly, Mr. Abhishek Singh, Advocate (Mobile No. 9910291290) is appointed as the Local Commissioner to visit the suit property bearing no. B-7/33, Safdarjung Enclave, New Delhi- 110029 and suggest the mode of partition. The local commissioner may also take assistance of an architect, if it is found necessary in the circumstances of the case. The fee of the Local Commissioner is fixed at Rs. 1,00,000/-, besides incidental and out of pocket expenses, to be shared by the parties equally. The commission shall be executed within 4 weeks from today and report thereof be filed thereafter. The fee of the Local Commissioner is fixed at Rs. 1,00,000/-, besides incidental and out of pocket expenses, to be shared by the parties equally. The commission shall be executed within 4 weeks from today and report thereof be filed thereafter. Needless to say that learned Local Commissioner shall put the parties to advance notice prior to his visit/inspection of the suit property. 12. Accordingly, the application stands disposed of. Registry is directed to send a copy of this order to the Local Commissioner. Re-notify on 27th August, 2019.