Partition — Sale of property instead of partition — Scope, impracticability to divide the property by metes and bounds

March 2nd, 2013

Partition — Sale of property instead of partition — Scope, impracticability to divide the property by metes and bounds, effect — Property sold by public auction and sale proceed divided — Suit for partition by the son against his father and another brother — Preliminary decree apportioning equal shares to each party — Local Commissioner reported that keeping the nature of property as it existing today and the construction made therein as existing today, the same can’t be divided by metes and bound — In between compromise between the parties arrived at, whereby plaintiff is supposed to make certain amount of payment to defendants, to acquire the entire ownership of the property in question — Plaintiff didn’t comply with his obligation — Compromise failed — None of the parties willing to leave the property in favour of other — Final decree directing the property to be sold and sale consideration shall be equally divided — Civil Procedure Code, 1908 — Order 23 Rule 3 — Partition Act, 1893 — Section 2.

HELD: The local commissioner had visited the property and had submitted a report dated 5th October, 2004. The Commissioner had taken into consideration the various factors including the portion in possession of the respective parties to the suit. Finally, the Commissioner suggested ” I am of the opinion having regard to the nature of the property as it exists today, it is not possible to allot each of the co-sharers part of the said property having approximately the same value as corresponding to their respective 1/3rd share each. Therefore, I am of the view that keeping the nature of the property as it exists today and the construction made thereon as existing today, the same cannot be divided by metes and bounds.” Alongwith his report, the local commissioner had filed various photographs which he had taken of the property in dispute as well as the copy of the perpetual lease deed. To the report of the local commissioner, plaintiff had filed objections while no objections were filed on behalf of the defendants. The thrust of the objections filed on behalf of the plaintiff was that the property was capable of being partitioned by metes and bounds. However, it was specifically admitted that the property is residential unit having ground floor, first floor and barsati floor. The entire ground floor was in occupation of plaintiff and defendant No.1, while the plaintiff was in possession of slightly larger share in the ground floor than his father and plaintiff was stated to have incurred substantial expenditure on renovation of the ground floor. The First Floor was in occupation of a tenant and the one room on the barsati floor was partitioned into two rooms by defendant No.2 and was in his possession. The said floor was in dilapidated condition. It was the suggestion of the plaintiff that construction can be raised on the barsati floor and parties can have three independent units by demolishing and rebuilding the barsati floor as well as the servant quarters. It will be useful to notice at this stage itself that none of the parties to the suit were agreeing to the modification or change of the order dated 17th December, 2004. In other words even if a kind of agreed order of the Court which was not in the form of decree was to be modified, it could be modified only by consent of the parties. The parties in fact had more and more objections by passage of time to enforcement of the said order. According to the defendant, the plaintiff had committed uncondonable delays of the consent order and had prayed for modification which would change the very spirit of the agreement and would substantially the right of the parties. On the other hand, the plaintiff contended that in substance they had complied with the terms of the said order and the application for modification was not even pressed subsequently but the fact remains that the plaintiff did not comply with his obligations of the order within the stipulated time. Thus plaintiff cannot take any advantage of breach of such obligations merely because the application filed for modification was withdrawn subsequently.

Even after the said order none of the parties were willing to leave the property in favour of the other and any reasonable suggestion made by one was repelled on frivolous grounds by the others. The inevitable analysis of this conduct of the parties is that there is no option before the Court except the report of the Local Commissioner and pass a final decree in terms thereof.

In view of my above discussion, the report of the local commissioner is accepted while rejecting the objections filed by the plaintiff. As the objections only demonstrate as to how difficult and impracticable, it is to divide the property by metes and bounds, as it would require structural changes, difficulties in valuing the portion, as each one of them claimed to have spent amount on the renovation of the portion in their possession and the difficulty arising from the occupancy of the tenant on the first floor. Accordingly, a final decree is passed ordering and directing that the property No.42, Jor Bagh, New Delhi shall be sold by public auction on as and where basis and the sale proceeds shall be equally divided (1/3rd each by the plaintiff and defendants). The parties would be at liberty to participate in the said auction.

Vijay Sagar v. Sunder Lal Sagar, CS (OS) No. 1403/2002(25/08/2005), 2006(3) AD(Delhi) 210 [Swatanter Kumar, J.]

Entry Filed under: Judgements,Property Laws

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