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SUPREME COURT OF INDIA
MOHAN M. SHANTANAGOUDAR, R. SUBHASH REDDY, JJ.
Sajan Sethi – Appellant
Versus
Rajan Sethi – Respondent
Civil Appeal Nos. 1899-1900 of 2020; (Arising out of SLP(C) Nos. 13376-77 of 2019)
Decided On : 02-03-2020
Property law - Suit for partition of second floor - Appellant-defendant raising issue of common area in written statement - Courts below framing issues on basis of pleadings and deciding the question of common area also - Not open to appellant-defendant the contend courts below exceeded scope of the suit. (Para 10, 11)
Facts of the case:
The house property bearing No.D-1090, situated in New Friends Colony, New Delhi, constructed in a plot area of 292 sq. yards, was originally owned by the father of the parties, late Sh .S. L. Sethi. On his demise, the suit property was devolved upon his wife Smt. Krishna Sethi, who is the mother of the parties herein, pursuant to a Will executed by their father. Subsequently, the mother also passed away by executing a Will dated 27.01.2005. As per the Will dated 27.01.2005, the ground floor portion is bequeathed to the respondent-plaintiff, the first-floor portion was bequeathed to the appellant-defendant and the second-floor portion was to be divided equally between the parties, with the front-half portion to the share of appellant-defendant and the back-half portion to the share of respondent-plaintiff.
The respondent-plaintiff i.e. Sh. Rajan Sethi filed a suit in CIS No. 11193 of 2016 on the file of Additional District Judge, South-East, Saket Courts, New Delhi, for partition and permanent injunction of the second floor and the terrace rights. Though, the suit was for partition of the second floor and terrace rights, it is the appellant-defendant, who in the written statement raised a dispute in respect of common areas in the ground floor also. The Trial Court negative the claim for ground floor and common area and decided the share of the respondent-plaintiff and defendant in the ratio of 50% each. The Trial Court also ordered to put up the said property for sale by auction, and distribute the sale proceeds in equal share.
High Court set aside the judgment of the Trial Court, to the extent of directions for sale of second floor and terrace rights and issued further directions in respect of the common areas.
Finding of the Court:
The appellant-defendant cannot plead that the Trial Court as well as the Appellate court have exceeded scope of the suit, in issuing directions for the common areas.
Result: Appeals dismissed.
JUDGMENT :
R. SUBHASH REDDY, J.
1. Leave granted.
2. These civil appeals are filed by the defendant in the Suit, aggrieved by the judgment and decree dated 18.02.2019 passed by the High Court of Delhi in R.F.A.No.641 of 2018, arising out of a partition suit with respect to the property bearing No. D-1090, New Friends Colony, New Delhi, constructed in a plot area of 292 sq. yards. The review petition filed by the appellant also ended in dismissal, as such, these are the two appeals, one against the judgment and decree dated 18.02.2019 and other appeal against an order dismissing the review petition vide order dated 15.04.2019. The house property bearing No.D-1090, situated in New Friends Colony, New Delhi, constructed in a plot area of 292 sq. yards, was originally owned by the father of the parties, late Sh .S. L. Sethi. On his demise, the suit property was devolved upon his wife Smt. Krishna Sethi, who is the mother of the parties herein, pursuant to a Will executed by their father. Subsequently, the mother also passed away by executing a Will dated 27.01.2005. As per the Will dated 27.01.2005, the ground floor portion is bequeathed to the respondent-plaintiff, the first-floor portion was bequeathed to the appellant-defendant and the second-floor portion was to be divided equally between the parties, with the front-half portion to the share of appellant-defendant and the back-half portion to the share of respondent-plaintiff. The relevant portion of the Will executed by the mother, reads as under:-
"(a) House No.D-1090, New Friends Colony, New Delhi shall devolve upon my both sons Shri Rajan Sethi & Shri Sajan Sethi in the following manner:
- Ground Floor shall fall to the exclusive share of my elder son Sh. Rajan Sethi, first floor shall fall to the exclusive share of my son Sh. Sajan Sethi. Top floor shall be divided by my children in equal share. The front half portion shall go to the exclusive share of my son Sh. Sajan Sethi and half back portion shall go to the exclusive share of my elder son Sh. Rajan Sethi. The booster pump/motor installed at ground floor shall be used by both the children without any interference/obstruction by any of them in any manner what so ever. My both sons shall not sell their share in the property to an outsider without concurrence of each other and shall first offer to the other before taking any step in that regard."
3. The respondent-plaintiff i.e. Sh. Rajan Sethi filed a suit in CIS No. 11193 of 2016 on the file of Additional District Judge, South-East, Saket Courts, New Delhi, for partition and permanent injunction of the second floor and the terrace rights. As per the preliminary decree passed by the Trial Court share of the respondent-plaintiff and defendant was decided in the ratio of 50% each. Though, the suit was for partition of the second floor and terrace rights, it is the appellant-defendant, who in the written statement, raised a dispute in respect of common areas in the ground floor also. The appellant-defendant, however, has not filed any counter claim in the suit. In view of the claim set up by the appellant-defendant in respect of the common areas, the following issues were framed in the suit for trial:
"(i) Whether the second floor and the terrace above of property No.D-1090, New Friends Colony, New Delhi was partitioned and if not, whether the Plaintiff is entitled to partition of the same by metes and bounds? OPP
(ii) Whether the common areas in the suit property are liable to be partitioned in terms of paragraph no. 14 of the written statement? OPD
(iii) Relief"
4. The Trial Court by considering the pleadings and evidence on record, has negatived the claim of the appellant-defendant for the common areas, as claimed in para 14 of the written statement. On the claim of the respondent-plaintiff for partition of second floor and terrace rights, by accepting objections of the respondent-plaintiff to the Report of the Court Commissioner, the Trial Court held that the second floor an
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