The superstructure built on a plot can be partitioned by metes and bounds according to the respective shares of the parties while keeping the plot underneath the structure as joint, and no permission of the lessor is needed for effecting the partition of the building by metes and bounds.

( 1 ) THIS suit has been filed for the partition of movable property bearing Municipal No. D-66, Naraina Residential Scheme, New Delhi. The land, admeasuring 500 sq. yards, has been granted to the plaintiff and the defendant under a Perpetual Lease Deed dated 17. 4. 1970. It is not disputed that the parties have contributed equally towards the cost of the Lease Deed and that they are jointly paying the ground rent to the lessor. President of India, acting through the Land and Housing Department of the Delhi Administration.

( 2 ) BUILDING Plans were sanctioned in the name of both the parties and one building comprising of two residential units have been constructed on the land. The plaintiff constructed a single unit on the ground floor on one half of the plot of land while the defendant constructed a ground and first floor unit contiguous thereto. The parties have been in occupation of their respective units from the very inception. The plaint discloses that the parties have obtained separate electricity and water connection in respect of the portions in their possession; billing is separately made and paid. It has been further averred in the plaint that a Partition Deed was drawn up by the plaintiff but was refused to be signed by the defendant. If the property is partitioned in consonance with the portions constructed by and presently occupied by the parties, it would bring about an equal division of the plot as well as the constructed portion taken vertically.

( 3 ) THESE averments have not been denied by the defendant in the Written Statement. However, the passing of a decree of partition has been objected to on the ground that the property was purchased by the parties knowing fully well that the plot cannot be deviated in any manner or subdivided and that the construction was sanctioned as a single unit. The drainage system is stated to be a single unit. The Occupancy Certificate has not been issued till date. It has been further pleaded that if a dispute has arisen between the parties, the arbitration clause contained in the Lease Deed should be invoked. No doubt other objections have been raised, but the gist of the disputes between the parties has been crystalised by the defendant itself in the following words contained in para 7 of the application filed by the defendant under Section 3 of the Partition Act. "the applicant submits that there is no dispute between the parties as to the share of each one of them has in the property in dispute. The only hitch being that this property cannot be divided into two parts in view of the provision of the Lease Deed. As such, a final decree may be passed directing the sale of the shares of the plaintiff unto the defendant at the price as valued by the plaintiff himself or on such other reasonable and appropriate price that this Hon ble Court may determine. "

( 4 ) THE following issues were framed :

(1) Whether the property cannot be partitioned for any of the reasons mentioned in the written statement? OPD (2) Relief (s)? OPP

( 5 ) ARGUMENTS were addressed by Mr. A. S. Chandiok, learned Counsel appearing on behalf of the defendant. Mr. Pardeep Nandrajog, learned Counsel for the plaintiff, preempting the arguments of the defendant, has relied on three decisions of this Court in Inderjit Singh etc. v. Tarlochan Singh etc. , 1991 Rajdhani Law Reporter 239; Chiranjilal 6- Am. v. Bhagwan Dass and Ors. , 1991 (3) Delhi Lawyer 350; and Shri Mohinder Singh v. Shri Kartar Lal, 1997m AD (Delhi) 626.

( 6 ) IN Inderjit Singh s case (supra) Mahinder Narain, J. permitted an application under Order 23, Rule 3 even in the face of an objection taken on behalf of Delhi Development Authority that the parties, although they were dividing between themselves only the constructed portion, the plot in question was thereby in effect, sub-divided.

( 7 ) IN Chiranjilal s case (supra), P. K. Bahri, J. decided the issue whether the property in suit should be partitioned by metes and bounds in the