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IN THE HIGH COURT OF DELHI AT NEW DELHI
RAJIV SAHAI ENDLAW, J.
NORTH EASTERN PUBLISHING & ADVERTISING CO. LTD. – Plaintiff
Versus
NIRMAL GUPTA & ANR. – Defendants
CS(OS) 461 of 2016
Decided On : 08-02-2017
Partition - Final Decree - CPC, Section 54 - Delhi Land Reforms Act, 1954 - Delhi Land Revenue Act, 1954 - Partition Act, 1893 - [PARTITION] - [CPC, Section 54, Delhi Land Reforms Act, 1954, Delhi Land Revenue Act, 1954, Partition Act, 1893] - The court discussed the applicability of Section 54 of the Code of Civil Procedure, 1908 (CPC) and its inapplicability to the subject property, citing relevant case law. The court also addressed the contentions under Order XX Rule 18 of CPC and Section 2 of the Partition Act, 1893, emphasizing that the shares of the parties had already been determined and that the inter se dispute between the defendants did not bar the final decree for partition by sale of the property.
Fact of the Case:
The counsel for the plaintiff and defendant No.1 sought a final decree for partition of the property by sale, but defendant No.2 objected, claiming that the ownership of a 2/6th share in the property was in dispute and therefore no final decree for partition could be passed.
Finding of the Court:
The court found that the inter se dispute between the defendants did not prevent the final decree for partition by sale of the property, as the shares of the parties had already been determined and the disputed share would be subject to the outcome of a separate suit.
Issues: The main issue was whether the inter se dispute between the defendants regarding the ownership of a 2/6th share in the property prevented the court from passing a final decree for partition by sale.
Ratio Decidendi: The court held that the inter se dispute did not bar the final decree for partition by sale of the property, as the shares of the parties had already been determined and the disputed share would be subject to the outcome of a separate suit.
Final Decision: The court passed a final decree for partition of the property by sale and distribution of sale proceeds amongst the parties as per their shares declared in the preliminary decree for partition.
1. This order is in continuation of the earlier order dated 9th January, 2017 and 24th January, 2017.
2. The counsel for the plaintiff and the counsel for the defendant No.1 Smt. Nirmal Gupta and defendant No.3 Mr. Vineet Gupta both state that final decree for partition of the property by sale thereof and distribution of sale proceeds between the parties as per their shares declared in the preliminary decree be passed.
3. The counsel for the defendant No.2 Smt. Asha Gupta however states that it is essential for a decree for partition to specify the shareholders and the shares. It is stated that since it is in dispute, whether 2/6th share in the property is owned by defendant No.2 Smt. Asha Gupta or the defendant No.3 Mr. Vineet Gupta, no final decree for partition can be passed till the said dispute has been adjudicated. It is stated that the plaintiff and the defendant No.1 can sell their 3/6th and 1/6th share respectively.
4. Though the stage for the counsel for the defendant No.2 Smt. Asha Gupta to make the said contention was at the stage of passing of the preliminary decree for partition on 9th January, 2017 declaring the plaintiff to be the owner of 3/6th or one half undivided share in the property, the defendant No.1 to be the owner of 1/6th undivided share in the property and the ownership of remaining 2/6th share being subject to the outcome of CS(OS) No.153/2007 or on 24th January, 2017, but the counsel for the defendant No.2 has still been allowed to address on the said aspect.
5. It has been enquired from counsel for defendant No.2 as to why the plaintiff and the defendant No.1, about whose share in the property there is no dispute, should be allowed to suffer for the reason of the inter se dispute between the defendants No.2 & 3 with respect to 2/6th share in the property and which is not even the subject matter of the present suit but the subject matter of the previously instituted CS(OS) No.153/2007.
6. The counsel for the defendant No.2 Smt. Asha Gupta states that the defendant No.2 will suffer if the final decree for partition by sale of the property is passed and the property is sold prior to the adjudication of lis between defendant No.2 and defendant No.3.
7. This aspect also has been adjudicated in the order dated 24th January, 2017 and cannot be revisited.
8. The counsel for the defendant No.2 then contends that in fact this Court does not have the power to decree partition by sale of the property owing to the pendency of CS(OS) No.153/2007. The counsel, in this regard has first drawn attention to Section 54 of the Code of Civil Procedure, 1908 (CPC) to contend that a decree for sale of share which has yet not been determined cannot be passed.
9. Section 54, on a reading thereof, is for partition of an undivided estate assessed to the payment of revenue to the Government or for separate possession of a share of such estate. It is not the case of either of the parties, not even of the defendant No.2, that the subject property is an estate assessed for payment of revenue to the Government. Section 54 CPC to which attention is drawn is with respect to agricultural land as governed by the Delhi Land Reforms Act, 1954 and the Delhi Land Revenue Act, 1954 and would have no application to the subject property. It was so held by the Division Bench of this Court in Surendra Pal Singh Vs. Ravindra Pal Singh 210 (2014) DLT 386. Reference may also be made to Shub Karan Bubna Vs. Sita Saran Bubna (2009) 9 SCC 689 and Kalyani Vs. Sanjeeva Soana 1988 SCC OnLine Kar 222.
10. Even otherwise, what is contended does not follow from a reading of Section 54 CPC, even if applicable. The shares of the parties have already been determined in the preliminary decree. It is not that the said shares are part of a larger estate. It is only to such situations that Section 54 CPC applicable.
11. The counsel for the defendant No.2 has next drawn attention to Order XX Rule 18 of CPC and contends that thereunder also there is no sale of unde
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