JUDGMENT :

Prathiba M. Singh, J.

I.As. 7829/2019, 7830/2019, 8004/2019 in CS(OS) 3171/2014

1. The present suit for partition has been filed by M/s. Brijwasi Infratech Pvt. Ltd. (hereinafter "Plaintiff") against Shri Vikas Jain (hereinafter "Defendant"). Most of the facts are undisputed and are as under:

2. The suit relates to property bearing No.3, Block-A1, Krishna Nagar, Delhi admeasuring 593.20 sq. yards (hereinafter "suit property") in which 1/4th share belonged to Shri Tej Kumar Jain, who is the father of Shri Vikas Jain Defendant. The devolution of 1/4th share in favour of Shri Tej Kumar Jain is not in dispute. As on date, the Plaintiff is undisputedly the owner of 3/4th share of the property having purchased it from the various owners who trace back their title to Shri Chunni Lal Sethi - who was the absolute owner of the property. The detailed facts have been captured in the preliminary decree dated 18th April, 2017 as also the judgment dated 31st October, 2018.

3. Insofar as the 1/4th share of Shri Tej Kumar Jain is concerned, the same was sold by him to his wife Smt. Shakuntala Jain vide sale deed dated 2 nd January, 1991. Smt. Shakuntala Jain passed away on 30th October, 2000 leaving behind four sons and one daughter. One of the sons is Mr. Vikas Jain, the Defendant herein. The Defendant is, thus, one of the four sons of Shri Tej Kumar Jain, who owns 1/16th share of the property. All the remaining heirs of Shri Tej Kumar Jain have sold their respective shares to the Plaintiff.

4. The preliminary decree was passed in this matter on 18th April, 2017 in the following terms.

"A preliminary decree of partition is passed in favour of the plaintiff holding that in terms of the sale deed dated 23.04.2010, he is the owner of 3/4th share in property No.3, Block-A-1, Krishna Nagar, Delhi. Qua the balance 1/4th share in the property which is the subject matter of sale deed dated 29.10.2010, defendant is declared to be the owner of 1/16th share in the aforenoted 1/4th share. Decree-sheet be drawn accordingly."

5. The Court had, after passing the preliminary decree, appointed a Local Commissioner to suggest the mode of partition of the suit property. The proceedings before the Local Commissioner did not result in any final understanding on the mode of partition.

6. The Defendant, thereafter, moved an application being I.A. 11528/2018 seeking rights of pre-emption under Section 4 of The Partition Act, 1893. This application was decided vide order dated 31st October, 2018 wherein it was held that the suit property is no longer a dwelling house. The application was disposed of in the following terms.

"12. Irrespective of the fact as to whether the shops exist separately from the suit property or not, the dwelling house and the character of dwelling house in effect means that members of the family ought to be residing in the same. A perusal of the respective shares of the parties itself proves that majority of the Defendant's family does not live in the suit property any longer. The same has been sold to the Plaintiff. A part of the property also having been tenanted, it loses its character of a dwelling house.

13. Insofar as the date when the valuation ought to be taken is concerned, Learned counsel for the Defendant relies upon Brahm Dev Narang v. Satyajeet Narang (supra) passed by a learned Single Judge of this Court. In the said judgment, it was held that the date of institution of the suit would be the relevant date for determining the market value. However, the judgment of the Supreme Court in Ghantesher (supra) has also been followed by a Division Bench and a Single Judge of the Calcutta High Court, which all hold that the date of the filing of the application under Section 4 is the relevant date.

14. Considering that a Learned Single Judge of this Court has recently opined that the judgment in Brahm Dev Narang (supra) does not lay down the correct law insofar as the dwelling house is concerned, the Learned Single Judge in Brahm Dev Naran