IMPORTANT POINT
The court clarified the rights of the parties in the subject property and directed the appointment of a Local Commissioner to effectuate the preliminary decree for partition, in line with the provisions of the CPC.

JUDGMENT

Anup Jairam Bhambhani J. - CM APPL. 5722/2024

By way of the present application filed under section 151 of the Code of Civil Procedure 1908 ('CPC'), the appellant-plaintiff/Santosh Bhasin seeks clarification of judgement dated 10.01.2024 rendered by this court, whereby this court had allowed the present appeal, thereby setting-aside judgment and decree dated 20.09.2010 passed by the learned Additional District Judge ('ADJ') in CS No. 382/09/95. Since the judgement and decree had been set-aside, the cross-objections filed on behalf of the respondents-defendants, by which they had impugned certain observations made in that judgement, were also disposed-of requiring no orders.

2. By way of the present application, the appellant makes the following prayers :

"a. Allow the present application, clarify the judgment dated 10.01.2024 passed by this Hon'ble Court and appoint a local commissioner to divide and demarcate the entire terrace floor including the construction thereon of the property bearing no. C-316, Defence Colony, New Delhi by metes and bounds and handover vacant and physical possession of the Appellants share to the Appellant;

"b. Authorize and permit the local commissioner to take the assistance of an expert i.e. an architect, having at least 15 years of experience for the purpose of carrying out equal division of the terrace floor including the constructed area in the property bearing no. C-316, Defence Colony, New Delhi; and

"c. Any other relief that this Hon'ble Court may deem fit and proper in the facts and circumstances of the instant case."

3. Notice on this application was issued on 06.02.2024; whereupon reply dated 16.02.2024 has been filed by the respondents.

4. The court has heard Mr. P.V. Kapur, learned senior counsel appearing for the appellant and Mr. Rohit Kumar, learned counsel appearing for the respondents.

5. Counsel have also filed their respective written synopses of their submissions on the application.

Appellant's Submissions

6. Mr. Kapur submits, that since by way of judgement dated 10.01.2024, this court has held that the appellant has equal rights over the barsati room and terrace atop the first floor of property bearing No. C-316, Defence Colony, New Delhi ('subject property'), this court may also pass a consequential order of appointing a Local Commissioner to partition the subject property by metes and bounds, which was one of the prayers made in the suit filed before the learned ADJ.

7. It is pointed-out that the claims in the suit were as follows :

"(a) Decree for partition of the Barsati and the Roof Terrace situate on the second floor of premises No. C-316, Defence Colony, New Delhi between the plaintiff and the defendant by metes and bounds in equal shares.

"(b) Decree for declaration of plaintiff's rights and titles and interests of the Barsati and roof terrace of the second floor in equal shares.

"(c) Appointment of a commissioner of Partition for making division and partition of the said Barsati and roof terrace by metes and bounds between the Plaintiff and the defendant in equal shares and for framing a scheme for convenient use and enjoyment of the respective allotments.

"(d) Costs.

"(e) Such further or other reliefs as this Hon'ble Court might deem fit and proper."

8. Attention is also drawn to the prayers in the present appeal, which were as follows :

"a. Set-aside the Impugned Judgment dated 20.09.2010 passed by the Ld. Trial Court in suit no. 382/09/95;

"b. Decree the suit filed by the Appellant and grant the reliefs as prayed for by the Appellant in the suit, which has been dismissed by the Impugned Judgement dated 20.09.2010;

"c. Pass such other and further order(s) as this Hon'ble Court may deem fit and property in the facts and circumstances of the present case in favour of the Appellant and against the Respondents."

9. It is submitted that once this court has held that the appellan