Back
IN THE HIGH COURT OF DELHI
Neena Bansal Krishna, J.
Indu Rani @ Indu Rathi - Appellant
Versus
Raghvinder Mann - Respondent
CS(OS) 1705 of 2012
Decided On : 11-11-2022
Certainly. Based on the provided legal document, here are the key points summarized:
The court reaffirmed the finality of the decree of partition, emphasizing that parties are bound by the measurements and site plans agreed upon in the final decree, and that subsequent disputes regarding measurements are generally not permissible once the decree has attained finality (!) (!) (!) .
The case involved a dispute over property measurements and the boundaries of the partitioned property, specifically concerning the accuracy of the site plan Ex.CA and the actual area of the property at the time of the decree (!) (!) (!) (!) (!) .
The legal heirs of the defendant sought clarification and correction of the measurements, claiming discrepancies and asserting that the measurements in the final site plan were incorrect. They also contended that encroachments and public land (gali) affected the area, and that certain portions belonged exclusively to them (!) (!) (!) (!) (!) (!) (!) .
The court examined the reports of the Local Commissioner, who conducted multiple site visits and measurements, and found that the measurements in the site plan were consistent and accepted by all parties at the time of the final decree (!) (!) (!) .
The court noted that the measurements initially included a gali (passage) and that the parties had agreed to the division based on the site plan, which reflected these measurements. The parties had also accepted the division of the property as per the site plan, including the portion marked 'Z' which was allocated to the applicant (!) (!) (!) .
The applicant attempted to challenge the measurements post-decree, claiming that the actual area was different and that there had been arithmetical errors. However, the court observed that these contentions were considered before the decree was passed, and the parties had consented to the measurements and division at that time (!) (!) (!) .
The court concluded that the applicant's claims of discrepancies and demands for correction lacked merit, especially since the measurements had been verified multiple times and the parties had accepted the site plan and division during the proceedings (!) (!) .
The court dismissed the application seeking correction of measurements and clarification, reaffirming that the final decree and the measurements contained therein are binding and conclusive (!) .
The court also clarified that any grievances related to the actual construction or partitioning of walls or areas, inconsistent with the final decree, must be addressed through appropriate legal remedies, not through the present application under Section 151 of the Civil Procedure Code (!) (!) .
In summary, the court upheld the finality of the earlier decree, rejected the claims of measurement discrepancies, and dismissed the application seeking corrections, reinforcing the principle that parties must adhere to the measurements and boundaries established in the final decree of partition.
| Table of Content |
|---|
| 1. clarification on property measurements needed. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. court observed the consent of parties regarding property division. (Para 7 , 10 , 17 , 18) |
| 3. legal heirs of defendant no. 2 bound by finality of decree. (Para 8 , 9 , 11 , 12 , 13 , 14 , 16 , 21) |
| 4. arguments on correctness of measurements raised. (Para 15 , 19 , 20) |
| 5. no discrepancies in site plan measurement established. (Para 22 , 23 , 24 , 25) |
| 6. application dismissed for lack of merit. (Para 26) |
JUDGMENT
Neena Bansal Krishna, J. (Oral)
I.A. 13805/2018(U/S 151 of CPC, 1908)
1. The present application under Section 151 of the Code of Civil Procedure, 1908 has been filed on behalf of Ms. Pushpa, legal heir of defendant No.2 seeking clarification with regard to calculation of the area mentioned in the site plan Ex.CA.
2. It is submitted in the application that the matter was finally disposed of vide Order dated 20th December, 2017 and a final Decree of Partition by metes and bounds was passed. While pronouncing the Order, this Court relied upon the site plan filed by the Local Commissioner along with the Report dated 29th January, 2016, which was marked as Ex.CA for the purpose of identification. This Ex.CA was prepared at the behest of Local Commissioner and contained the measurements of the said property.
3. It is asserted that the subject property in Ex.CA was divided in three portions which was marked as Ex.'X' `Y' and `Z'. The measurement mentioned was 750 sq. yards each for portions `X' and `Y' and area 621 sq. yards for the portion `Z'. The portion marked `Z' came to the share of the present applicant/Smt. Pushpa.
4. It is asserted that the property was not demarcated. The plaintiff visited the property in the month of September, 2018 and found that the plaintiff had erected a wall inside the said property without getting it measured or demarcated. The applicant, Pushpa objected to the construction of the wall without getting the property actually measured/demarcated in terms of the Ex.CA, but the plaintiff categorically refused to adhere to the measurement mentioned in Ex.CA and went ahead to construct the wall. Thereafter, the applicant with the help of an Architect, measured the actual area falling to her share and the applicant was shocked to know that after the construction of wall by the plaintiff, the area was 495.82 sq. yards. It was further observed by the Architect that the calculation mentioned in Ex.CA itself was not correct and factually, the area mentioned was also not correct. The corrected calculation with the same measurement using the same measurement has now been annexed with the present application.
5. It is claimed that the current measurement of actual area of the property (at site) is 1840.52 sq. yards and the area has not been calculated correctly in Ex.CA that forms part of the final Decree of Partition.
6. It is, therefore, submitted that the correction of the measurement is required to be done in Ex.CA and after the calculation of the area it may then be divided equally in three shares. It is further submitted that Patwari may be directed to do the demarcation of the property to reflect the actual areas which would come to the share of the plaintiff and the defendants.
7. Submissions heard.
8. The Suit for Partition, Injunction and Declaration was filed by the plaintiff in respect of Plot bearing No. 262 admeasuring 2681 sq. yards situated at Village Iradat Nagar, Naya Bans, New Delhi-110082 and House bearing No. 214 (new House No. 113-B) admeasuring 667 sq. yards situated at Village Naya Bans, New Delhi-110082 claiming 1/3rd share each. The preliminary Decree was passed on 26th September, 2014 declaring the plaintiff and the defendant No. 1-Raghvinder Mann and the defendant No. 2-Priyavarat Mann (since deceased) and represented through legal heirs to be having 1/3rd share.
9. For the purpose of ascertaining the division of the property by metes and bounds, a Local Commissioner was
Non-compliance with certain instructions regarding demarcation of boundaries, such as recording statements of parties or fixing three Pucca points, will not vitiate the demarcation as a whole.
The main legal point established in the judgment is that boundaries shown in the sale deeds prevail over the measurement, and demarcation reports carry presumptive value of correctness unless rebutte....
The court emphasized the importance of following instructions for demarcation and the power of the court to appoint a fresh Local Commissioner. The court also highlighted the need for evidence to be ....
The first Appellate Court must address all issues and contentions raised by the parties and record findings supported by reasons on all issues and contentions.
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
