JUDGMENT

Prathiba M. Singh, J.

1. The present petition challenges the impugned judgment and order dated 23rd August, 2017, passed by the Ld. ADJ-04 (South East), Saket (hereinafter “Trial Court”) in Civil Suit No. 208039/2016 titled Shir Krishna Kumar Mehra v Shri Roop Lall Mehra by which the application filed by the Respondent No.2/Maj. Prem Kumar Mehta/Defendant No.2 (hereinafter “Defendant No.2”) seeking leave to deposit 1/5th share of the sale proceeds of the Defendant No.1 was dismissed. The said application was duly supported by the Petitioner Sh. Krishna Kumar Mehra/Plaintiff/Petitioner (hereinafter “Plaintiff”) and the Respondent No.3/ Defendant No.3 (hereinafter “Defendant No.3”) & Respondent No.4/ Defendant No.4 (hereinafter “Defendant No.4”). The only contesting party is Defendant No.1/Respondent No.1/Sh. Roop Lall Mehra (hereinafter “Defendant No.1”).

Facts

2. The parties to the present revision petition are four sons and one daughter of Late Shri. Pyare Lall Mehra, who passed away on 1st November, 2008. Late Shri. Pyare Lall Mehra was the absolute owner of property bearing No. J-17, Jangpura Extension, New Delhi, admeasuring 279 sq. yards (hereinafter “suit property”). The suit property has a ground floor, first and half of the second floor constructed. As on date, the possession of the ground floor is with Defendant No.2. Defendant No.1 is in possession of the first floor and his son and his family are living on the second floor. In effect, therefore, the first and second floor are in the possession of and being enjoyed by Defendant No.1.

3. The suit for partition being CS(OS) No.395 of 2009 titled Krishan Kumar Mehra v. Shri Roop Lall Mehra & Ors., was filed by the Petitioner/Plaintiff (hereinafter “Plaintiff”) seeking partition and rendition of accounts in respect of properties belonging to his father including movable and immovable property. In this suit, a preliminary decree was passed on 21st December, 2009, by a ld. Single Judge of this Court in the following terms:

“7. It is settled law that in case of co-owners, possession of one is in law possession of all. In suit for partition, Court fee to be paid if joint possession is pleaded by the plaintiff on the basis that he is co- owner of the property sought to be partitioned, is fixed court fee under Article 17(vi) of schedule II of Court fee Act presuming joint possession of plaintiff even if plaintiff is not in actual possession. The contention of the defendant No., therefore has no force. The plaintiff is entitled for preliminary decree in his favor.

8. Prima facie, I find that the plaintiff is entitled to 1/5th share in the suit property. As far as, immovable suit property is concerned, a preliminary decree of partition is passed. The legal heirs of Late Sh. Pyare Lall Mehra are entitled to equal share in the suit property bearing No. J-17, Jangpura Extension, New Delhi.”

4. The Court had, vide the same order, appointed a Local Commissioner to inspect the suit property and submit a report as to whether the suit property can be partitioned by metes and bounds. However, the Local Commissioner reported that a physical metes and bounds partition would not be possible. Accordingly, the High Court directed that an inter-se bidding be conducted between the parties.

5. In the inter-se bidding, sealed covers were stated to have been placed by the parties before the Local Commissioner and Defendant No.2 offered the highest price of Rs.10,40,00,000/-. Subsequently, an application bearing IA No.700/2012 was filed by Defendant No.2 in CS (OS) 395/2009 seeking permission to file a compromise agreement between Plaintiff and Defendant No.2 to 4, to jointly acquire the suit property from Defendant No.2. In this application, Defendant No.2 sought to satisfy his payment obligation of the bid amount by deposit of only 1/5th share, being the share of Defendant No.1, stating that the other parties being Plaintiff and Defendant Nos.3 to 4 had agreed to not claim their shares in lieu of