$~37 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of decision: 23rd August, 2024 + CS(OS) 670/2023, I.A. 20878/2023 & I.A. 20879/2023 YASHPAL ANAND .....Plaintiff Through: Rajat Srivastava, Advocate.

versus RAJENDRA PRATAP SINGH .....Defendant Through: None %

CORAM:

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

J U D G M E N T

MANMEET PRITAM SINGH ARORA, J (ORAL)

1. The present suit has been filed seeking partition by metes and bounds of the property bearing no. A-20, 2^nd floor, Northern Side, Naraina Vihar, New Delhi-28, measuring 398.275 Sq. yards (‘suit property’) in favour of the plaintiff and against the defendant herein. It needs to be clarified that the partition is sought with respect to the constructed 2^nd floor flat.

2. It is stated that initially the plaintiff and his brother Sh. Pushp Anand were joint owners of the freehold residential property bearing No. 20, Block- A, measuring 796.55 Sq. yards situated at Naraina Vihar, New Delhi qua conveyance deed dated 06.04.2000. It is stated that the said property was partitioned between the brothers vide registered partition deed dated 25.06.2004. The partition was effected by metes and bounds with respect to Signature Not Verified Digitally Signed CS(OS) 670/2023 Page 1 of 11 the land and the superstructure standing thereon.

2.1. It is stated that in the pursuance to said partition, plaintiff became the owner of the [old constructed] ground floor, first floor, second floor with entire terrace over second floor, falling on the Northern Side part of the said property, on the plot of land admeasuring 398.275 Sq. yards (‘Northern side plot’).

2.2. It is stated that this Northern side plot was re-constructed by the plaintiff and a new residential building was constructed comprising of basement, stilt, ground floor, first floor, second floor, third floor with a terrace.

3. It is stated that the plaintiff agreed to sell the 2^nd floor flat in the newly constructed building to the defendant herein albeit 39.275 sq. yds. only. It is stated the plaintiff vide registered sale deed dated 09.07.2019, sold 39.275 sq. yds. of the 2^nd floor flat to the defendant for a sale consideration of Rs. 2.37 Crores. It is stated, however, that the actual physical possession of the 2^nd floor flat was not handed over to the defendant, as it was agreed between the parties that it will be handed over after carrying out partition by metes and bounds of the 2^nd floor flat.

4. Learned counsel for the plaintiff states that consequent to the said sale deed dated 09.07.2019, though the plaintiff and the defendant became joint owners of the 2^nd floor flat; the plaintiff is the owner to the extent of 359 Sq. yards and defendant is the owner to the extent of 39.275 Sq. yards of the 2^nd floor flat constructed on the Northern side plot. He states that the present suit has been filed for partition of the 2^nd floor flat.

4.1. He states that the defendant’s ownership share in the 2^nd floor flat has been mortgaged by the defendant in favour of TATA Capital Housing Signature Not Verified Digitally Signed CS(OS) 670/2023 Page 2 of 11 Finance Ltd. (‘TATA Capital’), and since the defendant defaulted in repayment of the loan money, TATA Capital initiated proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (SARFAESI Act) against the defendant. He states that a Possession Notice dated 19.09.2023 under Section 13(4) of the SARFAESI Act was pasted on the suit property by the Court Receiver for taking possession of the suit property, wherein incorrectly the entire area of

398.275 was mentioned.

4.2. He states that it is the grievance of the plaintiff that since the defendant mortgaged only his portion of 2^nd floor flat purchased vide sale deed dated 09.07.2019 admeasuring 39.275 sq. yards, therefore, TATA Capital can initiate enforcement proceedings against portion of the property owned by the defendant only and accordingly, TATA Capital cannot take possession of the prop