CS(OS)No. 1254/2009

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THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Pronounced on: 25.04.2011

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CS(OS) 1254/2009

SH. JAGMOHAN NATH KAPOOR ..…Plaintiff

- versus -

SH. MANMOHAN NATH KAPOOR

.....Defendant

Advocates who appeared in this case:

For the Plaintiff:

Mr. Anupam Srivastava with Mr.

Manish Srivastava, Advs.

For the Defendant:

Mr. Vijay Gupta, Ms. Geeta Goel

and Mr. Jaladhar Das, Advs.

CORAM:-

HON’BLE MR JUSTICE V.K. JAIN

1.Whether Reporters of local papers may

be allowed to see the judgment?

No

2.To be referred to the Reporter or not?

No

3.Whether the judgment should be reported

No

in Digest?

V.K. JAIN, J. (ORAL)

I.A. No. 902/2011

1.

This is an application filed by the plaintiff under

Sections 2 and 3 of the Partition Act seeking to purchase

the share of the defendant in the suit property for a

consideration of Rs. 2 crores.

2011:DHC:2263

CS(OS)No. 1254/2009

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2.

Vide order dated 21^st January, 2011, this court

passed a preliminary decree for partition of the suit property

i.e. property no. F-11, Lajpat Nagar-III, New Delhi

admeasuring 200 square yards and comprising of ground

floor, first floor and second floor. The plaintiff has one half

share in the suit property whereas the remaining half share

is owned by the defendant. Shri Jayant K. Mehta, Advocate

was appointed as local commissioner to suggest ways and

means by which the partition could be effected. The local

commissioner could also take the assistance of an architect

if found necessary in the circumstances of the case.

3.

The local commissioner has accordingly submitted

his report dated 26^th April, 2010. The local commissioner

also availed the services of an architect Mr. Siddharth

Chaturvedi. The architect in his letter dated 12^th April,

2010 to Mr. Jayant K. Mehta stated that keeping in view the

existing built structure on the property, design and the

current building norms, it may not be possible to exactly

divide the property into two halves. He therefore suggested

the following modes of partition:-

“1) Division of the two floors:

The ground and first floor could be divided

between the claimants. The terrace rights could

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CS(OS)No. 1254/2009

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be given to one while the other party could be

suitably compensated. Both parties will have the

right to passage and use of the stairway and

circulation area.

2) Physical Division:

The terrace could be divided into two parts

keeping in mind the right to passage and a buffer

3 feet corridor for circulation as shown in

diagram (A).

As the floor area at ground level would be more

than the first floor, the front part of the terrace

with the Barsati, could be given to the claimant

getting the first floor. The rear terrace could be

given to the owner of the ground floor.

Subsequent sale of terrace though could be

difficult in future.

3) Design Division:

Division of property will take place by changing

the design of the existing structure and would

require civil work. Ground to be given to

claimant-1 and terrace to be given to claimant-2.

The first floor would be divided equally into two

halves with the front and the circulation area

going to claimant-2 while the rear half to

claimant-1. An additional staircase could be

constructed in the rear courtyard combining

ground and first floor for claimant-1 as shown in

diagram (BI) and (CI).”

4.

The local commissioner after considering the report of

the architect noted that the second mode of partition

suggested by him required division of terrace between the two

parties but the access to the terrace was only from one

staircase which leads to the first floor and then to the terrace.

This mode, according to him, would require a three feet