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R.F.A. No.429/1985 Page 1 of 15
* HIGH COURT OF DELHI AT NEW DELHI
+ RFA 429/1985 & CM APPL.5880/2010, 7171/2010, 7456/2014
Pronounced on: 10th
May, 2016
RAMESH DUTT SALWAN ..... Appellant
Through: Mr. R.K. Saini, Advocate with Ms. Suman
Salwan & Ms. Minal Sehgal, Advocates.
versus
SHIV DUTT SALWAN ..... Respondent
Through: Mr. Sandeep Sethi, Senior Advocate with
Mr. Vivek Sood, Advocate for R-1.
Mr. Abhinav Vashist, Senior Advocate with
Ms. Renuka Arora & Mr. Kunal Kohli,
Advocates for R-2.
CORAM:
HON’BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J.
1. This is a regular first appeal filed by the appellant Ramesh Dutt
Salwan (since deceased) against the judgment and decree dated
15.07.1985 passed in a suit for partition.
2. It is really very unfortunate that this appeal has remained pending
on the Board of this Court for almost 30 years and has to pass
through hands of as many as 75 Hon’ble Judges or so but still the
solution to the problem of dividing the property (which happens to
be the piece of land measuring approximately 7794.63 square yards
along with superstructure) could not be found out to the
satisfaction of all the parties. In city of Delhi, the prices of land
R.F.A. No.429/1985 Page 2 of 15
have risen beyond the imagination. As a matter of fact, the prices
have become prohibitive to own the house, plot or flat. As a
necessary consequence of this, wherever there is a dispute between
the co-sharers of a property, effort of one party is to bring the other
party to its knees by tiring out its resources and patience so that it
becomes almost a distress sale by such a party to the other co-
sharer.
3. During the course of hearing the submission which has been
advanced on behalf of respondent No.1 as well as respondent No.2
are of such a nature that in case those submissions are accepted
then instead of leading to the final disposal of the appeal and bring
about a closure to the matter, it would result in keeping the matter
alive at least for another five to ten years which, in my view, would
not only be unfair to the parties, who have been stuck up in courts
for three decades but also the fact that such an order only adds to
the pendency of the case when it is already reeling under the
burden of back log of cases.
4. Before dealing with the submissions of the respective sides, the
facts of the case are that a suit for partition bearing No.90/1984
was filed by Shiv Dutt Salwan, respondent No.1/plaintiff against
his brother Ramesh Dutt Salwan, appellant/defendant (since
deceased) and mother Smt. Kaushalya Devi (since deceased),
respondent No.2, Rita Salwan widow and Chetan Salwan son of
Late Shri Naresh Dutt Salwan, respondent No.3 and 4 respectively.
The partition was sought of a plot of land bearing No.104, Block
R.F.A. No.429/1985 Page 3 of 15
No.B, Rewari Line, Industrial area, Phase-I, Maya Puri, New Delhi
area measuring 7794.63 square yards.
5. The parties in the instant appeal would be referred by their names
or the status in the present appeal.
6. On the basis of the submissions of the parties, a preliminary decree
dated 24.04.1981 was passed by the learned trial court holding that
Shiv Dutt Salwan, respondent No.1/plaintiff, Ramesh Dutt Salwan,
the appellant/defendant No.1 were entitled to one-third share each
leaving balance one-third to be shared by respondent Nos.2 to
4/defendants No.2 to 4, namely, Smt. Kaushalya Devi, Rita Salwan
and Master Chetan. It may also be pertinent here to mention that as
on date Smt. Kaushalya Devi and Master Chetan are stated to be no
more and only Smt. Rita Salwan, the widow of Naresh Dutt Salwan
survives. Simultaneously Ramesh Dutt Salwan has also died and
his widow Urmil Salwan and two daughters have not been brought
on record. In fact, in the year 2013, Shiv Dutt Salwan filed an
application for abatement of the appeal on account of death of
Ramesh Dutt Salwan because no steps are taken for bringing on
record his legal heirs. The said application was not pressed by
Shiv Dutt Salwan vide order dated 29.7.2013 and was dismissed.
In any case, in a suit for partition, each defendant/respondent is a
plaintiff. Therefore, irrespective of the fact whether any
application is filed or not, the proceedings do not abate and the
partition by metes and bounds has to be effected. In the present
case, Mr. Saini has been appearing for Urmil Salwan and making
submissions for partition by metes and bounds.
R.F.A. No.429/1985 Page 4 of 15
7. The learned trial Court after passing of the preliminary decree
proceeded ahead to pass a final decree and for that purpose
appointed one Mr. V.K. Goel, Architect as the Local
Commissioner to inspect the property and give a report as to how
the property could be divided by metes and bounds in the
proportion in which they had the share. The Local Commissioner
submitted his report on 25.10.1982 along with site plan and the
rough note stating that the property was partitionable in as much as
super-structures which were existing on the suit land were to be
shared in the delineated portions by each one of them while as the
open land be left for the common use and is impartable.
8. Objections were filed on behalf of Rita Salwan as well as by
Ramesh Dutt Salwan (since deceased), the present appellant and
since no consensus could be arrived, the parties had agreed to
partition the parcel of land as suggested by them by apportioning
the super-structure and the open land adjacent to the land being
kept common. Having done so, the present appellant Ramesh Dutt
Salwan (since deceased) filed the present appeal stating that
although the Court apportioned the built up portion in the
proportion of one-third each to the three co-sharers but the land has
not been divided and, therefore, he feels aggrieved and preferred
the appeal.
9. The present appellant has accordingly challenged the judgment and
the decree passed on 15.07.1985 by Shri B.N. Chaturvedi, the then
Additional District Judge (as His Lordship then was) by virtue of
which certain specified portions which were earmarked as super-
R.F.A. No.429/1985 Page 5 of 15
structures to be shared amongst the plaintiff Shiv Dutt Salwan,
Ramesh Dutt Salwan and the other beneficiaries. So far as the land
was concerned, it was stated to be common.
10. As on date, on the one hand is Shiv Dutt Salwan and on the other
hand, are two widows of his brother. It may also be pertinent here
to mention that Shiv Dutt Salwan is stated to have purchased the
1/3rd
share of Rita Salwan, widow of Naresh Dutt Salwan, who is
respondent No.2 in the appeal. This fact has not been disputed by
Mr. Sethi, the learned senior counsel though she has also set up her
own counsel Mr. Abhinav Vashisht, the learned senior counsel.
Thus in effect Shiv Dutt Salwan is in effect owner of 2/3rd
interest
in the property.
11. The appellants grievance against the judgment and decree is that
the complete partition of the suit property has not been done
inasmuch as only the super-structure has been divided in the
proportion of one-third each which is in the respective possession
of the parties while as the open land has not been divided and thus
this is not a complete adjudication of a suit for partition because of
which he feels aggrieved. The learned counsel Mr. Saini has
contended that widow of the appellant has two daughters to
maintain, who have no independent source of income. Therefore,
she is not averse to her rights being purchased by Shiv Dutt Salwan
at a market price or the entire property being sold, she be given her
share of 1/3rd
proceeds.
12. During the pendency of the appeal vide order dated 5.4.2000, the
court had appointed a Commissioner, Mr. D.P. Bhatia, Assistant
R.F.A. No.429/1985 Page 6 of 15
Engineer II (Civil), PWD Division XII, New Delhi and vide order
dated 17.11.2015, with the consent of the parties, Mr. Vijay Gupta,
Architect was appointed in order to explore the possibility of
amicable settlement so far as the suit property is concerned. It has
come on record that on both these occasions, the learned Local
Commissioner has given a report that the property can be
partitioned by permitting the parties to share the super-structure
only while as leaving the rest of the land as a common area which
would satisfy the requirement of each of the three persons.
13. This proposal was not acceptable by Mr. Saini, the learned counsel
for the appellant as dividing the property by metes and bounds. He
contended that so far as Shiv Dutt Salwan is concerned, he is
purported to have purchased one-third share of Rita Salwan and
thus effectively holds two-third share. It was alleged by him that
Rita Salwan had sold her share at the throw away price only
because of the fact that she wanted to have a closure of the matter.
It has been contended by Mr. Saini that even the widow of the
deceased appellant wants to walk out to the property once for all
and she is not interested the matter being referred to the architect,
Vijay Gupta once again in order to explore the possibility of
partition of the super structure by metes and bound and user of the
land for common facilities and access to different portions. She
stated that she has to maintain two daughters who have no
independent source of income. Since no common ground could be
found, therefore, I heard the arguments of both the sides carefully
and considered their respective submissions.
R.F.A. No.429/1985 Page 7 of 15
14. Mr. Sethi, the learned senior counsel representing respondent No.1,
Shiv Dutt Salwan has contended that the legal heirs of the appellant
are trying to force to sale of the property which is to the detriment
of Shiv Dutt Salwan, who is stated to be having his manufacturing
unit of furniture at the plot of land in question.
15. Mr. Saini had even agreed that so far as Shiv Dutt Salwan is
concerned having become owner of two-third of the suit property
he can exercise the right of pre-emptive purchase with regard to
remaining one-third share of the appellant will not have any
objection but this right has to be exercised keeping in view the
market value of the property and not on the basis of the value fixed
by the other co-sharer.
16. On the other hand Mr. Sethi, the learned senior counsel took the
plea that Shiv Dutt Salwan does not have sufficient finance or
resources available to him to purchase one-third share of the
appellant and therefore alternatively prays in the instant case to
partition the super-structure and permit the user of the land as
common areas and then if any of the parties wants to sell their
share in the suit property, he or she may do so. Though this was
not acceptable to the appellant. An effort to find out as to how the
plot of land could be divided, this Court even issued a notice to the
standing counsel for the DDA in order to explore the possibility as
to whether the plot of land which was approximately 8000 square
yards could be sub-divided into three equal parcels of land with
separate numbers so as to be owned by three persons with different
numbers.
R.F.A. No.429/1985 Page 8 of 15
17. Mr. Verma, the learned senior standing counsel for the DDA was
given a copy of the order passed by this Court as well as papers of
the present case. It was indicated to him that the property in the
present case was a lease hold property and the plan, etc. in order to
get instructions from the DDA.
18. Mr. Verma, made a categorical statement on 02.05.2016 before this
Court that the property could not be sub-divided into three parcels
of land as there was a complete embargo in terms and conditions of
the perpetual lease. Accordingly on the basis of the statement of
Mr. Verma, this court dropped the idea of exploring the possibility
of any settlement being arrived at amicably for the purpose of
sharing the built up as well as common land amongst themselves.
19. Mr. Saini has assailed the judgment and the decree passed in the
suit mainly on the ground that the land in question having not been
divided by the trial court, does not dispose of the partition suit
fully. It has been stated that it has been recorded in the order that
the parties had agreed that they would apportion the super-structure
and not the land which will be left as a common. The learned
counsel contended even if the party had consented, the learned trial
court ought to have divided the land also so as to have a complete
adjudication. A final decree can be drawn in a partition suit only
when there is a complete adjudication and the partition of the suit
property by metes and bounds.
20. It was contended by Mr. Saini that this judgment cannot be
construed as a compromise decree because any compromise decree
can be only passed under Order 23 Rule 3 CPC where certain
R.F.A. No.429/1985 Page 9 of 15
procedure and pre-requisites have to be complied with.
Accordingly, he prayed for setting aside the judgment and the
decree and directing the sale of the property.
21. Mr. Sethi and Mr. Vashisht, the learned senior counsel appearing
for Shiv Dutt Salwan and Rita Salwan respectively have
vehemently opposed the submissions made by Mr. Saini.
22. Mr. Sethi contended that the appeal itself was not maintainable as it
was passed with consent of the deceased/respondent No.1 who is
the appellant in the instant case, namely, Ramesh Dutt Salwan.
Reference in this regard was drawn to Section 96 (3) which
prohibited an appeal to be filed against a consent decree.
23. I do not agree with the contention of Mr. Sethi or Mr. Vashisht that
the decree in question in the instant case can be treated as a decree
based on consent.
24. A consent decree is one which is passed by the Court in exercise of
powers under Order 23 Rule 3 CPC when an application in this
regard is filed indicating the consent and the terms of settlement
between the parties duly supported by the Affidavit of all the
parties. This emerges from the judgments of the Supreme Court.
Reliance in this regard is placed on Daljeet Kaur & Anr. vs.
Muktar Steel Private Limited and Ors.; (2013) 16 SCC 607 and
Kisu @ Ram Kishu (dead) through LRS vs. Bihari (dead) by LRs,
(2005) 6 SCC 300.
25. The judgment which has been cited by Mr. Sethi in Pushpa Devi
Bhagat (D) Thru. LR. Smt. Sadhna Rai vs. Rajinder Singh & Ors.;
R.F.A. No.429/1985 Page 10 of 15
JT 2006 (6) SC 235 that consent decree cannot be appealed against
is the correct law but the same is not applicable to the facts of the
present case for the simple reason that the consent decree which is
not appealable would be one which has complied with the
provision of Order 23 Rule 3 CPC. According to the said order,
compromise must be in writing and the application to that effect
must be supported by the affidavit of both the parties. Therefore, I
hold that the decree which was passed by the learned ADJ dividing
only the superstructure and not the land on the assumption that
there was a consent recorded of all the parties to that effect in the
impugned order is of no consequence and accordingly, to that
extent, the judgment and the decree deserves to be set aside.
26. Now, the question would arise that in case the suit property in
respect of which shares have been ascertained and it has come on
record that the property cannot be divided by metes and bounds,
the only question which would arise for consideration is as to
whether the property deserves to be auctioned for the purpose of
effecting the partition by metes and bounds. In this regard, Mr.
Sethi has relied upon the judgment of the single judge of this court
in case titled Faquira vs. Raj Rani & Anr.; AIR 1984 Delhi 168
wherein while interpreting Section 2 of the Partition Act, 1893, the
court has observed that auction cannot be ordered unless and until
one of the party asks it to be so. Further, the court has also
observed that such of the party, who is asking for auction of the
suit property, must have 50 per cent or more share in the suit
property. Before dealing with the submissions of Mr. Sethi in this
R.F.A. No.429/1985 Page 11 of 15
regard, it is pertinent here to reproduce exact language of Section 2
and 3 of the Partition Act, 1893 :-
“2. Power of Court to order sale instead of division
in partition suits
Whenever in any suit for partition in which, if
instituted prior to the commencement of this Act, a
decree for partition might have been made, it appears
to the Court that, by reason of the nature of the
property to which the suit relates, or of the number of
the shareholders therein, or of any other special
circumstance, a division of the property cannot
reasonably or conveniently be made, and that a sale
of the property and distribution of the proceeds would
be more beneficial for all the shareholders, the Court
may, if it thinks fit, on the request of any of such
shareholders interested individually or collectively to
the extent of one moiety or upwards, direct a sale of
the property and a distribution of the proceeds.
xxxxxxxxxxxxxx
3. Procedure when sharer undertakes to buy
(1) If, in any case in which the Court is requested
under the last foregoing section to direct a sale, any
other shareholder applies for leave to buy at a
valuation the share or shares of the party or parties
asking for sale, the Court shall order a valuation of
the share or shares in such manner as it may think fit
and offer to sell the same to such shareholder at the
price so ascertained, and may give all necessary and
proper directions in that behalf.
(2) If two or more shareholders severally apply for
leave to buy as provided in sub-section (1), the Court
shall order a sale of the share or shares to the
R.F.A. No.429/1985 Page 12 of 15
shareholder who offers to pay the highest price above
the valuation made by the Court.
(3) If no such shareholder is willing to buy such share
or shares at the price so ascertained, the applicant or
applicants shall be liable to pay all costs of or
incident to the application or applications.”
27. A perusal of the aforesaid section would clearly show that the court
can order sale of the property if it is convinced that the division of
the property reasonably and conveniently cannot be effected by
metes and bounds. In the present case, the court is of the view that
partition of the suit property cannot be reasonably and conveniently
affected then the court has no other option but to order sale of the
property. In the present case, the partition by metes and bounds
could not be affected for the last 30 years. Therefore, the only
alternative is to order sale. This fact gets amply corroborated by
the fact that the matter has remained pending.
28. Mr. Sethi, the learned counsel has relied upon the judgment of
Faquira (supra) to contend that the court could not order the sale
of the property. I have gone through the said judgment. The facts
of Faquira’s case (supra) were totally different than the facts of the
present case. That was a case where the court of its own, without
there being any request either from any of the co-sharers, had
ordered for partition of the suit property while as in the present
case, there is an oral request by the legal heirs of the appellant that
the matter has been pending in court for the last nearly three
decades and the partition of the suit property by metes and bounds
could not be affected. It has also been stated by them that they are
R.F.A. No.429/1985 Page 13 of 15
not averse to sell their share either to respondent No.1, who has the
remaining 2/3rd
share in the suit property or to auction the entire
property and then share the sale proceeds in the proportion of their
respective shares.
29. It is in this background that the court has been constrained to pass
the order accepting the contention of the learned counsel for the
appellant that the property cannot be divided by metes and bounds
especially in view of the statement made by the standing counsel
for the DDA. Therefore, the only alternative left is to direct the
sale of the property. So far as the sale of the property is concerned,
the court is cognizant of the fact that respondent No.1 is doing his
manufacturing activity of furniture and is not interested in selling
his share. He has also purchased the remaining 1/3rd
share
belonging to the widow of his brother. Effectively thus, he has
2/3rd
share of the suit property. The court is not averse in case Shiv
Dutt Salwan purchases 1/3rd
share of the appellant also and as a
matter of fact, this offer was made by Mr. Saini himself; however,
the former expressed his inability to do so on account of certain
financial constraint. The proposal which had been given by Mr.
Sethi, the learned senior counsel that with the agreement, the
matter could be sent back to the same architect who could examine
the matter afresh and give his report for the purpose of sharing the
increased FAR. I am very clear in my mind that it cannot be a
solution so as to divide the property by utilizing the increased
FAR. At the outset, it is stated that this proposal was not
acceptable to the appellant. Accordingly, the only method of
R.F.A. No.429/1985 Page 14 of 15
dividing of property by metes and bounds is to sell the suit
property and share the sale proceeds.
30. In the light of this background, the court is left with no other
alternative but to appoint a Local Commissioner for the purpose of
inviting bids from members of the general public for the sale of the
suit property. The bids will have to be entertained by sealed cover
and should be accompanied with earnest money in order to exclude
the possibility of non-serious players bidding for the property. All
the terms and conditions can be set down by the learned
Commissioner himself. The learned Commissioner shall also take
into consideration the suggestion given by any of the parties. The
bidders cans also bid inter se; however, this bidding process shall
be subject to the condition that the highest bidder will be required
to deposit 25 per cent of the bid amount with the learned
Commissioner at the fall of the hammer and even at that stage, if
respondent No.1 wants to exercise his pre-emptive right of
purchase of 1/3rd
share of the appellant, I feel that in the interest of
justice, he deserves to be given another opportunity to purchase.
Meaning thereby that after receiving the highest bid if respondent
No.1 wants to purchase 1/3rd
share in the light of the highest bid
amount from the appellant is by giving a token money that he is
permitted and necessary permission of the court at that stage will
be obtained from the court giving the details by the Local
Commissioner. This entire process must be completed within a
period of four months from today.
R.F.A. No.429/1985 Page 15 of 15
31. Having regard to the aforesaid facts, I feel that a senior advocate
deserves to be appointed as Court Commissioner for the purpose of
conducting an open, transparent and a fair sale of the suit property
by inviting bids. Further, the Commissioner shall be assisted by
another junior advocate in completing the entire process.
Accordingly, I appoint Ms. Meenakshi Arora, the learned senior
counsel (Mobile No.9811034485) as the Court Commissioner and
Ms. Natasha, Advocate (Mobile No.8800900377) to assist her in
the entire process. The learned Commissioner shall be paid
tentatively a fees of Rs.3 lacs and the learned assistant shall be paid
a fees of Rs.1 lac to be shared by the parties in the proportion of
their respective shares. This shall be in addition to the expenses
incurred by the learned Commissioner. In the event of the fees not
being paid, necessary further orders shall be obtained from the
court to proceed further in the matter.
32. List for directions on 29th September, 2016.
V.K. SHALI, J.
MAY 10, 2016
vk/’AA'