Full Judgment
M.K. Sharma, J.
1. The present suit was instituted by the plaintiffs against the defendants seeking for declaration and partition in respect of the property bearing No. 313, Faiz Road, Gali Nos. 10 and 11, Karol Bagh, New Delhi. The plaintiffs also prayed for a declaration that the Agreement to Sale dated 15.1.1973, 18.12.1974 and 6.12.1978 pertaining to the aforesaid suit property are not legal and valid and not binding upon the plaintiffs.
2. On the admission of the plaintiffs and the defendants No. 1 and 5, this Court by order dated 8.3.1996 passed a preliminary decree in the suit declaring the share of the plaintiffs and the defendant No. 1 in the, suit property as half share and the share of the defendant No. 5 in the light of the judgment in the case of Sardar Singh v. Smt. Krishna Devi and Anr. reported in Vol. 54 (1994) DLT 500 as the remaining half in the suit property.
3. By a further order, the Court appointed Mr. V.K. Seth, Advocate, as a Local Commissioner to report as to whether the suit property could be partitioned/divided by metes and bounds between defendant No. 5 and defendant No. 1 (with plaintiffs) as per the share determined above. It was made clear that the aforesaid preliminary decree with regard to shares of defendants Nos. 1 and 5 as ordered would not effect the right of the defendant No. 1 and 6 in any manner either in the execution proceedings initiated by the defendant No. 6 which was pending before the Executing Court or in the present suit. It may be stated that the defendant No. 6 has been declared as the owner in respect of the share owned by the defendant No. 1 in the suit property and obtained a decree which is pending for execution.
4. The Local Commissioner heard the parties, inspected the suit property and considered the documents filed by the parties. Thereafter, the Local Commissioner submitted his report to this Court on 5.8.1996. In the said report, the Local Commissioner has opined that the property could be divided by metes and bounds and the parties could mutually agree for the portion which they want to have or in case of differences, the respective portions could be decided by draw of lot.
5. As against the aforesaid report filed by the Local Commissioner, the plaintiffs filed an objection, contending inter alia, that the Local Commissioner has erred in holding that the property could be divided by metes and bounds. In the objection filed by the plaintiffs, the ground for which the property could not be divided by metes and bounds have been set out.
6. I have heard the learned counsel appearing for the plaintiffs as also the counsel appearing for defendant Nos. 5 and 6.
7. The first contention raised by the counsel for the plaintiffs that the property is not divisible by metes and bounds cannot be accepted in view of the specific observations of the Supreme Court in the Case of Sardar Singh v. Smt. Krishna Devi and Anr. reported : [1994]3SCR717 . The Supreme Court in the aforesaid case has specifically held that the present suit property is divisible and could be divided. In that view of the matter, the first objection of the plaintiffs stands rejected.
8. The next submission of the learned counsel for the plaintiffs is that the terms of the lease specifically prohibits division of property and as such the property could not be divided by metes and bounds. In this connection, the counsel drew my attention to the provisions of Clause 4(d) of the Lease Deed wherein, it has been stipulated that there could be no sub-division of the land. However, it is to be noted that the suit property consists of not only land but also the superstructure standing thereon. Accordingly, even if it is held that the land beneath the superstructure may not be divisible, there is no bar under any law to make any division with regard to the superstructure standing on the land. In this connection, reference may also be made to the decision of this Court in Chiranjilal & Anr. v. Bhagwan Dass & Ors. reported in 1991(3) D L 350, wherein it has been held that superstructure standing on a land could be divided. thereforee, this objection also has not merit and is accordingly rejected.
The further objection of the learned counsel for the plaintiffs is that the propertyas suggested by the Local Commissioner cannot be divided since the same would leadto violation of the statutory rules of the Municipal Corporation of Delhi. The divisionof the property, if done, as suggested by the Local Commissioner, it is argued, wouldreduce the area of the rooms below the minimum provided for under the MunicipalBye- laws.
9. I have been taken through the provisions of the Municipal Bye-laws and on perusal thereof, I find that there is no merit in the objection raised by the plaintiffs on this count also. In my considered opinion which is agreed to by the counsel for the plaintiffs during the course of arguments, if the property is divided vertically and a partition wall erected, the same also would not, in any case, reduce the area below the standard provided under the building bye-laws of the Municipal Corporation of Delhi. Accordingly, this objection is also over-ruled.
10. The next submission of the learned counsel for the plaintiffs was that there could be no division as the said division does not contemplate any division of water meter and electricity meter. I do not find any reason to uphold the said objection as separate water meter and electricity meter could be applied for and obtained, if the necessity for the same arises.
11. The further submission is that the proposed division will necessitate construction of dividing wall which will not be permissible without sanction from the L.& D.O. and Municipal Corporation of Delhi as per clause 4 and 5 of the lease agreement and if such a dividing wall is allowed to be erected, the same would damage the roof of the property substantially entailing substantial repairs. In this connection, reference may be made to bye-laws 6.4.1.(j) of the Municipal Bye-laws which states that partition walls could be erected for dividing rooms and for that purpose, no permission from the Municipal Corporation of Delhi is necessary. In the light of the provisions of bye-laws 6.4.1.(j), this objection has no merit and accordingly, rejected. The allegation that the dividing wall would damage the roof of the property is also without any merit as instead of damaging the roof, it would lend an extra support to the roof.
12. All the objections raised by the plaintiffs are thereforee, found to be without any merit and the same are rejected. The defendant No. 6 who has obtained a decree as against the defendant No. 1, and execution proceeding in respect of the said decree is pending in the Court. During the course of arguments before me and also before the Executing Court, the defendant No.6 has opted for 'A' portion of the suit property. The two portions namely 'A' and' B' portions of the suit property is marked in the map, which is on record. I find that both the portions namely, 'A' and 'B' as shown in the map have separate entry points and, thereforee, I do no see any difficulty in dividing the suit property vertically and thereby creating two portions as 'A' and 'B' as shown in the map.
13. In the result, a final decree in the suit is passed between the plaintiffs and the defendant No. 1 on the one hand and the defendant No. 5 on the other hand. The defendant No. 5 is declared to be the owner of 'B' portion of the suit property and he shall be entitled to receive vacant physical possession of the said part of the suit property. The suit stands decreed to that extent confirming the preliminary decree passed by this Court on agreement reached between the plaintiff, the defendant No. 1 and defendant No. 5. Map showing the aforesaid division of the property into 'A' and 'B' portions shall also form part of the decree. It is, however, made clear that this order in any manner does not decide the dispute/suit/execution case pending between the plaintiff, defendant No.1 and defendant No.6. Any observation made herein would not be interpreted as any observation in respect of the dispute amongst the plaintiff, the defen3ant No.1 and the defendant No.6. Let a decree be drawn up in terms of the present Judgment and order.