SAJAN SETHI versus RAJAN SETHI on 2 March 2020

Conclusion

1. Leave granted.

2. These civil appeals are filed by the defendant in the Suit,aggrieved by the judgment and decree dated 18.02.2019 passed by theHigh Court of Delhi in R.F.A.No.641 of 2018, arising out of a partitionGsuit with respect to the property bearing No.D-1090, New Friends Colony,New Delhi, constructed in a plot area of 292 sq. yards. The reviewpetition filed by the appellant also ended in dismissal, as such, these arethe two appeals, one against the judgment and decree dated 18.02.2019and other appeal against an order dismissing the review petition videHorder dated 15.04.2019. The house property bearing No.D-1090, situated in New Friends Colony, New Delhi, constructed in a plot area of292 sq.yards, was originally owned by the father of the parties, lateSh. S. L. Sethi. On his demise, the suit property was devolved upon hiswife Smt. Krishna Sethi, who is the mother of the parties herein, pursuantto a Will executed by their father. Subsequently, the mother also passedaway by executing a Will dated 27.01.2005. As per the Will dated27.01.2005, the ground floor portion is bequeathed to the respondent-plaintiff, the first-floor portion was bequeathed to the appellant-defendantand the second-floor portion was to be divided equally between the parties,with the front-half portion to the share of appellant-defendant and theback-half portion to the share of respondent-plaintiff. The relevant portionof the Will executed by the mother, reads as under:-

“a) House No.D-1090, New Friends Colony, New Delhi shalldevolve upon my both sons Shri Rajan Sethi & Shri Sajan Sethi inthe following manner:

- Ground Floor shall fall to the exclusive share of my elder sonSh. Rajan Sethi, first floor shall fall to the exclusive share of myson Sh. Sajan Sethi. Top floor shall be divided by my children inequal share. The front half portion shall go to the exclusive shareof my son Sh. Sajan Sethi and half back portion shall go to theexclusive share of my elder son Sh. Rajan Sethi. The boosterpump/motor installed at ground floor shall be used by both thechildren without any interference/obstruction by any of them inany manner what so ever. My both sons shall not sell their sharein the property to an outsider without concurrence of each otherand shall first offer to the other before taking any step in thatregard.”

3. The respondent-plaintiff i.e. Sh. Rajan Sethi filed a suit in CISNo.11193 of 2016 on the file of Additional District Judge, South-East,Saket Courts, New Delhi, for partition and permanent injunction of thesecond floor and the terrace rights. As per the preliminary decree passedby the Trial Court share of the respondent-plaintiff and defendant wasdecided in the ratio of 50% each. Though, the suit was for partition ofthe second floor and terrace rights, it is the appellant-defendant, who inthe written statement, raised a dispute in respect of common areas inthe ground floor also. The appellant-defendant, however, has not filedany counter claim in the suit. In view of the claim set up by the appellant-defendant in respect of the common areas, the following issues wereframed in the suit for trial:

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A“i) Whether the second floor and the terrace above of propertyNo.D-1090, New Friends Colony, New Delhi was partitioned andif not, whether the Plaintiff is entitled to partition of the same bymetes and bounds? OPP

ii) Whether the common areas in the suit property are liable to beBpartitioned in terms of paragraph no.14 of the written statement?OPD

iii) Relief”

4. The Trial Court by considering the pleadings and evidence onrecord, has negatived the claim of the appellant-defendant for the commonCareas, as claimed in para 14 of the written statement. On the claim ofthe respondent-plaintiff for partition of second floor and terrace rights,by accepting objections of the respondent-plaintiff to the Report of theCourt Commissioner, the Trial Court held that the second floor and theterrace rights cannot be partitioned by metes and bounds and, thus, finalDdecree of partition was passed, granting equal share of 50% each in thesecond floor and the terrace rights. The Trial Court also ordered to putup the said property for sale by auction, and distribute the sale proceedsin equal share.

5. Aggrieved by the judgment and decree dated 20.04.2018 passedEin CIS No.11193 of 2016, the appellant-defendant has filed first appealin R.F.A.No.641 of 2018 before the High Court of Delhi at New Delhi.The Regular First Appeal filed by the appellant-defendant is disposed ofby the impugned judgment by the High Court of Delhi, by setting asidethe judgment of the Trial Court, to the extent of directions for sale ofsecond floor and terrace rights and issued further directions in respectFof the common areas. The directions issued by the High Court read asunder:- “(i) The appellant/defendant will not have a right to use the smalldriveway on the ground-floor of the property.

(ii) The appellant/defendant will however have easementary rightGto use the water pipes and booster pump at the rear courtyard,which are the water pipes and booster pump, and which feed thefirst-floor and second-floor of the suit property falling to the shareof the appellant-defendant.

(iii) The respondent/plaintiff will use a part of the landing of theHstaircase on the second-floor which adjoins the back portion of

the second-floor of the suit property so that a door can beconstructed on this second-floor landing which opens directly tothe back portion of the second-floor of the suit property falling tothe share of the respondent-plaintiff.

15. The appeal is accordingly disposed of in terms of the aforesaiddirections, leaving the parties to bear their own costs.”

6. We have heard Sri Vikas Singh, learned senior counsel appearingfor the appellant-defendant and Sri P.S. Patwalia, learned senior counselappearing for the respondent-plaintiff.

7. Mainly, it is contended by Sri Vikas Singh, learned senior counselfor the appellant-defendant, that the Trial Court and the First AppellateCourt committed an error in deciding the rights of parties in respect ofthe common areas in the ground floor, when the suit itself was filed,confined to the partition of second floor and terrace rights. It is furthercontended that in any event, as the entire property is divided betweenthe respondent-plaintiff and appellant-defendant in equal share, theappellant-defendant is also entitled for 50% of the common areas in theground floor.

8. On the other hand, Sri P.S. Patwalia, learned senior counselappearing for the respondent, has submitted that it was the appellant-defendant, who in the written statement had raised a dispute in respectof common areas, as such the Trial Court has framed the issue on thecommon areas and decided the same. It is submitted that in view of thelimited rights granted for maintenance of the booster pump/motor installedin the ground floor, no other right is conferred on the appellant-defendantin the common areas in the ground floor. It is further submitted thathaving regard to pleadings and evidence on record, the Trial Court aswell as the Appellate Court, have rightly decided the claim of the appellant-defendant in respect of the common areas also and there are no groundsto interfere with the same.

9. It is true that the suit filed by the respondent-plaintiff is only forpartition and permanent injunction with regard to second floor portion ofthe house and the terrace rights, but it is the appellant-defendant whohas raised the dispute with regard to common areas in the suit propertyin terms of paragraph 14 of the written statement. The parties are claimingrights to the property pursuant to a Will dated 27.01.2005. As per therecitals of the Will, the respondent-plaintiff and the appellant-defendant A

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Aare entitled to the property in question as indicated in the Will and relevantportion of the same is already extracted above.

10. The Trial Court, had to frame an issue in view of the claimmade by the appellant-defendant in respect of the common areas also.The High Court has found that normally a driveway on the ground floorBof the property would be a common area. But in the peculiar facts of thepresent case, the suit property also has a side lane from which there is adirect entrance to the staircase, which takes the appellant-defendant tohis first-floor portion. In that view of the matter, it is found that theappellant-defendant cannot claim any right to use the driveway fromfront side. It is clear from the record that the suit property is situated onCa corner plot and on one side there is a main road of the colony and onanother side of the property, there is a side lane, and such side lane itselfabuts a park. The side lane also is not a thoroughfare and on both sidesof the lane there are gates regulated by the colony residents. However,the High Court has also taken care to ensure that the appellant-defendantDhas necessary access to the pipes and booster pump/motor in the rearcourtyard. Having raised the dispute of the common areas, when suchclaim is considered by framing an issue, which we find in accordancewith the pleadings and evidence on record, it is not open for the appellant-defendant to plead that directions issued in the impugned judgment, arebeyond the scope of the suit.E

11. Having invited findings by raising a dispute of the commonareas, the appellant-defendant cannot plead that the Trial Court as wellas the Appellate court have exceeded scope of the suit, in issuingdirections for the common areas. From the material and the evidenceplaced on record, we find that the judgment and final decree for partition,Fas ordered by the Appellate Court and directions issued with regard tocommon areas are in accordance with evidence on record and we donot find any merit in these appeals so as to interfere with the same.

12. For the aforesaid reasons, we do not find any merit in theseappeals and they are to be dismissed. Before we order to do so, weGdeem it appropriate to extract the following two paragraphs of the Willdated 27.01.2005, executed by their mother late Smt. Krishna Sethi:- “As life is uncertain and in order to avoid any differences or disputeby and between my legal heirs, I feel it proper and expedient toput on record my last wishes so that there is no discord or enmity H

SAJAN SETHI v. RAJAN SETHI[R. SUBHASH REDDY, J.]

or differences amongst my children/legal heirs for the division ofassets which I may leave behind after my demise. I am at presentsuffering from certain incurable disease and have recently beenhospitalised and I may require further hospitalisation and I amnow aged about 74 years and although I am in my full senses andunderstand right and wrong.”

“Last but not the least I bestow my all blessing, love affectionto my all children and their families and as them of the same frommy and my late husband when we are in the heavens and continueto pray for their well being and shall desire that my all childrenwith their family should always remain united and live the way asI and my husband have lived. My greeting for the family, brothersand sisters and the children – God may help all.”

13. These appeals are accordingly dismissed, with no order as tocosts.

Devika Gujral

Appeals dismissed.

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