C.A.@SLP(C)Nos.13376-77/2019

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REPORTABLE              

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL NOS. 1899-1900 OF 2020 (Arising out of S.L.P.(C) Nos. 13376-77 of 2019)

     Sajan Sethi                           ....Appellant

vs

Rajan Sethi                             ....Respondent

J U D G M E N T    

R.SUBHASH REDDY,J.

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  the  High  Court  of  Delhi  in

R.F.A.No.641 of 2018, arising out of a partition suit

with  respect to  the property  bearing No.D-1090,  New

Friends Colony, New Delhi, constructed in a plot area

of 292 sq. yards.  The review petition filed by the

appellant also ended in dismissal, as such, these are

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the two appeals, one against the judgment and decree

dated  18.02.2019  and  other  appeal  against  an  order

dismissing  the  review  petition  vide  order  dated

15.04.2019.  The  house  property  bearing  No.D-1090,

situated in New Friends Colony, New Delhi, constructed

in a plot area of 292 sq.yards, was originally owned by

the father of the parties, late Sh.S.L.Sethi. On his

demise, the suit property was devolved upon his wife

Smt.Krishna Sethi, who is the mother of the parties

herein, pursuant to a Will executed by their father.

Subsequently, the mother also passed away by executing

a  Will  dated  27.01.2005. As  per  the  Will  dated

27.01.2005, the ground floor portion is bequeathed to

the respondent-plaintiff, the first-floor portion was

bequeathed to the appellant-defendant and the second-

floor portion was to be divided equally between the

parties, with the front-half portion to the share of

appellant-defendant and the back-half portion to the

share of respondent-plaintiff.  The relevant portion of

the Will executed by the mother, reads as under:-

“a) House No.D-1090, New Friends Colony, New Delhi shall devolve upon my both sons Shri Rajan  Sethi  &  Shri  Sajan  Sethi  in  the following manner: - Ground Floor shall fall to the exclusive share of my elder son Sh. Rajan Sethi, first floor shall fall to the exclusive share of

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my son Sh. Sajan Sethi.  Top floor shall be divided by my children in equal share. The front half portion shall go to the exclusive share of my son Sh.Sajan Sethi and half back portion shall go to the exclusive share of my elder son Sh. Rajan Sethi. The booster pump/motor installed at ground floor shall be used by both the children without any interference/obstruction by any of them in any manner what so ever.  My both sons shall not sell their share in the property to an outsider without concurrence of each other and shall first offer to the other before taking any step in that regard.”

3. The respondent-plaintiff i.e. Sh.Rajan Sethi filed

a  suit  in  CIS  No.11193  of  2016  on  the  file  of

Additional  District  Judge,  South-East,  Saket  Courts,

New Delhi,  for partition and permanent injunction of

the second floor and the terrace rights.  As per the

preliminary decree passed by the Trial Court share of

the respondent-plaintiff and defendant was decided in

the  ratio  of  50%  each.   Though,  the  suit  was  for

partition of the second floor and terrace rights, it is

the appellant-defendant, who in the written statement,

raised a dispute in respect of common areas in the

ground floor also.  The appellant-defendant, however,

has not filed any 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 were

framed in the suit for trial:

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“i)  Whether  the  second  floor  and  the terrace  above  of  property  No.D-1090,  New Friends Colony, New Delhi was partitioned and  if  not,  whether  the  Plaintiff  is entitled to partition of the same by metes and bounds? OPP

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

iii) Relief”

4. The Trial Court by considering the pleadings and

evidence  on  record,  has  negatived  the  claim  of  the

appellant-defendant for the common areas, as claimed in

para 14 of the written statement.  On the claim of the

respondent-plaintiff for partition of second floor and

terrace  rights,  by  accepting  objections  of  the

respondent-plaintiff  to  the  Report  of  the  Court

Commissioner,  the  Trial  Court  held  that  the  second

floor and the terrace rights cannot be partitioned by

metes and bounds and, thus, final decree of partition

was passed, granting equal share of 50% each in the

second floor and the terrace rights. The Trial Court

also ordered to put up the said property for sale by

auction,  and  distribute  the  sale  proceeds  in  equal

share.    

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5. Aggrieved  by  the  judgment  and  decree  dated

20.04.2018  passed  in  CIS  No.11193  of  2016,  the

appellant-defendant  has  filed  first  appeal  in

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  of  by  the  impugned

judgment by the High Court of Delhi, by setting aside

the  judgment  of  the  Trial  Court,  to  the  extent  of

directions for sale of second floor and terrace rights

and issued further directions in respect of the common

areas.  The directions issued by the High Court read as

under:-

“(i) The appellant/defendant will not have a right to use the small driveway on the ground-floor of the property.

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

(iii) The respondent/plaintiff will use a part of the landing of the staircase on the second-floor which adjoins the back portion of the second-floor of the suit property so that  a  door  can  be  constructed  on  this second-floor  landing  which  opens  directly to the back portion of the second-floor of the suit property falling to the share of the respondent-plaintiff.

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

6. We  have  heard  Sri  Vikas  Singh,  learned  senior

counsel appearing for the appellant-defendant and Sri

P.S. Patwalia, learned senior counsel appearing for the

respondent-plaintiff.

7. Mainly,  it  is  contended  by  Sri  Vikas  Singh,

learned  senior  counsel  for  the  appellant-defendant,

that  the  Trial  Court  and  the  First  Appellate  Court

committed an error in deciding the rights of parties in

respect of the common areas in the ground floor, when

the suit itself was filed, confined to the partition of

second  floor  and  terrace  rights.   It  is  further

contended that in any event, as the entire property is

divided between the respondent-plaintiff and appellant-

defendant in equal share, the appellant-defendant is

also entitled for 50% of the common areas in the ground

floor.

8. On  the  other  hand,  Sri  P.S.  Patwalia,  learned

senior  counsel  appearing  for  the  respondent,  has

submitted that it was the appellant-defendant, who in

the written statement had raised a dispute in respect

of common areas, as such the Trial Court has framed the

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issue on the common areas and decided the same.  It is

submitted that in view of the limited rights granted

for maintenance of the booster pump/motor installed in

the ground floor, no other right is conferred on the

appellant-defendant in the common areas in the ground

floor.  It is further submitted that having regard to

pleadings and evidence on record, the Trial Court as

well as the Appellate Court, have rightly decided the

claim  of  the  appellant-defendant  in  respect  of  the

common areas also and there are no grounds to interfere

with the same.             

9. It is true that the suit filed by the respondent

-plaintiff  is  only  for  partition  and  permanent

injunction with regard to second floor portion of the

house and the terrace rights, but it is the appellant-

defendant who has raised the dispute with regard to

common areas in the suit property in terms of paragraph

14 of the written statement.  The parties are claiming

rights  to  the  property  pursuant  to  a  Will  dated

27.01.2005.  As  per  the  recitals  of  the  Will,  the

respondent-plaintiff  and  the  appellant-defendant  are

entitled to the property in question as indicated in

the Will and relevant portion of the same is already

extracted above.

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10. The Trial Court, had to frame an issue in view of

the claim made by the appellant-defendant in respect of

the common areas also.  The High Court has found that

normally a driveway on the ground floor of the property

would be a common area. But in the peculiar facts of

the present case, the suit property also has a side

lane  from  which  there  is  a  direct  entrance  to  the

staircase, which takes the appellant-defendant to his

first-floor portion.  In that view of the matter, it is

found  that  the  appellant-defendant  cannot  claim  any

right to use the driveway from front side.  It is clear

from the record that the suit property is situated on a

corner plot and on one side there is a main road of the

colony and on another side of the property, there is a

side lane, and such side lane itself abuts a park.  The

side lane also is not a thoroughfare and on both sides

of the lane there are gates regulated by the colony

residents. However, the High Court has also taken care

to ensure that the appellant-defendant has necessary

access to the pipes and booster pump/motor in the rear

courtyard.  Having raised the dispute of the common

areas,  when  such  claim  is  considered  by  framing  an

issue, which we find in accordance with the pleadings

and  evidence  on  record,  it  is  not  open  for  the

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appellant-defendant to plead that directions issued in

the  impugned  judgment,  are  beyond  the  scope  of  the

suit.

11.  Having invited findings by raising a dispute of

the common areas, the appellant-defendant cannot plead

that the Trial Court as well as the Appellate court

have exceeded scope of the suit, in issuing directions

for  the  common  areas.  From  the  material  and  the

evidence placed on record, we find that the judgment

and  final  decree  for  partition,  as  ordered  by  the

Appellate Court and directions issued with regard to

common areas are in accordance with evidence on record

and we do not 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 these appeals and they are to be dismissed.

Before we order to do so, we deem it appropriate to

extract the following two paragraphs of the Will dated

27.01.2005, executed by their mother late Smt. Krishna

Sethi:-

“As life is uncertain and in order to avoid any differences or dispute by and between my  legal  heirs,  I  feel  it  proper  and expedient to put on record my last wishes so that there is no discord or enmity or differences amongst my children/legal heirs

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for  the  division  of  assets  which  I  may leave  behind  after  my  demise.   I  am  at present  suffering  from  certain  incurable disease and have recently been hospitalised and I may require further hospitalisation and  I  am  now  aged  about  74  years  and although  I  am  in  my  full  senses  and understand right and wrong.”

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

13. These appeals are accordingly dismissed, with no

order as to costs.  

..........................J.                                (MOHAN M. SHANTANAGOUDAR)

     ..........................J.                                (R. SUBHASH REDDY)

NEW DELHI; March 02, 2020