* HIGH COURT OF DELHI AT NEW DELHI. versus

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1 * HIGH COURT OF DELHI AT NEW DELHI + RFA 429/1985 & CM APPL.5880/2010, 7171/2010, 7456/2014 Pronounced on: 10 th May, 2016 RAMESH DUTT SALWAN... Appellant Through: Mr. R.K. Saini, Advocate with Ms. Suman Salwan & Ms. Minal Sehgal, Advocates. SHIV DUTT SALWAN Through: versus CORAM: HON BLE MR. JUSTICE V.K. SHALI V.K. SHALI, J.... Respondent 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 This is a regular first appeal filed by the appellant Ramesh Dutt Salwan (since deceased) against the judgment and decree dated 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 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 1 of 15

2 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 cosharer. 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 2 of 15

3 No.B, Rewari Line, Industrial area, Phase-I, Maya Puri, New Delhi area measuring 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 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 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 3 of 15

4 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 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 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 4 of 15

5 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 1/3 rd 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 2/3 rd 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 1/3 rd proceeds. 12. During the pendency of the appeal vide order dated , the court had appointed a Commissioner, Mr. D.P. Bhatia, Assistant R.F.A. No.429/1985 Page 5 of 15

6 Engineer II (Civil), PWD Division XII, New Delhi and vide order dated , 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 6 of 15

7 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 7 of 15

8 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 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 8 of 15

9 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 Ram Kishu (dead) through LRS vs. Bihari (dead) by LRs, (2005) 6 SCC 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 9 of 15

10 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 10 of 15

11 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 11 of 15

12 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 12 of 15

13 not averse to sell their share either to respondent No.1, who has the remaining 2/3 rd 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 1/3 rd share belonging to the widow of his brother. Effectively thus, he has 2/3 rd share of the suit property. The court is not averse in case Shiv Dutt Salwan purchases 1/3 rd 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 13 of 15

14 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 1/3 rd 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 1/3 rd 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 14 of 15

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 ) as the Court Commissioner and Ms. Natasha, Advocate (Mobile No ) 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 29 th September, MAY 10, 2016 vk/ AA' V.K. SHALI, J. R.F.A. No.429/1985 Page 15 of 15