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Supreme Court of India
Sajan Sethi vs Rajan Sethi on 2 March, 2020Author: R. Subhash Reddy
Bench: Mohan M. Shantanagoudar, R. Subhash Reddy
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
Signature Not Verified
Digitally signed by
Friends Colony, New Delhi, constructed in a plot area
GULSHAN KUMAR
ARORA
Date: 2020.03.02
17:12:13 IST
Reason:
of 292 sq. yards. The review petition filed by the
appellant also ended in dismissal, as such, these are
C.A.@SLP(C)Nos.13376-77/2019
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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
C.A.@SLP(C)Nos.13376-77/2019
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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:
C.A.@SLP(C)Nos.13376-77/2019
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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.
C.A.@SLP(C)Nos.13376-77/2019
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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.
C.A.@SLP(C)Nos.13376-77/2019
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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
C.A.@SLP(C)Nos.13376-77/2019
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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.
C.A.@SLP(C)Nos.13376-77/2019
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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
C.A.@SLP(C)Nos.13376-77/2019
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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
C.A.@SLP(C)Nos.13376-77/2019
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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
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