Sajan Sethi Vs Rajan Sethi

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

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.

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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

SAJAN SETHI Vs RAJAN SETHI