R.F.A. No.429/1985 Page 1 of 15

* HIGH COURT OF DELHI AT NEW DELHI

+ RFA 429/1985 & CM APPL.5880/2010, 7171/2010, 7456/2014

Pronounced on: 10th

May, 2016

RAMESH DUTT SALWAN ..... Appellant

Through: Mr. R.K. Saini, Advocate with Ms. Suman

Salwan & Ms. Minal Sehgal, Advocates.

versus

SHIV DUTT SALWAN ..... Respondent

Through: 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-2.

CORAM:

HON’BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J.

1. This is a regular first appeal filed by the appellant Ramesh Dutt

Salwan (since deceased) against the judgment and decree dated

15.07.1985 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 7794.63 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 2 of 15

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 co-

sharer.

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 3 of 15

No.B, Rewari Line, Industrial area, Phase-I, Maya Puri, New Delhi

area measuring 7794.63 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 24.04.1981 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 29.7.2013 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 4 of 15

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 25.10.1982 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 15.07.1985 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 5 of 15

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

1/3rd

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 2/3rd

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 1/3rd

proceeds.

12. During the pendency of the appeal vide order dated 5.4.2000, the

court had appointed a Commissioner, Mr. D.P. Bhatia, Assistant

R.F.A. No.429/1985 Page 6 of 15

Engineer II (Civil), PWD Division XII, New Delhi and vide order

dated 17.11.2015, 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 7 of 15

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 8 of 15

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 02.05.2016 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 9 of 15

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

Kisu @ Ram Kishu (dead) through LRS vs. Bihari (dead) by LRs,

(2005) 6 SCC 300.

25. 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 10 of 15

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 11 of 15

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 12 of 15

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 13 of 15

not averse to sell their share either to respondent No.1, who has the

remaining 2/3rd

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 1/3rd

share

belonging to the widow of his brother. Effectively thus, he has

2/3rd

share of the suit property. The court is not averse in case Shiv

Dutt Salwan purchases 1/3rd

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 14 of 15

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 1/3rd

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 1/3rd

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 15 of 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.9811034485) as the Court Commissioner and

Ms. Natasha, Advocate (Mobile No.8800900377) 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 29th September, 2016.

V.K. SHALI, J.

MAY 10, 2016

vk/’AA'