SAJAN SETHI Vs. RAJAN SETHI

JUDGEMENT

(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 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:-

(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: