GURCHARAN LAL BHATIA Vs. RAMESH CHAND BHATIA

JUDGEMENT

(1.) THE challenge by means of this Regular First Appeal filed under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 5.3.2010. The impugned judgment and decree is a final decree in a suit for partition. A preliminary decree was passed way back on 10.3.1997, and , which admittedly became final as the same was never challenged. By the preliminary decree, both the parties being the two brothers were declared as equal co-owners of the suit property being 7/30, Roop Nagar, Delhi, and proceedings were then to take place for partitioning of the suit property by metes and bounds or for other steps required so as to pass a final decree.

(2.) THE impugned judgment notes that there is a front portion of the property and a back portion of the property. Before I proceed ahead, I must note that when legally we talk of partition by metes and bounds it means division is equal in terms of value with respect to the shares to be allotted i.e. partition is not simply area-wise but there has to be equivalence in terms of value to be allotted. In this case, the property is 646 sq. yds. The appellant/defendant is occupying the front portion of the property and is obdurately refusing to give any front portion of the property to the other equal co-owner/brother/respondent/plaintiff. The trial Court has noted that the respondent/plaintiff is agreeable to take the back portion but the respondent/plaintiff must be compensated in terms of the value but this proposal was not acceptable to the appellant/defendant who is advantageously residing in the front portion of the property. The appellant/defendant has refused to give any compensation for taking front portion of the property if the back portion is allocated to the respondent/defendant in the final partition. Further, the trial Court has also noted in the impugned judgment that if the property is vertically partitioned, the respondent/plaintiff has agreed to bear the costs with respect to his own sewage line and other necessary requirements so as to independently enjoy his portion of the property.

(3.) LEARNED counsel for the appellant argues that the appellant was entitled to costs incurred by him towards getting the property vacated from different persons. In my opinion, this was an issue which had to be necessarily urged before the preliminary decree was passed. If this issue was raised, the preliminary decree would have directed any assumed compensation which the appellant/defendant was entitled allegedly on account of the appellant/defendant getting certain portions of the property vacated. However, the preliminary decree simply and only declared both the brothers/plaintiff and defendant to be equally co-owners of the property, and there is no direction therein of any payment to the appellant/defendant. This preliminary decree having not been appealed from, has become final and therefore the issues which have to be urged before passing of the preliminary decree cannot be urged in the final decree proceedings.