SURENDRA PAL SINGH Vs. RAVINDRA PAL SINGH

JUDGEMENT

(1.) This intra court appeal impugns the order dated 13th March, 2014, of a learned Single Judge of this Court (exercising ordinary original civil jurisdiction, in CS(OS) No.2115/1999 for partition of immovable property) appointing a Court Commissioner to suggest the mode of partition of the property and to on behalf of the appellant/defendant execute documents and take other steps for conversion of leasehold rights in the land underneath the property into freehold, in pursuance to a preliminary decree for partition declaring the respondent/plaintiff and the appellant/defendant to be having 50% undivided share each in the property.

(2.) The impugned order is admittedly not appealable under the Civil Procedure Code (CPC), 1908 and the appeal has been preferred under Section 10 of the Delhi High Court Act, 1966. Though the appeal comes up today for the first time but since the counsel for the respondent/plaintiff appears on caveat, we have, without entering into the question of maintainability of the appeal (which is doubtful), heard the counsels on merits.

(3.) The respondent/plaintiff instituted the suit from which this appeal arises inter alia for partition of house No.15, Babar Road, Bengali Market, New Delhi. Vide order dated 28th August, 2012 in the suit, a preliminary decree declaring the appellant/defendant and the respondent/plaintiff to be having 50% undivided share each, was passed. The contention of the appellant/defendant that the property being situated on leasehold land could not be partitioned, was held to be misconceived, observing that this Court in Chiranji Lal Vs. Bhagwan Das, 1991 AIR(Del) 325 and Inderjit Singh Vs. Tarlochan Singh, 1991 20 DRJ 281 has held that where the land is leasehold, parties / co-owners will be left with undivided share in accordance with the preliminary decree in the leasehold rights in the land and the superstructure will be partitioned, if possible and if the superstructure is not capable of being partitioned, the property will be sold (I may add that in Madan Lal Vs. Kuldeep Kumar , Mohinder Singh Vs. Kartar Lal , and Ram Lal Sachdeva Vs. Sneh Sinha, 2000 AIR(Del) 92 also the same view has been taken).