JAGMOHAN KAPUR Vs. MANMOHAN KAPUR

JUDGEMENT

(1.) This application was filed on 2nd April, 1995 by defendant No.1, in which following prayers have been made :-

(2.) The plaintiff on 5th July, 1985 filed suit for partition of movable and immovable properties. Immovable property sought to be partitioned is D-43, Defence Colony, New Delhi. On 21st November, 1988, the case came up for framing of issues. Issues were framed pertaining to the disputes between the parties for partition of movable properties only. The Court observed that there was no dispute that the plaintiff and defendant No.1 are the co-owners of the immovable property in equal shares. Consequently, a preliminary decree for partition was passed declaring the plaintiff and defendant No.l to be the co-owners of D-43, Defence Colony, New Delhi in equal shares. Shri M.L-Jain, Advocate, was appointed as the Commissioner to submit his report on the mode and manner of dividing the property amongst the plaintiff and defendant No.1 in two equal shares, if the property was partible.

(3.) After it was found that it is not possible to partition the property in two equal shares, on 16th August, 1991, it was recorded that parties had agreed to give inter se bid in respect of the property. This order was clarified on 10th October, 1991 and 20th November, 1991. There are various orders passed thereafter on the inter se bid amongst plaintiff and defendant No.l. Order dated 5th August, 1994 records the last bid of defendant No. 1 to be of Rs. 1,22,83,000.00 . It is also records that the plaintiff did not bid thereafter. Inter-se bidding was thus closed at Rs.1,22,83,000/ -.The case was posted for acceptance of the bid. Learned Counsel for the plaintiff on 15th February, 1995 contended that in view of prayer (d) made by defendant No.1-in his application (I.A.No.3235/94), the plaintiff acquired a right to get the property on value, as per Section 3 of the Partition Act and in view of the decision of the Supreme Court in R. Ramamurthi (dead) by L.Rs. v. Rajeswara Rao, A.I.R. 1973 S.C.643. Parties thereafter were heard on this question.