Supreme Court of India
SAJAN SETHIversusRAJAN SETHI
- Citation
- 2020 INSC 249
- Decided
- 2 March 2020
- Disposal
- Dismissed
Holding
The courts correctly framed and decided the issue of common areas because the defendant raised it in his written statement, and the directions regarding those areas are within the scope of the suit.
Summary
The brothers inherited a house under their mother's will, which allocated the ground floor to Rajan Sethi, the first floor to Sajan Sethi, and the second floor to be shared equally. Rajan filed a suit for partition of the second floor and terrace, but Sajan, in his written statement, also claimed rights over common areas on the ground floor. The trial court denied Sajan's claim to the common areas and ordered a 50-50 split of the second floor and terrace, directing their sale. The Delhi High Court set aside the sale directions and issued specific directions regarding use of the driveway, water pipes, and booster pump, while affirming the denial of a 50% share in the common areas. On appeal, the Supreme Court held that because Sajan raised the common‑area dispute in his written statement, the lower courts were justified in framing and deciding that issue, and the directions issued were within the scope of the suit. Consequently, the appeals were dismissed.
Issues considered
- Whether a court may frame and decide an issue concerning common areas when the plaintiff's suit is confined to partition of the second floor and terrace rights.
- Whether the appellant-defendant is entitled to a 50% share in the common areas of the ground floor.
- Whether the second floor and terrace can be partitioned by metes and bounds.
Subjects
partition suitcommon areaswilleasementmetes and boundsdriveway rightscivil procedure
Judgment
1082 [2020]REPORTS
SUPREME COURT 3 S.C.R. 1082 [2020] 3 S.C.R.
A SAJAN SETHI
v.
RAJAN SETHI
(Civil Appeal Nos. 1899-1900 of 2020)
B MARCH 02, 2020
[MOHAN M. SHANTANAGOUDAR
AND R. SUBHASH REDDY, JJ.]
Partition: Parties to the suit are two brothers – Suit property
devolved on them in terms of the will by their mother – As per the
C
will, the ground floor portion was bequeathed to the respondent-
plaintiff, the first floor portion to the appellant-defendant and the
second floor to be divided equally between them – Respondent filed
suit for partition – Though the suit was for partition of the second
floor and terrace rights, the defendant in the written statement raised
D a dispute in respect of common areas in the ground floor also –
Defendant, however, did not file any counter claim in the suit – In
view of the claim set up by the defendant in respect of common
areas, issues were framed in respect of common areas also – Trial
court negatived the claim of the defendant for common areas and
held that the second floor and the terrace rights cannot be
E
partitioned by metes and bounds and thus final decree of partition
was passed granting equal share of 50% each in the second floor
and the terrace right – Trial court also ordered to put up the said
property for sale by auction, and distribute the sale proceeds in
equal share – In appeal, High Court set aside the trial court judgment
F to the extent of directions for sale of second floor and terrace rights
and issued certain directions in respect of common areas including
ground floor – In instant appeal, defendant contended that trial
court and High Court committed error in deciding the rights of the
parties in respect of the common areas in the ground floor when the
suit itself was filed confined to the partition of second floor and
G
terrace rights and that in any event he was entitled to 50% of common
areas in the ground floor – Held: It is true that the suit filed by the
plaintiff was only for partition and permanent injunction with regard
to second floor portion of the house and the terrace rights, but it
was the defendant who raised the dispute with regard to common
H
1082
SAJAN SETHI v. RAJAN SETHI 1083
areas in the suit property in the written statement – Trial court, had A
to frame an issue in view of the claim made by the defendant in
respect of the common areas also – It is clear from the record that
the suit property is situated on a corner plot and on one side there
is a main road of the colony and on another side of the property,
there is a side lane, and such side lane itself abuts a park – The
B
side lane also is not a thoroughfare and on both sides of the lane
there are gates regulated by the colony residents – However, the
High Court took care to ensure that the defendant has necessary
access to the pipes and booster pump/motor in the rear courtyard –
Having raised the dispute of the common areas, when such claim is
considered by framing an issue, which is in accordance with the C
pleadings and evidence on record, it is not open for the defendant
to plead that directions issued in the impugned judgment, are beyond
the scope of the suit – From the material and the evidence placed
on record, the judgment and final decree for partition, as ordered
by High Court and directions issued with regard to common areas
D
are in accordance with evidence on record.
Dismissing the appeals, the Court
HELD: It is true that the suit filed by the respondent-plaintiff
was only for partition and permanent injunction with regard to
second floor portion of the house and the terrace rights, but it E
was the appellant-defendant who has raised the dispute with
regard to common areas in the suit property in terms of paragraph
14 of the written statement. The Trial Court, had to frame an
issue in view of the claim made by the appellant-defendant in
respect of the common areas also. The High Court found that
normally a driveway on the ground floor of the property would be F
a common area. But in the peculiar facts of the instant case, the
suit property also has a side lane from which there is a direct
entrance to the staircase, which takes the appellant-defendant to
his first-floor portion. In that view of the matter, it is found that
the appellant-defendant cannot claim any right to use the driveway G
from front side. It is clear from the record that the suit property
is situated on a corner plot and on one side there is a main road
of the colony and on another side of the property, there is a side
lane, and such side lane itself abuts a park. The side lane also is
not a thoroughfare and on both sides of the lane there are gates
H
1084 SUPREME COURT REPORTS [2020] 3 S.C.R.
A regulated by the colony residents. However, the High Court has
also taken care to ensure that the appellant-defendant has
necessary access to the pipes and booster pump/motor in the
rear courtyard. Having raised the dispute of the common areas,
when such claim is considered by framing an issue, which is in
accordance with the pleadings and evidence on record, it is not
B
open for the appellant-defendant to plead that directions issued
in the impugned judgment, are beyond the scope of the suit.
Having invited findings by raising a dispute of the common areas,
the appellant-defendant cannot plead that the Trial Court as well
as the Appellate court have exceeded scope of the suit, in issuing
C directions for the common areas. [Paras 9, 10, 11][1087-G-H;
1088-A-F]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1899-
1900 of 2020.
From the Judgment and Order dated 18.02.2019 and 15.04.2019
D of the High Court of Delhi at New Delhi in RFA No. 641/2018 and
Review Petition No. 168/2019.
Vikas Singh, Sr. Adv., Varun Singh, Ms. Deepika Kalia, Ms. Shikha
Rai, Kapish Seth, Mritunjai Singh, Ms. Nishtha Kumar, Advs. for the
Appellant.
E
P. S. Patwalia, Anupam Lal Das, Sr. Advs., Kunal Verma,
Ms. Yugandhara Pawan Jha, Sooraj Sharma, Waheb Hussaini, Advs.
for the Respondent.
The Judgment of the Court was delivered by
F R. SUBHASH REDDY, J.
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
G 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
H order dated 15.04.2019. The house property bearing No.D-1090, situated
SAJAN SETHI v. RAJAN SETHI 1085
[R. SUBHASH REDDY, J.]
in New Friends Colony, New Delhi, constructed in a plot area of A
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
B
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:- C
“a) House No.D-1090, New Friends Colony, New Delhi shall
devolve upon my both sons Shri Rajan Sethi & Shri Sajan Sethi in
the following manner:
- Ground Floor shall fall to the exclusive share of my elder son
Sh. Rajan Sethi, first floor shall fall to the exclusive share of my D
son Sh. Sajan Sethi. Top floor shall be divided by my children in
equal share. The front half portion shall go to the exclusive share
of my son Sh. Sajan Sethi and half back portion shall go to the
exclusive share of my elder son Sh. Rajan Sethi. The booster
pump/motor installed at ground floor shall be used by both the E
children without any interference/obstruction by any of them in
any manner what so ever. My both sons shall not sell their share
in the property to an outsider without concurrence of each other
and shall first offer to the other before taking any step in that
regard.”
F
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 G
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 H
framed in the suit for trial:
1086 SUPREME COURT REPORTS [2020] 3 S.C.R.
A “i) Whether the second floor and the terrace above of property
No.D-1090, New Friends Colony, New Delhi was partitioned and
if not, whether the Plaintiff is entitled to partition of the same by
metes and bounds? OPP
ii) Whether the common areas in the suit property are liable to be
B partitioned in terms of paragraph no.14 of the written statement?
OPD
iii) Relief”
4. The Trial Court by considering the pleadings and evidence on
record, has negatived the claim of the appellant-defendant for the common
C areas, as claimed in para 14 of the written statement. On the claim of
the respondent-plaintiff for partition of second floor and terrace rights,
by accepting objections of the respondent-plaintiff to the Report of the
Court Commissioner, the Trial Court held that the second floor and the
terrace rights cannot be partitioned by metes and bounds and, thus, final
D decree of partition was passed, granting equal share of 50% each in the
second floor and the terrace rights. The Trial Court also ordered to put
up the said property for sale by auction, and distribute the sale proceeds
in equal share.
5. Aggrieved by the judgment and decree dated 20.04.2018 passed
E in CIS No.11193 of 2016, the appellant-defendant has filed first appeal
in R.F.A.No.641 of 2018 before the High Court of Delhi at New Delhi.
The Regular First Appeal filed by the appellant-defendant is disposed of
by the impugned judgment by the High Court of Delhi, by setting aside
the judgment of the Trial Court, to the extent of directions for sale of
second floor and terrace rights and issued further directions in respect
F of the common areas. The directions issued by the High Court read as
under:-
“(i) The appellant/defendant will not have a right to use the small
driveway on the ground-floor of the property.
(ii) The appellant/defendant will however have easementary right
G
to use the water pipes and booster pump at the rear courtyard,
which are the water pipes and booster pump, and which feed the
first-floor and second-floor of the suit property falling to the share
of the appellant-defendant.
(iii) The respondent/plaintiff will use a part of the landing of the
H staircase on the second-floor which adjoins the back portion of
SAJAN SETHI v. RAJAN SETHI 1087
[R. SUBHASH REDDY, J.]
the second-floor of the suit property so that a door can be A
constructed on this second-floor landing which opens directly to
the back portion of the second-floor of the suit property falling to
the share of the respondent-plaintiff.
15. The appeal is accordingly disposed of in terms of the aforesaid
directions, leaving the parties to bear their own costs.” B
6. We have heard Sri Vikas Singh, learned senior counsel appearing
for the appellant-defendant and Sri P.S. Patwalia, learned senior counsel
appearing for the respondent-plaintiff.
7. Mainly, it is contended by Sri Vikas Singh, learned senior counsel
for the appellant-defendant, that the Trial Court and the First Appellate C
Court committed an error in deciding the rights of parties in respect of
the common areas in the ground floor, when the suit itself was filed,
confined to the partition of second floor and terrace rights. It is further
contended that in any event, as the entire property is divided between
the respondent-plaintiff and appellant-defendant in equal share, the D
appellant-defendant is also entitled for 50% of the common areas in the
ground floor.
8. On the other hand, Sri P.S. Patwalia, learned senior counsel
appearing for the respondent, has submitted that it was the appellant-
defendant, who in the written statement had raised a dispute in respect E
of common areas, as such the Trial Court has framed the issue on the
common areas and decided the same. It is submitted that in view of the
limited rights granted for maintenance of the booster pump/motor installed
in the ground floor, no other right is conferred on the appellant-defendant
in the common areas in the ground floor. It is further submitted that
having regard to pleadings and evidence on record, the Trial Court as F
well as the Appellate Court, have rightly decided the claim of the appellant-
defendant in respect of the common areas also and there are no grounds
to interfere with the same.
9. It is true that the suit filed by the respondent-plaintiff is only for
partition and permanent injunction with regard to second floor portion of G
the house and the terrace rights, but it is the appellant-defendant who
has raised the dispute with regard to common areas in the suit property
in terms of paragraph 14 of the written statement. The parties are claiming
rights to the property pursuant to a Will dated 27.01.2005. As per the
recitals of the Will, the respondent-plaintiff and the appellant-defendant
H
1088 SUPREME COURT REPORTS [2020] 3 S.C.R.
A are entitled to the property in question as indicated in the Will and relevant
portion of the same is already extracted above.
10. The Trial Court, had to frame an issue in view of the claim
made by the appellant-defendant in respect of the common areas also.
The High Court has found that normally a driveway on the ground floor
B of the property would be a common area. But in the peculiar facts of the
present case, the suit property also has a side lane from which there is a
direct entrance to the staircase, which takes the appellant-defendant to
his first-floor portion. In that view of the matter, it is found that the
appellant-defendant cannot claim any right to use the driveway from
front side. It is clear from the record that the suit property is situated on
C a corner plot and on one side there is a main road of the colony and on
another side of the property, there is a side lane, and such side lane itself
abuts a park. The side lane also is not a thoroughfare and on both sides
of the lane there are gates regulated by the colony residents. However,
the High Court has also taken care to ensure that the appellant-defendant
D has necessary access to the pipes and booster pump/motor in the rear
courtyard. Having raised the dispute of the common areas, when such
claim is considered by framing an issue, which we find in accordance
with the pleadings and evidence on record, it is not open for the appellant-
defendant to plead that directions issued in the impugned judgment, are
beyond the scope of the suit.
E
11. Having invited findings by raising a dispute of the common
areas, the appellant-defendant cannot plead that the Trial Court as well
as the Appellate court have exceeded scope of the suit, in issuing
directions for the common areas. From the material and the evidence
placed on record, we find that the judgment and final decree for partition,
F as ordered by the Appellate Court and directions issued with regard to
common areas are in accordance with evidence on record and we do
not find any merit in these appeals so as to interfere with the same.
12. For the aforesaid reasons, we do not find any merit in these
appeals and they are to be dismissed. Before we order to do so, we
G deem it appropriate to extract the following two paragraphs of the Will
dated 27.01.2005, executed by their mother late Smt. Krishna Sethi:-
“As life is uncertain and in order to avoid any differences or dispute
by and between my legal heirs, I feel it proper and expedient to
put on record my last wishes so that there is no discord or enmity
H
SAJAN SETHI v. RAJAN SETHI 1089
[R. SUBHASH REDDY, J.]
or differences amongst my children/legal heirs for the division of A
assets which I may leave behind after my demise. I am at present
suffering from certain incurable disease and have recently been
hospitalised and I may require further hospitalisation and I am
now aged about 74 years and although I am in my full senses and
understand right and wrong.”
B
“Last but not the least I bestow my all blessing, love affection
to my all children and their families and as them of the same from
my and my late husband when we are in the heavens and continue
to pray for their well being and shall desire that my all children
with their family should always remain united and live the way as
I and my husband have lived. My greeting for the family, brothers C
and sisters and the children – God may help all.”
13. These appeals are accordingly dismissed, with no order as to
costs.
D
Devika Gujral Appeals dismissed.
E
F
G
H
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