Partition: Parties to the suit are two brothers – Suit property devolved on them in terms of the will by their mother – As per the will, the ground floor portion was bequeathed to the respondentplaintiff, 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 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 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 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 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 areas in the suit property in the written statement – Trial court, had 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 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 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 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 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 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 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 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 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 directions for the common areas. [Paras 9, 10, 11][1087-G-H; 1088-A-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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