IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : CODE OF CIVIL PROCEDURE

CS(OS) 52/2011
Decided on : 08.04.2015

IN THE MATTER OF:

BHAWNA BHARDWAJ

..... Plaintiff
Through : Mr. Adarsh Verma, Advocate
versus

RAHUL BHARDWA

..... Defendant
Through : Mr. Suresh Sharma, Advocate

CORAM
HON'BLE MS.JUSTICE HIMA KOHLI
HIMA KOHLI, J.(Oral)
I.A.No.25258/2014 (by the plaintiff u/O XII Rule 6 CPC)

1.

The plaintiff has instituted the present suit for partition and

rendition of accounts against her brother, in respect of a flat bearing

Flat No.D-5, Oriental Enclave, Plot No.32, Patparganj, Delhi.
2.

It is an undisputed position that the subject flat was owned by

Mr. Veena Bhardwaj, mother of the parties and she had expired on
29.5.2001.

Shri Ashok Kumar Bhardwaj, the father of the parties,

had predeceased his wife having expired on 18.1.1993.

As per the

plaintiff, she and her brother are the only class-I legal heirs and

CS(OS) 52/2011

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therefore, both the parties are entitled to an equal share in the subject
premises.
3.

Counsel for the plaintiff states that there is a clear admission on

the part of the defendant and the same shall suffice for the purpose of
passing a preliminary decree in respect of the suit premises.
4.

Counsel for the plaintiff states that while filing the written

statement, the defendant has made explicit admissions on the basis of

which, a preliminary decree of partition may be passed by the Court.
In support of the said submissions, learned counsel for the plaintiff
refers to the averments made by the defendant in para 1 of the
preliminary objections and paras 3, 12, 14 & 15 of the reply on merits
of the written statement.
5.

A reply in opposition to the present application has been filed by

the defendant.

Counsel for the defendant states that it has been

clearly stated in the written statement that the suit property already
stands partitioned and the parties are in possession of their respective
shares, as per their entitlement. Counsel for the defendant clarifies
that as per his client, the plaintiff is in occupation of 46% share of the
built up area in the subject flat, whereas the defendant is in physical
possession of 54% of the area, with separate entry and exit.
6.

The Court has perused the written statement filed by the

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defendant. The following admissions made by the defendant are

relevant for deciding the present application:
Preliminary Objections :
1.
.........The plaintiff is in possession of approximately
46% of area and the defendant is in physical possession of
54% approx of the rest of the area with separate entity
and exit......
xxx
xxx
On Merits :
xxx
3.
.........Since the plaintiff is occupying almost half
portion of the flat in question, the allegations of any
physical or mental harassment of the plaintiff are
apparently false, baseless and motivated........
xxx
xxx
12. ......The plaintiff is in occupation of almost half
portion of the flat in question as stated above in para 1 of
the preliminary objections........
xxxx
14. That in reply to para 14 of the plaint, it is submitted
that the plaintiff is already occupying half portion of the
flat in question with separate entry and its division by
metes and bounds is not practically possible.
The
defendant is not willing to sell the flat as his sentiments
and emotions are attached with the same.
15. Except that the plaintiff got about 55% of the
movables left behind by the predecessors-in-interest of the
parties and that the flat already stands partitioned

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between the parties, the rest of the contents of the para

call for no comments.

7.

On a collective reading of the averments made by the defendant

in the written statement as reproduced hereinabove, he has clearly

admitted the fact that he and the plaintiff are entitled to equal shares
in the subject flat.

He has also admitted that the plaintiff is in

possession of about 46% area of the flat, whereas he is in possession

of a larger portion to the extent of 54% of the area available.
8.

Based on the admissions made by the defendant in the written

statement, a preliminary decree is passed, by declaring that the

plaintiff and the defendant are entitled to 50% share each in the suit
flat. Decree sheet be drawn up accordingly.
9.

The application is allowed and disposed of.

Sd/(HIMA KOHLI)
JUDGE
APRIL 08, 2015

CS(OS) 52/2011

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