Mohammed Mateen vs Mohammed Mehboob

In this first appeal filed against the judgment and decree dated 30.11.2012 passed in Civil Suit No.393-A/2011 by Third Additional District Judge,

Bhopal, the only dispute is regarding declaration of their respective shares in the suit house.

Brief facts shorn off unnecessary details are that plaintiff-appellant and defendant-respondent are real brothers and had jointly purchased the suit

house by a registered sale deed dated 11.06.2002.

As per their mutual understanding plaintiff is in possession of the ground floor, whereas first floor and a room built on second floor is in possession of

the defendant. Dispute arose between the brothers, and plaintiff filed a suit for partition, declaration of his half share and permanent injunction for

restraining the defendant from interfering in his possession.

The defendant contested the suit and filed the written statement before the trial Court. He though admitted his possession over the first floor and

the room on second floor, however, denied the claim of plaintiff regarding joint purchasing of the suit house. It was contended that the entire entire

consideration for purchase of the house was paid by him.

The trial Court on the basis of pleadings of the parties framed the necessary issues. Apart from recording the evidence, Commissioner’s report

was also called for. The trial Court after hearing the parties and discussing the evidence recorded a finding that the plaintiff is entitled to 1/2 share in

the suit house. The suit was decreed to the effect that constructed portion on the ground floor except for area used for stairs and the open area on the

second floor will remain in the share of plaintiff, who will be entitled to raise construction equal to the area constructed by defendant on the second

floor after receiving permission from the competent authority. The stairs and the open area and terrace on second floor, will remain common area to

be equally used by both the parties. The parties will not interfere in each others possession and get separate electricity and water connection.

Shri Ankit Saxena, learned counsel appearing for the plaintiff/appellant has argued that the trial Court failed to consider the Commissioner’s

report while determining the share of parties, wherein a vertical partition has been suggested by construction of a common wall. Instead a horizontal

partition has been done on the basis of the existing possession of the parties, which has created a lot of problem due to the common use of staircase. It

is stated that the defendant is forcibly depriving him from the use of staircase. It is also requested that as per I.A. No.10465/2014, the matter may be

referred for mediation. However, from the record, it is reflected that the said application has been dismissed vide order dated 19.12.2014.

6. Shri Sanjay K. Agrawal, learned counsel appearing for the respondent on the other hand submitted that there is no document on record to show

that the defendant is creating any hindrance in the use of staircase by the plaintiff. It is submitted that fresh partition and demolition will give rise to

further litigation, which will not be in the interest of any of the parties. He has further opposed the prayer for mediation.

 7. I have considered the rival submissions of the parties and perused the record.

It is not in dispute that the brothers have equal share in the property. The only question before this Court is as to how the specific shares in property

be determined. It is reflected from the record of the trial Court that at the initial stage itself plaintiff filed two applications; one under Order 26 Rule 9

of C.P.C. for appointment of Commissioner and another under Section 89 read with Order 10 Rule 1-A of C.P.C. for compromise. These applications

were not opposed by the defendant, hence, the trial Court with the consent of the parties appointed Shri Anant Ramaiya, Advocate and Shri K.K.

Saini, Advocate as Commissioner by order dated 19.10.2011. The Commissioners so appointed were directed to facilitate compromise between the

parties for partition of the house with the consent of parties and submit their report on 21.10.2011. As evident from the order sheet dated 19.12.2011,

the Commissioners’ report was submitted but the compromise could not take place. The Commissioners’ report reveals that both the parties

had agreed to vertical partition of the house by constructing a common wall and also agreed to share the cost/expenditure for this purpose. This report

bears the signature of Commissioners as well as the parties. However, though both the parties agreed to vertical partition of the house as reflected

from the Commissioner’s report but ultimately did not agree to compromise. It is pertinent to note that this report was never challenged or disputed

by any of the parties. Rather, the plaintiff Mohammed Mateen (PW/1) in para 17 of his deposition has admitted that he was present at the time of spot

inspection and signed on the Commissioner’s report. He has also admitted that he did not file any objection to the Commissioner’s report.

Similarly, defendant Mohammed Mehboob (DW/1) in para 4 of his deposition has admitted that he has agreed to the Commissioner’s report.

However, in para 7, he has stated that partition may be done on the basis of possession.

It is apparent from the impugned judgment that both the parties were at logger heads and did not agree to either horizontal or vertical division of

the suit house. It is further apparent from para 13 of the judgment that the parties did not agree to any of the suggestion/solution proposed by the trial

Court to solve the dispute and ultimately left it to the discretion of the Court and agreed that they would abide by the partition done by Court. The Trial

Court in its wisdom after making all efforts and considering all aspects has apportioned the house. The appellant could not subsequently avoid the

same on the ground that he is encountering problems due to the common use of stairs. The parties are living in the same portion since 2002. The

question as to how the parties would manage their affairs is a matter with which they only are primarily concerned and the Court could not advise

them in the matter. However, looking to the complaints filed by the parties against each other and considering that parties are real brothers, it would be

in the interest of justice to make a last effort for mediation between the parties.

In view of the aforesaid, it is directed that the matter be sent to the Mediation Center for amicable settlement/partition between the parties.