Pradeep Nandrajog, J.
1. A plot of land ad-measuring 8238 square feet situated in Block F Connaught Place, New Delhi, bearing No.12 and 13 was demised in perpetuity by the Secretary of State for India in Council to M/s.Elahee Buksh and Co. The title was assigned by the lessee to M/s.Sarvara Construction Co.Ltd. and therefrom to Ms.Mayawanti, whose husband Dr.Sahib Singh constructed a building on the plot. Dr.Sahib Singh and Mayawanti were blessed with two sons : Harbans Singh and Shamsher Singh who, as per an award dated July 12, 1946 which was made a Rule of the Court in Suit No.94/16 of 1946 by the Senior Sub-Judge Shimla, became the joint owners of the plot and the building constructed thereon. The share of each was 50 : 50. Harbans Singh sold his half undivided share to Shamsher Singh who, upon execution of the deed of sale dated February 02, 1963 by his brother in his favour became sole owner of the property. On September 30, 1963 Shamsher Singh sold 50% share in the property to one Rattan Lal Govind Ram and Ms.Kalawati Gobindram. In this manner Shamsher Singh retained 50% share in the property with the other 50% share being of Rattanlal Gobindram and Ms.Kalawati Gobindram.
2. Shamsher Singh s 50% undivided share was purchased by M/s.Sita World Travel (India) Ltd. on September 27, 1976. Under a scheme of amalgamation approved in CP No.481/2000 Sita World Travel (India) Ltd. merged with M/s.Kuoni Travel (India) Ltd. Through various indentures and wills, the other 50% share in the property ultimately reached the hands of Kishan Chand Dass, his wife Saroj Dass and his son Rahul Dass. We shall be referring to the three as the Dass family.
3. Aforenoted facts concerning title of the Dass family and M/s.Kuoni Travel (India) Ltd. are undisputed.
4. The Dass family instituted a suit for partition on September 24, 2002, in para 20 whereof, pleadings have been made qua tenancy rights as under:-
20. The present situation is as under:
Tenants with covered are:
i) Sita World Travel (India) Ltd. Now represented by the defendant -company
a) Garage Block 1599 sq. ft.
b) Ground floor 1800 sq. ft.
c) First Floor 3575 sq. ft.
d) Second Floor 3321 sq. ft.
e) vacant plot behind the portion in occupation of M/s Dass Studio
ii) Union Bank of India Mezzanine floor only 1,355 sq. ft.
iii) Dass Studio a partnership firm with the plaintiff No.1 and Mrs.Biji Devi, as partner
Ground Floor 1575 sq. ft. (+ mezzanine)
Total : 13,225 sq. ft.
The plaintiffs are entitled to 50% of the rent which is as under:
i) Sita World Travel (India) Ltd. Rs.6,550 per month Now represented by the defendant
ii) Union Bank of India Rs.785/- per month
iii) Dass Studio Rs.116.25 per month
Total : Rs.7,451.25 paise.
The remaining 50% of the rent would be in the entitlement of the defendant in view of the fact that M/s. Sita World Travel (India) Ltd. purchased 50% undivided share of the suit property from the Official Receiver being Shri Shamsher Singh s 50% share in the suit property.
5. In para 21 of the plaint it was averred as under:-
21. That the plaintiff No.1 as a partner of the firm, M/s Dass Studio, is in possession of 1575 sq. feet besides the mezzanine floor 50% undivided owner of the suit property. The defendant M/s.Kuoni Travel (India) Ltd. being the successor of M/s.Sita World Travel (India) Ltd., has 1599 sq. ft. in the garage block, 1800 sq. feet on the ground floor, 3575 sq.feet on the first floor besides 3321 sq.feet on the second floor besides vacant portion of the land behind the portion which is presently occupied by M/s Dass Studio. The defendant as such, is occupying much larger portion than his 50% share therein. The defendant is threatening to transfer, sell and alienate his share in excess of 50% to some third person without the consent of the plaintiffs. The plaintiffs being owner of 50% undivided share have every right over every bit of the suit property being property No.12 and 13, Block F , Connaught Place, New Delhi.The defendant has no right to transfer or alienate or even part with possession of any portion of the property without the consent of the plaintiffs.
6. The prayers made were as under:-
i) pass a preliminary decree for partition in favour of the plaintiffs and against the defendant holding that the plaintiffs being 50% undivided share in the suit property bearing No.F- 12 and 13, Connaught Place, New Delhi, as shown in the plan annexed;
ii) appoint Local Commissioner to suggest mode of partition;
iii) on the report of the Local Commissioner being received and after deciding the objections thereto, if any, pass a final decree and put the plaintiffs in possession of the portion which comes to the share of the plaintiffs;
iv) Costs of the suit be also awarded to the plaintiff; and
Any other relief, order or direction which this Hon ble Courtmay deem fit and proper in the facts and circumstances of the case be also awarded in favour of the plaintiffs and against the defendant.
7. In the plaint there is no averment as to since when Sita World Travel (India) Ltd. was inducted as a tenant in the suit property. There are no averments to the effect that the terms of the lease prohibited sub-letting or parting with possession. There are no averments that upon amalgamation M/s.Sita World Travel (India) Ltd. merged with Kuoni Travel (India) Ltd. there was a sub-letting.
8. In the written statement filed by Kuoni Travel (India) Ltd. it was pleaded that M/s.Sita World Travel (India) Ltd. was inducted as a tenant on May 31, 1976 by the heirs of Shamsher Singh and Rattanlal Gobindram acting along with Kalawanti Gobindram and was put in possession of 8810 square feet area; total covered area being 12310 square feet. It was pleaded that Kuoni Travel (India) Ltd. was entitled to sell its one-half undivided share in the property and delivered possession of 50% of the area to a tenant.
9. In the replication filed the Dass family admitted the tenancy in favour of Kuoni Travel (India) Ltd. They admitted 50% ownership of Kuoni Travel (India) Ltd. They pleaded that unless the property was partitioned and distinct share of the two groups was identified, neither could hand over possession of an identified 50% built-up area.
10. Title of the parties not being denied to the extent of each having 50% share, on May 22, 2003 a preliminary decree was passed declaring Dass family to be 50% owner and Kuoni Travel (India) Ltd. as 50% owner of the suit property. A local commissioner was appointed to suggest if partition by metes and bounds could be effected. The learned local commissioner submitted a report, inter-alia, suggesting as under:-
11. That the problem in division was the existing garage area. The present construction does not allow the equal division in respect of the garage block facing the inner circle. The architect was of the opinion which has also been mentioned in her Floor plan that if the garage block was constructed with due sanction from NDMC and the covered area falls within the permissible limit of prevailing F.A.R. at the same time of approval from NDMC then the covered area may be relocated by Court orders so that both the parties get covered area on the ground floor facing the inner circle.
11. Considering the report of the learned Local Commissioner a consent order was passed on November 28, 2003 in the suit which reads as under:-
Counsel for the plaintiff states that if the defendants are prepared to demolish 50% of the garage area then the plaintiff would have a right to construct on the open land which will be the proposes share of the plaintiff in the garage. Counsel for the defendants agree to the proposal. The plaintiff may apply to the NDMC within two days for considering the proposal with regard to the construction in the garage block which may fall to his share. The NDMC shall take a decision on the representation of the plaintiff on or before the next date of hearing. List on 8th December 2003.
12. The agreed proposal as recorded in the order dated November 28, 2003 could not fructify on account of NDMC rejecting the request for 50% of the constructed portion in the garage to be demolished and replaced by equal construction on the open area abutting the garage block. Therefore, on December 18, 2003 a final decree was passed in the suit. The order reads as under:-
A preliminary decree for partition was passed in favour of the parties holding them to be owners of the undivided share in the property Nos.12 and 13, Block F, Connaught Place, New Delhi to the extent of 50% each. A Local Commissioner was appointed to inspect the premises and suggest modalities of partition by metes and bounds. The Local Commissioner filed his report and stated that there was no problem regarding the division of the main property. However, there is problem with regard to the partition of the garage area. The Architect who also visited the property was of the opinion that if the garage block was constructed with due sanction from NDMC and the covered area fell within the permissible limit of prevailing FAR at the time of approval from NDMC then the covered area may be relocated so that both the parties get covered area facing the inner circle.
The plaintiffs made a suggestion that if the defendant is prepared to demolish 50% of the garage area, then the plaintiffs would have a right to construct on the open land which would be the proposed share of the plaintiffs in the garage. The defendant did not oppose the proposal. Consequently, the parties applied to the NDMC for sanction of the said proposal.
Learned counsel for the NDMC states that the proposal for demolition and construction of the garage block has been rejected by the NDMC. Therefore, counsel for the parties agree that the garage portion be split into two equal portions and the portion that is contiguous to the portion of the defendant shall fall to the share of the defendant and the remaining half portion shall got to the share of the plaintiffs. Likewise, the open space of 2381 sq. ft. shall also be split into two equal portions and the area contiguous to the portion of the defendant shall fall to the share of the defendant and the remaining portion shall fall to the share of the plaintiffs. Counsel for the parties also agree that both the parties shall have free ingress and egress to the porch area.
Accordingly, the suit is decreed in terms of the report of the Local Commissioner with modifications made hereinabove. All other pending applications also stand disposed of. All the interim orders stand vacated.
Registry is directed to prepare the decree sheet expeditiously. Both the parties shall pay the stamp duty to be affixed on the decree in equal proportions and a site plan shall also be filed duly signed by the parties.
13. Immediately after the final decree was passed the appellants filed two applications registered as IA No.1659/2004 and IA No.1660/2004. The former invoked the inherent jurisdiction of the Court under Section 151 CPC. The first prayer made was that the defendant be directed to deposit its share of the stamp duty for a decree to be drawn up and the second was to direct the defendant to hand over possession of such portion of the suit property which upon partition fell to the share of the plaintiffs. The second application invoked the inherent as well as the correctional power of the Court and invoked Section 151, Section 152 and Section 153 of the Code of Civil Procedure. It was pleaded in the application that inadvertently an omission crept into the final decree dated December 18, 2003, in that, it was not incorporated that the plaintiffs would be entitled to possession of the 50% property which fell to its share as a result of the partition. The two applications have been disposed of by the impugned order dated July 09, 2014. The impugned order does not discuss the issue of stamp duty. The entire discussion is whether there was an unintentional omission in the final decree as asserted by the plaintiffs, and we simply note that even in the appeal no arguments were addressed on the issue of stamp duty. The entire thrust in the appeal was to the finding returned by the learned Single Judge in the impugned order that the correction sought, on the pleas that there was an unintentional mistake in the final decree, was not sustainable. Tersely put, the learned Single Judge has held that defendant s tenancy rights were not the subject matter of the suit and because the defendant was a tenant in the suit property occupying an area more than 50% the Court could not direct the defendant to surrender a portion of the tenanted premises so as to put plaintiff in actual physical possession of 50% area which fell to its share upon partition.
14. Sh.Arun Mohan learned senior counsel for the appellants urged that partition is a legal process by which joint title and possession of co-owners of the entire joint property is converted into separate title and possession of each of the co-owners in respect of specific item or items. The fundamental principle in a partition of a property is that, as far as possible, each party must get property in accordance with the party s share based on the market value of the property. A judgment should be complete and clearly indicate the relief granted. This contention was sought to be made good with reference to the undernoted judgments, and we extract the paragraph relied upon by learned senior counsel.
(i). (1916) ILR 43 Cal 504 Atrabannessa Bibi vs Safatullah Mia:
..The object of a suit for partition is to alter the form of enjoyment of joint property by the co-owners; or, as has some- times been said, partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons of joint lands, which belong to them as co proprietors, so that each becomes the sole owner of the part which is allotted to him; the essence of partition is that the property is transformed into estates in severalty and one of such estates is assigned to each of the former occupants for his sole use and as his sole properly.
(ii) AIR 1958 AP 647 Ramaprasada Rao Vs. Subbaramaiah:
23 ....Partition is a legal process by which joint title and possession of co-owners of the entire joint property is converted into separate title and possession of each of the co-owners in respect of specific item or items. The joint property is divided in specie and each one of the erstwhile joint owners is put in possession of specific extent of property, which is allotted to his share. But many contingencies may be visualised when in practice the division by metes and bounds of every item of joint family property is not possible.
(iii) AIR 2004 SC 1893 Vasantiben Prahladji Nayak Vs. Somnath Muljibhai Nayak:
6 .....partition is really a process by which a joint enjoyment of the property is transformed into an enjoyment severally. In the case of partition, each co-sharer has an antecedent title and, therefore, there is no conferment of a new title.
(iv) 2005 (3) AWC 2877 Jahar Singh Vs. Board of Revenue:
5 ....In view of this there is absolutely no reason as to why this factor of market value shall not be taken into consideration while actually partitioning the agricultural land amongst joint owners.
6 ....The fundamental principle of partition is that as far as possible in every regard all the parties must get equal type of the property in accordance with their share hence potential market value is always the first criteria for partition of the property.
(v) 2004 (2) JCR 603 (Jharkhand) Amit Raut Vs. Kanhai Rout:
6 ....when a Court passes a final decree without valuing the lands notionally for the purpose of effecting a division and proceeds to make allotment of shares without ensuring whether the shares intended to be allotted are equal in terms of value and commensurate with the share a sharer is entitled to in terms of the preliminary decree, it necessarily means that a fundamental error has been committed in the matter of passing a final decree.
(vi) 2005 (2) Bom CR 640 Champalal Bansilal Vs. Additional Commissioner:
8 The perusal of revisional order dated 30.8.1990 which is impugned in this petition clearly reveals that the revisional authority has found that most relevant point regarding the valuation of land involved in the partition has not been discussed anywhere by the Tahsildar in his order. The revisional authority further finds that there is no consideration of fertility of each land and its locational advantage or its nonagricultural potentiality by the Tahsildar, while making partition. The Additional Commissioner has found that this is a major flaw to partition done by the Tahsildar. The Additional Commissioner finds that the object behind the partition is not to allot equal share to each shareholder but as far as possible to allot each share-holder the property of equal value. The Additional Commissioner has concluded that the partition itself is defective and therefore, it was necessary to remand the matter to Tahsildar. Thus, it is clear that the Additional Commissioner has applied his mind to the controversy and has found that the physical equal partition between the parties was not proper.
(vii) AIR 2002 SC 2068 M.L.Subbaraya Setty Vs. M.L.Nagappa Setty :
29 ....It is correct that the only requirement is that property allotted to each co-sharer should bear approximately the same value as corresponds to his share.
(viii) AIR 2003 SC 351 Lakshmi Ram Bhuyan Vs. Hari Prasad Bhuyan:
10 The operative part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and complexities arising at the stage of execution.
11 It is for the Court, decreeing the suit, to examine the reliefs and then construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the findings arrived at on different issues and also the admitted facts.
12 .The parties, the draftsman of decree and the executing Court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing the appeal without further placing on record the reliefs to which the plaintiff are held entitled in the opinion of the Judge.
14 How to solve this riddle? In our opinion, the successful party has no other option but to have recourse of Section 152 of CPC which provides for clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission being corrected at any time by the Court either on its own motion or on the application of any of the parties. A reading of the judgment of the High Court shows that in its opinion the plaintiffs were found entitled to succeed in the suit. There is an accidental slip or omission in manifesting the intention of the Court by couching the reliefs to which the plaintiffs were entitled in the event of their succeeding in the suit. Section 152 enables the Court to vary its judgment so as to give effect to its meaning and intention.
(ix) 2009 (5) GLT 610 Braja Kalita Vs. Bipin Chandra Kalita:
16. As noticed above, though the Plaintiff-decree holder in the plaint made an alternative prayer for recovery of khas possession besides the main prayer, i.e. for confirmation of possession by declaring their right, title and interest, the judgment passed by the second appellate Court is not clear as to whether the Plaintiff's suit has been decreed for confirmation of possession or for recovery of khas possession. The decree drawn pursuant to such judgment, therefore, naturally does not have the details of the relief granted except saying that the suit of the Plaintiff is decreed in full. Unless the said position is clarified by the second appellate Court in exercise of the jurisdiction under Section 152 Code of Civil Procedure as observed by the Apex Court in Lakshmi Ram Bhuyan (supra), the executing Court cannot direct issuance of the writ of delivery of khas possession to the Plaintiff-decree holder by evicting the Defendants-judgment debtors.
15. On the issue whether a judgment as it stands represents the intention of the Judge at the time of passing the judgment, learned senior counsel relied upon the decision reported as AIR 2009 SC 2136 Tilak Raj Vs. Baikunthi Devi wherein it has been observed as under:-
15 Since the court exists to dispense justice, any mistake which is found to be clerical in nature should be allowed to be rectified by exercising inherent power vested in the court for sub-serving the cause of justice. The principle behind the provision is that no party should suffer due to bona fide mistake. Whatever is intended by the court while passing the order or decree must be properly reflected therein otherwise it would only be destructive of the principle of advancing the cause of justice. In such matters, the courts should not bind itself by the shackles of technicalities.
16. Counsel also relied upon the decision reported as 1997 (2) ALT 474 Tandra Satyanarayana Rao Vs. Tandra Paparao wherein it has been observed as under:-
5 .In a suit for partition, every party to the suit is in the position of plaintiff and the preliminary decree has to specify not only the share of the plaintiff but also the shares of the parties interested in the property and it also enables the Court which passes the Decree to give such further directions as may be required. In the present case, though the learned District Munsif gave a specific finding under issue No.6 that the petitioner herein is also entitled for 1/5th share in items 1 to 4 of A-Schedule, he failed to give effect to such finding in the operative portion of the Judgment and consequently the preliminary decree passed in pursuance of such Judgment was also silent on that aspect. Such failure to mention the share of the petitioner in the operative portion as well as in the preliminary decree is only due to accidental slip or omission in giving effect to the specific finding arrived at in the Judgment. The Court is not only entitled but is bound to brush aside a mere technicality which stands in the way of justice and to amend such mistakes, slips or omissions as may appear in the Judgment or Decree, to preserve justice in order to give effect to the real and substantial right of the parties. The test to determine whether the slip or omission as contemplated under Section 152 C.P.C. is accidental or not is to see whether the Judgment and Decree as they stand represent the intention of the Judge at the time he passed the same. The minimum requirement to determine such question would be the presence of some material or indication in the Judgment that the Court had originally intended to provide or grant such relief which was, however, omitted in the operative portion of the Judgment. If there are any such errors arising from accidental slip or omission they can be corrected subsequently not only in the Decree drawn but even in the Judgment pronounced and signed by the Court. In the present case, as already stated above, there was a specific finding given by the Court that the petitioner is entitled for 1/5th share in items 1 to 4 of ASchedule family properties and the intention of the Presiding Officer for granting relief to the petitioner herein regarding his share in the family properties is quite evident from such specific finding given in issue No.6. The subsequent omission to carry out such intention in the operative portion covered by issue No.21 can therefore be said to be due to accidental slip or omission and in view of such omission, the preliminary decree was also silent about the share of the petitioner in the properties. Section 152 C.P.C. is intended only to cover such cases. Such mistakes in the Judgment and Decree can be amended even under the provisions of Section 151 and 153 C.P.C. in order to give effect to the intention of the Presiding Officer as revealed from a over all perusal of the Judgment. Therefore, the lower Court has erred in rejecting the petition for such amendment of Judgment and Decree by observing that the omission in the operative portion of the Judgment and in the preliminary decree to mention about the share of the petitioner cannot be said to be due to any accidental slip or omission and also holding that the only relief open to the petitioner is to file appeal or revision or a review petition to question such Judgment and Decree. Such finding of the lower Court is clearly erroneous and illegal and is, therefore, liable to be interfered with in the present revision.
17. Learned senior counsel further urged that while deciding a suit relating to immovable property every endeavour has to be made to ensure that the successful party is not deprived of the fruits of the success of the decree and for which learned counsel relied upon the decisions reported as AIR 2003 SC 643 Pratibha Singh Vs. Shanti Devi Prasad and 133 (2006) DLT 1043 Motor and General Finance Ltd. Vs. Gautam Roy wherein it was held that power under Section 152 of the Code of Civil Procedure could be exercised to correct a decree if there was vagueness or omission therein to ensure that a successful plaintiff should not be deprived of the fruits of the decree.
18. Learned senior counsel urged that a suit for partition attains finality only when there is a direction to deliver possession of the portion of the property which falls to the share of a co-owner and for which proposition learned counsel relied upon the decisions reported as (1902) ILR 25 Mad 244 (Full Bench) Mallikarjunadu Setti Vs. Lingamurti Pantulu, 1991 (3) SCC 647 S.Sai Reddy Vs. S.Narayana Reddy and AIR 1997 SC 471 Ghantesher Ghosh Vs. Madan Mohan Ghosh.
19. Sh.Arun Mohan learned senior counsel further argued that if a party had a grievance concerning a judgment and makes a prayer for rectification of an omission the only forum available is to move an application before the Court which had passed the judgment and for which proposition learned senior counsel relied upon the decision reported as 2007 (14) SCALE 306 Mohd.Akram Ansari Vs. Chief Election Officer.
20. Learned senior counsel took the argument further by urging that it is the duty of the Court which passed the judgment if on account of fault of the plaintiff or any other reason the Court failed to incorporate the relief of possession and for which learned counsel relied upon the decisions reported as 1988 Rajdhani Law Reporter 658 Hari Singh Vs. Sher Singh, AIR 1975 Karnataka 107 Kale Gowda Vs. Akkayyamma, Prabhulal Beharilal Vs. Gheesalal Onkar and 2004 (5) ALD 287 Faqruddin Vs. Didde Mahadevappa.
21. Learned senior counsel urged that a partition which is unfair or unequal can always be reopened as was held in the decisions reported as AIR 1991 Patna 95 Radhamoni Bhuiyanin Vs. Dibakar Bhuiya, AIR 1966 Madras 266 P.N.Venkatasubramania Iyer Vs. P.N.Easwara Iyer and Regular Second Appeal No.272/2002 Shantawwa Vs. Neelamma decided by the Karnataka High Court on March 31, 2009.
22. Anchoring the arguments learned senior counsel urged that no act of a Court should harm a litigant and upon being pointed out, exercising its inherent powers a Court must rectify the mistake and for which learned senior counsel relied upon the decisions reported as AIR 1996 SC 1631 Jang Singh Vs. Brijlal, AIR 2007 SC 2762 Japani Sahoo Vs. Chandra Sekhar Mohanty, AIR 2009 SC 3139, Haryana State Electricity Board Vs. Gulshan Lal, AIR 2009 SC 1089, S.Satnam Singh Vs. Surender Kaur, AIR 2008 SC 225, Niyamat Ali Molla Vs. Sonargon Husing Cooperative Society Ltd., AIR 1929 Allahabad 337 Hukum Singh Vs. Surajpal Singh, AIR 1950 Patna 183 Khudu Mahto Vs. Bhim Mahto, AIR 1984 Patna 354 Rajeshwari Singh VS. Lakhrajo Kunwar and 1982 (84) Bombay Law Reporter Vasant Laxman Deshmukh Vs. Sakharam Limbaji Jadhav.
23. Sh.Abhinav Vashisth learned senior counsel for the respondent urged that the appeal was not maintainable inasmuch as vide impugned order the learned Single Judge has decided an application seeking correction of a decree and thus the impugned order was not a judgment within the meaning of Section 10 of the Delhi High Court Act, 1966. On merits learned senior counsel urged that whereas there could be no dispute to the propositions of law declared in the various judgments cited by Sh.Arun Mohan, senior counsel, none was applicable for the reason the tenancy rights of the respondents were not a subject matter of the suit. Learned senior counsel urged that at no stage did the respondent surrender its tenancy and at no stage did the Dass family seek a determination of the tenancy.
24. On the issue of the maintainability of the appeal, suffice it to state that in view of the law declared in the judgments noted by us hereinabove in paragraph 14 to16, if the learned Single Judge exercising original jurisdiction in this Court does not correct an accidental slip or omission in manifesting the intention of the Court, the appeal would lie and indeed in Lakshami Ram Bhuyan s case (supra) the Supreme Court had itself allowed the appeal noting that there was an accidental slip and an omission in the decree passed by the Court.
25. On merits, there can be no exception to the legal arguments advanced by Sh.Arun Mohan, learned senior counsel for the Dass family, but the question arises whether on the facts of the instant case it can be said that the omission to incorporate that the parties would be put into physical possession of the respective portions assigned to them in the suit property was an accidental or an unintentional omission.
26. Now, the Dass family knew, and as a matter of fact has pleaded the tenancy rights of the respondent. It has also been pleaded that as a tenant the respondent is occupying an area much in excess of 50%. There is no prayer in the plaint to declare that the tenancy had stood determined.
27. Whilst it may be true that in a suit for partition while effecting partition by metes and bounds the fair market value of the property has to be ascertained and the partition must represent money value equivalent share in the property in proportion to the ownership right of the parties. Had the property been in possession of the co-owners as co-owners alone, there would have been no problem to direct the co-owner possessing a portion of the property which upon partition fell to the share of the other co-owner to deliver possession thereof. But where a co-owners, having 50% share in a suit property, has a tenancy right in an area more than 50% of the property, the tenancy rights would be distinct and it would not be a case of merger of the lease-hold interest in the ownership interest. As held by the Supreme Court in the decision reported as 1976 SCR (3) 789 Shah Mathura Dass Magan Lal and Co. Vs. Nagappa Shankarappa Malaga merger of an inferior interest in the superior interest in an immovable property takes place where the whole of the inferior interests vests at the same time in the same person s superior interest. The doctrine of merger is founded on the principle of avoidance of inconsistency. In the decision reported as AIR 1951 SC 186 Badri Narain Vs. Rameshwar it was held that there is no merger of the tenancy rights if the tenant purchases only a part of the landlord s reversionary interest. It is true that by an agreement between a landlord and a tenant there can be a partial surrender of the tenancy right by the tenant in favour of the landlord as was held by the Supreme Court in the decision reported as AIR 1991 SC 899 Krishana Kumar Khemka Vs. Grindlays Bank P.L.C. and Ors., but the same has to be by consent and not by any implication.
28. In the decision reported as ILR 1994 Karnataka 913 Tata Consulting Engineers Vs. UOI it was observed:-
24 .As a consequence, in cities like Bangalore, Bombay or Delhi, when compared to the market price of a property with vacant possession, a property subject to a lease/tenancy, will fetch only a considerably lower price, the price difference varying as much as 20 per cent to 50 per cent or more.
29. In the decision reported as AIR 1984 Calcutta 130 Smt. Swarnalata Tat Vs. Chandi Charan Dey it was observed:-
32 ...A vacant property if sold would generally if not invariably fetch better price than a property which is in the possession of a tenant or a Bargadar.
33 ....The principle is well established that market value has to be ascertained in each case having due regard to the condition of the time and factors which affected the transaction between a willing seller and a willing buyer. Bargadar or Bhagidar being in possession of the suit property at the time of sale is crucial factor affecting the value of the suit property.
30. Now, a major portion of the suit property being concededly under the tenancy of the respondent its fair market value would be depressed and if the property was sold to satisfy the 50% ownership claim of the Dass family it would have fetched a lesser price which would have been shared equally between the Dass family and the respondent. But the respondent s tenancy rights would have remained intact. Looked at differently, the tenancy rights of the respondent needed to be factored in when the decree for partition was passed.
31. The Dass family did not raise any issue on the tenancy rights of the respondent. The proceedings before the Local Commissioner and the order passed on November 28, 2003 would show that the concern of the parties was to equalize the built up area on the land so that the cake could be cut into two pieces with icing i.e. built up area being equal. There being no reference either in the pleadings or any order or for that matter in the report of the local commissioner as to what would happen to the tenancy rights of the respondent, it would be difficult to accept that it was a case of an unintentional omission to record in the final decree that parties would be put in physical possession of 50% of the built up property as per the division thereof.
32. It is also not a case where one can say that the decree passed is not clear and precise. The decree is clear and precise. It physically partitions the suit property and clearly specifies the 50% share of both parties. There being no prayer in the plaint that the tenancy of the respondent be declared to have lapsed it cannot be said that by implication it has to be read that the respondent agreed to a partial surrender of its tenancy right.
33. The appeal is accordingly dismissed but without any order as to cost.