Manmohan Singh, J.

1. By this order, I shall dispose of the two applications being IA No. 4874/2007 filed by the plaintiff under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC and IA No.14836/2007 filed by the defendant under Order 7 Rule 11 CPC.

2. The brief facts as per the plaint are that the plaintiff and defendant are real brothers and sons of late Shri Mohan Lal Puri and late Smt.Kaushalya Devi. They are the co-owners in equal proportion of the suit property i.e. 50% each of the property consisting of a plot measuring 518.180 sq.yds. and a residential house built thereon bearing municipal No.S-164, Panchshila Park, New Delhi.

3. By a perpetual sub lease deed dated 18.06.1969 executed between the President of India, Panchshila Cooperative House Building Society Limited on one hand and the plaintiff and the defendant, on the other, a perpetual sub lease was granted in favour of both the plaintiff and the defendant with respect to the said property.

4. The Society vide their letter dated 07.02.2006 has also certified that the plaintiff is a member of the aforesaid Society and one of the owners of the said plot. It is also averred in the plaint that the plaintiff and the defendant jointly applied for permission to construct on the said plot and got the building plans sanctioned from M.C.D. on 09.02.1973.

5. According to the plaintiff, late mother of the parties supervised the construction of the premises and the plaintiff and their mother contributed the funds for construction of the premises and the defendant at the relevant time was serving in the Army and he had no extra money to contribute towards the construction of the house.

6. The construction of the said house was completed and approved by M.C.D. on 26.08.1976 and thereafter the suit property was given on rent and the rent was enjoyed by both the parties equally and was used for maintenance of the house, taxes and expenses for litigation with the tenant, and maintenance of the mother of the parties etc.

7. It is further averred in the plaint that the plaintiff had a joint account with his mother in Bank of India and contributed to the said of the property.

8. The mother of the parties expired in 1994. In view of the above said facts of the present case, the plaintiff and the defendant, having half share each in the suit property, continued to be the co-owners thereof. In October1995 the plaintiff opened a joint account with the defendant in Union Bank of India at Noida, as the defendant was residing at Noida, by depositing Rs.4,000/-. It was agreed that the rent proceeds of the suit premises shall be deposited in this account.

9. After the death of their mother, the defendant, who is the power of attorney holder of the plaintiff, looked after the litigation and received the rent on behalf of both the co-owners. The defendant acquired a flat at Noida where he was residing while the plaintiff continued to reside in U.S.A.

10. Suit premises was vacated in the year 1998 and on vacation of the premises, the defendant left his flat and began to reside in the suit premises and the plaintiff as per the arrangement between the parties used to reside in the premises whenever he visits India.

11. Further some of the household articles like clothes and paintings etc. were/are lying in the said premises and in view thereof, the plaintiff submits that the plaintiff has throughout enjoyed the joint and constructive possession of the premises as co-owner.

12. It is also stated in the plaint that the plaintiff used to visit India three to four times in a year and used to enjoy the suit property. However, in the absence of the plaintiff, the defendant was managing the premises in a fiduciary capacity from the plaintiff, who is the co-owner of the premises.

13. The case of the plaintiff is that at various times the plaintiff requested the defendant by showing his desire to partition the suit property by metes and bounds but the defendant continued to evade the issue, therefore, the plaintiff was forced to send a legal notice dated 27.02.2006 demanding the partition of the suit property.

14. On receipt of the said notice, the defendant filed a suit for permanent injunction and damages against the plaintiff herein on the ground that the plaintiff is threatening to evict him from the suit premises in an unlawful manner. The said suit was filed in this court being CS[OS] No.402/2006, which is still pending wherein the defendant has admitted that the plaintiff and defendant are co-owners of the premises in various paragraphs.

15. Since the defendant had failed to agree to amicable partition of the property despite various demands, therefore, the present suit has been filed by the plaintiff against the defendant. The present suit along with the interim application being IA No.9840/2006 was for the first time listed on 04.09.2006 when in the presence of the counsel for the defendant, the interim order was passed. The operative portion of the interim order is as under :-

It is not in dispute that the plaintiff and the defendant are real brothers and sons of late Shri Mohan Lal Puri. It is also not in dispute that the plaintiff and defendant are co-owners and equal shareholders of the suit property bearing No.S-1/164, Panchsheela Park, New Delhi. Both counsel state that there is likelihood of settlement between the parties being real brothers and there being no dispute about the fact that they are co-owners of the suit property. List for settlement on 20th November, 2006. In the meantime, the defendant is restrained from creating any third party interest in the suit property.

16. During the pendency of the suit, the plaintiff filed an application being IA No. 4874/2007 under Order 12 Rule 6 read with Order 20 Rule 18 and Section 151 CPC praying to pass a decree for partition by metes and bounds on the basis of admissions made by the defendant in the pleadings and in CS(OS) No.1695/2006, filed by the plaintiff and in CS (OS) No.402/2006, filed by the defendant and in view of the site plan as well the perpetual sub-lease deed having also been admitted as Ex.P-16 in CS (OS) No.402/2006 and the site plan as Ex.P-1.

17. In the said application, the plaintiff has referred to paragraphs 1, 3, 14 and 18 of the plaint/suit filed by the defendant being CS(OS) No.402/2006, where, according to the plaintiff, the defendant has made the admissions. The said paragraphs are as under :-

1. That the plaintiff is the owner/lessee of the suit premises bearing No.S-164, Panch Shila Park alongwith the defendant No.1. the premises were allotted by the Panchshila Co-operative House Building Society Limited, New Delhi, in the name of the plaintiff in the early 60s. The plaintiff constructed the suit premises out of his own funds in the early 70s. 3. That subsequently the said suit property was sub-leased to the plaintiff and defendant No.1, who is the real brother of the plaintiff by the Panchshila Co-operative House Building Society Ltd. vide a perpetual sub lease deed datd 18.6.1969. 14. The defendant No.1 is residing in New York since the last more than four decades. The defendant No.1 is a co-owner of the said suit property alongwith the plaintiff but never had any physical possession, enjoyment or the use of the said suit property, which is in the absolute, uninterrupted, peaceful, physical possession, user, occupation and control of the plaintiff.

18. That in the 2nd week of December, 2005 the defendant No.1 visited the plaintiff and asked the plaintiff to vacate the said suit property so that the same could be sold to builders in collaboration. The defendant No.1 further said that the plaintiff has sufficiently enjoyed the said suit property and now the defendant No.1 wants to sell the entire premises and make a profit for himself. But the plaintiff resented the threats of the defendants and asked them to drop their malafide objectives since he is the rightful co-owner of the said suit property and hence can not be disposed without the due procedure of law.

18. On the other hand, the defendant has also filed an application being IA No.14836/2007 under Order 7 Rule 11 read with Section 151 CPC praying that the direction be issued to the plaintiff to correct the valuation for the relief of the partition for the purposes of court fees within the time fixed and to supply the requisite court fees stamp papers on the ad valorem market value and on the failure of the plaintiff to do so, to reject the plaint under Order 7 Rule 11 CPC. In this application, the contention of the defendant is that the plaintiff has valued the suit for the purpose of relief of partition for the purposes of jurisdiction at Rs.1 crore being the market value of the property and the for the purpose of court fee at Rs.19.50/- under Article 17[6] of the Schedule to the Court Fees Act.

19. It is stated in the said application that the plaintiff is admittedly out of possession of the suit property and the plaintiff has never been in possession of the suit property since last more than 40 years and in para-14 of the plaint, the plaintiff has admitted and specifically stated that since the defendant is permanently settled in India, he was enjoying the exclusive beneficial use of the property as the plaintiff used to visit India only 3 to 4 times a year.

20. According to the defendant, the plaintiff is neither in actual physical possession nor in control or management of the suit property even jointly and in view thereof, there is a complete ouster of the plaintiff from the possessory management and for any other direct involvement in the affairs of the suit property.

21. It is further averred in the application that the fact of the plaintiff being out of possession of the suit premises has further been recognised vide the order dated 06.03.2006 passed in CS [OS] No.402/2006 wherein the factum of residence has been shown, prima facie, on the basis of photocopies of the telephone bills, driving licence, gas connection, ground rent receipts, ration card, bank pass-book and postal certificates, which are indicative of the presence of the defendant and his wife in the said premises.

22. The application filed by the defendant under Order 7 Rule 11 CPC being is opposed by the plaintiff on various grounds. The defendant has also made various averments as have been stated in the plaint.

23. The plaintiff has given the following instances in order to show the constructive possession of the plaintiff :-

a] After the demise of their mother, the plaintiff continued to follow up the litigation and paid an amount of Rs.5,000/- to the lawyers of the parties by cheque as legal fees;

b] In October 1995 the plaintiff opened a joint bank account with the defendant in Union Bank of India at Noida where the rent was supposed to be deposited;

c] The plaintiff gave a power of attorney in favour of the defendant, who received the rent on behalf of both the co-owners of the suit property;

d] The relationship between the parties herein is evident in the hand written letter of the defendant dated 01.09.1977 where the defendant has sought to apprise the plaintiff of the decision to compromise the eviction suit on the advice of the counsel and various UTIs, dividends and other shares being held by the plaintiff; and

e] After the vacation of the house, it was mutually agreed that the defendant would shift to suit premises as the parties did not want to give the premises on rent due to reason that the plaintiff shall use the premises whenever he visits India.

24. The detail of the plaintiffs visits to India for the period 1999 to 2006, which constitutes more than 15 visits, is given in para-5 of the reply to this application. It is also stated in the said reply that there was a memorandum of understanding dated 28.02.1995 wherein there are admissions to the effect that the land and property located at S-164, Panchsheel Park, New Delhi is jointly owned property of Pramod C. Puri and Umang K. Puri and both partners agreed to further develop the said property as per the will and wishes of their late mother Smt.Kaushalyavati Puri. In view of the above said objection to the application raised by the plaintiff, it is stated that the plaintiff has throughout enjoyed the joint, symbolic and constructive possession of the premises as co-owner, thus, it is wrong that the plaintiff has been out of possession for the last 40 years.

25. I have heard the learned counsel for the parties at a great length and have gone through the relevant pleadings and documents on record.

26. As far as the application under Order 12 Rule 6 CPC is concerned, it is not in dispute that the various admissions have been made by the parties in respect of the property and the two cross-suits being the present one as well as CS [OS] No.402/1996 filed by the defendant. The relevant paragraphs in the suit filed by the defendant have also been referred to hereinabove, which are self-explanatory, coupled with the fact that the present suit was listed along with the interim application wherein the interim order was passed in the presence of the defendants counsel wherein it was specifically mentioned that it is not in dispute that plaintiff and defendant are real brothers and are co-owners and equal shareholders of the property.

27. In this order, it is also made clear that both the counsel for the parties agreed for settlement of the matter between the parties which was again indicative of the fact that they are co-owners of the suit property. It is pertinent to mention that subsequent to this order, the defendant filed an application being IA No.11352/2006 under Order 39 Rules 1 and 2 CPC praying for restraint against the plaintiff from selling, mortgaging, parting with possession or in any manner creating any third party interest in suit premises and in this application, the defendant has mentioned in para-5 about the order dated 04.09.2006.

28. It is further stated in para-6 of the application that after the said order, the defendant has come to know that the plaintiff is planning to create third party interest in the suit property, therefore, the interim order against the plaintiff restraining the plaintiff not to create third party interest be passed.

29. This court vide order dated 28.11.2006 modified the order dated 04.09.2006 to the extent that the parties shall maintain the status quo with regard to title, possession and construction of the property bearing No.S-1/14, Panchsheela Park, New Delhi till further orders.

30. Learned counsel for the defendant states that the order dated 4th September, 2006 has been passed by the court without the consent of the defendant. The said order has been passed by the court at its own as the defendant has not pointed out to the court that the defendant and the plaintiff are the joint owners of the property and they have equal share to the same. I do not find any merit in the submission of learned counsel for the defendant. The admission regarding co-ownership is not merely referred in the order dated 04.09.2006 but the same can be gathered from other pleadings and documents also. It is also pertinent to mention that after passing the order dated 04.092006, the defendant filed two applications one under Order 39 Rule 1 and 2 for modification of the interim order and I.A. No. 11353/2006 under Order 8 Rule 1 CPC for extension of time for filing the written statement and in these applications, no such plea was taken. Therefore, it does not lie in the mouth of the defendant to say that the said order dated 4th September, 2006 has been passed without the consent of the parties.

31. Even in the earlier suit filed by the defendant being CS [OS] No.402/2006 order passed by this court also indicates that the parties are trying to resolve the matter. Another aspect of the matter is that the defendant in para-6 of the application filed under Order 7 Rule 11 CPC being IA No.14836/2007 referred to the order passed in his suit being CS [OS] No.402/2006 dated 06.03.2006 wherein it is also mentioned that prima facie the defendant herein has shown that he is one of the co-owners of the property in question.

32. As per the pleadings, the defendant has changed his stand for the first time in the rejoinder filed to the reply filed by the present plaintiff to the application of the defendant filed under Order 7 Rule 11 CPC being IA No.14836/2007 that the suit property is self-acquired property of the defendant and was not the property of the mother of the parties and, therefore, the same could not have been conveyed by way of alleged Will of late mother of the parties and the suit CS (OS) No.402/2006 was filed by the defendant herein in a state of fear, perhaps the defendant has not expressed the correct position of the ownership.

33. On the basis of the above said averments made in the rejoinder, learned senior counsel for the defendant has argued that there is no clear admission made in the pleadings or otherwise and the application of the plaintiff is, therefore, liable to be dismissed.

34. Learned counsel for the defendant has strongly referred the judgment reported at 2006 [IX] AD DEL 574 Express Towers vs. Mohan Singh and has argued that a decree under Order 12 Rule 6 CPC must be passed on admissions, which are clear and unambiguous. When the admissions are not clear, the court has the discretion to refuse 97[2002] DLT 754 R.K. Makran vs. Rajiv Kumar Makran & Ors., 81[1999] DLT 779 [SC] Balraj Taneja & Ors. vs. Sunil Madan & Ors., 2007 I AD Del 184 Jasbir Sobti & Ors. vs. Surender Singh, 2007 VII AD Del 266 Vijay Gupta & Ors. vs. Shri Ashok Kumar Gupta, 129 [2006] DLT 755 [DB] Raj Kumar Chawla vs. Lucas Indian Services, 115 [2004] DLT 288 Gujarat Lease Financing Ltd. vs. Competent Automobiles and 2006 V AD [Del] 667 Charanjit Singh vs. Kehar Singh.

35. It appears from the said judgments cited by the learned counsel for the defendant that the crux of the said matter is that the provisions of Order 12 Rule 6 CPC are discretionary and not mandatory and it is not incumbent upon the courts in all cases to pass judgment on admission and in order to succeed under Order 12 Rule 6 CPC, the admission of the other party has to be clear and unequivocal.

36. I feel that there is no dispute regarding the proposition of law is concerned, under Order 12 Rule 6 CPC the law is pretty settled, in this connection, the reference has been made to the decision of the Apex Court reported in the case of Uttam Singh Duggal & Co. Ltd. V/s. United Bank of India [2000] 7 SCC 120 [LQ/SC/2000/1172] where their Lordships have held as follows :-

In the objects and reasons set out while amending Rule 6 of Order 12 CPC it is stated that where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the rule is to enable the party to obtain a speedy judgment at least to the has held as under :-

37. Another judgment of the Division Bench of this Court in the case titled as Delhi Jal Board Vs. Surednra P Malik, reported as 2003 III AD Del 419, the Division Bench has held as under :-

"6. Judgment on admissions. - (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion, and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced."

8. The provision confers almost sweeping powers on the Court to render a speedy judgment in the suit to save the parties from going through the rigmarole of a protracted trial. The only pre-requisite for this is that there must be admissions of fact arising in the suit, be that in the pleadings or otherwise or orally or in writing. Such admission of facts must be clear and unequivocal, unconditional and unambiguous and may relate to the whole claim or a part of it. These need not be made specifically or expressly and could be a constructive admissions also. Whether or not such admission arose in the suit would depend on the facts and circumstances of the case. If it involved disputed facts, claims and counter claims requiring evidence of parties for determination of issues or where the defense of a party touched the root of the matter, a judgment could not be passed under Order 12 Rule 6 dispensing with the trial because the valuable right of going to trial could not be taken away from the party unless the claim was admitted. A duty was, therefore, cast on the court to ascertain the admission of facts and to render judgment on these either in respect of the whole claim or a part of it. The court could do so on its own or on the application of a party and without waiting for the determination of any other question between the parties. It could do so at any stage of the suit. Dealing with the scope of provision, Supreme Court said in Uttam Singh Duggal Vs. Union :-

"Where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled. We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain a speedy judgment. Where the other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which it is impossible for the party making such admission to succeed."

9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained. It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered even constructively for the purpose of rendering a speedy judgment.

38. Learned counsel for the plaintiff has also cited various judgments on this aspect. However, it is not necessary to refer to all the judgments cited by the learned counsel as the law on this subject is well settled and has already been discussed in various decisions of the Apex Court as well as of this court. It is clear that the admissions need not be made expressly in the pleadings and even on constructive admissions, the court can proceed to pass a decree in favour of the plaintiff under Order 12 Rule 6 CPC.

39. However, the purport and intent of Rule 6 of Order 12 CPC is to enable the parties to obtain speedy justice to the extent of relevant admission, which, according to admissions of other party, he is entitled for. The court on its own motion and without even an application by a party can proceed to pass a decree on admissions. The admissions may be made either in the pleadings or otherwise, i.e. the rule is wide enough to afford relief not only in case of admission mentioned in the pleadings but also de hors the pleading. Thus, the admission contained in letters or other documents written or executed between the parties before the action is brought are also sufficient for the purpose of this rule.

40. In view of the well settled principle of law, the arguments of the learned counsel for the defendant that the alleged admission referred to by the plaintiff are not in the present pleadings but in the suit filed by the defendant, have no force.

41. In view of the above facts and circumstances of the case and well settled law on the subject, I am of the considered opinion that the plaintiff has made out a case within the four corners of the provisions of Order 12 Rule 6 CPC and the plaintiff is entitled for a decree of partition as claimed by the plaintiff in the plaint. IA No. 4874/2007 is allowed accordingly.

42. In the result, a preliminary decree for partition in respect of the suit property is passed in favour of the plaintiff in terms of the prayer made in the plaint. It is further held that the plaintiff and the defendant are the co-owners of the property in dispute and have an equal share in the property in question. Mr. Sanat Kumar, Advocate, (Mobile No.9810295798) is appointed as a local commissioner to suggest the mode of partition by metes and bounds after inspection of the property and submit a report as to whether the property in question can be partitioned by metes and bounds. The parties are directed to appear before the local commissioner on 01.05.2009 at 4:00 P.M.

43. Each of the party shall pay a fee of Rs.35,000/- to the local commissioner over and above the actual expenses incurred by him. The parties shall render necessary cooperation to the local commissioner to access the property in question. The local commissioner shall file his report within six weeks from the date of visit at the site along with the site plan. A copy of this order be given dasti to the local commissioner for information and compliance. IA No. 14836/2007 in C.S. [OS] No.1695.

44. As regards the application under Order 7 Rule 11 CPC filed by the defendant is concerned, the defendant has referred various judgments reported as 116[2005] DLT 392 Harjit Kaur & Ors. vs. Jagdeep Singh Rikhy, 80 [1999] DLT 357 Ranjana Arora vs. V.P. Aggarwal, 124 [2005] DLT 305 Sudershan Kumar Seth vs. Pawan Kumar Seth & Ors., AIR 2007 Delhi 60 Nisheet Bhalla & Ors. vs. Malid Raj Bhalla & Ors., and 128 [2006] DLT 633 Sonu Jain vs. Rohit Garg in support of his submissions and the learned counsel for the defendant has argued that the plaintiff is neither in possession nor in control or management of the suit property even jointly nor he is in symbolic possession, therefore, the plaintiff has to make good the deficiency in the court fees. On the other hand, learned counsel for the plaintiff has referred the statements made in the plaint as well as admissions made by the defendant in the present suit as well as the suit filed by the defendant against the plaintiff wherein various admissions were made about the joint ownership of the property as well as constructive possession of the plaintiff in respect of the suit property.

45. He has also referred to the reply filed by the plaintiff to the said application filed by defendant under Order 7 Rule 11 CPC, which have already been discussed hereinabove by me. Learned counsel for the plaintiff has also referred the judgment of this court reported as 155 [2008] DLT 300 Saroj Salkan vs. Captain Sanjeev Singh & Ors. wherein in para-8 of the said judgment, decision of the Apex Court in the matter titled as Jagannath Amin v. Seetharama [2007] 1 SCC 694 [LQ/SC/2006/1067] , has been referred, which reads as under :-

The general principle of law is that in the case of co-owners, the possession of one is in law possession of law, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property, Equally it is not necessary that he should be getting a share of some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37[1] of the on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been excluded from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.

46. The general principle of law is that in case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. In view of the facts and circumstances of the present case, it is not clear that the defendant has proved the ouster or exclusion of the plaintiff in respect of the suit property. Therefore, this application has no force in law and the same is dismissed accordingly.

C.S.[OS] No.1695 of 2006

47. List on 01.07.2009 to await the report of the local commissioner.