.* HIGH COURT OF DELHI : NEW DELHI
+ I.A. No.1086/2012 in CS (OS) No.2192/2006
% Order decided on: 09.02.2012
Shri Ashok Rekhi ..... Plaintiff
Through: Mr A.S. Thakur, Adv with
Mr Chanchal Kumar and
Mr R.K. Mishra Advs.
Versus
Smt. Chanda Bhasin & Ors ..... Defendants
Through: Mr J.P. Verma, Adv. for D-1 & 2.
None for defendants 3 and 4.
Coram:
HON'BLE MR. JUSTICE MANMOHAN SINGH
MANMOHAN SINGH, J. (Oral)
1. This present application is filed by the plaintiff under section 151 of the Code of Civil Procedure 1908, seeking direction from this Court to execute the fencing work at Emily Cottage, Ayarpatta, Mallital, Nainital, U.P. (now Uttarakhand). If required, with the assistance of District Magistrate and Police, Nainital and also prays for an ex-parte ad interim order for the same. Apart from this application, one suit is filed for partition and injunction. The other suit for grant of probate, bearing No. 52/2006 is also pending adjudication before this Court.
2. The plaintiff states that during pendency of the suit, this Court had passed an order dated 12.02.2007, wherein this Court was pleased to direct fencing work of the unsold portion of the property CS (OS) No.2192/2006 Page 1 of 4 situated at Emily Cottage, Ayarpatta, Mallital, Nainital, U.P. (now Uttarakhand).
3. It is stated by the plaintiff that the said property was divided into 6 six equal parts in which the mother of the plaintiff Late Smt. Kushal Rekhi had 6600 sq ft. Out of the said area, an area of 3760 sq ft was sold to one Mr. Narang and Smt Asha Narang in the year 2002. A sale deed was executed by Smt Kushal Rekhi. The remaning of 2840sq ft was unsold.
4. It is submitted by the plaintiff that after fencing of the unsold portion, the said property remained unattended for about 3 ½ years. During this time some steel wires and iron gates were stolen. Since the fence of the unsold portion (which belong to plaintiff's mother) was removed, the plaintiff moved an application dated 07.07.2011, for demarcation as well as proper fencing of the property before the SDM Nainital.
5. The SDM, Nainital, issued direction to Kanungo and Amin for requisite steps. The plaintiff erected a board and laid initial foundation for erection of iron pillars.
6. The plaintiff states that on 13.07.2011 he came back to Delhi and received a call from his Manager that the board was removed and the workers were threatened with dire consequences by one Mr. Kamal Nayan Tripathi, who claimed to be the owner of the said unsold portion. But on further questioning by the Manager, Mr. Kamal Nayan Tripathi could not establish any claim for the same.
CS (OS) No.2192/2006 Page 2 of 47. It is also stated by the plaintiff that Mr. Kamal Nayan Tripathi is fully aware that the unsold portion belongs to the plaintiff and is willfully creating nuisance and hindrance to the workers. Plaintiff also brings to the knowledge of this Court that Mr. Kamal Nayan Tripathi does not have any connection, right, title or interests over the said property and thus seeks interference of this Court for properly carrying out the fencing work in pursuance to the order dated 12.02.2007, without any hindrances and or obstacles by any third person.
8. The learned counsel, appearing on behalf of the defendants 1 and 2, states that his clients have no objection for compliance of the order dated 12.02.2007.
9. No one appears on behalf of other defendants 3 and 4. In view of the order passed on 12.02.2007 and the statement made in the application, the same is allowed. It is directed that the order already passed on 12.02.2007 for fencing of the property, i.e., Emeily Cottage, Ayarpatta, Mallital, Nainital, unsold portion admeasuring 2840 sq. ft. belonging to late Smt. Kushal Rekhi, be complied with. Accordingly, Mr K.K. Jha, Advocate (Mob. 9811403833 and 9811982508), is appointed as a Local Commissioner for the purpose of compliance of order dated 12.02.2007. If required, he may take the assistance of District Magistrate and Police, Nainital, to ensure the said compliance. He can also take the employment of local person for the purpose of fencing and compliance of the said order. The fee of the Local Commissioner at the first instance is fixed at Rs.50,000/- which shall CS (OS) No.2192/2006 Page 3 of 4 be paid by the plaintiff. The remaining fee would be considered depending upon the work. Dasti.
The application I.A. No.1086/2012 is disposed of.
CS (OS) No.2192/2006 List on 13.04.2012.
MANMOHAN SINGH, J.
FEBRUARY 09, 2012 CS (OS) No.2192/2006 Page 4 of 4