Tek Chand And Anr. vs Ram Narain
1995 Latest Caselaw 908 Del

JUDGMENT

Anil Dev Singh, J.

(1) Admit This is an appeal against the older of the learned Single Judge dated May 5,1995 whereby the appellants are required to provide burned wire fencing in and around space demarcated as per report of the Commissioner dated April 29, 1992 as a condition precedent for the respondents to vacate the area under their occupation and hand over the possession of to the appellants.

(2) The facts necessary for the disposal of this appeal are as under:

(3) In the year i975 the appellants let out a shop and an open area to Ram Narain, deceased near G.T.Road, Azadpur, Delhi in regard to which ultimately they obtained an order of eviction against him. The order of eviction was confirmed by tm High Court in Sag No. 66 of 1988 on October 10,1988 and an Special Leave Petition against the same was also dismissed by the Supreme Court. Thereafter Ram Narain filed a suit No. 2212 of 1988 for declaration and permanent injunction claiming that the order of eviction passed against him was invalid and illegal. This suit was compromised by the parties on September 23,1991. As per the compromise decree the appellants agreed to provide a shop and an area of 12' x28' for parking of a truck to Ram Narain in lieu of the are a under his occupation. It was also agreed that Ram Narain will clear all the arrears of rent. In view of the arrangement between the parties the shop and the area under occupation of Ram Narain was to be handed over to the appellants. In order to locate an appropriate area measuring 12' x28' for being handed over to Ram Narain, a Commissioner was appointed to select the same. After the location of the area by the Commissioner the appellant was required to hand over the same and a shop to Ram Narain. Thereafter the latter was required to shift his material to the shop so made over to him and vacate the area under his occupation. On November 28, 1991 the Commissioner moved an application and brought to the notice of the Court that he Union of India was the owner of the land and the appellants were merely in the possession of the .same. In the application direction was sought with regard to the question as to whether the land measuring 12' x28' was to be given to Ram' Narain from the land not owned by the appellants but only possessed by them This application of the Commissioner came before the Court on March 31,1992. It was notification that as per report of the Patwari, the land belonged to the Government as having been acquired under the Land Acquisition Act, though the same was in possession c.' the appellants. On the agreement of the parties, the Court on March 31, 1992 clarified, that the Commissioner could select a piece of land measuring 12' x 28' in actual physical possession of the appellants irrespective of the fact whether the land was in their ownership or in the ownership of the Government. Thus the land in possession of the appellants and not in their ownership could be selected for the purpose of handing over the same to Ram Narain. The Commissioner in view of the clarificatory order dated March 31, 1992 again went to the spot and selected an area measuring i2' x 28' in possession of the appellants for being handed over to the respondents-legal heirs c.fRam Narain.. who had died in the meanwhile. The Commissioner in this regard submitted his report on April 29,1992 Along with a plan of the area. The. area earmarked for the respondent legal heirs of Ram Narain, was delineated in red colour on the plan. With this report of the local Commissioner the dispute between the parties should have ended and the respondents ought to have handed over the area under their occupation to the appellants. But this did nothappen. Therefore the appellants filed two contempt petitions being Ccp 42 of 1992 and 66 of 1992 against the respondents for not handing over the possession of the area in their occupation to the appellants and for failing to pay the arrears of rent. On May 17,1994 the learned Single Judge in Ccp 42 of 1992 directed the appellants to provide barbed wire fencing around the area which was required to be handed over to the respondents and it was only after the erection thereof the respondents were to hand over the possession of the area under their occupation to the appellants. Pursuant to this order one of the appellants by his letter dated May 21,1994 required the respondents to indicate as to when they shall remove their goods from the area in their occupation and when they will hand over the possession so that the appellants could undertake the fencing of the area demarcated by the commissioner. It appears that there was no response by the respondents to the aforesaid letter. The appellants then moved another application being Ia No. 7063 of 1994 in Suit No. 2212 of 1988 under Order 40 Rule I read with Order 26 Rule9CPC. In that application the learned Single Judge by order dated May 5,1995 directed that in case the authorities raised any objection to the putting up of the barbed wire fencing around the demarcated area the appellants would be obliged to make available similar area inside the area which was required to be vacated by the respondents, !t is this order of the learned Single Judge by which the appellants are aggrieved of.

(4) We have heard the learned Counsel for the parties and we are of the opinion that the order of the learned Single Judge dated May 5,1995 cannot be sustained in view of the clarificatory order dated March 31, 1992 which was passed on the agreement of the parties. It may be recalled that on September 23,1991 the parties had come to a settlement on the basis of which it was directed that the appellants will provide a shop and an area measuring 12' X 28' for parking of a truck to Ram Narain and he was required to simultaneously vacate the shop and the area under his occupation. As already seen the local Commissioner brought to the notice of the Court that the area had been acquired by the Government of India. It was also pointed out that some area was however in possession of the appellants. Notwithstanding the fact that the land was not in the ownership of the appellants, the respondents agreed that the Commissioner could select an area of 12' x 28' which was in actual physical possession of appellants though it may be in the ownership of the Government of India. It was in the light of the agreement of the parties that the order dated March 31, 1991 was passed by the Court. The respondents having agreed to take over the area demarcated by the local Commissioner which was not in the ownership of the appellants cannot now go back on their agreement. It is significant to note that the appellants had obtained a decree of eviction against Ram Narain which was maintained up to the Supreme Court. This decree was passed several years ago and has remained unexecuted for the reason that in the meantime the parties had compromised the matter in a subsequent suit filed by Ram Narain. The respondents have succeeded in keeping the possession of the premises with them notwithstanding the decree of eviction passed against them and orders dated September 23, 1991 and March 31, 1992 passed in Suit No. 2212 of 1988. Therefore, it is not open to the respondents now to say that in case the authorities take objection to the putting up of a barbed wire fencing or the same is removed from the demarcated area the appellants should hand over a similar area from the area under their (respondents') occupation which they are required to vacate. The respondents by their dilatory tactics cannot be allowed to stifle the orders dated September 23, 1991 and March 31, 1992 passed on the agreement of the parties. Having regard to the foregoing discussion we are of the opinion that the order dated May 5, 1995 passed by the learned Single Judge cannot be sustained. Accordingly the appeal is allowed and the order of learned Single Judge dated May 5,1995 is setaside. The appellants would be entitled for costs which are quantified at Rs. 2,000.00.