Jagdish Rai Vadhera & Ors. vs Suharsh Mohan Vadhera
2009 Latest Caselaw 2491 Del

*          HIGH COURT OF DELHI : NEW DELHI

+                    Ex. P. No.39/2008

                     Judgment reserved on:             29th May, 2009

                     Judgment pronounced on:              6th July, 2009


     Jagdish Rai Vadhera & Ors.                     ....Decree Holders
                             Throug        :   Mr. P. Jauhar, Adv.
                    Versus

     Suharsh Mohan Vadhera                            ....Judgment Debtor
                                Through :      In person


Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               No

2. To be referred to Reporter or not?                            No

3. Whether the judgment should be reported                       No
   in the Digest?

MANMOHAN SINGH, J.

1. This execution petition has been filed by Jagdish Rai

Vadhera (decree holder herein) for execution of the decree/order dated

25th August, 2006 in CS(OS) No. 449/2001 whereby in terms of the

conciliation and settlement arrived between the parties on 15.7.2006,

partition in respect of suit property in the respective portions was

settled.

2. The parties above named had filed suits for partition against

each other with respect to two properties bearing No.16/16B, Alipur

Road, Civil Lines, Delhi and 5A/6, Ansari Road, Daryaganj, Delhi and

in the said suits a compromise was effected between the parties before

Shri G.P. Mittal, ADJ, Delhi, Incharge Mediation Cell, Tis Hazari

Courts, Delhi on 15.7.2006.

3. The terms of the conciliation agreement settled between the parties are reproduced here under:-

"1. Property No.5A/6, Ansari Road, Darya Ganj is the only HUF property, which HUF stand dissolved today. Defendant No.2 in Suit No.2885/1989 and plaintiff in suit No.449/2001 (Suharsh Mohan Vadhera) shall be entitled to portion Marks A, B, C, D on the first floor and the portion Mark E, F, G, H, I, J, K and L on the first floor and the portion Mark M, N, O, P, Q, R, S, T, U, V, W on the second floor and the portion mark X, Y, Z, Z1, Z2, Z3, Z4, Z5 and Z6 on the third floor.

2. W.C. on the right hand side portion in the middle of WC and Kitchen on the first floor as well as on the second floor shall belong to Sh. Jagdish Rai Vadhera, Defendant No.1, Sh. Gajendra Mohan Vadhera, Defendant No.3 and the LRs of the deceased Gopal Mohan Vadhera alongwith rest of the property No.5A/6, Ansai Road, Darya Ganj, Delhi. Portion of the stair case on the ground floor on the first floor, second floor and the Mumty on the third floor shall be held in common by all the parties as a passage. There is one W.C. on the ground floor beneath the stair case whchi shall be exclusively used by defendant No.2.

3. Defendant No.2 Suharsh Mohan Vadhera who is the plaintiff in Suit No.449/2001 shall not have any right whatsoever in property No.16/16B, Ali Pur Road, Civil Lines, Delhi. It is admitted by him that this property is the joint property of Shri Jagdish Rai Vadhera and late Shri Gopal Mohan Vadhera.

4. Property No.20, Sharad Vihar, Vikas Marg Extension, Delhi-110092 shall exclusively belong to defendant No.2 Suharsh Mohan Vadhera. The other parties have no claim whatsoever in the same.

5. Complaint case No.207/2003 now pending in the Court of Ms. Savita Rao, M.M. Delhi shall be withdrawn by Shri Jagdish Rai Vadhera after final rder passed by the

Hon'ble High Court on the basis of the settlement.

6. Suit No. 391/1998 Suharsh Mohan Vadhera and Kiran Vadhera Vs. Jagdish Rai Vadhera pending in the Court of Shri Sanjay Jindal, Civil Judge, Delhi shall be withdrawn by the defendant No.2 and his wife after the disposal of the civil suit by the Hon'ble High Court of Delhi.

7. It is the case of Shri Jagdish Rai Vadhera that the original title deeds in respect of property No. 16/16B, Ali Pur Road and 5A/6, Ansari Road have been misplaced. Shri Jagdish Rai Vadhera has apprehension that the said documents are in possession of Suharsh Mohan Vadhera. Shri Suharsh Mohan Vadhera had assured that these documents are not in his possession, therefore, it has been agreed by the parties that if the documents are not traceable then the duplicate documents can be obtained after completing necessary formalities.

8. There shall not remain any litigation whatsoever between the parties of signing of this agreement and all pending civil suits and criminal cases/police complaints/vigilance complaints etc. against each other shall be withdrawn. Contempt application filed by Shri Suharsh Mohan Vadhera shall be dismissed as withdrawn at the time of disposal of the two civil suits.

10. Vacant and peaceful possession of one room of property No. 16/16B, Ali Pur Road shall be delivered by Shri Suharsh Mohan Vadhera to Jagdish Rai Vadhera after passing of the order by the Hon'ble High Court of Delhi.

11. Vacant possession of the garage on the ground floor and Mezzanine between ground floor and first floor which have come in the share of Mr. Suharsh Mohan Vadhera and its vacant and peace full possession shall be delivered by Shri Gajender Mohan Vadhera by 31.08.2006.

12. Mumty shall be in common use of the parties. There is a common over head tanks over the Mumty. Both the parties shall be entitled to have their separate tanks over the Mumty and the present tank shall be dismantled.

13. The site plan on which the marks have been made has been marked as X on the back and has been signed by all the parties.

14. Neither of the parties shall be entitled to any amount whatsoever on rendition of accounts in respect of

HUF Jagdish Rai Vadhera & Sons. If any amount is available today it shall belong exclusively to Shri Jagdish Rai Vadhera. Shri Jagdish Rai Vadhera, however, shall get the wall etc. built towards partition of the property from his own funds. The liability of house tax till the year 2006-07 shall be cleared by Shri Jagdish Rai Vadhera.

15. 50% of the land rights shall belong to defendant No.2 and remaining 50% shall belong jointly to Shri Jagdish Rai Vadhera, Sh. Gagender Mohan Vadhera and LRs of late Sh. Gopal Mohan Vadhera."

4. In accordance with the directions passed by this court and as

per the terms of the compromise, Shri Jagdish Rai Vadhera and Mr.

Gautam Vadhera (S/o Late Sh. Gopal Mohan Vadhera)/petitioner no. 2

herein erected the walls at the points mentioned in the site plan but the

same were dismantled and destroyed by judgment debtor and his wife

Smt. Kiran Vadhera.

5. The decree holder preferred a contempt petition bearing CCP

No. 132/2006 against the judgment debtor. This court vide order dated

26.9.2006 appointed Ms. Shivani Lal, Advocate as local commissioner

to give effect to the consent decree passed by this court. The local

commissioner was directed to visit the property at Civil Lines on

28.9.2006 so that the vacant and peaceful possession of one room at

Civil Lines property is handed over to Shri Jagdish Rai Vadhera in

terms of the compromise decree duly sanctioned by this court on

25.8.2006.

6. Vide order dated 25th August, 2006, this Court decreed the

present suit in favour of the plaintiff on the basis of compromise

entered between the parties on 15th July, 2006.

7. The judgment debtor however, refused to hand over the

possession of one room at the Civil Lines property as directed by this

court to the local commissioner stating that the possession of the said

room at Civil Lines property would be handed over by him only when

he gets the vacant and physical possession of one room/garage at the

Daryaganj property.

8. It is an admitted fact that this court has given specific

direction that the terms of the compromise shall be given effect to with

regard to only Civil Lines property on 28.9.2006 and there is no specific

direction that the possession of the Civil Lines property would be

handed over only subject to the handing over of possession of the

property at Daryaganj.

9. It is submitted by the decree holder that the judgment debtor

has received the entire possession of the property at Daryaganj falling

to his share as contained in the compromise terms and the garage in

respect of which grievance is agitated by the judgment debtor has

always been in the possession of the tenant Mrs. Shashi Shroff and the

same has been shown in the site plan as being in possession of the

tenant and the possession was to be taken by the respondent on as is

where is basis.

10. Judgment debtor had also obstructed to the construction of

the doors on the first floor portion of the Daryaganj property which are

to be constructed at point X1 to X2 and X3 to X4 to effectively

partition the property as per the compromise. The judgment debtor

filed an application for setting aside of the compromise decree on the

ground of fraud which was duly dismissed.

11. In terms of the decree dated 25.8.2006 and the proceedings

dated 15.7.2006 whereby all the parties had duly compromised the

matter, the possession of the various parties of the Daryaganj property

are still to be handed over to the decree holder and furthermore, the

partition is to be effected in the Daryaganj property in terms of the site

plan annexed along with the proceedings dated 15.7.2006.

12. The Local Commissioner in her report clearly stated that

judgment debtor refused to hand over the possession of one room at

16/16B, Alipur Road, Civil Lines, Delhi to the decree holder and is

wiling to handover the possession to him only if decree holder is

willing to handover the possession of ground floor godown of 5A/6,

Ansari Road, Daryaganj, Delhi to him.

13. Since the Local Commissioner by order dated 28.9.2006 was

directed to visit the premises at Civil Lines only and to effect the

partition in terms of compromise dated 15.7.2006, the compromise

decree was not executed fully. The judgment debtor is also resisting

the construction of the doors on the 1 st floor portion of the Daryaganj

property which are to be constructed at point X1 to X2 and X3 to X4. In

view of the above, I appoint Ms. Manisha Tyagi, Advocate as Local

Commissioner to partition the property at Daryaganj and Civil Lines in

terms of the compromise settled between the parties on 15.07.2006 and

final order passed by this court on 25 th August, 2006 as per agreed terms

and conditions. The Local Commissioner is permitted to take the

assistance of the concerned SHO of Daryaganj and Civil Line Police

Stations, if necessary, and shall submit his report within three months

from today. The fees of the Local Commissioner is fixed as Rs.50,000/-

tentatively and which shall be paid by both the parties in equal shares.

14. List this matter on 7th October, 2009 for awaiting the report

of the Local Commissioner.

MANMOHAN SINGH, J JULY 6th , 2009 SD