Gulab Singh vs Hari Singh & Ors.
2011 Latest Caselaw 3970 Del

*            THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Judgment delivered on: 16.08.2011

                IA No. 1875/2011 in CS(OS) No. 1099/1983

GULAB SINGH                                            ..... Plaintiff
                           Through: Mr Sandeep Aggarwal, Adv. with
                                    Mr D.K. Sharma and Mr Rajesh
                                    Pathak, Advs.

                                           versus

HARI SINGH & ORS.                              ..... Defendants
                Through: Mr Sandeep Sethi, Sr. Adv. with
                         Mr Rajesh Aggarwal, Adv. for LRs of
                         D-1.
                         Mr Yashraj Singh, Adv. with
                         Mr Rajesh Kumar, Adv. for D-3.
CORAM:-
HON'BLE MR JUSTICE MANMOHAN SINGH

     1.    Whether Reporters of local papers may be allowed to
           see the judgment ?

     2.    To be referred to the Reporter or not ?                         Yes

     3.    Whether the judgment should be reported in Digest ?             Yes

MANMOHAN SINGH, J

1.           By this order, I propose to decide the application filed by the

plaintiff being I.A. No. 1875/2011 under Order 26 Rule 13 read with

Section 151 of the Code of Civil Procedure for directions to appoint the

Local Commissioner for receiving monthly rents of one of the suit

property which is in the possession of the LRs of the defendant No.1 i.e.

17, Community Centre, Ashok Vihar, Delhi under various tenants.

IA No.1875/2010 in CS(OS) No. 1099/1983                           Page No.1 of 8
 2.           In the present matter, a preliminary decree has been passed

vide order dated 07.01.2011 whereby it was held that the parties have

1/5th share each in the properties as mentioned in para 2(b) and 5 of the

plaint.



3.           By separate order, the Court Commissioner was also

appointed to file a report with regard to the mode and manner in which

the properties could be partitioned and to report about the present status

of the property.

4.           An appeal against the order of preliminary decree was filed by

the legal representatives of the defendant No.1 being RFA (OS) No.

28/2011. While admitting the appeal, vide order dated 25.02.2011, the

Division Bench also ordered for maintaining status quo by the appellants

with respect to the ownership and possession in respect of the property in

question.

5.           In the application, being CM No.6239/2011, filed by the

plaintiff who is respondent No.1 in the appeal, the Hon‟ble Division

Bench issued a clarification that the status quo obtaining on the date of

the passing of the impugned order shall continue without prejudice to

what orders the learned Single Judge may pass in IA Nos.1875/2011 and

4188/2011. I.A. No. 4188/2011 has been filed by the LRs of the

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.2 of 8 defendant No.1 for stay of further proceedings in view of the status quo

order passed by the Division Bench in their appeal.

6. The Local Commissioner in his report dated 22.03.2011 has

given the following details:

i. Plaintiff (Gulab Singh) is in possession of agricultural land

area measuring 1.5860 hectares in Jaibabad, U.P. and he is

cultivating sugar and wheat crop thereupon.

ii. Ramesh Kumar (defendant no.3) is in possession of

agricultural land measuring 1.483 hectares, but has sold the

same to some 3rd party.

iii. Mahesh Kumar (defendant no.4) is in possession of land

measuring 1.516 hectares of agricultural land, but has sold

the same to some 3rd party.

iv. LRs of defendant No.1 are in possession of property in

Wazirpur and Ashok Vihar which are tenanted and total rent

realized is about 1,91,000/- per month. However, expenses

in its maintenance, house tax, TDS, other statutory charges

are not considered at all by the court commissioner.

7. After filing the report, the LRs of defendant No.1 filed an

application, being IA No.6242/2011, seeking direction against the

plaintiff and defendants 3 and 4 to furnish monthly market rental value

with respect to the respective lands in their possession in view of the

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.3 of 8 report filed by the Local Commissioner. It is also prayed that in view of

the same, the plaintiff and defendants 3 and 4 may be directed to give the

profits earned therefrom since the year 1983 till filing of the suit.

8. One more application filed by the LRs of defendant No.1,

being IA No.7499/2011, for rejection of the report of the Local

Commissioner dated 22.03.2011 and also seeking direction to ascertain

complete details of prevailing rental/market value of the properties

involved and expenses incurred thereupon.

9. The learned counsel appearing on behalf of the legal

representative of defendant No.1 has referred Para 58 of the preliminary

decree passed by the court. The same reads as under:

"58. It is pertinent to note that before me no dispute as to the share of parties was raised. In the result, in view of my discussions above, Gulab Singh is entitled to preliminary decree of partition to the extent of his 1/5th share in respect of properties detailed out in paragraphs 2(b) and 5 of the plaint filed in the 1983 suit. Consequently, Rajbir Singh, Ramesh Kumar, Mahesh Kumar along with LRs of Hari Singh shall have equal share i.e., 1/5th each, in the said properties. For this purpose, by a separate order a court commissioner is appointed, who shall file a report with regard to the mode and manner in which the properties can be partitioned. The Court Commissioner shall report as to the current state of the properties and the assets in question; this is more so, in case of Jaibabad property where it was sought to be argued that Mahesh Kumar and Ramesh Kumar have sold a portion of the property in their possession. Only to be noted that Ramesh Kumar has offered partition in respect of the said property as well. Accordingly, prayer (a) in suit No.1099/1983 is decreed in favour of the plaintiff."

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.4 of 8

10. The learned counsel states that the report of the court

commissioner is incomplete, inasmuch as, the profits earned by the

plaintiff and other defendants have not been worked out. I have perused

the report dated 22.03.2011 filed by the Court Commissioner who has

given the details of the three properties in question. The relevant extract

of the same reads as under:

(a) Jaibabbad Property - It is an agriculture land. There is water

pump. If one sits at the water pump facing the road, the land

towards right and back is cultivated by Gulab Singh plaintiff and

towards left is the land which has been sold by the defendants

Mahesh Chand and Ramesh Chand to one Ajay Gaind and his wife

Smt Manjoo who in turn as informed to the court commissioner

sold the said land to Smt Mithlesh wife of Rakesh resident of

Kherji Gurjar District Gautambudhnagar (hereinafter referred to as

„Gurzar‟) who had sown sugar cane crop there. In between the

two portions of the land there is a pagdandi (small strip of land) of

9Ft which portion of pagdandi it is stated belongs to Gurzarr. The

depth up to 565 ft is in the cultivation of Gulab Singh. On the road

side the width is 400ft. Gulab Singh stated that the land towards

road to the extent of 75ft at the other end of the field from wate

pump was part of Shahpur Ban Ganga which has dried and is

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.5 of 8 included in the field cultivated by him. On the spot in the land

belonging to Gulab Singh crop of Sugar cane was there in an area

of 174 ft. depth and 100 ft width. In the rest field wheat is sown.

On the other side i.e. the land which is in the cultivation of

Gurzar as stated at present including the pagdandi is 282 ft + 9ft =

291 ft and its depth is more than 565 ft. The area ahead of length

of 565 ft it is stated is jungle land which has been encroached by

the Gurzar. Mahesh Kumar and Ramesh Kumar have produced

the copy of the revenue record which shows the position of the

land as follows:

Shri Gulab Singh at present Khasra No. 156 area

1.5860 hectares. Additionally he has an area which was

earlier water canal of Shahpour Ban Ganga.

area 1.5159 hectares sold to Gainds who in turn sold to

Gurzar.

Ramesh Kumar at presnt Khasra No. 158 area

1.1843 hectares sold to Gaind who in turn sold to Gurzar.

The sale deeds made by Mahesh Chand and Ramesh Chand

and the revenue records are annexed to this report collectively

as Annexure „R-1‟.

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.6 of 8

(b) Wajirpur Property - This property is a plot of land. ....... Out

the said area in an area of 29‟x 90 ft as started is in the tenancy of

Bharat Timber Merchant at Rs. 1200/- per month and the rest is in

the tenancy of Bharat Timber Traders.

(c) Property at Ashok Vihar - First Floor:

...................................

It is apparent from the figure of rent realized from various

tenants that the defendant No.1 is receiving more than a sum of Rs.

1,91,000/- including the shops the rentals of which the Court

Commissioner has not been informed.

11. It appears from the report that Jaibabbad property, the market

value and other details of the property sold by Mahesh Kumar in respect

of Khasra No. 156 area 1.5860 hectares sold to Gainds who in turn sold

to Gurzar have not been given in the report. Similarly, the detail of the

market value of the amount of rent earned by the non-applicants with

respect of tenancy of Bharat Timber Traders has not been given.

12. Pleadings in I.A. No. 6242/2011 and 7499/2011 are yet to be

completed. In view of the pendency of these applications, the present

application, being connected with them, will be taken up together with

other pending applications.

13. It is admitted position that the appeal filed by the LRs of

defendant No.1 has been admitted for regular hearing and the Division

IA No.1875/2010 in CS(OS) No. 1099/1983 Page No.7 of 8 Bench has also ordered to maintain the status quo by the appellants in the

said appeal with respect to the ownership and possession in respect of the

property in question. In view of the reasons stated in para 9 and 10 of

this order, instead of appointing the Local Commissioner to collect the

rents from the different tenants of the LRs of the deceased defendant

No.1, I feel it appropriate to dispose of the present application with the

following directions:

a) That the LRs of defendant No.1 who are also the appellants in

their appeal shall maintain the proper and true account with regard

to the property in question and shall file the statement of account in

every quarter in this matter till the disposal of the appeal.

b) They shall also file an affidavit by way of an undertaking to the

effect that in case the appeal filed by them is decided against them,

they shall deposit the entire amount about the shares of other co-

owners within the period of three months from the date of

judgment passed in the appeal.

14. With these directions, the present application is disposed of.

No costs.

MANMOHAN SINGH, J AUGUST 16, 2011 jk/dp

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