Darshan Singh & Anr. vs Sat Pal & Anr.
2015 Latest Caselaw 6678 Del

$~15.

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                       Date of Decision: 08.09.2015

%       RSA 84/1987

        DARSHAN SINGH & ANR.                           ..... Appellants
                    Through:          Mr. Sandeep Sethi, Senior Advocate
                                      along with Mr. Sunil Kapoor,
                                      Advocate.

                          versus

        SAT PAL & ANR.                                 ..... Respondents

                          Through:    Mr. Ashok Sapra, Advocate.

        CORAM:
        HON'BLE MR. JUSTICE VIPIN SANGHI

VIPIN SANGHI, J. (OPEN COURT)

1. It has been reported that the First Appellate Court Record has been weeded out. However, the "Grounds of Appeal" taken by the respondent before the First Appellate Court form part of this record and the same have been perused.

2. The record of the second appeal being fairly old is not in a good condition. The copy of the impugned judgment placed on record is also in tatters. Learned counsel for the respondent is possessed of a better copy and he has provided this Court with an intact copy of the impugned judgment. The same is taken on record. Even the crucial exhibits, namely Ex.C/1 and Ex.C/2 are in damaged state. Fortunately, the relevant parts of the said

exhibits are not damaged and are legible. The Registry is directed to ensure that the record of the second appeal is properly maintained and it is carefully scanned, so that the essential features of the said exhibits are preserved.

3. I have heard learned counsel and proceed to dispose of the present second appeal.

4. The present second appeal under Section 100 CPC is directed against the judgment & decree passed by the learned Additional Senior Sub-Judge in RCA No.195/84 on 17.10.1987. The First Appellate Court modified the judgment & decree passed by the learned Sub-Judge First Class, Delhi in Suit No.78/1979 dated 11.10.1984.

5. The brief factual background may first be narrated. The respondent Sh. Satpal filed a civil suit to seek a permanent injunction against dispossession in respect of land admeasuring 55 Bighas and 10 Biswas situated in village Malakpur Chhawni, Delhi. The said suit was filed against Sh. Darshan Singh and Sh. Satwant Singh - the original appellants. During the pendency of the said suit, a compromise was arrived at between the parties. The relevant extract of the said compromise dated 27.05.1978 reads as follows:

"1. That the parties to suit admit that out of Khasra Nos. 351, 352 and 353 in village Malakpur Chhawni, Delhi, there is area of 33 bighas and 10 biswas out of which 8 bighas of land has been left for road. Thus remaining land measuring 25 bighas and 10 biswas is in possession of Sh. Sat Pal plaintiff No.1 who paid the sale price to defts.

2. That Sh. Jagwasaya is General attorney of defts. and both the pltffs. no.1 and 2 are entitled to enter into agreement for sale of this land with any one, execute a will and power of attorney and other necessary papers. The defts. shall have no right regarding above said land measuring 25 bighas and 10 biswas. The above land starts from Gujranwala colony to boundary wall of Mandir excluding 500 sq.yds. of existing tube well.

3. That out of 8 bighas for roads plaintiff No.1 Sat Pal shall be entitled to receive compensation if any for 5 bighas 10 biswas and defts. shall be entitled to receive compensation for 2 bighas 10 biswas.

4. That Sh. Krishan Lal Sehgal plaintiff No.3 was General power of attorney on behalf of defts.

5. That Sh. Krishan Lal died on 27.3.1978 thus power of attorney in his favour comes to an end on his death. However, his legal representatives have applied to be substituted for plaintiff No.3. Legal representative may be brought on record. Shri Satwant Singh has authorised by General Power of Attorney his brother S.Darshan Singh who has signed for self and also on his behalf. Eight shops constructed by defts. in this area now belong to plaintiffs for which compensation has been received by defts. Out of area mentioned above defts. have sold some area to plot holders. Defts. undertake to give possession of plotted area to plaintiffs belonging to defts. in lieu of the plots sold by defts.

6. That since parties have settled the dispute, Plaintiff do not want to proceed with the case, the same may be dismissed as withdrawn with no order as to costs."

(Emphasis supplied)

6. The said suit was dismissed as withdrawn in view of the said compromise, upon recording of the statements of the parties.

7. From the aforesaid compromise, it would be seen that the rights of the respondent Sh. Satpal were recognised in respect of an area admeasuring 33 Bighas and 10 Biswas out of Khasra Nos.351, 352 & 353 in village Malakpur Chhawni, Delhi. From out of the said area of 33 Bighas and 10 Biswas, 8 Biswas of land was left for the road. The possession of the respondent herein was recognised in respect of the land admeasuring 25 Bighas and 10 Biswas. The defendants in the suit, who are appellants herein, acknowledged that they had received the sale price in respect of the 33 Bighas and 10 Biswas of land. The parties also agreed that, in respect of the 25 Bighas and 10 Biswas land - which was recognised as that belonging to the respondent herein, he had the right to dealt with the same. The parties also agreed that the said parcel of 25 Bighas and 10 Biswas of land starts from Gujranwala colony to boundary wall of Mandir excluding 500 square yards of the existing tubewell. The manner in which the compensation in respect of the 8 Bighas of land meant for road was to be shared was also agreed to between the parties.

8. Pertinently, in respect of the 8 shops, which had been constructed by the defendants in the suit (i.e. the appellants herein), it was specifically agreed that the same shall belong to the plaintiffs (the respondents herein), for which compensation had been received by the defendants/ appellants herein. It is also clear that these eight shops were situated in "this area" - meaning thereby that the said eight shops fell within the area of 33 bighas and 10 biswas over which the respondents rights were recognised.

9. The respondents thereafter filed the second suit - which is the suit from which this second appeal arises. The said suit was preferred by the respondents on or about 08.02.1979, wherein the respondents sought a restraint against the defendants in the suit from demolishing six shops - as two had already been demolished prior to the filing of the said suit, and from selling the suit land or any part thereof, and forcibly dispossessing the plaintiffs from Khasra Nos.351, 352 and 353, Malikpur Chhawni, Delhi, except in due course of law.

10. In the said suit, the respondent/plaintiffs application under Order 39 Rule 1 and 2 CPC to seek interim relief was allowed, and the first appeal against the order passed in the interim application was dismissed. Consequently, the appellants herein preferred a revision petition before this Court. The said revision petition being R.P. No.819/1979 was disposed of by this court - once again on the basis of a compromise, vide order dated 14.01.1980. The terms of the said compromise read as follows:

"Counsel for the parties agree that this revision petition may be decided in these terms:

1. The petitioners recognise the right of ownership of respondent no.1 Sat Pal to an area of 33 bighas and 10 biswas in Khasra No.351 in Malikpur Chhawni.

2. That the trial court will pass a decree of permanent injunction in favour of Sat Pal respondent no.1 against the petitioners in respect of 33 bighas and 10 biswas in khasra No.351 in Malikpur Chawni.

3. That Sat Pal respondent no.1 agree that he will not assert his right to any more land than 33 bighas and 10 biswas in Khasra No.351. His right of ownership under the agreement

to purchase will be limited only to this area of 33 bighas and 10 biswas in khasra No.351.

4. That the petitioners agree that the compromise dated 27.5.1978 is binding on the parties and that they are bound by the same.

5. That the question of demarcation of 33 bighas and 10 bisiwas will be decided by the trial judge. He can have the assistance of the Patwari for the demarcation of the area.

6. Counsel for the parties agree that for the time being the injunction shall be limited to the area shown in red in the plan marked R.1. This agreement is without prejudice to the actual demarcation of the area which will be made by the trial court.

7. That the petitioners will be entitled to deal with or dispose of the land outside the area marked red in R.1.

8. The trial judge will not be precluded from appointing any commissioner if he finds it necessary to do so.

In terms of the agreement between the parties the revision petition is disposed of. The injunction order dated March 21, 1979 is modified. The injunction will be limited to the area marked rein plan R1. After demarcating the boundaries of the area of 33 bighas and 10 biswas the trial judge will pass a decree for permanent injunction in favour of respondent no.1 against the petitioners. The parties are left to bear their own costs of this revision".

(Emphasis supplied)

11. In terms of the aforesaid compromise, the Trial Court appointed Sh.G.S. Thanewal, Tehsildar, Delhi as the local commissioner to carry out the demarcation of 33 bighas and 10 biswas in Khasra No.351, Malikpur

Chhawni, Delhi. The said local commissioner made his report dated 21.09.1982. Along with the report, he annexed two plans as Annexures C & D. Annexure-C to the report demarcated the portion of Khasra No.351 claimed by the plaintiff/respondents herein, whereas Annexure-D to the report depicted the portion of Khasra No.351, which the defendant/appellants claim should fall to the share of the plaintiff/respondent herein. The said two plans along with the report were exhibited before the Trial Court. Annexure-C aforesaid was marked as Ex.C/2 and Annexure-D aforesaid was marked as Ex.C/1.

12. The appellants/ defendants filed their objections to the report of the Local Commissioner Sh. G.S. Thanewal. However, the said objections were not pressed and withdrawn by them on 23.05.1984.

13. The Trial Court while rejecting the submissions of the appellants/ defendants challenging the report of the Local Commissioner, passed a decree in favour of the respondent/ plaintiff, thereby restraining the appellants/ defendants from interfering in the area admeasuring 33 Bighas and 10 Biswas of land in Khasra Nos. 351, 352 & 353 of village Malikpur Chhawni, Delhi "as shown in the plan Ex.C/1 Annexure-D". The reason for passing a decree in terms of Ex.C/1 Annexure-D, and not in terms of Ex.C/2 Annexure-C - given by the Trial Court, was that the demarcation made by the Local Commissioner as contained in Annexure-D is more reasonable and correct as compared to Annexure-C of the report. The Trial Court, inter alia, observed as follows:

"The demarcation by the local commissioner as contained in annexure „D‟ is more reasonable and correct as compared to

annexure „C‟ of the report. Further, this annexure also contains the road which is 80‟ vide. Not only this, as per the agreement to sell dated 24/4/74, clause 6, the area which has been left for the personal use of the defts. is 8 bighas from the main G.T. road to the constructed/ existing kothi of the deft. This being the position, the right of the defts. to enjoy the land measuring 8 bighas from the main G.T. road can not be overlooked. As per the observations of the local commissioner a dividing line cannot be drawn through the middle of the structures as the colony is fully built up and constructed. He has, as an alternative, drawn a diving line along the roads and lanes in order to minimize the dispute. Detailed measurements showing the distance from one point to another on annexure „C‟ & „D‟ has also been worked out by the commissioner. These have been contained in para 8 & 9 of the report. After carefully examining both the annexures „C‟ & „D‟, I am of the considered opinion that annexure „D‟ is more applicable and would cause least possible inconvenience to the residents of the area. Further, in case the area as given in annexure „C‟ is ear marked for a tubewell, the defts. will have to put up a boundary wall which will block the passage of the residents and defts. will invite avoidable litigation from the residents. The area of the tubewell should therefore be given out of the plotted area and not out of the lane. Under the circumstances of the case, therefore, the pltfs. who are entitled for a decree of land measuring 33 bighas 10 bis. as per the demarcation contained in annexure „D‟ which is Ex. C-1. This will be most practicable and convenient solution and will be completely in compliance with the compromise dated 27/5/78 and the order of the High Court dated 14/1/80, in which it has been observed in clear terms in para 1 to 3, that the pltfs. will be entitled for a decree of permanent injunction against the deft. in respect of land measuring 33 bighas 10 bis. in village Malikpur Chhavni Delhi situated in Khasra No.351."

14. The submission/ claim of the respondent/ plaintiff - that in terms of the settlement arrived at in the first round on 27.05.1978, the eight shops constructed by the defendants in the area falling to the share of the plaintiff/

respondent belonged to the plaintiff/ respondent, for which the appellant/ defendants had also received compensation, was rejected by observing:

"Further, there is no mention in the order dated 14/1/80, that an area of 33 bighas 10 bis. will include (sic) 8 shops. Since the order of the Hon‟ble High Court does not contain any direction to this effect, the arguments of the ld. counsel for the pltf. that 8 shops should also be included in the decree, in my opinion, has no meaning at all. Further, this will upset the whole demarcation conducted by an expert like the local commissioner. Not only this, as stated earlier if the 8 shops are included, this will increase the area of 33 bighas 10 bis. to which the pltfs. are not entitled."

15. At this stage, I may observe that the area demarcated by the Local Commissioner in Ex.C/2 Annexure -C, which included the area covered by the eight shops was found to be in excess of 33 Bighas and 10 Biswas, by 5 Biswas. On the other hand, Ex.C/1 Annexure-D had demarcated the area which excluded the area of the eight shops, and it was in excess of 33 Bighas and 10 Biswas, by 2 Biswas.

16. The respondent/ plaintiff was aggrieved by the said judgment and decree passed by the Trial Court since the eight shops aforesaid were denied to the respondent/ plaintiff. The respondent/ plaintiff was also aggrieved by the fact that the Trial Court had accepted the demarcation Ex.C/1 Annexure- D, wherein a part of the 80 feet wide G.T. Karnal Road also fell in the area of 33 Bighas and 10 Biswas carved out by the Local Commissioner as that belonging to the respondent/ plaintiff.

17. Consequently, the respondent/ plaintiff preferred the first appeal, which was registered as RCA No.195/1984. The First Appellate Court

affirmed the judgment & decree passed by the Trial Court insofar as the Ex.C/1 Annexure-D was adopted for the purpose of demarcating the area of the respondent/ plaintiff. However, the First Appellate Court - on the strength of the order dated 14.01.1980 of this Court in the aforesaid revision petition, and in particular paragraph 4 thereof, held that the parties were bound by clause 5 of the agreement dated 27.05.1978 extracted hereinabove. The First Appellate Court held that a perusal of clause 5 of the agreement dated 27.05.1978 shows that though the eight shops had been constructed by the defendants/ appellants, in terms of the said agreement, they belonged to the plaintiffs, for which the compensation had been received by the defendants/ appellants. The First Appellate Court held the denial of the said eight shops to the respondent/ plaintiff to be in breach of the settlement arrived at between the parties dated 27.05.1978 in the first suit, and also in breach of the settlement arrived at between the parties in R.P. No.819/1979 dated 14.01.1980. The First Appellate Court, inter alia, observed as follows:

"The ld. Sub Judge did not pass any order in respect of shops in favour of the plaintiffs on the ground that if shops are also held to be belonging to the plaintiffs, total area with the plaintiffs will then exceed the agreed area. The ld. Sub Judge further held that there is no order regarding eight shops in order dated 14.1.80 passed by the Hon‟ble High Court. The ld. trial court erred in holding that there is no mention of eight shops in order dated 14.1.80. As the order dated 14.1.80 is not to be read in isolation. It is to be read alongwith the compromise dated 27.5.78. So, the terms of compromise dated 27.5.78 also forms part of order dated 14.1.80. The fact that it will upset the whole demarcation or will increase the area of 33 bighas 10 biswas was no ground for the trial court not to grant any relief to the plaintiffs in respect of eight shops. The defendants cannot now back out from clause 4 of the agreement dated

27.5.78. The eight shops will be now ownership of the plaintiffs but as it is a suit for injunction, no declaration can be granted in favour of the plaintiffs. However, in terms of the compromise dated 27.5.78 between the parties and order dated 14.1.80 passed by the Hon‟ble High Court, the suit of the plaintiff for permanent injunction in respect of eight shops is also decreed restraining the defendants from permanently interfering in any manner in respect of eight shops shown to be existing in points QHSI in report Ex. C-1 annexure „D‟‟. As it is the only course by which order dated 14.1.80 passed by the Hon‟ble High Court and compromise dated 27.5.78 between the parties can be given effect to. The appeal is thus allowed and the order of the trial court is modified and decree for permanent injunction is also granted in favour of the plaintiff and against the defendants restraining the defendants from interfering in the eight shops. Decree sheet be drawn and compromise dated 27.5.78 now Ex.1 shall also form part of the decree. A copy of this order be sent to the trial court and appeal file be consigned to the record room."

18. The appellants/ defendants are aggrieved by the first appellate judgment and decree. Vide order dated 11.01.1987, while admitting this second appeal, this Court framed the following substantial question of law for consideration:

"Whether the lower Appellate Court was right in allotting the land shown in Annexure „D‟ plus eight shops while the report of the Local Commissioner had given two propositions contained in Annexure „C‟ which was inclusive of eight shops area and Annexure „D‟ which was not including the eight shops."

19. The submission of learned counsel for the appellants is that even if it were to be accepted that the respondent/ plaintiff was entitled to the said eight shops, it could not be said that the respondents could be allotted an area larger than 33 Bighas and 10 Biswas. Mr. Sethi submits that all that the

respondent/ plaintiff was entitled to, was an area of 33 Bighas and 10 Biswas, which would include the said eight shops. Mr. Sethi submits that the effect of the impugned judgment and decree passed by the First Appellate Court is that the respondent/ plaintiff has been granted an area, which is in excess of 33 Bighas and 10 Biswas, by 5 Biswas - as is evident from Exhibit C/2 Annexure-C.

20. Mr. Sethi submits that the use of the expression "this area" in clause 5 of the compromise dated 27.05.1978 makes it clear that the said eight shops, which had been constructed by the defendants/ appellants herein, were agreed to belong to the plaintiffs/ respondents, as compensation for the construction had been received by the defendant/ appellants. Mr. Sethi submits that the area underneath the said 8 shops, therefore, forms part of the area of the plaintiff/ respondent admeasuring 33 Bighas and 10 Biswas, and the said 8 shops - along with the land underneath, vested in the respondent/ plaintiff could not be over and above an area of 33 Bighas and 10 Biswas.

21. On the other hand, learned counsel for the respondent has supported the impugned judgment and decree passed by the First Appellate Court by placing reliance on clause 5 of the compromise dated 27.05.1978 as well as the settlement arrived at in Civil Revision Petition No. 819/1979.

22. Having heard learned counsel and perused the complete record, there can be no quarrel with the proposition that the respondent/ plaintiff could not be vested with an area in excess of 33 Bighas and 10 Biswas as that was the area that the respondent/ plaintiff had agreed to accept in full & final

settlement with the defendant/ appellant when the first suit was compromised on 27.05.1978. That compromise settled several aspects between the parties.

23. The first was that the respondents/ plaintiffs were entitled to 33 Bighas and 10 Biswas of land out of Khasra Nos.351, 352 & 353 in village Malakpur Chhawni, Delhi. Secondly, out of the said 33 Bighas and 10 Biswas of land, 8 Bighas of land had been left for the road. Thus, the respondent/ plaintiff was entitled to 25 Bighas and 10 Biswas of land. Thirdly, the respondent/ plaintiffs were entitled to deal with the said 25 Bighas and 10 Biswas of land. Fourthly, the manner in which the said land was to be demarcated was also agreed, namely the extent of the respondent/ plaintiff's land was agreed to start from Gujranwala Colony to the boundary wall of the Mandir. It specifically excluded the 500 sq. yards area of the existing tubewell. In case of acquisition of the land admeasuring 8 Bighas - left for roads, the manner in which the compensation is to be divided amongst the parties was also agreed to. Lastly, the parties recognized the position that the defendant/ appellants had constructed eight shops within the area of 33 Bighas and 10 Biswas falling to the share of the respondent/ plaintiff. These eight shops were agreed to vest in the respondent/ plaintiff and the appellants/ defendants were compensated for the said eight shops. Thus, one of the essential terms of the compromise dated 27.05.1978 was that the respondent/ plaintiff was entitled to eight shops and they were acknowledged to belong to the respondent/ plaintiff.

24. When the parties arrived at their settlement in Revision Petition No. 819/1979 before this Court, they specifically agreed in clause 4 that the

compromise dated 27.05.1978 is binding on the parties and that they are bound by the same. Thus, the settlement dated 14.01.1980 did not override the compromise dated 27.05.1978. Rather, it re-affirmed the same. Consequently, while implementing the settlement dated 14.01.1980 and demarcating the area of 33 Bighas and 10 Biswas, the Trial Court could not have passed a decree by ignoring the rights which already stood vested in the respondent/ plaintiff under the compromise dated 27.05.1978. To that extent, the judgment and decree passed by the Trial Court was erroneous and has rightly been interfered with by the First Appellate Court. However, while seeking to preserve the rights of the respondent/ plaintiff over the said eight shops in terms of the compromise dated 27.05.1978, the First Appellate Court has ignored the rights of the appellant qua the remaining land. The area to which the respondent/ plaintiff was entitled was 33 Bighas and 10 Biswas in all, which included the area falling within the road. The First Appellate Court failed to address the concerns of the appellant/ defendant that the respondent/ plaintiff would get excess area of about 5 Biswas if, the area of the said eight shops were also vested in the respondent/ plaintiff in addition to the area demarcated by the Local Commissioner in Ex.C/1 Annexure-D.

25. During the course of arguments, this aspect was put to learned counsel for the respondent. Learned counsel for the respondent, on instructions from the respondent, who is present in Court, has agreed that the area to which the respondent is entitled, in all, is 33 Bighas and 10 Biswas - which includes the area falling in the road. On further instructions, the respondent stated that out of the area of the eight shops demarcated in Ex.C/2 Annexure-C as

JOPQGHIJ, the respondent is agreeable to give up the area of 5 Bighas, i.e. 250 sq. yards by giving up/ leaving the area close to the tubewell shown in Ex.C/2 Annexure-C. The aforesaid statement made by the respondent, in the presence of his counsel, is accepted and is a fair solution to this long pending problem. It leaves no room for any grievance on either side.

26. Accordingly, the judgment and decree of the First Appellate Court is modified by directing that from out of the area of the said eight shops, demarcated in Ex.C/2 Annexure-C, which is shown as bounded by JOPQGHIJ, the area admeasuring 5 Biswas or 250 sq. yards abutting the tubewell shall be carved out and shall belong to the appellant/ defendants. While carving out the said area, a line shall be drawn parallel to the line I-G as shown in Ex.C/2 Annexure-C, such that the area carved out is 5 Biswas, i.e. 250 sq. yards.

27. Subject to the aforesaid modification, the judgment and decree passed by the First Appellate Court is affirmed. The appeal stands disposed of. The parties are left to bear their respective costs.

VIPIN SANGHI, J SEPTEMBER 08, 2015 B.S. Rohella