Sher Singh & Ors vs Jai Singh
2018 Latest Caselaw 4826 Del

$~10
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                     Date of decision:16th August, 2018
+      CS(OS) 3603/2014 & I.As. 23434/2014, 10768/2015, 4216/2016,
       1118/2018
       SHER SINGH & ORS                                ..... Plaintiffs
                          Through:     Mr. Aditya Vikram & Mr. Avinash,
                                       Advocate (M-9555913622).
                          Versus
       JAI SINGH                                           ..... Defendant
                          Through:     Mr. Mandeep Singh Vinaik, Ms.
                                       Anjali Sharma & Mr. Deepak Bashta,
                                       Advocates (M-9810001275).
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. This is a suit filed for permanent injunction. The brief background is that Lt. Sh. Risal Singh is the predecessor-in-interest of the parties and was karta of the HUF. He was a resident of 257, Shahpur Jat, New Delhi. It is averred that various agricultural lands and plots were purchased by the Joint Hindu Family through its karta, in the name of HUF. However, the same have not been partitioned.

2. The present suit has been filed by the Plaintiffs seeking the following prayers:

i. Partitioning the Open land adjacent to the temple measuring 4600 sq. yds. (approximately) falling in Khasra no.275/I-2 in Khata/khatauni No. 13/20 in the Village Shahpur, District South Delhi, by metes and Bounds among the Plaintiffs and the Defendant according to the shares therein;

ii. Restraining the Defendant from usurping or Trespassing the land measuring 2 Bighas 3.89 biswas

(2-3.89 Bighas) out of Khasra No. 264 falling in Khasra no.275/I-2 in Khata/khatauni No. 13/20 in the Village Shahpur, District South Delhi, which is owned and belonging to the Plaintiff No. 1 and also from showing it into the lay out of the small farms got prepared by Defendant for selling the same to the third party;

iii. Restraining the Defendant from converting the private road into a public road and to allow any person other than the family members to use the same; and iv. Cost of the suit may also kindly be awarded in favour of the Plaintiffs and against the Defendant;

Any other relief which this Hon'ble Court deems fit in the circumstances of the case may also kindly be granted in favour of the Plaintiffs and against the Defendant."

3. Mr. Vinaik submits that there was an earlier family settlement entered into on 8th September, 1993 between the very same parties. The said settlement was recorded between the parties and a decree was passed on 26th November, 1994. Hence the same cannot be reopened.

4. It is seen from the record that a suit for permanent injunction was filed between the parties and in the said suit, a settlement agreement dated 8th September, 1993 was entered into between the parties. The salient terms of the said settlement read as under:

"8.... The portion marked in Green from point A to B admeasuring approx. 7.5 acres shall belong to Shri Jai Singh, portion marked in Red from point C to D admeasuring approx. 7.5 acres shall belong to Shri Sher Singh and portion marked in Blue from point E to F admeasuring approx. 7.5 acres shall belong to Shri Inder Singh. The aforesaid shares of the brothers shall

be at their disposal for any purpose they deem fit including sale, transfer etc. and for this the statutory requirement of consent of all the brothers shall be readily available. The portion marked G to H has been left by all for the benefit of the temple. The title deeds of this aforesaid land are in possession of Shri Jai Singh who shall give the same to Shri Sher Singh and Shri Inder Singh as and when needed by them"

5. The above settlement was duly accepted by the court and a decree in terms of the settlement was passed. The order recording the settlement reads as under:

"Originally the suit was filed by plaintiff shri Jai Singh against the defendants Sher Singh and Shri Risal Singh. During the pendency of the suit, defendant Risal Singh expired and his legal heirs were brought on record and amended memo of parties was filed. Now the parties to the suit are Jai Singh vs. Sher Singh, Smt. Sarwati Devi, Inder Singh, Smt. Burfo Devi, Smt. Kailash Wati, Smt. Ramo Devi. The subject matter of the suit is incorporated in Para 2 of the plaint,, which land is land measuring 96 bigha, 5 biswas and this property is situated at Shahpur Rural Village,, Tehsil Mehrauli, New Delhi. The site plan of the said property is also annexed thereto with the plaint. The plaintiff and the defendants are co-owners of the suit property having their respective shares as per Khasra Girdawri and revenue record. The suit property is jointly in possession of the plaintiff and the defendants. The entire suit property is menat [sic meant] for agricultural purposes. Originally the suit was hotly contested by both the defendants and even by defendant No. 2 who during the pendency of the suit expired. The parties were also directed to maintain status quo in respect of possession and user of the suit property till the disposal of the main suit and this order was passed on 10.2.92 during the life time of defendant NO. 2.

2. However after the death of defendant no. 2, the parties came to a compromise and they filed memorandum, of settlement which has been exhibited as Ex. C1. The plaintiff, defendant No. 1 and the LRs of deceased defendant No. 2 all have signed this memorandum of settlement. The memorandum of settlement Ex. C1 is dated 9.8.94.

3. The statement of plaintiff Jai Singh and that of defendant no. 1 and the statement of Shri Ved Parkash Sharma Advocate for all the defendants and that of the LRs of defendant No. 2 have been recorded separately on 9.8.94. They have admitted and accepted to have executed the memorandum of settlement Ex. C-1. As per this memorandum of settlement incorporated at page 3 of Ex.C-1 the parties have partitioned the property under the settlement with respect to the property jointly owned and possessed by them. I, therefore, pass consent decree in terms of the memorandum of settlement Ex.C-1. This decree shall be binding and applied as a decree in personam. Since vide this consent decree the property jointly owned and possessed by the parties stand partitioned, so this decree shall be subject to payment of Court Fees payable on a suit for partition. Decree sheet be prepared accordingly. File be consigned to Record Room."

6. Prayer No.1 in the present suit relates to 4,600 sq. yds. which is part of the property which was subject matter of the settlement. Prayer No.2 also relates to portion of lands forming part of the settlement. It is submitted by the counsels of both the parties that the parties are willing to abide by the terms of settlement. However, Ld. Counsel for the Plaintiff submits that the land marked as G to H in the settlement, appurtenant to the temple, is being wasted, inasmuch as none of the parties is able to use the land, though the same has been agreed to be left to all the parties for the benefit of the

temple, as per the settlement. He thus seeks partition of the land forming part of the G to H except the constructed portion of the temple.

7. The settlement is very clear in its terms and it records categorically that the portion marked as G to H is left by all the parties for the benefit of the temple. The said settlement cannot be retracted from, as it has already been recorded and a decree has been passed by the Court in the earlier suit for injunction.

8. Insofar as the second prayer for injunction against the Defendant from trespassing is concerned, Mr. Mandeep Singh Vinaik, Advocate appearing for the Defendant submits that his client has not trespassed into the Plaintiffs' property and is only in possession and occupation of the land which was allotted in his favour as per the settlement.

9. In order to ensure that there is no confusion as to the area which falls under the share of different parties, as per the Memorandum of Settlement. All the parties are willing to abide by the settlement, except insofar as the property marked as G to H, is concerned. However, the said settlement cannot be retracted from and is completely binding on the parties.

10. In order to maintain peace and harmony in the family and to ensure that all parties are able to enjoy the full use and occupation of the portions which fall in their respective shares, it is deemed appropriate to appoint a Local Commissioner, in order to clearly demarcate the areas. Such demarcation would avoid any future protracted litigation between the parties.

11. Insofar as the partition of portion of G to H is concerned, the same cannot be re-opened or re-agitated on the premise that no useful purpose is served by leaving such a large portion of the land in favour of the temple.

Needless to state, the portion marked as G to H which is left by all parties for the benefit of the temple, shall remain jointly shared by all the members of the family. The maintenance of the same shall be jointly carried out and expenses shall be borne jointly by the parties for the said area.

12. Accordingly, the present suit is disposed of with the direction that the parties shall be bound by the settlement and the decree already passed. Further, the Local Commissioner shall demarcate the area of the respective portions of the parties and file a report before this Court.

13. Mr. Shishu Chauhan (M-09711159781), Civil Engineer is appointed as a Local Commissioner to demarcate the areas of the various parties, in terms of the settlement and the site plan annexed thereto. The Registry shall make available to the Local Commissioner a copy of the settlement agreement and the site plan. The fee of the Local Commissioner at this stage is fixed at Rs.1 lakh. The expenses of the Local Commissioner shall be paid by the Plaintiff.

14. Parties shall abide by the consent decree which has already been passed and the demarcation carried out by the Local Commissioner.

15. The Local Commissioner's report shall be placed before the Court within six weeks

16. Matter shall be treated as part heard for the purpose of compliance.

17. List for compliance on 5th October, 2018.

18. The suit is disposed of. All I.As. are disposed of.

PRATHIBA M. SINGH JUDGE AUGUST 16, 2018 Rahul