Delhi High Court
Inderjeet Kaur & Ors vs Ekta Gulati & Ors on 17 January, 2018
$~23
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on :- 17th January, 2018
+ CM (M) 68/2018
INDERJEET KAUR & ORS ..... Petitioners
Through: Mr. Sanjay Gupta, Advocate.
Versus
EKTA GULATI & ORS ..... Respondents
Through: None.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
CM Nos.1802-1803/2018 (exemption)
Allowed, subject to all just exceptions.
CM(M) 68/2018 & CM No.1801/2018
1. The petition seeks to challenge the order dated 16.12.2017
passed by the Additional District Judge on the file of Execution case
No. 405/2017 which was taken out by the first, second and third
respondents herein. The execution proceedings arise out of Suit
No.27/2010, which had been instituted by the first respondent (the
plaintiff).
2. From the observations made in the copies of the judgment dated
31.01.2012 (Annexure P-1), judgment dated 16.08.2012 in RFA No.
166/2012(Annexure P-2), order dated 03.03.2016 of the Supreme
Court in Civil Appeal No. 7332/2013 (Annexure P-3) and the
impugned order (Annexure P-6), it emerges that the litigation relates
to the prayer in the suit of the plaintiff seeking reliefs in the nature of
partition, rendition of accounts and permanent injunction in respect of
the premises described as shop (including basement), bearing No. 66,
Bhagat Singh Lane, Gole Market, Connaught Place, New Delhi the
controversy relating to the claim of possessory rights, he claims to be
one of the legal heirs of Purshottam Singh. The petitioners claim
under Manjeet Singh, who was one of the legal heirs of Purshottam
Singh, his share in the subject property admittedly being only 1/5 th. It
appears the second, third and fourth respondents were also impleaded
as defendants, their share also being 1/5th each in the subject property.
On the basis of evidence led, the Additional District Judge by her
judgment dated 31.01.2012 granted a preliminary decree of partition
in favour of the plaintiff (first respondent) declaring share of each
party to the case as 1/5th, the claim of the petitioners herein, under
Manjeet Singh, having thus crystalised to the extent of 1/5th only.
3. It is an admitted case of the petitioners that they are in use and
possession of a large portion admeasuring 12'8" X 19'4" at the ground
floor portion of the subject shop as reflected in the site plan (page 27
of the paperbook), the rear portion described as 12'1" X 9'6" statedly
being in the possession of a third party, the basement admeasuring
12'1" X 9'4" being in use and occupation of yet another stranger to
the proceedings, who was allegedly inducted by Mr. Surjeet Singh,
husband of fourth respondent, during his life time.
4. The preliminary decree was challenged by the abovesaid Surjeet
Singh (now represented by fourth respondent after his death), and by
the petitioners herein, claiming under Manjeet Singh, by RFA No.
166/2012. The said appeal, however, was dismissed by order dated
16.08.2012. Pertinent to note that the Court observed in the said order
that the premises could not be appropriated by some of the legal heirs
to the exclusion of others, the claim being for possessory rights. The
decision in the RFA by this Court was challenged by a Special Leave
Petition before Supreme Court in Civil Appeal No. 7332/2013. The
said appeal was dismissed by order dated 03.03.2016. It is necessary
to extract the said order, it reading as under:-
"The appeal is dismissed.
However, we make it clear that the execution of the
decree shall be deferred till 30th June, 2017 and on 1st
July, 2017, the appellants shall deposit the key of the
premises before the Executing Court.
We direct the appellants to file an undertaking
before this Court to the above effect within two weeks from
today and if not, the above concession will stand vacated."
5. It is against the above backdrop that while some proceedings in
the wake of preliminary decree have remained pending before the civil
court, the execution petition No. 405/2017 was taken out by the first,
second and third respondents for enforcement of above orders which
have merged in order dated 03.03.2016 of the Supreme Court. At the
same time, an application was also moved for appointment of a Local
Commissioner so that it could be examined whether the shop in
question could be partitioned by metes and bounds. It is, however,
admitted by the counsel for the petitioner at the hearing that given the
nature and dimensions of the premises, it is not possible to divide the
property amongst the five shareholders by metes and bounds. Thus,
the only mode of partition is by sale of the property and division of the
respective shares.
6. In the given facts and circumstances, the objections raised by
the petitioners that they cannot be ousted from the use and occupation
of the portion of the subject property based on the ruling in Shub
Karan Bubna @ Shub Karan Prasad Bubna v. Sita Saran Bubna &
Ors. (SLP(C) No. 17932/2009 decided on 21.08.2009), are found to be
devoid of substance.
7. It is vivid from the order dated 03.03.2016 of the Supreme
Court in Civil Appeal that the petitioners had agreed that they would
be obliged to hand over the vacant possession of the premises for
which they had sought time till 30.06.2017. The directions of the
Supreme Court are clear to the effect that the petitioners would be
obliged to deposit the key of the premises before the executing court
on 01.07.2017. Of course, extended time was granted as a concession,
subject to the undertaking being submitted. The fact that the
petitioners did not furnish any undertaking cannot be used by the
defaulters to their advantage for avoiding compliance with the letter
and spirit of the said order dated 03.03.2016.
8. In above view, the petition is found devoid of substance and
merit. It is dismissed in limine. The application filed therewith is
rendered infructuous and stands disposed of accordingly.
9. Dasti under the signatures of Court Master.
R.K.GAUBA, J.
JANUARY 17, 2018
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