Tej Singh (Since Deceased) Thr ... vs Idol Sadashiv Bhola Nathji ...
2018 Latest Caselaw 6853 Del

$~1 (Special Bench)
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                    Date of Decision: 17th November, 2018
+      RFA 37/2017, CAV 30/2017, CM APPLs. 1140/2017, 16142/2017
       & 16559/2017
       TEJ SINGH (SINCE DECEASED) THR
       LEGAL HEIRS & ORS.                      ..... Appellants
                      Through: Mr. Rajesh Gupta, Mr. Harpreet
                               Singh and Mr. Pranjal Saran,
                               Advocates.   (M:9810087071       &
                               9811267302) with Appellants/LRs
                               Mr. Ashok @ Trilok, Mr. Kuldeep
                               Singh, Mr. Monender Singh and Mr.
                               Hemant.
                      versus

       IDOL SADASHIV BHOLA NATHJI
       MAHARAJ & ORS.                          ..... Respondents
                    Through: Mr. Anil Sapra, Senior Advocate with
                              Mr. Rajesh Baweja and Ms.
                              Akanksha Choudhary, Advocates for
                              R-1 to 4. (M:9810159481) with Mr.
                              Mangal Singh Jaiwal (R1) and Mr.
                              Brijesh Kumar Jaiswal (R2) in
                              person.
       CORAM:
       JUSTICE PRATHIBA M. SINGH
Prathiba M. Singh, J. (Oral)

1. The present matter was heard from time to time by this Court. Today, during the course of arguments, the parties have resolved their dispute with the assistance of counsels who were appearing for the parties. Before recording the terms and conditions, of the settlement between the parties, a brief background of the matter is recorded hereinbelow.

2. A suit was filed by the idol Sadashiv Bhola Nathji Maharaj (hereinafter, 'idol') through Shri Mangal Singh Jaiswal claiming to be the sole surviving trustee of the Wakf created by Shri Hira Lal vide Trust Deed dated 26th April, 1963. Shri Hiral Lal was the son of Late Smt. Sohan Devi, who in the year 1895 was the exclusive owner of the suit property. The suit property constitutes 16 biswas pukhta agricultural land with a boundary wall built on it situated in Sidohra Kalan, Sabzi Mandi, Delhi (hereinafter 'suit property'). The suit was filed against ten Defendants. The contesting Defendants are Defendant Nos.1 to 5, the Appellants herein (hereinafter, 'Defendants 1 to 5'), who are five sons of Shri. Mangal Singh Saini, who was inducted as a non-occupancy tenant by one Shri Ram Chander Gir, who was the manager of this property (muttawali). The case of the Plaintiff is that the original Wakf created by Smt. Sohan Devi and Shri Hira Lal vested exclusive ownership of the suit property in the idol. Various muttawalis were appointed for managing the suit property, last of whom was Shri Ram Chander Gir.

3. The Defendants‟ case is that Shri Ram Chander Gir had inducted Shri Mangal Singh Saini as the non-occupancy tenant and hence the Defendant Nos.1 to 5 who are heirs of Shri Mangal Singh Saini, are entitled to occupy the suit property and have become the owners of the same. It is not in dispute that Defendant Nos.6 to 10 are occupants of some portions of the property and have been inducted by Defendant Nos.1 to 5. The admitted case between the Plaintiff and the Defendant Nos.1 to 5 is that the Defendant Nos.6 to 10 have no independent rights in the suit property and that they would be bound by the present compromise as they have been inducted by the Defendant Nos.1 to 5.

4. Disputes arose as to the ownership of the land. The idol through, one of the surviving trustrees, Mr. Mangal Singh Jaiswal, filed Suit No.1120/2000. The reliefs sought in the suit are:

"a) A decree for declaration, declaring that the suit property now bearing Municipal No.4975-76-77, near Mata Mandir, Gali Imliwali, Roshanara Road, Subzimandi, Delhi measuring 1 Bigha 18 Biswas in Khasra No.40 and 41, Sadohra Kala, Delhi comprising of a Bagichi (known as bagichi Jaiswal) with fruit bearing trees, flower and vegetable plants and some irregular temporary structures, a well, Samadhis and a Shivala of the Plaintiff is a Wakf property and is owned by the Plaintiff; and

b) as a consequential relief a decree for possession of the said suit properthy be passed in favour of the Plaintiff and against the Defendants. The Defendants be also directed to demolish the structure, if any, raised by them over the suit property or any part of it;

c) a decree for Rs.24,000/- on account of mesne profits be also passed in favour of the Plaintiff and against the Defendants;

(d) a decree for future mesne profits from the date of the suit till vacant and peaceful possession is delivered to the Plaintiff, be also passed in favour of the Plaintiff and against the Defendants;

e) That a decree for perpetual injunction be also passed in favour of the Plaintiff against the Defendants restraining the Defendants from:-

i) Demolishing the Plaintiff idol and the Shivala, Samadhis and well now existing at the site;

ii) Cutting down the fruit bearing trees, flower plants and vegetables plants;

iii) Grabbing the Plaintiff's property in suit;

iv) Creating third party interest in the suit property by sale or otherwise for constructing a huge unauthorized commercial complex or any other building at the site Municipal No.4975/76/77, near Mata Mandir, Gali Imliwali, Roshanara Road, Subzi

Mandi, Delhi-110006;

f) costs of the suit be awarded against the Defendants;

g) any other and further relief which this Hon'ble Court deems fit and proper may also be given and granted to the Plaintiff. "

The Trial Court had decreed the suit on 14th September, 2016. The operative portion of the trial court judgement reads as under:

"110. RELIEF:

In view of above discussion, the Plaintiff is entitled to: (I) A Decree of Declaration that the suit property i.e. property bearing Municipal No. 4975-76-77, near Mata Mandir, Gall Imliwall, Roshanara Road, Subzimandl, Delhi admeasuring 1 bigha 18 biswas in Khasra No. 40 and 41, Sadohra Kalan, Delhi (comprising of a bagichi with fruit bearing trees, flower and vegetable plants and some irregular temporary structures, a well, Samadis and a Shivala) is a Wakf Property and is owned by the Plaintiff i.e. Idol Sada Shiv Bhola Nathji Maharaj;

(II) A Decree of Possession in respect of the suit property is also passed in favour of the Plaintiff and against the defendants and defendants are hereby directed to hand over vacant and peaceful possession of the suit property to the plaintiff within six weeks from today;

(III) A Decree of Perpetual injunction is also passed in favour of the Plaintiff, and the Defendants, their Legal Representatives, agents, attorneys, associates etc from disposing, alienating or creating any third party interest in the suit property, The defendants are further restrained from raising any construction over the suit property and from demolishing the Plaintiff idol, the samadhis and the well existing on the suit property; However, the Plaintiff is not entitled to a Decree of Mesne profits, as prayed."

Only Defendant Nos. 1 to 5 have filed appeals.

5. The disputes have now been settled between the parties on the following terms and conditions: -

i) Defendant Nos.1 to 5, who are the only Appellants before this Court, acknowledge and agree that the exclusive ownership of the suit property vests in the Idol - Sadashiv Bhola Nathji Maharaj.

ii) Defendant Nos.1 to 5 are agreeable to handover the vacant and peaceful possession of the suit property consisting of 2930 Sq. Yards except 260 Sq. Yards, to the Plaintiff.

iii) The Plaintiff has no objection and is willing to permit the Defendant Nos.1 to 5 to occupy a portion of 260 Sq. Yards of the suit property. The remaining portion of the suit property being 2670 Sq. Yards would now vest exclusively with the Plaintiff.

iv) In order to avoid any further disputes or confusion as to the area to be occupied by the Defendant Nos.1 to 5, the plan of the property, which is an exhibited document in the Trial Court Record as Ex.P-43, is attached to the present order. The four corners of the suit property are marked as „A‟, „B‟, „C‟ and „D‟. Presently, the entrance to the entire suit property is at point „C‟. Defendant Nos.1 to 5 would be entitled to a portion admeasuring 260 Sq. Yards demarcated from Points A and B in a horizontal manner. The portion of the suit property, which would vest with the Defendant Nos.1 to 5, would be the portion marked as „A-B- B1-A1‟. This portion shall be demarcated from points „A‟ and „B‟ in a horizontal manner moving inwards to the property towards

„A1‟ and „B1‟ totally encapsulating 260 Sq. Yards. For the purpose of demarcation parties agree for appointment of a Local Commissioner. The entrance for the portion „A-B-B1-A1‟ shall be from the portion of the property lying between points „A‟ and „B‟. This would ensure that the entrance and access of the Defendants is not at point „C‟ and they have an independent entrance from the `Dairy side‟ of the property located between points „A‟ and „B‟. Defendant Nos.1 to 5 would be entitled to get 260 Sq. Yards portion being „A-B-B1-A1‟ mutated in their name exclusively as owners thereof and the Plaintiff gives up all its rights to the said portion in favour of Defendant Nos. 1 to 5.

v) Once this demarcation is carried out, the Defendant Nos.1 to 5 undertake not to claim any rights in the portion „A1- B1-C-D‟. Likewise the Plaintiff would, thereafter, have no right in respect of the portion of the property being „A-B-B1-A1‟. All claims stand settled in the above terms. Neither party will interfere in the physical enjoyment, occupation and exercise of ownership rights over their respective portions of the suit property.

vi) After the demarcation is carried out, a period of six months is granted to the Defendant Nos.1 to 5 to carry out construction in their portion i.e. „A-B-B1-A1‟ which shall be completed on or before 30th June, 2019.

vii) The relief of mesne profits is not pressed in the present suit.

viii) The possession of the entire portion of the property „A1- B1-C-D‟ which is not in occupation of Defendant Nos.1 to 5, shall

be handed over to the Plaintiff on the day when demarcation is carried out. Only the rooms, which are occupied by the Defendants, shall be handed over by 30th June, 2019. Except the portion in occupation of Defendant Nos.1 to 5, the entire remaining land shall, on date of demarcation, be handed over to the Plaintiff.

6. For the purposes of carrying out the demarcation, Mr. Shishu Chauhan, Civil Engineer (M-09711159781) is appointed as a Local Commissioner. The Local Commissioner shall carry out the demarcation of „A-B-B1-A1‟ by placing bricks after taking measurement in the presence of both sides. The demarcation report shall be filed in this Court within two weeks. The fee of the Local Commissioner is fixed at Rs. 50,000/-, to be shared equally by the Appellants and Respondents

7. For enabling the smooth handing over of possession of the respective portions of the property to the Plaintiff on the one hand and Defendants 1 to 5 on the other, Mr. S. K. Tandon, Retd. ADJ (9811719888) is appointed as Local Commissioner to supervise the demarcation and to handover the peaceful and vacant possession of the respective portions to the respective sides. The SHO of the local area shall assist the Local Commissioner and the Civil Engineer in in carrying out of the demarcation and handing over the possession to the Plaintiff. The fee of the Local Commissioner is fixed at Rs.1,00,000/-, to be shared equally by the Appellants and Respondents.

8. Mr. Rajesh Gupta, Mr. Harpreet Singh and Mr. Pranjal Saran, Advocates, learned counsel for Appellants and Mr. Anil Sapra, Senior Advocate with Mr. Rajesh Baweja and Ms. Akanksha Choudhary, Advocates for Respondent Nos.1 to 4 have informed the Court that all the

contesting parties are agreeable to this settlement. Parties are also present as recorded in the appearance given above. They are also agreeable for the appeal to be settled in these terms. Affidavits confirming the same shall be filed by the Appellants and the Respondent Nos.1 to 4 within two weeks after demarcation. Respondent Nos.5 to 9 are not appearing and not contesting this appeal.

9. The demarcation and execution of local commission shall take place on 29th November, 2018 at 11.00 a.m. The demarcation report and the Local Commissioners‟ report shall be filed before this Court on or before 15 th December, 2018.

10. List before the Court on 18th December, 2018 for compliance.

11. Before the next date, the parties shall file their respective affidavits confirming to the terms of this settlement.

12. The portion „A-B-B1-A1‟ would be admeasuring 260 Sq. Yards and the portion „A1-B1-C-D‟ would be admeasuring 2670 Sq. Yards. Ex.P-43 with marking of points as made by the Court today in red pen shall form part of the decree. The suit is decreed in the above terms. Decree sheet be drawn accordingly.

13. Copy of this order be given dasti under the signature of Court Master to the parties and be also communicated to both the Local Commissioners.

PRATHIBA M. SINGH JUDGE NOVEMBER 17, 2018/dk