Bhai Balbir Singh & Ors. vs Bhai Upinder Singh & Ors.
2019 Latest Caselaw 65 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                              Date of Decision: 8.1.2019

+      EX.P. 92/2016

    BHAI BALBIR SINGH & ORS.            ..... Decree Holders
                    Through: Mr. Adit S. Pujari with Ms.
                             Kriti Awasthi and Ms. Surabhi
                             Dhar, Advocates.
             versus
    BHAI UPINDER SINGH & ORS.         ..... Judgement Debtors
                    Through: Mr. Abhijat with Mr. Sujoy,
                             Advocates         for   Judgment
                             Debtor-1.
                             Mr. Jasmeet Singh with Mr.
                             Srivats Kaushal, Advocates for
                             JD-2A.
                             Ms. Priyanka Sharma Goswami
                             with Ms. Anusuya Sadhu Sinha
                             and Ms. Amrita Sharma,
                             Advocates         for   Judgment
                             Debtor-2B.
                             Mr.       Sanjeev        Mahajan,
                             Advocate for JD-2C.
                             Mr. Gaurav Duggal with Mr.
                             Mohit Seth, Advocates for JD-
                             3A, B & C.
                             Ms. Malvika Trivedi, ASC with
                             Mr. Pramod Sharma, Advocate
                             for NDMC.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER

RAJIV SHAKDHER, J. (ORAL)

EX. APPL. No.4/2019 (exemption)

1. Allowed, subject to just exceptions.

EX. APPL. (OS) No.46/2018 in EX.P. 92/2016

2. The substantive prayers made in the execution petition are as follows:-

(a) Direct the Judgment Debtors to handover physical possession of 337 square yard's to the Decree Holders, in the manner and to the extent as ' decided between the parties under Settlement Agreement dated 21.5.2010.

(b) Order the Judgment Debtors to pay further costs incurred by the Decree Holder in pursuing the execution of the award dated 03.05.2005 and order dated 04.09.2012 for compliance with the terms of the settlement deed dated 21.5.2010"

3. This execution petition has been going up and down. In fact, the record shows that the execution petition was disposed of by my predecessor vide order dated 24.11.2016. In that order, certain directions were issued for the purposes of execution of the subject decree. Upon an application being filed on behalf of Judgment Debtor (JD) no.2B for clarification (E.A. (OS) No.798/2016), an order dated 01.12.2016 came to be passed by the learned Single Judge.

4. The learned Single Judge dismissed the application as, according to him, what was recorded in the order dated 24.11.2016 reflected accurately as to what transpired in the Court during the course of hearing.

5. Aggrieved by the order dated 24.11.2016 and 01.12.2016, an appeal was preferred by JD no.2B to the Division Bench. The Division Bench disposed of the appeal vide order dated 05.12.2017.

The appeal was partially allowed by the Division Bench. The relevant observations with regard to the controversy at hand are contained in paragraphs 19 to 23 of the order of the Division Bench. For the sake of convenience the same are extracted hereafter:-

".....19. Having gone through the said orders and also the settlement agreement, including clauses (e) and (f) thereof, it is not possible to accept the contention raised by BBS that the appellant-BSS by consent had given up his claim of right to use the portion EIGL as also possession thereof. In fact, we do not find any good ground or reason why the appellant-BSS would have given up the right of use the portion EIGL for which there had been contest and proceedings pending since 2005 culminating into settlement agreement dated 21st May, 2010 and then a decision of the FAO(OS) No. 83/2007 on 9th July, 2013. The settlement agreement dated 21st May, 2010 had given specific rights to the appellant-BSS in the portion EIGL in plot 9. When we read the order dated 27th September, 2016 and the order dated 24th November, 2016, we cannot make out that the appellant BSS had understood and had agreed and consent to give up and had consented to the modification of clauses (e) and (f) of the settlement agreement dated 21st May, 2010. In case this was the intent and the appellant- BSS was ad idem on the said aspect, a clear and categoric statement was required. No doubt, order dated 24th November, 2016 is a consent order, albeit it refers to consent given by the appellant-BSS in respect of the construction of the outside boundary wall and in respect of the bathroom. We do not understand the said orders as recording a consent of BSS, giving up his right to use in the EIGL portion. Counsel for the parties have accepted that there is already a wall having doors demarcating the portions EFG and EIGL.

20. We have also gone through the Architect's letter dated 8th November, 2016 and in particular paragraph 2 thereof, which was relied upon by the counsel appearing for BBS group. Paragraph 2 of the said letter reads as under:-

"Constructing a partition wall 9" thick, 4"- 1/2" from the centre line on both sides of the L&DO line, this wall erected will give effect to the best possible way for the demarcation of the new boundary wall including the built up portion of 9 Amrita Shergill Marg, New Delhi."

21. The plan prepared by the Architect has been shown to us today in the Court. The said plan does not specifically refer to the portions DEFG and EIGL. Looking at the plan given by the Architect, would not indicate that it was envisaged that the demarcation wall would be constructed so as to deprive the appellant-BSS of the portion EIGL. We would, therefore, observe that even if this was the intent, it ought to be specifically pointed out and explained to the appellant-BSS before it can be construed and accepted that he had willingly given his consent to give up that portion.

22. Counsel for the BBS group was repeatedly asked why and for what reason will the appellant-BSS agree to give up his right on the portion EIGL. After all, certain rights had been given to appellant-BSS and this had resulted in the settlement agreement dated 21st May, 2010 bringing to an end a long drawn litigation. We do not read any of the orders as indicative of the fact that the appellant-BSS had consciously and clearly consented to give up his rights under clauses (e) and (f) of the settlement agreement dated 21st May, 2010.

23. Learned counsel for the appellant-BSS had also objected to the construction of the boundary wall in the outside portion and in the portion DEFG stating

that only a wrought iron grill could be affixed. Contention was also raised with regard to the right to use bathroom H. However, we do not think appellant- BSS can succeed on the grounds. The direction given in the impugned order is to construct a boundary wall in the outside portion which demarcated plots 9 and 9A instead of a wrought iron grill. To this extent, we find that the order passed by the single Judge was with the consent of parties. This was the intent and the reason for passing order dated 27th September, 2016 and subsequent order dated 24th November, 2017. With regard to the bathroom at point H, we are not inclined to interfere with the impugned order as the appellant-BSS had understood that the bathroom has to be built in the portion in his occupation in plot No. 9 as per the demarcation carried on by L&DO dividing plots 9 and 9A. These were stipulation and time limits on construction of bathroom as portion of plot 9 as per agreement dated 21st May, 2010. It has been 17 years since then. Consent was given, in the express terms and recorded in respect of the Bathroom H. To that extent, we do not see any reason to interfere with the impugned order and the directions given therein. We are not aware whether the appellant-BSS requires permission for construction of the bathroom. If any such permission is required, the same would be obtained. In case permission from the NDMC is sought, we hope and trust that NDMC would decide the same in accordance with law and grant permission expeditiously. In case of difficulty, the parties can move the single judge by filing an application in the execution petition. As time lines would undergo a change, parties would approach the single Judge..."

5.1 The order of the Division Bench brought forth the following aspects:

(i) No consent had been given by JD no.2B with respect to the area marked as EIGL.

(ii) Consent was given by JD no.2B to the construction of wall in the „outside portion‟ which demarcated Plot no.9 and 9A, Amrita Shergill Marg, New Delhi, property and

(iii) No interference was called for in construction of the bathroom which was to be built at point H in the portion in occupation of JD no.2B in the area under his sway in Plot no.9, as this is his understanding as well.

(iv) There were time limits set for construction of bathroom in Settlement dated 21.5.2010.

5.2 In this foreground, let me examine the pleas advanced before me by the counsel for the parties so as to move forward the process of the execution of the decree.

6. Counsel for the decree holder and those who appear for JD nos.1, 2A, 2B, 2C, 2D and 3A to 3C contend that the decree holder is required to execute and register the Relinquishment Deed with respect to Property No.9, Amrita Shergill Marg, New Delhi.

6.1 To be noted, the decree holder has in his possession, Property No.9A, Amrita Shergill Marg, New Delhi.

7 The entire controversy arises on account of an area equivalent to 337 sq. yds. having somehow being occupied by the aforesaid JDs. 7.1 It is in this context that an award was delivered by Mr. Justice P.K. Bahri, former Judge, Delhi High Court, qua which, a challenge

was laid and an order dated 3.1.2007 came to be passed by a learned Single Judge of this Court. The judgment of the learned Single Judge was carried in appeal which was numbered as FAO (OS) No.83/2007.

7.2 In the interregnum, the decree holder and JD no.2B entered into a Settlement Deed dated 21.05.2010.

7.3 Given these circumstances, the Division Bench disposed of FAO (OS) No. 83/2007 vide order dated 09.07.2013 and put a quietus to the appeal insofar as the dispute vis-a-vis properties bearing No.9 and 9A, Amrita Shergill Marg, New Delhi were concerned.

7.4 Counsel for the parties do not dispute that the area admeasuring 337 sq. yds. is marked as DGEF and EIGL on the plan which is appended as Annexure-I to the order dated 24.11.2016. It is also not in dispute that the decree holder is already in possession of a part of the area admeasuring 337 sq. yds. which is marked as DGEF.

8. The issue which is, presently, remaining to be settled is: at what point in time the remaining portion of 337 sq. yds. which is marked as EIGL is to be handed over to the decree holder.

8.1 Ms. Anusuya Sadhu, who, appears for JD no.2B, points to Clauses 4 (e)1 and (f)2 of the Settlement Deed dated 21.05.2010

e). As regards the constructed area remaining in the possession BSS which ought to come to BBS under the decree, marked E, I, G, L in the plan shall remain in possession of BSS till the entire house is demolished and reconstructed or sold.

f). In case of demolition/reconstruction/sale to a third party, of the entire of 9 Amrita Shergill Marg, the present constructed portion E, I, G L in the Plan shall be transferred entirely to BBS and his group or his transferees who shall then be entitled to a put a brick wall from the front till the end on the L& DO line as per the orders of the Ld. Single Judge.

arrived at with the decree holder. Based on the said clauses, in particular Clause 4(e), Ms. Sadhu says that JD no.2B is obliged to handover the area marked as EIGL on the aforementioned plan only when the entire house is "demolished and re-constructed or sold".

8.2 It is the submission of learned counsel that the execution and registration of the Relinquishment Deed by the decree holder is not inter-linked with Clause 4(e) of the Settlement Deed dated 21.05.2010.

8.3 Mr. Adit S. Pujari, who, appears for the decree holder, contends to the contrary. For this purpose, he has drawn my attention to the paragraph 7 to 9 and 123(a) of the learned Single Judge‟s order dated 03.01.2007. According to the counsel for the decree holder, this part of the order amongst others has not been disturbed by the Division Bench.

9. Insofar as counsel for the other JDs apart from JD no. 2B are concerned, their stand is that the decree holder should be called upon to execute and register the Relinquishment Deed as Clause 4(e) by itself is unworkable and the Settlement Deed dated 21.5.2010 executed between the decree holder and JD no.2B cannot bind and efface, in a sense, the right of the other JDs. According to these counsel, the unworkability of Clause 4(e) of the Settlement Deed dated 21.5.2010 is writ large as the house cannot be demolished and re-constructed or sold without the counsel of all JDs.

10. Having heard learned counsel for the parties and perused the

record, according to me, apart from anything else, Clause 4(e) of the Settlement Deed dated 21.05.2010 has led to an absurd situation which is that if Judgment Debtor no. 2B does not demolish or sell the house for the next 50 years the decree would remain unsatisfied till then.

10.1 The decree holder has, to my mind, rightly taken the stand that he would execute and register the Relinquishment Deed with respect to Property No.9A, Amrita Shergill Marg, New Delhi only if the entire portion of 337 sq. yds. is handed over to him.

10.2 It is not disputed by any of the JDs that the ownership of 337 sq. yds. would vest with the decree holder. The situation, as it obtains today, is that the decree holder and the JDs are unable to enjoy the subject property on account of a small piece of land, as is indicated above, marked as EIGL, which, I am told, admeasures only 60 sq. yds.

10.3 In view of the log jam which has obtains in this matter, I am of the view that the best way forward is to construe Clause 4(e) of Settlement Deed dated 25.05.2010 in a manner which is real and practical and which exemplifies the true intent of the parties, that is, to enjoy the traits of decree in their lifetime. Since, the decree holder is willing to execute and register the Relinquishment Deed, I am inclined to direct Judgment Debtor no.2B to demolish and handover the portion marked as EIGL on the aforementioned map to the decree holder. The needful will be done by the Judgment Debtor no.2B within four (4) weeks from today. Upon the needful being done, the

decree holder will execute and register the Relinquishment Deed in favour of all JDs.

11. There is one other aspect of the matter which concerns JD no.2A. JD no.2A, who, is a widow and approximately 60 years of age resides in a portion of the property falling in 9, Amrita Shergill Marg, New Delhi. The portion comprises a bedroom with an attached bathroom and a living room; this area is occupied by Judgment Debtor no.2A and does not fall within the area marked as EIGL. Therefore, while carrying out the demolition JD no. 2B will ensure that the area under occupation of JD no.2A is not disturbed.

12. Renotify the matter for compliance on 08.03.2019. EX. APPL. (OS) No.175/2018

13. Having regard to the directions passed by me hereinabove today, Mr. Abhijat, who, appears for JD no.1, says that he does not press the captioned application.

14. The application is, accordingly, dismissed as not pressed. EX. APPL. No.3/2019

15. Ms. Sanjeev Mahajan, who, appears for JD no. 2, seeks leave to withdraw the captioned application with liberty, if necessary, to file an independent petition.

16. Accordingly, the application is dismissed as withdrawn with liberty as prayed for.

17. Dasti.

RAJIV SHAKDHER, J JANUARY 08, 2019 hs