Om Parkash Malhotra vs Chand Rani

R. L. Anand, J.—Plaintiffrespondent Chand Rani Sharma filed a suit for possession and claimed a portion of the property bearing Municipal No. 5615/1, 5615/A1 and 5581/1/1, situated at Nicholson Road, Ambala Cantt. Besides that, she claimed a money decree for a sum of Rs. 1,400/. The case set up by the plaintiff was that she was the owner of Houses No. 5615, 5615A and 5581/1 and the said property was transferred to her by the Rehabilitation Department, Govt. of India. The numbers of those houses have been changed by the Municipal Committee as 5615, 5615/A1 and 5581/1/1. There was a dispute regarding the allotment and transfer of the said property which was settled vide order dated 22.2.1963 passed by the Chief Settlement Commissioner on the basis of a compromise and as per the compromise, the plaintiff has become the absolute owner of the property regarding which she had claimed possession. She enumerated the compromise in the plaint. The suit was contested by the appellantdefendant on the plea that the interpretation of the compromise is to be given by the Chief Settlement Commissioner and the Civil Court cannot sit over decision or order of the Chief Settlement Commissioner and, in these circumstances, even the suit is also bad.

The learned trial Court granted a decree for possession of the property bearing No. 5615, 5615/A1 and 5581, Nicholson road, Ambala Cantt. and also passed a money decree for a sum of Rs. 1,400/. The defendant was not satisfied with the judgment and decree passed by the trial Court and he filed an appeal before the Court of the Addl. District Judge, Ambala, who partly allowed the appeal but the judgment and the decree of the trial Court with regard to the property over which the decree was passed was not disturbed. The learned Addl. District Judge vide impugned judgment and decree dated 6.3.1998 passed a decree for the possession of portion of property No. 5615, 5615A and 5581/1 and new Municipal No. 5615/1, 5615/A1 and 5581/1/1, Nicholson Road, Ambala Cantt, shown with red colour in the site plan mark X, attached with the plaint. A decree for a sum of Rs. 1,400/ was also passed in favour of the plaintiff. Aggrieved by the concurrent findings of the Courts below, the present appeal, which I am disposing of with the assistance rendered by Mr. J.M. Sethi, counsel for the appellant and Mr. M.K. Garg, counsel for the respondent and with their assistance have gone through the record of this case.

The primary contention of the counsel for the appellant was that the compromise which was arrived at between the parties before the Deputy Chief Settlement Commissioner talks differently than the one as enumerated by the plaintiff in her plaint. The counsel submitted that the dispute is with regard to the portion of the property which was allotted to the plaintiff by way of compromise and this aspect of the case can only be examined by the Deputy Chief Settlement Commissioner. In support of his contention, the learned counsel for the appellant relies upon the order dated 22.2.1963, which reads as under :

"As per statements of parties recorded above, the revision petition is partly accepted to the extent that the property in question shall be divided as per compromise of the parties mentioned in the statements. The portion in occupation of Smt. Chand Rani is valued at Rs. 2500/ and that of the petitioner Shri Om Parkash Malhotra at Rs. 3138/ (Total Rs. 5638/). The portion proposed to be transferred to Chand Rani be transferred to her for Rs. 2500/ and the rest to Shri Om Parkash for Rs. 3138/, as against their compensation under the rules, after hearing them."

A reading of the above order would show that this order was passed on the basis of compromise between the parties and the statements of the parties were also recorded by the learned Deputy Chief Settlement Commissioner having the powers of Chief Settlement Commissioner, on the same day. In this regard, one will have to revert back to the compromise which was arrived at between the parties. The statement of Chand Rani Sharma was recorded and it runs as under :

"We have compromised. The property No. 5615A, 5615 and 5581/1 may be transferred as under :

The portion of the property in question on one side of the shop in my occupation along with its upper portion and the back portion be transferred to me on payment of Rs. 2500/ and the remaining portion be transferred in favour of Shri Om Parkash Malhotra on payment of Rs. 3138/. The dividing line between the above said two portions would be the centre of arc combining the two shops, the said arc shall be constructed right upto the end. The wall shall be in 9" thick. The parties would construct the partition wall on their joint cost. Shri Om Parkash will continue to be in occupation of the upper portion as well as the back portion of the property transferred to me except the shop for a period of five years and he will give vacant possession to me after the period so granted. He shall not pay any rent for my portion in his occupation for five years and shall also not claim any amount towards construction of the said portion. Each party shall enjoy the amenities of their respective portions and will have no right of easement in the portion of the other. The staircase which exist in the portion of Shri Om Parkash (now to be transferred) shall not be used by me.

The appeal of Shri Om Parkash may be accepted to this extent that the property is being divided in terms of the above compromise and my compensation shall remain intact.

The value of the two portions shall be adjusted from the compensation of the parties or by way of association under the rules. I have made this statement voluntarily and without any pressure from any side."

The statement of Om Parkash Malhotra was also recorded by the Dy. Chief Settlement Commissioner on the same day in which he categorically stated as follows :

"I have read the statement of Smt. Chand Rani and accept the same. Since I have paid 20 per cent in cash of the entire value of the property and according to the compromise, I have to make payment of 20 per cent out of my compensation plus cash, there shall be an excess with the authorities which may be refunded to me. For the remaining 80 per cent the compensation of the association may be adjusted. The association papers are already on record. I have made this statement voluntarily and without any pressure from any side."

A reading of the statement of Chand Rani Sharma makes it abundantly clear that she was transferred a portion of the property on one side of the shop in her possession along with its upper portion and back portion subject to payment of Rs.2,500/ In these circumstances Chand Rani was claiming the possession of the property in dispute on the basis of her title. It has been established on the record and it has been so held by the Courts below that Chand Rani is claiming the possession only of that part of the property which was given to her as per compromise.

In these circumstances, I do not subscribe to the argument of the learned counsel for the appellant that the point of possession requires to be determined and it can only be determined by the Chief Settlement Commissioner. By virtue of the compromise arrived at between the parties, both the parties had become owners of the property which was in their respective possession. I do no find any infirmity in the impugned order.

No merit. Dismissed.