Prathiba M. Singh, J.

RFA 461/2016

1. The Court spent considerable time in hearing this matter on the last date and today. On the last date, a Local Commissioner was also appointed to report on the exact status of the property. Parties almost agreed on the terms and conditions during the course of these hearings. However, while the Court was dictating the order recording the terms of settlement, parties did not wish to give consent to the terms. In view of the same, there appears to be no possibility of settlement between the parties.

2. Admit. List in due course.

CM Nos.25296/2016, 39189/2017 & 45405/2017

3. By CM Nos.39189/2017 & 45405/2017, Appellants have prayed for stay of the execution proceedings in Execution Petition No.751/2017 pending before learned ADJ-05 (South), Saket Courts, New Delhi, till final disposal of the appeal. By CM No.25296/2016, the Appellants are seeking stay of judgment and decree dated 25th May, 2016, till final disposal of the present appeal.

4. Present appeal has been preferred challenging the impugned order dated 25th May, 2016 by which the Trial Court was pleased to direct division of the suit property as per the report dated 23rd April, 2016 of the architect Sh. S.M. Soni. The Trial Court accepted the said report and disposed of the suit by directing that the additions/alterations as per the report of the architect would be carried out and further directed that the expenses for the same would be borne equally by both the parties. The Trial court also directed that neither party would create any hindrance in the implementation of the report of the architect.

5. The litigation has a long and chequered history. Parties are brothers and are in occupation of property bearing no.244, Westend Marg, Saidulajab, Tehsil Saidulajab, Mehrauli, New Delhi (hereinafter, ‘suit property’). The same is jointly owned by the parties. A suit for permanent injunction was filed by the Appellants with the following prayers :

“(a) Leave under Order 2 Rule 2 of the Code of Civil Procedure;

(b) Pass a Decree for permanent injunction restraining the defendants and their men, agents and associates from inducting and/or permitting any outsider or any third party who are not the family members of Sarda Brothers to come inside the property and to occupy any portion of the suit property and to indulge into any such act which cause nuisance and annoyance to the family members;

(c) A decree for permanent injunction restraining the defendants, their men, agents and associates from selling, assigning, transferring, parting with possession and/or creating any third party interest in the suit property of the Sarda Brothers and/or from changing the nature of user of the suit property from residential to commercial purpose;

(d) Temporary Injunction.

(e) Receiver

(f) Cost of the suit.

(g) Such further and other relief or reliefs to which the Plaintiff is entitled to under the law and on equity.”

6. An application was filed seeking interim relief. On 10th March, 2011, an interim order was passed restraining the Respondents from inducting or permitting any stranger from occupying the suit property and from transferring, alienating, or creating any third party interest. Defendants filed an appeal against the said order which was registered as FAO 233/2011. On 23rd May, 2011 in the said appeal, a learned Single Judge of this court passed the following order :

“Learned senior counsel for the parties as also Advocates on record are requested as officers of the Court to suggest an agreed modality which will entitle both the parties to use the premises, but simultaneously not affecting the others right to use the property also.

List on 26th May, 2011.”

7. Thereafter, the parties agreed to give the name of an architect for suggesting the division of user/occupation/enjoyment of the suit property. This was recorded on 27th July, 2011 in the following terms.

“Counsel for the parties state that they will give an agreed name of the Architect to suggest the