INDER KUMAR KATHURIA Vs. KRISHNA KUMAR KATHURIA

JUDGEMENT

(1.) The present appeal is filed against a decree dated 08.04.2004, which was drawn-up pursuant to an order of this Court in I.A. No. 7595/2004 in CS(OS) 90/2004. Before entering the details of that order, a background of the dispute between the parties is necessary. The plaintiff in CS(OS) 90/2004, and the appellant herein, is the sole registered owner of property bearing No. D-133, East of Kailash, New Delhi (hereinafter "the property in question"), which was given as a perpetual lease by the President of India through a deed dated 27.10.1973, for a sum of Rs. 48,000/-, registered in the Office of the Sub-Registrar, Delhi on 09.01.1974. This property comprises a ground floor, first floor, mezzanine and second floor. While the plaintiff is in possession of the ground floor, the first floor is occupied by the first defendant, his brother, along with his wife, Mrs. Veena Kathuria, and their two sons, Mr. Amit Kathuria and Arjun Kathuria.

(2.) The plaintiff claimed that since his brother, Krishan Kumar Kathuria, the first defendant was a bachelor and had no reasonable residential accommodation in the year 1976, the plaintiff permitted him (i.e. his brother) to occupy the first floor of the property in question. Subsequently, it is claimed that on the plaintiff's request to vacate the property since he required it for his own purposes (after this son got married and required the first floor, it is claimed, to reside with his wife), the first defendant agreed, but never acted upon his promise to vacate the premises. Thus, it is claimed that the plaintiff then filed CS(OS) 90/2004 for possession and mesne profits against the first defendant and his three family members (i.e. wife and two sons) in respect of the first floor of the property in question. It is also stated that in December, 2001, the first defendant openly refused to vacate the suit property, unless the plaintiff bought him a first floor flat having the same built-up area as the property in question at any other location in South Delhi. As a consequence, the plaintiff submitted that the occupation of the first floor by the four defendants/respondents herein is unauthorized.

(3.) During the pendency of the proceedings, the parties represented to the Court that a compromise had been arrived at, whereby their disputes were settled. The suit was, therefore, disposed off in terms of a compromise recorded by the parties, presented to the Court as a joint application under Order XXIII Rule 3, Code of Civil Procedure ("CPC") in I.A. No 7595/2004. That order of 10.11.2004 held as follows: