Manmohan Singh, J.@mdashThe plaintiffs filed present interim application being IA No. 14661/2008 under Order 39 Rule 4 read with Section 151 of the Civil Procedure Code, 1908 on 26.11.2008 for variation of the order dated 18.04.2007 as amended on 23.05.2007.
2. The brief facts of the case are that the plaintiffs filed a suit for declaration, permanent and mandatory injunction against the Defendants with respect to property No. W-105, Greater Kailash-II, New Delhi 110048 (hereinafter referred to as ''suit property''). The plaintiffs submit that plaintiff No. 1 and Defendant No. 1 are brothers and the family owned several properties in Delhi and NCR. Due to certain disputes between their families, they submitted their differences to Sh. Punam Suri and Sh. Prem Nath Chopra of M/s Daily Milap Pvt. Ltd. for conciliation. A Family Settlement was arrived at after much deliberation as part of which the Defendants were to give a certain sum of money to the plaintiffs, as their share of the properties was of considerably much more value. The Defendants paid part of this sum and allegedly refused to pay the rest, failing to complete their obligation under the purported family settlement. The plaintiffs also submit that in the wake of the Defendant''s request to the MCD for mutation of the suit property, the plaintiffs intimated the MCD about the incomplete settlement which allegedly will have no effect till the defendants complete their obligation under it and both the parties sign it and get it registered.
3. On the other hand, the Defendants submit that the negotiations ended on 24.03.2006 with an oral settlement which was reduced into a written family settlement on 04.04.2006 and that there was no requirement of signatures of either party nor was there any direction to the Defendants to pay any money to the plaintiffs. The Defendants deny that the settlement was drawn up by the alleged conciliators and submit that it was in fact prepared by the legal advisors of the plaintiffs and the terms were then mutually settled. The Defendants also submit that a memorandum of family settlement does not require registration.
4. An interim application No. 13252/2006 was also filed by the plaintiffs under Order 39 Rule 1 & 2 on 27.11.2006 for an ex-parte ad-interim injunction against the Defendants with regard to the suit property. This Court vide order dated 18.04.2007 directed both parties to maintain status quo of the title and possession in the properties mentioned in the Schedule to the document dated 04.04.2006.
5. The plaintiffs filed an interim application No. 5393/2007 for correction/modification of the abovesaid order dated 18.04.2007 and this Court modified the said order vide order dated 23.05.2007 by adding the following,
It is further directed that the Defendant No. 1 shall not encumber the suit property bearing No. W-105 Greater Kailash-II, New Delhi 110048.
6. Vide order dated 17.03.2008, this Court allowed I.A No. 12127/2007 filed by the Defendants for letting out their respective properties by allowing the parties to lease/rent out their properties with the exception of the suit property.
7. The plaintiffs contend in the present application that the Defendants have already sold three out of their six properties even before order dated 18.04.2007 was passed and hence they do not suffer from the said order but the plaintiffs on the other hand, are suffering irreparable loss due to the said direction to maintain status quo of the title and possession in the properties contained in the Schedule to the document dated 04.04.2006. The plaintiffs also contend that their claim in the suit is only with regard to the suit property and is not extended to any of the other properties contained in the Schedule to the document dated 04.04.2006.
8. The plaintiffs pray for variation of the order dated 18.04.2007 as amended on 23.05.2007 to the extent that the parties may be allowed to deal with their respective properties in the manner of their choice and also for the vacation of the direction to maintain status quo of the title and possession of the said properties except the suit property.
9. The Defendants in their reply to the present application have submitted that it is for the plaintiffs to decide as to how to deal with their properties and they have no objection to the same. However, they submit that the same manner should be allowed to them to deal with their portion of properties and equal treatment be meted out with respect to all the properties in the Schedule to the document dated 04.04.2006.
10. After reading the plaintiffs'' present application and the defendants'' reply as well as other pertinent documents, it is clear that the defendants have no objection if the plaintiffs are allowed to deal with their part of the properties in any manner of their choice.
11. With regard to the treatment towards all properties being the same, it is noted that the treatment towards all the properties contained in the Schedule to document dated 04.04.2006 is in fact the same, with the exception of the suit property, with regard to which Defendant No. 1 has been allowed to carry on construction subject to the condition that in case this Court ultimately rules against him, he shall not be entitled to claim any equity in respect of the same.
12. In view of the facts stated in the preceding paras, the order dated 18th April, 2007 maintaining the status quo of the title and possession of the suit property is modified except the suit property i.e. W 105 Greater Kailash, Part-II, New Delhi-110048 and the parties are allowed to deal with the properties mentioned in the schedule to the documents dated 4th April, 2006 in the manner they like. The application filed by the plaintiff is allowed accordingly.
No costs.
