Delhi District Court
Kamal Chand Sharma vs Muni Devi & Anr on 15 March, 2011
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IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 260/11
Kamal Chand Sharma ...Plaintiff
Versus
Muni Devi & Anr. ...Defendants
15.3.2011
O R D ER
1.By this order, I shall decide the application of the plaintiff under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure. The plaintiff has prayed for interim injunction restraining the defendants from disturbing the peaceful possession of the plaintiff on the first floor of property no. L208(D2), Jiwan Park, New Delhi110059 (hereinafter referred to as "suit property") and from creating third party interest in the said suit property till the disposal of the suit.
2. The case of the plaintiff is that he is residing at the first floor of the abovementioned suit property ever since it was purchased in the year 1980. The defendant no. 1 is the mother of the plaintiff whereas defendant no. 2 is the brother of the plaintiff. The suit property had been purchased from funds received from sale of ancestral property of the family at village Mothuka, Rajasthan. As father of the ..2..
plaintiff had already died and the plaintiff was minor at the time of the sale, the property was purchased on behalf of the plaintiff, defendant no. 2 and defendant no. 1 in the name of defendant no. 1. The defendant no. 1 is a housewife and had no source of income when the property was purchased. For these reasons, the suit property is joint family property. The plaintiff carried out construction on the property out of his own funds. The defendants have not contributed anything towards the construction of the first floor. The defendants are trying to evict the plaintiff from the property. By virtue of the plaint, the plaintiff has prayed for direction to the defendants not to disturb the possession of the first floor of the plaintiff and restraining them from selling the property without the consent of the plaintiff.
3. The defendants have not filed their written statement so far. Ld. Counsel for defendants has however addressed arguments. He has denied the submissions advanced by Ld. Counsel for plaintiff. Ld. Counsel for defendants submits that the suit property was purchased when the plaintiff was only a minor and was aged about 11 years. Ld. Counsel for defendants submits that even construction has been carried out by the defendants themselves.
4. I have heard arguments advanced by Ld. Counsel for parties. It is not in dispute that the suit property was purchased in the name of defendant no. 1. As to the source of funds by which the property was purchased, the plaintiff claims that those funds were obtained by sale of ancestral property. Even assuming the averment to be correct, upon purchase of the property, the vendee became the sole and exclusive owner thereof. The said sale of ancestral property has not been ..3..
challenged by the plaintiff. The plaintiff has not claimed share in the proceeds of sale. In my opinion, on the basis of averments made in the plaint, the suit property cannot be assumed to be joint family property. By mere carrying out construction on the property by the plaintiff, even assuming to be correct, the plaintiff does not obtain a right to continue in occupation thereof. It does not confer any ownership rights in the suit property or even the right to occupy the premises. At best, the plaintiff may be entitled to recovery of the money spent by him in carrying out the construction, for which she may take recourse to appropriate proceedings. In the case of Sheela Devi Vs. Lal Chand & Anr. 2006 (8) SCC 581, the Hon'ble Supreme Court held that while the property remains in the hands of a single person, it is to be treated as his separate property and that person is entitled to dispose it off.
5. The plaintiff is seeking to protect his possession over the first floor of the suit property. The averments made in the plaint indicates that the suit property is owned by defendant no. 1 and the defendant no. 1 had permitted the plaintiff to reside therein as a licencee. The license of the plaintiff to reside in the suit property is terminable at will. The plaintiff does not have any right to continue to occupy the premises against the wish of defendant no.1. He owes his stay in the premises to the will of the defendant no 1 and his continuation in the premises is susceptible to the change of this will.
6. A licencee in the premises is not entitled to any injunction against the true owner. His use of the premises does not amount to "possession" in the eyes of law so as to deserve protection.
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In the case of D.T.T.D.C vs. D.R. Mehra & Sons, 62 (1996) DLT 234 (DB), the Hon'ble High Court of Delhi held that a licencee is, after termination of licence, not entitled to any injunction against dispossession by the owner.
In the case of Sant Lal Jain vs. Avtar Singh, A.I.R. 1985 SC 857, it was held that a licencee cannot set up title in himself in order to avoid surrender of possession of the property on termination of the licence. It was laid down that it is the duty of such licencee to surrender possession of the property.
In the case of G.N. Mehra Vs. International Airports Authority of India (IAAI), 63 (1996) DLT 62, it was laid down that after expiry of licence, the licencee is not entitled to any injunction against the true owner. Grant of such injunction would amount to perpetuating his unlawful possession.
In the case of Thomas Cook Limited Vs. Hotel Imperial & Ors., 127 (2006) DLT 431, the Hon'ble High Court of Delhi took note of a number of other decisions on the subject including that of Rame Gowda Vs. M. Varadappa Naidu, I (2004) SLT 675, and held that a licencee is a permissive occupant. His occupation does not amount to "possession" and therefore he is not entitled to the grant of injunction against dispossession.
In the case of Tamil Nadu Housing Board Vs. A Vismam, 1996(2) R.R.R. 353, it was held that a trespasser is not entitled to injunction against dispossession by the true owner.
7. For the above reasons, the plaintiff is not entitled to continue in possession of the premises and can also not restrain the sale of the property without his consent.
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8. In my opinion, the plaintiff has failed to make out a prima facie case in his favour. This indispensable requirement for grant of interim injunction remaining unfulfilled, I find no merit in the application of the plaintiff. The application is accordingly dismissed.
Needless to state, nothing in the above order shall be construed as a conclusive opinion or finding on the merits of the case.
(Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/15.03.2011