Delhi District Court
Sh. Nadeem Ur Rehman vs Mohd. Tahir & Ors on 3 May, 2011
IN THE COURT OF SH. SANJAY KHANAGWAL, ADMINISTRATIVE
CIVIL JUDGE (EAST), KARKARDOOMA COURTS, DELHI
SUIT NO.: 52/2011
Unique ID NO.: 02402C0096892011
SH. NADEEM UR REHMAN ...Plaintiff
VS
MOHD. TAHIR & ORS. ... Defendants
DATE: 03.05.2011
ORDER
1. Vide this order, I shall dispose of two applications U/O 39 R 1&2CPC moved on behalf of plaintiff and defendants. The brief facts of the plaint necessary for the disposal of present applications are that the plaintiff is residing in Flat No. M162, Azad CGHS Ltd., I.P. Extension, Delhi 110092 (hereinafter will be referred as the suit property). Defendant no.1 is his brother and defendant no.2 is his father. Plaintiff along with defendant no.1 purchased the suit property from defendant no.2 by virtue of registered agreement to sell dated 04.08.2010. Defendant no.2 being the seller SUIT NO.52/11 Page1/7 executed all the relevant documents about the transfer of property in the name of plaintiff and defendant no.1 on sale consideration of Rs.9,15,000/. It was mutually agreed between plaintiff and defendant no.1 that out of the total amount, half amount of Rs.4,57,000/ shall be paid by the defendant no.1 but the said amount is not paid by him till date. Plaintiff is continuously enjoying the peaceful possession of the flat and residing there since purchase of the same on 04.08.2010. On the request of defendant no. 1, one Mohd. Kashif was allowed to live in one room as tenant. Now defendant no.1 to 3 are in collusion with each other and with malafide intention, they are pressuring the plaintiff to vacate the suit property. On 18.03.2011, both the defendants came to the suit property and threatened the plaintiff to forcibly dispossess him from the suit property. The defendants sent some gunda elements to dispossess the plaintiff from the suit property. It is further submitted that plaintiff also obtained an LPG gas connection for domestic use at the address of the suit property. He is also receiving the correspondence letters, courier in his name at the said address. With the SUIT NO.52/11 Page2/7 apprehension of forcible dispossession from the defendants, plaintiff has filed the present suit for permanent and mandatory injunction against the defendants. He is praying for interim injunction against the defendants, thereby restraining them from forcibly dispossessing the plaintiff from the suit property and from selling, mortgaging, alienating or from creating any third party interest in the suit property till disposal of the present suit.
2. Defendants no.1&2 filed written statement and stated that defendant no.2 is 70 years of age and he had purchased the suit property from his earnings in the year 1996. It is further stated that plaintiff is highly educated and is pursuing chartered accountant course, therefore, he keeps on visiting the Registrar office. He got certain papers prepared and asked defendant no.2 to accompany him to the Subregistrar office and got signed them from him in a hurried manner. Plaintiff got registered transfer documents from the Subregistrar. It is stated that no cash transaction was taken place between plaintiff and defendant no.2 nor physical possession SUIT NO.52/11 Page3/7 was handed over to the plaintiff. Though possession letter was executed.
Defendants also filed counterclaim and prayed for cancellation of agreement to sell, receipt, possession letter, General Power of Attorney, five special power of attorneys, four affidavits, idemnity bond, agreement to appoint Arbitrator, surrender deed and will. Defendants further prayed for restraining the plaintiff from creating obstacles/hindrance in the ingress and egress and smooth living of the defendant no.2 in the suit property.
3. Defendants no.1&2 also moved application U/O 39 R 1&2CPC and prayed for directing the plaintiff not to create obstacles/hindrances in the smooth living of the defendants in the suit property.
4. Defendant no.3 also filed written statement and stated that the present suit is not maintainable against defendant no.3 as the same is bad for misjoinder of unnecessary party. Defendant no.3 being the society is unnecessarily dragged in the present suit. No relief has been claimed SUIT NO.52/11 Page4/7 against it. Dismissal of the application is prayed by the defendant.
5. Arguments heard on behalf of parties.
6. In the present case, plaintiff has stated that he and defendant no.1 had purchased the suit property from defendant no.2 on sale consideration of Rs.9,15,000/ by way of registered documents i.e. agreement to sell, receipt, possession letter, General Power of Attorney, special power of attorney, indemnity bond and will deed. Execution of the documents is admitted by the defendants. It is also admitted that all the documents were duly executed but it is stated by the defendants that the same were got prepared by the plaintiff fraudulently from defendant no.2. So far as ownership of the suit property is concerned, plaintiff has stated that he is in possession on the other hand defendants no.1&2 also stated that they are in possession of the suit property. Both the parties are claiming themselves in possession of the suit property. At this stage, while deciding the interim SUIT NO.52/11 Page5/7 application U/O 39 R 1&2CPC, it is not necessary to go into the evidence of the case. Court has to decide the application on the basis of prima facie facts & circumstances. For ascertaining the possession, the documents furnished by the parties are relevant. Defendants have furnished some photographs and the set of sale documents. No documents as to their possession has been furnished by them. On the other hand, plaintiff has produced several documents showing his possession in the suit property such as cylinder delivery receipt, customer enrollment form of Airtel for installation of broadband connection as well as some documents in the name of plaintiff from some companies which were received by plaintiff through courier at the address of the suit property. The courier envelop bear the name of plaintiff and the address of the suit property. From the perusal of these documents and arguments addressed on behalf of parties, it appears that plaintiff is in possession of the suit property since he has furnished the documents which prima facie show that he is in possession of the same. In view of the facts & circumstances, a prima facie case is made out in favour SUIT NO.52/11 Page6/7 of plaintiff, balance of convenience also lies in his favour and he will suffer irreparable loss, if the relief is not granted. Accordingly, both the applications U/O 39 R 1&2CPC filed on behalf of plaintiff as well as defendants no.1&2 are disposed off. Defendants are restrained from forcibly dispossessing the plaintiff from the suit property bearing Flat No. M162, Azad CGHS Ltd., I.P. Extension, Delhi 110092 and from selling, mortgaging, alienating or from creating any third party interest in the suit property till final disposal of the present suit.
7. However, nothing expressed above shall tentamount to expression of my opinion on the merits of the case.
ANNOUNCED IN OPEN COURT (SANJAY KHANAGWAL)
ON 03.05.2011 ADMINISTRATIVE CIVIL JUDGE(E)
KKD/DELHI
SUIT NO.52/11 Page7/7