Delhi District Court
Sardare vs Vijay Singh & Ors on 21 April, 2012
IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
SOUTHWEST DISTRICT, DWARKA COURTS, DELHI
CS No: 648/11
Sardare ... Plaintiff
Versus
Vijay Singh & Ors. ... Defendants
21.04.2012
O R D E R
1. This order shall decide the maintainability of the suit.
Version of the Plaintiff
2. The plaintiff has filed this suit against his nephews (defendant nos. 1 to
4) and his cosharers (defendant nos. 5 to 7). It is stated in the plaint that Late Sh. Sube Singh, brother of the plaintiff and the plaintiff have been coowners in possession of residential property bearing Khasra Nos. 95, 190/1, 190/2 and 98 situated in extended Lal Dora of Village Samaspur, Delhi, in addition to other properties. After the death of Mr. Sube Singh, defendant nos. 1 to 4 inherited the share of Mr. Sube Singh equivalent to 1189 sq. yds of the suit property. The remaining share measuring 1189 A.P.S FASHION VS. BALWAN AGGARWAL 1 of 28 CS. No.213/11 sq. yds remained with the plaintiff. The total share of the plaintiff and defendant nos. 1 to 4 thus amounts to 2378 sq. yds. It is further stated that the plaintiff and defendant nos. 1 to 4 separated from each other in the year 1988 and a family settlement took place on 14.05.1988 between them. By the said settlement, the land comprised in Khasra nos. 95, 190/1, 190/2 and 98 measuring 2378 sq. yds (hereinafter referred to as "the entire property") was partitioned. Plaintiff was given his share of 1189 sq. yds. shown in red colour in the site plan filed with the plaint (hereinafter referred to as "the suit property") while the remaining land measuring 1189 sq. yds. shown in green colour came to the share of defendant nos. 1 to 4. The plaintiff came in exclusive use and ownership of the suit property. It is further stated in the plaint that the plaintiff got uninterrupted and peaceful possession of property comprised in Khasra No. 98 shown in red colour only in the month of April, 2011 after disposal of the case pending between the plaintiff, defendant nos. 1 to 4 and other persons. The plaintiff has further stated that the land having area 0-8 Biswa and forming part of Khasra No. 98 was given to defendant nos. 5 to 7 by defendant nos. 1 to 4 by written settlement. This was done in order to make up for the deficiency in residential area. The plaintiff has further stated that he erected boundary wall on the four sides of his 400 sq. yds/08 Biswa land comprised in Khasra No. 98.
A.P.S FASHION VS. BALWAN AGGARWAL 2 of 28 CS. No.213/11 Plaintiff installed an entrance gate. Plaintiff became exclusive owner in possession of the suit property. The plaintiff has stated that defendant nos. 1 to 3 are trying to grab the said portion of the plaintiff. It is stated that defendant no. 1 has been creating obstacles and has installed a temporary tin shed and other temporary structures in the suit property. It is further stated that defendant no. 1 started raising unauthorized temporary structures on 27.05.2011. The defendant no. 2 has also been trying to interfere in the suit property. It is stated that defendant no. 2 has been placing his household articles and has started collecting building material for raising a boundary wall over the suit property. It is further stated that defendant no. 3 has also started raising boundary wall and has also installed a gate on the suit property which belongs to the plaintiff. It is further stated that defendant no. 3 has been placing his household articles and building material for raising a boundary wall on the said suit property. It is further stated that on 12.08.2011, the defendant nos. 1 to 3 started demolishing the boundary wall on the property of the plaintiff. They broke open locks of the property. They put cow dung and other household wastage on the said plot. On this basis, the plaintiff has prayed for a decree of declaration declaring that the plaintiff and defendant nos. 1 to 4 had entered into a family settlement on 14.05.1988 and had partitioned their residential property A.P.S FASHION VS. BALWAN AGGARWAL 3 of 28 CS. No.213/11 by which the suit property came to the share of the plaintiff and that the plaintiff has full title over the said portion and that the plaintiff can enjoy the said portion without interference of defendant nos. 1 to 3. The plaintiff has further prayed for mandatory injunction directing defendant nos. 1 to 3 to remove their articles, structures and obstructions from the suit property. The plaintiff has further prayed for permanent injunction restraining the defendant nos. 1 to 3 from forcibly occupying, possessing, raising construction on or creating third party interest over the suit property and from interfering in the use and enjoyment of the property by the said defendants.
Assessment of the case of the plaintiff
3. The pleas of the plaintiff are inconsistent and even contradictory. The plaintiff has, in the plaint, claimed that he is sole owner of and in exclusive possession of the portion of land shown in red colour in the site plan. This plea finds mention in paragraph no. 7 of the plaint, which is quoted hereunder:
"That as per family settlement and partition dt. 14.05.1988, the plaintiff had become exclusive owner in possessing of his red colour portion of land and on another side the defendant nos. 1 to 4 had become exclusive owner of their green colour portion of land as shown in site plan".
This exclusive ownership and possession are stated to be since 14.5.1998. This finds mention in paragraph no. 5 of the plaint, wherein A.P.S FASHION VS. BALWAN AGGARWAL 4 of 28 CS. No.213/11 plaintiff has stated, "After the family settlement dt. 14.05.1988, the plaintiff came in exclusive use and ownership of property shown in red colour...". As against this, the plaintiff has stated in the same paragraph that he received possession of part of this property only in April 2011. He has stated, "... the plaintiff got his 400 sq. yds. area of land as shown in red colour being part of khasra no. 98 only after final decision and execution of decree and judgment in case referred above on 02.04.2011." It is unclear whether the plaintiff received possession of the suit property in the year 1988 or in the year 2011. Possession of the suit property is sought to be protected through the suit and the date since when the plaintiff is in possession is a relevant fact. Yet, the stand of the plaintiff in this behalf is inconsistent.
4. The plaintiff has been persistently claiming in the plaint that a family settlement had taken place and that he has been sole owner of and in exclusive possession of a certain specific portion of land (suit property). However, when the complainant approached the SDM, Najafgarh by letter dated 30.05.2011, he did not at all claim that he is exclusive owner and in possession of a specific part of the land. By the said letter, the plaintiff was complaining against attempts of defendant nos. 1, 2 and 3 to dispossess the plaintiff. Yet, the plaintiff simply stated that he is co owner of the entire property and has a share therein. He did not plead A.P.S FASHION VS. BALWAN AGGARWAL 5 of 28 CS. No.213/11 existence of family settlement. He did not claim exclusive possession or ownership. Had he been exclusive owner and in possession of land, he would have claimed protection of his possession over that portion alone instead of making a general complaint regarding protection of his 1/8th or 1/4th share in the entire area of land. The reference to proportion of share instead of a specific area of land shows that the share of the plaintiff was undivided. It appears that the plea of the plaintiff regarding family settlement, exclusive ownership and possession is not correct.
5. There are other inconsistencies as well. The plaintiff has, in the plaint, stated that the defendant no. 1 installed a temporary tin shed and another temporary structure in the suit property. It is further stated that the defendant no. 2 has kept his household articles on the suit property. It is further stated that defendant no. 3 has been trying to raise a boundary wall on the suit property and has also been keeping his household articles and building material in the said portion. However, none of these assertions have been reiterated by the attorney of plaintiff when his statement was recorded under Order 10 of Code of Civil Procedure. On the other hand, the said representative asserted that the defendants have been tying cattle in the suit property. This inconsistency is regarding the nature of trespass allegedly committed by the defendants.
A.P.S FASHION VS. BALWAN AGGARWAL 6 of 28 CS. No.213/11
6. Moreover, while the plaintiff has stated in the plaint that he has no grievance against the defendant no. 4 and that the defendant no. 4 is not trying to encroach upon the property of the plaintiff (paragraph nos. 11, 16 and 19 of the plaint), when statement of representative of the plaintiff was recorded before the Court under Order 10 of Code of Civil Procedure, he levelled allegations of encroachment against defendant no. 4 too.
7. The plaint suffers from the aforesaid anomalies, inconsistencies and contradictions.
In the case of M/s. Hari Gokal Jewellers Vs. Satish Kapur ILR (2006) I Delhi 679, Division Bench of Hon'ble High Court of Delhi held that a plaint which is vague or vexatious must be outrightly rejected. It was observed that "It is the abundant duty of the plaintiff to clearly and unambiguously plead his case."
In the case of Shree Bhagwan & Ors. Vs. Suraj Bhan & Ors. ILR (2006) II Delhi 366, Hon'ble High Court of Delhi held that pleadings of the suit must not be ambiguous or ambivalent.
8. The claim of the plaintiff over exclusive ownership and possession is not supported by the revenue record. The khatoni which has been filed by the plaintiff himself shows that the plaintiff has undivided interest in the land. It does not show that the plaintiff has become exclusive owner of A.P.S FASHION VS. BALWAN AGGARWAL 7 of 28 CS. No.213/11 part of the land. It is also not the case of the plaintiff that he has applied for correction of revenue record or mutation of entries in his name as exclusive bhumidar of a specific part of the land. The khatoni is of the year 199091 while the plaintiff claims that the family settlement had taken place in the year 1988 itself. Had the plaintiff acquired exclusive ownership and possession of part of the land in the year 1988, the khatoni of the year 199091 would have shown the plaintiff to be exclusive bhumidar of the portion of the land which came into his share. The plea of the plaintiff about exclusive ownership and possession is controverted by the revenue record. In the case of Phoolwati & Ors. vs. Ram Dei and Ors., 150 (2008) DLT 105, the Hon'ble High Court of Delhi held as under:
"If one is aggrieved by the entries in Revenue record, the remedy is provided under Delhi Land Reforms Act for correction of record, for regaining possession, for ejectment of transfer, etc. The Civil court is not only barred from entertaining such claims, but is bound to honour the revenue records as correct".
The plaintiff cannot be deemed to be exclusive owner/bhumidar of any specific part of land in view of this not being supported by the revenue record. The plaintiff will have to be treated as a coowner.
9. Even if this infirmity of claims not being supported by the revenue record is ignored, and it is assumed that this omission is irrelevant, from A.P.S FASHION VS. BALWAN AGGARWAL 8 of 28 CS. No.213/11 the facts pleaded by the plaintiff too, he does not acquire exclusive ownership rights over any specific part of the land. This is because the plaintiff has founded his claim over exclusive ownership on the basis of a family settlement dated 14.05.1988. It is by this family settlement that the plaintiff, according to him, received exclusive ownership and possession of the suit property. The said settlement is not valid, as demonstrated hereinafter. The plaintiff has repeatedly stated in paragraph nos. 4 and 5 of the plaint that the said family settlement had taken place between the plaintiff on one hand and defendant nos. 1 to 4 on the other. This implies that defendant nos. 5, 6 and 7 were not a party to the family settlement. The plaintiff has himself admitted in paragraph no. 2 of the plaint that defendant nos. 5, 6 and 7 have been cosharers in the suit property. The khatoni also shows defendant nos. 5, 6 and 7 as having a share in the property at khasra no. 98. Since defendant nos. 5, 6 and 7 had an undivided share in the property, any division of the property by the cosharers without impleading the said defendants would be invalid. A family settlement is required to be entered into by all the stake holders for it to be enforceable and binding. Till that happens, the said settlement does not confer exclusive ownership rights, which the plaintiff is claiming through the present suit. In this behalf, reference may be made to the case of Darbara Singh Vs. Tara Chand 2009(2) RCR A.P.S FASHION VS. BALWAN AGGARWAL 9 of 28 CS. No.213/11 (Civil) 767 decided by the Hon'ble Punjab & Haryana High Court. In that case it was held as under :
"In the absence of joining the necessary parties to the partition proceedings, the partition of property cannot be given effect to in its true perspective. All the members entitled to a share must be represented either expressly or impliedly in partition proceedings, may be in a private partition or partition through Court. Kamla Devi, the mother of the plaintiffs has a right to hold share separately. Mere fact that the parties are in separate possession of the land would not imply that the land had been duly partitioned amongst them.
xxx xxx xxx Be that as it may, but the fact remains that herein the alleged family settlement is bad for nonjoinder of necessary cosharers. The alleged one being partial partition is bad in law. Sequelly, it cannot be given recognition either as family settlement or private partition".
For the abovesaid reasons, the plea of the plaintiff that he became exclusive owner of the suit property by the family settlement cannot be accepted. Similarly, the plaintiff was not a party to the family settlement dated 21.05.2011 which is stated to have taken place between the defendants.
10.For the aforesaid reasons, the plaintiff has failed to demonstrate that he has become exclusive owner of the suit property. Hence no declaration of such ownership can be issued by the Court. This being the first prayer made in the plaint, is liable to be declined. The second and third prayers of the plaintiff are for direction to the defendant nos. 1 to 3 to remove A.P.S FASHION VS. BALWAN AGGARWAL 10 of 28 CS. No.213/11 their articles from the said portion and to restrain them from occupying it. As the plaintiff has failed to demonstrate that he is exclusive owner of the said portion, he cannot obtain a direction to the defendants to remove their articles. The plaintiff can also not keep out the defendants from the said portion. Since there has been no valid family settlement, the plaintiff and defendants continue to be coowners of the entire land. They have a right to occupy, raise construction and keep their articles on each and every part of the land. Unless they seek partition, they cannot restrain other coowners from exercising this right. Reference in this behalf is made to the decision of Hon'ble Punjab and Haryana High Court in the case of Bachan Singh v. Swaran Singh 2000(3) RCR(Civil)
70. The last prayer of the plaintiff is to restrain creation of third party interest over the suit property. The plaintiff cannot restrain the defendants from creating third party interest in the said portion to the extent of their undivided share. Any transfer by the defendants of the said portion would be subjected to partition and restricted to their own share. This is a settled proposition of law. Till a valid partition takes place, the defendants continue to have an undivided interest over the suit property. In this regard, reference is made to the case of Ram Dass and another Vs. Shisha Singh and others AIR 2007 P&H 200 wherein the A.P.S FASHION VS. BALWAN AGGARWAL 11 of 28 CS. No.213/11 Hon'ble Punjab and Haryana High Court held:
"Any alienation so made by a cosharer is always subject to the partition and rights of other cosharers. The vendees simply step into the shoes of the vendor/cosharer and will acquire status of a cosharer and all their rights to the extent of the land purchased will remain subject to the partition and rights of other cosharers".
Reference may also be made to the case of Balwinder Singh Vs. Gurcharan Singh & Ors. 2010 (4) CCC 5 (P&H). In that case it was observed as under:
"Admittedly, the defendantsrespondents are coowners in the disputed property. The only grievance of the appellant before this court is that the defendantrespondents have no right to alienate more than their share or specific khasra number out of the disputed property. As per the settled law, any alienation out of the joint property by a cosharer would amount to alienation of the property out of the share. Even the alienation of any specific khasra number or specific portion amounts to alienation of the share which is subject to adjustment at the time of partition. It is also well settled that suit for permanent injunction against a coowner is not maintainable".
11. Be that as it may, even if it were to be assumed that the contentions stated in the plaint are true, though contradictory and not supported by revenue record, and it is assumed that a family settlement had indeed taken place and that it was valid, the prayer of declaration of ownership is not maintainable before this court. This is because under the Delhi Land Reforms Act, ownership over agricultural land has been abolished A.P.S FASHION VS. BALWAN AGGARWAL 12 of 28 CS. No.213/11 and has been replaced by tenures under Section 4 of the Act. Since the institution of ownership itself does not exist, ownership cannot be declared by the court.
12. Even if it is assumed that by "ownership", the plaintiff actually means "bhumidari rights", that can also not be declared by this court. A declaration of bhumidari rights can be granted only by the revenue assistant as per entry 4 of schedule 1 of the Delhi Land Reforms Act, 1954. The jurisdiction of this court to grant such relief is expressly barred by Section 185 of Delhi Land Reforms Act, 1954. Similarly, the prayer of the plaintiff for direction for removal of articles is in the nature of ejection of trespasser and would lie before the revenue assistant since the property is governed by the Delhi Land Reforms Act, 1954. This court cannot pass an order which has the effect of ejecting a trespasser in view of the remedy being provided under item no.19 of Schedule I of the Delhi Land Reforms Act. The competence of this court is barred by Section 185 of Delhi Land Reforms Act as well as Section 41(h) of the Specific Relief Act, 1963.
Reference may be made to the decision of Hon'ble Supreme Court in case Hatti Vs. Sunder Singh AIR 1971 SC 2320. In that case, it was held that the jurisdiction to entertain suits on matters governed by the Delhi Land Reforms Act vests solely with the revenue authorities described in A.P.S FASHION VS. BALWAN AGGARWAL 13 of 28 CS. No.213/11 Schedule I of the Act and the jurisdiction of a civil court to entertain such suits is barred. It was held that although title disputes can be adjudicated by a civil court, such adjudication can be done only upon reference being made by the Revenue Court. A suit cannot directly be entertained by a civil court.
13. Unless the plaintiff obtains declaration of his bhumidari rights from the revenue authorities, he would not be entitled to injunction to keep out the defendants and their articles. Such injunction essentially is for the enforcement of exclusive bhumidari rights, which the revenue record does not recognize to be in existence. The plaintiff is require to have this right recognized by the revenue authorities first. Declaration of exclusive bhumidari rights is a condition precedent to grant of injunction protecting the rights claimed by the plaintiff.
In the case of Pushpa Saroha Vs. Mohinder Kumar & Ors. 2009 I AD (Delhi) 785, in similar circumstances, the Hon'ble High Court of Delhi held that the suit is not maintainable. In that case, the name of the plaintiff was not recorded as bhumidar. He prayed for partition of the suit property and injunction on the ground that he had succeeded to a share in the suit property and that a family settlement had been arrived at with the other coowners. It was held that since the plaintiff had not yet been shown as a bhumidar in the revenue records, the grant of relief A.P.S FASHION VS. BALWAN AGGARWAL 14 of 28 CS. No.213/11 sought by him would be ineffective. It was further held that the plaintiff is required to first obtain a declaration of his bhumidari rights and get his name entered as the bhumidar of the property and only thereafter can he approach a civil court for restraining the defendants from dealing with the property. It was observed as under:
"In the facts aforesaid, I also find that the plaintiff is not entitled to exercise of discretion by this court. This is for the reason that it is felt that the grant of declaration, if any, would not serve any purpose. The plaintiff even after such a declaration would still have no rights in the property unless gets herself recorded as a bhumidar thereof. The plaintiff will have to still approach the court of the Revenue Assistant. In the circumstance, the time of this court ought not to be taken in adjudicating the relief claimed which as aforesaid would be infructuous. The provisions of Section 186 of the Act are relevant in this regard. The Revenue courts are empowered to, if they consider a question regarding title to any land put in issue in a proceedings before them, to frame an issue on the said question of title and to submit the record to the competent civil court for the decision of that issue only. The reliefs in the plaint claimed by the plaintiff, are even otherwise directly in the teeth of the bar contained in the Section 185 (Supra). Merely by claver drafting, the provisions of law cannot be defeated. Schedule 1 to the Act in entry 4 thereof provides for an application for declaration of bhumidari rights under Sections 10, 11, 12, 13, 73, 74, 79 & 85 to lie before the court of the Revenue Assistant. The relief which the plaintiff is seeking in the present suit is nothing but a declaration of her rights and which in the context of the property subject matter of the suit are bhumidari rights" .
A.P.S FASHION VS. BALWAN AGGARWAL 15 of 28 CS. No.213/11 In the present case too, the plaintiff is essentially seeking a recognition and enforcement of his rights as exclusive bhumidar although his name is not so recorded in the khatauni. Unless he first gets his name so entered as exclusive bhumidar, he cannot be entitled to the relief of injunction for keeping out the other cobhumidars.
14. Owing to the unavailed remedy of obtaining declaration of bhumidari rights, the suit for injunction is also barred by Section 41(h) of the Specific Relief Act.
15. As held above, the family settlement pleaded by the plaintiff was not valid, if at all it existed. Since the settlement was not valid, it is liable to be ignored by the court as if it never took place. The plaintiff would then be only a coowner of the entire land. In order to be declared exclusive owner of any specific portion and to keep out the defendants from that portion or to restrain its sale, the plaintiff requires partition of the land. Institution of a suit for partition would then be the usual mode of obtaining the relief claimed through this suit. Partition would also be condition precedent to the grant of consequential injunction protecting the share of the plaintiffs. Failure to take recourse to such alternative remedy which is equally efficacious would bar the maintainability of the suit under Section 41(h) of Specific Relief Act.
A.P.S FASHION VS. BALWAN AGGARWAL 16 of 28 CS. No.213/11 Reference in this behalf may be made to the case of Kishan Singh v. Sucha Singh (P&H) 2008(2) R.C.R.(Civil) 394 wherein it was held by Hon'ble Punjab and Haryana High Court:
"Even in absence of a decree, only way to assert right over the property was/is to seek partition of the property or a declaration of right with joint possession. These are the efficacious remedies available under law. None of the efficacious remedies have been availed. Hence bar of Section 41(h) of the Specific Relief Act will operate in the present case. For this reason also, suit filed by the appellant was not maintainable and rightly dismissed by the First Appellate Court."
16. Further, such a suit lies before the revenue assistant in accordance with entry 11 of Schedule 1 of the Delhi Land Reforms Act, 1954 and has to conform to the procedure laid down in Section 57 the Act. As per Section 55 of the Act, the Gaon Sabha has to be made a party in every such suit. The competence of this court to entertain such a suit is expressly barred by the provisions of Section 185 of the Delhi Land Reforms Act.
17. By this suit, the plaintiff is trying to protect his possession over the suit properties. However, the averments made in the plaint read conjointly with the statement of authorized representative of the plaintiff indicate that the plaintiff has already lost his possession. This is evident from the following:
a) In his statement recorded under Order 10 of Code of Civil A.P.S FASHION VS. BALWAN AGGARWAL 17 of 28 CS. No.213/11 Procedure, the authorized representative of the plaintiff stated that defendant nos. 1 to 4 have encroached upon the suit property.
b) In his statement recorded under Order 10 of Code of Civil Procedure, the authorized representative of the plaintiff stated that defendant nos. 1 to 4 have been tying their cattle in the suit property.
c) The plaintiff has, in the plaint, stated that the defendant no. 1 installed a temporary tin shed and another temporary structure in the suit property.
d) The plaintiff has stated in the plaint that the defendant no. 2 has kept his household articles in the suit property.
e) The plaintiff has stated in the plaint that the defendant no. 3 has been trying to raise a boundary wall on the suit property and has also been keeping his household articles and building material in the suit property.
All the above circumstances indicate that the defendants have already taken over possession of the suit property. Since the plaintiff is not in possession, there is no question of protecting possession.
18. Since the plaintiff is not in possession of the property, it is incumbent upon him to institute a suit for recovery of possession instead of indirectly trying to recover possession under the garb of injunction. Instituting a suit for recovery of possession being the ordinary and A.P.S FASHION VS. BALWAN AGGARWAL 18 of 28 CS. No.213/11 natural remedy available to the plaintiff, and this remedy being efficacious and adequate, the suit for injunction stands barred by the provisions of Section 41(h) of the Specific Relief Act. Moreover, a person who is not in possession must value his suit for the purpose of court fees and jurisdiction as per the market value of the suit property, in accordance with Section 7(v) of the Court Fees Act, 1870 and Section 8 of the Suits Valuation Act, 1887. He must accordingly pay ad valorem court fees. The suit would also have to be filed before the court competent to entertain it as per the pecuniary jurisdiction thereof. One cannot therefore institute a suit for injunction if he is not in possession of the suit property. Since the plaintiff is not in possession, there is no question of existence of any threat of dispossession and consequently there is no requirement of granting protection against dispossession.
19. The plaintiff has, in the suit, claimed the reliefs of declaration and injunction. At first blush, it may appear from the plaint that the plaintiff wishes to seek declaration of his title and on that basis he claims injunction. However, when authorized representative of the plaintiff was examined under Order 10 of Code of Civil Procedure, he made his intention unequivocally clear that he has preferred the said two prayers as separate and independent reliefs. He clarified that the relief of A.P.S FASHION VS. BALWAN AGGARWAL 19 of 28 CS. No.213/11 injunction is not consequential to the relief of declaration. Hence it is not open to the court to construe the prayer of injunction as being consequential to the prayer of declaration. It shall therefore be deemed that there is no prayer consequential to the prayer of declaration.
20. In that eventuality, the prayer of declaration would stand barred by Proviso to Section 34 of Specific Relief Act. The plaintiff is in a position to seek recovery of possession since, as demonstrated above, he is not in possession of the property. Even if it is assumed that the plaintiff is in possession, the plaintiff would be in a position to restrain the defendants to enter into his possession of the property, to sell the said portion and may also seek direction to the defendants to remove their belongings. Yet, the plaintiff has not made the said prayers as consequential to the prayer of declaration.
In the case of Virender Gopal vs. Municipal Corporation of Delhi, AIR 2007 Delhi 183, Hon'ble High Court of Delhi dealt with a suit for mandatory injunction by a person claiming to be the owner of the property seeking direction to the Municipal Corporation to remove its articles lying on his property. It was also alleged that the corporation was trying to raise illegal construction on the property of the plaintiff. These prayers are similar to those made in the present suit. The Hon'ble High Court of Delhi held that the plaintiff shall be deemed A.P.S FASHION VS. BALWAN AGGARWAL 20 of 28 CS. No.213/11 to have been divested of possession and must mandatorily seek recovery of possession. It was held that a suit for mere declaration or a suit for injunction does not lie and the plaintiff is required to seek declaration as well as recovery of possession. It was held that failing to seek recovery of possession would bar maintainability of the suit under the Proviso to Section 34 of the Specific Relief Act. On that basis, the Hon'ble High Court of Delhi upheld the order of dismissal of the suit. In the case of Sukhbir Singh v. Bhagyawanti & Others, RFA No. 158/2000 dated 20.01.2011, the Hon'ble High Court of Delhi held as under:
"The proviso to Section 34 of the Specific Relief Act, 1963 provides that the Court will not grant a decree of declaration if the plaintiff is entitled to a further relief as arising from the relief claimed of declaration but does not claim the same. In the present case, any relief of declaration with respect to either the Will of late Sh. Udai Singh or the sale deed in favour of respondent No.6 or the two mutation orders will not grant effective relief to the appellant/plaintiff because if the plaintiff claims ownership rights, surely, he is bound to ask for possession of the properties of which he claims ownership because admittedly possession of the lands is not with the plaintiff/appellant. Possession is a further relief in terms of proviso to Section 34 of the Specific Relief Act, 1963 to the relief of declaration which has been prayed for by the plaintiff and which relief of declaration would not lead to any effective benefit unless possession is also claimed by the plaintiff. I may also, at this stage, note that in terms of Order 2 Rule 1 of the CPC every suit shall suffer so far as possible be framed so as to grant final decision upon the subject and disputes and to prevent further litigation concerning them. The proviso A.P.S FASHION VS. BALWAN AGGARWAL 21 of 28 CS. No.213/11 to Order 2 Rule 1 CPC is also in the same spirit as the proviso to Section 34 of the Specific Relief Act, 1963".
Similarly, in the case titled Sant Singh vs Shri K.G. Ringshia, CS(OS) No.2011/1984 dated 24.05.2010, the Hon'ble High Court of Delhi held that a suit for declaration alone is not maintainable where the plaintiff is entitled to seek further relief.
Hence the prayer for declaration is barred by law for want of consequential relief.
21. Standing alone, not only is the prayer for declaration barred, the prayer for injunction is also not maintainable. Unless the plaintiff secures a declaration of his exclusive ownership, he cannot keep out the defendants, direct them to remove their articles and restrain them from creating third party interest in the suit property. Hence these prayers cannot sustain independently.
The plaintiff has stated in the plaint that his rights over the property are under threat from the defendants. Exclusive ownership of the plaintiff is also not reflected from the revenue records. From this, it may be inferred that the title of the plaintiff is under cloud. Hence, having regard to the decision of Anathula Sudhakar vs. P. Buchi Reddy, AIR 2008 SC 2033, it is obligatory on the plaintiff to seek injunction only consequential to declaration of title. In that case, it was observed thus:
A.P.S FASHION VS. BALWAN AGGARWAL 22 of 28 CS. No.213/11 "Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction".
Unless prayed as consequential to declaration, the relief of injunction is not maintainable.
Since the prayers for injunction that the plaintiff has made in the present suit are dependent on a declaration of ownership, the suit in its present form (as explained by the representative of plaintiff in his statement under Order 10 of Code of Civil Procedure) is not maintainable. As such, the suit is barred by the provisions of Section 41(h) of the Specific Relief Act, 1963 owing to the existence of unavailed alternate and efficacious remedy of instituting a suit for declaration of ownership and consequential injunction.
22. Ld. Counsel for plaintiff has relied upon the decision of M.P. State Electricity Board and another vs. Kamala Sharma and others, AIR 2004 MP 57 to support his contention that he is entitled to canvass the prayers of declaration and injunction separately and without the injunction being consequential to the prayer of declaration. In the aforesaid decision, it was held that it is open to the plaintiff to make the said prayers separately and to value the suit accordingly. The judgment dealt with the valuation of the suit. It is true that the plaintiff is entitled to pray for A.P.S FASHION VS. BALWAN AGGARWAL 23 of 28 CS. No.213/11 declaration and injunction as separate reliefs and he need not pay ad valorem court fee in that event. Hence, as the suit stands, the plaintiff may not be called upon to pay ad valorem court fee. However, whether making such prayers would vitiate the suit as being barred by Proviso of Section 34 of the Specific Relief Act or Section 41(h) of the said Act has not been considered in the aforesaid judgment and is the issue herein. Hence the said judgment does not aid the plaintiff.
Ld. Counsel for plaintiff has also relied upon the case of Sabina vs. Mohd. Abdul Wasit AIR 1997 MP 25. In that case, it was held that where consequential relief can be obtained without seeking declaration, plaintiff need not pay ad valorem court fee since the relief of declaration can be ignored. It was further held that a person in settled possession can protect his possession without having been declared owner and therefore the prayer for declaration of ownership would not require the plaintiff to pay ad valorem court fee.
This judgment is not applicable to the present case. Firstly, the suit has been noted above to be barred by the provisions of Specific Relief Act which are not covered by the judgment. Secondly, in the present case, the plaintiff has failed to demonstrate that he is in settled possession of the suit property. Thirdly, the plaintiff herein has prayed not only for protecting his possession but also for restraining the defendant from A.P.S FASHION VS. BALWAN AGGARWAL 24 of 28 CS. No.213/11 creating third party interest. That relief is essentially for enforcement of ownership rights and a mere person in possession cannot claim it. Hence, the injunction that the plaintiff herein is seeking can be granted only after the plaintiff is declared owner and should be sought only consequential to declaration.
Ld. Counsel for plaintiff has further relied upon the decision of Hon'ble Allahabad High Court in the case of Chief Inspector of Stamps vs. Laxmi Narain AIR 1970 All 488. In that case too, it was held that where declaration and injunction are independent reliefs, ad valorem court fee need not be paid. The judgment does not apply to the present case. There is no doubt that valuation would depend on the framing of the suit. The question herein is whether the suit has been correctly framed. The plaintiff has preferred the prayer of declaration and injunction as separate prayers. It has already been noted above that the plaintiff is not entitled to injunction to keep out the defendants from the suit property, to direct them to remove their articles and construction from the property and to restrain them from creating third party interest unless the plaintiff is first declared as exclusive owner of the suit property. Hence, the injunction that the plaintiff is seeking can be granted only consequential to declaration. The plaintiff has however chosen not to pray for injunction as consequential to declaration apparently in order to A.P.S FASHION VS. BALWAN AGGARWAL 25 of 28 CS. No.213/11 avoid paying ad valorem court fee.
Ld. Counsel for plaintiff has relied upon the case of Saleem Bhai & Ors. vs. State of Maharashtra & Ors. 2002 S AD (S.C) 537 and Sathappa Chettiar vs. Ramanathan Chettiar AIR 1958 SC 245, to support his contention that at this stage only contents of the plaint can be looked into. There is no dispute about this proposition of law. The defendants have not yet been served with summons. The court has taken into consideration only the averments made in the plaint and documents filed by the plaintiff.
23. The plaintiff is trying to restrain creation of third party interest over the suit property by the defendant nos. 1 to 3. Since the plaintiff has failed to demonstrate that he is the exclusive owner of the suit property, he can be treated as a mere coowner of the entire area of land. As such, he cannot restrain the other cosharers from creating third party interest in the suit property. Such third party interest would take effect to the extent of share of the transferor. This view is fortified by the cases of Maharu V. Dhansai, AIR 1992 MP 220, K. S Krishan Vs. Krishnan, AIR 1993 Kerala 134, Lalita James Vs. Ajit Kumar, AIR 1991 Madhya Pradesh 15, Ram Dass and another Vs. Shisha Singh and others AIR 2007 P & H 200 and Mangey Ram and another Vs. Madan Jha, Financial Commissioner and others 166 (2010) DLT 702.
A.P.S FASHION VS. BALWAN AGGARWAL 26 of 28 CS. No.213/11
24. Although the case is at an early stage, the plaint has been subjected to scrutiny to assess its maintainability in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others (2004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the plaint in the event of noticing any of the infirmities mentioned in Order 7 rule 11 of Code of Civil Procedure. It has been noted above that the prayers made in the plaint are barred by law and the plaintiff has no cause of action sustaining the scrutiny of law. The averments made in the plaint are also contradictory and are controverted by the documents filed by the plaintiff himself.
25. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. Even if the plaintiff succeeds in proving the averments made in the plaint, he would not become entitled to the relief claimed by him.
In the case of T. Arivandam v. T.V. Satyapal and Another, (1977) 4 SCC 467, the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure.
A.P.S FASHION VS. BALWAN AGGARWAL 27 of 28 CS. No.213/11 In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another (2004) 9 SCC 512 it was held that when no cause of action is disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of harassment.
26. In the aforesaid circumstances, under Order 7 Rule 11 of Code of Civil Procedure, the plaint is rejected.
File be consigned to record room.
(Ashish Aggarwal)
Civil JudgeI/Dwarka Courts
Delhi/21.04.2012
A.P.S FASHION VS. BALWAN AGGARWAL 28 of 28
CS. No.213/11