Delhi District Court
Master Lawrence Barnabas vs . Jalal Masih on 6 April, 2011
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IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS. No 328/11
Master Lawrence Barnabas Vs. Jalal Masih
06.04.2011
ORDER
1. By this order I shall decide the application under Order 39 Rules 1 and 2 read with section 151 of Code of Civil Procedure filed by the plaintiff and would adjudicate the maintainability of the suit.
2. The plaintiff is a minor. He has filed the suit through his mother as his natural guardian. Father of the plaintiff has expired. Defendant is the paternal grandfather nd of the plaintiff. The dispute relates to property bearing no. 1/73, 2 Floor, Sadar Bazar, Delhi Cantt, New Delhi (hereinafter referred to as "the suit property"). It is stated in the plaint that when the father of the plaintiff was alive, the plaintiff and his father used to reside in the suit property with the defendant. The suit property is stated to be ancestral property and has been inherited by the defendant from his forefathers. The plaintiff claims to have a share in the said property by virtue of his birth. After the death of the father of the plaintiff, since the defendant did not take care of the plaintiff, the mother of the plaintiff took the plaintiff away to reside in some other house. The defendant is trying to dispose off the suit property to deprive the plaintiff of his share.
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3. The defendant has filed his written statement. In his written statement, he has stated that the suit has not been filed through the natural guardian of the plaintiff. It is stated that the suit property is owned by Delhi Cantonment Board and the defendant is only a tenant in the premises and the said tenancy is not heritable. It is further stated that the relations between the parents of the plaintiff were strained. In the year 1999, the mother of the plaintiff had left the matrimonial house leaving behind the infant plaintiff. She had started living with her paramour. Later she had a dispute with the said paramour too. Custody of the minor plaintiff was given to the defendant by order of Hon'ble Punjab and Haryana High Court. The defendant had been taking care of the minor plaintiff. The mother of the plaintiff, by deceit, took away the minor plaintiff. With a view to harass the defendant and grab his property, the plaintiff has filed the present suit.
4. By the application 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 defendant and his representatives from disposing off, alienating or selling the suit nd property bearing no. 1/73, 2 Floor, Sadar Bazar, Delhi Cantt, New Delhi (hereinafter referred to as "the suit property") till the disposal of the suit. The plaintiff has also prayed for interim injunction restraining the defendant from dispossessing the plaintiff and his natural guardian (mother) from the suit property. Lastly, the plaintiff has prayed for interim injunction restraining the defendant from removing his belongings and those of his father from the suit property till the disposal of the suit.
5. The prayers of the plaintiff are threefold:
a) Restraining the disposal, alienation and sale of suit property;
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b) Restraining the dispossession of the plaintiff and his mother from the suit property;
c) Restraining the removal of belongings of the plaintiff and his late father from the suit property.
The said prayers are dealt with separately hereinafter. A) Restraining the disposal, alienation and sale of suit property
6. The case of the plaintiff is that he is the minor grandson of the defendant. The suit property is ancestral property and therefore he has a share therein by virtue of his birth.
7. The documents filed by the defendant establish that the suit property is owned by the Delhi Cantonment Board. The defendant is only a tenant/licencee therein who is making payment of necessary charges for his stay in the suit property. The suit property cannot be said to be owned by the defendant or his ancestors. Hence, the plaintiff cannot claim ownership rights in the suit property.
8. The defendant is admittedly Christian by religion. There is no institution akin to a Hindu joint family or coparcenary in existence. Under the personal law, a child being born in the Christian family does not acquire a share in the ancestral property by his very birth. Hence, the plaintiff cannot claim to have a share in the suit property.
9. Even if it is assumed that the plaintiff has acquired a right in the suit property by virtue of his birth, that would not empower him to restrain its sale or alienation by the defendant and any such suit is barred by Section 41(h) of the Specific Relief Act, 1963. The plaintiff, in that event, would be entitled to institute a suit to impeach the said alienation and in view of this alternate remedy he cannot restrain the said 3 of 9 4 act. This proposition of law has been laid down in the case of Sunil Kumar & Anr. Vs. Ram Parkash & Ors., AIR 1988 SC 576.
10. The mere fact that the plaintiff used to reside in the suit property during the life time of his father does not bestow any ownership right in the property. Since the plaintiff has no right or share in the suit property, he cannot restrain the disposal, alienation or sale, if any, of the said property. Hence, the prayer of the plaintiff for interim injunction restraining the disposal, alienation or sale of the suit property is hereby rejected.
B) Restraining the dispossession of the plaintiff and his mother from the suit property.
11. The plaintiff is seeking to protect his possession and that of his mother over the suit property. A complete reading of the plaint shows that the plaintiff and his mother are not in possession of the suit property. Since they are not in possession, the question of protecting them from dispossession does not arise. It appears that the plaintiff is seeking recovery of possession or entry into the suit property under the garb of restraining dispossession. Such recourse is not permissible. The prayer in the instant form is not maintainable. The plaintiff ought to seek recovery of possession instead of restraint of dispossession. The prayer to this effect is barred by Section 41 (h) of the Specific Relief Act, 1963 in view of the existence of the alternate remedy of filing a suit for recovery of possession. Moreover, interim injunction can only be issued to maintain status quo as existing on the date of institution of the suit. It cannot be issued to create a state of affairs different from that existing on the date of institution of the suit.
4 of 9 5 In the case of Dorab Cawasji Warden Vs. Coomi Sorab Warden, AIR 1990 SC 867, the Hon'ble Supreme Court held as under:
"The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last noncontested status which preceded the pending controversy - until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining".
The above decision was followed by the Hon'ble Supreme Court in the case of Metro Marins & Anr. Vs. Bonus Watch Co. Pvt. Ltd. & Ors., AIR 2005 SC 1444.
12. Even if the contents of the plaint are deemed to be correct, that would only indicate that the plaintiff was earlier residing with the defendant with the consent of the latter. The status of the plaintiff was, at best, of a licensee in the suit property. The licence of the plaintiff to reside in the suit property is terminable at will. The plaintiff does not have any right to reenter or perpetually occupy the premises against the wish of the defendant. The plaintiff has not acquired any right higher than that of the defendant.
13. It is settled law that injunction against dispossession cannot be granted against the true owner of the property. The use of premises by a licencee does not amount to "possession" in the eyes of law so as to deserve protection.
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 5 of 9 6 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.
14. Further, the suit has been instituted by the plaintiff alone and not by his mother. The plaintiff is not entitled to seek protection of the possession of his mother. The mother of the plaintiff is capable of approaching Court in her individual capacity to protect her possession. She could have instituted the suit in her own right. The plaintiff has no locus standi to protect the possession of his mother. To this extent, the prayer of the plaintiff is barred by Section 41(k) of the Specific Relief Act, 1963 for want of personal interest in the matter.
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15. It is settled law that the wife of a person does not acquire any right in the property of her parentsinlaw. She can only claim certain rights in the property of her husband. The relief that the plaintiff is claiming is not founded upon rights recognized by law, either by contract or by statute. For this reason also, the prayer for restraining dispossession of the mother of the plaintiff is not maintainable.
In the case of S. R. Batra and another Vs. Smt Taruna Batra Appeal (Civil) 5837 of 2006 decided on 15/12/2006, the Hon'ble Supreme Court held that a daughterinlaw does not have any legal right to continue in occupation of property belonging to her parentsinlaw against their consent.
16. For the abovesaid reasons, the prayer for restraining the dispossession of the plaintiff and his mother from the suit property is rejected.
C) Restraining the removal of belongings of the plaintiff and his late father from the suit property.
17. The plaintiff has sought interim injunction to restrain the removal of his belongings and those of his father. The suit property is under the exclusive possession of the defendant. The said possession is lawful. The father of the plaintiff, who was also son of the defendant, has expired. As demonstrated above, the plaintiff has no right to occupy the suit property against the will of the defendant. For the same reason, the plaintiff has no legal right to keep his belongings in the suit property against the wishes of the defendant. The plaintiff has also no right to keep the belongings of his father in the suit property against the wishes of the defendant. As a corollary, the defendant cannot be restrained from removal of the belongings of the plaintiff or his father from the suit property. Hence, the said prayer 7 of 9 8 of the plaintiff is rejected.
18. For the aforesaid reasons, I find no merit in the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure filed on behalf of the plaintiff. The application is dismissed.
19. It is pertinent to note that the reasons stated above for dismissal of the application under Order 39 Rules 1 and 2 of Code of Civil Procedure hold good even if the contents of the plaint are treated to be true and correct. The parties profess the Christian religion and under the personal law, the plaintiff has no right to a share in the property. He cannot restrain alienation of the suit property. Admittedly, the plaintiff is not in possession. He cannot claim injunction against dispossession or injunction against removal of his articles. He is a mere licencee and is not entitled to any injunction against the true owner. He cannot also canvass the case of his mother and seek injunction against her dispossession since she also does not have any right in the suit property and is also not in possession of the suit property. Besides, she has chosen not to approach the Court for claiming any relief. The prayers made in the plaint are clearly barred by law and the plaintiff has no cause of action.
20. 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 8 of 9 9 clear right to sue, the court should reject the plaint under Order VII Rule 11 of the Code of Civil Procedure.
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.
21. For the aforesaid reasons, 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/06.04.2011 9 of 9