Delhi District Court
Lal Chand vs Phool Chand on 4 September, 2010
IN THE COURT OF SHRI GORAKH NATH PANDEY,
JSCC/ASCJ/GUARDIAN JUDGE (NE)
Suit No. : 25/07
Unique Case ID No. 02402C0635032006
Lal Chand
s/o Late Shri Jawahar Lal
r/o 24/89, Trilok Puri (first floor),
Delhi110091.
......... Plaintiff.
Versus
Phool Chand
s/o Late Shri Jawahar Lal
r/o 24/89, Trilok Puri (ground floor),
Delhi110091.
......... Defendant.
Date of Institution of the suit : 15.11.2006
Date on which order was reserved : 03.09.2010
Date of decision: 04.09.2010
SUIT FOR PERMANENT INJUNCTION.
J U D G M E N T:
The plaintiff has filed this suit for permanent injunction contending to be lawful and absolute owner of property no. 24/89 first floor, Tirlok Puri Delhi91 as shown in red colour attached with the plaint. The defendant who is real brother of the plaintiff is contended to be the owner of the ground floor of the property as the property no. 24/89 Trilok Puri, Delhi was purchased by them vide GPA in 19821983. The defendant is in possession of the original documents. On 29.08.2005 an agreement was executed between the parties in the presence of the witnesses. As the plaintiff came to know that the defendant want to sell the entire property including the first floor portion of the plaintiff, this suit is filed by the plaintiff against the defendant praying for restraining the defendant, agent, family member, servant attorneys etc. from selling, transferring, disposing the property no. 24/89 Trilok Puri, Delhi as shown in the site plan.
2. The written statement was filed by the defendant contending that plaintiff is not the owner and this suit is not maintainable; it is liable to be dismissed u/o 7 rule 11 CPC. As contended, this suit is false and the defendant is the exclusive owner of the property no. 24/89, Trilok Puri, Delhi. It is mentioned that plaintiff is not entitled for any relief. While denying rest of the material contentions of the plaintiff in the plaint, the defendant contended that the plaintiff was allowed to reside on the first floor of the property as licencee only and the plaintiff has no right, title or interest in the suit property. The defendant prayed to dismiss the suit with exemplary cost.
3. Replication to the written statement of the defendant was also filed by the plaintiff whereby the plaintiff while reiterating the contents as mentioned in the plaint, denied the averments of the defendant as mentioned in written statement.
4. In view of pleading of the parties, following issues were framed vide order dt. 20.09.2007.
1. Whether the plaintiff is entitled to a decree of permanent injunction ? (OPP)
2. Whether the suit of the plaintiff is not maintainable in view of order 7 rule 11 CPC ? (OPD)
3. Whether this court has no jurisdiction to try this suit ? (OPD)
4. Relief.
The case was thereafter fixed for plaintiff evidence. Plaintiff filed his affidavit by way of evidence and was examined as PW1 who deposed regarding the facts as mentioned in the plaint and exhibited relevant documents i.e. the site plan Ex. PW1/1, voter ID card and ration card Ex. PW1/2 and Ex. PW1/3. The witness reproduced the averments as mentioned in the plaint in one way or the other. The witness lastly deposed that this suit is correct.
Shri Pardesi, other brother of the plaintiff and defendant was examined as PW2 who also deposed on the lines as by PW1. As no other PW remained to be examined by the plaintiff, the PE was closed and the case was fixed for DE.
As observed, defendant also filed his affidavit by way of evidence but as the defendant failed to appear for cross examination despite grant of ample opportunities and imposition of cost, the DE was closed.
5. I have heard final argument on behalf of parties and gone through the records. I have also considered the relevant law.
It is argued by the counsel for the plaintiff that the case of the plaintiff stands proved in view of the unrebutted and uncontroverted testimony of the PW and the material documents are on record. The defendant has taken false plea to harass the plaintiff and delay the legal proceedings and the request is made to pass decree in favour of the plaintiff and against the defendant.
It is argued by the counsel for defendant that this is a false suit and the plaintiff has no right, title or interest in the suit property; the defendant is the exclusive owner of the same and this suit is filed on the basis of forged and fabricated documents. There is no cause of action for filing of this suit and the same is liable to be dismissed with cost. This suit is filed to harass the defendant and the plaintiff has no right, title or interest in the property and this suit is filed to grab the same. The documents relied by the plaintiff have no value in the eyes of law and cannot be admitted in evidence. The prayer is made to dismiss this suit with exemplary cost.
6. My findings on the above said issues are as follows:
Issue No. 3.
3. Whether this court has no jurisdiction to try this suit ? (OPD) The onus to prove this issue was on the defendant. As mentioned, the defendant has failed to lead evidence despite repeated and ample opportunities and the DE was thereafter closed. The defendant accordingly failed to discharge the onus and prove this issue. Moreover, I do not find any basis for this objection and this court has jurisdiction to entertain this suit. This issue is decided against the defendant.
Issue NO. 1 and 2.
1. Whether the plaintiff is entitled to a decree of permanent injunction ? (OPP)
2. Whether the suit of the plaintiff is not maintainable in view of order 7 rule 11 CPC ? (OPD) The onus to prove the issue no.1 i.e. regarding the entitlement of the plaintiff to the relief as prayed in the suit, remained on the plaintiff however the issue no.2 appears to be a legal issue. The brief and relevant facts for filing of this suit along with the defence of the defendant has been mentioned at the outset. As both these issues are liable to be disposed off by common facts, both these issues are examined and decided together.
Order 7 rule 11 CPC contained the provisions for rejection of the plaint mentioning that plaint shall be rejected in the following cases
a) Where it does not disclose a cause of action;
b) Where the relief claimed is under valued and the plaintiff on being required by the court to so correct the valuation within a time to be fixed by the court fails to do so;
c) Where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the court to supply the requisite stamp paper within a time to be fixed by the court fails to do so;
d) Where the suit appears from the statement in the plaint to be barred by any law;
e) Where it is not filed in duplicate;
f) Where the plaintiff fails to comply with the provisions of rule 9.
It is relevant and necessary to mention at the outset that the plaintiff is under obligation to prove the case in view of the plaint and as the onus to prove this issue of entitlement was on the plaintiff. It is also relevant that there is no admission on behalf of the defendant in the pleadings and the defendant claimed himself to be exclusive owner of the property mentioning plaintiff has no right, title or interest in the property. Moreover there is no document on record to prove that plaintiff is the owner of the property and even the documents relied by the plaintiff are in the name of the defendant. Even in the documents relied by the plaintiff, the name of the defendant is mentioned as the person. The electricity and water bills are also in the name of defendant regarding the property and the Ex. PW1/2 and 1/3 relied by the plaintiff also reflected the name of the defendant as the main person. Contrary to the contention of the plaintiff Ex. PW1/2 does not mention at all regarding the first floor of the property no. 24/89 block 24, in the ownership of the plaintiff. The so called agreement between the parties creating right in favour of the plaintiff regarding ownership i.e. agreement is merely photocopy and not proved in accordance with law. Even otherwise this document has no value in the eyes of law. As mentioned in the Evidence Act, the facts admitted only need not be proved. The plaintiff has filed this suit claiming to be the owner of the property on the basis of the documents hence it is necessary to examine as to whether the plaintiff can be considered as owner on the basis of the documents relied by him and in view of the absence of any admission by the defendant. In view of these broad outline, the above mentioned issues are required to be re examined.
As mentioned, the defendant has failed to lead evidence. It is relevant to mention that in view of the documents relied by the plaintiff, the plaintiff cannot be considered to be the owner of the suit property. It is reiterated that the plaintiff has to prove that he is the owner of the suit property. In view of section 103 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. As held in AIR 996 SC 112, no amount of proof can substitute pleadings which are the foundation of claim of a litigating party. On the basis of the documents relied by the plaintiff in support of contention, by no stretch of imagination can the plaintiff be considered as owner of the suit property. Section 54 of the Transfer of Property Act define "sale" The section is re produced as below:
"Sale" is a transfer of ownership in exchange for a price paid or promised or part paid and part promised.
Sale how made. Such transfer, in the case of tangible immovable property of the value of one hundred rupees and onwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale. A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Section 53 (A) of the Transfer of Property Act deals with part performance which is as mentioned below:
Part performance Where any person contracts to transfer for consideration any immovable property by writing singed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof or the transferee being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
Examining both of these section together, it is clear that ownership and possession are two entirely different and separate concepts. It necessarily follows that it is not only possible, but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession and similarly it is also possible to take possession without transferring the ownership like in this case.
Section 17 of the Registration Act 1908 detailed the documents of which registration is compulsory and clause (b) includes the non testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of Rs.100/ or upwards, to or in immovable property. Further, in view of section 17 (1A), even the documents containing contracts to transfer for consideration, any immovable property for the purpose of section 53 of Transfer of Property Act, 1882 shall be registered if they have been executed on or after the commencement of the registration and other related laws (amendment) Act, 2001, and if such documents are not registered on or after such commencement then, they shall have no effect for the purposes of said section 53 A. Section 49 of the Act contained the effect of non registration of documents required to be registered u/s 17 (supra) or by any provision of the Transfer of Property Act, 1882 mentioning no such document shall effect any immovable property comprised therein or be received as evidence of any transaction effecting such property or conferring such power unless it has been registered.
In view of aforesaid definition and mode of "sale", as well as relevant provisions of the Registration Act 1908, the transfer of tangible immovable property of the value of one hundred rupees and upwards can be made only by a registered instrument which is missing in this case. I have considered the judgment reported as AIR 1969 SC 1316 wherein it is mentioned that the documents of which registration is necessary under the Transfer of Property Act (such as u/s 54 of the Transfer of Property Act ), but not under the Registration Act fall within the scope of section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of any immovable property comprised therein and do not effect any such immovable property. It was further mentioned in AIR 2003 DELHI 120 that transfer of immovable property can only be effected by executing a registered document. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property. The attention can also be drawn regarding the judgment reported as M.L. Aggarwal Vs. Oriental Bank of Commerce & Ors. , 128 (2006) DLT 407 (DB). As there is no registered sale deed executed by the defendant in favour of the plaintiff with respect to the suit property, the plaintiff cannot be considered to be owner of the suit property as claimed in the suit and therefore not entitled for possession.
Hon'ble Supreme Court also questioned the permissibility and plausibility and taken cognizance of the matter regarding entering into the like transaction with respect to immovable property while examining in the case reported as Suraj Lamp & Industries Pvt. Ltd. through Director Vs. State of Haryana & Anr. (2009) 7 SCC 363 which is mentioned as below "The Registration Act, 1908 was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non registration. Registration proves safety and security to transaction relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property as to the nature and extent of the rights which persons may deal with a property as to the nature and extent of the rights which persons may have affecting that property. It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person (s) presently having right, title or interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them where people may seen record and enquire and ascertain what the particular are, and as far as land is concerned what obligations exists with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon statements contained in the registers (maintained under the said Act) as a full and complete account of all transaction by which the title to property may be affected and secure extracts/copies duly certified.
It was further held : "The consequences of SA/GPA/will transactions are disturbing and farreaching, adversely affecting economy, civil society and law and order. Firstly, it enables largescale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying benefit of such revenue to Government and the public.
Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption. These kind of transaction have disastrous collateral effects also. Any process which interferes with regular transfers under deeds of convenience properly stamped, registered and recorded in registers of registration department, is to be discouraged and deprecated. The present case is a typical example of the consequences of not obtaining a registered sale deed. There is apparently no reason as to why a company registered under the companies Act should resort to such a transaction. Execution of a will by an individual bequeathing an immovable property to a company, is also incongruous and absurd. It is the dream of every citizen a house or a plot of land. The citizen must be enabled by government to do so with safety, security and without fear of litigation or defects in title".
7. I have gone through the relevant provisions of law of injunction. The injunction is a discretionary relief and its grant or refusal depends on the facts and circumstance of a particular case. The discretion has to be reasonable, guided by judicial principles and law. It must not be arbitrary, vague and fanciful. It is also necessary to mention that right and obligation are corollary to each other and the right places a corresponding duty also for its existence.
By way of this simplicitor suit for injunction, the ownership and declaration regarding the title of the property cannot be done, neither the same is in the domain of the suit. It is further needless to mention that if the plaintiff has to succeed in the suit, he has to prove the contents as mentioned in the plaint showing his right, title or interest in the suit property.
The relevant provisions for the transfer of immovable property and sale thereof is prescribed under the Transfer of Property Act. There is nothing on record at all to show that the plaintiff was having any right, title or interest in the property. Plaintiff is claiming the discretionary and equitable relief of injunction and has to show the perfect legal right for the grant of relief of injunction. As above mentioned, the plaintiff is claiming the right in the suit property and the right, title and interest of plaintiff is denied by the defendant.
I have considered the relevant law i.e. section 41 (h) of the Specific Relief Act wherein it is mentioned that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceedings except in case of breach of trust. Needless to mention in this case and facts as mentioned the plaintiff has efficacious remedy available. In view of availability of the alternative efficacious relief is available to the plaintiff, the injunction cannot be granted as above mentioned.
It is the contention of the defendant that the plaintiff is seeking the relief of declaration as well as possession in the garb of this simplicitor suit of injunction without seeking appropriate remedy and paying the appropriate court fees which cannot be granted. It is further mentioned that plaintiff has no right, title or interest in the suit property; no injunction can be granted again the true owner. The contention of the defendant appears to be tenable. There is nothing on record to show that the suit property belongs to plaintiff as mentioned. The plaintiff has not sought for the declaration of any ownership and filed this simplicitor suit for injunction which is not maintainable. As the plaintiff 's legal right is questioned and is under adjudication with respect to the suit property, the relief prayed by the plaintiff in the plaint cannot be granted.
8. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of such a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and it was mentioned that the position in regard to the suits for prohibitory injunction relating to immovable property is summarized as under:
i) Where a cloud is raised over plaintiff's title and he does not having possession, a suit for declaration and possession, with or without a consequential injunction is the remedy.
Where the plaintiff 's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff 's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
ii) As a suit for injunction simplicitor is concerned only with possession normally the issue of the title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration as without a finding thereon, it will be possible to decide the issue of possession".
iii) But a finding on the title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property.
The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a p[erson in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3 Where the plaintiff is in possession but his entitle to the property in dispute, or under aq cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequensive relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
As above mentioned, the plaintiff is claiming interest in the suit property. The question is regarding the right, title or interest of the same which cannot be decided by way of this simplicitor suit for permanent injunction as prayed in this suit.
As regards the claim of the plaintiff regarding permanent injunction it is mentioned in re JT 1994 (6) SC 588, interest or right not shown to be in existence cannot be protected by injunction. The question therefore is whether an injunction can be issued against the true owner. Issuance of order of an injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
As further held, it is equally settled law that injunction cannot be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner.
I am also guided by the judgment reported as 1994 (28) DRJ (DB) and (1994) 5 SCC 47 wherein Hon'ble Supreme Court has held that : "Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession. It is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41(j) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
It is equally settled law that injunction would not be issued against the true owner.
Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the plaintiff who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner". As above mentioned, the plaintiff has failed to prove that he is the owner of the suit property having right, title or interest in the same. Hence no injunction can be issued in favour of the plaintiff and against the defendant. Applying the ratio of the judgments referred above, the claim of the plaintiff is not maintainable and is liable to be dismissed. The plaintiff is not entitled for any relief as prayed in the suit. Issue no. 1 to 2 is decided against the plaintiff.
RELIEF In view of above said discussions and findings, the plaintiff is not entitled for any relief and the suit of the plaintiff is dismissed. No order as to cost in the facts and circumstances of the case. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (G.N. Pandey) Court on 04th Day of September, JSCC/ASCJ/G. Judge(NE), 2010. Karkardooma Courts, Delhi.