Delhi District Court
Dhani Ram vs Ashok Kumar & Ors on 3 February, 2012
IN THE COURT OF SH. GAUTAM MANAN:
ASCJJSCCGJ: (CENTRAL) DELHI.
RCA No. 75/07
1. DHANI RAM
S/O SH. JHUTTAR SINGH
2. SURESH SINGH
S/O SH. JHUTTAR SINGH
BOTH R/O H. NO. 74,
NEW CHAUHAN PUR, DELHI94 ..........APPELLANTS
V E R S E S
1. ASHOK KUMAR S/O SH. INDER SINGH
2. SUNIL S/O SH. ASHOK KUMAR
BOTH R/O VILLAGE OLD BADRPUR, NEAR CHHAJJU GATE,
DELHI
3. DHARAMBIR S/O SH. INDER SINGH
R/O CHHAJJU COLONY, BADARPUR, DELHI32
4. ATTAR SINGH S/O JHUTTAR SINGH
S/O VILLAGE CHAUHAN PUR, SHAHDARA, DELHI94
5. MAHI PAL SINGH
S/O SH. KARTAR SINGH, DIED & REPRESENTATED BY:
MASTER ASHISH TOMAR MINOR S/O SH. MAHIPAL SINGH
THROUGH HIS MOTHER & GUARDIAN SMT. SANTOSH,
WD/O SH. MAHIPAL SINGH
6. DHARMBIR SINGH S/O SH. KARTAR SINGH
RESPONDENTS NO. 5 & 6
R/O H. NO. 116117, NEW CHAUHAN PUR,
DELHI94 .......RESPONDENTS
1 RCA No. 75/07
INSTITUTION OF SUIT : 29.10.2007
ORDER RESERVED ON : 16.01.2012
JUDGMENT PRONOUNCED ON : 03.02.2012
APPEAL AGAINST JUDGEMENT AND DECREE DATED 18.10.2007 IN
SUIT NO.452/1991
J U D G M E N T
1. By present order I will dispose of an appeal directed against the judgment and decree dated 18.10.2007 passed by the Ld. Trial Court.
2. The facts necessary for the disposal of the present appeal are that the appellants filed the suit for injunction against the defendants on allegations that the appellants and respondents no.4 to 6 are the Bhumidar in possession of property bearing Khasra no. 151, measuring 18 Biswas, 2 RCA No. 75/07 situated in the revenue estate of Babarpur, Delhi (suit land) and the respondents no.1 to 3 ( initially one Sh. Pappan was also impleaded as codefendant but his name was deleted vide Trial Court Order dated 26052004 ) have no right, title or interest in the aforesaid land.
3. On 16.09.1991, the respondents no.1 to 3 came to the suit land and tried to interfere into the peaceful & lawful possession of the appellants & respondents no.4 to 6 but due to intervention of neighbors the respondents 1 to 3 could not succeed. A report was lodged by the appellant no.2 with the police in this regard. The appellants called upon the respondents 1 to 3 to refrain from taking law in their own hand but they were adamant to do so and hence by way of present suit the appellants have prayed for a decree of permanent injunction to restrain the respondents no. 1 to 3 from interfering in the law and peaceful possession of the appellants over the suit land.
3 RCA No. 75/07
4. The respondents no.1 to 3 in their written statement stated that the respondent no.1 is in possession of the land in dispute under agreement to sell from respondents no.4 to 6. It is stated that a suit for injunction by a cosharer against the another cosharer is not maintainable in law and the suit is barred under Section of 41(h) of the Specific Relief Act. It is further stated that by virtue of agreement to sell dated 12.08.1991 560 Sq. yards. in Khasra no. 151 was sold to respondent no.1 and the vacant possession of the land with boundary wall was given to him. By virtue of agreement to sell dated 12.08.1991 another 150 Sq. yards. of land was transferred to respondent no.1 and as such the respondent no.1 is in possession of 710 Sq. yards. of land in khasra no.
151.
5. In their written statement the respondents no.4 to 6 submitted that they executed agreements to sell dated 12.08.1991 in favour of the respondents no.1 to 3 and 4 RCA No. 75/07 thereafter the respondents no.1 to 3 are in exclusive possession of land in dispute with boundary wall and the possession of land in dispute was delivered to the respondents no.1 to 3 on 12.08.1991 itself.
6. On attaining the majority the respondent no.6 filed his amended written statement wherein he alleged that at the time of execution of the agreement to sell, he was minor and without his knowledge and knowledge of his mother the alleged agreement to sell was executed. The respondent no.7 submitted that he did not receive any consideration money nor has handed over the possession of the disputed land to respondent no.1 and hence the respondents no.1 to 3 have no right, title or interest in the land in dispute. It is stated that the appellants and respondent no. 6 along with respondents no. 4 & 5 are enjoying possession of suit land and their possession has remained intact.
5 RCA No. 75/07
7. In the replication the appellants denied the allegations made in the written statement and on pleadings of the parties the issues were framed on 06.02.1992:
1. Whether the suit is barred U/s 41 (h) of Specific Relief Act? OPD
2.Whether the deft. no.1 is in possession of suit land measuring 710 Sq. Yards enclosed by boundary wall?OPD
3. Whether the agreement to sell dated 12.08.1991 is legal and valid? OPP
4. Whether the plaintiffs are entitled to the relief of injunction, as prayed for? OPP.(framed on 09.07.1992)
5.Relief.
8. The Ld. Trial Court while deciding all the issues against the appellants dismissed the suit of the appellants vide impugned judgment & decree dated 18.10.2007. 6 RCA No. 75/07
9. The appellants have preferred the present appeal on the ground that the Ld. Trial Court has erred while on relying upon the agreement to sell in favour of respondent no.1 to 3 Ex.DW2/1 and Ex.DW2/2 because the said documents did not mention any specific land. It has also been submitted that the Ld. Trial Court has erred in holding that the Delhi Reforms Act contains no bar against the sale of undivided share and the Ld. Trial Court failed to appreciate the fact that merely an agreement to sell does not confer any right, title or interest and merely entering into an agreement to sell nobody can be called as cosharer and furthermore, the co sharer also cannot sell the specific portion of land without consent of other cosharer.
10.It has also been submitted that the Ld. Trial Court has wrongly held that the respondent no.1 came into possession of share of the appellants' property and hence, it has been prayed that the impugned judgment and decree be set aside. 7 RCA No. 75/07
11.The written submissions have been filed on behalf of the appellants, respondents no.1 to 4 as well as respondent no.5 & 6.
12.ISSUE NO.1 : Whether the suit is barred u/s 41(h) of Specific Relief Act? OPD. The Ld. Trial Court while deciding issue no.1 has held that the appropriate remedy for the appellants was not to file a suit for injunction rather the appellants had an alternative efficacious remedy in form of suit for partition and by holding this, the Ld. Trial Court held that the suit of appellants is hit by provisions of Section 41(h) of Specific Relief Act.
13.The appellants instituted the present suit on allegations that the respondents no.1 to 3 have no right, title or interest in the suit land and they are strangers to the suit property. As per the appellants, the suit land actually belonged to the 8 RCA No. 75/07 appellants and the respondents no.4 to 6 are cobhumidars of the land in dispute. Respondents no.1 to 3 have set up a defense that they entered into an agreement to sell with respondents no.4 to 6 in respect of suit land and they have taken the possession of the suit land from them.
14.The relief sought by the appellants in their suit is not against respondents no.46 and relief is restricted only against respondents no.1 to 3 to restrain them from interfering in the lawful and peaceful possession of the suit land. It is not a case where appellants are claiming injunction against co sharer of the property. The appellants are cosharer of the suit land has not been denied. During the course of the trial, it has not been proved that the suit land was ever partitioned. Since the appellants have not claimed any relief against co sharers of the suit land, as such the Ld. Trial Court has committed an error by holding that the efficacious remedy available for the appellants was to file the suit for partition. 9 RCA No. 75/07
15.In the present case, where appellants have sought to restrain respondent no.1 to 3, who as per the appellants are strangers to the suit land and they have no right, title or interest over the same, in such a case, the appellants have a right to maintain a suit for injunction and it was not necessary for them to institute the suit for partition. Thus, I am of the considered opinion that the Ld. Trial Court has committed an error while deciding the issue in favor of the respondents. Thus, it is held that the suit of the appellants is not barred u/s 41(h) of Specific Relief Act. The issue stands answered accordingly.
16.ISSUE NO.2 : Whether the defendant no.1 is in possession of suit land measuring 710 Sq. Yards enclosed by boundary wall? OPD. The onus to prove that the respondent no.1 is in possession of the suit land measuring 710 Sq. Yards enclosed by boundary wall is on respondent no.1 himself. Respondent 10 RCA No. 75/07 no.1 has claimed that he has purchased the suit property from respondents no.4 to 6 vide an agreement to sell Ex.DW2/1 and Ex.DW2/2. Respondent no.1 has claimed that on the date of agreement to sell, he was also given the possession of 710 Sq. Yards land and the said land was covered with boundary wall. Respondent no.1 maintained that he continued to be in possession of the suit land from the year 1991. The respondent no.1 during the course of his crossexamination deposed that he assumed the possession of the suit land by constructing the boundary wall and he received the possession of the suit land in presence of one Hukum Singh. However, the respondent no.1 admitted that he has no document to prove that the suit land was partitioned at any point of time.
17.On perusal of agreement to sell, it can be noticed that there is no site plan annexed with it, as such the location of the land agreed to be sold cannot be ascertained from this document. 11 RCA No. 75/07 Furthermore, the agreement to sell Ex.DW2/1 and Ex.DW2/2 mentions that the possession of the suit land was given to respondent no.1 with boundary wall but as per the testimony of respondent no.1 the boundary walls were constructed by him and were not in existence prior to that. Even otherwise also, respondents no.4 to 6 neither in their written statements nor in their testimony have denied the joint possession of appellants over the suit property. Keeping in view the fact that there is no evidence on record to suggest that the suit land was ever partitioned between the appellants and respondents no.4 to 6, it has to be concluded that respondent no.1 was never given exclusive possession of 710 Sq. Yards of land, as claimed by him. Thus, this issue stands decided against respondent no.1 and it is held that respondent no.1 has failed to prove his exclusive possession over 710 Sq. yards of land.
12 RCA No. 75/07
18.ISSUE NO.3 : Whether the agreement to sell dated 12.08.1991 is legal and valid? OPP. This issue is in respect of validity of agreements to sell dated 12.08.1991. It is the matter of record that none of the parties have challenged the validity of the agreement to sell except the respondent no.6 who stated that at the time of execution of agreement to sell Ex.DW2/1 and Ex.DW2/1 he was minor. Respondent no.6 entered into the witness box as DW4. In his testimony, the respondent no.6 has categorically deposed that at the time of execution of agreement to sell, he was minor and he never executed agreement to sell in favour of respondent no.1. The deposition of respondent no.6 that he was minor at the time of execution of agreement to sell has not been disputed by any of the parties. No contract by a minor is a valid contract until and unless it is entered into through his lawful guardian. Thus, the agreement Ex DW2/1 being executed by a minor is not a valid agreement.
13 RCA No. 75/07
19.Even otherwise also, it is a well settled law that the an agreement to sell does not confer any right, title or interest on any party. It is in evidence that the respondent no.1 has not initiated any action seeking enforcement of the agreement to sell and as on today the agreement to sell executed in favour of respondent no.1 gives no right, title or interest to respondent no.1 in respect of suit land. The issue stands answered accordingly.
Whether the plaintiffs are entitled to the relief of
20.ISSUE 4:
injunction, as prayed for? OPP. The appellants have claimed joint possession over the suit land as co bhumidar. During course of evidence, it has been admitted by respondent no.1 that he was arrested along with the appellant no.2 in a case u/s 107/151 Cr.P.C. when a quarrel took place in respect of possession of the suit land. Thus, the appellants had a cause to apprehend interference in their possession. 14 RCA No. 75/07
21.As stated while deciding the earlier issues, respondents no.1 to 3 have failed to prove their right, title or interest over the suit land. There is no evidence that the suit land was ever partitioned. Thus, the appellants are entitled for the relief of injunction to restrain respondents no.1 to 3 from interfering into their peaceful possession in respect of the suit land. Accordingly, the issue stands answered in favour of appellants and against the respondents no.1 to 3.
22.RELIEF : In the light of above said discussions, the judgment/decree dated 18.10.2007 passed by the Ld. Trial Court is hereby set aside and a decree of permanent injunction is passed in favour of the appellants and respondents no.1 to 3 thereby restraining the respondents 13, their agents, servants etc from interfering in peaceful 15 RCA No. 75/07 possession of the land measuring 18 biswas comprised in khasra no.151 situated in the revenue estate of village Babarpur, Delhi and from forcibly dispossessing the appellants from there. No order as to costs. Decreesheet be drawn.
TCR be sent back along with copy of this judgment & decree to the Trial Court.
File be consigned to Record Room.
Announced in open Court on 03rd February, 2012.
GAUTAM MANAN
ASCJ/JSCC/GJ/IJ
CENTRAL/DELHI
16 RCA No. 75/07
RCA No.75/07
Dhani Ram & Ors. Vs Ashok Kumar & Ors.
03.02.2012
Present: None.
Vide separate order, the judgment/decree dated 18.10.2007 passed by the Ld. Trial Court is hereby set aside and a decree of permanent injunction is passed in favour of the appellants and respondents no.1 to 3 thereby restraining the respondents 13, their agents, servants etc from interfering in peaceful possession of the land measuring 18 biswas comprised in khasra no.151 situated in the revenue estate of village Babarpur, Delhi and from forcibly dispossessing the appellants from there. No order as to costs.
Decreesheet be drawn.
TCR be sent back along with copy of this judgment & decree to the Trial Court.
File be consigned to Record Room.
GAUTAM MANAN ASCJ/JSCC/GJ/IJ CENTRAL/DELHI/03.02.2012 17 RCA No. 75/07