Delhi District Court
Sh. Gurmeet Singh vs ) Sh. Rajinder Singh on 19 November, 2012
IN THE COURT OF SH. R. B SINGH
ADDITIONAL DISTRICT JUDGE - 01 (WEST): DELHI
MCA No. 12/12
Sh. Gurmeet Singh
Son of Late Sh. Arur Singh
Resident of H404, HIG Swaran Residency
G. T Road, Sahibabad (UP) .......Appellant
Versus
1) Sh. Rajinder Singh
S/o Late Sh. Arur Singh
Resident of Legacy Suites
12, 14 Sukhumvit Soi 29
Bangkok - 10110
Thailand
2) Sh. Ravi Chabra
R/o J1, Kirti Nagar,
New Delhi
3) West Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Shyama Parsad Mukherji Marg
Minto Road, New Delhi.
4) Smt. Usha Chawla
R/o J78, Ground Floor,
Kirti Nagar,
New Delhi - 110015. .......Respondents
Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 1 of 28
Date of Institution : 24.09.2012
Date of Decision : 19.11.2012
J U D G M E N T
By this judgment I shall dispose off an appeal preferred against the order dated 06.09.2012 passed by Sh. Anil Kumar, Ld. ASCJ (West), Tis Hazari Courts, Delhi, whereby ld. ASCJ has dismissed the application of the appellant / plaintiff U/O 39 Rule 1 & 2 read with section 151 CPC.
2. The brief facts for the disposal of this appeal are discussed as below:
Sh. Arur Singh and Smt. Leela Wanti, parents of the appellant and the respondent no. 1 were the joint owners of property measuring 150 sq. yards and bearing no. J78, Kirti Nagar, New Delhi having purchased the same from Sh. Satnam Singh, vide sale deed dated 19.12.1973. Sh. Arur Singh vide Sale deed dated 19.12.1996 sold / transferred his half undivided share of the said property to the plaintiff. Smt. Leela Wanti duing her life time executed a Will dated 28.03.1986 thereby bequeathing her undivided share in favour of the respondent no. 1 / defendant no. 1. Therefore, the appellant and the respondent no. 1 became Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 2 of 28 joint owners of the property bearing no. J78, Kirti Nagar, New Delhi measuring 150 sq. yards. Sh. Arur Singh expired on 23.03.1999 and Smt. Leela Wanti predeceased him on 09.05.1986.
There was an oral partition / family settlement between the appellant / plaintiff and respondent no. 1 / defendant no. 1 on 22.12.1996 by virtue of which the appellant became owner of the ground floor portion of the property and the respondent no. 2 became owner of the second floor portion of the property. However, the first floor portion remained in joint ownership of the appellant and respondent no. 1.
Since the respondent no. 1 stayed in Bangkok, Thailand, as such it was the appellant who remained in exclusive possession of the property and also took care of the property and electricity meter has also been installed in his name. In the first week of July, 2012 that the appellant upon visiting the suit property discovered that old construction has been demolished and new construction was been carried out in the ground floor portion of the property bearing no. J78, Kirti Nagar, New Delhi and further construction of first and second floor etc was also to be carried out. The appellant has also learnt that the respondent Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 3 of 28 no. 1 had further entered into some agreement on the basis of which the construction of first floor was demolished and new construction was being carried out. The appellant immediately on 10.07.2012 filed police complaint as well as complaint with West Municipal Corporation Delhi, however, no action was ever taken upon the said complaints of the appellant. The respondent no. 1 being joint owner of first floor has no right to demolish and reconstruct the first floor without obtaining consent of the appellant. Hence, the said act of the respondent no. 1 and his associates to demolish and reconstruct the first floor portion has been arbitrary, illegal, in prejudice to rights of the appellant and against principles of law as well as natural justice. Therefore, appellant filed the suit for permanent and mandatory injunction alongwith the application U/O 39 Rule 1 & 2 of CPC but ld. Trial Court vide order dated 06.09.2012 dismissed the said application inspite of the fact that the MCD has admitted that unauthorized construction is being carried out in the property and even ld. trial court admits that there has been the right of the appellant in the property which is being affected. Hence, this appeal.
3. Ld. Counsel for the appellant has filed the present Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 4 of 28 appeal on the grounds that ld. Trial court has grossly erred in holding that appellant / plaintiff is not entitled to interim relief as claimed under application U/O 39 Rules 1 & 2 CPC which is against the law, facts and documents filed on record by the appellant / plaintiff. The impugned order is based on conjectures and surmises. Ld. Trial Court has rightly held that the main dispute between the plaintiff / appellant and defendant no. 1/ respondent no. 1 is whether the plaintiff is joint owner of first floor or not and further the ld. Trial Court also rightly concluded that it is an admitted fact that old construction was demolished and fresh construction is being carried out. Despite admitting the aforesaid fact, ld. Trial Court has wrongly and incorrectly held that the appellant has failed to make out any prima facie case. The respondent no. 1, 2 and 4 played fraud upon the appellant by obtaining sanctioned plan dated 11.06.2012 without the consent and permission of the appellant since the appellant is joint owner of the first floor of the demised premises. Ld. Trial court has failed to consider that obtaining of the sanctioned plan by respondent no. 1, 2 and 4 without inclusion of the plaintiff clearly proves the fact that the respondent no. 1 has entered into some Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 5 of 28 secret agreement in regard to demolishing and carrying out fresh construction to the detriment of the rights of the appellant. The respondent no. 3 i.e West Municipal Corporation of Delhi has specifically stated in the written submission filed in the suit that unauthorized construction is being carried out and show cause notice dated 30.08.2012 has also been issued for carrying out unauthorized and illegal construction and further action by West Municipal Corporation of Delhi is pending. Inspite of that trial court has not stopped the unauthorized construction and by dismissing the application has allowed raising of unauthorized construction which is against the law.
4. Ld. Counsel for the appellant has further submitted that Ld. Trial court has also erred in holding that the appellant should have also sought relief of partition. The appellant and respondent no. 1 has been keeping the first floor of the property to be joint for so many years and they do not want any partition, therefore, the observations of the ld. trial court in this respect has been unwarranted. The ld. Trial court has wrongly and incorrectly hold that no interim protection thereby restraining the respondent no.1 from selling / transferring is required because if the appellant Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 6 of 28 is having any right and interest in the first floor portion of the suit property then the sale or transfer of this entire portion of the respondent no. 1 shall not affect his right and interest and sale and transfer of share / portion of the appellant by the respondent no. 1 shall be null and void. Ld. Trial court has set up a new precedent i.e a person having right, title & interest in a property cannot be granted interim injunction whereas a person not having any right title or interest in a property should be granted interim protection, thereby allowed the parties to be involved in multiplicity of the litigation instead of reducing the litigation. Ld. Trial court has wrongly and incorrectly relied upon the alleged partition deed dated 23.12.1996 which in fact is forged and fabricated document and the ld. trial court has not observed that the said forgery is evident from the fact that there is no continuity of averments of page 3 with the averments of page 4 and the date of the said deed is not initialed / signed as well as fact that the same is not registered under the provisions of Indian Registration Act as such otherwise cannot and could not be relied upon for any purpose. Ld. Trial court erred in considering the material fact that by virtue of Sale deed dated 09.12.1996, the appellant has became owner of Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 7 of 28 half (½) undivided share in suit property and by virtue of Will dated 28.03.1986, the respondent no. 1 became the owner of half (½) undivided share of the built - up property bearing no. J78, Kirti Nagar, New Delhi. If there had been a family settlement / oral partition on dated 18.12.1996, thereby granting either more than 1 ½ floor then as per settled principles of law, the oral partition was to be reduced in writing as partition deed and was got to be registered by paying stamp duty as per law.
5. Hence, as such the appellant had remained the joint owner of the first floor of the portion of the property and be protected under law. The alleged partition deed dated 23.12.1996 is a notarized document which is not admissible under law and cannot be relied. The alleged partition deed dated 23.12.1996 is forged and fabricated document since the respondent no. 1 has failed to explain the material fact that in a family settlement reduced in writing as partition deed why Late Sh. Arur Singh; the father of the appellant and respondent no. 1 was not made as witness when he was alive on 23.12 1996. Therefore, aforesaid circumstances clearly proves that the alleged deed of partition dated 23.12.1996 has been forged and fabricated after the death of Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 8 of 28 Sh. Arur Singh with sole malafide intention to grab the half undivided share of the appellant in the first floor portion of the said property. The story of the execution of the settlement partition dated 23.12.1996 and oral partition dated 18.12.1996 of the respondent no. 1 has been totally malafide, false and fabricated.
6. The Ld. Counsel for the appellant has also submitted in his additional written submissions that legal objection can be taken at any stage of the proceedings including the appellate stage which goes to the root of the matter. The partition requires compulsory registration and this Court has to see documents in totality as to whether the same is merely a memorandum of previous settlement or the same is merely a partition deed and is being used in order to evade the stamp duty. While deciding the present appeal, the court has also to consider that by not granting the interim protection as sought by the appellant their would be a multiplicity of litigation and as such the prime consideration at present should be of preservation of the suit property to which appellant and respondent are equally entitled. The suit involves various questions of facts and laws which are to be adjudicated by Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 9 of 28 proper appreciation of documents, evidence and nongrant of the interim protection will lead to a chaotic state which will obviously increase the litigation. The suit of the appellant is completely in order as the appellant has sought mandatory and permanent injunction by alleging his right over the property and in case any amendment is required, the same can be sought by the leave of the Court. Hence, the appellant is having prima facie case in his favour and irreparable loss and injury is likely to be caused to him by not allowing the prayer of the appellant.
7. It is, therefore, prayed that the order dated 06.09.2012 passed by Sh. Anil Kumar, Ld. ASCJ, West, Tis Hazari Courts, Delhi may be quashed and setaside and application U/O 39 Rule 1 & 2 be allowed, till the disposal of the case respondent no. 1, 2 and 4 and their assigns be restrained from carrying out any further construction in property bearing no. J78, Kirti Nagar, New Delhi and till the disposal of the respondents no. 2 be restrained from selling / transferring / creating third party interest in property bearing no. J78, First Floor, Kirti Nagar, New Delhi.
8. On the contrary ld. Counsel for the respondent no. 1 has submitted that the parents of the appellant had specifically Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 10 of 28 disowned the appellant / plaintiff which is mentioned in their registered will. However, Sh. Arur Singh has transferred his ½ of the demised property in favour of the appellant / plaintiff by registered sale deed dated 06.12.1996. On 18.12.1986 the appellant / plaintiff and the respondent no. 1 / defendant no. 1 with the help of family members entered into an oral family partition and the same was further thereafter reduced into writing vide a written memorandum recording past family partition dated 23.12.1996. The said family partition was duly signed by the real sister of the parties namely Smt. Ajit Kaur. Vide said family partition the respondent no. 1 / defendant no. 1 became the absolute owner of the 1st floor & 2nd floor with roof rights. The physical possession of the first floor of the demised property was consequently taken over. On the second floor there was a tenant Sh. Avinash and vide memorandum, respondent no. 1 has became entitled to receive the rent as landlord and owner of the second floor. Vide said memorandum, the appellant / plaintiff is the sole owner of the ground floor of the demised property. Hence, the appellant / plaintiff has no right, share or title in the first floor of the property. The memorandum recording past family oral Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 11 of 28 partition / oral family partition was also duly acted upon and the appellant / plaintiff has also duly taken advantage under the same whereby the appellant / plaintiff has sold the ground floor to Smt. Shanti Devi. The appellant / plaintiff has absolutely no interest in the first floor of the demised property in the said property is also duly mutated in the name of respondent no. 1 / defendant no. 1. The malafide intent of the appellant / plaintiff would be evident from the fact that the appellant / plaintiff has sold the ground floor of the property to Smt. Shanti Devi. The second floor of the property is also owned by one Mr. Mohinder Nath Rakheja who has also not been made a party though the appellant / plaintiff himself admits that the second floor of the demised property, owned by his brother i.e respondent no. 1 has been sold in the year 2006. The appellant has been deliberately trying to obtain injunction orders behind the back of the owners of the property. The respondent no. 1 / defendant no. 1 is based in Thailand. The present appeal is not maintainable and is liable to dismissed in view of the fact. The respondent is ready and willing to file the original memorandum of partition dated 23.12.1996 on the court record and for conclusive proof of the genuineness of the said Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 12 of 28 memorandum of partition the original of the same may be sent to FSL / CFSL and signature of the appellant on the original sale deed dated 09.12.1996 executed by Late Sh. Arur Singh in favour of the appellant which admittedly bears the signature of the appellant. The present appeal is not maintainable by virtue of section 41 of the Specific Relief Act as the appellant / plaintiff has prima facie no personal interest in the demised property and present appeal is also not maintainable as the relief of the permanent and mandatory injunction has been sought by the appellant without seeking the partition and possession. Since the appellant is not in the possession of demised premises, the suit for permanent and mandatory injunction without seeking the partition and first floor of the property is not maintainable. The appellant has not approached to this Court with clean hands and the appeal has been filed completely dishonest and malafide intentions. The appeal is also not maintainable for nonjoinder of necessary parties. If the appellant / plaintiff had any grievance regarding the oral partition, recording of oral partition vide deed dated 23.12.1996 and sale deed dated 19.03.1998, he could have filed a suit for cancellation of documents. The present appeal is not Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 13 of 28 maintainable and liable to dismissed as the whole case of the appellant / plaintiff is contrary to the provisions of Section 91 and 92 of Indian Evidence Act as the terms of the compromise / agreement / disposition of the property reduced to the form of writing. Hence, no oral evidence shall be given which is contrary to the contents of the agreement.
9. The Ld. Counsel for the respondent no. 1 has also filed an additional written submissions and submitted that the appellant in the present case has alleged that the deed of family settlement / MOU cannot be relied upon as the same is unregistered is completely malafide and contrary to the settled principles of law as a family arrangement can be oral and as such no registration is required. The deed dated 23.12.1996 merely records the past family arrangement that has already been recorded between the parties on 18.12.1996.
10. Ld. Counsel for the respondent no. 1 & 2 has also submitted that defendant no. 2 / respondent no. 2 is neither the owner of the said property nor a party to the construction being carried out with respect to the said property and has been wrongly impleaded in the suit. It is, therefore, prayed that the appeal may Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 14 of 28 be dismissed being meritless.
11. Ld. Counsel for the respondent no. 3 i.e West MCD has also submitted that WS has been filed on behalf of the West MCD in the main suit whereby it has been submitted on behalf of the West MCD that as per record maintained in the office of the corporation there is a sanctioned building plan of the property bearing no. J78, Kirti Nagar, New Delhi vide file no. 133/OL/B/KBZ/SP/12/133 dated 11.06.2012 in the name of Smt. Usha Chawla, Sh. Rajinder Singh and Sh. Mohinder Nath Rakheja. Upon receipt of the complaint of the suit property was inspected by the concerned J. E (building) and it was found that the construction work was still under process and suit property has been raised till first floor and there was an excess coverage / deviation against the sanctioned building plan. Upon noticing the same, the show cause notice under the relevant provisions of DMC Act, 1957 was issued to Smt. Usha Chawla, Sh. Rajinder Singh and Sh. Mohinder Nath Rakheja vide UC File no. B/UC/KBZ/2012/300 bearing no. 27074 dated 30.08.2012 for the deviation / excess coverage against sanction building plan no. 133/OL/KBZ/SP/12/133 of stilt, ground floor and first floor. Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 15 of 28 Further necessary action would be taken in due course of time after following the due process of law. Since, the respondent no. 1, 2 and 4 are raising construction against the sanctioned building plan, they should be directed to make the construction strictly according to the sanctioned building plan.
12. The Ld. Counsel for the respondent no. 4 has also submitted that appeal is liable to be dismissed as same has been filed with malafide intentions as the appellant has himself sold the ground floor portion of the demised property to Smt. Shanti devi and thereafter, Smt. Usha Chawla has inherited it from Smt. Shanti Devi. Hence, the respondent no. 4 Smt. Usha Chawla is the owner of the ground floor of the premises and any order passed in this case would affect her right. It is, therefore, prayed that the appeal may be dismissed as same is meritless.
13. I have heard ld. Counsels for the parties and perused the material on record. The Ld. Counsel for the appellant has filed the written submissions, additional written submissions and has also relied on the case laws, the ld. Counsel for the respondent no. 1 & 2 has also filed written submissions, additional written submissions and has also relied on the case laws and I have Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 16 of 28 perused the same also. The case laws relied on behalf of the appellant are as under:
1. Bankey Bihari Vs. Surya Narain @ Munnoo AIR 1999 ALLAHABAD 167;
2. Bhagwan Dass & Others Vs. Girja Shankar Anr. JT2000 (Suppl.) SC 246;
3. Kale & Others Vs. Deputy Director of Consolidation and others, Supreme Court of India Civil Appeal no. 37 of 1968.
and the case law relied on behalf of the respondent no. 1 are as under:
1. Wander Ltd. And Anr. Vs. Antox India P. Ltd. Dated 26.04.1990;
2. Esha Ekta Apartments CHS Ltd. And ors. Vs. The Municipal Corporation of Mumbai and Anr. Dated 29.02.2012;
3. Ashiwin Mehta & Anr. Vs. Union of India & Ors. Dated 08.11.2011;
4. P. Subba Rao & Ors. Vs. Andhra Association, Dated 28.03.2008;
6. Sh. Ramesh Chander Vs. Sh. Suresh Bhasin dated 22.03.2005;
Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 17 of 28
7. Kale & Ors. Vs. Deputy Director of Consolidation dated 21.01.1976;
8. Narender Kante vs. Anuradha Kante dated 15.12.2009
9. Anathula Sudhakar Vs. P. Buchi Reddy dated 25.03.2008.
14. Upon hearing arguments and on the perusal of the material on the record, it is revealed that so far as the appellant / plaintiff is concerned that the appellant and the respondent no. 1 are the real brothers and the appellant is the owner of the ground floor, the respondent no. 1 is the owner of the second floor and first floor portion of the demised premises are in the joint ownership of the appellant and the respondent no. 1. The appellant was in the possession of the demised property as the respondent no.1 is residing at Bangkok, Thailand and electricity meter of the first floor is also installed in the name of the appellant. Surprisingly, when the appellant in the name of July, 2012 had visited the demised property and was shocked to see the same was demolished and construction work was going on. The appellant has immediately contacted the respondent no. 3 i.e West MCD and the local police but the West MCD and local police had not taken any action for reason best known to them. Respondent no. 1 Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 18 of 28 has tried to oust the right of the appellant by way of the forged and fabricated document which has no legal sanctity. The family settlement alleged by the respondent no. 1 is not a legally sustainable document which is required to be registered as per the provisions of The Registration Act. The alleged agreement deed dated 23.12.1996 is forged and fabricated document which is not sustainable under the law. Even the West MCD had admitted that there are deviations of five matters in the floor in its written statement, yet same was not sealed by MCD and ld. Trial court could not notice the same. By dismissing the prayer U/O 39 Rule 1 & 2 in the main suit by ld. Trial Court has encouraged the unnecessary litigation between the parties which is not desirable and even the suit property needed to be preserved during the trial which is must at this stage. The appellant has filed a suit for permanent and mandatory injunction alleging his right over the property and in case any amendment in the suit will be warranted, same can be done by the leave of the Court. There is various question of facts and of laws are involved between the parties and various documents has to be considered for which the trial is required and the case property is to be preserved and accepting the Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 19 of 28 prayer of the appellant at this stage is in the interest of justice.
15. On the contrary, the case of the respondent no. 1 is that the appellant has filed this appeal and main suit in the ld. Trial court with malafide intention as vide settlement / family partition deed dated 23.12.1996, respondent no. 1 has became the absolute owner of first floor and second floor of the premises and the appellant has became the owner of the ground floor portion of the premises. The said family settlement has been acted upon and the appellant has sold out the ground floor portion of the premises. The property has been duly mutated in the West MCD record and they are raising construction in the property with approved sanctioned plan. The family settlement / partition deed is not completely registrable and same is legally sustainable document. The appellant is not in the possession of the demised premises and mere suit for permanent and mandatory injunction do not lie and the appellant should have filed a suit for partition and possession by filing appropriate court fess. The case of the respondent no. 2 is that he is neither the owner of the said property nor a party to the construction being carried out with respect to the said property and he has been wrongly impleaded in the suit.
Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 20 of 28
16. The case of the respondent no. 3 / MCD is that there is sanctioned building plan of the property no. J78, Kirti Nagar, New Delhi and upon receiving the complaint JE (Bldg.) upon inspecting has found that the construction was still in the process and there was coverage and deviation against the sanction building plan. Consequently, the show cause notice under relevant provision of DMC Act has been issued to Smt. Usha Chawla, Sh. Rajinder Nath and Sh. Mohinder Nath Rakheja dated 30.08.2012 and further necessary action would be taken in the due course after following due process of law.
17. After hearing arguments and on the perusal of material on the record it is admitted that the appellant Sh. Gurmeet Singh and the respondent no. 1 Sh. Rajinder Singh are the real brothers. As per the appellant, he is the owner of the ground floor portion, the respondent no. 1 is the owner of the second floor portion and first floor is in the joint ownership of the appellant and the respondent no. 1. The appellant was stated to be in the possession of the premises as the respondent no. 1 is residing at Bangkok, Thailand. The appellant stated to have sold out his portion of ground floor and respondent no. 1 has sold out his portion of Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 21 of 28 second floor and first floor portion as per the appellant is in the joint possession. However, as per the respondent no. 1 that vide family settlement dated 23.12.1996 which was stated to be reduced into writing, the appellant is the owner of the ground floor portion and respondent no. 1 is the owner of the first floor and the second floor portion with roof rights of the demised premises. The appellant stated to have acquired 50 % of the share in the demised premises by sale deed dated 06.12.1996 and acquired ownership of the 50% share dated 23.12.1996 and the respondent no.1 has allegedly requires ownership of the first floor and second floor portion vide memorandum dated 23.12.1996. There is no dispute between the parties so far as the ground floor and second floor is concerned but admittedly the parties are having a dispute so far as the first floor portion of the demised premises is concerned. The appellant and respondent no. 1 are claiming their ownership on the first floor portion of the demised premises. The appellant claims ownership of 50 % portion of the first floor of the demised premises, though, the respondent no. 1 is claiming the ownership of the entire first floor of the demised premises by way of family settlement dated 23.12.1996. Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 22 of 28 Ultimately, the submission of the appellant regarding the ownership of the 50% of the first floor of the premises or the submission of the respondent no. 1 regarding ownership on the entire first floor portion of the demised property requires trial, as their respective claims has to be established. Whether the submissions or the documents of the appellant or the submissions of the respondent no. 1 or his document will hold good in law also requires trial.
18. The appellant claims himself to be the owner of the ½ of the portion of the first floor of the demised premises, the obtaining of the sanctioned building plan without his consent is stated to be bad in law as per the submission of the appellant but as per the submission of the respondent no. 1, the appellant is not having any right, title or interest in the first floor portion of the premises and the respondent no. 1 and other owners of the demised premises has rightly obtained the sanctioned building plan. Hence, this is a controversial fact which needed trial.
19. The appellant / plaintiff consider himself the owner of the ½ of the portion of the first floor on the basis of the sale deed and registered will and the respondent no. 1 claim the full Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 23 of 28 ownership on the first floor of the demised premises on the basis of family settlement dated 23.12.1996 which is stated to have been signed by the appellant and the respondent no. 1 and the signed by the real sister of the parties namely Smt. Ajit Kaur. But the submission of the appellant that why the father of the parties has not signed the alleged memorandum dated 23.12.1996 when he was alive on dated 23.12.1996 as he has expired on 23.03.1999, goes in favour of the appellant at this stage. Even whether the real sister of the parties has actually signed the settlement is also a question of fact to be determined. As per the appellant, the settlement dated 23.12.1996 is manipulated and fabricated document and even it has been submitted on behalf of the respondent no. 1 that the respondent no. 1 is ready to file / place the original memorandum dated 23.12.1996 on the court record for conclusive proof between the parties, the original of the same may be sent to FSL / CFSL or the signatures of the appellant on the partition deed dated 23.12.1996 may be directed to be compared with the signatures of the appellant with the original of the sale deed dated 09.12.1996 executed by Late Sh. Arur Singh in favour of the appellant. Hence, the aforesaid aspect of the Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 24 of 28 parties has also to be determined and the truth has to be revealed.
20. Whether the present suit of the appellant / plaintiff for permanent and mandatory injunction may lie or the appellant / plaintiff has to file a suit for partition and possession can be decided at the time of deciding the maintainability of the suit and not at the stage for the disposal of the application U/O 39 Rule 1 & 2 CPC. As per the submissions on the behalf of the appellant; the appellant may amend the suit suitably after the leave of the court during the trial, but the preservation of the case property at this stage is of prime consideration.
21. It is also an established law of land that the case property has to be preserved during the trial. If the case property is not preserved during the trial and if the appellant / plaintiff succeeds after the trial and if the demised premises is washed away or changed hands after hands, it may become difficult for the Court to give relief to the appellant / plaintiff even after the succeeds after the trial. If the case property is not preserved during the trial, it will breed multiplicity of the litigation between the parties which is neither desirable nor warranted, as to curb the multiplicity of the proceedings between the parties is also a Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 25 of 28 bounden duty of courts. The court has also to keep in mind that this is a dispute between the real brothers only and no third person at this stage is claiming on the first floor portion of demised premises.
22. While the disposal of the application U/O 39 Rule 1 & 2 CPC, the court has to see the prima facie case, the balance of convenience and irreparable loss and under the aforesaid discussion, this court is of the view that the appellant / plaintiff has a prima facie case and balance of convenience lies in his favour and irreparable loss and injury may also likely to be caused to the plaintiff / appellant if the relief claimed in the application U/O 39 Rule 1 & 2 CPC in the main suit is denied to him. So far as the prayer of the appellant regarding not to create any third party interest in the half of the first floor portion of the premises is concerned, the appellant / plaintiff has a good prima facie case, the balance of convenience also lies in his favour and irreparable loss and injury may also to be caused by the appellant if the relief prayed is denied to him. So far as the raising of construction is concerned, the parties are having sanctioned building plan from MCD, but the construction is stated to be having excess coverage, Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 26 of 28 deviation against the sanctioned building plan and necessary action may follow in the due course as per due process of law on behalf of the respondent no. 3 / MCD. Ultimately, whether the excess coverage and deviation is compoundable or non compoundable in nature is yet to be decided by West MCD. The interest of the appellant / plaintiff, respondent no. 1 and other buyers can be protected if the respondents / defendants may construct the building subject to sanctioned plan at their risk and cost.
23. I have highest regard for the case law cited on behalf of the respondent but same has been pronounced in different context and case law cited on behalf of the appellant / plaintiff are favourable to him at this stage.
24. In view of the aforesaid facts, circumstances and discussion held above, the order of ld. Trial court dated 06.09.2012 is set aside and appeal is allowed. Consequently, the respondent no. 1 is restrained from alienating, selling, transferring or creating any third party interest in ½ of the first floor portion of premises bearing no. J78, Kirti Nagar, New Delhi till the disposal of the suit. If the respondent no. 1, 2 and 4 are raising Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 27 of 28 construction in the demised premises even after the intervention of the MCD, same will be at their own risk and cost.
25. The Govt. of NCT of Delhi / DDA / MCD or any competent authority is at liberty to take appropriate action regarding the demised premises as per law.
26. However, nothing stated above shall be treated as an opinion on the merits of the case.
27. The parties and their counsels are directed to appear before ld. trial court on 30.11.2012 at 2.00 p.m for further proceedings. A copy of this judgment alongwith ld. trial court record be sent to the ld. trial court for necessary action at his end.
28. The appeal file be consigned to the record room.
Announced in Open Court
on 19th of November, 2012 ( R. B SINGH )
Additional District Judge01(West)
Tis Hazari Courts, Delhi
Sh. Gurmeet Singh Vs. Sh. Rajinder Singh & Ors. Page 28 of 28