Delhi District Court
Sh. Santosh Kumar vs Sh. Ashok Datta S/O Sh. Kali Charan on 23 July, 2013
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IN THE COURT OF SH. SHIRISH AGGARWAL, CIVIL JUDGE -01
CENTRAL DISTRICT, DELHI
SUIT NO: 1130/06
UNIQUE CASE ID: 02401C0435802006
Sh. Santosh Kumar
S/o Sh. Kali Charan,
R/o T-25, Gaushala Marg,
Karol Bagh, New Delhi ...Plaintiff
VERSUS
Sh. Ashok Datta S/o Sh. Kali Charan,
R/o 3/8628, Gaushala Marg,
Karol Bagh, New Delhi. ...Defendant
Date of Institution : 18.05.2006
Date of Pronouncing Judgment : 23.07.2013
Suit For Permanent Injunction
JUDGMENT
1. By this judgment, I shall dispose off the suit for permanent injunction. Version of plaintiff
2. The relevant facts as pleaded in the plaint are that the plaintiff is the owner of basement of part of premises No. 2695, Beadon Pura, Karol Bagh, New Delhi, which is the godown of the plaintiff and is shown in red colour in the site plan which is attached with the plaint (hereinafter referred to as "the suit property").
3. It is further pleaded that the plaintiff and defendant are running joint business at the ground floor and at the attached almirah at the shop no. 9, bearing Santosh Kumar Vs Ashok Datta Page No:1/7 Suit No: 1130/06 2 Municipal no. 2695, Beadon Pura, Karol Bagh, New Delhi, but the defendant has no right, title or interest in the suit property, which is shown in red colour in the site plan. This is evident from the sale deed dated 22.04.2004 which was executed by the plaintiff in favour of the defendant.
4. It is further pleaded that the defendant is the real brother of the plaintiff. So he tried to take undue advantage of this relationship and tried to take possession of the suit property, illegally in the morning of 12.05.2006 with the help of his associates. But his action was foiled by the plaintiff and his neighbours. The defendant left the suit property in question threatening the plaintiff that he will come back in the near future with more force to dispossess the plaintiff from the suit property.
5. It is further pleaded that the cause of action arose in favour of the plaintiff and against the defendant on 12.05.2006. The threat to dispossess the plaintiff from the suit property in question is continous. So, the cause of action continues. The plaintiff has therefore filed the present suit seeking injunction to restrain the defendant and his associates from dispossessing the plaintiff from the godown at the basement on the part of premises No. 2695, Beadon Pura, Karol Bagh, New Delhi, which is more specifically shown in red colour in the site plan.
Version of defendant
6. It is pleaded by the defendant in his written statement that the present suit is not maintainable as the plaintiff has no cause of action against the defendant. It is stated that the plaintiff has no right, title or interest in the suit property and the plaintiff has suppressed material facts from the Court. It is stated that the plaintiff is doing his separate business from shop bearing no. 2695/3, Beadon Pura, Karol Bagh, New Delhi and the Santosh Kumar Vs Ashok Datta Page No:2/7 Suit No: 1130/06 3 defendant is doing his own business from another shop bearing no. 2695/9, Beadon Pura, Karol Bagh, New Delhi, which are both part of premises bearing no. 2695 and have no concern with each other.
7. It is further pleaded that the plaintiff had sold the ground floor of the property to the plaintiff and the property below the same was constructed thereafter by the defendant. It is stated that the plaintiff cannot be a claimant to the suit property as the sale deed does not speak of the basement as the same was not in existence at the time of sale of ground floor to the defendant. Therefore, the plaintiff cannot claim any right over the same.
8. Replication has been filed by the plaintiff in response to the written statement filed by the defendant. In the replication, contents of the written statement have been denied while contents of the plaint have been reaffirmed as true and correct.
9. It is further stated that the suit property was constructed by the plaintiff in the year 1998 i.e. before entering into a sale transaction on 22.04.2004. ISSUES
10. Issues were framed by the Ld. Predecessor of the Court by the order dated 17.10.2011:
i) Whether the plaintiff is entitled to the decree for perpetual injunction as prayed for? (OPP)
ii) Relief.
Evidence
11. To prove his case, the plaintiff has examined himself as PW-1 and reiterated Santosh Kumar Vs Ashok Datta Page No:3/7 Suit No: 1130/06 4 the facts as mentioned in the plaint and replication and has relied upon the following documents:
Ex. PW-1/1 : Site plan
Ex. PW-1/2 : Copy of Sale Deed dated 26.07.2004
12. PW1 was duly cross-examined on behalf of the defendant.
13. To defend himself, the defendant examined himself as DW-1 and reiterated the facts as mentioned in the written statement and relied upon following document:
Ex.PW1/A : Sale deed dated 22.04.2004.
14. Final arguments are heard. The record is perused. The issue-wise findings are as under:
ISSUE No. 1
Whether the plaintiff is entitled to the decree for perpetual injunction as prayed for? (OPP)
15. The onus to prove this issue was upon the plaintiff. The case of the plaintiff is that he is the owner in possession of the basement of part of property bearing no. 2695, Beadon Pura, Karol, Bagh, New Delhi. It is stated that the Plaintiff had purchased the Ground Floor, First Floor and the Second Floor of the aforementioned part of property bearing no 2695, Beadon Pura, Karol Bagh, New Delhi on 24/11/1995. It is further the case of the Plaintiff that at the time of purchase by the Plaintiff, the suit property, i.e. Basement was not in existence. It is deposed by the Plaintiff that the Basement was constructed by the Plaintiff in the year 1998. It is also stated by the Plaintiff that he sold the Ground Floor, First Floor and the Second Floor of the aforementioned part of property bearing no 2695, Beadon Pura, Karol Bagh, New Delhi to the Defendant by way of a registered sale deed dated 22/04/2004. It is the case of the Plaintiff that he never sold the Santosh Kumar Vs Ashok Datta Page No:4/7 Suit No: 1130/06 5 suit property to the Defendant and is therefore owner in possession of the same.
16. It is deposed by the Plaintiff that the defendant is threatening to interfere with the possession of the plaintiff over the suit property. By the present suit, the plaintiff has sought permanent injunction to restrain the defendant from dispossessing the plaintiff from the suit property.
17. Written statement has been filed on behalf of the defendant. It is stated in the written statement that the defendant is the owner of the suit property. It is admitted by the Defendant that the Plaintiff had sold Ground Floor, First Floor and the Second Floor of part of the property bearing no. 2695/3, Beadon Pura, Karol Bagh, New Delhi to the Defendant by way of a registered sale deed proved as Ex DW 1/A. However, it is deposed by the Defendant that at the time of this sale, the basement was not in existence and the same was constructed by the Defendant after purchase of rest of the property from the Plaintiff. Therefore, it is the Defendant who is the owner of the suit property and not the Plaintiff. As such, the plaintiff has no right in the suit property.
18. Perusal of pleadings reveals that the plaintiff and defendant have set up rival claims to the ownership of the suit property. The suit has been filed by the plaintiff to protect his possession over the suit property. He claims to be in possession of the suit property as its owner. The defendant has denied the title of the plaintiff. This denial of title is a serious one as the Plaintiff has not led any substantive evidence to show that the suit property was in existence even prior to 22/04/2004. This casts doubt over the title of the plaintiff. The issue cannot be deemed to be a simple one where the plea of either party can be easily brushed aside. The rival contentions of the parties relating to title need to be adjudicated. The issue requires evidence and analysis.
Santosh Kumar Vs Ashok Datta Page No:5/7
Suit No: 1130/06
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19. It is also settled law that an injunction cannot be granted against the true owner. Possession must follow ownership. The law cannot come to the aid of a trespasser in perpetuating and protecting an illegal and unauthorized possession. Even a licencee in the premises is not entitled to any injunction against the true owner. His use of the premises 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.
20. 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.
21. 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.
22. 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.
23. As such, the plaintiff is required to seek declaration of title and injunction instead of the present suit for injunction alone. Adjudication of title is not possible in the Santosh Kumar Vs Ashok Datta Page No:6/7 Suit No: 1130/06 7 present proceedings since the present suit does not seek declaration of title and merely seeks to protect the possession of the plaintiff. Despite being aware that the defendant is claiming a different title, the plaintiff has chosen not to seek declaration of his ownership. Having refrained from seeking declaration of title, the present simplicitor suit for protection of possession is not maintainable.
24. In this behalf, reference may be made to the case of Anathula Sudhakar v. P. Buchi Reddy, AIR 2008 SC 2033, in which it has been laid down that when there is cloud over title, the person in possession must seek declaration of title and not mere protection of possession. It was observed thus:
"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction".
25. For these reasons, in my opinion, the plaintiff has failed to make out a case in his favour. The suit is not maintainable. This issue is therefore decided against the plaintiff and in favour of the defendant.
ISSUE NO. 2 Relief
26. In view of the above mentioned discussion, the suit of the plaintiff is dismissed with costs in favour of the defendant and against the plaintiff. Decree sheet be prepared accordingly.
27. File be consigned to record room.
(ANNOUNCED IN THE OPEN COURT) (SHIRISH AGGARWAL) ON 23rd of July 2013 CIVIL JUDGE-01/CENTRAL ALL PAGES SIGNED DELHI Santosh Kumar Vs Ashok Datta Page No:7/7 Suit No: 1130/06