Delhi District Court
Smt. Shakuntala Rathi vs Sh. Balkishan on 27 February, 2015
IN THE COURT OF SH. ARUN KUMAR GARG: CIVIL JUDGE:
SOUTH WEST DISTRICT: DWARKA COURT: NEW DELHI
C.S No: 215/14
Unique case ID No: 02405C0222522014
IN THE MATTER OF
Smt. Shakuntala Rathi,
W/o Sh. Krishan Singh Rathi,
R/o House no. 305, Khasra no. 42,
Village Rajpur Khurd,
Post Office IGNOU,
New Delhi 110068 ... Plaintiff
Versus
1. Sh. Balkishan
R/o House no. 150,
Village & P.O. Kakrola
New Delhi 110045
Also at:
Flate no. 323, Block D
Vijay Veer Awas Yojna, Kargil Apartment
Sector 18, Dwarka, New Delhi
2. Mrs. Savita,
W/o Sh. Balkishan,
R/o House no. 150,
Village & P.O. Kakrola
New Delhi 110045
CS No. 215/14
Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 1 of 23
3. Sh. Inderjeet Singh,
S/o Sh. Raghuvir @ Paltu
R/o Village Pochanpur,
PO Sector 23, Dwarka,
New Delhi 110077
Also at :
Flat no. 602, Block A,
Fakhruddin Ali Apartment,
Sector 10, Dwarka,
New Delhi
4. Sh. Ishwar Singh,
S/o Sh. Subhash Chand,
R/o Village Pochanpur,
PO Sector 23, Dwarka,
New Delhi 110077
5. Sh. Mehtab Singh,
S/o Late Sh. Sialu Ram
R/o Village Pochanpur,
Balmiki Mohalla,
PO Sector 23, Dwarka,
New Delhi 110077
6. Sh. Bhim Singh @ Surender Singh,
S/o Late Sh. Raghubir Singh Sahrawat,
R/o Village Pochanpur,
PO Sector 23, Dwarka,
New Delhi 110077 ... Defendants
CS No. 215/14
Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 2 of 23
SUIT FOR PERMANENT INJUNCTION
ORDER
1. By this order I will dispose of the issue regarding the maintain ability of the present suit. The present suit has been filed by the plaintiff seeking permanent injunction restraining the defendant nos. 1 to 4 from dispossessing the plaintiff from the suit proper ty and from claiming any right over the suit property.
2. The case of the plaintiff as per plaint is that plaintiff is the lawful owner and in possession of the suit property bearing Plot no. 145, measuring 120 sq. yds. situated in Khasra no. 7/4, situated at Village Pochanpur, PO Sector 23, Dwarka, New Delhi. According to the plaintiff she had purchased the suit property from defendant no. 6 for a sale consideration of Rs. 50,000/ through conventional documents such as registered CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 3 of 23 GPA, Will, Agreement to Sell, affidavit, possession letter and receipt all dated 10.03.2003 and since then she is in possession of the suit property. The defendant no. 6 in turn has purchased the suit property from one Sh. Arun Kumar vide similar set of documents dated 07.12.1993 and Sh. Arun Kumar had in turn purchased the suit property from defendant no. 5 through a set of similar documents dated 10.01.1992 whereas defendant no. 5, according to the plaintiff, is the original allotee of the suit property in as much as the same was allotted by Gram Panchayat, Pochanpur in favour of defendant no. 5 vide land distribution certificate dated 18.11.1987. The immediate cause of action for filing of the present suit by the plaintiff as per plaint is that on 18.08.2014 when the plaintiff visited the suit property, defendant nos. 1 to 4 came there and claimed their right in the suit property alleging that they had purchased the suit property from defendant no. 5 in the year 2006. According to the plaintiff, defendant no. 5 had no right to sell the property CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 4 of 23 as the plaintiff had already become owner and in possession of the suit property in the year 2003. Subsequently, according to the plaintiff, the defendant tried to take over the illegal and unlawful possession of the suit property by constructing a wall in the suit property on 02.09.2014 though according to the plaintiff, she was able to protect her possession over the suit property but there is an immediate danger that the defendants may again trespass and try to encroach her property. The plaintiff has accordingly filed the present suit for permanent injunction restraining the defendant nos. 1 to 4 from dispossessing the plaintiff from the suit property and also from claiming any right over the suit property.
3. On receipt of the plaint, it was inquired by the court from the plaintiff as to what is the nature of the suit property i.e. whether the suit property is a built up property or the same is a vacant plot of land. It was submitted by the plaintiff that the suit property is a vacant plot of land and as such it was observed by CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 5 of 23 the court vide order dated 15.09.2014 that the present suit of the plaintiff for injunction simplicitor is not maintainable in view of judgment of Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. AIR 2008 Supreme Court 2033. Proxy counsel for plaintiff sought adjournment to advance arguments on the maintainability of the present suit on the ground that main counsel for plaintiff was not available on that day. Subsequently, arguments on the point of maintainability of the suit were heard on behalf of the plaintiff on 09.02.2015 and the matter was fixed for orders for today. A liberty was sought by counsel for plaintiff on 09.02.2015 to file written submissions alongwith copy of case law in support of his submission within a week from the last date of hearing. No written submissions have been filed on behalf of the plaintiff in terms of the aforesaid liberty.
4. Today, proxy counsel for plaintiff has appeared and filed brief written submissions on behalf of the plaintiff on the point of CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 6 of 23 maintainability of the present suit alongwith copy of following judgments:
i. Krishna Ram Mahale (dead) by his LRs. Vs. Shobha Venkat Rao AIR 1989 SC 2097.
ii. Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. AIR 2008 Supreme Court 2033, iii. Suraj Lamp and Industries Pvt. Limited Vs. State of Haryana and Another (2012) 1 Supreme Court Cases 656.
5. It is submitted by the counsel for plaintiff that even if by virtue of terms and conditions of allotment letter dated 18.11.1987 is sued by Gram Panchayat, Pochanpur the original allotee i.e. de fendant no. 5 was restrained from transferring the suit property to any third party, the present suit filed by the plaintiff for protection of his possession on the basis of title documents executed by transferee of defendant no. 5 cannot be held to be not maintainable. He submits that consequences of violation of the aforesaid condition by the original allottee are that the Gram CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 7 of 23 Sabha could have recovered the possession of the suit property from the allottee within the period of three years from the date of execution of title documents by defendant no. 5 in favour of Sh. Arun Kumar. Thus, according to him, since the aforesaid remedy available to the Gaon Sabha has already become time barred, the plaintiff has acquired a good title to the suit property and as such she has got a right to possess the suit property against all the defendants.
6. As far as the ownership of the plaintiff over the suit property on the basis of GPA, Will, Agreement to Sell, affidavit, possession letter and receipt all dated 10.03,2003 is concerned, it is submitted by the counsel for plaintiff that since the aforesaid documents were executed by defendant no. 6 in favour of the plaintiff much prior to the date of judgment in Suraj Lamp and Industries Pvt. Limited Vs. State of Haryana and Another (2012) 1 Supreme Court Cases 656, the claim of ownership by the plaintiff on the basis of aforesaid documents is not affected CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 8 of 23
by the said judgment. He has relied upon the observations
made by Hon'ble Supreme Court in para no. 26 and 27 of the aforesaid judgment. It is further submitted by counsel for plaintiff that no cloud has been raised over the title of the plaintiff in as much as defendant no. 1 is trying to make a false claim in order to forcibly disposses the plaintiff from the suit property. According to him, there is no requirement that the plaintiff should seek a declaration or possession in respect of the suit property in as much as, according to him, the plaintiff by virtue of the documents on record and averments in the plaint had shown that she is the lawful and bonafide purchaser as well as in possession of the suit property. He has relied upon the observations of Hon'ble Supreme Court in para no. 11.1 and para 17 of the judgment in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. AIR 2008 Supreme Court 2033. According to him, the court cannot at this stage go into the aforesaid issue as to whether the plaintiff is or is required to file CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 9 of 23 the suit for declaration and possession in as much as the defendants have not yet been summoned by the court to respond to the averments made in the plaint. Counsel for plaintiff has also relied upon judgment of Hon'ble Supreme Court in Krishna Ram Mahale (supra) in support of his submission that although in view of documents dated 10.03.2003 executed by defendant no. 6 in favour of the plaintiff, plaintiff is lawful owner in possession of the suit property, however, even if he had no right to remain in the property, he cannot be dispossessed even by the true owner of the property except by recourse to law and as such plaintiff is entitled to protection of her possession from the defendants.
7. I have heard the submissions made on behalf of the plaintiff and have also perused the record. I have also carefully gone through the judgments of Hon'ble Supreme Court which have been relied upon by the plaintiff and by this court in this order dated 15.09.2014. The plaintiff has categorically pleaded in the CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 10 of 23 plaint that she is the lawful owner in possession of the suit property. However, in view of judgment of Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Limited Vs. State of Haryana and Another (2012) 1 Supreme Court Cases 656(2), the documents relied upon by the plaintiff in support of her ownership i.e. the registered GPA, Will, Agreement to Sell, affidavit, possession letter and receipt all dated 10.03.2003 do not confer any title on the plaintiff over the suit property. I also do not find any force in the submission made on behalf of the plaintiff that observations made in para no. 26 and 27 of the judgment make the aforesaid judgment inapplicable to the present case. The observations made by Hon'ble Supreme Court in para no. 26 and 27 of the aforesaid judgment are reproduced herein below for ready reference:
"26. We have merely drawn attention to and reiterated the wellsettled legal position that SA/ GPA/ will transactions are not "transfers" or "sales"and that such transactions cannot be treated as completed transfers or conveyances.CS No. 215/14
Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 11 of 23 They can continue to be treated as existing agreements of sale. Nothing prevents the affected parties from getting registered deeds of conveyance to complete their title. The said "SA/ GPA/ will transactions" may also be used to obtain specific performance or to defend possession under Section 53 A of the TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/ leases by development authorities. We make it cler that if the documents relating to "SA/ GPA/ will transactions" have been accepted/ acted uon by DDA or other developmental authorities or by the municipal or Revenue Authorities to effect mutation they need not be disturbed, merely on account of this decision.
27. We make it clear that our observations are not intended to in any way affect the validity of sale agreements and powers of attorney executed in genuine transactions. For example, a person may give a power of attorney to his spouse, son, daughter, brother, sister or a relative to manage his affairs or to execute a deed of conveyance. A person may enter into a development agreement with a land developer or builder for developing the land either by forming plots or by constructing apartment buildings and in that behalf execute an agreement of sale and grant a power of attorney empowering the developer to execute agreements of sale or conveyances in regard to individual plots of land or undivided shares in the land relating to apartments in favour of prospective purchasers. In several States, the execution of such development CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 12 of 23 agreements and powers of attorney are already regulated by law and subjected to specific stamp duty. Our observations regarding "SA/ GPA/ will transactions" are not intended to apply to such bona fide/genuine transactions."
8. It has been categorically observed in para no. 26 of the aforesaid judgment by Hon'ble Supreme Court that the SA/ GPA/ Will transactions are not the transfers or sales and same cannot be treated as completed transfers and conveyances and they can only be treated as existing agreement of sale. The parties can get the registered deeds of conveyance to complete their title. Besides, the party in whose favour the said documents are executed can also use the same to obtain specific performance or to defend his possession under Section 53 A of the Transfer of Property Act. It has nowhere been observed in the aforesaid judgment that if documents are executed before the date of aforesaid judgment, they may be treated as completed transfer/ sale. The Hon'ble Supreme Court has merely carved out an exception to the effect that the party can CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 13 of 23 rely on the documents executed before the date of aforesaid judgment to apply for regularization of the allotment/ leases by the development authorities and if such documents have been executed/ acted upon by DDA or other development authorities or by Municipal or Revenue Authorities to effect mutuation they need not be disturbed. In the present case, certainly the documents have been executed prior to passing of the aforesaid judgment, however, the said documents can only be used for specific purposes mentioned in para no. 26 of the judgment and the said documents can still not be treated as completed transfer/ sales. The plaintiff is not relying on the aforesaid documents to obtain the specific performance nor is he relying on the said documents to defend her possession under Section 53A of the Transfer of Property Act. It is settled legal position that the Section 53 A of the Transfer of Property Act can only be used as a shield and not as a sword and as such the plaintiff cannot rely upon the documents to file a suit for injunction on CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 14 of 23 the basis of said documents. Moreover, even an agreement to sell executed after 01.07.2002 can be relied upon by a party to defend his/ her possession under Section 53A of the Transfer of Property Act, if the said agreement to sell is registered in view of provisions of Section 17 (1) (A) of Registration Act, 1908. Admittedly, the agreement to sell in the present case is not registered though the same is dated 10.03.2003 and hence the same cannot be relied upon by the plaintiff in order to defend her possession even under Section 53A of the Transfer of the Property Act. Besides a bare perusal of the plaint shows that the case is also not covered by the observations in para no. 27 of the said judgment.
9. Now coming to the claim of the plaintiff as to her settled possession over the suit property. Admittedly the suit property is a vacant plot of land and accordingly is governed by the principle that the possession follows title. Thus, the plaintiff can be taken to be in possession of the same only if she is able CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 15 of 23 to establish her title over the suit property. As has already been observed the plaintiff has not been able to show her title over the suit property and as such she cannot be taken to be in possession of the same. In a suit for injunction in which the issue is one of possession, it becomes necessary for the court to examine and determine the title as a prelude for deciding the de jure possession and in cases where the title is clear and simple, the court may venture a decision on the issue of title even in a suit for mere injunction. In other cases, the proper course is to relegate the plaintiff to the remedy of full fledged suit for declaration and consequential reliefs. It has been alleged by the plaintiff in para no. 7 of her plaint that the title and possession of the plaintiff is being threatened by defendant no. 1 to 4 on the basis of some forged and fabricated documents in collusion with defendant no. 5. It is submitted by counsel for the plaintiff that in view of averments made by the plaintiff in para no. 5 and 6 of the plaint, no cloud can be said to have been raised upon CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 16 of 23 the title of the plaintiff. I do not find any force in the aforesaid submissions made by the counsel for plaintiff in as much as a cloud is said to have been raised over a person's title in either of two situations i.e. either there is some apparent defect in the title of the plaintiff over the suit property or there is some prima facie right of third party over it. The present case falls in the first category in as much as in view of judgment of Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Limited Vs. State of Haryana and Another (2012) 1 Supreme Court Cases 656 there is apparent defect in the title of the plaintiff over the suit property and in view of judgment of Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594, an action for declaration is remedy to remove the cloud over the title of the plaintiff as to the suit property. While taking the aforesaid view, I am duly supported by the following observations made by Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 17 of 23 Ors. (2008) 4 SCC 594 at Pgs 604605 (Para 14 to 16):
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denied the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 18 of 23 the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/ licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 19 of 23 is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a fullfledged suit for declaration and consequential reliefs."
10. It has been submitted by the counsel for plaintiff that para 11.1 and para 17 (para 13.1 and para 21 in judgment reported in SCC) of the judgment in Anathula Sudhakar Vs. P. Buchi Red dy (Dead) by LRs and Ors. (2008) 4 SCC 594, supports the case of the plaintiff that the present suit for simplicitor injunction is maintainable. A bare perusal of the para no. 13.1 shows that the Hon'ble Supreme Court has merely referred to the general principles as to when mere suit for permanent injunction will lie or when it is necessary to file a suit for declaration and or possession with injuction as a consequential relief. On the other hand, in para no. 21, the Hon'ble Supreme Court has summarized the legal position which was discussed by the CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 20 of 23 Hon'ble Supreme Court in para no. 14 to 20 of its judgment. I have already reproduced para no. 14, 15 and 16 hereinabove. The observations made by Hon'ble Supreme Court supports the view taken by me as to the maintainability of the present suit for simplicitor injunction of the plaintiff in the facts and circumstances of the present case. Thus, in my considered opinion, there is no point summoning the defendant and to direct the defendant to file a response to the case of the plaintiff when as per averments made by the plaintiff in her plaint, the court has come to a conclusion that a proper remedy for the plaintiff is to file a suit for declaration with consequential reliefs in the light of the authoritative pronouncements of Hon'ble Supreme Court in Suraj Lamp and Industries Pvt. Limited Vs. State of Haryana and Another (2012) 1 Supreme Court Cases 656 and in Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. (2008) 4 SCC 594.
11. There cannot be any dispute about the proposition of law set CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 21 of 23 forth by Hon'ble Supreme Court in Krishna Ram Mahela (supra) relied upon by learned counsel for plaintiff however, as has already been observed, the plaintiff has not been able to prima facie show his possession over the suit property much less the settled possession and as such the aforesaid judgment does not assist the case of the plaintiff.
12. It has been held by Hon'ble Mr. Justice V.R. Krishna Iyer in T. Arvindandam Vs. T.V. Sathpal & Anr. (1977) 4 SCC 467 at page 470 para 5:
"The learned Munisif must remember that if on a meaningful not formal reading of the plaint it is manifestly vexations, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order 7 Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to irresponsible to law suits."
13. Thus in view of the aforesaid discussions, in my considered CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 22 of 23 opinion, on a meaningful and not formal reading of the plaint, the plaint does not disclose a clear right to sue in favour of the plaintiff. The present suit in the present form is not maintainable in as much as the plaintiff is required to file a suit for declaration with consequential reliefs with or without injunction. The plaint of the plaintiff is accordingly rejected.
14. Ordered accordingly.
Announced in the open court on this 27th day of February, 2015 This order consists of twenty three signed pages.
(Arun Kumar Garg) Civil Judge(SW)/Dwarka Courts New Delhi/27.02.2015 (akn) CS No. 215/14 Shakuntala Rathi Vs. Balkishan & Ors.
Order dated 27.02.2015 Page no. 23 of 23