Delhi District Court
S/O Sh. Jai Parkash vs Mahender Singh on 23 November, 2016
IN THE COURT OF SH. SIDHARTH MATHUR,
SCJ Cum RC (NORTH), ROHINI COURTS, DELHI.
TEJPAL RANA
S/o Sh. Jai Parkash
R/o H. No. 56,
V. P.O. Shahbad Daulatpur,
Delhi.
.............. Appellant
Through
Sh. Sanjay Rathi,
Advocate.
VERSUS
1. MAHENDER SINGH
Sh. Bhagwan Singh
R/o Village Nilothi,
Near Nangloi,
Delhi.
2. KAPTAN SINGH
S/o Sh. Karan Singh
At Rathi Properties,
Prahlad Vihar,
Sector - 25, Rohini,
Delhi.
3. YOGESH KUMAR CHANDELA
S/o Sh. Dhan Singh Chandela
R/o 13/439,
Sunder Vihar,
Paschim Vihar,
New Delhi.
(MCA No. 12/16) (Page No. 1/10)
4. RAM MURTI SHARMA
S/o Not Known
At E-8, Prahlad Vihar,
Sector - 25, Rohini,
Delhi.
............. Respondents
Through
Sh. V. P. Rana,
Advocate.
JUDGMENT
1. New No. : 26/16.
2. Under Section : Misc. Appeal.
3. Date of Institution : 19.08.2016.
4. Date of Final Order : 23.11.2016.
5. Final Order : Appeal Dismissed.
BRIEF FACTS
1. I shall be referring the parties with the nomenclature they had before the Trial Court. The plaintiff is the appellant herein.
Brief facts be discussed first for a better understanding. A) PLAINT
2. The father of the plaintiff was a co-sharer in Khasra No. 271, Village Shahbad Daulat Pur, Delhi which comprised of total 66 Bigha - 3 Biswa land, that is 1323 Biswa. The share of plaintiff's father was 287 Biswa. He individually sold 127 Biswa out of his share and 40 Biswa jointly with his brothers. Thus a total of 167 Biswa was sold by him. He was left with 120 Biswa. This left over was inherited by the plaintiff & his two brothers after his death to the extent of 40 Biswa each. The 40 Biswa of open and vacant land of (MCA No. 12/16) (Page No. 2/10) the plaintiff falling in Khasra No. 271 (66-3) is the bone of contention in the suit, which is yet to be partitioned.
3. The defendants intends to drive the plaintiff out of his suit property. They lodged FIR No. 598/13 u/s 379 IPC against his son to achieve their nefarious design.
Hence, the suit for Permanent Injunction for restraining the defendants from dispossessing the plaintiffs ; from creating any third party interest and from raising unauthorised construction came into being.
B) WRITTEN STATEMENT
4. The defendants disputes the claim of the plaintiff as being the co-sharer in the suit property. They say that plaintiff's father was the owner of 5.51 Bigha of land ; that the plaintiff & his two brothers inherited 2 Bigha land i.e. 40 Biswa on his death ; that the defendants purchased the suit property from the plaintiff's father & brothers and that they are now in possession.
They also revealed that plaintiffs father had sold 5 Bigha 6 Biswa of land to various persons in whose favour the mutation has also been sanctioned. Meaning thereby, the plaintiffs father sold land in excess of his share whereby plaintiff has no right, title or interest in the suit property in any capacity whatsoever.
C) INJUNCTION ORDER U/O 39 RULE 1 AND 2 CPC
5. The trial court dismissed the application of the plaintiff for Temporary Injunction seeking to restrain the defendants from dispossessing him ; from creating any third party interest and from raising any unauthorised construction vide order dated 01.07.2016.
This order is being challenged before this Court.
(MCA No. 12/16) (Page No. 3/10)
FINDINGS IN APPEAL
6. The plaintiff alleges that the Trial Court wrongfully relied on the sale documents of the defendants, which were useless and did not convey any title in the light of the judgement of the Supreme Court delivered in "Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana and Anr." 2011 (X) AD (SC) 365" .
I have gone through the sale documents of the defendants as well as the revenue record filed by the plaintiff. The plaintiff is claiming to be a co-sharer on the basis of the Khatoni documents i.e. the Mutation entries pertaining to the year 1983-84 & 1989-90. On the comparative analysis, the sale documents of the defendants are pretty recent. No doubt, the sale documents of the defendants involves no sale deed and rather they comprises of GPA & Agreement to Sell etc. These documents though may not create absolute title as per the judgement of the Supreme Court in Suraj Lamp's case (supra) but they can certainly be relied by the defendants not only to show their physical possession but also to protect the same as per Section 53 A TPA. Reliance in this regard can be placed on the cases of "Ramesh Chand Vs. Suresh Chand & Anr." 2012 (III) AD (Delhi) 493 and "Vaneeta Khanna and Anr. Vs. Rajeev Gupta & Ors." CS (OS) No. 1200/2006 decided by Delhi High Court on 01.10.2015. In both these citations, the Delhi High Court discussed the judgement of Suraj Lamp's case (supra) and held that the Supreme Court did permit the use of Section 53 A TPA for the transactions involving GPA, Agreement to Sell and Will etc. It was also held by the High Court that these kind of documents depending on the circumstances may create a better title, if not absolute title, in favour of the vendee.
Coming back to the facts of the present case, the plaintiff is relying upon the mutation entries to fortify his claim of co-sharer. It is well settled that such entries are no proof of title. Reliance in this regard can be placed on "Suman Verma Vs. Union of India"
(MCA No. 12/16) (Page No. 4/10) 2004 (12) SCC 58 and "Sabina Sablok Vs. Promila Mehra and Anr." CS (OS) 42/2010 decided by the Delhi High Court on 12.03.2014. On the comparative analysis of these mutation entries with that of the sale documents of the defendants, undoubtedly, the sale documents of the defendants are on a better footing whereby it can be said that at this stage those documents create a better title, if not absolute, in favour of the defendants, particularly, when neither their execution, nor their veracity has been challenged by the plaintiff in his pleadings, nor any separate declaration/cancellation of these documents has been sought by him till date. This omission on his behalf suggests that their execution is not disputed by him. The plaintiff is simply challenging these documents on the basis of Suraj Lamp's case (supra), which argument has been repelled by the Court.
Thus no fault can be found with the observations of the Trial Court placing reliance on these documents of the defendants.
7. The plaintiff alleges that the Trial Court wrongfully relied upon the judgements of the Sabina Sablok's case (supra) and Suman Verma's case (supra) for holding that the plaintiff cannot have any title on the basis of mutation entries.
As already been observed herein above, the plaintiff cannot claim title merely on the basis of mutation entries particularly when he has not specifically challenged the execution or veracity of the sale documents of the defendants either in his pleadings or by way of declaration/cancellation. In view of these sale documents, the mutation entries certainly takes a back stage and reliance on them to discard these sale documents would be a dangerous precedent. The mutation entries would have assumed significance had this case been filed for seeking partition. But since this case is between a so called co- sharer and a subsequent purchaser, the sale documents executed by the other co- sharers including the predecessors of the plaintiff would assume precedence over the (MCA No. 12/16) (Page No. 5/10) hollow mutation entries. Thus the reliance over the aforesaid two citations by the Trial Court cannot be faulted with.
8. The plaintiff alleges that he is in uninterrupted possession of the suit property as per his mutation entries whereby the Trial Court wrongfully observed that he is not entitled for any temporary injunction. He also claimed that the trial court wrongfully observed that title follows possession in case of vacant land after rejecting his revenue record.
As already been observed herein above, the mutation entries of the plaintiff falls weak in comparison to the sale documents of the defendants. The physical possession of the suit property otherwise also does not appear to be with the plaintiff. I have gone through the respective photographs filed by the parties. The plaintiff though has filed the photographs of the suit property but in none of his photographs, he is seen or shown to be standing over or inside the suit property. All his photographs are from a distance of the suit property. On the other hand, the photographs of the defendants clearly shows them to be standing over and inside the suit property. If the plaintiff is in the physical possession, then what prevented him from taking the photographs while he was standing over/inside the suit property.
The photographs of the defendants also shows their construction material lying at the suit property, which is one more circumstance to assume their physical possession particularly in the light of the relief sought by the plaintiff that defendants be restrained from raising unauthorised construction. There was no need to seek this relief if the defendants were not in physical possession or if the plaintiff was in possession.
Further admittedly the suit property is an open vacant land wherein undoubtedly the possession would follow title. Reference in this regard was rightly made by the Trial Court on the judgement of the Supreme Court delivered in the case of "Anathula Sudhakar Vs. P. Buchi Reddy" 2008 (4) SCC 594. Since the defendants appears to be (MCA No. 12/16) (Page No. 6/10) having a better title at least at this stage, thus their possession would follow their title in view of the Anathula's case (supra).
Thus, no fault can be found with the observations of the Trial Court thereby repelling the plaintiff's contention of being in physical possession.
9. The plaintiff claims that the observations of the Trial Court that the plaintiff ought to have filed a suit for partition and declaration were misconceived. He also alleged that the subsequent purchaser cannot oust the co-sharer as per u/s 44 TPA without getting partition. He relied upon "Raj Khurana Vs. Amrawati Madan and Ors." 2009 (4) CCC 465 (Delhi) to bolster his claim.
I do not find any infirmity with these findings. The plaintiff admits the suit property to be joint and yet to be partitioned. Going by this pleading for the sake of arguments, no doubt paves way for him to first seek partition. He cannot seek injunction simplicitor in absence of partition due to the bar created u/s 41 (h) SRA. Further he does not appears to be in possession, nor appears to have a better title. Then in such like circumstances, he ought to have sued for Partition, Declaration and Possession to assert his rights over the suit property.
The reliance by the plaintiff over Section 44 TPA is also misplaced whereby the citation of Raj Khurana's case (supra) is also not applicable in the present case.. This provision nowhere lays down that the subsequent transferee can not assert his possession without seeking partition. It lays down that the subsequent transferee shall be entitled to all the rights of joint possession and common enjoyment as that of the transferor co-sharer and that it is only in a dwelling house, that such transferee cannot claim joint possession or common enjoyment without enforcing partition. Meaning thereby in an open land like the suit property, the defendants can enforce and assert their rights without claiming partition. Further on the other hand, a co-sharer like the plaintiff (MCA No. 12/16) (Page No. 7/10) who does not appears to be in possession ought to have sued for Partition & Possession to enforce his rights. This suit for injunction simplicitor is a sheer waste being a half baked litigation.
Further the defendants as the subsequent transferee have stepped into the shoes of the transferor co-sharers, if the suit property is still assumed to be HUF. They now are to be treated at par with other co-sharers. It is well settled that one co-sharer cannot seek injunction simplicitor against the other co-sharers without seeking partition. Reference in this regard can be made to the judgement of "Bachan Singh Vs. Swaran Singh" AIR 2001 (P&H) 112.
Thus the aforesaid claims of the plaintiff impinging the observations of the Trial Court are rejected.
10. The plaintiff claimed that when a subsequent purchaser buys any portion of the joint property, then he cannot claim to be in possession of any specific Khasra no. because the transferee co-sharer could not have sold any specific Khasra no. out of the joint property. He further claims that in such like circumstances, the subsequent purchaser cannot interfere in the joint possession of the other co-sharers without first seeking separation of his share vide a civil suit.
I am not in agreement with this argument for the obvious reason once I have already observed herein above that the disputed suit property appears to be in the exclusive possession of the defendants. He cannot be allowed to hide behind his argument that the subsequent purchasers cannot interfere in his joint possession. When he does not appears to be in possession, there arises no question of any joint possession or common enjoyment. The plaintiff has to enforce his right of joint possession and common enjoyment by seeking partition and possession. For the reasons best known to him, these reliefs have not been sought till date thereby raising a serious question marks (MCA No. 12/16) (Page No. 8/10) on the maintainability of his suit. One cannot claim injunction on the basis of half baked suits.
Thus the aforesaid arguments of the plaintiff fails to impress him.
11. I must additionally observe before parting with the appeal that the Trial Court was correct in saying that the identification of the suit property in the manner made by the plaintiff is under serious doubt. His site plan is incomplete which does not disclose the exact particulars required to identify the suit property. He also failed to explain as to how come he came into the possession of the rectangular portion of Khasra no. 274 when admittedly there had been no partition till date.
On the other hand, the twin site plans filed by the defendants are self explanatory and quite detailed whereby the findings of the Trial court in respect thereof are also upheld.
12. The plaintiff lastly relied upon the citations of "Risal Singh & Ors. Vs. Shri Bhagwan and Anr." 2007 (2) CCC 793 (P&H), "Om Pal Singh & Anr. Vs. Raj Krishna & Anr." 2010 (3) CCC 457 (Allahabad), "Awadh Narain Vs. IVth Addl. District Judge, Jaunpur and Ors." 2002 (1) CCC 347 (Allahabad), "Kuldeep Singh Vs. Jai Singh & Ors." 2008 (4) CCC 803 (P&H), "Vansh Bhushan Vs. Addl. District Judge, Court No. 5, Sultan Pur" 2010 (4) CCC 88 (Allahabad) to bolster his claim for injunction.
The citations of Risal Singh's case (supra), Om Pal Singh's case (Supra), Avadh Narain's case (supra), Kuldeep Singh's case (supra) and Vansh Bhushan's case (supra) deals with the rights of co-sharers in undivided HUF. But none of these are of any help to the case of the plaintiff for the obvious reason that in the light of the sale documents of the defendants, the joint property status of the suit property is itself under doubt.
(MCA No. 12/16) (Page No. 9/10)
RELIEF
13. For the reasons assigned herein above, I do not find any fault or infirmity with the order of the Trial Court dated 01.07.2016 whereby the application of the plaintiff for interim injunction was rejected.
The appeal is consequently dismissed.
Nothing observed herein above shall tantamount to my observations on the merits of the respective claims of the parties.
One copy of this judgement be kept in the TCR, which be sent back. Decree sheet be accordingly prepared.
The appeal file be consigned to record room after due compliance.
Announced in the Open Court on 23.11.2016 (SIDHARTH MATHUR) SCJ-cum-RC (North), Rohini, Delhi.
(MCA No. 12/16) (Page No. 10 /10)