Delhi District Court
Rakesh Gulaya vs Smt. Inderjeet Kaur on 13 December, 2011
IN THE COURT OF MS. NEHA, CIVIL JUDGE03(SOUTH),
SAKET COURT COMPLEX, NEW DELHI
Suit no. 04/10
Unique ID no. 02406C0471832010
IN THE MATTER OF:
Rakesh Gulaya
S/o Sh. Omprakash Gualya
R/o H. No.20, Village Begumpur,
Malviya Nagar, New Delhi110017. ......Plaintiff
Versus
1. Smt. Inderjeet Kaur
W/o Late Sh. Amrik Singh,
R/o H. No.50, Village Begumpur,
Malviya Nagar, New Delhi110017.
2. Sh. Hakimuddin,
R/o H. No.1A, Village Begumpur,
Malviya Nagar, New Delhi110017 ......Defendant
DATE OF INSTITUTION : 23.08.2010
DATE OF RESERVING THE ORDER : 12.12.2011
DATE OF DECISION : 13.12.2011
CS 04/10 Page 1 of 6
ORDER
(On Application under Order 39 rule 1 and 2 CPC)
1. Vide this order I shall decide the application of the plaintiff under Order 39 rule 1 and 2 CPC.
2. The facts in brief as per the plaint necessary for disposal of this application are that the plaintiff is a Deputy Manager with Times of India Group, New Delhi. The plaintiff's grand father was owner/occupier and in absolute possession of Khasra No. 108 admeasuring about 125 Sq. yards situated within laldora of Village Begumpur, Malviya Nagar, New Delhi. In the year 1910 plaintiff's grand father built a two story house in an area of 78 Sqa. Yards and the remaining portion of the property was left open i.e. about 47 Sq. yards.
3. In the year 1981 the grand father of the plaintiff died due to old age. As plaintiff's father was the only son of his grand father therefore all his movable and immovable property came in the share of plaintiff's father. In the year 1985 plaintiff's father Sh. O.P. Gulaya divided the suit property and made a General Power of Attorney and transferred the built up portion of 78 Sq. yards in the name of plaintiff's elder brother Sh. Satish Kumar CS 04/10 Page 2 of 6 Gulaya. Moreover the piece of land measuring about 47 Sq. yards came in the possession of the plaintiff.
4. The plaintiff came to know that house no.52 i.e. 78 Sq. yards Begumpur, Malviya Nagar, New Delhi is sold by defendant no.1 and defendant no.2. Two people claiming to be man of defendant no.2 came and threatened the plaintiff that he should remove his lock from the suit property as he has purchased the house no.52 measuring about approximate 78 square yards. The plaintiff filed complaint to the local police station, on 09.08.2010. The defendants have extended threats to the plaintiff and his family members and the plaintiff has got genuine apprehension in view of the threats extended by the defendants that the defendants in collusion and in connivance with each other may dispossess the plaintiff and take possession of 47 sq. yards . Hence the plaintiff has filed the present suit for permanent injunction.
5. The LR for defendant no.1 has filed WS submitting that Sh. Satish Kumar Gulaya has sold the property to Smt Inderjeet Kaur in the year 1986 and thereafter Smt. Inderjeet Kaur transferred her property in favour of her daughter. With respect CS 04/10 Page 3 of 6 to land admeasuring about 50 Sq. yards in the property bearing no.52, khasra no.108, it is submitted by the defendant that the property was owned by Sh. Jetha Nand Dua who has transferred those 50 Sq. yards of plot in the year 1988 in favour of Smt. Inderjeet Kaur executed GPA and other documents in her favour executed on 08.08.1988. The LR for defendant no.1 submits that they are owner of total land admeasuring about 128 Sq. Yards. The LR have also submitted that as Smt. Inderjeet Kaur was bed ridden she executed will dated 15.09.1999 in favour of one of her child daughter Smt. Amrit Kaur and thereafter Smt Amrit Kaur has transferred the suit property vide registered sale deed in favour of Balwant Kaur. The defendant has submitted that they are in possession of the entire property since 1988. Further the defendant has denied all the allegations of the plaintiff in the plaint.
6. I have perused the material on record and carefully considered the submissions of Ld. Counsels for the parties. It is a settled principle of law that before granting interim injunction a court must satisfy itself on three cardinal principles: CS 04/10 Page 4 of 6 (1) There must exist prima facie case in favour of the plaintiff.
(2) Balance of convenience must lie in favour of the plaintiff. (3) Plaintiff must show that irreparable injury would be caused if relief is not granted.
All three principles must coexist.
7. The plaintiff has placed on record site plan of the suit property, copy of GPA dated 17.12.1985 executed by Sh. Omprakash Gulaya, father of the plaintiff in favour of Sh. Satish Kumar Gulaya, elder brother of the plaintiff. Copy of GPA dated 15.01.1986 executed by Sh. Satish Kumar Gulaya in favour of Sh. Inderjeet Kaur and copy of the complaint dated 09.08.2010 filed by the plaintiff with SHO Malviya Nagar. The fact that house built on 78 Sq. yards of land has been transferred to the deceased defendant no. 1 has not been denied by the plaintiff. Apart from that plaintiff has placed on record copy of complaint filed with SHO Malviya Nagar dated 09.08.2010 complaining against defendant no.2 that he is illegal trying to encroach upon the 47 Sq. Yards of land belonging to the plaintiff. The plaintiff has not placed on record any document to CS 04/10 Page 5 of 6 show that he is in possession of 47 sq yards of land or that the same land belonged to the father or grand father of the plaintiff.
8. On the other hand, defendant has placed on record copy of GPA and other documents executed by Sh. Jethanand Dua in favour of deceased defendant no. 1. There in no document on record to show that plaintiff is owner of 47 sq. yards of land. Mere oral averment is not sufficient. Ld. Counsel for plaintiff has argued that defendant has not placed on record chain of documents to show as to how Sh. Jetha Nand Dua has become owner of the suit property. However this court is of the opinion that to claim that the plaintiff is the owner of 47 sq. yards of land, he must produce documents to show ownership and possession, which plaintiff has failed to produce on record. Plaintiff has failed to prove a prima facie case in his favour. Hence the application is dismissed.
Pronounced in the open court on 13.12.2011 (NEHA) Civil Judge03(South) Saket, New Delhi.
CS 04/10 Page 6 of 6