Delhi District Court
Ram Saran vs Om Prakash on 9 October, 2013
IN THE COURT OF MS. SHAMA GUPTA: CIVIL JUDGE : 16
CENTRAL
TIS HAZARI COURTS : DELHI
Suit No. 189/13
Ram Saran
.......... Plaintiff
VERSUS
Om Prakash
.........Defendant
O R D E R
1. Vide this order, I shall dispose off the application U/0 XXXIX Rule 1 and 2 CPC filed by the plaintiff seeking interim injunction against the defendant no.1, thereby restraining the defendant no.1, his family, agents etc. from surrendering the possession of second floor portion of property bearing Municipal No. 1929, Gali MataWali, Kinari Bazar, Delhi110006 (herein after wards referred as suit property) in favour of the defendant no. 2 or to any other person till the final disposal of the suit.
2. Briefly stated the facts as averred by the plaintiffs in the plaint which is stated to be read as part of the present application are that the father of the plaintiffs and the defendant no.1 namely Sh. Nathu Ram was lawful tenant in respect of the first and second floor of property bearing Municipal No. 1929, Gali Mata Wali, Kinari Bazar, Delhi110006 (herein after wards Suit no. 189/13 Ram Saran Vs. Om Prakash 1/7 referred as tenanted premises) at monthly rent of Rs.70/ p.m.
3. It is pleaded that Sh. Nathu Ram had died more than three decades ago leaving behind five sons including the plaintiffs, defendant no.1 and three daughters. It is averred that Sh. Nathu Ram died in the tenanted premises as a contractual tenant therefore, all the legal heirs of late Sh. Nathu became cotenants thereof and out of the five sons of late Sh. Nathu, Sh. Shyam Lal died several years ago and his legal heirs shifted from tenanted premises about 10 years ago.
4. Similarly, one other legal heir of Late Sh. Nathu namely Sh. Govind Lal had also died and his legal heirs also shifted from the tenanted premises and the 3 daughters of Sh. Nathu got married and started living with their families and thus, only the plaintiffs and defendant no.1 continued to reside in the tenanted premises.
5. It is further pleaded that about three years ago, some of family members of plaintiff no.2 shifted from the tenanted premises, however the plaintiff no. 2 retained the possession of a room in tenanted premises and the plaintiff no.1 and the defendant no.1 continued to reside in the tenanted premises.
6. The plaintiff no.1 is stated to be in occupation and possession of 1st floor portion while defendant no.1 is stated to be occupying the suit property.
7. It is pleaded that about two years ago, the defendant no.1 shifted Suit no. 189/13 Ram Saran Vs. Om Prakash 2/7 from the suit property to some another property at Model Town but he retained the possession of the suit property and locked the same. It is pleaded that the defendant no.1 is occupying the suit property by way of an internal family arrangement.
8. It is averred that so far as other cotenants are concerned, they have surrendered their possession as well as right in respect of the tenanted premises in favour of the parties who remained in possession thereof and the daughters of late Sh Nathu Ram also deemed to have surrendered their rights in respect of the tenanted premises.
9. It is pleaded that the defendant no.2 had purchased the tenanted premises from the erstwhile owners by means of a registered sale deed and became owner thereof and the plaintiffs more specifically the plaintiff no.1 on receiving intimation thereof had attorned in favour of the defendant no. 2 and started paying rent to him but the rent receipts continued to be issued in the name of his father.
10. It is pleaded that now the plaintiffs had gained the knowledge that the defendant no.1 had joined hands with the defendant no.2 and had agreed to vacate and handover the suit property to the defendant no.2 in lieu of hefty amount and defendant no.1 in the last week had removed all his goods and belongings from the suit property.
11. It is pleaded that the defendant no.1 had also contacted the plaintiff no.1 and asked him to surrender the possession of entire tenanted premises to him averring that the defendant no.2 is ready and willing to pay Suit no. 189/13 Ram Saran Vs. Om Prakash 3/7 handsome amount, however, the plaintiffs refused to accept the offer and rather asked the defendant no.1 not to hand over the possession of suit property without consent and permission of other cotenants, thus it is averred that if the defendant no.1 would surrender the suit property to the defendant no.2, then the plaintiffs will suffer irreparable loss and injury.
12. After service of summons, memo of appearance was filed on behalf of the defendant no.1 and it is submitted by the advocate appearing on behalf of the defendant no.1 that the defendant no.1 had already surrendered the possession of the suit property to the defendant no.2, however certain articles of the defendant no.1 are still lying in the suit property. Defendant no.2 had also affirmed the factum of surrendering of the possession of the suit property by the defendant no.1.
13. On behalf of the defendant no.2, an affidavit was filed and the defendant no.2 has further reaffirmed the factum of surrendering of the possession of the suit property by the defendant no.2 and it is stated that the defendant no.1 had handed over the keys of the suit property to the defendant no.2, but it is stated that the plaintiff no.1 has put his locks unlawfully at the entrance door of suit property on 01.10.2013.
14. Arguments were addressed by Ld. Counsels for the plaintiffs and defendant no.2, but none had appeared on behalf of the defendant no.1 to address arguments.
15. Arguments heard, and on perusal of the records of the case in the light of rival submissions of the parties and relevant provision of law, this Suit no. 189/13 Ram Saran Vs. Om Prakash 4/7 court is of the considered opinion that in the present case the legal point that requires consideration is whether the plaintiffs and the defendant no.1 are joint tenants in the suit property or tenants in common.
16. Joint tenancy is created when two or more persons acquire, purchase or get a property jointly without there being any specific indication of their respective independent and separate interests therein. Likewise, when a property devolves upon two or more persons by bequest or testamentary document, without specification of the shares in which such property is to be held, then also a jointtenancy is created and one joint tenant can surrender his interest in the tenanted property.
17. As against joint tenancy, which has four characteristic distinguishing features of joint title, joint possession, joint interest and the same time of commencement of title, the tenancyincommon has only two characteristic, namely, joint possession and the same time of commencement of title. In tenancyincommon, if one coowner dies without leaving any testamentary document behind, then the legal heirs of a such coowners can claim the property as per the law of succession and the property is not retained by other coowners as per the doctrine of survivorship and a tenant in common has no right to surrender the possession of any part of the property without the consent of others tenant in common.
18. In the present case, the documents filed by the plaintiffs on record i.e rent receipts in the name of the father which is not disputed by the defendant no.2, prima facie reveals that the plaintiffs as well as the Suit no. 189/13 Ram Saran Vs. Om Prakash 5/7 defendant no.1 are the tenants in common having acquired the tenancy rights as per law of succession and since the tenants in common have unequal shares, one of the tenants in common has no right to surrender his tenancy rights, thus the judgment relied by the defendant no.2 i.e Devu Subhana and Anr. Vs. Badruddin Hussain AIR 1957 BOM 217 and Rasappa Gounder Vs. G.N. Ramaswami, AIR 1975 Mad 386, that a joint tenant is competent to surrender his interest in the tenancy to the extent of his share, is not applicable to the facts of the present case.
19. Be that as it may, the averments of the plaint further reveals that the plaintiffs had averred about a family arrangement by virtue of which the defendant no.1 was exclusively occupying the suit property and the suit property was stated to be having the locks and keys of the defendant no.1, this prima facie reveals that the interest in the tenanted premises were mutually determined by the parties by virtue of family arrangement, and according to the plaintiffs, the defendant no.1 is trying to surrender the possession of the suit property to the defendant no.2 and whether the suit property actually came to the share of the defendant no.1 and consequently whether the defendant no.1 has any right to surrender the suit property to the defendant no.2, these questions can be ascertained only by evidence.
20. But, for the purpose of deciding the present application, it has to be ascertained whether the suit property was already surrendered by the defendant no.1 to the defendant no.2 as stated by the defendants or the defendant no.1 is still in possession of the same as averred by the plaintiffs.
21. Perusal of the averments of the plaint prima facie reveals that the Suit no. 189/13 Ram Saran Vs. Om Prakash 6/7 defendant no.1 is stated to have removed all his belongings from the suit property, but it is stated that the suit property is still having the locks and keys of the defendant no.1, and it is stated by both the defendant no.1 and the defendant no.2 that the possession of the suit property was already handed over by the defendant no.1 to the defendant no.2 and now the suit property is bearing the locks and keys of defendant no.2, and entrance of the suit property bears the lock of the plaintiffs.
22. Thus, considering the facts disclosed by the defendant no.2 in the affidavit in the light of averments of the plaint, this court is of the considered opinion that at this stage, prima facie it cannot be ascertained as to who amongst the defendants are actually occupying the suit property and whether the suit property bears the locks of defendant no.1 or of the defendant no.2, the same cannot be ascertained without evidence.
23. Thus, in the considered opinion of this court, since the plaintiffs are claiming injunction thereby restraining the defendant no.1 from surrendering the possession of the suit property to the defendant no.2, and whether the possession has already been surrendered or not, is a matter of trial as observed above, thus at this stage prima facie case for grant of injunction as prayed is not made out.
With aforesaid observations, the application filed by the plaintiffs under order XXXIX Rule 1 and 2 CPC is dismissed.
Nothing stated herein above shall tantamount to expression of this court on the merits of the case.
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /09.10.2013
Suit no. 189/13 Ram Saran Vs. Om Prakash 7/7
CS No.189/13
Ram Saran Vs. Om Prakash
09.10.2013
Present: Ld. counsel for the plaintiff.
Vide separate order of even date, the application filed by the plaintiffs under order XXXIX Rule 1 and 2 CPC is dismissed.
Put up for further proceedings on 19.11.2013.
(SHAMA GUPTA)
CIVIL JUDGEC16/THC
DELHI /09.10.2013
Suit no. 189/13 Ram Saran Vs. Om Prakash 8/7