Delhi District Court
Chander Singh & Ors. vs Kali Ram & Ors. on 13 July, 2011
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IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1,
DWARKA COURTS, DELHI
CS No: 299/11
Chander Singh & Ors. Vs Kali Ram & Ors.
13.07.2011
O R D ER
1.This order shall decide the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure.
2. The version of the plaintiffs as borne out from the plaint is that they are co bhumidars of agricultural land comprising of Khasra no. 645 min (48) and Khasra no. 662/2 (48), situated in the Revenue Estate of Village Roshanpura, Tehsil Najafgarh, New Delhi (hereinafter referred to as "the suit property") more specifically shown in the site plan/akshsizra issued by concerned Halqua Patwari. The plaintiffs have stated in the plaint that they are in actual physical and cultivatory possession of agricultural land measuring 4 bighas and 8 biswas comprised in Khasra no. 645 and land measuring 3 bighas and 6 biswas comprised in Khasra no. 662/2. It is further stated by the plaintiffs that they have allowed Sh. Kiran Pal and Sh. Tej Pal to cultivate land measuring 1 bigha 2 biswas comprised in Khasra No. 662/2 min (western side) of the suit property. It is stated that the plaintiffs have sown the crop of vegetables in the suit property. It is further stated that the defendants are trying to grab the suit property. By the suit, the plaintiffs have prayed for permanent injunction restraining the defendants and their representatives from forcibly occupying or cultivating the suit property.
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3. By the application under Order 39 Rules 1 and 2 of Code of Civil Procedure, the plaintiffs have prayed for interim injunction restraining the defendants from forcibly occupying or cultivating the suit property.
4. Ld. Counsel for plaintiffs has addressed arguments in support of the case of the plaintiffs. He has argued that the Khatoni shows the plaintiffs to be the bhoomidars of the suit property. It is pointed out that the khasra nos. 662 and 645 are distinct and separate khasra numbers which are not adjacent to each other as evident from the site plan and aks sizra prepared by the Halqua Patwari. It is further pointed out that the khasra girdawari of different years including the latest khasra girdawari shows the plaintiffs to be in possession of the suit property. It is submitted that in the year 20052006, the defendants had illegally got their name included as a person in occupation of the suit property which was also later got rectified.
5. The defendants have filed their written statement. It is stated in the written th statement that the defendant no. 2 has purchased ¼ share in the suit property and is cosharer in the suit property. It is stated that the plaintiff no. 4 Sh. Harphool Singh th had sold his entire share which was ¼ of the suit property in favour of the defendant no. 2 by way of General Power of Attorney, Agreement to Sell, Will, Affidavit and Receipt for a sum of Rs.1,50,000/ which was duly paid. Ld. Counsel for defendants th has stated that the defendants are in possession of the said ¼ share of the suit property. It is further stated that since this share is undivided, the defendants are deemed to be in possession of the entire suit property alongwith plaintiff nos. 1, 2 and 3. The defendants have further stated that they are carrying out cultivation on ..3..
the suit property.
6. Ld. Counsel for defendants has submitted that the defendants have already applied for modification of entries in the khasra girdawari since they are in possession of the suit property. Ld. Counsel for defendants has further argued that the plaintiffs have concealed material facts and have not disclosed about the sale of th ¼ portion of the suit property by plaintiff no. 4 to the defendant no. 2. It is further submitted that even the plaintiff nos. 1, 2 and 3 have sold their respective portions to some other person by way of registered documents and this fact has also been concealed by the plaintiffs in the plaint.
7. Ld. Counsel for plaintiffs has rejoined arguments and submitted that although the documents i.e. General Power of Attorney, Agreement to Sell, Will, Affidavit and Receipt are admittedly executed by the plaintiff no. 4, the said documents do not support the defendants and are not valid since the documents were sham and had been prepared merely to secure a loan of Rs.1,50,000/ which plaintiff no. 4 had availed from defendant no. 2 and which loan was subsequently duly repaid. It is argued by Ld. Counsel for plaintiffs that after repayment of the said loan, the plaintiff no. 4 had requested defendant no. 2 for return of the original documents. However the defendant no. 2 had expressed her inability to do so on the ground that the documents have been lost. Ld. Counsel for plaintiffs further states that in any case the documents relied upon the defendants do not confer any title over the suit property since they are not registered, in accordance with Section 17 of the Registration Act.
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8. I have heard arguments advanced by Ld. Counsels for parties.
9. The plaintiffs have, in the plaint, claimed to be cobhumidars of the suit property and in possession thereof. They have expressly stated that the defendants have no right in the suit property and that the defendants are not in possession thereof. During arguments, Ld. Counsel for plaintiffs has admitted that plaintiff no. 4 had executed the General Power of Attorney, Agreement to Sell, Will, Affidavit and Receipt, copy of which has been placed on record by the defendants. That the said documents were executed by plaintiff no. 4 has also been admitted by the plaintiffs in their replication. The General Power of Attorney dated 04.10.1991 is irrevocable and empowers the defendant no. 2 to sell and transfer the suit property. The right to sell and transfer is an integral part of the rights of ownership. The agreement to sell dated 04.10.1991 clearly states that plaintiff no.1 has delivered actual physical possession of the suit property to defendant no. 2 and that the plaintiff no. 4 has since been divested of his rights over the suit property. The affidavit dated 04.10.1991 th also proclaims the transfer of physical possession of ¼ share in the suit property in favour of defendant no. 2. The receipt indicates that the plaintiff no. 4 has received the sale consideration. Although the aforesaid documents are not registered, they do th indicate that the possession of ¼ share in the suit property was handed over by plaintiff no. 4 to defendant no. 2.
10. It is significant to note that the above noted documents namely General Power of Attorney, Agreement to sell, Affidavit, Receipt and Will have been concealed by the plaintiffs. Although the documents relate to the suit property itself and were ..5..
executed by the litigating parties, the plaintiffs chose to withhold the said documents from the Court. They did not even make a passing reference to the execution of these documents. They tried to explain the circumstances that led to the execution of the said documents only after the defendants relied upon them. If the plaintiffs had no oblique motive of concealing the documents, they would have themselves disclosed about them in the plaint itself since the documents related to the suit property and were concerning the rival litigants. It could have been easily foreseen by the plaintiffs that the defendants would rely upon the said documents. The plaintiffs ought to have disclosed about the execution of the documents and might have then assailed their validity on the ground of their being sham. However, the plaintiffs did not do so. All the plaintiffs are deemed to have been aware of the said documents since they have been executed by plaintiff no. 4 and have been attested as witnesses by the remaining plaintiffs. Irrespective of the legality of the documents, which is yet to be adjudicated, it was obligatory upon the plaintiffs to disclose about the execution of the documents. Despite this, the plaintiffs chose to maintain silence about the said documents.
In the case of S.P. Changalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by L.Rs., AIR 1994 SC 853, the Hon'ble Supreme Court held:
"The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Propertygrabbers, taxevaders, bank loandodgers and other unscrupulous persons from all walks of life find the court ..6..
process a convenient lever to retain the, illegalgains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation."
In the case of M/s. Seemax Construction (P) Ltd. V. State Bank of India and another AIR 1992 Delhi 197, the Hon'ble High Court of Delhi observed as under: "The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the court with clean hands and is required to disclose all material facts which may, one way or the other affect the decision. A person deliberately concealing material facts from court is not entitled to any discretionary relief. The court can refuse to hear such person on merits. A person seeking relief of injunction is required to make honest disclosure of all relevant statements of facts otherwise it would amount to an abuse of the process of the court."
The plaintiffs appear to have concealed material facts from the Court and their conduct disentitles them to the discretionary relief of injunction.
11. The version of the plaintiff that the above noted documents are sham does not inspire confidence. There is no written document to indicate that the above noted documents were prepared merely to secure a loan. The onus lies upon the plaintiffs to show that the documents were sham. In absence of any material to support this contention, one cannot assume that the documents were not intended to be acted upon. There is no reason to decline to give effect to the above documents. Hence, the plea of the plaintiffs that the documents were prepared only to secure a loan is neither believable nor legally sustainable. It is only a feeble attempt to escape from ..7..
the direct and inevitable effect of the documents, which are fully binding on the executants. If the plaintiffs are lightly permitted to resile from the written covenants of the documents on the basis of a weak verbal plea, the legal sanctity of the written word would be eroded.
12. Had the documents been prepared merely to secure a loan, when the loan was repaid, the defendants ought to have prayed for return or cancellation of the said documents. Had this request been declined, the plaintiffs ought to have instituted legal proceedings against the defendant no. 2 or at least issued a legal notice to defendant no. 2 in this regard. Separate documents could have been obtained by the plaintiffs to show that the previously executed documents shall stand cancelled or that they shall never be used or at least that the loan stands repaid. None of this has been done by the plaintiffs.
13. Importantly, the plaintiffs have not even challenged or questioned the validity of the said documents either in the present suit or in separate proceedings. No suit for declaration or cancellation of the said documents has been filed by the plaintiffs. Since the documents pose an impediment to the plaintiffs asserting their rights over the property, unless the documents are successfully assailed and put out of the way, the plaintiffs cannot obtain the relief claimed by them. As the plaintiffs have not prayed for declaration of invalidity of the documents, they are not entitled to the relief of injunction prayed for.
14. It is not the recorded possession but the actual physical possession which is material for the purpose of determining the fate of the instant application. Both the ..8..
parties have claimed to be in possession of the suit property. None of the parties are residing on the suit property. None of the parties have placed any documents to establish that it is he who is performing agricultural activity on the suit property.
15. The plaintiffs have denied the assertion of defendant No. 2 of coownership of the suit property. This issue of title is not 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. As such, the plaintiffs are required to seek declaration of title and injunction instead of the present suit for injunction alone. Adjudication of title is not possible in the present proceedings since the present suit does not seek declaration of title and merely seeks to protect the possession of the plaintiffs. Despite being aware that the defendants are claiming a different title, the plaintiffs have chosen not to seek declaration of their ownership. Having refrained from seeking declaration of title, the present simplicitor suit for protection of possession is not maintainable, even if the plaintiffs are assumed to be in possession of the property.
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".
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16. The defendants have claimed to be cosharers of the suit property alongwith petitioner nos. 1, 2 and 3. A cosharer is deemed to be in possession of the entire suit property alongwith other cosharers. None of them can restrain the other co sharer from occupying part of the property. To be able to do that, one must obtain partition of the suit property by metes and bounds. It is not the case of the plaintiffs that the suit property has been partitioned. If the contention of the defendants is correct, the plaintiffs as coowners and cosharers cannot restrain the other co sharers from occupying part of the property.
In the case of Karam Singh v. Nathu Singh, 1994(3) R.R.R. 704 it was observed by Hon'ble High Court of Delhi thus:
"A coowner has not in law any right to appropriate land to himself out of a joint land against the consent of his coowner. As observed in Prabhoo v. Soodh Nath, AIR 1978 Allahabad 178 : "Highhanded action by one coowner cannot be encouraged by courts of law.""
In the case of Ranjit Singh v. Sopan Properties Pvt. Ltd., 2001(4) RCR (Civil) 107, it was held by Hon'ble High Court of Delhi as under:
"A coowner has an interest in the whole property and also in every parcel of it and possession of the joint property by one coowner is in the eye of law possession of all even if all but one are actually out of possession."
17. Counsel for plaintiff has submitted that even assuming that defendant no. 4 has transferred his portion in the suit property, such transfer is null and void since the share of plaintiff no. 4 was undivided. I am afraid, I am unable to agree with this contention. In my opinion, a coowner can sell his undivided portion in the suit ..10..
property and the purchaser simply steps into the shoes of the said seller. In the case of Maharu V. Dhansai reported in AIR 1992 MP 220, the Hon'ble High Court of Madhya Pradesh held that undivided interest in coparcenary property can be sold. In such an event, "the purchaser only steps into the shoes of the transferor and is invested with till the rights and is subject to all the disabilities of the transferor. He at best, is entitled to only joint possession with the nonalienating coowners and if resisted he may recover joint possession by a suit. He is, in fact, only bound by the arrangements, if any, as to exclusive possession by different co owners entered into, before he acquired the interest in the joint property.'' In the case of K. S Krishan Vs. Krishnan reported in AIR 1993 Kerala 134, the Hon'ble Kerala High Court held as under: "Each of the cosharers is entitled to possession and enjoyment of the whole property alongwith others. He has an equal right to the possession of every part and parcel of the property. It may be that their interests are unequal but still they have got unity of possession and each of the co sharers can transfer his share and the transferee becomes a cosharer along with others. In view of S. 44 Transfer of Property Act transferee can also enforce partition of his rights but subject to the conditions and liabilities affecting at the date of the transfer." In the case of Lalita James Vs. Ajit Kumar reported in AIR 1991 Madhya Pradesh 15, it has been held that a transferee of coownership rights is entitled to joint possession and common enjoyment of the property but not exclusive possession. In the case of Ram Dass and another Vs. Shisha Singh and others reported in AIR 2007 P & H 200, the Hon'ble Punjab and Haryana High Court held that an agreement to sell land executed by a cosharer is enforceable against the other ..11..
cosharers and that the latter have no right to object to the same. It was observed as under : "No law prohibits a cosharer from alienating his share in the joint property . Any alienation so made by a cosharer is always subject to the partition and rights of other coshares . The vendees simply step into the shoes of the vendor cosharers and will acquire status of a cosharer and all their rights to the extent of the land purchased will remain subject to the partition and rights of other coshares. Therefore, the agreement to sell cannot be said to be illegal or bad per se merely because the other cosharers did not joint in the transaction of proposed sale" .
18. For these reasons, in my opinion, the plaintiff has failed to make out a prima facie case in his favour. This is the foremost requirement to be fulfilled for the grant of interim injunction. Since the plaintiff has failed to meet this standard, the application under Order 39 rules 1 and 2 read with Section 151 of Code of Civil Procedure is dismissed.
(Ashish Aggarwal) Civil JudgeI/Dwarka Courts Delhi/13.07.2011