Delhi District Court
Balram Dhankar vs Sub Inspector Ranbir Singh on 1 June, 2013
In the Court of Dr. Rakesh Kumar : Additional Senior Civil Judge of
Central Delhi District at Tis Hazari Courts, Delhi
Suit No : 188/2013
Unique ID No. 02401C0070371997
In the matter of :
Balram Dhankar
Son of late Chandgi Ram
Resident of WZE38,
Arya Samaj Road,
Uttam Nagar,Delhi ......Plaintiff
V E R S U S
1. Sub Inspector Ranbir Singh,
Son of Sheo Chand,
at present posted at
P.S. Saraswati Vihar, Delhi
2. Jagbir Singh,
Son of Sheo Chand,
Resident of Village Shery,
District Sonepat (Haryana)
Presently residing at :
Village Nangloi, Delhi110041 ......Defendants
Date of institution : 31.07.1997
Reserved for Judgment : 29.05.2013
Date of decision : 01.06.2013
Suit for Mandatory Injunction
Suit No. 188/13 Page No. 1 / 17
J U D G M E N T
1. This is a suit for mandatory injunction for direction to the defendants and their agents etc. to remove the unauthorized and illegal construction raised on the suit property and to handover the vacant possession of the suit property to the plaintiff bearing no. WZE38, Arya Samaj Road, Uttam Nagar, Delhi (hereinafter referred to as 'the suit property') marked as 'CDEF' and shown in red colour in the site plan.
2. Originally, the plaintiff filed suit for permanent injunction for restraining the defendants and their agents etc. from interfering in the peaceful use, enjoyment and possession of the plaintiff in respect of the suit property and/or from dispossessing the plaintiff therefrom in any manner whatsoever. However, later on, the plaintiff made an application under Order VI Rule 17 read with Section 151 CPC for amendment of plaint which was allowed vide order dated 06.08.2011 and the plaintiff filed the amended plaint and the suit was converted into the suit for mandatory injunction.
3. Facts are that the plaintiff is the owner and in possession of the suit property having purchased the same from his brother Ram Karan on 20.12.1989 on the basis of Agreement to Sell, G.P.A., money receipt etc; that the defendants are the cousin brothers of the plaintiff who threatened the plaintiff for dispossessing him from half share of the suit property by using force and illegal means; that the Suit No. 188/13 Page No. 2 / 17 plaintiff apprehending danger of his illegal dispossession at the hands of the defendant filed a civil suit; that during pendency of the said suit, the defendants took forcible possession of ½ portion of the suit property on the intervening night of 29/30.05.1990; that the plaintiff filed criminal complaint case against the defendants on 20.07.1990 in the Court of Chief Metropolitan Magistrate and the defendants and their associates were summoned; that the defendants surrendered the possession of the illegally occupied portion shown as red in the site plan and the plaintiff took the possession of his property and since then is enjoying the whole property as owner and in possession peacefully; that the court of learned Civil Judge passed the orders on 02.06.1990 restraining the defendants from dispossessing the plaintiff from the half of the portion marked as ABEF in the suit property, however no order with regard to portion CDEF was passed; that on 17.01.2000, the defendants in the absence of the plaintiff dispossessed from the suit property by illegal means with the help of antisocial elements; that the defendants also demolished the room of the plaintiff in the suit property and started raising new construction and have now raised two rooms, one store, latrine, bathroom in the suit property and hence the present suit.
4. The defendants contested the present suit by filing joint written statement of their defence taking wherein preliminary objections to the effect that the suit is not maintainable as the defendant no.1 is not a necessary party and the plaintiff has Suit No. 188/13 Page No. 3 / 17 concealed material facts from this court; that no cause of action ever arose in favour of the plaintiff and against the defendants.
5. In reply on merits, it is contended that the plaintiff and the defendants who are cousin brothers were having cordial relations with each other and they both purchased one plot each of 75 sq. yds out of plot bearing no. WZE88, Arya Samaj Road, Uttam Nagar, New Delhi; that separate papers were got made and the payment were also made separately by the plaintiff and the defendant no.2 for the respective portions; that both the plaintiff and the defendant no.2 took possession of their respective portions and also carried out constructions therein; that sometime in the year 1984, the plaintiff approached the defendant no.2 and took the papers of the defendant no.2's portion on the plea that the same were required for obtaining electricity connection; that the plaintiff did not return the papers and trespassed in the portion of the defendant no.2 on 28.05.1990 and removed the articles from the room against which a police case vide FIR No.244/90 PS Janakpuri was lodged against the plaintiff by the wife of the defendant no.2; that the plaintiff has never been in possession of the portion which has been referred as CDEF in the present suit as the said portion has always been in the possession of the defendant no.2 since its purchase by him and the subsequent constructions in the said portion have also been carried out by the defendant no.2; that the plaintiff has indulged in manipulations by fabricating documents of the entire property in favour of his brother Ram Karan and thereafter showing a false Suit No. 188/13 Page No. 4 / 17 transaction of sale in his own name; that the said documents do not create any legal title neither in favour of brother of the plaintiff nor in favour of the plaintiff as per the provisions of the Transfer of Property Act; that the Hon'ble Court of learned Civil Judge did not pass any decree for permanent injunction in favour of the plaintiff in respect of the portion ABEF in the possession of the plaintiff and the plaintiff has not challenged the said order till today. Other allegations of the plaint have been denied and disputed by the defendant and prayed for dismissal of suit.
6. The plaintiff filed replication to the written statement of the defendants and traversed all the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
7. From the pleadings of the parties, following issues were framed by learned Predecessor of this court on 12.10.2007 for trial, namely:
1. Whether the plaintiff is the owner of the portion CDEF as shown in the site plan? OPP
2. Whether the suit is properly valued for the purpose of jurisdiction and court fees? OPD
3. Whether the suit is bad for misjoinder of parties? OPD
4. Whether the plaintiff has any cause of action to file the present suit? OPD
5. Whether the suit of the plaintiff is barred under Limitation Act? OPD
6. Whether the plaintiff is entitled to mandatory injunction as prayed in the plaint? OPP Suit No. 188/13 Page No. 5 / 17
7. Relief
8. The plaintiff examined only one witness. PW1 is Balram Dhankar, the plaintiff himself. The plaintiff produced the documents Ex. PW1/A to PW1/O (except Ex.PW1/B & Ex.PW1/C being not on record) during his evidence.
9. The defendants examined only one witness. DW1 is Jagbir Singh, the defendant no.2 himself. The defendant no.2 relied upon the document Ex.DW1/1 during his evidence.
10. I have heard counsel for the parties and perused the material available on record carefully. My issue wise findings are as follows: Issues No. 1, 4 and 6 Whether the plaintiff is the owner of the portion CDEF as shown in the site plan? Whether the plaintiff has any cause of action to file the present suit? Whether the plaintiff is entitled to mandatory injunction as prayed in the plaint?
11. Onus qua issues no. 1 and 4 was placed on the defendants and onus qua issue no. 6 was placed on the plaintiff. These issues are taken together being interconnected.
12. In the present suit, the plaintiff is seeking relief of mandatory injunction.
Suit No. 188/13 Page No. 6 / 1713. Originally, the plaintiff filed suit for permanent injunction for restraining the defendants and their agents etc. from interfering in the peaceful use, enjoyment and possession of the plaintiff in respect of the suit property and/or from dispossessing the plaintiff therefrom in any manner whatsoever. However, later on, the plaintiff made an application under Order VI Rule 17 read with Section 151 CPC for amendment of plaint which was allowed vide order dated 06.08.2011 and the plaintiff filed the amended plaint and the suit was converted into the suit for mandatory injunction.
14. The general principles underlying the grant of perpetual injunction are whenever a right exists or is created by contract, by ownership of property or otherwise, cognizable by law, an injunction will be issued to protect a violation of that right and the restraining power of the court extends through the whole range of rights and duties recognized by law and would be applied to every case of intended violation unless there are other reasons of policy or expediency which control and limit its exercise. So, for obtaining an injunction the plaintiff has to prove an existing legal right in his favour.
15. The principles underlying mandatory injunction are the same as those underlying perpetual injunction. Two things have to be considered by the court before it proceeds to grant of mandatory injunction, (i) what acts are necessary to be done in order to prevent the breach of an obligation, and (ii) the requisite acts must be such as the court is capable of enforcing.
Suit No. 188/13 Page No. 7 / 1716. Section 2(a) of the Specific Relief Act, 1963 defines the term obligation which says, "obligation" includes every duty enforceable by law". It includes every duty enforceable by law so that when the legal duty is imposed on the person in respect to another that the other is invested with corresponding legal rights.
17. To prove his case, it is stated by the plaintiff (PW1) Balram Dhankar in his affidavit that the plaintiff is the owner and in possession of the suit property having purchased the same from his brother Ram Karan on 20.12.1989 for Rs.4,75,000/ through Agreement to Sell, G.P.A., money receipt etc. It is further stated that the suit property is assessed to house tax by the MCD and electricity and water connections are installed in the name of Ram Karan, brother of the plaintiff. It is further stated that the defendants are the cousin brothers of the plaintiff who threatened the plaintiff for dispossessing him from half share of the suit property by using force and illegal means. It is further stated that the defendants on 19.04.1990 at about 10 am along with their relatives and some unknown persons forcibly entered in the suit property and physically assaulted the wife of the plaintiff and confined in a room and bolted from outside by the defendants. It is further stated that the plaintiff lodged a police complaint against the defendants but the same was not entertained. It is further stated that the plaintiff apprehending danger of his illegal dispossession at the hands of the defendant filed a civil suit and during pendency of the said suit, the defendants took forcible possession of ½ portion of the suit Suit No. 188/13 Page No. 8 / 17 property on the intervening night of 29/30.05.1990 and dispossessed the plaintiff from half of the portion shown as CDEF in the site plan Ex.PW1/A. It is further stated that the plaintiff filed criminal complaint case against the defendants on 20.07.1990 in the Court of Chief Metropolitan Magistrate and the defendants and their associates were summoned. It is further stated that the defendants surrendered the possession of the illegally occupied portion shown as red in the site plan and the plaintiff took the possession of his property and since then is enjoying the whole property as owner and in possession peacefully. It is further stated that the court of learned Civil Judge passed the orders restraining the defendants from dispossessing the plaintiff from the half of the portion. It is further stated that on 17.01.2000, the defendants in the absence of the plaintiff dispossessed from the suit property by illegal means with the help of antisocial elements. It is further stated that the defendants also demolished the room of the plaintiff in the suit property and started raising new construction. It is further stated that the defendants have no concern with the suit property and the possession of portion shown as CDEF in the site plan Ex.PW1/A is illegal as the plaintiff was dispossessed of the same by use of force and illegal means.
18. To disprove the case of the plaintiff, it is stated by the DW1 Jagbir Singh (the defendant no.2) in his affidavit that the property bearing no.WZE88, Arya Samaj Road, Uttam Nagar, New Delhi measuring 150 sq. yds. consisting of two portion of 75 sq. yds. each Suit No. 188/13 Page No. 9 / 17 was jointly purchased by the defendant no. 2 and the plaintiff. It is further stated that separate papers were got made and the payment were also made separately by the plaintiff and the defendant no.2 for the respective portions. It is further stated that both the plaintiff and the defendant no.2 took possession of their respective portions and also carried out constructions therein including boundary walls. It is further stated that the defendant no.2 constructed one room in his portion and also installed a gate. It is further stated that the plaintiff also constructed one room along with one bathroom and toilet in his portion. It is further stated that sometime in the year 1984, the plaintiff approached the defendant no.2 and took the papers of the defendant no.2's portion on the plea that the same were required for obtaining electricity connection. It is further stated that the plaintiff did not return the papers and trespassed in the portion of the defendant no.2 on 28.05.1990 by removing the articles from the room of the defendant no.2 against which a police case vide FIR No.244/90 PS Janakpuri was lodged against the plaintiff by the wife of the defendant no.2. It is further stated that the plaintiff also filed a false civil suit against the defendants in the court of Senior Civil Judge, Delhi in respect of the suit property comprising of the portion of the defendant no.2. It is further stated that the plaintiff had filed a false criminal case against the defendant no.2. It is further stated that thereafter the plaintiff filed an application under Order XVI Rule 9 read with Section 151 CPC for appointment of a local commissioner. It is further stated that local commissioner, Arvind Kumar, Advocate visited the suit premises on Suit No. 188/13 Page No. 10 / 17 11.01.2000 and found the defendant no. 2 in possession of the suit property i.e. the half portion of the defendants. It is further stated that the photographs were also taken at the spot and rough proceedings were also prepared in which the possession of the defendant no. 2 was established beyond doubt. It is further stated that the defendant no.2 who was in actual and physical possession of his half portion, started raising construction to meet his requirements but the plaintiff filed another application dated 20.01.2000 for appointment of a local commissioner. It is further stated that the defendant no.2 is still in physical possession of his half portion of the suit property even after fresh construction. It is further stated that the suit filed by the plaintiff is totally false as neither he nor his brother Ram Karan were the owners in possession of the portion measuring 75 square yards of the defendant no.2. It is further stated that the plaintiff got executed fabricated and false documents from his brother to claim ownership of the portion of the defendant no. 2 without any right, title and interest. It is further stated that the plaintiff and his brother never had any right, title and interest on the portion of the defendant no.2 measuring 75 square yards and they never remained in possession of the same and the defendant no.2 has been in possession of the same since its purchase in 1982 till date.
19. In the crossexamination, PW1 Balram Dhankar made the following depositions: Suit No. 188/13 Page No. 11 / 17 "it is correct that I have not placed on record any general power of attorney, as mentioned para no.10 of the affidavit......It is correct that Ex.PW1/B is agreement to sell and inadvertently, it is mentioned that Ex.PW1/B is not on the record. It is correct that I had filed a suit bearing No.956/08......My brother had purchased the suit property in the year 1983. It is correct that my brother had raised the construction in the year 1985......It is correct that I have not placed on record the documents executed in favour of my brother......It is wrong to suggest that the defendant no.2 had also purchased 75 sq. yards of the same property in the year 1982. It is wrong to suggest that after purchasing the respective portions, I shall and the defendant no.2 had raised construction in the respective portions of 75 sq. yards each and had also raised a wall between the two portions. It is wrong to suggest that my intention became malafide and fabricated documents in my favour in respect of 150 sq. yards in collusion with my brother. It is correct that defendants my cousin brothers (mama's son)......It is correct that the defendant no.1 is in possession of 75 sq. yards of the said property and he has carried construction in the same. It is correct that the defendant no.1 has constructed two rooms......it is correct that the photographs showing defendant no.1 and numbering 6 are the photographs showing the other half measuring 75 sq. yards. Vol. the said property is suit property. The said photographs were taken during the visit of the local commissioner, but I do not remember the date. The said photographs are Ex.PW1/DX12 to Ex.PW1/DX17......It is correct that in the portion C,D,E & F the defendant no.1 has raised two rooms, toilet, gate etc......It is correct that the defendant no.1 had never had any settlement with me and he had never handed over the possession of the portion shown in C, D, E & F to me."
20. In the light of the evidence of the parties, the position that emerges is that the plaintiff is claiming ownership of the suit property by way of its purchase through Agreement To Sell dated 20.12.1989 (Ex.PW1/B), General Power of Attorney (though not placed on record) and receipt (Ex.PE1/D). Admittedly, the plaintiff has no sale deed executed in his favour qua the suit property.
21. The Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 SCC 656 clearly declared the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Suit No. 188/13 Page No. 12 / 17 Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership......that only on execution of conveyance ownership passes from one party to another...."
22. The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."Suit No. 188/13 Page No. 13 / 17
23. In the light of law laid down by the Hon'ble Supreme Court in Suraj Lamp's case (supra), no right, title or interest in respect of the suit property were conferred upon the plaintiff upon execution of Agreement To Sell and General Power of Attorney. Even otherwise, the plaintiff's claim is that he had purchased the suit property from his brother. The plaintiff has also not produced any material on record to prove that his brother was owner of the suit property or that he was having any right to transfer it in favour of the plaintiff.
24. In view of the above, therefore, I am of the considered opinion that the plaintiff has failed to produce any material on record to prove that he is owner of the suit property.
25. Further, it is admitted by the plaintiff in his crossexamination that the defendant no.1 is in possession of 75 sq. yards of the said property and he has carried construction of two rooms, toilet gate etc. in the same. In view of the above, it is proved that the defendant no.1 is in possession of the suit property and he has also raised construction therein.
26. Furthermore, in the plaint, it is specific case of the plaintiff that the defendants had taken forcible possession of ½ portion of the suit property on the intervening night of 29/30.05.1990 and dispossessed the plaintiff from the half of the portion shown as CDEF in the site plan Ex.PW1/A and later after filing a criminal complaint case by the plaintiff against the defendants on 20.07.1990 Suit No. 188/13 Page No. 14 / 17 in the Court of Chief Metropolitan Magistrate, the defendants surrendered the possession of the suit property. However, in his crossexamination, it is admitted by the plaintiff that the defendant no.1 had never had any settlement with him and he had never handed over the possession of the portion shown in C, D, E & F to him. In view of the above material contradiction in the testimony of the plaintiff, it is proved that the defendant had never given possession of the suit property to the plaintiff. In these circumstances, therefore, I am of the considered opinion that the plaintiff has never been in possession of the suit property and probably for this reason, after the report of local commissioner regarding possession of the defendant into the suit property, he had made an application for amendment in the plaint and converted the suit from permanent injunction to mandatory injunction wherein admitted that the plaintiff is not in possession of the suit property.
27. I have already observed that the plaintiff has never been in possession of the suit property but he has filed suit for injunction simplicitor.
28. The Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy AIR 2008 SC 2033 summarizes the scope in regards to the suit for injunction relating to immovable property as under: "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration with possession, with or without consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for Suit No. 188/13 Page No. 15 / 17 possession with consequential injunction. Where there is remedy an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor."
29. As I have already observed, the plaintiff is out of possession the property in question and the defendants have also raised serious clouds on the rights of the plaintiff but the plaintiff has not sought any declaration of ownership and only sought relief for possession. In the facts and circumstances of the present case, in the light of law laid down by the Hon'ble Supreme Court in Anathula Sudhakar's case (supra), the plaintiff should have also filed a suit for declaration of his title along with possession but he has merely filed a suit for possession. The relief of injunction simplicitor cannot be granted.
30. For the reasons abovestated, these issues are decided against the plaintiff and in favour of the defendants.
Issues No. 2, 3 & 5Whether the suit is properly valued for the purpose of jurisdiction and court fees? Whether the suit is bad for misjoinder of parties? Whether the suit of the plaintiff is barred under Limitation Act?
31. Onus qua these issues was placed on the defendants. The defendants did not lead any evidence to prove these issues. Hence, this issue remained unproved.
Suit No. 188/13 Page No. 16 / 17Relief
32. In view of my findings on issues no. 1, 4 and 6, the suit of the plaintiff is dismissed with costs. Decree sheet be prepared accordingly.
Announced in the Open Court on 01.06.2013 (Dr. Rakesh Kumar) Additional Senior Civil Judge Central District: Tis Hazari Courts: Delhi Suit No. 188/13 Page No. 17 / 17