Delhi High Court - Orders
Mrs. Kulan Rukhsana Amin & Ors vs Gaurang Kanth & Ors on 14 September, 2021
Author: Sanjeev Narula
Bench: Sanjeev Narula
$~9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 81/2016
MRS. KULAN RUKHSANA AMIN & ORS. ..... Plaintiffs
Through: Mr. S.S. Jauhar, Advocate.
versus
GAURANG KANTH & ORS. ..... Defendants
Through: Mr. Madan Lal Sharma, Advocate for
D-1 and D-2.
Mr. Harish Malhotra, Senior
Advocate with Mr. Dhruva Bhagat,
Advocate for D-3 to D-5.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
ORDER
% 14.09.2021 [VIA VIDEO CONFERENCING]
I.A. 7772/2021 (u/O XXXIX Rules 1 and 2 r/w Section 151 CPC for stay of further constructions and further transfer of the suit property)
1. The Plaintiffs have filed the above captioned suit for declaration, possession and permanent injunction against the Defendants, seeking to invalidate the Sale Deed dated 4th November, 1999 [hereinafter, 'Original Sale Deed'], by virtue whereof Defendants No. 1-2 claimed their title over the suit property - bearing No. 268, measuring 360 sq. yds. out of Khasra No. 138, situated in the revenue estate of Village Okhla, abadi known as Jamia Nagar, New Delhi [hereinafter known as 'Suit Property'].
2. The suit is presently under trial and is now at the stage of Defendants' CS(OS) 81/2016 Page 1 of 7 evidence.
3. The present application has been filed by the Plaintiffs seeking the following reliefs:
"a) pass an ad interim ex parte order directing the Defendants and buyers to stay any further construction on the suit property;
b) pass an ad interim ex parte order restraining the Defendants and buyers from creating any further third party rights in the suit property."
4. Mr. S.S. Jauhar, counsel for the Plaintiffs, argues that urgent interim injunction is necessary for the following reasons:
4.1. Defendants No. 3 to 5 (being the subsequent purchasers) do not have right, title or interest in the suit property as claimed under the Original Sale Deed. Yet they are illegally constructing and trespassing over the suit property;
4.2. The Original Sale Deed, which is the subject-matter of challenge in the present suit, did not identify the land being transferred. It did not have any schedule, site plan, or description of the alleged location of the 360 sq. yards out of the Khasra No. 138, which is a pre-requisite for any sale deed to be registered, as provided under Section 21 of the Registration Act, 1908;
4.3. The description of the suit property provided under Sale Deed dated 26th March, 2021 executed by Defendants No. 1 and 2 in favour of Defendants No. 3 to 5 [hereinafter, 'Subsequent Sale Deed'], is at variance with the description given in the Original Sale Deed; 4.4. The Khasra No. 138, where the suit property is situated, comprises of more than 10,000 sq. yards; the exact location of the 360 sq. yards comprising the suit property therein, which have been CS(OS) 81/2016 Page 2 of 7 purportedly sold to the Defendants, is not known. Since the situs of the property remains unidentified, any sanction of a site plan for construction on the suit property cannot be lawful, as the location of the 360 sq. yards on Khasra No. 138 has not been determined. 4.5. Therefore, the Original Sale Deed and the Subsequent Sale Deed cannot form the basis for the Defendants right to construct over the suit property.
4.6 Status quo of the property cannot be permitted to be changed during the pendency of a substantive suit to determine the rights in an immovable property. Reliance is placed upon the judgment of this court in Maharwal Khewaji Trust Faridkot v. Baldev Dass.1 4.7. The subsequent purchasers cannot be permitted to raise any construction on the suit property and should be restrained from doing so. To buttress the submission, reliance is placed on the photographs annexed with the application as well as the site plan
5. Mr. Madan Lal Sharma, counsel for Defendants No. 1 and 2; Mr. Harish Malhotra, Senior Counsel for Defendant Nos. 3 to 5, strongly oppose the application and make the following submissions:
5.1. Plaintiffs had earlier sought similar reliefs by way of I.A. No. 2371/2016, which were refused by the Court vide decision 14th July, 2016;
5.2. Documents placed on record along with the written statement filed by the Plaintiffs demonstrates that 360 sq. yards i.e., the 1 2004 8 SCC 488.
CS(OS) 81/2016 Page 3 of 7subject-matter of the Original Sale Deed has indeed been identified by the Late Mohd. Amin (i.e., the Vendor) himself. He submits that the original Defendants (i.e., Defendants No. 1 and 2) were in possession of the said portion since 1999, and then after obtaining the requisite permission(s) from the statutory authorities for raising construction over the suit property, Sale Deeds were executed in favour of Defendants No. 3 to 5;
5.3. The suit property was in fact bounded by a wall which was in existence. Subsequently, the said wall was unlawfully and illegally demolished by Plaintiff's husband. This led to filing of a criminal complaint against him, which was registered as FIR No. 416/2015. In respect of the said FIR, when a Bail application was filed before this Court, the Plaintiffs agreed to compensate Defendants No. 1 and 2 and were directed to file an affidavit of undertaking which shall also indicate the expenses incurred on account of re-construction of the boundary wall. These undertakings have been recorded in the judicial orders passed by this Court in the Bail petitions;
5.4. The site report prepared by the Assistant Zonal Engineer, South Delhi Municipal Corporation dated 28th November, 2003 with a sketch of the suit property and the passage leading thereto, is in sync with the site plan filed by the Plaintiffs;
5.5. The construction is being raised only in respect of the area which has been identified in the said sketch. Where originally, there was a boundary wall. It is clarified that the construction has been raised within the confines of the boundary wall which was in existence and as reflected in the sketch.
CS(OS) 81/2016 Page 4 of 76. Having heard the counsel for the parties, in the opinion of the Court, the present application of the Plaintiffs is not maintainable. The Plaintiffs had earlier filed a similar application [I.A. No. 2371/2016], as noted in the contentions above, wherein the following prayer was made:
"(a) pass ad-interim ex-parte order restraining the defendants and/or every person acting on their behalf including their attorneys, accomplices, agents and servants from selling/alienating/renting out, from creating any construction and/or creating any third party rights qua the suit property with respect to property bearing No. 268, Naseem Bagh, Jamia Nagar, New Delhi measuring 360 sq.yds."
7. This application came to be rejected by this Court vide Order dated 14th July, 2016, the operative portion whereof, reads as under:
"18. I am of the view that the plaintiffs ought to have disclosed all the aforesaid facts while approaching this Court; even if it is the plea of the plaintiffs that the plaintiffs had done all that merely to secure bail and / or under threat of imprisonment, it was indeed incumbent on them to make disclosure of these relevant facts along with their such plea. The plaintiffs indeed are found to have attempted to steal a march on the defendants by attempting to obtain interim orders at the back of the defendants, without disclosing relevant facts and which, as per the settled principles of law, disentitles the plaintiffs from any discretionary relief.
19. IA No. 2371/2016 is accordingly dismissed."
8. Though, Mr. Jauhar had said that there is a change in status quo, however, the Court is unable to decipher any such change. The present application seeking injunction fails to bring out any change in status quo except the fact that a Subsequent Sale Deed has been executed by Defendant Nos. 1 and 2 in favour of Defendant Nos. 3 to 5.
9. As already observed by this Court vide Order dated 10th August, 2021, the Subsequent Sale Deed, which confers a right in favour of Defendant CS(OS) 81/2016 Page 5 of 7 Nos. 3 to 5, is subservient to the rights of Defendants No. 1 and 2. Therefore, if ultimately, the Plaintiffs were to succeed in the present suit, the Subsequent Sale Deed would automatically not survive. Therefore, this change in the circumstances does not entitle the Plaintiffs to the injunction for restraining the Defendants or Subsequent purchasers from alienating or creating third party rights in the Suit Property, as sought for in the present application.
10. That apart, insofar as the plea in respect of the Defendants raising construction on the suit property is concerned, this court has already rejected a similar relief claimed in the earlier application, as noted above. The orders passed in the Bail Petitions, placed on record clearly indicate that the Plaintiffs acknowledged the existence of a boundary wall demarcating the Suit Property. No site plan or other material has been placed on record by the Plaintiffs/ Applicants along with the application to show or demonstrate a change in the status quo. As also rightly pointed out by Mr. Malhotra, the present application also makes no such averments. Besides, Mr. Malhotra has clarified that the 360 sq. yards of land, which forms the Suit Property, were identified and demarcated by a boundary wall and this status quo has not been altered till date. Furthermore, any construction which is sought to be raised by Defendants No. 3 to 5 on the suit property, on the basis of title documents in their favour, cannot be injuncted in absence of any prima facie case in favour of the Plaintiffs. Balance of convenience also lies in favour of the Defendants and against the Plaintiffs, who have been in possession of the Suit Property for a substantial long period.
CS(OS) 81/2016 Page 6 of 711. Plaintiffs have also not made out the case of irreparable loss that would compel the court to grant an injunction. Needless to say, construction being raised by Defendants No. 3 to 5 at their own risk and peril and would be subject to the outcome of the present suit, as the title of defendants No. 1 & 2 is under challenge. The objections raised by the Plaintiffs qua the invalidity of the sale deed in absence of description of the property cannot be examined at this stage and are left open for adjudication at the final stage.
12. In view of the above, the Court does not find any ground to grant injunction in favour of the Plaintiffs. Accordingly, the application is dismissed.
CS(OS) 81/2016
13. Mr. Sharma, counsel for Defendants No. 1 and 2 states that Mr. Jauhar, counsel for the Plaintiffs, is not agreeable to fixing of dates for the cross-examination of the witnesses. Mr. Jauhar, however, controverts this statement.
14. The Local Commissioner is directed to fix the dates for recording of the evidence, as per his convenience, and intimate the same to the counsel for the parties. The counsels are directed to proceed with the trial, without any further delay.
SANJEEV NARULA, J SEPTEMBER 14, 2021/nd CS(OS) 81/2016 Page 7 of 7