Delhi District Court
Rajinder Singh vs Smt. Tara Devi on 7 April, 2010
IN THE COURT OF SHRI GORAKH NATH PANDEY, JSCC/ASCJ/GUARDIAN
JUDGE (NE)
Suit No. : 18/09
Unique Case ID No. 02402C0574552006
Rajinder Singh
s/o Shri Udmi Singh
r/o Udmi Ram Ka Ghar,
Babarpur Modh,
village Babarpur,
illaqa Shahdara, Delhi-32.
......... Plaintiff.
Versus
1. Smt. Tara Devi
w/o Shri Raju
2. Shri Raju
s/o Shri Dida Singh
both r/o House No.12/15,
Indira Gali, Gali no. 4,
Chhajjupur, village Babarpur,
Illaqa Shahdara, Delhi-32.
3. Municipal Corporation of Delhi
through its commissioner
Town Hall, Chandni chowk,
Delhi-110006.
......... Defendants.
Date of Institution of the suit : 09.10.2006
Date on which order was reserved : 06.04.2010
Date of decision: 07.04.2010
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT:
As mentioned, plaintiff is in possession of plot measuring 100 sq. yards out of khasra no. 151 village Jafrabad near Shiv Mandir Babarpur ilaqa Shahdara, Delhi (hereinafter called the suit property) as shown in red colour in the site plan attached with the plaint, w.e.f. 10.07.1976 on the basis of GPA, agreement to sale and receipt dt. 10.07.1976 executed by previous owner Daljeet Singh on the basis of registered GPA dt. 18.05.73 in his favour, for consideration. After purchase, plaintiff raised construction and boundary wall. Smt. Surma Devi, in March 1998 threatened to illegally and forcefully dispossess the plaintiff from the suit property and the plaintiff was constrained to file suit for permanent injunction vide suit no. 176/04 which was decreed vide judgment dt. 29.01.2005. On 05.10.2006 the defendants constructed in 27 sq. yards of the suit property. The defendants have no right, title or interest in the suit property, therefore the plaintiff is entitled to decree of permanent injunction for restraining the defendants from interfering into the peaceful possession of the plaintiff regarding 27 sq. yards of the land as shown in red colour in the site plan. The plaintiff made complaint to the concerned police but of no avail. Hence this suit is filed by the plaintiff against the defendants praying for directing the defendants to remove the illegal construction raised in 27 sq. yards of the suit property and for restraining the defendants from interfering in peaceful possession of the plaintiff.
2. Written statement was filed by the defendants mentioning that this suit is false filed without any basis and defendant no.1 and 2 are not concerned with the suit property; this suit is filed without any cause of action. The suit of the plaintiff is not maintainable for want of cause of action against MCD and the plaintiff has suppressed the material facts. It is mentioned that property of defendant no.1 is situated in khasra no. 332 and this suit of the plaintiff is barred u/s 38, 39 and 41 of Specific Relief Act; this suit is filed to grab the property of the defendants and defendant no.1 and 2 are not the necessary party. While denying rest of the material contentions of the plaintiff in the plaint, the defendant no.1 and 2 prayed for dismissal of the suit of the plaintiff with heavy cost.
Written statement was filed by the MCD mentioning that this suit is barred by section 477/478 of the DMC Act for want of notice and there is no cause of action for filing of this suit. The defendant no.3 further mentioned that the plaintiff has suppressed the material facts and no construction raised was found during inspection on 29.01.2007 by MCD in the property as mentioned in the plaint. MCD further mentioned that the suit plot is part of khasra no. 332 belonging to Om Prakash.
3. Replication to the written statement of the defendants was also filed by the plaintiff whereby the plaintiff while reiterating the contents as mentioned in the plaint, denied the averments of the defendants as mentioned in written statement.
4. In view of pleading of the parties, following issues were framed on 27.02.2008.
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed ? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed ? (OPP)
3. Whether the present suit does not disclose any cause of action as alleged ? (OPD 1 and 2)
4. Whether the present suit is barred in view of section 38, 39 and 41 of the Specific Relief Act, as alleged ?( OPD 1 and 2).
5. Whether the present suit is barred in view of section 477 and 478 of DMC Act for want of notice, as alleged ? (OPD 3).
6. Relief.
and the case was fixed for plaintiff evidence.
Plaintiff filed his affidavit by way of evidence and was examined as PW1 who reproduced the averments as mentioned in the plaint in one way or the other. The PW deposed that he is in possession of the suit property. The witness also produced the relevant documents i.e. certified copy of judgment dt. 29.01.2005 Ex. PW1/1 and site plan Ex. PW1/2. As no other witness was examined by the plaintiff, the PE was closed. The case was thereafter fixed for DE.
Defendant no.2 Narender Kumar also filed his affidavit by way of evidence and examined himself as DW1 who deposed that defendant no.1 and 2 are the owner in possession of plot no. WS- 9/1, situated in village Babar pur khasra no. 332 min. measuring 30 sq. yards, Delhi and plaintiff is not concerned with the said plot claiming the same in khasra no. 151 situated in Jafrabad near Shiv Mandi, Babarpur ialqa Shahdara Delhi. The defendants are not concerned with any khasra no. 151. The DW1 also proved the relevant documents i.e. registered GPA Ex. DW1/1, khatauni / khasra of khasra no. 332 Ex. DW1/2, nazri naksha of the location Ex. DW1/3. The witness further deposed that this suit is filed without any cause of action. In one way or the other the witness deposed nothing but the averments as mentioned in the written statement. Thereafter the DE was closed.
5. I have heard final argument on behalf of parties and gone through the records.
It is argued by Ld. counsel for the plaintiff that plaintiff is entitled for the decree as prayed in the suit and the case of the plaintiff stands proved in view of the unrebutted and uncontroverted testimony of the PW and the material documents are on record. The plaintiff is the owner of the suit property having purchased the same and the defendants have taken false plea in the written statement. The request is made to pass decree in favour of the plaintiff and against the defendants. It is further contended that the defendants have failed to prove the contentions and discharge the onus as mentioned in written statement.
It is submitted on behalf of the defendants that by way of this suit for injunction the plaintiff is seeking the declaration of ownership as well as possession of the suit property and this suit of the plaintiff is not maintainable. The question is with respect to the ownership and relationship between the parties and the plaintiff has no right, title or interest in the suit property. The plaintiff has not taken the appropriate steps to call the relevant witnesses and has no right to file this suit against the defendants. It is further mentioned that the petition filed by the plaintiff herein on the ground of ownership is liable to be dismissed and the suit of the plaintiff is barred by the Specific Relief Act. This is a false suit filed to harass the defendants; the plaintiff has failed to prove the case and discharge the onus as contended in the plaint. There is no cause of action for filing of this suit and defendants prayed to dismiss the suit with exemplary cost.
My findings on the above said issues are as follows:
Issue No. 3 & 53. Whether the present suit does not disclose any cause of action as alleged ? (OPD 1 and 2).
5. Whether the present suit is barred in view of section 477 and 478 of DMC Act for want of notice as alleged ? (OPD 3).
The onus to prove the issue no. 3 was on the defendant no.1 and 2 whereas issue no. 5 was to be proved by defendant no. 3. The plaintiff has filed this suit for injunction alleging cause of action against the defendants in the plaint. The application u/o 7 rule 11 CPC filed by the defendant no. 1 and 2 was also dismissed vide order dt. 25.01.2008. Order 7 rule 11 CPC contained the provisions for rejection of the plaint mentioning that the plaint shall be rejected in the following cases -
a)where it does not disclose a cause of action;
b)where the relief claimed is under valued and the plaintiff on being required by the Court to so correct the valuation within a time to be fixed by the Court fails to do so;
c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped and the plaintiff on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;
d) where the suit appears from the statement in the plaint to be barred by any law;
e)where it is not filed in duplicate;
f) where the plaintiff fails to comply with the provisions of rule 9.
From the pleadings and materials on record, it appears that the plaintiff is seeking the relief of possession in the garb of decree for mandatory injunction for directing the defendants to remove the construction. Admittedly, the defendant no.1and 2 are in possession of the property regarding which this suit is filed. The plaintiff has disclosed the cause of action for filing of this suit. The contention of the defendants with respect to the suit being filed without any cause of action and liable to be dismissed u/o 7 rule 11 CPC is not attracted in this case. Moreover, the defendants have failed to discharge the onus and prove this issue. The issue no.3 is disposed off against the defendants.
The issue no. 5 was framed in view of the contention of the defendants in WS. As observed from the pleadings as well as the materials from the record, it is apparent and established that no notice was issued by the plaintiff to the defendant no.3 before filing of this suit for taking appropriate action, if any. It is contended on behalf of the plaintiff that as the MCD Is only proforma defendant and no relief is claimed against MCD, the notice was not issued and therefore, the suit is not bad for want of notice. I do not find any merit in the contention of the counsel for plaintiff as if nothing was prayed against the MCD and no action was required on behalf of the defendant no.3, there was no basis or occasion to file the suit against MCD. In view of section 477 and 478 DMC Act, it is mandatory to issue notice before filing any suit against the corporation. As the plaintiff has not issued any notice before filing of this suit against MCD, issue no.5 is decided against the plaintiff and in favour of defendants.
ISSUE NO. 1, 2, and 4.
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed ? (OPP)
2. Whether the plaintiff is entitled to decree of mandatory injunction as prayed ? (OPP)
4. Whether the present suit is barred in view of section 38, 39 and 41 of the Specific Relief Act, as alleged ? ( OPD 1 and 2).
The onus to prove the issue no. 1 and 2 i.e. regarding the entitlement of the plaintiff with respect to the relief as prayed in this suit was on the plaintiff whereas the onus to prove the issue no.4 was on the defendant no.1 and 2 as this issue was framed in view of the contention of defendant no.1 and 2 in the written statement. Issue no. 4 appears to be a legal issue involving the question of law. The brief and relevant facts for filing of this suit along with the defence of the defendants, and the testimony of the witnesses examined by the parties, has already been mentioned at the outset. As all these issues are liable to be disposed off and adjudicated by the common facts, to decide the controversy on merits more effectively and for the purpose of convenience, these issues are examined and decided together.
I have gone through the testimony of the witnesses along with relevant documents in support of claim and contentions. The plaintiff has filed this suit on the basis of ownership. The claim of ownership of the plaintiff is based on the document i.e GPA, agreement to sale, receipt as mentioned, executed by Daljeet Singh in favour of the plaintiff. At the outset, it is necessary and relevant to mention that none of the document which are the basis of this suit filed by the plaintiff are placed on record or either produced. The plaintiff has basically relied on one judgment dt. 29.01.2005 Ex. PW1/1 in one suit for injunction filed by the plaintiff against Surma Devi which was decided exparte. The main question to be decided in this matter, as to whether plaintiff has any right, title or interest in the suit property or not in view of the claim and contention in the plaint. Admittedly, now the plaintiff is not in possession of the suit property and the same is in possession of the defendants, therefore, the plaintiff has prayed to direct the defendants to remove the alleged construction. The judgment Ex. PW1/1 is not helpful to the plaintiff in proving this case at all. The concerned witnesses were not produced along with relevant records by the plaintiff to the reasons best known to him. Further more, the documents detailed by the plaintiff have no value in the eyes of law and have no effect of transfer of any immovable property in view of the Transfer of Property Act 1882. These documents are not sufficient to create any right, title or interest in favour of the plaintiff for filing of this suit.
The contention of the defendants in the written statement has already been mentioned. In my considered view, the dispute between the parties is only regarding as to whether the suit property i.e. 77 sq. yards claimed by the plaintiff falls in khasra no. 151 or kahsra no. 332 as mentioned in their respective pleadings. It is mentioned by the defendants that they are not concerned with the property of the plaintiff and the 27 sq. yards of plot falls in khasra no. 332 belonging to them. No steps were taken by the plaintiff to call the concern witnesses or for demarcation of the land as required for adjudication of the dispute and examination of these issues. Needless to mention, the onus to prove these issues was on the plaintiff. PW1 / plaintiff deposed during cross examination that no documents are placed on record regarding ownership of the plaintiff with respect to the suit property and the plaintiff has not demarcated the suit property from patwari. The plaintiff is claiming the property to be in khasa 151 but has not taken any steps to prove the same nor any steps were taken to get the property demarcated by the concerned authorities. Earlier, Smt. Surma Devi, against whom the said judgment Ex. PW1/1 is claimed, was admittedly in possession of the suit property and now the defendants no.1 and 2 and therefore, the plaintiff has no basis to file this suit against defendant no.1 and 2. The defendants during argument as well as cross examination mentioned that they are not interested in any property of the plaintiff except the portion in their possession falling in khasra no. 332.
Admittedly, the defendants are in settled possession of the suit property and documents in this respect are proved in accordance with law. The plaintiff admittedly had derived the title through the documents executed by Daljeet Singh and by no stretch of imagination by virtue of these documents, the plaintiff can be considered as the owner of the suit property. Even in view of the documents allegedly executed by Daljeet Singh in favour of plaintiff, plaintiff cannot be considered as owner of the suit property having right, title or interest in the suit property. Moreover, no such documents are proved in accordance with law and are not sufficient to create interest with respect to the suit property in view of the provisions of Transfer of Property Act.
Section 54 of the Transfer of Property Act contained the provisions regarding the sale of immovable property and defined sale. It is mentioned that sale is a transfer of ownership and such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
The relevant provisions of sale in Transfer of Property Act for transfer of immovable property may be reproduced as below.
54 Sale defined- Sale is a transfer of ownership in exchange for a price paid or promised or part paid or part promised.
Sale how made- such transfer, in case of tangible immovable property of the value of Rs.100/- and upwards, or in the case of reversion or other intangible thing, can be done only by a registered instrument.
In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale- a contract of the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
Section 53 of the Transfer of Property Act deals with part performance which is as follows-
53 A. Part Performance- where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty.
And the transferee has, in part performance of the contact, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being enforced, the transferrer or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferred has taken or continue his possession, other than a right expressly provided by the terms of the contract.
Provided that nothing in this section shall effect the rights of a transferee for consideration who has no notice of the contract or the part performance thereof.
Examining both of these sections together it is clear that ownership and possession are two entirely different and separate concepts. It necessarily follows that it is not only possible, but also permissible to transfer one without the other. In simple words it is permissible to transfer ownership without transferring possession and similarly, it is also possible to transfer possession without transferring ownership. It is relevant to mention that here in this case neither the ownership has been transferred in pursuance of the provisions of the Transfer of property Act nor the possession of the suit property was ever handed over to the plaintiff.
Even in pursuance of the documents relied by the plaintiff, no right, title or interest in respect of the suit premises, is transferred in favour of the plaintiff. I have also gone through the judgments i.e. AIR 1969 SC 1316 wherein it is mentioned that the documents of which registration is necessary under the Transfer of Property Act ( such as under section 54 of the T.P. Act ) but not under the Registration Act fall within the scope of section 49 of the Registration Act and if not registered are not admissible as evidence of any transaction of acting any immovable property comprised therein and do not effect any such immovable property. Since there is no registered sale deed executed in favour of the plaintiff in respect of the suit property in accordance with the provisions of Transfer of Property Act 1882, the plaintiff is not the owner of the suit premises and thus not entitled for any relief as prayed.
As above mentioned, the plaintiffs is claiming to be the owner of the suit property. The question is regarding the right, title and interest with respect to the suit property which is denied by the defendants. Further the plaintiff has failed to prove the averments as mentioned in the plaint in support of claim and contentions.
As held in re JT 1994 (6) SC 588, interest or right not shown to be in existence cannot be protected by injunction. The attention can also be drawn to the judgment reported as 128 (2006) DLT 407 (DB) titled M.L. Aggarwal Vs. Oriental Bank of Commerce & Ors. wherein the Hon'ble High court of Delhi was pleased to hold as follows:
"The petitioner has only produced an agreement to sale, Will and a power of attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under section 17 (1) b of the Registration Act, sale of an immovable property can only be by a registered deed. In our opinion, the petitioner has no right, title or interest in the suit property as he has no purchased it by any registered sale deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to Sale".
The ratio was further reiterated by Hon'ble High Court of Delhi in re. matter reported as AIR 2003 Delhi 120 titled as G. Ram Vs. DDA wherein it is mentioned that transfer of immovable property can only be effected by executing a registered document. Merely making an agreement of sale or execution of power of attorney could not transfer right, title or interest of any immovable property.
Hon'ble Supreme Court in re. AIR 2009 SC 3077 pointed out the illegality and and irregularity with respect to the transfer of the properties and the effect thereon by way of GPA, agreement to sale etc. it is further mentioned that :
"The Registration Act, 1908, was enacted with the intention of providing orderliness, discipline and public notice in regard to transactions relating to immovable property and protection from fraud and forgery of documents of transfer. This is achieved by requiring compulsory registration of certain types of documents and providing for consequences of non-registration. Section 17 of the Registration Act clearly provides that any document (other than testamentary instruments) which purports or operates to create, declare, assign, limit or extinguish whether in present or in future "any right, title or interest" whether vested or contingent of the value of Rs.100 and upwards to or in immovable property.
Section 49 of the said Act provides that no document required by Section 17 to be registered shall, affect any immovable property comprised therein or received as evidence of any transaction affected such property, unless it has been registered. Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transaction relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transaction and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. in other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person/s presently having right, title and interest in the property. it gives solemnly of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire any ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transaction by which the title to the property may be affected and secure extracts/copies duly certified".
I have gone through the relevant provisions of law along with the general principles for grant of injunction. The injunction is a discretionary relief and its grant or refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful.
Section 38 of the Specific Relief Act enables the court to grant a perpetual injunction to prevent the breach of an obligation existing in favour of applicant whether express or implied. Meaningly the question is to be examined as to whether there exists an obligation in favour of the applicant and thereafter if the answer is yes, if the case falls within section 41 of the Act, an injunction cannot be granted. It is also necessary to mention that rights and obligation are corollary to each other and the right places a corresponding duty also for its existence.
In view of section 39 of the Specific Relief Act, when, to prevent the breach of obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite Acts.
From the bare perusal of the Section the existence of an obligation is necessary along with the breach of that obligation for the enforcement of the mandatory injunction. It is also relevant to mention that the relief by way of mandatory injunction is also discretionary and the court will weigh the amount of substantial mischief done or threatened to the plaintiffs and compare it with that of the defendant in the event of grant of injunction. Section 41 contained the grounds where an injunction cannot be granted along with Section 41 (h) of the Specific Relief Act wherein it is mentioned that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other unusual mode of proceedings except in case of breech of trust. The discretionary relief cannot be granted for furtherance of the illegality as the same has to be exercised judiciously in favour of the person having legal right. Needless to mention, the relief of injunction is based on equity and the person claiming the same must come with clean hands and equity. Needless to mention, in this case and facts as mentioned, the plaintiffs have efficacious remedy available. In view of the availability of the alternative efficacious relief is available to the plaintiffs, the injunction cannot be granted as above mentioned.
I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of such a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and it was mentioned that the position in regard to the suits for prohibitory injunction relating to immovable property, is summarized as under:
i) Where a cloud is raised over plaintiff's title and he does not having possession, a suit for declaration and possession, with or without a 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 possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
ii) As a suit for injunction simiplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases , are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and / or possession with injunction as a consequential relief are well settled. It is mentioned -
11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3 Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequensive relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
As held in re.- 36(1998) DLT 428 (supra), If the petitioners are trespassers, they cannot seek injunction from the civil court. Even otherwise the defendant claimed to be the owner of the suit land and no injunction can be granted against the true owner.
It was further held in re JT 1994 (6) SC 588, interest or right not shown to be in existence cannot be protected by injunction. The question therefore is whether an injunction can be issued against the true owner. Issuance of order of an injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41 ( j ) of the Specific Relief Act 1963 and the plaintiff must have personal interest in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
As further held, it is equally settled law that injunction cannot be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner.
Needless to mention, the relief of injunction is based on equity and the person claiming the same must come with clean hands and equity. I am also guided by the judgment reported as 1994 (28) DRJ (DB) and (1994) 5 SCC 47, wherein Hon'ble Supreme Court has held that :-
"Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. I is not mandatory that mere asking such relief should be given. Injunction is a personal right under section 41 ( j ) of the Specific Relief Act 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the plaintiffs who had no interest in the property. Even assuming that they had any possession, their possession was wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner".
In view of the above referred judgments and relevant provisions of law, the plaintiff cannot be considered to be the owner at all of the suit property having right, title or interest in the same. Further, as above mentioned, the plaintiff is claiming to be the owner of the suit property and his right, title and interest is denied by the defendants. The question is regarding the right, title and interest in the suit property. Applying the ratio, the claim of the plaintiff accordingly is not sustainable and is liable to be dismissed.
As held in AIR 1996 SC 112, no amount of proof can substitute pleadings which are the foundation of claim or a litigating party. In the facts of the case and afore said discussion, the plaintiff categorically failed to discharge the onus and prove the case. Examining the case of the plaintiff even on the basis of preponderance of probabilities, in my considered opinion the plaintiff has failed to prove the case as mentioned in the pleadings. Accordingly in my considered opinion, the plaintiff is not entitled for the relief as prayed in the suit. Issue no.1 and 2 is decided against the plaintiff and issue no. 4 is decided in favour of defendant no.1 and 2.
RELIEF In view of afore mentioned discussions and findings, the plaintiff is not entitled for any relief. The suit of the plaintiff is therefore dismissed. No order as to cost in the facts and circumstances of the case. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open (G.N. Pandey) Court on 7th Day of April JSCC/ASCJ/G.Judge(NE), 2010. Karkardooma Courts, Delhi.