Delhi District Court
Also At: vs Sh. Jeet Singh on 3 April, 2014
IN THE COURT OF MS. SUJATA KOHLI:ADDITIONAL DISTRICT JUDGE:
WEST DISTRICT:TIS HAZARI COURTS:DELHI
RCA No. 01/2013
SH. MANJEET SINGH
S/o LATE SH. KARTAR SINGH
R/o HOUSE No. C2205, SUSHANT LOKI,
GURGAON, HARYANA.
ALSO AT:
HOUSE No. H17/9A, BACK PORTION,
MALVIYA NAGAR, NEW DELHI110017.
.......APPELLANT
VERSUS
1. SH. JEET SINGH
S/o LATE SH. RAMJI DASS,
HOUSE No. 17/9, FRONT PORTION,
MALVIYA NAGAR, NEW DELHI110017.
2. MINISTRY OF WORKS AND HOUSING,
THROUGH ITS LAND & DEVELOPMENT OFFICER
LAND & DEVELOPMENT OFFICE,
NIRMAN BHAWAN, NEW DELHI110001.
.......RESPONDENTS
Pages 1 to 33 Manjit Singh Vs. Jeet Singh
DATE OF FILING OF THE APPEAL : 02.01.2013
DATE OF RESERVATION OF ORDER : 26.03.2014
DATE OF DECISION/JUDGMENT : 03.04.2014
J U D G M E N T: By the impugned judgment, suit of the appellant for permanent injunction and mandatory injunction has been dismissed. appellant claimed to be in peaceful occupation of the back portion of the house i.e. First Floor of House No. H/17/9, Front Portion, Malviya Nagar, New Delhi110017 (Hereinafter referred to as a suit property), for the last 46 years.
2 Respondent no. 1 was stated to be the owner of the front portion of the suit property, whereas respondent no. 2 is the government department, who had initially allotted the suit property, and who is further responsible for the necessary amendment, to be carried out, in respect of, the legal title of the appellant, in respect of the suit property. All that the appellant sought by way of a direction against respondent no. 2 was to produce the original file including the entire correspondence in respect of the suit property.
3 Appellant's version was that Late Sardar Kartar Singh, the father of the appellant died on 10.09.1999, at Delhi leaving behind the LRs including the present Pages 2 to 33 Manjit Singh Vs. Jeet Singh appellant.
4 The suit property was allotted on sale basis to late Smt. Parvati Devi w/o late Sh. Ramji Das and who was mother of the defendant, by the Rehabilitation Authorities, Government of India.
5 At the relevant time of purchase of the suit property, she had been unable to pay the title price of the offered house/quarter, and it is admitted fact that Late Sardar Kartar Singh i.e. father of the present appellant had provided the funds to Late Smt. Parvati Devi in order to make her eligible for the allotment of the suit property by the government authorities. The receiving of money by Late Smt. Parvati Devi from Late Sardar Kartar Singh had also been witnessed by the present respondent no. 1 on various occasions, as alleged. 6 Late Smt. Parvati Devi duly executed an agreement to sell on 22.07.1961 in respect of the half back portion of the alleged quarter on the terms and conditions as mentioned in the aforesaid agreement and simultaneously after the said allotment by the government authorities, she placed the father of the appellant in possession of the said half portion, as agreed. 7 Since then, for the last more than 46 years, the parents of the appellant (now deceased), and now the family of the present appellant have been in physical possession of the half portion of the said property.
8 In terms of the agreement at that point of time, it was agreed that Pages 3 to 33 Manjit Singh Vs. Jeet Singh
immediately upon receipt of sale certificate/sale permission from the appropriate authorities, the mother of the respondent no. 1 would, in all eventuality, execute a regular sale deed in favour of the father of the present appellant. 9 Sale certificate had been duly received by the Late Smt. Parvati Devi on 09.06.1967, but she kept on delaying the execution of the sale deed in favour of the appellant for one reason or another and eventually on 26.10.1969, the said Smt. Parvati Devi expired leaving behind the present respondent no. 1 as being the sole known LR.
10 Father of the present appellant kept persuading respondent no. 1 to execute a proper sale deed in his favour, which was being delayed on one reason or another. Even the legal notice dated 02.06.1970 had no effect upon the present respondent no. 1.
11 Though a proper sale deed was not executed by the present respondent no. 1, however, on 29.05.1981, a duly notarized agreement was entered upon between the present respondent no. 1 and late father of the present appellant, declaring the respective ownership of the suit property, and further declaring the status of the partition wall, electricity wires, sanitary lines etc., which were to pass through each other portions.
12 Since then, family of Late Sardar Kartar Singh has been in continuance of the physical possession of the back half portion of the suit property, Pages 4 to 33 Manjit Singh Vs. Jeet Singh and at present which is in the possession of the LRs of Late Sardar Kartar Singh including present appellant.
13 Late Sardar Kartar Singh had also applied to relevant government authorities for the assessment of house tax in respect of the suit property, and which was being simultaneously deposited by Late Sardar Kartar Singh thereby followed by his son i.e. the present appellant. Even the electricity and water charges are being paid by the appellant in the name of Late Sardar Kartar Singh. 14 Respondent no. 1 had also given an undertaking/consent statement to the government authorities including a letter dated 31.01.1970, by virtue of which, the respondent no. 1 had declared that he shall transfer the said portion of the suit property in the name of Late Sardar Kartar Singh and the expenses for the same, were agreed to be borne by Late Sardar Kartar Singh.
15 On 30.06.1970, the present respondent no. 1 submitted an affidavit to the government authorities, as per which, the present respondent no. 1 had no objection in case Late Sardar Kartar Singh was also declared a colessee in respect of the suit property.
16 Thereafter, Late Sardar Kartar Singh died on 10.09.1999. He had executed a Will dated 15.04.1997, by virtue of which, the present appellant became the rightful owner of the first floor of the suit property, whereas the other two brothers of the appellant became the owners of the other two floors of the suit Pages 5 to 33 Manjit Singh Vs. Jeet Singh property.
17 Further alleged that it has been found that son of respondent no. 1 is an employee in Tis Hazari Court and presently attached with some designated Court, and since then, the respondent no. 1, his wife and other family members has become source of nuisance of the present appellant and also to the other brother of the appellant has, however, started threatening the present appellant to take illegal entry in his portion by virtually breaking open the central partition wall demarcating the respective portions.
18 Hence, the suit was filed for permanent injunction against the respondent no. 1 etc. for being restrained from tresspassing into the portion of the appellant as shown in the site plan, and further also restraining him from entering upon the portion of the appellant.
19 Appellant also sought a decree of mandatory injunction in his favour and against the respondent no. 2 directing it to produce the original file of the suit property before the Court.
20 Respondent no. 1 in his WS raised preliminary objections, firstly being some technical objections that the plaint had not been filed in duplicate as per Order 6 Rule 4 CPC, secondly, that appellant has no locusstandi to seek equity from the Court, in as much as, that the appellant was permitted by the parents of respondent no. 1 only as a licensee to occupy the back portion of the property Pages 6 to 33 Manjit Singh Vs. Jeet Singh bearing No. H17/9.
21 Even otherwise, having regard to the claim of the appellant, it was not a suit for specific performance of contract, which was filed, (that too was time barred), and there was no Will executed by the deceased Late Sardar Kartar Singh, in favour of the appellant. Appellant seems to have forged and fabricated the documents in his favour.
22 Further objection was raised that, suit is even otherwise, timebarred as appellant had referred to an agreement to sell dated, as long as back, as on 22.07.1961, and in view of Article 136 of Limitation Act, the suit was not maintainable at this stage.
23 Besides, the respondent no. 1 also stated that he was under no obligation to execute the sale deed in favour of the appellant as fraudulently claimed by him. Appellant has got got no right, title or authority to claim equity as the property devolved upon the answering defendant by operation of law, whereas appellant was a complete stranger qua the property and cannot maintain the present suit. Even otherwise, the appellant had not chosen the appropriate remedy under the law i.e. of specific performance of contract. 24 Further stated that claim of the appellant is contrary to the factual position and at no point of time Late Smt. Parvati Devi executed any Will in favour of the appellant. Claim of the appellant is said to be contrary to the factual Pages 7 to 33 Manjit Singh Vs. Jeet Singh position.
25 Since, the appellant is occupying the property as a permissive user, but at the back of the defendant, appellant got the property mutated in their own name i.e. the back portion on the basis of forged and fabricated documents, therefore, the suit is liable to be dismissed.
26 Further it was also an objection that there was no subsisting cause of action available to the appellant against the defendant as at no given point of time, the respondent no. 1 has obstructed the appellant or created nuisance.
The suit is in contravention of Article 58 of Limitation Act. 27 Further the suit of the appellant is under valued for the purpose of Court Fee and jurisdiction.
28 As per version of respondent no. 2, the suit property No. H17/9, Malviya Nagar, New Delhi was initially given on Perpetual Lease Hold Basis to one Smt. Parvati Devi on 09.06.1967. Mr. Sardar Kartar Singh, informed the defendant no. 2 vide letters dated 21.03.1968, 24.02.1969 and 31.01.1969, that Smt. Parvati Devi had sold half portion of the suit property to Sardar Kartar Singh and had accordingly executed an agreement dated 22.07.1961, in favour of Late Sardar Kartar Singh.
29 The respondent no. 2, vide letters dated 31.05.1958 and 13.03.1969 had informed Sardar Kartar Singh that as the dispute was with the originally Pages 8 to 33 Manjit Singh Vs. Jeet Singh lessee, same should be settled with the lessee directly and the respondent no. 2 could not entertain Sardar Kartar Singh.
30 Thereafter, Late Sardar Kartar Singh again informed the respondent no. 2, vide letters dated 06.11.1969, that Late Smt. Parvati Devi had expired, and as such, half of the portion of the property substituted in his favour. 31 Similar request was also made by Sh. Jeet Singh i.e. son of the deceased Smt. Parvati Devi, vide letter dated 26.10.1969 for substitution of the suit property in favour of Sh. Jeet Singh, being the LR of Late Smt. Parvati Devi. 32 Late Sardar Kartar Singh vide another letter dated 06.03.1970, requested that Sh. Jeet Singh was the owner only of half portion of the property in terms of agreement to sell dated 22.07.1961, and Late Sardar Kartar Singh also requested that a personal hearing be given to him in the matter. 33 Late Sardar Kartar Singh had also requested for respondent no. 2 for a personal hearing to be given to him, and as such, both i.e. Sh. Jeet Singh and Late Sardar Kartar Singh had appeared to attend a personal hearing before the respondent no. 2.
34 Thereafter, respondent no. 2 carried out necessary substitution in favour of Sh. Jeet Singh, vide letter dated 19.11.1970 and vide letter dated 24.07.1972, the said Jeet Singh requested for sale permission from respondent no. 2 in favour of Sardar Kartar Singh, and he again applied for sale permission vide Pages 9 to 33 Manjit Singh Vs. Jeet Singh letter dated 02.08.1972 by furnishing an affidavit of Sh. Kartar Singh being the intending purchaser.
35 On 08.09.1972, defendant no.2 informed Sh. Jeet Singh that permission for sale of half portion in the suit property could not be granted in favour of Sh. Kartar Singh, but however, Sh. Kartar Singh could be joined as a colessee for which a requisite application was to be made.
36 Accordingly, on 28.01.1972, Sh. Jeet Singh made a request to this effect. On 25.11.1972, Sh. Kartar Singh prayed for sale permission and also furnished the fresh affidavit of the intended purchaser. Accordingly on 30.12.72, defendant no.2 granted sale permission in favour of Sh. Kartar Singh subject to the condition that sale deed should specifically state that half undivided share was being sold to Sh. Kartar Singh. This information was also given to Sh. Kartar Singh by defendant no.2 vide their letter dated 30.12.72.
37 On 31.03.72, Sh. Jeet Singh again approached the defendant no.2 with a letter requesting for sale permission permitting him to sale his half undivided share to some other person. However, on 28.03.73, Sh. Kartar Singh informed defendant no.2 that Sh. Jeet Singh was not ready to execute the documents in his favour despite grant of sale permission by defendant no.2. 38 Accordingly on 05.07.73, defendant no.2 informed Sh. Jeet Singh that as the period of 90 days had already expired from the date of sale permission, and Pages 10 to 33 Manjit Singh Vs. Jeet Singh no sale deed had been executed, now no sale deed should be executed on basis of the aforesaid sale permission. They were requested to return the original sale permission back to defendant no,2 which was accordingly returned by Sh. Jeet Sigh on 10.08.73.
39 On 26.08.78, Sh. Jeet Singh requested the defendant no.2 that suit property may be substituted jointly in favour of Sh. Jeet Singh and Sh. Kartar Singh. The application was accompanied by an affidavit of Sh. Jeet Singh as well as Sh. Kartar Singh. Considering the request above referred, the defendant no.2 informed Sh. Jeet Singh on 11.09.78 that the Will submitted by Sh. Jeet Singh seemed to be spurious in view of there being overwriting and also in view of it not being duly attested.
40 Defendant no.2 informed Sh. Kartar Singh about inability of defendant no.2 to accede to his request for substitution. The last correspondence received by defendant no.2 from Sh. Kartar Singh was dated 29.10.91. 41 By the present suit, plaintiff sought only permanent and mandatory injunction and in its garb, he actually sought a declaration of his being the owner of the said property which could not be allowed and according to defendant no.1, the suit should have been dismissed. It is clear that no relief whatsoever was claimed against the defendant no.2.
42 In fact the role of defendant no.2 in the whole suit was more, of a Pages 11 to 33 Manjit Singh Vs. Jeet Singh
witness, than a party and the object could have been achieved by summoning their record and examining them.
43 On the basis of the pleadings, following issues were framed by Ld. Trial Court:
1. Whether the suit is not maintainable in the present form in view of the PO No.6?OPD1.
2. Whether the suit of the plaintiff is barred by time in view of the PO no.4?OPD1
3. Whether the plaintiff has locusstandi to file the present suit? OPP
4. Whether the suit has not been valued properly for the purpose of courte fees and jurisdiction?OPD1
5. Whether the suit is bad for misjoinder of the parties?OPD1.
6. Whether the plaintiff is entitled to relief of the permanent injunction, as prayed?OPP
7. Whether the plaintiff is entitled to relief of the mandatory injunction, as prayed?OPP
8. Relief.
44 Mainly on the reasoning that the documents relied upon by the plaintiff like from Ex.PW1/6 to 8 were unregistered documents and even otherwise as per Pages 12 to 33 Manjit Singh Vs. Jeet Singh Ex.PW1/6, Smt. Parwati had only agreed to sell the property in favour of the father of the plaintiff, there being no direct agreement with the present plaintiff, father of the plaintiff had died in the year 1999; and that, to enforce, specifically, the document Ex.PW1/6, was the personal right of the father of the plaintiff only, to get the same enforced. No such steps were ever taken by the father of the plaintiff during his lifetime.
45 Further, in view of the provisions of Section 17 read with Section 49 of Indian Registration Act that Ld. Trial Court has discarded the said documents. 46 Ld. Trial Court has been of the view that in order to claim the relief of permanent injunction in the given circumstances, plaintiff had to show that he was the owner of the suit property.
47 Referring to the general principles as to when a mere suit for permanent injunction will lie, and when it would be necessary to file a suit for declaration and or possession as a consequential relief, Ld. Trial Court has drawn the contention that the plaintiff had failed to show that he was the owner of the suit property and therefore, he was not entitled for the relief of permanent and mandatory injunction. Thus, his suit came to be dismissed. 48 During the course of arguments, reference was had to the contents of written statement of defendant no.2 and no doubt to a great extent, they had supported the version of the plaintiff in as much as that the present defendant had Pages 13 to 33 Manjit Singh Vs. Jeet Singh applied for sale permission, intending to sell the part of the property to the plaintiff, and that the department had indeed allowed the sale permission. 49 It was also established that in spite of sanction of the sale permission, the defendant had not executed the sale deed and therefore, that sale permission was treated as canceled.
50 But even going by this, it would not have given any advantage to the plaintiff as firstly, if a seller is not implementing the agreement to sell, the remedy clearly available to the father of the plaintiff was to have sought the specific performance of the agreement to sell, which was however, not done. 51 What was being sought by the appellant was not a declaration of his title but only that his possession should not be interfered with. 52 In view of the record produced by the Ministry of Works & House, one thing that was clear, was, that the mother of the respondents had applied for sale permission in favour of the father of the appellant/appellant herein, and therefore, going by the principles of estopel, the present defendant could not have denied the same.
53 However, be that as it may, it still remains the admitted fact, that thereafter no sale deed was neither nor the appellant's father nor the appellant even pressed at any point of time, for execution of the sale deed by Parvati Devi, or by the respondents. Nor he has filed a suit for specific performance. All that he Pages 14 to 33 Manjit Singh Vs. Jeet Singh seeks is that his possession should not be interfered with. 54 It was the grievance of the then appellant that, by and by, the respondent had taken the entire sale consideration from him, but without executing the sale deed. It is also admitted fact that Sh. Sardar Kartar Singh (now deceased) had been put in physical possession of the back half portion of the property in an absolutely legal manner by the mother of the defendant Smt. Parvati Devi, and therefore, his possession could not be treated as unlawful or as a trespasser. Presently, the said back half portion of the property is in the possession of the LRs of the said Late Sh. Sardar Kartar Singh, including the present appellant. 55 What the present appellant has sought by the suit was a permanent injunction in his favour and against respondent no. 1 thereby restraining respondent no. 1 and his agents from trespassing into the said portion of the said portion, and further restraining the defendant and his agents from entering upon the portion of the appellant, by forcefully breaking open the partition wall or by any other means in order to take the unauthorized possession of the suit property, specifically shown in the site plan i.e. back portion. 56 Ld. Trial Court while dismissing the suit was of the view that appellant under the garb of the present suit, though filed for permanent and mandatory injunction, was virtually seeking a declaration of being the owner of the suit property, which could not be allowed under the law.
Pages 15 to 33 Manjit Singh Vs. Jeet Singh 57 No relief whatsoever had been claimed against the respondent no. 2 at
all, and the prayer regarding the production of the original documents pertaining to the suit property by respondent no. 2, could easily have been achieved by summoning the respondent no. 2 as a witness, and as such, the suit, in as much as, against respondent no. 2, was not even maintainable on this ground alone. 58 Documents filed by the appellant to show that he was an owner of the suit property, were referred as Ex. PW1/6, Ex. PW1/7 and Ex. PW1/8, and besides, a document relied upon was marked 'A'. Ex. PW1/6 and Ex. PW1/7, were the Agreement to Sell, Special Power of Attorney and the affidavit, executed by Smt. Parvati Devi/mother of the defendant, in favour of father of Sh. Sardar Kartar Singh, (now deceased), who was father of the present appellant, way back in the year 1961. All these documents were unregistered documents. 59 Even otherwise, as per Ex. PW1/6, Smt. Parvati Devi, had only agreed to sell the suit property in favour of the father of the appellant, there was no direct agreement with the present appellant. The father of the appellant had, admittedly, died in the year 1999, and therefore, it was the personal right of the father of the appellant only to get Ex. PW1/6 specifically enforced. No such steps appeared to have been taken by the father of the present appellant during his lifetime.
60 During the crossexamination of the appellant, it was admitted by him Pages 16 to 33 Manjit Singh Vs. Jeet Singh
that Ex. PW1/3 to Ex. PW1/9, were not executed in his presence, and as such, the appellant alone, had no locusstandi to file the present suit. 61 (Admittedly, there were other LRs of Late Sh. Sardar Kartar Singh, and as such also, the appellant alone, did not acquire any right to file the suit). 62 This, apart from admitted legal position that the documents, even otherwise, were not creating any title in favour of the father of the appellant. They were no documents of title either way, whether registered or unregistered. 63 In order to claim the relief of permanent injunction, appellant was to show that he was the owner of the suit property. When a mere suit for permanent injunction, simplicitor, would lie, or it would be necessary to file a suit for declaration or possession with injunction as a consequential relief, are governed by certain settled general principles. Reference is had to the decisions of Hon'ble Supreme Court in "Anathullah Sudhakar Vs. P. Bucchi Reddy , AIR 2008 SC 2033.
"11.1) Where a appellant is in lawful peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter 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 wrongful possession is not entitled to an injunction against the rightful owner.
Pages 17 to 33 Manjit Singh Vs. Jeet Singh 11.2) Where the title of the appellant 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 simpliciter, without claiming the relief of possession. 11.3) Where the appellant 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 appellant will have to sue for declaration of title and the consequential relief of injunction. Where the title of appellant is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the appellant will have to file a suit for declaration, possession and injunction."
64 Appellant in the present case had failed to show that he was the owner of the suit property, and in the circumstances, he was not entitled to the relief of the kind of permanent and mandatory injunction being sought by him. 65 During the course of arguments, Ld. Counsel for appellant emphasized that in view of the admitted case of the parties that appellant was and is in possession of suit property and thus, he has a possessary title and he is entitled to protect his possession by seeking a relief of injunction only. In this respect, Ld. Counsel has relied upon the decision of Hon'ble Supreme Court in AIR 2007 SC, Pages 18 to 33 Manjit Singh Vs. Jeet Singh Page No. 900.
66 Ld. Counsel further emphasized the principles of law that even a trespasser could not be evicted without due process of law. 67 It was further contended on behalf of the appellant that Ld. Trial Court has wrongly decided the issue nos. 6 to 9, in as much as, Ld. Trial Court assumed that possession of appellant was not legal, disregarding the fact and the admissions as well as documents on the record. The father of the appellant and his family including the appellant had been inducted lawfully. 68 Ld. Counsel has argued that the mother of the defendant had soled the property to the appellant's father, and appellant inherited the same from his father by way of Power of Attorney as well as other documents like Agreement to Sell, Receipt, Will, GPA, all dated 15.06.1983 and delivered the possession of the suit property.
(Prayer does not say the words "due process of law".) 69 Further, it was argued that the said, admittedly executed document, including the Agreement to Sell dated June, 1983, were not only admittedly acted upon in part performance thereof, but were and are, meant to be documents of sale in view of unrebutted statements of PW1 and the evidence of respondent nos. 1 and 2 as well as their pleadings.
70 Further it was strongly urged on behalf of the appellant that the Pages 19 to 33 Manjit Singh Vs. Jeet Singh
appellant being the son of Late Sardar Kartar Singh, after a period of more than 50 years, cannot be deprived of his right to the property, in any case, he had a right to protect his possession of the suit property, which was purchased for valuable consideration, thereby causing irreparable loss to the appellant and unjust enrichment to the respondent.
71 Further contended that the right to the property was not a personal right, but was a right to the estate of the deceased, and as such, inherited by the present appellant, by virtue of agreement, and "Will". 72 Further argued that respondent no. 1 himself, had been proved, to have requested the L&DO/respondent no. 2 on 26.08.1978, that the suit property may be substituted jointly in favour Sh. Jeet Singh/the defendant, and Sardar Kartar Singh (now deceased), and alongwith that, the affidavit of Sardar Kartar Singh (now deceased) had even been filed.
73 Ld. Trial Court held that it was only the personal right of the father of the appellant to have got Ex. PW1/6 enforced.
74 In spite of the entire evidence come up on record and apart from the objection regarding the documents Agreement to Sell etc. not being registered and not being documents of sale, above all what has weighed with the Ld. Trial Court, while dismissing the suit, and rightly so, has been the fact, that the suit is not one for declaration, but a suit for permanent and mandatory injunction in the Pages 20 to 33 Manjit Singh Vs. Jeet Singh circumstances was virtually a suit seeking declaration in the garb thereof. 75 Ld. Trial Court has very well relied upon a judgment of Hon'ble Supreme Court, wherein the distinction between the cases, where a simply suit for permanent injunction or mandatory injunction would be maintainable and where it would not be so maintainable, unless and until a declaration of the rights and title has been sought.
76 The argument from the side of the appellant/plaintiff has throughout been one based on his continuous possession for decades, same would have sufficed as a plea of adverse possession in case a suit had been filed by the defendant to recover possession.
77 I am not in agreement with the view taken by Ld. Trial Court that the right to enforce the agreement to sell was a personal right of the father of the appellant/plaintiff in his life time which he did not exercise, and which could not be a right enforceable by the appellant/plaintiff/plaintiff or in other words, the right to sue did not survive to the appellant/plaintiff.
78 Right to estate of a deceased father is not a personal right and it always passes on as per the laws of succession as the case may, be either through as per Indian Succession Act, in case of a Will, or as per Hindu Succession Act in intestate cases. The amount of money spent by the father of appellant/plaintiff at the time of execution of the agreement to sell could always be recoverable by his Pages 21 to 33 Manjit Singh Vs. Jeet Singh son after his death, as just as the legal representatives can be saddled with the liabilities of their father or mother, they also get the right inherit the assets as well as. Therefore, the right to enforce the agreement to sell did not lie with the appellant/plaintiff was misconceived.
79 But, even so, since the appellant/plaintiff did not seek to enforce the said agreement to sell, the controversy is no more relevant. 80 The appellant/plaintiff had remedies available to him i.e. to seek performance of the agreement to sell or to seek a refund in the alternative and also he had the remedy to file a suit for declaration, but both of which he opted not to do, and instead he came up in the garb of suit for permanent and mandatory injunction.
81 His entire main prayer in the main suit, is only that his possession should not be interfered with by the defendant. It is not that the plaintiff was praying that he should not be dispossessed 'without due process of law'. Had it been a case where, the plaintiff had prayed for an injunction from being dispossessed without due process of law, he certainly could have come up with the suit for permanent injunction simplicitor and certainly same would have been granted to him, with hardly any debate and as in most cases, the defendant even makes a statement/undertaking that he shall not dispossess the plaintiff without "due process of law".
Pages 22 to 33 Manjit Singh Vs. Jeet Singh 82 Here was not this case. What the plaintiff was seeking is clearly, a kind
of indirect declaration about his right to continue in possession of the property and avoiding to seek the relief of declaration directly.
83 Taking into account the entire material that came up on record and that was produced by the respondent/defendant no.2 at the trial, which they could have produced as a witness, as rightly held by Ld. Trial Court as well, the maximum that the plaintiff has been able to establish was that the defendant had obtained sale permission from the respondent/defendant no.2 w.r.t the suit property, but then it is not always necessary that just obtaining the sale permission would be the end of the road.
84 After obtaining the sale permission, the defendant was required to execute the sale deed and if he just did not to do so or he failed to do so, the remedy in that case lay with the plaintiff, to seek specific performance of the agreement. The point being that even taking the entire averments of the plaintiff also on the face of it to be correct and established, even so legally, his suit in the present form was not maintainable.
Ld. counsel for appellant/plaintiff then relied upon the provisions of Section 53(A) of the Transfer of Property Act relating to the cases of part performance. As per which, "where any person contracts to transfer for consideration any immovable property Pages 23 to 33 Manjit Singh Vs. Jeet Singh 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 contract, 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 therefor by the law for the time being in force, the transferor 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 transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
85 However, this provision in the circumstances would not be of any help Pages 24 to 33 Manjit Singh Vs. Jeet Singh to the case of the appellant/plaintiff as already above stated that plaintiff did not claim any protection form being dispossessed forcibly without the process of law. 86 Firstly, it was not the plaintiff alone who could claim to be having the locus standi to file the suit. He was only one of the LRs of deceased father and the other LRs had not been joined in the suit. As such, firstly he could not claim that he was the only LR and secondly, it was not even his case that he wanted to perform or he was willing to perform his part of the contract. He was not seeking performance of the remaining part of the contract at all whatsoever. Without seeking any performance of the remaining part of the property, how the plaintiff could be wanting to exercise a right in the property, was clearly an attempt on his behalf to obtain a declaratory right without praying for it and without paying for it. 87 Even otherwise, the alleged instrument of transfer was itself, as rightly by Ld. Trial Court, not even duly registered under the Indian Registration Act and thus, it could not be even held that the instrument was a valid instrument of transfer.
88 Furthermore, coming to the last part of this provision, the present case was not the one where the transferor or any other person claiming under him was trying to enforce against the alleged transferee (the plaintiff and persons claiming under him, any right in respect of the property of which the transferee had taken or was continuing in possession) other than the rights expressly provided by the terms Pages 25 to 33 Manjit Singh Vs. Jeet Singh of the contract. There was no cross suit filed by the defendant nor it was the prayer by the plaintiff that he was in the apprehension that he would be dispossessed by the respondent no.1/ defendant no.1 without due process of law. 89 Further the proviso that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof, in fact, indicates that it pertains to transferee who is not a party to the contract e.g. a person already having purchased the property without knowledge about the part performance contract between the vendor and the purchaser.
90 In the present case, plaintiff himself is claiming to step into the shoes of his father, the intended purchaser and therefore, he has not claimed himself to be the third party and therefore, this proviso would not be applicable to him. 91 No doubt, the 'transferee' referred to in the first para of this Section may be entitled to resist any attempt on the part of the 'transferor' to disturb transferee's lawful possession under the contract of sale and his position either as a plaintiff or as a defendant should make no difference and the contrary interpretation that the 'transferee' can use the shield only as a defendant and not as a plaintiff would be incorrect and would defeat the spirit of Section 53(A) though it would become possible for an over powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the Pages 26 to 33 Manjit Singh Vs. Jeet Singh court as plaintiff (so held in the Dharamji Vs. Jaganath Shankar Jadhav, AIR 1994 Bom 254). Even then this would not be applicable to the case of the plaintiff as the plaintiff has not claimed that he is being dispossessed or he fears being dispossessed from the suit property without due process of law. 92 In fact, not only his prayer in the plaint, but even all his averments in the plaint did not reflect any such apprehension and above all, the plaintiff never sought specific performance of the remaining part of the contract. This provision so heavily relied upon by the ld. counsel for appellant/plaintiff cannot give any benefit to the plaintiff in the present case. Fearing being dispossessed without due process of law and seeking a direction restraining the defendant not to interfere with the possession of the plaintiff are two different things and cannot be treated at the same footing. Where title is in dispute and the possession is based on title, a simplicitor suit for an injunction like the present one would not be maintainable. 93 In Anthula Sudhakar Vs. P. Buchi Reddy (Dead) By LRs & Ors. Civil Appeal No. 6191 of 2001, Hon'ble Supreme Court has held as under: "11. 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 being as under: 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or Pages 27 to 33 Manjit Singh Vs. Jeet Singh 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 wrongful 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 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. Where the title of 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."
"13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, Pages 28 to 33 Manjit Singh Vs. Jeet Singh as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally."
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have 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 simplicitor.
(b) As a suit for injunction simplicitor 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.
(c) 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 as implied in Annaimuthu Thevar (supra). Where the averments regarding title are absent in a plaint and where there is no issue Pages 29 to 33 Manjit Singh Vs. Jeet Singh 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.
(d) 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 i 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."
94 Ld. counsel for appellant/plaintiff then referred to the provisions of Pages 30 to 33 Manjit Singh Vs. Jeet Singh
Section 202 of the Indian Contract Act, 1872, which provides that where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
95 One of the illustration being that A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. 96 The present dispute is not between the principle and the agency. How this provision would have been applicable to the given situation was not explained and is not understandable. As such, reference was misconceived. 97 Thereafter, ld. counsel for appellant/plaintiff relied upon a judgment of our own Hon'ble High Court in the case of Hardip Kaur Vs. Kailash & Anr in RFA No.648/06 decided on 18.05.2012 reported in 1993 (2012) DLT 168. However, no advantage could be drawn by the appellant/plaintiff from the ratio of the said decision. In fact, the subject matter of the decision was about the validity of the documents of transfer in the light of the judgment in the case of Suraj Lamp Industries Vs. State of Haryana. However, the said judgment would not even be applicable to the present case as plaintiff did not even seek any such declaration to declare his documents as valid mode of transfer as already observed throughout.
98 Suit herein has been filed for permanent and mandatory injunction Pages 31 to 33 Manjit Singh Vs. Jeet Singh
simplicitor without seeking any declaration and therefore, the said citation is wholly inapplicable to the given set of facts and circumstances. For the same reasons, reference by ld. counsel for appellant/plaintiff to the provisions of Section 17(2) and Section 5(2) of the Transfer of Property Act would also not have any relevance. 99 Section 5(2) of the Transfer of Property Act would have been of help to the plaintiff had he sought specific performance of the agreement, which is not the case. Reliance of Section 17(2) of the Transfer of Property Act is wholly misplaced as well.
100 In fact in the written submissions filed by ld. counsel for appellant/plaintiff, one of the points that he has raised is that no issue regarding title/ownership had been framed by Ld. Trial Court.
101 This would not have been required when the plaintiff was not seeking any such declaration of his ownership.
102 Most of the written submissions are w.r.t. the alleged validity of the documents of transfer, but again for the same reason, when plaintiff did not seek either any declaration nor he sought any specific performance of the agreement, thus, arguments became wholly irrelevant.
In view of the above discussion, I find no infirmity with the decision of Ld. Trial Court though on slightly different reasoning.
Appeal is devoid of merits, and same is dismissed.
Pages 32 to 33 Manjit Singh Vs. Jeet Singh TCR be returned alongwith copy of the detailed order.
Appeal file be consigned to record room.
(SUJATA KOHLI)
Announced in Open Court ADDITIONAL DISTRICT JUDGE
today i.e. 03.04.2014 WEST/DELHI
Pages 33 to 33 Manjit Singh Vs. Jeet Singh