Delhi District Court
Order vs . on 6 February, 2015
1
In the court of Ashwani Kumar Sarpal, Additional District Judge-01
North East District, Karkardooma Courts, Delhi.
Ms. Poonam & others
vs.
Sh. Ram Naresh & others
(MCA No.-13/2014)
Date of filing of appeal----------27-11-2014
Date when order was reserved--31-1-2015
Date of final decision---------------6-2-2015
(Appeal against the order dated 13-11-2014 passed in suit no.
33/14 by the court of Sh. Ankur Jain, JSCC/ASCJ/G. Judge,
Karkardooma Courts)
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ORDER:-
Five appellants/plaintiffs who are the legal heirs of deceased Sh. Shiv Singh are challenging the impugned order dated 13-11-2014 by which their application under Order 39 Rule 1 and 2 CPC was dismissed. There is no dispute of the fact that possession of the suit property bearing shop no. 15, New Seelampur Market, Delhi at present is in possession of plaintiffs. It is also not in dispute that 2 this shop was once allotted to respondent no. 1/defendant no.1 by the govt. Defendants no. 3 and 4 are also the legal heirs of late Sh. Shiv Singh.
In the suit, plaintiffs are seeking declaration that eviction order dated 3-2-2011 passed by ld. ARC in eviction petition bearing no. E-34/10 instituted by defendant no. 1 against defendant no. 2 and 4 is null and void and not binding upon them. They also sought relief to declare themselves to be legal co-owners of the shop in question on the basis of adverse possession since 26-3-1963 and on the basis of the sale document dated 10-2-1980 executed by defendant no. 1.
Defendant no. 1 has filed execution petition to enforce the eviction order dated 3-2-2011 and plaintiffs have filed objections in the same which are still pending. Order 21 Rules 97 to 103 deals with the similar situation and is a complete code itself. Even if for the sake of arguments, it is presumed that defendant no. 1 obtained the eviction order from the ARC court by playing fraud and by not disclosing the fact who actually were in possession of the suit property and in which capacity, then also this controversy can be decided effetely by the executing court. Rule 101 clearly bars filing of separate suit for purpose of deciding the question relating to right, title and interest in the property. Under Rule 97, the word 'any person' includes any one to approach the executing court who wants to resist or obstruct the possession decree on any grounds. Supreme Court in Shreenath vs. Rajesh AIR 1998 SC 1827 held that a third party in possession of property claiming independent right of a decree for possession of immovable property under execution could resist such 3 decree by seeking adjudication of his objections under Order 21 Rule 97 CPC.
Under Order 21 Rule 97 CPC, any person who is even apprehending dispossession can also make application to the executing court and that court is obliged to make an enquiry into the allegations and pass an order after such enquiry into the right, title and interest of the applicant. Such applicant has to show that he is not bound by the decree or claims an independent right over the property unconnected with that of the JD. Supreme Court in N.S.S. Narayana Sarma vs. Goldstone Exports (P) Ltd. AIR 2002 SC 251 held that if after enquiry, any order is passed by the executing court, then the same has to be treated as decree under Rule 103 and appeal can be filed against such order.
The core issue of enquiry before the Executing Court will be whether the present plaintiffs are claiming their independent rights or interest unconnected with the defendants no. 2 and 4 or through/under them. If executing court finds that plaintiffs have come on the basis of their own independent rights, then that court itself can refuse their eviction as well as can pass interim protection till the objections are decided. The provisions of Order 21 Rule 97 to 103 itself are sufficient to deal with such type of situation. Hence, I am fully agreed with the opinion of the ld. Trial Court that when alternative effective remedy is available to the plaintiffs then no interim injunction can be granted.
Delhi High Court in Bharat Bhushan Jain vs. UOI 212 (2014) DLT 593 held that the plea of ownership by purchase and the plea of ownership by adverse possession are not only inconsistent 4 stands but mutually destructive stands. In law, alternative and inconsistent stands can be raised but mutually destructive stand cannot be taken up in the pleadings. This is for the reason that pleadings have to be substantiated by evidence and once plaintiffs take up the plea of adverse possession and depose to the same, they are destroyed by their own evidence/deposition/ testimonies of their case of ownership by purchase.
Plaintiffs are taking two different contradictory stands in their plaint. On one hand, in para no. 8 of the plaint, they are claiming to have become owner of the suit property by way of adverse possession being in occupation of the same since 1963 on basis of some hand written note whereas on another hand in para no. 5, it is alleged that defendant no. 1 had sold this shop to Sh. Shiv Singh on 10-2-1980 by executing sale letter and issuing written receipt. Hence, due to taking of contradictory version in the plaint, there exists no prima facie case in favour of the plaintiffs. In this regard, also the findings given by the ld. Trial Court while rejecting the injunction application is correct.
The another argument advanced by the counsel for the plaintiffs that even if plaintiffs are in illegal possession of the suit property then also they cannot be dispossessed except with due process of law so are entitled to be protected by grant of injunction. This submission is not fully acceptable because Supreme Court in Nagar Palika, Jind vs. Jagat Singh AIR 1995 SC 1377 held that trespasser is entitled to protect his possession and cannot be dispossessed except in due process of law but not against the true owner.
5Defendant no. 1 was the owner of the suit property being allotted to him. The question whether he had transferred the same to Sh. Shiv Singh by writing handwritten note dated 26-3-1963 or by executing sale letter dated 10-2-1980 is contentious issue which cannot be decided at this stage but certainly due to taking of contradictory stand at this stage, plaintiffs are not entitled to any interim injunction. Further more, defendant no. 1 had already taken legal step for getting the suit property vacated by filing eviction petition and plaintiffs are contesting the same by filing objections. Accordingly, the executing court has to decide this issue and grant of any interim protection is not made out. The case law Ladhuram vs. Suraj Bux AIR 1958 Rajasthan 294 which says that proof of long possession of portion of house without any documentary proof create presumption of ownership and declaration of ownership can be given to such occupant. This decision is not applicable to the present facts and circumstances because here in the present case, plaintiffs are claiming ownership not only by way of adverse possession on basis of some hand written note of 1963 but also through sale letter of 1980 and it is not a case of any absence of documents.
Counsel for the plaintiffs while citing the case law Sumitra Devi vs. Shanti Devi 2005 (1) Current Civil Cases 1 also argued that in similar situation, Supreme Court had granted interim protection in a separate suit filed for challenging the possession decree on basis of fraud. However, if this judgment is read as a whole, then last lines of para no. 8 clearly says that injunction is being granted in the particular facts and circumstances of the case. Further more, the facts and circumstances of this cited case are slightly different from 6 the present case because in this case, firstly the objections filed in execution were dismissed which order was confirmed upto High Court and thereafter with consent of opposite party, the objector was allowed by the High Court to challenge the eviction decree by way of separate suit.
In view of the above discussions, the present appeal is hereby dismissed. The impugned order of ld. Trial Court dated 13-11- 2014 rejecting the interim stay application under Order 39 Rule 1 and 2 CPC is upheld. However, no observation made in this order will effect the merits of the case. Record of the Trial Court be returned with the copy of this order and appeal file be consigned to record room.
(Ashwani Kumar Sarpal)
Dt. 6-2-2015 Addl. District Judge- 1