Delhi District Court
Smt. Beero vs Sh.Naresh & Ors on 5 September, 2011
IN THE COURT OF SH.VIKAS DHULL:SENIOR CIVIL JUDGE:
CUM:RENT CONTROLLER:DWARKA COURTS: NEW DELHI
CS NO:04/09
Smt. Beero .....Plaintiff
Vs.
Sh.Naresh & Ors. ....Defendant
Date on which Order reserved : 29.08.2011
Date on which Order pronounced : 05.09.2011
ORDER
1. Vide this order, I shall dispose of an application filed by plaintiff U/o 39 Rule 1 & 2 r/w Section 151 Code of Civil Procedure, 1908 (hereinafter referred to as CPC).
2. The brief facts relevant for deciding the present application are that plaintiff has filed the present suit for possession and for permanent injunction against the defendants wherein it is averred that defendant no.1 is real brother of the plaintiff and defendant no.2 is the father of the plaintiff. It is also averred that plaintiff is the owner of the suit property measuring 200 sq yards falling in Khasra no.16/24/1,Village Pochan Pur, Delhi.
3. It is averred that suit property was sold by defendant no.2 to the CS-04/09 1/6 plaintiff for Rs.30,000/ on 04.11.1988. It is further averred by the plaintiff that after purchasing the plot , she constructed four rooms for the purpose of letting out the same on rent. However, since the room remained vacant and having regard to the request made by defendant no.1, she gave the four rooms to defendant no.1 in the year October 2006 for the purpose of defendant no.1's business for storing cement. It is further averred that four rooms are built up on the area of 50 sq yards and defendant no.1 intends to merge the suit area in its adjoining plot of 200 sq yards to make it 250 sq yards plot. Accordingly, vide the present application, it is prayed that defendants be restrained from demolishing, alienating and creating third party interest in respect of suit property falling in khasra no. 16/24/1, village Pochan Pur, Delhi during the pendency of this case.
4. In the reply filed by the defendants, it is submitted that suit property forms part of plot no. 19, Khasra no. 16/23/2, Village Pochan Pur in which plaintiff does not have any right, title or interest. It is further submitted that plot no.19 has already been sold by its owner that is defendant no.2 to one Bhagwan singh Saini, who is in possession of the same. It is further submitted that no plot was sold by defendant no.2 to the plaintiff for Rs.30,000/. It is further submitted that since plaintiff was in need of accommodation, as her inlaws had thrown her out from matrimonial house, therefore plaintiff being the daughter CS-04/09 2/6 of defendant no.2 was allowed to construct a room, Kitchen and bathroom in khasra no. 16/24/1 and plaintiff was permitted to live in the said portion alongwith her family members on temporary basis as a licencee/permissive user. Accordingly it is prayed that application of the plaintiff be dismissed.
5. In the rejoinder filed by the plaintiff, it was admitted that defendant no.2 is the owner of khasra no. 16/23/2, as well as khasra no. 16/24/1, village Pochan Pur, Delhi. However it was again reiterated that plaintiff is the owner of 50 sq yards area illegally occupied by defendant no.2 which falls in khasra no. 16/24/1, village Pochan Pur, Delhi.
6. I have heard the counsel for the plaintiff and counsel for defendant no.1 and have carefully perused the material available on record.
7. It is settled principle of law that for the purpose of granting interim injunction, the plaintiff has to satisfy the following three ingredients:
(a) Prima facie case in her favour.
(b) Balance of convenience in her favour.
(c) Irreparable loss being caused to the plaintiff in case injunction is refused
8. In the present case, plaintiff is claiming that she is the owner of 200 sq yards plot falling in khasra no. 16/24/1, Village Pochan Pur, after having purchased the same from defendant no.2, that is her CS-04/09 3/6 father. It is also the case of the plaintiff that 50 sq yards area is in illegal possession of defendant no.1 of which she is the owner. Accordingly, she has made a prayer for injunction against defendants with regard to demolishion, alienation and creation of third party interest. In order to prove her ownership, plaintiff has also filed on record ownership documents in the form of GPA, affidavit, agreement to sell, registered receipt all dated 04.11.1988. All these documents of sale except receipt are unregistered.
9. It is settled principle of law that on the basis of unregistered documents, no right, title or interest can pass in respect of immovable property. I am fortified in my reasoning by the judgment of Hon'ble Supreme Court of India reported as Suraj Lamps & Industries P. Ltd. Vs. State of Haryana AIR 2009(SC) 3077
10. Although plaintiff claims that the suit property was sold to her by defendant no.2 that is her father but defendant no.2 has denied execution of any documents by him in favour of the plaintiff. On the contrary, stand of defendants is that plaintiff is a permissive user of 17075 Sq yards area falling in khasra no. 16/24/1. The defence put forward by defendant is believable at this stage because as per the Khatoni filed on record by the Revenue Officials of the year 20022003, the owner of khasra no. 16/24/1 has been shown to be defendant no.2. It is not believable that plaintiff who had made the CS-04/09 4/6 alleged purchase from defendant no.2 way back in November, 1988 will not get her name mutated in the revenue records pursuant to the purchase of suit property. Therefore prima facie, it is believable that defendant no.2 had not sold the property to the plaintiff and she was only a permissive user.
11. In the present case, the ownership documents filed on record by the plaintiff are unregistered, therefore no right, title or interest could have passed on the basis of unregistered documents in favour of the plaintiff with regard to suit property falling in khasra no. 16/24/1, village Pochan Pur, Delhi. Even otherwise, since defendants was disputing that alleged illegally occupied 50 sq yards area is falling in khasra no. 16/24/1 and had further submitted that suit area falls in khasra no. 16/23/2, village Purchan Pur, Delhi, the Ld. Predecessor of this court sought a demarcation report from the concerned Tehsildar. Thereafter Tehsildar, Vasant Vihar had filed his demarcation report dated 03.07.2009 on record. The said demarcation report was prepared by Revenue officials in the presence of parties to the present suit. As per the said report, the alleged 50 sq yards area falls in Khasra no 16/23/2, village Pochan Pur, Delhi. It is further submitted in the report that Khasra no. 16/23/2 and khasra no. 16/24/1 are owned by defendant no.2 that is father of plaintiff. Therefore the demarcation report filed on record by the CS-04/09 5/6 Revenue officials also does not support the case of the plaintiff that suit property falls in khasra no. 16/24/1 of which she is claiming herself to be the owner.
12.Therefore even assuming that the plaintiff has purchased the plot falling in khasra no. 16/24/1, village Pochan Pur, Delhi ,than also plaintiff does not have any right, title or interest in the suit property, which as per report of revenue officials falls in Khasra no. 16/23/2, village Pochan Pur, Delhi.
13.In the light of the above discussion, since there is prima facie material on record to show that plaintiff is not the owner of suit property which falls in Khasra no. 16/23/2, village Pochan Pur, therefore plaintiff is not entitled for discretionary relief of injunction. Hence, the application filed by the plaintiff is accordingly dismissed.
However, it is made clear that nothing expressed hereinabove shall tantamount to expressing anything on the merits of this case.
Announced in the open court (Vikas Dhull)
Dated: 05.09.2011 SCJ:RC
Dwarka/Delhi
CS-04/09 6/6