Delhi District Court
Sh. Rajinder Singh & Ors vs Sh. Devender Kumar on 18 February, 2016
Suit No. 416/14
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (NORTH): ROHINI COURTS: DELHI
Suit No.416/14
Sh. Rajinder Singh & Ors.
........Plaintiff
Versus
Sh. Devender Kumar
....Defendant
Order:
Vide this order, I shall dispose of an application under Order
XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against the
defendant. The brief facts for the effectual disposal of the instant application
are as follows:
1.That the mother of the plaintiffs no. 1 and 2 and motherinlaw of plaintiffs no. 3 and grand mother of plaintiffs no. 4 to 7 namely Smt. Bharto Devi W/o late Sh. Ram Sarup are the owner and in position of property bearing Khasra no. 1862/ 1 (20) and Khasra no. 1909 /2 (317) total land 5 bighas and 17 biswa situated at Village Alipur Delhi along with Smt. Sasrti Devi W/o Late Sh. Chhotu vide registered sale deed dated 06.02.1982. That after the death of Smt. Bharto Devi W/o Late Sh. Ram Sarup the plaintiffs Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 1/12 Suit No. 416/14 became the owner of the above said property and the plaintiffs are looking after and visiting the above said property after every 1015 days. However, the defendant has been casting threats and trying to demolish boundary wall allegedly constructed by the plaintiff and also threatening stating that the defendant is owner of the suit property. Owing to the constant threats of the defendant, the plaintiff has filed the present suit praying that the defendants, their agents, associates, servants, attorney etc. be retrained to enter in the property belonging to the plaintiffs bearing Khasra no. 1832/1 (20) and Khasra no. 1909/2 (317) total 5 bighas and 17 biswas situated at village Alipur, Delhi.
2. In support of their contention, the plaintiff has filed various documents i.e. copy of SPA in favour of the plaintiff no. 7 executed by remaining plaintiffs , copy of sale deed, copy of Khasra Girdawari for the year 198487 and the site plan. Subsequently on 21.09.2015 plaintiffs also filed the copy of the Khasra Girdawari for the year 1984 and Kisan Pustika for the year 1984. Some more documents were filed today itself during the course of the day on 18.12.2016 i.e. copy of application dated 27.01.2015 to the Tehsildar, Alipur (at naya bans) and copy of registered Karwahi.
3. Vide a separate WS it is stated that property bearing Khasra no. 1862/1, (20) is nonexisting. That the plaintiffs by way of present suit has Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 2/12 Suit No. 416/14 been making a false, frivolous and baseless claim in respect of the land/ property bearing no. 91/ 25 min (507) situated in the revenue estate of VillageAlipur, Delhi36 which belongs to the defendant, Sh. Sushil Kasera and Smt. Sikha Kasera only. Even the documents filed by the plaintiffs with the plaint have not concern with the land/m property of the defendant, Sh. Sushil Kasera and and Smt. Sikha Kasera and the documents filed by the plaintiff are forged, fabricated and bogus documents. That the plaintiff have no right, title or interest in the land/ property bearing no. 91/25 min (507) situated in the revenue estate of VillageAlipur, Delhi36 in any manner whatsoever. It is submitted that the plaintiffs have made false claim against the property of the defendant and other coowners.
It is submitted that the defendant along with Sh. Sushil Kasera and smt. Sikha Kasera are the recorded owners and in physical possession of the land/ property bearing Khasra no. 91 /25 min (211) and 91/25 min (2
16) total measuring 5 bigha 7 biswas. The defendant, Sh. Sushil Kasera and Smt. Sikha Kasera purchased the said land from its recorded owners on the basis of registered sale deeds dated 08.05.2012, 02.09.2014 and their mutations have been duly recorded in the revenue record. Since the time of their purchase, the defendant, Sh. Sushil Kasera and Smt. Sikha Kasera have been in use and occupation of their said property without any interruption from anyone. They have got constructed one room in their property bearing Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 3/12 Suit No. 416/14 Khasra no. 91 /25 min (507) situated in the revenue estate of villageAlipur, Delhi. That after Consolidation Proceedings in 1987 defendants have been granted land which is now bearing no. 91/25 (507) in lieu old khasra no. 1540. It is alleged that the plaintiff deliberately has not mentioned Khasra nos. after the consolidation which took place in the year 1987 and have filed false and frivolous case.
4. In support of his contention the defendant has filed various documents i.e. copy of sale deed dated 08.05.2012 in favour of defendant along with mutation order dated 14.07.2012 in favour of the defendant, copy of sale deed dated 01.09.2014 in favour of the defendant along with mutation order dated 14.10.2014, copy of sale deed dated 01.09.2014 in favour of Sh. Sushil Kasera and Smt. Sikha Kasera along with mutation order dated 14.10.2014, copy of sale deeds dated 20.04.2012 in favour the erstwhile owner Smt. Kavita Jain and Smt. Pooja Goel along with mutation order dated 21.05.2012, copy of Khasra girdawari for the year 199091, 199192, 199495, 200708 and 201415, copy of the electricity bill dated 01.11.2014 in the name of the defendant.
In addition to the same on 11.02.2016 defendants also filed some additional documents viz. Copy of the application along with the report of the patwari in respect of the Khasra no. (old) 1562, 1540 and 1541 and in Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 4/12 Suit No. 416/14 lieu of old nos. New Khasra no. allotted to the defendant I.e 91/25, copy of field book of the old khasra no. as well as new Khasra no. with the measurement, copy of khasra Girdawari for the year 20142015 inj the name of defendant of Khasra no. 91/25, copy of registrar Karwahi of the record of rights of Khasra no. 91/25, measuring 2 bighas 11 biswa, copy of the map/ Exseizra of the land bearing Khasra no. 91/25, copy of the mutation order in respect of the Khasra no. 91/25 in the name of defendant and other owners, copy of registrar Karwahi and record of rights of the land bearing Khasra no. 72/20 and 93/23, copy of the field book of the old Khasra no. i.e. 1909 New no. 93/23/1 and 23/2 old Khasra no. 1862 New no. 72/20, copy of the Map. Masavi of VillageAlipur showing old Khasra no. and New Khasra no. including the aforesaid Khasra nos. claimed by both the parties.
5. I have heard the arguments at length by counsels for both parties and gone through the material available on record.
6. It is a settled law that a party is entitled to an order of injunction only if he is able to satisfy the court that a strong prima facie case has been made out in his favour, the balance of convenience also lies in his favour and that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 5/12 Suit No. 416/14 the party raises a triable issue which needs investigation, consideration and adjudication.
The party is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction. The party is also to satisfy the court that noninterference by the court would result in an irreparable injury and that there is no other remedy available to him except one i.e. the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the party has to satisfy the court that he has acted bonafidely.
7. It is the case of the plaintiff that the mother of the plaintiffs no. 1 and 2 and motherinlaw of plaintiffs no. 3 and grand mother of plaintiffs no. 4 to 7 namely Smt. Bharto Devi W/o late Sh. Ram Sarup are the owner and in position of property bearing Khasra no. 1862/ 1 (20) and Khasra no. 1909 /2 (317) total land 5 bighas and 17 biswa situated at Village Alipur Delhi along with Smt. Sasrti Devi W/o Late Sh. Chhotu vide registered sale deed dated 06.02.1982. That after the death of Smt. Bharto Devi W/o Late Sh. Ram Sarup the plaintiffs became the owner of the above said property and Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 6/12 Suit No. 416/14 the plaintiffs are looking after and visiting the above said property after every 1015 days. However, the defendant has been casting threats and trying to demolish boundary wall allegedly constructed by the plaintiff and also threatening stating that the defendant is owner of the suit property.
8. It is the case of the defendant that property bearing Khasra no. 1862/1, (20) is nonexisting. That the plaintiffs by way of present suit has been making a false, frivolous and baseless claim in respect of the land/ property bearing no. 91/ 25 min (507) situated in the revenue estate of Village Alipur, Delhi36 which belongs to the defendant, Sh. Sushil Kasera and Smt. Sikha Kasera only. Even the documents filed by the plaintiffs with the plaint have not concern with the land/m property of the defendant, Sh. Sushil Kasera and and Smt. Sikha Kasera and the documents filed by the plaintiff are forged, fabricated and bogus documents. That the plaintiff have no right, title or interest in the land/ property bearing no. 91/25 min (507) situated in the revenue estate of VillageAlipur, Delhi36 in any manner whatsoever. It is submitted that the plaintiffs have made false claim against the property of the defendant and other coowners.
It is submitted that the defendant along with Sh. Sushil Kasera and smt. Sikha Kasera are the recorded owners and in physical possession of the land/ property bearing Khasra no. 91 /25 min (211) and 91/25 min (2 Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 7/12 Suit No. 416/14
16) total measuring 5 bigha 7 biswas. Since the time of their purchase, the defendant, Sh. Sushil Kasera and Smt. Sikha Kasera have been in use and occupation of their said property without any interruption from anyone. They have got constructed one room in their property bearing Khasra no. 91 /25 min (507) situated in the revenue estate of villageAlipur, Delhi. That after Consolidation Proceedings in 1987 defendants have been granted land which is now bearing no. 91/25 (507) in lieu old khasra no. 1540. It is alleged that the plaintiff deliberately has not mentioned Khasra nos. after the consolidation which took place in the year 1987 and have filed false and frivolous case.
9. At the very outset, it is pertinent to mention that the relief claimed by the plaintiff for the interim application as well as main suit are the same and it is settled law that in such circumstances the interim application should not be allowed as it would tantamount to deciding the suit itself without parties having led their respective evidence.
10. Further, I have carefully gone through the various documents filed by the plaintiff which have been relied by them. All the documents pertain to the year 19821984 and not a single document has been filed by the plaintiff after consolidation proceedings in the year 1987. Vizaviz.
Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 8/12 Suit No. 416/14 This, the defendants have placed on record the Khasra girdawari for the year 199192, 199495, 200708 and 200708. The defendants have placed on record copy of electricity bills of the year 2014 in Khasra no. 91/25 showing there is electricity meter installed in their names. Further, the defendant has placed on record the recent revenue record to show that they are registered owner of the suit property.
Apart from the various other documents defendants have placed on record Masavi of village Alipur showing the new Khasra nos. allotted and which reflects grage contradiction in the site plan filed by the plaintiff. The plaintiff in their site plan have given composite piece of land in Khasra no. which was relied upon by them. However, from the Masavi which has been filed by defendants it appears that Khasra of the plaintiffs i.e. 1862 is lying far away from the other khasra i.e. 1909 which the plaintiff have shown to be lying adjacent to each other. Moreover, the khasra claimed by the plaintiffs at are far away from the Khasras claimed by the defendants in Masavi which is adjacent to parallel road. It is surprising that how in such a scenario the plaintiffs are claiming that the defendant is trying to trespass and encroach upon their Khasra. Further, in view of this material contradiction between the masavi which is revenue record and the site plan filed by the plaintiff identification of the suit property itself comes under Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 9/12 Suit No. 416/14 grave doubt.
Further as stated above no documents of possession of any recent years or time has been placed by the plaintiffs. All the documents filed pertaining to the year 198284 or prior to 1987 including the Kisaan Pustika heavily relied upon by them, when the Consolidation Proceedings had not taken place. In these circumstances, at this initial stage, without parties having filed original documents or led evidence, no blanket injunction orders can be granted in favour of the plaintiff and ownership and possession of the plaintiff over the suit property remains a matter of trial.
Further, it would not be out of place to mention that suit also suffers from legal technical defects. The plaintiff in para 6 of his plaint has categorically stated that it is defendant who is trying to allegedly claim ownership over their suit property. In these circumstances, the title of the plaintiff over the suit property, further comes under cloud and appropriate remedy available with the plaintiff was to file suit for declaration along with consequential relief of injunction.
At this stage, reliance is placed on Anathula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 594 where it is held that "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 simpliciter will lie. A person has a right to protect his possession against any person who does Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 10/12 Suit No. 416/14 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.
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 simpliciter, without claiming the relief of possession.
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 the defendant, the plaintiff will have to sue for declaration of title and the consequential 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".
11. Thus, prima facie suit for injunction simplicitor filed by the plaintiff is as such not maintainable.
Moreover in light of the aforesaid observations and the fact that the identification of the suit property is under cloud as well as the fact that the plaintiff has not filed any cogent document to establish their ownership or possession specially after year 1987 over the suit property, at this preliminary stage, no prima facie case is made out in favour of the plaintiff.
Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 11/12 Suit No. 416/14 Accordingly, the application under order 39 rule 1 and 2 CPC dismissed.
12. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Be relisted for admission denial of documents and framing of issues on 08.04.2016.
Pronounced in the open court today on 18.02.2016 (SHEFALI SHARMA) CIVIL JUDGE (NORTH) ROHINI, DELHI/ 18.02.2016 Sh. Rajinder Singh & Ors. Vs. Sh. Devender Kumar 12/12