Delhi District Court
Sh. Sunil Mishra vs Rakesh Issar on 19 January, 2018
Page no. 1 of 15
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI
JSCCcumASCJcumGUARDIAN JUDGE,
SOUTH EAST, SAKET COURTS, NEW DELHI
MCA no. 5007/16
In the matter of:
1. Sh. Sunil Mishra
S/o Shri Shiv Kumar Mishra
2. Sh. Mohan Jha
S/o Shri Vaid Nath Jha
3. Shri Sunil Kumar Tiwari
S/o Shri Shawal Prasad Tiwari
All R/o:
Shiv Mandir, Near Fire Station,
Kalkaji, Nehru Place, Delhi19.
....................Appellants
VERSUS
1. Rakesh Issar
R/o K21, Kalkaji,
New Delhi19
2. Moksh Dham Sewa Vikas Samiti,
Through its Secretary,
661/8, Govind Puri, Kalkaji,
New Delhi19.
Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi)
MCA no.5007/16 JSCCcumASCJcumGuardiun Judge
South East, Saket Courts
19.01.2018 (r)
Page no. 2 of 15
3. Shiv Mandir Vikas Sewa Samiti (Regd)
Through Its Secretary, Shiv Mandir,
Near Fire Station,
Nehru Place, New Delhi19.
..............Respondents
Date of Institution: : 30.01.2016
Date of reserving order: : 06.01.2018
Date of Judgment: : 19.01.2018
ORDER
1. This is an appeal under Order 43 Rule 1 r/w Section 104 CPC against the order dt 06.01.2016 passed by Ms. Prabh Deep Kaur, Ld. CJ Saket Courts vide which the application under Order 39 Rule 1 & 2 of the appellants /plaintiffs was dismissed.
2. The brief facts of the case as per the appellants are that the appellants are residing at the suit premises i.e. Shiv Mandir and the residential complex situated within the same, along with their respective families. It is alleged that appellants are the priests in the temple and have been performing spiritual prayers etc at the behest of and for the benefit of all the devotees. It is alleged that appellants no. 1 & 2 are residing in the said temple with their respective families since the year 1999 and appellants no. 3 is residing there since the year 2004 and that they are in settled possession in the said temple. It is alleged that that appellants no. 1 & 2 had made Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 3 of 15 kachcha and then pakka construction from their own funds and with the passage of time, they also raised construction of the temple with their own funds and donation given by the devotees and other members of the society and they are also the owners of the super structure, existing on the land. It is alleged that since last two years, defendant no. 2 added by defendant no. 1 had started in the day to day functioning of the temple and they are threatening the plaintiffs to vacate the suit property or else they will be thrown out forcibly. Hence, the present suit along with the application under Order 39 Rule 1 & 2 was filed by the appellants.
3. The respondent no. 1 & 2 has opposed the case of the appellants and has alleged that appellants have no right, title or interest in the suit property. It is further alleged that the appellants were engaged by respondent no. 2 society to perform the spiritual prayers in the temple. It is alleged that the intention of the appellants turned malafied and they started challenging the rights of the respondent no. 2 society and formed a new society which is respondent no. 3. It is alleged that the respondent raised construction with the funds generated from the local residents and the contribution made by respondent no. 1 and the appellants never had the means the raised construction or develop the temple. It is alleged that the possession of the appellants in the temple is only as a priest working under the respondent no. 2 society. It is alleged that respondent no.1 and 2 are managing the affairs of the temple as well as the cremation ground.
Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 4 of 15
4. The Ld. Trial Court vide order dt. 06.01.2016, dismissed the application under Order 39 Rule 1 & 2 CPC of the plaintiff and hence the present application has been filed by the appellants /plaintiffs.
5. The appellants have inter alia averred that in the appeal the Ld. Trial Court has gravely erred in observing that the appellants were not able to show prima facie case in this favour. It is further alleged that the Trial Court did not appreciate that legal right of the plaintiff is in material in a simplicitor suit for injunction based on possession. It is further alleged that the Trial Court gravely erred in holding the DDA is a necessary party to the suit. It is further alleged that Trial Court erred in holding that main relief is same as a relief sought in interim application and therefore, it cannot be granted. It is also alleged that the Trial Court erroneously came to the conclusion that appellants are claiming rights and possession over the property of the "deity".
6. The appeal has been opposed by respondent no. 1 & 2 by filing a reply reiterating the averments made in the WS.
7. Heard. Record perused.
8. In the present case, plaintiffs have alleged that they are residing in the temple and have been performing spiritual prayers etc since the year 1990 and the plaintiff no. 3 have been residing there since 2004 and the plaintiffs are in settled possession of the Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 5 of 15 said temple and that they are also the owners of the superstructure existing on the said land. The plaintiffs/ appellants sought temporary injunction against the defendants to restrain the defendants from forcibly dispossessing the plaintiffs from the suit property and from creating interference in the day to day working and management of the temple and the suit property. The said application was opposed by the defendant no. 1 & 2 on the ground that appellants have no right, title or interest and that the appellants were engaged by respondent no. 2 society to perform the spiritual prayers in the temple and the appellants were working as priests only under the respondent no. 1 & 2 but the appellants have started challenging the affairs of respondent no. 2 society, after sudden death of the President of respondent no. 2 in 2015. It is further submitted that no injunction can be granted against the true owner. It is alleged that even for the installation of electricity, the appellants had obtained NOC from respondent no. 2 society. It is submitted that employee, care taker etc are not entitled to injunction against their employers /owners.
9. The application of the plaintiffs has been dismissed by the Ld. Trial Court vide order dated 06.01.2016 and hence the present appeal.
10 The appellants have sought the relief of injunction against the defendants solely on the basis of their possession over the suit property and not on the basis of title or ownership. It is well settled law that the person who is claiming possession must clearly state as Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 6 of 15 to how he came in possession of the suit property and the pleadings must reflect those facts. In Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, the Hon'ble Apex court observed as follows: "70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive:
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents;
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession--whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, licence fee or lease amount;
(h) If taken on rent, licence fee or lease--then insist on rent deed, licence deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants, etc.;
(j) subsequent conduct i.e. any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession.
11. In the present case, the plaintiffs /appellants have failed to disclose in the plaint as to how they came in possession of the suit property or who are the owners or title holder, or who possesses the Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 7 of 15 title documents etc.
12. The plaintiff has filed the suit for injunction on the basis of possession of the suit property. The "suit proeprty" has not been clearly specified in the plaint. The site plan filed by the plaintiff is a rough sketch which does not specify the clear boundaries or directions or the dimensions of the suit property. It is also not clear from the plaint, whether the plaintiff is claiming possession over the temple or the residential area where plaintiffs are residing. The plaint is drafted in a complex manner which does not clarify the situation.
13. It is also well settled law that a person who claims the relief of injunction which is discretionary and equitable, must come to the court with clean hands. It is also trite in law that for seeking the relief of injunction on the basis of possession, the possession must be lawful and legal. It was held by the Hon'ble Apex Court in Mulji Umershi Shah v. Paradisia Builders Pvt. Ltd., 1997 SCC OnLine Bom 65 as follows: "11.Mr. Singhvi, the learned senior counsel for appellantplaintiff sought to urge that in the suit for injunction based primarily on possession, question of title cannot be gone into and therefore while considering the application for temporary injunction the only consideration before the Court was possession and not the title of plaintiff. The contention is neither impressive nor sound. In the suit for perpetual injunction the Court may be called upon to hold inquiry in title, right, interest or status, as the case may be, of the plaintiff to find out Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 8 of 15 whether plaintiff is entitled to protection of his possession by decree of injunction. The same consideration, prima facie, is required to be seen while considering an application for temporary injunction. The question of possession presupposes lawful possession and for adjudication of that question whether finally or at interlocutory stage, the inquiry into title, right, interest or status of plaintiff is not foreign to the subject matter."
14. It was observed by the Apex Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594 as follows: "15. In a suit for permanent injunction to restrain the defendant from interfering with the 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 the defendant tried to interfere or disturb such lawful possession."
15. The appellants have challenged the Trial Court order on one of the grounds that the trial court has failed to distinguish the reliefs and passed an erroneous order and that the appellants had claimed restraint orders qua the portion in which they are residing and for orders for not creating any hinderance in performing day to day pooja qua the temple complex. Such averments in the appeal are highly misconceived as no such relief has been sought in the plaint or in the application. The plaintiffs have not clarified the suit proeprty properly and they have not properly clarified the relief sought qua the residential portioin or qua the temple complex. Such averments Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 9 of 15 are being raised only at the appellate stage which are not admissible and are hereby rejected.
16. Further the Appellants have claimed themselves to be the owner of the superstructure over the land but even for the sake of arguments, it is assumed that they are owners of the superstructure, that does not ipso facto makes them the owner of the land beneath the super structure.
17. It is not claimed by the appellants that they are the owners of the land or that the temple is a private temple. The suit has been filed solely on the basis of possession but the appellants have failed to show how they came in possessiion of the suit property and how their possession is lawful.
18. The appellants have claimed themselves to be the priests in the temple which fact has not been denied by the respondents. Being the priests in the temple, the appellants cannot claim exclusive possession over the property. A priest in a temple is for offering prayers and performing rituals for the devotees and he cannot be said to be in possession of the temple and he has no right to live in the temple. He is no more than a caretaker or a manager of the temple. His possession, if any, can only be said to be that of a trustee for the owner or the general public. He cannot claim a right to possession of the temple.
19. It was observed by the Apex Court in Maria Margarida Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 10 of 15 Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370 as follows: "97. Principles of law which emerge in this case are crystallised as under:
(1) No one acquires title to the property if he or she was allowed to stay in the premises gratuitously.
Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(2) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
(3) The courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
(4) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or licence agreement in his favour.
(5) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
20. The appellants have claimed themselves to be in settled possession of the temple.
21. Mere possession does not entitle a person to grant of an injunction against dispossession. Appellant/plaintiff admittedly does not claim possession on account of ownership of the possession Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 11 of 15 cannot be claimed to be retained on the ground of ownership. The only way in which possession can be protected is that the possession must be settled possession. What is the settled possession has been expounded by a Division Bench of three Judges of the Supreme Court in the case of Rame Gowda (Dead) by Lrs. v. M. Varadappa Naidu (Dead) by Lrs. (2004) 1 SCC 769.
22. The relevant para of the judgment in Rame Gowda's case (supra) is para 9 and which reads as under:--
The phrase settled possession does not carry any special charm or magic in it nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession. The court laid down the following tests which may be adopted as a working rule for determining the attributes of "settled possession":
i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
ii) that the possession must be to the knowledge (either express of implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi.
The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 12 of 15
iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land. would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession".
23. In fact, the Supreme Court has in various judgments held that the discretionary and equitable relief of injunction should not be granted to a trespasser with respect to public land. The two judgments of the Supreme Court are:--
(A) Premji Ratansey Shah v. Union of India (1994) 5 SCC 547;
(B) Mahadeo Savlaram Shelke v. Pune Municipal Corporation (1995) 3 SCC 33;
24. The relevant paras of the judgment in the case of Premji Ratansey Shah (supra) read as under:--
"4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 13 of 15 Land Acquisition Officer on 24.2.1960. Thus defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibai. The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. 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. 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, the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. 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 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 the 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."
25. The relevant para of the judgment in the case of Mahadeo Savlaram Shelke (supra) reads as under:--
Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 14 of 15 "9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on the resolutions passed by the Municipality on 11.11.1972 and 29.11.1972. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made as on the date of the resolutions. In this case, since the acquisition proceedings have become final then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition was made. In that context the question arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final.
Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is, thus neither balance of convenience nor irreparable injury would be cause to the appellants."
26. It is also the contention of the appellants that the trial court has erronously impleaded DDA as a necessary party as it is beyond the pleadings of either of the parties. In the present case, none of the parties have claimed ownership over the suit land. The suit land is not alleged to be a private land by either of the parties and therefore, the necessary corrolary that can be deduced is that the suit land belongs to the government of India. Both the parites are rasing rival claims on the suit land which may belong to the Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r) Page no. 15 of 15 government, in these circumstances, this court does not find any infirmity in the order of the Trial Court for impleading DDA as a party to the suit.
27. In light of above, this Court is of the opinion that the order dated 06.01.2016 of the Ld. Trial Court does not suffer any illegality, infirmity or perversity. The order dated 06.01.2016 of the Trial Court is upheld. The Appeal is hereby dismissed.
28. The TCR be send back to the concerned Trial Court alongwith the copy of this order. The appeal file be consigned to record room.
Announced in the open court (Sushil Anuj Tyagi) today i.e on 19.01.2018. JSCCcumASCJcumGJ South East, Saket Courts:New Delhi(r) 19.01.2018 Sunil Mishra Vs. Rakesh Isar (Sushil Anuj Tyagi) MCA no.5007/16 JSCCcumASCJcumGuardiun Judge South East, Saket Courts 19.01.2018 (r)