Delhi District Court
M/S. S. S. Investments vs D-1) Sh. Yogender Sen Manchanda on 23 March, 2015
IN THE COURT OF SH. ASHU GARG,
Judge, Small Cause Court - cum- Addl. Senior Civil Judge - cum-
Guardian Judge - cum - Metropolitan Magistrate (New Delhi),
Patiala House Courts, New Delhi
Civil Suit No. 36/2009
Unique Case ID No. 02403C0065532009
Date of Institution: 18.03.2009
Date of reserving judgement: 16.01.2015
Date of pronouncement: 23.03.2015
In re:
M/s. S. S. Investments
Partnership Firm (Registered)
Through its partner Sh. Vikas Soni
at
24, Hauz Khas Village,
New Delhi- 110016 ... Plaintiff
versus
D-1) Sh. Yogender Sen Manchanda
S/o. Lt. Sh. Makhan Lal Manchanda
D-2) Smt. Kamla Manchanda
W/o. Sh. Yogender Sen Manchanda
both at
C-471, Defence Colony
New Delhi- 110024 ... Defendants
CS No. 36/09 Page 1 of 23
JUDGMENT:
1.The present is a suit for injunction wherein the plaintiff seeks to restrain the defendants from creating third party interest in the commercial flat bearing number 2-B, Shanker Market, New Delhi-110001 (hereinafter referred to the "suit property").
2.According to the plaint, the following facts disclose the cause of action:
2.1 The suit property was initially allotted by the Ministry of Rehabilitation, Union of India, to one Sh. Pran Nath Mehta (Sh. P. N. Mehta). The said Sh. P. N. Mehta expired, leaving behind his widow Smt. Vidya Mehta, one son Sh. S. K. Mehta, two daughters Smt. Usha Sethi and Smt. Indira Sahni and one grand daughter Ms. Geeta Talwar. Subsequently, Smt. Indira Sahni also expired leaving behind Smt. Kiran Mittal and Smt. Anu Kalra.
2.2 After the death of the original allottee Sh. P.N. Mehta, his widow Smt. Vidya Mehta, for herself and on behalf of the other legal heirs, entered into an agreement (stated by the plaintiff to be an agreement of licence) with the defendants no. 1 and 2 in respect of the said flat, at a monthly rent of Rs. 300/-. According to the plaintiff, the suit property could not have been leased out, as the terms and conditions of the allotment letter did not permit a sub-lease, and therefore, the flat was purely on license basis. The said license is claimed to have been CS No. 36/09 Page 2 of 23 revoked vide legal notice dated 25.02.1997. But when the defendants failed to hand over the possession of the premises, Smt. Usha Sethi being one of the co-owners, filed a Civil Suit no. 370/99 for mandatory injunction on 31.08.1999. The said suit was however dismissed, as the court held that the agreement between the parties was a lease deed and not a license deed, and the defendants therefore were licensees/tenants in the suit property. The said judgement dated 04.07.2005 was challenged by Smt. Usha Sethi and Sh. S. K. Mehta being co-owners of the suit property.
2.3 While the said appeal (bearing RCA No. 49/05) was pending, another suit / litigation for partition and rendition of accounts was going on between all the legal heirs of Lt. Sh. P. N. Mehta inter se before the Hon'ble High Court of Delhi bearing Suit Number 829/1995. The suit was decreed and a decree for partition was passed on 14.07.2005 in pursuance of a compromise entered into between the parties. As per this compromise, the suit property came into the hands Sh. S. K. Mehta, S/o. Late Sh. P. N. Mehta.
2.4 The said Sh. S. K. Mehta, who is claimed to have become the sole and exclusive owner of the suit property by virtue of the said compromise decree, "sold" the same to the plaintiff herein, a partnership firm, vide Agreement to Sell, General Power of Attorney (GPA) and Will, all dated 25.05.2007, which were duly registered before the Sub-Registrar (hereinafter referred to as the 'transfer documents').
CS No. 36/09 Page 3 of 232.5 On the strength of these documents, the plaintiff herein claimed to have become the owner of the suit property, and he thus moved an application for his impleadment and substitution in place of Sh. S. K. Mehta in the ongoing appeal (RCA no. 49/05), claiming that the other legal heirs were left with no right, title or interest in the suit property. The said application was allowed vide order dated 26.02.2008. Subsequently, the said appeal against the order of the civil court was also dismissed vide order dated 22.09.2008 and the defendants were affirmed to be the tenants in the suit property.
2.6 The plaintiff now submits that after dismissal of the said appeal, the defendants are proclaiming themselves to be the owners of the suit property and threatening to create a third party interest in the same. Apprehending so, the plaintiff has filed the present suit praying for a decree of permanent injunction thereby restraining the defendants from alienating, transferring or creating any third party interest in the suit property.
3.The defendants appeared and filed their written statement and taking the following stands:
3.1.The defendants have not disputed the factum of allotment of the suit property to Lt. Sh. P. N. Mehta. They have also not disputed that they came into the possession of the suit property in pursuance of an agreement between them and Lt. Smt. Vidya Mehta, though claiming CS No. 36/09 Page 4 of 23 the said agreement to be a lease deed, as observed and held in the judgement passed by the civil court in Suit No. 370/1999, as affirmed by the Ld. Appellate Court in RCA No. 49/2000, and re-affirmed by the Hon'ble High Court of Delhi subsequently in second appeal bearing RSA no. 31/2009.
3.2.According to the defendants, they came into the possession of the said property being the directors of a joint stock company namely M/s.
Manchanda Promotors & Developers Pvt. Ltd., at a monthly rent of Rs. 300/-. The rent receipts had been issued by Sh. S. K. Mehta and Smt. Usha Sethi. It has been denied that the flat could not have been leased out or that the allotment letter did not permit a sub-lease.
3.3.The defendants have seriously questioned the locus standi of the plaintiff herein to file the present suit, claiming that he has no title or ownership rights in the suit property. It is submitted that the property was a leasehold property and no such transfer could have been made to any person without the said property having been converted into a freehold property. According to the defendants, the 'transfer documents' (Agreement to sell, GPA and Will) have no legal recognition in favour of the plaintiff as no title could have have been transferred on their basis. They have denied that Sh. S. K. Mehta became the owner of the suit property to the exclusion of the other legal heirs of Lt. Sh. P. N. Mehta by virtue of the compromise deed dated 14.07.2005.
CS No. 36/09 Page 5 of 233.4.The defendants have however denied to have proclaimed themselves to be the owners of the property or having threatened to create any third party interest or transfer the possession of the same to anyone.
4.Replication was filed by the plaintiff wherein the stands taken by it were reiterated and allegations in the written statements have been denied.
5.Based on the pleadings, the following issued were initially framed by the court vide order dated 28.09.2010:
(i) Whether there exists a relationship of licensor and licensee between the plaintiff and the defendant? OPP
(ii) Whether the plaintiff is entitled to a relief of permanent injunction as prayed for? OPP
(iii) Relief.
6.Subsequently, upon an application filed under O. XIV R.5 CPC by the plaintiff, the issue no. (i) as framed was deleted vide order dated 11.07.2011, observing that this issue stood addressed by the Hon'ble High Court of Delhi vide its judgement (RSA No. 31/2009) wherein the agreement was held to be a lease deed. The issue no. (i) was, however, substituted with a new issue no. (i) and re-framed as under:
(i) Whether the plaintiff has any locus to file the present suit?
OPP CS No. 36/09 Page 6 of 23
7.Evidence was led by both the parties in support of their respective stands. The plaintiff examined:
7.1.PW-1 Sh. Vikas Soni, partner of the plaintiff- He tendered his affidavit Ex. PW-1/A, reiterating the contents of the plaint. He relied upon the necessary documents including the Agreement dated 10.11.1980 Ex. PW-1/3, the transfer documents (Agreement to Sell Ex. PW-1/6, GPA Ex. PW-1/7 and Will Mark-A) and the judicial proceedings before the civil court, before the appellate court and before the Hon'ble High Court, etc. 7.2.PW-2 Sh. Inder Pal, Record Keeper from Registrar of Firms- He proved the record Ex. PW-2/1 with respect to the registration of the plaintiff firm at the Office of Registrar of Firms.
7.3.PW-3 Smt. Poonam, LDC from the Office of Sub-Registrar- She proved the registration of Agreement to Sell Ex. PW-3/1 and GPA Ex.
PW-3/2, both dated 25.05.2007 at the office of the Sub-Registrar.
7.4.PW-4 Sh. Raman Dhingra, Sr. Assistant, Estate-II Department, NDMC- He produced the original allotment letter Ex. PW-4/1 with respect to the suit property. He further disclosed that the property stood mutated in the name of the legal heirs of the original allottee vide order Ex. PW-4/2 and subsequently in the name of Sh. S. K. Mehta vide order Ex. PW-4/3.
CS No. 36/09 Page 7 of 238.The defendants on the other hand examined their son Sh. Sachin Sen Manchanda as DW-1, being their Special Power of Attorney holder, as the only witness. He tendered his affidavit Ex. DW-1/A and reiterated the contents of the written statement. Questioning the locus standi of the plaintiff to file the present suit, he deposed that the property in question was mutated in the name of Sh. S. K. Mehta only in the year 2009 and till then, all the legal heirs of Lt. Sh. P. N. Mehta were the co-owners of the suit property. He alleged that the plaintiff, who deals in disputed properties, became a party in the court proceedings by playing fraud upon the court by relying upon forged, fabricated and illegal documents wherein Sh. S. K. Mehta was stated to be a perpetual lessee, despite the fact that no such perpetual lease deed had been executed in his name or even in the name of original allottee Sh. P. N. Mehta. He reiterated that the said transfer documents were based on wrong facts and no title can be claimed on their basis by the plaintiff and therefore, he is neither landlord nor the owner of the suit property.
9.It is in these circumstances, Ld. Counsel for the plaintiff has argued that the plaintiff firm is entitled to the relief as prayed for and to restrain the defendants from creating third party interest in the suit property. It is submitted that the plaintiff is their rightful owner of the suit property and has the locus standi to file the suit, having succeeded the same from Sh. S. K. Mehta by virtue of the compromise decree as well as mutation in his favour. It is pointed out that the defendants, who are tenants in the property, have failed to explain as to who else is CS No. 36/09 Page 8 of 23 the owner of the property if not the plaintiff herein. It is submitted that plaintiff seeking injunction simplicitor and is not seeking any declaration of title and therefore, he has only to establish a better entitlement than the defendants.
10.On the other hand, Ld. Counsel for the defendants has argued that the plaintiff is trying to mislead the court and is attempting to claim ownership rights in the suit property under the garb of this suit. It is submitted that the defendants have no intention to create any third party interest in the suit property and it is argued that the sole aim of the plaintiff herein is to obtain a decree in his favour on the basis of which it could claim rights in the property. It is submitted that the plaintiff has failed to establish his locus to file the suit as the 'transfer documents' have not created any ownership rights being false documents and therefore, the defendants are not tenants under the plaintiff. The defendants have also contested the suit on the points of jurisdiction and absence of cause of action.
11.I have heard the arguments advanced at length by respective Ld. Counsel for both the contesting sides and have carefully perused the record, including the written submissions filed by both sides.
12.Upon going through the pleadings of the parties as well as evidence adduced by them, following facts emerge as admitted:
CS No. 36/09 Page 9 of 2312.1.The property in question was allotted to Lt. Sh. P. N. Mehta by the Ministry of Rehabilitation vide letter Ex. PW-4/1, under the signatures of the Dy. Director (Estate).
12.2.No separate 'lease deed' as such exists in favour of any person, be it Lt. Sh. P. N. Mehta, or any of his legal heirs including Sh. S. K. Mehta (who has since expired on 10.04.2013) or any other person including the plaintiff, except the allotment letter Ex. PW-4/1 in favour of Sh. P. N. Mehta, letter Ex. PW-4/2 transferring the rights in favour of legal heirs of Sh. P. N. Mehta and letter Ex. PW-4/3 in favour of Sh. S. K. Mehta as successor-in-interest. As deposed by PW-4, the property is not a freehold property and no lease deed of the same has been executed. Letter Ex. PW-4/3 also mentions that lease deed had not been executed by that time.
12.3.After the death of Lt. Sh. P. N. Mehta, his widow Smt. Vidya Devi Mehta entered into an agreement with the defendants whereby the possession of the property was handed over to them at the rate of Rs. 300/- per month. As per the judicial pronouncements that have attained finality as on date, the said agreement was held to be a lease deed and the defendants as tenants. Thus, the stand of the plaintiff, that it was an agreement of licence, stands negated.
12.4.By virtue of compromise decree dated 14.07.2005, the suit property came into the share of Sh. S. K. Mehta. The rights in the CS No. 36/09 Page 10 of 23 property were transferred in his name by the competent authority vide letter Ex. PW-4/3.
12.5.Sh. S. K. Mehta transferred the rights in the property to the plaintiff vide registered Agreement to Sell, GPA and Will. While the plaintiff claims himself to be the sole and exclusive owner of the suit property by virtue of such a "sale" transaction, the defendants claim that no ownership rights were created by such documents.
13.With this, the court proceeds to give issue-wise findings.
14.Issue no. (i): Whether the plaintiff has any locus to file the present suit? The onus was on the plaintiff to establish this issue. Its stand is on the strength of the transfer documents in its favour as executed by Lt,. Sh. S. K. Mehta. Considering the defences and questions raised by the defendants, the issue requires detailed discussion.
15.The material on record would reveal that the exact nature of the allotment of the suit premises in favour of Lt. Sh. P. N. Mehta is not clear in the absence of any evidence to this extent. It is seen that the 'Subject' of the allotment letter Ex. PW-4/1 mentions about the grant of "ownership rights" of the suit property. But in its body, it has been mentioned that the government had granted "leasehold rights" of the land to the allottee. Clause (a) of this letter shows that the land would be on "lease" for the period of 99 years. Clause (f) mentions that the CS No. 36/09 Page 11 of 23 allottee would not be entitled to sub-divide the premises or to transfer by sale, mutation, gift without obtaining the prior approval in writing of the government. Clause (g) mentions that 50% of unearned increase would be required to be paid to the Government at the time of each assignment / transfer. Similarly, as per the 'Subject' of letter Ex.
PW-4/2, the legal heirs of Sh. P. N. Mehta were appointed as successors-in-interest. But in its body, Sh. P. N. Mehta is stated to be "licencee of the aforesaid property", and at the same time it is mentioned that "ownership rights" of the suit property had been transferred in the same terms and conditions on which it was allotted and on the basis of which "ownership rights" had been transferred. Similar is the position in letter Ex. PW-4/3, the 'Subject' of which is "substitution of successor-in-interest". But in the body, it is mentioned that the Competent Authority NDMC has been pleased to substitute the "title" in respect of suit property in sole name of Sh. S. K. Mehta, and on the same terms and conditions contained in "ownership rights" issued vide letter dated 05.01.1979 (Ex. PW-4/1). Thus, bare contents of the letters, in the absence of any further evidence, by themselves do not show as to what rights had been created in favour of the allotee. The words "lease", "license", "title", "ownership rights", etc. have been used loosely and generally and referred to in the same perspective.
16.However, in my considered view, going into such a question would be beyond the scope of this matter. Whatever might be the position, the fact remains that for the purposes of this suit, the CS No. 36/09 Page 12 of 23 document Ex. PW-4/1 created certain rights in favour of the allottee Sh. P. N. Mehta, subject to the terms and conditions mentioned therein. Such rights were not made non-transferable, though conditions were imposed regulating the transfer. Prior approval in writing was required to sub-divide the property or for sale / mortgage / gift and a percentage of unearned increase was to be paid. To the same extent, though the plaintiff claims the suit property to be a 'commercial flat', a stand admitted by the defendants in their written statement, yet clause (k) of the allotment letter Ex. PW-4/1 says that the said "residential flat" could not have been used for any purpose other than for residence. The letter does not make it clear as to what would be the outcome of violation of any terms or conditions. Apparently, no prior approval in writing is on record as required by clause (f) of the allotment letter and in the absence thereof, there is nothing to show that the allottee or any other person claiming through him was entitled to sub-divide by sale, mortgage or gift the suit property. Thus, the claim of the plaintiff that it has purchased the property from one of the legal heirs of the property, is a serious question, which has to be gone into by the concerned authorities, who are not parties to this suit. It is not stipulated in the allotment letter if any such permission could have been granted retrospectively, or any violation could have been regularised by payment of penal charges or if any such violation would have resulted in termination of the allotment as such.
CS No. 36/09 Page 13 of 2317.But on the basis of available material, it is clear that even as per the competent authorities, rights in the property devolved on the legal heirs of the original allottee after his death. The letters Ex. PW-4/2 and Ex. PW-4/3 show that the rights being enjoyed by the original allottee were transferred to his legal heirs after his death. There was no stipulation of an automatic end to the allotment upon death of the allottee. Even the defendants have not denied that rights in the property devolved upon the legal heirs of Lt. Sh. P. N. Mehta, under whom they became tenants. This is despite the fact that there is no stipulation in the allotment letter as to what rights would be transferred to the legal heirs, on what procedure, what rights they could have further transferred and further what would be the consequences of a wrongful transfer.
18.It is also seen that as per the stand of the plaintiff taken in para 3 of his plaint, the flat could not have been leased out as the terms and conditions of the allotment did not permit a sub-lease. But in view of the judicial pronouncements, the agreement was held to be a lease. Thus, without going into the question if the allotment letter permitted a sub-lease or not, the fact is that the legal heirs of the original allottee had let out the property in favour of the defendants, despite the plaintiff taking a stand that no such lease was permissible.
19.All said and done, in my considered view, as far as the defendants are concerned who are tenants in the suit property, they have no concern about the ownership rights or title of their landlords and also CS No. 36/09 Page 14 of 23 of any irregularity or imperfection in their title, if any. The tenants have no authority to question the acts of their landlords which might be in violation of the terms and conditions of their allotment. All such questions can be raised only by the competent authority that had allotted the suit property who is not a party to this suit. Only such authority can take action against the allottee or any person claiming through it, if it finds violation of any terms or conditions of the allotment. In this case, it would be for the Government / NDMC / Ministry / Directorate to see if the allotee or successors-in-interest had violated the terms of allotment in creating a sub-lease or by 'selling' the property to the plaintiff. Whether the lease was rightly created or any of the terms of the allotment letter were violated or whether the allotment ought to have been cancelled or the property reclaimed by the government or the legal heirs need to be penalized, are questions which need to be looked into by the concerned authorities and not by this court in the present suit for injunction between the plaintiff and the defendants. Going into such questions, as desired by the defendants, would be beyond the scope of this suit for injunction simplicitor.
20.In the given situation, the defendants are estopped from questioning or denying the title of their landlords, that is, the legal heirs of Lt. Sh. P. N. Mehta under whom they were inducted as tenants, howsoever defective or irregular it might be, as per section 116 of the Indian Evidence Act. The defendants therefore cannot point out any irregularity in devolving of the rights in the suit property CS No. 36/09 Page 15 of 23 upon the legal heirs of Lt. Sh. P. N. Mehta. They also cannot take a stand that Lt. Sh. P. N. Mehta was not a perpetual lessee in the absence of any lease deed.
21.The plaintiff now claims itself to be the owner of the suit property having been 'purchased' the same from Sh. S. K. Mehta who is stated to have become sole and exclusive owner of the suit property by virtue of compromise deed / judgement dated 14.07.2005. The said 'sale' was made through an Agreement to Sell, GPA and Will. According to the defendants, as the original allottee was not having any ownership right in the suit property, his legal heirs were also not the owners of the suit property and could not have sold the suit property to the plaintiff
22.In this regard, the court must take recourse to the law laid down in the precedent titled as Suraj Lamp and Industries Pvt. Ltd. v. State of Haryana [SLP (C) No. 13917/2009, Supreme Court of India, dated 11.10.2011. By virtue of this judgement, it is clear that no title or interest in an immovable property could be transferred on the basis of an Agreement to Sell, GPA and Will. These documents, even if registered, would not be equivalent to a sale deed required to create a sale transaction.
23.Applying the said law to the given situation, there appears a genuine doubt over the title of the plaintiff over the suit property. Strictly speaking, no sale transaction of the suit property took place as CS No. 36/09 Page 16 of 23 per the law laid down in the above precedent. In such a way, the plaintiff might not be able to claim himself as owner of the suit property having purchased the same from legal heirs of Lt. Sh. P. N. Mehta.
24.But again, that would be matter to be looked into by the competent authorities in separate proceedings as to the validity of any such transaction, claimed to be a 'sale', without obtaining its permission in writing.
25.But as far as the present case is concerned, the court is not concerned if the plaintiff herein has a valid title over or ownership rights in the suit property. The court is only concerned with the locus of the plaintiff to file the present suit, irrespective of the fact that if it is having any ownership rights in the said property or if it can be said to be a purchaser of the suit property by virtue of 'transfer documents'.
26.In this regard, the court cannot turn blind eyes to the execution of such documents and registration thereof. The court cannot refuse to take a note of the rights created by such registered documents, even if they did not transfer the title in the property. The effect of execution of such documents cannot be nullified, which do create certain rights independent of a sale transaction. In the precedents titled as Ramesh Chand v. Suresh Chand [RFA No. 358/2000, Delhi High Court, dated 09.04.2012], as well as Karamvir v. Maan Singh [RSA No. 27/2014, Delhi High Court, dated 13.05.2014] the Hon'ble High Court CS No. 36/09 Page 17 of 23 of Delhi has been pleased to discuss the law laid down in Suraj Lamp's case and has concluded that even if such documents did not transfer the title / ownership rights in the immoveable property, such documents are not a nullity and the rights created by such documents independent of title can still be looked into. Such rights, particularly those under section 53-A of the Transfer of Property Act as well as the rights pursuant to an agency under section 202 of the Indian Contract Act are validly created when such registered documents are executed in relation to an immoveable property.
27.Taking guidance from the law so laid down, it can be said that even if the question of title or ownership of the plaintiff is not looked into and it may not be called a classical owner of the suit property, it still possesses certain rights by virtue of registered GPA and Will dated 25.05.2007. The plaintiff is still the power of attorney holder and beneficiary of the testator under these documents, executed by one of the legal heirs of the original allotee who has since expired. And once it gets such rights, it cannot be said to be a total stranger or without any locus to seek the relief sought. The plaintiff has a locus to seek an injunction to protect the property, fairly in the capacity of an agent under the GPA and as a beneficiary under the Will, even if it is not considered as the owner.
28.Rather the tenants as defendants have no locus to deny or question the title of their landlords and anyone claiming through them. As per section 116 of the Indian Evidence Act, tenants or any person CS No. 36/09 Page 18 of 23 claiming through them are estopped from denying the title of the landlord at the time of creation of such tenancy. Once the defendants are estopped from denying the title of Smt. Vidya Devi (and other legal heirs of Lt. Sh. P.N. Mehta), in my considered view, they are also estopped from questioning the rights of an agent or of a beneficiary by virtue of registered GPA and Will dated 25.05.2007, who is claiming his rights under them. The plaintiff thus has better entitlement than the tenant defendants.
29.Having said so, it can be said that if the legal heirs of the initial allottee were having a locus to restrain the defendants from creating third party interest in the suit property being tenants, irrespective of their ownership rights in the property if any, then even an agent of one of the legal heirs has a locus to seek such a relief against the tenants by virtue of the registered documents dated 25.05.2007. Therefore, without going into the nature of rights created by such documents, it is clear that the plaintiff has a locus standi to file the present suit against the defendants.
30.The defendants have also tried to raise questions about the genuineness of the 'transfer documents' on the grounds that the signatures of Sh. S. K. Mehta appearing therein are in different handwriting as compared with the applications filed by him earlier in other proceedings. In this regard, suffice it would be to say that these documents are registered documents having a legal sanctity. In the absence of strong material to disbelieve the same, the court cannot CS No. 36/09 Page 19 of 23 term these documents as forged merely because the defendants (through DW-1) find some difference in the signatures in their opinion.
31.Ld. Counsel for the defendants has time and again drawn the attention of the court towards the observations of the Ld. Predecessor of this court while dismissing the application under O.XXXIX R.1&2 CPC wherein the court had expressed its concern as to if an allottee could have transferred the rights to any other person. In my considered view, such observations passed while dismissing an interim application for temporary injunction would not affect the merits of the case based on the evidence led by the parties. Nothing stated therein could be considered to be expression of opinion on the merits of the case. Even otherwise, the said order, though affirmed by the Ld. Appellate Court, was overturned by the Hon'ble High Court when the application was allowed. It cannot therefore be said that the observations made therein were specifically not set aside by the Hon'ble High Court. Such observations would not regulate or govern the final outcome of the matter.
32.In view of this position, issue no. (i) is decided in favour of the plaintiff and against the defendants.
33.Issue no. (ii): Whether the plaintiff is entitled to a relief of permanent injunction as prayed for? The evidence of PW-1 makes it clear that the plaintiff has also not been able to show any strong CS No. 36/09 Page 20 of 23 apprehension or threat that the defendants are trying to create any third party interest in the suit property. Apparently, no clear details have been given as to when and how the threat was perceived, who were the persons to whom the defendants had proclaimed themselves to be owners, and in what manner the defendants tried to create any third party interest in the property. Still, the apprehension of the plaintiff is not totally misconceived, considering the fact that the defendants have chosen to contest this suit tooth and nail. In such a context, the plaintiff would be entitled to seek the relief sought and to ensure protection of the suit property, as creation of any third party interest in the suit property by the tenants would cause grave prejudice to the rights of the plaintiff. For the disposal of the present suit, the court is not concerned with the defences raised by the defendants that an alleged that agreement to sell had stated incorrect facts or that the suit property was undervalued or that the plaintiff prayed fraud when he was impleaded in place of Sh. S. K. Mehta in the ongoing appeal.
34.It cannot be said that under the garb of the present suit, the plaintiff is attempting to get endorsement of the court as to his ownership over the suit property based on illegal and sham transaction. Granting of the relief sought would in no manner be considered as a declaration of the ownership of the plaintiff over the suit property.
35.Ld. Defence Counsel has relied upon various precedents and has argued that the plaintiff has obtained orders by fraud and CS No. 36/09 Page 21 of 23 misrepresentation. Ld. Counsel has submitted that the plaintiff had given incorrect address of the defendants so as to obtain a favourable orders and had also relied upon an agreement based on the false statements wherein Sh. S. K. Mehta was mentioned as perpetual lessee. It is further pointed out that in the civil suit filed by Smt. Uma Sethi, Sh. S. K. Mehta had been mentioned as a defendant but in the appeal Sh. S. K. Mehta was shown as the appellant. It is further stated that the plaintiff got his name substituted in place of Sh. S. K. Mehta only and not the other heirs including Smt. Uma Sethi.
36.However, in my considered view, no such fact can be stated to be a fraud played upon the court so as to disentitle the plaintiff for seeking the relief sought. No such fraud has been established and it would be upon the court to interpret the documents filed by the parties. There is nothing to show that Sh. S. K. Mehta had contested the civil suit filed by Smt. Uma Sethi and there are circumstances where certain parties are mere defendants only as proforma parties. Thus, there appears nothing fraudulent when Sh. S. K. Mehta preferred an appeal along with Smt. Uma Sethi. Similarly, there appears nothing fraudulent when plaintiff was substituted in place of Sh. S. K. Mehta only, as he had stepped in the shoes of Sh. S. K. Mehta only and not the other legal heirs who were claimed to be left with no rights in the suit property subsequent to passing of the compromise decree by the Hon'ble High Court.
CS No. 36/09 Page 22 of 2337.Ld. Defence Counsel has also questioned the pecuniary jurisdiction of this court on the ground that the value of the suit property is more than Rs. 1 crore. Apparently, the exact market value of the property would not be having any bearing on the suit for injunction simplicitor. Hence, there is no force in the said submission of the defence.
38.Thus, issue no. (ii) is also decided in favour of the plaintiff and against the defendants.
39.Issue no. (iii): Relief: In the light of above discussion, a decree of permanent injunction is passed in favour of the plaintiff and against the defendants, thereby restraining the defendants from alienating, transferring or creating any third party interest in the suit property. No order as to costs.
40.Decree sheet be prepared accordingly.
41.File be consigned to the record room.
Announced in the open court this 23rd day of March 2015 ASHU GARG JSCC/ASCJ/GJ/MM (New Delhi) CS No. 36/09 Page 23 of 23