Delhi District Court
Inderjit Kaur vs . Devender Pal Singh And Another on 13 July, 2015
S. No. 120/2014
Inderjit Kaur Vs. Devender Pal Singh and another
Dated:13/07/2015
O R D E R
1. This order shall dispose of an application under Order 39 Rules 1 & 2 r/w Section 151 CPC moved on behalf of the plaintiff on 26/08/2014 at the time of filing the present suit.
2. The plaintiff claims that she is the absolute owner of the suit property in question bearing no. C2/23, Janakpuri, New Delhi58. And also the owner of shop bearing no. 5, out of property bearing no. 71/100, Prem Nagar, opposite Chhoti Sabji Mandi, Near Prem Nagar, Delhi58.
It is further stated that defendant no.1 Sh. Devinder Pal Singh is the son of plaintiff and defendant no. 2 Smt. Indermeet Kaur is the wife of defendant no.1. It is further stated that after the marriage of defendant no.1 & 2, the plaintiff permitted them to occupy two rooms, kitchen and bathroom, common drawing room and lobby on the ground floor (back side of the suit property no. C2/23) purely on license basis. Such portion in the possession of defendants is shown in "red color" in the site plan S. No120/2014 Inderjit Kaur vs. Devinder Pal Singh & Another Page No.1/7 annexed with the plaint . Further the portion in common use for both the sides is shown in "green color" in such site plan and further portion which is in exclusive possession of plaintiff and her other family members is shown in "yellow color".
It is further stated that shop in question bearing no. 5 mentioned above is in joint occupation and possession of plaintiff, defendants and other family members.
Further, in nutshell it is stated that defendants are harassing the plaintiff and other family members, therefore plaintiff requested the defendant to vacate the above mentioned properties and removed their goods and articles from the said portion in possession of defendants but defendants failed to do so despite receiving legal notice from plaintiff in this regard.
Further, the plaintiffs have also relied upon certain documents regarding her ownership. As such the plaintiff has filed the present suit along with present application.
In this application the plaintiff has prayed for passing an exparte and interim order in favour of the plaintiff and against the defendants, their agents, employees, associates, workers, family members and the persons working on their behalf thereby: S. No120/2014 Inderjit Kaur vs. Devinder Pal Singh & Another Page No.2/7
(a) directing the defendants No.1 & 2 to immediately removed themselves as well as to remove their goods and articles from two rooms, kitchen and bath room situated at Ground Floor (back side) and common use of drawing room and lobby, forming part of property bearing no. C2/23, Janakpuri, New Delhi, as more specifically shown and delineated in red color as well as green color in the site plan annexed with the plaint.
(b) directing the defendants No.1 & 2 to immediately remove themselves as well as to remove their shop goods and articles from shop bearing no.5, out of property bearing no. 71/100, Prem Nagar, Opposite Chhoti Subzi Mandi, Near Prem Nagar, New Delhi110058, as more specifically shown and delineated in green color in the site plan annexed with the plaint and to hand over the actual, vacant, peaceful and physical possession of the said premises to the plaintiff forthwith;
(c) restraining from entering into the premises of the plaintiff bearing No. C2/23, Janakpuri, New Delhi110058, as more specifically shown and delineated in yellow color in the site plan annexed with the plaint forcibly or unlawfully and/or from creating any interference in the peaceful use, occupation and possession of the plaintiff in respect of the said premises and/or from interfering in the peaceful use, occupation and possession of the said premises by the plaintiff and her other family members in any manner whatsoever, till the final disposal of the S. No120/2014 Inderjit Kaur vs. Devinder Pal Singh & Another Page No.3/7 accompanying suit .
3. Both the defendants appeared before the court and filed their joint written statement. Further, they also preferred a counterclaim praying for declaration, partition and permanent injunction relating to suit properties. Further they filed reply on 20/10/2014 to present application also. The defendants have denied the ownership of plaintiff over the suit property and it is claimed that under the garb of mandatory injunction the plaintiff is seeking relief of possession without paying proper court fees. It is further stated that as the market value of the suit property is much more than the maximum pecuniary jurisdiction of this court, therefore, same is not maintainable before this court. It is further stated that in fact the suit property was purchased by the father of defendant no.1 out of his own funds but same was purchased in the name of plaintiff out of love and affection, as she was the wife. It is stated therefore the plaintiff is only binami owner and not the actual owner. In any case it is stated that properties in question have been constructed out of joint funds of the family, as such same are joint family properties. Therefore, merely having the name of plaintiff in the record of DDA does not mean anything.
4. I have heard the learned counsels for the parties and gone through the record. Further I have gone through the case law and written arguments filed by the parties.
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5. In this case the plaintiff has placed on record her titled documents relating to suit properties in question. On the other hand no supporting documents are filed by the defendants in their WS or with their counter claims. The only ground taken by defendants is that property was purchased by the father of defendant no.1 (who is the husband of plaintiff) out of his own funds but the same was purchased due to love and affection in the name of plaintiff.
6. The such objection of defendants is misplaced as the relevant binami transaction (Prohibition Act), itself make a exception in case of purchase of property in the name of one's wife, therefore, even if it is presumed for the sake of argument that the property in question was purchased by husband of plaintiff out of his own funds still same is not hit by provision of binami transaction Act. In fact, if there is no such exception in favour of the wife, even then by virtue of main provisions of binami transaction Act, the father of defendant no.1 could not have made any claim over such property in the name of plaintiff.
7. Further, it is settled law that a suit for mandatory injunction is maintainable against the licensee provided the plaintiff/ licensor promptly moved the court to seek her remedy.
Therefore, present suit is maintainable in its present form before this court. Further, just by making contribution in the construction of a S. No120/2014 Inderjit Kaur vs. Devinder Pal Singh & Another Page No.5/7 property, the contributor does not become coowner/sharer in the same.
8. The present suit is a suit for mandatory and permanent injunctions simplicitor. Further, as per material on record, primafacie it appears that plaintiff is the owner of the suit property. Thus, prima facie, a case is made out in favour of the plaintiff. Further, the record reveals that there is some dispute pending between the plaintiff and the defendants side and therefore, the apprehension of the plaintiff cannot be said to be misplaced. The defendants under law cannot forcibly enter into that portion which is in exclusive possession of the plaintiff against the wishes of the plaintiff. The plaintiff has therefore made out a prima facie case to that extent . In case the defendants succeeds in forcibly entering into the suit property, the plaintiff shall suffer irreparable loss and injury. The balance of convenience lies in favour of the plaintiff and against the defendants. The plaintiff is therefore entitled to an ad interim injunction restraining the defendants restraining from entering into the portion of the premises of the plaintiff bearing No. C2/23, Janakpuri, New Delhi110058, which is stated to be in exclusive possession of the plaintiff, as more specifically shown and delineated in yellow color in the site plan annexed with the plaint forcibly or unlawfully; and further from interfering in the peaceful use, occupation and possession of the said portion in yellow color by the plaintiff and her other family members in any manner whatsoever, till the final disposal of the accompanying suit .
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9. But on perusal and comparison of the rest of the prayer (c) as well as whole of prayer No(a) and (b) in present application U/o 39 rule 1 & 2 r/w section 151 CPC with the prayer of present main suit by the plaintiff, it appears that such prayers sought by the plaintiff in the main suit as well as in present interim application are the same. And granting such prayer at such interim stage would amount to decreeing the suit itself. As such rest of interim prayers can not be granted at this stage.
10. With such findings, the application U/o 39 rules 1 & 2 CPC is disposed of.
11. But needless to say that nothing in this order shall be construed to have any bearing on the merits of the case.
Announced in the open
Court on 13/07/2015 (NAVEEN K. KASHYAP)
CCJCUMARC,
WEST DISTRICT, THC, DELHI.
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