Delhi District Court
Sartaj Ahmed S/O Sh. Farooq Ahmed vs Shamim Begum W/O Sh. Sartaj Ahmed on 22 November, 2013
IN THE COURT OF Ms. TANVI KHURANA, CIVIL JUDGE5 (South)
SAKET COURTS NEW DELHI
In the Matter of
Civil Suit No.417/13
Sartaj Ahmed S/o Sh. Farooq Ahmed
R/o Flat no. 3, III Floor, 29E/F, Lakshdeep Apartment
Ward No.1, Mehrauli, New Delhi
...........Plaintiff
Versus
Shamim Begum W/o Sh. Sartaj Ahmed
R/o Flat no. 3, III Floor, 29E/F, Lakshdeep Apartment
Ward No.1, Mehrauli, New Delhi
.........Defendant
Present: None.
Order:
The present order shall dispose of the application U/o XXXIX Rule 1
and 2 read with Section 151 CPC filed by the plaintiff seeking interim
injunction restraining the defendant, her son, daughter, agents, representative
and servants from creating any third party rights and from transferring,
alienating, selling, mortgaging, parting with possession in any manner or
creating any rights whatsoever with third party in respect of property i.e. Flat
no. 3, Third floor, 29E/F, Ward No. 1, Mehrauli, New Delhi (hereinafter referred
as "suit property"). In addition to this, the plaintiff has also prayed for interim
injunction for restraining the defendant etc. from forcible and illegal
dispossession of the plaintiff from the suit property.
2. Before deciding the application, a brief resume of facts as per plaint
are that the plaintiff and defendant are husband and wife. The plaintiff is the
permanent resident and exclusive owner in possession of the suit property. It
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was purchased from one Sh. Anwar Hussain Malik. The entire consideration
amount was paid by the plaintiff after selling his ancestral property. The
defendant is a house wife and has neither received any movable or immovable
property from her parents nor she had ever worked for gain thus she was
financially incapable of taking care for herself. At the time of purchase of the
suit property, the defendant requested the plaintiff to purchase the property in
her name. She had stated at that time that the transfer the property was meant
only for purpose of quelling the fear of her children from her first husband, she
would transfer the property in the name of the plaintiff as and when
demanded by the plaintiff. The property was purchased by the plaintiff in the
name of the defendant. All the documents were executed in the name of the
plaintiff. Thereafter, the plaintiff became aware of the fact that the other
property purchased by him in the name of the defendant has been sold by the
defendant without telling him. The defendant, after persuasion by elders of the
families, agreed to transfer the property in the name of the plaintiff but she
only executed the GPA and Will in the name of the plaintiff on 19.08.2011.
3. It is further submitted by the plaintiff that the defendant and her
son are trying to dispossess him illegally. Hence, the suit and the application
has been filed.
4. On notice, the defendant filed the written statement as well as the
reply. It was stated in the reply that the defendant is registered owner of the
suit property and the plaintiff is a permissive user/licensee and as such he has
no right, title, interest in the suit property. It was further stated that the plaintiff
has made an attempt to establish incest relationship with step daughter. The
stay of the plaintiff at the suit property is danger to the dignity of the members
of the family. The defendant has cancelled the GPA and Will. It was submitted
that the plaintiff has no right, interest and title in the suit property. Therefore,
Suit No. 417/13 Sartaj Ahmed Vs. Shamim Begum Page 2 of 6
dismissal of the application is prayed for.
5. Ld. Counsel for the plaintiff argued that the present suit property
was bought by the plaintiff in the name of the defendant. His wife i.e. the
defendant is just an ostensible owner of the property. He placed reliance upon
Section 3 and 4 of Benami Transactions (Prohibition) Act, 1988. He argued
that the present transaction in the name of the wife is not prohibited by the
Act, hence, the present transaction is not prohibited. He relied upon Nand
Kishore Mehra Vs. Sushila Mehra, AIR 1995 SC 2145 and Milan Madhukar
Korgaonkar Vs. Shashank Shrikrishna Gandhi, Second appeal no. 401/1996,
High Court at Bombay decided on 14.10.2009.
6. On the other hand, ld. Counsel for the defendant maintained that
the defendant is the true owner of the property as she has all the title
documents in her favour. The defendant has no right over the property. He
further argued that the property was purchased by the personal sum saved by
the defendant which she had received from her in laws of the previous
marriage and her parents. He further stated that there is threat to the dignity
of the members of the family of the defendant and therefore, it was prayed that
the injunction application be dismissed.
7. I have heard the rival contentions raised by both the counsel and
have also perused the case record meticulously with their kind assistance.
8. The Hon'ble Supreme Court in 'Hindustan Petroleum Corpn. Ltd.
Vs. Sriman Narayan and another, AIR 2002 SC 2598, has held that the object
of interlocutory injunction is to protect the plaintiff against injury by violation
of his right for which, he could not be adequately compensated in damages
recoverable in the action if the uncertainty was resolved in his favour at the
end of the trial. While exercising the discretion the Court normally applies the
following tests:
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i) Whether the plaintiff has a prima facie case,
ii) Whether the balance of convenience is in favour of the
plaintiff; and
iii) Whether the plaintiff would suffer an irreparable injury
if his prayer for interlocutory injunction is disallowed."
9. In the present case we proceed to see if all these three ingredients
are fulfilled.
i). The existence of a prime facie case and infraction of such right is
a condition precedent for grant of temporary injunction. The prima facie case
doesn't mean a case proved to the hilt. The only requirement is that on the face
of it there should be a case in favour of the plaintiff. The court at this stage
cannot try to resolve a conflict of evidence or to decide questions of fact and
law which call for detailed arguments and mature considerations. In the
present case, the plaintiff has stated that he is the true owner of the property
and he had purchased the property in the name of the defendant. Now
defendants are adamant on dispossession the plaintiff from the property that
he had purchased by his own money. At this stage, the court wishes to mention
that the possession of the plaintiff is not denied by the defendant, however, the
defendant maintains that he does not have any right to be in the property.
Nonetheless, it can not be denied that the plaintiff is in possession over the
property. On the other hand, as far as the prayer concerning the restrainment
of the defendant etc. from alienating etc. the suit property, there is no
document to support the fact that it is the plaintiff who is the owner of the
property. In dearth of the any evidence, it can not be concluded that the
plaintiff has prima facie case in regard to prayer (a) of the application.
10. It is settled proposition of law that no one can dispossess even a
trespasser from the settled possession except by due course of law. As the
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plaintiff is in settled possession, therefore, he has been able to establish a
prima facie case in his favour regarding possession only. However, as far as
restrainment regarding creation of third party interest or alienation is
concerned, the plaintiff is not able to establish any prima facie case in his
favour.
11. Ld. Counsel for the plaintiff has placed reliance on Nand Kishore
Mehra (Supra) and Milan Madhukar Korgaonkar (Supra). Both these cases
pertain to the fact that the benami transaction of purchase of a property by a
person in the name his wife or unmarried daughter is not prohibited by the
Benami Transaction (Prohibition) Act,1988. Both the authorities categorically
hold that the husband has right to defend/ file a suit in regard to such property
and he is entitled to enforce his right in the property concerned if he can
succeed in showing that he had purchased them benami in the name of his
wife. In view of the statutory presumption incorporated in the Act, he can get
relief sought in the suit only if he can prove that the properties concerned had
not been purchased for the benefit of the wife, even if he succeeds in showing
that the consideration for the purchases of the properties had been paid by
him.
12. The present authorities definitely give the right and the entitlement
to the husband to file the suit and to prove his case, however, it does not create
any title of the husband untill and unless the conditions mentioned are
proved.
13. In light of the above discussions, the plaintiff has prima facie case
only to the extent that he has possession over the property.
ii &iii. The balance of convenience and irreparable loss only to the
extent of possession and dispossession lies in favour of the plaintiff. However,
as far as creation of third party interest is concerned, balance of convenience
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lies in favour of the defendant.
14. The court seeks guidance from the guidelines as laid down by
Hon'ble supreme court in Dorab Cawasji Warden v. Coomi
Sorab
Warden (1990) 2 SCC
117
.
15. In light of the above discussion, I do find some merit in the present application at this stage and hence, the same is allowed to the extent that the defendant, her son, daughter, agents, representative and servants are restrained from forcibly and illegally dispossessing the plaintiff from the suit property i.e. Flat no.3, III Floor, Lakshdeep Apartment, 29E/F, Ward no.1, Mehrauli, New Delhi without due course of law. Nothing in this order shall be construed as my observations on the merits of the case.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 22.11.2013 Note: All the 06 pages of this order have been checked and signed by me.
(TANVI KHURANA) Civil Judge5 (South) Saket Courts/New Delhi 22.11.2013.
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