Delhi District Court
Sh. Jamil Khan vs Sub Divisional Magistrate (Saket) on 9 June, 2016
IN THE COURT OF Ms TANVI KHURANA, CIVIL JUDGE01 (South)
SAKET COURTS NEW DELHI
IN THE MATTER OF:
Suit no. 17/16
Sh. Jamil Khan
S/o Sh. Hasmal @ Gulba
R/o Village Chandan Hulla,
New Delhi. ............Plaintiff
Versus
1. Sub Divisional Magistrate (Saket).
At M. B. Road, Saket,
New Delhi110017.
2. The Tehsildar, Saket,
Mehrauli, New Delhi.
3. Islamuddin
S/o Nasroo
R/o Village Chandan Hulla
New Delhi110074.
4. Aamin Alias Yameen,
S/o Nasroo
R/o Village Chandan Hulla
New Delhi110074.
5. Mehrab
S/o Nasroo
R/o Village Chandan Hulla
New Delhi110074.
6. Hakimuddin
S/o Nasroo
R/o Village Chandan Hulla
Suit no.17/16
Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 1 of 6
New Delhi110074.
7. Salimuddin
S/o Nasroo
R/o Village Chandan Hulla
New Delhi110074.
8. Shahabuddin
S/o Nasroo
R/o Village Chandan Hulla
New Delhi110074.
9. Mobin S/o Sh. Dinu
10. Rabnin S/o Sh. Dinu
Both R/o Vill. Kharak Riwara
Satbari, New Delhi74. ...........Defendants
SUIT FOR DECLARATION AND PERMANENT AND MANDATORY
INJUNCTIONS
Re: Application under Order XXXIX Rule 1 & 2 of
the Code of Civil
Procedure, 1908
Present: None.
ORDER :
By this order, court shall proceed to decide the application under Order XXXIX Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908 filed by applicant/ plaintiff seeking that defendant no. 3 to 10 be restrained from creating any kind of third party interest with respect to Khasra no.888 min (27) and 888 min (100)total measuring 3 Bighas 7 Biswas situated in village Satbari, Delhi and from interfering with exclusive peaceful possession of the plaintiff with respect to the above mentioned Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 2 of 6 land. The present suit has been filed by plaintiff seeking declaration that entries in revenue records in favour of defendant no. 3 to 8 be declared as null and void and further permanent injunction against third party interest and interference along with mandatory injunction pertaining to the entries have been sought.
2. It is the case of the plaintiff that his predecessor in interest Sh. Gulba S/o Sh. Ghasita were in settled possession over Khasra no. 888 min (37) and their names were entered in Jamabandi and Khasra Girdawari for the year 198182 in the said record Sh. Munni Lal was shown as the owner. Plaintiff later came to know that names of Sh. Rabin S/o Sh. Dinu are also included in records in 2008 thereafter on efforts of the plaintiff records were again modified but later plaintiff came to know that names of the defendant no. 3 to 10 have also been added but predecessor of defendant no. 3 to 10 had already expired long back and their names could not have been added. Through this application, plaintiff seeks that his possession should not be interfered and that third party interest should not be created.
3. Reply was filed by defendant no.3 to8 questioning the maintainability of the application on the ground that suit itself was not maintainable. It was claimed that previous suit filed by the plaintiff against some other defendant is also subjudice therefore this suit could not be filed. Defendant no. 3 to 10 supported entries made in the revenue records and contended the claim of the plaintiff to be barred by law. Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 3 of 6
4. Ld. Counsel for plaintiff argued according to the pleas taken by the plaintiff in plaint filed. He denied the contention that suit is barred by any provision of law and rather mentioned that the present suit has been filed against all necessary parties.
5. On the other hand, Ld. Counsel for defendant no. 3 to 10 claimed the suit to be barred and also mentioned that plaintiff can not seek relief restraining the defendants no. 3 to 10 who have legal rights upon the land in question.
6. It is settled law that an application seeking interim injunction, court has to scrutinize the case of the plaintiff on the three major test which are:
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."
7. 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. It is also held that balance of convenience should also be determined.
8. Court now proceeds to see whether applicant/ plaintiff meets Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 4 of 6 required tests.
9. It is the case of the plaintiff that they have apprehension that defendant no. 3 to 10 would create third party interest in the property and would also interfere their possession therein. Apprehension is not well founded as it is only supported by complaints sent for correction of revenue records however no complaint pertaining to any interference or creation of third party interest has been placed on record.
10. It is admitted case that names of the defendants/their predecessor have also been included in revenue records and till date have not been declared to be incorrect. The exclusive possession of either of plaintiff or defendants no.3 to 10 can not be determined at this stage, hence, this court can not grant any relief for non interference of the possession.
11. Moreover, it is worth mentioning here that it is admitted case of the plaintiff that Sh. Munni Lal was shown as owner of the property in question. Similarly on perusal of the Khasra Girdawari it can be observed that owner is shown to be M/s Ansal Housing. Therefore per se neither of the parties have the right to create third party interest on the premises hence, both the plaintiff and defendants are restrained from creating any kind of third party interest whatsoever in any manner on the property in question i.e. Khasra no.888 min (27) and 888 min (100) Village Satbari. Balance of convenience would be in preserving subject matter of the suit as otherwise would create multiplicity of the litigation. Though at this Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 5 of 6 stage, court can not determine irreparable loss suffered but it is in the interest of justice to conserve the subject matter to avoid multiplicity of litigation.
12. In light of the discussion, application filed under Order XXXIX Rule 1 & 2 CPC by the plaintiff decided according. Both the parties are directed to maintain status quo as possession and title.
13. The present order shall not affect any kind of proceedings in any competent court. Nothing in this order shall be construed as my observations on the merits of the case.
(TANVI KHURANA) All the 06 pages of this order Civil Judge01 (South) have been checked and signed. Saket Courts/New Delhi 09.06.2016 Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 6 of 6 IN THE COURT OF Ms TANVI KHURANA, CIVIL JUDGE01 (South) SAKET COURTS NEW DELHI IN THE MATTER OF:
Suit no. 17/16
Sh. Jamil Khan S/o Sh. Hasmal @ Gulba R/o Village Chandan Hulla, New Delhi. ............Plaintiff Versus
1. Sub Divisional Magistrate (Saket).
At M. B. Road, Saket, New Delhi110017.
2. The Tehsildar, Saket, Mehrauli, New Delhi.
3. Islamuddin S/o Nasroo R/o Village Chandan Hulla New Delhi110074.
4. Aamin Alias Yameen, S/o Nasroo R/o Village Chandan Hulla New Delhi110074.
5. Mehrab S/o Nasroo R/o Village Chandan Hulla New Delhi110074.
6. Hakimuddin S/o Nasroo R/o Village Chandan Hulla Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 7 of 6 New Delhi110074.
7. Salimuddin S/o Nasroo R/o Village Chandan Hulla New Delhi110074.
8. Shahabuddin S/o Nasroo R/o Village Chandan Hulla New Delhi110074.
9. Mobin S/o Sh. Dinu
10. Rabnin S/o Sh. Dinu Both R/o Vill. Kharak Riwara Satbari, New Delhi74. ...........Defendants SUIT FOR DECLARATION AND PERMANENT AND MANDATORY INJUNCTIONS Re: Application under Order VII Rule 11 of the Code of Civil Procedure, 1908:
Present: None. ORDER :
By this order, court shall proceed to decide the application under Order VII Rule 11 read with Section 10 CPC for rejection of plaint and stay of the proceedings.
2. Defendant no. 3 to 10/ applicants have been filed this application on the ground that another suit titled as "Jamil Khan Vs. Mobin & Ors." bearing no. 411/13 (237/12) is also pending and relief sought in the present suit could have not been sought in that suit as well therefore the present suit Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 8 of 6 is barred by Order II Rule 2 of the Code of Civil Procedure, 1908 (CPC) it is also mentioned that appropriate notice was not issued to defendant no. 1 and 2 therefore, by application of Section 80 CPC, the necessary compliance is not made and the plaint should be rejected.
3. Submissions heard. I have perused the plaint and documents attached with the plaint for disposal of the present application.
4. Defendants/ applicants have raised the objections of Order II Rule 2 CPC and Section 10 CPC however, these issues can not be decided by way of application under Order VII Rule 11 CPC. Specific issue shall be framed at the appropriate stage pertaining to the objections. The subject matter of scrutiny for deciding an application under Order VII Rule 11 is only the plaint and documents attached therewith which are not sufficient for adjudication of issues raised under Section 10 CPC and Order II Rule 2 CPC especially when the parties to both suits are different.
5. Plaintiff had also filed an application for exemption under Section 80 (2) CPC therefore, objections of the not filing the statutory notice is not maintainable. Hence, application is accordingly dismissed.
(TANVI KHURANA) All the 03 pages of this order Civil Judge01 (South) have been checked and signed. Saket Courts/New Delhi 09.06.2016 Suit no.17/16 Jamil Khan Vs. SubDivisional Magistrate & Ors. Page 9 of 6