Delhi District Court
Smt. Goldi Kaur vs Smt. Rekha Tandon & Ors on 25 August, 2011
Suit No. 240/2011
IN THE COURT OF MS. SHEFALI SHARMA
CIVIL JUDGE (WEST): TIS HAZARI COURTS: DELHI
Suit No. 240/2011
Smt. Goldi Kaur
........Plaintiff
Versus
Smt. Rekha Tandon & Ors.
....Defendants
Order:
Vide this order, I shall dispose off an application under Order
XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against defendants. The
brief facts for the effectual disposal of the instant application are as follows:
1.It is the case of the plaintiff that the plaintiff is in exclusive, peaceful possession, use and enjoyment of houses bearing no. A345346, J. J. Colony, Khyala, New Delhi110018 since 2002. That Sh. Ram Avtar s/o Sh. Bodh Raj, R/o A345, J. J. Colony, Khyala, New Delhi110018 and Sh. Roshan Lal S/o Sh. Bodh Raj, R/o A346, J. J. Colony, Khyala, New Delhi110018 were the original allottee of the aforesaid property who inducted the plaintiff as tenant in the said property in the year 2002 on a monthly rent of Rs. 1500/ per month and later on the plaintiff purchased the aforesaid property/ houses for Rs. 50,000/ which was paid by the plaintiff to the previous owners vide receipt dated 13.01.2003. Plaintiff is residing in the said property as owner of the property. That on 23.02.2010, the husband of the defendant no. 3 along with his Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 1/11 Suit No. 240/2011 associates came to the plaintiff's house as aforesaid and tried to dispossess the plaintiff and also threatened the plaintiff to either vacate the said house or face dire consequences in near future. As a result the plaintiff filed a civil suit for permanent injunction against the husband of defendant no. 3. That the defendant no. 3 also filed two civil suits against the plaintiff i.e. suit for possession and mesne profits and suit for declaration and mandatory injunction on the basis of allegedly forged, fabricated and falsified documents of ownership, the plaintiff after appearing in the said civil suit came to know that the defendants no. 1 and 3 have committed forgery and cheating by way of executing the forged and fabricated documents pertaining to the plaintiff's property i.e. house no. A345346, J. J. Colony, Khyala, New Delhi110018. That the plaintiff has also received a legal notice dated 16.06.2011 on behalf of defendant no. 4, claiming herself to be the owner of the said property alleged to have purchased the said property from defendant no. 3.
Thereafter the plaintiff filed police complaints dated 21.06.2011 against defendant no. 4, her husband, defendant no. 3, her husband and her son, one dealer namely Meera @ Bina Dealer and other persons who have forcibly entered the house of the plaintiff. That defendants with their active connivance with each other and with common intention to defraud and cheat plaintiff who is the bonafide owner of the builtup property bearing no. A345346, J. J. Colony, Khyala, New Delhi110018 have manufactured the forged, fabricated and Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 2/11 Suit No. 240/2011 falsified documents with the malafide intention to grab the property/ house of the plaintiff. That the plaintiff also complained the matter to the police i.e. SHO PS Khyala vide complaint dated 05.06.2011 but as no action had been taken by the police on the said complaint, the plaintiff then approached the court by way of filing complaint case against the defendants and their associates, which is pending in the court of Sh. Sunil Kumar Sharma, M.M. Tis Hazari Courts, Delhi. That the defendants are threatening the plaintiff that they would misuse the aforesaid documents and shall dispossess the plaintiff illegally and forcibly from the suit property and also create third party interest in near very future. The plaintiff has quoted two specific instances w.r.t. the same at 08.07.2011 and 13.07.2011.
2. The aforesaid factual matrix gave the cause of the plaintiff to file the present suit and to press the present application under Order XXXIX Rule 1 and 2 CPC seeking the relief that defendants no. 3 and 4 be restrained from dispossessing the plaintiffs and causing any obstacles and hindrance in the peaceful use and possession of the suit property i.e. property bearing no. A345346, J. J. Colony, Khyala, New Delhi110018 and they may also be restrained from creating any third party interest in respect of suit property on the basis of aforesaid forged and fabricated documents in any manner whatsoever, during the pendency of the present suit.
Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 3/11 Suit No. 240/2011
3. In order to substantiate her case, plaintiff has filed various documents including photocopy of GPA, photocopy of agreement to sale and purchase, photocopy of receipt dated 10.11.2006, photocopy of possession letter dated 10.11.2006, photocopy of receipt dated 19.01.2007, photocopy of order of Sh. Arun Goel, Civil Judge dated 24.05.2011, photocopy of statement of Tarunajeet Kaur dated 24.05.2011, photocopy of complaints dated 21.06.2011, 05.06.2011 and 11.07.2011, photocopy of DDA Allotment receipt dated 21.06.2011, photocopy of receipt dated 13.01.2003, copy of legal notice dated 28.06.2011, photocopy of statutory notice dated 14.06.2011 and its reply dated 28.06.2011 and copy of police complaint dated 29.07.2011.
4. In reply, it is jointly submitted on behalf of defendants that the original owners of the property no. A345, J. J. Colony, Khyala village, Delhi was Sh. Ram Avtar, s/o Sh. Bodh Ram (vide receipt no.F/5601/A345/khyala/5120/6 dated 05.09.1985) and that the original owner of property no. A346, J. J. Colony, Khyala Village, Delhi was Sh. Roshan Lal, s/o Sh. Bodh Ram (F/569/A346/Khyala/AW/WZ/85) dated 05.09.1985. that Sh. Ram Avtar had sold the property no. A345, J. J. Colony, Khyala village, Delhi who had sold the property to Smt. Kiran Kapoor (defendant no. 2) on 27.12.1996 vide Agreement to sell, GPA, Receipt, possession letter, Will (Registered with the office of SubRegistrar, Delhi) and that Smt. Kiran Kapoor had sold the said property to Smt. Taruna Jeet Kaur (defendant no. 3) khyala, New Delhi on Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 4/11 Suit No. 240/2011 19.01.2007 vide registered GPA, Agreement to sell, Receipt, possession letter etc. That Sh. Roshan Lal, owner of the property no. A346, J. J. Colony, Khyala, New Delhi had sold the said property to Smt. Rekha Tandon (defendant no. 1)w/o Sh. R. R. Tandon vide GPA, possession letter, receipt, Will dated 27.12.1996. Smt. Rekha Tandon had sold the suit property to Smt. Tarunajeet Kaur on 10.11.2006 vide registered GPA, agreement to sell, Receipt, Will etc among other documents. That defendant no. 3 sold the suit property no. A345 346, J.J. colony, Khyala, Delhi to the defendant no. 4 who is bonafide purchaser, vide registered GPA dated 19.05.2011 with the office of the Sub registrar, Delhi and agreement to sell, receipt, possession letter, receipt, Will etc. That in the possession letter itself it has been mentioned that the defendant no. 3 has handed over the physical possession of the first, second and third floor of the suit property and only symbolic possession of the ground floor of the property, clearly stating that since the said property had been occupied by the tenant/ plaintiff. That the plaintiff had submitted two receipts 13.01.2003 one alleged to be executed by Sh. Ram Avtar and one by Sh. Roshan Lal are apparently forged and manipulated documents. That the plaintiff had filed a suit for permanent injunction against the husband of the defendant no. 3, suit no. 69/2010 and had withdrawn the same, when the written statement was filed by the husband of the defendant no. 3. The defendant no. 3 has informed to the Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 5/11 Suit No. 240/2011 defendant no. 4 that she had filed two suits no. 203/2010 and 230/2010 against the plaintiff for possession and for mandatory injunction and declaration and that in none of the cases did the plaintiff had submitted these documents before the court, had she been in possession of the said documents, she would had have submitted the same before the court at that time only. That the defendant no. 4 upon becoming of the owners of the property had given a legal notice dated 14.06.2011 asking the plaintiff herein to pay the rent with respect to ground floor of the property A345346 to the defendant no. 4 as she had become the owner of the property on the sale of the property by the defendant no. 3 to the defendant no. 4. The plaintiff had given a false and frivolous reply dated 16.06.2011 to the said legal notice. That the suit of the plaintiff is liable to be dismissed as provisions of Order VII Rule 11 CPC as there is no cause of action in favour of the plaintiff against the defendants. Rest of the contentions of the plaintiff are strongly denied.
5. In order to prove their stand, defendant no. 1 and 2 filed various documents including copy of original allotee, copy of GPA, Agreement to sell, Will etc in favour of Roshan Lal Seth s/o Sh. Bodh Raj Seth, copy of GPA, Agreement to sell, Will etc. in favour of defendant no. 3, copy of voter Icard of defendant no. 2 and her husband, copy of electricity bill from 18.07.1997 to 2006, copy of water bill from 01.10.1997 to 31.10.2005 and copy of telephone bill.
Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 6/11 Suit No. 240/2011
6. In order to prove her stand, defendant no. 3 filed also various documents including photocopy of ownership of original allottee, proof of ownership from allotee to defendant no. 1 and 2 in favour of defendant no. 3, proof of ownership from defendant no. 3 to defendant no. 4, copy of complaint filed by plaintiff, copy of settlement given by plaintiff under Section 10 CPC, copy of statement given by defendant no. 3 dated 24.05.2011, copy of statement of plaintiff dated 11.08.2010 given in suit no. 69/10.
7. Defendant no. 4 also filed various documents viz. copy of ownership of original allotee, copy of ownership from documents i.e. GPA, Will etc. original allotee to defendant no. 1 and 2, copy of GPA, Will, agreement to sell etc. from defendant no. 1 and 2 to defendant no. 3 and copy of GPA, Will, Agreement to sell from defendant no. 3 to defendant no. 4.
8. I have heard Ld. Counsels for the plaintiff and defendants respectively and gone through the material available on record.
9. It is a settled law that a party is entitled to an order of injunction only if he is able to satisfy the court that a strong prima facie case has been made out in his favour, the balance of convenience also lies in his favour and that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which needs investigation, consideration and Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 7/11 Suit No. 240/2011 adjudication.
The plaintiff is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction.
The plaintiff is also to satisfy the court that noninterference by the court would result in an irreparable injury and that there is no other remedy available to him except one i.e. the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the plaintiff has to satisfy the court that he has acted bona fidely.
10.It is the case of the plaintiff that she is the exclusive owner & in possession of the house bearing no. A345346, J. J. Colony, Khyala, Delhi since 2002 and that initially she was inducted a tenant in the suit property at the monthly rent of Rs. 1,500/.
At this stage, I am drawn to the documents filed on behalf of plaintiff herself. In the earlier suit between the parties titled as "Tarunajeet Kaur vs. Goldi Kaur bearing suit no. 203/2010", the plaintiff had made a statement under Order X CPC wherein she had stated that she is residing in the said address in the capacity of an owner. Although it is a settled law that the examination under Order X CPC is neither a part of evidence nor its purpose is to secure Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 8/11 Suit No. 240/2011 admission, however, at this stage, the statement of the plaintiff is being looked at only to form a prima facie opinion. At the very glance of the statement made by her, the address as mentioned by her at the time of recording of the said statement is A345346 "ground floor" Khyala, Vishnu Garden. Even on the receipt relied upon by the plaintiff dated 13.01.2011, it has been mentioned that she has been handed over the property bearing H. No. 345346, "ground floor", Khyala, J.J. Colony, for a consideration of Rs. 50,000/. Thus on the perusal of the documents filed on behalf of plaintiff herself, it is revealed that the right of the plaintiff, if any is confined to the ground floor of the suit property, whereas under the garb of the present case, she is claiming herself to be in possession as owner of the entire property bearing no. 345346, J. J. Colony, Khyala, Delhi.
It is also stated by the plaintiff that subsequently, she had purchased the property by means of receipts as mentioned above dated 13.01.2003.
Firstly, the original receipt has not been filed by the plaintiff and secondly, on the left hand side, the said receipt is purported to have been endorsed by some ACP but there are no signatures of any official. Moreover, the said receipt is an unregistered document. It has been held in the case of "Ashutosh Saha vs. Mohd. Yusuf Ali AIR 1987 Patna 102 Full Bench" that "an unregistered document agreeing to exchange an immovable property would not vest any title or effect the same in the said property".
Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 9/11 Suit No. 240/2011 Thus even if for the sake of assumption, it is considered that the said receipt is an authentic document even then no title has been transferred to the plaintiff by virtue of the said document. Therefore, she cannot claim herself to be the owner of the suit property. Moreover, as already discussed above, the most that can be inferred is that she has been in possession of only the ground floor of the suit property.
On the other hand, it is the case of the defendants that they are the owner of the ground, first, second and third floor of the property bearing no. 345346, J. J. Colony, Khyala, Delhi by virtue of series of transactions between them. They have filed chain of documents viz. GPA, Agreement to sell, receipts etc. in support of their contentions.
It is alleged by the plaintiff that the said documents are forged and fabricated. Whether or not the said documents are forged or fabricated and confer any right in the defendants can be determined only after parties have led the respective evidence, yet I am of the considered opinion that since the said documents are registered documents therefore, they hold more weight than the unregistered receipt filed by the plaintiff. As such at this stage, no findings can be given on the issue of the title of suit property. But admittedly, the possession of the plaintiff on the ground floor of the suit property is not disputed by the defendants.
Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 10/11 Suit No. 240/2011
11.In such a senario, the application under Order XXXIX Rule 1 and 2 CPC is allowed only to the extent that defendants are restrained from dispossessing the plaintiff from the "ground floor" of the suit property bearing no. 345346, J. J. Colony, Khyala, Delhi without due process of law till the final disposal of this case.
12.In terms of aforesaid discussions, the order dated 01.08.2011 granting an ex parte interim stay in favour of the plaintiff stands modified accordingly and the application under Order XXXIX Rule 4 CPC filed by the defendants is also, disposed of.
13.Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court today on 25.08.2011 (SHEFALI SHARMA) CIVIL JUDGE (WEST) THC, DELHI/ 25.08.2011 Smt. Goldi Kaur vs. Smt. Rekha Tandon & Ors. 11/11