Delhi District Court
Sh. Satish Kumar Malpani vs M/S. Satya Sales Agencies on 9 October, 2013
IN THE COURT OF SH. NARESH KUMAR MALHOTRA,
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
MCA No. 16/2013.
09.10.2013
1. Sh. Satish Kumar Malpani,
S/o Sh. Murlidhar Malpani,
R/o E913, Sarswati Vihar,
Pitampura, New Delhi.
2. Sh. Kuldeep Singh,
S/o Sh. Mahavir Singh,
R/o House No. 116,
Village Hiran Kudna, Delhi.
3. Sh. Vijay,
S/o Sh. Mahavir Singh,
r/o House No. 518, Pole No. 97,
Village Mundka, Delhi.
....Appellants.
Versus
1. M/s. Satya Sales Agencies,
Through its Proprietor,
Sh. Pradeep Karnani,
r/o A61/A, Kirti Nagar
New Delhi 110015.
2. Shri Kamal Kishore Malpani,
S/o Sh. Murlidhar Malpani,
r/o 114, SBI Colony, G.T. Karnal Road,
Delhi.
....Respondents.
Date of institution of the appeal : 17.07.2013.
Date of reserving Judgment : 09.10.2013.
Date of pronouncement : 09.10.2013.
Appeal against the order dated 03.07.2013 passed by the Ld. Civil Judge.
MCA No. 16/13. Page..... 1/9
JUDGMENT
1. Vide this judgment, I shall decide an appeal filed by the appellants against the order dated 03.07.2013 passed by Sh. Kapil Kumar, ld. Civil Judge (West).
2. The essential facts for disposal of the present appeal as per plaint filed by the respondent no. 1 against the appellants and respondent no. 2 are as that the plaintiff is proprietorship firm having its office cum Godown at Khasra No. 87/8/3, village Mundka, Delhi. The plaintiff has been carrying on the business of plywood, Timber Veneer & Allied products since 1987. The defendants no. 1 & 2 both are brothers & coowners of the property bearing Khasra No. 87/8/3, Village Mundka, Delhi (hereinafter will be referred as suit property). The defendants no. 3 & 4 are the associates of defendant no. 1, who along with defendant no. 1 are trying to forcibly dispossess the plaintiff without due process of law from the suit property. The defendants no. 3 & 4 are claiming themselves to be the owner of the property bearing Khasra No. 87/8/3, Village Mundka, Delhi. As per the plaintiff, earlier he was running his business at 2860/5, Chuna Mandi, Paharganj. The plaintiff knew the defendants no. 1 & 2. The plaintiff was offered by the defendants no. 1 & 2 to run his office cum Godown from the suit property by taking it on perpetual lease. On the assurance of the defendants no. 1 & 2, the plaintiff has shifted his office cum Godown at the suit property in the year 2001 on perpetual lease. After getting the property from the defendant no. 2, the plaintiff applied to the sale tax department for change of address along with the NOC from defendant no. 2, who has stated in NOC that he MCA No. 16/13. Page..... 2/9 has given the suit property to the plaintiff/respondent no. 1 and he has no objection if the plaintiff/ respondent no. 1 carry on the business from the said premises. On the basis of the said NOC the sales tax department had changed the address and since then the plaintiff is running his business from the said property peacefully and without interruption and using the same as Godown cum office. It is averred that recently few persons came to the suit property and created a ruckus by using filthy and abusive language to the staff member of the plaintiff by threating that they have purchased this property from defendant no. 1 and they would take illegal possession forcibly by using their muscle man and goons as they have been sent by the defendants no. 1, 3 & 4. They further threatened that if the premises would not be vacated in shot span of time they can go up to extent of grabbing the property. As per the plaintiff, he is running his business on the suit property peacefully and without any interruption for the last 12 years and even the telephone connection on the said premises is in the name of the plaintiff firm. The certificate of ImportExport issued by the Ministry of Commerce having the address of said business premises. The plaintiff made complaint to the SHO, P.S Mundka on 12.06.2013 but no action has been taken by the police officials. After filing of the complaint to the police, the defendants no. 1, 3 & 4 again came to suit property and started threatening staff members of the plaintiff to vacate the said premises. The plaintiff sent a complaint to the Commissioner of Police through speed post dated 15.06.2013. The plaintiff prayed for a decree of permanent injunction restraining defendants, their associates, agents etc. from forcible dispossession from the peaceful possession of the suit MCA No. 16/13. Page..... 3/9 property and without due process of law.
3. The defendants no. 1, 3 & 4 filed written statement before the ld. Trial Court taking preliminary objections that the plaintiff has no locus standi to file the present suit. The plaintiff has no right to file the suit in respect of the suit property comprised in Khasra No. 87/8/3 measuring 1 bigha 1 biswas situated within the revenue estate of village Mundka, Delhi. The plaintiff is neither in possession nor has any right, title or interest in respect of the suit property. The suit is not maintainable, as plaintiff has not come to the court with clean hands. The suit has been filed by the plaintiff at the instance of defendant no. 2, who is the real brother of the defendant no. 1. The defendant no. 2 is the owner of the adjacent piece of land comprised in Khasra No. 87/8/3 Village Mundka, measuring 1 bigha 7 biswas. The suit property measuring 1 bigha 1 biswa had been purchased by the defendant n. 1 by virtue of a registered sale deed dated 08.06.1990 executed by erstwhile owners in favour of the defendant no. 1 for a sale consideration of Rs. 20,000/. The defendant no. 1 is in actual physical possession of the same on the spot. Since, then the defendant no. 1 is in physical possession of the suit property. After the execution of the sale deed, the defendant no. 1 had filed an application for sanction of mutation in his exclusive name, which was sanctioned on the basis of the registered sale deed dated 08.06.1990. The defendant no. 2 had also purchased an adjacent piece of land measuring 1 bigha 7 biswas vide a registered sale deed dated 08.06.1990 from Sh. Harminder Singh etc. for a sale consideration of Rs. 30,000/. The defendant no. 2 was also put in MCA No. 16/13. Page..... 4/9 possession of his own portion by the erstwhile owners. The plaint has been filed on the basis of false allegations. The property is a joint family property. The defendant no. 1 prior to the award and thereafter also has remained the absolute owner of the property in question and similarly the defendant no. 2 has remained the absolute owner of his own portion consisting of Khasra No. 87/8/3 village Mundka. The defendant no. 1 executed a sale deed in respect of his portion to the defendants no. 3 & 4 on 30.05.2013. The defendants no. 3 & 4 are the absolute owner of the suit property measuring 1 bigha 1 biswa having purchased the same for a sale consideration of Rs. 11,59,500/. The actual physical possession of the same was also transferred by the defendant no. 1 to the defendants no. 3 & 4 at the time of execution of the sale deed. In reply on merits other averments of the plaint were denied. Dismissal of the application is prayed by the defendants no. 1, 3 & 4.
4. Ld. Trial Court vide order dated 03.07.2013 allowed the application under Order 39 Rules 1 & 2 CPC and restrained the appellants from dispossessing the plaintiff from the property bearing Khasra No. 87/8/3, Village Mundka, Delhi without following due process of law, till the disposal of the present suit.
5. The appellants have filed the present appeal on the ground that the order passed by the ld. Trial Court is contrary to law and facts of the case. The order has been passed by the Ld. Trial Court without appreciating the pleadings of the parties. The respondent no. 1 in his entire pleadings has MCA No. 16/13. Page..... 5/9 nowhere stated as to in what capacity he was in possession of the land measuring 2 bighas 8 biswas comprised in Khasra No. 87/8/3. The Ld. Trial Court has not described the suit property in accordance with order 6 of the CPC. The ld. Trial Court has also not considered the written statement of the appellants. The appellants no. 2 & 3 are the true owners in possession of the land measuring 1 bigha 1 biswa in Khasra No. 87/8/3 having purchased the same from the erstwhile owner i.e. the appellant no.
1. Ld. Trial Court has ignored that the actual physical possession of the land on the spot has been transferred by the appellant no. 1 to the appellants no. 2 & 3 at the time of execution of the sale deed. The ld. Trial Court has erred in not appreciating that the respondent no. 1 had not placed on record any document to show that he was in possession of the entire land comprised in Khasra No. 87/8/3. Ld. Trial Court had passed the impugned order on the basis of surmises and conjectures and the same is not sustainable in the eyes of law. The ld. Trial Court further gravely erred in not appreciating the fact that the balance of convenience lies in favour of the appellants. On the other hand, ld. counsels for the respondents contended that ld. Trial Court has passed reasoned order and order does not suffer from any legal infirmity.
6. No reply has been filed by the counsels for the respondents.
7. I have heard ld. counsels for the parties and perused the record. It is admitted fact that the appellant no. 1 is owner of portion measuring 1 bigha 1 biswa in Khasra No. 87/8/3 having purchased the same from its erstwhile MCA No. 16/13. Page..... 6/9 owner vide sale deed executed on 08.06.1990. It is also admitted fact that the respondent no. 2 is owner of adjacent piece of land measuring 1 bigha 7 biswas vide registered sale deed dated 08.06.1990 for a sale consideration of Rs. 30,000/. The Ld. Trial Court has passed the injunction order on the basis of documents placed on record which show that the plaintiff is in possession of entire land measuring 2 bighas 8 biswas in Khasra No. 87/8/3. The respondent no. 1/plaintiff has placed on record before the Ld. Trial Court photographs which show that the entire property is in possession of the respondent no. 1/ plaintiff. The respondent no. 1 has also placed on record before Ld. Trial Court copy of the application filed before the Sales Tax Officer regarding the change of address of the plaintiff firm from 2860/5, Chuna Mandi, Pahar Ganj, New Delhi to Khasra No. 87/8/3, Village Mundka, Delhi i.e. suit property. The respondent no. 1/ plaintiff was also issued certificate of ImporterExporter Code on which the address of the suit property is mentioned. The respondent no. 1 has also placed on record copy of telephone bill on which the address of suit property is mentioned. From the documents placed on record, it is proved that the respondent no. 1/ plaintiff is in possession of the suit property since the year 1997, as certificate of ImporterExporter Code was issued on 10.10.1997. Thus, from the documents it is proved that the plaintiff firm is in possession of the suit property.
8. The appellants no. 1 to 3 have not placed on record any document to show that the appellant no. 1 was in possession of portion measuring 1 bigha 1 biswa in Khasra No. 87/8/3. The appellant no. 1 has not placed on record MCA No. 16/13. Page..... 7/9 even a single document to show that possession of land measuring 1 bigha 1 biswa was with him. The Ld. Trial Court has rightly held that the perusal of the sale deed in favour of the defendants no. 1 & 2 does not demarcate any boundaries of their respective portions. From this it cannot be comprehended that there was no division between the properties of defendants no. 1 & 2. Had there been any division then the sale deeds in favour of the defendants no. 1 & 2 the same must have reflected in the sale deeds in favour of defendants no. 1 & 2. The Ld. Trial Court has right held that no document has been placed on record by the defendant no. 1 to show his possession. Ld. Trial Court has rightly held that there is prima facie case in favour of the respondent no. 1 and balance of convenience also lies in favour of the respondent no. 1/plaintiff. The respondent no. 1 suffer irreparable loss if the relief is not granted.
9. It is admitted fact that the appellant no. 1 has sold the suit property to the appellants no. 2 & 3 vide sale deed dated 30.05.2013 and the respondent no. 1 has given the details when the appellants no. 2 & 3 had threatened the plaintiff/ respondent no. 1 for forcible dispossession. Perusal of the file reveals that the respondent no. 1/ plaintiff had made complaint to the concerned SHO, P.S Mundka on 12.06.2013 and also given complaint to the Commissioner of Police through speed post on 15.06.2013. I am of the view that there is no illegality or infirmity in the order dated 03.07.2013. I am of the view that the appeal filed by the appellants is without any merits and same is hereby dismissed. Trial Court record be sent back to the Ld. MCA No. 16/13. Page..... 8/9 Trial Court with a copy of this judgment. Appeal file be consigned to record room, after necessary compliance.
Announced in the open court (NARESH KR. MALHOTRA)
09.10.2013.
on SCJ/RC(WEST)/ DELHI
MCA No. 16/13. Page..... 9/9