Delhi District Court
Sh. Roshan Lal Hotla vs Smt. Krishna on 16 May, 2011
IN THE COURT OF SH. SANJAY SHARMA, JSCCCUMASCJCUM
GUARDIAN JUDGE (WEST): DELHI
MCA No. 21/10
Unique Case I.D. No. 02401C0443522010
Sh. Roshan Lal Hotla
S/o Sh. K.R. Hotla
R/o A2/D, Madipur,
Opp. BG1, Paschim Vihar,
Shivangi Kunj,
New Delhi .........Appellant
Versus
1. Smt. Krishna
W/o Sh. Hari Singh Hotla
R/o A1/D, Madipur,
Shivangi Kunj,
New Delhi
Also at:
6078, Gali No. 1,
Kirrar Wala Chowk,
Dev Nagar, Karol Bagh,
New Delhi.
2. Smt. Gulab
W/o Late Sh. Kalu Ram Hotla,
3. Ms. Daya
D/o Late Shri Kalu Ram Hotla
Both at:
R/o A1/D, Madipur,
Shivangi Kunj,
New Delhi ........Respondents
Date of filing of the appeal : 27.09.2010
Date of reserving order : 16.05.2011
Date of pronouncement of order : 16.05.2011
MCA No. 21/10 Page No. 14/1
O R D E R
1. By way of present appeal, the defendant has challenged the order dated 11.08.2010 passed by Ld. Trial Court in Suit no. 96/2010, whereby the application of the plaintiffs under Order 39 Rule 1 and 2 of the Code of Civil Procedure, 1908 (Hereinafter referred as 'the Code') was allowed and the defendant was restrained from forcible occupying any portion of the property no. A1/D, Madipur Shivangi Kunj, New Delhi (Hereinafter referred as 'the suit property') and further, from removing the belongings of the plaintiffs from the suit property without due process of law.
2. For the sake of convenience, the parties are referred herein as they are originally referred in the suit.
3. Facts leading to the filing of the appeal are that the plaintiff no. 1 to 3 filed a suit against the defendant for a decree of permanent injunction restraining the defendant from forcibly occupying the suit property, throwing the belongings of the plaintiff from the suit property and from creating any disturbance in plaintiff's peaceful enjoyment of the suit property and further, from causing any hindrance in the use of the common passage leading from entrance of the stair case to the suit property.
4. Briefly stated, the parties are related to each other. The husband of the plaintiff no. 1, namely Sh. Hari Singh and the defendant are the real brothers. The plaintiff no. 2 is the mother of the defendant and the plaintiff no. 3 is sister of the defendant.
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5. According to the plaintiff, Sh. Hari Singh and the defendant had been working as contractor. Sh. Hari Singh was looking after execution of the work and the defendant was taking care of financial matters. It is stated that certain properties were purchased from the money earned, and saved from the said business. It is stated that dispute had arisen between Sh. Hari Singh and the defendant as the defendant's sons had started interfering in the business and therefore, it had become difficult to work together and thereafter, the defendant had agreed to transfer the suit property in the name of the plaintiff no. 1 and accordingly, the defendant had executed an Agreement to Sell, General Power of Attorney, Possession Letter, Affidavits, Will and Receipt in favour of the plaintiff no. 1 on 08.05.2009. It is stated that the defendant is residing with his family in the adjacent flat on the same floor.
6. According to the plaintiffs, the defendant and his family members were harassing the plaintiffs and therefore, the plaintiff no. 1 had requested her husband to make temporary arrangement so that education of their children may not suffer. It is stated that the suit property consists of two rooms, kitchen, latrine and bathroom. The plaintiff's husband is maintaining the plaintiff no. 2 and 3. It is stated that a bed, Almirah, Refrigerator, Dressing table, utensils, gas stove and another Almirah containing apparels of the plaintiff no. 1, her husband and children are lying in the suit property. The plaintiff no. 1 along with her family visits the suit property on weekends and holidays. The defendant and his family members had threatened to shift his belongings to the suit property. MCA No. 21/10 Page No. 14/3
7. The case of the plaintiffs is that on 08.05.2010 and 09.05.2010, some persons had visited the suit property and threatened to dispossess the plaintiffs from the suit property. It is stated that on 14.05.2010 and 16.05.2010, the sons of the defendant had used filthy language against the plaintiffs and threatened to forcibly enter the suit property. It is stated that the defendant and his sons had threatened to remove the belongings of the plaintiff no.1 from the suit property on the pretext that they had entered into an Agreement to Sell in respect of property and they needed space to shift their belongings to the suit property. Therefore, the plaintiffs filed the suit for permanent injunction against the defendants.
8. In the written statement, the defendant contended that the plaintiffs have not approached the Court with clean hands and suppressed the material facts from the Court. The plaintiff no. 1 is not the owner of the suit property nor she is in possession thereof. The plaintiff no. 1 is residing along with her husband and children at 6399/4, Third Floor, Block No. 7, Dev Nagar, Arya Samaj Road, Karol Bagh, New Delhi110005. It is stated that the Agreement to Sell followed by delivery of possession of the property is compulsorily registrable as per notification issued by Government of NCT of Delhi in September, 2004. It is stated that the said Agreement to Sell is neither registered nor properly stamped. It is stated that General Power of Attorney with the power to sell is compulsory registrable and should be sufficiently stamped. There is no receipt with regard to payment of any consideration. MCA No. 21/10 Page No. 14/4
9. According to the defendant, the plaintiff has not specifically stated the portion in her possession in the suit property. It is stated that the children of the plaintiff no. 1 are studying at Chowgiyal Public School and Salwan Public School. It is stated that the plaintiffs have not filed any site plan. The plaintiff no.1 had compromised the matter on 29.05.2010 which was signed by the plaintiff no. 1 and her husband wherein she had specifically stated that she was residing in the rented accommodation in Karol Bagh, New Delhi. It is stated that in the said compromise, she had admitted that the defendant was also in possession of the suit property. It is stated that the plaintiffs have not stated anything about their right and title in the suit property.
10.On merits, the defendant stated that he was doing business with Sh. Hari Singh. Sh. Hari Singh had cheated him and thereafter, the plaintiff no. 1 and her husband had shifted to the said rented accommodation. The defendant had mortgaged the suit property to meet the financial difficulties and the original documents of the suit property were given to the said person. It is stated that the defendant had never agreed to transfer the suit property in the name of the plaintiff no. 1 and he had not executed Agreement to Sell, General Power of Attorney, Possession Letter, Affidavit, Will and Receipt in favour of the plaintiff no.1 on 08.05.2009. It is stated that any agreement without consideration is void abinitio. The defendant has sent a notice for cancellation of the said documents. It is stated that the defendant is entitled to sell the suit property being its owner.
MCA No. 21/10 Page No. 14/5
11.Ld. Trial court, after hearing Ld. Counsel for the parties and considering the material on record, allowed the application under Order 39 Rule 1 and 2 of the Code vide order dated 11.08.2010.
12.Feeling aggrieved by the impugned order, the defendant has preferred the present appeal on the following grounds:
(a). The plaintiffs had not filed any site plan on record and therefore, the Court had directed the plaintiffs to file the site plan in order to make the order effective and certain.
(b). The plaintiff no. 1 is not in possession of the suit property.
(c). The plaintiff no. 1 had admitted the possession of the defendant in the suit property vide compromise dated 29.05.2010.
(d). Ld. Trial Court committed error in observing that the plaintiff no. 1 is the owner and in possession of the suit property.
(e). The respondent no. 1 has no right, title or interest in the suit property.
(f). Four documents i.e. General Power of Attorney, Agreement to Sell, Will and Receipt are necessary to make any person as owner but there is no Will on record.
(g). The plaintiff no. 1 has not stated the amount paid to the defendant in respect of the suit property. MCA No. 21/10 Page No. 14/6
(h). The plaintiff no. 1 is not residing in the suit property for the last four years.
(i). The unregistered and unstamped General Power of Attorney and Agreement to Sell do not create any right or title in favour of the plaintiff no. 1.
(j). Ld. Trial Court has not considered the admission of the plaintiff no.1 contained in compromise deed dated 29.05.2010 that the defendant is in possession of the suit property.
(k). The defendant had not executed any receipt in favour of the plaintiff no. 1 and the receipt is the forged one.
(l). The plaintiff no. 1 has not stated the sale consideration of the suit property and the amount due from the defendant.
(m). The plaintiff no. 2 and 3 are residing with the defendant since the date of purchase of the suit property from the previous owner.
(n). The defendant had never agreed to transfer the suit property in favour of the plaintiff no. 1.
(o). Ld. Trial Court has not considered that the refrigerator, gas stove and other belongings of the defendant are lying in the suit property and he is in possession thereof.
MCA No. 21/10 Page No. 14/7
13.I have heard arguments of Sh. Satya Prakash, Adv. for the appellant/defendant and Sh. Narender Kalra, Adv. for the respondents/plaintiffs and perused the record.
14.Ld. Counsel for the defendant argued that Ld. Trial Court had directed the plaintiff to file site plan on record in order to make the order effective and certain. He argued that Ld. Trial Court directed the plaintiff to file the site plan to show the portion of the suit property in her possession. He argued that the impugned order is unexecutable. He argued that the plaintiffs have not shown that they are in possession of the suit property. He argued that in the absence of the site plan, Ld. Trial Court committed an error by allowing the application of the plaintiff under Order 39 Rule 1 and 2 of the Code.
15. Ld. Counsel for the defendant further argued that the plaintiffs have filed the Compromise Deed dated 29.05.2010 wherein the plaintiff no. 1 had admitted the possession of the defendant in the suit property. He argued that in the said compromise deed, the plaintiff no. 1 had admitted that the goods of the defendant no. 1 were kept in the suit property. He argued that the plaintiff no. 1 is not residing in the suit property. He argued that the plaintiff no. 1 is residing at 6399/4, Third Floor, Dev Nagar, Karol Bagh, New Delhi110005 and her children are studying at Chowgiyal Public School and Salwan Public School. He argued that the plaintiff no.1 has not placed on record anything to show her possession in the suit property. He argued that the plaintiff has failed to show prima facie legal right in the suit property.
MCA No. 21/10 Page No. 14/8
16.He argued that unregistered and unstamped Agreement to Sell and General Power of Attorney do not create any right in favour of the plaintiff no. 1. He argued that the said documents are compulsorily registrable since September, 2004 and therefore, they are inadmissible in evidence. He argued that the plaintiff has not stated regarding the payment of sale consideration in respect of the suit property. He argued that the plaintiff is seeking declaration of ownership in the guise of relief of injunction. He argued that the plaintiff no. 2 and 3 have been residing with the defendant since the date of the purchase of the suit property from the previous owners. He argued that the defendant had made the statement that he will not dispossess the plaintiff no. 2 and 3 from the suit property. He argued that the plaintiff has failed to prove prima facie case, balance of convenience and irreparable loss and injury resulting from withholding of injunction. He argued that Ld. Trial Court was under legal obligation to see whether the plaintiff had a primafacie case. He argued that Ld. Trial Court has not given any opinion with regard to the legal right of the plaintiff no. 1 in the suit property. He argued that the plaintiff no.1 filed the Will on record without seeking permission of the Court after passing of the impugned order. He argued that the plaintiff no. 1 had not approached the court with clean hands. He argued that the plaintiff no.1 should have made specific averment with regard to the portion in her possession. He argued that Ld. Trial Court was not certain regarding the portion in possession of the plaintiffs and therefore, the Court had directed the plaintiffs to file the site plan to make the order effective and certain. He prayed for setting aside of impugned order.
MCA No. 21/10 Page No. 14/9
17.Ld. Counsel for the plaintiffs argued that the plaintiff no. 1 is not seeking declaration of her title in the suit property. He argued that this is a suit for injunction simplicitor and the plaintiff has stated the circumstances leading to the execution of the documents in respect of the suit property in her favour. He has argued that the defendant has not denied the execution of the said documents in favour of the plaintiff no. 1. He argued that there was no dispute with regard to the description/identity of the suit property and therefore, direction of Ld. Trial Court to the plaintiff no. 1 to file the site plan cannot make the impugned order uncertain or vague. He argued that the suit property is a flat and therefore, there was no need to file the site plan. He argued that the defendant has not even stated that the plaintiff no. 1 has forged the documents. He argued that the defendant has not filed any suit for declaration against the said title documents. He argued that the defendant has admitted the possession of the plaintiff no. 1 in the compromise deed dated 29.05.2010. He argued that the defendant had admitted in the said compromise deed that he had removed the goods of the plaintiff no. 1 from the suit property. He argued that the plaintiff is in possession of the suit property and she cannot be dispossessed therefrom without due process of law. He argued that Ld. Trial Court has considered the material on record and passed the impugned order after applying its judicial mind and therefore, the appeal is liable to be dismissed.
18.At the outset, it can be stated that an appeal against the interim order is an appeal on principle.
MCA No. 21/10 Page No. 14/10
19.The Appellate Court cannot take a different view if the view taken by the trial Court is plausible and supported by the material on record. The jurisdiction of the Appellate Court is limited to the extent to ascertain whether the trial Court has not considered the material on record or considered the extraneous material or the finding of the trial Court are perverse and caused undue hardship to the appellant.
20.In so far as contention of Ld. Counsel for the defendant that Ld. Trail Court had directed the plaintiffs to file the site plan to make the impugned order effective and certain is concerned, it can be stated that the suit property i.e. property no. A1/D Madipur, Shivangi Kunj, New Delhi is an independent dwelling unit. The said property can be identified by its number. Therefore, the defendant cannot derive any advantage from the direction of Ld. Trial Court to the plaintiffs to file the site plan of the suit property.
21.In so far as contention of Ld. Counsel for the appellant that Ld. Trial Court has not considered the admission made by the plaintiff no. 1 in the compromise dated 29.05.2010 with regard to possession of the defendant is concerned, it can be stated that the said compromise dated 29.05.2010 reads that Sh. Hari Singh and the defendant had mutually settled the dispute with regard to the removal of the goods of the plaintiff no. 1 from the suit property and the defendant had agreed to shift the goods of the plaintiff no. 1 to the suit property and further, the defendant had agreed to remove his goods from the suit property.
MCA No. 21/10 Page No. 14/11
22.The defendant no. 1 had also agreed to keep vigil on his children and ensure that they will not commit such act again. The said agreement was signed by Sh. Hari Singh, the plaintiffs and the defendant. It is therefore, clear from reading of the compromise dated 29.05.2010 that the plaintiff no. 1 had not admitted that the defendant was in possession of the suit property. It reads that the defendant is living separately from the plaintiff. It shows that Sh. Rohit Hotla son of the defendant had removed the goods of the plaintiff no. 1 from the suit property and the defendant had agreed to shift her goods thereto.
23.In so far as contention of the defendant that the title documents as relied by the plaintiff no. 1 are unregistered and unstamped and therefore, they do not create any right in the suit property, it can be stated that the plaintiffs have filed the present suit on the bais of their possession. The plaintiff no. 1 has claimed title to the suit property and not the plaintiff no. 2 and 3. The defendant has admitted that possession of the plaintiff no. 2 and 3 in the suit property. The plaintiffs cannot be dispossessed from there without due process of law.
24.In so far as the contention that the plaintiff no. 2 and 3 have been living with the defendant since 1991 is concerned, it can be stated that the cause of action as well as the relief as prayed in the suit are joint and indivisible. In such case, the plaintiff no. 1 cannot be denied the relief of interim injunction in view of the fact that the defendant has given the statement not to dispossess the plaintiff no. 2 and 3 from the suit property.
MCA No. 21/10 Page No. 14/12
25.In so far as the contention that the Ld. Trial Court has not given specific finding with regard to the legal right of the plaintiff in the suit property is concerned, it can be stated that the defendant has nowhere challenged the execution or his signatures on the title documents as relied by the plaintiff no. 1. The defendant has not filed any suit seeking cancellation of the said documents. Till the said documents are declared null and void by a competent Court of law, the plaintiffs can certainly rely upon the said documents to prove her nature of possession in respect of the suit property.
26.In so far reliance of the defendant on the judgment of Phool Kanwar Vs. Ashok Nain and others passed by Hon'ble High Court of Delhi on 20.01.2010 in CS (OS) no. 2072/06 is concerned, it can be stated that in the said case, the plaintiff sought the declaration that Agreement to Sell, General Power of Attorney, Will, Receipt and Affidavit as null and void on the averments that the defendants had lured the plaintiff to put her thumb impression on the certain documents by taking advantage of her illiteracy. In the present case, it is not the case of the defendant that the plaintiff no. 1 had taken the advantage of his illiteracy and induced him to put his signatures/thumb impression on the said title documents.
27.In so far as reliance of the defendant on the judgment Anathula Sudhakar Vs. P. Buchi Reddy AIR 2008 SC 2033 that the simplicitor suit for injunction is not maintainable where the complicated issue of title is involved, it can be stated in the para no. 11.1 of the said judgment, the Hon'ble Supreme Court has stated that where a plaintiff is in lawful and peaceful possession of the MCA No. 21/10 Page No. 14/13 suit property and such possession is interfered or threatened by the defendant, a suit for injunction simplicitor will lie. In the present case, besides the plaintiff no. 1, the plaintiff no. 2 and 3 have not set up any title in respect of the suit property. The defendant has admitted the execution of the said documents in the para no. 8 of the grounds of appeal and he stated that he has issued a notice for cancellation of the said documents. Mere contention of the defendant with regard to the validity of the said documents cannot be considered as a clout over the title of the plaintiff no. 1 in respect of the suit property and therefore, the suit for injunction simplicitor is maintainable.
28.In view of the aforesaid discussion, this Court does not find any infirmity or material irregularity in the impugned order warranting interference by this Court and accordingly, the appeal preferred by the appellant is hereby dismissed. Nothing stated herein shall tantamount to expression on the final merits of the case.
29.TCR be sent back along with copy of the order. Appeal file be consigned to Record Room.
Announced in the open Court today the 16th May, 2011.
(SANJAY SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 16.05.2011 MCA No. 21/10 Page No. 14/14