Delhi High Court
Rajendra Nath Gupta vs Ravindra Nath Gupta on 3 January, 2011
Author: V. K. Jain
Bench: V.K. Jain
THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Pronounced on: 03.01.2011
+ CS(OS) No.1183/2010
RAJENDRA NATH GUPTA .....Plaintiff
- versus -
RAVINDRA NATH GUPTA .....Defendant
Advocates who appeared in this case:
For the Plaintiff: Mr. Manish Vashisht and
Mr.Sameer Vashisht
For the Defendant: Mr.Chawna Shekhar and
Mr. Saurabh Upadhyay.
CORAM:-
HON'BLE MR JUSTICE V.K. JAIN
1. Whether Reporters of local papers may
be allowed to see the judgment? No
2. To be referred to the Reporter or not? No
3. Whether the judgment should be reported No
in Digest?
V.K. JAIN, J. (ORAL)
IAs 7921/2010 (O.39 R.1 & 2 CPC), 11537/2010 (O.39 R.4 CPC)
1. Defendant No.1 is the son and the defendant No.2 is the daughter-in-law of the plaintiff who is a senior citizen being 77 years of old. The plaintiff claims to be in possession of property No.577-578, Katra Ashrafi, Chandni CS(OS)No.1183/2010 Page 1 of 10 Chowk, Delhi-6. The property comprises ground floor, mezzanine floor, first floor and second floor with common passage and stairs leading from the ground floor to the upper stories and has been constructed on land measuring 32 sq. yds. Initially, this property was taken on rent by a partnership firm in which late Bhola Nath Gupta, father of the plaintiff, Smt. Parbati Devi, mother of the plaintiff, the plaintiff himself and his brother Rajeshwar Nath Gupta were the partners. On demise of late Shri Bhola Nath Gupta, the partnership firm was re-constituted with Smt. Parbati Devi, the plaintiff and his brother as partners. The elder son of the plaintiff namely Raghvender Nath Gupta was inducted as a partner in the aforesaid firm vide partnership deed dated 21.7.1972. Later, the elder son of the plaintiff retired from the firm and he continued with his brother Rajeshwar Nath Gupta. Defendant No.1 was also taken as a partner in the firm for a brief period. On dissolution of the partnership firm vide Dissolution dated 31st March, 2003, the plaintiff became absolute proprietor of M/s Bhola Nath Gupta & Sons and continued to run business from the suit property.
2. The suit property was purchased by late Smt. Parbati Devi, mother of the plaintiff, vide two separate sale CS(OS)No.1183/2010 Page 2 of 10 deeds, one executed on 25.1.1962 and the other on 8.12.1978. On the demise of late Smt. Parbati Devi, mother of the plaintiff, the suit property devolved on his two sons namely the plaintiff and his brother Rajeshwar Nath Gupta. Shri Rajeshwar Gupta sold his undivided share in the suit property to defendant No.2 on 6.9.2003 whereas the plaintiff sold his undivided half share in the suit property to his grandson Rishu Nath Gupta, son of his other son Raghvender Nath Gupta vide sale deed registered on 29.07.2009.
3. The case of the plaintiff is that when his brother expressed to desire to sell his undivided half share to defendant No.2, it was agreed that the possession of the entire suit property will continue to remain with him in his lifetime, the purpose being to maintain peace and equality in the family, half of the property going to his one son by way of sale by his brother in favour of defendant No.2 and the other half going to his other son by way of sale of his portion to his grandson Rishu Nath Gupta.
4. This is also the case of the plaintiff is that the defendants are trying to forcibly dispossess him from the property and are also threatening to dispose of the same. CS(OS)No.1183/2010 Page 3 of 10
5. The suit has been contested by the defendants. The case of the defendants is that in fact half of the suit property was purchased by defendant No.2 from the younger brother of the plaintiff, whereas the remaining half admittedly was sold by the plaintiff to his grandson Rishu Nath Gupta, who is the son of his elder son Raghvender Nath Gupta. This is also the case of the defendants that as set out in the written statement that the possession continued to remain joint when defendant No.2 purchased half undivided share in the suit property from the brother of the plaintiff.
6. During the course of hearing, defendant No.1 who is present in the Court, stated that the mezzanine floor and the first floor of the suit property were in his possession and on 31.5.2010 when he was in Bombay in connection with some marriage, the keys of the first floor and mezzanine floor which used to remain on the ground floor were surreptitiously removed by the plaintiff, who then changed the locks that had been put on the mezzanine floor and the first floor and kept the keys of the new locks with him.
7. It has also been pointed out by the learned counsel for the defendants that while executing the sale deed in CS(OS)No.1183/2010 Page 4 of 10 favour of Rishu Gupta on 15.7.2009, the plaintiff clearly recorded that the half portion of the property which came to his possession had been given to the purchaser and he had no connection left with the possession of that portion.
8. The admitted position is that as on date of filing of the suit, the plaintiff was in physical possession of the entire suit property. One salient feature of this case is that neither the sale deed executed by the brother of the plaintiff in favour of defendant No.2 nor the sale deed executed by the plaintiff in favour of his grandson Rishu Nath Gupta specifies as to possession of which particular portion had been handed over to the purchaser. Had the plaintiff and his brother been in exclusive possession of different portions of the suit property, ordinarily, the portion occupied by the plaintiff would have been specified in the sale deed executed by him in favour of Rishu Nath Gupta and the portion occupied by his brother would have been mentioned in sale deed executed in favour of defendant No.2. The question as to whether the plaintiff took surreptitious possession of mezzanine floor and first floor on 31.5.2010, as claimed today in Court by defendant No.1, or it always remained with the plaintiff, as claimed by him, is a CS(OS)No.1183/2010 Page 5 of 10 matter which can be decided only after recording evidence. It is important to note here that in the written statement, there is no allegation that it was on 31.5.2010 that the plaintiff removed the keys of the mezzanine and the ground floor in a surreptitious manner, and removed the locks that had been put by the defendants on the mezzanine floor and the first floor. There is no allegation of the defendants having lodged a police report alleging theft of their keys and removal of locks of the mezzanine floor and the first floor by the plaintiff in their absence. The plaintiff, on the other hand, placed on record copies of the report lodged by him with Police Station Kotwali on 07th April, 2010 and 21st April, 2010, alleging therein that the mezzanine floor, first floor and second floor were also in his possession and he had kept his stock therein. He also alleged that the defendants were trying to interfere with his possession and were trying to forcibly snatch the keys from him so as to forcibly occupy his property. At present, prima facie, it appears to me that the plaintiff was in settled possession of the suit property when he filed this suit. Therefore, despite sale of half undivided share in the suit property by him to Rishu Gupta and remaining half by his brother to defendant CS(OS)No.1183/2010 Page 6 of 10 No.2, the defendants cannot be allowed to dispossess the plaintiff from the suit property, without taking recourse to by due process of law. It will also be important to note here that though the plaintiff is in physical possession of the entire property, Rishu Gupta had not come forward to claim possession of the half of the suit property from the plaintiff. Considering the relationship between the parties, the understanding pleaded by the plaintiff cannot be said to be inherently improbable.
9. Once a person is found to be in settled possession of an immovable property, the remedy available to the aggrieved person is to initiate appropriate legal proceedings to re-gain the possession alleged to have been unlawfully obtained from him. A person in settled possession cannot be dispossessed from the property occupied by him except by due process of law.
10. In 'Rame Gowda vs M. Varadappa Naidu & Anr.' (2004) 1 SCC 769, the Supreme Court held that settled possession or effective possession of a person without title entitles him to protect his possession even against as a true owner. In taking this view, the Court relied upon its earlier decision in 'Munshi Ram vs Delhi Admn.' AIR 1968 SC 702 CS(OS)No.1183/2010 Page 7 of 10 where it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and unless he is evicted in due process of law, he is entitled to defend his possession even against the rightful owner. During the course of the judgment it was observed that if the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse of law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will aid a person who is in peaceful and settled possession by granting injunction to him even against the rightful owner restraining the owner from using force or taking law in his own hands. The rightful owner of the property is entitled even to use reasonable force to thwart an attempt to trespass upon his property when the trespass is being committed and he did not have enough time to take recourse to law. An act of trespass or a possession which has not matured into settled possession can be obstructed or removed by the true owner even by using necessary force, but, once the possession has culminated into a settled possession, the only remedy available to the rightful owner CS(OS)No.1183/2010 Page 8 of 10 of the property is to take recourse to the process of law, to evict the trespasser.
11. As observed by the Supreme Court in the case of Rame Gowda (Supra) the settled possession must be (i) effective (ii) undisturbed and (iii) to the knowledge of the owner and without any attempt at concealment by the trespasser. In the case before this Court, the documents filed by the plaintiff prima-facie show him to be in settled possession of the suit property, to the knowledge of the defendants and without any attempt to conceal his being in possession. The plaintiff has gone to the extent of lodging reports from time to time claiming possession in respect of the entire suit property and seeking action against the defendants on account of their attempt to interfere with his possession and snatch the keys of the property from him.
12. In these circumstances, the defendants are restrained from dispossessing the plaintiff from any portion of the suit property during pendency of the suit, except by due process of law. In order to balance the equities, it is also directed that the plaintiff will not create any third party interest in the suit property during pendency of this suit. It CS(OS)No.1183/2010 Page 9 of 10 is clarified that creating third party interest would include letting out the property or inducting any licence therein.
The applications stand disposed of.
CS(OS) No.1183/2010
1. Considering the relationship between the parties, they are directed to appear before Delhi High Court Mediation & Conciliation Centre at 4 P.M. on 10 th January, 2011 to make an effort for amicable settlement of their disputes.
2. The matter be listed before the Court for framing of issues on 29th April, 2011, in case the dispute is not settled.
(V.K. JAIN) JUDGE JANUARY 03, 2011 'sn' CS(OS)No.1183/2010 Page 10 of 10