Sh. Rajesh Alias Khanna & Anr. vs Sh. Tej Pal Singh & Ors.

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.73/2013 & CM No. 5740/2013 (Stay)

%                                             10th February, 2014

SH. RAJESH ALIAS KHANNA & ANR.               ......Appellants
                   Through: Mr. Yogindra Nath, Adv.


                          VERSUS

SH. TEJ PAL SINGH & ORS.                                 ...... Respondents
                    Through:             Mr. Raj Kumar, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.     This regular second appeal is filed against the concurrent judgments

of the courts below; of the trial court dated 2.6.2010 and the appellate court

dated 28.2.2013; by which the suit of the respondents-plaintiffs for

injunction was decreed with respect to the suit property bearing no. 26/1,

Teliwara, Shahdara, Delhi. The subject suit was filed seeking injunction to

restrain the appellants/defendants from in any manner interfering with the

peaceful possession and enjoyment of the suit property by the respondents-

plaintiffs.


RSA 73/2013                                                                Page 1 of 6
 2.    The facts of the case are that the property bearing no.26 was jointly

owned by two brothers namely Sh. Peerumal and Sh. Mohan Lal. The two

brothers however later on divided the house whereby the portion of the said

house no. 26 measuring 50 sq. yds came to the share of Sh. Peerumal,

grandfather of the respondents-plaintiffs.    Sh. Peerumal owned another

house bearing no. 2/24, Teliwara, Shahdara, Delhi and therefore he left a

major portion of the property bearing no.26 to the share of his brother Sh.

Mohan Lal and who is the grandfather of the appellants-defendants. It was

stated by the respondents-plaintiffs that after the division of the property a

small part of the property consisting of one room/bethak fell to the share of

Sh. Peerumal, the grandfather of the respondents-plaintiffs and was

accordingly numbered as 26/1. The main property came to have been

numbered as 26, Teliwara, Shahdara, Delhi. It was further pleaded that

since 1938, the suit property was being used by the respondents-plaintiffs,

however, due to paucity of space, the respondents-plaintiffs had constructed

another house bearing no.26/2, Teliwara, Shahdara, Delhi and property

bearing no.26/1 continued to be under the continuous possession and

enjoyment of the respondents-plaintiffs and their family members. The suit

was filed inasmuch as, the appellants-defendants were threatening to

dispossess the respondents-plaintiffs from the suit property bearing no.26/1.
RSA 73/2013                                                                Page 2 of 6
 3.    Appellants-defendants claimed that the respondents-plaintiffs were

not the owners of the suit property and nor were in exclusive possession of

the same. It was claimed by the appellants/plaintiffs that entire property

bearing no.26 belonged to Sh. Mohan Lal and thereafter to his legal heirs

namely appellants-defendants.     It was contended that the suit property

bearing no.26/1 is merely a big common drawing room of the property

bearing no.26, Teliwara, Shahdara, Delhi, and was commonly used for

celebrations of festivals, marriages and other family occasions.

4.    The appellants-defendants also claimed that there was no property

bearing no.26/1 and therefore, respondents'-plaintiffs' suit should not

succeed.

5.    Both the courts below have held that there does exist a property

bearing no.26/1, inasmuch as, such a number is shown in the municipal

records for over 30 years prior to the filing of the suit, and with respect to

which respondents-plaintiffs filed and proved on record the electricity bills,

house-tax bills and water bills showing that payments with respect to the

same were made by the respondents-plaintiffs and who were therefore if not

owners were at least in possession of the property bearing no.26/1 for the

relief of     injunction to be granted to them for restraining the

appellants/defendants from seeking to dispossess the respondents/plaintiffs.
RSA 73/2013                                                                Page 3 of 6
 6.    The findings of the courts below are quite clear inasmuch as once a

separate property bearing no. 26/1 is shown in the municipal records, the

appellants-defendants clearly failed to establish their case that there was no

property bearing no.26/1. Also, filing and proving on record the house tax

receipts, electricity bills and water bills with respect to the property bearing

no.26/1 shows that respondents-defendants were in possession of the

property bearing no.26/1 and therefore were entitled to injunction against

dispossession from the suit property.        The issue with respect to the

ownership of the suit property has been left open in the sense that the aspect

of ownership was not decided but injunction was granted in favour of the

respondents-plaintiffs because they were found to be in use, occupation and

possession of the suit property.

7.    Learned counsel for the appellants argued that the impugned

judgments are illegal and bad in law inasmuch as, both the issues of lack of

joinder of the necessary parties and lack of ownership of the respondents-

plaintiffs disentitled the respondents/plaintiffs to the relief of injunction and

that these issues have been wrongly held in favour of the respondents-

plaintiffs and against the appellant-defendants. It is argued that both Sh.

Mohan Lal and Sh. Peerumal have left behind various other legal heirs and

in the absence of such legal heirs as plaintiffs and defendants, the relief of
RSA 73/2013                                                                   Page 4 of 6
 injunction could not have been granted. It is also argued that once the

respondents-plaintiffs failed to prove the ownership, the relief of injunction

against dispossession ought not to have been granted in favour of the

respondents-plaintiffs.

8.    I cannot agree with the arguments urged on behalf of the appellants

inasmuch as, even some co-owners who are in possession have a right to

injunction against dispossession, from any person who is not entitled to

possession, except in accordance with the due process of law. Once a person

is found in possession, such a person cannot be dispossessed except by a true

owner and therefore, it was necessary for the appellants-defendants to prove

their ownership of the suit property and which they failed to do so. Also,

there was no need of adding other legal heirs of the deceased Mohan Lal as

defendants in the suit inasmuch as, an injunction suit is only filed against

those persons who give out threats of dispossession. Those persons who

gave threats of dispossession, were the appellants-defendants, and therefore

they only were arrayed as defendants to the suit and therefore it was not

necessary for every other legal heir of Sh. Mohan Lal to have been made a

party-defendant in the suit.




RSA 73/2013                                                                Page 5 of 6
 9.    In view of the above, no substantial question of law arises under

Section 100 CPC. The appeal is therefore dismissed, leaving the parties to

bear their own costs.




FEBRUARY 10, 2014                          VALMIKI J. MEHTA, J.

ib RSA 73/2013 Page 6 of 6