High Court of Delhi was dealing with petition by the plaintiffs in their suit for possession, seeking interim restraints on the defendant.
Brief Facts:
The plaintiffs are the owners of a property. A Perpetual Lease Deed was executed in the name of the National Cooperative Consumer Federation of India Limited (NCCF) in respect of the property. NCCF entered into an agreement of Collaboration agreement for the development of the said property. As per the collaboration agreement both decided to share the plot of land and building on 50:50 basis. NCCF took the possession of its share, towards the West side of the Plot B-19 whereas M/s DBPL took the possession of the Eastern portion of the B-19. DBPL sold their portion measuring 2483.73 sq. meters, to the plaintiffs and executed a Sale Deed. After purchasing the plot, Plaintiffs came to know that their portion was falling short of the measurements given in the Sale Deed as the angle which existed towards the plot No. B-18 by 22’4” Feet was missing. The plaintiff requested the Delhi Development Authority for a proper and accurate demarcation of the plot of the plaintiffs. Plaintiffs filed Civil Suit for mandatory and permanent injunction. However, the suit was dismissed on the ground that without possession, the injunction suit was not maintainable. The appeal was also dismissed by the learned ADJ. Thereafter, the present suit has been filed.
Plaintiff’s Contention:
Learned counsel for the plaintiffs submitted that the land encompassed in the angular portion reflected in the original site plan had been amalgamated into their plot by the defendant. This was also evident from the fact that the plot area of B-18 was around 1.5 acres whereas as per the DDA records no plot between B-26 to B-18 had an area of 1.5 acres. Thus, it was clear that the defendant was in the possession of excess area and the plaintiffs were entitled to the possession of the area that had been taken away from them. Hence, it was submitted that the interest of the plaintiffs be protected by means of an interim order restraining the defendant from transferring or creating third party interests in the encroached portion as shown in red in the site plan.
Defendant’s Contention:
Learned Counsel for the defendant submitted that no case for grant of interim relief was made out in as much as the plaintiffs own document records that the plot size could be smaller than what is detailed in the Sale Deed. It was submitted that the defendant had purchased the plot No. B-18 in the year 2006 and when the plaintiffs had purchased their portion in 2009, the wall was already in existence. Thus, what was in possession of DBPL had been transferred to the plaintiffs and they could not claim anything more.
HC’s Observations:
After hearing both the sides Court stated that in order to be entitled to interim protection, the plaintiffs have to disclose a prima facie case in their favor. They have to show that the balance of convenience tilts in their favour. The plaintiffs must also show what irreparable harm & injury would be caused to them in the absence of interim protection. Court found that on the basis of the submissions made and the documents placed on record no such prima facie case has been disclosed.
HC Held:
After evaluating submissions made by both the parties the Court held that “Evidence will be required to show whether the plaintiff’s predecessor in interest took any steps against such encroachment and what those steps were. At this stage, no clear right of the plaintiffs to claim any portion of B-18 is disclosed. If after trial such right to a defined portion is established, possession could be given. Thus, no irreparable harm or injury will be caused to the plaintiffs if no interim injunction is issued. The plaintiffs have come into the property subsequent to the defendant. Certain issues that arose between their predecessors were settled mutually. Therefore, the balance of convenience tilts in favour of defendant. In these circumstances, no interim relief can be granted to the plaintiffs.”
HC dismissed the petition.
Bench: Hon'ble Ms. Justice Asha Menon
Case Title: Kidar Nath Babbar & Anr. v. M/S Baba Ventures Pvt. Ltd.
Case Details: CS(OS) 329/2021, I.A.8577/2021
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