Fidelity Growth Fund (P) Ltd. And ... vs S. Partap Singh And Ors.
1996 Latest Caselaw 86 Del

JUDGMENT

S.K. Mahajan, J.

(1) This order will dispose of the application of the plaintiffs under Order 39 Rules 1 & 2 for the grant of ad interim injunction.

(2) The facts, in short, are that one Shri Rizak Ram was in cultivating possession of the land measuring 4 bighas 16 biswas in Khasra No. 675 in Village Satbari, Tehsil Mehrauli. This land was declared evacuee property under Section Ii of the Displaced Persons (Compensation and Rehabilitation) Act, 1954. By Sanad No. MOR/Satbari/D/1407 dated 20th November, 1978, the land was allotted to one Shri Pratap Singh. The said Shri Pratap Singh, after obtaining a no objection certificate on 6th March, 1979 from the Competent Authority, sold this land to Shri Rizak Ram who was already in cultivating possession thereof. The sale deed transferring the land in the name of Shri Rizak Ram was duly registered as document No. 1070 in additional book No. I, volume No. 5081 on 17th March, 1979. Defendant No. 3, Ansal Housing and Estate Private Limited, started a project of developing farms in Satbari area and for that purpose they started acquiring lands in the area in the years 1979 and 1980. By an agreement to sell dated 10th January, 1980, Shri Rizak Ram agreed to sell this land in favour of defendant No. 3 or its nominees and possession was also delivered to the said defendant. Defendant No. 3 developed the land as a farm land along with land in another Khasra bearing No. 676 and gave the same farm number as A-11A in their Satbari Scheme. Ansals had about 100 such farms in the said scheme. Out of the total area of 4 bighas 16 biswas in Khasra No. 675, an area of 3 bighas 07 biswas was under farm A-IIA, the balance measuring I bigha 9 biswas was converted into roads, and sale deed has been registered in the name of plaintiffs 2 and 3 on 12.12.1980 after obtaining no objection certificate from Tehsildar, Mehrauli. Defendant No 3, namely the Ansals were confirming parties to this deed. The remaining area measuring I bigha 9 biswas was sold by Shri Rizak Ram to Satbari Farms owners' Association by means of a separate sale deed dated 27.11.1980 and registered on 19.12.1980 after obtaining no objection certificate from Tehsildar, Mehrauli. Farm No. A-IIA had a total area of 8 bighas 3 biswas. It comprised of 3 bighas 7 biswas of the land belonging to Shri Rizak Ram in Khasra No. 675 and the balance area of 4 bighas 16 biswas in Khasra No. 676 was owned by one Shri Hukam Chand. The said Shri Hukam Chand had also sold this land to plaintiffs 2 & 3 by means of a sale deed dated 24,11.1980 registered on 12.12.1980 after obtaining no objection certificate from Tehsildar, Mehrauli. After getting the plans sanctioned from the Municipal Corporation of Delhi, the Ansals constructed a villa in farm No. A-IIA for plaintiffs 2 & 3. This super structure is stated to have been completed in the year 1984. By agreement to sell dated 6th December, 1990, plaintiffs 2 & 3 agreed to sell this farm-house to the first plaintiff. It appears that defendant No. I was not happy with the construction of a farm-house on the land which he is alleged to have sold to Shri Rizak Ram, who, in turn, had sold the same to plaintiffs 2 &: 3 and on or about 18.10. 1991, he filed a suit before the Sub-Judge against one Vipin Malik for an injunction. Initialty, a stay was granted, however, the same was vacated on 23.1.1991. Shri Vipin Malik, it is alleged, has nothing to do with land in Khasra No. 675 as he was the owner of land in Khasra No. 676. It is alleged that plaintiff, after inspection of the allotment file of Sardar Pratap Singh in the office of the Managing Officer (Rural), same to know that the original file, by which the land was allotted in 1978, was missing and another file was sought to be reconstructed in 1986 and by a letter dated 10.4.1990, Pratap Singh had requested for delivery of possession of this land in Khasra No. 675 to him, whereas in the suit filed in the Court of the Sub-Judge he had alleged that he was in possession of the land. Request of Pratap Singh for delivery of possession was rejected by letter dated 24th May, 1990. It is also alleged that defendant No. I had also manipulated the revenue records inasmuch as while up to the year 1986 the possession of the land was recorded in the name of Shri Neki Ram, father of Sh. Rizak Ram, and ownership of the Government, thereafter both ownership and possession have been recorded in the name of defendant No. 1. It is alleged that as the action of defendant No. I had cast a cloud on the title of the plaintiffs as the owners, the plaintiffs were filing the suit for a declaration that they were the owners of the farmhouse built on the land comprising Khasra No. 675 measuring 3 bighas 7biswas and for an injunction restraining the defendant No. I from interfering with possession of the plaintiffs in the said property.

(3) Defendants 2 & 3 in their separate written statements have supported the case of the plaintiffs. Defendant No. I in his written statement has denied the averments made by the plaintiffs in the suit and had alleged that Rizak Ram was not in possession or occupation of the land in question and that the land was allotted not only to him alone but also to his brother and mother. It is alleged that the Sanad of 20th November, 1978 filed by the plaintiff was false and fabricated and it was only in the year 1986 that he was allotted the land by Sanad No. 1440. He has denied to have executed any sale deed in favour of Rizak Ram and as the land was alleged to have been allotted to him only in the year 1986, according to him, there was no occasion for him to execute a sale deed in favour of Rizak Ram in the year 1978. It is also alleged that land of Khasra No. 675 along with other Khasra was acquired by the Land Acquisition Collector vide an award No. 14/87-88. Sanction of the plans has been denied by defendant No. I and it is also alleged that the construction raised is not in Khasra No. 675 but is in Khasra No. 676. It is alleged that defendant is a semiliterate person and studied only up to sixth class and that he had not worked in the Department of Rehabilitation, as has been alleged by the plaintiff. It is also pointed out that after the land had been acquired under the provisions of the Land Acquisition Act, objections in respect of the land in question were filed only by defendant No. I and his brother and no objections in respect of this land were filed by any of the plaintiffs. It is stated that plaintiffs 2 & 3 had filed objections for Khasra Nos. 676 and 676/2 and not in respect of the land in question. It is, therefore, stated that the plaintiffs do not have any right to claim declaration, as has been claimed in the suit, and the suit is stated to be false and frivolous as the plaintiffs allegedly want to grab the land belonging to defendant No. 1.

(4) Along with the suit, the plaintiffs had filed this application for a temporary injunction, till the decision of the suit, for restraining defendant No. I from interfering with the right of the plaintiffs in using and enjoying the land of Khasra No. 675, Village Satbari, New Delhi.

(5) In order to succeed in the application, the plaintiffs have to, prima fade, prove that they are in settled possession of the land in question and they have a right to possess the same. Under Order 39 Rule l(c), the Court may grant a temporary injunction in case the defendant threatens to dispossess the plaintiff or, otherwise, cause injury to the plaintiff in relation to any property in dispute in the suit. Clause 'c' was added in Order 39 Rule I by the Code of Civil Procedure (Amendment) Act, 1976. It provides that where the defendant threatens the plaintiff or, otherwise, cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may grant temporary injunction for the purpose of preventing dispossession of the plaintiff. The object of inclusion of clause (c) appears to be that the legislature felt that possession of the immovable property can also by a ground for maintenance of status quo under Order 39 Rule 1. But can such an injunction be granted even against the true owner of the property where the plaintiff is only a trespasser? To my mind, a trespasser simpliciter may not be entitled to the grant of an injunction against the true owner of the property. It is with this back ground that the respective contentions of the parties have to be considered.

(6) The plaintiffs have placed on record the sanad of 1978, whereby the land in Khasra No. 675 measuring 4 bighas 16 biswas in village Satbari was allotted in the name of Shri Pratap Singh S/o Shri Kalu Mal. A copy of the registered sale deed dated 16.3.1979, whereby Shri Pratap Singh had sold the land in question to Shri Rizak Ram, has also been placed on record. The deed of conveyance executed by Shri Rizak Ram in favour of plaintiffs 2 & 3, wherein defendant No. 3 is also a confirming party transferring this land in favour of plaintiffs 2 & 3, has also been placed on record. The plaintiffs have also placed on record the letter dated 20th January, 1983 from the Municipal Corporation of Delhi, whereby the plans for construction of a house in Khasra Nos. 675,676/1,676 2, Village Satbari, had been rejected on the ground that the building activity of the farmhouses had been suspended for the time being, besides the land was also stated to be under acquisition under Section 4 of the Land Acquisition Act The copy of the letter dated 10th April, 1990 which is stated to have been written by defendant No. I to the Managing Officer requesting him to give possession of the land in different Khasras, including Khasra No. 675, has also been placed on record by the plaintiffs. In reply to this letter, the Managing Officer, on 24th May, 1990, wrote to defendant No. I that sanad was issued in his name on 28.2.1986 on his request/undertaking that he will not claim possession from the department as the property had already gone out of compensation pool, and as such, his request for delivery of possession could not be acceded to. Girdawaries up to the years 1986 have also been placed on record showing that Shri Rizak Ram was in cultivating possession of the said land. A copy of the letter dated 27.7.1987 has also been placed on record showing that the Managing Officer had written to Shri Neki Ram, the father of Shri Rizak Ram, that the land in question was in his unauthorised possession. All these documents go to show that it was Rizak Ram or the plaintiffs who wes in possession of the land in Khasra No. 675 since about 1978 and no other person had been claiming possession of the same. The only document upon which defendant No. I has placed reliance to show that he has a right over this land is the sanad of the year 1986, whereby this land is alleged to have been allotted to him by the Department of Rehabilitation. It was on the basis of this Sanad that the Tehsildar, Mehrauli made entries in the names of defendant No. I, Manohar Lal, and Rani Devi in the revenue record.

(7) By an order dated 1st February, 1991, this Court had appointed a Local Commissioner to visit the property in question and to report about the situation existing there. The Local Commissioner visited the property on the same date and after making spot inspection made a report that the property in question was in possession of plaintiff No. I and all the employees who were working there were employed by the said plaintiff. Photographs have also been placed on record to show that it was the plaintiff No. I who was in possession of the property.

(8) With all this evidence on record, I am, prima fade, of the opinion that the plaintiff No. I is in settled possession of the property in question and the said plaintiff is deriving its title through plaintiffs 2 & 3. The plaintiffs have been writing to the department, including the Mcd, for sanction of the plan of the property in Khasra No. 675 since about 1984 and there cannot be any other inference, at this stage except that the plaintiffs are in possession of the suit property. I, therefore, prima fade, hold that the plaintiffs are in settled possession of the land in question. At this stage, I will not be in a position to give any opinion .is to whether the sanad of 1986 which has been obtained by defendant No. I is a false and fabricated document and as to whether the said defendant is entitled to obtain possession of the property on basis of the said sanad, nor can I decide at this stage, whether 1978 sanad in favour of Pratap Singh and the sale deed executed in favour of Rizak Ram are forged and fabricated documents. These are the questions which are required to be decided during the trial of the suit. As defendant No I has not been able to, prima fade, prove his title or possession in the property, I am not inclined to accept his contention that the plaintiffs are trespassers in the property and have no right to occupy the same.

(9) Having, therefore, prima fade, observed that the plaintiffs are in settled possession of the property and, prima fade, have right to occupy the same, in my opinion, their possession requires to be protected till the decision of the suit. I, therefore, allow this application and restrain the defendant No. I till disposal of the suit, from interfering with the possession of the plaintiffs in the property situated in Khasra No. 675, Village Satbari, Tehsil Mehrauli, Delhi Nothing observed in this carder will affect the merits .of the case.