Afroz Begum vs Gufrani Begum And Ors.
1997 Latest Caselaw 144 Del

JUDGMENT

Jaspal Singh, J.

(1) Smt. Shamima Bano and others filed a suit for permanent injunction with regard to Shop No-1270 at Phatak Farashkhana, Delhi, claiming that late Abdul Sattar was the tenant of the said shop and that they happened to be his legal heirs. They imp leaded two defendants, one Shri Ramesh Chander, who happened to be the landlord and the other Smt. Afroz Begum. It may be noticed that Afroz Begum is the widow of one Salahuddin who too was a son of late Abdul Sattar. Salahuddin had died issueless. The plaintiffs claimed that they were in actual physical possession of the shop and that Afroz Begum was trying to interfere with the same. Alongwith the suit was moved an application for interim injunction which was allowed by the learned Civil Judge though by means of a cryptic order. Afroz Begum then went in appeal. While hearing the appeal, at the suggestion of the parties counsel, a local Commissioner was appointed to go to the spot and report as to who was in actual physical possession of the premises. It appears that the local Commissioner visited the premises on the same very day and reported that at the time of his visit the shop was lying open, that the keys of the lock were with one Mohd. Naseem and that besides said Mr. Naseem son of late Mohd. lqbal, one Mohd. Shakeel son of late Mirazuddin and two of the plaintiffs namely, Shamina Bano and Gufrani Begum were found sitting in the shop. The learned Senior Civil Judge on the basis of that report held that prima facie the possession was with the plaintiffs. Consequently, he affirmed the order of ad interim injunction passed by the learned Civil Judge. Needless to say, Afroz Begum has found both the orders unpalatable. Hence, this civil revision.

(2) The learned Counsel for the petitioner has submitted before me that Mohd. Naseem who was found in possession of the key of the lock happens to be the adopted son of the petitioner and that Shamina Bano and Gufrani Begum had come to the shop only after the arrival at the spot of the local Commissioner. He submits that since Naseem happens to be the adopted son of the petitioner and as he admittedly had the key of the lock, therefore, it ought to have been held that it was the petitioner who was in possession of the shop and not the respondents-plaintiffs, moreso as Shamina & Gufrani Begum had come to the shop only after the arrival of the local Commissioner at the shop.

(3) The learned Counsel for the respondents has submitted that Naseem is not the adopted son of the petitioner and that Shamina and Gufani Begum were already in possession of the shop and were sitting there before the arrival of the local Commissioner.

(4) I have not been made aware of any document or material on the record which might go to show even prima facie that Naseem is the adopted son of the petitioner or that he was sitting in the shop for and on behalf of the petitioner. The plaint no where alleges that Naseem sits at the shop for and on behalf of the petitioner or that he sits there in the capacity of being the adopted son of the petitioner.

(5) Though it has been argued before me that Shamina and Gufrani Begum had arrived at the shop only after Mr. Rajeev Aggarwal had reached the spot, there is nothing on the record to substantiate this allegation. Had they arrived at a laterstage, Mr. Rajeev Aggarwal would positively have recorded that fact. Rather the report goes to show that when he arrived at the spot Gufrani Begum and Shamina were already sitting at the shop. This being the position, I am not inclined to agree with the learned Counsel for the petitioner that the said two ladies had arrived at the scene only after the arrival of Mr. Rajeev Aggarwal.

(6) The learned Senior Civil Judge has learned on the report of the local Commissioner. As already noticed above, the local Commissioner was appointed with the consent of the parties and had lost no time in visiting the shop. Since he has clearly stated that Shamina and Gufrani Begum were sitting in the shop and as the version put forth with regard to Naseem has not been accepted by me, there being no material on the record to support it, I feel that the order of the learned Senior Civil Judge needs to be confirmed.

(7) Since the matter is yet to be thrashed out completely in the sense that evidence is yet to be recorded on merits, I do feel that some order needs to be passed so as to protect Afroz Begum in case she ultimately comes out victoriously in this legal battle. Consequently, while confirming the view taken by the learned Senior Civil Judge, I do order that till the decision of the matter on merits the respondents before me shall not part with or transfer in any manner the possession of the suit premises without prior permission of the learned trial Judge. With these observations, the civil revision is dismissed.

(8) TRIAL court record be sent back forthwith.