Bhim Sen Sharma vs Arvinder Singh And Ors.
1997 Latest Caselaw 309 Del

JUDGMENT

K.S. Gupta, J.

(1) This appeal by the plaintiff-appellant is directed against the order dated December 19, 1996 of learned Single Judge disposing of two applications, one under Order Xxxix, Rules 1 & 2, Civil Procedure Code (I.A. No. 11075/96) and the other under Order Xxxix Rule 4, Civil Procedure Code (I.A. No. 11627/96).

(2) Facts giving rise to this appeal, in brief, are that the appellant filed a suit on the allegations that Ram Singh was the owner of property No. 1-1/85,LajpatNagar, New Delhi. He was inducted as a tenant by Ram Singh in the front portion of the property at a monthly rental of Rs. 200.00 , which later on was increased to Rs. 500.00 per month. Ram Singh died issueless in the year 1979 leaving his wife Mesar Kaur as his only heir. Mesar Kaur had no near relation of her. The appellant being a God fearing person started looking after her. On August 13, 1990 Mesar Kaur executed a Will bequeathing the said property No. 1-1 /85 and also a General Power of Attorney, in favour of the wife of the appellant. It is further alleged that in the beginning of 1993 Mesar kaur fell ill. On being intimated about her illness defendant-respondent No. 1 and his wife came to Delhi and started living in the rear portion of the aforesaid property where Mesar Kaur used to live. Defendants- respondents 1-3 and the wife of respondent No. 1 tortured and confined Mesar Kaur in a room. She was often not supplied the food. It is stated that the appellant received a notice dated February 16,1993 followed by a reminder dated March 12, 1993 from Mr. Deepak Dhingra, Advocate, purported to have been sent under instructions from Mesar Kaur, calling upon him to surrender the blank papers. Mesar Kaur did not have any knowledge about the contents of the notice dated February 16, 1993. The same was issued at the behest of respondents 1-3. It transpired that a deed of gift dated November 12, 1993 was got prepared by respondent No. 1 in his favour and Mesar Kaur was forcibly made to sign on it by him. This deed of gift was registered with the Sub-Registrar, New Delhi on December 12, 1993 and on the strength thereof respondent No. 1 got aforesaid property mutated in his name on January 20,1994. Respondent No. 1 further got a suit bearing No. 1307/93 filed in the name of Mesar Kaur against the appellant in the High Court of Delhi on May 27,1993 and the same was dismissed on May 3, 1995. It is alleged that because of the threat held out by the respondents of forcible dispossession from the portion of the property in possession of the appellant, he was compelled to file a suit for permanent injunction which is pending disposal before a Civil Judge, Delhi. Respondent No. 1 has also initiated eviction proceedings before the Rent Controller, Delhi, against the appellant. It is pleaded that on April 19,1995 Mesar Kaur executed another Will which is in Punjabi language bequeathing the above property in favour of the appellant. This Will was registered with Sub- Registrar, New Delhi, on January 25,1996. Mesar Kaur died on May 26, 1995. Occupation of the rear portion of the property by respondents 1-3 after the death of Mesar Kaur is unauthorised and the appellant is entitled to claim mesne profits attherateofRs.500.00 per month with effect from May 26, 1995. Respondents 1- 3 have contacted property brokers to dispose of the property. It is prayed that the appellant be declared owner of aforesaid property No. 1-1/85 on the basis of the Will dated April 19,1995. In addition to this decree declaring the deed of gift dated November 12, 1993 as null and void is also prayed. A decree for recovery of possession of the rear portion of the property along with mesne profits amounting to Rs. 8,500,.00 for the period May 26, 1995 to October 24, 1996 is further sought to be passed against respondents 1-3.

(3) In the suit I.A. No. 11075/96 was filed by the appellant seeking ad-interim injunction restraining respondents 1 to 3 from dispossessing, stopping water and electricity supplies to the portion of the property in possession of the appellant and selling, mortgaging, gifting, transferring, parting with possession, constructing or in any manner encumbering the property by respondents 1 to 3. An ex-parte injunction order in appellant's favour in terms of the prayer clause was granted on November 1, 1996 by the learned Single Judge.

(4) I.A. No. 11627/96 for vacating the order dated November 1,1996 was filed by respondent No. 1 on November 16,1996. It is not disputed that Ram Singh was the owner of the property in question and appellant was inducted as a tenant in the front portion thereof by him or that he died issueless in 1979 leaving behind Mesar Kaur as his only legal heir, asalleged. However, IT is stated that the appellant taking undue advantage of the old age etc. of Mesar Kaur got executed in favour of his wife Smt. Tara Sharma General Power of Attorney and also a Will on August 13, 1990. Mesar Kaur was never aware as to the nature of both the documents got signed by the appellant from her. On having come to know in regard to the purport of the documents so executed by her, Mesar Kaur vide a deed of revocation dated October 10, 1992 duly registered with the Sub-Registrar (Conveyance) revoked the said General Power of Attorney under intimation to the appellant and his wife. She also got a notice dated February 16, 1993 served on the appellant and his wife calling upon them to surrender the original General Power of Attorney and the oilier papers illegally obtained by them from her. This notice was followed by a reminder dated March 12, 1993. Appellant sent a reply dated March 19, 1993 to the notice taking totally dishonest and illegal stand. Mesar Kaur thereafter filed suit bearing No. 307/93 titled MesarKaurv. Tara Sharma ^Another, in the High Court seeking injunction against the appellant not to claim any right on the basis of the General Power of Attorney and Will allegedly got executed from her on August 13, 1990. This suit lastly came up for hearing on May 3, 1995 and since Mesar Kaur was admitted in hospital she could not impart instructions to the Counsel and the suit was dismissed for non-prosecution on that date. It is asserted that respondent No. I is the only close relative of Mesar Kaur and had been looking after and staying with her since 1992. Out of her free Will Mesar Kaur gifted in respondent No. l's favour property in question under the deed of gift dated November 12,1993 which was registered with the Sub-Registrar (Conveyance), Delhi, the same day. Property also stands mutated inthenameofrespondentNo.lonthestrengthofthesaid deed of gift. It is alleged that the appellant on becoming aware of the said deed of gift filed a suit for permanent injunction in December, 1994 before Senior Civil Judge, Delhi against respondent No.1 and others including Mesar Kaur. On the application filed by the appellant for issue of ad-interim injunction, respondent No. I has. been restrained from forcibly dispossessing the appellant from the portion in his possession by the order dated October 16,1995. It is admitted that Mesar Kaur expired on May 26, 1995 but it is emphatically denied that she left the Will dated April 19, 1995 in favour of the appellant, as alleged. It is stated that alleged Will was got registered by the appellant after about eight months of the death of Mesar Kaur. It does not bear the signature of Mesar Kaur and is a forged one.

(5) In terms of the impugned order 1.A. No. 11075/96 was dismissed and ex- parte ad-interim order dated November 1, 1996 was vacated.

(6) At the outset it may be noticed that learned Counsel for respondent No.1 on the instructions from his client made a statement before us that pending suit respondent No.1 has no intention to dispossess the appellant from the portion of the property in his possession or to stop the supplies of water and electricity thereto otherwise than in due course of law.

(7) Relief for declaration etc. claimed in the suit is based on the Will dated April 19, 1995 alleged to have been executed by Mesar Kaur in favour of the appellant. On the contrary respondent No.1 claims title in the suit property on the strength of deed of gift allegedly executed by Mesar Kaur on November 12, 1993 and the appellant admits the existence of this deed of gift. Obviously, appellant cannot be granted any of the reliefs claimed by him unless the deed of gift dated November 12,1993, executed by Mesar Kaur in respondent No. 1's favour is set aside and the said Will dated April 19,1995 is held to have been validly executed by Mesar Kaur. In this view of the matter the appellant cannot be said to be having any prima facie case for grant of injunction. Learned Single Judge was, therefore, fully justified in passing the impugned order after considering all relevant factors, including the one which have been noticed by us.

(8) Consequently, the appeal is dismissed with no order as to costs. Respondent No.1 will be bound by the statement made through his Counsel that pending suit neither the appellant will be dispossessed from the front portion of the property bearing No. 1-1/85, Lajpat Nagar, New Delhi, which is in his possession nor supplies of water and electricity to that portion will be stopped, otherwise than in due course of law.