Ashwani Kumar Aggarwal vs Rameshwar Aggarwal
2005 Latest Caselaw 1442 Del

ORDER

J.P. Singh, J.

1. This petition under Article 227 of Constitution of India is directed against the order dated 8.8.2005 passed by Additional Senior Civil Judge, in the first appeal against the order dated 7.8.2004 passed by the Civil Judge, Delhi, vide order dated 7.8.2004 the Civil Judge had directed the parties to maintain status quo in respect of the immovable property, till disposal of the suit. The first appellate Court vide judgment dated 8.8.2005 allowed the appeal and vacated the status quo order. Hence this petition under Article 227 of the Constitution of India.

2. I have heard Mr. Rajesh Gupta, learned Counsel for the petitioner and Mr. D.N. Ramdev, learned Counsel for the respondent, on the point of admission, and have gone through the impugned judgment and order as also copies of the documents placed on the file.

3. Briefly the facts are the petitioner herein (plaintiff in the trial Court, hereinafter referred to as the 'plaintiff') filed a suit for perpetual injunction against the respondent herein & Others (defendants in the trial Court, hereinafter referred to as 'defendants") for restraining the defendants from selling, alienating, parting with or otherwise creating any third party interest in the property No. 1/251. Paschim Vihar and for restraining the defendants from dispossessing the plaintiff from the said property and also for restraining the defendants from obstructing the passage of the plaintiff and from interfering in the peaceful enjoyment of the said property.

4. At the outset, I may mention that it is a family dispute. Defendant No. 1 is father and defendant No. 2 is mother of the plaintiff. Defendant No. 3 is sister and defendant No. 4 is brother-in-law of the plaintiff. The plaintiff is the only son and is occupying the first floor, while the defendants are occupying the ground floor of the above said property.

5. It is alleged that defendant No. 1 had purchased a plot of land in 1969 from out of the money gifted by grandfather of the plaintiff to the plaintiff. After demise of grandfather of the plaintiff, the defendant No. 1 out of sale consideration of ancestral properties at Yamuna Nagar, Haryana, constructed the building on the said land.

6. In 1994 the plaintiff married against the wishes of his parents. The parents then started harassing his wife. The plaintiff's wife filed a criminal complaint against the defendants and an FIR was registered under Section 498-A/406/34 of Indian Penal Code. The defendant No. 1 had filed a suit on 29.5.2001 against the plaintiff and his wife inter alia pleading that the suit property was his self acquired property and he prayed for a mandatory injunction directing the plaintiff herein to vacate the suit property. The said suit is still pending.

7. The plaintiff learnt in May, 2003 from his relatives that the defendants were trying to sell or part with the suit property. This was confirmed from the property dealers of that area. Therefore, the plaintiff is apprehending that the suit property will be disposed of and hence the prayer in the suit.

8. The defendants had contested the matter on the ground that it was not an ancestral property but was a self acquired property of defendant No. 1 and it was alleged that the plaintiff illegally occupied the first floor and a report to this effect was lodged with the police. It was denied that the plot was purchased from any amount gifted by grandfather of the plaintiff to the plaintiff. It is averred that no gift was ever made. Further in 1969 the plaintiff was only 6 years old and the plot was purchased from the own earnings of the defendant No. 1 because he was employed as an engineer and retired as Chief Engineer. The defendant had intimated his office about the purchase of the plot as required under the rules. It was denied that the construction was raised from the sale consideration from the ancestral properties in Haryana. It is denied that the defendants has harassed the wife of the plaintiff rather the plaintiff had attacked the defendant No. 1 and that FIR was registered against him. Thereafter, his wife reported to the Crime Against Women Cell but the said FIR was quashed by the High Court. Keeping in view the cruelties committed by the plaintiff and his wife on the defendant No. 1, the defendant No. 1 disowned the plaintiff from all his movable and immovable properties and gave a public notice in the Hindustan Times on 30.4.1995. Because the plaintiff was aggressive, therefore, the suit was filed for directing him to vacate the property of the defendant. Lastly it is alleged that the plaintiff has no right, title or interest in the property.

9. The trial Court after referring to the contentions of both the parties was of the view that the matter could be decided only after evidence and till disposal of the suit the suit property should be preserved and therefore ordered status quo in respect of the suit property because if the suit property was sold, the suit would become infructuous.

10. On appeal the learned Addl. Sr. Civil Judge also referred to the contentions of both the parties in detail and observed that defendant No. 1 had already entered into an agreement to sell prior to filing of the suit and had also received earnest money from the purchaser and that he had disowned the plaintiff through public notice. The learned Addl. Sr. Civil Judge noted that Civil Judge had ignored the basic principles for passing interim order on the application under order XXXIX Rules 1&2 CPC and did not properly appreciate the documentary evidence placed on record. The learned Addl. Sr. Civil Judge opined that prima facie the plaintiff had not shown anything on record that suit property was an ancestral property. Further, the defendant No. 1 at the time of purchase of plot had informed his office that he had purchased the plot from his own savings. The plea of the plaintiff regarding the use of money after sale of properties at Haryana was not believed because about the properties at Haryana, Sub Judge Jagadri had declared on 12.2.1993 the shares of the defendant No. 1 and his brothers but the suit property in question was constructed in the year 1981 to 1986 that is much before the declaration about the share of the defendant No. 1 in the ancestral properties at jagadri, meaning thereby that even if those shares at Haryana were sold by defendant No. 1 it was 7 years after construction of the property in question. The Addl. Sr. Civil Judge opined that the defendant No. 1 was the exclusive owner and that the suit was the counter blast due to the strained relations and held that, that balance of convenience was in favor of defendant No. 1. and it is the defendant No. 1 who will suffer irreparable loss and injury if he is not allowed to deal freely with his own property and thus allowed the appeal and vacated the status quo order.

11. The above facts and circumstances show that admittedly the suit filed by defendant No. 1 is pending in the Civil Court for ejectment of plaintiff from the first floor of the property on the basis that defendant No. 1 is the owner while the plaintiff is alleged to be an unauthorized occupant. This means that the plaintiff is not going to be thrown out from the property without due recourse to law and even if ultimately the plaintiff is found to be a joint owner in the property and even if the property is sold in execution of an agreement to sell entered into prior to filing of the suit by the plaintiff against the defendant, the property will go to the vendor with the existing encumbrance and the plaintiff-son cannot be thrown out without due recourse of law.

12. The other suit filed by the defendant No. 1 against the plaintiff for directions to vacate the property of the defendant No. 1 is already pending. The relations between the parties are so strained that it has become practically impossible for them to live in the same building may be on different floors. Criminal proceedings are also pending the lives of both the parties are in danger from each other Prima facie the case of the defendant-father appeals to reason and even if the property is purchased by somebody, he will have to get it vacated from the plaintiff in accordance with law and if the plaintiff is able to prove his share, the same can be worked out because he is already in possession. But for such findings, to come in a distant future, the defendant-father cannot be restrained from dealing with the property as per his wishes.

13. In my view, in such hostile family atmosphere, the defendant-father cannot be compelled to live in this house. He cannot live peacefully when his disowned son is on his head all the 24 hours and the relations with the daughter-in-law are also strained. However, considering all the facts and circumstances of this case, I will slightly modify the impugned order and say that the sale, if any, by defendant No. 1 will be subject to the outcome of this suit, which be disposed of as expeditiously as possible.

14. This petition is accordingly disposed of and the parties are left to bear their own costs.