Rakesh Kumar Anand vs Jang Bahadur Anand
2008 Latest Caselaw 1748 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                         FAO No. 285 of 2008


                                       Date of Decision : 26 -09-2008


       RAKESH KUMAR ANAND              ..... Appellant
                     Through: Mr. Abhishek Singh, Advocate
                              with Mr.Prithvi Sidhu, Advocate

                   versus


       JANG BAHADUR ANAND                   ..... Respondent
                     Through : None


CORAM:
    HON'BLE MISS JUSTICE REKHA SHARMA

1.     Whether the reporters of local papers may be allowed to see the
       judgment? Yes
2.     To be referred to the reporter or not? Yes
3.     Whether the judgment should be reported in the „Digest‟? Yes



REKHA SHARMA, J.

The appellant and the respondent are real brothers. Their

mother Smt.Krishna Anand had expired on December 27,2007. The

ashes of their mother were still smouldering when dispute arose

between them with regard to the rear portion of property number

13/27, Moti Nagar, New Delhi comprising of one room, latrine, bath and

kitchen which was in occupation of their mother till her death. The

front portion is in occupation of the appellant who is living there with

his wife and children.

It is alleged by the appellant that after the death of the

mother, on December 30, 2007, the respondent along with his two

sons entered the rear portion of property No. 13/27 and forcibly tried

to dispossess him from that portion. He made an urgent call to the

police control room whereupon the police arrived on the spot and took

the respondent and his sons to the police station. But, thereafter, the

police in connivance with the respondent forcibly affixed an „iron door‟

at point A in the said premises and locked the same.

After the aforesaid incident the appellant filed a suit in the

trial court seeking a declaration that both he and the respondent are

the joint owners of property bearing number 13/27, Moti Nagar, which

is on the ground floor and No. 13/27A, Moti Nagar, on the first floor. He

has also sought partition of the suit property and a mandatory

injunction directing the respondent to remove the iron door and the

lock illegally put in between property No.13/27 on the ground floor. He

further has sought a decree of permanent injunction restraining the

respondent from selling, transferring or disposing of or creating any

mortgage or interest of any third party either in property No.13/27 or

in 13/27A, Moti Nagar. Along with the suit he also filed an application

under Order 39 Rules 1 & 2 CPC and by way of interim relief sought a

direction to the respondent to remove the iron door and the lock shown

at point „A‟ in the site plan of property number 13/27 and also a

restraint order against him from selling, transferring or disposing of or

creating any mortgage or third party interest in the suit property. The

learned Additional District Judge who dealt with the application vide his

order dated January 24,2008 directed the parties to maintain status

quo in respect to the suit property but passed no order with regard to

the relief of removal of the iron gate and the lock put thereon.

However, a Local Commissioner was appointed to visit the site to

ascertain whether the respondent had installed a new iron door at the

rear portion and had locked the same and also whether the books

pertaining to the son of the appellant were lying in the rear portion.

Feeling aggrieved by the non-grant of relief on the second

count the appellant preferred an appeal before this court which was

disposed of on May 5, 2008 with a direction to the trial Court to pass

appropriate orders on the second relief as well. In compliance with

the direction of this court, the learned Additional District Judge

re-heard the application under Order 39 Rule 1 & 2 CPC but by an

order dated August 6, 2008 declined to grant any relief to the

appellant vis-à-vis the removal of the iron gate and the lock. By way of

present appeal, the appellant has once again come to this Court

impugning the said order.

The case of the appellant as borne out from his plaint in

the suit for declaration, partition for permanent and mandatory

injunction (a copy of which has been placed on the appeal record) is

that the suit property Nos. 13/27 and 13/27A, Moti Nagar, was allotted

to their late father Shri Bansi Lal and upon his death, it devolved upon

him, his mother, the respondent and their three sisters to the extent of

1/6th share each. On August 20, 1994, the wife of the appellant had

left her matrimonial home and while she was away, he sustained

severe fracture injuries on his legs. Because of his such state of

health, he became totally dependent on the respondent and his

mother for maintenance, food and medical treatment. It is alleged

that taking advantage of his helplessness, the respondent represented

to him that as the suit property was continuing in the name of their

late father for a long time, any problem could arise and accordingly he

proposed to get the same mutated in the name of their mother. With

this in view, the respondent obtained the signatures and thumb

impressions of the appellant and his sisters on certain documents.

Later, it was found that he got the property mutated not only in the

name of the mother but also in his own name. The appellant

thereupon filed a civil suit No. 200/98 titled „Rakesh Kumar Anand Vs.

Jang Bahadur Anand‟ for declaration and mandatory injunction. The

said suit was dismissed by the court of Shri Vinay Singhal, Civil Judge,

vide judgment dated March 1, 2005. It is further the case of the

appellant that their mother on realizing the mischief done by the

respondent executed a Will dated September 17, 2004 and thereby

bequeathed her undivided share in the suit property in his favour

solely and exclusively and on the same date, the said „Will‟ was got

registered in the office of the Sub Registrar.

From the pleadings of the appellant as contained in his

plaint before the trial court, it is not in dispute that the property

bearing No. 13/27 & 13/27A has been mutated in the name of the

respondent and the mother of the parties. The appellant no doubt has

alleged fraud and deceit on the part of the respondent in his having

got the property mutated not only in the name of their mother but also

in his own name but the veracity of the allegation so made has yet to

be tested and it is a matter of trial. As of today, the property stands in

the name of the mother and the respondent. It is also not in dispute

that the mother of the appellant was living in the rear portion of

property No. 13/27, Moti Nagar. The said portion appears to be a

separate unit in itself as besides a room, it has a latrine, a bath and a

kitchen. The appellant is living in the front portion of the said property.

Having regard to the fact that during the life time of the mother, the

appellant had filed a suit against her and the respondent, it seems

unlikely that he was living in the rear portion also along with the

mother. In any case, this again is a matter of trial. The „Will‟ dated

September 17, 2004 on the basis of which the appellant has staked his

claim to the suit property has been disputed by the respondent.

According to him, the mother could not have bequeathed her share in

the property in favour of the appellant particularly for the reason that

when the „Will‟ was allegedly executed, the appellant was in litigation

with the mother. He alleges that the Will is a forged document. The

parties are seriously at issue with regard to the genuineness of the

Will. Therefore, it is difficult at this stage to grant any interim relief to

the appellant on the basis of the „Will‟.

Let me also have a look at the report of the Local

Commissioner for it is contended by the appellant that the Local

Commissioner in his report has said "that a new iron door having

lock was found affixed at rear portion of flat No. 13/27, ground

floor, Moti Nagar, New Delhi. Apparently, the iron door was

installed relatively recently by the respondent." There is no

doubt that the Local Commissioner has so stated in his report but it

cannot be inferred from the same that the rear portion was in

possession of the appellant. The Local Commissioner in his report has

also said that "few books belonging to the son of the plaintiff

were found lying in the rear portion of flat No. 13/27, Ground

Floor, Moti Nagar, .................. In addition to this, two text

books stated to be belongings of the son of defendant were

also found lying in the rear portion of flat No. 13/27, Ground

Floor, Moti Nagar, New Delhi." What does this show? Prima facie,

it goes to show that soon after the death of their mother, there was an

attempt on the part of the brothers to occupy the rear portion of the

house and in order to show their possession, they tried to create

evidence by putting books of their children in that portion.

In the above facts and circumstances of the case, I am of

the view that the learned Additional District Judge rightly disallowed

the prayer of the appellant to remove the iron gate and to open the

lock put thereon. I see no ground to interfere with the impugned

order. The appeal is dismissed.

It is, however, clarified that nothing stated in this order

shall be taken to be an expression of opinion on the merits of the case

which the trial court will decide uninfluenced by the present order.

REKHA SHARMA, J.

SEPTEMBER 26, 2008 g/sl