Delhi High Court

Smt. Meena Pimpalpure vs Madhukar Rao Pimpalapure on 28 October, 2009

Author: Manmohan Singh

*           HIGH COURT OF DELHI : NEW DELHI


+           I.A. No. 6755/2008 in CS (OS) No. 1057/2008

%                                 Decided on: 28th October, 2009


Smt. Meena Pimpalapure                                  ...Plaintiff
                   Through : Mr. Akshay Makhija with Ms.
                             Deepali Sharma and Mr. Jatin
                             Mongia, Advs.

                                  Versus

Madhukar Rao Pimpalapure                                 ...Defendant
                   Through : Mr. S.P. Kalra, Sr. Adv. with
                             Mr. Sanjay Kalra, Adv.

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                  No

2. To be referred to Reporter or not?                               No

3. Whether the judgment should be reported                          No
   in the Digest?

MANMOHAN SINGH, J.

1. By this order I shall dispose of I.A. No. 6755/2008 filed by

the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of

the Code of Civil Procedure, 1908 for ad interim injunction restraining

the defendant, his employees, agents and anyone on behalf/claiming

under him from selling, alienating, transferring or creating any third

party interest in property „Madhusudan‟ at 5-A, Metcalf Road, Civil

Lines, Delhi - 110006 (hereinafter referred to as the „suit property‟) till

final disposal of the suit.

2. The present suit has been filed by the plaintiff for perpetual

injunction restraining the defendant and/or anyone on his

behalf/claiming under him from alienating, transferring or creating any

third party rights in the suit property qua the share of the plaintiff. Brief

facts of the case are that the plot of the suit property was bought by the

father-in-law of the plaintiff in the name of the defendant vide a

registered sale deed and a two storey building was created thereon. Vide

a gift deed duly registered on 27 November, 1974 with the Sub-

Regsitrar, Delhi as document no. 4631, Additional Book No. I, Vol.

3165 on pages 74 to 79, the defendant gifted absolutely and irrevocably

all his rights in the first and second floor of the suit property to the

plaintiff. The defendant‟s brother, husband of the plaintiff, shared a good

relationship with each other and carried out business together.

3. In 1996, the plaintiff‟s husband and the defendant segregated

their respective business. On 5 February, 2003 the plaintiff‟s husband

suddenly expired and the plaintiff asked her daughter and son-in-law to

shift to the suit property with her and help her in taking care of the

business left behind by her husband. However, the defendant started

pressurising the plaintiff to part with her share of the suit property and

soon, the plaintiff started receiving enquiries regarding sale of the suit

property. On 21 May, 2008 the son-in-law of the plaintiff was

approached by one Mr. Pravin Goel who identified himself as a real

estate agent and enquired as to the sale of the suit property. He revealed

that the defendant had been representing himself as the owner of the

entire suit property. The plaintiff, apprehending that the defendant would

sell/create third party interest over her portion of the suit property, filed

the present suit.

4. In the application under consideration, the plaintiff has

submitted that it has recently come to her knowledge that the defendant

is selling all his assets in India, including the plaintiff‟s share in the suit

property, and shifting abroad. The plaintiff has also been receiving

various queries about the sale of the suit property, all based upon the

misrepresentation that the defendant is the sole owner thereof. The

family of the defendant residing in Madhya Pradesh has also started

visiting the suit property very frequently and the defendant has started

repairs on the ground floor thereof, confirming the plaintiff‟s fears of the

defendant‟s intentions.

5. By order dated 28 May, 2008 this court directed the parties to

maintain status quo in respect of their respective title and possession of

the suit property till further orders. On the hearing on 13 February, 2009

learned counsel for the defendant stated that he would not file reply to

the present application and that the written statement be read as his reply

to the same.

6. As per the defendant, the entire facts as narrated by the

plaintiff are concocted and false. At the outset, the defendant has

submitted that the suit property had been bought by him with his own

funds in his own name and neither his father nor anyone else has

contributed in the same. Further, the entire construction on the said plot

was also done by the defendant with his own funds. The execution of the

gift deed dated 21 August, 1974 is not denied but it is submitted that

though two floors were gifted to the plaintiff, no share in land was given

along with the same or in any other way. In fact, it has been submitted

that in CS (OS) No. 431/2004 (transferred to the district court due to

change in pecuniary jurisdiction of this court) filed by the defendant

against the plaintiff for perpetual injunction, the plaintiff has

categorically admitted that she has no land rights in the land beneath the

structure of the suit property. The said suit was filed by the defendant as

the plaintiff was allegedly illegally raising construction on the first and

second floors of the suit property. The said suit is sub-judice.

7. The defendant has averred that the plaintiff‟s son-in-law‟s

alleged encounter with the alleged real estate agent Mr. Pravin Goel has

been narrated in the plaint as well as the in the present application with a

view to provide credence and content to the false story of intended sale

of the suit property as no such intention of the defendant exists. Further,

the plaintiff has time and again stated that she is the owner of the first

and second floors of the suit property, however, while praying for

injunction she has prayed for restraining the defendant as regards the

entire property. The defendant has respectfully submitted that he does

not intend to sell the suit property. Without prejudice to this submission

he has contended that as he is the owner of the ground floor along with

the entire land underneath, the plaintiff has no business of restraining

him from dealing with the same in whatever way he chooses. In

addition, the act of the plaintiff of obtaining the status quo order as

regards the suit property has been labelled mischievous and mala fide.

8. I have perused the contentions of both parties. Para 3 of the

pliant in the suit being CS (OS) No. 431/2004 instituted by the present

defendant against the present plaintiff states that the present defendant is

the absolute owner of the ground floor and of the entire land underneath

the suit property after execution of the gift deed. In the written statement

in that case, the present plaintiff (defendant therein) has not denied the

said statement specifically, in fact the said para has not been denied at

all. It has simply been stated that "the contents of paragraph 3 call for no

reply." However, if one was to look at para 2 of the written statement,

the defendant therein has categorically stated that she is the owner of

2/3rd share in the undivided land of the suit property.

9. A perusal of the gift deed shows that land rights have not

been mentioned anywhere. Specifically, para 3 of the said gift deed

states as under :

"3. That the Donee shall have all rights of passage and easement appurtenant to the property gifted and shall have full rights of construction over the property gifted. This gift is irrevocable."

10. Counsel for the plaintiff has referred to Jai Narayan

Parasrampuria (Dead) & Ors. V. Pushpa Devi Saraf & Ors., (2006)

7 SCC 756 wherein in para 72, the court has made the following

observation :