Delhi High Court
Manoj Kumar & Anr. vs Gayasi Ram & Ors. on 11 February, 2010
Author: Aruna Suresh
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 88/2009
Date of Decision: February 11, 2010
MANOJ KUMAR & ANR. ..... Appellants
Through: Mr. Abhishek Singh with
Mr. Amit Bhalla, Advocate.
versus
GAYASI RAM & ORS. ..... Respondents
Through: Nemo.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not?
(3) Whether the judgment should be reported
in the Digest ?
JUDGMENT
ARUNA SURESH, J. (Oral)
CM APPL. 9488/2009 (Exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
CM APPL. 9489/2009 (Delay)
There is delay of 22 days in filing the appeal. For the reasons
stated in the application, it is allowed. Delay in filing the appeal is
hereby condoned.
RSA 88/2009
1. Plaintiffs (appellants herein) filed a suit for permanent
injunction seeking restrain orders against defendant Nos. 1 to
7 and defendant Nos. 8 to 10 from carrying out mutation of
land bearing Khasra No.28/1 (0-08), 28/2 (0-12), 30 (4-18),
51/1 (2-0), 51/2 (3-15), 52 (1-15) and 82 (2-09) total
measuring 15 Bighas 17 Biswas, situated within the Revenue
Estate of Village Gadaipur, New Delhi, on the basis of illegal
Sale Deeds executed in favour of defendants No. 8 and 9.
2. In brief, case of the plaintiffs is that suit property belonged to
one Shri Kale Ram, great grandfather of the appellant. Shri
Kale Ram was survived by three sons and three daughters.
All the three daughters relinquished their share in the property
in favour of Shri Giasi Ram, defendant No.1 (respondent
herein). Shri Shyam Lal and Shri Ram Bal, the other sons of
Kale Ram also relinquished their share in favour of Giasi
Ram. The entire land was sold in the year 1996 to respondent
Nos. 8 and 9 by way of multiple Sale Deeds, some of which
remained unregistered. Purchasers filed a writ petition
seeking directions for registration of un-registered Sale
Deeds. In the writ petition and other legal proceedings,
plaintiffs sought impleadment but they failed and their prayer
was rejected upto the Supreme Court.
3. On the pleadings of the parties, trial court framed a
preliminary issue on 11.02.2009 as below:-
"Whether the suit is barred by
Section 41 (H) of the Specific
Relief Act, 1963."
4. Trial court vide its order dated 12.02.2009 rejected the plaint
under Order 7 Rule 11 CPC observing that as per Section 41
(h) of the Specific Relief Act (hereinafter referred to as „Act‟)
efficacious relief was available to the plaintiffs and since they
did not seek efficacious remedy of declaration for declaring
the impugned Sale Deeds as null and void, the relief of
injunction was not available to the plaintiffs because of
provisions of Section 41 (h) of the Act. The trial court
observed:-
"Section 41 (h) of the Specific
Relief Act provides that an
injunction cannot be granted when
equally efficaciously relief can
certainly to be obtained by any
other mode of proceeding except
in case of breach of trust. The
plaintiff has other efficacious
remedy of declaration which has
not been prayed in this suit. In
other words the suit for
preliminary injunction, simpliciter
is not maintainable in view of the
clear cut provision of section 41
(h) of Specific Relief Act."
5. Plaintiffs lost their first appeal vide impugned order dated
16.03.2009.
6. In the present appeal, plaintiffs have suggested formulation of
substantial question of law in para one of the appeal.
7. Mr. Abhishek Singh, learned counsel for the plaintiffs has
argued that Trial Court as well as the Appellate Court went
wrong when they rejected the plaint of the plaintiffs without
deciding the case on merits. It is further argued that relief of
declaration was not required to be sought as it was in built in
the relief of permanent injunction sought by the plaintiffs. He
has urged that there is no legal bar in filing the suit even if hit
by the said provisions of the Act and the courts below have
not correctly interpreted and applied the provisions of Section
41 (h) of the Act to the facts and circumstances of the case.
Therefore, substantial question of law are required to be
formulated and adjudicated upon. To support his submission,
he has relied upon „K.Thakshinamoorthy & Anr. Vs. State
Bank of India, AIR 2001 Madras 167'.
8. I find no force in the submissions of the learned counsel for
the plaintiffs.
9. True that suit for perpetual injunction in respect of
immoveable property is maintainable without declaration of
title. However, court is required to take into consideration the
entire averments contained in the plaint. Relief of injunction
as sought by the plaintiffs in the case was to restrain
Respondent Nos. 1 to 7 from effecting mutation of the suit
land in favour of Respondent Nos. 8 and 9. It is settled
principle of law that mutation of a property in the name of a
person per se does not create any title of the person in whose
name the property is mutated. Though plaintiffs have sought
perpetual injunction for restraining respondents from getting
the suit land mutated in their names, the fact remains they did
not challenge the legality and validity of the Sale Deeds vide
which Gayasi Ram sold the land to Respondent Nos.2 to 10
by executing separate Sale Deeds. Unless declaration to the
fact that the Sale Deeds executed by Gayasi Ram were null
and void, relief of perpetual injunction as claimed by the
plaintiffs is of no consequence. Plaintiffs have also sought
perpetual injunctions against the Govt. Agency responsible
for registration of Sale Deeds. The concerned Govt. official in
no circumstance can be restrained from mutating the property
in favour of holder of a valid Sale Deed. As pointed out
above, plaintiffs did not challenge validity of the Sale Deeds
nor sought any such declaration for the same.
10. Relief of perpetual injunction can be granted to the plaintiffs
only if no other efficacious remedy is available. In this case
efficacious remedy available to the plaintiffs was to seek
declaration that the Sale Deeds executed by Respondent No.1
in favour of Respondent Nos. 2 to 9 were not valid and
without authority. The relief of perpetual injunction as
claimed was a relief so available to the plaintiffs as a
consequential relief. It was only if the impugned Sale Deeds
were declared as null and void that the relief of perpetual
injunction could have been granted to the plaintiffs.
11. It is noted that respondent Nos. 8 and 9 have already filed a
writ petition seeking directions to the Registrar to register the
un-registered Sale Deeds executed in their favour by
respondent No.1.
12. In view of my discussion as above, it is concluded that the
Trial Court as well as the Appellate Court rightly applied
provisions of Section 41 (h) of the Act to the facts and
circumstances of the case.
13. Question of maintainability of the suit can be considered by
the court, after pleadings are complete, on framing of a
preliminary issue. Order 14 Rule 2 (2) CPC permits the court,
if it is of the opinion, that the case or any part thereof can be
disposed of on a issue of law only, it may try that issue first if
that issue relates to the jurisdiction of the court or bar to the
suit created by any law for the time being in force. In that
case, court is within its power to postpone the settlement of
other issues until after that issue has been determined. The
trial court framed a preliminary issue and proceeded to decide
the same within the purview of law. Since court was of the
opinion that the suit was barred under the law, it rightly
rejected the plaint without settlement of other issues.
14. K.Thakshinamoorthy's case (supra) is of no help to the
plaintiffs. In the said case an application under Order 7 Rule
11 CPC was filed by the defendants seeking rejection of the
plaint on the grounds that it did not disclose any cause of
action. In the said case, State Bank of India had filed a suit for
permanent injunction for restraining the defendants from
alienation/selling the scheduled properties or to create any
charge over the same. It was under these circumstances that
the court observed that Specific Relief Act is only an
equitable and common relief or remedy and does not deal
with any cause of action and therefore plaint cannot be
rejected on the ground that the relief sought for in the suit
cannot be granted under the provisions of the Act, especially
when element of fraud on the part of defendant is also alleged
by the plaintiff.
15. Hence, in view of the settled principle of law enshrined in
Order 14 Rule 2 CPC and Section 41 (h) of the Act, no
substantial question of law needs formulation. Though
attempt has been made to formulate a substantial question of
law pertaining to the applicability of Section 22 of the Delhi
Land Revenue Act, but no such question arises as no mutation
of the land in suit was made by the Tehsildar in favour of
Respondent Nos. 2 to 9 in the revenue records at the time
when the suit was filed.
16. Hence, I find no merits in the appeal, the same is accordingly
dismissed.
ARUNA SURESH
(JUDGE)
FEBRUARY 11, 2010
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