Shri Shashibir Singh Sarang vs Shri Kanwal Sunir Singh Sarang & ...
2011 Latest Caselaw 3907 Del

        IN THE HIGH COURT OF DELHI AT NEW DELHI

 + IA NO. 14672/2007 (O 39 R2A r/w 151 CPC), IA NO.
 14193/2007 (O 39 R 1 & 2 r/w 151 CPC) and IA No.
 14957/2007 (O 39 R 4 and O 26 R 9 & 16 and O 7 R 11 r/w
 151 CPC) in CS (OS) No. 2416/2007
*

Decided on: 11th August, 2011

SHRI SHASHIBIR SINGH SARANG .......Plaintiff

Through: Mr. Ashim Vachher, Adv,

Vs.

SHRI KANWAL SUNIR SINGH SARANG & ORS.              .....Defendants

                         Through:    Mr.J.P.Sengh, Sr.Adv. with
                                     Mr.Kuldeep Kumar, Adv.
                                     Mr.Zafar Ali, Contemnor
                                     No.2 in person.
Coram:
HON'BLE MR. JUSTICE A.K. PATHAK

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

       2. To be referred to Reporter or not?            No

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


A.K. PATHAK, J.(ORAL)

1. By this order I shall dispose of above noted three

applications. Vide IA No. 14193/2007 plaintiff has prayed that

the defendant be restrained from interfering in peaceful

enjoyment of plaintiff in respect of the annexee at the first floor

of the property situated at C-108, South Extension, Part II, New

Delhi (for short hereinafter referred to as "annexee") and from

forcibly dispossessing him from the suit property.

2. Vide order dated 11th December, 2007, parties were

directed to maintain status quo with regard to the title and

possession in respect of the suit property. Mr. R.S. Rathi,

Advocate was appointed as Local Commissioner to verify the

possession in respect of the annexee. On the very next, day that

is, 11th December, 2007, Local Commissioner visited the suit

property in the presence of plaintiff and defendant. He found

two locks on the main entrance of the suit property. Defendant

claimed that one lock was his and second lock had been put by

the plaintiff over his lock. Local Commissioner noted in his

report that he could not succeed in gaining entry into the suit

property as two locks were affixed at the main entrance

inasmuch as, both the parties were quarrelling with each other

in the presence of police officials.

3. Defendant entered appearance in the Court and filed IA No.

14957/2007 praying therein that status quo order dated 11th

December, 2007 be vacated; report dated 11th December, 2007

of Local Commissioner be taken off the record; a new Local

Commissioner be appointed with the direction to unlock the

common passage leading to the annexee on the first floor, to

enter into the said annexee and conduct the inspection thereof

to verify as to who was in the actual physical possession. It was

also prayed that the suit be dismissed under the provisions of

Order 7 Rule 11 of the CPC.

4. Another application bearing IA No. 10839/2008 under

order 26 Rule 9 read with Section 151 CPC was also filed by

the defendant praying therein for appointment of a Local

Commissioner to verify the possession in respect of the annexee.

This application was disposed of vide order dated 19th May, 2011

and Ms. Padma Priya, Advocate was appointed as Local

Commissioner to visit the suit property i.e. annexee and to

report as to whether any lock was there on the door of the

annexee and also to inspect the rear portion of the suit propety.

Local Commissioner was directed to get the locks opened after

obtaining the keys from the representatives of both the sides and

if keys were not made available, to get the locks break open, and

to inspect the annexee and prepare an inventory of the goods

lying therein. Local Commissioner visited the suit property on

20th May, 2011. She has reported that white wooden door which

led to the passage to the annexee was locked. It had two locks.

The first lock (which was under the other lock) was square in

shape and had a red colour slip on it. The second lock (which

was above the square shaped lock) was round in shape.

Defendant claimed that lock of square shape belonged to him;

while the other lock was of plaintiff. Defendant opened the lock,

however, plaintiff‟s servant failed to open the lock. Round lock

was broken open and thereafter, she entered in the passage

which was about 5.5 feet long. After climbing about 7 stairs she

reached upto the door of annexee. There was another white

wooden door, bearing the name plate of defendant. Door was

knocked, and it was opened by Mr. Gulneer S. Sarang and Mrs.

Gurwant Sarang, son and wife of defendant who were present

inside the annexee. She prepared an inventory of the articles

lying in the annexee.

5. After this visit of Local Commissioner, plaintiff has filed IA

No. 9154/2011 on 23rd May, 2011 praying therein that

defendant be restrained from entering in the annexee; defendant

be directed to restore the status quo which was existing as on

11th December, 2007 in respect of the two locks installed in the

front door of the annexee; defendant be restrained from

installing his locks in the rear entry door of the annexee; and

plaintiff be permitted to put his lock on the rear door of the

annexee. As per the plaintiff, defendant has forcibly taken

possession of the annexee after the visit of earlier Local

Commissioner. This fact has been vehemently disputed by the

defendant.

6. Plaintiff and defendant are real brothers. Initially, other

brothers of parties were impleaded as Defendant Nos. 2 and 3

but since no relief was claimed in the suit against them, plaintiff

subsequently dropped them from the array of parties on 5th

April, 2011. Dispute is between the plaintiff and defendant in

respect of the annexee. Case of the plaintiff is that his mother

was in the possession of annexee all throughout till she died on

15th November, 2007; his mother was residing with him all

throughout. She had executed a General Power of Attorney on

3rd July, 1996 thereby admitting her possession over the

annexee; she gave powers to plaintiff to deal with the annexee in

the manner he deems fit. She has also left behind a registered

Will dated 9th March, 2006 thereby bequeathing her entire share

in favour of plaintiff. Alleged family settlement dated 7th April,

1992 was never acted upon. Defendant, in utter disregard to the

family settlement, had surreptitiously executed the transfer

documents in favour of Mr. Shahzad Jaffar Ali with respect to

the first floor of the suit property except the annexee. Purported

family settlement was challenged by Shri Sarbir Singh Sarang,

who filed a suit bearing No. 1356/1994 titled „Sarbir Singh

Sarang vs. Kanwal Sunir Singh Sarang and Ors.‟ In the said

suit, defendant had admitted the possession of his mother in

respect of the annexee. A Local Commissioner was appointed in

the said suit who had visited the property on 30th August, 1994

and found the annexee to be in possession of Late Smt. Sushila

Sarang. Defendant had sold first floor to Shahzad Jaffar Ali in

violation of the injunction order passed in the said suit.

Defendant was never in possession of the annexee. After the

death of their mother, defendant tried to forcibly occupy the

annexee compelling the plaintiff to file the present suit.

7. Case of the defendant is that in terms of the family

settlement dated 7th April, 1992, first floor came in his

possession. As regards annexee is concerned, same was to

remain in possession of their mother during her life time and

thereafter it was to vest in defendant. In CS(OS) No. 1356/1994,

Local Commissioner Mr. Ravi Gupta had confirmed the physical

possession of the defendant over the annexee even at the time

when first floor was sold by him to Shahzad Jaffar Ali. Plaintiff

had himself given a „No Objection Certificate‟ on 8th August,

1995 with regard to the sale. Their mother, Smt. Sushila Sarang

had filed CS(OS) No. 1334/1994 in respect of the suit property

wherein a compromise agreement was executed on 20th June,

1996 between Smt. Sushila Sarang and the defendant. In the

said agreement, had acknowledged the genuineness of the family

settlement dated 7th April, 1992. It was further mentioned

therein that the defendant shall hand over partial portion of the

annexee on the first floor to Smt. Sushila Sarang. This

agreement has been witnessed by the plaintiff and this fact

itself shows that defendant was in physical possession of the

annexee. On 4th December, 2007 Shri Virender Kumar,

Advocate-cum-Notary Public had also visited the annexee and

taken its photographs. Report of Notary together with

photographs not only shows presence of defendant in the

annexee but also his goods lying there. During the life time of

Smt. Sushila Sarang, annexee was in joint possession of

defendant and his mother. After her death defendant has been

in exclusive possession of the annexee.

8. There are allegations and counter allegations leveled by the

parties regarding their possession over the annexee. However,

documents placed on record including report of the Notary

Public and photographs taken by him coupled with reports of

Local Commissioner, prima facie, makes it clear that it is the

defendant who was earlier in joint possession of the annexee

with his mother and in exclusive possession after the death of

his mother. Plaintiff had even failed to open the lock which he

claimed to be his. In the family settlement, it has been

categorically stated that annexee on the first floor shall remain

in possession of Smt. Sushila Sarang during her life time and

thereafter will vest in defendant. Agreement dated 20th June,

1996, which has even been witnessed by the plaintiff, makes it

clear that it is the defendant who was in possession of the

annexee; he had agreed to hand over partial possession of the

same to his mother. Admittedly, this agreement has yet not

been declared as null and void even though it is under challenge

in different proceedings. Photographs of the annexee and report

of the Notary Public dated 4th December, 2007 also, prima facie,

show that it is the defendant who had been in possession of the

annexee. That apart, when Ms. Padma Priya, Local

Commissioner visited the premises, defendant No. 1 had

produced the keys of the lock which he claimed to be his and

had succeeded in opening the same. As against this, plaintiff

could not open the lock which he claimed to be his. Even

otherwise, locks had been put on the entrance to the passage

and not on the door of annexee. There was another door of the

annexee which was opened by the wife and son of defendant,

inasmuch as, name plate of defendant was also found on the

door. At this stage only a prima facie case has to be seen.

9. Grant of temporary injunction is a discretionary relief to be

granted based on sound judicious principles depending upon

facts and circumstances of each case. The sound judicial

principles which regulate the discretion conferred under Order

39 Rules 1 and 2 are that the party seeking temporary

injunction must satisfy that there is a serious question to be

tried in the Suit to dispel the doubt relating to their entitlement

and there being probability of it being entitled to the relief

sought. Secondly, the Court's interference is necessary to protect

it from the threatened injury, which according to the Court is

irreparable one before a legal right can be established on trial. It

has also to be seen that balance of convenience lies in favour of

the parties seeking relief of interim injunction. All these three

conditions should co-exist before a temporary injunction is

granted. The principles with regards to the grant of temporary

injunction can be summed up as under:-

(i) There has to be prima facie case;

(ii) There will be irreparable loss and injury if injunction prayed for is not granted and;

(iii) Balance of convenience lies in favour of the party claiming injunction.

10. For the foregoing reasons, in my view, plaintiff has failed to

disclose a, prima facie, case in his favour inasmuch as, he has

failed to show that he was in possession of annexee at the time of

filing of suit. In the facts of this case, plaintiff shall also not

suffer any irreparable loss or injury in case injunction as prayed

for is declined. Balance of convenience is also not in favour of

plaintiff. Consequently, applications of plaintiff are dismissed.

Interim order is vacated. Application for vacation of interim order

is disposed of as infructuous, since applications of the plaintiff

have been dismissed and interim order has already been vacated.

11. As regards relief of rejection of plaint as prayed for by the

defendants, in my view, same cannot be granted in the facts of

this case. It cannot be said that plaint does not disclose any

cause of action. It has been categorically stated in the plaint that

mother of the plaintiff was residing with him all throughout. She

was in possession of „Annexee‟. After her death annexee came in

the possession of plaintiff. Defendant made an attempt to take

forcible possession of annexee on 4th December, 2007 and 6th

December, 2007, thus, giving rise to a cause of action for filing

the suit. It is well settled that for the disposal of application

under Order 7 Rule 11 CPC Court has to only see the plaint and

the supporting documents filed along with it in order to find out

as to whether any cause of action had arisen in favour of the

plaintiff for filing the suit or not. Averments in plaint are

germane and written statement has not to be looked into nor any

other material placed on record by the defendant along with it.

Averments made in the plaint do disclose cause of action.

Veracity of version of the plaintiff as contained in the plaint can

be tested during the trial. Merely, because defendant has

disputed the allegations in the plaint will not be sufficient to

discard the same without a trial. Allegations and counter

allegations can be tested only after a full fledged trial. At the

initial stages one party cannot be disbelieved by accepting the

version of other as a gospel truth. Prima facie view formed by the

Court on the basis of documents for the purposes of disposal of

application under Order 39 Rules 1 and 2 will not be sufficient to

hold that plaint does not disclose any cause of action.

IA No. 12710/2011 (Sec. 151 CPC) in CS(OS) No. 2416/2007

Reply be filed by the defendant within four weeks with an

advance copy to the counsel for plaintiff, who may file rejoinder,

if any, within two weeks thereafter.

Renotify on 16th November, 2011.

A.K. PATHAK, J.

August 11, 2011 rb