Sarnath Mukherjee vs Francis Kuok & Ors.
2011 Latest Caselaw 4089 Del

         THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Pronounced on: 23.08.2011

+ CS(OS) 292/2011


SARNATH MUKHERJEE                       ..... Plaintiff
            Through: Mr. Rajesh Yadav, Advocate &
            Ms. Tanya Khare, Advocate

                             versus

FRANCIS KUOK & ORS                       ..... Defendants
              Through: Mr. Sukant Vikra, Advocate
              for D-1
              Mr. P.S.Bindra, Advocate for D-2&3

CORAM:-
HON'BLE MR JUSTICE V.K. JAIN

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

2. To be referred to the Reporter or not?                 No.

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

V.K. JAIN, J. (ORAL)

IA No. 7286/2011 (u/O 39 R.4 CPC) and IA No. 7027/2011 (39 R.1&2 CPC)

1. The plaintiff and defendant No.1 are joint owners

of agricultural land comprising in khasras No.257 min.(03-

09), 470 min (02-08), 473 min (01-13), 474 (00-14), 475 (00-

14), 476 min (00-02), 479 (00-09), 480 (00-12), 481 (01-02),

482 (01-05), 493 min (01-03), 494 min (01-04), 497 min

(01-04) totally admeasuring 15 bighas and 19 biswas,

situated in the Revenue Estate of Village Bhatti, Tehsil Hauz

Khas (Mehrauli), New Delhi. The suit land is said to be

governed by Delhi Land Reforms Act, 1954. Defendant No.1

entered into an agreement dated 20th May, 2010 followed by

a supplementary agreement dated 8th December, 2010 to

sell his share in the suit land to defendant No.2 i.e. M/s

New Era Buildwell Pvt. Ltd. for a total consideration of

Rs.2.58 crore, out of which a sum of Rs.75 lac has been

paid to him.

2. The case of defendants No. 2 & 3 is that pursuant

to the aforesaid agreements, defendant No.3 was authorized

by defendant No.1 to look after his holding in the suit land

as his caretaker. It is also alleged that after entering into

the agreement, defendant No.3 is in joint possession of the

suit land with the plaintiff.

3. In his Written Statement, defendant No.1 has

admitted the agreements between him and defendant No.2

but, has denied appointing defendant No.3 as the caretaker

and delivery of possession to defendants No. 2 & 3 in

pursuance of those agreements. He has specifically stated

that defendant No.3 has never remained in possession of

the suit land.

4. It is an undisputed fact that the suit land is jointly

owned by plaintiff and defendant No.1, both of whom have

50% share each. It is also an admitted case that there has

been no partition of the suit land between the plaintiff and

defendant No.1.

5. Thus, whereas according to defendants No. 2 & 3,

defendant No.3, who is a director of defendant No.2

company was appointed as caretaker by defendant No.1 and

is in joint possession of the suit land along with the

plaintiff, the case of defendant No.1 is that he never

appointed defendant No.3 as the caretaker and he did not

deliver possession of any part of the suit property to him

despite having entered into an agreement to sell his share in

the suit land to defendant No.2. There is absolutely no

document which would indicate that defendant No.3 was

appointed by defendant No.1 as the caretaker in respect of

his holding in the suit land. There is no document

evidencing delivery of possession of any part of the suit land

by defendant No.1 to other defendant No.2 or defendant

No.3. In fact, this is not even the case of defendants No. 2

& 3 that the possession was delivered to either of them by

defendant No.1, their case being only this much that since

defendant No.3 was appointed as caretaker, he came in joint

possession of the suit land along with the plaintiff.

Assuming the averments made by defendants No. 2 & 3 to

be correct, that by itself does not mean that defendant No.2

and/or defendant No.3 came in joint possession of the suit

land along with the plaintiff. Even if, defendant No.3 was

appointed as the caretaker by defendant No.1, the

possession continued to be jointly with him (defendant No.1)

and the plaintiff, since the caretaker looks after the property

on behalf of the person who appoint him as caretaker and

he can never be said to be in legal possession of the

property which is entrusted to him in his capacity as a

caretaker. Therefore, the possession, if any, of defendant

No.2 and/or defendant No.3 cannot be said to be a legal

possession.

6. The photographs filed by the plaintiff would show

that not only a jhuggi has been erected on a part of the suit

land, a car is also parked there and some building material

is also lying there. Admittedly, the car and building

material belong to defendants No. 2 & 3 and the jhuggi has

also been put by them only.

7. The next question which comes up for

consideration is as to what kind of interim order should be

passed by the Court in such circumstances where it

appears that though defendant No.1 never delivered the

possession of any part of the suit land to defendants No. 2

& 3, they have somehow, presumably unauthorizedly, put a

jhuggi on a part of it, have parked a car there and have also

put some building material on it. In my view, the most

appropriate order in such a case will be not to allow any

construction on the suit land by any party during pendency

of the suit. I also feel that since possession of the suit land

has not been delivered by defendant No. 1 to defendant No.2

and/or defendant No.3 and there is no document evidencing

even appointment of defendant No.3 as a caretaker by

defendant No.1, neither defendant No.3 nor any employee or

representative of defendants No. 2 & 3 should enter upon

the suit land during pendency of the suit. However, they

should have liberty to take away their car and building

material from the suit land, if they so desire, and also

remove their jhuggi , if they intend to do so. As far as the

agreements to sell executed by defendant No.1 in favour of

defendant No.2 is concerned, the suit for specific

performance of the aforesaid agreements being CS(OS) No.

1469/2011 has already been filed and an interim order has

already been passed by this Court on 3 rd June, 2011

directing parties to the suit to maintain status quo with

respect to title and possession of the suit land till further

orders. That interim order in my view is adequate to

safeguard the interest of defendants No. 2 & 3 at this stage.

The questions as to whether defendant No.2 should deposit

the balance sale consideration or furnish a bank guarantee

or an FDR for the amount of the balance consideration, are

the questions which will be considered while disposing of

the application filed in suit CS(OS) No. 1469/2011 for grant

of interim injunction. It is made clear that defendants No. 2

& 3 will be at liberty, if they so desire, to remove their car,

building material and jhuggi from the suit land, after

previous notice in writing to the plaintiff and defendant No.

1. IA No. 7286/2011 and IA No. 7027/2011 stand disposed

of in terms of this order.

CS(OS) No. 292/2011 & IA No. 7128/2011 (u/O 39 R.2A CPC)

Reply be filed within four weeks and rejoinder, if

any, can be filed within four weeks thereafter. Replication

to the Written Statement can be filed within two weeks.

The parties will also carry admission/denial of

documents before the Joint Registrar on 30 th September,

2011. Documents can be filed by the parties within two

weeks.

List for hearing before the Court on 24th February,

2012.

(V.K. JAIN) JUDGE AUGUST 23, 2011 vn