Delhi High Court

Nanak Chand & Ors. vs Raja Rakesh & Ors. on 6 July, 2012

Author: Reva Khetrapal

*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) 1177/2007


NANAK CHAND & ORS.                                    ..... Plaintiffs
                Through:                  Mr.Vinay Kumar Garg &
                                          Mr. Fazal Ahmad, Advocates

                      versus

RAJA RAKESH & ORS. B+                                  ..... Defendants
                  Through:                Defendants No.1 to 8 are ex
                                          parte.
                                          Mr. M. A. Khan, Advocate for
                                          D-12.

                               Date of Decision : July 06, 2012

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

                               JUDGMENT

: REVA KHETRAPAL, J.

1. The short issue which arises for consideration is whether the

aforementioned suit for injunction simpliciter would be maintainable

in view of the plaintiffs having withdrawn their prayer for the grant of

a decree of declaration in their favour and against the defendant No.1,

declaring the plaintiffs as the rightful owners (bhumidars) of the land

in dispute, i.e., land bearing Khasra No.44 Min, Khewat No.14,

Khatauni No.303, admeasuring 1 bigha 16 biswas situated at Village

Saboli, Shahdara, Delhi more specifically as shown bounded by red in

the site plan attached with the plaint.

2. Before embarking upon the discussion as to the maintainability

of the suit, it would be apposite to mention that though the aforesaid

suit was instituted by the plaintiffs for declaration of their Bhumidari

rights with respect to the aforesaid agricultural land and for a decree

of permanent injunction restraining defendants No.1 and 2 from

interfering with the rights and possession of the plaintiffs on the land

in dispute and also for the recovery of ` 2.50 Lacs from the defendant

No.1, none of the parties impleaded by the plaintiffs, viz., defendants

No.1 to 9 (defendants No.3 to 9 being proforma defendants) and those

impleaded on the orders of the Court, viz., defendants No.10 and 11,

showed any interest in contesting the title alleged by the plaintiffs; the

defendants No. 2 to 8 were proceeded ex parte in default of

appearance on 01-02-2008. Subsequently, on 11-08-2008 the

defendant No. 1 was also proceeded ex-parte and on 23-10-2008 the

defendants No.10 and 11 being the Revenue Authorities were

exempted from appearance before the Court subject to their filing a

status report in respect of the land in question. However, on an

application filed by one Hulas Chand claiming to be the owner of the

suit land, the said Hulas Chand was impleaded by the Court as a

necessary and proper party to the present suit and added as defendant

No.12. The said Hulas Chand, being the only person interested in

contesting the title claimed by the plaintiffs, through his counsel

argued that the present suit for the relief of declaration of Bhoomidari

rights is not maintainable in view of the judgment of this Court in

Smt. Phoolwati and Ors. vs. Smt. Ram Dei and Ors. reported in 150

(2008) DLT 105.

3. It was upon the aforesaid stand taken by the defendant No.12,

Hulas Chand that an issue was framed with regard to the

maintainability of the suit, being Issue No.3 as set out hereinbelow:

"Whether the suit of the plaintiff is barred under Section 185 of the Delhi Land Reforms Act, 1954?" OPP

4. Pending the hearing of Issue No.3, however, the counsel for the

plaintiffs, as stated above, made a statement before the Court that he

wanted to withdraw the relief of declaration sought for in the prayer

clause and to confine his relief to the prayer made for decree of

permanent injunction against the defendants, their agents, servants,

successors, legal heirs and/or assigns from in any manner interfering

with the rights and possession of the plaintiffs on the land in dispute.

It was then argued by Mr. M.A. Khan, the learned counsel for the

defendant No.12 Hulas Chand, that a suit for injunction simpliciter

would not be maintainable without the relief of declaration of title,

since the title of the plaintiffs is not clear, and the plaintiffs claim

themselves to be Bhumidars and recorded owners of the suit land,

which has been disputed by the defendant No.12 in the written

statement filed by him.

5. It may be mentioned that the version of the defendant No.12 in

the written statement filed by him is that the predecessor-in-interest of

the plaintiffs, namely, Shri Ziley Singh had exchanged his property

bearing Khasra No.44 Min., Khewat No.14, Khatauni No.303,

admeasuring 1 bigha 16 biswas with one Shri Ram Dev, son of Shri

Mool Chand, by executing a registered Exchange Deed dated

16.05.1961, consequent to which Shri Ziley Singh transferred the

property bearing No.44, Village Saboli, Delhi in favour of Shri Ram

Dev and received the land of Shri Ram Dev bearing Khasra

No.905/442, Village Saboli in transfer/exchange. Further, according

to the defendant No.12, after the demise of the said Shri Ram Dev and

his son, namely, Sushil Kumar, the said property was inherited by Shri

Raja and Shri Rakesh, both sons of Shri Sushil Kumar by operation of

law; and after inheritance Shri Raja and Shri Rakesh executed a

registered General Power of Attorney dated 17.04.1989 in favour of

one Shri Suresh Goel, son of Lakhi Ram authorizing the said Shri

Suresh Goel to sell the properties mentioned in the GPA.

6. Thereafter, Shri Suresh Goel sold the suit property for lawful

consideration in favour of Shri Satish Kumar, son of Shri Giri Raj

Singh by executing a General Power of Attorney, Agreement to Sell,

Receipt, all dated 14.07.1989 and parted with possession in favour of

Shri Satish Kumar. Shri Satish Kumar thereafter further sold the suit

property in favour of Smt. Kunti Devi, wife of Shri Girwar Swaroop

by executing a General Power of Attorney and Agreement to Sell

dated 08.02.1990. Smt. Kunti Devi in turn sold the suit property in

favour of Shri Pawan Goel, son of Shri Brij Lal Goel by execution of

a registered General Power of Attorney, Agreement to Sell, Indemnity

Bond, Special Power of Attorney, Receipt, Will, etc., all dated

27.09.1996 and parted with possession in favour of Shri Pawan Goel.

The latter further sold the suit property in favour of the defendant

No.12 Hulas Chand, son of Shri R.C. Aggarwal by executing a

registered Irrevocable General Power of Attorney, Agreement to Sell,

Affidavit, Possession Letter, Receipt and Will, all dated 04.05.2007

and parted with possession in favour of Shri Hulas Chand. Thus, in

this manner the defendant No.12 stepped into the shoes of Shri Ram

Dev and became owner of the suit property.

7. The Exchange Deed dated 16.05.1961 was however not

reflected in the revenue record and due to this reason name of Shri

Ziley Singh (predecessor-in-interest of the plaintiffs) appears in the

revenue record, though Shri Ziley Singh had been left with no right,

title or interest since the execution of the Exchange Deed. This fact,

though was within the knowledge of the legal representatives of late

Shri Ziley Singh viz., the plaintiffs, the plaintiffs by playing fraud

upon the Revenue Authorities had succeeded in having their names

mutated in the revenue records after the demise of their father Shri

Ziley Singh, for which the defendant No.12 had already filed an

appeal under Section 64(1) of the Delhi Land Revenue Act for setting

aside the order of mutation passed by the SDM/R.A., Seemapuri,

Delhi dated 02.09.2006, which is pending disposal before the Court of

the Deputy Commissioner, North East, Delhi.

8. At this juncture, it may be noted that during the pendency of the

present suit, the aforesaid appeal filed by the defendant No.12- Shri

Hulas Chand was disposed of by the Additional Collector, Office of

the Deputy Commissioner, North East by order dated 17.01.2012.

The relevant portion of the said order is reproduced hereunder:-

"It is well settled that the ownership of agricultural and (sic. land) goes by revenue record as well as possession. In the instant case, there was on record enough material to show that the ownership of Khasra No.44 min. as per revenue record was in the name of Sh. Ziley Singh during his lifetime and presently in the name of his 3 sons who had also been recorded in khatauni and girdawari in the years (1986-87), (2004-05), (2006-07). Moreover, the claim of the appellant that they had got an interest in the said land by way of the exchange deed pertaining to the year 1961 holds no ground as the same could not be verified during the course of proceedings. The appellants have failed to establish that approval of D.C. was obtained u/s 40 of DLR Act for execution deed.

Therefore, I am of the view that the appellant had no interest whatsoever in the land bearing Khasra No.44 min. of the Revenue Estate of village Saboli as the same stood,

recorded, initially, in the name of Sh. Ziley Singh, and, thereafter, in the name of his 3 sons, by way of succession. Thus, the order dated 02-09-2006 was rightly made by the revenue authorities."

9. Presumably, on the basis of the said order, the plaintiffs sought

to confine their relief in the present suit to the grant of a decree of

injunction by this Court. The defendant No.12, as noted above,

sought to urge that a suit for injunction simpliciter would not be

maintainable if the plaintiffs gave up the relief of declaration claimed

by them.

10. In the course of hearing, Mr. Vijay Kumar Garg, the learned

counsel for the plaintiffs, contended that under Section 38 of the

Specific Relief Act, 1963, the relief of injunction can be granted even

if no declaratory relief implicit in the injunction is expressly prayed

for, more so where the plaintiff is in lawful and peaceful possession of

the suit property and such possession is being interfered with or

threatened by the defendant. He further submitted that for examining

the question of maintainability of the suit, it is only the averments

made in the plaint sans the defence pleaded in the written statement

which are relevant and are to be seen, as held by this Court in the case

of Tara Chand and Anr. vs. Kumari Rajni Jain and Ors., 150 (2008)

DLT 101.

11. The learned counsel for the plaintiffs also referred to the

judgment of the Madras High Court reported in Muthayyan

Swaminatha Sastrial vs. S. Narayan Swami Sastrial, AIR 1936

Madras 936 to urge that it is trite that where the plaintiffs are in

lawful possession of the suit properties, they are perfectly entitled to

sue for a mere injunction. The following extract from the decision of

the Madras High Court in the aforesaid case is apposite:

"3. On the merits, I have no doubt that the learned Subordinate Judge was right in holding that the suit as originally framed was maintainable. It is true that in establishing their right to have an injunction against the defendants, the plaintiffs will have to prove that plaintiffs 1 to 4 and defendant 10 were properly appointed managers in respect of the properties and that the other plaintiffs are the lessees under them. But it does not follow from this that the plaintiffs are suing for a declaration of the title of plaintiffs 1 to 4 and defendant 10 as managers. Their allegation is that they are in lawful possession of the properties and that their possession is threatened to be interfered with by the defendants. On these allegations, they were perfectly entitled to sue for a mere injunction. The learned District Munsif was, therefore, wrong in ordering the amendment of the plaint."

12. The learned counsel for the defendant No.12, Mr. M.A. Khan

on the other hand, sought to rebut the contentions of the plaintiffs'

counsel by urging that the instant suit was clearly barred by Section

185 of the Delhi Land Reforms Act, 1954 and such a dispute as that

set out in the plaint could only be decided by the Revenue Court, there

being a bar against the jurisdiction of the Civil Court. He submitted

that where the title of the plaintiff is not clear and the plaintiff claims

himself to be a bhumidar and recorded owner of the suit land, and this

is disputed by the defendant in the written statement by stating that the

suit land had been sold to him and he is in possession of the same, the

suit is not maintainable in the Civil Court. Reliance was placed by

him to buttress this contention upon a recent judgment of this Court

rendered in the case of Rev Singh vs. Rishi Pal and Ors., 182 (2011)

DLT 52. He also referred to the judgment of the Supreme Court in

Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors., AIR

2008 SC 2033, and in particular upon the following dicta laid down in

the said decision:-

"11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts

title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

13. On consideration of the respective contentions of the counsel

for the parties and the precedents cited by them, the Court is of the

opinion that the suit of the plaintiffs for injunction simpliciter must be

held to be maintainable on the plaintiffs giving up their prayer for

grant of declaration of bhumidari rights in the suit land. As held by

the Supreme Court in the case of Anathula Sudhakar (supra), the

general principles as to when a mere suit for permanent injunction will

lie, and when it is necessary to file a suit for declaration with

injunction as a consequential relief are well settled. The said general

principles have been adumbrated as follows and must be read in their

entirety.

"11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not

prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.

11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.

11.3 Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."

14. A perusal of the plaint shows in the present case the plaintiffs

are in lawful and peaceful possession of the suit property and such

possession is sought to be interfered with/threatened by the

defendants. The present case, therefore, falls within the category of

cases set out in paragraph 11.1 of the Anathula Sudhakar case

(supra) and a suit for injunction simpliciter must, therefore, be held to

lie, for: "A person has a right to protect his possession against any

person who does not prove a better title by seeking a prohibitory

injunction." To be noted at this juncture that the defendant No.12 has

erroneously categorized his case under paragraph 11.3 of the judgment

in Anathula Sudhakar (supra). It is not in dispute that the

predecessor-in-interest of the plaintiffs, Shri Ziley Singh was the

recorded bhumidar of the land in question. It is also not in dispute

that the said land now stands mutated in the names of the plaintiffs. It

cannot, therefore, be said that there is any cloud on the title to the

property which is sought to be encroached upon by the defendant

No.12. Even assuming any such cloud to have existed, after the

decision of the Deputy Commissioner rendered on 17th February, 2012

rejecting the claim of the defendant No. 12- Hulas Chand with regard

to the suit property, no such cloud exists as on date.

15. It is also trite that if on a reading of the plaint in a holistic

manner, it is evident that the substance of the prayers are for

injunctory relief, then even though the suit is styled as one for the

grant of declaration, the suit would be treated as purely a suit for

injunction. A learned Single Judge of this Court (Hon'ble Mr. Justice

Vikramajit Sen, as His Lordship then was) in the case of Interads

Advertising (P) Ltd. vs. Palmex Enterprises & Ors., 106 (2003) DLT

1 in a very lucid manner elaborated upon the aforesaid proposition of

law. The relevant portion of the judgment is extracted hereinbelow:-

"The objection of Mr. Airi is that a suit for mere declaration is not maintainable. Mr. Taneja submits that I should read the plaint in a holistic manner and that if I do so it will be evident that in substance the prayers are for injunctory relief. Reliance has been placed on behalf of the Plaintiffs on the views expressed in D.P. Rai Ahuja v. Delhi Development Authority, 1974 Rajdhani Law Reports 664 where a suit styled as one for the grant of a mandatory injunction was treated to be for a perpetual injunction, thereby rendering the objection of the non-issuance of a notice as irrelevant and/or surmountable. In Memoona Bi v. Municipal Corporation of Delhi, 1974 Rajdhani Law Reports 198 this Court again preferred to look at the substance of the plaint and not confine attention merely to its form. It was found that an injunction could be granted even though a needless declaration had been prayed for. I would prefer to abjure the narrow and pedantic approach for one that advances the interest of justice; the Courts effort should be to dispense justice rather than dispense with it. The same view has been taken in Times Properties v. Delhi Development Authority, 1985 Rajdhani Law Reports 398 of which the following extracts are of relevance:

"4. In Mahant Purushottam Dass v. Narain, AIR 1978 Delhi 114 = [1978 Raj RLR 153] it has been observed that it is a matter of construction of plaint in each

case for determining if the suit was purely for permanent injunction and that a suit for injunction will be treated as a suit under Sec.7(iv)(d) of the Court Fees Act if a plaintiff can get an injunction without the necessity of praying for any other declaration. Further it has been observed that the prayer for declaration will be surplusage if the plaintiff can get the relief for injunction without praying for declaration, but declaration has to be prayed where an obstacle has to be removed before the plaintiff can claim the relief of injunction simpliciter.

5. In Harchand Singh v. Dalip Singh, AIR 1965 Punjab 468 it has been observed that the correct test is that where there is any legal necessity for the plaintiff to get a declaration of his right before he can get an injunction to protect it, the suit will fall under Section 7(iv)(d) of the Court Fees Act even though the plaintiff sought declaration by means of averments in the body of plaint and not prayed for declaration specifically at the end of the plaint and if it is not necessary to pray for declaration the suit will fall under Section 7(iv)(d) of the Court Fees Act. Similar observations were made in Sri Rajah Nayani v. Sri Rajah Tdakamalla, AIR 1941 Mad 91.

6. The ratio of these decisions is that if there is legal necessity for a declaration before grant of relief of injunction it would not be suit for injunction and if grant of declaration is not necessary the suit would be purely a suit for injunction."

It was in these circumstances that Mr. Taneja argued that the plaint should be read as one seeking a perpetual injunction simpliciter, and that the prayers pertaining to declarations be treated as surplasages and be ignored. In natural sequence, he prayed for and was allowed to amend the valuation of the suit as one for an injunction alone. The amendment was allowed. The suit was valued for the purposes of court fee and jurisdiction at ` 25,00,000/- and additional court fee of ` 23,944/- has already been paid. In these circumstances I find no merit in the objection of Mr. Airi that the suit is ridden with such oblique motives as would be an impediment to its maintainability. In these premises both the issues are decided in favour of the Plaintiff."

16. This Court in the case of Anand Prakash & Ors. vs. Ram Kala

& Anr., 2010 (115) DRJ 283 also held [relying upon the judgment

rendered in Mam Raj vs. Ram Chander etc., 1974 Rajdhani Law

Reporter 428] that where the plaintiffs are not claiming any

declaration for grant of Bhumidari rights and the plaintiffs' case

simply is that they were joint Bhumidars of the agricultural land along

with their brother and he having died without any other legal heir,

after his death, the plaintiffs must be held to have succeeded to the

Bhumidari rights of the deceased and on the basis that the plaintiffs

were in possession, the suit filed by the plaintiffs could not be held to

be barred. In the said case, the plaintiffs alleged that they were in fact

in possession whereas the defendants denied the possession of the

plaintiffs. It was held that this would be a question for trial to be

determined on the basis of evidence adduced by the parties.