Delhi High Court
Manjeet Singh vs Jeet Singh & Anr on 27 May, 2015
* HIGH COURT OF DELHI AT NEW DELHI
+ R.S.A. No.189/2014 & C.M. No.12220/2014
Decided on : 27th May, 2015
MANJEET SINGH ...... Appellant
Through: Mr. Gagan Mathur & Mr. Varun Kumar,
Advocates.
Versus
JEET SINGH & ANR ...... Respondent
Through: Mr. Anil Sharma & Mr. Amit, Advocates
for R-1.
Mr. Ruchir Mishra & Mr. Mukesh Kr.
Tiwari, Advocates for UOI.
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (ORAL)
1. This is a regular second appeal filed by the appellant against the
judgment dated 3.4.2014 in RCA No.1/2013 titled Manjeet Singh vs. Jeet
Singh & Another passed by the learned Additional District Judge by
virtue of which the judgment and the decree dated 19.11.2012 dismissing
the suit of the appellant for permanent/mandatory injunction was upheld.
2. The contention of the learned counsel for the appellant is that his
suit was only a simplicitor suit for injunction that could not have been
dismissed despite the fact the appellant had pleaded and made a statement
before the court where they are in uninterrupted possession of the suit
property for the last more than 46 years.
3. The learned counsel for the appellant in support of his contention
has relied upon the case titled Nanak Chand & Others vs. Raja Rakesh &
Others; 191 (2012) DLT 454, Anathula Sudhakar vs. P. Buchi Reddy
(Dead) by L.Rs. & Others; AIR 2008 SC 2033, Suraj Lamp & Industries
Pvt. Ltd. vs. State of Haryana & Another; 183 (2011) DLT 1 (SC) and
Prataprai N. Kothari vs. John Braganza; AIR 1999 SC 1666.
4. I have gone through all these judgments. None of these judgments
are applicable to the facts of the present case. But before commenting
upon the judgments relied upon by the learned counsel for the appellant
and their non-applicability, it may be pertinent here to mention that the
appellant had filed a suit for permanent and mandatory injunction against
the respondent claiming himself to be in possession of the portion of the
suit property for the last 46 years. The case which was setup in the plaint
was that his father, Kartar Singh, had paid a part of the amount to Parvati
Devi, who was allottee of the suit property by the Ministry of
Rehabilitation. Parvati Devi is alleged to have executed documents like
agreement to sell, general power of attorney, will, etc. in favour of Kartar
Singh, father of the appellant. It is stated that it is on the basis of these
documents, Kartar Singh, had become the owner of the portion which is
under occupation of the appellant though ownership was not claimed.
Curiously, Kartar Singh had not even filed a suit for specific performance
against Parvati Devi nor the appellant has sought specific performance or
a declaration to the effect that he is the owner of the portion which is
under their occupation. The learned trial court as well as the first
appellate court have dismissed the suit of the appellant for the reason that
the appellant claiming himself to be in occupation of the suit premises for
the last 46 years in the capacity of an owner was required to seek a
declaration from the court. This is laid down under proviso to Section 34
of the Specific Relief Act. The essence of this section is that if a plaintiff
is claiming only injunction and is entitled to some other relief also by
way of declaration, the absence of relief with regard to declaration would
make his suit for permanent injunction also unsustainable. The converse
is also true under Section 34 proviso that if a party is entitled to a
declaration as well as consequential relief, be that by
way of an injunction or by way of possession, if he does not claim that
then the suit itself is not maintainable. Moreover, both these reliefs are
discretionary in nature.
5. In the instant case, the two courts have concurrently held that the
plaintiff, namely, the appellant herein ought to have claimed a declaration
which he has failed to do and, therefore, the suit was dismissed by the
trial judge and the said decision of the trial judge was upheld by the first
appellant judge. This concurrent finding returned by the two courts
below against the appellant does not, in my view, raise any substantial
question of law and hence deserves to be dismissed.
6. The learned counsel for the appellant has relied upon the four
judgments. I have gone through these judgments but none of them is
helpful to the appellant in any manner whatsoever. Suraj Lamp's case
(supra) clearly lays down that ownership of immoveable property cannot
be claimed on the basis of documents like agreement to sell, power of
attorney, will, etc. Such a person can only seek specific performance of
these agreements. So far as Section 53A of the Transfer of Property Act
is concerned, it has been observed that possession can be used as a shield
and not as a sword, that principle has been accepted. Except this
proposition, no other proposition has been laid down and I find it curious
as to who this judgment is helpful to the appellant as it has neither sought
any specific performance nor any declaration with regard to the
ownership of the suit property.
7. Nanak Chand's case (supra) is a case where originally the suit was
filed for declaration and injunction. The declaration was sought with
regard to bhoomidari rights but that relief was given up by the plaintiff in
the said case on account of the fact that a declaration with regard to
bhoomidari rights can be given only by a revenue court and the
jurisdiction of the civil court was barred under Section 185 of the Land
Reforms Act. The plaintiff in the said case was able to show that he was
in possession and therefore, injunction was granted. The facts of that
case are totally different than the present case.
8. The learned counsel for the appellant has not been able to
formulate that any substantial question of law is involved in the matter.
In the light of the concurrent finding returned by the two courts below,
the present regular second appeal is dismissed.
V.K. SHALI, J.
MAY 27, 2015
'AA'
