Smt. Asha Devi vs Sh. Satpal Saini & Anr
2017 Latest Caselaw 6822 Del

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI
                             DECIDED ON : NOVEMBER 29, 2017

+             CS(OS) 390/2017 & IA No.9575/2017 (u/S 151 CPC)

       SMT. ASHA DEVI                                       ..... Plaintiff

                     Through :       Mr.Sandeep Sharma, Advocate.

                            versus

       SH. SATPAL SAINI & ANR                         ..... Defendants

                     Through :       Mr.Sumit Rana, Advocate, for D-2.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG


S.P GARG, J. (ORAL)

IA No.9574/2017 (u/O 39 R-1&2 CPC)

1. In the suit filed for Declaration, Permanent and Mandatory injunction and Possession with respect to property No.50, Gautam Nagar, New Delhi (hereinafter referred to as the suit property), the plaintiff seeks ad-interim injunction to direct the defendants to maintain status quo and not to reconstruct the property in question. It is contested by the defendants.

2. I have heard the learned counsels for the parties and have examined the file. In the plaint, the plaintiff claimed herself to be the owner of the suit property on the basis of Will executed by her father on

24.07.1971 registered with Sub Registrar-III. Plaintiff's father expired on 29.08.1995. It is further averred that defendant No.1 lived in the suit property on the basis of a temporary licence given by her father. When she asked the defendant no.1 to vacate the suit property, he avoided it on one pretext or the other. Subsequently, he claimed that a sale deed dated 12.04.1990 was executed in his favour by the defendant No.2 as attorney of her father. The said sale deed is forged and fabricated document and no power of attorney was executed by her father in favour of defendant No.2. FIR 162/2017 dated 25.05.2017 under Sections 420/467/468/471/120B IPC has been lodged at Police Station Hauz Khaz.

3. In the written statement the defendant No.1 controverted the plaintiff's assertions and claimed that the property in question was sold to him for consideration by a registered sale deed by defendant No.2, being attorney of plaintiff's father on 12th April, 1990. The sale was never challenged by the plaintiff or her father during his lifetime. The property in question has been mutated in his name. The construction is being raised as per the sanction of the concerned authorities.

4. The Will executed by the plaintiff's father is dated 24.07.1971 and he expired on 29.08.1995. No document has been placed on record by the plaintiff to show if she ever remained in physical or constructive possession of the suit property prior to the filing of the present suit. No proceedings, whatsoever, were initiated by the plaintiff against the defendants for seeking possession on the basis of the 'Will'. The defendant no.1 has relied upon sale deed dated 12.04.1990 executed by the defendant No.2 on the basis of power of attorney in his favour by

the plaintiff's father. It is informed that during his lifetime, plaintiff's father never objected to the sale deed by defendant No.2 in favour of defendant no.1. Subsequent to that, the property in question has been mutated in the name of defendant No.2. It was further informed that legal notice dated 25.06.1990 was jointly served by the plaintiff and her father on the defendant No.1 wherein it was categorically admitted that he (defendant No.1) had purchased the suit property from defendant no.2.

5. It has come on record that prior to filing of the present suit, the plaintiff had filed a CS (Vac.) No.2/16 (New CS No.119/16) titled Asha Devi @ Asha Magoo Versus Satender for permanent injunction regarding the suit property. When defendant No.1 filed an application under Order I Rule 10 CPC to be impleaded as a party in the said proceedings, the plaintiff opted to withdraw the said suit without seeking any permission or liberty. In the said proceedings, the plaintiff claimed Satender to be a tenant in the suit property which was incorrect. This fact was not disclosed by the plaintiff in the present proceedings and was conveniently concealed. It was further informed that thereafter the defendant No.1 filed a suit for permanent injunction against the present plaintiff and others being CS(OS) 122/2016 (original Vac No.29/2016) in which the parties have been directed to maintain status quo vide order dated 29.06.2016.

6. No document emerged on the record to infer if the defendant No.1 was permitted to stay as caretaker in the suit property by the plaintiff's father, as urged. The defendant No.2 in the written statement has supported the defendant No.1 and categorically submitted that

power of attorney was executed in his favour by the plaintiff's father and on that basis, he had effected the sale in favour of defendant No.1 by a registered sale deed.

7. The controversy as to validity of the Will, validity of the power of attorney executed by the plaintiff's father in favaour of the defendant No.2 and about ownership / possession of the suit property is to be adjudicated during trial. It is, however, not the case of grant of ad- interim injunction as defendant No.1 is in possession of the property in dispute, since long without any demur. Moreover, the suit property has been mutated in his favour. The construction in the suit land is being raised or carried out as per sanction granted by the competent authorities.

8. Considering the above facts and circumstances, I find no merit in the application; it is dismissed.

9. Observation in the order shall have no impact on the merits of the case.

CS(OS) 390/2017 & IA No.9575/2017 List before the Roster Bench on 15th December, 2017 for further directions.

S.P.GARG (JUDGE) NOVEMBER 29, 2017/sa