Delhi High Court
Kuljeet Singh & Ors. vs Jhonson Benchamin & Ors. on 16 March, 2022
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Pronounced on: 16th March, 2022
+ CS(OS) 578/2021
KULJEET SINGH & ORS ...... Plaintiffs
Through: Mr. Yashpal Singh, Mr. Saurabh
Kansal and Mr. Kuber Giri, Advs.
Versus
JHONSON BENCHAMIN & ORS. ..... Defendants
Through: Mr. J.P. Sengh, Sr. Adv. with Mr.
Vivek Kumar Tandon, Mr. Vikas
Chadha, Advs. for D-1 to 4.
Mr. Sunil Fernandes and Mr.
Shubham Sharma, Advs. for D-
5/BSES Resolution Plan.
Ms. Sakshi Shairwal, Adv. for D-
6/SDMC.
CORAM:
HON'BLE MS. JUSTICE ASHA MENON
ORDER
I.A. 14364/2021 (of plaintiffs u/O XXXIX R-1&2 CPC for ex-parte ad-
interim injunction)
1. This order will dispose of the application filed by the plaintiffs
alongwith this suit for possession, permanent injunction and declaratory
reliefs with respect to property measuring 1000 sq. yards out of Khasra
No.25, Khatha No.18, situated in the Aabadi of Village Pochanpur,
Extended Lal Dora, New Delhi-110075 (hereinafter referred to as the „suit
property‟).
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:16.03.2022
16:49:07
2. The suit has been filed by the plaintiffs namely Mr. Kuljeet Singh,
his mother Ms. Paramjeet Kaur and his brother Mr. Japjeet Singh against
four private defendants, defendant No.5 BSES Rajdhani Power Limited,
defendant No.6 South Delhi Municipal Corporation, Najafgarh Zone and
the defendant No.7 Station House Officer, Police Station-Sector-23,
Dwarka, New Delhi. It may be noted that vide order dated 7 th December,
2021, on the statement of Mr. Vinay Sharma, learned counsel for the
plaintiffs, the defendant No.7 Station House Officer, Police Station-Sector-
23, Dwarka, New Delhi has been deleted from the array of the parties.
3. The case as set out by the plaintiffs is that the suit property had
originally belonged to Smt. Champa Bhasin when she had purchased the
same on 9th December, 1986 from the original Zamindars. It is claimed
that the father of the plaintiffs No.1 & 3 and the husband of the plaintiff
No.2, S. Gurnaam Singh, had purchased the suit property from Smt.
Champa Bhasin on 8th September, 1998. It is claimed that since then he
was enjoying the peaceful possession of the suit property. After S.
Gurnaam Singh expired on 31st March, 2021 and after the ensuing
lockdown on account of the pandemic, which was lifted in August, 2021,
the plaintiff No.1 visited the suit property and came to know that the
defendants No.1 to 4 were in possession of the suit property which
according to him was completely illegal.
4. It was in these circumstances that notices were issued to the persons
found in occupation but since they did not choose to vacate the suit
property, the suit has been filed. By way of the instant application, the
following prayers have been sought:
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By:MANJEET KAUR
Signing Date:16.03.2022
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"a. To pass an ex-parte ad-interim injunction in favor of the
plaintiffs and against the defendants, their agents, servants,
employees, assignees, representatives etc. refraining them from
raising illegal construction, selling, renting, transferring,
alienating, changing the structure or creating any third-party
interest in any manner whatsoever in respect of the suit
property measuring 1000 Sq. yards out of Khasra bearing
No.25, Khatha No.18, situated in aabaadi of village Pochanpur,
in extended laal dora, Dwarka, New Delhi-110075, till the final
disposal of the accompanying suit in interest of justice.
b. To pass any or such other order(s) in favor of the
plaintiff and against the defendants, which this Hon'ble Court
deems fit and proper in the facts and circumstances of the case
and in interest of justice."
5. Mr. Yashpal Singh, the learned counsel for the plaintiffs has
submitted that the plaintiffs were the rightful owners of 1000 Sq. yards in
Khasra No.25, Khatha No.18, situated in aabadi of Village Pochanpur, in
Extended Lal Dora, Dwarka, New Delhi vide the registered General Power
of Attorney/Agreement to Sell dated 8th September, 1998 bearing
Registration No.53289 which was executed by Smt. Champa Bhasin in
favour of late S. Gurnaam Singh for a total consideration of Rs.75,000/-. It
was submitted that if the rights of the plaintiffs were not protected during
the pendency of the suit, the defendants no.1 to 4 would create further third
party interests in the suit property which would ultimately lead to great
prejudice to the plaintiffs and prolonged litigation. It was submitted that
the Municipal Corporation of Delhi took no action when the plaintiff No.1
had reported unauthorized construction going on in the suit land. As a
result of such inaction, the construction was completed. The learned
counsel submitted that further construction be prevented by issuing interim
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By:MANJEET KAUR
Signing Date:16.03.2022
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directions. It was also argued that the documents of the defendants were
all questionable as they related to only 225 sq. yards and were executed in
2005 whereas the documents in favour of the late father of the plaintiff
No.1 was duly registered in 1998 in respect of 1000 sq. yards. Thus, he
submitted that their rights be protected.
6. Mr. J.P. Sengh, learned senior counsel appearing on behalf of the
defendants No.1 to 4, has submitted that the entire case set up by the
plaintiffs were based on untenable claims. The first question raised by the
learned senior counsel was, if the entire property of Smt. Champa Bhasin
had been transferred to the late father of the plaintiff No.1, why was it that
none of the original documents had been handed over to him. On the other
hand, the original Sale Deed in favour of Smt. Champa Bhasin was
actually in possession of the defendants No.1&3 and they have also placed
it on record and the photocopy of the Sale Deed of Smt. Champa Bhasin
that was filed by the plaintiffs appeared to have been a fabricated
document.
7. Further, the plaintiffs had not been able to produce any registered
document to establish that the late father of the plaintiff No.1, S. Gurnaam
Singh, had ever been in possession of the suit property since 1998, whereas
several documents had been placed on record by the defendants including
the chain of documents to show that before and after 1998, separate parcels
of land had been sold by Smt. Champa Bhasin, clearly establishing that no
transfer to the father of the plaintiff No.1 was recognized by her and nor
was the late father of the plaintiff No.1 ever in possession of any part of
the suit property. No details of when the consideration of Rs.75,000/- was
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By:MANJEET KAUR
Signing Date:16.03.2022
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paid have been mentioned whereas the defendants have filed documents
acknowledging sums of even Rs.28 lacs, paid through cheques, towards
consideration.
8. The learned senior counsel further submitted that Smt. Champa
Bhasin had herself given her own land for the construction of a road for the
benefit of the residents. The land constituted an unauthorized colony which
was recommended for regularization. A list of residents was sent to the
Government in 2007 alongwith an application for regularization, wherein
the names of defendants No.1 to 4 have been mentioned but neither the
name of any of the plaintiffs nor that of their father find mention.
9. It was also submitted that the entire Khasra No.25, Khatha No.18,
situated in aabadi of Village Pochanpur measures 3000 sq. yards but the
document of the plaintiffs, whereby they claimed that 1000 sq. yards was
purchased from Smt. Champa Bhasin by the father of the plaintiff No.1,
does not identify the said portion of 1000 sq. yards and therefore the
subsequent site plan filed by the plaintiffs, after a query raised in the court
by the defendants, was only a fanciful one.
10. The learned senior counsel further submitted on the basis of the
documents placed on record that when the land was surrendered for the
road, Smt. Champa Bhasin made the sale of 225 sq. yards to Mr. Manohar
Lal Kapoor, who sold the same to Smt. Krishna Nehra but there was no
whisper about the plaintiffs‟ father. After 225 sq. yards was sold to Mr.
Manohar Lal Kapoor and another 275 sq. yards given for construction of
the road, the remaining 500 sq. yards out of the original 1000 sq. yards
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By:MANJEET KAUR
Signing Date:16.03.2022
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were transferred to Mr. Anuj Solanki in 2007. These documents
demarcated the lands sold.
11. Subsequently, Mr. Anuj Solanki sold 50% of his share to his mother
Smt. Santosh Solanki and the remaining to the defendants No.1&2 Mr.
Johnson Benchamin and Ms. Molly Johnson on 10th April, 2013 for Rs.28
lacs paid by cheque. His mother sold her share in 2013 to defendant No.3
Smt. Priya Madhu and the defendant No.1 again for Rs.28 lacs through
cheque payments. The defendant No.1 to 3 out of their shares, sold 407 sq.
yards of land in favour of the defendant No.4 Virender Nehra for
Rs.48,84,000/- again paid through cheques. The exact site plans have been
placed on record by the defendants.
12. The said site plan when contrasted with the plaintiffs‟ site plans
would show that it relates to some other property. The constructions are
old and there are shops in the property in question, as pleaded in the
written statement. Thus, the plaintiffs had no right in the property in
question and were not entitled to seek to perfect their right and title on the
basis of flimsy documents relating to 1998. Reliance was placed on the
judgment of the Supreme Court in Suraj Lamp & Industries (P) Ltd.(2)
Vs. State of Haryana (2012) 1 SCC 656. Thus, it was prayed that the
application be dismissed.
13. In rejoinder, the learned counsel for the plaintiffs submitted that
since the defendants also claimed transfer through General Power of
Attorney, the law laid down in Suraj Lamp (supra) would be equally
applicable to them, particularly in respect of defendant No.5. Further, it
was submitted that since the land was agricultural land, the father of the
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By:MANJEET KAUR
Signing Date:16.03.2022
16:49:07
plaintiff No.1 did not carry out any construction. The plaintiff No.1 was a
child at that time, now being 26 years old and therefore had not been aware
of the property till after the demise of his father. Moreover, the documents
of the defendants were only notarized and the subsequent documents
flowing out of those documents, including the Sale Deed, could not vest
any rights in the defendants. It was also pointed out that the Sale Deed of
Smt. Champa Bhasin did not give the boundaries and therefore none were
recorded in the documents relied upon by the plaintiffs, the land being
conveyed in the same manner. The plaintiffs had filed the Jamabandi of
the year 1992, recording the ownership of Smt. Champa Bhasin and the
land being agricultural.
14. It was only after the plaintiff No.1 came to visit the site, it was
realized that there was construction existing on the said land. It was a
matter of trial to determine, whether this construction was on the land
belonging to the plaintiffs or on some other land but since the defendants
claimed their title through Smt. Champa Bhasin, it appears prima facie to
be on the 1000 sq. yards belonging to the plaintiffs which had been
transferred by her to the father of the plaintiff No.1. In the light of all
these facts, the interests of the plaintiffs were required to be protected and
status-quo in respect of the construction and title should be maintained till
the disposal of the suit.
DISCUSSION
15. The cardinal principles governing the grant of interim injunction
have been laid down in Wander Ltd. Vs. Antox India (P) Ltd. 1990 Supp.
SCC 727. This was also relied on in the case of Seema Arshad Zaheer Vs.
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By:MANJEET KAUR
Signing Date:16.03.2022
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Municipal Corpn. of Greater Mumbai (2006) 5 SCC 282, in the following
words:
"30. The discretion of the court is exercised to grant a
temporary injunction only when the following requirements are
made out by the plaintiff: (i) existence of a prima facie case as
pleaded, necessitating protection of the plaintiff's rights by
issue of a temporary injunction; (ii) when the need for
protection of the plaintiff's rights is compared with or weighed
against the need for protection of the defendant's rights or
likely infringement of the defendant's rights, the balance of
convenience tilting in favour of the plaintiff; and (iii) clear
possibility of irreparable injury being caused to the plaintiff if
the temporary injunction is not granted. In addition, temporary
injunction being an equitable relief, the discretion to grant such
relief will be exercised only when the plaintiff's conduct is free
from blame and he approaches the court with clean hands."
16. The plaintiffs are therefore required to establish that the plaintiffs
have some right or title to the suit property and how the absence of the
interim injunction would cause them irreparable harm. It is to be noted
that while the suit has been titled as one "for possession, permanent
injunction and declaratory relief", the actual prayers are as follows:
"A. To pass a Decree of declaration in favour plaintiffs for
their respective shares. For the suit property situated in
village Pochanpur, Dwarka, New Delhi -110075.
B. To pass a Decree of Permanent Injunction in favour of
plaintiff and against the defendants thereby· restraining
the defendants, their agents, servants, employees,
assignees, representatives etc. from selling, transferring,
alienating, changing the structure through illegal
construction, or creating any third-party interest in any
manner whatsoever in respect of the suit property.
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By:MANJEET KAUR
Signing Date:16.03.2022
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C. To give possession to plaintiff no. 1 who is entitled to
1/3rd share in the suit property and pass direction to the
defendants to handover the possession of his share in the
suit property.
D. To pass any such other order(s) in favour of the plaintiff
and against the defendants, which this Hon'ble Court
deems fit and proper in the facts and circumstances of
the case and in interest of justice.
E. The cost of the suit may also be kindly awarded in favour
of the plaintiff and against the defendants."
17. As rightly pointed out by the learned senior counsel for the
defendants No.1 to 4, the first prayer is for a declaration and partition of
the share amongst the three plaintiffs. Such a relief for partition of shares,
of course, can not to be claimed against the defendants. As regards the
prayer No.(C), the possession has been sought by the plaintiff No.1
claiming an entitlement to only 1/3rd share in the suit property and seeking
directions to the defendants to hand over that 1/3 rd share to the plaintiff
No.1. Thus, the frame of the suit itself appears to be indeterminate,
particularly when viewed in the context of the fact that the suit property
described as 1000 sq. yards in Khasra No.25, Khatha No.18, situated in the
Aabadi of Village Pochanpur Extended Lal Dora, New Delhi is not
described with its boundaries, nor does the plaintiff No.1 set out in a site
plan the location and the boundaries of the suit property, leave alone a 1/3rd
share in the suit property and in whose possession that 1/3 rd share would
presently be.
18. Be that as it may, the submissions are considered on merits as well.
The plaintiffs have placed on record a photocopy of the Sale Deed stated to
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By:MANJEET KAUR
Signing Date:16.03.2022
16:49:07
have been executed in favour of Smt. Champa Bhasin on 9th December,
1986. The defendants No.1 to 4 have filed the original of the said Sale
Deed. In other words, the original Sale Deed had not been handed over to
the late father of the plaintiff No.1. The Sale Deed is in respect of land
measuring 1000 sq. yards out of Khasra No.25, Khatha No.18, situated in
the Abadi of Village Pochanpur Extended Lal Dora, New Delhi. It records
that the entire sale consideration of Rs.15,000/- had been received by the
vendors. Of course, there is no schedule to this Sale Deed that has been
filed by either party.
19. According to the plaintiffs, the said Smt. Champa Bhasin had
executed a Sale Deed in favour of the father of the plaintiff No.1 S.
Gurnaam Singh. The defendants have also placed on record an Agreement
between Smt. Champa Bhasin and Mr. Manohar Lal Kapoor dated 22nd
July, 1987 transferring to him 225 sq. yards (33.3 X 69 ft.) out of Khasra
No.25, Khatha No.18, situated in the Aabadi of Village Pochanpur
Extended Lal Dora in respect of which boundaries have been mentioned.
Reference has also been made in this Agreement to the Sale Deed
registered as No.289, in Additional Book No.1, Volume 5056, pages 143
to 145 dated 9th January, 1987 registered with the Sub-Registrar, Delhi.
The consideration of Rs.10,000/- is also recorded to have been received by
Smt. Champa Bhasin. A General Power of Attorney was also executed on
the same day in favour of Mr. Manohar Lal Kapoor which authorized the
said Mr. Manohar Lal Kapoor to execute the Sale Deed. An Affidavit has
also been placed on record.
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:16.03.2022
16:49:07
20. It is interesting to note that in the document of the plaintiffs, which
is of a subsequent date of 1998, there is no reference to the sale or transfer
of 225 sq. yards out of the same 1000 sq. yards of Khasra No.25, Khatha
No.18, situated in the Aabadi of Village Pochanpur Extended Lal Dora to
Mr. Manohar Lal Kapoor. Subsequently, Mr. Manohar Lal Kapoor entered
into an Agreement to Sell with Smt. Krishna Nehra, where again the
boundaries are mentioned and the sale consideration paid on 1st February,
2005 was Rs.50,000/-. A receipt was also duly executed alongwith an
affidavit. Mr. Manohar Lal Kapoor also executed on the same day, a
General Power of Attorney and a Will in favour of Smt. Krishna Nehra.
Additionally, a Possession Letter was also executed and possession of the
demarcated land was handed over to Smt. Krishna Nehra. The electricity
bills in her favour have also been placed on record.
21. In contrast, there is nothing produced by the plaintiffs to show that
the father of the plaintiff No.1 took any steps to protest the interference in
the 1000 sq. yards allegedly transferred to him when Mr. Manohar Lal
Kapoor transferred 225 sq. yards out of that land to Smt. Krishna Nehra in
2005. No action seems to have been taken by the late father of the plaintiff
No.1 right upto his death in 2021. This inaction is to be treated as
significant, as no rational person would have ignored property that
belonged to him except for some unavoidable reason. It cannot be
overlooked that the plaintiffs and so the father of the plaintiff No.1, were
residing not very far from the property in question.
22. Furthermore, Smt. Champa Bhasin appears to have executed an
affidavit on 13th March, 2000 where she has referred to the sale of 225 sq.
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By:MANJEET KAUR
Signing Date:16.03.2022
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yards by means of a General Power of Attorney and Sale Deed dated 22nd
July, 1987 to Mr. Manohar Lal Kapoor. This would counter the stand
taken by the plaintiffs that there was no registered document in favour of
Mr. Manohar Lal Kapoor and therefore all other documents were without
any transfer of rights. Moreover, in this affidavit executed way back in
2000 i.e., two years after the supposed transfer in favour of the father of
the plaintiff No.1, she seems to have forgotten about that so called transfer
and has asserted ownership in respect of 500 sq. yards out of the original
1000 sq. yards noting that she had given 275 sq. yards for two sides road
and gali to the society that is, Pochanpur Defence Officer Residents
Society of which she was a member and had sold 225 sq. yards to Mr.
Manohar Lal Kapoor. She seems to have expressed a willingness to
surrender 20% of her share of 500 sq. yards for further restructuring of the
layout plan of the society, subject to redevelopment being undertaken by
the society. Again, the father of the plaintiff No.1 seems to have been
unperturbed with these declarations.
23. It would also be strange that he was not aware of the constitution of
a society in the area by the name of Pochanpur Defence Officer Residents
Society that was registered. Further sales took place between Smt.
Champa Bhasin and Mr. Anuj Solanki on 17th February, 2007 referring
again to 500 sq. yards out of the total area of 1000 sq. yards which as
noticed above seemed to be a part of the 1000 sq. yards that remained with
her after her surrender of 275 sq. yards for road and service land and 225
sq. yards transferred to Mr. Manohar Lal Kapoor. There is no mention
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By:MANJEET KAUR
Signing Date:16.03.2022
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whatsoever of any transfer in favour of the father of the plaintiff No.1.
This document being the Agreement to Sell dated 17th February, 2007
again sets out the boundaries of the plot i.e., 500 sq. yards that stood
transferred to Mr. Anuj Solanki, after a sum of Rs.5 lacs was paid by
cheque on 17th February, 2007. With this transfer, no other portion seems
to have remained with Smt. Champa Bhasin. Subsequently, this land was
transferred to the defendants No.1 to 3 on 10th April, 2013.
24. An important fact that has to be noted is that Smt. Champa Bhasin is
still alive and all throughout the transactions that have taken place in
favour of the defendants No.1 to 4 till 2020, the father of the plaintiff No.1
seems to have neither kept an eye on what was happening on the land that
he had purportedly purchased for Rs.75,000/- nor protected his interests by
taking action whenever such transfers took place or land was surrendered
for development of roads by Smt. Champa Bhasin. Thus, despite the so
called document executed in favour of the father of the plaintiff No.1, Smt.
Champa Bhasin asserted her rights as the owner of 1000 sq. yards not only
after the alleged execution of the documents in favour of the father of the
plaintiff No.1 but even prior thereto by means of a registered Sale Deed.
She has been consistently making reference to the transfer to Mr. Manohar
Lal Kapoor in subsequent documents, also clearly spelling out that what
remained with her, after surrender for 275 sq. yards for roads and transfer
of 225 sq. yards to Mr. Manohar Lal Kapoor, was 500 sq. yards out of the
original 1000 sq. yards that has been transferred by her. But nowhere she
has referred to S. Gurnaam Singh. This would clearly indicate that Smt.
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By:MANJEET KAUR
Signing Date:16.03.2022
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Champa Bhasin had in fact not transferred 1000 sq. yards to the said S.
Gurnaam Singh.
25. The only inference that can be drawn from the complete inaction on
the part of the father of the plaintiff No.1 is that he in fact had no rights
that he could have exercised in respect of the said land against Smt.
Champa Bhasin and therefore made no effort in this regard by issuing any
notice or taking any other legal remedies against her. No right can
therefore be presumed in favour of the plaintiffs. No prima facie case has
therefore been disclosed by the plaintiffs to seek any kind of protection in
this case. When no rights have been disclosed, there is no question of any
irreparable loss or injury being a consequence of a refusal of the interim
injunction. The defendants No.1 to 4 have been in possession of their
properties which have been constructed fairly long ago and since 2007 at
least and therefore, the balance of convenience lies in their favour and their
rights cannot be disturbed on a mere say so by the plaintiffs.
26. Thus, the application being I.A. No.14364/2021 for interim relief is
dismissed. Nothing in this order will be deemed to be an opinion on the
merits of the case to be determined after trial.
CS(OS) 578/2021
27. List before the Roster Bench for framing of issues on 9th May, 2022.
28. The order be uploaded on the website forthwith.
(ASHA MENON)
JUDGE
MARCH 16, 2022
„bs‟
Signature Not Verified
Digitally Signed
By:MANJEET KAUR
Signing Date:16.03.2022
16:49:07
