Delhi High Court
Kartar Singh vs Suresh Chhikara on 28 March, 2022
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 28th March 2022
+ FAO 78/2021
KARTAR SINGH ..... Appellant
versus
SURESH CHHIKARA .....Respondent
Advocates who appeared in this case:
For the Appellant: P.K. Rawal and Mr. Tarun Agarwal, Advocate.
For the Respondents: Mr. Deepak Tyagi, Advocate.
CORAM:-
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
JUDGMENT
SANJEEV SACHDEVA, J.
1. Appellant impugns order dated 10.11.2020, whereby the
application of the Appellant under Order 39 rule 1 and 2 read with
section 94E and 151 CPC has been dismissed holding that the
Appellant has failed to show a prima facie case.
2. Appellant, a senior citizen, has filed the subject Suit for
possession against the Respondent his son contending that he is the
owner of the suit property bearing no. 365, Street no. 1, Part of Khasra
no.551/431 and 164, Pradhan Marg, Nirankari Colony, Delhi -
110009.
3. It is alleged that the property was purchased by his father Late
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Shri Inder Singh vide registered sale deed dated 06.05.1966. Shri
Inder Singh expired on 04.03.1985 leaving behind the Appellant and
his sister who became the co-owners of the said property.
4. As per the Appellant, he renovated the ground floor and
reconstructed the property in May 1996 and since then has been
residing in the suit property. His sister namely Shanti Devi executed a
registered relinquishment deed vide Regn. No.5324 dated 01.07.1996
in his name and thereafter, he became sole and absolute owner of the
suit property.
5. It is contended that the Respondent is his elder son and as he
was working with the Indian Air Force, he was posted from time to
time at different stations where he resided with his family and even at
the time of his posting in Delhi, he resided in his official residence.
6. It is alleged that the Respondent retired from the service in the
year 2002 and requested the Appellant to reside in a portion of the
ground floor. Appellant allowed the Respondent and his family to
reside for some time in the front side portion of the ground floor of the
suit property. It is contended that as Appellant was not having any
permanent source of income, other parts of the property used to be let
out to the students of Delhi University.
7. It is contended that the Appellant through his advocate served a
legal notice dated 04.04.2011 upon the Respondent requiring him to
vacate the suit property. It is contended that in reply dated 25.04.2011,
Respondent admitted that he had no right, title or interest in the suit
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property and that he was under an obligation to vacate the suit
property, however he kept on occupying the suit property in illegal
manner.
8. It is contended that after the termination of the license,
Respondent filed a false and frivolous suit for partition and permanent
injunction seeking a restraint on the Appellant from dispossessing him
from the suit property.
9. It is contended that the Trial Court in that Suit was pleased to
pass an order restraining the Appellant from dispossessing the
Respondent from the suit property. Appellant filed an appeal but the
Appellate Court dismissed the said appeal. It is contended that in the
meantime, Respondent taking the benefit of the old age of the
Appellant put his locks on the other portions of the suit property
thereby denying the access to the other portion of the suit property.
10. It is contended by learned counsel for the Appellant that even at
an ad-interim stage the Trial Court could have passed an order
directing the Respondent to hand over the possession of rear portion of
the ground floor and upper floors. Reliance is placed on the judgment
of the coordinate bench of this court in Sukerma Rani Kapoor versus
Om Prakash Kapoor 2002(2) AD (Delhi) 860 wherein this court had
granted a mandatory injunction at an interlocutory stage and directed
the son to restore the possession of the property to his mother.
11. Per Contra, the case of the Respondent is that admittedly,
Respondent was in possession of the entire suit property even before
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the filing of the Suit and as such, the Appellant was seeking a
mandatory possessory injunction, which could not be granted by way
of an ad-interim arrangement.
12. The Trial Court, while prima facie holding that though the claim
of the defendant to the suit property is questionable and it is not
disputed by the Respondent that the suit property was owned by the
grandfather Shri Inder Singh, who expired leaving behind the
Appellant and his sister as the only surviving legal heirs. However, he
claimed title to the suit property by virtue of an alleged oral family
agreement dated 15.05.1985 which also appeared to be of dubious
nature as the admitted fact was that the second heir of Shri Inder Singh
i.e. Smt. Shanti Devi relinquished her share in favor of the Appellant
by virtue of relinquishment deed dated 01.07.1996 around ten years
after the alleged family arrangement.
13. However, the Trial Court has held that by the subject
application, Appellant was seeking review of the findings given by the
Trial Court and the first Appellate Court in the suit for injunction filed
by the Respondent where it had already been decided that the
possession of the suit property was with the Respondent.
14. Even though the Trial Court has prima facie held that the claim
of the Respondent of his title and oral family arrangement is dubious,
however what is relevant to be considered at this stage is the interim
application filed by the Appellant whereby Appellant sought an ad-
interim relief that the Respondent be directed to allow the entry of the
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Appellant in his own property i.e. back portion of the ground floor and
upper floors and for removal of the locks, if any of the Respondent
and not to create any hinderance in the peaceful use and enjoyment of
the said portion and the free ingress and egress from the said portion.
15. Though in the plaint, Appellant contends that the Appellant is in
possession of part of the property, however by the relief sought in the
application, there is an indirect admission that the Appellant is not in
possession of any portion of the property.
16. The question as to whether Appellant has been ousted just
before the filing of the suit or the Respondent has been in settled
possession is a question that cannot be decided in a prima facie
fashion without any material being brought on record.
17. Appellant has not placed any material on record to show that
Appellant was dispossessed just before the filing of the Suit. There is
also no material placed on record to show as to when the Appellant
was dispossessed or since when he is being prevented from entering
the Suit Property.
18. It may also be noticed that alongwith the Suit Appellant had
originally filed an application under Order 39 Rules 1 & 2 CPC
seeking a restraint on the Respondent from creating third party interest
or parting with the possession of the subject property. Said application
is still pending. Trial court has observed that Appellant has not
pursued that application and the application was still pending.
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19. Further, at this juncture it would be expedient to refer to the
interim order passed by the Trial Court and the first Appellate Court in
the Suit for Permanent Injunction filled by the Respondent.
20. In the application filed by the Respondent, seeking ad-interim
injunction against the Appellant, the Trial Court in its order dated
01.11.2017 has recorded that "During course of the arguments, it is
admitted on behalf of the defendant no. l and 2 (Appellant) that
possession of the suit property is with the plaintiff (Respondent)". In
view of the admission, Trial Court restrained the Appellant from
interfering with the peaceful possession/enjoyment in the suit property
and restrained the Appellant from dispossessing the Respondent
without due process of law.
21. In the appeal filed by the Appellant, the Appellate Court in its
order dated 05.11.2018 held as under:
"During the arguments on the appeal also, Ld. Counsel
for Appellants has admitted that R1 has put his lock on
the remaining portion of the suit property. Meaning
thereby that the possession of suit property is with R1.
The said possession has been rightly protected vide order
dated 01.11.2017. Ld. Counsel for Appellants have
failed to show any infirmity in the order dated
01.11.2017. The order dated 01.11.2017 is accordingly
upheld. The appeal being devoid of any merits is
dismissed."
22. Appellate Court has also recorded the admission of the
Appellant that Respondent was in possession of the Suit Property. No
further appeal was filed by the Appellant against the orders passed on
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the application seeking ad-interim protection in the Suit filed by the
Respondent.
23. Subject Suit has been filed on 19.12.2017 when admittedly
Respondent was already in possession. Appellant is seeking a
possessory relief by way of an interim application, which is not
permissible when one of the questions to be determined is as to when
the Respondent came into possession of the entire property.
24. Further, the Trial Court has also noticed that the entire
application is completely silent with regard to the date of the alleged
forcible act of locking by the Respondent.
25. The judgment in the case of Sukerma Rani Kapoor (supra) is
not applicable to the facts of the present case. In Sukerma Rani
Kapoor (supra) it was an admitted position that the son was not in
settled possession of the property and had entered into the possession
without the consent of the mother on the vacation of the premises by
the tenant. In the present case, the son was admittedly put into
possession of a part of the property. As to when the son came into
possession of the remaining portion is not clear from the case of the
Appellant. Appellant had even conceded that the Respondent is in
possession of the entire property and that he would not evict the
Respondent without following due process of law. There is also no
further challenge to the order of the Trial Court and the Appellate
Court in the Suit filed by the Respondent.
26. Consequently, there is no infirmity in the finding of the Trial
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Court that from the available documents on record, the possession of
the entire property remains with the Respondent only and the
Appellant appears to be seeking relief of possession by bypassing the
said judicial findings against him as well as without claiming any
substantial relief in the suit.
27. In view of the above, the impugned order does not suffer from
any infirmity and consequently does not warrant any interference. The
appeal being devoid of any merit is accordingly dismissed.
28. However, keeping in view the facts and circumstances of the
case, Trial Court is directed to expedite the trial and endeavour to
conclude the proceedings and decide the Suit expeditiously, preferably
within a period of six months from the next date fixed before the Trial
Court.
29. It is clarified that the observations contained herein are prima
facie and shall not have any bearing on the merits of the claims of
either party.
SANJEEV SACHDEVA, J.
MARCH 28, 2022
HJ
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