JUDGMENT
Mukundakam Sharma, J.
1. The present suit is filed by the plaintiffs in respect of a plot of land bearing No. 66, situated at D.P.D.P. Colony, near Kalkaji, New Delhi. The plaintiffs have sought for a decree of permanent injunction in their favor and against the defendants No.1 and 2 from selling and/or alienating/conveying and/or disposing of the suit property to the defendant No.3 or any other person with a further relief that the defendants be restrained from interfering with the peaceful possession of the suit property by the plaintiff and also from dispossessing plaintiffs by any means whatsoever.
2. It is stated that the plaintiff are the owners of the suit property. They also claim to be in possession of the suit property. It is stated that the ancestors of the plaintiffs acquired the suit property from the original owner, late Shri K.M. Talukdar vide agreement to sell dated 7th February, 1975, accompanied with a Power of Attorney, an affidavit and the will of the deceased. It is also stated that the possession of the plot was delivered to the ancestors of the plaintiffs on 7th February, 1975, that is on the date when the aforesaid documents were executed. It is alleged that on 20th October, 1996, while the plaintiffs were at the site of the suit property, the defendant No.3 came there and he reported that he is negotiating for the purchase of the suit property from the defendants No.1 and 2. The aforesaid information submitted by the defendant No.3 came as a surprise and shock to the plaintiffs. Immediately thereafter the plaintiffs also came across a notice published in a local daily on 24th October, 1996 at the instance of the defendant No.3 indicating his intention to purchase the suit property from the defendants No.1 and 2. In order to protect the rights and interests of the plaintiffs in the suit property, the present suit was filed seeking for the aforesaid reliefs.
3. While issuing summons, an ad interim injunction was granted in favor of the plaintiffs directing that if any transfer is made by the defendants, that would be subject to the decision of the suit. The defendant No.3 was served by ordinary process and he filed his written statement contesting the suit. The defendant No.1 was also served by ordinary process. However, the defendant No.2 could not be served through the ordinary process and accordingly it was ordered that the said defendant No.2 could be served through the substituted manner. Accordingly, a publication was taken out in terms of which the defendant No.2 also stood served. However, none appeared either on behalf of the defendant No.1 or on behalf of the defendant No.2, nor any written statement was filed on their behalf and accordingly the suit was ordered to be proceeded ex parte as against the said defendants No.1 and 2.
4. The parties, namely, the plaintiffs and the defendant No.3 were allowed to file their evidence by way of examination-in-chief through affidavits in terms of which, both the plaintiffs and the defendant No.3 filed their affidavits. Shri Brahm Singh @ Brahm Perkash, who is the plaintiff No.1, filed an affidavit on behalf of the plaintiffs whereas, the defendant No.3 himself filed an affidavit on his behalf. The said witnesses were cross-examined. In terms of the aforesaid evidence on record, I proceed to dispose of the suit by this judgment and order.
5. The plaintiff No.1 in his deposition has proved the plan of the suit premises which is Exb. P/1. The said plan is of E.P.D.P. Colony in which the suit property is situated. The plaintiff No.1 has also proved the Agreement to Sell dated 7th February, 1975 alienating the aforesaid suit property in favor of the ancestors of the plaintiffs by the original owner late Shri K.M. Talukdar. Along with the aforesaid Agreement to Sell, the plaintiffs have also placed on record the Power of Attorney, an affidavit and the Will of the deceased late Shri K.M. Talukdar which are proved as Exbs.P/3 to P/6, respectively. It is also stated that the aforesaid purchase was pursuant to an offer from the owner and Shri P.K.Das under the letter dated 2nd January, 1975, which is proved as Exb. P/2. It is also stated that possession of the plot was delivered to the ancestors of the plaintiffs on 7th February, 1975 and that after the ancestors of the plaintiffs obtained possession of the suit property, they erected boundary walls all around it. The plaintiff No.1 has proved the receipt for the building material which is Exb.PW.1/1. The said witness has proved the statements made in the plaint by stating that on 20th October, 1996, while the plaintiff were at the site of the suit property, the defendant No.3 came there and he reported the he was negotiating for the purchase of the suit property from the defendants No.1 and 2. the documents furnished by the defendant No.3 indicating a process of negotiation for the alleged purchase with the defendants No.1 and 2 have also been proved as Exbs. P/7 and P/9. The advertisement published by the defendant No.3 in a local daily on 24th October, 1996, showing the intention of the defendant No.3 to purchase the suit property from the other two defendants is proved as Exb.P/10. The said witness was also cross-examined by the counsel for the defendant No.3. The plaintiff No.1 denied the suggestion that he was not one of the owner’s of the suit property.
6. On perusal of the cross-examination of the said witness, I find that the said witness could not be dislodged from the statements made by him in his examination-in-chief. No contradiction could be brought out by the defendant No.3 during the course of cross-examination of the witness.
7. The defendant No. 3 also examined himself in the suit. He stated that the defendants No.1 and 2 offered to sell/convey the suit property to the defendant No.3 some time in September, 1996. He stated that the defendants No.1 and 2 claimed to have acquired the suit property and had become owners of the suit property under a Court decree and on the basis of some documents and papers which are proved as Exbs. DW.3/1 to DW. 3/11. It is stated that believing the aforesaid representations of the defendants No.1 and 2 to be honest and truthful, the defendant No.3 paid a total advance of Rs. 2,01,100/- to the defendants No.1 and 2 under various receipts-cum-agreements executed by the aforesaid two defendants which are proved as Exbs. P/7 to P/9. He has also stated that the defendants No.1 and 2 are not traceable after the payment of the advance. The defendant No.3 has also proved the letters written by him to the defendants No.1 and 2 which are proved as Exbs. DW.3/12 to DW.3/13. It is admitted by the defendant No.3 that he visited the suit property on 20th October, 1996 and found the plaintiffs present at site who claimed to be the owners and also to be in possession of the suit property. He has also admitted the publication made by him in the local daily which is proved as Exb. P/10.
8. It was stated by the said witness that the present suit is apparently a device for illegal gains and unjust enrichment to the defendant No.1 and 2 at the cost of the defendant No.3. The said witness was also cross-examined by the counsel for the plaintiff. The defendant No.3 had stated in his cross-examination that he does not know as to whether or not the defendants No.1 and 2 have been arrayed in the suit as the defendant. He had also admitted that he had never seen the ownership documents of the suit property nor he had ever tried to verify the ownership of the suit property. He had also admitted that he did not ever see the defendants No.1 and 2 in possession of the suit property. The defendant No.3 had also admitted that he had not taken any legal proceedings either against the defendants No.1 and 2 or against the plaintiffs or against anybody else regarding the suit property or any other issue pertaining to his agreement with the defendants No.1 and 2 for the purchase of the suit property.
9. I have carefully perused the evidence placed on record on behalf of the plaintiff and the defendant No.3. There is no evidence on record to prove and establish that the defendants No.1 and 2 had ever acquired either ownership or possession of the suit property. No document could be placed on record either by the defendant No.3 or on behalf of the defendants No.1 and 2 in spite of opportunities to prove and establish that the said defendants No.1 and 2 had ever acquired ownership, right and title of the suit property.
10. The plaintiffs have placed on record the Agreement to Sell dated 7th February, 1975 as also the Power of Attorney, an affidavit and the Will of the deceased Shri K.K. Talukdar, selling and conveying the suit property to the ancestors of the plaintiffs. Exbs. P/3 to P/6 clearly establish the said position. It is also established from the evidence placed on record that there was an effort on the part of the defendants No.1 and 2 to sell the said suit property belonging to the plaintiffs to the defendant No.3 without any authority and right. The plaintiffs are in peaceful possession of the suit property. But such possession was sought to be interfered by the defendants No.1 to 3 by making a publication in a local daily which is also proved by the document placed on record.
11. In the light of the documentary evidence placed on record coupled with the oral evidence adduced in the suit, I hold that the plaintiffs are entitled to a decree as sought for in the plaint. Accordingly, the suit is decreed in favor of the plaintiffs and against the defendants by issuing a permanent injunction restraining the defendants No.1 and 2 from selling and/or alienating/conveying or disposing of the suit property in favor of the defendant No.3 or any other person. The said defendants are also restrained from interfering with the use and enjoyment of the suit property by the plaintiffs and also from dispossessing the plaintiffs from the suit property. However, in the facts and circumstances of the present case, I leave the parties to bear their own costs.