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Delhi High Court
Suresh Chand Jain vs Siri Chand Jain & Anr. on 22 August, 2000
Equivalent citations: 2000 (56) DRJ 631
Author: V J Sen
Bench: V Sen


ORDER

Vikarma jit Sen, J.

1. The Plaintiff has filed the present suit for the grant of a permanent injunction restraining the Defendants from transferring, alienating, parting with or disposing off or collecting rent or in any way interfering with the property bearing Nos. 2739 to 2745, Sushila Mohan Marg, Naya Bazar, Delhi. When the matter came up for hearing an ex parte order was passed on 14.6.2000. Written Statement on behalf of Defendants has since been filed. Mr. Dinesh Garg, learned counsel appearing on behalf of Defendants has pressed that the Defendant No.1 is of advanced age and that the application under Order XXXIX Rules 1 and 2 be disposed off immediately. Accordingly the matter was heard at considerable length.

2. The contention on behalf of Defendants is that the property in suit is the sole property of Defendant No.1, who is the father of the Plaintiff and Defendant No.2. The Plaintiff has shifted to Delhi whereas Defendant No.1 and his other son continue to reside and transact business in Muzaffarnagar, U.P. In order to substantiate the averment that the property belongs exclusively and solely to Defendant No.1, he has filed photocopies of Sale Deeds which are undoubtedly in the name of Defendant No.1 only. He has also filed the Assessment Orders and Returns of Wealth Tax and Income Tax which show that for over two decades the property has been disclosed as the exclusive property of Defendant No.1. Documents and Receipts pertaining to the Municipal Corporation of Delhi has also been filed to prove the contention that the property stands in the name of Defendant No.1. It has further been contended by Mr. Dinesh Garg, learned counsel for Defendants that the Rent Agreements are also in the name of Defendant No.1, in whose name rent receipts have been executed by the Plaintiff himself. It has further been disclosed that even documents executed by the Plaintiff state that the property belongs to Defendant No.1, and are also to the effect that rent for a portion of the premises has been paid by the Plaintiff to Defendant No.1. Learned counsel for the Defendants has also stressed on the inconsistency in the pleadings contained in the plaint inasmuch as in para five the Plaintiff has claimed title through an irrevocable General Power of Attorney executed by Defendant No.1; in para six he has claimed ownership by adverse possession and in para seven he has claimed that the properties are joint family properties of which partition has not yet taken place. Learned counsel for the Defendants further contends that not even a semblance of a prima facie case has been made out. Along with the plaint the Plaintiff had filed the said irrevocable. General Power of Attorney. It is contended that the signatures of Defendant No.1 were obtained on this document by misrepresentation and, therefore, it would be inequitable to grant any relief based thereon.

3. Learned counsel for the Plaintiff has relied heavily on the General Power of Attorney, the original of which was seen and thereafter returned to the Plaintiff. He has emphasised the sentence in Clause 9 of the Entry that Defendant No.1 would get rent for the property during his life time as maintenance from the Attorney. He has further submitted that the original Title Deeds are in his possession and not in the possession of the Defendants and this fact alone shows that the Plaintiff has exclusive or predominant rights to the property in the suit. In Reply to the argument put forward by learned counsel for the Defendants that even in the Income Tax Returns filed by the Plaintiff the income from house property is shown as Nil, learned counsel for the Plaintiff has explained that this is for the reason that rentals as per the General Power of Attorney were to be made over to his father, Defendant No.1., as maintenance.

4. Since this is a family dispute and the relations between the parties being of close nature, the Court should eschew an averly, formal or pedantic approach. It is also trite to state that at the present moment the Plaintiff is not required to make an overwhelming case but only a prima facie case. If he succeeds in doing so, the matters in contention between the parties must be allowed to be decided after evidence has been let in by the parties. It is also repetitive to state that since immovable properties are in question, the balance of convenience would be in favour of continuing status quo.

5. Keeping these principles in mind I am not satisfied that even a prima facie case has been made out. In the first place the irrevocable General Power of Attorney on which heavy reliance has been placed is not a registered document. It should not be read in evidence. However, even if the document is looked into, it most significantly shows that the property belongs to Defendant No.1. It demolishes the stance that it is an HUF property. For whatever reason the Plaintiff may have decided to settle in Delhi, this document undoubtedly facilitated the maintenance and preservation of the property in suit. The fact that the rents were to be paid to Defendant No.1 as maintenance, or that the original of the Sale Deeds are in the possession of the Plaintiff, would not further his case. Most importantly, the Plaintiff must come out with a clear and unequivocal case. It has also been noticed above that three different cases have been stated in respect of the suit property. Learned counsel for the Plaintiff has submitted that it is open to the Plaintiff to adopt alternative pleas, but this proposition cannot be stretched so far as to permit the taking of mutually destructive pleas. If the special rights, and/or ownership is to be claimed by the Plaintiff through a General Power of Attorney executed by Defendant No.1, he cannot claim that it is HUF property. I shall only refer to the documents filed by the Defendants which show that at no point of time had any of the parties treated the property as HUF property. The plea that the Plaintiff has become the owner by adverse possession keeping in view the fact that the Plaintiff is the son of Defendant No.1, cannot also be appreciated. Where equitable relief is prayed for, the least that is to be expected is that the Plaintiff must approach the Court with clean hands. The plea of adverse possession is mala fide and cannot be sustained since necessary pleadings have not been made. For the plea of adverse possession it must be clearly stated that the Plaintiff’s possession was hostile to that of the real owner i.e. Defendant No.1. The date on which adverse possession commences should also be stated. These pleadings are wholly absent. Thereafter it has been pleaded that it is an HUF property. There is not even an iota of evidence in support of this contention. On the contrary there is an overwhelming and almost unimpeachable documentation as proof of the fact that the property belonged solely to Defendant No.1. Since there is a filial relationship between the parties, it is insignificant that the Title Deeds are held by the Plaintiff. Even in respect of this plea the necessary pleadings pertaining to the manner in which the Plaintiff may have acquired special and particular rights to this property, if it is taken to be an HUF property, has not been pleaded.

6. The learned counsel for the Plaintiff has relied on Jagdish Chand Vs. Anand Pradhan & Ors., 1971 R.L.R. (NOTE) 28, Gopal Krishan Kapoor Vs. Ramesh Chander, 1973 R.L.R. 542, Shri Shyam Mishra & Ors. Vs. Municipal Corporation of Delhi, 31(1987) DLT (SN) 51, Baldev Raj Vs. Delhi Development Authority, 1971 R.L.R. 84, Gurmukh Singh Vs. M/s. Inderprasth Finance Co., 1976 R.L.R. 1, Ramjilal Mahinder Kumar Vs. Naresh Kumari, 1983 R.L.R. 381, Jasjit Films P. Ltd. Vs. Mun. Corp., 1978 R.L.R. (NOTE) 75. None of these decisions lay down that merely because a plaint has been filed, a temporary injunction must issue.

7. For all these reasons I am unable to be convinced that even a prima facie case has been established by the Plaintiff. Most of the property is in the possession of the tenants and in respect of one godown, the documents which are on record show that rent is being paid by the Plaintiff to Defendant No.1 By rejecting the application the possession of the property is not going to be automatically disturbed. Defendant No.1, and any of the other parties claiming under or together with him, are still not entitled to disturb the possession except by due process of law. In these circumstances the ex parte ad interim injunction granted on 14.6.2000 is recalled and the application is dismissed. Keeping in perspective the relationship between the parties I am desisting from imposing any costs.


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