IA No. 8144/2003 in CS (OS) No. 1534/2003:
Vikramajit Sen, J.
1. On the first date of hearing it was recorded in the ex parte ad interim injunction Order that, “Farm land bearing No. 4, Khuller Farm, Mandi Road, Sultan Pur, Mehrauli, Delhi-110 030 was purchased by the father of the plaintiffs and defendants 1 to 3 by way of separate registered sale deeds. Thereafter, a building was constructed on the said land in 1984. The property is alleged to be held jointly. The plaintiffs are residing at the said property. It is contended that on 2nd August, 2003, some anti-social elements along with truck loads of household material came to the farm stating that defendant No. 5 had purchased the share of defendants 1 to 3 in the said land and that they had come to obtain possession of portion in the farm house on behalf of defendant No. 5. They refused to show any document of title. Local police was called. The plaintiffs are unable to ascertain as to whether the defendants 1 to 3 relinquished their rights in favour of defendant No. 4 or any other person. The plaintiffs contend that they cannot be dispossessed otherwise in accordance with law as they have also a share in the farm land”.
2. A reading of the Plaint discloses that the Prayer that has been made is for the passing of a decree for permanent injunction restraining the defendants, their agents, representatives, assignees and any person claiming on their behalf from entering into premises bearing No. 4, Khullar Farms, Mandi Road, Village Sultanpur, Mehrauli, New Delhi-110 030. The imperatives of the Order VII Rule 3 of the CPC having not been complied with, although several hearings have already taken place. In separate proceedings the plaintiffs have filed a Site Plan along with the Plaint, and their failure to do must be seen as deliberate. The Plaint mentions that the property was purchased by the father of the Plaintiffs and their sisters, namely, late Shri Madan Mohan Chopra and that “none of the plaintiffs or the defendants had paid a single paisa out of their separate individual accounts towards the sale consideration for the sale deed executed in their favour”. Paragraph 5 of the Plaint states that, “the Farm House was purchased by means of separate Sale Deeds, in the name of the plaintiffs and defendant Nos. 1 to 3”. My attention has been drawn to paragraph 11 of the Plaint but that also does not disclose the name of the person who is stated to have constructed the building. I have adverted to the proceedings since the plaintiffs have attempted to set up a plea of Benami ownership against their sisters which, apart from the statutory embargo, would have been available only to their father.
3. The question that arises today is whether the interim injunction should be continued, which would depend inter alia on the plaintiffs having succeeded in disclosing a prima facie case in their favour. Admittedly, the land in question comprises several Khasra Nos. of which Khasra Nos. 281 and 283 alone stand mutated in the name of the plaintiffs. So far as Khasra Nos. 267, 272 and 273 are concerned, these were mutated in favour of defendants 1 and 2 and subsequently, on the sale of their property to defendants 4 and 5, these Khasra Nos. have now been mutated in their names. It appears that the plaintiffs herein had filed a Suit in the District Court bearing No. 118/89 seeking a permanent injunction against Shri Nishant Singh Wadalia which has recently been disposed of. The Plaint contains the following pleadings in paragraph 11:
“11. That on both sides of the approach road, there are four other farms, which are marked FH-1, FH-2, FH-3 and FH-4. These four farms belong to four different persons and all of them are enjoying and using the said approach road. The Farm FH-1 belongs to Shri Satish Khullar, Farm FH-2 belongs to Shri Jagdish Khullar, Farm FH-3 belongs to justice Tilak Raj Handa and Farm FH-4 belongs to Shri Dalip Kapoor”.
4. Shri Dilip Kapoor is defendant No. 1 in the present case. Therefore, apart from the nebulous or contrary pleadings in the Plaint before me, there is a clear admission of title of the defendants.
5. The position that emerges is that the patriarch of the family comprising plaintiffs 1 and 2 and defendants 1 to 3 had purchased contiguous property bearing 5 Khasra Nos. the titular owners of which are the brothers and sisters in this Suit. Even assuming that it is the plaintiffs who are presently in possession, it cannot and ought not to be presumed that their possession is hostile to that of their sisters. It must be treated as permissive and, therefore, to be in the joint occupation of all the siblings. The Plaint asserts that there is no vestige of ownership in defendants 1 to 3. If this transaction is to be treated as a Benami transaction executed by the patriarch of the family, such a defence is no longer permissible in view of the Benami Transactions Act. The effect is that the title of Defendants 1 to 3 cannot be assailed. No Declaration on these lines has been prayed for in the Plaint. In fact, it appears that an application under Order II Rule 2 of the CPC had been filed seeking leave of the Court to sue the defendants for reliefs other than permanent injunction but till date no such suits have been filed.
6. The defendants 1 to 3 have sold their rights in the property to defendants 4 and 5 which they unassailably have the right to do. It has been vehemently stressed by Mr. L.R. Gupta, learned Senior Counsel for the plaintiffs, that they are in possession of the property and, therefore, their possession needs to be protected. An injunction is an equitable relief and will not be granted by the Court to a party who has approached. This, however, is not the sum and substance of the Prayer before me. A reading of the Plaint shows that what is under dispute is the right in the title of the property of defendant Nos. 1 and 3 and consequently there is a challenge to the rights of the sisters to sell their property to defendants 4 and 5. To simply say that the rights of possession of the plaintiffs should be protected in a case such as this, when some of the other defendants must be seen to also enjoy possession of the property along with their brothers, would be in violation of the law and especially in violation of equity. An injunction would not issue against true owners having the effect of ousting them from the property.
7. In these circumstances I do not find that a prima facie case has been made out which warrants the continuance of the temporary injunction. Application stands dismissed and the interim Orders are recalled.
IA Nos. 10063/03, 10076/03 and 4699/04 in Suit No. 1534/03:
8. Renotify the pending applications for disposal on 1.11.2004.
