IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1, SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI CS No: [PRECEDENT] 22.10.2011 ORDER
1. This order shall decide the application under [SECTION] and [SECTION] of [ACT] filed on behalf of the plaintiff and the application under [SECTION] of [ACT] filed on behalf of the defendant.
2. The plaintiff has filed this suit against the brother of his soninlaw. The plaintiff has stated in the plaint that he had a daughter namely [ENTITY]. In the year 1995 the daughter of the plaintiff was married to one Mr. [ENTITY]. The inlaws of the daughter of the plaintiff used to harass the daughter of the plaintiff for fulfillment of their illegal demands. Owing to their misbehaviour, the soninlaw and daughter of the plaintiff separated themselves from the remaining family members. They started living in a separate house. In the year 1997, they shifted to a tenanted premises in Delhi. Considering their predicament, the plaintiff, in the year 2006, jointly purchased a property bearing No. C101, Dwarka Apartments, Sector7, Plot No. 21, Dwarka, New Delhi (hereinafter referred to as " the suit property") with his soninlaw. The plaintiff's soninlaw and daughter were shown as coowners although it is the plaintiff who had made the entire payment of sale consideration. The plaintiff and his wife started residing in the property alongwith their daughter, soninlaw and granddaughter. On 16.05.2011, the plaintiff's daughter, soninlaw and granddaughter expired in an accident. The plaintiff and his wife continued to reside in the suit property. The defendant threatened to forcibly dispossess the plaintiff from the suit property. On the basis of these averments, the plaintiff has filed the present suit praying for permanent injunction restraining the defendant from interfering in the peaceful use and enjoyment of the property by the plaintiff and from dispossessing the plaintiff from the suit property.
3. By the application under [SECTION] and [SECTION] of [ACT], the plaintiff has prayed for interim injunction restraining the defendant from interfering in the use and enjoyment of the suit property by the plaintiff and from dispossessing the plaintiff during the pendency of the suit.
4. The defendant filed written statement. It is stated in the written statement that the suit is liable to be dismissed for nonjoinder of the necessary parties in as much as the owner of the property namely Smt. [ENTITY] has not been impleaded as a party. It is further urged on behalf of the defendant that the suit is barred by [SECTION] of [ACT]. It is further stated that since the plaintiff is not owner of the property, the suit is not maintainable. It is also pleaded that the suit has not been correctly valued for the purpose of court fee and jurisdiction. It is also revealed in the written statement that the property was financed by Indiabulls Housing Finance Ltd and is mortgaged with the said company. It is denied that the plaintiff made payment towards sale consideration of the property. It is further stated that before his death, Mr. [ENTITY] was making payment of monthly installments in respect of the mortgage. It is further averred that after the death of Mr. [ENTITY], it is the defendant who has been making payment of the said installments besides electricity bills and maintenance charges. The defendant has further denied that the plaintiff and his wife were residing in the suit property along with late Sh. [ENTITY] (son inlaw of the plaintiff). It is stated that after completing the last rites of Mr. [ENTITY] and his family, when the defendant reached the suit property, he noticed that some persons had broken open the locks and had entered the property. The defendant has urged that the plaintiff does not deserve any interim relief and has no right to continue in occupation of the property which he has illegally entered. The defendant filed an application under [SECTION] of [ACT] praying for rejection of plaint on essentially the same grounds as pleaded in the written statement.
5. The plaintiff filed replication. He reiterated the averments made in the plaint. He stated that since this is not a suit for declaration of title and the absence of ownership documents in favour of the plaintiff does not bar the suit. Reply to the application under [SECTION] of [ACT] has also been filed on behalf of the plaintiff. It is stated in the reply that the suit is maintainable and does not suffer from the infirmities pleaded by the defendant.
6. Statement of the plaintiff has been recorded under [SECTION] of [ACT]. He stated that he had made payment of entire sale consideration for purchase of the property.
7. Arguments have been heard. Record is perused.
8. The plaintiff has claimed to be in settled possession of the suit property. According to the plaintiff, he had been staying in the suit property alongwith his wife, daughter and soninlaw since its purchase. It is not in dispute that presently the plaintiff is in possession of the suit property. As to how and when he entered possession is a disputed question of fact. Determination of this question of fact can be done only after evidence is adduced by the parties. However, it would suffice to state that in case the plea of the plaintiff is true and if it were to be believed that the plaintiff is residing in the property since its purchase, the possession of the plaintiff would qualify as "settled possession". Such settled possession deserves to be protected from the use of force.
In the case of [PRECEDENT], the Hon'ble Supreme Court held as under :
"In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. The person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force".
In the case of [PRECEDENT], the Hon'ble High Court of Delhi noted as under :
"It is a principle of law that possession should prima facie be protected. Once a person is in possession of law that dispossessed otherwise than by legal means. To some extent a trespasser or wrong doer is protected".
In the case of [PRECEDENT], the Hon'ble High Court of Delhi held that even a trespasser is entitled to protect his possession until dispossessed in accordance with law. Similar observations were made by the Hon'ble High Court of Delhi in the case of [PRECEDENT]. Since the plaintiff is in possession of the suit property, the defendant or the owner of the property can evict the plaintiff only by instituting a suit for recovery of possession. Till so evicted, the plaintiff has a right to occupy, use and enjoy the property.
9. The defendant has contended that the plaintiff has not made payment of sale consideration and that the property had been mortgaged by Mr. [ENTITY] during his lifetime. Whether the said mortgage was for the purpose of obtaining money that was used for the purchase of property or whether the said mortgage took place after purchase of the property is yet to be determined. The mortgage deed is not on the record. The sale deed placed on record by the defendant shows that the property has been purchased for a sale consideration of Rs. 20 Lakhs. The written statement however states that loan of Rs. 42 Lakhs has been obtained by Mr. [ENTITY]. Having regard to the disparity in the said sums, it cannot be assumed at this stage that the loan had been obtained for the purchase of the property itself.
10.According to the defendant, the claim of the plaintiff is barred by the [SECTION] of the [ACT]. The said Act prohibits claim over ownership of the property. One cannot claim title over the property merely on the ground that he has made payment for it if the property has been purchased in the name of somebody else. However, in the present case, the plaintiff has not prayed for declaration of his title or protection of his possession only on the basis of ownership. Long, continuous and uninterrupted possession also confers a right in the property irrespective of title. This is a right to continue to remain in possession until dispossessed in accordance with law. The right to continue in occupation is available against every person except the true owner. The defendant herein is not and does not claim to be the true owner. Hence, the said right is available to the plaintiff against the defendant. The right to remain in possession until dispossessed in accordance with law is not dependent on title. Hence, the said right is not negated by [SECTION] of the [ACT].
In the case of [PRECEDENT], the Hon'ble High Court of Delhi encountered similar facts. In that case, the plaintiff was the husband of the defendant. He claimed that a flat had been allotted in favour of his wife by DDA. The plaintiff had made payment of sale consideration. The plaintiff claimed that he is in possession of the suit property whereas the defendant is trying to dispossess him. The plaintiff prayed for injunction restraining his dispossession. The defendant (wife) opposed the prayer on the ground that the suit was barred by [SECTION] of the [ACT]. Rejecting the arguments of the defendant, it was held that the plaintiff was entitled to protect his possession even if he does not have title over the property. The defendant was interalia restrained from dispossessing the plaintiff. The aforesaid decision cited by the plaintiff squarely applies to the present case.
11. Further, not every transaction entered into in favour of a family member is prohibited by law. Whether a transaction is benami or not depends on the circumstances in which the transactions is entered into and the intention of the person who contributes to the transaction. In the case of [PRECEDENT], the Hon'ble Supreme Court held as under :
"The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus : (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc".
Similar observations were made by Hon'ble High Court of Delhi in the case of [PRECEDENT]. Reliance is also placed on the case of [PRECEDENT]. In the present case, the averments made in the plaint do not point towards a benami transaction. Moreover, if the defence of the defendant is taken into consideration, that would also not indicate that the transaction is benami. According to the defendant, the plaintiff had not made payment of sale consideration of the property. If that is so, the case does not come within the scope of [SECTION] of the [ACT].
12.According to the defendant, the suit is barred since the plaintiff has not impleaded the true owner as a party to the suit. This is a suit to protect possession and not for declaration of title. It is required to be filed against the person threatening dispossession. Title is irrelevant in such suits. Since adjudication of title is not involved, the presence of the owner would not facilitate an effective or complete adjudication of the dispute. The failure to implead the owner is therefore not fatal to the suit. The owner is neither a necessary nor proper party.
13.Injunction is a personal relief. It operates only against the person injuncted. Others including the owner of the property are not affected by the decree. Therefore it is not necessary for the owner to be impleaded in such suits.
14.The plaintiff is the dominus litus of the case. He may choose not to seek a remedy against the specific person. He may choose to confine his relief as against specified persons. He cannot be compelled to seek relief against any person contrary to his wishes. A person against him no relief is sought and whose rights are not likely to be affected cannot be and need not be impleaded as party in such suits.
15.The only issue involved in the case is whether the defendant has a better title than the plaintiff in order to decide whether the defendant has a right to dispossess the plaintiff. The defendant has himself not claimed ownership rights. Hence, for deciding the aforesaid issue, the owner of the property need not be made a defendant. For the failure of the plaintiff to implead the owner as a defendant, the suit is not liable to be dismissed.
16.This is a suit for injunction. The suit has been correctly valued. Appropriate court fee has been affixed. The plaintiff, being in possession of the property, and only seeking injunction and not recovery of property, is not required to pay court fee as per market value of the property. The plaint has therefore been correctly valued in accordance with [SECTION] of the [ACT].
17. On merits, it appears that the plaintiff is not claiming ownership rights in the suit property. It is also true that the plaintiff has not been shown in title documents as the owner. However, the right to occupy the property is not confined merely to owners. By his long possession, the plaintiff has acquired the right to remain in occupation until dispossessed in accordance with law. This is a valuable right which is recognized and protected by law. This however does not imply that the owner of the property is not entitled to evict the plaintiff in accordance with the procedure prescribed by law.
18.The question that arises therefore is that pending determination of the issues involved, whether the plaintiff can be permitted to be forcibly removed from the suit property. To decide this question, aid is taken from the decision reported as [PRECEDENT]. In that case, the Hon'ble Supreme Court held that where a person is in possession of the property, even if without any right to remain in possession, he cannot, during the pendency of the suit, be directed to hand over possession to the rightful owner. It was noted:
"In the instant case the issue whether the plaintiff is entitled for possession was yet to be decided by the trial court hence granting of any interim order directing handing over of possession to plaintiff would only mean decreeing the suit ever before trial".
19.It is worthy to note that neither plaintiff nor the defendant claim ownership rights in the suit property. The plaintiff is however on a higher pedestal since he is admittedly in possession of the suit property. The defendant does not have better rights over the property that the plaintiff. The defendant cannot therefore dispossess or interfere with the use or enjoyment of the property by the plaintiff.
20.The plaintiff has succeeded in making out a prima facie case. Balance of convenience is in favour of the plaintiff. His forcible dispossession from the suit property is likely to cause irreparable injury to him as cannot be compensated in terms of money. This is therefore a fit case for grant of interim injunction.
21.The application under [SECTION] read with [SECTION] of [ACT] filed on behalf of the plaintiff is allowed. Till the disposal of the suit, the defendant is restrained from forcibly or illegally interfering in the use or enjoyment of the suit property by the plaintiff and from forcibly dispossessing the plaintiff from the suit property.
22.As demonstrated above, the suit is not barred for nonjoinder of necessary parties. The suit has been correctly valued. The suit is also not barred by [SECTION] of [ACT]. The plaintiff is entitled to grant of injunction even if he is not the owner of the property. It is settled law that the defence of the defendant cannot be looked into for deciding the application for rejection of plaint under [SECTION] of [ACT]. In the case of [PRECEDENT], the Hon'ble High Court of Delhi held as under :
"To enable a Court to reject a plaint on the ground that it does not disclose a cause of action, it should look at the plaint and documents accompanying the plaint only and nothing else. The Court, however, cannot look at the defence of the defendant or the documents relied upon by the defendant".
Contents of plaint are deemed to be correct. On the basis of the plaint and documents enclosed therewith alone, it cannot be inferred that the plaintiff has no cause of action or that the suit is barred by law or is undervalued. Hence, the application under [SECTION] of [ACT] filed on behalf of the defendant is dismissed.
23.Nothing stated hereinabove shall be construed as a conclusive opinion or finding on the merits of the case.
([ENTITY]) Civil JudgeI/Dwarka Courts Delhi/22.10.2011