1 IN THE COURT OF SHRI. ASHISH AGGARWAL, CIVIL JUDGE1, DWARKA COURTS, DELHI CS. No 356/11 [PRECEDENT] 08.04.[SECTION]011 ORDER
1. By this order I shall decide the application under [SECTION] and [SECTION] of [ACT] filed by the plaintiff and shall adjudicate the maintainability of the suit.
[SECTION]. The plaintiff has instituted the present suit against his wife (defendant no. 1) and his fatherinlaw (defendant no. [SECTION]). The case of the plaintiff is that he had purchased the property no.RZ160D/[SECTION],land measuring 100 sq. yards, out of Khasra No. 5[SECTION]/5/[SECTION], Block No. A, Gali No. 15, Village Hebatpura, Abadi known as Gopal Nagar, Najafgarh, New Delhi (hereinafter referred to as "the suit property") on 14.03.[SECTION]008 by general power of attorney, agreement to sell, affidavit, receipt, possession letter and will. The plaintiff has since then been residing in the suit property. His relations with his wife were strained. His wife left the matrimonial house and started staying with her parents. The wife and fatherinlaw of the plaintiff have been threatening to dispossess the plaintiff from the suit property. In the plaint, the plaintiff has prayed for a decree of permanent injunction restraining the defendants and their representatives 1 of 10 from forcibly dispossessing him from the suit property and from entering the suit property. The plaint is accompanied by an application under [SECTION] and [SECTION] of [ACT] in which the plaintiff has prayed for interim injunction restraining his forcible dispossession from the suit property and the entry of the defendants in the suit property till the disposal of the suit.
3. Written statement has been filed on behalf of the defendants. The defendant no. 1 states that she is the owner of the suit property and had purchased it from Smt. [ENTITY] on 14.03.[SECTION]008 by general power of attorney, agreement to sell, affidavit, receipt, possession letter and will. The defendant no. 1 went to her parental house. She lost the title documents. She informed the police and got another set of documents prepared on 16.09.[SECTION]008 from Smt. [ENTITY]. It is stated that the plaintiff is neither in possession of nor entitled to occupy the suit property.
4. The plaintiff and defendant no. 1 have set up rival claims to the ownership of the suit property. Interestingly, both of them claim to derive their title from Smt. [ENTITY]. The documents of neither party are stated to be registered. Plaintiff has not even filed a copy of the said documents. According to the plaintiff, he has lost the documents. As against this, the defendant no. 1 has placed on record copy of the documents through which she claims her title.
5. The suit has essentially been filed by the plaintiff to protect his possession over the suit property. The plaintiff claims to be in possession of the suit [SECTION] of 10 property as its owner. The defendants have denied the title of the plaintiff. This denial of title is a serious one in as much as the defendant no. 1 claims the title to vest in her and has supported this contention by filing copies of title documents. This casts doubt over the title of the plaintiff. The issue cannot be deemed to be a simple one where the plea of either party can be easily brushed aside. The rival contentions of the parties relating to title need to be adjudicated. The issue requires evidence and analysis. As such, the plaintiff is required to file a suit for declaration of title and injunction instead of the present suit for injunction alone. Adjudication of title is not possible in the present suit since the present suit does not seek declaration of title and merely seeks to protect the possession of the plaintiff. Despite being aware that the defendants are claiming a different title, the plaintiff has chosen not to seek declaration of her ownership. The plaintiff having refrained from seeking declaration of title, the present simplicitor suit for protection of possession is not maintainable.
In this behalf, reference may be made to the case of Anathula Sudhakar v. P. Buchi Reddy, AIR [SECTION]008 SC [SECTION]033, in which it has been laid down that when there is cloud over title, the plaintiff even if he is in possession, must seek declaration of title and not mere protection of possession. It was observed thus:
"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction".
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6. This is besides the fact that the plaintiff is not able to substantiate his right to remain in possession of the suit property. No documents to show transfer of title have been filed by the plaintiff. Possession must follow title. Where it is in dispute as to who is in possession, possession must be granted to the person holding ownership rights. However the enquiry into title has been obviated by the plaintiff who has chosen not to claim declaration of title. He has not placed on record documents to establish his ownership over the suit property. Even if the plaintiff had lost the original documents, he could have placed on record their photocopies. However, he has omitted to do so.
7. The plaintiff has relied upon a report made to P.S. GRP Bahadurgarh informing them of the loss of documents. The said report is dated [SECTION]9.03.[SECTION]011, that is only one day before instituting the suit. It seems that the plea of loss of documents has been created merely for supporting the present suit. This is besides the fact that the said documents, even if in existence, are not registered and do not transfer title in favour of the plaintiff. Moreover, had Smt. [ENTITY] executed transfer documents in favour of the plaintiff on 14.03.[SECTION]008, she would not have later executed similar transfer documents in favour of defendant no.1 on 16.09.[SECTION]008 in respect of same property, copy of which has been filed by the defendants. The fact that the defendant No.1 is in possession of the previous chain of documents also supports the claim of the defendants. The version of the plaintiff does not inspire confidence.
8. Merely showing photographs of the suit property does not advance the case of the plaintiff that he is in settled possession of the suit property.To be in 4 of 10 settled possession requires the occupant to stay in the premises for sufficiently long period without any interference or obstruction, which the plaintiff has failed to convincingly demonstrate. In the case of [PRECEDENT], the Hon'ble High Court of Delhi observed as under:
"While considering the question of grant of injunction the Courts are bound to come to some tentative conclusion on facts and it cannot be said that they would be decided at the time of the trial of the case. If that be the position, in every case a person in possession of a property on the date of the suit would be entitled to injunction ex debito justitiae on the basis of his possession whatever the nature of the possession. Suppose A trespasses into B's property and he maintains to be in possession for a few days and files a suit for injunction against B. Can injunction be granted on the strength of the possession leaving the question whether his possession is legal or not to be decided at the time of the trial of the case?"
The Hon'ble High Court of Delhi answered the aforesaid question by holding that the Court must not come to the aid of lawless trespasser whose occupancy is based merely on the law's delay.
9. From the documents placed on record by the defendants, it seems that the plaintiff does not have better title over the suit property than the defendant no.1. It appears that the defendant no.1 was the owner of the suit property whereas the plaintiff was a mere licencee, if at all. This status of the plaintiff is not altered even if it is assumed that payment for purchase of the property 5 of 10 was made by the plaintiff, although there is no material on record to establish this plea of the plaintiff. Since the property was purchased through written documents, oral evidence to establish transfer of funds is not admissible as per [SECTION] of the Evidence Act, 187[SECTION]. Even if it is assumed that payment of purchase price was made by the plaintiff, that does not imply that after the purchase, the plaintiff continues to have a right in the property. The only owner of the property, as per the documents on record, is the defendant no.
1. At best, it can be assumed that the said payment, if any, was made as gift to the defendant no. 1 which also does not confer any right over the property in favour of the plaintiff. Even if it is assumed that property was in fact sought to be purchased by the plaintiff and it was only purchased in the name of the defendant no. 1, that would not establish that the plaintiff has acquired rights therein. If the said assertion of the plaintiff is treated to be correct, the transaction of purchase of property would qualify as a "benami transaction"
as defined in [SECTION] of the [ACT]. As such, by operation of [SECTION] of the said Act, no suit or other action to enforce the rights in the property would lie on behalf of actual payer. In the case of Rama Kanta Jain vs. M.S. Jain, AIR 1999 Delhi [SECTION]81, the plaintiff had filed a suit for recovery of possession of immovable property on the ground that the defendant was a licensee whose license had been revoked. The defendant raised a plea that he had contributed to the purchase of the property by making payment of part of the sale consideration and that only the name of the plaintiff had been utilized for the purchase. Repelling 6 of 10 this contention, the Hon'ble High Court of Delhi held that the defendant cannot be allowed to lay claim over the property. The above case squarely applies to the present case.
In view of the aforesaid decision, it clear that the plaintiff cannot lay claim to ownership to the suit property.
10. The plaintiff, being only a licencee in the premises, is not entitled to any injunction against the true owner. His use of the premises does not amount to "possession" in the eyes of law so as to deserve protection. In the case of D.T.T.D.C vs. D.R. Mehra & Sons, 6[SECTION] (1996) DLT [SECTION]34 (DB), the Hon'ble High Court of Delhi held that a licencee is, after termination of licence, not entitled to any injunction against dispossession by the owner. It was noted as under:
" Injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands."
In the case of [PRECEDENT], it was held that a licencee cannot set up title in himself in order to avoid surrender of possession of the property on termination of the licence. It was laid down that it is the duty of such licencee to surrender possession of the property. In the case of G.N. Mehra Vs. International Airports Authority of India (IAAI), 63 (1996) DLT 6[SECTION], it was laid down that after expiry of licence, the licencee is not entitled to any injunction against the true owner. Grant of such injunction would amount to perpetuating his unlawful possession.
7 of 10 In the case of Thomas Cook Limited Vs. Hotel Imperial & Ors., 1[SECTION]7 ([SECTION]006) DLT 431, the Hon'ble High Court of Delhi took note of a number of other decisions on the subject including that of Rame Gowda Vs. M. Varadappa Naidu, I ([SECTION]004) SLT 675, and held that a licencee is a permissive occupant. His occupation does not amount to "possession" and therefore he is not entitled to the grant of injunction against dispossession. In the case of Tamil Nadu Housing Board Vs. A Vismam, 1996([SECTION]) R.R.R. 353, it was held that a trespasser is not entitled to injunction against dispossession by the true owner.
11. For these reasons, in my opinion, the plaintiff has failed to make out a prima facie case. This is the foremost requirement to be fulfilled for the grant of interim injunction. Since the plaintiff has failed to meet this standard, the application under [SECTION] and [SECTION] of [ACT] filed on behalf of the plaintiff is dismissed.
1[SECTION]. Having perused the record, it is pertinent to note that the reasons stated above for dismissal of the application under [SECTION] and [SECTION] of [ACT] hold good even if the contents of the plaint are treated to be true and correct. Although the case is at an early stage, the plaint is being scrutinized to assess the maintainability of the suit in view of the observations of Hon'ble Supreme Court in the case of Sopan Sukhdeo Sable and Others V. Assistant Charity Commissioner and others ([SECTION]004) 3 SCC 137 in which it was held that it is obligatory for the Court to reject the 8 of 10 plaint in the event of noticing any infirmities mentioned in [SECTION] of [ACT]. As elaborated above, in the present case, the plaintiff is seeking injunction restraining his dispossession and has not sought declaration of title although he is not entitled to any injunction unless he establishes his title. It has also been noted above that in view of an adverse title being set up by the defendants, it was incumbent upon the plaintiff to seek declaration of title notwithstanding the fact that he is in possession of the property, as held in the case of Anathula Sudhakar v. P. Buchi Reddy AIR [SECTION]008 SC [SECTION]033. Moreover, it is not the case of the plaintiff that he has purchased the property by registered documents conferring upon him the right to own and occupy the suit property. The prayers made in the plaint are clearly barred by law and the plaintiff has no cause of action sustaining the scrutiny of law.
13. In these circumstances, I find no good ground to keep the suit pending or to put it to trial. Even if the plaintiff succeeds in proving the averments made in the plaint, he would not become entitled to the relief claimed by him. In the case of [PRECEDENT], the Hon'ble Supreme Court has held that if on a meaningful, not formal, reading of the plaint if is manifestly vexatious and meritless, in the sense of not disclosing a clear right to sue, the court should reject the plaint under [SECTION] of the [ACT].
In the case of Liverpool & London S.P.& I Association Ltd. Vs. Sea Success I & Another ([SECTION]004) 9 SCC 51[SECTION] it was held that when no cause of action is 9 of 10 disclosed by the plaint, courts should not unnecessarily protract the hearing of suit. It was directed that in such cases, the court must save expenses, achieve expedition and avoid the courts' resources being used up in cases which will serve no useful purpose. It was further held that a litigation which, in the opinion of the court, is doomed to fail should not be allowed to be used as a tool of harassment.
14. For the aforesaid reasons, under [SECTION] of [ACT], the plaint is rejected.
File be consigned to record room.
([ENTITY]) Civil JudgeI/Dwarka Courts Delhi/08.04.[SECTION]011 10 of 10