C.R. No.6007 of 2006 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.6007 of 2006 (O&M) Date of Decision: 17.08.2009 M/s Jai Kishan Hotel & Builders Pvt. Ltd. .....Petitioner Versus Braham Prakash and another ...Respondents Present: Mr. Akshay Bhan, Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? No 2. To be referred to the Reporters or not ? No 3. Whether the judgment should be reported in the Digest? No -.- K. KANNAN J. (ORAL) 1. The service is complete and the counsel Sh. G.S. Bal, who had come on caveat is not before this Court. The matter relates to an interim order passed in a pending suit and identified as one of the items for immediate disposal in Samadhan 2009. The case has been posted for final hearing today and there is no appearance for the respondent. I proceed to dispose of the case after hearing the counsel for the petitioner. 2. The suit for bare relief of injunction had been sought by the plaintiff in relation to a property which is described as a vacant land in plot No.15, Sector 11, Faridabad. The injunction was sought on the basis that even possession had been handed over to him in the year C.R. No.6007 of 2006 (O&M) -2- 1968 through an unregistered document by its owner Sh. M.L. Mukhi and that he had been in possession of the property. The principal contest had been by the 2nd defendant-M/s Jai Kishan Hotel and Builders who claimed that in relation to very same property they had earlier filed a suit for relief of injunction against one Vijay Kumar and another and the Court had granted an interim relief of injunction. The suit is still believed to be pending and the injunction is reported to be again in force. In proof of possession, the 2nd defendant, apart from the order of injunction which he had in his favour against Vijay Kumar and another, had relied on electricity connection given by the Haryana Bijli Board, the temporary water connection and some documents in proof of purchase of building materials and purported to have been stored at the property. 3. The trial Court held that the plaintiff had no prima facie case and the unregistered document purporting to deliver possession of the property could not be relied on to grant the relief of injunction. He challenged this order before the Appellate Court which reversed the decision of the trial Court. While so holding, the learned Judge referred to the photocopy of the document under which the plaintiff had made a claim and observed that although it was only a photocopy it showed that property had been in possession of the plaintiff from the year 1968 itself. He also relied on some receipts, which according to the plaintiff, showed that some building materials had been placed in the property and tractor and lorry bills showed that some goods had been transported to the property and stored there. 4. The 2nd defendant, aggrieved by the order, is the revision C.R. No.6007 of 2006 (O&M) -3- petitioner before this Court. He points out to the fact that source of title of the plaintiff was an unregistered document which purported to deliver the property to the plaintiff and contained reference to a disclaimer of any right by the previous owner. The document reads as follows:- "I, M.M.L. Mukhi, son of late Sh. Mukhi Mahesh Chand R/o House No.H-89, South Extension, Part-I, New Delhi. I am the co-owner of plot No.15, Block A, Sector-9, DLF, Faridabad measuring 5219 sq. yards vide sale deed registered as No.2265 dated 10.12.1968 and have handed over the possession of plot to Shri Brahm Prakash S/o Sh. Munna Lal R/o Village Ameen Nagar Sarai Tehsil Baghpat, Distt. Meerut, U.P. for his use against the payment of Rs.10,000/- (Rs. Ten Thousand only). He is allowed to use the property in whatever way it can legally be used. I have agreed to a sale agreement of the above-mentioned plot to Shri Brahm Prakash at a later date." 5. The document does not read like an agreement of sale. It recites the receipt of Rs.10,000/- as a consideration for handing over possession. It grants to the purchaser a right to use the property in any way he pleased. It also states that a sale agreement shall be written at a later date. The first portion of the document, which refers to delivery of possession does not refer to transfer of ownership itself. The last portion of the document contemplates a future agreement of sale and therefore, it cannot also operate as an undertaking to sell the property. The overall effect would be that it is neither a sale deed nor C.R. No.6007 of 2006 (O&M) -4- an agreement of sale but a document of alleged delivery of possession for receipt of Rs.10,000/-. Such a document cannot create any interest in the immovable property and that cannot afford to plaintiff a prima facie claim to a right to hold possession. A right to possession obtained without a transfer of interest in a manner according to law could at be only need some form of licence. If the document were to be treated as a document of licence, it is at all times terminable. It bears out from the documents relied on by the 2nd defendant that the very same person, M.L. Mukhi had sold the property to Hari Kishan and others through a registered document. I am not considering the issue whether the 2nd defendant had obtained valid title through M.L. Mukhi but I have referred to the document of transfer through an registered instrument by M.L. Mukhi only to show that even a claim of licence, if it were to be made from Mukhi, it would cease at a time when a registered sale deed is made by him. The lower Appellate Court's reference to the tractor or lorry receipts as constituting proof of possession of the property, in my view, is again incorrect. The receipts themselves cannot afford any proof of identification of property on which the materials are said to have been stored. The injunction relief which was refused by the trial Court was on a proper consideration. Plaintiff's claim had no prima facie case to sustain and it had rejected the claim for injunction. It ought not to have been interfered by the Appellate Court on a flimsy ground that the unregistered document does not operate as sale deed but the tractor receipts and lorry receipts proved the plaintiff's possession. It should have, at the same time, considered the contention made on behalf of C.R. No.6007 of 2006 (O&M) -5- the 2nd defendant, which obtained approval at the trial Court's hand, namely, the fact that permission had been sought from a local body for putting up construction. Temporary service connection had been obtained both for electricity and water and there had also been an interim order of injunction in his favour although not against the plaintiff but against any other person which was definitely relevant as a document though not inter-parties as an incident when a party asserted right in relation to the very same property. 6. The order of the Appellate Court is, erroneous and it is liable to be set aside and accordingly set aside. The trial Court is directed to take up the suit with suit filed by the 2nd defendant against Vijay Kumar and another simultaneously for proper appreciation of the contentions of parties. 7. With the above observation, the civil revision is allowed but there shall be no direction as to costs. (K. KANNAN) JUDGE August 17, 2009 Pankaj*