Civil Revision No.3771 of 2010(O&M) [ 1 ] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Civil Revision No.3771 of 2010(O&M) Decided on : March 23, 2011 Naresh Kumar Yogeshwar ... Petitioner VERSUS Deepak Kumar Yogeshwar ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Sunil Garg, Advocate for the petitioner. Mr.Navdeep Chhabra, Advocate for the respondent. A.N.JINDAL, J.- The Trial Court vide order dated 19.12.2009 (Annexure P-2) restrained the respondent from selling, alienating, mortgaging or in any manner transferring House No.5, Block H/6, Adarsh Colony, Rajpura. However, on appeal, the Appellate Court, vide order dated 27.3.2010 (Annexure P-1) partially accepted the appeal while granting stay against alienation. Further, both the parties were directed to maintain status quo with regard to possession. The petitioner being the father, an old man, helpless to resist the action of the respondent, has filed this petition for claiming the relief for directing the respondent not to interfere in his peaceful possession, during the pendency of the suit. Civil Revision No.3771 of 2010(O&M) [ 2 ] Factual matrix of the case is that the petitioner and respondent are father and son, respectively. The respondent is residing at House No.1268, Vikas Nagar, Near NTC School, Ward No.23, Rajpura Town, District Patiala. Relations between the petitioner and the respondent are strained. The petitioner vide publication in the newspaper `Punjabi Tribune' dated 18.8.2000 had disowned the respondent from his entire property, so also he has mentioned that the wife and two daughters of the respondent have no connection with him, at all. Apprehending that the respondent would dispossess him from the suit house, he filed the present suit, which was contested. The respondent in his reply to the application submitted that the petitioner had transferred the said house to him vide sale-deed dated 9.11.2009, which he is using for imparting coaching of “IELTS” and spoken English under the name and style of “Blue Line Overseas Educational Consultants”. It is pertinent to mention here that by challenging the `Tabdilnama' (transfer deed), the petitioner has averred that `Tabdilnama' dated 9.11.2009 is not the result of his free-will and consent, rather it was got with the connivance of the police, the same being result of fraud and undue influence, is of no consequence. The Trial Court while holding the petitioner to be in possession of the suit house granted injunction, whereas, the Appellate Court, while restraining the respondent not to alienate the suit house, directed the parties to maintain the status quo with regard to possession. On bare reading of the order of the Appellate Court, it transpires that the Court did not examine as to who was, prima facie, in Civil Revision No.3771 of 2010(O&M) [ 3 ] possession of the suit property. Admittedly, the alleged `Tabdilnama' dated 9.11.2009 came into existence on 9.11.2009, whereas, this suit was filed by the petitioner challenging the sale-deed within twenty days of its execution. The suspicion could be raised with regard to the validity of the sale-deed from the circumstances that just four days prior to the execution of the sale-deed, on the application of Usha Rani wife of the petitioner, before the Human Rights Commission, the Commission had recorded the apprehensions of the petitioner in its order dated 5.11.2009, which reads as under:- “This complaint is by Usha Rani w/o Naresh Yogeshwar r/o Plot No.1, J/10, Gobind Colony, Rajpura Town, district Patiala. The primary allegations in this complaint are against respondent No.4 Kuldeep Singh, MHC, PS City Rajpura who at the instance of respondent Nos.5 and 6 i.e. Deepak Kumar and Pooja Sachdeva, the estranged son and daughter-in-law of the complainant, are pressurizing and harassing the complainant and her husband to transfer the property in favour of respondent Nos.5 and 6. Respondent No.4 is constantly visiting the house of the complainant and putting pressure and threatening her and other family members that they should transfer the property in favour of respondent Nos.5 and 6 and in case they refuse to do so, the complainant should be prepared to face dire consequences. Since very serious allegations have been made in the Civil Revision No.3771 of 2010(O&M) [ 4 ] complaint against respondent No.4 i.e, the serving police official, the Commission takes cognizance of the complaint and calls for report from SSP Patiala into the matter. The enquiry be got done from a police official not below the rank of DSP. Before finalizing the report, the statement of the complainant be also recorded. A copy of this order as also of the complaint be sent to the ADGP – IVC-cum-Human Rights Punjab and SSP Patiala for submission of the report on or before the next date of hearing. To come up on 17.12.2009. A copy of this order be sent to the complainant.” Ignoring the cries raised before the Human Rights Commission, the respondent got this sale-deed executed. Had there been any intention of the petitioner to execute the sale-deed, then his wife would not have filed the complaint against the respondent regarding fabrication of the documents. Not only this, the respondent was disowned son, against whom Usha Rani had earlier got recorded a DDR on 22.6.2006 by specifically pleading that the respondent may not implicate them in any false case by joining hands with his wife, but her apprehension proved to be correct when wife of the respondent, actually got lodged the FIR on 26.10.2009 under Section 406 IPC for mis-appropriation of dowry articles without implicating the respondent (her husband). In any case, after the registration of the case against the petitioner, her wife and their daughters under Section 406 IPC, in all human probabilities, the petitioner would not have transferred the suit Civil Revision No.3771 of 2010(O&M) [ 5 ] property in favour of the respondent. The representation given by the petitioner to the Senior Superintendent of Police on 20.11.2009 also indicates that the sale deed was not executed by the petitioner by way of his free-will and consent. In any case, the question with regard to the validity of the sale- deed is sub-judice between the parties and pending adjudication by way of the present suit, but in the application for temporary injunction, the Court is to determine as to who is in actual possession of the suit house i.e. House No.5, Block H/6, Adarsh Colony, Rajpura. In this regard, it may be observed that the petitioner is the father and it is not disputed that he was owning and residing in the house in question. The case of the respondent is that after the sale-deed, the possession of the house was transferred to him and in order to press this contention, the respondent has placed reliance on the recital as recorded in the sale-deed, and no other document. In this regard, it may be observed that the recital in the sale-deed is not sufficient evidence for transfer of actual possession, but it may indicate only symbolical possession; secondly, the sale-deed is in cloud and it is still to be determined if the said sale-deed was ever executed by the petitioner in favour of the respondent; thirdly it has been specifically mentioned in the memo of petition that the petitioner is still the resident of House No.1268, Vikas Nagar, Near NTC School, Ward No.23, Rajpura Town, District Patiala and he was served at the given address, which clearly confirm the possession of the petitioner over the house in dispute. In any case, even if it is considered that the respondent was living in the house, then he being not the owner could be said, at the most a licensee. His possession only Civil Revision No.3771 of 2010(O&M) [ 6 ] through his father, cannot be treated his exclusive possession of the house in question. As regards the other plea that the respondent has been running a coaching centre under the name and style of ““Blue Line Overseas Educational Consultants” and he paid the electric bills of the said house, the document with regard to the payment of bill has not come from the proper custody i.e, Electricity Supply authorities. Secondly, the document with regard to payment of the bill is dated 11.10.2010, whereas, the present suit was filed in 2009, therefore, the said document could, in all probabilities, be procured in order to lend support to the pleas taken by the respondent. As such, the same can hardly be believed. On conspectus of the entire evidence on the record, this Court is of the considered opinion that the question with regard to the validity of the sale-deed is still to be decided in the suit. However, the petitioner has been successful in establishing, prima facie that he is in possession of the house in dispute and is entitled to grant of injunction. As a result, this petition is accepted. The impugned order is set aside to the extent it was passed in favour of the respondent and the respondent is directed not to alienate, transfer, lease, mortgage or dispose of the suit property in any manner and he is also restrained from interfering in the possession of the petitioner, during the pendency of the suit. March 23, 2011 ( A.N.JINDAL ) `gian' JUDGE