Rajeev Tanwar vs Raghuvinder Singh and Others

Madan B. Lokur, J.—The Appellant has filed a suit before the learned Additional District Judge for a declaration, possession and permanent injunction against the Respondents in respect of portions marked B and C of property bearing No.478/479, Naraina Village, New Delhi in the suit, the Appellant filed an interim application under Order 39 Rules 1 and 2 of the CPC praying for an ad interim injunction restraining the Respondents from selling, alienating, transferring or creating any third party interest in favor of any other person in respect of portions marked B and C of the suit property till the final disposal of the suit.

The case of the Appellant is based on several documents viz. a general power of attorney, an affidavit, an agreement to sell and a receipt for a sum of Rs.40,000.00 whereby Respondent No.1 transferred portions marked A, B and C of the aforesaid property, in favor of the Appellant. These documents are said to have been executed on 28th February 1992. The Appellant claims to have had the disputed portions marked B and C mutated in his name by the concerned authorities on 21st May 1998 and has thereafter been paying the property tax in respect thereof.

According to the Appellant he was in possession of the disputed property, which he had given out on rent, and his tenants were regularly paying rent to him against rent receipts. The Appellant says that sometime in June 1999 his tenants were forcibly and unlawfully dispossessed from the portions marked B and C by the Respondents. The Appellant had lodged a complaint with the police against the Respondents, but to no effect.

The Appellant had earlier filed Suit No.288 of 1999 in the Court of the learned Additional District Judge but he withdrew it with liberty to file another suit. In his written statement filed in that suit, Respondent No.1 stated that he had transferred the disputed portions B and C to Respondent No.2 by a sale deed dated 30th October 1998. According to the Appellant, the documents executed by Respondent No.1 in favor of Respondent No.2 are illegal because Respondent No.1 has no right, title on interest over the disputed portions marked B and C. The apprehension of the Appellant was that these Respondents would sell, transfer, alienating or create third party interests in the disputed portion of the suit property, hence the application for an ad-interim injunction.

The Respondents filed their written statements, denying the allegations made by the Appellant. It was also stated in the written statement that the documents executed on 28th February 1992 have no legal consequence or effect. Respondent No.2 is in lawful physical possession of the portions marked B and C as the owner. The mere fact that the Appellant is paying property tax in respect of the disputed portions does not confer any right, title on interest in his favor in respect of the disputed portion of the property.

On a prima facie consideration of the facts of the case, the learned Additional District Judge was of the view that the case of the Appellant is merely based on an agreement to sell while that of Respondents 1 and 2 is based on the sale deed dated 30th October 1998, the existence of which is acknowledged by the Appellant who, however, has prayed that the sale deed be declared null and void. The learned Additional District Judge was of the view that under the circumstances, no injunction could be granted against the owner of the disputed portions of the suit property. Accordingly by the impugned order dated 14th August 2001 the application for an interim injunction was dismissed.

Learned counsel for the Appellant has contended before me that the learned Additional District Judge was in error in mentioning in the last paragraph of the impugned order that Respondent No.9 is the title-holder of the suit property. It is contended that this was never his submission and that there was complete non-application of mind by the learned Additional District Judge in recording that Respondent No.9 was the title-holder of the suit property.

It appears to me that the learned Additional District Judge committed a bona fide error in recording the above, as he did. The error appears to have been occasioned by the fact that Respondent No.2 was actually Defendant No.9 in the earlier suit filed by the Appellant being Suit No.288 of 1999. In any case, such a minor discrepancy is not sufficient to set aside the impugned order, which is otherwise sound in law.

In any event, the rights of the Appellant are quite well protected in as much as if the Respondents act to the detriment of the Appellant, they will be doing so entirely at their own risk in view of the applicability of the doctrine of lis pendens.

The Appellant has made out no ground for interference with the impugned order. The appeal is accordingly dismissed but with no order as to costs. January 15, 2004.