Smt. Meena Pimpalapure vs Madhukar Rao Pimpalapure

Manmohan Singh, J.—By this order I shall dispose of I.A. No. 6755/2008 filed by the plaintiff under Order XXXIX Rule 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908 for ad interim injunction restraining the defendant, his employees, agents and anyone on behalf/claiming under him from selling, alienating, transferring or creating any third party interest in property ''Madhusudan'' at 5-A, Metcalf Road, Civil Lines, Delhi - 110006 (hereinafter referred to as the ''suit property'') till final disposal of the suit.

The present suit has been filed by the plaintiff for perpetual injunction restraining the defendant and/or anyone on his behalf/claiming under him from alienating, transferring or creating any third party rights in the suit property qua the share of the plaintiff. Brief facts of the case are that the plot of the suit property was bought by the father-in-law of the plaintiff in the name of the defendant vide a registered sale deed and a two storey building was created thereon. Vide a gift deed duly registered on 27 November, 1974 with the Sub-Regsitrar, Delhi as document No. 4631, Additional Book No. I, Vol. 3165 on pages 74 to 79, the defendant gifted absolutely and irrevocably all his rights in the first and second floor of the suit property to the plaintiff. The defendant�s brother, husband of the plaintiff, shared a good relationship with each other and carried out business together.

In 1996, the plaintiffs husband and the defendant segregated their respective business. On 5 February, 2003 the plaintiffs husband suddenly expired and the plaintiff asked her daughter and son-in-law to shift to the suit property with her and help her in taking care of the business left behind by her husband. However, the defendant started pressurising the plaintiff to part with her share of the suit property and soon, the plaintiff started receiving enquiries regarding sale of the suit property. On 21 May, 2008 the son-in-law of the plaintiff was approached by one Mr. Pravin Goel who identified himself as a real estate agent and enquired as to the sale of the suit property. He revealed that the defendant had been representing himself as the owner of the entire suit property. The plaintiff, apprehending that the defendant would sell/create third party interest over her portion of the suit property, filed the present suit.

In the application under consideration, the plaintiff has submitted that it has recently come to her knowledge that the defendant is selling all his assets in India, including the plaintiff''s share in the suit property, and shifting abroad. The plaintiff has also been receiving various queries about the sale of the suit property, all based upon the misrepresentation that the defendant is the sole owner thereof. The family of the defendant residing in Madhya Pradesh has also started visiting the suit property very frequently and the defendant has started repairs on the ground floor thereof, confirming the plaintiff''s fears of the defendant�s intentions.

By order dated 28 May, 2008 this Court directed the parties to maintain status quo in respect of their respective title and possession of the suit property till further orders. On the hearing on 13 February, 2009 learned Counsel for the defendant stated that he would not file reply to the present application and that the written statement be read as his reply to the same.

As per the defendant, the entire facts as narrated by the plaintiff are concocted and false. At the outset, the defendant has submitted that the suit property had been bought by him with his own funds in his own name and neither his father nor anyone else has contributed in the same. Further, the entire construction on the said plot was also done by the defendant with his own funds. The execution of the gift deed dated 21 August, 1974 is not denied but it is submitted that though two floors were gifted to the plaintiff, no share in land was given along with the same or in any other way. In fact, it has been submitted that in CS (OS) No. 431/2004 (transferred to the district court due to change in pecuniary jurisdiction of this Court) filed by the defendant against the plaintiff for perpetual injunction, the plaintiff has categorically admitted that she has no land rights in the land beneath the structure of the suit property. The said suit was filed by the defendant as the plaintiff was allegedly illegally raising construction on the first and second floors of the suit property. The said suit is sub-judice.

The defendant has averred that the plaintiffs son-in-law''s alleged encounter with the alleged real estate agent Mr. Pravin Goel has been narrated in the plaint as well as the in the present application with a view to provide credence and content to the false story of intended sale of the suit property as no such intention of the defendant exists. Further, the plaintiff has time and again stated that she is the owner of the first and second floors of the suit property, however, while praying for injunction she has prayed for restraining the defendant as regards the entire property. The defendant has respectfully submitted that he does not intend to sell the suit property. Without prejudice to this submission he has contended that as he is the owner of the ground floor along with the entire land underneath, the plaintiff has no business of restraining him from dealing with the same in whatever way he chooses. In addition, the act of the plaintiff of obtaining the status quo order as regards the suit property has been labelled mischievous and mala fide.

I have perused the contentions of both parties. Para 3 of the pliant in the suit being CS (OS) No. 431/2004 instituted by the present defendant against the present plaintiff states that the present defendant is the absolute owner of the ground floor and of the entire land underneath the suit property after execution of the gift deed. In the written statement in that case, the present plaintiff (defendant therein) has not denied the said statement specifically, in fact the said para has not been denied at all. It has simply been stated that "the contents of paragraph 3 call for no reply." However, if one was to look at para 2 of the written statement, the defendant therein has categorically stated that she is the owner of 2/3rd share in the undivided land of the suit property.

A perusal of the gift deed shows that land rights have not been mentioned anywhere. Specifically, para 3 of the said gift deed states as under:

That the Donee shall have all rights of passage and easement appurtenant to the property gifted and shall have full rights of construction over the property gifted. This gift is irrevocable.

Counsel for the plaintiff has referred to Jai Narain Parasrampuria (Dead) and Others Vs. Pushpa Devi Saraf and Others, wherein in para 72, the court has made the following observation:

Furthermore, it is now settled that the building includes the land on which it stands, unless by express stipulation it is excluded.

In T. Lakshmipathi and Others Vs. P. Nithyananda Reddy and Others, it has been noted that a lease of a house or of a shop is a lease not only of the superstructure but also of its site.

The scope of the present application is limited to the extent of the plaintiff''s apprehension that the defendant will dispose of the entire suit property. However, the defendant has stated that he has no intention of selling the suit property as has already been stated in para 7 of this order.

Having considered the submissions of learned Counsel for the parties and the legal aspect of the matter and without going into the controversy in the matters pending between the parties, the present application is disposed of with the direction that the order dated 28th May, 2009 is modified to the extent that till the disposal of the suit, the defendant is restrained from selling, alienating, transferring, parting with possession or creating any third party right or interest in the property known as ''Madhusudan'' at 5-A, Metcalf Road, Civil Lines, Delhi-110006 qua the plaintiff�s share mentioned in the gift deed dated 21st August, 1974. The other disputes raised by the parties shall be decided at the appropriate time of trial.

List this matter before the Joint Registrar on 22nd January, 2010 for cross-examination of the plaintiffs witnesses.