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High Court Of Delhi
RANBIR SINGH - Appellant
Versus
ATTAR SINGH - Respondent
First Appeal (OS) 77 of 1996
Decided On : 01/01/1997
INJUNCTION - JOINT PROPERTY - ORDER 39 RULES 1 AND 2, CIVIL PROCEDURE CODE - SUIT FOR PARTITION AND SEPARATE POSSESSION OF PROPERTY - EXECUTION OF WILL - JOINT OWNERSHIP - POSSESSION OF JOINT PROPERTY - AD-INTERIM INJUNCTION - RESTRICTION ON SALE - SUMMARY OF THE ACTS AND SECTIONS REFERENCED AND DISCUSSED BY THE COURT: Order 39 Rules 1 and 2, Civil Procedure Code: Provisions relating to grant of temporary injunctions to prevent the party from doing any act which might render the decree nugatory. KEY LEGAL PROVISIONS, THEIR INTERPRETATIONS, AND HOW THEY INFLUENCED THE COURT'S DECISION: The court interpreted the provisions of Order 39 Rules 1 and 2, CPC, and held that a joint owner of a property can seek an injunction to preserve his possession till partition of the joint property. The court also held that the execution of a Will cannot be made as a ground for dismissing an application for injunction, if the claim made therein based on the Will was abandoned by the parties. The court further held that a co-sharer in exclusive possession of a joint property can seek protection of the Court till partition of the joint property.
Fact of the Case:
The appellants filed a suit for partition and separate possession of a property, alleging that their father died intestate and they are entitled to 1/5th share each in the property. They also filed an application for an ex parte ad-interim injunction to restrain the respondents from disturbing their possession of a portion of the property. The respondents contested the suit and filed an application to vacate the injunction, claiming that the father had executed a Will bequeathing the property to the respondent No. 2.
Finding of the Court:
The court found that the appellants had falsely alleged that their father died intestate, as they had earlier filed a suit claiming inheritance of tenancy rights based on a Will executed by their father. The court also found that the appellants were joint owners of the property along with the respondents and could not seek an injunction against the respondents for restraining them from taking possession of the joint property vacated by a tenant.
Issues: Whether the appellants were entitled to an injunction to restrain the respondents from disturbing their possession of a portion of the property?
Ratio Decidendi: The court held that the appellants were entitled to an injunction to restrain the respondents from disturbing their possession of the portion of the property, as they had made out a case for grant of the ad-interim injunction. The court also held that the interest of the respondents needed to be safeguarded by placing a restriction on sale etc. of the property by the appellants.
Final Decision: The court allowed the appeal, set aside the order vacating the injunction, and granted an injunction restraining the respondents from disturbing the appellant's possession of the portion of the property. The court also restrained the appellants from transferring, encumbering, or parting with possession of the property during the pendency of the suit.
( 1 ) THIS appeal by Ranbir Singh and Smt. Premwati,appellantsplaintiffs is directed against the order dated 30th January, 1996 of a learned Single Judge dismissing I. A. No. 11278/95 and allowing I. A. No. 12426/95.
( 2 ) SUIT for partition and separate possession of property bearing No. 1-114, Kirti Nagar etc. has been filed by the appellants, inter alia, on the allegations that Ch. Than Singh, father of the appellants. Attar Singh, Tej Singh and Smt. Phool Wati, respondents No. 1 to 3, died on 10th June, 1987 intestate. Their mother Smt. Chhanno Devi also expired intestate on 1st July, 1993. Ch. Than Singh left behind, amongst others, said two and a half storeyed house constructed on a plot of land admeasuring 353. 4 sq. yards. Respondents No. 1 and 2 are residing in different portions of the above property. Some of the portions of the property are also in occupation of Praveen Kumar and Bhim Sain Dewan, tenants, respondents No. 5 and 6. Sohan Lal Kochhar was also a tenant in the said property in respect of one drawing-cum-dining, two bed rooms, two bath rooms and kitchen on the first floor in the rear portion on a monthly rent of Rs. 1700. 00 He handed over its vacant possession to appellant No. 1 on 28th October, 1995 besides paying Rs. 32,300. 00 beingarrears of rent from April 1,1994to0ctober31,1995and since the nappellant No. 1 is in actual possession thereof. That portion is shown by letters JKLM in the site plan annexed with the plaint. After the death of the parents appellants and respondents 1 to 3 have become entitled to 1/5 each in the said property by operation of law. It is alleged that respondents 1 and 2 have been collecting rent from respondents No. 5 and 6. They also collected rent from Sohan Lal Kochhar upto 30th March, 1994. But they have not given share of the rent received to any of the appellants. Respondents 1 and 2 are liable to partition said property No. 1-114, Kirti Nagar and also to render accounts of the rents received by them from respondents No. 5 and 6 and also from Sohan Lal Kochhar.
( 3 ) IN the suit I. A. No. 11278/95 under Order 39 Rules I and 2, Civil Procedure Code was also filed and vide order dated 6th November, 1995 exparte ad-interim injunction was issued against respondents 1 to 3 restraining them from disturbing the possession and enjoyment of the portion of the said property shown by letters JKLM in the plan filed alongwith the plaint.
( 4 ) RESPONDENT No. 2 has contested the suit by filing written statement. It is admitted that Ch. Than Singh died on 10th June, 1987 while Smt. Chhanno Devi expired on 1st July, 1993 but it is denied that Ch. Than Singh died intestate, as alleged. It is stated that appellant No. 1 and respondent No. 3 filed Suit No. 201 / 88 - Smt. Phool Wati and Another v. Smt. Chhanno Devi and Ors. against respondents Nos. 1 and 2 and appellant No. 2 for permanent injunction on 7th May, 1988 in the Court of Sh. H. S. Sharma, Sub-Judge, Delhi and that suit was based on a Will allegedly executed by late Ch. Than Singh on 22nd April, 1987. Copy of that Will was never filed in the Court though it was shown to respondent No. 2. As per the said Will entire first floor and the half portion on the ground floor of said property No. 1-114, Kirti Nagar was bequeathed in favour of respondent No. 2. It is admitted that Sohan Lal Kochhar was a tenant in a portion of the said property. However, it is alleged that rent payable by Sohan Lal Kochhar was attached by the MCD w. e. f. 4th October, 1993. It is emphatically denied that Sohan Lal Kochhar vacated the accommodation in his tenancy and handed over vacant possession thereof to appellant No. 1 on 28th October, 1995 besides paying to him Rs. 32,300. 00 - being arrears of rent, as alleged, it is stated that the household articles of Sohan Lal Kochhar are still lying there and a part of the tenanted accommodation is lying locked. It is further pleaded that respondent No. 2 filed a suit being No. 565/95 for perman
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