Prima facie possession of property, legal principles of co-ownership and possession, admissibility of documents in establishing possession

JAYANT NATH, J.

1. The present petition is filed under Article 227 of the Constitution of India seeking to impugn the order dated 18.7.2013 passed by the appellate court dismissing the appeal filed by the petitioners challenging the stay order passed by the trial court.

2. The respondent filed a suit for permanent and mandatory injunction to restrain the petitioners from selling, mortgaging, alienating or creating any third party interest in the suit property being Flat No.M-162, Azad CGHS Limited, IP Extension, Delhi. Alongwith the suit the respondent filed an application under Order 39 Rules 1 and 2 CPC.

3. The trial court by its order dated 3.5.2011 restrained the petitioners from forcibly dispossessing the respondent from the suit property and from selling, mortgaging, alienating or creating third party interest in the property. The trial court noted that the respondent is the son of petitioner No.2 and the brother of petitioner No.1.Petitioner No.2 the father was allotted the flat. It was noted that the respondent and petitioner No.1 purchased the flat from the father by registered agreement to sell dated 4.8.2010 and other relevant documents for a sale consideration of Rs.9,15,000/-. The trial court noted various documents produced by the respondent and came to a prima facie conclusion that the respondent is in possession of the suit property. Accordingly, the injunction order was passed.

4. The petitioner thereafter filed an appeal before the appellate court. The appellate court vide impugned order dated 18.7.2013 noted that there is no infirmity in the order of the trial court and dismissed the appeal.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner strenuously urges that even as per the case of the respondent petitioner No.1 his brother is a co-owner of the property. He relies upon judgment of the Nagpur Bench of the Bombay High Court in Prakash S. Akotkar and others vs. Mansoorkha Gulabkha and others, AIR 1996 Bombay 36 to contend that there could be no injunction passed by the court in favour of a co-owner against another co-owner of the same property. He strenuously urges that the petitioner is in possession of the suit property and the impugned order has wrongly come to a conclusion. Learned counsel relied upon a communication dated 25.5.2011 allegedly addressed to the Office of Sub Registrar by the respondent where the said respondent states that the petitioner No.2 Shri Anis-Ur-Rehman did not hand over possession of the entire flat to him after the sale and insisted that the tenant should be given time to relocate. He also relies upon letter dated 18.4.2011 allegedly written to the Secretary of the Housing Society whereby he had withdrawn the NOC submitted with the society. It was strenuously urged that the petitioner No.2 is the father and had only given the property to his son to reside and the son has misused the said privilege.

7. I will first deal with the issue of the prima facie findings recorded by the trial court that the respondent is in possession of the suit property. A perusal of the said order dated 3.5.2011 of the trial court would show that the trial court has relied upon the documents furnished by the parties. It noted that the petitioners have furnished only some photographs and a set of sale documents. No documents regarding the possession has been furnished. On the other hand, the respondent has produced several documents showing the possession of the suit property such as cylinder delivery receipt, customer enrollment form of Airtel for installation of broadband connection and various documents received by the respondent through courier which bear the address of the respondent of the suit property. Based on this and taking into account that no document has been produced by the petitioner the trial court concluded that prima facie the respondent is in possession of the suit property.

8. Learned counsel for the respondent has also pointed out to paragra