Important Point – Once plaintiff is not in possession there do not arise issue of grant of injunction to such a plaintiff from being dispossessed.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 26262/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

RSA No. 191/2017

1. By this Regular Second Appeal filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) the defendant in the suit impugns the concurrent judgments of the courts below; of the trial court dated 26.10.2012 and the first appellate court dated 27.2.2017; whereby the suit of the respondents/plaintiffs for injunction has been partly decreed and the appellant/defendant has been restrained from selling, alienating or creating third party interest in the first floor of the suit property. Rights were claimed by the respondents/plaintiffs in both first and second floors. The number of the suit property as per the plaint is the property 7503-7506, Kasabpura, Sadar Bazar, Delhi. The disputed portion is shown in red colour in the site plan. Respondents/plaintiffs claimed ownership of the suit property in terms of a registered Gift Deed dated 11.6.1973 executed by the erstwhile owner Mohd. Yasin in favour of the predecessor-in-interest of the respondents/plaintiffs Mohd. Ismail. Mohd. Ismail was the father of the respondents/plaintiffs. The gift deed was proved before the trial court as Ex.PW1/2. In terms of the gift deed the respondents/plaintiffs claim to have become the owner of the disputed portion comprising of the first floor and the second floor of the suit property and therefore claimed injunction against the appellant/defendant from selling, alienating, etc. the suit property and which was in possession of the appellant/defendant.

2. The appellant/defendant contested the suit and denied the execution of the gift deed by Mohd. Yasin in favour of Mohd. Ismail. Appellant/defendant pleaded that it was the appellant/defendant who was the sole owner of the entire property No.7503-7506 Kasabpura, Sadar Bazar, Delhi. Appellant/defendant claimed to have become owner of the suit property on account of a bequest by an oral gift deed of half portion (west side portion) of the complete property in her favour. Appellant/defendant also claimed that late Mohd. Yasin bequeathed the other half portion (east side portion) of the subject property to the appellant/defendant by virtue of a duly registered Will dated 15.9.1976.

3. Before the trial court the respondents/plaintiffs proved the Gift Deed dated 11.6.1973 and which was exhibited as Ex.PW1/2 in terms of the statement of the attesting witness to the gift deed, Mohd. Shafi who deposed as PW-2. Appellant/defendant though had relied upon the Will said to have been executed by Mohd. Yasin, however, the trial court held that the said Will dated 15.9.1976 relied upon by the appellant/defendant is held not to be proved because the appellant/defendant did not summon any attesting witness to the Will. At least one attesting witness is required to prove the Will in view of Section 68 of the Indian Evidence Act, 1872. Trial court, however, instead of decreeing the suit with respect to the entire red colour portion in the site plan which comprised of the first floor and the second floor of the suit property, decreed the suit for injunction only with respect to the first floor portion inasmuch as the gift deed Ex.PW1/2 as per the finding of the trial court pertained only to the first floor portion and not the second floor portion. Suit was dismissed so far as the relief of injunction was claimed with respect to the second floor portion shown in the site plan filed with the plaint.

4. I do not find any illegality whatsoever in the concurrent judgments of the courts below, and no substantial question of law arises, inasmuch as, the respondents/plaintiffs proved the registered gift deed executed by Mohd. Yasin in favour of their predecessor/father Mohd. Ismail and the appellant/defendant failed to prove the Will allegedly executed in her favour dated 15.9.1976 by late Mohd. Yasin. No substantial question of law arises and, in fact, th