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2017 Supreme(Del) 1566
IN THE HIGH COURT OF DELHI AT NEW DELHI
VALMIKI J. MEHTA, J.
SANDEEP RATHI AND ORS. – APPELLANTS
Versus
JAI PRAKASH RATHI – RESPONDENT
RSA No. 345 of 2016
Decided On : 19-05-2017
For the Appellant : Mr. Achal Gupta, Dr. Deepa, Ms. Annie Rais, Ms. Gurmeet Kaur Kapoor
For the Respondents: Mr. Sunil Chauhan
Important Point – User is different than physical possession when property is an open piece of land.
Headnote:Civil Procedure Code, 1908 – Order 39 Rules 1 and 2 – Specific Relief Act, 1963 – Section 31 – Injunction – Mutation does not confer title because title is conferred by a registered sale deed – Possession has to be a legal possession otherwise with respect to an open land which is bounded by a boundary wall without a gate, possession has to necessarily follow title – Court cannot permit owners of suit land to be deprived of possession simply on the basis of parking of some vehicles on suit land – User is different than physical possession when property is an open piece of land – Appeal dismissed.
(B) Civil Procedure Code, 1908 – Section 100 – Second appeal under Section 100 CPC lies only if there arises a substantial question of law – It is within realm of jurisdiction of trial court and first appellate court to arrive at findings and conclusions and such findings of facts and conclusions cannot be interfered with by High Court unless same are grossly perverse or grossly illegal.
VALMIKI J. MEHTA, J.
RSA No. 345/2016 and C.M. Appl. No. 42829/2016 (for stay)
1. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the defendants in the suit, impugning the judgment of the First Appellate Court dated 16.8.2016. The trial court by its judgment dated 6.10.2015 had dismissed the suit for injunction filed by the respondent/plaintiff against the appellants/defendants for not interfering in the possession of the respondent/plaintiff with respect to suit land being 1/8th share in khasra nos. 68, 69 and 70, Revenue Estate of Village Rajpur Khurd, New Delhi. The first appellate court setting aside the judgment and decree of the trial court dated 6.10.2015 has decreed the suit of the respondent/plaintiff and injuncted the appellants/ defendants from interfering in the peaceful possession of the suit property shown in red color in the site plan.
2. The facts of the case are that a total of eight brothers were co-owners to the extent of 1/8th share each in the total land of 11 bighas 17 biswas contained in khasra nos. 68, 69 and 70 of the Revenue Estate of Village Rajpur Khurd, New Delhi. This property owned by the eight brothers was joint ancestral property and which was inherited by the brothers from their father Sh. Layak Ram. In the year 1995, the entire land of 11 bighas and 17 biswas was said to be sold to M/s. JCT Limited through an attorney of the brothers, one Sh. Rathinder Nath Dass. None of the eight brothers questioned the execution of the sale deed in favor of M/s. JCT Limited till the subject suit was filed by the respondent/plaintiff on 31.1.2011, except the respondent/plaintiff Sh. Jai Prakash Rathi and another brother Sh. Joginder Singh who challenged the sale deed to M/s. JCT Limited pleading that Sh. Rathinder Nath Dass was not their attorney holder. Whereas the suit of Sh. Joginder Singh against M/s. JCT Limited was compromised with Sh. Joginder Singh retaining about 600 sq. yards of land against payment of certain consideration to M/s. JCT Limited, the suit which was filed by the respondent/plaintiff in the year 1996 itself against M/s. JCT Limited is still pending disposal before the civil court being then the Court of Sh. N.K. Malhotra, ASJ, North being suit no. 290/06/03. The subject suit was filed by the respondent/plaintiff pleading that the appellants/defendants being successors of one brother Sh. Suraj Bhan were trying to illegally interfere with the possession of the respondent/plaintiff for his 1/8th share of the suit land and which land was the 1/8th share of land falling to the share of respondent/plaintiff and which was never sold by the respondent/plaintiff to M/s. JCT Limited and that the respondent/plaintiff had continued to be in possession of his 1/8th share, and Sh. Suraj Bhan had already sold his share to M/s. JCT Limited. The subject suit was therefore filed seeking the relief of injunction against the appellants/defendants from in any manner interfering with the peaceful possession of the respondent/plaintiff of the suit land and in any manner forcibly dispossessing the respondent/plaintiff from khasra no. 70 and which was one of the khasra of total original land of 11 bighas 17 biswas comprised in khasra nos. 68, 69 and 70.
3. Appellants/defendants contested the suit and pleaded that the respondent/plaintiff was not in exclusive possession of the suit land and that they were co-owners of the suit land. It was also pleaded by the appellants/defendants that they had been parking their buses in the suit land as they were running a transportation business. Appellants/defendants also stated that the suit land only had a boundary wall but no gate. Accordingly appellants/defendants prayed for dismissal of the suit on both the grounds that they were co-owners of the suit land being the successors-in-interest of one brother Sh. Suraj Bhan and also that the respondent/plaintiff was not in the exclusive possession of the suit land.
4.
