The validity of a registered gift deed remains intact until challenged; possession claims must be supported by substantial evidence rather than mere assertions.

JUDGMENT

Sanjeev Sachdeva, J. The Petitioners in CM(M) 474/2021 and Appellants in FAO 114/2021 (Defendants 1 and 2 in the Suit) are aggrieved by order dated 22.02.2021 (impugned in FAO 114/2021) whereby the application filed by Respondents 1 to 3 (Plaintiffs in the Suit) under Order 39 Rule 1 & 2 Code of Civil Procedure (hereinafter referred to as the CPC) has been allowed and the Appellants have been restrained from creating any third party right and interest in the suit property and status quo qua the possession of the Respondents 1 to 3 has been directed to be maintained.

2. Appellants are also aggrieved by order dated 19.07.2021 (impugned in CM(M) 474/2021) whereby the application filed by the Appellants under Section 151 CPC for restitution of possession has been disposed of and the trial court has held that the property is deemed to be in the custody of the court.

3. Appellants (Defendants 1 and 2 in the Suit) are the wife and son of Late Shri Subhash Tyagi. Subhash Tyagi was the brother of Shri Ravinder Tyagi, the Respondent No. 4 (Defendant No. 3). Respondents no. 1 to 3 (Plaintiffs in the Suit) are the children and wife respectively of Respondent No. 4 - Ravinder Tyagi.

4. On 04.01.2021, Respondents 1 to 3 (Children and wife of Ravinder Tyagi) filed the subject Suit seeking a decree of declaration for declaring the registered gift deed dated 14.08.2014 (registered on 16.08.2014) as null and void. They also seek a decree of partition of the suit property; decree of recovery of possession against the Appellants herein and a decree of permanent injunction thereby restraining the Appellants from alienating, transferring and creating any third-party interest over the suit property. Further, relief of mandatory injunction is also sought thereby directing the Appellants to restore the physical possession of the Suit property to them till disposal of the Suit.

5. By order dated 22.02.2021, (impugned in FAO 114/2021), the Trial Court has allowed the application filed by Respondents 1 to 3 under Order 39 Rule 1 & 2 CPC holding that a prima facie case is made out in their favour that they are in possession and if during the trial the nature of property is changed it would involve multiplicity of litigation and irreparable loss and injury would be caused to them. The Trial Court has further held that as they are in possession it would be in the interest of the Defendants that no third party right or interest is created and status quo with respect to possession of the Plaintiffs be maintained.

6. The contention of the Appellants is that the Plaintiffs were admittedly never in possession of the Suit Property and it was the Appellants who were in possession and it was only during the pendency of the Suit that they have forcibly taken possession.

7. Appellants are further aggrieved by order dated 19.07.2021 (impugned in CM(M) 474/2021) whereby the application filed by the Appellants under section 151 CPC for restitution of possession has been disposed of and the trial court has held that the property is deemed to be in the custody of the court.

8. Trial Court prior to passing the impugned order dated 22.02.2021 appointed local commissioner twice to inspect the property. The Trial court has held that when the first local commissioner visited the property no one was found in possession and the property was found locked and when the second local commissioner visited the property on 18.01.2021, Plaintiffs were found in possession.

9. In the impugned order dated 19.07.2021, whereby the application of the Appellants seeking restitution of possession was dismissed, the trial court has held that the said court had not passed any order qua possession and the Plaintiffs had not taken possession at the instance of the court and thus it could not direct restitution under Section 144 CPC.

10. Trial Court has further held that when, as per the Plaintiffs they were not in possession at the time of filing of the Suit and Appellants