Order 6

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF MS. POOJA JAIN, DISTRICT JUDGE-03
EAST, KARKARDOOMA COURT COMPLEX, DELHI
368/2024
SUNIL JINDAL VS. REKHA MITTAL
03.10.2024
1. Vide this order I shall dispose off the application under
Order XXXIX Rule 1 and 2 CPC.
2. Ld. Counsel for the plaintiff submits that his application
under Order XXXIX Rule 1 and 2 is pending adjudication.
3. Briefly the facts of this case are that Sh. M. K. Gupta is the
maternal grandfather of the plaintiffs and defendant no. 1 & 2 are the
maternal aunts of the plaintiffs. That the maternal grandfather of the
plaintiffs Sh. M.K. Gupta had expired on 16.04.2010 intestate, leaving
behind the plaintiffs and defendants as legal heir, who was the owner of
the land area measuring 38 sq. yds i.e., 31.77 sq. mtrs., having its
covered area 63.54 sq. mtrs., out of Khasra no.29/33/4, bearing property
no.F-16, consisting with four shops on ground floor and residential three
room set on first floor, situated in the area of village Khureji Khas, in the
abadi of Parwana Road, Jagatpuri, illaqa Shahdara, Delhi-110051,
(hereinafter referred as ‘suit property’). During the lifetime of their
maternal grandmother, the suit property was in the possession of tenants
till her death. After her last rites & rituals, defendants illegally,
unlawfully and forcibly occupied and trespassed in the suit property and
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also fetching the rental income of Rs.80,000/- from the tenants. Legal
notice sent by the plaintiff no. 1 to the defendants and plaintiffs no. 2 to
5, upon which husband of defendant no. 1 communicated that the
maternal grandmother of the plaintiffs already transferred the suit
property in the name of defendants. It is further alleged by the plaintiffs
that the defendants executed a forged & fabricated Sale Deed dated
12.03.2021 registered on 15.03.2021 vide registration no. 1783 in Book
No.1, Vol. No.2046 pages 182 to 191 in the office of Sub-Registrar on
the basis of forged GPA dt. 28.07.1984 and GPA dt. 08.05.1989, only to
grab share of plaintiffs.
4. It is further submitted that there is an apprehension that
defendants may create any third party interest in the suit property. It is
further submitted that if interim injunction is not granted to the plaintiff,
the plaintiff shall suffer an irreparable loss and injury, which cannot be
compensated in any manner.
5. Reply to the application under Order XXXIX Rule 1 and 2
CPC also filed alongwith their joint WS on behalf of the defendant no. 1
& 2. Brief facts as stated in the WS are that the suit property as
mentioned in the plaint is not a single property but these are two different
properties measuring 23 sq. yds. owned by late Sh. M.K. Gupta and 15
sq. yds. owned by late Smt. Kailash Wati (wife of late Sh. M.K.Gupta). It
is further submitted that late Smt. Kailash Wati purchased part of
property measuring 23 sq. yds. on 28.07.1984 vide regd. Receipt and
notarized GPA and Agreement to sell from her husband; that late Smt.
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Kailash Wati being the owner sold the suit property to the defendants
vide sale deed dt. 12.03.2021. It is further submitted that the plaintiffs
have explained the distorted facts and defendants are in possession of the
suit property since 12.03.2021; that the defendants are the bonafide
purchasers of the suit property vide sale deed dated 12.03.2021 vide Reg.
No.1783, Book No.1, Vol. No.2046. Hence, the plaintiffs have no right
to the suit property. It is further submitted in reply to the present
application that plaintiffs have failed to establish a prima facie case in
their favour and suppressed and concealed the real facts from the court. It
is further submitted that plaintiffs are not going to suffer any irreparable
loss rather they themselves have committed wrong with the defendant
No.1. It is further submitted that averments made by plaintiff are wrong,
false and baseless hence prayed for dismissal of present application.
6. Arguments heard. Record perused and considered.
7. Before delving into the facts of present case, it is relevant to
reproduce the provision of Order XXXIX Rule 1 and 2 of CPC for quick
reference:-
1. Cases in which temporary injunction may
be granted:-
(a) That any property in dispute in a suit is in
danger of being wasted, damaged or alienated by any
party to the suit, or wrongfully sold in execution of a
decree, or
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(b) that the defendant threatens, or intends, to
remove or dispose of his property with a view to his
creditors,
(c) that the defendant threatens to dispossess, the
plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the the court may
by order grant a temporary injunction to restrain such
act, or make, such other order for the purpose of
staying and preventing the wasting, damaging
alienation, sale removal or disposition of the
property(or dispossession of the plaintiff, or otherwise
causing injury to the plaintiff in relation to any
property in dispute in the suit) as the Court thinks fit,
until the disposal of the suit or until further orders.
2. Injunction to restrain repetition or continuance
of breach:-
(1) In any suit for restraining the defendant from
committing a breach of contract or other injury of any
kind, whether compensation is claimed in the suit or
not, the plaintiff may, at any time after the
commencement of the suit, and either before or after
judgment, apply to the Court for a temporary
injunction to restrain the defendant from committing
the breach of contract or injury complained, of or any
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breach of contract or injury of a like kind arising out of
the same contract or relating to the same property or
right.
(2). The court may by order grant such injunction,
on such terms as to the duration of the injunction,
keeping an account, giving security, or otherwise as the
Court thinks fit
8. The present suit has been filed by plaintiffs for declaration,
partition, possession and permanent injunction and damages with respect
to 1/3rd share of property bearing no.F-16, consisting with four shops on
ground floor and residential three room set on first floor, situated in the
area of village Khureji Khas, in the abadi of Parwana Road, Jagatpuri,
illaqa Shahdara, Delhi-110051
9. The relations between the parties is not disputed. Admittedly
the above said properties initially belonged to deceased grandparents of
plaintiffs and parents of defendants. However, the defendants are
claiming themselves to be the owner on the basis of sale deed dt.
12.03.2021 executed by their deceased mother Smt. Kailash Wati as the
general attorney of Sh. M.K.Gupta ( deceased father of defendants) and
as the general attorney of Shri Shyam Lal Gautam. The said sale deed is
under challenge in the present suit. Ld. Counsel for plaintiffs drew the
attention of this court to the internal page no.4 of the said sale deed
wherein it is mentioned that “all the previous attorneys are alive and not
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revoke and in working manner till today”. He further drew the attention
of this court to the death certificate of deceased father of defendants/Sh.
M.K. Gupta whereby it is clear that his date of death was 16 April 2010.
In such circumstances it is impossible to say that he was alive at the time
of execution of sale deed dated 12 March 2021. The question “whether
the sale deed dt. 12 March 2021 or any other document relied upon by
the defendants are forged?” Or “whether the plaintiffs are entitled for
their share in the suit property?” would be determined at its appropriate
stage.
10. Perusal of pleadings shows that the plaintiffs being one of
legal heir of deceased sister of defendants and claiming themselves to be
co-sharers in suit property. There is no defence taken by defendant that
the suit property did not belong to deceased parents initially. Rather they
are claiming to have derived title from deceased mother. The only
defence taken by defendants is execution of sale deed by deceased
mother in their favour which was also challenged by plaintiffs in the
present suit. The plaintiff has been able to show prima facie case in their
favour and so balance of convenience also goes in their favour. If, the
present application is not allowed, the plaintiffs shall cause irreparable
injury, in case the defendants dispose the suit property during the
pendency of present suit.
11. In view of the above observation, after considering the
submissions made by the parties as well as the facts as mentioned in the
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application, the application under Order XXXIX Rule 1 and 2 CPC filed
on behalf plaintiffs is hereby allowed with the following directions:-
The defendants shall not create any third party interest in the
suit property i.e. property bearing no.F-16, consisting with four shops on
ground floor and residential three room set on first floor, situated in
thearea of village Khureji Khas, in the abadi of Parwana Road, Jagatpuri,
illaqa Shahdara, Delhi-110051 till the disposal of present suit.
12. Accordingly the application under Order XXXIX Rule 1 and
2 CPC stands disposed off.
Pronounced in the open Court ( Pooja Jain)
on 03.10.2024 District Judge-03,
Court No.206, N/B, East District,
Karkardooma Courts, Delhi
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