Order 7

Order Details: COPY OF ORDER
Pdf Text: 23 CS 117/21
SIKANDAR ALI Vs. RIYAZUDDIN ANSARI
27.02.2024
Present : Sh. Ankur Gupta, Counsel for the plaintiff.
Sh. Ankit Aggarwal, Counsel for the defendant.
Arguments on application under Order XXXIX Rule 1 & 2 of CPC
heard.
Brief facts of the case are that: Plaintiff no.1 (husband) and plaintiff
no.2(wife) are the joint owners of property bearing no.35 & 36, area measuring 100
sq. yards out of khasra no.350, situated in the revenue Estate of Village Nasirpur,
Abadi known as West Sagarpur, Delhi, which is built upto second floor. Initially the
above said property was purchased by plaintiff no.1 on the basis of GPA, Agreement,
Affidavit, Will, Receipt etc. all dated 09.06.1993. It is submitted that plaintiffs had
allowed the defendant along with his family to reside at first floor (hereinafter
referred as the "suit property"). Thereafter, plaintiff no.1 had sold 75 sq. yards
undivided portion in the above said property to plaintiff no.2 on the basis of
registered Sale Deed. Thereafter, the suit property was numbered as RZ-35/350,
Jagdamba Vihar, West Sagarpur, Distt. South West, New Delhi.
In the month of January, 2020, plaintiffs requested the defendant to
vacate and hand over the peaceful and vacant possession of the suit property but
defendant sought 6-8 months time. In the month of December, 2020, the defendant
started claiming that he is also having his half share in the suit property and
threatened to create third party interest. Hence, the present suit has been filed.
Cont...2
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Defendant has contested the suit by way of filing the written statement,
wherein, he has denied the averments made in the plaint. He raised the objections that
suit is time barred and same is liable to be dismissed as the same has become
infructuous because, it is an admitted fact that defendant and his family members are
in adverse possession of the suit property for more than 12 years. He has denied the
ownership of the plaintiffs. He has contended that property bearing no.RZ-36
measuring 100 sq. yards is owned and possessed by some other person and other
people have been residing on the said property. He has also raised objection, the
present suit is liable to be dismissed on the ground of non joinder of necessary party.
He has also propounded a plea that the property was purchased jointly by plaintiff
no.1, defendant and brother of defendant namely Imtiyaz Ali from its previous owner
namely Suwa Ali Ansar S/o Sh. Abdul Ansari, on 12.05.1993, whereafter, the
defendant had transferred his share to his wife Smt. Noor Jahan. The said transfer was
the verbal gift. As such the suit is liable to be dismissed for non joinder of Noor
Jahan. Additionally it was contended that property was purchased by the brothers
themselves and Plaintiff no.2 had no legal right in the suit.
Needless to state that the application U/o 39 Rule 1 & 2 IPC has to be
disposed of on the trinity of principles i.e. Prima facie case, balance of convenience
and irreparable loss and injury.
Now coming to the present application. By means of the application,
plaintiff has sought directions that defendant may be restrained from selling,
transferring, disposing off or creating any third party interest in the suit property i.e.
Cont....3
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first floor of property bearing no.RZ-35/350, Jagdamba Vihar, West Sagarpur, Distt.
South West, New Delhi.
The version of the defendant that they had jointly purchased the
property i.e. the brothers from the previous owner has to be tested during the course
of the trial. Plaintiffs have claimed that they have purchased the suit property on the
basis of GPA, Agreement, Affidavit, Will, receipt etc. all dated 09.06.1993. To that
extent there are documents also to support the stand of the plaintiff. The legality and
validity of those documents obviously would be subject matter of trial but at this
juncture, plaintiff at least a prima facie case as his case is based on documents.
Now, the corpus of the suit property has to be preserved this being the
suit for possession. The other two ingredients i.e. balance of convenience and
irreparable loss and injury also lies in favour of the plaintiffs as in the event if the
defendant fritters or part with possession of the property by creating any third party
interest in the same the purpose of filing of the suit shall be frustrated and the
plaintiffs shall suffer irreparable loss and injury, which cannot be compensated in
monetary terms.
As such the application U/o 39 Rule 1 and 2 CPC is allowed thereby
restraining the defendant to sell, transfer or create any third party interest in the suit
property
Ordered accordingly. Application stands disposed of accordingly.
Pleadings are otherwise complete.
Cont....4
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On the pleadings of the parties, following issues are
framed :-
1. Whether the plaintiff is entitled to a decree of possession,
as prayed for ? OPP
2. Whether the plaintiff is entitled to a decree of permanent
injunction to restrain defendant for taking possession of
first floor of property bearing no.RZ-35/350, Jagdamba
Vihar, West Sagarpur, Distt. South West, New Delhi ? OPP
3. Whether the plaintiff is entitled to a decree of Rs. 15000/-
per month on account of damages/mesne profit, as prayed
for ? OPP
4. Whether the present suit is liable to be dismissed on
account of non joinder of necessary party ? OPD
5. Whether the present suit is liable to be dismissed for the
reason as stated in para no.2 of preliminary objections in
the written statement ? OPD
6. Whether there is no cause of action against the
defendant to file the suit ? OPD
7. Relief.
No other issue arises or being pressed. Parties are directed to file their
respective lists of witnesses within 15 days. Plaintiff is also directed to supply the
advance copy of affidavit of his evidence or his witnesses, if any to the defendant
prior 07 days of the next date of hearing.
Put up on 13.08.2024 for PE.
(Sumit Dass)
ADJ-02 & Waqf Tribunal
NDD/PHC/ND/27.02.2024
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