Order 8

Order Details: COPY OF ORDER
Pdf Text: Date of Order: 10.08.2023
IN THE COURT OF SH. SUDHANSHU KAUSHIK, ADJ-2/WAQF
TRIBUNAL : PATIALA HOUSE COURT : NEW DELHI
1. Civil Suit No.196/21
NEMI KUMAR GOYAL & ANR. Vs. NEELAM TANWAR & ANR.
2. Civil Suit No.197/21
PRIYANKA TANWAR & ANR Vs. NEELAM TANWAR & ANR.
3. Civil Suit No.198/21
PRIYANKA TANWAR & ANR. Vs. NEELAM TANWAR
4. Civil Suit No.199/21
NEMI KUMAR GOYAL & ANR. Vs. NEELAM TANWAR & ORS.
Order on application under Order XXXIX Rule 1 & 2 of CPC
Present : Sh. Sachin Mittal, Counsel for plaintiffs.
Sh. Brahmanand Gupta, Counsel for defendants.
1. By means of this common order, I shall dispose of four separate
applications filed by the plaintiff under Order XXXIX Rule 1 & 2 of CPC
seeking directions that defendants should be restrained during the
pendency of the suit from creating any third party interest in different
portions of the property bearing No.WZ-1656B, Nangal Rai, New Delhi-
110046. These applications have been filed in four different suits bearing
CS Nos.196/2021, 197/2021, 198/2021 & 199/2021. Common issues are
involved in these suits. Each suit is in respect of different portion of the
property No.WZ-1656B, Nangal Rai, New Delhi-110046 (hereinafter
referred to as ‘the property’).
2. The suit bearing CS No.196/2021 pertains to the front portion of the first
floor of the property; Suit bearing CS No.197/2021 pertains to the front
portion on the second floor of the property; Suit bearing CS No.198/2021
pertains to the back portion on the second floor of the property and; Suit
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Date of Order: 10.08.2023
bearing CS No.199/2021 pertains to the back portion on the first floor of
the property.
3. Suit No. 197/2021 is treated as the lead case. The brief facts, as revealed
from the record, are; Plaintiff No.1/Priyanka Tanwar claims that her
husband late Sh. Jatin Tanwar acquired the entire property bearing
No.WZ-1656B, Nangal Rai, New Delhi-110046 by virtue of a registered
sale-deed dated 16.07.2002. Plaintiff No.2/Master Rishi Tanwar is the
minor son of plaintiff No.1. It is the case of plaintiff No.1 that her husband
died intestate and on his demise, the property devolved upon her and her
minor son. Defendant No.1/Neelam Tanwar is the sister-in-law (jethani) of
the plaintiff, who, as per the case of the plaintiff No.1, was allowed by her
husband to temporarily reside in the back side portion of the second floor
of property. Plaintiff has alleged that after the death of her husband, she
started temporarily residing at her parental home and taking advantage of
this situation, defendant No.1 wrongfully entered in other portions on the
first & second floor of the property. She has mentioned that defendant
No.1 has inducted tenants in these portion. In suit CS No.197/2021, the
tenant Nitin Jain, inducted in front portion of second floor, has been
impleaded as defendant No.2. In suit CS No.199/2021, the tenant Amit
Bisht in the back portion of the first floor has been impleaded as defendant
No.2. In CS No.196/2021, the tenant Ample Enterprises, inducted in the
front portion of the first floor of the suit property, has been impleaded as
defendant No.2.
4. The suits bearing CS Nos.196/2021 & 199/2021 have been filed by Nemi
Goyal, who claims to have purchased the portions of the property from
plaintiff No.1 by means of a registered Sale Deed dated 25.01.2021.
Plaintiffs have sought similar reliefs in all the suits, which are; (i)
Declaration that the possession of defendants be declared as null and void;
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(ii) Injunction to restrain defendants from creating third party interest; (iii)
A decree of possession of the portion in occupation of the defendants and;
(iv) Mesne profits @ Rs.20,000/- per month.
5. Defendants have contested the suit by filing separate written statements.
Tenants of the first floor & the second floor have admitted that they were
inducted by defendant No.1/Neelam Tanwar. On the other hand, Neelam
Tanwar claims to have an interest in the suit property by virtue of a
purported family settlement dated 02.03.1994. She has disputed the
identity of the suit property mentioning that the actual number of the
property is WZ-1656-A, Nangal Rai, New Delhi-110046. She claimed that
the property No. WZ 1656-B was being used only for the purpose of
correspondence in the house tax, electricity and water department. She has
set up a case that the suit property is ancestral and joint family property.
She mentioned that the husband of plaintiff No.1 managed to execute the
sale deed on the basis of forged and fabricated documents. She claimed
that the husband of plaintiff No.1 executed a false agreement-to-sell dated
13.06.2018 in favour of Nemi Goyal. She mentioned that this agreement-
to-sell was executed without her consent and knowledge. She admitted
that she is occupying first floor and the second floor of the suit property.
She mentioned that she is only occupying her share in the first and second
floor of the suit property. She also claimed to be in possession of half roof
on the third floor of the suit property.
6. I have perused the record in the light of the respective arguments.
7. Plaintiff No.1 has placed on record a registered Sale Deed of the suit
property. In terms of this Sale Deed, the husband of plaintiff No.1
purchased the suit property on 16.07.2002 from Sh. Bhawar Singh. In the
said Sale Deed, the description of the suit property has been given as WZ
165B, Khasra No.168, measuring 175 sq. yards situated in the area of
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Date of Order: 10.08.2023
village Nangal Rai, New Delhi-110046. Admittedly, till date, defendant
No.1 has not instituted any suit seeking cancellation of the said sale deed.
Defendant No.1 has also not instituted any suit for cancellation of sale-
deed dated 25.01.2021 executed by Priyanka Tanwar in favour of Nemi
Goyal. She claims to have acquired an interest in the suit property by
virtue of a purported family settlement dated 22.03.1994, which is an
unregistered document. On a prima facie view, there appears to be no
merit in the plea taken by her that the suit property is joint and ancestral
property. The criteria for determining whether a property is a joint family
property has been discussed at length in the matter of “Surender Kumar
Vs. Dhani Ram & Ors.” in CS (OS) No.1737/2012 decided on 18.01.2016
by the High Court of Delhi. However, at this stage, I do not deem it
expedient to comment further on this aspect as the mater is at the initial
stage.
8. Record indicates that the submissions of defendant No.1 that she was
ignorant about the agreement-to-sell dated 13.06.2018 are patently false.
The copy of agreement-to-sell executed by husband of the plaintiff in
favour of Nemi Goyal is on record. In this agreement, defendant No.1 has
signed as an attesting witness. It indicates that defendant no.1 was fully
aware about the transactions. She has made a hopeless attempt to wriggle
out of this fact by mentioning that her signatures were obtained on blank
papers. Be as it may, a prima-facie case is made out for the grant of
injunction. Defendant No.1 has inducted tenants in various portions of the
suit property. I find force in the submissions of the counsel of the plaintiffs
that they shall suffer irreparable loss, in case, defendants manage to create
any third party interest in the suit property. The balance of convenience
also lies in favour of the plaintiffs. In view of this, the applications under
Order XXXIX Rule 1 & 2 of CPC are allowed. It is directed that
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defendants shall not part with the possession of the portions of the suit
under their possession and shall not create any third party interest during
the pendency of the suit.
9. With these directions, the applications stand disposed of.
Order on application under Order XXVI Rule 9 of CPC
1. Plaintiffs have moved separate applications under Order XXVI Rule 9 of
CPC in suits bearing CS Nos.196/2021, 197/2021, 198/2021 & 199/2021.
The facts of the matter have been discussed in the aforesaid order. In terms
of these applications, plaintiffs have sought directions that the spot
inspection of different portions may be carried out by the Local
Commissioner. Plaintiffs have mentioned that defendants are not allowing
them to enter the portions of the suit property bearing No.WZ-1656B,
Nangal Rai, New Delhi-110046. They have prayed that on account of said
reason, the site plan of different portions of the property could not be
prepared. Defendants have opposed the application by filing reply.
Defendant no.1 has disputed the identity of the property mentioning that
the actual number of the suit property is WZ-1656A, Nangal Rai, New
Delhi-110046.
2. I have perused the record in the light of respective arguments.
3. I am of the considered opinion that in the present matter, the appointment
of Local Commissioner is essential to inspect various portions of the suit
property. It would help in resolving the dispute about the identity as well
as the actual condition of the property. The site plan of the property would
definitely help in effective resolution of the present dispute. The spot
inspection carried out by a Local Commissioner would certainly make the
matter clear, intelligible and it would throw light on the actual position of
the suit property. In view of this, Sh. Prithu, Advocate (Enrl.
No.D/3675/2013)(Mob.No.9968558410), Chamber No.K-111, behind
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Date of Order: 10.08.2023
Tehsil Building, Tis Hazari Courts, Delhi-54 is appointed as a Local
Commissioner. The fee of the Local Commissioner is fixed as Rs.40,000/-
(Rupees Forty Thousand only) in each suit Nos.196/2021, 197/2021,
198/2021 & 199/2021 and the same shall be borne by the plaintiff.
4. The Local Commissioner shall visit these portions along with a
draftsman/draftsmen to be arranged by the plaintiffs. He shall carry out
internal and external inspection of various portions of the suit property. He
shall also obtain the photographs of the internal and external condition of
the property. The entire process shall be videographed included the
inspection of internal and external condition. Plaintiff shall bear the
expenses of photography, videography and the fee of draftsman/draftsmen.
The fee of the Local Commissioner is excluding the amount of
expenditure incurred thereon. The Local Commissioner shall get the site
plan prepared from the draftsman highlighting in ‘red ink’ the portions on
each floor, which are in possession of the plaintiffs, defendant No.1 and
the tenants. He shall carry out the inspection of various portions of the
property between 09:00 AM to 05:00 PM on any working day after
intimating both the parties or their counsels telephonically. Plaintiffs as
well as defendants shall fully cooperate with the Local Commissioner
during the proceedings. Intimation be forwarded to the Local
Commissioner. The Local Commissioner shall furnish report along with
three copies of his report, photographs and videography for the parties on
or before the next date of hearing. The Local Commissioner would be at
liberty to take the aid of local police station, in case, the same is required.
If required, the Local Commissioner may approach the local police station
and the concerned SHO shall render all the necessary assistance for the
smooth execution of the process.
5. Copy of this order be given dasti to the Local Commissioner as well as
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plaintiffs. Ahlmad is directed to communicate the order to the Local
Commissioner.
With these directions, all the four applications stand dispose of.
Put up for report/further proceedings on 26.09.2023.
(Sudhanshu Kaushik)
Addl. District Judge-02 & Waqf Tribunal
New Delhi District, Patiala House Courts,
New Delhi/10.08.2023
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