Order 7

Order Details: COPY OF ORDER
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20 Civ Suit 385/23
TILU @ MANGAT RAM Vs. SUKHBIR AND ORS
09.12.2024
Present: Sh. Gulzar Ali, ld. Counsel for plaintiff alongwith
plaintiff.
Sh. Prashant Chaudhary, proxy counsel for all
defendants.
The matter is pending at the stage of arguments on
application under Order 39 Rule 1 and 2 r/w section 151 CPC.
Arguments have been heard on behalf of both the
parties.
Record perused.
By way of the application, the plaintiff prays the
defendant to be restrained from entering and taking forcible
possession of the suit property measuring about 143 square yards
of property Khasra no. 1/43/2 village Ziauddin Pur in the aabadi
of gali no. 10, near Victoria Public School, Brijpuri, Main
Wazirabad Road-110094.
Thus, he is seeking the same relief in his application
as he is seeking in his plaint.
It is settled law that the main relief sought in the suit
can not be granted by way of interim application.
In
Mohinder Singh v. Dharamvir Radhesham, 1981
Rajdhani Law Reporter (Note) 56, it has been held that if the
relief claimed in the application for temporary injunction is the
same as the relief in the suit, then it should not be granted since it
shall amount to decreeing the suit even without trial.
For the aforementioned reasons, the application filed
under Order 39 Rule 1 and 2 r/w section 151 CPC stands
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dismissed.
At this stage, it is submitted by the ld. Counsel for
the defendant that the present suit is not maintainable.
Heard both parties.
Perused record.
The present suit has been filed to seek permanent
injunction against the defendants to restrain them from forcibly
dispossessing the plaintiff from the suit property and directing
them not to remove/ demolish wall/ construction on the suit
property. In the plaint, it is averred that the plaintiff is a co-sharer
of the suit property and is in part possession of it. The possession
of the plaintiff has been denied by the defendant. The
photographs which have been placed on record by the plaintiff
clearly show that the suit property is a vacant piece of land. It is
settled law that the possession of a vacant piece of land follows
title. In the case at hand, the title is clearly disputed as the
defendants claim ownership over the suit property based on a
settlement agreement executed in 1975. Thus, it is clear that a
cloud has been raised over the title of the plaintiff by the
defendants. In the case of Anathula Sudhakar vs. P. Bucchi
Reddy (Dead) by LRs & Anr. (2008) 4 SCC 594
, it was held as
follows:
“As a suit for injunction simplicitor is
concerned only with possession, normally the
issue of title will not be directly and
substantially in issue. The prayer for
injunction will be decided with reference to
the finding on possession. But in cases where
the de jure possession has to be established on
the basis of title to the property, as in the case
of vacant sites, the issue of title may directly
and substantially arise for consideration, as
without a finding thereon, it will not be
possible to decide the issue of possession”
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Thus, in view of the aforesaid judgment and the
facts of the case, the remedy available to the plaintiff is to amend
his plaint and seek the relief of declaration qua his rights over the
suit property and seek for any consequential relief, if warranted,
in the facts of the case.
The plaintiff is directed to amend his plaint within
30 days from today.
Be put up on 29.01.2025.
(Saema Jain)
JSCC/ASCJ/G. Judge(N/E)
09.12.2024
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