Final Order 13

Order Details: COPY OF ORDER
Pdf Text: RCA DJ 56/23
MAHENDER SINGH Vs. KALYAN SINGH AND ANR
19.04.2025
Present: None.
Arguments have already been heard. Record perused.
Sh. Mahender Singh had filed a suit for permanent
injunction against Kalyan Singh and Ramesh Chander claiming
therein that he is joint owner of a land alongwith one Mehar Lal but
in the year 1992 defendant no.1 (son of Mehar Lal) approached the
plaintiff for purchase of the land and got an agreement signed from
all the co-sharers. However, the agreement could not fructify and
therefore the same was not binding. Subsequently, defendant no.1
sold a portion of land to defendant no.2 whereon defendant no.2
made certain construction. The plaintiff wanted an injunction and as
such filed the suit before Ld. Civil Judge.
However, the Ld. Civil Judge vide her order dated
07.10.2023 rejected the suit U/O 7 R 11 CPC. The said order has
been challenged before this court by way of the instant appeal.
Ld. Counsel for Mahender Singh has argued that plaintiff
never sold the property to defendant no.1 and therefore no one has
any right to do anything in the property without firstly seeking
partition.
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::2::
This court is of the view that plaintiff is under some kind
of misconception of law. No doubt a purchaser of undivided share
of any property has a right to ask for partition but the other co-
sharer cannot say that only the purchaser should claim partition.
The other co-sharer can also claim partition. If the plaintiff is
aggrieved by any action of defendant no.1 either in selling the
portion to defendant no.2 or in doing anything in the land, plaintiff
could have file a partition suit. The Ld. Civil Judge has opined that
plaintiff should have filed a partition suit instead of injunction. I do
not find any illegality in the said opinion.
Ld. Counsel has not denied that the agreement to sell
dated 29.05.1992 bears the signature of plaintiff. This agreement in
clause 4 specifically notes that vacant possession of land was
handed over. This document being not disputed (atleast no
declaration against this document has been sought), has to be read
as it is. Oral contradiction cannot be accepted. Ld. Counsel has
though tried to say that possession was not delivered but the same is
his oral claim only and cannot be allowed to go against the
document. Ld. Counsel has however invited my attention to another
agreement to sell dated 14.12.1999 and submits that in the same,
first party has been shown as owner and in possession. This court is
however of the view that since plaintiff is not a party to the said
agreement, he cannot take any benefit therefrom.
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::3::
From the agreement dated 29.05.1992 which bears the
signature of plaintiff, it is clear that possession was handed over. At
that point of time Section 53A of Transfer of Property Act was not
requiring any type of registration. Therefore the said agreement
would always protect the possession of defendant no.1. No
injunction can be granted in favour of the plaintiff.
Ld. Counsel for the plaintiff then argued that sale deed
was to be executed in three months but since the same was not done
the agreement became unenforceable. I am of the view that such
arguments cannot deviate from Section 53A as it does not talk about
full performance of agreement.
Ld. Counsel for plaintiff then argued that possession of
open land is always treated as with title holder. There cannot be any
dispute with this proposition but it cannot be said that such
possession cannot be transferred by an agreement in writing. The
plaintiff has already transferred the possession and therefore cannot
claim any right over the land unless he seeks cancellation of the said
document.
It is clear that either the plaintiff should have sought for
cancellation of agreement to sell or should have filed a partition suit
if he was treating himself a co-owner. Ld. Civil Judge has opined
that plaintiff should file a comprehensive suit for partition. Instead
the plaintiff has come up with the appeal challenging a proper order.
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::4::
Reliance has been placed on certain judgments by the
plaintiff but in my opinion an injunction being discretionary
exercise of power, the same cannot be asked for on the basis of
judgment without caring for the factual position. An efficacious
remedy being available with the plaintiff, he cannot pray for
injunction. The order passed by Ld. Civil Judge on 07.10.2023 is
upheld and appeal is dismissed.
TCR alongwith copy of this order be sent to the Ld. Trial
Court.
Appeal file be consigned to record room after due
compliance.
(Rakesh Kumar Singh)
DJ-02/(N-W), Rohini Courts
Delhi/19.04.2025
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