Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA No.73/2013 & CM No.5740/2013 (Stay) 10th February, 2014 % SH. RAJESH ALIAS KHANNA & ANR. ......Appellants Through: Mr. Yogindra Nath, Adv. VERSUS SH. TEJ PAL SINGH & ORS. Through: ...... Respondents Mr. Raj Kumar, Adv. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) 1. This regular second appeal is filed against the concurrent judgments of the courts below; of the trial court dated 2.6.2010 and the appellate court dated 28.2.2013; by which the suit of the respondents-plaintiffs for injunction was decreed with respect to the suit property bearing No.26/1, Teliwara, Shahdara, Delhi. The subject suit was filed seeking injunction to restrain the appellants/defendants from in any manner interfering with the peaceful possession and enjoyment of the suit property by the respondentsplaintiffs.
2. The facts of the case are that the property bearing no.26 was jointly owned by two brothers namely Sh. Peerumal and Sh. Mohan Lal. The two brothers however later on divided the house whereby the portion of the said house No.26 measuring 50 sq. yds came to the share of Sh. Peerumal, grandfather of the respondents-plaintiffs. Sh. Peerumal owned another house bearing No.2/24, Teliwara, Shahdara, Delhi and therefore he left a major portion of the property bearing no.26 to the share of his brother Sh. Mohan Lal and who is the grandfather of the appellants-defendants. It was stated by the respondents-plaintiffs that after the division of the property a small part of the property consisting of one room/bethak fell to the share of Sh. Peerumal, the grandfather of the respondents-plaintiffs and was accordingly numbered as 26/1. The main property came to have been numbered as 26, Teliwara, Shahdara, Delhi. It was further pleaded that since 1938, the suit property was being used by the respondents-plaintiffs, however, due to paucity of space, the respondents-plaintiffs had constructed another house bearing no.26/2, Teliwara, Shahdara, Delhi and property bearing no.26/1 continued to be under the continuous possession and enjoyment of the respondents-plaintiffs and their family members. The suit was filed inasmuch as, the appellants-defendants were threatening to dispossess the respondents-plaintiffs from the suit property bearing no.26/1.
3. Appellants-defendants claimed that the respondents-plaintiffs were not the owners of the suit property and nor were in exclusive possession of the same. It was claimed by the appellants/plaintiffs that entire property bearing no.26 belonged to Sh. Mohan Lal and thereafter to his legal heirs namely appellants-defendants. It was contended that the suit property bearing no.26/1 is merely a big common drawing room of the property bearing no.26, Teliwara, Shahdara, Delhi, and was commonly used for celebrations of festivals, marriages and other family occasions.
4. The appellants-defendants also claimed that there was no property bearing no.26/1 and therefore, respondents’-plaintiffs’ suit should not succeed.
5. Both the courts below have held that there does exist a property bearing no.26/1, inasmuch as, such a number is shown in the municipal records for over 30 years prior to the filing of the suit, and with respect to which respondents-plaintiffs filed and proved on record the electricity bills, house-tax bills and water bills showing that payments with respect to the same were made by the respondents-plaintiffs and who were therefore if not owners were at least in possession of the property bearing no.26/1 for the relief of injunction to be granted to them for restraining the appellants/defendants from seeking to dispossess the respondents/plaintiffs.
6. The findings of the courts below are quite clear inasmuch as once a separate property bearing No.26/1 is shown in the municipal records, the appellants-defendants clearly failed to establish their case that there was no property bearing no.26/1. Also, filing and proving on record the house tax receipts, electricity bills and water bills with respect to the property bearing no.26/1 shows that respondents-defendants were in possession of the property bearing no.26/1 and therefore were entitled to injunction against dispossession from the suit property. The issue with respect to the ownership of the suit property has been left open in the sense that the aspect of ownership was not decided but injunction was granted in favour of the respondents-plaintiffs because they were found to be in use, occupation and possession of the suit property.
7. Learned counsel for the appellants argued that the impugned judgments are illegal and bad in law inasmuch as, both the issues of lack of joinder of the necessary parties and lack of ownership of the respondentsplaintiffs disentitled the respondents/plaintiffs to the relief of injunction and that these issues have been wrongly held in favour of the respondentsplaintiffs and against the appellant-defendants. It is argued that both Sh. Mohan Lal and Sh. Peerumal have left behind various other legal heirs and in the absence of such legal heirs as plaintiffs and defendants, the relief of injunction could not have been granted. It is also argued that once the respondents-plaintiffs failed to prove the ownership, the relief of injunction against dispossession ought not to have been granted in favour of the respondents-plaintiffs.
8. I cannot agree with the arguments urged on behalf of the appellants inasmuch as, even some co-owners who are in possession have a right to injunction against dispossession, from any person who is not entitled to possession, except in accordance with the due process of law. Once a person is found in possession, such a person cannot be dispossessed except by a true owner and therefore, it was necessary for the appellants-defendants to prove their ownership of the suit property and which they failed to do so. Also, there was no need of adding other legal heirs of the deceased Mohan Lal as defendants in the suit inasmuch as, an injunction suit is only filed against those persons who give out threats of dispossession. Those persons who gave threats of dispossession, were the appellants-defendants, and therefore they only were arrayed as defendants to the suit and therefore it was not necessary for every other legal heir of Sh. Mohan Lal to have been made a party-defendant in the suit.
9. In view of the above, no substantial question of law arises under Section 100 CPC. The appeal is therefore dismissed, leaving the parties to bear their own costs. FEBRUARY10 2014 ib RSA732013