Judgment:
K.Ramamoorthy, J.
(1) The plaintiff has filed the suit for mandatory and permanent injunction against the defendants. The dispute relates to the ground floor and the basement of premises bearing No. 9. Western Avenue, Maharani Bagh, New Delhi. The case of the plaintiff is that with reference to the land, a perpetual lease deed was executed in favor of the plaintiff by the Society in which the plaintiff was a member on 11.01.1982. The plaintiff is residing at No. 3, Pusa Road, New Delhi. The defendant No. 1 is the elder sister of the plaintiff. The defendant No. 1 was residing in No. 4, Ring Road, Kilokri, New Delhi, which is very near to the suit land. Husband of the first defendant died in 1982. After the death of her husband the first defendant started living with her daughter Mrs. Priya Gupta who was married in 1994 at E-279, East of Kailash, New Delhi. The plaintiff applied for sanctioning of the plan and the plan was sanctioned on 28.10.1994. The plaintiff started construction as per the plan sanctioned by the authority in or about November/December 1994. A basement, ground floor, first floor and Barsati floor had been put up. The C form was granted on 23.09.1995 and D form was granted on 09.10.1995. As the suit property is situated nearest to ring road, the plaintiff was getting help from the first defendant in supervising the work and keys of the premises were left with the first defendant by the persons who were entrusted with the construction of the work.
(2) On 18.12.1995, when the plaintiff went to the premises and he wanted the keys from the first defendant the first defendant refused to hand over the keys stating that she had occupied the ground floor and the basement. The plaintiff, thereforee, had to file the suit for injunction.
(3) The first defendant Mrs. Kusum Sanghi filed her written statement on 14.03.1996. In the preliminary submissions the first defendant stated thus: Para 7. In the year 1981-82 late Mr. O.P. Sanghi, the husband of the defendant herein mentioned to Shri Jai Kishan Das that an opportunity is available to invest to a residential plot of land at Maharani Bagh, New Delhi. In para 8 it is stated thus: 8. Shri Jai Kishan Das then expressed his desire that the plot of land be acquired partly for the benefit of his son, the plaintiff herein and partly for the benefit of the children of the defendant herein to vest in them when they attain majority. In paras 9, 10, 11 and 14 it is stated thus: 9. Pursuant to the above, a plot of land being 9 Western Avenue, Maharani Bagh was applied for in the name of the plaintiff herein with an understanding that Shri Jai Kishan Das will designate one of the children of the defendant to be the beneficiary of 1`/2 share in the said property and balance 1/2 share to go to the benefit of the plaintiff herein. 10. The plaintiff was, thereforee, a trustee of the property being Plot No. 9 Western Avenue, Maharani Bagh, New Delhi, acquired in 1982 in his name to the effect that 1/2 share in the property would be given by the plaintiff to the children of the defendant as Shri Jai Kishan Das may designate. 11. In connection with the above the defendant herein arranged to pay Rs. 8000.00 to Shri Jai Kishan Das out of the money belonging to her daughter Ms. Priya Sanghi (now Ms. Priya Gupta) (hereinafter referred to as Ms `Priya') who was a minor at that time. 14. Ms. Priya daughter, of the defendant, became a major on 27.01.1988. At a family gathering immediately after 27.01.1988 Shri Jai Kishan Das and the plaintiff herein, in the presence of other near relatives, declared that 1/2 share in the property at 9 Western Avenue, Maharani Bagh, New Delhi, is being held in Trust by plaintiff herein and the same shall thereafter continue to be held in Trust for the benefit of Ms. Priya . The plaintiff and the said Jai Kishan Das also declared that Ms. Priya will be entitled to construct a residential building first against her share and thereafter the plaintiff herein may construct the residential building against his share. In paras 16, 19 and 22 it is stated thus: 16. Thereafter on or about July 1988 Ms. Priya approached Messrs H.V. Mahendru of M/s Designs Atelier, Architects, for drawing up the plans of the residential building on the said property. Messrs H.V. Mahendru duly drew a building plan for construction on the ground floor of the plot of land as per the requirement of Ms. Priya. All expenses in connection with the above were paid and discharged by Ms. Priya. 19. After obtaining the sanction of building plans in October 1991 Ms. Priya appointed Messrs Gannon Dunkerly & Co. for undertaking the construction of the residential units falling to her share. Messrs Gannon Dunkerly & Co. duly carried out the construction of the building. The liability of Ms. Priya for the total cost of the construction of the structure of the basement and ground floor worked out to Rs. 3,39,864.00 . In addition to the above Ms. Priya incurred a liability of Rs. 3,57,459 towards Electrical plumbing, woodwork, flooring and other material for the basement and ground floor in the property. The plaintiff did not incur any expenses in connection with the construction or for any other purposes in the building on the basement and ground floor. 22. On or about 25.11.1995 Priya moved into the property and began living with her husband in the basement and ground floor. After shifting to the above said property Ms. Priya has obtained for herself a ration card which was issued to her on 18.12.1995 by the Ration Office, Okhla, New Delhi. A domestic Gas connection was also installed in the house by Ms. Veena Gas Service, New Delhi. Ms. Priya further got the basement and the ground floor of the building insured at a premium of Rs. 1069.00 against policy No. 4831170102621 dated 5.12.1995 issued by the New India Assurance Co. Ltd. New Delhi. A telephone being No. 6917434 was installed by Mahanagar Telephone Nigam Ltd. for Ms. Priya in the said house. Ms. Priya has been continuously living in the said premises and is in possession and occupation of the said portion of the property. The plaintiff is fully aware of the said fact and he has concealed the above said fact from this Hon'ble Court.
(4) The first defendant has projected her case about the title in the following terms: At all times it was clearly agreed and understood that the residential plot of land standing in the name of the plaintiff was held in Trust in respect of the 1/2 share in the property for the benefit of Ms. Priya and both the plaintiff and Jai Kishan Das had made declaration of the Trust in regard to the said 1/2 share in the presence of various persons.
(5) In view of the stand taken by the first defendant her daughter and other defendants were added parties to the suit. The daughter of the first defendant, Mrs. Priya Gupta is the second defendant. Mr. Vishal Gupta husband of the second defendant is the third defendant. The fourth defendant is the son of the first defendant.
(6) On 16.01.1997, the second and third defendant filed their written statement about the title what is stated in the written statement is as follows: 4. Shri Jai Kishan Das is the father of the plaintiff and defendant No. 1 and grandfather of defendants No. 2 and 4. 5. Defendant No. 2 was informed by her mother that in the year 1981-82 late Mr. O.P. Sanghi, the father of the defendant No. 2 herein mentioned to Shri Jai Kishan Das that an opportunity is available to invest in a residential plot of land at Maharani Bagh, New Delhi. 6. Shri Jai Kishan Das then expressed his desire that the plot of land he acquired partly for the benefit of his son, the plaintiff herein and partly for the benefit of the children of the defendant No. 1 herein to vest in them when they attain majority.
(7) According to the second and third defendants the plot was purchased in the name of the plaintiff with an understanding that Shri Jai Kishan Das will designate one of the children of the first defendant to be the beneficiary of 1/2 share in the said property and the balance 1/2 would go to the benefit of the plaintiff. It is asserted by defendants 2 and 3 that the second defendant attained majority on 27.01.1988. In a family gathering immediately after 27.01.1988 Jai Kishan Das and the plaintiff, Raj Kishan Das in the presence of the relations declared that 1/2 share in the suit property is held by the plaintiff in trustee and the plaintiff shall continue to be the trust for the benefit of the second defendant. It is further stated that the plaintiff and the Jai Kishan Das declared that the second defendant Mrs. Priya Gupta would be entitled to put up construction of residential building first against half share and thereafter the plaintiff to construct a residential building against his share. Pursuant to the declaration in March 1988 Jai Kishan Das confirmed the trust and the second defendant took possession of the plot of land. Thereafter the second defendant approached M/s H.V. Mahendru of M/s Designs Atelier, Architects, for drawing up the plans of the residential building on the said property, M/s H.V. Mahendru duly drew a building plan for construction on the ground floor of the plot of land as desired by the second defendant. After the plan was sanctioned in October 1991, the second defendant appointed M/s Gannon Dunkerly & Co. for putting up the construction.
(8) The second defendant spent a sum of Rs. 3,39,864.00 , for the construction of the basement and the ground floor and spent Rs. 3,57,459.00 towards electrical plumbing, woodwork, flooring and other material for the basement and ground floor in the property. The construction of the first and barsati floors commenced in November/December 1994. In or about November 1995 the second defendant mortgaged the property. She obtained ration card, gas connection and also taken out insurance policy and got telephone installed and the defendants have been living in the property. In the first week of December 1995, the first defendant approached the plaintiff on behalf of the second defendant requesting him to make necessary application for mutation of the property in the name of the second defendant, and the plaintiff to Maharani Bagh Cooperative Society. It is only then the plaintiff had come forward with the suit.
(9) About the case of the plaintiff that he had applied for extension of time from the municipal authorities, the second defendant would state that such an extension was applied for and obtained in the name of the plaintiff as the plot of land was standing in the name of the plaintiff. It is stated by the second defendant that the construction was commenced on 25.10.1993 and basement and the ground floor were completed by March 1994. The plaintiff commenced construction of the first and barsati floors in December 1994. C form was granted in September 1995 and D form was granted on the 9th October 1995. According to the second and third defendants the second defendant is entitled to exclusive rights in the ground floor and the basement and the plaintiff is aware that since March 1988 the second defendant has been in possession of the land and the suit had been filed in 1995 and the same is time barred.
(10) The plaintiff has filed the following documents on 19.12.1995:
1.Photocopy of perpetual sub lease deed dated 07.01.1982. 2. Photocopy of Co-operative House Building Society Limited letter dated 02.04.1985. 3. Photocopy of Co-operative House Building Society Limited letter dated 10.05.1995. 4. Photocopy of Delhi Development Authority Receipt dated 12.03.1985. 5. Photocopy of Delhi Development Authority Receipt dated 18.12.1987. 6. Photocopy of Delhi Development Authority Receipt dated 17.01.1989. 7. Photocopy of Delhi Development Authority Receipt dated 08.03.1990. 8. Photocopy of Receipt for betterment charges dated 28.10.1994. 9. Photocopy of Receipt for Stacking charges dated 25.10.1994. 10. Photocopy of Receipt for property tax charges dated 25.01.1990. 11. Photocopy of no dues certificate from M.C.D. dated 12.10.1994. 12. Photocopy of Sanction letter dated 20.07.1989. 13. Photocopy of Extension letter dated 28.07.1994. 14. Photocopy of Receipt for penalty dated 12.07.1994. 15. Photocopy of sanction letter dated 28.10.1994. 16. Photocopy of sanctioned plan. 17. Photocopy of D-form dated 09.10.1995. 18. Photocopy of C-form dated 09.10.1995. 19. Photocopy of Receipt for Societies Charges dated 07.02.1995. 20. Photocopy of no dues certificates from the Society dated 30.10.1995. 21. Photocopy of Receipt for Electricity connection dated 30.10.1995. 22. Any other document with the permission of the Hon'ble Court.
(11) The defendants filed the following documents on 17.01.1997:
1.Photocopy of Gas connection in the name of Priya Gupta. 2. Photocopy of Ration Card in the name of Priya Gupta, 9 Western Avenue, Maharani Bagh, New Delhi. 3. Photocopy of Householders Insurance policy issued by New India Assurance Co. Ltd in favor of Priya Gupta. 4. Photocopy of the passport in the name of Priya Gupta. 5. Photocopy of the Fire Report in respect of the kitchen situated in the ground floor at 9, Western Avenue, Maharani Bagh. 5-A Photocopy of the telephone bill. 6. Photocopy of the chart showing the cost of construction together with Invoice, Vouchers, Agreements, Receipts etc. 7. Photocopy of letter dated 02.09.1991 from defendant No. 1 to M/s Gannon Dunkerley & Co. for construction of the basement and ground floor of the property. 8. Photocopy of Quotation dated 09.09.1991 and 25.09.1991 of the offer and acceptance of the quotations. 10. Photocopy of letter dated 01.10.1991 in respect of the drawing submitted by the first defendant. 11. Photocopy of letter dated 26.10.1991 from M/s Gannon & Dunkerley & Co. to Defendant No. 1 informing that the earth work has started. 12. Photocopy of letters dated 07.04.1992, 10.04.1992, 03.11.1992, 10.03.1993, 02.04.1993, 01.07.1993, 17.08.1993, 01.09.1993, 28.12.1993, 14.10.1994 and 16.10.1994 exchanged between defendant No. 1 and M/s Gannon Dunkerley & Co. in respect of construction of Ground Floor and basement. 13. Photocopy of the bill for the constructions of the house forwarded by Gannon Dunkerley & Co. to defendant No. 1.
(12) The principal point which has to be considered is whether the defendants can claim any title to the property. The fact that the plaintiff is the owner of the property is borne by the lease deed dated 07.01.1982. The defendants rely upon an understanding and some declaration made by Mr. Jai Kishan Dass and the plaintiff in or about 27.01.1988. Prima facie, the plaintiff has established his title to the property and the defendants have not produced any material to show their title.
(13) The defendants sought to project their case by putting forth that the second defendant had put up the construction on the ground floor and the basement and spent a good lot of money and the plaintiff had acquiesced in it and, thereforee, this is not a case where a receiver could be appointed by which the defendants should be dispossessed from the property. It is no doubt true that if a receiver is appointed the defendants would be dispossessed.
(14) In a petition under Order 40 Civil Procedure Code the Court has to consider the title of the parties to the suit property. When a person is found to have a title to the property that person is entitled to possession, unless and until the other side is able to establish that it has got some interest on the basis of which it could be in a possession of the property, even though the title is with the plaintiff. The case of understanding and declaration projected by the defendants is a myth and I have no hesitation to come to the conclusion, that prima facie, the possession of the ground floor and the basement by the defendants is not at all authorised and the defendants have no right to be in possession of the property.
(15) Mr. Arun Mohan, learned Senior counsel for the plaintiff by way of prologue to his arguments said that if the defendants were ready and willing to deposit Rs. 40,000.00 every month in this Court towards the damages for use and occupation of basement and the ground floor, the defendants could continue with the possession of the property. According to the learned Senior counsel, the property is capable of yielding much more than Rs. 40,000.00 per month. On the other hand, learned counsel for the defendants did not accept the offer and submitted that the defendants are not agreeable of the suggestion made by the learned counsel for the plaintiff. The principles applicable to such a situation have been laid down by the High Court of Madras in Krishnaswamy V. Thangavelu : AIR1955Mad430 . The principles laid down by the Madras High Court are as follows:
1. The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. 2. The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit. 3. Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration. 4. An order appointing a receiver will not be made where it has the effect of depriving a defendant of a `de' facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be `in medio' that is to say, in the enjoyment of no one. And 5. The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
(16) I heard the learned counsel for the parties at length and I am satisfied on the materials placed before me that the defendants have not made out any case of title or any interest in the property. The defendants produced documents to show that the second defendant put up construction but the documents produced by the defendants do not show positively that the construction was put up by the second defendant and those documents have to be established by adducing proper evidence before the Court. I am clear in my mind that the defendants have managed to create these documents. I put a question to the learned counsel for the defendants that in case the plaintiff succeeds in the suit how will the defendants compensate him in respect of damages for use and occupation whether the defendants could furnish any security? Learned counsel for the defendants said that it would not be possible for the defendants because the defendants have established a prima facie strong case. On the facts and circumstances of this, it is just and proper that a receiver should be appointed. thereforee, I appoint Shri O.P. Hans Advocate Chamber No. 129, Tis Hazari, Civil Wing, Delhi, (Tele No. 2935321) as a receiver. The receiver shall be entitled to take possession of the property from the defendants of basement and ground floor and lease out the same and shall deposit the money received by him every month in this Court. Initially the receiver shall be paid a sum of Rs. 10,000.00 by the plaintiff. is No. 4674/96 filed by the plaintiff under Order 40 Rule 1 Civil Procedure Code is allowed. Post the matter for further proceedings on 13.08.1997.