Full Judgment Text
$~10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision:13.09.2024
+ CS(OS) 29/2024 & I.A. 2564/2024
SATISH GUPTA .....Plaintiff
Through: Mr.Siddharth Aggarwal,
Mr.Gaurav Sindhwani, Advs.
versus
RACHNA GUPTA AND ANR .....Defendants
Through: Ms.Manpreet Kaur, Adv.
CORAM:
HON'BLE MR. JUSTICE NAVIN CHAWLA
O R D E R
% 13.09.2024
1. This suit has been filed by the plaintiff praying for the following
reliefs:
“(a) Pass the permanent injunction
restraining the defendants from entering
into Property/Shop (22.46 Sq. Metres)
and Godown (371.59 Sq. Metres)
situated at J-37/D, Anand Parvat
Industrial Area, New Rohtak Road, New
Delhi-110005 and the creating third
party interest of the same; and
(b) Award the costs of the present
suit as also legal fees and court fees in
favour of the Plaintiff and against the
Defendants.”
2. It is the case of the plaintiff that the plaintiff is the “lawful owner
in possession” of the shop and godown situated at J-37/D, Anand
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Parvat Industrial Area, New Rohtak Road, New Delhi-110005
(hereinafter referred to as the „suit property‟) and doing his
business from the said premises since 1998. The plaintiff asserts
as under:
“3. That the Plaintiff is the lawful owner-in-
possession of Shop and Godown situated at J-
37/D, Anand Parvat Industrial Area, New
Rohtak Road, New Delhi-110005 and is doing
his business there since 1998.”
3. The plaintiff further asserts that the defendant no.1 along with
certain goons has tried to enter the suit property and also put a
lock at one door of the godown in its open condition below the
lock of the plaintiff, because of which the Godown is lying open
and plaintiff‟s goods may be stolen or misused by someone at
any point of time.
4. The plaintiff asserts that the defendants and their representatives,
agents are not authorized to enter the suit property and therefore,
prayed for the above relief.
5. This Court by its ex parte ad interim order dated 12.01.2024,
restrained the defendants from causing any interference in the
peaceful enjoyment of the suit property as also in the business of
the plaintiff.
6. The defendants thereafter filed an application under Order
XXXIX Rule 4 of the Code of Civil Procedure, 1908 (in short,
„CPC‟), being IA No.2565/2024, inter alia complaining that the
plaintiff has concealed various facts from this Court, including
the Will dated 05.06.2008 left behind by the grandfather of the
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plaintiff and the defendant no.2, and proceedings seeking the
probate thereof, being Probate Case No.65/2010 titled “ Deepak
Bansal v. State & Ors” . It was pleaded that the said Probate
Petition was granted by the learned Additional District Judge
vide judgment dated 15.07.2015, dismissing the objections of the
plaintiff against the same.
7. The defendants also produced on record various documents
showing their possession over the suit property.
8. This Court by a detailed judgment dated 02.02.2024, vacated the
interim order on ground of concealment of facts, observing as
under:
“4. Ld. Counsel has taken the Court through
the full set of documents such as various police
complaints, which were filed and certain
assurances which were given by the respective
parties before the police.
5. In addition, she has also taken the Court
through the judgment in Probate Case
no.65/2010, in respect of the Will dated 5th
June, 2008 left behind by the grandfather of
the Plaintiff and Defendant No.2, vide which
the suit property bequeathed to Plaintiff and
Defendant No.2.
6. The Court has also perused various
photographs of the suit property, which would
actually show that there was partition of wall
between the two portions of the property.
7. A perusal of the record would show that due
to the breaking of the partition wall both
parties had approached the police authorities.
The parties had then given undertakings
before the police to the following effect:
Undertaking of Mr. Atul Gupta :
“SHO, Anand Parbat Indl. Area,
New Delhi 23/ 11 /2023
Res. Sir,
Re: J-37/D, Anand Parbat Indl. Area Delhi,
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New Delhi-110076.
The above said property situated at Anand
Parbat Indl. Area, N. Delhi is equally divided
into two parts and has two separate entry
gates. One part was occupied by me and other
part was occupied by me and other part was
occupied by my brother Mr. Satish Gupta.
Since, last three - four years, I was not well
and hospitalized twice and was unable to visit
the above property regularly. My wife Rachna
Gupta visited the property occasionally during
my illness.
On 29.10.2023, visited the property and found
that Mr. Satish Gupta has partly the partition
was in the property and placed his goods in
my position.
On 29/10/23 my wife called 100 No. twice and
the SHO requested both of us to mutually
resolve the matter by 10/ 11/23 and he agreed
for the same.
But he Mr. Satish Gupta gave no response till
date.
He also filed complaints against us and not
vacating the premises or removing his goods.
I am enclosing herewith copy of my
grandfather Late Mr. Madan Lal Gupta who
has clearly stated in his will that both of us are
already having possession of above property.
Thanking you.
Encl: Copy of Will.
Yours faithfully
Sd/( Atul Gupta)
Mo. 98111-61202”
Undertaking of Mr. Sagar Gupta and Devika
Sharma:
“The SHO
Anand Parbat
Delhi-110005
Dear Sir,
9/112024
I would like to submit that today on 9/1/2024
we made a call for unauthorized construction
which was happening at J-37D, Gali no.-8,
Anand Parbat Industrial Area, Delhi-5.
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Actually this complete property has 2 gates
and parts which is disputed property of my
father Satish Gupta and Atul Gupta (said
brother). I and Rachna Gupta (said Aunt) has
come under resolution that we will put
separate lock on each gate separately. One
lock by us and other lock by Rachna Gupta.
No construction inside the property will
happen during this time and I can completely
sell or remove my material within 4 days. This
property is under the supervision and in High
Court. I will main status quo till then and all
the material & said goods are mine and not
there.
Sd/-
9/1/2024
Regards
Sagar Gupta
9810219499
S/o Satish Gupta
Current at - 3306, Siena Tower,
Mahagun Mezzaria
Sector-78, Noida U.P.
Sd/-
9/1/24
Devika Sharma
3306, Mahagun
Mezzaria
Sec78, Noida
UP
9899738085
Undertaking of Ms. Rachana Gupta:
I Rachna Gupta W/o Atul Gupta resident of J-
46, Sarita Vihar, New Delhi. The said property
J-37D A.P.I. A Delhi is for jointly owned by
my husband Atul Gupta and his brother Satish
Gupta we have settled for a possession of one
portion each therefore each of us will lock one
portion separately. They have agreed to
remove their stuff in 4 days. The property will
remain as it is till further notice.”
Regards
Sd/-
9th Jan 24
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Rachna Gupta
(W/ o Atul Gupta)
9899774727
8. The above assurances and the Probate
petition judgement show that there was a
serious dispute and parties had already
resolved the same, before the police
authorities. However none of these facts have
been disclosed to the Court in the plaint which
was presented. An impression was sought to be
given that the Plaintiff is in exclusive
possession of the property. However, the
photographs, the undertakings to the police
etc., show the contrary. There appears to have
been clear partition walls separating the two
portions, i.e., of the Plaintiff and the
Defendants, in respect of which police
complaints have also been filed. All these facts
have been suppressed from the Court.
9. The Defendants have been deprived of using
their own portion of the property owing to the
ex-parte order. When the matter was called
out in the morning, a passover was sought on
behalf of the Counsel’s colleague. After the
passover, the Counsel for the Plaintiff has
appeared and when confronted with the
question as to why the complaints and the
judgement in the probate case have not been
disclosed, there is no satisfactory answer
which is forthcoming.
10. In view of above, it is evident that the
Plaintiff had suppressed information at the
interim application stage and the Defendants
have been bereft of accessing their rightful
property.”
9. The learned counsel for the defendants submits that the present
suit is not maintainable inasmuch as, the suit property has
devolved jointly on the plaintiff and the defendant no.2 from
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their grandfather-Late Sh.Madan Lal Gupta. This has also been
mentioned in the Will dated 05.06.2008 left behind by their
grandfather, for which probate was granted by the judgment
dated 15.07.2015 hereinabove. She submits that the claim of the
plaintiff of being the exclusive owner of the property is,
therefore, false to the own knowledge of the plaintiff and has
been made only to obtain favourable order from this Court.
10. She also draws my attention to the various documents to show
that part of the suit property had also been in possession of the
defendant no.2.
11. On the other hand, the learned counsel for the plaintiff submits
that mere concealment of facts cannot be a ground to dismiss the
suit.
12. He further submits that the plaintiff is in settled possession of the
suit property and therefore, cannot be dispossessed without the
defendants taking due process of law.
13. To a pointed query of this Court, as to whether any document of
title to the suit property has been placed on record, the learned
counsel for the plaintiff submits that for a suit for injunction, the
plaintiff need not plead or show title to the property. He places
reliance on the judgment of the Supreme Court in Rame Gowda
(D) by LRs. V. M.Varadappa Naidu (D) by LRs & Ors. (2004) 1
SCC 769; and of this Court in Saleem & Ors. v. Wahid Malik.
2022:DHC:4035.
14. I have considered the submissions made by the learned counsels
for the parties.
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15. As is evident from a bare reading of the plaint, the plaint is not
founded on an assertion of mere possession of the suit property
by the plaintiff. The plaintiff has categorically asserted that he is
the sole owner of the suit property and is in possession of the
same as the owner thereof.
16. The ownership is seriously disputed by the defendants by placing
on record the Will of the grandfather dated 05.06.2008 and the
judgment dated 15.07.2015 passed in the probate petition, which
was concealed by the plaintiff from this Court.
17. In the Will dated 05.06.2008, late Mr.Madan Lal Gupta,
grandfather of the plaintiff and the defendant no.2, insofar as the
suit property is concerned, had stated as under:
“XI. That I have not given any share in my
properties as covered in this Will, to my other
sons and daughters because:
xxx
b) My two eider sons, namely Late S}).. Om
Prakash and Late Sh. Anand Prakash, have
already expiTed. However, in their lifetimes
l have given sufficient to them and their
respective son/s are well settled in life and
have sufficient means and properties in their
names. Further my these two sons have left
sufficient estate for their son/s and other
members of their respective families. However
I wish to state here that I had the possession of
a property at J-37-D, A.P.I.A., New Rohtak
Road, Delhi. This property was being used by
Shri Om Prakash in his life· time and after his
death his two sons Satish Gupta and Atul
Gupta are using it jointly. I wish that Satish
and Atul continue to possess and use this
property.”
18. The learned Additional District Judge, Central District, vide
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judgment dated 15.07.2015, granted Probate of the said Will,
dismissing the objections of the plaintiff thereto.
19. Though the learned counsel for the plaintiff has asserted that vide
the above referred judgment, the Probate of the Will was granted
only for the property bearing no.6A, Under Hill Lane, Civil
Lines, Delhi-110054, the fact of the Will and the judgment is not
even pleaded, leave alone any documents of title being filed on
record to show as to how the plaintiff became the sole owner of
the suit property.
20. In Anthula Sudhakar v. P.Buchi Reddy (Dead) by LRs and Ors .
(2008) 4 SCC 594, the Supreme Court clarified the circumstances
where the plaintiff may file a suit for injunction simpliciter as
against the situation where the plaintiff would necessarily have to
pray for a decree of declaration of title along with the decree of
injunction, as under:
“ 13. The general principles as to when a
mere suit for permanent injunction will lie,
and when it is necessary to file a suit for
declaration and/or possession with injunction
as a consequential relief, are well settled. We
may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful
possession of a property and such possession
is interfered or threatened by the defendant, a
suit for an injunction simpliciter will lie. A
person has a right to protect his possession
against any person who does not prove a
better title by seeking a prohibitory injunction.
But a person in wrongful possession is not
entitled to an injunction against the rightful
owner.
13.2. Where the title of the plaintiff is not
disputed, but he is not in possession, his
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remedy is to file a suit for possession and seek
in addition, if necessary, an injunction. A
person out of possession, cannot seek the relief
of injunction simpliciter, without claiming the
relief of possession.
13.3. Where the plaintiff is in possession, but
his title to the property is in dispute, or under
a cloud, or where the defendant asserts title
thereto and there is also a threat of
dispossession from the defendant, the plaintiff
will have to sue for declaration of title and the
consequential relief of injunction. Where the
title of the plaintiff is under a cloud or in
dispute and he is not in possession or not able
to establish possession, necessarily the
plaintiff will have to file a suit for declaration,
possession and injunction.
14. We may, however, clarify that a prayer for
declaration will be necessary only if the denial
of title by the defendant or challenge to the
plaintiff's title raises a cloud on the title of the
plaintiff to the property. A cloud is said to
raise over a person's title, when some
apparent defect in his title to a property, or
when some prima facie right of a third party
over it, is made out or shown. An action for
declaration, is the remedy to remove the cloud
on the title to the property. On the other hand,
where the plaintiff has clear title supported by
documents, if a trespasser without any claim to
title or an interloper without any apparent
title, merely denies the plaintiff's title, it does
not amount to raising a cloud over the title of
the plaintiff and it will not be necessary for the
plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the
plaintiff, believing that the defendant is only a
trespasser or a wrongful claimant without
title, files a mere suit for injunction, and in
such a suit, the defendant discloses in his
defence the details of the right or title claimed
by him, which raise a serious dispute or cloud
over the plaintiff's title, then there is a need for
the plaintiff, to amend the plaint and convert
the suit into one for declaration. Alternatively,
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he may withdraw the suit for bare injunction,
with permission of the court to file a
comprehensive suit for declaration and
injunction. He may file the suit for declaration
with consequential relief, even after the suit
for injunction is dismissed, where the suit
raised only the issue of possession and not any
issue of title.”
(Emphasis supplied)
21. The above judgment was also followed by the Supreme court in
T.V.Ramakrishna Reddy v. M.Mallappa & Anr ., (2021) 13 SCC
135, where the Court has held that where the plaintiff‟s title is
not in dispute or not under a cloud, a suit for injunction could be
decided with reference to the finding of possession, however, in
cases where de jure possession has to be established on the basis
of title to the property, a finding of title cannot be recorded in a
suit for injunction unless there are necessary pleadings and
appropriate issues regarding the title, either specific or implied,
framed. Where the averments regarding the title are absent in the
plaint and no relief is claimed thereon, the Court will relegate the
parties to the remedy by way of comprehensive suit for
declaration of title, instead of deciding the issue in a suit for mere
injunction. I may quote from the judgment as under:
“10. It could thus be seen that this Court in
unequivocal terms has held that where the
plaintiff's title is not in dispute or under a
cloud, a suit for injunction could be decided
with reference to the finding on possession. It
has been clearly held that if the matter
involves complicated questions of fact and law
relating to title, the court will relegate the
parties to the remedy by way of comprehensive
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suit for declaration of title, instead of deciding
the issue in a suit for mere injunction.
11. No doubt, this Court has held that where
there are necessary pleadings regarding title
and appropriate issue relating to title on which
parties lead evidence, if the matter involved is
simple and straightforward, the court may
decide upon the issue regarding title, even in a
suit for injunction. However, it has been held
that such cases are the exception to the normal
rule that question of title will not be decided in
suits for injunction.
12. Further a suit simpliciter for injunction
may not be maintainable as the title of the
property of the plaintiff/respondent was
disputed by the appellants/defendants. In such
a situation it was required for the
respondent/plaintiff to prove the title of the
property while praying for injunction.
Reference can be made to the judgment of this
Court in Anathula Sudhakar v. P. Buchi Reddy
(Dead) by Lrs.”
(Emphasis supplied)
22. The Supreme Court again reiterated the above view in Tehsildar,
Urban Improvement Trust & Anr. v. Ganga Bai Menariya
(Dead) Thr. LRs & Ors . 2024 SCC OnLine SC 169, observing as
under:
“21.1 Further a suit simpliciter for
injunction may not be maintainable as
the title of the property of the plaintiff
/respondent was disputed by the
appellants /defendants. In such a
situation it was required for the
respondent /plaintiff to prove the title of
the property while praying for
injunction. Reference can be made to
the judgment of this Court in Anathula
Sudhakar v. P.Buchi Reddy (Dead) by
LRs and Ors.”
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23. In the present case, the plaintiff has filed the present suit claiming
exclusive ownership of the suit property. He also claims
exclusive possession thereof. Both the above assertions stand
seriously disputed in view of the documents filed by the
defendants. The plaintiff has, in fact, filed no documents to show
the basis of his exclusive title to the suit property. As far as his
exclusive possession is concerned, this Court, has already in its
Order dated 02.02.2024, found the same to be based on
concealment of facts. Therefore, the plaintiff cannot even be said
to be in “settled possession” of the suit property.
24. In Rame Gowda (supra), the Supreme Court was considering the
case where the plaintiff therein had filed a suit alleging his title
and also possession over the disputed piece of land. The learned
Trial Court therein had found that though the plaintiff had failed
in proving his title, he had succeeded in proving his possession
over the suit property, which he was entitled to protect unless
dispossessed therefrom by due process of law. The learned Trial
Court also found that the defendant therein had also failed in
proving his title over the disputed land so as to substantiate his
entitlement to evict the plaintiff. The plaintiff was found to be in
“settled possession” of the suit land. It was in those facts that the
Supreme Court held that where the plaintiff is in settled
possession or effective possession of the suit property, though
without title, he would be entitled to protect his possession even
against the true owner. The Court, however, clarified that a stray
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act of trespass or a possession which has not matured in a settled
possession, would not be sufficient in such circumstances.
25. In Salim (supra), the learned Single Judge of this Court reiterated
the above position in law. In the said case, the defendant therein,
barring making bald assertion in the written statement, had led no
evidence at all to show any title in the suit property or to show
the possession thereof.
26. In the present case, as noted hereinabove, the plaintiff has failed
to file any documents on record or even make an averment as to
how the title of the suit property is claimed by him. His claim of
being in exclusive possession to the Suit Property, has been
belied by the documents filed by the defendants. The above two
judgments, therefore, would not come to the aid of plaintiff.
27. On the other hand, the defendants have placed on record the Will
dated 05.06.2008 of late Sh.Madan Lal Gupta, which shows that
the property belongs to defendant no.2 as well. In the Will, the
testator claims that he had allowed the possession thereof to be
retained by the plaintiff and the defendant no.2. The said Will
has been probated. The defendants have also placed on record the
documents to substantiate their claim to a partition wall being
constructed and the defendant no.2 being in possession of his part
of the suit property. The title and possession of the plaintiff, both
are, therefore, in serious doubt and applying the ratio of the
judgment of Anathula Sudhakar (supra), the plaintiff would first
have to seek a declaration of his title and consequential relief of
possession/injunction. The present suit simpliciter praying for
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injunction, therefore, would not be maintainable.
28. In addition to the above, in terms of Section 36 of the Specific
Relief Act, 1963, the relief of injunction is discretionary. In terms
of Section 41(i) of the Specific Relief Act, injunction may be
refused where the conduct of the plaintiff has been such so as to
disentitle him to the assistance of the Court. In the present case,
the learned predecessor Bench of this Court has already found
that the plaintiff, due to concealment and mis-statement, has
disentitled himself to an ad interim Order of injunction. The
Court vacated the injunction granted in favour of the plaintiff.
Keeping in view the above, the plaintiff is held not entitled to the
relief of injunction.
29. It is also to be noted that the defendant no.2 is claiming himself
to be the co-owner of the suit property. There cannot be an
injunction against a co-sharer or co-owner. Reference in this
regard may be made to the judgment of the Supreme Court in T.
Ramalingeswara Rao (Dead) Through Legal Representatives
and Anr. Vs N Madhava Rao and Ors. (2019) 4 SCC 608,
wherein the Supreme Court held that the possession of one co-
sharer is the possession of all co-sharers and where it is not
shown that one of the co-sharers is in exclusive possession to the
exclusion of the other, no case to claim injunction can arise.
30. I, therefore, find that the present suit is not maintainable. The
same is dismissed, leaving it open to the plaintiff to seek relief in
an appropriate suit.
31. The plaintiff shall pay costs of Rs.1 lac to the defendants within a
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period of four weeks from today.
32. The pending application also stands disposed of.
NAVIN CHAWLA, J
SEPTEMBER 13, 2024
RN/DG
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