Pushpa Devi Sarraf v. Jai Naraia Parasrampuria — 1991 DIGILAW 771 (ALL)

JUDGMENT G. K. Mathur, J. 1. Appellants (defendants nos. 2 and 4 of Suit No. 534 of 1984 : Jai Narain Parasrampuria and others v. M/s. Kanpur Exports (P) Ltd. and others have filed this appeal against the order dated January 15, 1991, passed by Shri Nirvikar Gupta, VII Additional district Judge, Kanpur Nagar, in the aforesaid suit. 2. The relief claimed by this appeal is that the impugned order passed by the court below be modified so as to grant the prayer for restraining the plaintiffs-respondents from interfering in the possession and ownership of the appellants over the property in dispute, bearing no. 7/169, Swaroop Nagar, Kanpur and further they be restrained from making criminal trespass over it. Shri R. Asthana, Advocate, - who had filed caveat on behalf of the plaintiffs, has put in appearance at the admission stage and has filed counter affidavit to the injunction application moved in this appeal by the appellants. The appellants nave filed rejoinder affidavit to the counter affidavit. 3. With the consent of the parties we proceed to decide the appeal finally at the admission stage. 4. The plaintiffs have filed Suit No. 537 of 1984 on August 6, 1984 for specific performance of contract dated June 12, 1984 and possession against M/s. Kanpur bxports (P) Ltd., respondent no. 4, two appellants and their son Sandeep Sarraf. Surendra Kumar Mittal has also been impleaded as defendant no. 5. The agreement dated June 12, 1984, the copy of which is Annexure 2 to the counter affidavit, was executed by M/s. Kanpur Exports (P) Ltd. through its Directors, Smt. Pushpa Devi Sarraf, her husband Mohan Lal Sarraf (the appellan(s) and their son Sandeep Sarraf in favour of the plaintiffs-respondents Jai Narain Parasrampuria, Sudhir Kumar Parasrampuria and Smt. Parvati Parasrampuria for the sale of the property in question for a consideration of rupees eleven lacks, out of which rupees ten lacs had already been paid in advance. It has also been mentioned in this agreement that the entire property had been leased out to Manoj Kumar Poddar. The appellants in their written statement, amongst other things, pleaded that the deed was spurious, sham and was secured for the removal of padlocks of the State Bank of India from the premises in suit and the plain tiffs obtained it trickfully for extraneous purpose, abusing the intimate acquaintance with answering defendant-appellants. The appellants in their written statement, amongst other things, pleaded that the deed was spurious, sham and was secured for the removal of padlocks of the State Bank of India from the premises in suit and the plain tiffs obtained it trickfully for extraneous purpose, abusing the intimate acquaintance with answering defendant-appellants. In the written statement they further pleaded that they had agreed to sell the property in suit to defendant no. 5, Surendra Kumar Mittal, for a consideration of rupees twenty five lacs vide agreement dated June 4, 1984. 5. By application dated May 23, 1990 the defendants-appellants prayed that the plaintiffs be restrained by means of an injunction from interfering, in any manner, in their possession and ownership. This application was moved under Order XXXIX rules 1 and 2 and section 151 of the Code of Civil Procedure. In support of this application Smt. Pushpa Devi .Sarraf filed affidavit. BY the impugned order, this application and other similar applications, boaring numbers 195-C dated July 5, 1990. 199-G dated July 20, 1990, 247-C dated October 1, 1990, 260-C dated November 7, 1990, 263-C dated November 14, 1990 265-C dated November 22, 1990, 270-C dated December 19, 1990 and the objections of the plaintiffs against them have been disposed of by the trial court. In the impugned order the learned trial court has made a mention of various legal proceedings relating to the property in suit before the various courts between the parties and others. It is made out that the appellants claimed to have purchased the property in suit from Shiv Narain Verma for a consideration of rupees two lacs in 1979 and their contention has been that Kanpur Exports (P) Ltd., was not the purchaser and owner of the property in question. In 1984 the dispute between Kanpur Exports (P) Ltd., and the defendants-appellants was referred to Arbitrator, who gave his award on November 20, 1984 declaring the appellants as owners of the property and Kanpur Exports (P) Ltd., was held entitled to receive back the amount of rupees two lacs twenty two thousand five hundred from the appellants and the High Court made the aforesaid award a rule of the Court in suit No. 1857-A of 1984. The appellants put the aforesaid decree in execution and got possession in Execution Case No. 11 of 1985 on April 8, 1985. 6. The appellants put the aforesaid decree in execution and got possession in Execution Case No. 11 of 1985 on April 8, 1985. 6. G. P. Tewari, alleging himself as care taker on behalf of the owner, initiated proceedings on April 13, 1987 under section 2-A of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 against the appellants and their son, respondent no. 5, and by ex-parte order dated August 25, 1989, Prescribed Authority/Civil Judge ordered eviction of the appellants and their son. On September 19, 1989, in the said suit the Court allowed the application under section 23 of Act XIII of 1972 and issued writ of eviction against Mohan Lal Sarraf, appellant no. 2 and on its basis G. P. Tewari took possession after evicting the appellants on September 23, 1989, Smt. Pushpa Devi Sarraf, appellant no. 1, filed writ petition No. 21985 of 1989 against the aforesaid ex parte order dated August 25, 1989. However, the Prescribed Authority/Civil Judge, allowed the application for setting aside the ex parte order dated August 25, 1989 by its order dated February 8, 1990 and on the same day the case was dismissed as withdrawn on the application of G. P. Tewari. Consequently on May 9, 1990, the High Court dismissed the aforesaid writ petition as infructuous. Smt. Pushpa Devi Sarraf tiled Special Leave Petition No. 10249 of1990 before the Supreme Court, which was dismissed on September 19. 1990 with the observation that in case a suit is filed the trial court will consider the interim order to protect the petitioner. On November 1, 1990, the Supreme Court, on the application of Smt. Pushpa Devi Sarraf, ordered that the police guard posted at the site- might be removed. Sudhir Kumar Parasrampuria, respondent no. 2 filed suit in the Court of Civil Judge, Kanpur Dehat against the appellants and others including G. P. Tewari for declaration that in view of the agreement dated June 12, 1984, the defendants have no right to cause damage to the property. The suit was decreed ex-parte and on October 23, 1989, the plaintiffs respondents obtained symbolic possession over the property in suit. The appellants got the aforesaid order quashed in writ petition no. 24301 of 1989 on May 9, 1990 and thereafter Sudhir Kumar Parasrampuria withdrew the suit and got it dismissed on May 30, 1990. 7. The suit was decreed ex-parte and on October 23, 1989, the plaintiffs respondents obtained symbolic possession over the property in suit. The appellants got the aforesaid order quashed in writ petition no. 24301 of 1989 on May 9, 1990 and thereafter Sudhir Kumar Parasrampuria withdrew the suit and got it dismissed on May 30, 1990. 7. Manoj Kumar Poddar filed application under Order XXI rule 99 of the Code of Civil Procedure on April 10, 1955 to recover back possession of the property with damages against the delivery of possession in Execution case No. 11 of 1985 abovementioned. These proceedings of MANOJ Kumar Poddar have been stayed by the order dated May 13, l986 passed by IX Additional District Judge, Kanpur Nagar till the decision of suit No. 1252 of 1985 pending in Delhi High Court. Suit No. 1252 of 1985 has been filed by the plaintiffs and Manoj Kumar Poddar in Delhi High Court for cancellation of the decree passed in suit No. 1857-A of 1984 and which is still pending. M/s. Hyper Chemical and Cosmetics and another filed suit against Mohan Lai and others bearing no. 1714 of ly90 in Delhi High Court in which the defendants 2 to 7 have been restrained from interfering with the possession of the plaintiffs of that suit. All the plaintiffs of the present suit were the defendants in that suit. The Delhi High Court, however, modified the earlier order on June 6, lv90 to the effect that regarding possession status quo should be maintained by the parties. 8. Sudhir Kumar Parasrampuria filed a suit No. 2256 of 1989 against Mohan Lal Sarraf seeking injunction that the defendants and their agents be restrained from interlering in the maintenance of the property in suit, which suit was transferred to the Court of VII Additional District Judge, Kanpur Nagar. In this suit Advocate-Commissioner was appointed, who submitted his report on January 2, 1990. He found that the whole bungalow was in dismantled condition and some labourers were raising boundary walls. In this suit Advocate-Commissioner was appointed, who submitted his report on January 2, 1990. He found that the whole bungalow was in dismantled condition and some labourers were raising boundary walls. The learned counsel for the appellants, without challenging the finding of the learned trial court that the plaintiffs-respondents are prima facie in actual possession of the, property in suit, submitted that for the grant of injunction, sought for, the relevant question to be seen by the trial court was whether the appellants were in lawful possession of the premises in suit and it should not have proceeded to reject the prayer on the consideration of the orders in other proceedings and, thus, fell in error in holding that as a consequence of the order of other proceedings, the appellants sought to take recourse to restitution proceedings under section 141 of the Code. The argument of the learned counsel for the appellants has been that the subsequent proceedings, touching possession of the premises in suit, against the appellants in Rent Control Case No. 99 of 1987 before the Prescribed Authority/Civil Judge, Kanpur Nagar, filed by G. P. Tiwari, and the Original Suit No. 237 of 1989 filed by the plaintiff-respondent in the Court of the Civil Judge, Kanpur Dehat, were decided ex-parte and that the ex-parte order and the decree were set aside and both above mentioned cases were withdrawn by those in whose names they were filed. He argued that G. P. Tiwari alleging himself as caretaker on behalf of the owner, initiated proceedings under section 2-A of the Act XIII of 1972 against the appellants and their son, respondent no. 5. on April 13, 1987 and the Prescribed Authority/Civil Judge, Kanpur Nagar, directed the eviction of the appellants, by ex-parte order dated August 25, 1989 and further issued writ of eviction on September 19, 1989 which was, however, directed only against Mohan Lal Sarraf, appellant no. 2. He submitted that on its strength. G. P. Tiwari, with police help, made Criminal trespass on the bungalow in suit and removed away entire belongings and started demolishing the building. The argument of the learned counsel for the appellants is that the aforesaid activity of G. P. Tiwari was an act of criminal trespass and the appellants continued to be in lawful possession of the property in suit. 9. The argument of the learned counsel for the appellants is that the aforesaid activity of G. P. Tiwari was an act of criminal trespass and the appellants continued to be in lawful possession of the property in suit. 9. The learned counsel for the appellants further submitted that as G. P. Tiwari allegedly handed over possession of the property in suit on October 27, 1989 to the plaintiff, restitution of the property could not be claimed against G. P. Tiwari. Again the argument of the learned counsel for the appellants is that there was no occasion to seek restitution against the plaintiff-respondents because they have taken symbolic possession over the property and that they claimed to have taken the actual possession on October 27, 1989 from G. P. Tewari out of court and not in the execution of any decree. 10. With regard to Suit No. 1714 of 1990 pending in the Delhi High Court the contention of the learned counsel for the appellants has been that it has been instituted by M/s. Hyper Chemical and Cosmetics (P) Ltd., and Smt. Pushpa Devi Sarraf for the relief of permanent injunction and temporary injunction was granted on May 25, 1990, in the meanwhile. But on the application of the plaintiff-respondents, without referring to the above order dated May 25, 1990, the Delhi High Court passed the order of maintenance of the status quo. His argument has been that the order of maintaining status quo, if pressed in service in this appeal, would mean nothing than the position of possession as envisaged in this suit No. 537 of 1984. The learned counsel further argued that while considering the question of interim injunction the court can take into consideration the right of possession because the appellants were admittedly in possession of the property on the date of suit. He referred to the provision of section 52 of the Transfer of Property Act and argued that transfer of possession during the pendency of the suit, therefore, cannot defeat the prayer of the appellants of the injunction sought for. We propose to take up the last contention of the learned counsel for the appellants first because the entire argument is built up on the ground that the appellants were in possession of the property in suit at the time of the institution of the suit. 11. We propose to take up the last contention of the learned counsel for the appellants first because the entire argument is built up on the ground that the appellants were in possession of the property in suit at the time of the institution of the suit. 11. The learned counsel for the appellants, in order to show that the appellants were in possession on the date of the institution of the suit, referred to the impugned order and submitted that the court below has given a finding to the effect that defendant no. 1 through defendants nos. 2 to 4 was in possession of the property. It is, as a matter of fact, not a finding of the court below but has been mentioned in the course of narration of the facts of the case. In the agreement dated June 12, 1984, on the basis of which specific performance of contract has been sought by the plaintiff-respondents, it is mentioned that the property in suit has already been leased out to Manoj Kumar Poddar. Subsequent to the institution of the suit in question for specific performance of contract, Kanpur Exports (P) Ltd., and the appellants initiated a friendly proceedings of arbitration at Delhi and obtained award dated November 20, 1984 declaring appellants as owners of the property in dispute entitled to take possession of the bungalow in question free from all encumbrances and interference and the Company was allowed to receive as refund of rupees two lacs twenty two thousand five hundred from the appellants and on the basis of the decree prepared in Suit No. 1857-A of 1984, in which the said award was made rule of the Court, the appellants got possession in Execution Case No. 11 of 1985 of District Judge, Kanpur on April 8, 1985. Manoj Kumar Poddar initiated proceedings under Order XXI rule 99 of the Code on April 10, 1985 for getting back the possession of the property in suit with damages. The said proceedings are stayed till the decision of Suit No. 1252 of 1985, pending in the Delhi High Court. By the said suit (Suit No. 1232 of 1985) the plaintiffs and Manoj Kumar Poddar had sought cancellation of the decree of the Suit No. 1857-A of 1985. The learned trial court has narrated all the facts in the order. 12. By the said suit (Suit No. 1232 of 1985) the plaintiffs and Manoj Kumar Poddar had sought cancellation of the decree of the Suit No. 1857-A of 1985. The learned trial court has narrated all the facts in the order. 12. It may be mentioned here that the property in question, as alleged by the appellants was purchased by them in 1979 for a consideration of rupees two lacs from Shanti Narain Verma. However, by Suit No. 267 of 1980, filed by Kanpur Exports (P) Ltd., against Shanti Narain Verma, it was declared on February 19, 1982 that . Kanpur Exports (P) Ltd. was owner in possession of the bungalow in suit and Shanti Narain Verma would have no right to get it repurchased. The position, therefore, is that on the date of the institution of the Suit No. 537 of 1984 Kanpur Exports (P) Ltd., was the owner of the property in suit and Manoj Kumar Poddar was in possession as lessee on its behalf. The appellants initiated the proceedings during the pendency of the suit by way of aforesaid arbitration case. IT opened the door of various legal proceedings for the parties to get edge over the other. The fight between the parties is bitter, perhaps, because the subject matter is financially succulent. Moreover, the rule of lis pendens, contained in section 52 of the Transfer of Property Act, is not to annul the conveyance, or the transfer otherwise; but only to render it subservient to the rights of the parties to a litigation. Its effect in only to bind the transferee, if he happens to be a third person, with any decree that is made in the suit. In this view of the matter the other argument of the learned counsel for the appellants that the learned trial court should not have proceeded to reject the prayer on the considerations of orders in other procedings and, thus, fell in error in holding that the appellants ought to take recourse of restitution proceedings under section 144 of the Code because the appellants were in lawful possession of the premises in suit at the time of institution of the suit loses force. 13. In the case of Gangadhar v. Raghubar Dayal, AIR 1975 Alld. 13. In the case of Gangadhar v. Raghubar Dayal, AIR 1975 Alld. 102, cited on behalf of the appellants, the Full Bench held that : "On the authority of these cases and on the principle contained in the maxim actus curiae neminem grayabit it is really the duty of the Court to grant restitution under its inherent powers when a person has been deprived of his property due to an order of Court which has subsequently been varied or reversed as being erroneous In our opinion, on the facts of the instant case, even if respondents 7 to 10 could not invoke the powers of the Court to grant restitution under section 144 Civil Procedure Code, they could certainly do so under section 151, Civil Procedure Code." 14. Similarly, in the case of Rakesh Singhal v. Vth Additional District and Sessions Judge, 1989 AWC 1360 , relied upon by the appellant it has been held that : "Section 144 CPC deals with the powers of the court for making of an order of restitution in particular class of cases. The section is not exhaustive but is only enumerative, in those cases, where section 144 CPC is not attracted as such, the principle can be borrowed and made applicable in dispensing with substantial justice under its inherent powers." In view of this proposition of law the argument of the learned counsel for the appellants that no restitution application under section 144 of the Code could be made before the appropriate court carries no weight because in any case the application for restitution could be made before the appropriate court invoking the inherent powers of the court under section 151 of the Code. 15. The learned counsel for the appellants next argued that it is not only wrongful entry alone which constitutes trespass but lawful entry will also amount to trespass if it is wrongfully continued. The 'reference to section 441 of the Indian Penal Code has also been made in this context. The argument on behalf of the appellants is that after the dismissal of the rent control case and the original Suit No. 1857-A of 1984, continuance of the possession of the plaintiffs will amount to trespass. In support of this argument reliance has been placed on behalf of the appellants on the case of Smt. Sonawati v. Sri Ram, AIR 1968 SC 466 . In support of this argument reliance has been placed on behalf of the appellants on the case of Smt. Sonawati v. Sri Ram, AIR 1968 SC 466 . In this case the appeal arising out of the suit for possession was dismissed holding that : "A trespasser who has no right to be in possession by merely entering upon the land forcibly or surreptitiously cannot be said to be a person in cultivatory possession" within the meaning of section 3 of U. P. Act 31 of 1952. A person who has no right to occupy land may reply upon his occupation against a third person who has no better title, he cannot set up that right against the owner of the land. By forcibly occupying the land after 1358 Fasli, a person cannot acquire as against the bhumidhar of the land the rights of an adhivasi by virtue of section 3 of the U. P. Act 31 of 1952 " 16. In that case the trespasser made. the trespass by forcefully entering upon the land and, therefore, was not held to be in cultivatory possession within the meaning of section 3 of the U. P. Act 31 of 1952. The facts of that case are quite different with the facts of this case and, therefore, is of no help to the appellants. 17. We have deduced from the facts of the case that it is wrong to say on behalf of the appellants that they were in possession on the date of the suit. WE have already mentioned that the appellants took possession of the property in suit, after the institution of the suit, in Execution case No. 11 of 1985. 18. In the circumstances and facts of the case no case for grant of temporary mandatory injunction under the inherent powers of the Court to restore possession to the appellants of the property in dispute is made out in this suit No party has a right to insist upon the Court to invoke its inherent jurisdiction with respect to the matter affecting substantive right of the parties. It is an established principle of law that multiplicity of action alone is not sufficient to invoke inherent jurisdiction, as has been held in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 . It is an established principle of law that multiplicity of action alone is not sufficient to invoke inherent jurisdiction, as has been held in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 . Moreover, in the case No. 1714 of 1990 the Delhi High Court, by its order dated May 25, 1990, has issued an ad interim injunction to maintain status quo. Any order in exercise of inherent powers to restore possession to the appellants would be in violation of the aforesaid order of maintaining status quo. The argument of the learned counsel for the appellants that by status quo what is meant is that the parties have to maintain the position as envisaged at the time of the institution of the Suit No. 537 of 1984. We, however, do not agree with this argument. Obviously, the order of maintaining status quo meant that the parties were to maintain the position of the possession of the property in dispute on the date of the order itself and has nothing to do with the position of possession on the date of the institution of the Suit No. 537 of 1984. Further this reasoning is of no help to the appellants because the property was in possession of Manoj Kumar Poddar as lessee at the time of institution of the suit. Valuable right of the parties are involved in this case and the parties, as stated above, are trying to outwit each other by one way or the other. The learned trial court has, by the impugned order, suitably safeguarded the interest of the appellants by restraining the plaintiffs from further demolishing or damaging the disputed premises or from constructing over it 'or changing its user and nature and from transferring its possession to any one during the pendency of the suit in any manner whatsoever. It has also been made clear in the impugned order that the order is without prejudice to the right of the defendants- appellants to seek appropriate remedy through the process of law in any other action. It has also been made clear in the impugned order that the order is without prejudice to the right of the defendants- appellants to seek appropriate remedy through the process of law in any other action. It may also be mentioned here that the Supreme Court, while dismissing the Special Leave Petition No. 10249 of 1990, has observed as below : "The appropriate remedy in these circumstances would be a suit for compensation in the Civil Court and we do not think in appeal we can protect the interest of the petitioner adequately. We accordingly decline to interfere in the special leave petition and leave the petitioner to work out her remedy in accordance with law. In case a suit is filed, the trial court, if moved, will certainly consider the making of interim order to protect the petitioner particularly when she has been alleging that her title has been alleging in the award already made a rule of the Court." 19. For the reasons given above and keeping in view the entire material placed before us, we come to the conclusion that the appeal has no merits and we, accordingly, dismiss it. Appeal dismissed.