TILAK RAJ v. HARISH JHAMB — 1996 DIGILAW 373 (DEL)

S. K. MAHAJAN ( 1 ) THE plaintiffs have filed this suit for permanent injunction on the allegations that plaintiffs 1 to 3 were the partners of plaintiff No. 4 and were carrying on business as real estate agents from the mezzanine floor of the property being No. R-7/b, Green Park Extension Market, New Delhi. It is alleged that plaintiff No. 1 representing himself to be the owner and in occupation of the property had let the said floor to the plaintiffs and vacant possession thereof was delivered to them. A Memorandum of Understanding is stated to have been executed between the parties whereunder the plaintiffs were entitled to use the premises in question as an office and defendants were to receive 25% of the earnings from the said business. It is alleged that the plaintiffs started running their business after taking possession of the mezzanine floor and a sum of Rs. 5,000. 00 was paid by cheque dated 21 st August, 1995 towards the rent which amount is alleged to have been duly received by the defendants by encashment of the cheque. A Maruti car is alleged to have been arranged by the plaintiffs to the defendant for his use and enjoyment on rental basis and it was allegedly agreed that the defendant would adjust a sum ofrs. 24,000. 00p. a. for use and enjoyment of the car against the rent to be paid by the plaintiffs and this amount of Rs. 24,000. 00 was allegedly agreed to be the minimum payment of rent for the premises. It is further alleged that some disputes had arisen between one M/s. Gochwal Leasing and Finance Private Limited, who is alleged to have purchased 5/6th share of the. property in question from Sh. Jagdish Jhamb, brother of the defendants and the said leasing company had filed a suit being suit No. 1749/95 for specific performance of the alleged agreement to sell; against an interim order passed in the said suit, an appeal being FAO. (OS ). 89/96 was filed before the Division Bench and during the pendency of the proceedings in appeal, a local commissioner was appointed who has submitted his report allegedly showing the plaintiffs to be in possession of the mezzanine floor of the property in question. (OS ). 89/96 was filed before the Division Bench and during the pendency of the proceedings in appeal, a local commissioner was appointed who has submitted his report allegedly showing the plaintiffs to be in possession of the mezzanine floor of the property in question. The further allegations in the plaint are that the defendants were now trying to interfere in the peaceful possession of the plaintiffs in the said mezzanine floor and the plaintiffs were, therefore, entitled to the grant of an injunction restraining the defendants from interfering with their right to enjoy the mezzanine floor of the property which is alleged to have been let to them by the defendants. ( 2 ) ALONG with the suit, an application for ad interim order of injunction was filed and this Court had by order dated 27th March, 1996 granted an ex parte order of injunction restraining the defendants from interfering with the possession of the plaintiffs in the mezzanine floor of the property. ( 3 ) ON being served with the ex parte order of injunction, the defendants besides filing the written statement, have also filed an application for vacating the said order. The grounds on which the ex parte order of injunction was sought to be vacated were that the attempt of the plaintiffs was to grab the entire property under forged and non-est documents; that plaintiffs were never in possession of any part of the suit property or at least at the time of filing of the suit as was allegedly evident from the report of the local commissioner who was appointed by the Division Bench of the Court in the appeal referred to above. It is contended in the written statement by the defendants that the defendants had witnessed a document between the plaintiffs and had signed all the pages of the said document, however, the plaintiffs it appears have replaced pages 1 and 2 of the said document so as to make this Court to believe that it was a partnership deed which was witnessed by defendant No. 1 whereunder the address of the firm had been given as the mezzanine floor of the property. The Memorandum of Understanding is also stated to have been fabricated as the same was alleged to have not been signed by defendant No. 1. The Memorandum of Understanding is also stated to have been fabricated as the same was alleged to have not been signed by defendant No. 1. It is stated that in fact defendant No. 1 was carrying on business under the name and style of Prime Properties at the said place and the plaintiffs had no connection with the said firm. It is stated that it was yet another effort on the part of the aforesaid M/s. Gochwal Leasing and Finance Private Limited, to grab the property after it had failed in its attempt to usurp the first and second floor of the property where the learned single Judge had vacated the ex parte order of injunction obtained by the aforesaid M/s. Gochwal Leasing and Finance Private Limited, in respect of first and second floor of the property holding that the receipts produced by the said plaintiffs did not appear to be genuine documents. It is alleged that it was only after the injunction was vacated by learned single Judge on 28th February, 1996 that the present suit had been filed claiming possession of the mezzanine floor. ( 4 ) THE original Memorandum of Understanding has not been placed on record. On being questioned as to where the original Memorandum of Understanding was, I was informed by learned counsel for the plaintiff that the same is in possession of defendant No. 1. A perusal of the report of the local commissioner shows that on 21 st March, 1996 when the local commissioner visited the premises, the mezzanine floor was found to be in possession and occupation of Mr. Harish Jhamb. Mr. Ravi Gupta, Advocate, who is rep resenting the plaintiff, was also present in the premises on 21 st March, 1996 when the local commissioner visited the same pursuant to the orders of Division Bench passed in the appeal filed by M/s. Gochwal Leasing and Finance Private Limited, as he was also representing the said leasing company. The relevant portion of the report of the local commissioner reads as under :- "the parties aforesaid agreed that the portion is in possession and occupation of Mr. Harish Jhamb. However, one person with the name of Tilak Raj came and. asserted that this portion is his office and he is doing the property dealers business under the name and style of "prime Properties". Harish Jhamb. However, one person with the name of Tilak Raj came and. asserted that this portion is his office and he is doing the property dealers business under the name and style of "prime Properties". He handed over certain photostat documents- (i) Partnership deed dated 1. 4. 1995and (ii)Memorandumofunderstanding. Both the documents are annexed. Mr. Anil Dalal the otherside had not raised any objection to this state of affair. " ( 5 ) THOUGH a person by the name of Tilak Raj had come and asserted himself that the mezzanine floor was his office and he was doing the property dealer s business under the name and style of Prime Properties and he handed over certain photostat copies of documents, namely, the partnership deed dated 1st April, 1995 and the Memorandum of Understanding to the local commissioner, however, no objection was raised by the director of M/s. Gochwal Leasing and Finance Private Limited that the mezzanine floor was in possession of defendant No. 1. A perusal of Memorandum of Understanding, alleged to have been entered into between the parties on 10th April, 1995, shows-thai neither the rate of rent has been mentioned therein nor it is mentioned as to from which date the possession of the mezzanine floor was handed over to the plaintiffs. Though the partnership deed which is alleged to have been witnessed by defendant No. 1 wherein the address of the partnership business has been given as the mezzanine floor of the property is dated 1st April, 1995, however, nowhere in the plaint or in any other document it is mentioned as to when the possession of this floor was handed over by defendant No. 1 to the plaintiffs. No document except the alleged Memorandum of Understanding dated 10th April, 1995 has been placed on record to show that the mezzanine floor was handed over to the plaintiffs by defendant No. 1 by way of tenancy. It does not appeal to reasoning that a portion of the property would be handed over to a tenant without getting any document executed from the tenant more so when admittedly the co-owners are litigating for this property. The premises has been mentioned to be in possession of the plaintiffs in the documents purporting to be the partnership deed and the tenancy must, therefore, have been created prior to 1st April, 1995. The premises has been mentioned to be in possession of the plaintiffs in the documents purporting to be the partnership deed and the tenancy must, therefore, have been created prior to 1st April, 1995. In case, the contention of the plaintiffs is accepted that the possession was delivered to the plaintiffs before 1 st day of April, 1995, there should have been some document to show the handing over possession in their favour or creation of tenancy by defendant No, 1 in favour of the plaintiffs. It is not even the case of the plaintiffs in the suit that the tenancy was created orally. It is also not the case of the plaintiffs that at any time prior to April, 1995 or even on 1 st April, 1995 any amount of rent was paid by the plaintiffs to the defendant for the premises in suit. The adjustment of alleged rental charges of the law against rent of the premises at the rate of Rs. 2,000. 00 - per month also appears to be an after thought as neither any document has been placed on record to justify this assertion nor it is mentioned as to how this figure of Rs. 2,000. 00 has been arrived at. Memorandum of Understanding alleged to have been signed by defendant No. 1 does not anywhere mentions about this amount. The story put forward by the plaintiffs does not inspire any confidence. Moreover, the Division Bench of this Court by judgment dated May 13, 1996 in FAO. (OS ). 89/96 has held that from the report of the local commissioner it would appear that Sh. Harish Jhamb was at least in possession of the basement, ground floor and mezzanine floor of the property. The report of the local commissioner which has been mentioned is the report referred to above prepared by him after his visit to the premises on 21st March, 1996. ( 6 ) IT is, therefore, clear that as on the date of filing of the present suit, the plaintiffs were not in possession of the mezzanine floor of the property which is alleged to have been let by defendant No. 1 to them. As the plaintiffs have, prima facie, failed to establish their possession in the premises in suit, I am not inclined to grant any stay in their favour. As the plaintiffs have, prima facie, failed to establish their possession in the premises in suit, I am not inclined to grant any stay in their favour. In my opinion, the plaintiffs are not entitled to any relief in the present application and the same is, accordingly, dismissed and exparte orders of injunction passed on 27th March, 1996 are vacated. ( 7 ) ANY observation made in this order, however, shall not affect the merits of the case.