RAJIV SINGH v. GURMEET SINGH — 1998 DIGILAW 327 (DEL)

K. S. GUPTA ( 2 ) SUIT No. 2414/97 has been filed by Rajeev Singh against Gurmeet Singh and Jasbir Singh alleging that both the defendants are the owners of property No. 12, Krishna Market, Kalkaji, New Delhi and for sale thereof they entered into an agreement to sell dated 12th March, 1995 with the plaintiff for a total consideration of Rs. 5,20,000. 00 Plaintiff paid Rs. 5,00,000. 00 to the defendants by means of three cheques on the date the agreement to sell was reduced into writing. It was stipulated in the aforesaid agreement that the balance amount of Rs. 20,000. 00 will be paid at the time of execution of the sale deed by the defendants after obtaining necessary permission from the concerned authorities. However, on the persuasion of the defendants the plaintiff paid the said balance amount to them on 1st June, 1995 on which date the aforesaid agreement was registered in the Office of the Registrar against registration No. 3100 entered in Addl. Book No. 1, Volume No. 482 at page A 79 to 81. It is further alleged that towards part performance of the aforesaid agreement the defendants put the plaintiff in actual and physical possession of the entire first floor and a portion of the ground floor of the property. One shop on the ground floor was in the tenancy of M/s. Brooke Bond Lipton India Ltd. , while second floor portion of the property was under the tenancy of Rajiv Verma. Plaintiff was also put in constructive possession of the tenanted portions by the defendants. M/s. Brooke Bond Lipton India Ltd. later on surrendered the tenancy and thus the entire ground floor of the property came to be occupied by the plaintiff. It is stated that the defendants on being contacted by the plaintiff in the morning on 13th November, 1997 to execute the sale deed, told the plaintiff that they would not take any steps nor, had they taken any steps so far to execute the sale deed. They refused to execute the sale deed. It was prayed that a decree of specific performance of the aforesaid agreement be passed against the defendants and they be ordered to execute the sale deed in favour of the plaintiff after completion of the requisite formalities of obtaining permission etc. from the concerned authorities. They refused to execute the sale deed. It was prayed that a decree of specific performance of the aforesaid agreement be passed against the defendants and they be ordered to execute the sale deed in favour of the plaintiff after completion of the requisite formalities of obtaining permission etc. from the concerned authorities. Decree of perpetual injunction is further sought to be passed restraining the defendants from entering into any sale agreement in respect of the said property in favour of a third person. ( 3 ) DEFENDANTS have contested the suit by filing joint written statement. It is, inter alia, pleaded that defendant No. 1 had full faith in the plaintiff they being old friends. Plaintiff persuaded the defendants to execute the agreement to sell, GPA and Wills in respect of the suit property in his favour on the pretext of protecting the property from their sisters. Plaintiff assured defendant No. 1 that he would re-transfer the property in defendants favour after sometime. No money was ever paid by the plaintiff to the defendants for executing the aforesaid documents. It is further pleaded that defendant No. 2 was minor at the time the agreement to sell in question was executed. It is denied that the defendants put the plaintiff into possession of the suit property as alleged. It is stated that the plaintiff on not being able to obtain forcible possession of the suit property, attacked defendant No. 1 as a result whereof he was to be hospitalised for treatment. ( 4 ) SUIT No. 2679/97 was filed by Gurmeet Singh and Jasbir Singh against Rajeev Singh after the filing of S. No. 2414/97 seeking cancellation of the agreement to sell dated 12th March, 1/st June, 1995, GPA and the Wills both dated 14th March, 1995 in respect of property No. 12, Krishna Market, and also restraining Rajeev Singh from taking possession of the second floor of the property and trespassing into the said property. Allegations made in the plaint are somewhat similar to those taken in the joint written statement filed by both these plaintiffs in S. No. 2414/97. Case set up in the written statement by Rajeev Singh is by and large identical to that taken in the plaint in S. No. 2414/97. Allegations made in the plaint are somewhat similar to those taken in the joint written statement filed by both these plaintiffs in S. No. 2414/97. Case set up in the written statement by Rajeev Singh is by and large identical to that taken in the plaint in S. No. 2414/97. ( 5 ) IA 10512/97 under Order XXXIX Rules 1 and 2 read with Section 151 Civil Procedure Code was filed by Rajeev Singh for grant of ad interim injunction restraining Gurmeet Singh and Jasbir Singh from selling or creating any charge or entering into any agreement with third party in respect of said property No. 12, Krishna Market pending disposal of the suit. IA 360/98 was filed for modification of the ex parte injunction order dated 19th November, 1997 and to restrain Gurmeet Singh and Jasbir Singh from dispossessing Rajeev Singh from the said property during the pendency of the suit. ( 6 ) IA 11645/97 was filed by Gurmeet Singh and Jasbir Singh under Order XXXIX Rules 1 and2 read with Section 151 Civil Procedure Code for issue of ad interim injunction restraining Rajeev Singh from forcibly dispossessing them from the said property etc. IA 11717/97 was filed by Rajeev Singh for vacation of the ex parte injunction order dated 19th December, 1997. ( 7 ) I have heard the learned counsel of the parties and have been taken through the records. ( 8 ) IN S. No. 2414/97 Rajeev Singh, plaintiff has filed a number of documents in support of the claim that he was put in actual possession of the portions of the suit property not occupied by the tenants as well as in constructive possession of the portions of the property occupied by the tenants at the time the agreement to sell dated 12th March, 1995 was executed. In para No. 2 of the agreement to sell placed on the file it is stated that Gurmeet Singh and Jasbir Singh have delivered possession of the suit property to Rajeev Singh on receiving Rs. 5,00,000. 00 from him. Ground floor of the property is in the tenancy of M/s. Brooke Bond Lipton India Ltd. while the second floor is with Figuretess Incorporation and Rajeev Singh is empowered to deal with both these tenants in the manner he deems fit as regards rent and eviction. 5,00,000. 00 from him. Ground floor of the property is in the tenancy of M/s. Brooke Bond Lipton India Ltd. while the second floor is with Figuretess Incorporation and Rajeev Singh is empowered to deal with both these tenants in the manner he deems fit as regards rent and eviction. In three original registration-cum-demand notes (at pages 9 to 11) issued by MTNL on 19th March, 1996, address of Rajeev Singh is noted that of the suit property, i. e. , 12, Krishna Market, Kalkaji. In the original receipt for Rs. 100. 00 (at page 14) presumably for deposit of fine on 19th September, 1997 with Sh. Y. P. Raheja, Municipal Magistrate, name of Rajeev Singh with address that of the suit property is noted. Bill dated 27th October, 1997 (at page 15) was issued by the Corporation in the name of the saidRajeev Singh on the address of the said property. At pages 16 to 22 are placed the original receipts issued by Kalkaji Krishna Market Association on account of the payment of chowkidari charges for the months of January, February, March, May, June, July and October 1997 in respect of property No. 12, Krishna Market, Kalkaji. All these receipts are in the name of aforesaid Rajeev Singh. In the photostat copies of wafer bill dated 12th July, 1995 (at page 23) and receipt of payment of water charges (at page 25) issued by the Corporation in respect of the suit property, name of aforesaid Rajeev Singh is mentioned. At pages 26 to 28 are placed original envelopes sent by MTNL to aforesaid Rajeev Singh on the address of the suit property. All of them bear the date of despatch as 7th January, 1997. In the photostat copies of the Fire Policies at page 29 issued on 25th March, 1996 and at page 31 issued on 21st March, 1997, name of the insured is noted as Rajeev Singh with address that of 12, Krishna Market, Kalkaji. It may be noticed that in S. No. 2679/97 in IA No. 11718/97 filed by aforesaid Rajeev Singh, by the order dated 29th December, 1997 Sh. Sanjay Abott, Advocate was appointed as Local Commissioner to inspect the suit premises and to report as to who is in actual physical possession thereof. Local Commissioner visited the suit property on 29th December, 1997 itself at about 4. Sanjay Abott, Advocate was appointed as Local Commissioner to inspect the suit premises and to report as to who is in actual physical possession thereof. Local Commissioner visited the suit property on 29th December, 1997 itself at about 4. 45 p. m. It is in the report of the Local Commissioner that when he reached there, Akhand path was going on in the shop. Two beds, two sofa sets, one dining table with chairs, one dressing table, four centre tables, one setti and one office take with chairs were found lying there. Smt. Indira, mother of Rajeev Singh was reading the Akhand path. Local Commissioner also recorded the statements of Bal Kishan, Kiran Singh, B. K. Malik and Inderjit who run business in the nearby shops in Krishna Market and all of them informed the Local Commissioner that it was Rajeev Singh who has been in possession of the shop on the ground floor of the suit property. It may be noted that in the replication filed in S. No. 2679/97 plea taken by Gurmeet Singh and Jasbir Singh is that on the date the Local Commissioner inspected the suit property Rajeev Singh occupied the same and started performing Pooja with intention of defrauding the officer of the Court. Assuming for the sake of argument that Rajeev Singh occupied the shop on the ground floor on 29th December, 1997 before the Local Commissioner visited the site as alleged, how could the name of said Rajeev Singh with address of 12, Krishna Market, appear on numerous documents referred to above starting from 12th March, 1995 onwards. Photostat copy of the birth certificate filed alongwith the written statement in S. No. 2679/97 indicates the date of birth of Jasbir Singh as 11th November, 1976. Also taking note of the receipt in regard to payment of Rs. 20,000. 00 and absence of specific denial in the joint written statement in S. No. 2414/97 about the receipt of Rs. 5,00,000. Also taking note of the receipt in regard to payment of Rs. 20,000. 00 and absence of specific denial in the joint written statement in S. No. 2414/97 about the receipt of Rs. 5,00,000. 00 through three cheques on 12th March, 1995, I have no hesitation in prima facie holding that Rajeev Singh was put in possession of the suit property by Gurmeet Singh and Jasbir Singh on 12th March, 1995 and it is he who is in actual possession of the ground and first floor portions of the suit property besides being in constructive possession of the second floor portion thereof in the tenancy of Rajiv Verma, tenant. Non-grant of the ad interim injunction is likely to cause irreparable injury to said Rajeev Singh. Balance of convenience too lies in his favour. ( 9 ) RESULTANTLY, IA 11645/97 is dismissed and the order dated 19th December, 1997 is vacated. IAs 10512/97 and 360/98 are accepted. In view of the mistake committed in passing part of the order dated 19th November, 1997, in supersession of that order fresh order is passed restraining Gurmeet Singh and Jasbir Singh from transferring, creating any charge, or entering into any agreement with third person in respect of the property No. 12, Krishna Market, Kalkaji till the disposal of the suit. They are further restrained from forcibly dispossessing Rajeev Singh from the aforesaid property till then. ( 10 ) LET a copy of this order be placed on the file of S. No. 2679/97.