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2009 DIGILAW 444 (UTT)

APAR REAL ESTATE (P) LTD. v. NEELAM SINGH

2009-08-24

PRAFULLA C.PANT

body2009
Judgment This first appeal is directed against the judgment and decree dated 17.07.2003, passed by the Additional District Judge, Nainital, in Civil Suit No. 75 of 1998, whereby said court had dismissed the suit. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts, giving rise to this appeal, are that plaintiff/appellant instituted civil suit No. 75 of 1998, for permanent injunction restraining the defendants from transferring the rights over the property, shown by red letter (sic) in the plaint map. A further prohibitory injunction has been prayed restraining the defendants from interfering in the peaceful possession of the plaintiff over the basement of the cottage, in suit. Also further prohibitory injunction has been sought restraining the defendants from making alterations in rooms, removal of furniture, fixtures and fittings in the cottage, in suit. Lastly, a mandatory injunction has been sought directing the defendants to vacate the premises occupied by them. It is pleaded by the plaintiffs in the plaint that the plaintiff purchased land along with the dilapidated cottage known as ‘Clifton Oaks’ in Ayarpatta, Mallital, Nainital, from one Shashi Raj Singh through registered sale deed dated 04.07.1991. Thereafter, the plaintiff raised two duplex cottages over the land purchased by them, Defendants No. 1 Smt. Neelam Singh entered into agreement dated 09.09.1993, with the plaintiff to purchase property in suit. The defendant No. 1 did not comply the terms of the agreement, due to which a dispute arose between the plaintiff and defendant No. 1. Consequently, defendant No. 1 filed a petition under Section 20 of the Arbitration Act, 1940, in the High Court of Delhi, bearing Petition No. 1154 of 1994. While, said petition was pending, on 04.06.1998, the defendants took forcible possession of the property in suit, occupying major portion of duplex cottage No. 1, shown by red colours in the plaint map. On this, plaintiff filed a complaint to the police on which proceedings under Section 145 of Cr.P.C., were initiated. Since, the defendants are threatening to take possession of remaining portion of the property in suit and likely to cause damage to the property, and also to alienate the property, this suit is instituted by the plaintiff. 4. Defendants contested the suit and filed their written statement before the trial court. Since, the defendants are threatening to take possession of remaining portion of the property in suit and likely to cause damage to the property, and also to alienate the property, this suit is instituted by the plaintiff. 4. Defendants contested the suit and filed their written statement before the trial court. It is pleaded by them that the defendants are co-owners of the property in suit and the property in their co-possession. It is denied that defendant No. 1 did not comply with the terms mentioned in agreement dated 09.09.1993. It is further stated that the possession of the defendants is not unlawful. As to the proceedings under Section 145 of Cr.P.C., it is stated that the plaintiff had initiated the same for multiplying the litigation between the parties for unlawful gain. It is denied that defendants intended to transfer the property or to cause any damage to it. In the additional pleas it has been stated that in pursuance to the agreement dated 09.09.1993, the defendant No. 1 has deposited the entire amount of consideration (i.e. rupees nine lakh only), which includes Rs. 3,00,000/- deposited by defendant No. 1 in pursuance to the orders of the Delhi High Court, where the arbitration case was pending. 5. On the basis of the pleadings of the parties, the trial court framed following issues: i) Whether, the plaintiff is the sole owner in possession of the property in suit, as alleged in Para 2 of the plaint? ii) Whether, the defendant has forcibly occupied cottage No. 1 on 04.06.1998, if so, its affect? iii) Whether, the agreements dated 09.09.1993, between the plaintiff and defendant No. 1, are null and void? iv) Whether, the defendant No. 1 has got possession of cottage No. 1 in suit in pursuance to the agreement dated 09.09.1993, if so, its effect? v) To what relief, if any, the plaintiff is entitled? After recording the evidence and hearing the parties, the trial court found that though the plaintiff is owner of the property in suit, but the possession of the defendant in pursuance to the agreement dated 09.09.1993, between the plaintiff and defendant No.1, makes it (possession of the defendants) lawful. Consequently, the plaintiff is not entitled to the relief claimed by him. Consequently, the plaintiff is not entitled to the relief claimed by him. Aggrieved by said judgment and decree dated 17.07.2003, passed by Additional District Judge, Nainital, in Civil Suit No. 75 of 1998, this appeal has been preferred by the plaintiff under Section 96 of the Code of Civil Procedure, 1908. 6. Points of determination before this Court are as under: 1) Whether, the possession of the defendants in the property in suit, is forcible and unlawful? 2) Whether, the plaintiff is entitled to the relief of injunction, as claimed by him, in the suit? Discussion on points of determination No. 1 & 2: 7. It is not disputed between the parties that before 09.09.1993, plaintiff was the owner in possession of the property, in suit. In para 2 of the written statement filed on behalf of the defendants before the trial court it is stated that contents of Para 2 of the plaint are not disputed, which means that the plaintiff purchased the land in suit known as ‘Clifton Oaks’ vide sale deed dated 04.07.1991, and its name was recorded in the municipal record. It is also not disputed between the parties that on 09.09.1993, parties entered into agreements under which the defendant No. 1 agreed to purchase, cottage No. 1 for Rs. 9,00,000/-, out of which Rs. 6,00,000/- were received by the plaintiff at the time of agreement. It has also come on the record that when the arbitration case was pending before Delhi High Court, in pursuance to said High Court’s order remaining amount of Rs. 3,00,000/- was also paid by the defendant No. 1 to the plaintiff. The plaintiff, who has sought relief of injunction, which is a relief equitable in nature, has himself not come with clean hands. He has nowhere disclosed that he has received Rs. 6,00,000/- at the time of agreement. It is settled principle of law that a person who hasn’t come with clean hands is not entitled to the equitable relief of injunction. 8. Learned counsel for the plaintiff/appellant argued that since the defendant No. 1 did not comply the terms of the agreement dated 09.09.1993, as such, her possession is illegal. Again, this Court is reminded of the unclean hands with which the plaintiff has come. An agreement of sale of immovable property is required to be a registered deed. Without getting such agreement registered and after accepting Rs. Again, this Court is reminded of the unclean hands with which the plaintiff has come. An agreement of sale of immovable property is required to be a registered deed. Without getting such agreement registered and after accepting Rs. 6,00,000/- in pursuance thereto, the plaintiff cannot take advantage of his own wrong. Not only this, plaintiff has tried to deprive the State exchequer of the court fee which is payable on the relief of possession. He has sought relief of possession under the garb of mandatory injunction. This again shows that conduct of the plaintiff. On perusal of the record of the case, this Court finds that findings of fact recorded by the trial court after appreciating the oral and documentary evidence on record, suffers from no illegality in coming to the conclusion that the possession of the defendants is not forcible or illegal. 9. P.W.1 D.K. Rastogi is the first witness who was got examined on behalf of the plaintiff. He himself has admitted that defendant No. 1 paid Rs. 6,00,000/- to the plaintiff on the date of agreement and the deal was for a total consideration of Rs. 9,50,000/-. He has further stated that as per the agreement, the plaintiff was required to sell cottage No. 1 to the defendant No. 1. When the defendant No. 1 did not pay remaining Rs. 3,00,000/-, within the period prescribed under the agreement, both the agreements stood cancelled. In the cross-examination he (P.W.1) states that defendants wanted refund of Rs. 6,00,000/-, which the plaintiff refused to give back on which they (defendants) took possession of cottage No. 1. On the other hand, D.W.8 Ashok Kumar Singh, husband of the defendant No. 1, has stated that no forcible possession was taken over the land in suit by the defendants on 04.06.1998. Rather, the possession was taken after entering into agreement between the defendant No. 1 and the plaintiff in respect of cottage No. 1. 10. Having gone through the entire record of the case and after considering submissions of learned counsel for the parties, this Court is in full agreement with the trial court that the possession of the defendant cannot be said to be illegal. Though, the ownership has not been transferred by the plaintiff, but the plaintiff has already accepted Rs. 9,00,000/- as consideration for sale of the property. Though, the ownership has not been transferred by the plaintiff, but the plaintiff has already accepted Rs. 9,00,000/- as consideration for sale of the property. Apart from this, the plaintiff has not come with the clean hands, as already discussed above. Therefore, the plaintiff is not entitled to the relief of injunction which is an equitable relief. As such, the dismissal of suit by the trial court does not require any interference. The points of determination No. 1 and 2 stand answered, accordingly. 11. In the result, the appeal is dismissed. However, no order as to costs.