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Deepali Bhattacharya v. Ramji And Others
Judgment Summary — N.N. Mithal, J.
Factual and Procedural Background
The appeal arises from an order refusing to grant an injunction in favour of the appellant in a suit filed by the appellant and proforma-respondent no. 5 for a declaration and for injunction. The property in dispute originally belonged to Ishwar Chand; by a partition dated 25.8.1965 House No. D.52/62, Laxmikund fell to Suresh Chandra (the appellant's father). Suresh Chandra died after the Hindu Succession Act, 1956 came into force, leaving heirs including the appellant and proforma-respondent no. 5 (the widow).
The appellant's case is that the heirs (four in number) each had a one-fourth share in the property, but respondent no. 4 purportedly transferred the entire house to respondents 1 and 2 by a sale deed dated 4.3.1978. The appellant alleged that respondent no. 4 had no right to transfer more than his one-fourth share and that the sale deed was therefore invalid as against the plaintiffs.
The property comprised five kachcha kothries occupied by a tenant (Suraj Bali) and two other kothries plus open land in possession of predecessors-in-title. Proceedings under Section 21 (for release of accommodation) were filed by respondents 1 and 2 and allowed; an appeal by the tenant was dismissed. When respondents 1 and 2 initiated possession proceedings under section 23 of U.P. Act 13 of 1972, the appellant filed objections claiming to be a co-sharer; those objections were rejected on 3.11.1989. A writ petition produced a direction dated 12.12.1989 that proceedings under Section 23 were to be taken against the tenant or anyone claiming under him, with a proviso protecting actual possessors. At trial the Prescribed Authority found that the petitioners were not in possession and rejected their objections; a revision was dismissed.
The appellant thereafter filed Suit No. 718 of 1989 (from which the present First Appeal From Order arises). The plaint, annexed to the stay application, sought (i) a permanent injunction restraining defendants 1 and 2 from interfering with possession and use of the property by the plaintiffs and defendant no. 3 or their heirs/successors and from evicting them without a proper decree, and (ii) a declaration that the sale deed dated 4.3.1978 executed by defendant no. 4 is not binding on the plaintiffs and defendant no. 3.
Legal Issues Presented
- Whether the appellant was entitled to a temporary injunction restraining respondents 1 and 2 from interfering with possession of the disputed property (including restraint on eviction) pending adjudication of the suit.
- Whether the sale deed dated 4.3.1978 executed by respondent no. 4 is binding on the plaintiffs (i.e., whether the plaintiffs are entitled to a declaration that the sale deed is not binding).
- Whether the appellant had made out the necessary ingredients for grant of interim injunction — specifically, whether there was a strong prima facie case, a likelihood of irreparable injury, and balance of convenience in her favour — particularly in light of questions of actual possession.
Arguments of the Parties
Appellant's Arguments
- The appellant asserted that she was a co-sharer (entitled to one-fourth share) and therefore could not be evicted or deprived of possession until the suit was finally decided.
- The appellant sought (via her plaint and the stay application) a permanent injunction restraining defendants 1 and 2 from interfering in possession and a declaration that the sale deed dated 4.3.1978 is not binding on the plaintiffs.
Respondents' Arguments
- Learned counsel for respondents pointed out that plaintiff no. 2 (proforma respondent no. 5) and respondent no. 3 had dissociated themselves from the appellant's claim.
- Respondents relied on prior proceedings under Section 21 and Section 23 (U.P. Act 13 of 1972) in which need of the landlords (respondents 1 and 2) was found to be bona fide and genuine and the tenant's appeal had been dismissed, supporting their right to possession.
- Respondents challenged the appellant's asserted possession through her power of attorney holder Nand Lal Dubey, contending that he occupied an adjoining portion and had nothing to do with the disputed property and that his alleged possession was a device to assert the appellant's claim.
- Respondents pointed to the Rent Control Inspector's report and other material indicating that some tenants had vacated rooms and that eviction of tenants did not prejudice the appellant.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The court began by examining whether the impugned order of the court below was illegal or suffered from any legal infirmity and concluded the appellant had not shown any such illegality or infirmity. The court proceeded to apply the established threefold test for grant of an injunction: (i) existence of a strong prima facie case in the plaintiff's favour, (ii) likelihood of irreparable injury if injunction is refused, and (iii) balance of convenience in favour of the plaintiff. The court emphasized that absence of any one of these ingredients disentitles the plaintiff to an injunction.
Applying these principles to the facts before it, the court observed that even if the appellant had a share in the property, she had not demonstrated a likelihood of irreparable injury or that the balance of convenience lay in her favour. A central factual consideration was actual possession: the plaintiffs (including the appellant) were residing elsewhere (Kanpur and Allahabad) and were not in actual possession of the disputed premises. The court treated actual possession as a significant factor in assessing irreparable injury and balance of convenience.
Regarding the portions of the property, the court noted that respondents 1 and 2 had obtained orders for eviction of tenants and that the tenants' appeals had been dismissed; three of the rooms (according to the Rent Control Inspector's report submitted by the appellant) had already been vacated and hence delivering possession of those rooms to respondents 1 and 2 would not prejudice the appellant. The two kothris and open land alleged to be in plaintiffs' possession through their power of attorney holder (Nand Lal Dubey) were subject to dispute: the Prescribed Authority and the court below had found insufficient prima facie proof of his possession, and respondents contested that he occupied the adjoining portion only. Accepting the reasons of the court below, this Court found no prima facie proof that Nand Lal Dubey was in possession of those two kothris.
On balance of convenience the court reasoned that, even if the appellant ultimately succeeded in her suit, her relief would be to a one-fourth share in the property; delivery of possession pending suit would not alter the substantive rights transferred by the sale deed vis-à-vis the vendor's share. The court therefore held that restraining respondents from executing possession orders was unjustified. To protect equities, however, the court imposed a condition concerning reconstruction: if respondents demolished the two kothris, they must reconstruct them within two months at the same spot without altering the existing area, and respondents would not be entitled to claim compensation for any new construction if the appellant ultimately succeeded.
Holding and Implications
APPEAL DISMISSED
Direct effects of the decision:
- The appellate court dismissed the appeal against the order refusing interim injunction; the order refusing injunction therefore stands.
- Respondents 1 and 2 are permitted to execute their decree for delivery of possession insofar as the Prescribed Authority and trial court orders permit; three rooms vacated by tenants may be handed over to respondents without prejudice to the appellant's substantive claim.
- As to the two kothris alleged to be in plaintiffs' possession through Nand Lal Dubey, the court found no prima facie proof of plaintiffs' possession and declined to restrain execution in respect of those kothris. However, if respondents demolish those two kothris, they are directed to reconstruct them within two months at the same spot without altering existing area; any new construction will not entitle respondents to claim compensation in the event the appellant succeeds in the suit.
- No order as to costs was made; costs are to be borne by the parties themselves.
No broader precedent or novel legal principle was announced; the court applied established principles governing interim injunctions to the facts before it.
N.N Mithal, J.:— This is an appeal against an order refusing to grant the injunction in favour of the appellant. The facts as are available on record for our purposes may first be stated in a nutshell.
2. The present appeal arises out of a suit filed by the appellant and proforma-respondent no. 5 for a declaration and for injunction.
3. The facts on which the aforesaid suit was founded may be briefly stated here as these facts form the very backbone of the appellant's claim. One Ishwar Chand was the original owner of the property in suit as well as some other property. He had four sons and there was a partition amongst them on 25.8.1965 in which House No. D.52/62, Laxmikund fell to the share of Suresh Chandra, father of the appellant. The aforesaid Suresh Chandra died after the coming into force of the Hindu Succession Act, 1956. He left behind him widow, who is proforma respondent no. 5, the appellant, respondent no. 3 and respondent no. 4 as his heirs. The case of the appellant was that according to aforesaid pedigree, all the aforesaid four heir had 1/4th share each in the disputed property although the respondent no. 4 illegally purported to transfer the entire house in dispute to respondents 1 and 2 on 4.3.1978 It is alleged that the respondent no. 4 had no legal right to do so and by the sale deed respondents 1 and 2 can not claim any better title than held by respondent no. 4 i.e 1/4th share in the property. The house consisted of 5 kachcha kothries were occupied by tenant Suraj Bali while the other two kothries and open land continued to remain in possession of their predecessor-in-title. It is alleged that the appellant and her mother respondent no. 5 had shifted to Kanpur and therefore, respondent no. 4 alone used to look after the property and the plaintiff had very rare occasions of visiting the house. According to her, it was only on 16.2.1989 that she came to know that respondents 1 and 2 are now claiming to be the owners of the house under the sale deed dated 4.3.1978 The to be the owners of the house under the sale deed dated 4.3.1978 The said deed being invalid, the present suit was filed for the aforesaid reliefs. It appears on the allegations contained in plaint and other materials before us that respondents 1 and 2 had filed proceedings under Section 21 for release of the accommodation against the tenant (P.A case No. 106 of 1986) which was allowed and the need of the landlord was found to be bonafide and genuine. An appeal by the tenant against the said decision was dismissed when the landlord initiated proceedings for delivery of possession under section 23 of U.P Act 13 of 1972, the appellant filed an objection claiming to be the co-sharer and as such not bound by the order. This objection was rejected by the Prescribed Authority on 3.11.1989 The order was challenged by means of a writ petition and by order dated 12.12.1989 this Court directed that proceedings under Section 23 are to be taken against the tenant or any one claiming under him. If the prescribed Authority were to find that the petitioners (appellant and respondent no. 5) were actually in possession of the property the release order will not be executed against them. When the matter again went to the trial court the Court found that the petitioners were not in possession and, therefore, rejected the objections. A revision against that order was also dismissed. In the mean time the appellant had filed Suit No. 718 of 1989 out of which the present First Appeal From Order arises. The entire argument of the learned counsel for the appellant was that being a co-sharer in the property she was not liable to be evicted until the suit was finally decided. A copy of the plaint has been filed as Annexure ‘1’ to the stay application and we find that the suit was not for partition at all. The two main reliefs which have been sought are permanent injunction to restrain defendants 1 and 2 from interfering in the possession and use of the property by the plaintiffs and defendant no. 3 or their heirs or successors and also that without any proper decree not to evict them from the disputed property. The second relief claimed is for a declaration that the sale deed dated 4.3.1978 executed by defendant no. 4 is not binding against the plaintiffs and defendant no. 3.
4. It has been pointed out to us by the learned counsel for the respondent that plaintiff no. 2 (proforma respondent no. 5 in this appeal) and respondent no. 3 have dissociated themselves from the claim as set up on behalf of the plaintiff-appellant. However, since we are not aware as to what orders on this application have been passed by the trial court and the matter may still be subjudice and may be decided at the trial of the suit, we are refraining from making any observation in that regard. We are also not taking into consideration the written statement filed by respondent no. 3 or the application moved by proforma respondent no. 5.
5. After having heard the learned counsel for the parties, we find that the appellant has not been able to satisfy us that the order passed by the court below was in any way illegal or it suffers from any legal infirmity. Even assuming that the appellant had some share in the disputed property, that alone will not be sufficient to entitle her for the grant of temporary injunction. It is now well established that before any court should grant an injunction, it must be satisfied about its existence of the three main ingredients i.e, strong prima facie case in favour of the plaintiff, likelihood of irreparable injury being caused on the refusal of injunction and existence of balance of convenience in favour of the plaintiff. Should any of these ingredients be absent, the Court will not be justified in granting injunction. Even if it is assumed that the appellant on the basis of allegations made by her was entitled to a share in the property, yet it was also necessary for her to establish that there was likelihood of any irreparable injury being caused to her and that balance of convenience lay in her favour. The main consideration in this regard would be whether the plaintiff was actually in possession of the property or not. Admittedly the plaintiff no. 1 is residing at Kanpur while plaintiff no. 2 (respondent no. 5 here) was admittedly a resident of Allahabad. None of them, therefore, was residing. In the property in question. Even if respondents 1 and 2 are not delivered possession over the disputed property, no irreparable injury is likely to be caused.
6. As we have seen earlier, respondents 1 and 2 have already obtained an order for the eviction of the tenants and the appeal filed by the tenants has already been dismissed. The tenants, therefore, are not in the picture at all. There can be no justification, therefore, in refusing delivery of possession over the portion which was in the occupation of the tenants. Annexure-3 to the affidavit filed by the appellant herself which is the report of the Rent Control Inspector shows that the three tenants Panna Lal, Bharat and Phool Chand have already vacated three of the rooms of the disputed property. If respondents 1 and 2 are able to execute their decree in respect of the said rooms, the appellant will not be prejudiced in any manner.
7. The question now remains regarding the two kothris and open land which according to the Inspector's report was in possession of the plaintiffs through their power of attorney holder Nand Lal Dubey. The possession of Nand Lal Dubey, however, is seriously disputed by the respondents. It is urged on their behalf that he has occupied the adjoining portion of the property and has nothing to do with the disputed property at all and he has been put up by the plaintiff in order to assert her claim to the property. Agreeing with the reasons given by the court below in this regard, we are of the opinion that Nand Lal Dubey is not in possession of the aforesaid two Kothris and there is no prima facie proof of this fact on the record. There can be, therefore, no justification for restraining the respondents from executing the order for delivery of possession in respect of two Kothris also.
8. On the question of balance of convenience, we do not find anything in flavour of the appellant. Even if the possession is delivered to respondents 1 and 2 and ultimately the suit of the appellant is decreed, the only result will be that she will be entitled to 1/4th share in the property. The rights which stand transferred to the respondents no. 1 and 2 under the Sale Deed dated 4.3.1978 can neither be increased nor reduced merely by delivery of possession. On appellant's succeeding in her suit, she can claim heir share in the property and the Court can in appropriate circumstances even order demolition of construction if any raised by the transferee who was not entitled to anything more than his vendor's share. However, in order to adjudge the equities between the parties and in order to see that they are not in any way prejudiced in future, we direct that should the respondents demolish the two kothris they will reconstruct the same within two months of their demolition at the same spot without altering the existing area thereof and in the event of appellant's succeeding in her suit, the respondent shall not be entitled to claim any compensation for the new construction.
9. In view of what we have said, we find no merit in this appeal and accordingly the same is dismissed. It is, however, made clear that should the respondents want to demolish these two kutchcha kotharis these shall be reconstructed at the same spot in bricks work without altering their existing area. These constructions shall be subject to the final decision of the suit and shall not entitle the respondents to claim any compensation or consideration in respect thereof in future. With these observations the appeal is, disposed of. We, however make no order as to costs which shall be borne by the parties themselves.
10. Appeal Dismissed.
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