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Shakuntia Vs. Hira Nand Sharma and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 411 of 1984
Judge
Reported inAIR1986Delhi27; 1985(9)DRJ185
ActsDelhi Rent Control Act - Sections 45; Transfer of Property Act, 1882 - Sections 53A; Code of Civil Procedure (CPC), 1908 - Sections 115
AppellantShakuntia
RespondentHira Nand Sharma and ors.
Advocates: S.K. Tiwari,; Usha Verma and; S.K. Taneja, Advs
Excerpt:
temporary injunction - if there is one principle of law which stands out in our jurisprudence, it is that possession should prima facie be protected. to some extent even a trespasser and wrong door is protected. in a doubtful case, it is better to maintain the status quo. - - in a doubtful case, it is better to maintain the status quo. prima facie, this factor of possession is a very strong factor in favor of the petitioner......was a tenant in a room situated on plot no. 546, guru ram dass nagar, which she gave up to take a room in plot no. 543 as a tenant at a monthly rent of rs. 5.00 . after the sale to the defendants, it was claimed that the defendants had started putting pressure on her to vacate the premises and, the defendants were trying to forcibly make her vacate the premises. the defendants case on the other hand was that they had got provisional possession from gulab singh under an agreement to sell and the plaintiff was nowhere in the picture at that time. the claim was that the plaintiff had previously been residing in plot no. 543, but she had been given a sum of rs. 9,400.00 by gulab singh to quit the property and thereafter she went to plot no. 546. after the possession was taken under the.....
Judgment:

D.K. Kapur, J.

(1) In a suit for permanent injunction based on a claim that she was a tenant in a portion of House No. 543, Guru Ram Dass Nagar, Delhi, the petitioner had claimed a temporary injunction. According to the case in the plaint, her husband was an owner of several plots including plot No. 543 which he had left by a will to his brother Gulab Singh. Gulab Singh sold this property to Hira Nand Sharma, the first defendant. In this plaint, she claimed that she was a tenant in a room situated on Plot No. 546, Guru Ram Dass Nagar, which she gave up to take a room in Plot No. 543 as a tenant at a monthly rent of Rs. 5.00 . After the sale to the defendants, it was claimed that the defendants had started putting pressure on her to vacate the premises and, the defendants were trying to forcibly make her vacate the premises. The defendants case on the other hand was that they had got provisional possession from Gulab Singh under an agreement to sell and the plaintiff was nowhere in the picture at that time. The claim was that the plaintiff had previously been residing in plot No. 543, but she had been given a sum of Rs. 9,400.00 by Gulab Singh to quit the property and thereafter she went to plot No. 546. After the possession was taken under the agreement to sell. she (the plaintiff) was allowed to reside for a short time in a newly built room, but thereafter she claimed that she was a tenant.

(2) The trial court granted an injunction as prayed for, but on appeal the Senior Sub-Judge has vacated the injunction on the footing that no prima fade case had been established by the plaintiff. The Court also referred to certain documents on record including a certificate issued by Gulab Singh in favor of the plaintiff as being capable of later manufactured. The plaintiff has now moved this Court in revision.

(3) According to the petitioner's case in this revision, the injunction has been vacated for insufficient grounds. On the other hand, the respondents claim that this Court has no jurisdiction to interfere in revision. And furthermore, the plaintiff has no case being only a kind of licensee in the premises. In a case of this type, the question is, should an injunction have been refused to the petitioner The refusal of the lower appellate Court to confirm the injunction is really a refusal to exercise jurisdiction. So, this Court has certainly jurisdiction under Section 115 of the Code of Civil Procedure because the lower appellate Court has refused to exercise jurisdiction by refusing the injunction. The question whether the injunction has been rightly or wrongly refused has now to be examined by me.

(4) There are two sides of the story before this Court. The story of the plaintiff and the story of the defendants. According to the plaintiff, she is a tenant, and she is residing in a room and has the certificate of Gulab Singh. Even according to the defendants, she was previously a tenant in this property but had been paid off and had left the property and gone into plot No. 546. The defendants also referred to the fact that the plaintiff had previously applied to the Rent Controller under Section 45 of the Delhi Rent Control Act for certain reliefs, but the same had been refused on the ground that the relationship of landlord and tenant was not admitted. It was, thereforee, claimed that the petitioner had no right in the property

(5) On the other hand, it does appear peculiar that the petitioner should have been in occupation of this property and should then have left and after that the defendants should have purchased the property under an agreement to sell and yet the plaintiff should have re-appeared in the same property. It may be that on an examination of the evidence, it is found that the plaintiff had never left the property and was in occupation of the same throughout or, it may be that she has an independent right in the property or it may be that she is a licensee of the defendants. The case cannot be decided at this stage in the manner in which the Senior Sub-Judge has dealt with it.

(6) The legal position in such matters should be very clear. If there is one principle of law which stands out in our jurisprudence, it is that possession should prima fade be protected. Once a person is in possession, he is not to be dispossessed otherwise than by legal means. This is part of the rule of law. To some extent, even a trespasser or wrong door is protected. In a doubtful case, it is better to maintain the status quo. Admittedly. the petitioner is in occupation of part of the house, so she has possession of that room. How she got there and why she got there are questions which the Court will determine on evidence. Prima facie, this factor of possession is a very strong factor in favor of the petitioner. The Explanationn offered by the defendants that she had got into possession for a few days on the asking of a neighbour, may be a plausible one. But, it is extremely strange that she should have got back in the same property where she was previously living. Then, there is the peculiar circumstance that the defendant is not yet a registered transferee of the property. There is only an agreement to sell coupled with possession. What was that possession How and to what extent was this possession given These are again questions which have to be tried. Then there is the next question as to whether a person who has got an agreement to sell and has got part possession or full possession-does he have the right to evict any one, can he get possession after he loses it This depends on the manner in which Section 53A of the Transfer of Property Act, 1882, is applied. To my mind, no doubt, the petitioner has no right to get a permanent injunction to prevent her eviction for all times to come, but she cannot be evicted or removed without due process of law. If she is not protected, it means that the Court has denied the petitioner any possible chance of getting any justice.

(7) In these circumstances, I am compelled to accept the revision and restore the temporary injunction granted by the trial court. But the injunction is only to the extent that she will not be dispossessed except by operation of law and no further. I am' informed by counsel for the respondents that a suit has been filed by way of mandatory injunction to get back the occupation of the room from the petitioner. Such a suit is an example of due process of law. Parties to bear their own costs.


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