Delhi High CourtVinod Kumar Sood vs Bipin Gujral & Ors on 1 October, 2018Equivalent citations: AIRONLINE 2018 DEL 2531Author:Rajiv Sahai EndlawBench:Rajiv Sahai Endlaw*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                         Date of decision: 1st October, 2018.

+      RSA 298/2015, CM No.14646/2015 (for stay), CM No.5250/2018
       (u/O XLIRule 27 of the CPC) and CM No.5251/2018 (for
       exemption)

       VINOD KUMAR SOOD                                        ..... Appellant
                   Through:               Mr. Pramod Ahuja, Adv.

                                      Versus
       BIPIN GUJRAL & ORS                                    ..... Respondents
                    Through:              Mr. Samar Bansal, Mr. Devahuti
                                          Pathak, Mr. Manan Shishodia and Mr.
                                          Vinayak Mehrotra, Advs.
                                          Ms. Anju Gupta and Mr. Roshan Lal
                                          Goel, Advs. for SDMC/R-5.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.     This Regular Second Appeal underSection 100of the Code of Civil
Procedure, 1908 (CPC) impugns the judgment and decree [dated 18th April,
2015 in RCA No.84/14 of the Court of Additional District Judge-02 (South-
East)] of dismissal of First Appeal underSection 96of the CPC filed by the
appellant against the judgment and decree [dated 16 th April, 2014 in Civil
Suit No.590/14 (Case ID No.02406C0325332010) of the Court of Civil
Judge-01       (South)]   only   partly   allowing   the   suit   filed   by    the
appellant/plaintiff.

2.     This appeal came up first before this Court on 11 th August, 2015
when, without expressing any satisfaction that the Second Appeal entailed
any substantial question of law and without framing any substantial question
of law, notice thereof was ordered to be issued. The appeal thereafter has
RSA 298/2015                                                          Page 1 of 9
 been adjourned from time to time but in none of the subsequent orders also
any substantial question of law has been framed.

3.        Having gone through the judgment of the Suit Court and the judgment
of the First Appellate Court, I have straightway enquired from the counsel
for the appellant/plaintiff, what substantial question of law this second
appeal entails.

4.        The counsel for the appellant/plaintiff draws attention to the
substantial questions of law as proposed in the paper book, from page 29
onwards and running into six pages and nineteen in number. For this reason
alone, need to even reproduce them hereinbelow is not felt. The questions
have been formulated without regard to what constitutes substantial question
of law, as detailed in law noticed in Dalip Singh Vs. Tulsi Ram (Deceased)
Through LRs 2018 SCC OnLine Del 10833.

5.        Suffice it is to state that the suit, from which this Second Appeal
arises,     was    instituted   for   permanent   injunction   restraining    the
respondents/defendants No.1 to 4 from (i) interfering in the peaceful
possession of the appellant/plaintiff of the ground floor and the three
storeyed garage block forming part of property No.D-18, Kalindi Colony,
Ring Road, New Delhi as shown in red colour in the site plan filed along
with the plaint; (ii) making any additions alterations, unauthorised
constructions on the first and barsati floors of the property; and for
restraining the respondent No.5 Municipal Corporation of Delhi (MCD)
from sanctioning any plans of construction in the said property at the
instance of the other respondents/defendants.


RSA 298/2015                                                        Page 2 of 9
 6.     The Suit Court allowed the suit to the extent of restraining the
respondents/defendants No.1 to 4 from interfering in peaceful possession of
the appellant/plaintiff of the constructed portion of the ground floor and three
storeyed       garage   block   in   the   property   and   by   restraining    the
respondent/defendants No.1 to 4 from forcibly dispossessing the
appellant/plaintiff from the constructed portion of the ground floor and three
storeyed garage block.

7.     What transpires after hearing the counsels is, that there is a title
dispute between the appellant/plaintiff on the one hand and the
respondents/defendants no.1 to 4 on the other hand with respect to the
property and which title dispute is subject matter of two other litigations
inter se parties.

8.     The counsel for the appellant/plaintiff has drawn attention to the site
plan Ex. P1 in the Suit Court file showing the entire property. A perusal of
the said site plan reveals that besides the constructed portions, the property
comprises of a front lawn, rear lawn, side open space on the one side and a
driveway on the other side. The appellant/plaintiff has already been granted
the reliefs claimed with respect to the constructed portions. The
appellant/plaintiff however wants the reliefs aforesaid, also with respect to
the front lawn, rear lawn, side open space and the driveway.

9.     While the counsel for the appellant/plaintiff states that the Sale Deeds
in favour of the respondents/defendants No.1 to 4 with respect to upper
floors are forged and fabricated, the counsel for the respondents/defendants
No.1 to 4 states that under the said Sale Deeds, the respondents/defendants
No.1 to 4 have 50% undivided share in the land and the appellant/plaintiff is

RSA 298/2015                                                          Page 3 of 9
 not entitled to exclude the respondents/defendants No.1 to 4 from use of the
front lawn, rear lawn, side open space and the driveway.

10.    The counsel for respondents/defendants No.1 to 4 also contends that as
per the settled law, the possession of open land goes with title and since the
respondents/defendants also have title, they cannot be so restrained.

11.    My experience has been that injunctions, even if granted with respect
to possession of such open areas, are incapable of enforcement and only
result in, either repeated applications for execution and for violation of the
order being filed or if the suit is pending, applications underOrder XXXIX
Rule 2A of the CPCbeing filed and the Courts having no means to
determine whether respondents/defendants No.1 to 4 had stepped into such
open areas, in violation of the injunction or merely accidentally or in the
course of use of constructed portions of the property in their possession. It
cannot be lost sight of that houses such as the subject one were meant for a
single family, with members thereof living in bonhomie with each other and
occupying different portions thereof as per convenience and using some
portions thereof jointly. The parties to this lis, though members of one
family, have deep fissures in their relationship and which has led to
multifarious litigations aforesaid. However, prohibiting use of open areas by
some of the family members also results in prejudicing use of those family
members, also of constructed portions admittedly in their possession and qua
which no relief also is claimed in the suit. Such injunctions also fall in the
prohibited category underSection 41 (f)& (g) of theSpecific Relief Act,
1963. Moreover any decision on the question of title to the property is not to



RSA 298/2015                                                       Page 4 of 9
 be made in this suit for permanent injunction simplicitor and especially when
the parties are already at lis in title proceedings.

12.    What prevailed with the Courts below for granting part of the relief
sought in the suit and denying the remaining relief claimed in the suit was,
(i) that the title deeds proved showed the respondents/defendants No.1 to 4
also to be having title to the property, though the challenge by the
appellant/plaintiff to the said title deeds was pending consideration in a
separate proceeding between the parties; (ii) that on the basis of the title
deeds which had not been annulled till then, the respondents/defendants No.1
to 4 also had title to the property; (iii) that the Supreme Court in Anathula
Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC 494 has held:

       "If the property is a vacant site, which is not physically
       possessed, used or enjoyed, in such cases the principle is that
       possession follows title. If two persons claim to be in possession
       of a vacant site, one who is able to establish title thereto will be
       considered to be in possession, as against the person who is not
       able to establish title. This means that even though a suit
       relating to a vacant site is for a mere injunction and the issue is
       one of possession, it will be necessary to examine and
       determine the title as a prelude for deciding the de jure
       possession. In such a situation, where the title is clear and
       simple, the court may venture a decision on the issue of title, so
       as to decide the question of de jure possession even though the
       suit is for a mere injunction. But where the issue of title involves
       complicated or complex questions of fact and law, or where
       court feels that parties had not proceeded on the basis that title
       was at issue, the court should not decide the issue of title in a
       suit for injunction. The proper course is to relegate the plaintiff
       to the remedy of a full-fledged suit for declaration and
       consequential reliefs.";



RSA 298/2015                                                          Page 5 of 9
        (iv) that in view of the said position in law, the appellant/plaintiff
could not be granted any injunction in respect of open areas in the property,
particularly when the parties were making rival claims with respect to the
said open areas and a more comprehensive suit between the parties, where
the title of the parties and entitlement of the respondents/defendants No.1 to
4 to the extent of 50% of the land and interpretation of "vacant land" was to
be decided, was pending before the High Court; (v) that both parties were
claiming possession and use of the said open areas of the property; (vi) that
the witness of the respondents/defendants No.1 to 4 also had shown use by
the respondents/defendants No.1 to 4 of the open lawn in front of the
property as well as of the drive way; (vii) that it was not as if the open areas
were    accessible   only    to   the   appellant/plaintiff   and   not    to    the
respondents/defendants No.1 to 4; (viii) that there was nothing to suggest
exclusive possession of the appellant/plaintiff of the said open areas; (ix)
that W.P.(C) No.9591/2007 filed by the appellant/plaintiff to restrain the
respondent/defendant No.5 MCD from considering plan submitted by the
respondents/defendants No.1 to 4 had been disposed of vide order dated 19th
December, 2007 with a direction to the respondent/defendant No.5 MCD to
consider the representation made by the appellant/plaintiff and grant hearing
to the appellant/plaintiff before sanctioning any building plan; the
appellant/plaintiff had thus already got the relief, as sought in the suit, in this
respect; and, (x) that the respondents/defendants No.1 to 4, till the title deeds
in their favour with respect to the property were annulled, were also owners
of the property and as owners could not be injuncted, as sought.

13.    The counsel for the respondents/defendants No.1 to 4 had contended
that the Courts below have decided purely on the basis of Anathula
RSA 298/2015                                                           Page 6 of 9
 Sudhakar supra and has drawn attention to pages 515 to 518 of the paper
book, being the sale deed in favour of the respondents/defendants No.1 to 4
and which is also with respect to 50% share in the land of the property.

14.    Per contra, the counsel for the appellant/plaintiff has contended (a)
that in none of the title deeds i.e. the sale deeds relied upon by the
respondents/defendants No.1 to 4, are the front lawn, rear lawn and the open
areas mentioned; (b) that similarly the documents filed by the
respondents/defendants No.1 to 4 with the Income Tax Department also
exclude the garage block and did not include any portion of the ground floor;
(c) that the respondents/defendants No.1 to 4 in the cross-examination
recorded on 15th April, 2011 could not say, as to when physical possession
of the property was obtained; (d) that the respondents/defendants No.1 to 4
failed to prove possession or use of any portion of the ground floor; (e) that
before the Income Tax Authorities also, the respondents/defendants No.1 to
4 claimed to be in possession of first floor and barsati floor only; (f) that the
cross-examination of the respondents/defendants No.1 to 4 recorded on 4th
December, 2010 also is evasive and shows deficiencies in the title claimed
by    the      respondents/defendants   No.1   to   4;   and,   (g)    that     the
respondents/defendants No.1 to 4 are thus required to be restrained from
making any additions, alterations or constructions in the portions of the
property in their possession.

15.    I have considered the respective contentions and am unable to find the
contentions of the counsel for the appellant/plaintiff to be raising any
substantial question of law, for this Regular Second Appeal to be
entertained.      The two Courts have returned findings of fact, of the

RSA 298/2015                                                          Page 7 of 9
 appellant/plaintiff having not established exclusive possession of the open
areas of the ground floor with respect whereto injunction has been declined
and this Court, in Regular Second Appeal, cannot appropriate to itself the
task of re-appreciation of evidence to determine, whether the factual finding
by the First Appellate Court which is the last Courts of facts, is correct. It is
not the case that the finding, of the appellant/plaintiff having failed to prove
exclusive possession of the open spaces on the ground floor, is based on no
evidence at all. In fact, the counsel for the appellant/plaintiff has before me
not drawn attention to any evidence wherefrom it can be said that the finding
of the First Appellate Court qua possession of the open areas is perverse.
Else, the Courts below have given valid reasons in law for non-grant of the
injunctions which have been declined.         The Courts below are right in
holding that till the title deeds in favour of the respondents/defendants No.1
to 4 are annulled in a separate suit in this respect filed by the
appellant/plaintiff, the respondents/defendants No.1 to 4 are also owners and
there cannot be an inunction against use of the property by owner thereof.
Similarly, the reliance by the Courts below on Anathula Sudhakar supra is
apposite and does not require any interference.

16.     The counsel for the appellant/plaintiff at this stage cites Narayana
Gramani Vs. Mariammal 2018 SCC OnLine SC 1427. The same concerned
a suit for declaration of title and permanent injunction in relation to land.
The suit was allowed, the First Appeal was dismissed; however, in Second
Appeal, the judgment and decree of Suit Court and First Appellate Court
was set aside and the suit dismissed. The said judgment, rather than helping
the counsel for the appellant/plaintiff, is against the appellant/plaintiff on,
what constitutes substantial question of law and procedure to be followed by
RSA 298/2015                                                         Page 8 of 9
 the High Court in a Second Appeal. Otherwise also, in that case, as distinct
from present case, there was a finding of fact of the plaintiff being in
possession of the land. As also distinct therefrom, instant suit is for
injunction simplicitor. Moreover, the High Court in that case set aside
judgment and decree of two Courts, on the ground of res judicata; Supreme
Court held that without examining issue of ownership, the judgments and
decrees of two courts could not be set aside. The said judgment, to this
extent, has no application to instant lis.

17.    It is thus felt that if at all any temporary arrangement is required to be
made with respect to the use of front lawn, rear lawn, side open space and
driveway, the application in that regard should be made in pending title
proceedings which are alive and in which the Court is seized of the matter
from day to day, and not by way of permanent injunction.

18.    No merit is thus found in the appeal. It does not raise any substantial
question of law.

       Dismissed.

       No costs.



                                                RAJIV SAHAI ENDLAW, J.OCTOBER 01, 2018
'pp/bs'..RSA 298/2015                                                         Page 9 of 9