Ali Hasan and Another vs Dinesh Pal Singh and Others

S.U. Khan, J.—Heard learned Counsel for the parties.

These writ petitions are directed against rejection of temporary injunction application by the courts below in O.S.N. 1038 of 2004, AH Hassan and Anr. v. Dinesh Pal Singh and Ors.

Plaint allegations in brief are that plaintiff No. 2 Khurja-Jewar-Tappal Bus Operator Union, Khurja of which plaintiff No. 1 Ali Hassan is Secretary, is using the land in dispute as a bus stand; That the land in dispute was given by Nagar Palika Parishad, Khurja defendant No. 3 to the Union plaintiff No. 2 about 60 years before on rent; That rent at the rate of Rs. 1,240 per year had been paid till October, 2004 ; That defendants Nos. 1 and 2 Dinesh Pal Singh and Jalilur Rehman Khan were threatening to interfere in the possession of the plaintiffs over the land in dispute. A sketch map of the property was also given at the bottom of the plaint and property in dispute was denoted by letter v c l n

Defendants Nos. 1 and 2 filed Joint reply to the temporary injunction application stating therein that Nagar Palika Parishad, Khurja was not the owner of the land in dispute hence it could not give the same on rent to the plaintiffs; that property indispute was part of plot No. 1864 and initially Smt. Rabiya Begum wife of Kunwar Mohd. Ismail Khan was owner of the property who let out the same to Chiman Lal; that rasta and dharamshala shown towards left and right side of the land in dispute in the plaint map was also part of plot No. 1864. It was further pleaded that Chiman Lal surrendered his possession over the land in dispute in favour of Rabia Begum and her husband ; that after the death of Rabia Begum and her husband, their son Jalilur Rehman Khan defendant No. 2 became owner in possession of the property in dispute who sold the same to defendant No. 1 through registered sale deed on 9.12.2004 and since then defendant No. 1 was owner in possession of the same.

Rabia Begum executed registered lease deed in favour of Chiman Lal on 31.7.1934. Thereafter Chiman Lal gave the land in dispute on rent of Rs. 40 per year to Nagar Palika Parishad.

Plaintiff pleaded that 35 buses were operating from the land in dispute.

It was further pleaded by the defendants that the property which was let out by Municipal Board to the plaintiff was situate across the rasta and it was not the property in dispute.

It was further pleaded that according to the own case of the plaintiff Chiman Lal gave the land in dispute to Municipal Board for 40 years hence the version that the bus stand was in existence over the land in dispute for 60 years was self-contradictory. Chiman Lal executed lease deed in favour of Nagar Palika on 4.5.1963. Trial court held that no receipt prior to 2000 was filed by the plaintiff. The trial court further held that no rent deed executed by Nagar Palika in favour of plaintiff was filed and no officer of Nagar Palika filed any affidavit supporting the case of the plaintiff.

In the relief clause of the plaint, area of the land in dispute is mentioned as 250 sq. yard. Defendants also pleaded that it was impossible that 35 buses could be parked in such a small area.

On behalf of Nagar Palika counter-affidavit has been filed in the first writ petition filed by plaintiffs and Nagar Palika has also filed the second writ petition. In both of these the plaintiffs'' case has fully been supported by Nagar Palika.

It appears that heirs of Chiman Lal are nowhere in picture.

It is admitted to the defendants that Chiman Lal did not execute any written document for surrendering the possession. Specific date of surrender of possession has also not been mentioned. Photostat copy of the sale deed dated 9.12.2004 has been supplied. The area mentioned in the sale deed is 195.16 sq. meter and the boundaries tally with the boundaries given in the plaint. In the sale deed Jalilur Rehman mentioned that he got the property in inheritance from his mother. The sale deed is for Rs. 1 lac. In the sale deed there is no mention that Chiman Lal surrendered the possession to the mother or father of the seller.

It is admitted to the parties that the property was given on lease to Chiman Lal and Chiman Lal gave it to Nagar Palika. Nagar Palika gave the land to the plaintiffs and Nagar Palika is admitting this fact. The copies of lease deeds of 1934 and 1963 have been annexed alongwith supplementary rejoinder-affidavit. Rabiya Begum through the lease deed of 1934 executed in favour of Chiman Lal gave the property to him on yearly rent of Rs. 2. The lease deed states that it is for perpetuity. Authority to make construction or sub-let is also given in the said lease deed. It is also mentioned in the said sale deed that except for default in payment of rent (Rs. 2 per year) the lessor would not be entitled to evict the lessee on any ground.

In my opinion prima facie plaintiffs proved their valid possession as tenant of Nagar Palika Parishad over the land in dispute.

It is highly doubtful as to whether legally Chiman Lal could surrender the land to the owner without any written/registered document. Prima facie defendant Nos. 1 and 2 could not prove that actually any surrender took place. Even specific date of the alleged surrender has not been mentioned.

As far as expiry of period of 40 years lease in between Chiman Lal and Municipal Board is concerned, mere expiry of period of lease does not give right even to the lessor to forcibly occupy the leased property. Even if Nagar Palika is treated to be tenant at sufferance it is entitled to injunction for not being evicted except through suit.

As Nagar Palika is fully supporting the case of the plaintiffs hence plaintiffs are also entitled to the temporary injunction.

However, in my opinion temporary injunction requires to be granted on certain conditions so that in case suit is dismissed, defendant Nos. 1 and 2 are compensated. Defendants Nos. 1 and 2 purchased the property for Rs 1 lac.

Accordingly, both the impugned orders are set aside. Temporary injunction application of the plaintiffs is allowed with the direction that till the disposal of the suit defendants Nos. 1 and 2 shall not interfere in the possession of the plaintiffs provided that since the date of filing of the suit plaintiffs deposit Rs. 1,000 per month before the trial court. In case suit is dismissed then this amount shall be paid to the defendant No. 1. The arrears at the rate of Rs. 1,000 per month since the date of filing of the suit till 31.3.2008 shall be deposited within three months from today. Rs. 1,000 per month since April, 2008 shall be deposited by 7th of each succeeding month. In case of two defaults or in case of default in depositing the arrears till 31.3.2008 injunction order shall stand automatically vacated:

I am deciding the temporary injunction matter finally and not remanding the same in view of the following Supreme Court authorities:

G.C. Kapoor Vs. Nand Kumar Bhasin and Others,

R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami and V.P. Temple and Another,

Sahil v. Maroj Kumar AIR 2004 SC 3210.

The trial court shall make all efforts to decide the suit before the end of the year 2008. Absolutely no unnecessary adjournment shall be granted to any of the parties. If the court below is inclined to grant any adjournment to any of the parties, then it shall be on very heavy cost, which shall not be less than Rs. 250 per adjournment in case adjournment is applied for by the defendants and not less than Rs. 500 per adjournment in case adjournment is applied for by the plaintiffs.

It is further directed that while deciding the suit no observations made in this judgment regarding merit of the claim of any party shall be taken into consideration.

Both the writ petitions are allowed Accordingly.