IN THE HIGH COURT OF DELHI AT NEW DELHI

SUBJECT : SUIT FOR INJUNCTION

CS(OS) 1177/2007
Date of Decision : July 06, 2012

NANAK CHAND & ORS. ..... Plaintiffs

Through: Mr.Vinay Kumar Garg &
Mr. Fazal Ahmad, Advocates

versus

RAJA RAKESH & ORS. B ..... Defendants

Through: Defendants No.1 to 8 are ex parte.
Mr. M. A. Khan, Advocate for D-12.

CORAM:
HON'BLE MS. JUSTICE REVA KHETRAPAL

JUDGMENT

REVA KHETRAPAL, J.

1. The short issue which arises for consideration is whether the

aforementioned suit for injunction simpliciter would be maintainable in view
of the plaintiffs having withdrawn their prayer for the grant of a decree of
declaration in their favour and against the defendant No.1, declaring the
plaintiffs as the rightful owners (bhumidars) of the land in dispute, i.e., land
bearing Khasra No.44 Min, Khewat No.14, Khatauni No.303, admeasuring 1
bigha 16 biswas situated at Village Saboli, Shahdara, Delhi more
specifically as shown bounded by red in the site plan attached with the
plaint.

2. Before embarking upon the discussion as to the maintainability of the suit,

it would be apposite to mention that though the aforesaid suit was instituted
by the plaintiffs for declaration of their Bhumidari rights with respect to the
aforesaid agricultural land and for a decree of permanent injunction
restraining defendants No.1 and 2 from interfering with the rights and
possession of the plaintiffs on the land in dispute and also for the recovery of
` 2.50 Lacs from the defendant No.1, none of the parties impleaded by the
plaintiffs, viz., defendants No.1 to 9 (defendants No.3 to 9 being proforma
defendants) and those impleaded on the orders of the Court, viz., defendants
No.10 and 11, showed any interest in contesting the title alleged by the
plaintiffs; the defendants No. 2 to 8 were proceeded ex parte in default of
appearance on 01-02-2008. Subsequently, on 11-08-2008 the defendant No.
1 was also proceeded ex-parte and on 23-10-2008 the defendants No.10 and
11 being the Revenue Authorities were exempted from appearance before
the Court subject to their filing a status report in respect of the land in
question. However, on an application filed by one Hulas Chand claiming to
be the owner of the suit land, the said Hulas Chand was impleaded by the
Court as a necessary and proper party to the present suit and added as
defendant No.12. The said Hulas Chand, being the only person interested in
contesting the title claimed by the plaintiffs, through his counsel argued that
the present suit for the relief of declaration of Bhoomidari rights is not
maintainable in view of the judgment of this Court in Smt. Phoolwati and
Ors. vs. Smt. Ram Dei and Ors. reported in 150 (2008) DLT 105.

3. It was upon the aforesaid stand taken by the defendant No.12, Hulas
Chand that an issue was framed with regard to the maintainability of the suit,
being Issue No.3 as set out hereinbelow:
“Whether the suit of the plaintiff is barred under Section 185 of the Delhi
Land Reforms Act, 1954?” OPP

4. Pending the hearing of Issue No.3, however, the counsel for the plaintiffs,
as stated above, made a statement before the Court that he wanted to
withdraw the relief of declaration sought for in the prayer clause and to
confine his relief to the prayer made for decree of permanent injunction
against the defendants, their agents, servants, successors, legal heirs and/or
assigns from in any manner interfering with the rights and possession of the
plaintiffs on the land in dispute. It was then argued by Mr. M.A. Khan, the
learned counsel for the defendant No.12 Hulas Chand, that a suit for
injunction simpliciter would not be maintainable without the relief of
declaration of title, since the title of the plaintiffs is not clear, and the
plaintiffs claim themselves to be Bhumidars and recorded owners of the suit
land, which has been disputed by the defendant No.12 in the written
statement filed by him.
5. It may be mentioned that the version of the defendant No.12 in the written
statement filed by him is that the predecessor-in-interest of the plaintiffs,
namely, Shri Ziley Singh had exchanged his property bearing Khasra No.44
Min., Khewat No.14, Khatauni No.303, admeasuring 1 bigha 16 biswas with
one Shri Ram Dev, son of Shri Mool Chand, by executing a registered
Exchange Deed dated 16.05.1961, consequent to which Shri Ziley Singh
transferred the property bearing No.44, Village Saboli, Delhi in favour of
Shri Ram Dev and received the land of Shri Ram Dev bearing Khasra
No.905/442, Village Saboli in transfer/exchange. Further, according to the
defendant No.12, after the demise of the said Shri Ram Dev and his son,
namely, Sushil Kumar, the said property was inherited by Shri Raja and Shri
Rakesh, both sons of Shri Sushil Kumar by operation of law; and after
inheritance Shri Raja and Shri Rakesh executed a registered General Power
of Attorney dated 17.04.1989 in favour of one Shri Suresh Goel, son of
Lakhi Ram authorizing the said Shri Suresh Goel to sell the properties
mentioned in the GPA.

6. Thereafter, Shri Suresh Goel sold the suit property for lawful
consideration in favour of Shri Satish Kumar, son of Shri Giri Raj Singh by
executing a General Power of Attorney, Agreement to Sell, Receipt, all
dated 14.07.1989 and parted with possession in favour of Shri Satish Kumar.
Shri Satish Kumar thereafter further sold the suit property in favour of Smt.
Kunti Devi, wife of Shri Girwar Swaroop by executing a General Power of
Attorney and Agreement to Sell dated 08.02.1990. Smt. Kunti Devi in turn
sold the suit property in favour of Shri Pawan Goel, son of Shri Brij Lal
Goel by execution of a registered General Power of Attorney, Agreement to
Sell, Indemnity Bond, Special Power of Attorney, Receipt, Will, etc., all
dated 27.09.1996 and parted with possession in favour of Shri Pawan Goel.
The latter further sold the suit property in favour of the defendant No.12
Hulas Chand, son of Shri R.C. Aggarwal by executing a registered
Irrevocable General Power of Attorney, Agreement to Sell, Affidavit,
Possession Letter, Receipt and Will, all dated 04.05.2007 and parted with
possession in favour of Shri Hulas Chand. Thus, in this manner the
defendant No.12 stepped into the shoes of Shri Ram Dev and became owner
of the suit property.

7. The Exchange Deed dated 16.05.1961 was however not reflected in the
revenue record and due to this reason name of Shri Ziley Singh
(predecessor-in-interest of the plaintiffs) appears in the revenue record,
though Shri Ziley Singh had been left with no right, title or interest since the
execution of the Exchange Deed. This fact, though was within the
knowledge of the legal representatives of late Shri Ziley Singh viz., the
plaintiffs, the plaintiffs by playing fraud upon the Revenue Authorities had
succeeded in having their names mutated in the revenue records after the
demise of their father Shri Ziley Singh, for which the defendant No.12 had
already filed an appeal under Section 64(1) of the Delhi Land Revenue Act
for setting aside the order of mutation passed by the SDM/R.A., Seemapuri,
Delhi dated 02.09.2006, which is pending disposal before the Court of the
Deputy Commissioner, North East, Delhi.

8. At this juncture, it may be noted that during the pendency of the present
suit, the aforesaid appeal filed by the defendant No.12- Shri Hulas Chand
was disposed of by the Additional Collector, Office of the Deputy
Commissioner, North East by order dated 17.01.2012. The relevant portion
of the said order is reproduced hereunder:-
“It is well settled that the ownership of agricultural and (sic. land) goes by
revenue record as well as possession. In the instant case, there was on
record enough material to show that the ownership of Khasra No.44 min. as
per revenue record was in the name of Sh. Ziley Singh during his lifetime
and presently in the name of his 3 sons who had also been recorded in
khatauni and girdawari in the years (1986-87), (2004-05), (2006-07).
Moreover, the claim of the appellant that they had got an interest in the said
land by way of the exchange deed pertaining to the year 1961 holds no
ground as the same could not be verified during the course of proceedings.
The appellants have failed to establish that approval of D.C. was obtained
u/s 40 of DLR Act for execution deed.
Therefore, I am of the view that the appellant had no interest
whatsoever in the land bearing Khasra No.44 min. of the Revenue Estate of
village Saboli as the same stood, recorded, initially, in the name of Sh. Ziley
Singh, and, thereafter, in the name of his 3 sons, by way of succession.
Thus, the order dated 02-09-2006 was rightly made by the revenue
authorities.”

9. Presumably, on the basis of the said order, the plaintiffs sought to confine
their relief in the present suit to the grant of a decree of injunction by this
Court. The defendant No.12, as noted above, sought to urge that a suit for
injunction simpliciter would not be maintainable if the plaintiffs gave up the
relief of declaration claimed by them.
10. In the course of hearing, Mr. Vijay Kumar Garg, the learned counsel for
the plaintiffs, contended that under Section 38 of the Specific Relief Act,
1963, the relief of injunction can be granted even if no declaratory relief
implicit in the injunction is expressly prayed for, more so where the plaintiff
is in lawful and peaceful possession of the suit property and such possession
is being interfered with or threatened by the defendant. He further submitted
that for examining the question of maintainability of the suit, it is only the
averments made in the plaint sans the defence pleaded in the written
statement which are relevant and are to be seen, as held by this Court in the
case of Tara Chand and Anr. vs. Kumari Rajni Jain and Ors., 150 (2008)
DLT 101.

11. The learned counsel for the plaintiffs also referred to the judgment of the
Madras High Court reported in Muthayyan Swaminatha Sastrial vs. S.
Narayan Swami Sastrial, AIR 1936 Madras 936 to urge that it is trite that
where the plaintiffs are in lawful possession of the suit properties, they are
perfectly entitled to sue for a mere injunction. The following extract from
the decision of the Madras High Court in the aforesaid case is apposite:
“3. On the merits, I have no doubt that the learned Subordinate Judge was
right in holding that the suit as originally framed was maintainable. It is true
that in establishing their right to have an injunction against the defendants,
the plaintiffs will have to prove that plaintiffs 1 to 4 and defendant 10 were
properly appointed managers in respect of the properties and that the other
plaintiffs are the lessees under them. But it does not follow from this that the
plaintiffs are suing for a declaration of the title of plaintiffs 1 to 4 and
defendant 10 as managers. Their allegation is that they are in lawful
possession of the properties and that their possession is threatened to be
interfered with by the defendants. On these allegations, they were perfectly
entitled to sue for a mere injunction. The learned District Munsif was,
therefore, wrong in ordering the amendment of the plaint.”

12. The learned counsel for the defendant No.12, Mr. M.A. Khan on the
other hand, sought to rebut the contentions of the plaintiffs’ counsel by
urging that the instant suit was clearly barred by Section 185 of the Delhi
Land Reforms Act, 1954 and such a dispute as that set out in the plaint could
only be decided by the Revenue Court, there being a bar against the
jurisdiction of the Civil Court. He submitted that where the title of the
plaintiff is not clear and the plaintiff claims himself to be a bhumidar and
recorded owner of the suit land, and this is disputed by the defendant in the
written statement by stating that the suit land had been sold to him and he is
in possession of the same, the suit is not maintainable in the Civil Court.
Reliance was placed by him to buttress this contention upon a recent
judgment of this Court rendered in the case of Rev Singh vs. Rishi Pal and
Ors., 182 (2011) DLT 52. He also referred to the judgment of the Supreme
Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by L.Rs. & Ors.,
AIR 2008 SC 2033, and in particular upon the following dicta laid down in
the said decision:-
“11.3 Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, the plaintiff will have
to sue for declaration of title and the consequential relief of injunction.
Where the title of plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession, necessarily the plaintiff will
have to file a suit for declaration, possession and injunction.”

13. On consideration of the respective contentions of the counsel for the

parties and the precedents cited by them, the Court is of the opinion that the
suit of the plaintiffs for injunction simpliciter must be held to be
maintainable on the plaintiffs giving up their prayer for grant of declaration
of bhumidari rights in the suit land. As held by the Supreme Court in the
case of Anathula Sudhakar (supra), the general principles as to when a mere
suit for permanent injunction will lie, and when it is necessary to file a suit
for declaration with injunction as a consequential relief are well settled. The
said general principles have been adumbrated as follows and must be read in
their entirety.
“11.1 Where a plaintiff is in lawful or peaceful possession of a property and
such possession is interfered or threatened by the defendant, a suit for an
injunction simpliciter will lie. A person has a right to protect his possession
against any person who does not prove a better title by seeking a prohibitory
injunction. But a person in wrongful possession is not entitled to an
injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition, if
necessary, an injunction. A person out of possession, cannot seek the relief
of injunction simpliciter, without claiming the relief of possession.
11.3 Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, the plaintiff will have
to sue for declaration of title and the consequential relief of injunction.
Where the title of plaintiff is under a cloud or in dispute and he is not in
possession or not able to establish possession, necessarily the plaintiff will
have to file a suit for declaration, possession and injunction.”

14. A perusal of the plaint shows in the present case the plaintiffs are in
lawful and peaceful possession of the suit property and such possession is
sought to be interfered with/threatened by the defendants. The present case,
therefore, falls within the category of cases set out in paragraph 11.1 of the
Anathula Sudhakar case (supra) and a suit for injunction simpliciter must,
therefore, be held to lie, for: “A person has a right to protect his possession
against any person who does not prove a better title by seeking a prohibitory
injunction.” To be noted at this juncture that the defendant No.12 has
erroneously categorized his case under paragraph 11.3 of the judgment in
Anathula Sudhakar (supra). It is not in dispute that the predecessor-in-
interest of the plaintiffs, Shri Ziley Singh was the recorded bhumidar of the
land in question. It is also not in dispute that the said land now stands
mutated in the names of the plaintiffs. It cannot, therefore, be said that there
is any cloud on the title to the property which is sought to be encroached
upon by the defendant No.12. Even assuming any such cloud to have
existed, after the decision of the Deputy Commissioner rendered on 17th
February, 2012 rejecting the claim of the defendant No. 12- Hulas Chand
with regard to the suit property, no such cloud exists as on date.

15. It is also trite that if on a reading of the plaint in a holistic manner, it is

evident that the substance of the prayers are for injunctory relief, then even
though the suit is styled as one for the grant of declaration, the suit would be
treated as purely a suit for injunction. A learned Single Judge of this Court
(Hon’ble Mr. Justice Vikramajit Sen, as His Lordship then was) in the case
of Interads Advertising (P) Ltd. vs. Palmex Enterprises & Ors., 106 (2003)
DLT 1 in a very lucid manner elaborated upon the aforesaid proposition of
law. The relevant portion of the judgment is extracted hereinbelow:-
“The objection of Mr. Airi is that a suit for mere declaration is not
maintainable. Mr. Taneja submits that I should read the plaint in a holistic
manner and that if I do so it will be evident that in substance the prayers are
for injunctory relief. Reliance has been placed on behalf of the Plaintiffs on
the views expressed in D.P. Rai Ahuja v. Delhi Development Authority,
1974 Rajdhani Law Reports 664 where a suit styled as one for the grant of a
mandatory injunction was treated to be for a perpetual injunction, thereby
rendering the objection of the non-issuance of a notice as irrelevant and/or
surmountable. In Memoona Bi v. Municipal Corporation of Delhi, 1974
Rajdhani Law Reports 198 this Court again preferred to look at the
substance of the plaint and not confine attention merely to its form. It was
found that an injunction could be granted even though a needless declaration
had been prayed for. I would prefer to abjure the narrow and pedantic
approach for one that advances the interest of justice; the Courts effort
should be to dispense justice rather than dispense with it. The same view has
been taken in Times Properties v. Delhi Development Authority, 1985
Rajdhani Law Reports 398 of which the following extracts are of relevance:
“4. In Mahant Purushottam Dass v. Narain, AIR 1978 Delhi 114 = [1978 Raj
RLR 153] it has been observed that it is a matter of construction of plaint in
each case for determining if the suit was purely for permanent injunction and
that a suit for injunction will be treated as a suit under Sec.7(iv)(d) of the
Court Fees Act if a plaintiff can get an injunction without the necessity of
praying for any other declaration. Further it has been observed that the
prayer for declaration will be surplusage if the plaintiff can get the relief for
injunction without praying for declaration, but declaration has to be prayed
where an obstacle has to be removed before the plaintiff can claim the relief
of injunction simpliciter.
5. In Harchand Singh v. Dalip Singh, AIR 1965 Punjab 468 it has been
observed that the correct test is that where there is any legal necessity for the
plaintiff to get a declaration of his right before he can get an injunction to
protect it, the suit will fall under Section 7(iv)(d) of the Court Fees Act even
though the plaintiff sought declaration by means of averments in the body of
plaint and not prayed for declaration specifically at the end of the plaint and
if it is not necessary to pray for declaration the suit will fall under Section
7(iv)(d) of the Court Fees Act. Similar observations were made in Sri Rajah
Nayani v. Sri Rajah Tdakamalla, AIR 1941 Mad 91.
6. The ratio of these decisions is that if there is legal necessity for a
declaration before grant of relief of injunction it would not be suit for
injunction and if grant of declaration is not necessary the suit would be
purely a suit for injunction.”
It was in these circumstances that Mr. Taneja argued that the plaint should
be read as one seeking a perpetual injunction simpliciter, and that the prayers
pertaining to declarations be treated as surplasages and be ignored. In natural
sequence, he prayed for and was allowed to amend the valuation of the suit
as one for an injunction alone. The amendment was allowed. The suit was
valued for the purposes of court fee and jurisdiction at
` 25,00,000/- and additional court fee of
` 23,944/- has already been paid. In these circumstances I find no merit in
the objection of Mr. Airi that the suit is ridden with such oblique motives as
would be an impediment to its maintainability. In these premises both the
issues are decided in favour of the Plaintiff.”

16. This Court in the case of Anand Prakash & Ors. vs. Ram Kala & Anr.,
2010 (115) DRJ 283 also held [relying upon the judgment rendered in Mam
Raj vs. Ram Chander etc., 1974 Rajdhani Law Reporter 428] that where the
plaintiffs are not claiming any declaration for grant of Bhumidari rights and
the plaintiffs’ case simply is that they were joint Bhumidars of the
agricultural land along with their brother and he having died without any
other legal heir, after his death, the plaintiffs must be held to have succeeded
to the Bhumidari rights of the deceased and on the basis that the plaintiffs
were in possession, the suit filed by the plaintiffs could not be held to be
barred. In the said case, the plaintiffs alleged that they were in fact in
possession whereas the defendants denied the possession of the plaintiffs. It
was held that this would be a question for trial to be determined on the basis
of evidence adduced by the parties.

17. In the present case also it is not disputed that Shri Ziley Singh was the
recorded Bhumidar in possession of the suit land since the year 1954-55. All
that the plaintiffs are stating is that the suit land has devolved upon them
from their predecessor-in-interest, namely, Shri Ziley Singh and that they
have been in possession of the same since the year 2004, i.e., the date on
which Shri Ziley Singh expired and their names now stand mutated in place
of Ziley Singh in the revenue records. The defendant No.12, on the other
hand, claims that he has purchased the suit land in the year 2007 through a
General Power of Attorney sale and he is in possession thereof. The
defendant No.12 would necessarily have to establish by leading cogent
evidence that he is in possession of the suit property. Clearly, in such
circumstances, the plaintiffs’ suit for injunction cannot be said to be not
maintainable.

18. In view of the aforesaid discussion, Issue No. 3 pertaining to the

maintainability of the suit is decided in favour of the plaintiffs and against
the defendants. Parties shall now adduce their respective evidence on the
remaining issues.

19. List the suit before the Joint Registrar for fixing dates of trial and for
directions on 13.08.2012.

Sd/-
 REVA KHETRAPAL
(JUDGE)
JULY 06, 2012