- (1.) BY this application the Plaintiff seeks interim injunction against the Defendants restraining them from dispossessing the Plaintiff from the portion measuring 200 sq. yards as shown in red colour in the site plan of the suit property and also restraining the Defendants, their agents etc. from raising any further construction over a portion measuring 100 sq. yards as shown in colour yellow in the site plan forming part of the suit property till the disposal of the suit.
(2.) IT is contended by the learned counsel for the Plaintiff that the Defendant No. 1 Devender Singh in his complaint dated 16th June, 2009 has himself admitted that he had sold the suit property to Shri Jagjit Singh from whom the Plaintiff had purchased the same. He also admitted in the complaint that he would be filing proceedings for cancellation of the documents however, no such proceedings have been filed. In view of the admission of Defendant No. 1 Devender Kumar in the complaint dated 16 th June, 2009 the Plaintiff being in possession of the property, the Defendants are required to be restrained from dispossessing the Plaintiff from 200 sq. yards in the possession of the Plaintiff and further restrained from constructing on 100 sq. yards possession of which they have forcibly taken from the plaintiff. Admittedly the boundary wall on the said property was got constructed by the Plaintiff as there is an admission in the complaint dated 16th June, 2009 that there was no boundary wall. Hence it is sufficient to prove that the Plaintiff was in possession of the suit property. Further in the complaint it is also admitted that in April, 2007 one Shri Mahabir Singhal, that is, the father of the Plaintiff started putting building material. Learned counsel for Defendant Nos. 3 and 4 submits that admittedly no Sale Deed was executed by the Defendant No. 1 in favour of Shri Jagjit Singh and in the absence thereof the Plaintiff who is the subsequent purchaser from Shri Jagjit Singh cannot claim the right of ownership or possession in the suit property. Further the Sale Deed in favour of Defendant No. 4 by Defendant No. 1 with regard to the suit property is a Registered Sale Deed. The Defendant No. 1 had sold the suit property for consideration in favour of Defendant No. 4 vide documents dated 1st January, 1999 which includes the power of attorney, special power of attorney, agreement to sell, receipts, bills etc. while delivering the peaceful possession of the entire vacant land. The Defendant No. 1 was never in possession of the suit property since January, 1999. The Defendant No. 1 was working as cook in the restaurant owned by Shri Jagjit Singh since 1995. Thus the documents relied by the Plaintiff are sham and manipulated. The transaction of Sale Deed dated 1st January, 1999 was further acted upon when the Defendant No. 4 further sold the suit property in favour of Defendant No. 2 on 15th July, 2003 by executing the Registered General Power of Attorney and Agreement to Sell against valuable consideration. The Defendant No. 4 also delivered the peaceful vacant possession of the entire property. The Defendant No. 2 further assigned her rights under the Agreement to Sell dated 15th July, 2003 in favour of Defendant No. 3 by executing similar documents dated 16th July, 2009. The Defendant No. 3 thereafter divided the suit property in three portions of 100 sq. yards each and after retaining one portion sold the middle portion to Shri Dharmender Dabas, and the third portion to Shri Mahavir Singhal vide documents dated 6th February, 2012. Relying upon Suraj Lamp and Industries Private Limited (2) vs. State of Haryana and another, 2012 (1) SCC 656 it is contended that any contract of sale which is not by a registered deed of conveyance would fall short of the requirements of Sections 54 and 55 of the Transport of Property Act (in short 'TP Act') and will not confer any title or interest nor transfer an immovable property, except to the limited right granted under Section 53 -A of the TP Act. Thus under the TP Act, an agreement to sell, whether with possession or without possession, is not a conveyance. It is thus contended that even assuming the contention of the plaintiff to be correct the plaintiff cannot file a suit on the basis of the documents executed in his favour and at best the same can be used as defence. Further even the Agreement to Sell, on the basis of which the Plaintiff claims right, has not been filed before this Court and thus the Plaintiff cannot claim possessory rights as well. Reliance is also placed on Thimmaiah vs. Shabira and others, 2008 (4) SCC 182 to contend that if a person is not in possession he cannot claim injunction.
(3.) I have heard learned counsel for the parties.;