Surender v. Roshani & Ors

V.B.GUPTA, J. mw

* HIGH COURT OF DELHI : NEW DELHI CM (M) No.926/2010 & CM No.12810/2010 % Judgment reserved on: 23rd July, 2010 Judgment delivered on: 27th July, 2010 Shri Surender S/o Late Shri Bhim Singh R/o 156, Ground Floor Second Pushta New Usman Pur Delhi ….Petitioner. Through: Mr. S.C.Singhal, Adv. Versus 1. Smt. Roshani W/o late Shri Bhim Singh 2. Sh. Krishan Pal 3. Sh. Rajender @ Ravinder 4. Sh. Tej Singh All sons of late Sh. Bhim Singh All resident of: 156, First & Second Floor Second Pushta, New Usman Pur New Delhi ….Respondents. Through: None Coram: HON'BLE MR. JUSTICE V.B. GUPTA 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes V.B.Gupta, J. 1. By way of present petition filed under Article 227 of the Constitution of India, petitioner has challenged order dated 4.5.2010 passed by Civil Judge vide which application of petitioner under Order 39 Rule 1 & 2 of the Code of Civil Procedure (for short as "Code") was dismissed, as well as order dated 5.6.2010 passed by the Additional District Judge, Delhi vide which appeal filed by the petitioner against the order of Civil Judge was also dismissed with costs of Rs.10,000/-. 2. Brief facts of this case are that petitioner herein, filed a suit against his widow mother and three real brothers stating that Sh. Gur Sahab, petitioner"s grand- father was the owner of property in question. He has raised Kachcha construction over it. Later on, petitioner got constructed the house from his own funds, being the elder male member and was the only earning member. 3. It has been further alleged that during his life time father of the petitioner and respondents No.2 to 4, partitioned the suit property verbally. Ground floor of the same came into his share since he was residing on the ground floor. 4. It is further alleged that due to increase in the rate of the property, respondents No.2 to 4 became dishonest and now they are trying to dispossess him. 5. Respondents contested the suit and denied that petitioner had raised construction in the suit property. It is stated that construction was raised by husband of respondent No.1 and father of respondents No.2 to 4, as well as petitioner. Petitioner has concealed material facts regarding the execution of family settlement between the parties. Petitioner is only entitled for second floor of the suit property, which was given to him as per family settlement but he illegally occupied the ground floor of the suit property. Hence, petitioner is not entitled to any relief of injunction. 6. It is contended by learned counsel for the petitioner that possession of petitioner is duly admitted by respondents in their written statement. The family settlement is unregistered and all the legal heirs of his late father are not party to it. In these circumstances, family settlement is of no consequence as the same is void and inadmissible in evidence. 7. It is also contended that since respondents themselves have filed a suit for partition, it clearly shows that family settlement is void and inadmissible in evidence. Thus possession of petitioner cannot be interfered, as all rights of the parties are required to be decided in the suit for partition. 8. In support of his contentions, learned counsel cited following judgments; (i) Nirmal Singh and others vs. Gurbachan Singh AIR 1988 Punjab & Haryana 184 and, (ii) Jai Dev Singh vs. Sujan Singh & Anr. 50 (1993) DLT 663. 9. Principles for grant of temporary injunction are well settled that; (i) Petitioner has to show that he has a prima facie case; (ii) Balance of convenience lies in his favour and; (iii) Petitioner will suffer irreparable loss, if injunction is not granted. 10. It is also well settled that a party who comes to the Court seeking discretionary relief of injunction must not conceal material facts and should approach the Court with clean hands. 11. As per plaint, case of petition