VIVEK JOLLY Vs. RAM

JUDGEMENT

(1.) Plaintiff filed this application under Order 39 Rules 1 & 2 read with section 151 Civil Procedure Code for issue of ad interim injunction restraining defendant No.6 from in any manner demolishing or interfering with the use and occupation of property bearing No.39 & 40 Village Begumpur, P.O. Malviya Nagar, New Delhi.

(2.) Suit was filed by plaintiff alleging that he alongwith defendant No.4 are partners of the firm M/s.Profile India which is engaged in the business of exports. Defendant No.2 was allotted Plot Nos.39 and 40 measuring 240 sq.yds and 260 sq.yds respectively in Begumpur by Delhi State Harijan Cooperative Association Ltd in or about 1/10/1972. plaintiff and defendant No.4 purchased property bearing Nos. 39 and 40 for a total consideration of Rs. 18 Lakhs a registered sale deed dated 21/4/1998 from defendant No.2. Entire sale consideration excepting Rs.3 lakhs was paid through cheque/bank draft. It is further alleged that said property has since been mutated in the names of plaintiff and defendant No.4 by MCD, defendant No.6 and house tax also paid to defendant No.6. Defendant No.1, one of the sons of defendant No.2 filed Suit being No.365/96 for mesne profits, possession and- permanent and mandatory injunctions. By the judgment dated 6/3/2000 this suit has been disposed of by an Additional District Judge and defendant No.1 has been held to be the owner to the extent of total length of plot No.35 not exceeding 60 ft as shown in the plan ExCivil Procedure Codel/D-1. Possession on rest of 5 ft of land has been held to be encroachment made by defendant No.1 in addition to his not being the owner of the portion marked red in said plan ExCivil Procedure Codel/D-1. Defendant No.4 who was impleaded as defendant No.3 in said Suit No.365/96, was proceeded ex-parte on 14/5/1996 which order was revoked on 11/7/1997. Again he was proceeded ex parte on 13/8/1997 which order was recalled on 19/3/1998. Yet another ex-parte proceeding followed on 14/7/1998 against him and by the order dated 19/4/1999 that ex-parte order was declined to be set aside by the Additional District Judge. It is stated that attitude and conduct of defendant No.4 have been the subject matter of comment in said suit and the plaintiff would not.therefore, like to elaborate any further in the matter. Suit No.1607/2000 It is also alleged that though the plaintiff is joint owner of said property with defendant No.4 but he was not impleaded as a party in said suit No.365/96 for the reasons best known to defendant No.l. Defendant No.4 also did not disclose in the written statement filed in that suit that he holds the property jointly, with the plaintiff. Plaintiff filed application under Order 1 Rule 10 Civil Procedure Code for being joined as a party in the above Suit. However, that application was dismissed by the order dated 6/11/1999 observing that the dispute pertained to property No.35 and not property No.39. It is stated that defendant No.6 was also not a party to said Suit No.365/96 but by the order dated 8/5/2000 notice has been issued to Commissioner, MCD For appearance on 21/7/2000. It has -been reliably learnt that Commissioner, MCD is to report-on the demolition on 21/7/ 2000. It is claimed that plaintiff met J.P.Singh, an officer of MCD on 5/6/2000 and there is threat that suit property would be demolished on 9/6/2000. It was prayed that by a decree it be declared that property bearing Nos.39 & 40 are free of any taint or any unauthorised encroachment upon the land of defendant No.6. Decrees of prohibitory and mandatory injunctions are also sought to be passed against defendants 1 2,3, 5 and 6 in any way interfering with the peaceful enjoyment of suit property by the plaintiff and defendant No.6 demolishing it.

(3.) In the suit aforesaid I.A. was filed by the palintiff and on 7/6/1996 an undertaking was given on Suit No.1607/2000 behalf of defendant No.6 that suit property will not be demolished in the meantime.