AJIT KUMAR DATTA Vs. M M BANERJEE

JUDGEMENT

(1.) IA 15098/2010 (by D-1 u/O 39 R 1 & 2 CPC) No reply has been filed. Vide this application, defendant No.1 is seeking an injunction against creation of any third party interest in the first floor of J-1981, Chittranjan Park, New Delhi, which is the suit property in this case. Admittedly, the plaintiff is in physical possession of the aforesaid portion of the property. The case of the plaintiff is that defendant No.1, who is the original owner of plot No.J-1981, Chittranjan Park, New Delhi offer to grant him a license to enter upon, use and occupy the plot owned by him for his residence and consequently to construct a single storey house on that plot. It is further alleged that the plaintiff, acting in furtherance of license granted by defendant No.1 entered into possession of the aforesaid plot and raised construction of ground floor on his own funds. It is also claimed that in the year 1991, when defendant No.1 wanted his son get married and settled in Delhi, he asked the plaintiff to construct the first floor portion as well from his own funds and offered that once the construction was complete, he could shift to the first floor without payment of any consideration to him. The plaintiff claims to have constructed first floor between the year 1991 and 1993 from his own resources. This is also his case that defendant No.1 had also executed a WILL dated 18th March, 1993 bequeathing the first floor to him, his wife and their children along with 33% undivided interest in the land. The plaintiff has sought a declaration that the license given to him by defendant No.1 is perpetual and irrevocable and he cannot be dispossessed from the first floor of the property. The case of defendant No.1, who is owner of the property, is that the ground floor was constructed by him from his own funds and he had permitted the plaintiff to shift there only as a care taker, the possession being permissive and that of a licensee without consideration. It is further alleged by defendant Nof.1 that the first floor as well as Barsati Floor was also constructed by him form his own savings and loan taken from his relatives. This is also the case of the defendant that the plaintiff was permitted by him to residence on the first floor of the suit property as a licensee. The plaintiff, according to defendant No.1, had assured to vacate the first floor when defendant No.1 shifted to Delhi.

(2.) THE question as to whether the first floor of the suit property was constructed by the plaintiff from his own funds or it was constructed by defendant No.1 using his own funds is a matter, which can be decided only after trial. Similarly, the question whether the possession of the plaintiff was that of a licensee simplicitor or the license granted to him was irrevocable under Section 60(b) of the Easement Act, 1882 also is a matter, which can be decided only after trial. Since the disputed question of facts are involved as regards the funds used in construction of the first floor and the status of the plaintiff, it is necessary that portion occupied him in the suit property is preserved till pendency of the suit and no third party interest therein is created. Hence, there can be no serious objection to the interim injunction sought by defendant No.1. Prima facie, the plaintiff has no legal right to create any third party interest in the portion occupied by him. In any case, he is not seeking to create any third party interest therein for the present. Hence, plaintiff is restrained from creating any third party interest in the first floor of property No.J-1981, Chittranjan Park, New Delhi, during the pendency of the suit. This application stands disposed of.