PRAMILA DEVI Vs. KRISHAN SWARUP

JUDGEMENT

(1.) THIS order will dispose of two pending applications in which an ad interim injunction to restrain the defendants from taking steps to disturb the possession or interfere with possession of the plaintiff in respect of the suit property, being a 550 sq. years plot, part of Khasra No. 269, situated at Village Gokalpur, near Loni Border, Elaqua Shahdara, Delhi-110 094, is sought for, by the plaintiff.

(2.) THE brief averments in the suit and corresponding allegations in the pending applications are that the plaintiff purchased the suit property through a Sale deed dated 03.05.2005 (which was subsequently registered) from the second defendant. THE plaintiff contends that the said vendor, i.e. the second defendant had purchased the property from Sh. Dharam Singh, on 01.03.2004. THE plaintiff relies upon a Power of Attorney, Will and Receipt dated 01.03.2004, issued in favor of the said second defendant, for this purpose. It is further contended that Sh. Dharam Singh, in turn, had acquired the property through a Power of Attorney transaction from Sh. Ram Chander on 11.03.1982. THE further suit contention is that Sh. Dharam Singh had filed a suit for possession, injunction etc., in 1991 before the competent Court, against the first defendant. THE first defendant had apparently been proceeded ex-parte and the suit was, consequently, decreed, on 29.09.2003.

(3.) THE first defendant, in his written statement, submits that the suit is not maintainable. It is contended that Sh. Dharam Singh, his brother had instituted a suit in 1991 against him and that during its pendency, he was falsely implicated in a murder, as a result of which he was in jail. THE first defendant submits that during that period ? i.e. when he was in jail, Sh. Dharam Singh's suit could not be defended appropriately and consequently he was set-down ex-parte and the suit was decreed. In these circumstances, immediately after he (i.e. the first defendant) was released, an application for setting-aside the ex-parte decree was made, which was, by an elaborate and detailed judgment, allowed on 05.05.2007. In the meanwhile, submits the first defendant, Sh. Dharam Singh had, on the strength of that ex-parte decree, managed to secure possession of the suit property, in execution proceedings. THE first defendant, therefore, had moved the executing Court, for restitution of possession; that application was allowed on 11.12.2007, and later confirmed while rejecting the review application filed against it, on 31.03.2008. It is further contended that the plaintiff and Sh. Dharam Singh had moved objections under Order XXI, Rule 97, CPC, which was rejected. That order dated 12.03.2010 was sought to be carried in appeal, being FAO 234/2010. However, that appeal was withdrawn. It is submitted that despite the restitution order and the subsequent development that the Suit, (on the basis of which Sh. Dharam Singh had sought possession), had been restored and in effect, there was no decree, possession was never restored to the first defendant. Having regard to these circumstances, it is contended that the suit, as well as the application for ad interim injunction are not maintainable.