BHIM SEN SHARMA Vs. ARVINDER SINGH

JUDGEMENT

(1.) This appeal by the plaintiff-appellant is directed against the order dated December 19, 1996 of learned Single Judge disposing of two applications, one under Order XXXIX, Rules 1 & 2, Civil Procedure Code (I.A. No. 11075/96) and the other under Order XXXIX Rule 4, Civil Procedure Code (I.A. No. 11627/96).

(2.) Facts giving rise to this appeal, in brief, are that the appellant filed a suit on the allegations that Ram Singh was the owner of property No. 1-1/85,LajpatNagar, New Delhi. He was inducted as a tenant by Ram Singh in the front portion of the property at a monthly rental of Rs. 200.00 , which later on was increased to Rs. 500.00 per month. Ram Singh died issueless in the year 1979 leaving his wife Mesar Kaur as his only heir. Mesar Kaur had no near relation of her. The appellant being a God fearing person started looking after her. On August 13, 1990 Mesar Kaur executed a Will bequeathing the said property No. 1-1 /85 and also a General Power of Attorney, in favour of the wife of the appellant. It is further alleged that in the beginning of 1993 Mesar kaur fell ill. On being intimated about her illness defendant-respondent No. 1 and his wife came to Delhi and started living in the rear portion of the aforesaid property where Mesar Kaur used to live. Defendants- respondents 1-3 and the wife of respondent No. 1 tortured and confined Mesar Kaur in a room. She was often not supplied the food. It is stated that the appellant received a notice dated February 16,1993 followed by a reminder dated March 12, 1993 from Mr. Deepak Dhingra, Advocate, purported to have been sent under instructions from Mesar Kaur, calling upon him to surrender the blank papers. Mesar Kaur did not have any knowledge about the contents of the notice dated February 16, 1993. The same was issued at the behest of respondents 1-3. It transpired that a deed of gift dated November 12, 1993 was got prepared by respondent No. 1 in his favour and Mesar Kaur was forcibly made to sign on it by him. This deed of gift was registered with the Sub-Registrar, New Delhi on December 12, 1993 and on the strength thereof respondent No. 1 got aforesaid property mutated in his name on January 20,1994. Respondent No. 1 further got a suit bearing No. 1307/93 filed in the name of Mesar Kaur against the appellant in the High Court of Delhi on May 27,1993 and the same was dismissed on May 3, 1995. It is alleged that because of the threat held out by the respondents of forcible dispossession from the portion of the property in possession of the appellant, he was compelled to file a suit for permanent injunction which is pending disposal before a Civil Judge, Delhi. Respondent No. 1 has also initiated eviction proceedings before the Rent Controller, Delhi, against the appellant. It is pleaded that on April 19,1995 Mesar Kaur executed another Will which is in Punjabi language bequeathing the above property in favour of the appellant. This Will was registered with Sub- Registrar, New Delhi, on January 25,1996. Mesar Kaur died on May 26, 1995. Occupation of the rear portion of the property by respondents 1-3 after the death of Mesar Kaur is unauthorised and the appellant is entitled to claim mesne profits attherateofRs.500.00 per month with effect from May 26, 1995. Respondents 1- 3 have contacted property brokers to dispose of the property. It is prayed that the appellant be declared owner of aforesaid property No. 1-1/85 on the basis of the Will dated April 19,1995. In addition to this decree declaring the deed of gift dated November 12, 1993 as null and void is also prayed. A decree for recovery of possession of the rear portion of the property along with mesne profits amounting to Rs. 8,500,.00 for the period May 26, 1995 to October 24, 1996 is further sought to be passed against respondents 1-3.

(3.) In the suit I.A. No. 11075/96 was filed by the appellant seeking ad-interim injunction restraining respondents 1 to 3 from dispossessing, stopping water and electricity supplies to the portion of the property in possession of the appellant and selling, mortgaging, gifting, transferring, parting with possession, constructing or in any manner encumbering the property by respondents 1 to 3. An ex-parte injunction order in appellant's favour in terms of the prayer clause was granted on November 1, 1996 by the learned Single Judge.