KULWANT SINGH Vs. LALJEE KENT

JUDGEMENT

(1.) THE court proposes, by this order, to dispose of I.A. No. 510/2009, whereby the plaintiff seeks interim mandatory injunction restraining the defendants from creating third party rights in respect of the suit property, as well as a mandatory injunction to them to hand over physical possession of the entire ground floor portion of the suit property to him (i.e. the plaintiff).

(2.) THE facts, which emerge as undisputed, from the pleadings are that the plaintiff, a senior citizen, retired as an Accountant General; he had served with the Indian Audit and Accounts service. At the time of institution of the suit, he was 88 years; his wife is aged 76 years. The plaintiff purchased a 500 square yards plot, being C-31, Green Park, in 1958. He retired from service in 1978. There exists a three storeyed building (ground, first and second floor) on the plot; the plaintiff's daughter lives on the second floor; his second son, Willy Singh, lives on the first floor. The plaintiff and his wife live in a portion of the ground floor, comprising dining, drawing room and a bedroom area; the First defendant, his son, and the second defendant, his wife (and the plaintiff's daughter in law) as well as their son, the third defendant (and the plaintiff's grandson) are in possession of two bedrooms, with attached bathroom. Apparently only the third defendant (grandson) was living in the said portion.

(3.) MS . Amita Sehgal Mathur, for the plaintiff, contends that the material on record unequivocally points to the plaintiff being the sole and exclusive owner, in uninterrupted possession of the ground floor, since 1978. It is urged that the defendants cannot claim any kind of property rights, in respect of the suit property, since the entire funds for acquiring it, were paid by the plaintiff. It is contended that the two documents, produced as evidence of accounts kept by the plaintiff, also establish that the construction too was done by him. Therefore, the defendants, who are avoiding to hand over possession, despite receiving a legal notice, should be appropriately directed to hand over at least one room on the ground floor. It is contended that though such relief is rarely granted, the facts of this case would justify a sound exercise of jurisdiction to issue an interim mandatory injunction against the defendants. The plaintiff relies on the decision reported as Dorab Cawasji Warden v. Coomi Sohrab Warden & others 1990 (2) SCC 117 in support of his case that such directions can be issued in the circumstances of this case; similarly, reliance is placed on the decision reported as Krishan Dev Sharma v. Som Dutt Sharma 58 (1995) DLT 424, to submit that in the absence of any defence about the Hindu Undivided Family owning the assets, and a plaintiff establishing his right, interest, there is no need for a trial on that question.