SARNATH MUKHERJEE ..... Plaintiff v. FRANCIS KUOK & ORS ..... Defendants

1. Whether Reporters of local papers may be allowed to see the judgment? NO. 2. To be referred to the Reporter or not? NO. 3. Whether the judgment should be reported No. in Digest? V.K. JAIN, J. (ORAL) IA No. 7286/2011 (u/O 39 R.[4] CPC) and IA No. 7027/2011 (39 R.1&2 CPC)

1. The plaintiff and defendant No.1 are joint owners of agricultural land comprising in khasras No.257 min.(03- 09), 470 min (02-08), 473 min (01-13), 474 (00-14), 475 (00- 14), 476 min (00-02), 479 (00-09), 480 (00-12), 481 (01-02), 2011:DHC:4266 482 (01-05), 493 min (01-03), 494 min (01-04), 497 min (01-04) totally admeasuring 15 bighas and 19 biswas, situated in the Revenue Estate of Village Bhatti, Tehsil Hauz Khas (Mehrauli), New Delhi. The suit land is said to be governed by Delhi Land Reforms Act, 1954. Defendant No.1 entered into an agreement dated 20th May, 2010 followed by a supplementary agreement dated 8th December, 2010 to sell his share in the suit land to defendant No.2 i.e. M/s New Era Buildwell Pvt. Ltd. for a total consideration of Rs.2.58 crore, out of which a sum of Rs.75 lac has been paid to him.

2. The case of defendants No. 2 & 3 is that pursuant to the aforesaid agreements, defendant No.3 was authorized by defendant No.1 to look after his holding in the suit land as his caretaker. It is also alleged that after entering into the agreement, defendant No.3 is in joint possession of the suit land with the plaintiff.

3. In his Written Statement, defendant No.1 has admitted the agreements between him and defendant No.2 but, has denied appointing defendant No.3 as the caretaker and delivery of possession to defendants No. 2 & 3 in pursuance of those agreements. He has specifically stated that defendant No.3 has never remained in possession of the suit land.

4. It is an undisputed fact that the suit land is jointly owned by plaintiff and defendant No.1, both of whom have 50% share each. It is also an admitted case that there has been no partition of the suit land between the plaintiff and defendant No.1.

5. Thus, whereas according to defendants No. 2 & 3, defendant No.3, who is a director of defendant No.2 company was appointed as caretaker by defendant No.1 and is in joint possession of the suit land along with the plaintiff, the case of defendant No.1 is that he never appointed defendant No.3 as the caretaker and he did not deliver possession of any part of the suit property to him despite having entered into an agreement to sell his share in the suit land to defendant No.2. There is absolutely no document which would indicate that defendant No.3 was appointed by defendant No.1 as the caretaker in respect of his holding in the suit land. There is no document evidencing delivery of possession of any part of the suit land by defendant No.1 to other defendant No.2 or defendant No.3. In fact, this is not even the case of defendants No. 2 & 3 that the possession was delivered to either of them by defendant No.1, their case being only this much that since defendant No.3 was appointed as caretaker, he came in joint possession of the suit land along with the plaintiff. Assuming the averments made by defendants No. 2 & 3 to be correct, that by itself does not mean that defendant No.2 and/or defendant No.3 came in joint possession of the suit land along with the plaintiff. Even if, defendant No.3 was appointed as the caretaker by defendant No.1, the possession continued to be jointly with him (defendant No.1) and the plaintiff, since the caretaker looks after the property on behalf of the person who appoint him as caretaker and he can never be said to be in legal possession of the property which is entrusted to him in his capacity as a caretaker. Therefore, the possession, if any, of defendant No.2 and/or defendant No.3 cannot be said to be a legal possession.

6. The photographs filed by the plaintiff would show that not only a jhuggi has been erected on a part of the suit land, a car is also parked there and some building material is also lying there. Admittedly, the car and building material belong to defendants No. 2 & 3 and the jhuggi has also been put by them only.

7. The next question which comes up for consideration is as to what kind of interim order should be passed by the Court in such circumstances where it appears that though defendant No.1 never delivered the possession of any part of the suit land to defendants No. 2 & 3, they have somehow, presumably unauthorizedly, put a jhuggi on a part of it, have parked a car there and have also put some building material on it. In my view, the most appropriate order in such a case will be not to allow any construction on the suit land by any party during pendency of the suit. I also feel that since possession of the suit land has not been delivered by defendant No. 1 to defendant No.2 and/or defendant No.3 and there is no document evidencing even appointment of defendant No.3 as a caretaker by defendant No.1, neither defendant No.3 nor any employee or representative of defendants No. 2 & 3 should enter upon the suit land during pendency of the suit. However, they should have liberty to take away their car and building material from the suit land, if they so desire, and also remove their jhuggi, if they intend to do so. As far as the agreements to sell executed by defendant No.1 in favour of defendant No.2 is concerned, the suit for specific performance of the aforesaid agreements being CS(OS) NO. 1469/2011 has already been filed and an interim order has already been passed by this Court on 3rd June, 2011 directing parties to the suit to maintain status quo with respect to title and possession of the suit land till further orders. That interim order in my view is adequate to safeguard the interest of defendants No. 2 & 3 at this stage. The questions as to whether defendant No.2 should deposit the balance sale consideration or furnish a bank guarantee or an FDR for the amount of the balance consideration, are the questions which will be considered while disposing of the application filed in suit CS(OS) No. 1469/2011 for grant of interim injunction. It is made clear that defendants No. 2 & 3 will be at liberty, if they so desire, to remove their car, building material and jhuggi from the suit land, after previous notice in writing to the plaintiff and defendant NO. 1. IA No. 7286/2011 and IA No. 7027/2011 stand disposed of in terms of this order. CS(OS) No. 292/2011 & IA No. 7128/2011 (u/O 39 R.2A CPC) Reply be filed within four weeks and rejoinder, if any, can be filed within four weeks thereafter. Replication to the Written Statement can be filed within two weeks. The parties will also carry admission/denial of documents before the Joint Registrar on 30th September,

2011. Documents can be filed by the parties within two weeks. List for hearing before the Court on 24th February, 2012.

(V.K. JAIN)

JUDGE AUGUST 23, 2011 vn