Jolly Khanna v. Pooja Khanna & Ors.

(i) Shop. No.8 – Mutation is not proof of ownership. The sale deed shows that Late Sh. Vijay Kumar Khanna was the owner. Injunction was however refused on the ground that there was no threat of alienation by the Defendants.

(iii) Property bearing No.5672 – Late Vijay Kumar Khanna was not the sole and exclusive owner of this property. He was joint owners along with Ashwani Khanna. There is no threat of alienation. Defendants 2 and 3 are also claiming rights. Thus, declaration ought to have been sought. Perpetual injunction was refused.

(iv) Godown No. 9 & 10 - Ownership of these godowns not proved.

There is also no threat of alienation. Hence injunction refused. Thus, Issue No.3 was decided against the Plaintiffs and in favour of the Defendants.

8. Insofar as the Issue No.4 in respect of mandatory injunction is concerned, in view of the decision in Issue No.3, the Trial Court held that there was a partnership business, which was originally in the name of Mr. Manohar Lal Khanna and Mr. Vijay Kumar Khanna. The plaintiff has also put her own additional lock on the Shop no.8 and shop no. 14 as also in the two godowns. Since the firm was a partnership firm and not a sole proprietary concern of Vijay Kumar Khanna, the stocks lying in the shops/godowns cannot be exclusively belonging to the Plaintiff. The partnership business was being run in shop no.14. Thus, the defendants who are the legal heirs of Late Sh. Manohar Lal Khanna cannot be directed to remove their locks and the issue was decided against the Plaintiffs and in favour of the Defendants.

9. Insofar as Issue No.5 is concerned, the relief of rendition of accounts was also rejected on the ground that, since M/s. Khanna Trading Company had ceased to do business in 1984 and only Mr. Vijay Kumar Khanna was the surviving partner, the accounts cannot be sought from the Defendants. Judgement of the Appellate Court:

10. Before the Appellate Court, the Plaintiffs gave up the relief sought qua Shop No.14 and Godown Nos. 9 & 10. The suit, thus, survived only in respect of the properties at serial Nos.(i) & (iii) i.e., Shop No.8 and the Residential property bearing No.5672. Rendition of accounts was also given up. The order dated 31st March 2021 in RCA No.19/2019 recorded the statement of the counsel for the Plaintiffs to the following effect: “The ld. counsel for the appellants submits that the appellants are confining their claims in the appeal for Shop no. 8 and Property no. 5672 for the reliefs of permanent and mandatory injunction. It is further submitted that without prejudice to the rights of appellants, the appellants are not claiming any other reliefs including the relief of rendition of accounts as sought in the plaint/ appeal. The separate statement of the ld. counsel for appellants recorded to such effect. The ld. counsel for appellants has also filed physical copy of the written statement. Copy already stated to have supplied. Put up for clarifications/ judgment on 14.04.2021.”

11. The Appellate Court, after perusing the entire record and facts in this case, held as under in respect of each of the issues: Issue no.5: The relief of rendition of accounts has been given up by the Plaintiffs, as recorded in Order dated 31st March, 2021. Issue no.2: The Trial Court has already held that the suit discloses a cause of action. This finding has not been assailed by the Defendants. Issue no.3: On Issue No.3, the Appellate Court found that the Trial Court had already held that Shri Vijay Kumar Khanna was the owner of Shop No.8. The Defendants had argued that they never tried to create third party interest, and on this ground only, the Trial Court has not granted relief in favour of the Plaintiffs. This finding of the Trial Court did not find favour by the Appellate Court. Since the property was actually purchased in the name of Mr. Vijay Kumar Khanna, the Defendants having denied their rights in the property, it is only the stocks of the Defendants which were lying in the said property. Since the Defendants have put their locks in the property and they do not have any right, title or interest in the said property, the mandatory injunction in respect of Shop No.8 was granted by the Appellate Court.

12. Insofar as the property bearing No.5672 is concerned, the Defendant No.1-Ashwini Khanna and Vijay Kumar Khanna were the owners of the said property. The Sale Deed dated 14th June, 1989 was considered by the Appellate Court. Thus, the Appellate Court held that there is no material to show that property bearing No.5672 exclusively belongs to Mr. Vijay Kumar Khanna. However, the relief of permanent injunction was not granted. This finding of the Trial Court, which was based on the lack of a declaratory prayer on behalf of the Plaintiffs, did not find favour by the Appellate Court. The Appellate Court in this regard held as under: “Now, as far as the property bearing no. 5672 is concerned, the record reveals that defendantno.1 and Sh. Vijay Kumar Khanna were owners of the said property. No doubt, in the plaint, the plaintiffs have alleged that even the said property bearing no. 5672 was purchased by Sh. Vijay Kumar Khanna, but defendant no.1 got his name mischievously included in the property documents, however, the plaintiffs have utterly failed to prove on record that the defendant no.1 got his name included in the Sale Deed dated 14.06.1989. The said property was admittedly in the names of Sh. Vijay Kumar Khanna and defendant no.1 Le. Sh. Ashwani Kumar Khanna. The Sale Deed dated 14.06.1989 (Ex.PW1/D1/1) proves the said fact. The Ld. Trial Court has rightly held that there is no material to show that property bearing no. 5672 exclusively belongs to Sh. Vijay Kumar Khanna. The relief of permanent injunction was not granted by Ld. Trial Court in respect of property bearing no. 5672 on the ground that defendant no.1 is having one half undivided share in the property and further there is no allegation in the plaint to the effect that any of the defendants have ever threatened or attempted to alienate the said property. The Defendants no. 2 and 3 have disputed that the property bearing no. 5672 was owned by Sh. Vijay Kumar Khanna and defendant no.1 alone. The Ld. Trial Court has come to the conclusion that in view of the contention raised by defendants no. 2 and 3, the plaintiffs ought to have sought declaration qua the title of Sh. Vijay Kumar Khanna owner of the aforesaid property alongwith consequential relief of injunction regarding the non-alienation of the aforesaid property and the plaintiffs have failed to do so. In my considered view, the observation of Ld. Trial Court to such effect was not called for. The plaintiffs, including defendant no.1, have proved on record the Sale Deed dated 14.06.1989. If, the LRs of Sh. Manohar Lal Khanna were claiming the right in the said property contrary to the Sale Deed dated 14.06.1989, then, the said LRs ought to have filed the suit for declaration claiming their own independent right· in the said property. The Ld. Trial Court has also not correctly. appreciated the facts. The Ld. Trial Court has failed to take note of the fact that defendants No.2 and 3 are in possession of the part of the said property. The LRs of Sh. Manohar Lal Khanna are claiming their right in the property bearing NO. 5672 and definitely, the plaintiffs may suffer irreparable loss in case the LRs of Sh. Manohar Lal Khanna will create any right in the property bearing no. 5672. The Ld. Trial Court has, no doubt, come to the conclusion that defendant no.1 cannot be restrained from selling the undivided share in the property bearing no. 5672, however, the Ld. Trial Court has failed to consider that in the property bearing no. 5672, the plaintiffs were also having one half undivided share and defendant no.1 or for that matter, the defendants no. 2 and 3 are not entitled to create any third party interest in the property bearing no. 5672, specifically, as far as the one half share of plaintiffs is concerned.”

13. Finally, the Appellate Court held that the findings of the Trial Court in respect of Shop No.8 and property bearing No.5672 are not correct. In view thereof, the Appellate Court modified the Trial Court’s judgement in respect of Issue No.3. Injunction was granted qua Shop No.8 and property bearing No.5672.

14. Issue no.4: The Appellate Court has held that there were multiple locks, which had been placed by the parties in question on the suit properties. The stocks which are lying locked in Shop No.8 are more than eighteen years old. Since there is no value of the said stocks, no documents were also produced by the Defendants indicating that either of the Defendants were partners in M/s. Khanna Trading Company, after the death of Shri Manohar Lal Khanna. The Appellate Court also held that the Shop No.8 was the exclusive property of Mr. Vijay Kumar Khanna and after his death, the Plaintiffs are the owners of the said property. None of the Defendants have any right, title and interest in the said property.

15. Under such circumstances, the Appellate Court permitted the Plaintiffs to re-value the suit and deposit the proper court fees. The operative portion of the impugned order dated 15th April, 2021 passed by the Appellate Court reads as under: ““(i) A decree of permanent injunction is passed in favour of the Plaintiffs and against the defendants thereby directing the defendants, their agents, representatives, a~signs etc. from selling, assigning or creating. any third party interest in property bearing Shop No.8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka No.4, Delhi-ll0006 and also in respect of residential property bearing No.5672, Gali No.2, New Chandrawal, Kohlapur, Delhi.

(ii) A decree of mandatory injunction is also passed in favour of the plaintiffs and against defendants thereby the defendants are directed to remove their lock(s) including the chain(s), if any, on the Shop No.8, Gali Jugal Kishore (Gali Ghante Wali), Chandni Chowk, Illaka No.4, Delhi-110006i within a period of 15 days from passing of this Judgment. After removing the locks and chain(s) by defendants from the said shop, the plaintiffs/ appellants will open their locks only after giving atleast one week's notice to defendants no.2 and 3 and putting them in notice, the date and time, when the Plaintiffs/Appellants will open their locks so that in case, they wanted to take the stocks lying therein, then, they may take the same in their custody. If, the said Defendants no.2 and 3 do not visit on the desired date and time, then, the Plaintiffs/Appellants will be at liberty to take the custody of the stocks lying therein and to dispose of the same in the manner they like.””

16. The substantial questions of law, which the Ld. Counsel for the Appellant wishes to urge, have been placed before this Court. The first question of law is in respect of rendition of accounts. This relief has already been given up by the Plaintiffs, as recorded in the Appellate Court’s order dated 31st March, 2021.

17. Insofar the question of law in respect of grant of possession of the suit properties is concerned, the question of law that is urged before this Court is whether, in the garb of relief of mandatory injunction, the relief of possession could have been granted to the Plaintiffs. This issue has been settled by the Supreme Court in the judgment of Sant Lal Jain v. Avtar Singh, [(1985) 2 SCC 332]. The relevant portion of the said judgment is set out below:

18. The judgment in Sant Lal Jain (supra) which has also been considered by the ld. Single Judge of this Court in Mulk Raj Khullar v. Anil Kapur & Ors. [CS (OS) No.1855/2011 decided on 3rd October, 2013]. The relevant paragraphs of the said judgment are set out below:

The above judgment has been cited with approval by the Supreme Court in the case of Joseph Severance and Others versus Benny Mathew and Others (supra). The Hon’ble Supreme Court in the relevant portion of para 7 of the judgment held as under: “….Strictly speaking the question is not a substantial question of law, but one whose adjudication would depend upon factual adjudication of the issue relating to reasonableness of time. The correct position in law is that the licensee may be the actual occupant but the licensor is the person having control or possession of the property through his licensee even after the termination of the licence. Licensee may have to continue to be in occupation of the premises for some time to wind up the business, if any. In such a case licensee cannot be treated as a trespasser. It would depend upon the facts of the particular case. But there may be cases where after termination or revocation of the licence the licensor does not take prompt action to evict licensee from the premises. In such an event the ex-licensee may be treated as a trespasser and the licensee will have to sue for recovery of possession. There can be no doubt that there is a need for the licensor to be vigilant. A licensee's occupation does not become hostile possession or the possession of a trespasser the moment the licence comes to an end. The licensor has to file the suit with promptitude and if it is shown that within reasonable time a suit for mandatory injunction has been filed with a prayer to direct the licensee to vacate the premises the suit will be maintainable.”

15. In Padmavati Mahajan versus Yogender Mahajan and Anr (supra), this Court held as follows:-

16. The legal position that follows is that where a suit is filed with promptitude against a licensee whose licence is terminated, a Suit for mandatory injunction is maintainable. In the present case there is no submission or argument raised that plaintiff did not file the suit with promptitude or that there was any delay in filing the suit. Admittedly, the license was terminated on 25 June, 2011 and the suit is filed in August 2011.

17. Even otherwise, it was held by the Supreme Court in the case of Sant Lal Jain versus Avtar Singh (supra), that even if there is some delay, to avoid multiplicity of proceedings the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense.”

19. This Court is of the opinion that since the court fee has also now been deposited, it cannot now be said that the decree of possession cannot be granted when the suit is structured seeking the prayer of mandatory injunction.

20. The operative portion of the impugned order dated 15th April, 2021 passed by the Appellate Court clearly granted an injunction in respect of the removal of the locks.

21. In the opinion of this Court, no substantial questions of law arise in the present appeal. Accordingly, the appeal, along with all pending applications, is dismissed.

22. Executing Court shall proceed in the matter. Considering the animosity and acrimony between the parties, the Plaintiffs are permitted to seek the appointment of a Local Commissioner before the Executing Court, if deemed fit, instead of the directions for removal of the locks by the Defendants concerned.

PRATHIBA M. SINGH JUDGE DECEMBER 10, 2021/dk/Ad