INDER RAJ GUPTA v. SHARAD AGGARWAL

HON'BLE MS. JUSTICE VEENA BIRBAL VEENABIRBAL. J. . •k. Caveat No. 849/2012 The counsel for caveator is present. The caveat stands discharged. # CM 13844/2012(For exemption) Exemption allowed subject to just exceptions. Application stands disposed of FAO 340/2012

1. By way of this appeal under Order 43 Rule 1 read Vidth section 151 CPC, a challengehas been made to the impugnedorder dated 9"' July, 2012 passed by the learned Addl. District Judge (Central), Tis Hazari, Delhi by which application of the respondent/plaintiff under Order 39 Rule 1 and 2 FAO 340/2012 Signature Not Verified Digitally Signed By:AMULYA a/ CPC has been allowed and the appellant/defendanthas been restrained from forcibly occupying the ground floor of the premises bearing Municipal Nos.497, 498 and 499(1) situated at Lai Katra, Khari Baoli, Delhi i.e., suit property from respondent/plaintifftill the disposalofthe suit.

2. Respondentherein i.e., plaintiffbeforethe learnedtrial court has filed a suit for permanent injunction stating therein that he is the owner of propertybearingMunicipalNos.497, 498 and 499(1) situatedat Lai Katra, Khari Baoli, Delhi-110006 and had purchasedthe same from Shri Mohan Lai s/o Shri Baru Mai Jain vide sale deed dated 9.4.2009 registered with Sub Registrar,KashmiriGate, Delhi. It is allegedthat he is the absolute owner of the propert}' and has been enjoying the possessionof the same without any interferencesince then. Appellant herein i.e., defendant before the learnedtrial court is his real uncle. Respondent/plaintiffhas allowed him leave and licencefor the use and occupationof mezzaninefloor whereasthe entire ground floor of the premises in question is being used by him for business purposes. It is alleged that appellant/defendanthas become dishonest and with illegal and malafide intentionintends to- encroachupon the ground floor. On 1.9.2011,appellant^defendantalong with his son had tried to occupy the ground floor but was prevented by the staff of the respondent/plaintiff interfering with possession. Respondent/plaintiffhas filed the aforesaid suit for permanent injunction FAO 340/2012 Page 2 of6 along with an application under Order 39 Rule 1 and 2 read with section 151 CPC wherein prayer is made for passing ad interim injunction order to restrain the appellant/defendantfrom encroachingupon the suit premises.

3. Appellant/defendant has filed written statement wherein he has taken the stand that the entire ground floor including mezzanine floor was in his possession from the very beginning and later on a company in the name of M/s Ultrabuild Construction Pvt. Ltd was formed wherein appellant's brother and son were made Directors and were operating the business from the suit property. Appellant/defendantpermittedthe said companyto run its office from the suit property although physical possession remained with him, as such suit as well as injunction application are liable to be dismissed.

4. Replication has also been filed by respondent/plaintiff denying the allegations made appellant/defendant. It alleged respondent/plaintiff and his son are Managing Director and Director respectively of the said company and hold majority of its shares and Vibhor Gupta son of appellant/defendant is only a minority share holder.

5. After hearing counsel for the parties, learnedAddl. DistrictJudge has observed that respondent/plaintiff is having registered sale deed dated

9.4.2009 in respect of the suit property. As per own case of appellant/defendant,his son is a minorityshare holder in the said company. LearnedAddl. DistrictJudge has also noted that there is nothingon record as FAO 340/2012 to when appellant/defendant had taken physical possession of the suit property as is alleged. After considering the material on record, the trial court has exercised its discretion by observing as under: - "5. Although the veracity of Sale Deed dated 09.4.2009 in respect of the suit property is denied by the defendant yet physical possession of the ground floor portion thereof of the plaintiff could not be- dented even if the admission is to the effect that the company M/s Ultrabuild Constructions Pvt.Ltd., of which plaintiff is the Managing Director, is in occupation. the plaintiff and his father are It has not been denied that majority share holders and the real administrative faces of said company for dealing with outsiders and that son of the is a minority share holder. The defendant on the defendant other hand has neither whispered the date/period when he had entered into physical possession of the suit propertv nor anv The plaintiffs although documentary evidence has been filed. have filed a rent receipt dated 01.02.2003 of the mezzanine floor i.e. 499/1 issued bv Sh.Mohan Lai Jain to the defendant. it is culled that the plaintiff is in physical Prima facie therefore, possession of ground floor of the suit property while the defendant floor. Without establishing their respective right, title and interest in the suit property, they cannot encroach upon or usurp the portions in occupation of the other party. 6. Parties will be respectively inconvenienced on disturbance of the physical demarcation of portion of suit property in their occupation and will also be injured irreparably." is occupying its mezzanine

6. The application under Order 39 Rule 1 and 2 CPC has been decided by the learned Addl. District Judge after considering the material on record as per which prima facie respondent/plaintiff is in physical possession of the ground floor of the property while appellant/defendant is only occupying the mezzanine floor. The Id. trial court has also observed that balance of FAO 340/2012 convenience also lies in favour of respondent/plaintiff. It is also observed that disturbance in physical demarcation of portion of suit property at this stage would injure irreparably to respondent/plaintiff

7. There is nothing on record to show that appellant/'defendant was in possession of suit property for the past 10 years. Prima facie nothing has been shown by the appellant/defendant that he is in possession for the past 10 years as is alleged. The counsel for appellant has submitted that earlier appellant was Director of M/s Ultrabuild Construction Pvt. Ltd and his son was having 50% share holding. It is contended that appellant is removed illegally from Directorship of company while his son's share holding is illegally reduced to less that 50%. It is also submitted that the same are subjudice before the Company Law Board. Under these circumstances, the same are not relevant at this stage. The learned trial court has also protected appellant/defendant observing respondent/plaintiff simultaneously shall not put obstacles in the access of appellant/defendant the staircase built inside the suit property, for going to the mezzanine floor and they also shall not interfere with the right of appellant^defendant utilize the toilet constructed on the ground floor adjoining the chabutara.

8. The Supreme Court in catena of judgments has held that the order of interim injunction being discretionary in nature would not be ordinarily interfered by the appellate court unless it is shown that the discretion has FAO 340/2012 been exercised arbitrarily, capriciouslyand perversely. In the present case, interim injunction has been granted by the learned Addl. District Judge consideringthe material on record and cogent reasons have been given in granting the said relief.

9. Issues have alreadybeen framed in the matter and the matter is at the stage of evidence.,

10. In view of the above discussion, there is no merit in the appeal. Appeal stands dismissed. CM 13843/2012Cfor stay) In view of the order passed in the appeal, no further orders are requiredinthe stay application. The same standsdisposedofaccordingly. ^ VEENA BIRBAL, J AUGUST 14, 2012 FAO 340/2012