Delhi District Court
P.K. Jana Ors vs Neera Malik Ors on 22 May, 2025
IN THE COURT OF MS. PRABH DEEP KAUR, DISTRICT JUDGE-05
(SOUTH EAST), SAKET COURTS, NEW DELHI
Suit No. I
CS DJ 268/2016 9471/16
CNR No. DLSE01-000005-1997
In the matter of :-
1. Sh. P.K. Jana,
S/o Sh. B.B. Jana
2. Smt. Usha Jana,
W/o Sh. P.K. Jana,
Both residents of:
R/o M-38, Chittaranjan Park,
New Delhi-110019 .....Plaintiffs
Versus
1. Ms. Neera Malik,
D/o Shri C. R. Gupta,
R/o M-11, Lajpat Nagar-III,
New Delhi -110024
2. Delhi Vidyut Board
Now B.S.E.S.
Rajdhani Power Ltd.
Nehru Place,
New Delhi-110019
3. Delhi Jal Board,
Govt of NCT of Delhi,
Jal Bhawan, Lajpat Nagar,
New Delhi -110024 ....Defendants
Date of institution of the suit : 26.03.1998
Arguments concluded on : 03.05.2025
Date of decision : 22.05.2025
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CS DJ No. 424/2016 9597/16
P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2025.05.22
17:43:44 +0530
Suit No.II
CS DJ No. 424/2016 9597/16
CNR No. DLSE01-000016-2005
In the matter of :-
1. Sh. P.K. Jana,
S/o Sh. B.B. Jana
R/o M-38, (GF) Chittaranjan Park,
New Delhi-110019
2. Smt. Usha Jana,
W/o Sh. P.K. Jana,
R/o M-38, (GF) Chittaranjan Park,
New Delhi-110019
2(a) Sh. Saurav Jana
S/o Late Sh. P.K. Jana,
R/o M-38, Chittaranjan Park,
New Delhi-110019
2(b) Sh. Sudeep Jana
S/o Late Sh. P.K. Jana,
R/o M-38, Chittaranjan Park,
New Delhi-110019
.....Plaintiffs
Versus
1. Ms. Neera Malik,
D/o Shri C. R. Gupta,
R/o M-11, Lajpat Nagar-III,
New Delhi -110024
2. Sh. Mukesh Kumar Pruthi
S/o Sh. Desraj Pruthi
R/o H.No. 17-C, Pocket-A-II,
Kalkaji Extension, New Delhi -110019
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CS DJ No. 424/2016 9597/16
P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:43:51 +0530
3. Sh. Ramesh Ahuja,
S/o Sh. L. C. Ahuja,
R/o 18, Behra Enclave,
Paschim Vihar,
New Delhi.
4. Sh. Dharambir
S/o Sh. Siri Ram,
R/o H.No. 280,
2nd Floor, Behra Enclave,
Paschim Vihar,
New Delhi
5. Sh. Punit Nayyar
S/o Sh. S.S. Nayyar
R/o E-130, A-11, Kalkaji,
New Delhi -110019
6. Sh. Kamal Talukdar,
S/o Late Sh. Anil Talukdar
R/o B-34-G, Sidhartha Extension,
New Delhi -110014 ....Defendants
Date of institution of the suit : 28.05.2005
Arguments concluded on : 03.05.2025
Date of decision : 22.05.2025
SUIT FOR POSSESSION, DAMAGES, DECLARATION AND AND
PERMANENT INJUNCTIONS
JUDGMENT
1. Vide this common judgment, both the suits of the plaintiffs qua the
first floor of property bearing No. M-38, Chittranjan Park, New Delhi
(hereinafter referred as suit property) and application of plaintiffs moved
under Order 39 Rule 2A CPC have been disposed off. For the sake of
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:43:56 +0530
convenience the suit no. 9471/16 instituted on 26.03.1998 will be
hereinafter referred as suit no. I and suit No. 9597/16 as suit no. II.
2. Admittedly, plaintiffs are the original allottees of the suit property
by virtue of perpetual lease deed in their favour. On 09.07.1991, plaintiffs
had entered into a collaboration agreement with defendant no. 6 (in suit No.
II) for the construction of suit property. During pendency of the suit, both
the plaintiffs have passed away and their legal heirs have already been
impleaded in the suits..
3. Common averments of plaintiffs in both suits:
3.1 As per plaintiffs, defendant no. 6 had not completed the construction
as per the collaboration agreement due to which plaintiffs canceled and
rescinded the agreement on 27.04.1993 by way serving notice and sending
telegram to defendant no. 6 (in suit no. II). Plaintiffs also took the
possession of the property and completed the construction of the entire
property by spending substantial amount. The defendant no. 6 (in suit no.
II) accepted the termination without any objection nor the challenged the
termination in any forum, thus, he had no right, title or interest over the
property and plaintiffs are sole and absolute owners of the entire property
i.e. basement, ground floor, first floor and second floor of the above
mentioned property. Apart from above said collaboration agreement, no
other document like sale deed, GPA or any other registered document was
ever executed by plaintiffs in favour of builder as he was acting only as a
builder/contractor.
3.2 In the month of October, 1997 the plaintiffs received the summons of
the suit filed by defendant no. 1 against the plaintiffs for a permanent and
mandatory injunction seeking the relief for grant of electricity connection
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2025.05.22
17:44:00 +0530
in respect of suit property. In the said suit, defendant no. 1 herein had
falsely and malafidely claimed that she had purchased the suit property
from one Shri Sanjeev Sharma whereas plaintiffs had never sold the suit
property to him. The plaintiffs never sold any portion of the suit property
either to defendant no. 6 (in suit no. II) or Shri Sanjeev Sharma or
defendant no.1 or any other defendants at any point of time.
3.3 As per plaintiffs, on 12-13.10.1997, defendant no.1 had criminally
trespassed into the suit property by removing the goods of the plaintiffs in
collusion with local police, qua which criminal case was also filed against
the defendant no. 1. The complaint was filed on 23.10.1997 regarding the
said criminal trespassing but police had not taken action in collusion with
defendant no. 1. As the defendant no.1 is a trespasser in respect of the suit
property, therefore, the question of granting electricity connection or any
other connections in the name of defendant no.1 qua the suit property does
not arise.
3.4 In the suit filed by defendant no. 1 against plaintiffs, the court
concerned had rejected the interim relief of mandatory injunction vide
order dated 24.10.1997, considering the terms and conditions of the
agreement to sell allegedly executed between Mrs. Neera Malik and said
Sh. Sanjeev Sharma. The Court has categorically observed that:
“24.10.1997:
Present : Mr. Pramod Ahuja with Ms. Era Bhatiani
Mr. S.K. Bhaduri for the defendant‘A’ 10288/97 In S.No.2115/97:
The plaintiff is not entitled to any direction in this matter
for the following reasons:- i.e.
(i) According to his own title deed, it appears that in Agreement to Sell one of
the term is that second party is aware and made conscious that there is some disputeCS DJ 268/2016 9471/16 Page No. 5 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
PRABH Digitally signed
by PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:05 +0530
between the owner of the property Mr. P.K. Jana and Ms. Usha Jana and the Builder Mr.
Kamal Talukdar who are making counter claims in respect of the flat and electricity and
water connections are severed and the second party has satisfied herself as the title of
the first floor of the property and has willingly agreed to buy on as is where is basis and
whereas the second party agrees and hereby declare that she shall not state any claim
against the seller.
(ii) According to the agreement to sell, it was entered into between plaintiff and one
Sanjeev Sharma on 29.09.1995. It is apparent that on 29.09.1995 there was no
electricity and water connection and there was dispute. The plaintiff himself entered
into that agreement knowing fully well that there was no electricity and water
connection.
(iii) There is neither allegation that it was ever restored nor there is any document to
indicate that it was ever restored, after 1995, it was ever restored it might have been so
mentioned in the agreement to sell in favour of Kamal Talukdar and between Sanjeev
Sharma and Sangeeta Sharma and Kamal Talukdar. If the plaintiff purchased and took
the risks mentioned he must suffer consequences also.
Consequently, at this initial stage mandatory injunction cannot be granted. I.A.
10288/97 is rejected accordingly.
3.5 After failure to obtain interim relief, defendant no. 1 tried to sell the
property by giving advertisement in the newspaper due to which plaintiffs
herein who were defendants in the said suit filed interim application under
Order 39 Rule 1 and 2 CPC and vide order dated 20.02.1998.
Plaintiff/defendant no. 1 herein was restrained from disposing off the suit
property. As per plaintiffs, on 5.3.1998, the defendant No.1 malafidely
withdrew the said suit.
4. Averments in the suit no. I:
On 26.03.1998, plaintiffs filed suit no. I for permanent and
mandatory injunction.
4.1 As per plaintiffs, they had written several letters to the defendant no.
2 Board thereby communicating the defendant no. 2 Board not to grant
electricity connection in the name of the defendant no. 1 or in the name of
any other person without the written consent of the plaintiffs in respect of
the suit property. Apprehending the collusion between defendant no. 1 andCS DJ 268/2016 9471/16 Page No. 6 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed
PRABH by PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:10 +0530
staff of defendant no. 2, plaintiffs issued legal notice dated 18.01.1998
upon defendant no.2 and thereafter the defendant no. 2 intimated to the
plaintiffs that the defendant no. 1 had applied for electricity connection by
representing herself to be the owner of the property and defendant no. 1
had been called to furnish legal documents of ownership, documents with
respect to the property in question. Pointing out towards the order dated
24.10.1997 passed by Hon’ble High Court of Delhi, plaintiffs stated that
defendant no. 1 had no right, title or interest in respect of the suit property
and as such the defendant No.1 is also not entitled to get any electricity
connection to the suit property. Plaintiff further asserted that defendant no.
2 cannot grant electricity connection to anyone without proof of legal
ownership. Plaintiffs further asserted that defendant no. 1 trying to create
third party interest in the suit property just to create nuisance and harassed
the plaintiffs. Several persons at the instance of defendant no. 1 are
regularly visiting the suit property and even on 23.03.98 some persons have
visited the suit property to get the details of the suit property. Defendant no.
2 and 3 have no right to grant or install electricity and water connection at
the suit property in name of anyone.
4.2 Plaintiffs have filed suit no. I for following reliefs i.e.
(i) A Decree for Permanent Injunction in favour of the plaintiffs and
against the defendants thereby (i) restraining the defendant No. 1 from in
any manner whatsoever obtaining/ taking water supply connection either in
her name or in the name of her nominees or any body else with respect to
the suit property; (ii) restraining the defendants No. 1 or her representatives
etc from alienating, encumbering, creating any third party rights, and/ or
disposing of a part or whole of the suit property, except to hand over theCS DJ 268/2016 9471/16 Page No. 7 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
PRABH Digitally signed
by PRABH DEEP
DEEP Date: 2025.05.22
KAURKAUR 17:44:14 +0530
vacant and peaceful possession of the same to the plaintiffs herein; (iii)
thereby restraining defendant no. 3 from sanctioning any water
connection/supply in favour of either the defendant No. 1 or in anybody’s
name with respect to the suit property without the written consent and
knowledge of the plaintiffs and (iv) A Decree of Mandatory Injunction
thereby directing the defendant No. 2 to disconnect the said electricity
connection installed in the suit property in the name of defendant No. 1.
4.3 During pendency of the suit, plaintiffs filed application u/O 6 Rule
17 CPC for amendment of the plaint which was allowed vide order dated
28.07.2004. By way of amendment, plaintiffs stated that during pendency
of the suit, defendant no. 2 /BSES has illegally and unauthorizedly granted
the electricity connection of suit in property in name of defendant no. 1 and
it was installed on 07.10.1998. Plaintiffs further asserted that defendant no.
1 has produced the documents which are nonest in the eyes of law and are
false and fabricated documents. Therefore, plaintiffs sought the additional
reliefs i.e. relief no. iv as mentioned above.
4.4 On 04.10.2004, Sh. Dharambir i.e. defendant no. 4 in the suit no. II
and Sh. Ramesh Ahuja i.e. defendant no. 3 in the suit no. II have moved an
application under Order 1 Rule 10 CPC in the suit no. I. They sought their
impleadment as defendants in suit no. I, however, the application was
dismissed for non-prosecution vide order dated 01.03.2005. Thereafter, on
31.10.2005 both of them have filed the application for restoration of the
application moved under Order 1 Rule 10 CPC. However, the said
application was not taken into consideration as both the suits have been
consolidated vide order dated 06.04.2009.
5. Application under Order 39 Rule 2A r/w Section 151 CPC for
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PRABH Digitally signed by
PRABH DEEP KAUR
DEEP Date: 2025.05.22
KAUR 17:44:18 +0530
violation of interim order dated 18.04.1988:
On 12.08.2002, plaintiffs also filed a contempt application reiterating
the above mentioned facts and stated that in the suit no. I vide order dated
18.04.1998 the Hon’ble Court had passed a restrained order thereby
restraining defendant no. 1 from creating third party interest in the suit
property and the said order is still in operation. It was averred that in April
2002 one Mr. Sanjeev Madan, Mr. Dharambir, Sh. Ramesh Ahuja and some
other persons came at the suit property, criminally trespassed in the suit
property, after which plaintiffs filed the police complaint on 16.05.2002.
During inquiry, plaintiffs came to know that despite the restrain order in
suit No.I, defendant no. 1 allegedly sold the property to Mr. Mukesh Purthi
(defendant no. 2 in the suit no. II) by way of GPA, Agreement to sell etc.
dated 07.03.2002 and Sh. Mukesh Purthi (Defendant no. 2 in suit no. II)
had further sold the same to one Sh. Ramesh Ahuja (defendant no. 3 in Suit
No. II) on 12.04.2002 by executing same set of documents. Defendant no. 1
had in fact sold the suit property in October 1998 to one Mr. Puneet Nayyar
(defendant no. 5 in Suit No. II). As per plaintiffs, after the restrain order
dated 18.04.1998, plaintiffs have clearly put a sign board in the property
that “property is under Court stay and the case is pending in the District
Courts” and plaintiffs have also issued public notice in the newspaper on
10.02.1998 stating that they are owners of the property and have not sold
the same to anyone. It has been further asserted that defendant no. 1 had
willfully and deliberately violated the restrain order dated 18.04.1998 and
defendant no. 1 to 5 of the suit no. II, all have intentionally and willfully
disobeyed the restrain order and therefore, all the respondents i.e. defendant
no. 1 to 5 in the suit no. II are liable to be punished for violation of interim
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
PRABH Digitally signed
by PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:31 +0530
order and appropriate proceedings u/O 39 Rule 2 A r/w Section 151 CPC
should be initiated against them.
6. Averments in suit no. II:-
6.1 Thereafter, on 28.05.2005 plaintiffs instituted second suit wherein
they have reiterated the above mentioned facts. It was further alleged that
in the month of April 2002, defendant no. 3 and 4 trespassed into the suit
property after which plaintiffs filed a police complaint on 16.05.2002.
During vigilance inquiry on the said complaint, it was disclosed that
despite restrained order in the first floor, defendant no. 1 earlier sold the
suit property to defendant no. 5. Thereafter, defendant no. 1 allegedly sold
the suit property to defendant no. 2 on 07.03.2002 by executing GPA,
agreement to sell etc and defendant no. 2 in turn sold the same to defendant
no. 3 on 12.04.2002 by executing same set of documents.
6.2 The plaintiffs further averred that defendant no. 3 and 4 have moved
impleadment application under Order 1 Rule 10 CPC in suit no. I which
had been dismissed as defendant no. 3 and 4 failed to produce their
ownership documents despite claiming the possession of the suit property.
6.3 Plaintiffs further alleged that plaintiffs are residing at the ground
floor of the portion of property no. M-38, C.R. Park, New Delhi and
defendants in collusion with each other are doing commercial activity from
the suit property as every day some big cartons /boxes are being kept or
stored in the suit property and after few days said boxes are being
dispatched and every day approximately 100 people are visiting the suit
property thereby creating nuisance. Plaintiffs further asserted that
defendants in collusion with each other are also bringing some girls/ladies
alongwith other some unknown person in the suit property and they are
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:36 +0530
staying there and thus are using the suit property for immoral purposes and
even at odd hours unknown persons are entering the suit property with girls
and ladies. Despite repeated objections and requests, defendants did not
bother to look at that. Defendants have no right, title or interest over the
property and are liable to vacate the same and hand over the possession to
the plaintiffs. As per plaintiffs, they are registered owners of the property
and they have never sold the suit property to any of the defendants or any
other persons and more over, no title can be passed in respect of immovable
property without registered documents. Plaintiff further stated that
defendants are illegally and unauthorizedly occupying the suit property and
therefore, they are jointly and severally liable to pay damages as claimed in
the prayer clause mentioned above. Plaintiffs also alleged that due to illegal
use of the property by the defendants, MCD is raising exorbitant house tax
in respect of suit property and plaintiffs were forced to file appeal against
the MCD which was allowed by the Court. Plaintiffs also alleged that
defendants are threatening the plaintiffs and due to criminal and immoral
activities of defendants the reputation of plaintiffs is getting damaged and
life of plaintiff and his family members are in danger.
6.4 Plaintiffs sought following reliefs in suit no. II:-
a. A decree for declaration declaring the Defendants are trespassers in
respect of suit property having no right, title or interest over the suit
property;
b. A decree for recovery of possession by evicting the defendants from
the suit property as shown in RED colour in the site plan;
c. A decree for recovery of damages to the tune of Rs.3,50,000/-
(Rupees three lakhs fifty thousand only) in favour of the plaintiffs andCS DJ 268/2016 9471/16 Page No. 11 of 58
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PRABH Digitally signed by
PRABH DEEP KAUR
DEEP Date: 2025.05.22
KAUR 17:44:40 +0530
against the defendants;
d. Award interest @ 18% p.a. and the defendants be directed to pay a
sum of Rs.10,000/- (Rupees ten thousand only) per month during the
pendency of the present suit and / or till the defendants hand over the
possession of the suit property to the plaintiffs;
e. A decree for declaration thereby declaring that all the documents
which are in power and possession of the defendants in respect of the suit
property are illegal and null and void;
f. A decree for permanent injunction thereby restraining the defendants
from transferring, alienating or handing over the possession (except to the
plaintiffs) of the suit property or creating a third party interest in respect of
the suit property as shown in RED colour in the Site Plan;
7. Defence of defendant no. 1/Mrs. Neera Malik:
7.1 Defendant no. 1 has not contested either of the suits nor filed WS.
Defendant no. 1 was proceeded ex-parte in Suit No. I vide order dated
01.10.2004 and suit No. II vide order dated 18.08.2006.
7.2 Defendant no. 1 had filed reply to the application moved by plaintiffs
under Order 39 Rule 2A CPC and defendant no. 1 denied the allegations of
plaintiffs and defendant no. 1 denied that she had trespassed into the
property. As per defendant no. 1, suit property was given to respondent no.
1 by Sh. Sanjeev Sharma in vacant and peaceful physical condition. She
denied allegations of collusion with police and also denied the knowledge
of the interim order and she further submitted that the allegations of
violation of interim order are false and baseless. Defendant no. 1 further
alleged that after police inquiry, police had given adverse comments against
the plaintiffs. She further pressed that plaintiffs have no right over the suitCS DJ 268/2016 9471/16 Page No. 12 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2025.05.22
17:44:45 +0530
property and defendant no. 1 being authorized person can deal with the
portion of the property as she likes and deems fit.
7.3 Defendant no. 1 further alleged that police authority had checked the
record and even made a complaint against the plaintiffs in various cases
and even made a report for initiating action under Section 182 Cr. PC
against the plaintiffs. Even the Local Commissioner was appointed by the
Hon’ble High Court of Delhi and defendant no. 1 again came in the
possession as they themselves left the said premises as there was a
complaint u/S 448 IPC against the plaintiffs which was pending.
8. Defence of defendant no. 2 /Delhi Vidyut Board /BSES in Suit No. I:
Defendant no. 2 denied the allegations of plaintiffs and it was stated
that electricity connection has been already sanctioned on 19.03.1998 in the
name of defendant no. 1 legally and same has been legally installed at the
suit property. Defendant no. 2 has denied the allegations on merits stating
that there is no privity of contract between plaintiffs and defendant no. 2. It
was further stated that electricity connection in name of defendant no. 1 has
been sanctioned by defendant no. 2 on the basis of documents and the
sanctioned of electricity connection is legal.
9. Defence of defendant no. 3/Delhi Jal Board:
Defendant no. 3 denied the allegations of plaintiffs and it was stated
that water connection has been already sanctioned on 08.10.2002 in the
name of Sh. Ramesh Ahuja (defendant no. 3 in Suit No. II) who is owner in
possession of the suit property. It is further stated that Sh. Ramesh Ahuja
(defendant no. 3 in the suit no. II) is owner in possession of the suit
property having registered documents in his favour, registered on
12.04.2002 and he applied for sanction of water connection in his nameCS DJ 268/2016 9471/16 Page No. 13 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025 Digitally signed by
PRABH PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:49 +0530
and also filed copy of GPA, receipt and copy of electricity Bill, Gas
Connection and telephone bill in his favour, therefore, as per policy water
connection in his name was sanctioned on 08.10.2002 as water being basic
amenity cannot be denied.
10. Defence of defendant no. 2/Sh. Mukesh Purthi and defendant no. 5
(in the suit no. II):
Defendant no. 2 and 5 have not appeared nor filed WS, therefore,
they were proceeded ex-parte vide order dated 18.08.2006.
Relevancy of testimony of defendant no. 2: Defendant no. 2 had
appeared as DW in the witness box to prove the defence of defendant no. 3
and defendant no. 4 and the same was objected to by LR no. 2(a) of the
plaintiffs on the ground that defendant no. 2 being ex-parte cannot enter the
witness box as his testimony would be beyond the pleadings. As far as this
plea is concerned, it is made clear that testimony of defendant no. 2 will be
read in evidence to the extent of admissions only and not beyond that
because defendant no. 2 had chosen not to contest the matter and had not
put his defence during pleadings, therefore, his testimony to the extent of
proving his defence cannot be considered being beyond pleadings but his
testimony to the extent of admission can be considered.
11. Defence of defendant no. 3 Sh. Ramesh Ahuja and defendant no. 4
Sh. Dharambir in suit no. II:
Defendant no. 3 and 4 have denied the allegations of plaintiff and
have taken the plea that the present suit is barred by order 2 Rule 2 CPC as
plaintiffs had already filed suit no. I and the relief in the present suit could
have been claimed by plaintiffs in the previous suit.
It is further asserted that defendant no. 4 purchased the suit property
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP
DEEP KAUR
Date: 2025.05.22
KAUR 17:44:54 +0530
on the basis of valid documents and transfer of possession against valuable
consideration. Based on the documents executed by the owner/occupier of
the suit property the answering defendants are the sole and absolute owner
of the suit property. The defendant no. 3 & 4 have not trespassed into the
suit property. Admittedly, plaintiffs entered into collaboration agreement
with the contractor/defendant no. 6 who sold his share of the property by
executing several documents and transferred possession against a valuable
consideration and defendant no. 3 and 4 subsequently purchased the
property against valid consideration. Thus, defendant no. 4 is the bonafide
purchaser of the suit property, having purchased the said on the basis of
valid documents, duly registered before the Registering Authority and since
then, they have been enjoying actual peaceful, uninterrupted physical
possession of the suit property. On the basis of documents, it is submitted
that the defendant no. 1 had acquired ownership right in the suit property.
The answering defendants are owners in possession of the suit property and
as such no decree of possession can be passed against them. It is further
stated that plaintiffs after having transferred their rights in respect of the
suit property in favour of builder/defendant no. 6, subsequent documents
executed in respect thereof, are valid and subsisting and cannot be declared
as null and void.
12. Defence of defendant no. 6 Sh. Kamal Talukdar in suit no. II:
12.1 Plaintiffs have not impleaded the contractor/builder initially and
thereafter, on the averments of defendant no. 3 and 4, the contractor Sh.
Kamal Talukdar was impleaded as defendant no. 6 vide order dated
18.08.2006. However, in pursuant to impleadment of defendant no. 6,
plaint has not been amended nor any additional documents have been filed.
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2025.05.22
17:44:59 +0530
12.2 Defendant no. 6 admitted that he was the builder of the suit premises.
He stated that the construction of the above said premises was carried out
as per the Collaboration Agreement. The Plaintiffs took possession of the
Ground Floor on 23/24-04-1993 and the Basement on September 29, 1993
after removing the guard of the Defendant no. 6 posted at the Basement.
Defendant no. 6 who was in possession of the 1st and the 2 nd Floor of the
suit premises, had the right to sell the same under the Collaboration
Agreement and therefore, he entered into an Agreement to sell (i) Qua the
sale of second floor with Mr. Anees Bhatia (Minor) through his father as
natural guardian Mr. Arun Bhatia on 30.09.1992 and the possession was
handed over on 13.04.1993 to Sh. Arun Bhatia and (ii) Qua the sale of 1 st
floor with Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma on 18.12.1991
and the possession was handed over to Mr. Sanjiv Sharma on 10.05.2003.
Thereafter, defendant no. 6 left the premises on 10.05.1993 and had no
knowledge of the dispute between the Plaintiff and the Defendants 1 to 5.
12.3 It is asserted that no cause of action has been averred nor could have
been averred against defendant no. 6 as he was not the party to any
transaction or dispute between plaintiff and defendant no. 1 to 5. It has
been further stated that plaint is hopelessly time barred against defendant
no. 6 as plaintiffs themselves are showing that the cause of action in their
favour arose on 12/13-10-1997 and thus, defendant no. 6 who had left the
suit premises on 10.05.1993 is not even remotely connected with the
dispute alleged in the Plaint. It has been further stated that as per clause 6
of the Collaboration Agreement, the plaintiffs cease to be the sole and
absolute owners of suit property upon completion of construction of
building on Property No. M-38, C.R. Park, New Delhi.
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12.4 It has been further stated that after completion of construction,
plaintiffs turned dishonest and with intention to usurp the entire building,
they started hurling accusations on the defendant no. 6 and the cancellation
of agreement on 27.04.2003 was an afterthought because defendant no. 6
had already acted upon the collaboration agreement and constructed the
building on the plot. The plaintiffs took possession of ground floor on
23/24.04.1993 and basement on 29.09.1993. Defendant no. 6 had handed
over the possession of first floor to Mr. Sanjeev Sharma on 10.05.2003(it
seems to be a typographical error as defendant no. 6 averred that he had left
the premises on 10.05.1993) and any cancellation or rescinded of the
agreement after the same had been acted upon, is meaningless. The
defendant no. 6 had duly replied to letter dated 27.04.1997 vide reply /letter
dated 06.05.1993 challenging the cancellation. The defendant no. 6 again
asserted that the collaboration agreement between plaintiffs and defendant
no. 6 dated 09.07.1991 had been acted upon by plaintiffs and defendant no.
6 between July 1991 and April 1993 and thus, had attained the finality and
it is not open to the parties to the agreement to challenge the terms and
condition of the said agreement before any Court of law.
13. Replication:
The Plaintiffs have filed replication to the written statement of
defendant no. 3 and 4 thereby reaffirming and reiterating the contents of
plaint and denying the contents of written statements.
14. Issues :
14.1 On the basis of pleadings, issues were framed in the suit No. I vide
order dated 03.05.2005. The suit no. I was filed before Ld. Civil Judge,
being simplicitor suit for injunction and later on suit no. II was filed beforeCS DJ 268/2016 9471/16 Page No. 17 of 58
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Hon’ble High Court of Delhi due to the pecuniary jurisdiction. Later on
vide order dated 18.08.2006 Hon’ble High Court of Delhi where the suit
no. II was already pending, had transferred the suit No. I as well as
contempt proceedings to Hon’ble High Court of Delhi.
14.2 Thereafter, Hon’ble High Court of Delhi vide order dated 06.04.2009
passed the following orders:
“Ignoring the issues already framed in CS (OS) No. 536/2007 (i.e. suit no.
I) when pending before the district Court, the following consolidated issues
are framed for the trial in the two suits (the reference to parties hereunder is
as in CS (OS) No. 798/2005 i.e. Suit No. II ).
1. Whether defendant no. 6 had abandoned the collaboration
agreement with the plaintiffs and was thus not entitled to any portion
of the newly constructed building and was not entitled to convey any
rights therein?OPP
2. Whether the plaintiffs are entitled to relief of cancellation of
documents with respect to the first floor of the property in favour of
the defendants no. 3&4 and their predecessors?OPP
3. In the above issue is decided in favour of the plaintiffs, whether
the plaintiffs are entitled to possession of the first floor from the
defendant no. 3 & 4?OPP
4. If the above issue is decided in favour of the plaintiffs, whether the
plaintiffs are entitled to mesne profits/damages for use and
occupation and if so at what rate and for what period and from which
of the defendants?OPP
5. Whether the defendants no. 3&4 are the owners in possession of
the first floor of the property?OPD-3&4
6. Whether the reliefs claimed in CS(OS) NO. 798/2005 are barred
by order 2 Rule 2 of the CPC, if so to what effect? OPD-3&4
7. Whether the reliefs claimed in CS(OS) No. 798/2005 are barred by
time ? OPD-6
14.3 While framing issues vide order dated 06.04.2009 Hon’ble High
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Court of Delhi has passed following orders:
“…..The defendants No.1,2 &5 being ex-parte, the witnesses of the plaintiff to be cross
examined first by the counsel for the defendants No.6 and thereafter by the counsel for
the defendants No.3&4. The defendant No.6 to lead evidence after the evidence of the
plaintiff and before the evidence of the defendants No.3&4. The witnesses of the
defendant No.6 to be cross examined first by the defendants No. 3&4 and thereafter by
the counsel for the plaintiff. Similarly, the witnesses of the defendants No.3&4 to be
cross examined first by the counsel for the defendant No.6 and thereafter by the counsel
for the plaintiff on 06.04.2009.”
14.4 With respect to the contempt petition filed by the plaintiffs following
orders was passed:
“This is directed against the defendant No.1 in this suit and who is defendant No.1 in
CS(OS) No.798/2005 also with which this suit has been consolidated. The defendant
No.1 is ex-parte in both the suits. The averments in the application are such that it shall
be considered after the evidence has been recorded in the suits. Accordingly, the CCP
hereafter be listed at the time of final arguments in the suit. No further orders would be
required in the CCP file hereafter.”
15. Plaintiff’s evidence.
During PE, LR No. 2(a) of plaintiffs namely Sh. Saurabh Jana has
examined himself as PW-1. He has reiterated and reaffirmed the stand
taken by plaintiffs in the plaint by way of affidavit Ex. PW-1/A. He has
relied upon the documents i.e. Ex. PW-1/11 to Ex. PW-1/11. He was cross-
examined by Ms. Sunita Harish, Ld. Counsel for defendant no. 6. Cross
examination on behalf of defendant no.3 and 4 conducted by Ld. Counsel
Sh. Shyam Dutt.
15.1 Further, Sh. H.N.R. Yadav, ASO/OSB/DDA, Vikas Sadan was
examined as PW-2. He has brought summoned record i.e. third copy of
challan No. 1067 dated 13.05.1991 is Mark-1, bears his signature at point-
A, deposited with Delhi Development Authority and challan No. 026765
dated 05.12.2001 deposited with Delhi Development Authority as regards
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to ground rent of Rs. 1503/- for one year (1991) and thereafter Rs. 15030/-
alongwith interest Rs. 2986/- for the period 05.12.1992 to 05.12.2002. The
amount was deposited by Late Sh. P.K. Jana against property No. M-38,
Chittaranjan Park, New Delhi-19 and the amounts as regards to challan No.
026765 Ex.PW2/1(OSR), bearing signatures of PW-1 at point-A, was
deposited by Late Sh. P.K. Jana the original third copy challan are in file
No. L3(188)/86. He was cross-examined by Mr. Ajit Pratap Singh, Ld.
Counsel for defendant no. 6. Cross examination on behalf of defendant
no.3 and 4 conducted by Ld. Counsel Sh. Shyam Dutt.
15.2 Further, SI Narender Singh, PS C.R. was examined as PW-3. He has
brought summoned record i.e. (i) Complaints and FIR at suit property i.e.
M-38, C.R. Park, New Delhi on various dates; (ii) Certified copies of FIR
No. 448/1997 dated 12.10.1997 u/s 448/506/34 IPC; (iii) Certified copy of
FIR No. 333/1996 dated 11.06.1996 u/s 342 IPC; (iv) a status report and an
office order dated 24.05.2023 regarding the destruction of old records as
detailed at Sr. No. 10 period up to 31.12.2019. All the records was
exhibited as Ex. PW3/2 (Colly). He was cross-examined by Mr. Ajit Pratap
Singh, Ld. Counsel for defendant no. 6. Cross examination on behalf of
defendant no.3 and 4 conducted by Ld. Counsel Sh. A.K. Sen.
15.3 Further Mr. Bijumon George, Junior Associate, BSES Rajdhani
Power Ltd. was examined as PW-4. He has brought summoned record of
electricity connection installed at suit property i.e. M-38, Ground Floor,
C.R. Park, New Delhi i.e. original application form and supporting
document i.e. lease deed and copy of a letter dated 22.05.1995 has been
weeded out vide order dated 11.11.2013. The office order and the report is
Ex. PW-4/1(Colly). On 16.12.2013 PW-4 has brought further record
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concerned to the electricity connection installed at the above property and
have brought the certified copy of the current bills of CA No. 101715806,
CA No 101642301 and CA No. 151579080; Energisation Dates dated
12.02.1996, 22.06.1999 and 08.09.2015 respectively. He further brought
certified documents of application of a new connection vide application no.
8002000462 dated 11.08.2015 alongwith the supporting documents filed by
Sh. Ramesh Ahuja at the suit proprty i.e. M-38, First Floor, C.R. Park, New
Delhi. The office order and report alongwith above documents is Ex.
PW-4/2 (colly) (running into page nos. 1 to 21). He was cross-examined by
Mr. A.K. Sen, Ld. Counsel for defendant no. 3 and 4. Cross examination on
behalf of defendant no.6 conducted by Ld. Counsel Sh. Kameshwar Pratap
Singh.
15.4 Further, Sh. Ankit Fagoria, Junior Secretariat Assistant, DDA was
examined as PW-5. He has brought summoned record regarding the lease
rent of the property bearing number M-38, C.R. Park, New Delhi – 110019
paid vide challan in State Bank of India; The third original copy deposited
along with the letter till date and the notices dated 26.05.1993 bearing page
nos. 88, 89 and 90 issued to the plaintiff no. 1/ Sh. P.K. Jana (since
deceased) and plaintiff no. 2/ Mrs. Usha Jana(now deceased). He was
cross-examined by Sh. Kameshwar Pratap Singh, Ld. Counsel for
defendant no. 6. Cross examination on behalf of defendant no. 3 and 4
conducted by Ld. Counsel Mr. A.K. Sen.
15.5 Further, Mr. Manmohar, Sr. Assistant, Delhi Jal Board was examined
as PW-6. He has brought summoned record i.e. copy of allotment register
bearing WC No. 55547 at page no. 3 Ex. PW-6/1 (OSR) and copy of the
allotment register of K.No. 4645305101 (second water connection) on
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17.10.2015 Ex. PW-6/2(OSR). He was cross-examined by Sh. Kameshwar
Pratap Singh, Ld. Counsel for defendant no. 6 and Sh. Shyamdutt, Ld.
Counsel for defendant no. 3 and 4.
15.6 Further, Sh. Om Vir, JSA, DDA Vikas Sadan was examined as PW-7.
He deposed that as per directions from Assistant Director (OSB), he has
brought the complete original file bearing no. L3(188) 86/OSB regarding
the suit property bearing plot no. 38, Pocket M, C.R. Park, New Delhi -19
(Sh. Prabhat Kumar Jana and Mrs. Usha Jana). The said documents are
regarding the complete correspondence with the allottee. The copy of
relevant documents is Ex. PW-7/A(OSR)(colly)(pages from 1 to 174). He
was cross-examined by Sh. Kameshwar Pratap Singh, Ld. Counsel for
defendant no. 6 and Sh. Shyamdutt, Ld. Counsel for defendant no. 3 and 4.
15.7 Further, Sh. Saptarshi Dutta friend of son of plaintiffs was examined
as PW-8. He tendered his evidence as Ex. PW-8/A. He was cross-examined
by Sh. Kameshwar Pratap Singh, Ld. Counsel for defendant no. 6 and Sh.
Shyamdutt, Ld. Counsel for defendant no. 3 and 4.
15.8 Further, Sh. Munna Lal Prajapati was examined as PW-9. He
tendered his evidence as Ex. PW-9/A. He was cross-examined by Sh.
Kameshwar Pratap Singh, Ld. Counsel for defendant no. 6 and Sh. A.K.
Sen with Shyam Dutt and Sh. Deepak Bidhuri, Ld. Counsel for defendant
no. 3 and 4. Thereafter, matter was fixed for defendants’ evidence.
Defence evidence.
16(a) In Defence, on 26.09.2024, Sh. Kamal Talukdar/defendant no. 6 was
examined as DW-6. He has tendered his evidence by way of affidavit Ex.
DW-6/A. He relied upon documents Ex. DW-6/1 to Ex. DW-6/7 and Mark-
A to Mark -I and Ex. DW-6/7. He was cross examined by Sh. Shyam Dutt,
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Ld. Counsel for defendant no. 3 and 4 as well as plaintiff 2-A
16(b) Thereafter, on 18.10.2024 Sh. Arvind Singh Rawat, Postal Assistant
was examined as D6W2. He brought letter no. 32-121/99-BDD dated
26.04.2002 and letter dated 15.10.2024 issued by Postmaster (Grade-I),
C.R. Park, New Delhi -110019 vide which the summoned record was
weeded out. He was cross examined by plaintiff no. 2A.
16(c) Thereafter, on 18.10.24 Sh. Manoj Kumar, HRMS Aln(B), BSES,
Alakhnanda Division was examined as D6W3. He deposed that the
department received the summon to bring the receipt no. 72859 dated
20.11.1991 issued by the then DESU. The department has taken over the
charges from DESU in July 2002 and the department has no documents
pertaining to electricity connections prior to July, 2002 and therefore, the
record summoned by the Court is not available with the department. He
was cross examined by plaintiff no. 2A.
16(d) Thereafter, on 18.10.24 SI Narender Singh was examined as D6W4.
He brought letter no. 11227-11266/HAR/South District, dated 16.05.2024,
as per which, all types of complaints (Local, times, CMTS, Lgs, CRGMS,
ACP/DCP/Online EOW complaints), MCD, DDA, ASI and online
complaint have been destroyed upto 31.12.2020. He was cross examined
by plaintiff no. 2A.
16(e) Thereafter, on 25.10.24 Sh. Raman Lal Sharma examined as D6W5.
He brought office order dated 24.10.2024 issued by Executive
Engineer(Building), MCD, Central Zone, Lajpat Nagar-II, New Delhi
pertaining to the receipt no. 132084 dated 23.06.1992 and form C and form
D. Original Letter dated 24.10.2024 issued by Executive Engineer
(Building), MCD, Central Zone, Lajpat Nagar-II, New Delhi and the
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original register pertaining to the entry of receipt no. 132084 dated
23.06.1992. He was cross examined by plaintiff no. 2A.
16(f) Thereafter, on 25.10.24 Sh. Ajeet Singh, AAO, Designation MTS
Office at SR-V was examined as D3W1. He brought the certified copies of
summoned record. The certified copies of
(i) Agreement to sell & purchase between defendant no. 2 and defendant
no. 4;
(ii) Will by defendant no. 2 in favour of defendant no. 4;
(iii) GPA executed by defendant no. 2 in favour of defendant no. 3;
(iv) Will by defendant no. 1 in favour of defendant no. 2;
(v) GPA by defendant no. 1 in favour of defendant no. 2
He was cross examined by plaintiff no. 2A.
16(g) Thereafter, on 25.10.24 HC Hitesh Kumar was examined as D3W2.
He deposed that complaint and DD entries prior to 2008 have been weeded
out and the copy of relevant order is Ex. D3W2A, therefore, no record of
DD entry no. 20B dt. 10.02.2002 is available with their office. He was
cross examined by plaintiff no. 2A.
16(h) Thereafter, defendant no. 3 Sh. Ramesh Ahuja examined himself as
D3. He reiterated his defence taken by way of WS. He was cross examined
by plaintiff no. 2A.
16(i) Thereafter, defendant no. 2 Sh. Mukesh Pruthi was examined as
D3W4. He relied upon the documents already replied upon by defendant
no. 3 and defendant no. 4. He was cross examined by plaintiff no. 2A and
Sh. Kameshwar Prasad Singh, Ld. Counsel for defendant no. 6. Thereafter,
matter was fixed for final arguments.
17 Final arguments:
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Final arguments addressed by plaintiff no. 2A and Sh. Shyam Dutt,
Ld. Counsel for defendant no. 3 and 4 and Sh. Kameshwar Pratap Singh,
Ld. Counsel for defendant no. 6 have been heard. Both the parties have also
filed written arguments in which they have reiterated the arguments
addressed before the Court and same are not reproduced here in verbatim
for the sake of brevity but will be dealt alongwith the findings upon issues
at the relevant stage.
18. I have heard Ld. counsels for both the parties and meticulously gone
through the record and also considered the written arguments filed by them.
19. My issue wise findings:
1. Whether defendant no. 6 had abandoned the collaboration
agreement with the plaintiffs and was thus not entitled to any portion
of the newly constructed building and was not entitled to convey any
rights therein?OPP
2. Whether the plaintiffs are entitled to relief of cancellation of
documents with respect to the first floor of the property in favour of
the defendants no. 3&4 and their predecessors?OPP
3. In the above issue is decided in favour of the plaintiffs, whether
the plaintiffs are entitled to possession of the first floor from the
defendant no. 3 & 4?OPP
4. If the above issue is decided in favour of the plaintiffs, whether the
plaintiffs are entitled to mesne profits/damages for use and
occupation and if so at what rate and for what period and from which
of the defendants?OPP
5. Whether the defendants no. 3&4 are the owners in possession of
the first floor of the property?OPD-3&4
7. Whether the reliefs claimed in CS(OS) No. 798/2005 are barred by
time ? OPD-6All the issues have taken together being interlinked and involving
common discussion and findings upon one issue are dependent upon each
other, therefore, all above issues are taken up together for the sake ofCS DJ 268/2016 9471/16 Page No. 25 of 58
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brevity.
20. Admitted facts.
Admittedly, deceased plaintiffs were the original allottees of the suit
property and the suit property is a leasehold property. Therefore, transfer of
suit property or any portion thereof by way of registered sale deed is not
possible. On 09.07.1991, plaintiffs entered into collaboration agreement
with defendant no. 6 (in the second suit). As per collaboration agreement,
plaintiffs/ owners were to get two floors i.e. basement and ground floor and
defendant no. 6 was to get two floors i.e. first floor and second floor. On
27.04.1993, plaintiffs served legal notice upon the defendant no. 6 thereby
terminating the collaboration agreement. However, neither plaintiffs nor
defendant no. 6 had filed any case with respect to their claims qua the
collaboration agreement. The dispute in hand is with respect to first floor
only.
21. In October 1997, defendant no. 1 filed a suit against the plaintiffs for
obtaining electricity connection in respect of suit property. However, vide
order dated 24.10.1997, the prayer of defendant no. 1 for interim relief was
declined on the ground that in the title deed of defendant no. 1, it had been
recorded that there was some dispute between plaintiffs /owners and the
builder /defendant no. 6 due to which electricity and water connection were
severed and defendant no. 1 had purchased the property taking the risk
mentioned in the documents. On 20.02.1998 interim relief was granted in
favour of plaintiffs who were defendants in the said suit and defendant no.
1 herein was restrained from disposing off the property till NDOH.
Thereafter, on 05.03.1998 defendant no. 1 had withdrawn the said suit filed
for mandatory injunction.
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22. On 26.03.1998, plaintiffs filed suit no. I for injunction thereby
seeking the relief that defendant no. 1 be restrained from creating third
party interest in the property and defendant no. 2 and 3 be restrained from
giving water and electricity connection to defendant no. 1 and defendant
no. 2/BSES be directed to disconnect the electricity connection installed in
the suit property in name of defendant no. 1. The plaintiffs made the
allegations that defendant no. 1 had criminally trespassed the suit property
on 12/13.10.1997 and she being a trespasser in the property, had no right,
title or interest in the suit property.
23. As per BSES/defendant no. 2 in suit no. I, on 19.03.1998, electricity
connection was granted in favour of defendant no. 1. While as per
plaintiffs, the electricity connection was granted on 27.10.1998 i.e. during
pendency of suit no. I. Vide order dated 18.04.1998 in suit no. I, ex-parte
injunction was granted in favour of plaintiffs and defendant no. 1 was
restrained from creating third party interest in the suit property.
24. Thereafter, on 28.05.2005, plaintiffs filed suit no. II against
defendant no. 1 and other defendants for the relief of possession,
declaration, damages and injunction etc. The plaintiffs reiterated the
allegations of previous suit against defendant no. 1. It was further asserted
that in the month of April 2002, defendant no. 3 and 4 trespassed into the
suit property and plaintiffs filed the police complaint and during inquiry it
was revealed that despite interim injunction dated 18.04.1998 in suit no. I,
defendant no. 1 allegedly sold the suit property to defendant no. 2 on
07.03.2002 by way of GPA, Agreement to sell etc and defendant no. 2
further sold the property to defendant no. 3 on 12.04.2002 by executing
same set of documents. Earlier, defendant no. 1 sold the property to
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defendant no. 5. The allegations are that defendants in collusion with each
other are harassing the plaintiffs by doing immoral and commercial
activities and all the defendants are trespasser in the suit property.
25. Plaintiffs filed the suit no. II without impleading the
builder/defendant no. 6. Thereafter vide order dated 18.08.2006 upon the
averments made on behalf of defendant no. 3 and 4, defendant no. 6 was
impleaded in the suit no. II. However, no specific relief has been sought
against defendant no. 6 after his impleadment vide order dated 18.08.2006
because plaintiffs had neither amended the original plaint nor filed any
additional documents after impleadment of defendant no. 6.
26. Dispute as to completion of construction:-
26.1 The copy of collaboration agreement dated Ex. PW-1/D6 has been
filed by the plaintiffs themselves. Plaintiffs have never taken the plea that
the collaboration agreement filed by them is incomplete document and they
did not have the original collaboration agreement and defendant no. 6 had
the original agreement or had the copy of complete agreement. However,
during cross examination of defendant no. 6 and during final arguments, an
entirely new plea has been taken by LR no. 2(a) of plaintiffs that the
agreement is not a complete document and plaintiffs were not having the
original agreement which was lying with defendant no. 6. The plea, as it
seems, has been taken for the name sake and is liable to be ignored being
beyond pleadings and evidence of plaintiffs. Moreover, the onus to prove
the best evidence is upon plaintiffs and plaintiffs cannot merely say that it
is incomplete document in between trial, without proving the same.
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no. 6. As per plaintiffs, defendant no. 6 had abandoned the site and
plaintiffs had taken the possession of the entire building and sent the legal
notice to defendant no. 6 on 27.04.1993. Thereby terminating the
collaboration agreement and informing the defendant no. 6 that they had
taken 1st and 2nd floor in lieu of compensation/ damages for incomplete
construction. While as per defendant no. 6, the construction was completed
and plaintiffs sent the termination notice dated 27.04.1993 with dishonest
intention to usurp the entire building while defendant no. 6 was in
possession of his portion of floors i.e. 1st and 2nd floor and he had already
sold the suit property i.e. first floor by way of agreement to sell dated
18.12.1991 to Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma and after
receiving the consideration and completing the construction, the possession
was also handed over to them on 10.05.1993.
26.3 Now from the perusal of pleadings, it is clear that the case of
plaintiffs is that defendant no. 6 had abandoned the suit property and
plaintiffs took the possession of the same on 27.04.1993 and on
12/13.10.1997, defendant no. 1 trespassed the suit property. It is not the
case of the plaintiffs that defendant no. 6 abandoned the suit property,
therefore, defendant no. 6 cannot claim any portion of the newly
constructed building and thus, the claim of plaintiffs against defendant no.
6 in respect of collaboration agreement is beyond pleadings.
26.4 Further, even if the said claim is considered, the burden of proof is
upon the plaintiffs to prove that defendant no. 6 had abandoned the site or
property without completing the construction and therefore, plaintiffs took
the possession of entire building and defendant no. 6 is not entitled to claim
anything from the newly constructed building. Plaintiffs have not placedCS DJ 268/2016 9471/16 Page No. 29 of 58
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any documentary evidence on record to prove that from 27.04.1993 till
12/13.10.1997 (i.e. when defendant no. 1 allegedly trespassed into the suit
property), the possession of the suit property was with the plaintiffs.
Admittedly, there was no electricity or water connection on the suit
premises in name of plaintiffs or any other utility bill or documents to
prove the physical possession/occupation of the plaintiffs over the suit
property for the above mentioned period i.e. from 27.04.1993 till
12/13.10.1997. Therefore, the question of completion of construction by
plaintiffs becomes material because proof of completion of construction by
the plaintiffs is an implied proof of the fact that plaintiffs were in
possession of the suit property for the said period and being in possession
of the suit property, they were able to complete the construction.
26.5 Now during PE, plaintiff no. 2A had entered into witness box as
PW-1 to prove the averments of plaintiffs. During entire testimony, PW-1
has repeatedly reiterated that plaintiffs took the possession of entire
building in last week of April 1993 as defendant no. 6 had abandoned the
site and his whereabouts were not known.
26.6 However, during cross examination, PW-1 deposed that:
“……..We had intimated to defendant No.6 by writing a letter to take over the
possession but we have not mentioned the facts in the said letter that we had taken
forcibly possession in the suit property. It is correct that we had not intimated to the
builder before taking over the possession and not informed personally since his
whereabouts is not known and the abandoned the suit property……”
But admittedly, plaintiffs served legal notice for termination of
collaboration agreement upon the address of defendant no. 6 and the same
was served upon him, therefore, the plea of plaintiffs that whereabouts of
defendant no. 6 were not known when plaintiffs allegedly took the
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possession of entire building in the last week of April 1993, is
contradictory to plaintiffs’ own case.
27. Further, plaintiffs have taken the plea that after taking the possession
of the entire building they had completed the construction as defendant no.
6 abandoned the property without completing it.
27.1 PW-1 entered into the witness box to prove that his parents/plaintiffs
completed the construction after taking over the possession of the entire
building. Admittedly, PW-1 has not filed any document like photographs or
receipts etc. to prove that plaintiffs had completed the construction. Further,
during cross examination, PW-1 deposed that:
“…..Only the structure was ready including part of the basement, ground floor, first
floor and part of the second floor. We had taken the sanitary, electricity connection all
the furnishing work including door and window plastering, flooring are being done by
us and we had applied for completion certificate which was rejected because there was
major violation in the structure of the building. I have not placed on record any
documents for do the needful work as stated above as well as expenses incurred to make
the house liveable as the same was done by my parents. It is correct that the suit is filed
by my parents. I am not aware whether my parents have not filed any documents
regarding the expenses incurred on the aforesaid work nor I locate any document in the
Court file…..
……My father has spent about Rs.3 Lacs towards completion of the building in
question.
Q-32. Did your parents mention this fact in the original plaint filed by them?
Ans. No.
Q-33. Did your parents file any documents with regard to the said expenditure spent by
them towards the completion of the building?
Ans. No.
Q-34. When your parents took the possession of the building in question, did they get
the building examined by a qualified engineer?
Ans. I do not know…….
…..Q-55. Had your parents (the original plaintiffs) taken the photograph of the
uncompleted construction of the property in question at the time when they allegedly
taken over the possession of the suit property as claimed by them?
Ans. No my parents had not taken any photographs.
Q-56. Had they filed any document which substantiate their version that the property in
question was incomplete when they took over the possession of the same?
Ans. No, they have not filed any document……..”
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Thus, there is no photograph of the incomplete structure to prove as
to what portion was already constructed and which part/portion was
incomplete. There is no report of any expert to prove that defendant no. 6
left the site without substantial construction. There is no completion
certificate issued by DDA to prove that plaintiffs completed the
construction.
27.2 Plaintiff no. 2(a) has pointed out towards the testimony of defendant
no. 6 and has argued that from the testimony of defendant no. 6, it is clear
that defendant no. 6 had left the site incomplete. Now the question of
completion of construction between plaintiff and defendant no. 6 is
immaterial as plaintiffs have not filed the suit for damages on the ground
that defendant no. 6 had not completed the construction nor plaintiffs have
filed suit for breach of contract by defendant no. 6. The issue of completion
of construction, in the present suit is material only to ascertain the
possession of plaintiffs over the suit property from 27.04.1993 till
12/13.10.1997 because plaintiffs have taken plea that they had taken the
possession of property on 27.04.1993 and on 12/13.10.1997, defendant no.
1 had trespassed into the suit property while the defence put forward by the
defendants is that defendant no. 1 was in possession of the property being
lawful owner of the suit property as she purchased the property from Sh.
Sanjeev Sharma and Smt. Sangeeta Sharma who had purchased the same
from defendant no. 6 who had the right to sell the same in pursuant to
collaboration agreement.
27.3 Clearly, PW-1 has failed to bring on record any piece of evidence to
prove that plaintiffs had completed the constructions, thereby implying that
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they had physical possession of the suit property after 27.04.1993 as
averred in termination notice dated 27.04.1993. It is highly improbable that
plaintiffs would not have even a single documentary evidence in form of
any receipt or bill of any work got done by them on the suit property or
proof of payment to any worker given for the purpose of completion of
construction despite their averments that they got the major work of the
construction completed. Plaintiffs have not even filed any bill of purchase
of any material used by them in completion of construction.
28. Further, LRs no. 2(a) of plaintiffs has examined his brother’s friend
namely Sh. Saptarish Datta as PW-8 who has deposed that the construction
of the entire building was completed by plaintiffs during their life time and
he had seen carpenter, plumber, electrician etc. being paid by the plaintiffs
during his visit to PW-1. However, during cross examination, PW-8
admitted that he was minor at the relevant time and he could not disclose
the names, addresses of workers, carpenter etc. working at the property. He
also admitted that “it is correct that in the year 1993 to 1996 i.e. duration referred to
in my affidavit, myself and Sh. Sudip Jana(plaintiff no. 2B since deceased) were
minor”. He also stated “I don’t know the details of the suit because I was very young at
that point of time”. Further, even PW-8 could not produce any document or
even a single receipt to prove that plaintiffs completed the construction
thereby implying that they were in possession of suit property from
27.04.1993 onwards. Further, the testimony of PW-8 is general in nature
and he could not disclose the specifications as to what portion of
construction was in existence at the time when plaintiffs took the
possession and what was the nature of construction which was completed
by the plaintiffs.
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Moreover, admittedly PW-1 and PW-8 were minors at the time when
plaintiffs allegedly completed the constructions and therefore, the
testimony of both the witnesses i.e. PW-1 and PW-8, though capable of
being admissible in evidence, has to be taken care of cautiously,
specifically when there is no documentary evidence to corroborate their
averments.
29. Further, plaintiffs have examined Sh. Munna Lal Prajapati as PW-9
who deposed that he was the resident of same vicinity and used to work
with Mr. Anoop Barua (now deceased) who was employed by plaintiffs to
complete the construction. He further deposed that he used to regularly
visit the building and he had also accompanied plaintiff no. 1 for purchase
of goods, sanitary fitting and electricity goods and he had also seen
carpenter, plumber and electrician being paid by plaintiffs on several
occasion for the work of finishing and furnishing first floor, second floor,
and basement blow. However, during cross examination PW-9 deposed
that:
“……. I have not stated in my statement regarding the pendency of a civil case
(confronted with para no. 6 of Ex PW9/A where it is so recorded).
I do not understand what is meant by carpenter.
Court question:-
Q. Is it correct that carpenter is a person who does the work of furniture / goods etc?
‘A. Yes.
By carpenter, I understand the workman who works as electrician and plumber.
Sh. P.K. Jana and Mrs. Usha Jana used to pay for the work directly to the workmen. I
cannot say at what rate the workmen were paid………I have not stated that I was the
resident of same vicinity. Whatever I have stated in line one of para no. 1 of Ex PW9/A
is wrong. I have not gone through the contents of affidavit Ex PW9/A as I do not know
English. I do not know who prepared Ex PW9/A. 1 do not know the contents of Ex
PW9/A……”
Thus, during cross examination, PW-9 has abandoned his own
affidavit by denying its contents and therefore, the testimony of PW-9 is of
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no help to prove the case of plaintiffs.
30. Further, PW-1 was cross examined on the aspect of construction
raised by defendant no. 6.
30.1 During cross examination, PW-1 deposed that:
“……..The cost of construction has to be incurred by defendant No.6. It is correct that
all costs, expenses, in obtaining, sanctions, approvals and exemption from DDA, MCD,
and other authorities were to be borne by the builder. (vol) In the year 1992, defendant
No.6 has approached to my parents for paying certain amounts as the building has got
sealed and the builder was a financial constrain. (Beyond the pleadings). As per the
agreement, defendant No.6 has authority to make alternation from plans in the
construction which was within the municipal byelaws. The penalties levied by the
authorities if any, be paid by defendant No.6. It is wrong to suggest that laying of under
ground drainage/sanitary pipelines was executed by defendant No.6 thereafter approved
on 23.09.1992 by MCD. The documents at page 164 Form C pertaining to the suit
property for inspection of underground drainage/sanitary pipelines before covering the
lines for residential building, which is now marked as Mark A which are bears the
signature of my parents. It is correct that the documents at page 169 pertains to the suit
property which bears the signature of my parents which is Form D for final inspection
of sanitary/water supply and same is marked as Mark B. The page 168 Mark C pertains
to the suit property. The documents is page 173 received by MCD dated 13.11.1992
pertains to suit property same is marked as Mark D. The document page 174 received
by DDA dated 15.03.1993 with respect to water connection of the suit property is
marked as Mark E. The document at page 175 received from DDA dated 20.02.93 for
sever connection which relates to suit property and bears only the name of Sh P. K.
Jana…….
…….D-6 Sh. Kamal Talukar had abandoned construction of the building and thereafter
no completion certificate was applied by him…..The said building was not constructed
as per the sanctioned plan and there were violations of the building by laws thus the
building was not completed as per the terms and conditions of the agreement. …….No I
have not mentioned the said violations in my plaint or affidavit of evidence…..
…..Q. No. 125 It is correct that no part of construction of the building in question was
ever demolished by DDA or any authority.
Ans. It is incorrect. The building was sealed in the year 1992 and demolished for
illegal and unauthorised construction.
Q. No. 126 Have you placed any documents in this regard on the Record.
Ans. No documents has been filed on record. Vol. As the same are in the custody of the
defendant no. 6.
Q. No. 127 Have you issued any notice to defendant no. 6 to produce the said
documents on record?
Ans. No notice has been given to the defendant no. 6……”
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Thus, admittedly there is no record on the judicial file to prove that
building was ever sealed due to deviation in construction. Moreover,
admittedly no portion of the building has ever been demolished till date as
per record produced before the Court.
30.2 Further, PW-8 and PW-9, both have specifically deposed that:
“in the years 1993 to 1996, the floors above the ground floor, which was complete
whereas the first floor, second floor and basement blow finishing work i.e. wood work,
sanitary work and electric work were being got done by plaintiffs by employing
workers”.
Thus, PW-8 and PW-9 admitted that only finishing work was left in
the building and the onus is upon plaintiffs to prove that the finishing work
was not related to beautification of the property but was with respect to
essential basic structure of the property. But there is no evidence to prove
the same. Moreover, perusal of Form C, Form D, Mark-E, prima facie
shows that basic work in the building with respect to water connection,
sanitary pipelines and sewer connection was already completed in the
building by the time dispute arose between plaintiffs and defendant no. 6.
30.3 From the testimony of PW-1, PW-8 and PW-9, it seems that even as
per plaintiffs, defendant no. 6 had completed substantial construction over
the site. It implies that defendant no. 6 had substantially performed his part
of contract and therefore, the question is whether plaintiffs could have
unilaterally terminated the contract vide termination notice dated
27.04.1993 without taking any further legal resource.
31. Termination of collaboration agreement:-
Now with respect to termination of the contract, PW-1 deposed
during cross examination that:
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“……Q-48. Did your parents file any case against Kamal Talukdar (D-6) after having
been rescind the agreement Exh. PW-1/6 prior to present case?
Ans. No my parents have not filed any case against Kamal Talukdar (D-6) after
rescinding the agreement…….
……Q.No.86 I put it to you that your father had no right to rescind the agreement dated
09.07.1991 unilaterally?
Ans. I do not know..
Q.No.87 Can you tell whether your father had filed a suit for cancellation of the
agreement dated 9.07.1991 prior to the present suit?
Ans. I do not know……
…..Q.No.89 I put it to you that builder was entitled to enter into an agreement to sell
with the prospective buyers offering them the portion earmarked for the builder in the
subject property.
Ans. I am not aware of the same.
Q.No.90 The builder, Kamal Talukdar (D-6) has rightly sold his share i.e, First Floor of
the property to Shri Sanjeev Sharma and Smt. Sangeeta Sharma against valuable
consideration and possession of the flat was handed over to them. What you have to
say?
Ans. I am not aware of the same and the possession was always with the plaintiff and
defendant Neera Malik had trespassed on the first floor……
……Q.No.99 Can you tell under which clause of the agreement dated 9.7.1991 your
father had rescind the said agreement?
Ans. It is as per clause in the agreement……. I cannot point out. But it is part of the
agreement….
Thus, even during cross examination, PW-1 could not prove that as
per the contract, plaintiffs could have terminated the contract unilaterally
specifically when defendant no. 6 had completed the substantial
construction over the building and he had also acted upon the contract by
selling his portion of the property to third party.
32. Police report submitted before Hon’ble High Court of Delhi in the
writ petition filed by plaintiffs.
At this stage it is pertinent to mention about the police report which
is part of order of writ petition filed by plaintiffs.
32.1 During cross examination, PW-1 admitted that earlier one criminal
writ petition bearing no. 752/93 was filed against SHO CR Park and the
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same was disposed off. He further deposed that:
Q. Is it correct that on inquiry conducted in that a report was filed dated 13.10.94 in the
Hon’ble DB of High Court?
Ans. Since this does not pertain to me, therefore, I can not comment on the same
inquiry.
Q. Is it correct that this inquiry was held in the writ petition filed by your father against
SHO?
Ans. I am not aware if my father was a party in the said writ petition or not. Since I was
not a party in this therefore, I can not comment anything regarding the inquiry.
Q. I put it to you that on 06.01.95 your lawyer i.e. lawyer of Sh. P.K. Jana appeared in
court and in view of finding and report of DCP withdrew the criminal writ petition
752/93 admitting the same to be correct?
Ans. I have not engaged any lawyer on 06.01.95 as regards to Sh. P.K. Jana’s lawyer
withdrawing the criminal writ I am not aware of…..”
Thus, plaintiff no. 2(a) admitted that his father filed a writ petition
but he had shown ignorance to the fate of the writ petition which is
irrelevant as the order of writ petition being a judicial order is a public
document admissible in evidence.
32.2 Now during DE, defendant no. 6 has filed the copy of order dated
06.01.1995 passed by Hon’ble High Court of Delhi in the writ petition filed
by plaintiffs herein alongwith the copy of police report and the same are
Ex.DW-6/17. Now the report states as follows:
“………In accordance with the terms of agreement, the builder Sh i Talukdar, sold the
Ist floor to one Shri Sanjiv Sharma, a resident of C-A/13/D, Munirka, DDA flats on
10.5.93. The 2nd floor was also accordingly sold to one Shri Anis Bhatia r/o 48/A,
Jorbagh, on 13.4.93. Both the floors were sold by the builder after completing the
construction, and getting the relevant Certificates from the MCD. Both the new owners,
Sh. Sanjiv Sharma and Sh. Anis Bhatia, reportedly took possession of their respective
floors on 10.5.93 and 13.4.93 respectively. Shri Sanjiv Sharma
arranged a Hawan and ‘Greh Pravesh’ on 2.6.93 on his portion i.e. Ist floor, as per the
statement given by the Pandit who performed the religious ceremonies and other
participants at the function. As per enquiries made, Shri Sanjiv Sharma also got some
grill work done in his portion on 4.6.93.
However, there had arisen some dispute between the land-lord Shri P.K.Jana and
the builder Shri Kamal Talukdar regarding the construction work in the basement. Both
parties levelled allegations against each other sent the copies thereof to the SHO P.S.CS DJ 268/2016 9471/16 Page No. 38 of 58
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Chitranjan Park als0. The local police did not act in the matter as it was purely of a civil
nature. On 29.9.93 Sh. Sanjiv Sharma, who was in possession of the Ist floor of the
building, made written complaint to the SHOP.S. Chitranjan Park that the land-lord
Sh.P.K. Jana has put locks on the common entrance main gate and obstructed his entry.
The complaint was into by ASI Ramjas Pandey. Sh. P.K. Jana, however sought time till
9 P.M. in the evening as according to him his lawyer was not available. According to the
SHO P.S. Chitranjan Park Sh. P.K. Jana came to the P.S. in the evening on his own, to
sort out the matter. ASI Ramjas Pandey in the meantime also showed his inability to
understand the issues between the parties and therefore, the SHO marked the complaint
to SI Anil Kumar. However, Sh. Sanjiv Sharma reported at the P.S. next day that he had
gone to his flat by breaking the main gate lock. On enquiries, no credible evidence has
come on record to suggest that police had gone with Sanjiv Sharma to get him entry in
the building. On the other hand some independent witnesses have deposed that Sanjiv
Sharma entered the building by breaking the lock of common entrance and that no
policemen accompanied him. The matter remained between the parties and the local
police did not act on the complaints except making enquiries on the claims of the
parties.”
32.3 Thus, as per police report Mr. Sanjeev Sharma (who is stated to have
purchased the suit property from defendant no. 6) was in possession of the
property when the above mentioned writ petition was disposed off on
06.01.1995. The above mentioned police report is prima facie sufficient to
prove that Mr. Sanjeev Sharma was in possession of the property at least
till 06.01.1995 and it negates the claim of plaintiffs, therefore, the burden
of proof upon plaintiffs becomes higher to prove that they were in
possession for the period from 27.04.1993 till 12/13.10.1997 as alleged by
them. However, plaintiffs could not produce any proof in rebuttal to the
above mentioned police report.
32.4 Had the plaintiffs been in possession of the property since beginning,
the scenario would have been entirely different but as per plaintiffs, the
possession of building was given in 1991 to defendant no. 6 for
construction of the plot and the possession was taken back by them on
27.04.1993 and thereafter, defendant no. 1 trespassed into the suit property
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on 12/13.10.1997, therefore, the determination of possession of plaintiffs
from 27.04.1993 till 12.10.1997 is crucial to decide the fate of suits.
Clearly plaintiffs have failed to prove that they were in possession of
the suit property for the period from 27.04.1993 till 12/13.10.1997.
33. Question of limitation against defendant no. 6:
33.1 Further perusal of record shows that since beginning defendant no. 6
had taken the plea that he had sold the suit property to Mr. Sanjeev Sharma
and Mrs. Sangeeta Sharma as mentioned in the letter dated 06.05.1993 Ex.
DW-6/4P. Defendant no. 6 had proved that plaintiffs had refused to receive
the notice which was duly sent on correct address, therefore, Court will
presume that the letter was duly served and the contents were within
knowledge of the plaintiffs. Further, even the police report which is part of
Ex. DW-6/P17, clearly mentions that defendant no. 6 has sold the property
to Mr. Sanjeev Sharma who was in possession of the property on
06.01.1995, despite that plaintiffs have not asserted any right over the suit
property in pursuant to collaboration agreement since then till the year
2005.
33.2 Further, the collaboration agreement is dated 09.07.1991 and as per
plaintiffs, it was terminated vide notice dated 27.04.1993. The plaintiffs
have filed the suit for possession and injunction etc. on 28.05.2005 i.e. after
12 years from the termination of collaboration agreement and therefore, the
claims of plaintiffs against defendant no.6 with respect to collaboration
agreement are hopelessly time barred. Plaintiffs have not filed suit for
specific performance of the collaboration agreement or for the damages for
breach of the agreement and they have filed the suit for declaration,
injunction and possession on the basis of averments of trespass of the
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property by defendant no. 1 to 5. Admittedly, plaintiffs have nowhere taken
the plea that defendant no. 6 has trespassed into the property nor it is the
case of the plaintiffs. Therefore, evidence led by the plaintiffs to prove that
defendant no. 6 had made the construction in deviation of the sanction plan,
is not relevant to decide the controversy in hand. Similarly, the issue before
the court, as per averments of the plaintiffs, is whether defendant no. 6 had
abandoned the building and plaintiffs completed the construction and not
that defendant no. 6 made the construction in deviation of the sanction plan
or in breach of the collaboration agreement, so as to entitle the plaintiffs for
damages.
33.3 Further, during arguments, plaintiff no. 2(a) has vehemently argued
that defendant no. 6 had not produced documents to prove his defence that
he had completed the construction nor he had produced the original
collaboration agreement and therefore, the copy cannot be relied upon. All
these arguments are beyond purview of these suits because plaintiffs have
not filed suit to enforce their rights against defendant no. 6 in pursuant to
collaboration agreement but on the basis of allegations that defendant no. 1
had trespassed into suit property on 12/13.10.1997. Further, plaintiffs
cannot take benefits of weakness of defence to prove their case and they
have to prove their case independently. Moreover, as already discussed, the
question of completion of construction by plaintiff is material to determine
the possession of plaintiffs over the suit property after 27.04.1993 and not
otherwise because as per defendant no. 6 he anyways had parted with
possession of the suit property on 10.05.1993.
From the above discussion it is clear that plaintiffs cannot enforce or
assert their rights qua the collaboration agreement against defendant no. 6
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by way of present suits as plaintiffs have not claimed any relief against
defendant no. 6 in pursuant to the collaboration agreement.
34. Clauses of collaboration agreement:-
Now before going into further discussion, it is important to have a
look upon relevant clause of the collaboration agreement Ex. PW-1/D6.
34.1 The relevant clause is that :
“…….The owner agrees and undertake to place at the complete disposal of the
Builder the physical vacant possession of the said plot and to absolutely vest in the
Builder all his powers till fulfilment of this agreement of avoid delays through a Power
of Attorney to be executed by the Owner in favour of the Builder and / or his nominee
as would be required by the Builder for obtaining the sanctions, exemptions, approvals
for development, construction, completion of the project building……That it is agreed
by and between the owner and the Builder that the Builder shall have the absolute and
unobstructed right and be entitled to after for sale and enter into agreement (s) with
prospective buyers offering them the portions earmarked for the Builder in the building
and receive money from the buyers directly, accept the consideration from the
prospective buyers retain the same with himself, enter into any agreement, make any
additions, alterations or any agreement (s) so entered with the prospective buyers on
such terms and conditions as may be agreed upon. Provided always, that each party
shall keep the other harmless and indemnified of such agreements so entered into with
the prospective buyers. The Builder shall deal with his own floors namely Ist and IInd
floor earmarked in the project building with the prospective buyer exclusively in his
own right. On completion of the project the owner hereby undertake and bind himself to
confirm to the prospective buyer(s) good title of the floors, as permitted, to ensure the
peaceful, heritable enjoyment of areas in the building, shall take necessary clearances as
be required by law; shall also if required, present the deeds for giving rights to
prospective buyers subject to the expenses being incurred by the buyers. It is, however,
clearly understood that the owner shall act in such manner at the instance and request of
the builder and owner shall act in this behalf to comple and legalise the transfer of areas
to the prospective buyers under this arrangement.
10. NOTWITHSTANDING the absolute rights of the Builder hereunder to sell and
offer for sale the floors in the proposed building, to receive the sale consideration and to
execute the agreement (s) with the prospective buyers of the floors should any authority
or authorities insist and / on account of any legislation in becomes obligatory for the
owner to sign and execute the said agreement, the Owner agree to join in and sign and
execute personally and / or to execute General Power of Attorney in favour of the
Builder and / or its nominee to so sign and execute the agreement (s) as their nominee
without any right to claim and /or receive the whole or any part of the consideration of
amount, PROVIDED ALWAYS that if D.D.A. or any other authority require execution
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to execute such Deeds or Deed the owner undertake to execute such deed without any
objection and / or demand…..”
Admittedly, as per collaboration agreement, plaintiffs were to get
basement and ground floor and defendant no. 6 was to get first floor and
second floor. Admittedly, in pursuant to the agreement, possession of the
entire plot was handed over to defendant no. 6.
Further, as per above mentioned clause, the power of attorney was to
be executed by the plaintiffs in favour of defendant no. 6 for the purpose of
obtaining sanction, approval for construction of the building but not for the
sale of share of defendant no. 6. As per the above mentioned clause,
defendant no. 6 had absolute and unobstructed power to sell his share of the
newly constructed property to any prospective buyers even during
construction of the building and owner had undertaken to ratify the same
upon completion of the construction. Further, during evidence defendant
no. 6 had produced the receipt Ex. DW-6/3/P(OSR) to show that he had
paid Rs. 5000/- to each plaintiffs. Now even if defendant no. 6 had not paid
the said amount to plaintiffs, admittedly, he had agreed to construct the
property for plaintiffs without taking any money from them and he had
accepted two floors from newly constructed building as a consideration for
raising construction over the plot. Therefore, the collaboration agreement
may not create any interest in the property under Section 54 of the Transfer
of Property Act 1882, however, the agreement alongwith exchange of
consideration creates an interest in the property within the meaning of
Section 202 of the Contract Act and plaintiffs cannot unilaterally terminate
the same by sending simplicitor termination notice and plaintiffs were
bound to take legal recourse to get it annulled legally.
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34.2 Further, the agreement provides the clause for breach of contract by
any of the parties and the clause is as follows:
“……17. That the owner and the builder shall cooperate with each other in good faith to
implement the terms and conditions with each of this agreement. In case of the Owner
or the builders are found to transgress any of the terms of this agreement, in letter or
spirit by omission or commission the erring or quality party will be liable for payable to
payment to the other party all damages, costs, and interest accruing in consequence
thereof……”
Thus, the agreement clearly provides that in case of violation of any
of the terms of agreement by any of the parties, the erring party will be
liable to pay damages to the other party. The purpose of clause for damages
is to compensate the party to the contract and to put to the other party into
the position had there been no breach. In other words, the agreement is
clear that it cannot be revoked in between in case of default by any of the
party because the nature of contract is as such that parties cannot be put
into condition in existence prior to the contract. Because if in pursuant to
collaboration agreement, defendant no. 6 had sold the prospective floor to
any third party after showing the written consent of owners/plaintiffs in
form of written collaboration agreement and third party had paid the
consideration which had been utilized for the purpose of construction, the
owners cannot revoke the agreement without compensating the third party
whose money ultimately is going to give benefits to the owners because
otherwise it would be unjust enrichment to owners and builders.
34.3 Thus, from the above mentioned discussion it is clear that as per the
collaboration agreement, defendant no. 6 had right to enter into sale of his
portion of the property with the third party and any such transaction entered
into by defendant no. 6 with the third party was binding upon
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plaintiffs/owners.
35. Objections that collaboration agreement is unregistered document
and cannot confer any right in favour of defendant no. 6.
Now it has been vehemently argued on behalf of plaintiffs that the
collaboration agreement is unregistered document and therefore, it is not
sufficient to create any right, title or interest in favour any of the defendants
qua the suit property /immovable.
35.1 Before dealing with this issue, it is important to note down that in the
case of Hardip Kaur vs Kailash & Anr.”, RFA No. 648/2006 on 18 May,
2012, Hon’ble High Court of Delhi has observed :
“…..Applying the aforesaid principles of law to the facts of the
present case, the findings of this Court are as under:-
(i) Vide agreement to sell dated 5th June, 1989, the plaintiff
agreed to sell first, second and terrace floors of the suit property
to Mohinder Kaur for a total consideration of `4,50,000/-. The
plaintiff received the entire sale consideration from Mohinder
Kaur, handed over the vacant and peaceful possession to her and
simultaneously executed the agreement to sell, receipt, affidavit,
will, indemnity bond and irrevocable General Power of Attorney
all dated 5th June, 1989. The plaintiff declared in the agreement
that she is not left with any right, title or interest in the suit
property. The plaintiff authorized defendant No.1 to make
construction, additions and alterations in the suit property. The
General Power of Attorney authorized the attorney to sell the
suit property as well as to carry on additions and alterations.
Clause 19 of the General Power of Attorney declared it to be
irrevocable. The plaintiff also deposed on oath in her affidavit
that she would not withdraw or cancel any of the documents
under any circumstances. The agreement to sell, receipt,
indemnity bond and affidavit are legal, valid and subsisting and
have not been cancelled by the plaintiff. The plaintiff has no
interest left in the suit property and, therefore, cannot claim the
possession or mesne profits in respect of the suit property.
(ii) The agreement to sell „of itself‟ may not create any interest
in the property under Section 54 of the Transfer of Property Act,
1882 but the agreement along with the payment of the entire sale
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consideration, handing over of the possession, execution of the
receipt, affidavit, will, indemnity bond and irrevocable General
Power of Attorney create “an interest in the property” within the
meaning of Section 202 of the Contract Act.
(iii) The words “an interest in property which forms the subject
matter of the agency” in Section 202 of the Contract Act, 1872
are of wider amplitude than the words “an interest in or charge
on such property” in Section 54 of the Transfer of Property Act,
1882. Where the seller has received the sale consideration in
pursuance of the agreement to sell and has delivered the
possession to the purchaser, the purchaser would have interest in
the property within the meaning of Section 202 of the Contract
Act.
(iv) The Power of Attorney has been conferred not for the
benefit of the plaintiff but for the benefit of the agent
representing the purchaser and not as representing the principal
and, therefore, it is irrevocable………….. It is only in law that
the attorney became an agent of the plaintiff. But this agency
was only with a view to serve the purpose of the purchaser. His
interest in this transaction was the same as that of the purchaser.
It was, therefore, the interest of the attorney that the property
which was the subject-matter of the agency should be conveyed
by the plaintiff to the purchaser.
(v) The Power of Attorney was granted only because an
agreement to sell was entered in favour of the purchaser. The
attorney no less than the purchaser was, therefore, interested in
the subject-matter of the agency, namely, the suit property. If the
agency was to be terminated, prejudice would have been caused
to the interest not only of the purchaser but also of the attorney.
(vi) The agreement to sell, General Power of Attorney, receipt,
affidavit, will and indemnity bond executed contemporaneously
constitute one transaction and they have to be read and
interpreted together as if they are one document. The true nature
of the transaction between the parties is the agreement to
transfer the suit property by the plaintiff to defendant No.1.
There is no clause in any of the documents that the plaintiff can
claim back the possession of the suit property in any situation.
Rather, the plaintiff has agreed not to cancel/revoke any
document and not to claim back the possession under any
circumstances. The plaintiff is, therefore, not entitled to recover
the possession of the suit property. If the plaintiff was aggrieved
by any unauthorised construction, the plaintiff‟s remedy was to
seek injunction to stop the alleged unauthorized construction or
to have approached the Municipal Authorities to take action
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against the unauthorized construction.
(vii) The plaintiff has argued that the purchaser and her attorney
are two different persons in the eye of law. This may be so. But
their interests are identical. It cannot be said that the attorney
had no interest in the property which is the subject-matter of the
agency. The interest does not mean ownership or title in the
immovable property. It means an advantage or a benefit or a
legally enforceable right. The Power of Attorney was executed
only to facilitate the execution of the sale deed in favour of the
purchaser and, therefore, the attorney was interested in the
subject-matter of agency, namely, the suit property.
(viii) The object of giving validity to a Power of Attorney given
for consideration even after death of the executants is to ensure
that entitlement under such Power of Attorney remains because
the same is not a regular or a routine Power of Attorney but the
same had elements of a commercial transaction which cannot be
allowed to be frustrated on account of death of the executant of
the Power of Attorney.
(ix) The purchaser would though not be the classical owner of
the suit property as would an owner be under a duly registered
sale deed, but surely he would have better rights/entitlement of
possession of the suit property than the plaintiff. A right to
possession of an immovable property arises not only from a
complete ownership right in the property but having a better title
or a better entitlement/right to the possession of the property
than qua the person who is in actual physical possession thereof.
(x) All the conditions of irrevocability are satisfied in the present
case. The authority to the agent was given for valuable
consideration which proceeded from Mohinder Kaur. It was
given to Surinder Jit Singh, son and nominee of Mohinder Kaur
to ensure and secure the performance of the contract by the
plaintiff in favour of Mohinder Kaur.
(xi) The General Power of Attorney dated 5 th June, 1989 is
irrevocable in view of Section 202 of the Contract Act. The
plaintiff, therefore, had no right to terminate the said General
Power of Attorney. The General Power of Attorney is legal,
valid and subsisting. The revocation of the General Power of
Attorney by plaintiff is, therefore, of no consequence.
(xii) The defendants are protected by Section 53A of the
Transfer of Property Act, 1882 and, therefore, the plaintiff is not
entitled to the recovery of possession of the suit property.
(xiii) The mere fact that the defendants did not file a Counter-
claim or suit for specific performance cannot lead to a
conclusion that they have given up all their rights in the suit
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property. It can, at best, be said that the defendants have lost the
opportunity of perfecting their title but it would not entitle the
plaintiff to claim the possession.
35.2 Further, in the case titled as “Smt. Shashi Bala Nagpal vs Sh. Rama
Kant Shah”, RSA No. 13/2015 decided on 2 August, 2016, Hon’ble High
Court of Delhi has observed that:
“……respondents/plaintiffs have proved their title to the suit
property, inasmuch as, the documents executed in this case give
rights to the plaintiffs under Section 53A of the Transfer of
Property Act, 1882 containing the doctrine of part performance
and Section 202 of the Indian Contract Act, 1872 which
provides for irrevocability of a general power of attorney given
for consideration. These documents are documents prior to
24.9.2001 when by Act 48 of the year 2001 provision of Section
53A of the Transfer of Property Act and other related provisions
were amended and thereby benefit of the doctrine of part
performance after 24.9.2001 could only be taken if the
agreement to sell was stamped and registered. The subject
documents, therefore, having been executed before 24.9.2001
are valid and confer title upon the respondents/plaintiffs and so
held by this Court in the judgment in the case of Shri Ramesh
Chand Vs. Suresh Chand and Anr., 188 (2012) DLT 538 and in
which judgment the relevant paras of the judgment of the
Supreme Court in the case of Suraj Lamps and Industries Pvt.
Ltd. Vs. State of Haryana and Anr., 183 (2011) DLT 1 (SC) have
been reproduced which allow transactions which are in the
nature of doctrine of part performance under Section 53A of the
Transfer of Property Act, and irrevocable general power of
attorney falling under Section 202 of the Indian Contract Act,
once the documents are executed prior to 24.9.2001. 10(i)
Learned counsel for the appellant/defendant very strongly
argued that these documents dated 16.6.1994 cannot confer title
upon the respondents/plaintiffs because Sh. Narendra Paul never
executed these documents. However, the argument urged on
behalf of the appellant/defendant is liable to fail for various
reasons.
(ii) Firstly, the appellant/defendant has no locus standi to
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16.6.1994 of Sh. Narendra Paul in favour of the
respondents/plaintiffs because it is only Sh. Narendra Paul who
could have questioned the documents. Admittedly, Sh. Narendra
Paul has never questioned or challenged execution of the
documents dated 16.6.1994 executed by him in favour of the
respondents/plaintiffs. Therefore this argument is liable to be
rejected that the respondents/defendant have no title on the
ground that the appellant/defendant has no locus standi to
question the documents dated 16.6.1994.
(iii) Challenge by the appellant/defendant to the documents
dated 16.6.1994 is also liable to fail because self-serving stand
in the written statement and in deposition that the documents are
not executed by Sh. Narendra Paul in favour of the
respondents/plaintiffs would not amount to acceptable evidence
for this Court to hold in favour of the appellant/defendant that
Sh. Narendra Paul did not execute the documents in favour of
the respondents/plaintiffs on 16.6.1994. Mere oral deposition
cannot be taken as discharge of onus of proof.
35.3 From the above mentioned cases it is clear that the documents
executed after 24.09.2001 i.e. after amendment in Section 53A of Transfer
of Property Act and amendment in other related provisions, the protection
to possession can be taken only if the agreement to sell or collaboration
agreement was stamped and registered. However, admittedly in the present
case the collaboration agreement has been executed on 09.07.1991 i.e. prior
to 24.09.2001 and therefore, the objections as to collaboration agreement
being unregistered are not tenable and the agreement is valid document
conferring valuable right in favour of defendant no. 6.
35.4 It is also important to note that the property is a leasehold property
and in any case plaintiffs could not have executed sale deed without prior
permission of DDA. Therefore, the agreement between plaintiffs and
defendant no. 6 being an agreement with consideration and being
substantially acting upon, is binding upon plaintiffs/owners in view of
Section 202 of the Contract Act.
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36. Rights of subsequent purchaser who derived rights from defendant
no. 6:
36.1 Now defendant no. 6 having right under the collaboration agreement
to sell the property and also acting as agent of plaintiffs had entered into
agreement to sell with Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma.
Defendant no. 6 had produced receipt ExDW-6/5P to prove that he had
received consideration from Mr. Sanjeev Sharma and Mrs. Sangeeta
Sharma alongwith receipt Mark E. As per defence, Mr. Sanjeev Sharma and
Mrs. Sangeeta Sharma sold the property to defendant no. 1, however,
defendant no. 1 lost the original documents executed by defendant no. 6 in
favour of Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma.
36.2 As per plaintiffs, defendant no. 1 never had the original documents
and due to this reasons she could not get any relief in the previous suit
filed by her. Perusal of record shows that defendant no. 1 had remained ex-
parte in the present suit and the observations made by the Court in any
interim order cannot be considered as comments upon the merits
specifically when Court is going to adjudicate the matter on merits after
appreciating the evidence.
36.3 Further, plaintiff no. 2(a) has taken the plea that in the order dated
24.10.1997 passed by Hon’ble Court in the suit filed by defendant no. 1
against plaintiffs herein, it was duly recorded that even the document
executed by Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma in favour of
defendant no. 1 duly mentioned that there was a dispute between plaintiffs
and defendant no. 6 with respect to suit property and thus, defendant no. .1
and the subsequent purchasers cannot be considered as bonafide
purchasers.
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As far as this plea is concerned, admittedly the documents executed
between Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma on one hand and
defendant no. 1 on the other hand duly mentioned that defendant no. 1 was
aware about the dispute between plaintiffs and defendant no. 6 qua the suit
property. However, despite the claim of plaintiffs over the suit property,
plaintiffs have not filed any suit against defendant no. 6 taking the plea that
defendant no. 6 had abandoned the site incomplete and therefore, he cannot
claim any right or portion of the newly constructed property and he cannot
sell any portion to anyone. The claim of plaintiffs in the present suit is only
based on the allegations that defendant no.1 is trespasser in the property
and being trespasser, she cannot claim any right over the property.
During the arguments, plaintiff no. 2(a) himself has argued that the
documents executed by Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma in
favor of defendant no. 1 are registered documents and they duly mentioned
about the dispute between plaintiffs and defendant no. 6 for the suit
property and therefore, defendant no. 3 and 4 who are claiming rights on
the basis of these documents cannot claim that they had no knowledge of
dispute between plaintiffs and defendant no. 6, registered document being
public document. Thus, admittedly plaintiffs were claiming the right over
the suit property since 1995 and despite that they have not filed the suit
against defendant no. 6 and by afflux of the time, plaintiffs have lost the
right to claim their rights under the collaboration agreement and merely
because the document in favour of defendant no. 1 mentioned the dispute,
is not going to impact the findings upon the present suit.
36.4 Defendant no. 6 has produced the possession letter Ex.DW-6/6P to
prove that he had handed over the possession to Mr. Sanjeev Sharma and
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Mrs. Sangeeta Sharma on 10.05.1993. Further Defendant No. 3 an 4 had
proved the agreement ExDW-3/X6 which is a tri-parte agreement executed
between defendant No. 1, defendant no. 6 and Mr. Sanjeev Sharma wherein
defendant no. 6 had stated that he had sold the first floor to Mr. Sanjeev
Sharma and Mrs. Sangeeta Sharman 29.09.1993 by way of agreement to
sale, power of attorney, special power of attorney, will and affidavit and the
possession was handed over to them on 10.05.1993. The agreement also
states that defendant no. 1 had lost the original documents executed by
defendant no. 6 in favour of Sh. Sanjeev Sharma and Smt. Sangeeta
Sharma. The agreement has been signed by defendant no. 6 who has not
disputed the documents. Now plaintiffs cannot dispute the execution of
these documents, it being self serving stand taken by them and only
defendant no. 6 or Sh. Sanjeev Sharma and Smt. Sangeeta Sharma or
defendant no. 1 can object to the same.
36.5 Further, the police report which is part of Ex. DW-6/7(colly) also
mentions that defendant no. 6 had sold the property to Mr. Sanjeev Sharma
who was in possession of the property on 06.01.1995 at the time of filing of
the police report.
36.6 Further, defendant no. 1 had given a notice in the newspaper on
14.02.2002 that she had lost the original documents of the suit property and
she had also filed an NCR dated 10.02.2002 stating that she had lost the
original documents of the suit property.
36.7 Further, all the documents executed subsequently with respect to sale
of the suit property clearly mention that the plaintiffs were the original
allottees of the property and they entered into collaboration agreement with
defendant no. 6 who was given suit property in lieu of construction of the
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property from his own funds and resources and subsequently defendant no.
6 sold the suit property to Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma
vide agreement to sell dated 10.05.1993.
Thus, all the conditions of Section 65(C) of the Indian Evidence Act
1872 have been proved and therefore, even in absence of original
documents executed by defendant no. 6 in favour of Mr. Sanjeev Sharma
and Mrs. Sangeeta Sharma, it can be concluded that defendant no. 6 duly
transferred the suit property to Mr. Sanjeev Sharma and Mrs. Sangeeta
Sharma and handed over the possession to them on 10.05.1993.
37. Further, defendant no. 3 and 4 have produced the registered GPA
executed on 26.03.1996 by Mr. Sanjeev Sharma and Mrs. Sangeeta Sharma
in favour of defendant no. 1 alongwith agreement to sell, registered Will,
Receipt, Affidavit all dated 29.09.1995 executed by Mr. Sanjeev Sharma
and Mrs. Sangeeta Sharma in favour of defendant no. 1. Though one of the
documents mentions that upon instruction of defendant no. 1 /Mrs. Neera
Malik, one Mr. Gautam Kr. Dhar is being appointed as attorney of
defendant no. 1 but the said Mr. Gautam Kr. Dhar has never come forward,
moreover, even as per the documents, he was appointed as an attorney of
defendant no. 1, only on instructions of defendant no. 1 and he had not
derived any independent right from the documents as entire payment had
been made by defendant no. 1 as per agreement to sell Ex. DW-3/X5.
38. Further, plaintiffs have taken plea that defendant no. 1 had earlier
sold the property to defendant no. 5. But neither any document has been
produced nor it has been proved that defendant no. 5 was ever in
possession of suit property. Rather defendant no. 5 had never comeforward
to make any claim with respect to the suit property.
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39.1 Defendant no. 3 and 4 have further produced registered GPA dated
07.03.2002 executed by defendant no. 1 in favour of defendant no. 2
alongwith agreement to sell, indemnity bond, registered Will all dated
07.03.2002 executed by defendant no. 1 in favour of defendant no. 2.
39.2 Defendant no. 3 and 4 have further produced original registered GPA
dated 12.04.2002 executed by defendant no. 2 in favour of defendant no. 3
and registered agreement to sell and registered Will both dated 12.04.2002
executed by defendant no. 2 in favour of defendant no. 4 alongwith
affidavit executed by defendant no. 4 stating that he had sold the property
to defendant no. 4.
Thus, defendant no. 3 and 4 have been able to prove that defendant
no. 6 duly transferred the suit property to Mr. Sanjeev Sharma and Mrs.
Sangeeta Sharma who transferred the property to defendant no. 1 and thus,
defendant no. 1 came into possession of the suit property legally upon
transfer of property in her favour. Thereafter, defendant no. 1 executed
documents in favour of defendant no. 2 who executed documents in favour
of defendant no. 3 and 4 who admittedly are in possession of the property
at present. Thus, the plea of the plaintiffs that defendant no. 1 trespassed
into the suit property on 12/13.10.1997 is contradictory to the record
produced and proved before the Court and it is proved that defendant no. 1
came into the possession of the property lawfully.
40. As mentioned above, the documents i.e. GPA and agreement to sell
executed prior to 24.09.2001 are good enough to create irrevocable in
favour of the GPA holder creating rights in favour of GPA holder akin to
owner, giving protection to his possession. In the present suit, Mr. Sanjeev
Sharma and Mrs. Sangeeta Sharma had executed registered GPA in favour
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of defendant no. 1 on 26.03.1996 therefore, defendant no. 1 had derived the
right, title and interest in the suit property akin to a lawful owner and
consequently, being owner, she had every right to enter into any transaction
qua the suit property with defendant no. 2 who subsequently, created
irrevocable rights in favour of defendant no. 3 and 4. It is also important to
note that defendant no. 1 had also executed registered GPA in favour of
defendant no. 2 on 07.03.2002 and defendant no. 2 executed registered
GPA in favour of defendant no. 3 and registered agreement to sell in favour
of defendant no. 4 on 12.04.2002 and thus, defendant no. 3 and 4 have also
derived the right, title and interest in the suit property akin to a lawful
owner though not the absolute owner as the property is still a leasehold
property. Therefore, plaintiffs cannot claim possession over the suit
property.
The plaintiffs had not ratified the transfer of property by defendant
no. 6 in favour of Sh. Sanjeev Sharma and Smt. Sangeeta Sharma but it
does not mean that plaintiffs can revoke the collaboration agreement
unilaterally and the agreement between defendant no. 6 and Sh. Sanjeev
Sharma and Smt. Sangeeta Sharma are binding upon plaintiffs and
consequently all the subsequent agreements deriving rights from the
agreement between defendant no. 6 and Sh. Sanjeev Sharma and Smt.
Sangeeta Sharma are also binding upon plaintiffs. Therefore, plaintiffs
cannot claim possession of the suit property from defendants.
41. Plaintiff no. 2(a) has relied upon following judgment :-
“Balram Singh Vs. Kelo Devi”, Civil Appeal No. 6733 of 2022,
decided on 23.09.2022;
“Suraj Lamps Vs. State of Haryana, AIR 2012 SC 2006.
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As per these judgments are concerned, same are not applicable to the
facts in hand.
42. In view of above discussion, issue no. I to V and VII are decided in
favour of defendants and against the plaintiffs.
43. Issue no. VI
The defendant no. 3 and 4 have taken the plea that suit no. II filed by
plaintiffs is barred by order 2 Rule 2 CPC. The plaintiffs have opposed the
same.
Admittedly, plaintiffs have filed the suit no. I for simplicitor
injunction while suit no. II has been filed for possession and declaration.
The nature and purview of the reliefs sought in both the suits are different
and therefore, suit no. II is not barred by Order 2 Rule 2 CPC. Accordingly,
issue no. VI is decided in favour of plaintiffs and against the defendants.
44. Application under Order 39 Rule 2A CPC :
44.1 Plaintiffs have further moved an application under Order 39 Rule 2A
CPC against defendant no. 1 to 5 stating that vide order dated 18.04.1998
in suit no. 1, defendant no. 1 was restrained from creating third party
interest in the suit property, however, in utter violation of the said order,
defendant no. 1 has sold the property to defendant no. 2 on 07.03.2002 who
sold the property to defendant no. 3 and 4 on 12.04.2002. It has been
further stated that all the defendants have criminally trespassed into the
property and have intentionally violated the interim order of the Court just
to harass the petitioners.
44.2 Defendant no. 1 has denied the allegations stating that she had not
trespassed into the suit property nor she was having knowledge of theCS DJ 268/2016 9471/16 Page No. 56 of 58
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
Digitally signed by
PRABH PRABH DEEP KAUR
DEEP KAUR Date: 2025.05.22
17:48:09 +0530
interim order and she was authorized to deal with the property as and when
she wanted.
44.3 Defendant no. 2 to 4 have also denied the allegations of violation of
the interim order stating that they were not the parties to the suit no. I and
had no knowledge of the interim order.
44.4 Arguments heard. Record perused.
44.5 Perusal of record shows that on 18.04.1998, following orders was
passed :
“Present: Mr. Prabhat Kumar, Advocate for the plaintiffs.
To come up awaiting the service report of defendant no. 1 and WS /reply
for 18.05.1998.
In the meanwhile, the defendant no. 1 is restrained from creating any
third party interest in the suit premises till NDOH.”
44.6. From the above mentioned order, it is clear that on 18.04.1998 when
the above mentioned order was passed, defendant no. 1 was not served and
it was an ex-parte order. Therefore, plaintiffs were required to serve notice
of the ex-parte order upon the defendant no. 1 in terms of order 39 Rule3
CPC and to file report before the Court but the same was never done.
Further, perusal of judicial file shows that no summons were served upon
defendant no. 1 in the suit no. I and summons have always been received
back unserved with the report “out of Delhi since long”. It was only after
service of defendant no. 1 in suit no. II in the year 2004 somewhere, when
defendant no. 1 appeared and filed reply to the above said application. As
far as defendant no. 2 to 5 are concerned, they were not parties to suit no. I
nor any notice was served upon them thereby putting them into the
knowledge of interim order dated 18.04.1998, therefore, the question of
them violating the interim order deliberately and knowingly does not arrive
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P.K. JANA ANR Vs. NEERA MALIK ORS Dated 22.05.2025
PRABH Digitally signed by
PRABH DEEP KAUR
DEEP Date: 2025.05.22
KAUR 17:48:15 +0530
at all. Further, in the application, plaintiffs have taken plea that they had
already put a board on the property that it is under dispute and they had
also given a notice in the newspaper. However, no evidence has been
produced to prove these averments. In view thereof, the application of
plaintiffs moved under Order 39 Rule 2A CPC stands dismissed as there
was no “wilful” or “deliberate” violation of any interim order on their part.
Relief.
45. In view of findings on aforesaid issues, both the suits of the plaintiffs
are hereby dismissed. The application of plaintiffs moved under Order 39
Rule 2A CPC stands dismissed. Parties to bear their own costs. Decree
sheet be prepared accordingly. All the pending interim applications stand
dismissed being not pressed upon.
File be cosigned to record room after due compliance.
Digitally signed
PRABH by PRABH
DEEP KAUR
DEEP Date:
2025.05.22
KAUR 17:48:22
+0530Typed to the dictation directly, (Prabh Deep Kaur)
corrected and announced ADJ-05/South East,
in the open court on this day Saket Courts, New Delhi.
Of 22nd May 2025.
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