Delhi High Court
Saira Banu Khan And Others vs Mohammad Saleem And Others on 9 March, 2026
Author: Purushaindra Kumar Kaurav
Bench: Purushaindra Kumar Kaurav
$-
* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CS (OS) 960/2024
1. SMT. SAIRA BANU KHAN
WIDOW OF LATE SH. YUSUF KHAN @ DILIP KUMAR
2. SHRI RAIHAN AHMED
S/O LATE SH. SULTAN AHMAD
3. MS. SHAHEEN AHMED
D/O LATE SH. SULTAN AHMAD
ALL RESIDENTS OF:- SOLITAIRE APARTMENT,
34-B, PALI HILL, NARGIS DUTT ROAD,
BANDRA (WEST), MUMBAI - 400050
ALSO AT:-
HOUSE NO. 259/5-B AUROBINDO MARG,
MEHRAULI, NEW DELHI-110030 .....PLAINTIFFS
(Through: Mr. Rakesh Munjal, Sr. Adv with Mr. Rakesh Kumar, Mr. Sunil
and Mr. Lokesh Kumar, Advs.
VERSUS
1. MOHAMMAD SALEEM
S/O LATE SHRI SHABBIR AHMED
2. MS. QAISAR SULTANA
W/O. SH. MOHAMMAD SALEEM
Signature Not Verified Signature Not Verified
Signed By:AMIT KUMAR Signed
SHARMA
Signing Date:11.03.2026 By:PURUSHAINDRA
11:49:10 1 KUMAR KAURAV
3.MS. LARABA SALIM
D/O SH. MOHAMMAD. SALEEM
ALL ARE PRESENTING STAYING AT:-
5B WHICH IS PART OF 259/5-B,
AUROBINDO MARG, MEHRAULI,
NEW DELHI-110030. ......DEFENDANTS
(Through: Mr. Mir Akhtar Hussain, Mr. Rakesh Pant and Ms. Sonia
Goswami, Advs. with D-1 & 2 in person.)
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% Reserved on: 12.12.2025
Pronounced on: 09.03.2026
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JUDGMENT
I.A.-47370/2024 (BY THE PLAINTIFF No.2 UNDER ORDER XV-A
READ WITH SECTION 151 OF CODE OF CIVIL PROCEDURE,
1908 (“CPC“)
The present application has been filed by Plaintiff No. 2 on behalf of
all Plaintiffs under Order XVA read with Section 151 of the Code of Civil
Procedure, 1908 (hereinafter “CPC“), seeking directions for
payment/deposit of mesne profits, damages, and/or use and occupation
charges by Defendant Nos. 1 to 3 in respect of the suit property bearing No.
259/5-B, Aurobindo Marg, Mehrauli, New Delhi – 110030, comprising land
and built-up structures in Khasra Nos. 670/27, 28, and 29, Village Lado
Sarai, Tehsil Mehrauli, New Delhi, admeasuring 9 bigha and 1 biswa
(hereinafter “the Suit Property”).
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SHARMA
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2. The instant suit has been filed seeking possession, mesne
profits/damages, mandatory and permanent injunction.
Brief facts
3. The plaintiffs are stated to be the absolute co-owners of the suit
property, which is asserted to be the self-acquired property of their
predecessor-in-title, late Ms. Roshan Ara Begum (hereinafter the “Deceased
Owner”). It is alleged that the Deceased Owner had purchased the suit
property in her own name through a duly registered sale deed and had
exclusive ownership thereof during her lifetime.
4. The plaintiffs trace their title to the suit property through the
Deceased Owner. The Deceased Owner was married to Mr. Mohammad
Ehsan, also known as Ehsan-ul-Haq, son of Mr. Khan Bahadur Mohammad
Solaiman, Executive Engineer. From the wedlock, Mr. Sultan Ahmad was
born on 16.02.1939 at Delhi, and Ms. Saira Banu Khan, i.e Plaintiff no. 1
was born on 23.08.1944 at Mussoorie.
5. Mr. Sultan Ahmad left for his heavenly abode on 15.01.2016, leaving
behind his legal heirs, namely his son Mr. Raihan Ahmed, i.e., plaintiff no.2
and his daughter Ms. Shaheen Ahmad, i.e., plaintiff no. 3. Plaintiff No. 3 is
stated to be acting through plaintiff No. 2 by virtue of a Power of Attorney
dated 11.11.2024.
6. It is stated that defendant No. 1 was granted temporary and limited
accommodation in a small portion of the suit property, namely an outhouse,
allegedly in his capacity as a caretaker and without the creation of any right,
title, or interest in his favour. It is further alleged that such permission was
subsequently extended to allow use of the garage portion of the property for
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operating a showroom-cum-shop. Defendant No. 1 is stated to have been
occupying the said portions along with defendant No. 2, his wife and
defendant No. 3, his daughter.
7. The outhouse and garage, excluding Shop No. 26/3 admeasuring
approximately 20‟7″ × 22‟3″, are alleged to collectively constitute the suit
property. It is further alleged that on 18.03.1979, defendant No. 1 executed a
written undertaking in favour of Mr. Sultan Ahmad, son of the Deceased
Owner, wherein he acknowledged his status as a caretaker, undertook to
ensure that no encroachment was caused on any part of the suit property,
and allegedly agreed to vacate the premises forthwith upon demand, without
raising any claim, objection, or assertion of ownership. The said position
was allegedly reiterated by defendant No. 1 in his letter dated 15.10.1991. It
is also alleged that the Deceased Owner subsequently executed a General
Power of Attorney dated 21.07.1992 in favour of Defendant No. 1 solely for
the purposes of management and upkeep of the suit property, which did not
confer any ownership or proprietary rights upon him.
8. It is further alleged that upon the demise of the Deceased Owner on
18.06.2002, and, thereafter, upon the demise of her son Sh. Sultan Ahmad
on 15.01.2016, defendant No. 1 continued to remain in occupation of
portions of the suit property only in his capacity as a caretaker. Such
occupation is stated to have been governed by successive caretaker
arrangements, including agreements dated 05.07.2011 and 24.10.2019. It is
alleged that the Caretaker Agreement dated 24.10.2019 was executed at the
Plaintiffs‟ residence in Mumbai in the presence of four witnesses and that
the proceedings were video-recorded. Under the said agreement, Defendant
No. 1 was permitted to occupy only the portion marked in red in the annexed
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site plan, and the arrangement was expressly stated to be terminable without
notice in the event of breach. It is further alleged that upon termination,
defendant No. 1 was obliged to vacate the premises and cancel all
government-issued documents reflecting the address of the suit property.
Defendant No. 1 is stated to have purportedly received a consolidated
remuneration of ₹25,000/- per month for caretaker services in respect of the
suit property as well as another property in Delhi, in addition to
reimbursement of expenses, and that such payments were made until
September 2023.
Submissions
9. Mr. Rakesh Munjal, learned senior counsel for the Plaintiffs,
submitted that the Caretaker Agreement dated 24.10.2019 stood terminated
vide notice dated 19.12.2022 owing to repeated breaches committed by
defendant No.1, including unauthorised induction of third parties into the
suit property and extortionate monetary demands. It was submitted that
although a limited extension was granted purely as a matter of indulgence,
the same, however, had expired in August 2023, yet defendant No.1 failed to
vacate. Instead, defendant No.1 continued in unauthorised occupation,
falsely projecting himself as the owner and attempting to create third-party
rights. It is submitted that in blatant breach of the caretaker arrangement,
defendant No.1 executed a Rent Deed dated 22.08.2023, purportedly with
retrospective effect from 01.08.2023, in respect of approximately 1,450 sq.
ft. of the suit property in favour of M/s Tailor Tele Productions Pvt. Ltd.,
claiming rent of ₹2,10,000/- per month with effect from 01.08.2024, while
simultaneously carrying out unauthorised constructions. It was further
submitted that, following disputes with the said tenant, defendant No.1
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himself issued a legal notice dated 12.02.2024 claiming rent at the same rate,
thereby clearly demonstrating the prevailing market value of the premises.
On this basis, it was contended that the larger suit property reasonably
warranted mesne profits at the rate of ₹4,00,000/- per month.
10. It was further submitted that the defendants had embarked upon a
pattern of vexatious litigation by filing frivolous police complaints, civil
suits, and writ petitions, including WP(C) No. 11395/2024, asserting
inconsistent and demonstrably false claims of ownership, without producing
a single document of title. In order to restrain further illegal acts, including
unauthorised alterations to the outhouse in 2024, the plaintiffs issued a legal
notice dated 22.08.2024, categorically terminating all permissions and
calling upon the defendants to vacate the suit property within one month,
i.e., by approximately 25.09.2024, failing which mesne profits at the rate of
₹4,00,000/- per month along with interest at 18% per annum were claimed.
It was submitted that the said notice was duly served through multiple
modes, remained not replied to, and its receipt has not been denied by
defendant Nos. 1 and 2 in their rejoinder filed in WP(C) No. 11395/2024.
11. Learned senior counsel submitted that upon expiry of the notice
period, the defendants, having no lawful right, title or interest in the suit
property, were reduced to the status of trespassers and encroachers. Learned
senior counsel for the plaintiffs further submitted that the alleged claim of
title by way of an oral gift set up by Defendant No. 1, arguendo, is hit by
Section 4 of the Delhi Land (Restriction on Transfer) Act, 1972 (hereinafter
„the Act of 1972‟). It was contended that any transfer of the suit property
during the subsistence of acquisition proceedings was statutorily prohibited,
void and unenforceable in law. On this basis, learned senior counsel
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submitted that no right, title or interest could have been legally conveyed in
favour of the defendants, and their continued occupation of the suit property
is unauthorised.
12. Learned senior counsel has accordingly sought arrears of mesne
profits for the period from 25.09.2024 at the rate of ₹4,00,000/- per month,
with continuation from 25.10.2024 along with a 10% annual increment until
the date of judgment or delivery of possession, whichever is earlier, besides
pendente lite and future interest at the rate of 18% per annum. It was
contended that denial of interim relief would result in grave and irreparable
loss to the plaintiffs. Reliance was placed on the decisions in Bashir
Mohammed v. Mohammed Saeed & Ors.,1Meera Sahni v. Lt. Governor of
Delhi2, Anisa Singh & Ors. v. Sir Sobha Singh Public Charitable Trust &
Ors.,3S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by
LRs, 4and Maria Margarida Sequeria Fernandes & Ors. v. Erasmo Jack
de Sequeria (Dead) through LRs, 5.
13. Per contra, Mr. Mir Akhtar, learned counsel for the defendants,
argued that the application filed by the Plaintiffs under Order XV-A is
wholly misconceived. The application proceeds on the incorrect assumption
that the defendants are unauthorised occupants of the suit property. It was
emphasised that the pendency of a civil dispute or a challenge to title does
not, by itself, render long-standing possession unlawful. Defendant No.1 has
been in open, peaceful, continuous and uninterrupted possession of the suit
property since 16.01.1980, i.e., for more than four decades. In such
1
2024:CGHC:41124
2
(2008) 9 SCC 177
3
2024:DHC:2966
4
(1994) 1 SCC 1
5
(2012) 5 SCC 370
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circumstances, according to Mr. Akhtar, the provisions of Order XV-A
CPC, which contemplate a situation of unauthorised occupation, are not
attracted.
14. It was further contended that defendant No.1‟s possession originates
from a valid oral gift, i.e. Hibba, under the Mohammedan Law made on
16.01.1980 by the deceased owner. It is submitted that the gift was declared
in the presence of Muslim witnesses, and affidavits of such witnesses have
been placed on record. According to learned counsel, all essential
requirements of a valid Hibba under Mohammedan Law, namely,
declaration, acceptance, and delivery of possession, stand satisfied.
According to learned counsel, pursuant to the gift, defendant No.1 has
remained in exclusive possession of the property and has exercised all
incidents of ownership for over 44 years. He submitted that the plaintiffs do
not dispute defendant No.1‟s possession, nor have they challenged the gift
on any ground recognised under Mohammedan Law.
15. Learned counsel also submitted that after the gift, and with the
consent of the original owner, defendant No.1 and his father raised
permanent residential and commercial constructions over approximately 450
sq. yards of the property. It was stated that over the years, defendant No.1
let out portions of the property as landlord, ran commercial establishments
under the name “New Cottage Handicrafts”, and obtained electricity,
telephone and other statutory connections. Learned counsel submitted that
the plaintiffs and their predecessors remained silent for over four decades
and never objected to either the possession or the constructions. This
prolonged silence, it was argued, amounted to clear acquiescence.
Allegations based on alleged caretaker undertakings dated 18.03.1979,
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15.10.1991, 05.07.2011 and 24.10.2019 were denied as forged and
fabricated, and it was asserted that no caretaker arrangement ever existed.
16. Addressing the plaintiffs‟ reliance on Section 4 of the Act of 1972,
learned counsel argued that such reliance is misplaced. Even assuming the
gift was made during the period of acquisition, any invalidity would operate
only vis-Ã -vis the State and not between private parties. The acquisition
proceedings were withdrawn in 2007 by a notification under Section 48 of
the Land Acquisition Act, 1894 and it is undisputed that neither possession
was taken nor compensation was paid. Upon such withdrawal, the statutory
restriction ceased to operate. In the alternative, it was argued that the
defendants‟ possession is protected under Sections 52 and 60(b) of the
Easements Act, 1882, as permanent constructions were raised with the
knowledge and acquiescence of the plaintiffs, rendering any licence
irrevocable. Consequently, it is submitted that the defendants cannot be
treated as unauthorised occupants, and therefore, no mesne profits or
occupation charges are payable, and the application under Order XV-A CPC
is liable to be dismissed. Reliance has been placed by the respondents on the
decisions of various Courts in Sharan Appa Shabadi & Ors. v. Syeda Arifa
Parveen6,Meera Sahni v. Left. Governor of Delhi7,Shiv Kumar & Anr. v.
Union of India 8,Ram Sarup Gupta v. Bishun Naraian Iter-College &
Ors.9,Chairman, State Bank of India & Anr. v. M.J. James10, J. Narayan
Rao v. Y.G. Basavarayappa and Ors.11,Venkataswami Naidu v. Muniappa
6
2025 INSC 1187.
7
(2008) 9 SCC 177.
8
AIR 2019 SC 5374.
9
1987 2 SCR 805.
10
(2022) 2 SCC 301.
11
1956 SCR 727.
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Mudaliar12, Rafiq Hussain v. Bhayabishnath Prasad13,Mt. Azmat-Un-
Nissa v. Ganesh Pershad14, Lachmi Prasad v. Lachmi Narayan15, B.L
Sreedhar v. K.M. Munireddy16, Gopalan Nair v. Thevi Amma17, Fazal Haq
v. Data Ram18, Md. Abdul Jameel v. Manzoor Ahmed and Ors.19, Guman
Singh v. Pyare Lal and Ors.20, B.L Sreedhar v. K.M. Munireddy21, and
Azhar Husain v. Mansab22.
17. In rejoinder submissions, Mr Munjal submitted that the defendants
have taken inconsistent, shifting stands at different stages of the
proceedings, rendering their claims unreliable. It is submitted that in the
rejoinder dated 18.04.1992 filed in W.P.(C) No. 701/1981, defendant No. 1
expressly disclaimed any ownership over the land and stated that ownership
vested with the Deceased Owner. Learned senior counsel further submits
that in information furnished to the MCD in 2011 and 2012, defendant No. 1
again disclaimed ownership and described himself merely as an “ultimate
user”, a stand which was allegedly abandoned in later proceedings.
18. It is further submitted that in the criminal complaint dated 05.11.2023
and the application under Section 156(3) of the Code of Criminal Procedure,
1973, dated 16.11.2023, defendant No. 1 limited his claim to an outer
constructed portion admeasuring about 450 square yards, without seeking
any declaration or pleading any case of gift or Hibba. However, in the same
12
AIR 37 1950 MAD. 53.
13
AIR 1925 OUDH 258.
14
AIR 1925 OUDH 262.
15
AIR 1928 ALL 41.
16
AIR 2003 SC 578.
17
AIR 1969 KER 23(V 56 C7).
18
AIR 1975 ALL 373.
19
AIR 1932 ALL 572.
20
AIR 1929 NAGPUR 141.
21
AIR 2003 SC 578.
22
AIR 1940 ALL 324.
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pleadings, he allegedly introduced a contradictory claim of a 25% share in
the main farmhouse on the basis of unproduced undertakings. Mr. Munjal
also submitted a note pointing out various other allegedly inconsistent stands
taken by the defendants.
19. I have heard learned counsel appearing for the parties and have
perused the record.
Analysis
20. As noted hereinabove, the present application has been preferred
under Order XV-A read with Section 151 of the CPC seeking a direction to
the Defendants to deposit mesne profits/use and occupation charges during
the pendency of the suit.
21. In exercise of powers under Section 122 of CPC, this Court, by
Notification No. 324/Rules/DHC dated 12.11.2008, has introduced Order
XV-A of CPC, applicable to this Court and its subordinate courts within its
territorial jurisdiction. The provision authorises the Court, in a suit by an
owner or lessor for eviction of an unauthorised occupant or for recovery of
rent and mesne profits, to direct the defendant to deposit arrears and to
continue making monthly deposits of such rent or use and occupation
charges as the Court may determine during the pendency of the suit, and,
upon default and after due notice, to strike off the defence, without prejudice
to the rights and contentions of the parties or the merits of the suit. The
material extract of the aforementioned notification is reproduced as under:-
“ORDER XV-A STRIKING OFF DEFENCE IN A SUIT BY A LESSOR
(A) “In any suit by a owner/lessor for eviction of an unauthorized
occupant/lessee or for the recovery of rent and future mesne profits
from him, the defendant shall deposit such amount as the court may
direct on account of arrears upto the date of the order (within such
time as the court may fix) and thereafter continue to deposit in eachSignature Not Verified Signature Not Verified
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succeeding month the rent claimed in the suit as the court may direct.
The defendant shall continue to deposit such amount till the decision of
the suit unless otherwise directed. In the event of any default in making
the deposit as aforesaid, the Court may subject to the provisions of sub-
rule (2) strike off the defence. (2) Before passing an order for striking
off the defence, the court shall serve notice on the defendant or his
Advocate to show cause as to why the defence should not be struck off,
and the Court shall consider any such cause, if shown in order to
decide as to whether the defendant should be relieved from an order
striking off the defence. (3) The amount deposited under this rule shall
be paid to the plaintiff owner/lessor or his Advocate and the receipt of
such amount shall not have the effect of prejudicing the claim of the
plaintiff and it would not also be treated as a waiver of notice of
termination.”
22. Thus, Order XV-A of CPC confers jurisdiction upon the Court, in a
suit instituted by a person asserting to be an owner or lessor, to direct the
defendant to deposit such amount as appears reasonable where the defendant
continues to remain in occupation after termination of authority or
permission.
23. The scope of the words “owner/lessor” was slightly expanded by the
Division Bench of this Court in Raghubir Rai v. Prem Lata& ors23, wherein
the words “owner/lessor”, in addition to their ordinary meaning, were also
held to cover cases wherein the plaintiff claims a better right to possession
of the suit property. It was held that in a suit by an owner or person claiming
a better right to possession against a defendant, who continues to occupy the
property after termination of permission or authority, the Court is
empowered under Order XV-A of CPC to direct the defendant to deposit
reasonable use and occupation charges or mesne profits during the pendency
of the suit. The Court clarified that this power is independent of Order
XXXIX Rule 10 of CPC and is not confined to directing the deposit of
23
2014 SCC OnLine Del 3045
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admitted amounts only. Even where the defendant disputes the plaintiff‟s
title or denies liability, the Court may, on a preponderance of probabilities
and on the basis of material on record, direct deposit of such amount as
appears reasonable. The Court also clarified that the scope of Order XV-A
of CPC is not confined to cases of subsisting tenancies, but extends equally
to persons who continue in possession as unauthorized occupants or
trespassers after cessation or termination of their right to occupy the
property. The provision is intended to shield the owner or person asserting a
better and lawful right to possession from prolonged deprivation of
compensation during the pendency of litigation, and to prevent misuse of the
judicial process by defendants who, by setting up false, inconsistent, or
legally untenable defences, continue to enjoy possession without making
any payment. The provision, therefore, is also intended to be a shield against
procedural malpractices and abuse of judicial process, and is meant to
ensure that a rightful claimant is met with a just and expedient response.
Having said that, the Court has also sounded a note of caution that the
discretion vested under Order XV-A, though wide, is neither unbridled nor
mechanical.
24. The power must be exercised judiciously and on the basis of cogent
material on record, such as prior contractual arrangements, past conduct of
the parties, prevailing market indicators, or surrounding circumstances. Any
amount directed to be deposited under Order XV-A is provisional in nature
and remains subject to final determination, adjustment, and restitution upon
adjudication of the suit on merits. The relevant extract of the aforenoted
decision is reproduced as under:-
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“22. Though Order XVA is titled as “Striking Off defence in a suit by a
lessor” but the same is not confined to striking off of defence only. The
same, independently of Order XXXIX Rule 10 CPC, vests in the Court
the power for issuing a direction for deposit. While so empowering the
Court, as rightly held by the learned Single Judge, a departure was
made from the language of Order XXXIX Rule 10 CPC. While under
Order XXXIX Rule 10 CPC, a direction could be issued only for
deposit/payment of admitted amount, the word „admitted‟ is
conspicuous by its absence in Order XV-A of the CPC. A discretion has
been vested in the Court to issue direction for deposit of “such
amount” as the Court may direct. Such departure from language of an
earlier existing provision is a tool of interpretation. There is abundant
authority to the effect that when the situation has been differently
expressed, the legislature must be taken to have intended to express a
different intention. The Supreme Court in The Western India Theatres
Ltd. v. Municipal Corporation of the City of Poona AIR 1959 SC 586
held that the legislature having substituted the word “reduced”, earlier
existing, with the word “modify”, this change must have been made
with some purpose and the purpose could only be to use an expression
of wider connotation so as to include not only reduction but also other
kinds of alteration; accordingly, the contention to interpret “modify”
as “reduce”, because in the marginal note the word “reduce”
remained, was rejected. Reference may also be made to Khatri Hotels
Pvt. Ltd. v. Union of India (2011) 9 SCC 126, where, finding the
legislature to have designedly made a departure from the language of
Article 120 of the Limitation Act, 1908, in enacting Article 58 of the
1963 Act, by introduction of the word “first” between the words “sue”
and “accrued”, it was held that if the suit is based on multiple causes
of action, the period of limitation will begin to run from the date when
the cause of action first accrued.
23. We are therefore unable to agree with the contention of the counsel
for the appellant/defendant that the Court, in exercise of powers under
Order XV-A of the CPC, is incapacitated from directing deposit at a
rate higher than that admitted by the defendant.
24. We are of the view that the Court, in exercise of powers under
Order XV-A of the CPC is empowered to direct deposit at such rate as
the erstwhile tenant/defendant may on the basis of material on record
be found to have agreed to pay to the landlord for the said period even
if the tenant before the Court may not have admitted the same or
disputed/controverted the same. Similarly, in a suit between the owner
of immovable property and an unauthorized occupant, Order XV-A
empowers the Court to direct the defendant who though may not be
liable to be ejected/dispossessed immediately without trial but who, on
preponderance of probabilities may not be found to have a right to
continue in possession of the property, to deposit during the pendency
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of the suit such amount as may appear to be reasonable, to safeguard
the right of the owner of the property and to ensure that such owner is
compensated at least for the time taken in adjudication of a false
defence taken up by the defendant in unauthorized occupation. This, in
our view is necessary to avoid the process of the Court being abused by
unscrupulous litigants and to curb the growing tendency of using the
process of litigation as a tool of oppression.”
25. In Madho Singh Chauhan v. Smriti and Others24, this Court opined
that the application of the principles underlying Order XV-A of CPC,
especially in determining the quantum of payable amount, varies depending
on whether the defendant is a tenant or an alleged unauthorised occupant. It
was held that Order XV-A CPC vests complete discretion in the Court while
determining the amount payable thereunder. However, as a guiding factor, it
was observed that in case of a tenant, the Court may be guided by the pre-
determined rent or rental in the surrounding area, and in case of an
unauthorized occupant, who was not inducted as a tenant, the rental values
in neighbouring areas may not be of much relevance. The relevant extract of
the aforenoted decision is culled out as under :-
“20. A bare reading of sub-para (F), (G) and (H) of para 9 of the
report in Raghuvir Rai, vis-Ã -vis the earlier sub-paras (A) to (E)
thereof, clearly indicate that the principle that applies, under Order
XV-A, to unauthorised occupants who are not tenants, and that which
applies to tenants, are completely distinct. Where the defendants are
the tenants in the suit property, there may be substance in the
contention that the payment directed under Order XV-A(1) ought to be
commensurate to the rent charged with respect to premises in the
vicinity. Where, however, the defendants are not tenants, as in the
present case, where they are the divorced wife and children of the
petitioner who, according to him, are continuing in unauthorised
occupation of the suit property, the discretion of the court, in fixing the
amount payable under Order XV-A(1) is not constrained or constricted
in any manner by the consideration of the rent chargeable with respect
to premises in the vicinity/”
24
2022 SCC OnLine Del 1059
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26. Furthermore, in Smt. Swaran Makkar v. M/s Dayal Chand Kishori
Lal25, the Court held that an order under Order XXXIX Rule 10 of CPC
and/or Order XV-A of CPC is an interim measure intended to safeguard the
interests of the plaintiff/owner. Such interim protection must be granted with
due care, and the provisions ought to be interpreted liberally to protect a
party asserting ownership and alleging unauthorized occupation.
27. In the present case, the plaintiffs have placed on record documents
evidencing that the suit property was purchased by their predecessor-in-title,
through a registered sale deed. The factum of ownership of the Deceased
Owner is not in dispute. In fact, the defendants‟ right also flows from the
same owner. The plaintiffs claim succession through the admitted owner and
thus, prima facie demonstrate a better right of ownership over the
defendants.
28. The defendants, on the other hand, assert title on the basis of an
alleged oral gift, i.e., Hibba purportedly made in January 1980. While the
validity of such a claim is a matter of trial, for the limited purposes of the
present application, the Court cannot be oblivious to the surrounding
circumstances which at the outset undermine the defendants‟ assertion.
Material placed on record indicates that defendant No.1, at various points in
time and before different fora, expressly disclaimed ownership and
acknowledged the title of the Deceased Owner. Such conduct is inconsistent
with the plea of absolute ownership by way of a gift. The different stands
taken by the defendants have been brought on record by the plaintiffs in the
following table:-
25
2023: DHC : 1893
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S.NO DEFENDANTS’ BASIS OF AREA OF
. DOCUMENTS CLAIM/AVERMENTS OF LAND/PROPERTY
WITH DEFENDANT NO. 1 INVOLVED
DIFFRERENT
STANDS
1. PDF 57,64 No Ownership claimed. Entire land
(Plaintiffs Land of Petitioner not measuring 9 Bigha 1
Documents) acquired. Biswa
Rejoinder Dated
18.04.1992 in
WPC 701/1981 Admits land of petitioner
was also included in
Additional acquisition notifications.
Affidavit Dt.
21.04.1992
2. PDF 266 Claims himself as Ultimate NILL
(Plaintiffs User.
Documents) No ownership or co-
Information to ownership or joint
MCD in 2011 ownership claimed
PDF 271
Information to
MCD in 2012
3. PDF 228 No undertaking, document of Outer portion of
(Plaintiffs declaration or Hibba property constructed
Documents) mentioned. on a plot of land
Complaint Dated measuring about 450
05.11.2023 sq. yards. Consisting
of 3 commercial
shops and
residential portion
consisting of one
drawing-dining, two
bedrooms, two
bathrooms, one
store, one kitchen.
4. PDF 235 UNDERTAKINGS of Smt. Outer portion of the
(Plaintiffs Roshan Aara Begum said property,
Documents) constructed on a plot
Para 3 of of land measuring
Criminal about 450 sq. yds.
Complaint u/s Admits that there was no
156(3) dt. Undertaking of Smt. Roshan 25% of share from
16.11.2023 Aara Begum. main farm house
measuring 9 bighas
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PDF 378 1 biswa.
(PLEADINGS)
Para 39 of Written
Statement
5. PDF 244-245 Land was acquired and Smt. Owner of house
(Plaintiffs Roshanara Begum had no property and 3
Documents) right and title over the shops.
Reply dt. property.
18.03.2024 to IO
WRITING by late Smt.
Roshan Ara Begum duly 25% Share in the
witnessed by late Shri Yusuf inner farm house.
Khan @ Dileep Kumar and
Late Shri Sultan Ahmed.
Documents of my 25%
ownership in inner farm
house are in power and
possession of Plaintiffs.
Denies the Defenadnt Nos. 1
and 2 gave false statement
before IO.
PDF 380
(PLEADINGS)
Para 43 of Written
Statement
6. PDF 213 Claims Shri Hussain Baksh Admits Shabbir
(Plaintiffs and late Smt. Shamshad Ahmed and Salim
Documents) Para Begum were siblings. were maintaining the
3 of WP (C) No. properties.
5548/2024 Dt.
18.04.2024 Admits that Sh. Hussain
Baksh and not Smt.
PDF 372 Shamshad Begum were not
(PLEADINGS) Siblings
Para 34 of WS
Claims DOCUMENTS 450 sq. yards.
executed in the presence of Constructed area
Sh. Yusuf Khan @ Dileep and 1/3rd share in
PDF 217-218 Kumar, late Sh. Sagar Suri, the remaining land.
(Plaintiffs late Sh. Sultan Ahmed
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Documents) whereby the property
Para 17 of WP (C) allegedly constructed by the
No. 5548/2024 dt. Defendant No.1 was
18.04.2024 DELARED as his property
and also that Defendant No.
1 would have 1/3rd share in
remaining property.
Reiterates Para 17 of WP
(C) 5548/2024, meaning
thereby maintains that there
was some document of
delaration.
PDF 375
(PLEADINGS)
Para 36 of WS
7. PDF 218 Admits after death of Smt.
(Plaintiffs Roshanara Begum, the
Documents) In property devolved upon Smt.
Para 18 of WP (C) Saira Banu and Sh. Sultan
No. 5548/2024 Ahmad.
After the death of Smt.
Roshanara Begum, the
PDF 261 property devolved upon Md.
(Plaintiffs Salim, Smt. Saira Banu and
Documents) Sh. Sultan Ahmad.
Para 37 of WP (C)
No. 11395/2024 Reiterates para 24 and 37 of
WP (C) 11395/2024 as true
and correct.
PDF 435
(PLEADINGS)
Para 56 (xxi) of
WS
8. PDF 257 Claims to be in
(Plaintiffs possession of portion
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Documents) Para marked red in plan.
23,24 of WP (C) Claims to be the co-
11395/2024 owner to the extent
of 25% in the
Plan @ PDF 43 Reiterates para 24 and 37 of Released property.
WP (C) 11395/2024 as true (Contrary to Claim
PDF 435 and correct of Hibba)
(PLEADINGS)
Para 56 (xxi) of
WS
9. PDF 278-279 First Time claimed HIBBA Claimed Oral Gift of
(Plaintiffs on 16.01.1980. Property measuring
Documents) 2300 sq. yds. along
Para 2 (1) of with small structure
Rejoinder dt. and
30.08.2024 filed 25% Co-owner of
on 30.09.2024 the remaining
property.
No particulars of
witness disclosed.
No demarcation of
property claimed.
10. PDF 287-288 Again claims HIBBA on Claimed Oral Gift of
(PLEADINGS) 16.01.1980 Property measuring
Para 3 of Written Now for the first time 2300 sq. yds. along
Statement dt. numbers and names of with small structure
15.02.2025 alleged Witness are and,
introduced. 25% Co-owner of
the remaining
But no allegations of any property on the basis
demarcation of 2300 Sq. of HIBBA.
Yds. in the property or at
least 25% share in
remaining land.
11. PDF 743,746,749 Claim demarcation by Two Days after
(DEFENDANTS alleging "In our presence signing of witness
DOCUMENTS) Donor demarcated the statement dt.
Affidavits dt. Gifted Property being the 15.02.2025, alleged
15/17. 02.2025 of roadside portion of her Witness went on to
Witness set up by property and handed over claim demarcation
Defendants. the possession of Gifted of alleged GIFTED
property to the Donee.” PROPERTY, which
was not even
claimed by
Defendants.
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29. From the aforesaid, it is apparent that the defendants are indeed
indulging in an act of approbation and reprobation on this aspect. Further,
the plaintiffs have relied upon written undertakings, caretaker arrangements
and agreements, as well as admitted receipt of remuneration by Defendant
No.1 for caretaker services. Though these documents are disputed, they may
constitute relevant material at this interlocutory stage and indicate
permissive occupation.
30. The contention of the defendants that long-standing possession, by
itself, excludes the application of Order XV-A of CPC is also untenable.
Mere continuity or longevity of possession does not legalise occupation
once the authority or permission to occupy stands terminated. Order XV-A
of CPC expressly contemplates situations where a defendant continues in
occupation after cessation of lawful title, irrespective of the duration of prior
possession.
31. Moreover, the contention of the defendants that the invalidity of the
gift under Section 4 of the Act of 1972 would operate only against the State,
does not advance their case at this stage. The said statutory provision casts a
serious cloud on the legality of any alleged transfer during the subsistence of
acquisition proceedings. Whether such a transfer is void, voidable or
unenforceable inter se the parties is a matter to be adjudicated at trial.
However, for the purposes of the present application, the defendants have
failed to prima facie establish a lawful right to continue in occupation.
32. As regards the determination of a reasonable amount towards mesne
profits/use and occupation charges, the plaintiffs have relied upon the rent
deed executed by defendant No.1 himself in respect of a portion of the suit
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property, reflecting a monthly average rent of ₹2,10,000/-. The said
document, emanating from the defendants‟ own conduct, constitutes a
relevant indicator of the prevailing market value. Having regards to the
location, extent and potential of the suit property, and bearing in mind that
any direction under Order XV-A of CPC is provisional and subject to final
outcome of the instant suit, this Court is of the view that the plaintiffs have
made out a prima facie case for deposit of use and occupation charges.
33. In view of the foregoing discussion, this Court is satisfied that the
plaintiffs have established a prima facie right of ownership and the
defendants‟ continued occupation of the suit property, after termination of
permission, attracts the provisions of Order XV-A of CPC. Failure to direct
deposit of use and occupation charges would result in unjust enrichment of
the defendants and would cause irreparable prejudice to the plaintiffs.
34. The application under Order XV-A CPC is allowed. Defendant Nos. 1
to 3 are directed to deposit mesne profits/use and occupation charges at the
rate of ₹2,10,000/- per month with effect from 25.09.2024 till 31.03.2026,
before the Registrar General of this Court.
35. The arrears calculated up to the date of this order shall be deposited
within a period of 6 weeks. The defendants shall continue to deposit the said
amount on or before the 10th day of each month during the pendency of the
suit.
36. The amount so deposited shall remain subject to final adjudication,
and the outcome of the suit. Nothing contained herein shall be construed as
an expression of opinion on the merits of the instant case.
C.S (O.S) NO. 960 /2024, CC 15/2025, I.A. 46873/2024, and I.A.
15624/2025
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37. List on 10.04.2026, before the Joint Registrar for taking up further
necessary steps, in accordance with the extant rules
38. Thereafter, list before the Court on the date to be assigned by the Joint
Registrar.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
MARCH 09, 2026
P
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