Delhi District Court
Ved Parkash Saini vs Om Prakash Saini on 21 April, 2026
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
IN THE COURT OF SH. AJEET NARAYAN
JSCC-ASCJ-GJ, SOUTH EAST DISTRICT, SAKET COURTS,
NEW DELHI
DLSE030013842018
CS No. 887/18
CNR No. DLSE030013842018
(1) Shri Ved Prakash Saini
S/o Late Sh. Dhoom Singh Saini
R/o: 1555, First Floor, Tula Nagar,
Kotla Mubarakpur, New Delhi-110003
(2) Shri Raj Kumar Saini
(Since deceased through LRs)
(i) Smt. Shashi Saini
W/o Late Sh. Raj Kumar Saini
(ii) Sh. Vikas Saini
(iii) Sh. Ashish Saini
(iv) Sh. Rajat Saini
All Sons of Late Sh. Raj Kumar Saini
All R/o- 1535, Third Floor, Tula Nagar,
Kotla Mubarakpur,
New Delhi- 110003
(3) Ms. Kamlesh Saini
W/o Late Chetan Singh Saini
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CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
(4) Shri Vipin Saini
S/o Late Chetan Singh Saini
(5) Shri Anish Saini
S/o Late Chetan Singh Saini
S. No. 3 to 5, all are residents of -
R/o 1555, Second Floor, Tula Nagar,
Kotla Mubarakpur, New Delhi-110003. ...Plaintiffs
VERSUS
Shri Om Parkash Saini
S/o Late Shri Kalu Ram
R/o 2-A, Gautam Nagar,
New Delhi-110049.
Also, at: - M/s RK Electricals Shop No. 1554,
Tula Nagar, Kotla Mubarakpur,
New Delhi-110003. ...Defendant
Date of Institution : 19.07.2018
Date of Reserving Judgment : 23.02.2026
Date of Judgement : 21.04.2026
Final order : Suit Dismissed.
SUIT FOR MANDATORY INJUNCTION, PERMANENT &
PROHIBITORY INJUNCTION AND DAMAGES/ MESNE
PROFITS
JUDGMENT
1. Vide this judgment, I shall dispose of the instant civil suit
filed by Ved Prakash Saini and Ors. (hereinafter referred to as
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CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
‘plaintiffs’) against Om Parkash Saini (hereinafter referred to as
‘defendant’) for mandatory injunction, permanent & prohibitory
injunction and damages/mesne profits.
PLAINTIFF’S VERSION
2. It is the case of the plaintiff that the plaintiff number 3 to 5
are wife and sons of Late Chetan Singh Saini, respectively, who
along with the plaintiff numbers 1 & 2, entered into a
collaboration agreement with the defendant on 27.7.1999, for
construction of property bearing no. 1555, Tula Nagar, Kotla
Mubarakpur, New Delhi- 110003. It is submitted that the
property in question is an ancestral property of the plaintiffs, who
have inherited the same and as per the collaboration agreement
dated 27.7.1999, the plaintiff number 1 and 2 and late Sh. Chetan
Singh Saini, husband and father of the plaintiff’s no. 3, 4 and 5,
entered into this agreement with defendant and as per the same,
the defendant has to build up the basement, ground floor, first,
second and third floors and the construction was to be completed
within 12 months and a written agreement was signed in this
regard by the plaintiff number 1 & 2 and Late Chetan Singh Saini.
2.1. It is further submitted that as per the agreement, the
defendant did not complete the construction and handed over the
possession of the first, second and third floors to the plaintiff No.
1 & 2 and Late Shri Chetan Singh Saini and the defendant also
handed over the part of ground floor consisting of 3 shops and
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the remaining portion of ground floor, basement and mezzanine
floor was taken by the defendant, as per the collaboration
agreement and the possession was handed-over in the starting of
year 2005. It is further submitted that the plaintiffs, after taking
the possession of the first, second and third floors in the starting
of year 2005, found that there was no wooden work done and
only plastering of floors and walls were done and also on the roof
also, only plastering work was done and it took plaintiffs 9
months to one year, to make the first, second and third floors
habitable by completing the wooden work, floorings and white-
washing, POP and other works done and due to this they could
not use the first, second and third floors. It is further submitted
that after completion in the middle of the year January, 2006, the
plaintiff contacted the defendant to get the sale deed executed in
favour of the defendant and to make the payment of around Rs.
20 lakhs, which were spent as stated above and it also included
the rent which the plaintiffs paid for a year till the completion of
the first, second and third floors as they could not reside in the
first, second and third floors and took the adjacent property on
rent.
2.2. It is further submitted that as the defendant did not have
money to pay and therefore, an arrangement was made between
the defendant and the plaintiffs that the defendant will use the
basement, part of the back side of ground floor and mezzanine
for around 10 years so that the defendant, who has spent money
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on the construction, will stand adjusted and thereafter, the
defendant will hand-over the physical vacant possession of part
of back of ground floor portion and basement and mezzanine to
the plaintiff as shown in red colour in the site plan annexed with
this plaint. It is submitted that in the end of June 2016, when the
plaintiff contacted the defendant, the defendant asked the plaintiff
to extend the period of one year more, as the defendant was in
some financial trouble and cannot shift immediately and the
plaintiffs believing his version, extended the period for one year
more up to the end of December, 2017. Thereafter, the plaintiffs
when contacted the defendant, in the end of December, 2017, he
again assured them to vacate the same within 2-3 months, but
despite the expiry of the said period, the defendant did not vacate
nor handed-over the possession. It is submitted that finding that
the defendant’s intentions has become malafide and the defendant
did not want to vacate the basement, the back side of the ground
floor and mezzanine, as shown in red colour in the site plan, the
plaintiff was left with no other alternative, but to issue a notice
dated 25.06.2018 through Shri Praveen Suri, Advocate, sent
through speed post AD and the defendant has received the same
on the address of the property in question as well as the
residential address, but has neither replied nor complied with the
notice, therefore, the plaintiffs left with no other alternative than
to file the present suit.
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It is further submitted that though, after the expiry of the
notice, the defendant threatened the plaintiffs to create a third-
part interest in the portions shown in red colour, consisting of
basement, back side of ground floor and mezzanine floor or to
part with the same in order to create multiplicity of
proceedings/litigation. It is submitted that a period of 3 days
provided in the notice already stands expired and the defendant
has to make the payment at the market rate of rent of the portions
which are in his possession, which is not less than Rs. 90,000/-
per month and a sum of Rs. 30,000/- has become due on account
of damages/mesne profits till the date of filing of the present suit.
The defendant is also liable to make the payment of
damages/mesne profits at the rate of Rs. 3,000/- per day to the
plaintiffs, both pendente lite and future or any amount which this
Court may determine after holding an inquiry under Order 20
Rule 12 CPC. Hence, the present suit is filed by the plaintiff
seeking following reliefs:
(a) a decree of permanent and prohibitory injunction be passed
whereby the whereby the defendant, its agents, servants,
employees, nominees, associates etc, are restrained from
creating any third-party interest or parting with the
possession of the portions shown within red colour in the
site plan consisting of basement, back side of the ground
floor and mezzanine floor of property bearing no. 1555,
Tula Nagar, Kotla Mubarakpur, New Delhi: 110003;
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(b) further, a decree of mandatory injunction be passed whereby
the defendant be directed to remove his articles from the
portion shown in red colour in the site plan consisting of
basement, back side of the ground floor and mezzanine floor
of property bearing no. 1555, Tula Nagar, Kotla
Mubarakpur, New Delhi: 110003 within a reasonable time;
(c) further, a decree be passed against the defendant to make
the payment at the market rate, of rent of the portions which
are in his possession, which is not less than Rs. 90,000/- per
month and a sum of Rs.30,000/- has become due on account
of damages/mesne profits till the date of filing of the present
suit and the defendant is also liable to make the payment of
damages/mesne profits at the rate of Rs. 3,000/- per day to
the plaintiffs, both pendente-lite and future or any amount
which this Hon’ble Court may determine after holding an
inquiry under Order 20 Rule 12 CPC.
(d) Costs of the suit be also awarded in favour of the plaintiffs
and against the defendant;
(e) Pass any other order, relief(s) as may be deemed fit and
proper in view of the above facts and circumstances may
also be passed in favour of the plaintiffs and against the
defendant.
DEFENDANT’S VERSION
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3. The defendant appeared before the court pursuant to
service of summons. Thereafter, written statement was filed on
behalf of the defendant wherein the defendant denies all
allegations made by the plaintiff, contesting the suit. It is further
stated that the present suit is without any cause of action. In any
event, as the present suit knowing-fully well, filed by the
plaintiffs, without any reason and basis, but only to harass the
defendant without any cause and reason, therefore, the same is
liable to be dismissed under the provisions of Order VII Rule 11
read with section 151 C.P.C., 1908. It is further submitted that the
suit of the plaintiffs is not maintainable and in view of the facts
that the plaintiffs have not properly valued the present suit as per
the suit valuation Act and no proper fees has been paid. It is
submitted, value of the property in question is more than the
pecuniary jurisdiction of this Court, therefore, this Court has no
jurisdiction to try the present suit and the suit of the plaintiffs is
liable to be rejected under Order VII Rule 11 CPC. The present
suit has been filed by the plaintiffs only to harass with an ulterior
motive of grabbing the money from the defendant.
3.1. It is further submitted that the plaintiffs have very much
knowledge of the contents as stated in para No.26 (wrongly
mentioned) of the “Collaboration Agreement”, in which it is very
clearly agreed by them with the defendant “That in case of any
dispute or difference regarding interpretation of the document,
right, disputes and liabilities, obligation etc., the same shall be
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referred to the Arbitrator as per the Arbitration Law and the
award of the Arbitrator(s) so appointed shall be final and binding
upon the parties hereto” and as such the present suit of the
plaintiffs is liable to be rejected with cost. It is further submitted
that this suit of the plaintiff is very much time barred. The
plaintiffs just to bring their time barred suit, which is to be filed
within in the period of limitation of 3 years before this Court,
have concocted a false story of having any false arrangement of a
period of 10 years, as alleged, in para no. 6 of the suit, as such
the suit and is liable to be dismissed with heavy cost only on this
ground.
3.2. It is vehemently denied by the defendant that the defendant
did not complete the construction and handed over the possession
of the 1st, 2nd and 3rd floor and part of the ground floor
consisting with the shops to the plaintiffs no. 1, 2 and Late
Chetan Singh Saini as per the collaboration agreement, as
alleged. It is also vehemently denied that the portions, as alleged,
in para no. 3 of the plaint were handed over to the plaintiffs in
starting year, 2005 and in fact, the entire portions with complete
fittings etc., in good condition were handed over to the plaintiffs
within 12 months as agreed in the collaboration agreement. It is
also submitted that the plaintiffs by creating wrongful fighting,
not only stopped the construction work from time to time, but
also got extra construction of the mezzanine floor and ground
floor in their portion, which was not agreed in the collaboration
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agreement, which has been shown clearly in yellow colour in the
site plan filed with the written statement. In fact, the plaintiffs
have shown the correct portion in their site plan, which was
agreed in the collaboration agreement but on the spot, they got
constructed more/excess area in their portion, which is clearly
shown in the site plan filed with this written statement.
3.3. It is vehemently denied by defendant that the plaintiffs got
the possession of the properties in questions in starting year of
2005, without wooden work and further denied that 9 months to
1 year was taken by plaintiff for completing any work as alleged
by them and they could not use the properties in question as
alleged by plaintiffs. It is submitted that the defendant had
handed over the entire portions of the properties in question as
mentioned in the collaboration agreement within the period as
mentioned in the collaboration agreement and all the plaintiffs
are living with their family there and using the properties in
question from the period as stated above.
3.4. It is vehemently denied by defendant that the plaintiffs
have ever contacted the defendant in the middle of the January,
2006, as alleged, to get the sale deed executed in favour of the
defendant and for making the payment of around 20 lakhs, as
alleged. It is also vehemently denied that the plaintiffs have ever
spent any money on the property in question and also have paid
any rent at any point of time. It is also denied that the plaintiffs
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could not reside on 1st, 2nd and 3rd floor for any reason as
alleged.
3.5. It is vehemently denied by defendant that any arrangement
was ever made between the defendant and plaintiffs at any point
of time on the ground of defendant not having money. It is
submitted that the question of having any type of false
arrangement of using basement, part of the ground and
mezzanine floor for a period of 10 years and more by the
defendant, does not arise, when plaintiffs have never contacted
the defendant for any purpose. It is submitted that in
collaboration agreement there is no mezzanine floor as alleged,
which was also forcedly got constructed by the plaintiff in their
portion having with excess portion of the property. Hence, in fact
the plaintiffs have falsely concocted the story of 10 years just to
bring their suit within the period of limitation of filing, as the suit
of the plaintiff is very much time barred. It is also vehemently
denied that the plaintiffs have ever spent any money on the
properties in question as alleged at any point of time. It is further
denied that the plaintiffs have ever contacted the defendant in the
end of the December, 2017 for any purpose and the defendant has
ever assured to vacate the property and has taken time, for any
purpose and for any period as alleged.
3.6. It is further submitted that the question of vacating
basement, back side of ground floor and mezzanine as shown in
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red colour in site plan, by the defendant does not arise, as the
defendant is having peaceful possession of the same, being the
lawful owner for more than 10 years and no one, including any of
the plaintiffs, has created any hindrance at any point of time
during this time. It is submitted that the site plans filed with the
suit are wrong and incorrect and the defendant is filing correct
site plan herewith the written statement. Further, the defendant
has not received any legal notice as alleged and no notice was
ever received at his shop or his residence at any point of time.
3.7. It is further submitted that defendant does not have any
intention to create third party interest in the property in question.
Moreover, the plaintiffs have clearly agreed in the collaboration
agreement that the defendant has every right to dispose of the
properties in question and plaintiffs have no right to ask. It is
further denied by defendant that the defendant has to pay any
amount as alleged for having the possession of the properties in
question and also any amount for damages and mesne profit for
any period as alleged by plaintiffs. It is further denied that the
plaintiffs are entitled for any decree of mandatory injunction and
the defendant can be directed to remove his articles from any
portion of the properties in question as alleged, as shown in site
plan as alleged. It is submitted that the defendant is having
peaceful possession of the property being lawful owner of the
same for more than last 10 years without any kind of hindrance
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of any one including plaintiffs at any point of time. It is prayed
that suit of the plaintiffs may be dismissed.
4. In the replication, the plaintiffs have denied all the
averments made in the written statement and reiterated those
made in the plaint.
5. On the basis of pleadings of the parties, the following
issues were framed vide order dated 06.04.2022: –
(i) Whether the suit of plaintiff has not valued the suit
properly for the purpose of jurisdiction and Court fee?
OPD.
(ii) Whether the suit of the plaintiff is barred by Section 8
of Arbitration and Conciliation Act? OPD.
(iii) Whether the suit of the plaintiff is barred by
limitation? OPD.
(iv) Whether the defendant has not completed the
construction of the property as per the agreed term of the
collaboration agreement dated 27.07.1999? OPP.
(v) Whether the plaintiff is entitled for permanent
injunction directing the defendants to be restrained from
creating any third-party interest in the back side of the
ground floor and mezzanine floor of property bearing
no.1555, Tula Nagar, Kotla Mubarakpur, New Delhi-
110003? OPP.
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(vi) Whether the plaintiff is entitled for decree of
mandatory injunction directing the defendant to remove his
articles from property bearing no.1555, Tula Nagar, Kotla
Mubarakpur, New Delhi-110003? OPP.
(vii) Whether the plaintiff is entitled for recovery of
damages @ 3,000/- per day from the defendant? OPP.
(viii) Relief.
PLAINTIFF’S EVIDENCE
6. The plaintiffs have examined two witnesses. Mr. Vipin
Saini was examined as PW-1 and tendered his evidence by way
of affidavit Ex.PW1/A and relied upon the following documents:
(i) Copy of Revenue record showing the ownership is
exhibited is Ex. PW-1/1(OSR).
(ii) Copy of Collaboration agreement dated 27.07.1999 running
from page no. 23-35 is Marked as Mark B (the signatures
at point “A” “B”, “C” and “D” at each page of the copy of
collaboration agreement has been mentioned as Ex PW-1/3
in the evidence affidavit and the same be read as part of
Mark B).
(iii) Copy of electricity bill in the name of Sh. Raj Kumar is
exhibited as Ex. PW-1/4 (OSR).
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(iv) Copy of electricity bill in the name of Sh. Ved Prakash is
exhibited as Ex. PW-1/5(OSR).
(v) Copy of electricity bill in the name of Late Sh. Chetan
Singh is exhibited as Ex. PW-1/6 (OSR).
(vi) Copy of Delhi Jal Board bill in the name of Smt. Kamlesh
w/o Late Sh. Chetan Singh is Marked as Mark “A” (Copy
of Delhi Jal Board has been mentioned as Ex. PW-1/7 in
the evidence affidavit and the same be read as Mark A).
(vii) Copy of Delhi Jal Board bill in the name of Sh. Raj Kumar
is exhibited as Ex. PW-1/8(OSR).
(viii) Copy of Aadhar Card of Sh. Ved Prakash Saini, Sh. Raj
Kumar Saini, Smt. Kamlesh Saini, Sh. Vipin Kumar Saini
and Sh. Anish Saini is exhibited as Ex. PW-1/9 (colly)
(OSR).
(ix) Copy of Death certificate of Late Sh. Kalu Ram Saini is
exhibited as Ex. PW-1/10 (OSR).
(x) Copy of Death certificate of Late Sh. Dhoom Singh Saini is
exhibited as Ex. PW-1/11(OSR).
(xi) Copy of Death certificate of Late Sh. Chetan Singh is
exhibited as Ex. PW-1/12(OSR).
(xii) Site plan showing possession of defendant in red colour is
exhibited as Ex. PW-1/13.
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(xiii) Site plan showing first floor, second floor and third floor in
possession of plaintiffs is exhibited as Ex PW-1/14.
(xiv) Legal Notice dated 25.06.2018 issued by Sh. Praveen Suri,
Advocate along with postal receipts and Registered A.D is
exhibited as Ex PW-1/15(colly).
7. Mr. Anish Saini was examined as PW-2 and relied the
documents which were already exhibited and marked by PW-1.
Both the witnesses were duly cross-examined by Mr. Ankit
Gupta, Ld. Counsel for the defendant. Thereafter, plaintiff’s
evidence was closed vide order dated 15.07.2025.
DEFENDANT’S EVIDENCE
8. The defendant examined himself as DW-1. He was duly
cross-examined by Mr. Praveen Suri, Ld. Counsel for the
plaintiffs. Thereafter DE was closed on 21.11.2025 and the
matter was put up for final arguments. After hearing the final
arguments, matter was fixed for judgment.
FINDINGS
9. I have heard the arguments advanced by Ld. Counsels for
the parties and carefully perused the record. My issue-wise
findings are as under: –
Issue Nos. 4, 5, 7 & 7 shall be taken together and decided
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appreciation of evidence is required to decide these issues: –
ISSUE NO. 4, 5, 6 & 7
(iv) Whether the defendant has not completed the
construction of the property as per the agreed term of the
collaboration agreement dated 27.07.1999? OPP.
(v) Whether the plaintiff is entitled for permanent
injunction directing the defendants to be restrained from
creating any third-party interest in the back side of the
ground floor and mezzanine floor of property bearing
no. 1555, Tula Nagar, Kotla Mubarakpur, New Delhi-
110003? OPP.
(vi) Whether the plaintiff is entitled for decree of
mandatory injunction directing the defendant to remove his
articles from property bearing no. 1555, Tula Nagar, Kotla
Mubarakpur, New Delhi-110003? OPP.
(vii) Whether the plaintiff is entitled for recovery of
damages @ 3,000/- per day from the defendant? OPP.
10. The burden of proving the issue no. 4, 5, 6 and 7 lies upon
the plaintiff. It is the case of plaintiff that plaintiff no.1, 2 and
Late Sh. Chetan Singh Saini (husband of plaintiff no. 3 and
father of plaintiff no. 4 and 5) entered into collaboration
agreement with defendant on 27.07.1999, for construction of the
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property no. 1555, Tula Nagar, Kotla Mubarakpur, New Delhi
and as per collaboration agreement, plaintiffs will hand over the
peaceful and vacant physical possession of the aforesaid
property to the defendant, who is a builder, and defendant had to
build basement, ground floor, first floor, second floor and third
floor, within 12 months from the date of handing over the
possession of the property and the property shall be developed
by the defendant by his own funds and resources. It is submitted
by the plaintiffs that the defendant did not properly complete the
construction within time and handed over the possession of first,
second and third floor to plaintiffs and defendant also handed
over the possession of part of ground floor consisting of three
shops. Further, the remaining portion of ground floor, basement
and mezzanine floor (herein after suit property) was taken by the
defendant as per the collaboration agreement. It is the case of
plaintiffs that the plaintiffs after taking the possession of first,
second and third floor in the starting of 2005, found that in the
property, proper finishing work was not done and property was
not inhabitable, hence it took further nine months to one year to
complete finishing work like wooden work, floorings, POP etc.
to make first, second and third floor habitable. Thereafter, in the
middle of January 2006, when plaintiffs contacted the defendant
to get the sale deed executed in favour of defendant and to make
the payment of Rs. 20 lacs which was spent for completion of
construction work as stated above, but since defendant did not
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have money to pay and therefore, an arrangement was made
between the plaintiffs and defendant that defendant will use the
basement, part of back side of ground floor and mezzanine floor,
i.e., suit property for around ten years so that the money spent on
construction by the defendant shall stands adjusted and
thereafter, the defendant will hand over the physical vacant
possession of the suit property to the plaintiff. It further
submitted that in the end of June 2016, the plaintiffs contacted
the defendant and were asked by defendant to extend the period
of one more year as the defendant was in some financial trouble
and was not in position to shift immediately therefore, the period
was extended up to end of December 2017, but again, the
defendant failed to vacate the suit property in December 2017,
therefore, the legal notice dated 25.06.2018 was sent to
defendant. Also, defendant threatened the plaintiffs to create
third party interest in the suit property in order to create
multiplicity of proceedings. Therefore, the present suit has been
filed.
Per Contra, it is the case of defendant that defendant is in
possession of suit property as per terms of conditions of
collaboration agreement and not as licensee of the plaintiffs and
no such oral agreement as alleged by the plaintiffs was ever
executed between the parties. It is denied by the defendant that
the defendant did not complete the construction and handed over
the possession of property to the plaintiffs no. 1, 2 and Late
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Chetan Singh Saini as per the collaboration agreement, as alleged
and also denied that the portions, as alleged by plaintiffs, were
handed over to the plaintiffs in 2005 and has stated that the entire
portions with complete fittings etc., in good condition were
handed over to the plaintiffs within 12 months as agreed in the
collaboration agreement and all the plaintiffs are living with their
family there and using the properties in question from the period
as stated above. It is denied by defendant that any arrangement
regarding use of suit property by defendants for 10 years as
alleged, was ever made between the defendant and plaintiffs at
any point of time, as plaintiffs have never contacted the
defendant for any purpose. Hence, it is the case of the defendant
that question of vacating basement, back side of ground floor and
mezzanine as shown in red colour in site plan, by the defendant
does not arise, as the defendant is having peaceful possession of
the suit property, being the lawful owner for more than 10 years
and no one, including any of the plaintiffs, has created any
hindrance at any point of time during this time. Apart from it, it is
also the case of defendant that the present suit is barred by
limitation and the plaintiffs have concocted a false story of oral
agreement to bring their suit within the period of limitation.
Further, the defendant has taken another defence that the present
suit is barred by Section 8 of Arbitration and Conciliation Act.
11. In this case, plaintiff has filed the present suit for
mandatory injunction that defendant may be directed to hand
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over the possession of suit property to plaintiffs and to remove
his articles kept at suit property, inter alia stating that defendant is
a licensee in the suit property. It is admitted fact in the present
case, that both the parties rely upon the collaboration agreement
dated 27.07.1999, which is Mark-B, which is an un-registered
document and none of the parties have filed the original
collaboration agreement. However, both the parties have
admitted the existence of collaboration agreement. Perusal of the
Collaboration Agreement shows that the plaintiffs are the
admitted owner of the complete building including the suit
property and defendant is a builder and vide the said
collaboration agreement, the plaintiffs have handed over the
peaceful and vacant possession of the aforesaid property for
carrying out the construction after demolishing the existing
structure, within 12 months from the date of handing over the
vacant and peaceful possession of the said property and
defendant had to construct the said property comprising of
basement floor, ground floor, first floor, second floor and third
party with his own resources and plaintiffs shall not spend any
amount on the construction of the building. As per said
agreement, plaintiffs have also agreed to deliver the ownership
with transfer rights of the basement floor and ground floor as
shown red in the site plan along with common passage and
defendant has agreed to pay a sum of Rs. 3 Lakhs to the
plaintiffs. It is also mentioned in the said agreement that after the
Page No. 21 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
construction of the building and handing over the share of
plaintiffs, the plaintiffs shall execute proper sale/ conveyance
deed in favour of defendant or in favour of any third party/
prospective buyer of the share of defendant in the building as
desired by the defendant. Thereafter, the specification of the
exact construction which was to be done by the defendant is also
mentioned in the collaboration agreement. It is also admitted in
the present case that no sale deed has been executed in favour of
defendant or any prospective buyer as desired by defendant. It is
also admitted that Rs. 3 Lakhs consideration amount which is
mentioned in the collaboration agreement has also been received
by family of plaintiffs. It is also admitted that at present, the
possession of the suit property is with the defendant.
In this case, plaintiffs have examined PW-1, Vipin
Saini, who is the son of Late Sh. Chetan Singh Saini, who is one
of the owners of property in question. PW-1 has admitted in his
cross-examination that family members of PW-1 had received
Rs.3 Lakhs as consideration amount as mentioned in the
collaboration agreement. PW-1 has further admitted in his cross-
examination that his father and his uncle i.e. the other plaintiffs
came into the agreement with defendant as they were unable to
construct the said property as they were in crunch of money.
PW-1 has also admitted that plaintiffs are residing on first,
second and third floor of the said property. PW-1 has further
admitted that possession was handed over to defendant after the
Page No. 22 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
collaboration agreement for construction and possession was
handed over around in the month of August, 1999. Although, the
date of handing over the property to defendant is not mentioned
in the collaboration agreement. Now, it is the case of plaintiffs
that when defendant has handed over the property in question
after construction in the year 2005, it was found that the work as
per collaboration agreement was not done and there were many
deficiencies in the construction quality and the building was not
inhabitable. Thereafter, as per version of plaintiffs, plaintiffs
completed the deficient work in the building in 9 months to 1
year and they contacted the defendant for execution of sale deed,
but due to financial inability of defendant, an oral agreement was
reached out between the parties that defendant will retain the
ground floor and the basement floor for 10 years as licensee in
lieu of amount invested in construction and after 10 years, will
hand over the suit property to the plaintiffs, thereafter no rights
will remain with defendant qua the suit property.
But there is nothing on record, filed by plaintiffs, to
substantiate the said contentions. Plaintiffs have merely filed the
revenue record of the property in favour of predecessor-in-
interest Dhoom Singh, collaboration agreement, copy of
electricity Bills and water bills etc., to show that they are in the
possession of the property in question in their share. The
documents filed by the plaintiffs in their favour does not come to
the aid of the plaintiffs. It is also the contention of plaintiffs that
Page No. 23 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
property was not well constructed and plaintiffs have spent
around 20 lakhs to properly finish the construction. However, no
documents or any photographs have been filed by plaintiff to
show that wooden work, floorings, POP etc., were not completed
by the defendant. Plaintiffs could have easily filed the
photographs showing that defendant did not properly complete
the construction of the building. Also, plaintiffs have not issued
any written communication or notice to the defendant regarding
the same. Plaintiffs have also not filed anything to show that they
have undertaken construction of unfinished portions in the
building on their own. Plaintiffs have also not filed any document
to prove the amount of Rs. 20 Lakhs is incurred by plaintiffs in
the construction of the building. Also, no rent receipts have been
filed by the plaintiffs to show that they have incurred money
while living on rent when the property was not properly
constructed. Also, the fact of spending Rs. 20 lakhs does not
seem compatible with the stand of plaintiffs, that since they did
not have the financial capacity to construct the building, that is
why they approached the defendant to construct the building.
Coming to the cross-examination of PW-2, who is
also son of Late Sh. Chetan Singh, it is also admitted by PW-2
that no photographs have been filed by plaintiffs qua the work
not done by the defendant. PW-2 has also admitted that defendant
has given Rs.3 Lakhs as agreed in collaboration agreement and
after the construction of property, basement and certain portion of
Page No. 24 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
ground floor of the property was handed over to defendant as per
agreed terms. Also, it is admitted that defendant had bear all the
expenses in developing the property in question. PW-2 in his
cross-examination has further admitted that after taking the
peaceful possession from the defendant and realizing that
construction is not proper, no complaint has been made in this
regard. PW-2 has also admitted that no such written agreement
was executed with respect to handing over the possession of suit
property in 2005-2006, as it was a verbal agreement. Also, it is
admitted by the PW-1 that no document has been filed by the
plaintiffs to prove the contention that defendant is liable to pay
Rs. 90,000/- as market rent for the portion for which defendant is
in possession, and a sum of Rs.30,000/- on account of
damages/mesne profits till the date of filing of the present suit
payment of damages/mesne profits at the rate of Rs. 3,000/- per
day to the plaintiffs. It is stated by PW-1 that same has been
demanded on assumptions considering the market rate of the
rent. It is also admitted position that defendant is not the tenant of
plaintiffs and no tenancy agreement was executed between
parties.
Coming to the cross examination of DW-1, nothing
favourable has been elicited out of defendant and defendant has
denied all the suggestions given by counsel of plaintiffs
regarding the case of plaintiffs that defendant has not properly
constructed the suit property and has handed over the possession
Page No. 25 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
in year 20025 and that there was any oral agreement of
defendant occupying the suit property for 10 years as licensee.
Although defendant has also filed any document to prove that he
has approached the plaintiffs for execution of sale deed in his
favour as per collaboration agreement, and he has deposed that
he has not filed any bills etc to show that he has spent approx.
Rs. 24- 26 lacs for the construction of the property. But it is not
in dispute in this case that defendant has constructed the property
in question and onus to prove its case lies on plaintiff and
plaintiff can not rely on the weakness of the case of defendant.
Hence, plaintiffs have failed to prove its contentions
that defendant has not properly constructed the property in
question or that an oral arrangement was reached between parties
regarding the license of 10 years. Even otherwise, a written
agreement cannot be changed or modified by oral agreement and
there is no written agreement to show that terms of collaboration
agreement were changed and rights of defendant was modified as
a licensee. Section 92 of Indian Evidence Act, subject to the
exceptions, provides that when a party seeks to rely upon the
document embodying the terms of the transaction, in that event,
the nature and intent of the transaction must be gathered from the
terms of the document itself and no evidence of any oral
agreement or statement can be admitted as between the parties to
such document for the purpose of contradicting or modifying its
terms. Section 92 of Indian Evidence Act, complements Section
Page No. 26 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
91 by stipulating that once a contract, grant, or disposition has
been established through writing, oral evidence cannot be
admitted to contradict or modify its terms. The handing over the
possession of suit property to defendant as per collaboration
agreement, which is accepted by plaintiffs, is one of the core
terms and stipulations of the collaboration agreement, which
cannot be varied only on the basis of oral arrangement.
However, in this case, there is not even the oral evidence to
support the contention of varying the terms of collaboration
agreement as PW-1, Vipin Saini and PW-2, Anish Saini who have
deposed in the favour of plaintiffs are not the signatory of the
collaboration agreement as they sons of late Sh. Chetan Saini and
Plaintiff no. 1 Ved Prakash Saini, who is the signatory of the
collaboration agreement has not come to depose before the court.
Therefore, plaintiff has failed to prove that
defendant has not completed the construction of property as per
agreed terms of collaboration agreement and plaintiffs have
further failed to prove that defendant has handed over the
property in the year 2005 to plaintiffs and also the fact that
property was not properly constructed and there were
deficiencies in the construction of the property. Further, plaintiffs
have also failed to prove the fact that a verbal agreement was
made between parties that defendant will use the suit property for
10 years and thereafter, defendant will not have any rights in the
Page No. 27 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
suit property, i.e., defendant is a licensee in the suit property as
claimed by plaintiff.
12. Now, it is the position in the present case that the
defendant is in the possession of the property in question since
August 1999 which was handed over by plaintiffs to defendant
for construction and redevelopment of the property and after the
construction of property, the portion which lies in the share of
plaintiffs were handed over to the plaintiffs and the basement and
ground floor of the property was retained by defendant. Now, it
has to be examined what is the nature of right in favour of the
defendant and whether any rights or interest have accrued to
defendant, in background of the conclusion arrived that plaintiff
have been unable to prove their contention regarding the
defendant being their licensee.
It is not res-integra that the title in the property
cannot be transferred by way of Agreement to Sell. As per Sec.
54 of Transfer of Property Act (TPA), a contract of sale i.e. an
agreement to Sell does not of itself, create any interest in or
charge on such property and a transfer of immovable property by
way of sale can only be by a Deed of Conveyance (Sale Deed).
In the absence of a Sale Deed, duly stamped and registered as
required by law, no right, title or interest in an immovable
property can be transferred. Hon’ble Apex Court in Suraj Lamp
and Industries Pvt. Ltd. v. State of Haryana (2012) 1 SCC 656, in
considering the scope of an agreement to sell has observed that:
Page No. 28 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
“18. It is thus clear that a transfer of immovable
property by way of sale can only be by a deed of
conveyance (sale deed). In the absence of a deed
of conveyance (duly stamped and registered as
required by law), no right, title, or interest in an
immovable property can be transferred.
19. Any contract of sale (agreement to sell) which
is not a registered deed of conveyance (deed of
sale) would fall short of the requirements of
Sections 54 and 55 of the T.P. Act and will not
confer any title nor transfer any interest in an
immovable property (except to the limited right
granted under Section 53-A of the T.P. Act).
According to the T.P. Act, an agreement of sale,
whether with possession or without possession, is
not a conveyance. Section 54 of the T.P. Act
enacts that sale of immovable property can be
made only by a registered instrument and an
agreement of sale does not create any interest or
charge on its subject-matter.”
Hence, as per Suraj Lamps Judgment (Supra), only
in the case of law of part performance as provided in Section 53-
A of TP Act, the party claiming rights and protection of
possession on the basis of agreement to sell can be considered
subject to conditions mentioned therein. Section 53 A of the TP
Act defines “part performance” thus:
“Section 53-A Part Performance: Where any
person contracts to transfer for consideration any
immovable property by writing signed by him orPage No. 29 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Sainion his behalf from which the terms necessary to
constitute the transfer can be ascertained with
reasonable certainty;
and the transferee has, in part performance of the
contract, taken possession of the property or any
part thereof, or the transferee, being already in
possession, continues in possession in part
performance of the contract and had done some
act in furtherance of the contract;
and the transferee has performed or is willing to
perform his part of the contract;
then, notwithstanding that where there is an
instrument of transfer, that the transfer has not
been completed in the manner prescribed therefor
by the law for the time being in force, the
transferor or any person claiming under him shall
be debarred from enforcing against the transferee
and persons claiming under him any right in
respect of the property of which the transferee has
taken or continued in possession, other than a
right expressly provided by the terms of the
contract:
Provided that nothing in this section shall affect
the rights of a transferee for consideration who
has no notice of the contract or of the part
performance thereof.”
Hence, by the combined reading of the provisions, it
Page No. 30 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
is clear that as per Sec. 53-A of TPA, it is the doctrine of part
performance that the possession of a party (defendant herein) is
protected, in case any person contracts to transfer for
consideration, any immovable property by writing signed by him
and the transferee, has in part performance of the contract has
taken possession of the property, then despite the fact that the
sale deed has not been executed, the possession of transferee has
to be protected. But the only condition which is required to be
fulfilled in this case is that the Agreement to Sell should be
registered. By the amendment of 2001 in TPA, the words “the
Contract though required to be registered, has not been registered
or” have been omitted from the provision. The effect of the
amendment is that now if any person takes possession in
pursuance to a contract which is required to be registered but has
not been registered, the transferee has no right to remain in
possession of the property.
But, in this regard, reference may be made to the
unamended Section 53-A of Transfer of Property Act, prior to
the amendment of the year 2001, since in the present case,
Collaboration Agreement in favour of defendant is of the year
1999, i.e., prior to the Amendment and since the Registration and
Other Related Laws (Amendment) Act, 2001, which introduced
the requirement of the registration of documents for the purposes
of Section 53-A, is prospective in nature, and came into force
with effect from 24th September, 2001. Since the Collaboration
Page No. 31 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
Agreement in favour of the defendant is of the year 1999, the
requirement of registration would not apply to it. Hon’ble High
Court of Delhi in Gurmeet Kaur Versus Harbhajan Singh and
Another, 2017 SCC On Line Del 12863, has held that:
“9. It is an undisputed fact that the appellant/plaintiff
proved the documents being the agreement to sell,
general power of attorney and the receipt as Ex. P.W. ½
to Ex. P.W. ¼. These documents have been executed
prior to amendment of section 53-A of the Transfer of
Property Act, 1882 by Act 48 of 2001 and which came
into effect from 24.9.2001. These documents therefore
need not have been stamped or registered so as to
create rights in terms of doctrine of part performance
under the then existing section 53-A of the Transfer of
Property Act. It is only by the subsequent amendment
of section 53-A of the Transfer of Property Act w.e.f.
24.9.2001, that an agreement to sell would not confer
any rights in terms of the doctrine of part performance
if such an agreement to sell is not registered. Since the
amendment is prospective in nature, therefore, the
documents executed prior to 24.9.2001 being the
documents Ex. P.W. ½ to Ex. P.W. ¼ dated 19.4.1995
did not require registration and stamping. This aspect
has been dealt by this Court in detail in the judgment in
the case of Shri Ramesh Chand v. Suresh Chand, and in
which judgment this Court has referred to the judgment
of the Supreme Court in the case of Suraj Lamps and
Industries Pvt. Ltd. v. State of Haryana, and as per
which Supreme Court judgment agreements to sell,
general power of attorneys and Wills which are validlyPage No. 32 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Sainiexecuted are protected and such documents will have
rights flowing under the same in terms of section 53-A
of the Transfer of Property Act, section 202 of the
Indian Contract Act and the relevant provisions of the
Indian Succession Act pertaining to devolution of
properties by a Will i.e., only such documents executed
post 24.9.2001 will not have validity if they are not
stamped and registered.”
Now coming to the facts, in the present case,
plaintiffs have failed to prove that defendant has not completed
the construction of property as per agreed terms of collaboration
agreement or that property was not properly constructed and
there were deficiencies in the construction of the property. It is
also admitted that defendant has also paid the amount of Rs. 3
lakhs to the family of plaintiffs. It is also not in dispute that vide
the present collaboration agreement, plaintiffs have created the
rights in favour of defendant qua the suit property. The present
collaboration agreement is not the kind of collaboration
agreement, by which only defendant/builder has to construct the
property and return the same to the owner, but in the present
collaboration agreement, transferor/plaintiffs have contracted to
transfer for consideration (Rs. 3 lakhs and the cost of
construction of the property incurred by the defendant),
immovable property (suit property) by writing signed by
plaintiffs and the transferee/defendant, has in part performance
of the contract has taken possession of the suit property.
Page No. 33 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
At this stage, it would be apposite to refer to the
judgment passed in the case of Hon’ble Supreme Court of India
in Ghanshyam Versus Yogendra Rathi (2023) 7 SCC 361:
“9. No doubt, agreement to sell is not a document
of title or a deed of transfer of property by sale and
as such, may not confer absolute title upon the
plaintiff-respondent over the suit property in view of
Section 54 of the Transfer of Property Act, 1882,
nonetheless, the agreement to sell, the payment of
entire sale consideration as mentioned in the
agreement itself and corroborated by the receipt of
its payment and the fact that the plaintiff-respondent
was put in possession of the suit property in
accordance with law as is also established by the
possession memo on record, goes to prove that the
plaintiff-respondent is de-facto having possessory
rights over the suit property in part performance of
the agreement to sell. This possessory right of the
plaintiff-respondent is not liable to be disturbed by
the transferer, i.e., the defendant-appellant……
15. Legally an agreement to sell may not be regarded
as a transaction of sale or a document transferring
the proprietary rights in an immovable property but
the prospective purchaser having performed his part
of the contract and lawfully in possession acquires
possessory title which is liable to be protected in
view of Section 53A of the Transfer of Property Act,
1882. The said possessory rights of the prospective
purchaser cannot be invaded by the transferer or any
person claiming under him.”
Page No. 34 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
Therefore, defendant has done his part of the
contract and is entitled to the protection of his possession by the
law of part performance, having acquired de-facto possessory
right.
13. In this case, the counsel for plaintiff has argued that a
mere suit for Mandatory Injunction is maintainable in the facts
and circumstances of the case without seeking for the possession
of the property, because defendant is residing in the suit property
as a licensee. Plaintiff has relied upon the judgment of Hon’ble
Supreme Court in Sant Lal Jain v. Avtar Singh, (1985) 2 SCC
332, where it has been held that:
“6. ….In Milkha Singh v. Diana, it has been observed
that the principle once a licensee always a licensee
would apply to all kinds of licenses and that it cannot
be said that the moment the license it terminated, the
licensee’s possession becomes that of a trespasser. In
that case, one of us (Murtaza Fazal Ali, J. as he then
was) speaking for the Division Bench has observed:
After the termination of license, the licensee
is under a clear obligation to surrender his
possession to the owner and if he fails to do
so, we do not see any reason why the
licensee cannot be compelled to discharge
this obligation by way of a mandatory
injunction under s. 55 of the Specific Relief
Act. We might further mention that even
under English law a suit for injunction to
evict a licensee has always been held to be
maintainable.”
Page No. 35 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
However, it has also been held that, where a licensor
approaches the court for an injunction within a reasonable time
after the license has terminated, then, the court shall be obliged to
grant him injunction, however, if the licensor causes huge delay,
then, the court may refuse to exercise its discretion apropos the
grant of injunction on the ground that, the licensor has not been
diligent and thus, in that case the licensor will have to institute a
suit for possession which in fact will be governed by Section 7(v)
of the Court Fees Act, 1870.
On the other hand, it is argued on behalf of the defendant
has placed strong reliance on the decision of Hon’ble Supreme
Court in Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs
and Others, (2008) 4 SCC 594, to contend that where there is a
serious cloud over both the title and possession of the disputed
property claimed, then a suit for injunction simpliciter is not
maintainable. Hon’ble Supreme Court, while relying upon
Anathula Sudhakar (Supra) has held in Sanjay Paliwal and
Another Vs. Bharat Heavy Electricals Ltd. Through its executive
director, 2026 INSC 61:
“20. The legal position governing cases where there exists
a cloud over both title and possession of immovable
property is well settled. In Anathula Sudhakar v. P. Buchi
Reddy (supra), as rightly relied upon by learned counsel
appearing for the defendants, this Court has authoritatively
delineated the circumstances in which a suit for injunction
simpliciter would or would not be maintainable. This
Court, after an exhaustive survey of the law, held as under:
Page No. 36 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
“13. The general principles as to when a mere suit
for permanent injunction will lie, and when it is
necessary to file a suit for declaration and/or
possession with injunction as a consequential relief,
are well settled.
We may refer to them briefly.
13.1. Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit for
an injunction simpliciter will lie. A person has a
right to protect his possession against any person
who does not prove a better title by seeking a
prohibitory injunction. But a person in wrongful
possession is not entitled to an injunction against
the rightful owner.
13.2. Where the title of the plaintiff is not disputed,
but he is not in possession, his remedy is to file a
suit for possession and seek in addition, if
necessary, an injunction. A person out of
possession, cannot seek the relief of injunction
simpliciter, without claiming the relief of
possession.
13.3. Where the plaintiff is in possession, but his
title to the property is in dispute, or under a cloud,
or where the defendant asserts title thereto and there
is also a threat of dispossession from defendant, the
plaintiff will have to sue for declaration of title and
the consequential relief of injunction. Where the
title of plaintiff is under a cloud or in dispute and he
is not in possession or not able to establish
possession, necessarily the plaintiff will have to file
a suit for declaration, possession and injunction.
14………………………
15. In a suit for permanent injunction to restrain the
defendant from interfering with plaintiff’s
possession, the plaintiff will have to establish that
as on the date of the suit he was in lawful
possession of the suit property and defendant triedPage No. 37 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Sainito interfere or disturb such lawful possession.
Where the property is a building or building with
appurtenant land, there may not be much difficulty
in establishing possession. The plaintiff may prove
physical or lawful possession, either of himself or
by him through his family members or agents or
lessees/licensees. Even in respect of a land without
structures, as for example an agricultural land,
possession may be established with reference to the
actual use and cultivation. The question of title is
not in issue in such a suit, though it may arise
incidentally or collaterally.
16. But what if the property is a vacant site, which
is not physically possessed, used or enjoyed? In
such cases the principle is that possession follows
title. If two persons claim to be in possession of a
vacant site, one who is able to establish title thereto
will be considered to be in possession, as against
the person who is not able to establish title. This
means that even though a suit relating to a vacant
site is for a mere injunction and the issue is one of
possession, it will be necessary to examine and
determine the title as a prelude for deciding the de
jure possession. In such a situation, where the title
is clear and simple, the court may venture a
decision on the issue of title, so as to decide the
question of de jure possession even though the suit
is for a mere injunction. But where the issue of title
involves complicated or complex questions of fact
and law, or where court feels that parties had not
proceeded on the basis that title was at issue, the
court should not decide the issue of title in a suit for
injunction. The proper course is to relegate the
plaintiff to the remedy of a full-fledged suit for
declaration and consequential reliefs.”
21. The principles enunciated in Anathula Sudhakar
govern cases where there exists a dispute as to title and
rival claims of possession, whereas the decisions in Sant
Lal Jain and Joseph Severance apply to situations where
Page No. 38 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
the defendant is a terminated licensee or permissive
occupant, having no independent or competing right in the
property. In cases such as Sant Lal Jain and Joseph
Severance, there was no cloud over title or possession, or
where the defendant’s occupation flows from a licence or
permissive arrangement, a suit for mandatory injunction is
maintainable as the most efficacious remedy. Viewed thus,
there is no inconsistency between the aforesaid
judgments, each operating in its own distinct factual and
legal sphere.
22. In the present case, as noticed hereinabove, there
exists a serious dispute with regard to title, the question
that arose was whether the plaintiffs had derived a valid
and enforceable title from their predecessors-in-interest.
Even assuming, arguendo, that the plaintiffs possess a
valid title, the High Court has rightly held that where
there is a construction raised on the disputed property
alleged to be owned by the plaintiffs, the appropriate and
efficacious remedy available to them was to institute a
suit for possession along with a consequential relief of
injunction, and not a suit for injunction simpliciter.
23. Thus, upon applying the aforesaid principles, the High
Court has rightly held that the plaintiffs’ suit was barred
under Section 41(h) of the Specific Relief Act, 1963,
inasmuch as the plaintiffs failed to seek the relief of
possession despite the existence of a cloud over
possession of the disputed property. The suit for
injunction simpliciter was, therefore, not maintainable.
In the present case, plaintiff has not been able to prove its
contentions regarding defendant being a licensee, and as per
Page No. 39 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
admitted collaboration agreement, rights have been created in
favour of defendant and possession has been handed over to
defendant in pursuance of collaboration agreement and it is also
pertinent to note that the collaboration agreement is not the
simple collaboration agreement where defendant builder is only
authorized to make construction and then return back the
property to the original owner. As per discussion made above,
because of law of part performance, defendant has acquired de-
facto possessory right. Hence, applying the aforementioned
position of law, there is cloud over the title and possession of the
disputed property and issue of title involves complicated or
complex questions of fact and law, hence, simplicitor suit of
mandatory injunction is not maintainable and plaintiff should
have filed suit for possession. Hence, since plaintiffs have failed
to seek relief of possession despite the existence of cloud over
title and possession of the suit property, suit for mandatory
injunction is not maintainable under Section 41 (h) of Specific
Relief Act, 1963.
Hence, plaintiffs have failed to prove that plaintiffs
are entitled to relief of mandatory injunction of eviction of
defendant or for removal of articles of defendant from the suit
property. Since, defendant is entitled to protect his possession of
suit property as discussed above, hence plaintiffs are not entitled
to get the relief of permanent injunction also, in their favour.
Further, plaintiffs are not also entitled for relief of recovery of
Page No. 40 of 46
CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
damages @ 3,000/- per day from the defendant as plaintiffs have
failed to prove any right in their favour qua suit property.
In view of the abovementioned discussion, issue no.
4, 5, 6 & 7 are decided against the plaintiffs and in favour of the
defendant.
14. ISSUE NO. 1 & 3
Issue Nos. 1 & 3 shall be taken together and decided at the
same time as they are inter-connected and same appreciation of
evidence is required to decide these issues: –
(i) Whether the suit of plaintiff has not valued the suit
properly for the purpose of jurisdiction and Court
fee? OPD.
(iii) Whether the suit of the plaintiff is barred by
limitation? OPD.
As discussed above, it has been established that
plaintiffs ought to have filed the suit for possession and suit for
mandatory injunction for eviction of defendant on the premises
that defendant is a licensee, is not maintainable in view of the
law laid down in Anathula Sudhakar v. P. Buchi Reddy (Dead)
by LRs and Others, (2008) 4 SCC 594. The reliance of defendant
on the judgment of Sant Lal Jain v. Avtar Singh, (1985) 2 SCC
332 is misplaced and defendant is not a ‘licensee’ as per the said
judgment. In the present case, since plaintiffs have valued the
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suit at Rs. 200/-, for the relief of mandatory injunction for the
purpose of jurisdiction and court fees and requisite court fees has
been paid accordingly, the same valuation is not proper and
plaintiffs should have filed suit for possession and ought to have
valued the suit for the purpose of jurisdiction and court fees
according to the market value of suit property at the time of
filing of the suit, as per Section 7(v) of the Court Fees Act, 1870.
Hence, it is proved that suit of plaintiff has not valued the suit
properly, regarding the relief of possession, for the purpose of
jurisdiction and Court fees.
Now, coming to the question as to whether suit is
barred by limitation, as discussed above, plaintiffs ought to have
filed suit for possession on the basis of title, which is governed
by Article 65 of Limitation Act, 1963, which provides that period
of limitation of Suit for possession of immovable property or any
interest therein based on title is 12 years from the day ‘ when the
possession of the defendant becomes adverse to the plaintiff’.
Hence, Article 65 states that the starting point of limitation
commences from the date the defendant’s possession becomes
adverse. It is settled that possession, how long may be, cannot
become adverse, unless it is shown that it was peaceful,
uninterrupted with assertion of hostile title and for statutory
period of 12 years. Since, onus to prove this fact lies on
defendant, defendant has not led evidence on this aspect as to
when the possession of defendant has become adverse to the
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plaintiffs, as merely by proving the fact that defendant is in
possession of suit property since year 2000 or 2005, the adverse
possession cannot be proved, as long possession does not mean
the adverse possession. In this case, it is admitted that legal
notice 25-06-2018 has been sent by plaintiffs to the defendant,
and if the said date is considered relevant, the suit cannot be said
to be barred by limitation. Therefore, defendant has not been
able to prove that suit is barred by limitation.
In view of the abovementioned discussion, issue no.
1 is decided in favour of the defendant and against the plaintiffs
and issue no. 3 is decided in favour of the plaintiffs and against
the defendant.
15. ISSUE NO. 2
(ii) Whether the suit of the plaintiff is barred by Section 8
of Arbitration and Conciliation Act? OPD.
The onus to prove this issue lies on defendant. It has been
argued on behalf of defendant that as per clause 26 of
collaboration agreement, there is stipulation regarding the
referral to arbitration in case of dispute or differences regarding
interpretation of the documents, rights, duties, liabilities,
obligations, etc. hence, present suit is barred under Section 8 of
Arbitration and Conciliation Act, 1996 and the court has no
jurisdiction to try the present case.
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CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
Section 8 of the Arbitration and Conciliation Act, 1996
reads as under: –
“8. Power to refer parties to arbitration where there
is an arbitration agreement. –
(1) A judicial authority, before which an action is
brought in a matter which is the subject of an
arbitration agreement shall, if a party to the
arbitration agreement or any person claiming
through or under him, so applies not later than the
date of submitting his first statement on the
substance of the dispute, then, notwithstanding any
judgment, decree or order of the Supreme Court or
any Court, refer the parties to arbitration unless it
finds that prima facie no valid arbitration agreement
exists.
(2) The application referred to in sub-section (1)
shall not be entertained unless it is accompanied by
the original arbitration agreement or a duly certified
copy thereof.
Provided that where the original arbitration
agreement or a certified copy thereof is not available
with the party applying for reference to arbitration
under sub-section (1), and the said agreement or
certified copy is retained by the other party to that
agreement, then, the party so applying shall file such
application along with a copy of the arbitration
agreement and a petition praying the Court to call
upon the other party to produce the original
arbitration agreement or its duly certified copy
before that Court.
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CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
(3) Notwithstanding that an application has been
made under sub-section (1) and that the issue is
pending before the judicial authority, an arbitration
may be commenced or continued and an arbitral
award made.”
The present case can not to be said to be barred
under Section 8, as application under Section 8 of Arbitration
and Conciliation Act, 1996, must generally be decided at
the preliminary stage rather than in the final judgment after a full
trial. Section 8 of Arbitration and Conciliation Act, 1996 only
provides that a case may be referred to Arbitration, if all the
conditions mentioned in the provision is satisfied and suit cannot
be dismissed on this basis after trial. Defendant has not pressed
the said objection of Section 8 of Arbitration and Conciliation
Act, 1996 at the preliminary stage, hence it can be deemed to be
waived off.
However, even otherwise, all the conditions are not
fulfilled in this case, of Section 8. As per Section 8, where there
is an arbitration clause in the agreement, it is obligatory for the
Court to refer the parties to the Arbitration in terms of their
arbitration agreement, however, there are certain exception to the
said rule where Court can decline to refer the parties to
Arbitration, notwithstanding the valid arbitration agreement
between the parties. In cases where the parties of the suit are
different than the parties of the Arbitration agreement i.e., for
example, if reliefs are claimed not only against the parties to the
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CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
arbitration agreement, but also against the third persons who are
strangers to the arbitration agreement, or when the subject matter
of the suit includes the subject matter of the arbitration
agreement as well as other disputes, the parties cannot be
referred to arbitration. In opinion of this court, subject matter of
the suit is not same as of the subject matter of arbitration
agreement and the matter cannot be referred to Arbitration, as
plaintiff is seeking possession by way of mandatory injunction
and same is not covered by the terms and conditions of
arbitration agreement.
In view of the same, issue no. 2 is decided in favour
of the plaintiff and against the defendant.
RELIEF
16. In view of the above discussions, the suit of the plaintiff is
hereby dismissed.
No order as to costs.
Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance. Digitally
signed by
Ajeet
Ajeet narayan
Announced in the open court narayan Date:
2026.04.21
17:04:48
today i.e. 21-04-2026 (Ajeet Narayan) +0530
JSCC-ASCJ-GJ: South-East
Saket Courts: Delhi
Page No. 46 of 46
