Delhi District Court
Mukesh vs Sunder on 24 February, 2026
IN THE COURT OF SH. VAIBHAV KUMAR,
CIVIL JUDGE, NORTH WEST, ROHINI COURTS, DELHI
Unique case ID No: CS SCJ 494/2024
CNR NO. DLNW03-000763-2024
IN THE MATTER OF :
MUKESH
S/O LATE HARI LAL,
R/O N-17/B-238-A, J.J. COLONY WAZIRPUR, ASHOK VIHAR
DELHI-110052
PRESENTLY AT:-
B-541 BUNKAR COLONY
ASHOK VIHAR DELHI-110052 ...PLAINTIFF
VERSUS
1.SUNDER S/O SHRI HARI LAL
2. MRS. BIMLA W/O SHRI SUNDER
3. GEETA D/O SHRI SUNDER
4. GOLU S/O SHRI SUNDER ALL ABOVE RESIDING AT:
N-17/B-237-A, J.J. COLONY WAZIRPUR, ASHOK VIHAR DELHI-110052 ...DEFENDANTS CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 1 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:07 +0530 Date of Institution: 06.04.2024 Date of pronouncing judgment: 24.02.2026 SUIT FOR PERMANENT AND MANDATORY INJUNCTION
1. It is the case of the plaintiff that in year 1990, the plaintiff had purchased built up property bearing no. 17/B-238-A, JJ Colony, Wazirpur, Ashok Vihar, Delhi, admeasuring 20.70 sq. meters (hereinafter referred to as suit property) from his own funds and savings and the plaintiff was residing at the suit property with his wife and mother till 28.03.2022. It is stated that the defendant no. 1 is the real brother of the plaintiff and defendant no. 2 is wife of defendant no. 1 and defendant no. 3 and 4 are children of defendant no. 1 who used to visit the suit property in the lifetime of mother of the plaintiff till 28.03.2022. It is stated that after the death of mother of the plaintiff, the defendants used to torture and harass the plaintiff and in January 2024 the defendants tried to break open the doors of the suit property and also tried to put their own lock at the premises, however, the plaintiff installed his lock at the property and ran away from the spot. It is stated that when the plaintiff returned, he was not allowed to enter the house and was beaten up by the defendants due to which a police complaint was made at PS Bharat Nagar which was not received by the police stating it to be a civil matter and hence, the plaintiff started residing at a rented accommodation at Bunkar colony.
2. It is further stated that the plaintiff came to know that the defendant no. 1 is trying to make general power of attorney and other documents CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 2 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR 16:26:13 Date: 2026.02.24 +0530 related to the suit property. Hence, the present suit has been filed seeking injunction directing the defendant no. 1 to 4 to allow the plaintiff to enter into the suit property and to restrain the defendants from interfering in the possession of the plaintiff. Injunction is also sought against the defendants so as to restrain them from transferring, alienating constructing or modifying the suit property.
3. Summons of the suit were served upon the defendants, however no WS was filed on their behalf despite providing various opportunities. Hence, the defendants were proceeded ex-parte on
05.05.2025 by the ld. predecessor of this court and their defence was struck off.
4. The plaintiff only examined one witness on his behalf i.e., the plaintiff himself who stepped into the witness box and examined himself as PW1. In his testimony, PW1 tendered his evidence by way of affidavit being Ex.PW1/A and he reiterated the contents of the plaint and also relied upon the following documents:
(1) Ex.PW 1/1 Copy of ID Proof.
(2) Ex PW-1/2 Rashan Card of the plaintiff.
(3) Ex PW-1/3 Rough site plan of the suit property.
(4) Ex PW-1/4 copy of death certificate plaintiff's deceased brother.
(5) Ex PW-1/5 copy of death certificate plaintiff's mother.
CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 3 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:19 +0530 (6) Ex PW-1/6 Police complaint dt. 22.02.2024.
5. No Cross examination was done as the defendant had already been proceeded ex-parte by the Ld. Predecessor. PE was closed on 21.08.2025 and ex-parte final arguments were heard.
6. During the Ex-parte arguments, Ld. Counsel for plaintiff relied upon the documents exhibited by him. He has argued that the said property was allotted in the name of the mother of the plaintiff and the defendants had ill intention since beginning which is visible from the fact that the defendants did not even appear in the proceedings.
7. Heard. Perused. Considered.
8. Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings is not as strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 4 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:26 +0530 "It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
9. Further, Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lays upon the person who asserts any fact. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contains that no fact needs to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 5 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR Date: KUMAR 2026.02.24 16:26:32 +0530
10. Even where the defendant is Ex-parte, the plaintiff has to prove his case and the same shall stand on its own legs and should not be based on any weakness in the case of defendant.
11. Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give it issue wise findings as follows: -
12. The entire case of the plaintiff is based on the claim that he is the owner of the suit property, however he has not placed on record any document to show his ownership. It has been pleaded by the plaintiff that he had purchased the suit property out of his own funds in the year 1990, but no document related to its title has been produced by the plaintiff during the entire proceedings. In absence of any document, it could not be established by the plaintiff whether he has any right or title in the suit property or not. Also, during the final arguments, it has been argued that the mother of the plaintiff was allottee of the suit property, but no document has been produced even to show the said allotment.
13. Further, as per his own version, the plaintiff ran away from the suit property and thereafter he was not allowed to enter in the premises by the defendants. Meaning thereby he is not in possession of the suit property as on date. The Hon'ble Supreme Court of India in the case titled as Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors Appeal (civil) 6191 of 2001 has held that:
CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 6 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:37 +0530 "17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 7 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:42 +0530 the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction."
14. Hence, in the present case, proper remedy for the plaintiff should have been a suit for possession as he is not in possession admittedly as the relief no. 1 sought by him reads as: -
" Pass a Mandatory Injunction in favour of the Plaintiff and against the defendants directing the defendant no. 1 to 4 and/ or any other persons to allow the entrance of the plaintiff in the suit property and restrain the defendants found to be in possession of the suit property bearing no. N-17/B-238-A, J.J. Colony CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 8 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:47 +0530 Wazirpur, Ashok Vihar Delhi 110052 measuring 20.70 Sq. meter( 25 Square Yards) and also restrain the Defendants from interfering with the actual and vacant peaceful possession of the suit property of the plaintiff."
15. Bare perusal of the relief reveals the admission on the part of the plaintiff that he is not in possession of the suit property and he is seeking possession in the garb of injunction.
16. Further, in order to seek relief of injunction to restrain the defendants from interfering in her possession, it was essential for the Plaintiff to show that he is in possession of the suit property. The only documents relied upon by the plaintiff are his ID cards and death certificate of his mother, which are not sufficient to prove his possession or right/title in the suit property.
17. It is a settled law that Injunction cannot be granted to protect a possession which does not exist. If the plaintiff has been dispossessed, the proper remedy is recovery of possession, not injunction as held in Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594 (supra). Relief of restraining dispossession becomes meaningless and infructuous since injunction cannot be granted against an act that has already occurred. Hence, where a plaintiff is no more in possession of the suit property and a cloud has been raised over the title, the plaintiff cannot seek possession in the garb of injunction. A suit for permanent injunction, therefore, is not maintainable, as injunction can only be granted to protect existing CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 9 of 10 Digitally signed by VAIBHAV VAIBHAV KUMAR KUMAR Date:
2026.02.24 16:26:52 +0530 possession and not to restore possession already lost. Also, the relief of mandatory injunction is not maintainable as the plaintiff has failed to show his possession. The proper remedy available to the plaintiff, if any, lies in seeking recovery of possession or other appropriate relief in accordance with law.
18. Accordingly, the suit is dismissed.
No order as to costs.
File be consigned to Record Room after due compliance.
Announced in the open Court today.
Digitally signed by VAIBHAVVAIBHAV KUMAR KUMAR Date:
2026.02.24 16:27:01 +0530 (Vaibhav Kumar) Civil Judge-N/W District Rohini Courts/24.02.2026 This Judgment contains 10 pages and each page has been signed by me CS SCJ/494/2024 Mukesh V. Sunder & Ors. Page no. 10 of 10