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
Page No. 1 of 46
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(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 Page No. 2 of 46 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 Page No. 3 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 4 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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.
Page No. 5 of 46CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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;Page No. 6 of 46
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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 Page No. 7 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
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 Page No. 8 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 9 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 10 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 11 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 12 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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.
Page No. 13 of 46CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
(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).Page No. 14 of 46
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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.
Page No. 15 of 46CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini
(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 Page No. 16 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini at the same time as they are inter-connected and same 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 Page No. 17 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 18 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 19 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 20 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 46CS 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 or Page No. 29 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini on 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 validly Page No. 32 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini executed 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 46CS 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 tried Page No. 37 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini to 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 Page No. 41 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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 Page No. 42 of 46 CS SCJ 887/18 Sh. Ved Prakash Saini & Ors. Versus Sh. Om Prakash Saini 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.
Page No. 43 of 46CS 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.
Page No. 44 of 46CS 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 Page No. 45 of 46 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