Delhi District Court
Babita vs Chander Prabha on 29 May, 2025
IN THE COURT OF DISTRICT JUDGE-01, SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
RCA DJ-20160/2016 (Old case of year 2014)
Ms. Babita
D/o Sh. Asha Ram,
R/o 52B/56, IInd Floor,
DDA Flats, Chitranjan Park,
New Delhi. ..Appellant
Versus
Mrs. Chander Prabha
W/o Sh. Khem Pal Singh
R/o 52B/56, First Floor,
DDA Flats, Chitranjan Park,
New Delhi. ..Respondent
Date of Institution : 13.05.2014
Date of Reserving judgment : 22.03.2025
Date of Judgment : 29.05.2025
JUDGMENT
1. The present appeal has been filed for challenging the order dated 25.03.2013 by which the Ld. Trial Court has decreed the suit of the plaintiff/respondent.
2. The suit was filed by the respondent herein for permanent injunction against the defendant/appellant with respect to property bearing No. 52 B/ 56, DDA Janta Flats, EPDP Colony, Chittranjan Park, New Delhi. The case of the plaintiff/respondent is that the Digitally signed by RAHUL RAHUL BHATIA Date:
RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA 2025.05.30 15:18:35 Pg. 1 of 25 +0530 defendant/appellant is married to the brother of the defendant/appellant. After marriage, the plaintiff/respondent started residing in the matrimonial home with her parents in law and sister- in-law, being defendant/appellant and one other sister-in-law Ms. Sarita Sharma. After some time, the plaintiff/respondent purchased the suit property and shifted to the suit property. At the request of her parents in law, plaintiff/respondent allowed the defendant/appellant to stay with her. Although, her behaviour with the plaintiff/respondent was not good, she was allowed to stay in the suit property, so that she could get better matrimonial alliance for herself. However, the defendant/appellant never agreed to any marital proposals and continued to misbehave, torture and humiliate the plaintiff/respondent. It is stated in the plaint that the defendant/appellant is employed and earning a handsome amount and has other properties where she can stay. It is submitted that while the defendant/appellant was staying with the plaintiff/respondent, she invited one of her friends to stay with her and the friend of the defendant/appellant Ms. Sunita Sharma use to also harass the plaintiff/respondent and started interfering in her personal life. Thereafter, the plaintiff/respondent and her husband got Ms. Sunita Sharma out of their house and therefore the defendant/appellant became even more abnormal. It is stated that the plaintiff/respondent requested the defendant/appellant to vacate the house on multiple occasions but never vacated the said flat. In view of the same, the plaintiff/respondent has filed the underlying suit praying for a decree of permanent injunction against the defendant/appellant by restraining her to remain in the suit premises.
RAHUL Digitally signed by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA 15:18:43 +0530 Date: 2025.05.30 Pg. 2 of 25
3. Summons were issued to the defendant/appellant who appeared and filed her written statement. As per the written statement, the defendant/appellant took the following preliminary objections:-
3.1 That the plaintiff/respondent has not come with clean hands and suppressed material facts.
3.2 That the present suit was filed to counter the domestic violence case filed by the defendant/appellant against the plaintiff/respondent.
3.3 That the plaintiff/respondent only purchased the first floor of the suit property and the defendant/appellant was only in occupation of the second floor of the suit property which has not been purchased by the plaintiff/respondent. 3.4 That the suit is bad for misjoinder/non-joinder of necessary party as the person from whom the plaintiff/respondent derives her title has not been made party in the present case.
4. On merits, defendant/appellant has denied all the factual averments made by plaintiff/respondent in her plaint. It is the case of defendant/appellant that property at Govind Puri was purchased by father of defendant/appellant in the name of the mother of the defendant/appellant and the amount paid was contributed by the maternal uncle and grand-father of the defendant/appellant. Further, allegations of harassment by defendant/appellant on the plaintiff/respondent are denied. It is stated that the suit property was purchased out of funds contributed by defendant/appellant as well as family members of the parties. The suit property was purchased in the name of plaintiff/respondent by the joint funds of the father, brother and sister of the defendant/appellant. It is further stated that Digitally signed RAHUL by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date: 2025.05.30 15:18:50 +0530 Pg. 3 of 25 father of appellant contributed an amount of Rs.63,000/- for the purchase of the suit property. It is further claimed that plaintiff only purchased the first floor of the suit property and appellant is in possession of second floor of the suit property which has not been purchased by plaintiff. Further, it is stated that not only appellant has contributed to the purchase of the suit property, she also contributed to household expenses of the plaintiff and the whole family was residing together in the suit property.
5. On these averments, the appellant has stated that the plaintiff/respondent has shown no cause of action to file the present suit and the suit is devoid of merits and ought to be dismissed.
6. The plaintiff did not file replication and vide order dated 05.05.2012, the following issues were framed :
6.1 Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP 6.2 Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP 6.3 Whether the suit of the plaintiff is bad for non joinder of necessary parties? OPD 6.4 Relief.
7. Thereafter, the plaintiff/respondent led her evidence and examined herself as PW1 and relied upon the following documents :
SL. NO. DOCUMENT EXHIBIT
1 Sale Deed Ex.PW1/1
2 Site Plan Ex.PW1/2
3 Approval letter of loan. Ex.PW1/3
Digitally signed
by RAHUL
RAHUL BHATIA
RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date:
2025.05.30
Pg. 4 of 25
15:18:58 +0530
4 Agreement to Sell dated Ex.PW1/4
26.04.2004.
5 House Tax Assessment receipts Ex.PW1/5 to
for the year 2004-05 to 2011-12. Ex..PW1/11 (colly) 6 Copy of complaint to SHO dated Ex.PW1/12 13.06.2011.
7 Complaint dated 22.06.2011. Ex.PW1/13 8 Legal Notice. Ex.PW1/14 9 Copy of mutation order. Mark A 10 Copy of Sale Deed of flat Mark B No.LIG,2nd Floor, Pocket-II, Sector-14, Dwarka.
11 Copy of Sale Deed executed by Mark C defendant in favour of Ms. Sunita Sharma.
12 Conveyance Deed dated Mark D 22.02.2008 in favour of defendant.
13 Demand notice dated 24.06.2011 Mark E of Kurga Pradikaran against defendant.
8. In her cross-examination, she has stated that after marriage, she started residing with her husband and other family members in Govind Puri property. After some time, one of the sisters in law of plaintiff got divorced and started residing at Govind Puri house, which was having adverse effect on the children of the plaintiff/respondent. As such, the plaintiff looked for a house and purchased the suit property. She has admitted that father-in-law of plaintiff contributed Rs.63,000/- for purchase of the suit property.
The said amount was returned to father-in-law. She has reiterated that the consideration amount of the suit property was paid after availing home loan by the plaintiff. Digitally signed RAHUL by RAHUL BHATIA BHATIA Date: 2025.05.30 15:19:06 +0530 RCA -20160/2016 BABITA VS. CHANDER PRABHA Pg. 5 of 25
9. Thereafter, plaintiff examined Sh. K.P. Singh, her husband as PW2 who asserted the same facts as plaintiff. He has stated that initially the suit property including the first floor and second floor were agreed to be purchased vide Agreement to Sell, Ex.PW1/4. Thereafter, the Sale Deed dated 14.05.2004 was executed between the parties in which mention of only first floor was there. PW2 has stated in his cross-examination that understanding between the parties was that both first and second floor of the suit property were being sold to the plaintiff, however, as the second floor was extended area, no Sale Deed was executed for the second floor. As such, the same was not mentioned in the Sale Deed, Ex.PW1/1. He has stated that the previous owner from whom the plaintiff purchased the suit property was paying the house tax of the second floor as well and after purchase of the suit property by the plaintiff, the plaintiff has been paying the house tax for both first and second floors. Thereafter, the plaintiff closed her evidence.
10.Defendant/appellant examined herself as DW1 and relied upon the following documents :
SL. NO. DOCUMENT EXHIBIT 1 Photographs Ex.DW1/1 (colly) 2 Holiday work of children Ex.DW1/2 (colly) 3 Documents pertaining to gas Ex.DW1/3 connection. 4 Documents pertaining to Ex.DW1/4 previous address of Govind Puri. 5 Bank statement. Ex.DW1/5 6 Rent Agreement. Mark B Digitally signed RAHUL by RAHUL RCA -20160/2016 BABITA VS. CHANDER PRABHA Pg. 6 of 25 BHATIA BHATIA Date: 2025.05.30 15:19:14 +0530
11. In her cross-examination, the defendant has stated that she has been working in SAIL since 1992. She has stated that out of the three rooms on the second floor of the suit property, she is residing in one room and one room of the second floor is in her possession. She has stated that in another room goods of both the parties are lying. She has admitted to the use of electricity supplied to her room and to the fact that she is not paying the electricity bills. She has denied any knowledge as to the fact whether erstwhile owner has sold the suit property to plaintiff or not. She has further stated that she is maintaining cordial relationship with her father presently residing in the Govind Puri property. She has stated that she did not examine him as he is a senior citizen and she does not want to expose him to the court proceedings.
12. On cross-examination, she has claimed that she had contributed to the purchase of the suit property and the appellant relied on her bank account statement. The appellant has claimed that she withdrew amount of Rs.1 lac from her account and paid the said amount in cash to the plaintiff. She also stated that on 30.04.2021, she again withdrew an amount of Rs.1.70 lacs which she paid to the plaintiff for the purchase of the suit property. She was asked whether plaintiff was the owner of the portion in her possession (second floor of the suit property) to which she replied that no one was the owner of the said portion. She also claimed that she was occupying a portion of the suit property being the family member and also because of her contribution in the purchase of the same. Thereafter, defendant RAHUL Digitally signed by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date: 2025.05.30 15:19:21 +0530 Pg. 7 of 25 closed her evidence.
13.After hearing arguments of the parties, the Ld. Trial Court vide a detailed judgment dated 31.03.2014 allowed the suit of the plaintiff and directed the defendant to move out of the suit property within 30 days of the passing of the judgment.
14.Aggrieved by the said judgment, the present appeal has been filed by appellant/defendant/appellant on the following grounds :
14.1 That the respondent is not the owner of the second floor of the suit property as no title document has been produced by respondent and respondent has failed to prove her title over the second floor of the suit property.
14.2 Agreement to Sell which has been relied upon by plaintiff to claim right in the second floor cannot be looked into as the same does not find any mention in the plaint and was only introduced at the time of evidence.
14.3 Even if the Agreement to Sell, Ex.PW1/4 is looked into, the same cannot be relied upon as it compulsorily registrable document under Section 17 of the Registration Act and is inadmissible in evidence. Similarly, the said Agreement to Sell, Ex.PW1/4 fails the test of the Stamp Act as well. 14.4 The suit was not maintainable as it was barred by Section 41(h) of the Specific Relief Act.
14.5 The plaintiff came before the court by suppressing material facts and as such, is not entitled to any decree by the court. 14.6 The suit was bad for non-joinder of necessary parties as the person who had sold the suit property to plaintiff has not been arrayed as defendant in the case. RAHUL by Digitally signed RAHUL BHATIA BHATIA Date: 2025.05.30 15:19:28 +0530 RCA -20160/2016 BABITA VS. CHANDER PRABHA Pg. 8 of 25
15.On these grounds, the present appeal has been filed with the prayer that the appeal be allowed and the impugned judgment and decree passed by the Ld. Trial Court be set aside.
16. Respondent has filed the reply and has asserted the facts as mentioned in the plaint. Further it has been mentioned that the Ld. Trial Court has after examining all facts and evidence presented before it has come to the right conclusion. It is further stated that no error has been caused by the Ld. Trial Court in decreeing the suit and dismissal of the appeal is sought.
Arguments of appellant:
17. Ld. counsel for appellant has submitted that the Ld. Trial Court has wrongly relied upon the Agreement to Sell, Ex.PW1/4 which could not have been looked into as the same is an unregistered document.
It is further submitted that the Agreement to Sell, Ex.PW1/4 was compulsorily registrable document under Section 17 of the Registration Act. It is further submitted that once these requirements are not complied with, the same could not have been taken on record and does not give any right to plaintiff to file the underlying suit. Further, it is submitted that after execution of the Agreement to Sell, Ex.PW1/4, the Sale Deed was executed between the parties with respect to only first floor of the suit property i.e. Ex.PW1/1. It is further submitted that once the Sale Deed was executed, Agreement to Sell, Ex.PW1/4 got subsumed into Sale Deed, Ex.PW1/1 and agreement between the parties was novated by the Sale Deed, Ex.PW1/1 in terms of Section 62 of the Indian Contract Act. Thus, it is submitted that the Ld. Trial Court has wrongly concluded that the plaintiff/respondent was the owner of the suit property and as such, Digitally signed RCA -20160/2016 BABITA VS. CHANDER PRABHA RAHUL by RAHUL BHATIA BHATIA Date: 2025.05.30 Pg. 9 of 25 15:19:36 +0530 was not entitled to the injunction granted by the Ld. Trial Court. It is further submitted that the Ld. Trial Court wrongly relied upon Agreement to Sell, Ex.PW1/4 as it was neither filed along with the plaint nor pleaded in the plaint and as such, the same could not have been led in evidence by the plaintiff. It is further submitted that transfer of any immovable property of value exceeding Rs.100/- can only be effected by a registered document as per Section 54 of the Transfer of Property Act and Section 17 of the Registration Act. It is further submitted that alleged Agreement to Sell, Ex.PW1/4 does not find any mention even in the Sale Deed, Ex.PW1/1 dated 14.05.2004 which is executed and registered only in respect of first floor of the suit property. It is further submitted that the Agreement to Sell, Ex.PW1/4 for two floors and Sale Deed only of first ground are for the same consideration which cannot be possible and as such, version of the plaintiff is highly doubtful. It is further submitted that the relief of injunction is discretionary relief and nothing has been shown by plaintiff as to why discretion should be exercised in her favour. It is further submitted that as per Section 41(h) of Specific Relief Act, an injunction cannot be granted as the plaintiff has got efficacious alternative remedy. It is further submitted that the correct remedy which could have been exercised by plaintiff was to file a suit for declaration and not injunction simplicitor and as such, suit was not maintainable. It is further submitted that the onus to prove the facts in the present case are on the plaintiff and plaintiff has not led enough evidence to prove her case and weakness in defence of defendant cannot be made the basis of claim of the plaintiff. It is further submitted that plaintiff has not been able to establish the facts RCA -20160/2016 BABITA VS. CHANDER PRABHA RAHUL Digitally signed by RAHUL BHATIA Pg. 10 of 25 BHATIA 15:19:43 +0530 Date: 2025.05.30 which are required to be proved for the passing of underlying decree and as such, the same has been wrongly passed. On these grounds, Ld. Counsel for appellant has sought that the appeal be allowed and the impugned judgment and decree of the Ld. Trial Court be set aside. He has relied upon the following judgments :
17.1 Smt. Santosh Malik (Since Deceased) Through Lrs. Vs. Maharaj Krishan & Anr., 2012 (127) DRJ 582 (DB). 17.2 National Textile Corporation Ltd. Vs. Nareshkumar Badrikumar Jagad & Ors., AIR 2012 Supreme Court 264. 17.3 C. Lal & Sons Vs. Wasudhir Foundation & Ors., 66 (1997) Delhi Law Times 766.
17.4 Prakash Rattan Lal Vs. Mankey Ram, 166 (2010) Delhi Law Times 629.
17.5 Harish Mansukhani Vs. Ashok Jain, 2009 (109) DRJ 126 (DB) (SN).
17.6 Mohan Madan Vs. Smt. Sheel Gulati, CS (OS) No.357/2006.
17.7 Sebastiao Luis Fernandes (Dead) Through LRs. & Ors. Vs. K.V.P. Shastri (Dead) Through LRs. & Ors., 1 (2014) CLT 351 (SC).
17.8 Union of India & Ors. Vs. Vasavi Co-op. Housing Society Ltd. & Ors., 1 (2014) CLT 373 (SC).
Arguments of respondent:
18. Per contra, Ld. Counsel for respondent has submitted that the Ld. Trial Court has rightly allowed the suit of the plaintiff. It is further submitted that the Sale Deed, Ex.PW1/1 and Agreement to Sell, RAHUL Digitally signed by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date: 2025.05.30 15:19:52 +0530 Pg. 11 of 25 Ex.PW1/4 collectively show that the plaintiff was the owner of the suit property and they collectively agreed that whole of the suit property shall be sold to plaintiff for amount of Rs.7.5 lacs. It is further submitted that as the second floor was an extended portion and Sale Deed with respect to the second floor could not be registered, thus, the Sale Deed, Ex.PW1/1 finds mention of only first floor of the suit property. Further, it is submitted that it is clear from Ex.PW1/5 to Ex.PW1/10 i.e. the house tax receipts with respect to the second floor that the plaintiff was in possession of the suit property and purchased the second floor along with first floor from the erstwhile owner. As far as the fact that the present suit was filed for injunction, it is submitted that in case the plaintiff had given some portion of his property as a lincensee, the plaintiff does not need to file suit for eviction and suit for mandatory and permanent injunction can be filed against the licensee for handing over possession of a property to the rightful owner. Further, it is submitted that even if it is held that the plaintiff is not the legal owner of the suit property, she has shown her title and the defence of defendant has shown no interest or title in the suit property, as such, title of the plaintiff being better than the title of defendant, the present suit for mandatory injunction was maintainable. It is further submitted that although the entries of the name of the plaintiff in the house tax receipts does not prove title but depending upon the facts of the case, it can show the possession of the plaintiff. It is further submitted that the property tax receipts shows the prima facie right of the plaintiff and probability of her ownership of the suit property and the onus was on the defendant to show any interest in the suit Digitally signed RAHUL by RAHUL RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA BHATIA Date: 2025.05.30 Pg. 12 of 25 15:20:18 +0530 property. It is further submitted that the defendant has shown no interest or title in the suit property and as such, defendant cannot be allowed to stay in the suit property without showing any interest in the same. As far as the non-filing of replication is concerned, it is submitted that non-filing of replication does not mean that there is admission of facts pleaded in the Written Statement. It is further submitted that the defendant had not taken any specific plea as to the ownership of the suit property and there was no need to file replication. It is further submitted that based upon facts and the evidence led before the Ld. Trial Court, a legally correct judgment had been passed by the Ld. Trial Court which does not merit any interference. On these submissions, Ld. Counsel for respondent has sought dismissal of the present appeal and upholding the impugned judgment and decree of the Ld. Trial Court. He has relied upon the following judgments:
18.1 Veerasekhara Varmarayar Vs. Amirthavalliammal and Ors, AIR 1975 Madras 51.
18.2 Sant Lal Jain Vs. Avtar Singh, (1985) 2 Supreme Court Cases 332.
18.3 R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Anotheer, (2003) 8 Supreme Court Cases 752.
18.4 Conrad Dias of Bombay Vs. Joseph Dias of Bombay, AIR 1995 Bombay 210.
18.5 Hasan Ali Vs. Akbari Begum @ Akbari Hajjan, 133 (206) Delhi Law Times 26.
18.6 Suresh Kumar & Anr. Vs. Saroj Atal, 2012 III AD (DELHI) Digitally signed RAHUL by RAHUL RCA -20160/2016 BABITA VS. CHANDER PRABHA Pg. 13 of 25 BHATIA BHATIA Date: 2025.05.30 15:20:36 +0530
718. 18.7 Sanjeev Kapoor & Anr. Vs. Anil Kumar, 2016 (1) Civil Court Cases 568 (DELHI).
18.8 K. Laxmanan Vs. Thekkayil Padmini & Ors., 2009 (1) Civil Court Cases 526 (S.C.).
Analysis & Reasoning:
19.Based upon pleadings of the parties before the Ld. Trial Court, the grounds taken in the appeal and arguments advanced by the parties, the following points arise for consideration in the present appeal :
19.1 Whether the Agreement to Sell, Ex.PW1/4 can be taken into evidence, if so its effect.
19.2 Whether the suit filed for mandatory injunction was the correct relief sought.
19.3 Whether the plaintiff/respondent was required to file the suit for declaration after filing of Written Statement of the defendant/appellant.
19.4 Whether the suit was bad for non-joinder of necessary
parties without the vendor from whom the
plaintiff/respondent/respondent purchased the suit property. 19.5 Whether the suit was undervalued and proper court fee was not paid.
20.Ld. counsel for appellant has placed reliance on the fact that Agreement to Sell was not pleaded in the plaint and was not filed along with the plaint and as such, the same cannot be looked into.
21. A perusal of the order-sheets of the Ld. Trial Court would reveal that Digitally signed RAHUL by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date: 2025.05.30 15:22:12 +0530 Pg. 14 of 25 plaintiff filed an application under Order VII Rule 14 CPC for placing on record Agreement to Sell which was allowed vide order dated 26.03.2013 as the defendant had not objected to the said application.
22. Thus, what can be ascertained is that although Agreement to Sell, Ex.PW1/4 was not filed along with the plaint and the same was taken on record by the order of the court and with the consent of the defendant. Order VII Rule 14 CPC states that document which has not been filed along with plaint cannot be taken in evidence without leave of the court.
23. In the present case, permission of the court was granted vide order dated 26.03.2013 and as such, the same was taken into evidence. Thus, objection of Ld. Counsel for defendant that the said document cannot be taken into evidence cannot be looked into as defendant had herself consented to the document being taken on record. Once the defendant has not objected to the document being taken on record, defendant cannot in appeal go back and as such, this defence cannot be taken. As such, this court is of the opinion that there is no impediment in taking the document, Agreement to Sell, Ex.PW1/4 in evidence in the present case.
24. Now coming to the effect of Agreement to Sell.
25. It is submitted by Ld. Counsel for defendant that Agreement to Sell, Ex.PW1/4 is for sale of an immovable property of a value of more than Rs.100/- and the same was compulsorily registerable under Section 17 of the Registration Act and was to be stamped in accordance with the Stamp Act. Further, it is submitted that the sale in favour of plaintiff/respondent was not completed in terms of Digitally signed RCA -20160/2016 BABITA VS. CHANDER PRABHA RAHUL by RAHUL BHATIA Pg. 15 of 25 BHATIA Date: 2025.05.30 15:22:23 +0530 Section 54 of the Transfer of Property Act and as such the said agreement cannot be looked into.
26. Thus, the contention of the Ld. Counsel for appellant is that Agreement to Sell being unregistered does not convey any title to the plaintiff/respondent, therefore, will have more effect in this case. He has relied upon the judgment of Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana and Anr., 2011 1 AD (SC) 365 Whereby it has been held that Agreement to Sell does not confer any title deed to a person in whose favour it has been executed. There can be no dispute to the fact that in case of an unregistered Agreement to Sell, the title of the property does not pass to the person in whose favour the agreement has been executed. However, relief of possession or injunction to remove the defendant from the suit property can not only be claimed on the basis of title but also basis of better title in the suit property or prior possession. Thus, even if the court does not look into Agreement to Sell, Ex.PW1/4, the Ld. Trial Court had to adjudicate as to the better title or entitlement to the suit property.
27.The Ld. Trial Court has relied upon Agreement to Sell, Ex.PW1/4 and property tax receipts in name of plaintiff Ex.PW1/5 to Ex.PW1/10 and come to the conclusion that although the plaintiff could not establish her title on the suit property, her right in the suit property is higher and better than the defendant. On this basis, the Ld. Trial Court has decreed the suit in favour of plaintiff. In a suit whereby the plaintiff asserts his title or some right in the suit property based upon documents which do not constitute the title, defendant is liable to set up a defence as to under what capacity the defendant is occupying the suit property. The court is bound to look Digitally signed RAHUL by RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date:
2025.05.30 15:22:30 +0530 Pg. 16 of 25 into the rival submissions of the parties and decide which party has a better right to the suit property.
28.In the present case, the plaintiff has claimed right in the suit property on the basis of Agreement to Sell which confers right with respect to the second floor of the suit property. The right to the second floor of the suit property is ascertained on the basis of Agreement to Sell, Ex.PW1/4 and payment of house tax receipts by way of which it is shown that plaintiff has been regularly paying the house tax with respect to both the first floor and the second floor of the suit property. Defendant has not set up any title in her Written Statement or testimony and has only claimed that the plaintiff does not have any title with respect to second floor of the suit property. Another defence which has been taken by defendant is that defendant is in possession of the second floor of the suit property on the basis of the fact that she is the family member of the plaintiff and contributed funds to the purchase of the suit property.
29.Before going into the merits of defence raised by defendant, it has to be stated that defendant has taken diametrically opposite defences. On the one hand, defendant has claimed that plaintiff has not purchased the second floor of the said property and on the other hand defendant has claimed that she is in possession of the suit property (second floor) being the family member of the plaintiff and on the basis that she has contributed funds to the purchase of the suit property. These two stands of defendant are diametrically opposite, as on the one hand, she claimed that plaintiff did not purchase the second floor of the suit property and on the second hand, she is claiming that she has contributed funds for the purchase of the suit Digitally signed by RAHUL RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date:
2025.05.30 15:22:37 +0530 Pg. 17 of 25 property and she is residing on the second floor on the basis of being a family member. Thus, although title of the plaintiff qua the second floor is denied by defendant, however, said denial is in contradiction to the specific stand taken by defendant that she is residing in the second floor after contributing funds for its purchase being family member of the plaintiff. Thus, although not directly but by way of clever pleadings, the defendant has sought to deny the title of the plaintiff, whereas she has admitted to the right of the plaintiff in the second floor as it has been stated that she contributed funds to the purchase of the portion of the suit property in her occupation. Thus, it is clear that defendant has admitted to the fact that at the time of purchase of the first floor of the suit property, second floor of the suit property was also purchased and defendant moved into the said portion only being a family member of the plaintiff. Thus, defence of the defendant that plaintiff is not the owner of the suit property is without any basis as she has made averments completely opposite to the same.
30.Thus, the suit of the plaintiff could have been decreed on the basis of this admission alone. Although, no title documents have been placed on record by the plaintiff in the plaint with respect to the second floor of the suit property, however, she sought to establish her right on the second floor on the basis of Agreement to Sell, Ex.PW1/4 as well as house tax receipts, Ex.PW1/5 to Ex.PW1/10 of the first floor and the second floor of the suit property.
31. The judgment of the Hon'ble Supreme Court of India in the case of R.V.E. Venkatatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Templeand Another, (2003) 8 Supreme Court Cases 752 has Digitally signed RAHUL by RAHUL RCA -20160/2016 BABITA VS. CHANDER PRABHA Pg. 18 of 25 BHATIA BHATIA Date: 2025.05.30 15:22:50 +0530 discussed the burden of proof and onus of proof in a suit for possession and injunction with respect to an immovable property has been filed wherein it has been held :
"In a suit for recovery of possession based on title it is for the plaintiff/respondent to prove his title and satisfy the Court that he, in law, is entitled to dispossess the defendant/appellant from his possession over the suit property and for the possession to be restored with him. However, as held in A. Raghavamma & Anr. Vs. Chenchamma & Anr., AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff/respondent has been able to create a high degree of probability so as to shift the onus on the defendant/appellant it is for the defendant/appellant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff/respondent shall be held to have been discharged so as to amount to proof of the plaintiff/respondent's title.
30. In the present case, the trial Court and the first appellate Court have noted that the plaintiff/respondent has not been able to produce any deed of title directly lending support to his claim for title and at the same time the defendant/appellant too has no proof of his title much less even an insignia of title. Being a civil case, the plaintiff/respondent cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant/appellant and if the defendant/appellant does not succeed in shifting back the onus, the plaintiff/respondent's burden of proof can safely be deemed to have been discharged. In the opinion of the two Courts below, the plaintiff/respondent had succeeded in shifting the onus on the defendant/appellant and, therefore, the burden of proof which lay on the plaintiff/respondent had stood discharged."
32.As discussed in the above mentioned case, in the present case also, the plaintiff could not establish her title over second floor of the suit property by producing any deed of title. However, plaintiff relied Digitally signed RAHUL by RAHUL BHATIA BHATIA Date: 2025.05.30 RCA -20160/2016 BABITA VS. CHANDER PRABHA 15:22:57 +0530 Pg. 19 of 25 upon the continuous payments of the property tax receipts since the purchase of the suit property till filing of the suit and has given strong prima facie case in her favour. Prima case is further strengthened by the defence of the defendant that she is occupying the suit property being family member and on contributions to the funds to the purchase of the suit property. Thus, the above sequence of the events gives a high degree of probability to lend assurance that the plaintiff has some title or right to use the suit property. Thus, once such a situation has arisen, the onus would shift on the defendant to show as to the right the defendant is staying in the suit property.
33.In the present case, as has been mentioned herein above, neither in the Written Statement nor in the evidence, the defendant has set up any claim or right to the suit property by way of title and her only right is with respect to being family member of the plaintiff and way of contributions of funds.
34. In the judgment of Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, it has been held as under :
"12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant/appellant or challenge to plaintiff/respondent's title raises a cloud on the title of plaintiff/respondent to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff/respondent has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff/respondent's title, it does not amount to raising a cloud over the title of the plaintiff/respondent and it will not be necessary for the plaintiff/respondent to sue for declaration and a suit for injunction may be sufficient. Where the Digitally signed by RAHUL RAHUL BHATIA RCA -20160/2016 BABITA VS. CHANDER PRABHA BHATIA Date:
2025.05.30 Pg. 20 of 25
15:23:05 +0530
plaintiff/respondent, believing that defendant/appellant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant/appellant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff/respondent's title, then there is a need for the plaintiff/respondent, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant/appellant from interfering with plaintiff/respondent's possession, the plaintiff/respondent will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant/appellant tried 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/respondent 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."
35.Thus, once a suit for injunction has been filed by plaintiff believing that the defendant is only a trespasser without any right or title in the suit property, a suit for injunction can be filed. Only when defendant files his Written Statement disclosing a defence whereby establishing the right or title in the suit property and raises serious doubt over the plaintiff's title only then, plaintiff would need to amend the suit by filing fresh suit seeking declaration and injunction.
36. In the present case, the only defence with respect to title taken by defendant is that the plaintiff does not have any title but no completing title has been set up by defendant. The Written Statement Digitally signed by RAHUL RAHUL BHATIA BHATIA Date:
2025.05.30 RCA -20160/2016 BABITA VS. CHANDER PRABHA 15:23:16 +0530 Pg. 21 of 25 of the defendant tactically acknowledges the title of the plaintiff and does not set up any cloud over the title of the plaintiff. Thus, once the defendant has not made any averment apart from mere denial of the title, the plaintiff would not be required to file suit for declaration and a mere suit for injunction would be sufficient. This view is supported by the judgment of the Hon'ble Supreme Court of India in the case of Sant Lal Jain Vs. Avtar Singh passed in Civil Appeal No.216/1984 and judgment of Hon'ble High Court of Delhi in the case of Hasan Ali Vs. Akbari Begum @ Akbari Hajjan, 133 (206) Delhi Law Times 26.
37. Similarly, in the judgment of Conrad Dias of Bombay Vs. Joseph Diast of Bombay AIR 1995 Bombay 210, the Hon'ble High Court of Bombay, while discussing the relationship between the two family members, has held that the family member who was occupying part of the property of plaintiff does not become the licencee or a tenant but is only residing as family member. The plaintiff has to only seek injunction and does not require to the suit for eviction to remove such person from the property.
38.Based upon above discussion, it is clear that once defendant has not set up rival title and has infact tactically admitted to being in possession of the suit property, therefore, the title of the plaintiff cannot be under any cloud and defendant cannot be entitled to reside only on the basis of lack of title in favour plaintiff.
39.Thus, once it is established that defendant has entered into the suit property through the plaintiff, the defendant has legal character only as a family member. As such, the defendant is liable to vacate the suit property of the plaintiff. Digitally signed by RAHUL RAHUL BHATIA Date:
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40.Ld. counsel for appellant has also submitted that Agreement to Sell, Ex.PW1/4 cannot be looked into as it has been novated by the Sale Deed, Ex.PW1/1 and the same would subsume the Agreement to Sell. He has submitted that in terms of Section 62 of the Indian Stamp Act, once Sale Deed was executed, Agreement to Sell would novate and does not remain in existence. Even if, the said argument of the defence is accepted, this court has come to the conclusion that defendant is liable to vacate the suit property without relying upon Ex.PW1/4. Thus, once Ex.PW1/4 is not relied upon, argument of novation would not be of any consequence.
41. As far as the issue that plaintiff was required to file suit for declaration, the observation of the Hon'ble Supreme Court of India in Anatullah Sudhakar (supra), it is clearly stated that the until and unless the defence raises a counter title or raises serious dispute over the plaintiff's title, a suit for declaration is not needed. As such, this argument of Ld. Counsel for appellant are also not of help to the appellant.
42.Further, Ld. Counsel for appellant has relied upon the fact that once the plaintiff had not filed any replication, the contents of the Written Statement are deemed to be admitted. However, as discussed herein above, no substantive plea has been taken by the defendant in the Written Statement. Only bald averment as to the denial or lack of title of the plaintiff has been raised. Since, no substantive title has been established or nor cloud over the title of the plaintiff have been raised, there was no occasion of denying the averments mentioned in the Written Statement. Infact, rest of the averments in the Written Statement regarding payment of consideration money and RCA -20160/2016 BABITA VS. CHANDER PRABHA Digitally signed by RAHUL Pg. 23 of 25 RAHUL BHATIA BHATIA Date:
2025.05.30 15:23:31 +0530 occupation of the suit property as a family member only helps the case of the plaintiff as by stating that defendant has contributed to the purchase of the suit property, the defendant has admitted to the ownership of the plaintiff with respect to the Suit Property.
43.Based upon the above discussion, it can be held that plaintiff has sought to establish her right on the possession of the second floor on the basis of the Sale Deed, Ex.PW1/1, Agreement to Sell, Ex.PW1/4, house tax receipts, Ex.PW1/5 to Ex.PW1/10 and the averments made by defendant in the Written Statement which fortifies the case of the plaintiff and indicates no defence of defendant.
44.Another argument raised by appellant is that plaintiff has to stand on her own legs and cannot rely upon the deficiency in the defence of defendant. However, as mentioned herein above, once the plaintiff had made a prima facie case showing entitlement to the second floor of the suit property, the defendant was required to show her right to occupy the second floor of the suit property. As mentioned herein above, the only right which defendant has pleaded is that she and her father contributed certain funds to the purchase of the suit property. Even if this averment is taken as a gospel truth on its face value, the only remedy available to the defendant would be to seek recovery of the amount, which she has paid or contributed to the purchase of the suit property. Contributing any amount for payment of consideration amount of immovable property does not give a right to occupy the suit property if the property is purchased in the name of some other person.
45.In the present case also, the second floor is not registered in the name of the plaintiff. However, once defendant had admitted that Digitally signed RCA -20160/2016 BABITA VS. CHANDER PRABHA RAHUL by RAHUL BHATIA Pg. 24 of 25 BHATIA Date: 2025.05.30 15:23:39 +0530 she was staying in the second floor because of the contributions made, the onus was on the defendant to show any right or title in the suit property which shall enable her to continue in possession of the suit property.
46.Admittedly, no such evidence has been led by defendant to establish any right in the suit property. As such, once plaintiff has established a prima facie case, the onus to show any right of the defendant was on the defendant. The said onus has not been discharged by the defendant and no alleged title or interest in the second floor of the suit property has been shown by defendant in her defence or in the present appeal.
47. In view of above discussion, this court is of the opinion that no ground for the appeal has been made by appellant. Further no impediment in the order of the Ld. Trial Court has been shown. As such, the present appeal is dismissed. Appellant is directed to move out of the suit property i.e. House No. 52 B/ 56, DDA Janta Flats, EPDP Colony, Chittranjan Park, New Delhi within 45 days from today. The appellant, her representatives, assignees or persons claiming under her are further permanently restrained from entering the Suit Property.
48.Decree sheet be prepared accordingly.
49.Trial court record be send back along with copy of the judgment.
50.The appeal file be consigned to record room.
RAHUL Digitally signed by
RAHUL BHATIA
Date: 2025.05.30
BHATIA 15:23:47 +0530
Announced in the open (RAHUL BHATIA)
Court on 29.05.2025 District Judge-01(SE),
Saket Courts, New Delhi.
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