IN THE COURT OF SH.

VAIBHAV CHAURASIA,
COMMERCIAL CIVIL JUDGE, WEST DISTRICT, TIS HAZARI COURTS,
DELHI.

CS No. 610183/2016
CNR No. DLWT03-000850-2013

Smt. Narender Kaur

Wife of late Shri Gurdev Singh,
Resident of WZ-244, Gali No. 3,
Gurunanak Nagar, Shahpura,
Tilak Nagar, Delhi.
........... Plaintiff.

Versus

1. Shri H.S. Sethi

2. Shri Deep Singh Sethi

Son of H. S. Sethi,
Of M/s. Sethi Properties
A-45, Chander Vihar,
Sunday Bazar Road,
Nilothi Extn, Delhi-110041.

3. Shri Amrik Singh alias Mikka

Of M/s. Bombay Metro Associates,
42-B, Raj Market, Sunday Bazar Road,
Chander Vihar, Nilothi Extn.,
Delhi-110041.

4. The S.H.Ο.
PS Nihal Vihar, Nangloi,
Delhi-110041. ….Defendants.

Date of Filing : 05.07.2013

Date of Judgment : 19.09.2024

JUDGMENT(ORAL)

1. Present suit has been filed by the plaintiff for permanent injunction

against the defendants. Briefly stated the facts of the case are as under:-

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 1 of 10
2. That the plaintiff is the exclusive owner of property No. 12- A, Chander

Vihar, Sunday Bazar Road, Gali No.22, Vikas Vihar, Nilothi Extn., Delhi-

110041 having purchased the same against consideration. That since the day

of purchase, the plaintiff has been in physical possession, use and occupation

of the property. That the plaintiff had entered into a collaboration Agreement

with contractor who had commenced the construction on the said property but

could not complete the same and he was involved in various criminal cases

and at present he is absconding and is hiding himself and his where about are

not known. That the plaintiff herself is to complete the construction work of her

said property in due course of time. That the defendants nos. 1,2 and 3 have

no relation of any kind either with the plaintiff or her said property in suit. That

there is absolutely no privity of contract between the plaintiff and the

defendants No. 1, 2 and 3. There is absolutely no money transaction between

the plaintiff and the defendants 1,2 and 3. That on 22.06.2012, came at the

defendants and threatened site and to dispossess and thereafter, and then the

plaintiff lodged the complaint on 28.6.2013. That the plaintiff strongly resisted

and made it clear to the said defendants that the defendants have no right, title

or interest, claim or concern with the suit property of the plaintiff. That the

being plaintiff the exclusive and absolute owner of the suit property has legal

right to possess and enjoy her said property; and the defendants have nothing

to do with the suit property.

Lastly, it is prayed that the present suit may be decreed in favour of the

plaintiff and against the defendants.

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 2 of 10
3. Thereafter defendant no. 1 filed the Written Statement in which he has

prayed for dismissal of the present suit and submitted that the defendant has

already filed a suit for permanent and mandatory injunction bearing C.S.No.

108/2013 against the plaintiff herein for not to dispossess him from the suit

property and remove the obstacle created by the plaintiff herein to enter the

property in question before receiving the notice of the instant suit. That the suit

of plaintiff is also bad for mis-joinder and non-joinder. It is submitted that the

plaintiff did not disclose the content of collaboration agreement dt. 20.09.2011,

sale and purchase agreement/Bayana with receipt dt 18/10/12 and sale and

purchase agreement/receipt of part payment with confirmation of earlier

agreements in pursuance of earlier agreement dt 18/10/12 on dt 17/11/12

executed between plaintiff and S.Amrik Singh regarding the suit property in

question. The content of collaboration agreement dt 20/09/11 is itself

explanatory to the contention of ownership and possession of the suit property

in question as wrongly stated by the plaintiff. That as per the contents of

collaboration agreement, the plaintiff is only entitled to the reconstructed two

floors i.e. first floor and third floor with roof rights over the plot/property No.

12A, khasra no. 31/1, Vikas Vihar, Chander Vihar, Extn. Nilothi, New Delhi

110041. In lieu of the two reconstructed floors, the plaintiff has lost her right,

title and interest over the plot as well as over the other floors which are

reconstructed by the builder S.Amrik Singh in pursuance of collaboration

agreement and other agreements other than two floors. It is important to

mention here that the defendant No.1 has been in possession of upper ground

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 3 of 10
floor with parking area at ground floor since 16/08/12 by S.Amrik Singh, the

builder by virtue of possession letter and further entitled to have possession

and to possess the second floor as per agreement dt.19.11.2011 which has

been reduced in writing on 21.09.2012 executed between the defendant No.1

and S. Amrik Singh, the builder against the valid consideration. That the suit of

plaintiff is liable to be dismissed for mis-joinder of the party and the present

suit is also liable to be dismissed for non-joinder of S.Amrik Singh S/o Lt

S.Gurbachan Singh, the builder who is the necessary party to decide the

instant case for proper adjudication. That the plaintiff has not filed any site plan

with the suit, hence the present suit is liable to be dismissed with exemplary

costs. That the plaintiff has further malafidely and deliberately concealed to

disclose the suit for specific performance no. 310/12/12 based on collaboration

agreement dt.20.09.2011 executed between plaintiff and S.Amrik Singh, filed

by S.Amrik Singh against the plaintiff. The occasion to file the suit for specific

performance by S.Amrik Singh certainly arose when the plaintiff failed to

perform her part of contract/ performance in pursuance of collaboration

agreement by which it can very clearly look and think that the intentions of the

plaintiff were very malafied from bigning. The plaintiff has been served in the

suit but did not put her appearance before the concerned Court. The conduct

of the plaintiff shows and proves the planning to harass S.Amrik Singh and

now to defendant and others who are the actual owners and have a legal right

to possess the property in question in these circumstances. It is important to

mention here that the plaintiff after receiving of summons amicably entered

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 4 of 10
into an agreement on dt. 18.10.2012 with S.Amrik Singh whereas the plaintiff

further agreed to surrender/sold even also her two floors i.e. first floor and third

floor with roof rights (for which the plaintiff was entitled as per the terms and

condition of the collaboration agreement) to S.Amrik Singh against the

consideration and towards acceptance of the agreement with terms and

conditions the plaintiff received the Bayana of Rs. 2,00,000/-(Two Lakh only)

on 18-10-12. It is further submitted that the plaintiff subsequently entered into

an agreement on dt. 17.11.2012 with S.Amrik Singh confirming the previous

agreements and further received the part payment of Rs.2,00,000/-(Two Lakhs

only) on dt 17/11/12 towards the sale and purchase agreement dt 18/10/12.

The plaintiff have not disclosed the subsequent facts/events and have

concealed the material facts from this court hence the suit of plaintiff is liable to

be dismissed with heavy costs forthwith.

4. Replication to the Written Statement was also filed by the plaintiff

wherein the plaintiff reiterated and reaffirmed the facts as stated in the plaint.

5. Issues were framed in the present matter for adjudication in the present

matter which are as under:-

ISSUES:-
1. Whether the plaintiff is in possession of property identified as 12-A,
Chander Vihar, Gali No. 22, Vikas Vihar, Nilothi Extn., Delhi-31 ?
(OPP)
2. Whether the defendant is in possession of upper Ground Floor at
12-A, Chander Vihar, Gali No. 22, Vikas Vihar, Nilothi Extn., Delhi-31

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 5 of 10
 ? (OPD)
3. Whether the plaintiff is entitled to the possession of entire property
identified as 12-A, Chander Vihar, Gali No. 22, Vikas Vihar, Nilothi
Extn., Delhi-31 ? (OPP)
4. Whether the defendant is entitled to the possession of the upper
ground floor of property identified as 12-A, Chander Vihar, Gali No.
22, Vikas Vihar, Nilothi Extn., Delhi-31 ? (OPD)
5. Relief.

6. Thereafter plaintiff examined herself as PW-1 and relied upon the

documents i.e. Copy of agreement to sell is Ex. PW1/1, Copy of GPA is Ex.

PW1/2, Copy of Will is Ex. PW1/3, Copy of affidavit is Ex. PW1/4, Copy of

receipt is Ex. PW1/5, Copy of order dated 13.03.2013 in CS No. 310/2012 is

Ex. PW1/6, Photographs are Mark A to Mark F, Photocopy of electricity bill is

Mark G & H, Original electricity bills are Ex. PW1/7 to Ex.PW1/9, Copy of

complaint to the DCP, SHO PS Nihal Vihar is Ex. PW1/10 and Ex.PW1/11.

Plaintiff has also examined PW-2 Sh. Gurpal Singh, who has relied upon

the documents i.e. Photocopy of Collaboration agreement dated 20.09.2011

already Ex. D-1 (Exhibited vide order dated 14.08.2014 while admission denial

of documents), Photocopy of Agreement to sell and purchase (Bayana

Agreement) dated 18.10.2012 already Ex. D-2. (Exhibited vide order dated

14.08.2014 while admission denial of documents) and Photographs are

already marked as Mark A to F (in examination of PW-1).

Both the witnesses were cross examined and discharged. Thereafter

plaintiff’s evidence was closed.

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 6 of 10
7. To disprove the case of the plaintiff, the defendant examined DW-1 Sh.

S. Harjeet Singh who has relied upon the documents i.e. Site plan is Ex.

DW1/1, Copy of Collaboration Agreement dated 20.09.2011 executed between

the plaintiff and S. Amrik Singh is Ex. DW1/2. (OSR), Copy of Possession

letter dated 16.08.2012 executed by S. Amrik Singh in favour of defendant no.

is Ex. DW1/3. (OSR), Copy of Agreement executed on 21.09.2012 between S.

Amrik Singh and defendant no.1 is Ex DW1/4.(OSR), Copy of Receipt cum

Acknowledgment dated 21.09.2012 executed by S. Amrik Singh is Ex. DW1/5.

(OSR), Copy of Sale & Purchase Agreement dated 18.10.2012 executed

between the plaintiff and S. Amrik Singh is Ex. DW1/6.(OSR), Copy of Sale &

Purchase Agreement dated 17.11.2012 executed between the plaintiff and S.

Amrik Singh is Ex. DW1/7. (OSR, first page) (obejcted with page no. 2 and 3),

Copy of Bayana Receipt issued by S. Amrik Singh in faovour of defendant no.

1 on 22.11.2012 is Ex. DW1/8. (OSR). DW-1 has also been cross examined

and discharged and Defendant’s Evidence was also closed.

8. I have carefully gone through the pleadings, testimony of PW-1,

documents, entire record and I have also heard the arguments at length
advanced by Ld. Counsels for the parties.

9. The present case has been filed by the plaintiff to seek permanent

injunction against the defendant herein to not to approach the suit property

and further to not to dispossess from the suit property.

It is not denied between both the parties that the Collaboration

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 7 of 10
Agreement was entered into wherein the builder Sh. Amrik Singh was to own

the two floors of the suit property and two floors of the suit property were to be

owned by the plaintiff. The upper ground floor and the second floor was to be

with the builder and the first floor and the third floor were to be with the

plaintiff.

10. It is the case of the defendant herein that he entered into a Collaboration

Agreement with respect to the builder qua second floor of the suit property. It is

pertinent to mention herein that the agreement which is stated to be

agreement to sell is neither stamped,and even if it is assumed to be notarized,

it is unregistered. Ld. Counsel for the plaintiff has argued that since the

Collaboration Agreement was not executed upon by the builder Sh. Amrik

Singh, the builder never have any right, title or interest in the suit property.

11. Be that as it may. Even assuming, for the sake of assumption, that the

builder Sh. Amrik Singh has right, title or interest in the suit property by virtue

of Collaboration Agreement (The performance of Collaboration Agreement is

not being commented upon as it separate set of dispute), the document that is

in favour of the defendant is only agreement, which is unregistered, and

further no benefit can be given U/Sec. 53-A of T.P. Act for the reason as the Ld.

Counsel for the defendant himself has admitted during the arguments that he

is only under constructive possession of the suit property, less any document

on record which could prove his actual possession. No benefit can be given

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 8 of 10
U/Sec. 53-A of T.P. Act because of the reason that agreement was executed

after the year 2001 and is unregistered.

12. The other set of arguments that can be taken forth is that the

consideration amount was paid. During cross examination of DW-1 dated

07.02.2024, wherein the defendant has admitted that the amount was paid

through cheque and thereupon the bank statement was called for. The bank

statement was produced before this court on 28.03.2024 wherein Ex. DW-1/10

(Colly.) was perused and it was revealed that only cash withdrawal has been

done, contrary to the averments of the defendant that the payment/

consideration amount was made through cheque. Even otherwise, if this

Court assumes that the cash withdrawal was done and the payment was made

to the builder Amrik Singh, there is no proof that Sh. Amrik Singh has come

forth before this Court or has been examined by the defendant stating that Sh.

Amrik Singh had acknowledged the payment of such consideration amount.

Ld. Counsel for the defendant has relied upon Ex. DW-1/5, which is an

acknowledgment through cheque but no proof has been brought forth with

respect to such withdrawal of amount through bank statement. Even the

author of the acknowledgment i.e. Sh. Amrik Singh has never come forth

before this Court by either of the parties to prove such acknowledgment,

therefore, the Court will not rely upon Ex. PW-1/5 and such document is not

proved to the satisfaction of this Court. Even no benefit can be given under

Section 202 of the Contract Act, as payment of consideration cannot be proved

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 9 of 10
by the defendant, rather defendant has contradicted himself in his cross-

examination wherein he was averring that payment were made in cheque, but

there were only cash withdrawals.

It is noted that one suit for Specific performance is also pending

between the parties. Further, no site plan has been filed.

However, this Court has no hesitation to hold that the plaintiff herein is

entitled for permanent injunction wherein the defendant is restrained from

dispossessing the plaintiff from the suit property otherwise then in due process

of law as there is no dispute that plaintiff had better title than the builder Sh.

Amrik Singh, who allegedly sold the property to defendant. Henceforth, suit is

decreed in favour of the plaintiff and against the defendant wherein defendant

is permannently restrained from.................... otherwise than in due process of

law.

13. File be consigned to Record Room after due compliance.

Announced in the open Court

On 19th September, 2024.

(This judgment contains 10 pages)

(VAIBHAV CHAURASIA)
Commercial Civil Judge
West District Courts, Delhi.

CS No. 610183/2016 Narinder Kaur Vs. H.S. Sethi & Ors. Page No. 10 of 10