Meenu Bhar vs Renu Khosla & Anr.
2008 Latest Caselaw 1981 Del

                  "REPORTABLE"
*           HIGH COURT OF DELHI AT NEW DELHI

+                 CS (OS) No. 1033/2004

                               Date of decision : 07.11.2008

#     MEENU BHAR                      ..... PLAINTIFF
!                 Through : Mr. Ajay Dahiya, Advocate


                           Versus


$     RENU KHOSLA & ANR.          .....DEFENDANTS
^        Through : Mr. Alok Bhachawat, Advocate.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

    (1) Whether reporters of local paper may be
        allowed to see the judgment?

    (2) To be referred to the reporter or not?              Yes

    (3) Whether the judgment should be reported
        in the Digest ?                                     Yes

                        JUDGMENT

ARUNA SURESH, J.

I firstly, proceed with to decide IA No.12395/2006

under Order 14 Rule 2 (Civil Procedure Code

(hereinafter referred to as „CPC‟) as it has the bearing

on the decision of the main suit.

IA No. 12395/2006 (Under Order 14 Rule 2 CPC)

Defendants have filed this application under Order

14 Rule 2 read with Section 151 CPC for framing of

preliminary issue as proposed Issue No.1. Since the said

issue is a pure question of law and needs no evidence.

No reply to this application has been filed by the plaintiff

and only oral submissions have been made. After

considering pleadings of the parties and submissions

made at the Bar, this application is allowed and

following preliminary issue is framed for trial.

Issue No.1: "Whether the plaint discloses any

cause of action against the defendants and if not,

whether the suit as filed is maintainable against the

defendants?"

This application stands disposed of accordingly.

CS (OS) No. 1033/2004

1. Plaintiff Meenu Bhar has filed the present suit

against defendants Renu Khosla and Manmohan

Singh for declaration, cancellation and permanent

injunction claiming following reliefs:-

(a) Cancellation, canceling the registered Sale

Deed dated 30.7.2004, registered with the

Sub-Registrar, Mehrauli, Delhi vide Document

No.9563 at additional Book No.1, Volume

No.4199 on pages 57-64 executed by

Defendant No.1 in favour of Defendant No.2;

(b) Declaration, declaring the Sale Deed dated

30.7.2004 registered with the Sub-Registrar,

Mehrauli, Delhi vide Document No.9563 at

additional Book No.1, Volume No.4199 on

pages 57-64 executed by Defendant No.1 in

favour of Defendant No.2 as null and void and

void ab initio;

(c) Permanent injunction restraining the

Defendant No.2 from entering into or taking

possession and/or remaining in possession or

enjoyment in the suit premises situated at J-

29, Lajpat Nagar III, New Delhi-110 024;

(d) Permanent injunction restraining the

Defendants from demolishing/ renovating/

constructing/altering the whole or any portion

of the suit premises situated on J-29, Lajpat

Nagar III, New Delhi-110 024;

(e) Permanent injunction restraining the

Defendants from transferring, alienating,

encumbering, selling, or parting with

possession or dealing with the suit premises

in any manner.

2. Briefly narrated the case of the Plaintiff is that

Late Shri Naval Krishan Khosla, father of the

Plaintiff and Defendant No.1 had purchased

property No. J-29, Lajpat Nagar-III, New Delhi,

measuring 253.6 Sq.Yds., from Smt. Vidyawati

vide registered Sale Deed dated 26.03.1958. After

purchase of the property Shri Naval Krishan Khosla

used the said property as residence for himself, his

wife and other family members. Shri Naval Krishan

Khosla got the said property freehold vide

Conveyance Deed dated 26.05.1996. Plaintiff got

married whereas defendant No.1; her real sister,

continued to live with her father Shri Naval Krishan

Khosla in the suit property. Shri Naval Krishan

Khosla during his lifetime gifted 60% of his land

and part of the ground floor built-up portion

alongwith complete first floor and second floor

together with the staircase (with reasonable right

of way to Donor) of the said house vide Gift Deed

dated 20.06.1998 as described in the schedule

attached to the Gift Deed.

3. On the same day, namely, on 20.06.1998 Shri Naval

Krishan Khosla executed a registered Will in

respect of remaining portion of his property

bequeathing the same in favour of defendant No.1.

Plaintiff and defendant No.1 being the only legal

heirs of Shri Naval Krishan Khosla were named as

beneficiaries in the said Will of all the moveable

and immovable assets left behind by deceased Shri

Naval Krishan Khosla including the property in

question. Shri Naval Krishan Khosla expired on

12.05.2002.

4. In the plaint it is averred that Plaintiff and

defendant No.1 continued to live in the suit

property as a dwelling unit belonging to undivided

family though they were occupying separate

portions and had a separate mess. Plaintiff‟s

husband is a Barrister at Law and is practicing in

Malaysia and when she flew from Malaysia to

India, she found out that Defendant No.1 had sold

the suit property vide registered Sale Deed dated

30.07.2004, hence she filed the present suit.

5. Defendants have contested the suit of the plaintiff

contending inter alia that the plaint does not

disclose any cause of action as the plaintiff has filed

the present suit for cancellation of Sale Deed dated

30.07.2004, declaration and permanent injunction

and such a suit must satisfy the ingredients of

Sections 31,34,38 and 39 of the Specific Relief Act

which she has failed to comply with in the present

suit. Plaintiff and Defendant No.1 became owners

of two distinct portions of the house by virtue of the

Gift Deed and the Will executed by Shri Naval

Krishan Khosla and therefore, defendant No.1 had

absolute right to sell her portion of the property

alongwith all attached easements appurtenant

thereto and common right of usage of passage,

staircase, etc. which she sold to Defendant No.2

vide Sale Deed dated 30.07.2004. Plaintiff has not

made any averments to constitute a cause of action

against Defendant No.1 to show that she was not

entitled to induct any stranger in the property and

that she had no right or power to sell her share and

by selling her share of the property she committed

breach of right of privacy of the plaintiff. Plaintiff

and defendant No.1 are not members of the same

family as Plaintiff was married and had gone to

another family and she could not enforce any law of

pre-emption against defendant No.1. Plaintiff after

her marriage resided with her husband at Malaysia

and therefore defendant No.1 could not have

committed any breach of her right of privacy by

sale of the property to defendant No.2, a stranger

and therefore the sale of the property by defendant

No.1 to defendant No.2 of her share in the suit

premises was legal and valid. Defendant No.2 had

no intention to initiate any commercial activity,

which he could do only after taking due permission

from the authorities and the alleged apprehension

of the plaintiff cannot be made a ground to

challenge the sale deed and therefore the suit

deserves dismissal with costs.

6. Plaintiff filed her replication to the written

statement wherein she reasserted her stand taken

in the plaint and refuted the averments of the

defendants as raised in the written statement.

7. On the pleadings of the parties following

preliminary issue has been famed for trial:-

Issue:-

"1. Whether the plaint discloses any cause of action against the defendants and if not, whether the suit as filed is maintainable against the defendants?"

8. I have heard Mr. Ajay Dahiya, Advocate for the

Plaintiff, Mr. Alok Bachawat, Advocate for

defendants and have carefully perused the record.

9. It is submitted by the learned counsel for the

plaintiff that Sale Deed dated 30.07.2004 executed

by defendant No.1 is neither valid nor is binding

upon the plaintiff as by virtue of the said Sale Deed

defendant No.1 has transferred certain rights in

respect of certain portions of the suit property

which was neither vested in her name nor she had

authority on the same and it was a common area to

be used by the Plaintiff as well as by defendant

No.1 and that under the circumstances, Plaintiff

had reasonable apprehension that the said property

allegedly purchased by defendant No.2 would be

used for commercial purpose and the use of the

property for such commercial activities is neither

permissible nor sanctioned under the Zonal Plan or

Master Plan of Delhi and such user, if any, would

be in utter violation of Municipal bye laws. It is

further submitted that intended remodeling of the

premises by defendant No.2 would be harmful to

both life and property of the Plaintiff and her family

members as the suit premises is a dwelling house

belonging to undivided family and defendant No.1

had no right, power or authority to sell her share

and that Plaintiff was entitled to purchase the

share of defendant No.1. It is also argued that

defendant No.2 had no power or authority to induct

any stranger in the property as Plaintiff could not

be made to live with stranger in the suit property

as she was entitled to use and occupy the joint

portion of the property.

10. Mr. Alok Bhachawat, learned counsel for the

defendants has submitted that the suit as filed by

the plaintiff for cancellation of Sale Deed,

declaration and permanent injunction does not

embed Sections 31,34, 38 and 39 of the Specific

Relief Act, 1963 (hereinafter referred to as „Act‟).

It is further submitted that Plaintiff and defendant

No.1 became owners of distinct portions of the

house as Plaintiff became owner of portion of the

house by virtue of a registered Gift Deed dated

20.6.1998, whereas defendant No.1 got remaining

portion of the property by virtue of a Will executed

by her father on 20.6.1998 upon the death of her

father Shri Naval Krishan Khosla on 12.5.2002

and therefore defendant No.1 had exclusive right in

the property which she legally sold in favour of

defendant No.2 on 30.7.2004. It is further argued

that Plaintiff has based her claim on the law of

right of pre-emption assuming that she and

defendant No.1 are members of joint family and co-

owners of the suit property, since plaintiff and

defendant No.1 were the owners of distinct and

delineated parts of the same property, they could

not be considered as members of the same family

as Plaintiff after marriage had gone to another

family and also there was no law of pre-emption in

force at the time of the execution of the impugned

Sale Deed. Learned counsel for defendants has

further submitted that defendant No.2 had no

intention to use the suit property for commercial

purposes in violation of any laws in force and right

of privacy of plaintiff was not breached in any

manner and therefore, the suit of the plaintiff does

not disclose any cause of action against the

defendants and it is liable to be dismissed as not

maintainable.

11. The admitted facts of the case are:-

(a) Shri Naval Krishan Khosla had acquired a

residential house bearing No.J-29, Lajpat

Nagar-III, New Delhi on 26.03.1958 which he

purchased from Smt. Vidyawati vide Sale

Deed dated 26.03.1958.

(b) Shri Naval Krishan Khosla‟s wife expired on

24.04.1996 during his lifetime.

(c) Plaintiff and defendant No.1 are the

daughters of Shri Naval Krishan Khosla.

Plainitiff was married by Naval Krishan

Khosla during his life time and she is residing

at Malaysia with her husband who happen to

be Barrister at Law and practicing at

Malaysia. She had been coming to India off

and on.

(d) On 20.6.1998 Shri Naval Krishan Khosla

executed two documents, namely:-

(i) Registered Gift Deed, whereby he

bequeathed and conferred 60% of his

land and part of the ground floor built

up portion along with complete first

floor and complete second floor

together with the staircase and all

rights to easement of the residential

house in favour of the Plaintiff.

            (ii)        Registered Will Deed in favour of

                        defendant      No.1       whereby         he

                        bequeathed remaining part of the



                         impugned   property    in   favour   of

                        defendant No.1.

(e) Gift deed dated 20.06.1998 became effective

on its execution and admittedly Plaintiff

started enjoying exclusive right of the portion

so gifted to her in the impugned property. It

was during the life time of Shri Naval Krishan

Khosla that the impugned property stood

divided. In the remaining portion Shri Naval

Krishan Khosla resided till his lifetime and

after his death on 12.5.2002, the said portion

of the property devolved upon defendant No.1

by virtue of the registered Will Deed. In other

words, defendant No.1 became owner of 40%

share of the land and remaining built up

portion of the property after the death of her

father i.e. after about four years of the

execution of the documents. Therefore, there

was no joint family existing at the time when

the impugned Sale Deed dated 30.7.2004 was

executed by defendant No.1 whereby she sold

her share in the impugned property in favour

of defendant No.2.

12. On the admitted facts of this case, Plaintiff cannot

claim pre-empting rights to purchase the share of

defendant No.1 in the impugned property.

Admittedly, after her marriage plaintiff became

member of another family and seized to be a

member of the joint family of Shri Naval Krishan

Khosla. It is pertinent to mention here that

Plaintiff has not claimed any relief to enforce her

right of pre-emption though pleaded in the plaint.

What she has sought is the cancellation of the Sale

Deed dated 30.07.2004 on the grounds that she

and her family members would face difficulties if a

stranger was made to live in the house and she had

apprehension that the property might be used for

commercial purposes which would be in violation of

the Zonal as well as Master Plan and Municipal

bye-laws and she would also lose her right of

privacy.

13. Section 31 of the Act speaks of circumstances when

cancellation of an instrument can be ordered by the

court. As per the provisions of this Section, any

instrument can be ordered to be cancelled by the

court upon its discretion and adjudication when

such written instrument against any person is void

or voidable and the person has reasonable

apprehension that such instrument if left

outstanding might cause him serious injury. The

relief of cancellation under Section 31 of the Act is

founded upon administration of protective justice

for the fear that the instrument might be

vexatiously or injuriously used by the defendants

against the plaintiff when evidence to impeach it

might be lost or that it might throw a cloud or

suspicion over the title or interest of the plaintiff.

Following conditions are required to be fulfilled for

applying Section 31 of the Act:-

(i) The written instrument in question must be

either void or voidable against the plaintiff;

(ii) The plaintiff must have a reasonable

apprehension of serious injury from the

instrument being left outstanding; and

(iii) In view of the circumstances of the case, the

Court should consider it reasonable and

proper to administer the protective and

preventive justice asked for.

14. Thus, it is clear that when a contract is voidable,

the right to determine it is subject to the condition

that an innocent third party is not affected by the

cancellation or even a wrong-doer, in case of delay

on the part of the party entitled to rescind. As a

condition to a rescission of the contract there must

be restitution in integrum (restitution to the

original position).

15. When a document is void ab initio, a decree for

setting aside the same would not be necessary as

such a document would be non-est in the eyes of

law and it would be a nullity. Section 31 of the Act

refers to both void and voidable documents and it

provides for discretionary relief. There is a

presumption that a registered document is validly

executed and a registered document, therefore,

prima facie would be valid under the eyes of law.

In the present case, validity and legality of the

documents executed by Shri Naval Kishore Khosla

is not under challenge and the plaintiff has

admitted them to be the legal documents executed

by Shri Naval Kishore Khosla during his life time.

Validity of the sale deed is also not specifically

challenged. Reference is made to „Prem Singh &

Ors. v. Birbal & Ors., (2006) 5 SCC 353‟.

16. Plaintiff had alleged that if the Sale Deed

challenged by her was left outstanding, it would

cause her serious injury and for that purpose she

had to allege that she had interest in the property

which would be jeopardized if instrument was not

cancelled. There is no such averment even pleaded

by the plaintiff in her plaint. As discussed above,

admittedly, she has no interest in the property

which has been sold by defendant No.1 in favour of

defendant No.2. Cancellation can only be at the

instance of a party who had executed the

instrument which is void or voidable so far as he or

she is concerned and if the document is one

executed by the third party, the plaintiff has to

show that the instrument so executed had cast a

cloud upon her title. Simple averments in the

plaint that plaintiff had an apprehension that

property might be converted into commercial use

by defendant no.2 which would infringe her

privacy, without any specific averment how her

interest would be jeopardized if the impugned Sale

Deed was not cancelled, would not entitle the

plaintiff to seek cancellation of the Sale Deed

executed by defendant No.1 in favour of defendant

No.2.

17. Under Section 34 of the Act, a person entitled to

any legal character, or to any right as to any

property can institute a suit against any person

denying or interested in denying his title to such

character or right and the court in its judicial

discretion may make a declaration that said person

is so entitled to such legal character as claimed.

The relief claimed by the plaintiff in the present

case is declaration for declaring the registered Sale

Deed dated 30.07.2004 executed by defendant

No.1 in favour of defendant No.2 as null and void

ab initio. Plaintiff‟s title in the property gifted to

her by her father is neither denied nor disputed by

any of the defendants.

18. The object and scope of Section 34 of the Act is to

perpetuate and strengthen testimony regarding

title and to protect the same from adverse attack

that is, to prevent future litigation by removing

existing cause of controversy not only to secure the

plaintiff‟s possession of the property wrongfully

taken away from him or her but also to see that he

or she is allowed to enjoy that property peacefully.

In other words, if a cloud is cast upon the title of

the plaintiff by denial of his legal character or right

or by execution of any document which is left

outstanding would militate against such legal

character or right, he is entitled to a relief under

Section 34 of the Act. In this case, plaintiff has not

claimed any right or title in respect of 40% share of

the property which was sold by defendant No.1 to

defendant No.2 by virtue of the impugned Sale

Deed. Plaintiff neither had been in possession nor

has claimed possession of the suit property which

is the subject matter of the Sale Deed. Her rights

have not been denied or taken away by defendant

No.1 when she sold her property in favour of

defendant No.2. Plaintiff cannot claim relief as

prayed as of right which has to be granted

according to sound principles of law and ex debito

justitiae. The court cannot convert itself into an

instrument of injustice or vehicle of oppression.

The court has to keep in mind the well-settled

principle of justice and fair play while exercising its

discretion, since justice is the hallmark and it

cannot be administered in vaccum. Before granting

or refusing to grant relief of declaration or

injunction, the court must weigh pros and cons of

each case, consider the facts and circumstances in

their proper perspective and exercise discretion

with circumspection to further the ends of justice.

19. From the facts and circumstances as narrated in

the plaint it can be safely held that relief of

declaration if granted to the plaintiff would be

unjust and illegal. Since plaintiff and defendant

No.1 were owners of their separate portions by

virtue of two separate documents, plaintiff had no

right to come to the court to have the impugned

sale deed cancelled or to seek an injunction against

the defendants upon such obstructions as alleged.

20. Section 38 discusses perpetual injunction which

can be granted by a court to the plaintiff to prevent

the breach of an obligation existing in his favour,

whether expressly or by implication. When such

obligation as aforesaid arises from the contract, the

court would be guided by the provisions under

Chapter II of the Act. When the defendant

threatens to invade or invades the right to

enjoyment of the property of the plaintiff, the court

is within its discretion to grant injunction in the

cases where the defendants are the trustee of the

property of the plaintiff, where there existed no

standards for ascertaining the actual damage

caused or likely to be caused by such invasion and

that such invasion cannot be compensated in terms

of money and also if the court is of the view that

injunction is necessary to prevent any multiplicity

of the proceedings.

21. Section 39 of the Act deals with mandatory

injunction on similar lines.

22. Relief of injunction as prayed by the plaintiff in the

plaint is only against defendant No.2 who is in

possession of the suit property since after its

purchase by way of the impugned Sale Deed. The

relief claimed is that defendant No.2 be restrained

from entering into or taking possession and/or

remaining in possession or enjoyment in the suit

premises. Injunction means, the prevention of

breach of obligation existing in favour of the

plaintiff either expressly or impliedly by the order

of the court. Plaintiff in this case has no contract

existing with either of the defendants nor the

defendants have any obligation to the plaintiff

which can be termed as breach of obligation within

the meaning of Section 39 of the Act.

23. Plaintiff has also sought permanent injunction for

restraining the defendants from demolishing,

renovating, constructing, altering the whole or any

portion of the suit premises and also for restraining

the defendants from transferring, alienating,

encumbering, selling or parting with possession or

dealing with suit premises in any manner. The fact

remains that the entire claim of the plaintiff is

based on apprehensions. There are no averments in

the plaint indicating any substantial demolition of

the suit premises. There are no allegations that

any construction was being raised against the

municipal bye-laws or any alteration in the whole

or any part of the suit premises has been carried

out by the defendants. No injunction can be

granted only on the basis of apprehension

especially when plaintiff has no right, title or

interest in the suit property which exclusively

belonged to defendant No.1 and now to defendant

No.2. Thus, the facts as pleaded do not entail for

an injunction against the defendants. It would not

be out of place to point out that plaintiff has not

stated any fact which call for a quia timet relief.

The enjoyment of the part of the property which

was gifted to her as well as the possession of the

said property is also not being interfered by either

of the defendants. Admittedly plaintiff has not

been in continuous physical possession of the

property since after her marriage and is residing

with her husband in Malaysia.

24. Defendant No.2 is within his rights to repair,

renovate, construct his property in the manner he

so desires within the ambit of law. The rights of

the plaintiff are not affected in any manner. The

allegations made by the plaintiff are unfounded and

therefore on these allegations no declaration or

injunction as prayed can be granted to the plaintiff.

The suit of the plaintiff is speculative in nature and

the right by virtue of which relief claimed is

admittedly not pleaded in the plaint.

25. Cause of action consists of bundle of facts which

give cause to enforce the legal injuries for redress

in a court of law. The „cause of action‟ means,

therefore, every fact, which if traversed, would be

necessary for the plaintiff to prove in order to

support his right to a judgment of the court. In

other words, it is a bundle of facts which taken with

the law applicable to them, gives the plaintiff a

right to claim relief against the defendants. It must

include some act done by the defendant since in

the absence of such an act no cause of action would

possibly accrue or would arise.

26. Cause of action is defined in „South East Asia

Shipping Co. Ltd. v. Nav Bharat Enterprises

(P) Ltd., (1996) 3 SCC 443, in context of relief

claimed by the party under Specific Relief Act as:

"It is settled law that cause of action consists of bundle of facts which give cause to enforce the legal injury for redress in a court of law. The cause of action means, therefore, every fact, which is traversed, it would be necessary for the plaintiff to prove in order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them, gives the plaintiff a right to claim relief against the defendant. It must include some act done by the defendant since in the absence of such an act no cause of action would possibly accrue or would arise."

27. Right to sue must be equated with the cause of

action unless the context requires otherwise. The

facts professed by the plaintiff must include some

act done by the defendant since in the absence of

such an act no cause of action can possibly accrue.

It is not limited to the actual infringement of the

right sued on but includes all the material facts on

which it is founded. It does not comprise evidence

necessary to prove such facts, but every fact

necessary for the plaintiff to prove to enable him to

obtain a decree. The plaint should convey the

restricted idea of facts or circumstances which

constitute either infringement or the basis of right

and no more. In comprehensive sense, the cause of

action denotes the whole bundle of material facts

which plaintiff must prove in order to succeed and

these are all relevant facts without the proof of

which plaintiff must fail in his suit.

28. Upon perusal of the plaint, it is clear that the Gift

Deed and the Will by virtue of which the suit

property has devolved on the plaintiff and

defendant No.1 have been admitted by the plaintiff

and are not in dispute. Plaintiff has also not

pleaded in the plaint that defendant No.2 has

denied her title or interest in the property or that

any act of defendant No.2 has caused grievance or

denial of utilization or enjoyment or possession of

her share of the property. No deviation in the Sale

Deed, which only bestows the part of the suit

property of defendant no.1 to defendant No.2 and

not an inch excess, has been alleged by the

plaintiff. She has just averred that bathroom locks

were found open on the ground floor which falls to

her share of the property and no other averment

appears in the plaint showing in any way that

defendant Nos. 1 and 2 have caused any harm or

injury in regard to the legal status or title in the

property of the plaintiff by virtue of the impugned

Sale Deed.

29. Relief claimed by the plaintiff does not in any way

get support from the contents of the plaint as she

has not shown any injury caused or reasonable

basis for her apprehension that injury might be

caused to her or that her rights would be invaded

in the property by virtue of the impugned Sale

Deed or of the admitted possession of that part of

property by defendant No.2.

30. In my opinion, on reading through the relief of

cancellation of the Sale Deed and declaration of the

same as null and void as claimed by the plaintiff, as

well as the contents of the plaint and the averments

it cannot be inferred that the plaintiff would suffer

serious injury if the impugned Sale Deed is left

outstanding.

31. Plaintiff has never been in possession of the

dwelling house and has also not used it for

habitation since she got married and thereafter has

been residing in Malaysia with her husband. Her

occasional visits to India as stated by her cannot be

deemed to comprehend that she was in possession

of the property or was using it as residence. Also

by virtue of the impugned Sale Deed only 40% of

the share in the plot of land as well as major

portion of ground floor is sold by defendant No.1 in

favour of defendant No.2 and this is in consistency

with the share bequeathed on defendant No.1 by

virtue of the Will dated 20.06.1998. Hence legal

right and status of the plaintiff cannot be said to

have been encroached by the defendants and

neither are the defendants denying the title of the

plaintiff to 60% share in the immovable land,

portion of ground floor, complete first floor and

second floor and 60% share in the area over and

above barsati floor. Thus, the Sale Deed is valid

and cannot be cancelled nor calls for a declaration

rendering it void ab-initio.

32. Plaintiff has made unfounded allegations against

defendant Nos.1 and 2 which would not entitle the

plaintiff to get relief of cancellation of the Sale

Deed and declaration of the same as void ab-initio.

The suit is speculative in nature and the right by

virtue of which relief is claimed is not made out in

the plaint.

33. It need to be recaptured that Sale Deed was only

with respect to the share of defendant No.1 and

since there was no deviation noticed in respect of

the sale of the property, thus the defendant cannot

be restrained to enter into or take possession or

enjoy their entire property in the Sale Deed as

defendant No. 2 has the right to enter, enjoy and

possess the property purchased by him.

34. Similarly, an order restraining defendant No.2 from

demolishing, renovating, constructing altering the

whole or any portion of suit premises as per

Section 38 cannot be given as the plaintiff has not

disclosed as to if any such act might prospectively

or even presently affect or invade upon the rights

as well the legal status of the plaintiff. Thus

perpetual injunction as prayed cannot be granted

in favour of the plaintiff against the defendants.

35. A direction by this court placing an embargo on the

defendants from transferring, alienating,

encumbering, selling or parting with possession or

dealing with suit premises in any manner may also

not be an appropriate one because if such an act of

alienating, encumbering, selling or parting with

possession or dealing with suit premises affects

rights or legal status of the plaintiff then the same

is not mentioned by the plaintiff.

36. As discussed above, the plaint does not disclose any

cause of action against any of the defendants and

therefore the suit as filed is not maintainable.

Hence, the issue is decided in favour of the

defendants and against the plaintiff.

37. In view of discussion on the preliminary issue as

above, the suit is hereby dismissed with costs.

38. Decree be prepared accordingly.

ARUNA SURESH (JUDGE) NOVEMBER 07, 2008 vk