Naeem Ahmed vs Sheeba Mehfooz
2025 Latest Caselaw 6166 Del

Delhi High Court

Naeem Ahmed vs Sheeba Mehfooz on 4 December, 2025

                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                               Judgment Reserved on: 01.12.2025
                                                         Judgment pronounced on: 04.12.2025
                          +      FAO 400/2024 & CM APPL. 75311/2024
                                 NAEEM AHMED                                   .....Appellant
                                                Through:      Mr. Baban Kr. Sharma, Adv.

                                                versus

                                 SHEEBA MEHFOOZ                                .....Respondent
                                                Through:      Mr. Gaurav     and   Ms.     Mumtaj,
                                                              Advocates.

                          CORAM:
                          HON'BLE MS. JUSTICE CHANDRASEKHARAN SUDHA
                                                JUDGMENT

CHANDRASEKHARAN SUDHA, J.

1. The present appeal under Order XLIII Rule 1 of the Code

of Civil Procedure, 1908 (the CPC), has been filed by the

appellant/plaintiff challenging the order dated 19.10.2024 in CS

No. 3294/2024 on the file of learned District Judge-07, South-East

District, Saket Courts, Delhi, whereby his application filed under

Order XXIX Rule 1 and 2 CPC has been dismissed. The parties in

this appeal shall be referred to as described in the original

proceedings.

2. Brief facts as alleged by the plaintiff are as follows:

The husband of the defendant is a close friend of the

plaintiff, to whom he had lent some money. However, the

defendant's husband later on refused to return the money.

Thereafter, the defendant and her husband convinced the plaintiff

that he would get good returns if he invested money in Saudi

Arabia where the defendant was working. Promising the plaintiff

so, the defendant and her husband convinced the plaintiff to

execute a gift deed in favour of the defendant. Believing the words

of the defendant and her husband, the plaintiff executed a

registered gift deed dated 04.02.2015 in respect of 2050 sq. yards

of land out of a total of 2750 sq. yards in Khasra No. 940/534 Min,

Village Madanpur Khadar, Tehsil Kalkaji, New Delhi, in favour of

the defendant and 700 sq. yds in favour of his wife. Mutation was

duly carried out. However, possession was never given and hence

the gift did not come into effect. So, the plaintiff filed CS No.

920/2023 seeking a declaration that the gift deed is void. However,

the plaint was rejected under Order VII Rule 11(a) and (d) CPC by

order dated on 24.02.2024 as being barred by limitation and

without a cause of action. Appeal bearing No. RFA 341/2024

against the said order of rejection, is pending consideration before

this Court.

2.1. Thereafter, the plaintiff instituted the present suit for

possession and permanent injunction, alleging that on 27.03.2024,

the defendant had begun unauthorized and illegal constructions in

the suit property and was further attempting to alienate it to third

parties. The plaintiff also moved an application under Order 39

Rules 1 and 2 CPC, stating that the defendant had encroached upon

1599 sq. yards of property by dumping bricks, sand and other

materials with the intention of raising constructions and hence,

sought an interim order of injunction.

2.2 The defendant, on the other hand, submitted that the suit

was not maintainable in view of the earlier order of rejection of the

plaint in the earlier suit filed for declaring the gift deed void. It was

contended that the plaintiff was taking inconsistent stands in the

various suits between the parties. It was further contended that

after the execution of the gift deed, it was accepted and possession

of the property was taken by the defendant and so the plaintiff

ceased to have any right in the property. Further, if at all the

plaintiff required any relief, he ought to have moved the court in

which RFA 341/2024 is pending.

2.3. After hearing both sides, the trial court dismissed the

application under Order 39 Rule 1 and 2 holding that the plaintiff

had no prima facie case and no urgency, irreparable loss or ground

for interim injunction was made out. Aggrieved, the plaintiff has

come up in appeal.

3. The learned counsel for the plaintiff submitted that till the

lis is pending the subject matter of the suit required to be preserved

and hence the trial court went wrong in dismissing his application.

It was also submitted that if constructions etc. are carried out in the

property, it would adversely affect the interest of the plaintiff in the

suit property and hence it is absolutely necessary to pass an order

of status quo and directing the defendant not to make any

constructions or create any third party interest in the property.

3.1 On the other hand, it was submitted by learned counsel

for the defendant that the impugned order suffers from no infirmity

calling for an interference by this Court.

4. Heard learned counsel for the appellant/plaintiff as well as

the respondent/defendant and perused the materials on record.

5. The plaintiff claims to be the absolute owner of the plaint

schedule property. However, he admits that as early as in the year

2015 he had executed a gift deed in favour of the defendant. He

also admits that mutation was also effected. In the year 2023, the

plaintiff filed CS 920/2023 for declaring the gift deed to be void on

the ground that possession of the property had never been handed

over to the defendant and so the gift has never come into force.

The suit apparently was filed nearly eight years after the execution

of the gift deed. The trial court by Annexure P3 order dated

24.02.2024 has rejected the plaint in the suit on the ground of

limitation and as the plaint did not reveal any cause of action.

These facts are admitted by the plaintiff. It is also admitted that

Annexure A3 order is under challenge in RFA 341/2024. It is while

so, the present suit has been filed alleging that that plaintiff is the

owner of the plaint schedule property; that the gift deed is void and

that the defendant has encroached into the property and is making

constructions in the property. In the light of Annexure P3 order, the

plaintiff cannot succeed unless and until the said order is set aside.

Moreover, it is admitted by the plaintiff that the plaint schedule

property in CS 920/2023 and in the present suit are one and the

same. Therefore, if during the pendency of the RFA, if any

constructions were attempted to be made in the property, the

plaintiff ought to have moved necessary application in the said

appeal and not file a fresh suit relating to the same property

pending consideration before the appellate court.

6. In the aforesaid circumstances, I find no infirmity in the

impugned order calling for interference by this court.

7. The appeal sans merit is dismissed. Application(s), if any

pending shall stand closed.

CHANDRASEKHARAN SUDHA (JUDGE)

DECEMBER 04, 2025 RS/ER