[Cites 8, Cited by 0]
Delhi High Court
Vasdev Wadhwa vs Late Sh. Rattan Lal Alias Pinki Through ... on 6 April, 2026
Author: Neena Bansal Krishna
Bench: Neena Bansal Krishna
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 20st January, 2026
Pronounced on: 06thApril, 2026
+ RFA 794/2025
SH. VAS DEV WADHWA
S/o Late Shri. Bhagwan Das,
R/o F-20, Second Floor, Lajpat Nagar-I
New Delhi-110024
..... Appellant
Through: Mr. Avtar Singh, Adv.
versus
1. Late Sh. Rattan Lal @ Pinki
Through his LRs:
(i) Mrs. Neelam W/o Late Sh. Rattan Lal
(ii) Ms. Pooja D/o Late Sh. Rattan Lal
(iii) Ms. Harshita D/o Late Sh. Rattan Lal
(iv) Mr. Nitin S/o Late Sh. Rattan Lal
All R/o
A-24, First Floor, Gali No.8
Pratap Nagar, Mayur Vihar,
New Delhi
2. SMT. KALAWANTI
W/o Late Sh. Kishan Israni
.... Respondents
Through: Mr. Rishi Kant Mishra & Mr. Nishant
Singh, Advs.
CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. Regular First Appeal has been filed under Section 96 and Order
XLI of the Code of Civil Procedure, 1908 (hereinafter referred to as
"CPC") against the Judgment dated 27.03.25, passed by the learned
District Judge, Delhi, whereby the Civil Suit filed by the
Appellant/Plaintiff, for Mandatory Injunction, Recovery ofRs. 5,19,000/-
along with pendente lite and future interest @18% per annum and
unauthorized occupation charges @Rs.15,000/- per month, with effect
from 11.11.2017,was partly decreed.
2. The Plaintiff/Appellant filed a Suit bearing No.161/2018 for
Mandatory Injunction and Recovery of Rs. 5,19,000/- along with Mesne
Profits. The facts as briefly stated in the plaint, are that the
Appellant/Plaintiff, Sh. Vasdev Wadhwa, and the Respondents/Defendants
are family members. Respondent No.1, Sh. Rattan Lal @ Pinki (since
deceased)and Respondent No.2, Smt. Kalawanti are the brother and sister
of the Plaintiff, respectively.
3. The Appellant/Plaintiff submitted that originally Late Sh. Kishan
Lal Israni, the deceased husband of Defendant no. 2, Smt. Kalawanti had
purchased the plot from the erstwhile owners and raised construction up to
the second floor.In year of 1990, Late Sh. Kishan Lal Israni sold the first
floor of the property to Defendant no. 1. Thereafter, he sold the second
floor, i.e. the suit property, to Padma Devi @ Ganga Devi w/o Plaintiff,
which wassubsequently sold to the Plaintiff, in the year 2000.
4. The Plaintiff thus, claimed thathe is the absolute owner of the
second floor of property bearing no. A-24, Gali No. 8, Pratap Nagar,
Mayur Vihar, Phase-I, Delhi (hereinafter referred to as „Suit Property‟),
which had one room, a kitchen and an open veranda, as shown in the Site
Plan Ex. PW1/1. The Plaintiff and his family resided there for some time
and later shifted to Lajpat Nagar. However, the Plaintiff and his family
continued to occasionally visit the Suit Property.
5. The Plaintiff further submitted that on 10.11.2005, Defendant no. 1
agreed to purchase the suit property for a consideration of Rs. 2,50,000/-,
out of which he paid Rs. 1,00,000/- as partpayment, and agreed to pay the
balance of Rs. 1,50,000/-on 15.12.2005, upon which possession was to be
handed over to Defendant No.1.However, Defendant No.1 failed to pay the
remaining amount on 15.12.2005 and thus, the Plaintiff forfeited the
earnest money and treated the Agreement, as nullified.
6. Thereafter, Defendant No.1 instituted a Suit for Specific
Performance on 01.11.2009, which was decided in favour of the
Defendant No.1 vide Judgment dated 10.01.2012 Ex.PW1/B, by
CCJ/ARC, Delhi.
7. An Appeal was filed by the Appellant/Plaintiff, before the learned
ADJ-01 (East), Delhi, which was allowed in the favour of the
Appellant/Plaintiff, where in the first Appellate Court set aside the decree
for Specific performance, but directed the Plaintiff to return Rs.
1,00,000/- to the Defendant No.1 along with interest @ 6% per annum
from the date of institution of the Suit till realization, vide Judgment dated
09.06.2014 Ex.PW1/C.
8. Then, Defendant No.1 filed a Regular Second Appeal, RSA No.
219/2014 in this Court, against the Judgment dated 09.06.2014, which was
dismissed vide Judgment dated 20.02.2015 Ex. PW1/D. Thereafter,
Defendant No.1 filed Special Leave to Appeal SLP(C) No. 12653/2015 in
the Supreme Court. However, it was dismissed on merits, vide Order dated
16.07.2015 Ex.PW1/E.
9. The Plaintiff further asserted that the Plaintiff and his wife used to
visit the suit property, on different occasions. Whenever the Plaintiff and
his wife visited the Suit property, Defendant no. 1 and his family behaved
with them in a very hostile and unruly manner and for this reason, they
never stayed at the suit property for a long period of time.
10. The Plaintiff further averred that on 28.07.2015, at about 3pm,
when the Plaintiff visited the suit property, Defendant No.1 did not open
the main entrance gate on the ground floor, and there is only one common
stair to reach the second floor of the premises. The Plaintiff requested the
Defendant No.1 to open the gate and allow him to go to the suit property.
However, instead of opening the gate, he started abusing and intimidating
the Plaintiff and his family. Defendant no.1 has no right to stop the Plaintiff
from accessing and entering into his own property. Consequently, a
Complaint was lodged by the Plaintiff in P.S. Pandav Nagar, Delhi on
04.08.2015 Ex.Mark A.
11. The Plaintiff, then filed a Suit No. 8540/16 for Permanent and
Mandatory Injunction against Defendant no. 1 along with an Application
under Order XXXIX Rule 1 & 2 CPC, before Ld. CJ, Delhi. The
Application was decided in favour of the Plaintiff vide Order dated
05.05.2016 EX. PW1/G, whereby Defendant no. 1 was restrained from
creating any obstruction/hindrance to the Plaintiff in accessing the suit
property.
12. This Order was challenged by Defendant no.1 vide MCA No.
43/16, but it was dismissed vide Order dated 29.11.16 Ex. PW1/H, by Ld.
DSJ, Delhi.
13. Thereafter, in terms of the Order dated 05.05.16 permitting him
access to his property, the Plaintiff visited the suit property, but Defendant
no.1 again obstructed him and neither opened the main entrancenor
allowed the Plaintiff to reach the suit property. Consequently, the Plaintiff
filed an Application under Order XXXIX Rule 2A CPC before Ld. Senior
Civil Judge for taking necessary action against Defendant no.1 for defying
the order dated 05.05.2016 passed byLd. CJ, Delhi.
14. The Plaintiff claimed that he is entitled for damages on account of
mental torture and agony caused to him by the conduct of the Defendant
no.1. Accordingly, the Plaintiff sent a Legal Notice dated 14.09.2017 Ex.
PW-1/K (Colly) and demanded to pay a sum of Rs 16,50,000/- from
Defendant no.1, calculated as Rs.10,00,000/- towards mental torture, and
Rs. 6,50,000/- for damages, which is quantified as Rs. 25,000/- per month,
since 28.07.2015.
15. Meanwhile, the Plaintiff moved an Application before Ld. SCJ,
Delhi for grant of police aid and order for breaking open of locks, qua the
execution of warrant. Ld. SCJ issued directions to the SHO, P.S. Pandav
Nagar, Mayur Vihar, Phase-I, Delhi, directing him to provide adequate
police aid, for the proper execution of warrant of free access.
16. In compliance of the Order dated 03.11.2017, the Plaintiff along
with the Bailiff, visited the suit property, but again the Defendant no.1 and
his family did not open the main gate for reaching the suit property.
Finding no other alternative, gates upto second floor were removed by the
bailiff. However, when Plaintiff got access to the suit property, he found
that Defendant no. 1 had illegally kept his belongings in the room and the
kitchen of the suit property. Defendant no. 1 was requested to remove his
belongings, but he refused all the requests made by the Plaintiff and he
further warned the Plaintiff to file another case, to get these belongings
removed from the room and kitchen.
17. As the Orders of the Court were with regard to free access and
removal of obstruction/hindrance, hence the goods of the Defendant no.1
which were illegally kept by him in the room and kitchen, were not
removed, but only the doors of the ground floor and first floor, were
removedby the bailiff.
18. It is further averred in his plaint, that Defendant no.1 moved an
Application for the fixation of doors before Ld. Senior Civil Judge, Delhi.
The Application was allowed vide Order dated 19.01.2018 and Plaintiff
was directed to fix the doors at hisown cost, and further directed to put
interlocks in the doors and directed the Plaintiff to give one key to
Defendant no. 1 and the resident of ground floor. The Plaintiff duly
complied with the Order of the Ld. Senior Civil Judge on 21.01.2018 and
put the interlocks on the doors of the ground floor and first floor and
further, gave one key to Defendant no. 1.
19. The Plaintiff further averred that on 21.01.2018, hefound the locks
of the Defendant no.1 on the kitchen door and room of the suit property.
Defendant no.1, without having any right and title over the room and
kitchen of the suit property, illegally kept his belongings and further put his
locks and hence, committed the offence of trespassing.
20. The Plaintiff further claimed thatan illegal structure was also raised
over and above the room of the suit property of the Plaintiff by Defendant
no.2, which was being used with the help of an iron ladder. Defendant no.
2 had no right to raise any kind of construction over and above the room on
the suit property. Defendant no. 2, by illegally erecting the room over and
above the room of the suit property, has damaged and weakened the
property of the Plaintiff, to a great extent.
21. Therefore, the Plaintiff sought the relief of the Mandatory
Injunction for removal/demolishing of the illegal portion raised over
and above the room of the suit property.
22. The Plaintiff in his Plaint has also averred that Defendant No. 1 is
liable to pay Rs. 6,75,000/-to the Plaintiff, for not allowing him to use the
suit property, along with interest at the rate of Rs. 25,000/- with effect from
28.07.2015 till 10.11.2017.
23. Hence, after adjusting, the forfeited earnest money of Rs.
1,00,000/- along with interest @6% per annum, which comes around Rs.
1,56,000/-, which the Plaintiff had to refund as per the directions of Ld.
ADJ vide Judgment dated 09.06.2014, the amount whichis recoverable
from Defendant no. 1is Rs.5,19,000/-.
24. The Plaintiff has also prayed for recovery of unauthorized
occupation charges for illegally occupying the roomand kitchen of the
Plaintiff, from 11.11.2017 @ Rs. 15,000/- per month till Defendant No. 1
removes his belongings and locks from the suit property.
25. Hence, the Plaintiff filed the present suit for Mandatory
Injunction, Recovery of Rs. 5,19,000/- along with pendente-lite and
future interest at the rate 18% per annum and unauthorized occupation
charges @ Rs. 15,000/- per month w.e.f. 11.11.2017, against the
defendants.
26. The Defendants in their Written Statement submitted that
Defendant No. 1 had been put in possession of the suit property by the
Plaintiff in November, 2005, pursuant to an Agreement to Sell executed
between the parties. Defendant No. 1 has been in peaceful possession of
the property since then and as such, he cannot be ousted from the suit
property. The possession of Defendant no. 1 is protected under Section
53A of the Transfer of Property Act, 1882 and the Suit is not maintainable
and is liable to be dismissed. The Suit is also barred under Section 41 of
the Specific Relief Act, 1963.
27. The Defendants have further averred that Defendant No. 1 and his
family members have been in possession of the suit property, since
November, 2005. The belongings of Defendant No. 1 and his family
members are lying in the suit property and the same is under the lock and
key of Defendant No. 1, and neither the Plaintiff nor his wife has ever
come or entered the suit property. The alleged incident dated 28.07.2015,
did not happen and is merely a figment of imagination of the Plaintiff.
28. The Defendants have asserted that the present Suit is not
maintainable as the same is barred under the provisions of Section 11,
Section 12, and Order II Rule 2 CPC.The Plaintiff is claiming damages
amounting to Rs. 6,75,000/ -, from Defendant No. 1, for allegedly not
allowing him to use the suit premises since 28.07.2015. However, the
Plaintiff had instituted the previous Suit in August, 2015 and the said relief
could have been sought by the Plaintiff in the said Suit, which was between
the same parties, for the same property and on the same cause of action.
29. On the basis of statement of the Plaintiff that he has got free
passage to go to the second floor and has got one key each of the gate
leading to first floor from ground floor |and to second floor from first floor,
the Plaintiff not only withdrew his Application under Order XXXIX Rule
2A CPC, but also the Suit along with all his relief(s), which he had
claimed.
30. The Defendantsfurther agitated that the present Suit filed by
Plaintiff, is not maintainable as the Plaintiff is claiming an exorbitant
amount from Defendant No. 1, without any basis, reasoning or justification.
The plot on which the suit property is situated, measures 50 sq. yards only.
There is only one room, one kitchen, and an open veranda on the second
floor of the suit property, which is in possession of Defendant No. 1. The
total rental value of this portion in the said area, is not more than Rs.
3,000/- to Rs. 4,000/- per month.
31. The claim of the Plaintiff against Defendant no. 1 of Rs. 25,000/-
per month on account of not allowing him to use his property and also
claim of Rs. 15,000/- per month from 11.11.2017 for unauthorized
occupation till defendant no. 1 removes his belongings from the suit
property, on account of unauthorized charges, is unjustified, exorbitant and
without any basis.
32. The Defendants further asserts that the Plaintiff has alleged that
Defendant no. 1 has been in unauthorized occupation of the property, from
11.11.2017. However, in the earlier Suit withdrawn by the Plaintiff in
January, 2018, the Plaintiff did not allege or intimate this fact at any point
of time, before the said Court, during the pendency of the Suit.
33. The Plaintiff has allegedDefendant no. 1 to be in illegal and
unauthorized occupation of the suit property. However, the Plaintiff has
not sought relief of possession in the present Suit; the only relief which the
Plaintiff has claimed, is a relief of Mandatory Injunction for removal of
locks and belongings from the room and kitchen of the second floor. The
Plaintiff, as a matter of fact and law, is liable to claim relief of possession;
he cannot claim relief of Mandatory Injunction, against Defendant No. 1.
34. Further, as regards the second floor, it is claimed that the Plaintiff
has now lost any right, title, and interest in the same, by virtue of section
27 of the Limitation Act and Defendant no. 1 has become the absolute
owner of the same.
35. The Defendants further agitated that Defendant No. 1, besides the
suit property, is the absolute owner of the portion above i.e. third floor,
wherein he has already constructed a room. Defendant No. 2 was the
absolute owner of the said portion and she has sold it to Defendant no. 1
videGift Deed dated18.04.2019 Ex. DW-1/P-1. The possession of the said
portion was also handed over by her to Defendant No. 1, simultaneously to
the execution of said documents. In view of the same, the Plaintiff cannot
claim any relief, of any nature whatsoever in respect of the said portion.
36. The Defendants in their Written Statement on merits, denied
the averments made in the Plaint, and averred that the execution of the
Agreement to Sell dated 10.11.2005 is an admitted fact on record.
According to Respondent No. 1, he made part payment of the sale
consideration, i.e. Rs. 1,00,000/- out of Rs. 2,50,000/-, and was always
ready and willing to pay the remaining amount to the Plaintiff. Further, he
averred that the Plaintiff handed over vacant and peaceful possession of
the suit property to him in 10.11.2005, and that he is in possession since
then.
37. The Defendant No.1, Smt. Neelam Wadhwa, has also averred
that the present Suit is bad for misjoinder of parties, as Defendant no. 2 is
neither necessary nor a proper party to the present suit. She has also
claimed that a property measuring 50 sq. yards with one room, one kitchen
and veranda, on the second floor, without any basic amenities, would not
fetch more than Rs. 3,000/- to Rs. 4,000/- per month in that locality.
38. The Plaintiff in the Replication asserted thatthe question
pertaining to the possession in undisputed,as it was directed by ADJ-02,
Delhi, to Defendant No.1 to remove his locks and belongings from the Suit
property, vide Order dated 22.11.2018. Further, the possession of the suit
property was never handed over to Defendant no. 1, because as per the
Agreement, the possession was only required to be handed over after
receiving the entire sale consideration by the Plaintiff and this issue had
already been dealt with in the judgment dated 20.02.2015.
39. The Ld. District Judge framed the following issues, on13.07.2022:
1. "Whether the plaintiff is entitled for a decree of Rs.
5,19,000/- against the defendants alongwith pendente lite
interest and future interest @ 18% p.a. as damages?
OPP.
2. Whether the plaintiff is entitled for unauthorized
occupation charges @ Rs. 15,000/- per month against
the defendants w.e.f. 11.11.2017 along with interest if any
and if yes at what rate? OPP.
3. Relief."
40. However, after the conclusion of the Final Arguments, an
Application under Order XIV Rule 5 read with section 151 of CPC
was moved on behalf of the Plaintiff, for framing of additional issues,
which was allowed vide Order dated 03.02.2025.
41. Additional issue was framed as under:
3. "Whether the plaintiff is entitled to the decree of
mandatory injunction directing the defendants to
remove/demolish the room along with iron stairs which
was constructed over and above the room of the
second floor of the plaintiff? OPP."
42. The Plaintiff Vasdev appeared as PW1 in support of his case and
deposed about the contents of Plaint and proved the relevant documents.
43. The Defendant No. 1, Rattan Lal died and his LRs were impleaded
as a party, vide Order dated 18.11.2023.
44. DW1 Smt. Neelam Wadhwa (Defendant No.1) examined herself
in support of her defence and tendered her Affidavit of Evidence Ex.
DW1/A. She detailed the defence as taken in the Written Statement.She
deposed that she is the owner of the room over and above the second floor
by virtue of a Gift Deed dated 12.04.2019, Ex. DW-1/P-1(OSR) executed
by Defendant no. 2 in her favour during the pendency of the present suit.
45. The Ld. District Judge, after appreciating the evidence, decreed
the Suit and held that the Plaintiff was entitled to recovery of the
Damages/Mesne Profits for illegal occupation charges, at the rate of
Rs.10,000/- per month, from 28.07.2015 till 22.11.2018 along with a
simple interest @8% from 23.11.2018 till the date of decree and a simple
interest @6% from the date of decree till realization of the amount.
46. However, the relief sought byPlaintiff/Appellant, for the recovery
of Rs. 5,19,000/- along with pendente lite and future interest @ 18% per
annum till its realisation, was rejected.
47. Further, it was held that Plaintiff was not entitled to the relief of
Mandatory Injunction directing defendants for removal and demolition
of the room and iron stairs constructed over and above the room of the
second floor.
48. Aggrieved by the Impugned Judgment dated 27.03.2025, present
Appeal has been preferred by the Appellant/Plaintiff to challenge the
dismissal of the relief of Mandatory Injunction and Recovery of Rs.
5,19,000/- alongwith pendente-lite and future interest at the rate 18% per
annumand to decree the Suit of the Plaintiff for damages at the rate of
Rs.25,000/- per month along with interest @ 15%per month. The
Appellant also sought the modification of the Judgement for
enhancement of unauthorized occupation charges to @ Rs. 15,000/- per
month instead of Rs.10,000/- with effect from 11.11.2017. He further
claimed to allow Mandatory Injunction to direct the Respondents to
remove/demolish the room alongwith iron stairs, which was constructed
over and above the suit property.
49. The Appellant/Plaintiff has assailed the impugned judgment,
primarily on the ground that the Ld. Trial Court has not appreciated that
in the year 1990, the building was constructed upto first floor and on the
second floor there was only one room, one kitchen and one bathroom and
around 50% of the total area was open, being used as a veranda and there
was no staircase to reach to the roof of the room on the Second Floor. Once
the entire second floor has been sold to the Appellant, the question of any
terrace rights doesnot arise.
50. It is further asserted that the Ld. Trial Court failed to appreciate
that the Defendants in collusion with each other, first illegally constructed
a katcha room above the room of second floor, during the period from year
2015 to 2016, and further erected iron stairs in the middle of the veranda,
whereby destroying the open space/veranda of second floor of the
Appellant.
51. The Defendants did not take any permission from
Plaintiff/Appellant or MCD for raising construction over the second floor.
Moreover, the consent of Plaintiff was necessary for raising any
construction over his floor.
52. It is further asserted that the Ld. Trial court has totally ignored the
Receipt dated 10.11.2005, in which nothing has been mentioned qua the
terrace/roof rights. If the Defendant no. 2 was having any right on the
terrace, then the Defendant no. 1 definitely would have mentioned in the
Receipt as 'with‟ or „without roof rights.‟ It is asserted that the Defendants
were conscious qua the right of Appellant for which reason, nothing has
been mentioned in the Receipt, except second floor. It is further submitted
that in the earlier proceedings also, nothing has been mentioned qua the
terrace rights by the Defendant no.1.Therefore, it is quite clear that
complete second floor alongwith terrace,was agreed to be sold by the
Appellant to the Defendant No.1, vide Agreement/Receipt dated
10.11.2005.
53. It is submitted that the Ld. District Judge failed to consider that
there was no access/ ladder to reach the roof of the room of the second
floor; once there was no access to the roof of the room of the second floor,
the question of roof rights/ terrace does not arise.
54. It is further submitted that the Ld. Trial court failed to appreciate
that after selling the complete second floor to the Appellant, neither Late
Sh. Kishan Israni nor his legal heirs, asserted any rights from the year1990
till 2019, and hence, the execution of any document has no relevance.
55. It is further submitted that DW-1 Ms. Neelam had produced the
Gift Deed dated 18.04.2019, for the first time during her cross
examination, but had not stated anything qua the Gift Deed in her Written
Statement or in the examination-in-chief, nor had she amended the Written
Statement. It is evident that the Defendants during the pendency of present
Suit, have tried to create the right on terrace, by executing the fabricated
Gift Deed dated 18.04.2019, which is barred by the doctrine of Lis
Pendens.
56. The Ld. Trial court also has not given any finding qua the Gift
Deed dated 18.04.2019, which was produced during the cross examination
of DW1.
57. Since the entire second floor was sold to the Appellant by Late Sh.
Kishan Issrani, hence the Defendant no.2 i.e., Smt. Kalwati w/o Late Sh.
Kishan Israni, was left with no right to deal with the property. Therefore,
the Gift Deed dated 18.04.19, has no value in the eyes of law.
58. Moreover, in the Gift Deed dated 18.04.2019,' Third Floor with
roof and terrace rights‟ has been mentioned, whereas in actuality there is
no third floor and there is only one katcha room which was constructed
over and above the room of Second Floor.Hence, it is proved that the Gift
Deed has been created during the pendency of the present Suit, only to
defeat the rights of Plaintiff.
59. The Ld. Trial court has wrongly held that the Plaintiff was required
to seek Declaration, qua his roof rights. It is submitted that once the
complete floor in the year 1990, was sold to the Plaintiff by Late sh.
Kishan Israni, the question of seeking Declaration qua the roof rights, does
not arise.
60. It is further submitted that the Appellant had duly discharged the
onus with regard to illegal construction, whereas no finding has been given
qua illegal construction; on the contrary, it has been held that the Appellant
has not sought Declaration qua the terrace.
61. That the Ld. Trial Court instead of awarding damages to the tune of
Rs.25,000/- per month, only awarded Rs.10,000/-p.m.Further, interest @
8% per annumwas granted w.e.f. 23.11.2018, whereas as per the Ld. Trial
Court gave a finding that the Defendant no.1 has been in unauthorized
occupation since 28.07.2015 till 20.02.2019. After the dismissal of RFA
no.156/2019, Defendant no.1 handed over the key of the second floor to
the Plaintiff/Appellant, before the Ld. Trial Court, only on
20.02.2019.Hence, interest must be awarded from 28.07.2015, instead of
23.11.2018. Moreover, interest @15% per annum should have been
awarded to the Plaintiff/Appellant.
62. No reply to the Appeal, has been filed by the Respondents.
Submissions heard and record perused.
63. The undisputed facts are that late Sh. Kishan Lal Israni, erstwhile
owner of the Suit property, sold the first floor of the Suit property to
Respondent no. 1, in 1990. The second floor of the Suit property stood
conveyed in 1990 by Late Sh. Kishan Lal Israni, to Smt. Padma @ Ganga
Devi, wife of the Appellant, and was thereafter, in 2000, transferred to the
Appellant, who along with his family, resided there and continued to visit
the premises, even after shifting to Lajpat Nagar.
64. The Appellant Vasudev Wadhwa and Defendant No.1, admittedly,
entered into an Agreement to Sell dated 10.11.2005 for purchase of the
second floor for Rs. 2,50,000/-, in respect of which Rs. 1,00,000/- was paid
as part-consideration, which led to a Suit for Specific Performance by
Respondent No.1. It was initially decreed in favour of Respondent no.
1videdecree dated 10.01.2012 PW1/B, by the Ld. Civil Judge. However,
the decree was reversed in Appeal, filed by the Appellant/Plaintiff; the
Appellant was directed only to refund Rs. 1,00,000/- with 6% interest. The
Respondent No.1 challenged the Decree by way of Regular Second
Appeal, before this Hon'ble Court and the Special Leave Petition before
the Hon'ble Supreme Court, but did not meet any success. Thus, the
Appellant's title to the second floor stands affirmed, though he was
directed to return Rs. 1,00,000/- taken by him from Respondent No.1, in
part performance of the Agreement To Sell.
65. In the face of this concluded litigation, the plea of Respondent no.
1 that by virtue of Section 27 of the Limitation Act, 1963, he has become
the owner of the second floor, is plainly misconceived. His possession, to
the extent it subsisted after the failure of the Agreement to Sell, and
thereafter, in repeated defiance of court Orders, could at best be that of an
unauthorized occupant; it could not ripen into ownership when the
contractual claim has been finally negatived and the Appellant's title has
been recognized by all courts, up to theSupreme Court.
66. It is also admitted that the Appellant obtained an order of
Injunction restraining Respondent no. 1 from obstructing his ingress and
egress to the second floor, vide Order dated 05.05.2016 Ex. PW1/G.
Nevertheless, the Plaintiff was denied access by the Defendant No.1 and
his family, on 28.07.2015.
67. Thereafter, it ledto a Police Complaint dated 04.08.2015 Ex.
PW1/F,to the SHO, P.S. Pandav Nagar, Mayur Vihar Phase-I, Delhi. An
Application under Order XXXIX Rule 2A CPC was filed. Ultimately, Order
dated 03.11.2017 Ex. PW1/M, was passed by the Ld.SCJ, Delhi, directing
police aid and breaking-open of the doors, to secure free access to the
Plaintiff to the suit property i.e. the second floor.
68. The ordeal of the Plaintiff did not end as while with great efforts in
the Execution proceedings, he was able to get the access to his second
floor, but the second floor was found to be in possession of Defendant
No.1, leading to further litigation, which finally resulted in the Appellant
getting the possession of the second floor, on 20.02.2019.
Mandatory injunction for Demolition of 'Third Floor':
Thereafter, commenced the next phase of litigation, for much to the
chagrin of the Plaintiff/ Appellant, on entering into his second floor
premises, he found that while the Defendant was in possession of the
second-floor premises under the Agreement to Sell, he found that one room
on the roof of the second-floor premises had been constructed by the
Respondents and to gain access, an iron staircase had been erected in the
veranda portion of the Plaintiff/Appellant. He thus, sought directions to be
issued to the Respondents for removal of the said katcha room constructed
on the roof of the room on the second floor, by way of Mandatory
Injunction. This relief was declined by the learned District Judge by
observing that there was an independent right in respect of the room
constructed on the third floor.
69. The question before this Court is whether the Appellant is entitled
to the Mandatory Injunction for directing the Respondents to remove the
katcha room constructed over the roof of the room on the second floor.
70. The Respondents have tried to assert that it was only the second
floor which had been sold to the Appellant and the third floor continued to
be in the power and possession of the earlier owner, i.e. Kalawati.
Therefore, the Appellant has no ground or basis to take possession for this
room on the third floor.
71. It is pertinent to observe that when the second floor was purchased
by the Appellant in 1990, there existed only the ground floor, first floor and
the second floor and there was no floor above. One room, kitchen and
latrine had been constructed in about 25 sq. yards, while the remaining 25
sq. yards is for an open veranda, as per the plan Ex. PW1/A, on the second
floor. It also confirms that the there was nothing beyond the second floor.
Also, neither was it in the common use of any of the occupants/owners of
ground floor and first floor, nor was there any access/staircase leading to
the roof of the room on second Floor. This second floor had no terrace and
there was never ever any rights reserved in respect of the roof above the
second floor.
72. In fact, most significantly, DW1 in her cross examination, has
admitted that the staircase of the house was up to second floor and there
was no cemented staircase leading to the third floor.Interestingly, the
access to this alleged third room has been createdby the Respondents
through the veranda of the Appellant Vasdev Wadhwa. It is like
encroaching in somebody else's house, to get an access to the roof of his
room.It is nothing but a case of sheer encroachment.
73. The next pertinent fact to consider is when this alleged katcha
room on the third floor, got constructed. It has been explained on behalf
of the Appellant, that when the Respondent, Smt. Neelam Wadhwa, lost her
Appeal in respect of her Suit for Specific Performance, she took an
advantage of being in possession and constructed this katcha room over the
roof of second floor.
74. This contention of the appellant get established from the
documents of the defendant, who had relied upon an electricity bill vide
Ex. DW1/P-2, which shows the date of energization, as 08.09.2016. The
Defendant DW1 has also admitted that there was no water connection to
the katcha room, which she has taken subsequently. Significantly, there
was admittedly an Agreement to Sell dated 10.11.2005 entered between the
parties, in respect of which litigation went upto the Apex Court. In this
document as well, there was also no mention of any terrace on the third
floor.
75. It is quite evident from the aforesaid circumstances that the
Defendant that she had no right, title, interest on the roof of the second
floor and that it had been constructed, while she was in possession of the
second floor.
76. For the first time, it is only in her cross-examination, that she has
tried to justify her claim to the Katcha room on the roof of the second floor
by asserting that a Gift Deed dated 15.04.2008 DW1/P1,had been executed
in her favor, by Smt. Kalawati. At no point did Smt. Kalawati asserted any
right over the roof of the room on the second floor. Pertinently, neither was
this Gift Deed ever mentioned in the pleadings or in the Affidavit of
Evidence and for the firsttime, it was introduced, on being questioned by
the Appellant about her title.
77. Further, this document has been executed while the Suit was
pending.It had no existence at the time when this alleged room got
constructed.Furthermore, as already discussed there existed no third floor
in respect of which Kalawati could have claimed her ownership.When she
herself did not claim the ownership, there was no way she could have
created any right, title, interest in the said Gift Deed in favour of the
Respondent.
78. Another pertinent aspect is that while in the Written Statement, it
was claimed by the Respondents that she had purchased the third floor
from Kalawati, but eventually realizing the lacuna, she in her cross-
examination produced this Gift Deed. There is inherent contradiction in her
stand for, at one time, she has claimed it to be a property purchased by her
and on the other hand, she has claimed it to be gifted to her.
79. While it may be reiterated that Kalawati herself was never an
owner of third floor since it did not ever exist, she was the best person to
have proved the genuineness and the authenticity of Gift Deed. Pertinently,
she has not even been called in the witness box to depose and prove this
document.It cannot be emphasized enough that Kalawati had admittedly
sold the second floor in 1990 and never ever had she made any claim to
this non-existent third floor till 2019, when she executed the Gift Deed
dated 15.04.2008, in favour of the defendant. Clearly, it is a manipulated
document created during the pendency of the litigation, only to justify the
claim of the Defendant to the third floor.
80. To conclude, there was no third floor ever in existence; there was
no independent access to this alleged third floor.In fact, what existed was
only the second floor which was admittedly sold by Kalawati to the
Plaintiff/Appellant. While the Respondents were in possession pursuant to
an Agreement to Sell, they took the advantage and constructed this katcha
room over thereof of second room and because there was no independent
access, constructed a iron staircase through the veranda of the Appellant on
the second floor. It is simple case of entering into somebody else's
property, to claim an access over the roof of their second floor.
81. From the aforesaid discussion, it is overwhelmingly demonstrated
that there existed no third floor and that Defendant/Respondents have no
ownership in the katcha room constructed over the roof of the second room
owned by the Appellant.
82. The learned District Judge, therefore, fell in error in denying the
Mandatory Injunction. The findings on this issue are hereby, set aside and
the Suit of the Appellant for mandatory Injunction is decreed. The
Defendant No. 1 is hereby, directed to remove this katcha room over the
roof of second floor within 60 days,failing which the Appellant is at liberty
to get the room removed himself for which the expenses may be recovered
by the Appellant or he may seek the implementation of these directions by
way of execution.
83. The issue is decided accordingly, in favour of the Appellant.
Mesne profits / damages for unauthorized Occupation of Second Floor -
quantum and period:
84. The primary challenge on behalf of the Appellant is to the
quantification of damages/mesne profits. While the Trial Court awarded
Rs. 10,000/- per month from 28.07.2015 till 22.11.2018 with interest @
8% per annum from 23.11.2018 till decree and @ 6% per annum, the
Appellant seeks enhanced mesne profits @ Rs. 15,000/- per month, and
interest @ 15% per annum and extension of period till 20.02.2019.
85. The term Mesne Profits, is defined under Section 2 (12) CPC and
reads as under:
"(12) "mesne profits" of property means those
profits which the person in wrongful possession
of such property actually received or might with
ordinary diligence have received therefrom,
together with interest on such profits, but shall
not include profits due to improvements made
by the person in wrongful possession"
86. The just and fair compensation for the wrongful deprivation of the
Plaintiff from use and enjoyment of his property and ordinarily
corresponds to the market rent which the property might reasonably fetch.
The burden to establish therent of the suit property, at such exorbitant rates,
fairly lies on the party seeking Mesne Profits.
87. In the present case, though the Appellant has claimed rent at the
rate of Rs. 25,000/- per month along withinterest @ 15%, howeverhe has
not produced any evidence by way of Lease Deeds, Rent Agreements,
Circle-Ratebased valuations or other objective material of similarly
situated properties in Pratap Nagar, Mayur Vihar Phase-I, Delhi, to support
this figure.
88. Where there is scant evidence, courts are often compelled to make
a reasonable estimate having regard to the size, location and nature of the
premises and the general trend of rentals, while avoiding either an unjust
enrichment of the Plaintiff or an undue windfall to the Defendant. The Ld.
Trial Court, bearing in mind that this is a small 50 sq. yards, considering
the statement of DW-1, Smt. Neelam Wadhwa dated 12.01.2024, and yet
conscious of the hostile conduct of Defendant no. 1 who deprived the
Appellant even of access, fixed Mesne Profits at Rs. 10,000/- per month,
far above the figure suggested by the Respondents.
89. In the absence of any documentary proof of higher rental value,
enhancement to Rs. 15,000/- per month, would be arbitrary.There is no
justification for enhancement of the charges of Mesne Profits.
90. The next aspect is the period for grant of mesne profits. The Ld.
Trial Court has restricted the period till 22.11.2018, referring to an Order
of the first Appellate Court directing removal of Respondent no. 1's locks
and belongings. It is not disputedthat the key of the second floor was in
fact, handed over to the Appellant only on or about 20.02.2019, after the
dismissal of RFA No. 156/2019. The cessation of unauthorized occupation
must therefore, be taken as 20.02.2019, when the possession of second
floor was actually delivered. There is no plausible explanation as to why
the Appellant should be deprived of compensation for the gap between
23.11.2018 and 20.02.2019 when he could not in reality, use the suit
property.
91. However, there is no basis for enhancement of interest rate.
92. It may also be noted that the Plaintiff was claiming Rs.25,000/p.m.
over and above the mesne profits of Rs.10,000/-, on account of his
deprivation of use of property. In fact, the claim of the Plaintiff was in the
nature of damages, to which in the given circumstances, he is not entitled,
especially when mesne profits in the sum of Rs. 10,000/- p.m. have already
been granted.
93. Consequently, while the charges of Mesne Profits/ Unauthorized
use / occupation, i.e. rate of Rs. 10,000/- per month is maintained, the
period of Mesne Profits is extended from 23.11.2018 to 20.02.2019.
Conclusion:
94. Suit of the Appellant for Mandatory Injunction is decreed. The
Defendant No. 1 is hereby, directed to remove this katcha room over the
roof of second floor within 60 days, failing he may seek the implementation
of these directions by way of execution. In the alternative, the Appellant is
at liberty to get the room removed himself for which the expenses may be
recovered by the Appellant, from the respondent No.1.
95. The decree of Ld. District Judge is modified to the extent that
the Mesne Profits @ Rs.10,000/- per month shall be payable
from28.07.2015 till 20.02.2019withsimple interest @ 8% per annum till
decree and simple interest @ 6% per annum from the date of decree
till realization of the amount.
96. Thus, the Appeal is partly allowed.Decree Sheet be prepared,
accordingly.
97. Pending Application(s) if any, are disposed of, accordingly.
(NEENA BANSAL KRISHNA)
JUDGE
APRIL 06, 2026/RS
