Mr. Kamlesh Anand, Advocate v. NINA GUPTA ORS

Judgment

1. The present Petition has been filed by the Petitioners under Section 115 of the Code of Civil Procedure, 1908 [hereinafter referred to as “CPC”] impugning the Order dated 21.04.2022 passed by the Additional District Judge-02, South East, Saket Courts, New Delhi [hereinafter referred to as “Impugned Order”]. By the Impugned Order, the Application filed by the Petitioners/Defendants under Order VII Rule 11 of the CPC [hereinafter referred to as “Application”] has been dismissed.

2. Learned Counsel for the Petitioner limits his challenge in the present Petition to the ground that the Plaint is barred by the proviso to Section 34 of the Specific Relief Act, 1963 [hereinafter referred to as “SR Act”], it is contended that although a declaration has been sought by the Respondent Nos. 1 and 2/Plaintiffs, the relief of possession has not been sought. It is contended that the suit is barred by law under the provisions of Order VII Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:20.09.2025 19:31:16 C.R.P. 77/2022 Rule 11(d) of the CPC, despite which the Application filed has been dismissed.

Briefly, the facts are that the Respondent No. 1/Plaintiff filed a suit for declaration to the effect that a conveyance deed dated 11.11.2010 and mutation dated 23.09.2011 be declared as null and void and for the consequential relief of rendition of accounts and permanent injunction. The Petitioner/Defendant before the learned Trial Court filed an Application under Order VII Rule 11 of the CPC. The plea in the Application was that the suit has not been valued properly for the purposes of Court fee and jurisdiction and that the Plaint is barred by the by the provisions of Section 34 of the SR Act.

4. The learned Trial Court while relying on the judgement of the Coordinate Bench of this Court in Vijay Manchanda and Ors. v. Ashok Manchanda1 which has been upheld by the Supreme Court2 has held that a co-owner has no right to recover the possession from another co-owners and the co-owner is only entitled to maintain a suit for partition. Further, it held that a party cannot be forced to claim of relief of partition and therefore, in the present case, seeking declaration of the Conveyance Deed as well as the mutation done thereunder as null and void cannot be compulsorily clubbed with the relief of possession as the Plaintiff has claimed to be only a co- sharer in the suit property to the extent of a 25% share.

5. As stated above, the learned Counsel appearing on behalf of the Petitioner has restricted his challenge to the ground that although a declaration has been sought by the Respondent No. 1/ Plaintiff, the relief of 1 2009 SCC OnLine Del 4076 2 SLP (C) 8872/2010 dismissed on 01.04.2010 Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:20.09.2025 19:31:16 C.R.P. 77/2022 possession has not been sought.

6. Learned Counsel appearing on behalf of the Petitioner relies upon the proviso to Section 34 of the SR Act to submit that in terms of the proviso, since the relief of possession has not been sought by the Petitioner, the Application ought to have been allowed. In addition, the learned Counsel appearing on behalf of the Petitioner relies upon the judgment of the Coordinate Bench of this Court in Kanak Jain and Ors. vs. Chakresh Kumar Jain3.

7. Learned Counsel appearing on behalf of the Respondent No. 1/Plaintiff, on the other hand, submits that the Impugned Order does not suffer from any infirmity so as to be challenged under the provisions of Section 115 of the CPC. He further submits that the challenge in respect to the proviso to Section 34 of the SR Act is not maintainable in a case where the property is joint. Reliance in this behalf is placed on the judgment of a Coordinate Bench of this Court dated 15.12.2009 in Vijay Manchanda case, wherein it has been held that since the parties were in joint possession and the claim of the Plaintiff is not of exclusive possession, consequential relief of possession is not requisite.

8. The proviso to Section 34 of the SR Act reads as follows: “34. Discretion of court as to declaration of status or right.—Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.” [Emphasis Supplied] 3 2019 SCC OnLIne Del 8271 Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:20.09.2025 19:31:16 C.R.P. 77/2022

9. The suit that has been filed before the learned Trial Court for declaration and permanent injunction. It is the case of the Respondent No.1/Plaintiff that the Plaintiff and Defendants No. 1 to 3 are all married to 4 brothers and are sisters-in-law. The Plaintiff and Defendants No. 1 to 3 had purchased the suit property with their personal funds to the extent of 25% undivided share each therein. It is further the case of the Respondent No.1/ Plaintiff that the suit property is lying vacant and is in joint possession of all the co-owners. It is further set out that the cause of action to file the plaint arose when some documents were forged by the Petitioner/Defendant No.1 mutating the property. It is apposite to extract paragraphs 8 and 29 of the Plaint below: “8. The plot constituting part of the suit property was purchased by the Plaintiff and the Defendant Nos. 1 to 3 out of their own personal funds. The husbands of the Plaintiff and the Defendants No. 1 to 3 are real brothers and they were running a business of bathroom fittings under the brand name of “Dripless”. The suit property was used as one of the marketing offices of their goods which were manufactured by various family owned companies/entities like M/s Delta Factors (I) P Ltd., M/s Dripless faucets (India), etc. The basement of the suit property was used as godown. There was a small display showroom of the goods on the ground floor and offices of the husbands of the Plaintiff and the Defendant Nos. 1 to 3 on Mezzanine and First Floor. A furnace to assist in manufacturing activities was also operated on the ground floor for casting process, however, due to strict pollution norms, he same was shut down. Later, due to the slowdown in the market, no work was carried out at the suit property and use of the suit property was discontinued. The suit property since then and as on date is lying vacant and is in joint possession of all the family members, i.e. the Plaintiff and the Defendant Nos. 1 to 3 and their respective husbands.

29. The Defendant No. 1 and her husband, taking advantage of the situation that the entire suit property is lying vacant since many years, illegally by forging and fabricating documents got the same mutated and conveyed in the name of the Defendant No. 1 without approval or consent of the Plaintiff.” [Emphasis Supplied] Signature Not Verified Digitally Signed By:HONEY ARORA Signing Date:20.09.2025 19:31:16 C.R.P. 77/2022

10. The Supreme Court in the Neelavathi & Ors. v. N. Natrajan & Ors.4 has held that before a plaintiff could be called upon to pay court fee under Section 37(1) of the Court Fees Act, 1870 on the ground that the plaintiff has been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that the plaintiff has been “excluded” from joint possession to which the plaintiff is entitled in law. As long as a party has a share in the property, the law presumes his possession. The relevant extract Neelavathi case is set out below: “8… Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been “excluded” from joint possession to which they are entitled in law. The averments in the plaint that the plaintiffs could not remain in joint possession as they were not given any income from the joint family property would not amount to their exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiffs had been excluded from possession.” [Emphasis Supplied]

10.1 This Court in Sakshi Dhall vs. Smt. Indira Dhall & Ors.5 has while relying on the judgement of Supreme Court in Neelavathi & Ors. v. N. Natrajan & Ors.6 and the judgement of the Coordinate Bench in Tara Chand Gaur v. Satish Chand Sharma & Anr.7 held that where the suit property is a joint property and ‘ouster’ or exclusion of possession from the suit property has not been specifically pleaded by the Plaintiff in the plaint the Court shall at the preliminary stage presume the Plaintiff to be in possession unless it is proved to the contrary and that in such a case the