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MANAK PORTFOLIOS (P) LTD. & ORS. vs GEETA KATYAL & ANR.

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$~J-15 & 16
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Pronounced on: 04.03.2024
+ CS (OS) 344/2019

MANAK PORTFOLIOS (P) LTD. & ORS. …..Plaintiffs
Through: Mr. P.S. Bindra, Sr. Adv. along with
Mr. D.K. Devesh, Mr. Gobind Malhotra, Mr. Lovish Sharma and Mr.Kartik Khanna, Advs.

versus
GEETA KATYAL & ANR. …..Defendants
Through: Mr. Rakesh Khanna, Sr. Adv. along with Mr. K.P. Singh and Mr. Sanjay Kathuria, Advs.

CS (OS) 221/2022

GEETA KATYAL …..Plaintiffs
Through: Mr. Rakesh Khanna, Sr. Adv. along with Mr. K.P. Singh and Mr. Sanjay Kathuria, Advs.

versus
SUDARSHAN GABA AND ORS …..Defendants
Through: Mr. Tushar Roy, Adv. for D-2.
Mr. P.S. Bindra, Sr. Adv. along with
Mr. D.K. Devesh, Mr. Gobind Malhotra, Mr. Lovish Sharma and Mr. Kartik Khanna, Advs. for D-3 to 7.
CORAM:
HON’BLE MR. JUSTICE SACHIN DATTA
JUDGMENT

1. The plaintiffs in CS (OS) 344/2019 are stated to be the joint owners of a property bearing Plot No. 16, admeasuring 280.69 sq yards, Manak Vihar, East Delhi – 110092 (hereinafter referred to as the “suit property”), having jointly purchased the suit property vide a sale deed dated 15.12.2017 registered before Sub-Registrar-VIII vide registration No. 8999, Book No. 1, Volume No. 1297, at page No. 71 to 81 (hereinafter referred to as the “sale deed dated 15.12.2017”) executed between the five plaintiffs and one Mrs. Sudarshan Gaba. The suit property is stated to have been originally owned by late Mr. Amar Singh Gaba, who is stated to have bequeathed the same to his wife Mrs. Sudarshan Gaba by way of a registered will dated 29.08.2016.
2. The plaintiffs / purchasers of the suit property have filed CS(OS) 344/2019 to seek possession of the suit property and have prayed for the following reliefs:

a) A decree of declaration in favour of the plaintiffs and against the defendants declaring the sale deed dated 15.12.2017 registered before Sub-Registrar-VIII vide registration No. 8999, Book No. 1, Volume No. 1297, at page No. 71 to 81 as legally valid documents of transfer of title (exclusive ownership) of the Residential plot of land bearing No. 16, admeasuring 280.69 Sq. Yds. situated in society, commonly known as Manak Vihar, East Delhi-110092.
And / or A decree in favour of plaintiffs and against the defendants declaring the plaintiffs are exclusive and only rightful owner/ title holder of the residential plot of land bearing No. 16, admeasuring 280.69 Sq. Yds. situated in society, commonly known as Manak Vihar, East Delhi-110092 and the construction raised thereupon by virtue of sale deed dated 15.12.2017.
b) A decree of grant of peaceful physical possession in favour of plaintiffs against the defendants and the plaintiffs be put in actual physical possession over the residential plot of land bearing No. 16, admeasuring 280.69 Sq. Yds. situated in society, commonly known as Manak Vihar, East Delhi- 110092 and the construction raised thereon.
c) A decree of mesne profit in favour of plaintiffs and against the defendants for Rs. 5,40,000/- computed @monthly rent of Rs. 30,000/- since 01.01.2018 till the date of filing of suit i.e. June 2019 and future mesne profit pendente lite alongwith 18% of interest till realization of the amount.
d) A decree of permanent and mandatory injunction in favour of plaintiffs and against the defendants/ their agents from interfering in the peaceful enjoyment of the property/ possession of the property in any other manner to the residential plot of. land bearing No. 16, admeasuring 280.69 Sq. Yds. situated in society, commonly known as Manak Vihar, East Delhi-110092 and the construction raised thereupon
e) The cost of the suit be awarded in favour of plaintiffs and against the defendants.
f) Any other relief(s) which this Hon’ble Court deems fit, just proper and expedient under the facts and circumstances of the case be awarded to the plaintiff.”

3. The defendant nos. 1 and 2 in CS(OS) 344/2019 are the daughter and son-in-law of late Mr. Amar Singh Gaba, respectively, and are stated to be in possession of the suit property. The said defendants have sought to justify their possession of the suit property on the basis of a purported agreement to sell dated 10.04.2009 which is stated to have been executed between defendant no.1 and late Mr. Amar Singh Gaba, pursuant to which, the defendants are stated to have been put in possession of the suit property on 10.04.2009 itself. Alternatively, the defendants have sought to justify their possession of the suit property on the assertion that the defendant no.1, being one of the two daughters of late Mr. Amar Singh Gaba, would be entitled to 1/3rd share in the suit property, which was admittedly the self-acquired property of late Mr. Amar Singh Gaba.
4. The defendants have sought to challenge the validity of the will dated 29.08.2016 of late Mr. Amar Singh Gaba and the validity of the sale deed dated 15.12.2017. In this regard, the defendant no.1 has also filed a separate suit bearing CS(OS) 221/2022 wherein the said defendant no. 1 is the plaintiff and late Smt. Sudarshan Gaba, Smt. Sangeeta Aneja (sister of Geeta Kayal) and the five plaintiffs in CS(OS) 344/2019 are the defendant nos. 1-7 respectively. Vide the said suit of the defendant no.1, the defendant no.1 has sought a decree of partition of the suit property and 1/3rd share thereof and has also prayed that the will dated 29.08.2016 and sale deed dated 15.12.2017 be declared as null and void. It is also prayed by the defendant no.1 in her suit bearing CS (OS) 221/2022 that a permanent injunction in respect of the suit property and cost of the suit be granted against the plaintiffs.
5. For the sake of convenience, the plaintiffs in CS(OS) 344/2019 shall be referred to as the plaintiffs and the defendant nos. 1 and 2 in CS (OS) 344/2019 shall be referred to as the defendants.
6. The plaintiffs in CS (OS) 344/2019 have preferred an application under Order XII Rule 6 of the Code of Civil Procedure, 1908 seeking a decree on the basis of certain admissions made by the defendants in their written statement and otherwise. The said plaintiffs have also preferred an application under Order VII Rule 11 in CS (OS) 221/2022 seeking rejection of the plaint of the defendant no.1.
7. The aforesaid applications of the plaintiffs under Order XII Rule 6 in CS (OS) 344/2019 and Order VII Rule 11 in CS (OS) 221/2022 are both being decided together by way of the present judgment.
8. As per the plaintiffs, the suit property was originally owned by Mrs. Sudarshan Gaba’s late husband Mr. Amar Singh Gaba, who is stated to have bequeathed the suit property to Mrs. Sudarshan Gaba by way of a registered will dated 29.08.2016. The plaintiffs / purchasers of the suit property are stated to have purchased the suit property from late Mrs. Sudarshan Gaba by way of a registered sale deed dated 15.12.2017 for a sale consideration of Rs. 3,04,50,000/- (Rupees Three Crores Four Lacs Fifty Thousand Only), which is stated to have been duly paid by the plaintiffs to late Mrs. Sudarshan Gaba. The possession of the suit property, however, was never handed over by late Mrs. Sudarshan Gaba to the plaintiffs, as the same was with the defendants at the time of sale. The sale deed dated 15.12.2017 records the following with respect to the possession of the suit property:
“2. That the possession of the said property is neither handed over by the Vendor to the Vendees nor the responsibility of the same lies with Vendor as the possession of ‘said property’ is with Vendor’s daughter and son-in-law namely Smt. Geeta Katyal and Sh. Rajiv Katyal respectively.”

9. In the version of the plaintiffs / purchasers of the suit property, the suit property was originally owned by Mr. Amar Singh Gaba, who rented out the suit property to one Mr. Sanjay Yadav, who remained a tenant and handed over the physical possession of the suit property to late Mr. Amar Singh Gaba on 17.06.2009 and a possession letter dated 17.06.2009 was given by the said tenant to Mr. Amar Singh Gaba. Thereafter, Mr. Amar Singh Gaba is stated to have rented out the suit property to defendant nos. 1 and 2 via oral monthly tenancy, thereby putting the defendant nos. 1 and 2 in possession of the suit property.
10. In July 2016, late Mr. Amar Singh Gaba is stated to have requested defendant no.2 to vacate and handover the actual physical possession of the suit property. Upon defendant no.2’s non-adherence to the said request, a legal notice dated 01.09.2016 is stated to have been issued on behalf of Mr. Amar Singh Gaba to the defendants. The said legal notice has not been placed on record.
11. Upon non-adherence of the defendants to the legal notice dated 01.09.2016 issued on behalf of Mr. Amar Singh Gaba, Mr. Amar Singh Gaba filed an eviction petition bearing RC/ARC/1279/2016 titled “Amar Singh Gaba v. Rajeev Katyal” under the Delhi Rent Control Act before the Court of Ld. ACJ Cum ARC, Karkardooma Courts, New Delhi against the defendant no.2. However, Mr. Amar Singh Gaba passed away on 13.03.2017 and the eviction petition filed by him is stated to have been withdrawn on 01.08.2017 on the ground of his demise.
12. Mr. Amar Singh Gaba is also stated to have vide Newspaper publication dated 06.11.2016 published in Dainik Sahara Daily Newspaper, declared that he had disowned and disinherited his daughter defendant no.1, i.e., Mrs. Geeta Katyal from all his movable/immovable property. A copy of the said newspaper publication has been placed on record by the plaintiffs.
13. After Mr. Amar Singh Gaba’s death, the defendant nos. 1 and 2 had issued a legal notice dated 24.07.2017 to the legal heirs of Mr. Amar Singh Gaba i.e., Mrs. Sudarshan Gaba and Mrs. Sangeeta Aneja, for specific performance of a purported agreement to sell dated 10.04.2009.
14. It is averred by the plaintiffs that on 17.10.2017, the defendant no. 1 had filed a civil suit bearing no. 767/ 2017 entitled “Geeta Katyal v. Sudarshan Gaba and Ors.” in the Court of learned ADJ Shahadra District, Karkardooma Courts, New Delhi against Mrs. Sudarshan Gaba and Mrs. Sangeeta Aneja, inter alia, seeking specific performance of agreement to sell dated 10.04.2009, and a declaration that the registered will dated 29.08.2016 is null and void. During the pendency of the said suit, defendant no.1 learnt about the execution of the sale deed dated 15.12.2017 in favour of the plaintiffs and amended her suit, whereby, in the amended suit, the defendant no.1 impleaded the plaintiffs / purchasers of the suit property and also added an additional prayer seeking that the sale deed dated 15.12.2017 be declared as null and void.
15. The plaintiffs contend that as recorded vide order dated 15.04.2019 passed in the civil suit bearing no. 767/2017, the said suit of the defendant no.1 was withdrawn by the defendant no.1 unconditionally and without asking for leave of the court to file a fresh suit in that respect. It is submitted that after taking recourse against the will dated 29.08.2016 and the sale deed dated 15.12.2017 vide civil suit bearing no.767/2017 and having withdrawn the same without permission of the court to bring a fresh suit in that respect, the defendant no.1 is barred under Order XXIII Rule 1 (4) of the CPC from bringing a fresh suit seeking the same reliefs as the reliefs sought in the suit which was withdrawn, particularly since the aforesaid withdrawal was without taking liberty from the court to bring a fresh suit pertaining to the same subject matter.
16. It is submitted on behalf of the plaintiffs that the suit of the defendant no.1 bearing CS (OS) 221/2022 is also barred under Order II Rule 2 of the CPC since the defendant no.1 had earlier preferred a separate suit seeking partition, being suit no. 16/2018 in the court of Additional District Judge-02, Shahadra, Karkardooma Courts, New Delhi, whereby the defendant no.1 had sought the relief of partition qua the “Indra Park Property” of her late father Mr. Amar Singh Gaba. It is further submitted that the said suit was decreed on 02.12.2020 and the copy of the judgment dated 02.12.2020 passed in suit no. 16/2018 has been placed on record. It is further submitted that thus, while filing the partition suit for the other property of her father, the defendant no.1 had expressly relinquished / not pursued her relief of partition in respect of the suit property.
17. The director of plaintiff no.3 Mr. Jitender Kochhar, being one of the joint purchasers of the suit property is stated to have made a written complaint against the defendant nos. 1 and 2 for using the forged and fabricated agreement to sell dated 10.04.2009 to assert their possession on the suit property, to the SHO Anand Vihar Police Station on 04.05.2018.
18. Pursuant to the aforesaid complaint dated 04.05.2018, an FIR bearing No. 152/18 dated 04.05.2018 was registered in Anand Vihar Police Station under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code against defendant nos. 1 and 2.
19. The said FIR dated 04.05.2018 is stated to have culminated into a trial which is currently underway.
20. After the registration of the aforesaid FIR, the defendant no.2 applied for anticipatory bail before this court vide BAIL APPLN. No. 1550/2018, whereby anticipatory bail was granted to the defendant no.2.
21. The plaintiffs / purchasers of the suit property contend that the agreement to sell dated 10.04.2009 relied upon by the defendants is a forged and fabricated document. It is submitted that the original agreement to sell dated 10.04.2009 has never been produced by the defendants before any court. It is further submitted that in the order dated 06.07.2018 passed by this court in BAIL APPLN. 1550/2018, it has been inter alia recorded that when the witnesses in the agreement to sell dated 10.04.2009 were called by the investigating officer in the FIR, they had disowned their signatures.
22. It is asserted by the plaintiffs / purchasers of the suit property that the defendant no.1 cannot claim possession of the suit property on the basis that she is the legal heir of late Mr. Amar Singh Gaba, as Mr. Amar Singh Gaba had executed a registered will dated 29.08.2016, whereby Mr. Amar Singh Gaba had bequeathed the suit property to his wife Mrs. Sudarshan Gaba and had expressly excluded defendant no.1 from his estate.
23. The plaintiffs / purchasers of the suit property have sought possession of the suit property on the basis of the registered sale deed dated 15.12.2017 and have contended that there exists a presumption of validity of registered document. In this regard, reliance has been placed by the learned senior counsel for the plaintiffs upon the judgment of the Supreme Court in Prem Singh Vs. Birbal1.As per the learned senior counsel for the plaintiffs, the legal effect of the sale deed dated 15.12.2017 can only be avoided after the same has been set aside or cancelled. It is averred that such setting aside or cancellation of the sale deed dated 15.12.2017 cannot be done by way of defence in the suit of the plaintiffs. The judgment of the Supreme Court in Gorakh Nath Dube Vs. Hari Narain Singh & Ors.2 is also relied upon by the learned senior counsel for the plaintiffs to contend that since the plaintiffs already have a registered sale deed in their favour, the same attracts a presumption of validity, and hence its legal effect cannot be ignored or resisted.
24. Another judgment of this court in the case of Bhupinder Jit Singh Vs. Sonu Kumar3 is sought to be relied upon by the learned senior counsel for the plaintiffs to submit that in a suit for possession by the plaintiff, a defence of invalidity of document conferring title cannot be plausibly taken to avoid the effect of a valid registered document in favour of plaintiff, unless the said registered document is declared invalid / nullified by a competent court.
25. The learned senior counsel for the plaintiffs also contends that in the suit filed by defendant no.1 (CS (OS) 221/2022), original agreement to sell dated 10.04.2009 has not been produced. The learned senior counsel for the plaintiffs has relied upon the judgment of the Supreme Court in Indian Bank Vs. S.N. Engineers & Suppliers4, to submit that non-production of original document was considered as a factor which weighed before the trial court to hold that it was a deliberate attempt to frustrate rights of the other side.
26. Learned senior counsel for plaintiffs takes objection to the submission of the defendants that the civil suit of the defendant no.1 bearing no. 767/2017 was withdrawn on technical grounds and states that the order which records withdrawal of the said suit does not record anything to indicate any technical difficulty. It is also submitted that such technical difficulty has not been explained in the pleadings.
27. The defendants have controverted the case of the plaintiffs and have stated that they were never tenants in the suit property. It is averred by the defendants that the possession of the suit property was given to the defendants by late Mr. Amar Singh Gaba on 10.04.2009 in part performance of an agreement to sell dated 10.04.2009 executed between defendant no.1 and late Mr. Amar Singh Gaba, in terms of which, the defendants have paid late Mr. Amar Singh Gaba a consideration of Rs. 15,00,000/- in respect of the suit property and the remaining Rs. 50,00,000/- was to be paid at the time of executing necessary documents.
28. It is pleaded on behalf of the defendants that since Mr. Amar Singh Gaba did not execute a sale deed in the favour of the defendants as per the purported agreement to sell dated 10.04.2009, his legal heirs should execute a sale deed in favour of the defendants in terms of agreement to sell dated 10.04.2009.
29. The defendants have refuted the claim of the plaintiffs that the original copy of the agreement to sell dated 10.04.2009 is not available with them and have stated that although the first page of the original agreement to sell dated 10.04.2009 has been misplaced by the defendants and a missing report dated 26.05.2018 has been filed in that regard, the defendants have duly produced the page on which original signatures of Mr. Amar Singh Gaba as and when asked by the courts.
30. In their written statement, the defendant nos. 1 and 2 have admitted that the suit property was owned by late Mr. Amar Singh Gaba, however, they have submitted that the will dated 29.08.2016 executed by late Mr. Amar Singh Gaba is a forged and fabricated document and therefore, they have contended that at the time of execution of the sale deed dated 15.12.2017, the vendor therein i.e., late Mrs. Sudarshan Gaba and the confirming party therein i.e., Mrs. Sangeeta Aneja did not have absolute title in respect of the suit property. It is submitted that the sale deed dated 15.12.2017 is null and void since the same was executed based on the forged and fabricated will dated 29.08.2016. Based on the assertion that late Mr. Amar Singh Gaba died intestate, it is submitted that defendant no.1 is entitled to 1/3rd share in the suit property. It is further submitted that the will dated 29.08.2016 has been forged and fabricated by defendant no.1’s sister – Mrs. Sangeeta Aneja in conspiracy with her husband Mr. Avinash Aneja.
31. The defendants have contended that there is no explanation as to why late Mr. Amar Singh Gaba would execute a will only qua the suit property while leaving out other properties owned by him. It is also contended that there is no reason why the defendant no.1 would be left out of a will executed by her father late Mr. Amar Singh Gaba since defendant no.1 had cordial relations with him.
32. It is submitted on behalf of the defendants that the defendant no.1 had withdrawn her prayer ‘a’ seeking specific performance of agreement to sell dated 10.04.2009 in civil suit no. 767/2017 on the assurance of the plaintiffs that they would settle the matter and had sought liberty of the court to pursue the other prayers in the civil suit. However, on 15.04.2019, due to some technical difficulties, the defendant no.1 withdrew the entire suit.
33. The learned senior counsel for the defendants has relied upon (Rani) Kulandai Pandichi and another Vs. Indran Ramaswami Pandia Thalavan5 to submit that withdrawal of a suit with permission of the Court, does not mean adjudication on merits and does not preclude defendants from bringing a fresh suit. It is contended that such withdrawal cannot be construed to result in a decree.
34. The defendants have also relied upon Kandapazha Nadar &Ors. Vs. Chitraganiammal & Ors.6 to state that when a court allows a suit to be withdrawn without liberty to file a fresh suit, without any adjudication, such order allowing withdrawal cannot constitute a decree and it cannot debar the defendants herein from taking defence in the second round of litigation. The learned senior counsel for the defendants has further relied upon Saraswati Bala Samata Vs. Surabala Dassi7 to state that the order recording withdrawal of the suit is not a decree.
35. The learned senior counsel for defendants has further relied upon A. Vs. Papaya Sastry Vs. Govt of A.P. and Ors8, to state that the plaintiffs had tricked the defendants into withdrawing the suit before the trial court and therefore such order of the trial court may be set aside.
36. The learned senior counsel for defendants has also relied upon Union of India & Ors. Vs. Ramesh Gandhi9 to submit that the judgment of the trial court wherein the defendants withdrew their suit was obtained by fraud and is thus vitiated.
ANALYSIS
37. There is no controversy that the suit property originally belonged to late Mr. Amar Singh Gaba. It is also an admitted fact that Mr. Amar Singh Gaba’s daughter (defendant no.1) and son-in-law (defendant no.2) are in actual physical possession of the suit property.
38. In his lifetime, Mr. Amar Singh Gaba had instituted a suit for eviction against the defendants, wherein it was inter alia stated that late Mr. Amar Singh Gaba had given the suit property to the defendants on rent. The copy of the suit before the rent controller has been placed on record. The said suit was withdrawn on account of Mr. Amar Singh Gaba’s demise.
39. The version of the plaintiffs that that the defendants were erstwhile tenants of late Mr. Amar Singh Gaba has been controverted by the defendants on the assertion that that the defendants were never tenants in the suit property and were granted possession based on an agreement to sell dated 10.04.2009 executed between defendant no.1 and late Mr. Amar Singh Gaba.
40. The defendants have sought to justify their possession of the suit property based on a purported agreement to sell dated 10.04.2009. The said agreement to sell stated to have been executed between the defendant no.1 and late Mr. Amar Singh Gaba records that late Mr. Amar Singh Gaba had agreed to sell the suit property to the defendants for a sale consideration of Rs. 65,00,000/, out of which Rs. 15,00,000/- is stated to have been paid in cash at the time of execution of the said agreement and possession is stated to have been handed over on the spot to the defendants.
41. A copy of the said agreement to sell dated 10.04.2009 has been placed on record by the plaintiffs. It has been asserted by the defendants that the first page of the original document bearing the stamp paper has been lost and a complaint dated 26.05.2018 is stated to have been made by the defendant no.1 to the police in that regard. No cash receipt or any proof of any payment of Rs. 15,00,000/- made by the defendants to Mr. Amar Singh Gaba has been placed on record.
42. Admittedly, the defendant no.1 had filed a suit seeking specific performance of the said agreement to sell. The said suit for specific performance bearing civil suit bearing no.767/2017 titled “Geeta Katyal v. Sudarshan Gaba and Ors.” in the Court of learned ADJ Shahadra District, Karkardooma Courts, New Delhi was filed against Mrs. Sudarshan Gaba and Mrs. Sangeeta Aneja and was subsequently amended. In the amended suit, the plaintiffs / purchasers of the suit property (plaintiff nos. 1 – 5 in CS (OS) 344/2019) were also impleaded as parties. In the amended suit, an additional prayer seeking declaration of the sale deed dated 15.12.2017 as null and void was also added in the said suit. The prayers sought by the defendants in their amended civil suit bearing no. 767/2017 are reproduced hereinbelow:
“a) Pass a decree of specific performance of agreement to sale and purchase dated 10.04.2009 may kindly be passed in favor of the plaintiff and against the defendants thereby directing the’ defendants to receive the balance sale consideration and execute the sale deed of the suit property i.e. property bearing No. 16, Manak Vihar, Delhi, more specifically shown in red bounded color in site-plan annexed with the plaint in favour of the plaintiff.
b) Pass a decree of declaration in favour of the plaintiff and against the defendant to the effect that declaring the will dated 29.08.2016 registered before sub-registrar-VIII vide Regn. No. 606, Book No. 3, vol No.- 1198 at page No. 100- 101 as null and void.
bb) Pass a decree of declaration in favour of the plaintiff and against the defendants to the effect that declaring the sale deed dated 15.12.2017 registered before sub-registrar-VIII vide Regn. No: 8999, Book N0.-I, Vol. No.- 1297 at page No. 71 to 81 as null and void.
c) A decree of permanent injunction in favor of the plaintiff and against the defendants hereby restraining the defendant their legal heirs, successors, assigns, servant from selling, entering into agreement to sell, alienating, transferring, letting out, mortgaging, parting with possession or creating third party interest of any nature in the suit property i.e. property bearing No. 16, Manak Vihar, Delhi, More specifically shown in red bounded color in site plan annexed with the plaint.
d) Any other relief which this Hon’ble Court deems fit and proper may kindly be passed in favour of the plaintiff and against the defendant.”

43. The aforesaid suit of the defendant no.1 seeking specific performance of the agreement to sell dated 10.04.2009 was subsequently withdrawn by the defendant no.1 and the same has been recorded vide order dated 15.04.2019 passed in civil suit bearing no.767/2017 titled “Geeta Katyal v. Sudarshan Gaba and Ors.”.
44. The defendants have claimed that the defendant no.1 had withdrawn the civil suit bearing no. 767/2017 due to ‘technical difficulty’ and on the promise of the plaintiffs that they would partition the suit property in favour of the defendants and withdraw the FIR No. 152/2018 registered at Police Station Anand Vihar, New Delhi.
45. However, a perusal of the orders passed by this court in BAIL APPLN. 1550/2018 and perusal of the order dated 15.04.2019 passed by the Court of learned ADJ Shahadra District, Karkardooma Courts, New Delhi suggests that the said withdrawal was not in view of any ‘technical difficulty’ as pleaded by the defendants. The withdrawal of the civil suit of the defendant no.1 before the trial court was actually in the background of an FIR No. 152/2018 under Sections 420/467/468/471/120B of the IPC registered at Police Station Anand Vihar against the defendants for use of alleged forged document for filing of suit for specific performance.
46. Defendant no.2 had preferred a BAIL APPLN No. 1550/2018 before this court, seeking anticipatory bail in the FIR No. 152/2018. In the aforesaid anticipatory bail proceedings, this court vide order dated 06.07.2018 inter alia observed as under:
“3. Learned senior counsel appearing for the complainant submits that till date original agreement has not surfaced. Learned APP for the State also submits that the original document has not been produced till date in any proceedings between the petitioner and the erstwhile owner of the property. He submits that the witnesses to the said documents were called by the Investigating officer and they had disowned their signatures on the same. However, forensic examination of the document could not take place as the original had not been produced.”

47. Further, this court vide order dated 10.12.2018 in the said anticipatory bail proceedings, recorded as under:
“1. Petitioner seeks anticipatory bail in FIR No. 152/2018 under Sections 420/467/468/471/120B of the IPC registered at Police Station Anand Vihar.
2. Learned counsel for the petitioner submits that one of the allegations levelled against the petitioner are regarding use of alleged forged document for filing of suit for specific performance. He submits that he has instructions to withdraw the suit for specific performance and also to approach the complainant for the purpose of settlement.
3. Learned counsel for the respondent submits that respondent is also agreeable to mediation provided the petitioner withdraws the suit for specific performance.
4. Learned counsel for the parties pray that parties be referred to mediation.”

48. Consequently, only prayer ‘a’ of the said suit seeking specific performance of the agreement to sell dated 10.04.2009 was withdrawn by defendant no.1 on 10.01.2019. The said order dated 10.01.2019 passed in civil suit bearing no.767/2017 is reproduced below:
“An application. on behalf of plaintiff under order 23 Rule 1 r/w 151 CPC is pending adjudication today. The application was filed in compliance of the order of Hon’ble High Court of Delhi vide order dated 10.12.2018 wherein petitioner (plaintiff herein) had proposed to withdraw the suit for specific performance and the respondent therein was agreeable to mediation provided petitioner withdrew the suit for specific performance.
In terms agreeable between the parties before Hon’ble High Court of Delhi, it is submitted by Id counsel for all defendants that he has no objection in case the remaining clauses of Prayer Para are litigated further.
Considering the facts and circumstances and on perusal of the order of Hon’ble High Court of Delhi together with the submissions made on behalf of the defendants the present application is disposed off as allowed as to withdrawal of relief mentioned in Clause A of Prayer Para of amended plaint.
Copy of the order be given as dasti.
Put up for admission denial/framing of issues on 19.02.2019.”

49. After the withdrawal of the prayer seeking specific performance in the civil suit of defendant no.1 bearing no. 767/2017, when the BAIL APPLN. No.1550/2018 of defendant no.2 was listed before this court, this court vide order dated 18.02.2019 in the said anticipatory bail proceeding inter alia recorded as under:
“2. Learned Senior Counsel for the respondent/complainant submits that on 10.12.2018 the petitioner stated that he would be withdrawing the suit filed by him for specific performance. He submits that the petitioner instead of withdrawing the suit has only withdrawn a prayer of the suit and has been continuing the suit based on the same pleadings and the same forged documents.
3. Learned counsel for the petitioner prays for time to take instructions.”

50. Thereafter, the complete civil suit bearing no.767/2017 in the Court of learned ADJ Shahadra District, Karkardooma Courts, New Delhi was withdrawn by the defendant no.1 unconditionally and the same was recorded vide order dated 15.04.2019 passed in the said suit, which records as under:
“Vide separate statement, plaintiff submits that she wishes to withdraw the present suit.
In view of the statement of plaintiff, present suit stands dismissed as withdrawn.
File be consigned to record room after due compliance.”

51. Moreover, this court while granting anticipatory bail to the defendant no.2, vide Judgment dated 02.05.2019 passed in BAIL APPLN. No. 1550/2018 inter alia held as under:
“1. Petitioner seeks anticipatory bail in FIR No.152/2018 under Sections 420/467/468/471/120B IPC, Police Station Anand Vihar.
2. Subject FIR was registered on a complaint made by the complaint contending that the Agreement to Sell had been forged by the petitioner. Further, based on the Agreement to Sell, a suit for specific performance was filed by the wife of the petitioner. Petitioner is a witness to the said document.
3. Pending the present proceedings, mediation took place between the parties. Consequent to which, wife of the petitioner has withdrawn the suit filed by her seeking specific performance based on the said Agreement to Sell.”

52. A perusal of the abovementioned orders passed in civil suit no. 767/2017 as well as in BAIL APPLN. No. 1550/2018 makes it clear that the suit of the defendant no.1 was withdrawn by her in view of mediation that took place between the defendants and the plaintiff no.3 who had filed an FIR against the defendants for filing a suit based on a forged and fabricated agreement to sell dated 10.04.2009 and not based on any promise of the plaintiffs to partition the suit property or due to any technical defect as pleaded by defendants.
53. Thereafter, the defendant no.1 has preferred the suit for partition bearing CS (OS) 221/2022 before this court. The difference between the said suit filed by the defendant no.1 before this court and the suit previously withdrawn by the defendant no.1 is only that in CS (OS) 221/2022, the defendant no.1 is no longer seeking specific performance of agreement to sell dated 10.04.2009 and is instead seeking partition of the suit property. The other prayers seeking declaration of will dated 29.08.2016 and sale deed dated 15.12.2017 as null and void and prayer seeking injunction against the plaintiffs are identical in both the suits. The prayers of the defendant no.1’s suit bearing CS (OS) 221/2022 are reproduced hereinbelow:
“(i) Pass a decree of partition in favour of the plaintiff and against the defendants, thereby partitioning the suit property bearing no. 16, Manak Vihar, Delhi, i.e. Suit property, more specifically shown bounded in red colour in siteplan annexed with the plaint, by meets and bounds and if necessary, appoint a Local Commissioner for partitioning/dividing of the suit property by metes and bounds or by any other mode or manner as this Hon’ble Court may deem fit and proper. The Plaintiff is also entitled for vacant physical possession of her 1/3rd share in the suit property left behind by her deceased father.
(ii) Pass a decree of declaration in favour of the plaintiff and against the defendants to the effect that declaring the Will dated 29.08.2016 registered before sub-registrar-VIII vide Regn. No. 606, Book No.- 3, Vol. No. – 1198 at page No. 100-101 as null and void.
(iii) Pass a decree of declaration in favour of the plaintiff and against the defendants to the effect that declaring the Sale Deed dated 15.12.2017 registered before sub-registrar-VIII vide Regn. No. 8999, Book No.- 1, Vol. No. – 1297 at page No. 71 to 81 as null and void.
(iv) Pass a decree of Permanent Injunction in favour of the Plaintiff and against the defendants, thereby permanently restrain the defendants, their family members, associates, assignees, agents, attorneys, friends, relatives, anti-social elements from making any kind of addition, alteration or construction in the suit property 16, Manak Vihar, Delhi, i.e. Suit property, more specifically shown bounded in red colour in site-plan annexed and the defendants are also be restrained from selling, mortgaging, alienating, transferring or gifting the suit property to any third party by way of sale, sub-letting or otherwise by creating third party interest in the suit property, in the interest of justice.
(v) Grant costs of the suit in favour of the plaintiff and against the defendants.
(vi) Pass any other relief which this Hon’ble Court may deem fit and proper may also kindly be granted in favour of the plaintiffs and against the defendants with cost of the suit.”

54. Evidently, other than the relief seeking partition of the suit property, the reliefs sought by the defendant no.1 in her earlier civil suit bearing no.767/2017 are the same as the reliefs sought by the defendant no.1 in CS (OS) 221/2022 filed before this court. The subject matter of both the suits instituted by the defendant no.1 is with respect to the same suit property; both the suits are founded on identical averments and based on the same cause of action; in both the suits, reliefs have been sought qua the same will dated 29.08.2016, and sale deed dated 15.12.2017.
55. At this juncture, it would be apposite to refer to Order XXIII Rule 1 of the CPC, which is reproduced as under:
[1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim,
It may, on such terms as it thinks fit grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.]”

56. A perusal of the aforesaid Order XXIII Rule 1 (4) makes it clear that when a plaintiff withdraws from a suit or a part of a claim without seeking permission of the court as contemplated in Order XXIII Rule 1 (3), such plaintiff shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim.
57. It is quite manifest from the order dated 15.05.2019 passed in civil suit no. 767/2017 that the defendant no. 1 had not sought withdrawal of her suit on account of any formal or technical defect. The defendant no.1 also did not seek any permission from the Court to institute a fresh petition on the same cause of action. There was not even any application filed seeking leave to institute a fresh suit/petition. Thus, the defendant no.1 voluntarily abandoned the previous suit altogether and in such a situation, the defendant no.1 is clearly precluded from instituting the fresh suit bearing CS (OS) 221/2022 challenging the same will dated 29.08.2016 and the sale deed dated 15.12.2017.
58. Further, the defendant no.1 had admittedly also preferred a suit seeking partition of another property left behind by her later father Mr. Amar Singh Gaba. The said suit bearing no. 16/18 in the Court of Additional District Judge-02, Shahadra, Karkardooma Courts, New Delhi sought partition of the property bearing No. 17 admeasuring 177 sq. feet (approx) situated in Indira Park Extension, Gali no 5 and 6, Krishna Nagar, Delhi 110051 of late Mr. Amar Singh Gaba and was decreed vide Judgment dated 02.12.2020 passed by the learned Additional District Judge.
59. In this regard, it would be relevant to refer to Order II Rule 2 of the CPC, which is reproduced below:
“2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish and portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.”

60. While suing for partition of the property bearing No. 17 admeasuring 177 sq. feet (approx) situated in Indira Park Extension, Gali no 5 & 6, Krishna Nagar, Delhi 110051, the defendant no.1 had omitted to sue in respect of the suit property which also belongs to her father. The defendant no.1 has not filed any application seeking leave of the court, as required under Order II Rule 2 (3) of CPC to obtain leave to file a fresh suit in respect of omitted or relinquished relief on same cause of action. Therefore, not only is the claim of the defendant nos. 1 and 2 in their suit bearing CS (OS) 221/2022 barred under Order XXIII Rule 1 (4), but is also arguably barred under Order II Rule 2 of the CPC.
61. The judgments in (Rani) Kulandai Pandichi (supra) and Saraswati Bala Samata (supra) relied upon by the defendants are of no relevance in the facts and circumstances of the present case since the defendants in the present case are not barred from filing a fresh suit due to principles of res judicata but are precluded from doing so in view of Order XXIII Rule 1 (4).
62. As regards the contention of the defendants that the withdrawal of their earlier suit bearing CS No. 767/2017 was on account of alleged fraud played on part of the plaintiffs, Order VI Rule 4 of the CPC stipulates that a party pleading fraud is required to give particulars of the pleaded fraud, with dates and items in the pleadings. A mere allegation of fraud in the pleadings of the defendant is not sufficient to make out a case for fraud. Order VI Rule 4 of the CPC reads as under:
“4. Particulars to be given where necessary.—In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

In this regard, the Supreme Court in Bishundeo Narain Vs. Seogeni Rai10, inter alia observed as under:
“22….It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”

63. Therefore, the plea of fraud as pleaded by the defendants is liable to be rejected.
64. In CS (OS) 344/2019, the defendants have raised a defence that they were put in possession pursuant to an agreement to sell dated 10.04.2009.
65. Admittedly, no sale deed was ever executed in their favour and the title and ownership of the suit property remained with Mr. Amar Singh Gaba. The defence raised by the defendants that the will dated 29.08.2016 of late Mr. Amar Singh Gaba is a forged and fabricated document is not substantiated by any evidence. The will of late Mr. Amar Singh Gaba is a registered document and thus onus of proof lies upon the defendants to prove that the said will is forged and fabricated. Moreover, any challenge to the said will by the defendants is precluded on account of withdrawal of the suit of the defendant no.1 bearing civil suit no. 767/2017, wherein defendant no.1 had inter alia sought declaration of the will dated 29.08.2016 as null and void.
66. As held by this court in Pradeep Kumar and Another Vs. Raj Kumar11, unregistered documents relating to immovable property cannot be accepted as evidence to establish the possessory right. The defendants can therefore not rely upon the agreement to sell dated 10.04.2009 to establish their possessory right over the suit property.
67. With respect to the contention of the defendants that the will of late Mr. Amar Singh Gaba was not probated and therefore sale deed dated 15.12.2017 executed by late Mrs. Sudarshan Gaba be declared null and void, it is observed that the will dated 29.08.2016 was registered in Delhi and pertains to the suit property which is also located in Delhi. In view of the judgment of the Supreme Court in Clarence Pais and Ors. Vs. Union of India12, if a will is executed in the state of Delhi and does not relate to any property situated within the cities of Kolkata, Chennai or Mumbai, then such Will is not mandatorily required to be probated.
68. Moreover, the will and the sale deed both being registered documents in this case, also carry a presumption of being validly executed and the onus would be on the defendants to prove otherwise. In this regard, the Supreme Court in Prem Singh Vs. Birbal (supra), had inter alia held as under:
“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

69. Further, the defendants cannot seek to resist the rights flowing in favour of the plaintiff by virtue of registered sale deed dated 15.12.2017 in the absence of the same having been declared as null and void by a competent court. In this regard, the judgment of the Supreme Court in Gorakh Nath Dube Vs. Hari Narain Singh & Ors.13,can be relied upon, wherein, it was inter alia held as under:
“5. …We think that a distinction can be made between cases where a document is wholly or partially invalid so that it can be disregarded by any court or authority and one where it has to be actually set aside before it can cease to have legal effect. An alienation made in excess of power to transfer would be, to the extent of the excess of power, invalid. An adjudication on the effect of such a purported alienation would be necessarily implied in the decision of a dispute involving conflicting claims to rights or interests in land which are the subject matter of consolidation proceedings. The existence and quantum of right claimed or denied will have to be declared by the consolidation authorities which would be deemed to be invested with jurisdiction, by the necessary implication of their statutory powers to adjudicate upon such rights and interests in land, to declare such documents effective or ineffective, but, where there is a document the legal effect of which can only be taken away by setting it aside or its cancellation, it could be urged that the consolidation authorities have no power to cancel the deed, and, therefore, it must be held to be binding on them so long as it is not cancelled by a court having the power to cancel it.”

70. This Court in its judgment in Bhupinder Jit Singh (supra), has further enunciated the legal position that a sale deed would remain in operation till the same has been declared to be null and void by competent court, and that the plea of the documents having been executed by misrepresentation, cannot be taken as a defence to a suit on the basis of the said documents. This Court in Bhupinder Jit Singh inter alia held as under:
“11. The passing of a decree for possession cannot be deferred, if the petitioner/ plaintiff were to be found entitled thereto, for the reason of the respondent/defendant intending to file a suit for setting aside of the sale deed and the lease deed, even if such suit is still within limitation. The fact remains that notwithstanding the written statement in the suit having been filed in February, 2015, the respondent/ defendant till now has not filed any such suit. Thus, as of now there is no step taken by the respondent/defendant for rescission of the registered documents aforesaid which establish the title of the petitioner/plaintiff to the property (though in a suit between landlord and tenant, such title is not necessary) and the relationship of landlord and tenant between the parties. The said registered documents have to prevail, particularly when the execution and registration thereof is admitted. The plea, of the documents having been got executed by misrepresentation, cannot be a defence to a suit on the basis of the said documents unless the said documents are so declared by a competent Court of law.”

xxx xxx xxx

14. Applying the aforesaid law to the facts of the present case, what is found is, (a) that the respondent/defendant does not controvert execution and registration of the sale deed as well as lease deed; (b) his defence however is of the transaction being a loan transaction and not a transaction of sale and lease as appears from the documents, and of the sale and lease documents having been got executed and registered from him by misrepresentation. Per Section 19 of the Contract Act, 1872, when consent to an agreement is caused by fraud or misrepresentation, the contract is voidable at the option of the party whose consent was so caused. The defence of the respondent/defendant to the suit is of no avail till the sale and lease documents are not declared null and void. The same cannot be declared so in the suit of the petitioner/plaintiff. It is not the argument also of counsel for respondent/defendant; he also admits that a suit therefor has to be filed. The petitioner/plaintiff cannot be declined the relief to which he is entitled on the basis of documents aforesaid. The facts of the present case do not entitle the respondent/defendant to have the petitioner/plaintiff non-suited by acceptance of the defence of the respondent/defendant of fraud as to the very nature and character of the sale and lease documents.”

71. The judgment in Kandapazha Nadar (supra) relied upon by the defendants is distinguishable from the facts of the present case inasmuch as in Kandapazha Nadar (supra), the defendants in a subsequent suit had a conveyance deed in their favour and had earlier instituted a suit which was decreed by the Appellate Court. However, on a second appeal filed impugning a decree of the Appellate Court, the suit was withdrawn. In a subsequent suit filed by the plaintiff who also had a conveyance in his favour, defendants who had earlier filed a suit sought to take defence by way of a conveyance deed which was rejected by the courts. In the said case, the Supreme Court held that since the defendants had a conveyance deed in their favour, they could raise defence regarding validity of the conveyance in their favour in a subsequent suit filed by the plaintiff. In fact, the question before the Hon’ble Supreme Court in Kandapazha Nadar (supra) was whether the plaintiff in the earlier suit and the defendant in the subsequent suit was estopped from raising defence regarding the validity of the conveyance deed in their favour. The question which was before the Supreme Court in Kandapazha Nadar (supra) is as under:
“14. The question before us is: What is the effect of the order passed by the High Court in Second Appeal No. 8 of 1977 filed by Thangaraj Nadar, in the first round of litigation? That order is dated 27.07.1978. Under that order, the Madras High Court granted leave to withdraw the suit filed by the petitioners herein bearing Suit No. 298 of 1973, making it clear that the petitioners herein (the plaintiffs in the earlier suit) were not given liberty to file a fresh suit. Does it mean that the petitioner-defendants were estopped from raising the defence regarding validity of the conveyance in their by Chelliah Nadar dated 08.10.1971?”

72. From a perusal of the aforesaid judgment, it is clear that in the said case since the defendants therein had a conveyance in their favour, they were permitted to raise defence regarding the validity of the said conveyance in the subsequent suit. That is not the case in the present proceedings. In the present case, the defendants in CS (OS) 344/2019 have no right, title and interest in the suit property.
73. From all the above circumstances, it is evident that the defence set out by the defendants is a sham and completely untenable, and therefore warrants that a judgment be passed under the provision of Order XII Rule 6 of the CPC.
74. A Co-ordinate Bench of this court in Anu Gupta Vs. Vijay Gupta and Others14, after taking note of the judgments of Division Benches of this court in Rajeev Tandon Vs. Rashmi Tandon15, and P.P.A Impex Pvt. Ltd. Vs. Mangal Sain Metal16, inter alia held as under:
“23. With regard to Order XII Rule 6 of the CPC, the Division Bench of this Court has observed in Rajeev Tandon v. Rashmi Tandon, 2019 SCC OnLine Del 7336, that for the purposes of Order XII Rule 6 of the CPC, the admissions can be in the pleadings or in the documents filed on behalf of the parties. The admissions can also be constructive admissions, which can be inferred from the vague and evasive denial in the Written Statement. In P.P.A Impex Pvt. Ltd. v. Mangal Sain Metal, 2009 SCC OnLine Del 3866, the Division Bench of this Court has observed that the approach to be taken under Order XII Rule 6 of the CPC is akin to that to be taken while considering a leave to defend application in a Order XXXVII suit. If a defence amounting to moonshine has been presented, it should be summarily dismissed by not granting leave to defend and by decreeing the suit forthwith. The Courts are already groaning under the weight of bludgeoning and exponentially increasing litigation. The weight will unvaryingly increase if moonshine defences are needlessly permitted to go to trial.”

75. Reference may also be made to the judgment of this court in Tirath Ram Shah Charitable Trust and Ors. Vs. Mrs. Sughra Bi 17 wherein it was inter alia observed as under:
“12. In the case of Charanjit Lal Mehra v. Smt. Kamal Saroj Mahajan, reported as (2005) 11 SCC 279, the Supreme Court has held that an admission under Order XII Rule 6 CPC can be inferred from the facts and circumstances of the case and that Order XII Rule 6 CPC has been enacted to expedite trial and where the courts find that the suit can be disposed of on such admissions, it should not hesitate from doing so. It is also relevant to refer to the observations of a Division Bench of this Court in the case of Vijaya Myne v. Satya Bhushan Kaura, reported as 142 (2007) DLT 483, where in the light of the innumerable authorities on Order XII Rule 6 CPC, it was held that admissions can be constructive admissions and need not be specific or expressive, which can be inferred from vague and evasive denial in the Written Statement while answering specific pleas in the plaint and further, that admissions can even be inferred from the facts and circumstances of a case.”

CONCLUSION
IA No. 13756/2022 in CS (OS) 221/2022 (under Order 7 Rule 11 of CPC)
76. In view of the aforesaid discussion and upon a perusal of the plaint of the defendants in CS (OS) 221/2022, it is abundantly clear that the defendants had earlier instituted a suit seeking specific performance of the agreement to sell dated 10.04.2009 wherein they had also challenged the will dated 29.08.2016 and the sale deed dated 15.12.2017. Having withdrawn the said suit without seeking leave of the court to file a fresh suit, the defendants are barred from instituting a fresh suit seeking partition of the suit property and challenging the will dated 29.08.2016 and the sale deed dated 15.12.2017. The suit of the defendants bearing CS (OS) 221/2022 does not disclose any cause of action, other than the cause of action which is barred under Order XXIII Rule 1 (4). Resultantly, the application of the plaintiffs under Order VII Rule 11 in CS (OS) 221/2022 is allowed; the suit of the defendants being CS (OS) 221/2022 is consequently dismissed.
IA No. 12186/2020 in CS (OS) 344/2019 (under Order 12 Rule 6 of CPC)
77. In the present case, since the defence raised by the defendants is completely untenable and barred in law, the present case is a fit case for a decree to be passed under Order XII Rule 6 of the Code of Civil Procedure, 1908.
78. In the circumstances, the following decrees are passed:
i. A decree of declaration that the sale deed dated 15.12.2017 is legally valid and binding;
ii. A decree of possession is passed in favour of the plaintiffs in CS (OS) 344/2019 and against the defendants therein, directing the defendants to vacate the suit property and handover the vacant, peaceful and actual possession of the suit property to the plaintiffs;
iii. A decree of permanent injunction is also issued in favour of the plaintiffs and against the defendants thereby restraining the defendants, their servants, agents, employees, representatives, heirs, etc. and / or others acting for and on their behalf from creating any nature of third-party interest and/or encumbrance and/or dispossessing the plaintiffs from the suit property.
79. The prayer as regards mesne profits will be considered independently.
80. I.A No. 12186/2020 under Order XII Rule 6 in CS (OS) 344/2019 stands disposed of in the above terms.
CS (OS) 344/2019
81. List on 05.04.2024.

SACHIN DATTA, J
MARCH 04, 2024/dk
1AIR 2006 SC 3608
2(1973) 2 SCC 535
32017 SCC OnLine Del 11061
4(2018) 4 SCC 606
5AIR 1928 Madras 416
6(2007) 7 SCC 65
7AIR 1957 Cal 57
82007 4 SCC 221
9(2012) 1 SCC 476
101951 SCC 447 : 1951 SCR 548 : AIR 1951 SC 280
11 2023 SCC OnLine Del 4465
12 (2001) 4 SCC 325
13(1973) 2 SCC 535
142023 SCC OnLine Del 2391
152019 SCC OnLine Del 7336
162009 SCC OnLine Del 3866
172015 SCC OnLine Del 13655
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