{"id":247540,"date":"2009-12-15T00:00:00","date_gmt":"2009-12-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ashok-manchanda-vs-vijay-manchanda-ors-on-15-december-2009"},"modified":"2016-05-19T18:18:55","modified_gmt":"2016-05-19T12:48:55","slug":"ashok-manchanda-vs-vijay-manchanda-ors-on-15-december-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ashok-manchanda-vs-vijay-manchanda-ors-on-15-december-2009","title":{"rendered":"Ashok Manchanda vs Vijay Manchanda &amp; Ors on 15 December, 2009"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Ashok Manchanda vs Vijay Manchanda &amp; Ors on 15 December, 2009<\/div>\n<div class=\"doc_author\">Author: Rajiv Sahai Endlaw<\/div>\n<pre id=\"pre_1\">*IN THE HIGH COURT OF DELHI AT NEW DELHI\n\n+                     CRP.No.172\/2008\n\n%                                        Date of decision: 15th December, 2009.\n\nVIJAY MANCHANDA &amp; ANR                                             ....... Petitioners\n\n                      Through: Mr. Prabhjit Jauhar, Advocate\n\n                                          Versus\n\nASHOK MANCHANDA                                                  ....... Respondent\n\n                      Through: Mr. Anupam Srivastava, Advocate.\n\n                                          AND\n\n                                     FAO 423\/2008\n\nASHOK MANCHANDA                                                  ....... Petitioner\n\n                      Through: Mr. Anupam Srivastava, Advocate\n\n                                          Versus\n\nVIJAY MANCHANDA &amp; ORS                                            ....... Respondents\n\n                      Through: Mr Prabhjit Jauhar, Advocate\n\nCORAM :-\nHON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW\n\n1.     Whether reporters of Local papers may       Yes\n       be allowed to see the judgment?\n\n2.     To be referred to the reporter or not?      Yes\n\n3.     Whether the judgment should be reported     Yes\n       in the Digest?\n\n\nRAJIV SAHAI ENDLAW, J.\n<\/pre>\n<p id=\"p_1\">1.     The revision petition under section 115 of the CPC and the FAO under Order<br \/>\n43 rule 1(r) of the CPC arise from the orders in the same suit, disposing of the<br \/>\napplications under Order 39 Rules 1 and 2, Order 39 Rule 4 and Order 7 Rule 11 of<br \/>\nthe CPC.\n<\/p>\n<p><span class=\"hidden_text\" id=\"span_1\">CRP.NO.172\/2008 &amp; FAO423\/2008                                              Page 1 of 10<\/span><\/p>\n<p id=\"p_1\"> 2.     The suit from which these petition and appeal have arisen was instituted by<br \/>\nShri Ashok Manchanda hereinafter referred to as the plaintiff against Shri Vijay<br \/>\nManchanda and Smt Poonam Manchanda hereinafter referred to as the defendants.<br \/>\nThe suit was instituted for cancellation of sale deed dated 10th August, 2000 executed<br \/>\nby the defendant No.1 Shri Vijay Manchanda in favour of the defendant No.2 Smt<br \/>\nPoonam Manchanda with respect to the property No.699, first floor, double storey,<br \/>\nNew Rajinder Nagar, New Delhi. It is, inter alia, the case of the plaintiff in the plaint<br \/>\nthat the plaintiff and the defendant No.1 are brothers; the defendant No.2 is the wife<br \/>\nof the defendant No.1; that the plaintiff and the defendant No.2 had vide agreement<br \/>\ndated 17th August, 1993 agreed to purchase the aforesaid property from one Smt<br \/>\nUsha Sachdev and had paid the entire sale consideration to the said Smt Usha<br \/>\nSachdev and the property agreed to be purchased being lease hold and the execution<br \/>\nof the sale deed thereof being not immediately possible, the said Smt Usha Sachdev<br \/>\nhad, as per practice, executed a general power of attorney with respect to the said<br \/>\nproperty in favour of the defendant No.1 enabling the defendant No.1 to sell the said<br \/>\nproperty; that the plaintiff and the defendant No.2 in part performance of the<br \/>\nagreement to sell were also put into possession of the aforesaid property and were<br \/>\nthereafter holding themselves out as owner of the said property having half share<br \/>\neach; that the defendant No.1 however misused the power of attorney executed in his<br \/>\nfavour in pursuance to the agreement to sell aforesaid and executed sale deed of one<br \/>\nhalf share in the property in favour of the defendant No.2 on 9th August, 2000 and<br \/>\nanother sale deed with respect to the other half share in the property on 10th August,<br \/>\n2000 thereby purporting to make his wife the defendant No.2 who under the<br \/>\nagreement to sell was entitled to only half share in the property, the absolute owner<br \/>\nof the property; that the plaintiff learnt of the execution of the said sale deeds only on<br \/>\n29th October, 2007. The plaintiff thus instituted the suit for cancellation of the sale<br \/>\ndeed dated 10th August, 2000 with respect to the one half share in the property.\n<\/p>\n<p id=\"p_2\">3.     The suit was accompanied with an application for interim relief. It appears<br \/>\nthat vide ex parte\/interim order the defendants in the suit were restrained from<br \/>\ndealing with the property.\n<\/p>\n<p><span class=\"hidden_text\" id=\"span_1\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                    Page 2 of 10<\/span><\/p>\n<p id=\"p_3\"> 4.      The defendants contested the suit and filed an application under Order 7 Rule<br \/>\n11 of the CPC for rejection of the plaint and also filed an application under Order 39<br \/>\nRule 4 of the CPC for vacation of the stay.\n<\/p>\n<p id=\"p_4\">5.      The trial court vide order impugned in these petitions\/appeal has dismissed<br \/>\nthe application of the plaintiff under Order 39 Rules 1 and 2 of the CPC, allowed the<br \/>\napplication of the defendants under Order 39 Rule 4 of the CPC and vacated the<br \/>\norder restraining the defendants from dealing with the property and also dismissed<br \/>\nthe application of the defendants under Order 7 Rule 11 of the CPC.\n<\/p>\n<p id=\"p_5\">6.      The Revision petition has been preferred by the defendants in the suit against<br \/>\nthe dismissal of their application under Order 7 Rule 11 of the CPC. The appeal has<br \/>\nbeen preferred by the plaintiff in the suit against the order of dismissal of his<br \/>\napplication under Order 39 Rule 1 and 2 of the CPC. Both have been directed to be<br \/>\ntaken up together.\n<\/p>\n<p id=\"p_6\">7.      Since the revision petition entails the question of very maintainability of the<br \/>\nsuit, it is deemed expedient to take up the same first. The counsel for the defendants<br \/>\nhas contended that rejection of the pliant under Order 7 Rule 11 of the CPC was<br \/>\nsought on three grounds. Firstly, on the ground of the claim for cancellation of the<br \/>\nsale deed being barred by limitation, secondly on the ground of the suit for mere<br \/>\ncancellation of sale deed being not maintainable without the plaintiff claiming the<br \/>\nsubsequent relief of possession of the property and thirdly on the ground that the<br \/>\nplaintiff was merely an agreement purchaser and had no right in the property and \/ or<br \/>\na right to claim setting aside of the sale deed with respect to the property and as an<br \/>\nagreement purchaser could at best sue for specific performance of agreement to sell<br \/>\nand which had not been done and as such the plaint did not disclose any cause of<br \/>\naction for the suit.\n<\/p>\n<p id=\"p_7\">8.      The trial court has dismissed the application holding that on a perusal of the<br \/>\nplaint the same was found to disclose a cause of action; that from the averments of<br \/>\nthe plaint the cause of action is shown to accrue on 29th October, 2007 only and<br \/>\nthough the said fact is disputed by the defendants but the same is to be subject matter<br \/>\nof trial and the plaint could not be rejected as barred by time and also on the ground<\/p>\n<p><span class=\"hidden_text\" id=\"span_2\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                 Page 3 of 10<\/span><br \/>\n that the appropriate remedy of the plaintiff being a suit for specific performance<br \/>\ncould not be a ground for rejection of the plaint.\n<\/p>\n<p id=\"p_8\">9.      In my opinion the grounds of limitation and the plaint not disclosing a cause<br \/>\nof action are not made out in the present case. As far as limitation is concerned, the<br \/>\nsame, considering the nature of the suit is governed by <a href=\"\/doc\/858095\/\" id=\"a_1\">Article 59<\/a> of the Schedule to<br \/>\nthe <a href=\"\/doc\/1317393\/\" id=\"a_1\">Limitation Act<\/a>. The limitation provided is of three years commencing from the<br \/>\ndate when facts entitling the plaintiff to the relief of cancellation of a deed or<br \/>\ndocument first became known to the plaintiff. As per the averments in the plaint and<br \/>\nwhich alone are to be seen at this stage, the said facts first became known to the<br \/>\nplaintiff within three years prior to the institution of the suit. The counsel for the<br \/>\ndefendants has sought to demonstrate that the plaintiff had contemporaneous<br \/>\nknowledge of the sale deeds. However, that is a matter of evidence. Suffice it is to<br \/>\nstate that no document has been shown from which it can be said positively that the<br \/>\nplaintiff had knowledge of the sale deed sought to be cancelled, at any time prior to<br \/>\nthree years prior to the institution of the suit.\n<\/p>\n<p id=\"p_9\">10.     As far as the plea of the plaint not disclosing the cause of action is concerned,<br \/>\nin the facts of the case I do not find that the plaintiff can be said to be having no<br \/>\nrights in the property without claiming the relief of specific performance. The<br \/>\nDivision Bench of this court in Asha M. Jain Vs. The Canara Bank 94 (2001) DLT<br \/>\n841 has taken judicial notice of the practice prevalent in Delhi of properties being<br \/>\ntransacted by the mode of agreement to sell, power of attorney etc. The grievance of<br \/>\nthe plaintiff is not against the agreement seller. It is not the case that the agreement<br \/>\nseller in violation of the agreement has executed the sale deed in favour of the co-<br \/>\npurchaser of the plaintiff. On the contrary, the grievance of the plaintiff is that while,<br \/>\nas per the sale through the aforesaid documents, the rights were created in favour of<br \/>\nthe plaintiff and the defendant No.2, the defendant No.2 in collusion with her<br \/>\nhusband, the defendant No.1, has got transferred the title of the property to herself<br \/>\nonly. The plaintiff, if able to establish that the power of attorney was executed by the<br \/>\nagreement seller in favour of the defendant No.1 in consideration of agreement to sell<br \/>\nin favour of the plaintiff and the defendant No.2, would have a claim against the<br \/>\ndefendant No.1 for wrongfully acting under the said power of attorney and to the<\/p>\n<p><span class=\"hidden_text\" id=\"span_3\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                    Page 4 of 10<\/span><br \/>\n detriment of the plaintiff. Thus, the principle that an agreement purchaser has no<br \/>\nrights in the property, save the right to claim specific performance, has no application<br \/>\nto the facts of the present case.\n<\/p>\n<p id=\"p_10\">11.     The main plea which arises for consideration is whether it can be said that the<br \/>\nsuit for the relief of cancellation of sale deed alone without claiming relief of<br \/>\npossession is not maintainable. First, on the factual aspects. The counsel for the<br \/>\nplaintiff has contended that for the purposes of adjudication of application under<br \/>\nOrder 7 Rule 11 of the CPC only the plaint is to be seen and the averments of the<br \/>\ndefendants in the written statement or otherwise cannot form the basis of rejection of<br \/>\nthe plain. He has in this regard relied upon Mayar (H.K.) Ltd. Vs. Owners and<br \/>\nParties, Vessel M.V. Fortune Express AIR 2006 SC 1828. He has drawn attention<br \/>\nto para 6 of the plaint which is as under:\n<\/p>\n<blockquote id=\"blockquote_1\"><p>         &#8220;That the parties were in the possession of the suit premises since<br \/>\n         the execution of the agreement to sell. The plaintiff and defendant<br \/>\n         No.2 held themselves to be the owner of the respective half<br \/>\n         property.&#8221;\n<\/p><\/blockquote>\n<p id=\"p_11\">12.     He has contended that the case in the plaint is of the plaintiff being in<br \/>\npossession of the property and thus the question of the plaintiff being required to<br \/>\nclaim the further relief of possession does not arise, even if the legal proposition<br \/>\naforesaid were to be correct.\n<\/p>\n<p id=\"p_12\">13.     The trial court has qua the applications under Order 39 Rules 1 and 2 and<br \/>\nOrder 39 Rule 4 of the CPC in the order impugned recorded that it is the admitted<br \/>\nposition that the plaintiff is not in possession of the property. I have inquired from<br \/>\nthe counsel for the plaintiff whether he has in the memorandum of appeal challenged<br \/>\nthat para of the order or taken a ground that the said observation of the trial court is<br \/>\nerroneous. The answer is in the negative. Even otherwise, on inquiry, the counsel<br \/>\nfor the plaintiff has fairly stated that the defendants are residing in the property and<br \/>\nthe plaintiff is not in physical possession of the property. He has contended that the<br \/>\nplaintiff, as owner, is however in constructive possession of the property and the<br \/>\npossession of defendant No.2 as a co-owner is the possession of the plaintiff as well.<br \/>\nOn further inquiry as to what the plaintiff will gain even if succeeding in the suit, the<\/p>\n<p><span class=\"hidden_text\" id=\"span_4\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                   Page 5 of 10<\/span><br \/>\n answer is that once the sale deed of one half share is set aside, the plaintiff will<br \/>\nthereafter either claim the relief of partition or possession or claim any other relief.<br \/>\nIn yet further inquiry whether such claim would not be barred by order 2 Rule 2 of<br \/>\nthe CPC the answer is that the cause of action for such relief of possession of<br \/>\npartition would be different from the cause of action for the suit from which these<br \/>\nproceedings arise.\n<\/p>\n<p id=\"p_13\">14.    As far as the plea of it being the case in the plaint that the plaintiff is in<br \/>\npossession, the Supreme Court has in T. Arivandandam Vs. T.V. Styapal AIR 1977<br \/>\nSC 2421 and further in Sopan Sukhdeo Sable Vs. Assistant Charity Commissioner<br \/>\nAIR 2004 SC 1801 held that in dealing with the applications under Order 7 Rule 11<br \/>\nof the CPC a meaningful and not a pedantic reading of the plaint is to be undertaken.<br \/>\nThus merely by clever drafting, a plaint which otherwise is liable for rejection cannot<br \/>\nbe made maintainable. The purpose of Order 7 Rule 11 of the CPC is to nip in the<br \/>\nbud those litigations which are otherwise doomed and not to allow them to take up<br \/>\nthe time of the courts and\/or not to allow multiplicity of litigation. The same thought<br \/>\nis found to also run in the dicta of the Supreme Court in Liverpool and London S.P.<br \/>\n&amp; I Association Ltd. Vs M.V. Sea Success I (2004) 9 SCC 512 Thus I am not able<br \/>\nto accept the contention of the counsel for the plaintiff that as per the averments in<br \/>\nthe plaint the plaintiff is in possession of the property. The plaintiff has used the<br \/>\nword &#8220;were&#8221; in relation to the possession. Moreover, as aforesaid, the trial court<br \/>\nrecords that it is the admitted position that the plaintiff is not in possession and no<br \/>\nchallenge has been made thereto by the plaintiff in this court. The matter thus has to<br \/>\nbe considered in the light of the plaintiff not being in possession of the property.\n<\/p>\n<p id=\"p_14\">15.    The next question which arises is whether the plaintiff can maintain a suit for<br \/>\ncancellation of a document simplicitor even when the plaintiff is found entitled to<br \/>\nfurther relief. The counsel for the defendants has contended that the principle in the<br \/>\nproviso to <a href=\"\/doc\/1028815\/\" id=\"a_2\">Section 34<\/a> of the Specific Relief Act applies to <a href=\"\/doc\/1279464\/\" id=\"a_3\">Section 31<\/a> also; the same<br \/>\nbeing a facet of declaration only. He has in this regard also drawn attention to AIR<br \/>\n1932 Vindya Pradesh 69. On the contrary, the counsel for the plaintiff has contended<br \/>\nthat <a href=\"\/doc\/1279464\/\" id=\"a_4\">Sections 31<\/a> and <a href=\"\/doc\/1028815\/\" id=\"a_5\">34<\/a> are situated in different chapters of the <a href=\"\/doc\/1671917\/\" id=\"a_6\">Specific Relief Act<\/a><\/p>\n<p><span class=\"hidden_text\" id=\"span_5\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                    Page 6 of 10<\/span><br \/>\n and while the legislature has deemed it appropriate to insert the proviso in <a href=\"\/doc\/1028815\/\" id=\"a_7\">Section<br \/>\n34<\/a>, no such condition has been imposed in <a href=\"\/doc\/1279464\/\" id=\"a_8\">Section 31<\/a>.\n<\/p>\n<p id=\"p_15\">16.     However, the aforesaid question need not detain me further in as much I am<br \/>\nunable to accept the plea of the defendants that the plaintiff is entitled to the further relief<br \/>\nof possession. The claim of the plaintiff is not of exclusive ownership of the<br \/>\nproperty\/flat. The claim is of joint ownership of the property\/flat along with the<br \/>\ndefendant No.2. One co-owner cannot claim the relief of possession against the other co-<br \/>\nowner. Thus contrary to what the counsel for the defendants has urged, I do not find the<br \/>\nplaintiff to be entitled to a further relief of possession and for the reason of not claiming<br \/>\nwhich relief it can be held that the plaintiff is not entitled to maintain the suit for the<br \/>\nrelief of declaration of cancellation of document simplicitor. In Joy Gopal Singha Vs<br \/>\nProbodh Chandra Bhattacharjee AIR 1935 Cal 646, a Division Bench held that a co-<br \/>\nowner \/ co-sharer has no right to recover possession from another co-owner \/ co-sharer.<br \/>\nThis view has consistently been taken by all the High Courts as well as the Supreme<br \/>\nCourt, as noticed by another Division Bench in Minor Nantu Bag Vs Rasana Bala Dasi<br \/>\nAIR 2001 Cal 53. The plaintiff as co-owner is only entitled to maintain a suit for partition<br \/>\nagainst the other co-owner. However, the relief of partition is not such which a<br \/>\nperson\/party can be compelled to claim. A person\/party may be satisfied in keeping the<br \/>\nproperty joint and may not be interested in partition and separate possession of his share.<br \/>\nIt would be inequitable if a co-owner is forced to have a partition of the property and<br \/>\ncannot otherwise get his share of the property which is actually being received by his co-<br \/>\nsharer even though the effect of partition may be a practical destruction of the property or<br \/>\na deterioration in its value. It was held in Abu Shahid Vs Abdul Dobhash AIR 1940 Cal<br \/>\n363 that this principle which is statutorily recognized in English law can be applied as a<br \/>\nrule of equity, justice and good conscience in India. It thus cannot be said that merely<br \/>\nbecause the plaintiff is claiming the relief of cancellation of sale deed of one half share of<br \/>\nthe property to which the plaintiff claims entitled to, he is also required to necessarily<br \/>\nclaim the relief of partition. If the plaintiff succeeds in having the relief of cancellation of<br \/>\nsale deed, the result thereof would be that the defendant No.2 and the plaintiff in terms of<br \/>\nthe agreement to sell would be the owners of one half share each in the property and the<br \/>\nplaintiff would be entitled to the sale deed of the other half share in his favour.\n<\/p>\n<p><span class=\"hidden_text\" id=\"span_6\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                      Page 7 of 10<\/span><\/p>\n<p id=\"p_16\"> 17.    I, therefore, do no find that the plaint can be rejected on this ground either. In the<br \/>\ncircumstances, no jurisdictional error can be found in the order of the trial court in so far<br \/>\nas dismissing the application of the defendants under Order 7 Rule 11 of the CPC.<br \/>\nRevision petition is accordingly dismissed.\n<\/p>\n<p id=\"p_17\">18.    That brings me to the appeal preferred by the plaintiff against the order of<br \/>\ndismissal of his application under Order 39 Rules 1&amp;2 of the CPC. A perusal of the order<br \/>\nwould show that the trial court has dismissed the application for the reason of not finding<br \/>\na prima facie case in favour of the plaintiff. The trial court has given six reasons in this<br \/>\nregard. It has been held that Smt. Usha Sachdeva owner of the property and M\/s Brothers<br \/>\nBuilders and Developers builders of the property have not been impleaded as parties to<br \/>\nthe suit; that the relief claimed by the plaintiff is not complete; that the plaintiff should<br \/>\nhave first obtained the relief of specific performance of agreement to sell in his favour;<br \/>\nthat since the agreement is of 2000 and the plaintiff did not take any steps till 2007, the<br \/>\ntrial court also held the question of limitation against the plaintiff. No findings have been<br \/>\ngiven by the trial court on the ingredients of irreparable loss and injury and balance of<br \/>\nconvenience.\n<\/p>\n<p id=\"p_18\">19.    As far as the ingredients of irreparable injury and balance of convenience are<br \/>\nconcerned, the suit is relating to rights in immovable property and it is presumed that if<br \/>\nthe property in which the plaintiff is claiming rights is transacted during the pendency of<br \/>\nthe suit, the plaintiff shall suffer irreparable loss and injury. The provisions of <a href=\"\/doc\/1634925\/\" id=\"a_9\">Section 52<\/a><br \/>\nof the Transfer of Property Act of lispendens also apply. However, the same is not a bar<br \/>\nto granting an injunction. Considering the entirety of the facts the ingredients of<br \/>\nirreparable injury and balance of convenience are found to be in favour of the plaintiff<br \/>\nand against the defendants. The defendants are stated to be residing in the flat. They will<br \/>\nnot suffer any injury if they are restrained from selling, alienating or parting with<br \/>\npossession of the property. On the contrary, if they do so, it will lead to problems of<br \/>\nmultiplicity of parties and inherent delays in disposal of the suit.\n<\/p>\n<p id=\"p_19\">20.    In so much as the trial court has held the ingredient of prima facie case against the<br \/>\nplaintiff, most of the reasons for holding so, are already covered by what has been<br \/>\ndiscussed above. The grievance of the plaintiff is not against Smt. Usha Sachdeva or<\/p>\n<p><span class=\"hidden_text\" id=\"span_7\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                    Page 8 of 10<\/span><br \/>\n against the builder. In pursuance to the agreement to sell in favour of the plaintiff and the<br \/>\ndefendant No.2, it is the admitted position that the power of attorney was executed in<br \/>\nfavour of the defendant No.1 to enable him to execute the sale deeds whenever possible<br \/>\nand in terms of the agreement to sell. The defendants do not dispute that the purchase<br \/>\nwas to be equally in favour of the plaintiff and the defendant No.2. Their case is of,<br \/>\nowing to a subsequent settlement in the family, the defendant No.2 having become<br \/>\nentitled to the entire property. That settlement is yet to be proved. Till then, it cannot be<br \/>\nsaid that the plaintiff has no share in the property. Thus it cannot be said at this stage that<br \/>\nthe non inclusion of Smt. Usha Sachdeva and the builder is an impetus to the grant of<br \/>\ninterim relief in favour of the plaintiff. If any case, no suit can be defeated for the reason<br \/>\nof non-joinder. Similarly, it has been held above that a co-owner cannot claim the relief<br \/>\nof possession against the other co-owner and cannot be compelled to seek the relief of<br \/>\npartition. I have also already dealt with, there being no need for the plaintiff to claim<br \/>\nspecific performance of the agreement in as much as there is no refusal by the seller to<br \/>\nthe performance. Similarly, merely because the agreement to sell is of the year 2000 does<br \/>\nnot bar the plaintiff from claiming the relief of cancellation of sale deed alleged to be<br \/>\nexecuted in contravention of the agreement, within three years of the date when the facts<br \/>\nentitling the plaintiff to the said relief of cancellation first became known to the plaintiff.\n<\/p>\n<p id=\"p_20\">21.     It would be thus be seen that the reasoning given by the trial court for not finding<br \/>\nthe ingredient of prima facie case in favour of the plaintiff is contrary to law.\n<\/p>\n<p id=\"p_21\">        The counsel for the defendants has relied on:-\n<\/p>\n<p id=\"p_22\">        1. Bhupinder Singh Rekhi Vs. C.S. Rekhi 1998 VII AD (Delhi) 200 on the<br \/>\n            aspect of a suit for declaration simplicitor. However, I have found above that<br \/>\n            the plaintiff is only seeking the relief of cancellation of a sale deed averred to<br \/>\n            have been executed in contravention of the agreement to sell and as co-owner<br \/>\n            being not entitled to sue for possession.\n<\/p>\n<p id=\"p_23\">        2. Deewan Arora Vs. Tara Devi Sen 163 (2009) DLT 520 this case is concerned<br \/>\n            with injunctions in suits for specific performance. However, in view of the<br \/>\n            discussion above that is not the test to be applied here.\n<\/p>\n<p><span class=\"hidden_text\" id=\"span_8\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                       Page 9 of 10<\/span><\/p>\n<p id=\"p_24\">         3. Vinay Krishna Vs. Keshav Chandra AIR 1993 SC 957. Also laying down<br \/>\n            that the suit for declaration simplicitor when the plaintiff is entitled to further<br \/>\n            relief is not maintainable. However, as aforesaid the plaintiff in the present<br \/>\n            case was not entitled to the subsequent relief of possession on the basis<br \/>\n            whereof the plaint was sought to be got rejected.\n<\/p>\n<p id=\"p_25\">        4. Fateh Raj Laxmi Devi Vs. Smt. Jalveen Rosha 103(2003) DLT 60. This was<br \/>\n            also a case of injunction by a purchaser against the seller and which was held<br \/>\n            to be not maintainable because of the alternative remedy of specific<br \/>\n            performance being available.\n<\/p>\n<p id=\"p_26\">        5. Ram Prakash Kathuria Vs. Ved Prakash Kathuria 2007 V AD(Delhi) 694 in<br \/>\n            which case the prayer in the plaint was found to be in the teeth of the<br \/>\n            prohibition contained in the <a href=\"\/doc\/57071259\/\" id=\"a_10\">Benami Transaction Prohibition Act<\/a>.\n<\/p>\n<p id=\"p_27\">22.     None of the aforesaid judgments persuade me to decline the relief of interim<br \/>\ninjunction to the plaintiff.\n<\/p>\n<p id=\"p_28\">23.     The appeal preferred by the plaintiff thus succeeds. The order of the trial court<br \/>\ndismissing the application under Order 39 Rule 1&amp;2 of the CPC is set aside. The<br \/>\napplication is allowed. The defendants during the pendency of the suit are restrained<br \/>\nfrom alienating, encumbering or parting with possession of the property subject matter of<br \/>\nthe suit.\n<\/p>\n<p id=\"p_29\">        However in the facts as aforesaid, the parties are left to bear their own costs.\n<\/p>\n<p id=\"p_30\">                                                       RAJIV SAHAI ENDLAW<br \/>\n                                                            (JUDGE)<\/p>\n<p>December 15th, 2009<br \/>\nPP<\/p>\n<p><span class=\"hidden_text\" id=\"span_9\">CRP.NO.172\/2008 &amp; FAO423\/2008                                                     Page 10 of 10<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Ashok Manchanda vs Vijay Manchanda &amp; Ors on 15 December, 2009 Author: Rajiv Sahai Endlaw *IN THE HIGH COURT OF DELHI AT NEW DELHI + CRP.No.172\/2008 % Date of decision: 15th December, 2009. VIJAY MANCHANDA &amp; ANR &#8230;&#8230;. Petitioners Through: Mr. Prabhjit Jauhar, Advocate Versus ASHOK MANCHANDA &#8230;&#8230;. Respondent Through: Mr. Anupam [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-247540","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Ashok Manchanda vs Vijay Manchanda &amp; Ors on 15 December, 2009 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ashok-manchanda-vs-vijay-manchanda-ors-on-15-december-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ashok Manchanda vs Vijay Manchanda &amp; 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