Smt. Pushpa Devi v. Shri Yashashwi Aggarwal & Ors

JUDGMENT V.KAMESWAR RAO. J. For orders, see FAO(OS)385/2014. •1, CoO V. KAMESWAR RAO, J O-MARCH 08, 2017/ak INDIRA BANERJEE, J + + IN THE HIGH COURT OF DELHI AT NEW DELHI Judgmentreserved 7niA Judgmentdeliverednn: March OR^ 7m7 FAO(OS)385/2014&CM No. 14139/2014 M/S CARAVANCOMMERCIALCOMPANYLTD versus Appellant Through: Mr. ArvindNigam,Sr. Adv. withMr.K. Datta&Mr.ManishSrivastava,Advs. YASHASHWIAGGARWAL8l ORS Respondents Through: Mr. DayanKrishnan,Sr. Adv. with Mr.JeeveshNagrath,Ms.Monica Manchanda,Mr.ChetanGautam& Ms.MeghnaBal, Advs. for R-1 &2. Mr. ManishVashist,Adv. for R-3 &4 Mr.DeepakSahni,Adv. for R-11. Mr.LalitGuptawithMr.GauravLavaria Advs. for R-12 to 18. FAO(OS)386/2014&CM Nos. 14143/2014&14145/2014 SMT. PUSHPA DEVI Through: Mr.DeepakSahni,Adv. Appellant versus SHRI YASHASHWIAGGARWAL&ORS .... Respondents FAOfOS)385/2014 connectedrnoner Page I of61 V. ' \ Through: Mr. Dayan Krishnan, Sr. Adv. with Mr.JeeveshNagrath,Ms.MonicaManchanda, Mr.ChetanGautam& Ms.MeghnaBal, Advs. forR-1 &2. Mr. Manish Vashist, Adv. for R-3 & 4 Mr. ArvindNigam,Sr. Adv. with Mr.K. Datta, Mr.Manish Srivastava, Advs. for R-9. Mr.LalitGuptawith Mr.GauravLavaria,Advs. for R-11 to 17. CORAM: HON'BLE MS JUSTICE INDIRA BANERJEE HON'BLE MR JUSTICE V. KAMESWAR RAO JUDGMENT V. KAMESWAR RAO. J CM No. 14145/2014in FAO(OS) 386/2014(filed by appellant under Section 151 CPC seeking permission for filing lengthy list of dates and events^ Forthe reasonsstatedin the application,the same is allowedand disposedof. FAO(OS) 385/2014 & FAOfOS) 386/2014

¶1These two appeals impugn order dated August 4, 2014 passed by the learned Single Judge in suit bearing CS (OS) No. 1561/1994whereby the learned Single Judge has decided an applicationunder Order 39 Rule 2A read with Section 151 CPC preferredby the respondents1 and 2 herein, whereinit has been held that the appellants herein have disobeyed the status quo order dated May 07, 1997 subsequentlymodifiedby ordersdated September16, 2005 and November24, 2009 and as such, guilty of committingcontemptof the Court and further directedM/s FAO(OS) 385/2014 & connected matter Page 2 of61 CaravanCommercialCo. Ltd. (the appellantin FAO (OS) no. 385/2014) (Caravan mshort) to deliverthe vacant possessionof entire ground floor as receivedby it from Smt. PushpaDevi (appellantin FAO (OS) No. 386/2014)withineightweeks. Similarly,Smt. PushpaDevi has been directedto obtainphysicalpossessionofthe entire ground floor delivered by her to M/s Caravan (appellant in FAO(OS) 385/2014)within eight weeks. The learned Single Judge has also observed that awardingofpunishmentwill be dependantupon the complianceofthe order. We may state here that, the periodofeight weeks was extendedinitiallyon September 23, 2014 in the appeals. Thereafter,on November12, 2014, in both the appeals,the Court directedparties to maintainstatus quo till the next date of hearing and on January 25, 2016, the Court directedthe continuanceof interimorders till fiirther orders. FACTS(as notedin FAO(OS)385/2014)!-

¶2Thereare threeco-ownersnamely(i) Late Smt. ShantiDevi (respondents12 to 18 m FAO (OS) No. 385/2014 are her legal heirs), respondents 11 to 17 in FAO(OS)No. 386/2014(ii) Late Smt. BimlaDevi (respondents3to 6in FAO(OS) No. 385/2014and FAO(OS)386/2014are her legal heirsand (iii) Smt. PushpaDevi (the appellantin FAO (OS) 386/2014)in respectofsuitpropertyNo. 42-44, Sunder Nagar,New Delhi ('suitproperty'in short). Aperpetualleasein respectofthe suit propertywas executedin theirfavour in the year 1954. Afresh perpetuallease was FAO(OS)385/2014 connectedmatter j A sp executed in the year 1992 on the demise of Smt. Shanti Devi to include her heirs (respondents15 to 18) and Late Sh. MahinderKumar Gupta, S/o Late Smt. Shanti Devi,Late Smt. BimlaDevi and Smt. PushpaDevi. The three co-ownersare said to be the sisters-in-law. It is the case of the appellantCaravanthat between 1954 to 1977 the suit property was entirelytenanted to the Embassy of Poland and from 1977 to 1994, it was entirelytenantedto the DPR of Korea Embassy. It is stated that the suit propertywas neverphysicallyoccupiedby any of the three co-owners or their families till 1994. The built-up constructionconsists of an independent ground floor and an independentfirst floor and terrace. Two independentand separatedrivewaysand entrancesaccessthesetwo built-upportionshavingseparate kitchenand placeofworship. Thereare two independentservantquartersatthe end of the two driveways. There is no internal staircase between the two units. It is the case of the appellant Caravan that on November 15, 1991 all three co-owners enteredinto an Agreementto Sell with Caravanagreeingto conveyand transferthe entire suit property to Caravan for a total consideration of Rs.1.90 crores. On November 16, 1992, anotherRegisteredAgreementto Sell was executedby all the three co-ownersin favourofCaravan. Underthe aforesaidtwo Agreementsto Sell, a total of Rs.66 lakhs was paid to the three co-owners in equal shares. The permissionof the Income Tax Authorityand Urban Land Ceiling Authoritywas obtained. FAO(OS)385/2014 connectedmatter p^ge4of6! A w

¶3It is the case ofthe Caravanthat it was agreedthat the sale transactionwas to be completedon or before October31, 1993. It is representedthat in September, 1993, Caravanbecame aware of a suit being CS(OS) No. 1578/1992filed by one Sh. ArunBatraseekingspecificperformanceofan allegedoral Agreementto Sell in respectofthe suitproperty. It is statedthatCaravanalso learntthatby an ad-interim ex-parteorder dated April 23, 1992, Late Smt. Simla Devi and the legal heirs of Late Smt. ShantiDevi had been restrainedfrom sellingtheirrespectivesharesin the suitproperty. It is statedby Caravanthatthe co-ownerswere duly awareofthe said ad-interim ex-parte order but did not inform the appellant Caravan and in fact receiveda furtherpartof the sale considerationin November1992. It is the standof Caravan that under these circumstances,it had filed a suit being CS (OS) No. 2443/1993 for specific performance, which is pending adjudicationbefore this Court. By an order dated September06, 1999 both the aforesaidsuits have been consolidatedfor the purpose ofrecordingevidence,which is going on before the learnedLocal Commissioner. It is statedthat by detailedjudgmentand orderdated July 02, 2010 the ex-partead-interimorderofinjunctionpassedin Sh. Arun Batra's suit was vacatedby the learnedSingleJudge, whichhad been upheldin appeal and beforethe SupremeCourt. It is the case ofthe Caravan,in an effortto buy peacein litigation pending for more than 20 years, it purchased 2/3''' share in the suit propertyby executingRegisteredAgreementsto Sell and other related documents FAO(OS)385/2014&connectedmatter ^ w with the legal heirs of Late Smt. Shanti Devi on May 25, 2011 and Srat. Pushpa Devi on May 30, 2011. It is stated by Caravan that it paid additional consideration of Rs.20 Crores to the aforesaid parties once again in an effort to buy peace and to put to an end to the protracted litigation. It is the case of the appellant Caravan that pursuant to this Smt. Pushpa Devi who was in sole and exclusive occupation of the entire ground floor of the suit property since 1994 handed over possession of the same to Caravan. It is stated that the entire first floor and terrace are in the peaceful occupationof the legal heirs of Late Smt. Simla Devi since 1994 and continues undisturbed. It is stated by Caravan that this fact of handing over of the possession was noted by the learnedSingleJudge of this Courtin its orderdatedJune 02, 2011 when it was broughtto the noticeof the Courtby counselfor Smt. PushpaDevi.

¶4That Caravan has given reference to certain other litigations concerning the suit property. The same are as under:-

(a) Suit for partition[ CS (OS) No. 690/2006]filed by the legal heirsof Late Smt. Shanti Devi who were never in occupation of the suit property (respondents 12 to 18) seeking partition and possession of the suit property. The aforesaid suit was withdrawn pursuant to the further Agreements to Sell executed by and between Caravan & respondents 12 to 18 on May 30, 2011. It is stated that no other party soughttranspositionas plaintiffin the suitto seekto continuethe saidpartitionsuit.

(b) On July 04, 2011 Sh. Rakesh Aggarwal (Son of Late Smt. Bimla Devi and FAO(OS)385/2014&connectedmatter Page6 of61 > respondent No.3 herein) filed a suit No. 1587/2011 seeking permanent and mandatory injunction against Caravan from entering the suit premises or from changingoralteringthe natureofthe suit propertyinany manner. Caravanwas the sole defendant in the said suit. The suit was predicatedon Section 44 of the Transferof PropertyAct. The ad-interimreliefgrantedon July 04, 2011 was that the ground floor of the suit property in possession of Caravan would not be alienated and that the renovation being carried on would be at Caravan's risk and cost. It is represented by Caravan that repeated applications were filed in the said suit for preventingrenovationon the ground floor; seekingrestraintorder against Caravanfrom using and occupyingthe ground floor; seekingrestraintorderagainst Caravanfrom enteringthe suit premises. Furtherno interimreliefswere grantedin favour of the respondentNo.3 herein who is the plainfiffin the said suit; Caravan has carriedout the renovationand the groundfloor is inits occupation.

(c) CS (OS) 1561/1994titled MasterYash &Anr v. Rakesh Kumar Aggarwal& Ors in which the order, ofwhich contemptis allegedwas passed, is a suit filed by the grand sons of late Smt. BimlaDevi for partitionallegingthat 1/3'"'^share of Late Smt. Bimla Devi was ancestralpropertyand claimingtheir respective1/27''" share each in her 1/3'^'^share. Late Smt. BimlaDevi has filedawrittenstatementopposing the avermentsin the plaintand assertingthe propertyto be hersalone. Itis statedby Caravan,that at the time of filing of the Suit, no applicationfor interimorders was FAO(OS)385/2014d connectedmatter p^ge 7of61 I filed. Caravan was not impleadedas party. On May 6, 1997, an applicationwas filed for interimreliefsapprehendingthat they would be dispossessedfrom the first floor. However, status quo order was granted on May 7, 1997 in respect of the entire suit property. On the demise of Smt. Bimla Devi on January 15, 2004 an applicationwas filed seekingsubstitutionof Smt. BimlaDevi'slegal heirs viz. her sons and daughters in her place. It is stated by Caravan that an amendment applicationbeing IA No. 3710/2005was filed seeking leave to amend the earlier applicationfor substitutionon the groundthat a Will of Late Smt. BimlaDevi had been discoveredunder which certainadditionallegal heirs ofthe deceasednamely respondents1and 2and Sh. AshishAggarwal(sonofrespondentNo.3)were sought to be impleadedsincethey were the only legal heirs who were entitledto her estate. Accordingly,testamentarycapacityofLate Smt. BimlaDevi in respectof1/3'''share in the suit propertywas admitted. It is statedthat the said amendmentapplication was, thereafterwithdrawnon September16, 2005 with liberty but no application was filed subsequently. It is stated, that in the connectedsuit (1587/2011)it has been recorded in the order dated January 7, 2013 that the alleged will, is not in possessionof the legal heirs of Late Smt. BimlaDevi. It is also statedthat lA No. 4108/1997was filed by respondentNo.17 (one ofthe legal heirs oflate Smt. Shanti Devi who was never in possessionofany part ofthe suit property)and the status quo order dated May 7, 1997 was modifiedon September16, 2005 to permit the FAO(OS)385/2014Aconnectedmatter g saidrespondentto dealwithhis undividedsharein the suitproperty. Statusquo was directedto be maintainedin respectofpossessionofpartiesmeaningtherebythat the respondentNo.17, who was admittedlyneverin possessionofthe suit property would not take any steps to dispossessthe heirs of late Smt. Bimla Devi from the first floor and Smt. PushpaDevi from the ground floor of the suit propertywhile dealingwith his undividedshare. It is statedthat similarapplicationbeinglA No. 3084/2006was filed by respondents12 to 16 and 18 whichwas dismissedby order dated August 22, 2007. In 2009, Smt. PushpaDevi filed an applicationbeing lA No. 12948/2008inter-aliaseeking discharge,vacation,modificationof the status quo order dated May 07, 1997 as modified on September 16, 2005 as a whole; seeking dischargeand vacationof the status quo orders dated May 07, 1997 and September 16, 2005 insofaras it relates to her undividedshare. Vide order datedNovember24, 2009the learnedSingleJudgepassedthe followingorder:- " LA. No.l2948/20nR This applicationhas been made under Order39 Rule 4 CPC on behalfof defendantNo.8 with a prayer that the court should modify the status quo order dated 7th May, 1997 which was earlier modified on 16th September, 2005. It is submitted by learned counselfor defendant No.8 that defendant No.8 was entitledto undividedl/3rdshare in the property. This court vide orderdated16th September,2005 hadgiven libertyto defendant No.12, who was similarlyplacedthat defendantNo.12 shall be entitledto exercisehis rightsanddeal with his undividedsharein hisproperty.He statesthatdefendantNo.8is also entitledfor the sameliberty.Learnedcounselfor theplaintiffsstatesthatasfar as defendantNo.8is concerned,her l/3rdsharein thepropertyis not • FAO(OS)385/2014&connectedmatter " n Page 9 of61 disputedandcounselfor theplaintiffshas no objectionin case, the similarorderas in respectofdefendantNo.12 has beenpassedis also passed in favour of defendant No.8. In view of this submission, the applicationfor modifying the status quo order dated 16th September, 2005 is allowedand it is observedthat defendantNo.8shall be entitledto exerciseher rights and deal with her undividedl/3rd share in theproperty. The application stands disposedof C.S. (OS) No. 1.561/IQQ4 Theplaintiffshavefiledthissuitclaimingl/3rdundividedsharein thepropertyNo.42-44, SunderNagar, New Delhi. Theplaintiffs aregrandsonsofSmt. BimlaDevi, defendantNo.3 (deceased)and defendant Nos.1 and 2 are father and uncle of the plaintiffs respectively.Smt. Bimla Devi had enteredinto a sale agreement along with co-ownersofthe propertywith defendantNo.14. The otherdefendantsare defendantsin respectofothertwo co-owners of the property, namely, Smt. PushpaDevi and Smt. ShantiDevi (since deceased). Theyare defendantNos.8 and 9 to 13. There is no disputein respectofundivided1/3rdshare, one ofLRsofSmt. ShantiDevi or undividedshareofSmt. PushpaDevi. The dispute is only in respectofl/3rdundividedshareoflateSmt. BimlaDevi. I, therefore,considerthatall the defendants,who inheritproperty from Smt. Pushpa Devi or Smt. Shanti Devi, being performa defendants,are at libertyto deal with their respectiveundivided share of the property. The court had passed similar order in respectofdefendantNo.12 earlierand defendantNo.8 today. I consider that the other defendants similarlyplaced cannot be treated differently and the earlier order of dismissing the application made by the defendants is, therefore, recalled. However, since thepropertyis not dividedsofar, the defendants shall remain entitledto undividedshare and they may deal only with undivided share. "

¶5It is the standofthe appellantCaravanthatafterfailingto secureany ordersin CS (OS) No. 1587/2011 and afteralapse of about 18 months from the date when FAO(OS)385/2014 & connected matter Page IOof 61 hr Caravan took physical possession of the ground floor of the suit property in December 2012, two applicationswere filed first being lA 22681/2012seeking mterimreliefsdirectingthe appellantCaravanto handoverpossessionofthe ground floor ofthe suit property. Accordingto the appellant,no noticehas been issuedon the said application;and the secondbeinglA No. 22682/2012underOrder39 Rule 2A of CPC stating that Smt. Pushpa Devi and Caravan were in contemptof the orders dated September16, 2005 and November24, 2009, whereinthe impugned order was passed. The facts noted in the appeal filed by Smt. Pushpa Devi FAO(OS)386/2014)]are identicalto the facts noted above, in the appeal filed by Caravanand the same are not repeatedfor the sake ofbrevity. However,this Court would like to note the stand of the appellant Smt. Pushpa Devi in her appeal [FAO(OS) 386/2014)],wherein she has submittedthat the order dated April 30, 1992 in CS(OS) 1578/1992filed by Arun Batrawas not againsther. It is also her case that in the suitbeingCS(OS)No. 1561/1994by the plaintiffs,grandsonsoflate Smt. BimlaDevi, is only with respectto 1/3 share ofLate Smt. BimlaDevi and the otherdefendantswere impleadedmerely as performadefendants.It is her case that the applicationfor discharging/vacating/modifying/statusquo order, being lA No. 12948/2008 was allowed without any restrictions. In other words, she was permittedto exerciseher rights and deal with her 1/3 share in the property. From the legal opinion sought by her, it was confirmedthat she can deal with her share FAO(OS) 385/2014 & connected matter Page II of61 u and part with possession. SUBMISSTONS:-

¶6Mr. Arvind Nigam, learned Senior Counsel appearing for Caravan would submitthat by orderdated November24, 2009 the aforesaidapplication(beinglA No. 12948/2008) and by necessary implication, its prayers were allowed and consequently,Smt. Pushpa Devi was fully entitled to deal with and part with possessionof the ground floor of the suit property. The said order, both in the applicationand inthe suit,did not placeany bar orfetterson the mode or mannerof dealing with the share of Smt. PushpaDevi or the heirs of late Smt. Shanti Devi, sincetheywererecognizedand heldto be proformaparties. He wouldrely upon the judgmentofthis Courtin BanneSingh v. StateofRajasthan,CriminalAppealNo. 1254/2008decidedon January 15, 2014 to contendthat the word 'to deaV implies that the offenderhas certainconcernwith the propertyeither by keepingit in his possession,or partingwiththe ownership,or possessionofthe propertythroughany of the modes of transferof property. Accordingto him, the order dated May 07, 1997 was modified by order dated September 16, 2005 in respect of defendant No.l2-SurinderKumar (respondentNo.17 herein), a party, who was admittedly never in possessionof the suit property. The reliefof modificationof status quo order, sought by the brothers of defendant No.l2-SurinderKumar (respondent No.17 herein) was denied. He lay stress on the fact that Smt. Pushpa Devi (the FAO(OS) 385/2014 & connected matter L appellantin FAO (OS) No. 386/2014)sought full reliefs in her applicationfiled under Order 39 Rule 4 CPC and her said applicationwas allowed as a whole vide orderdatedNovember24, 2009 i.e in termsofall prayerstherein.

¶7Accordingto Mr. Nigam,the contentionofthe respondents1&2(plaintiffsin the suit) that other reliefs were given up or/and abandonedis wholly speculative. The order dated November24, 2009 does not record any abandonmentand/orany giving up of any prayers. He states that the said order was not passed on concession. Accordingto him, it is a settledprincipleof law that order has to be read as it is without any addition or subtraction. He would also contest the submission made on behalf of respondents 1 and 2 that the order dated November 24, 2009 is to be interpretedon the basis of order dated September 16, 2005 as erroneousfor the reasonsthat operativepart of the order dated November24, 2009 places no fetters on Smt. PushpaDevi (defendantNo.8 in the suit and appellantin FAO (OS) No. 386/2014) regarding transfer of possession and order dated September 16, 2005 stood subsumed in the order dated November24, 2009 and cannotbe interpretedto controlthe scope or width ofthe orderdatedNovember24, 2009 in any mannerwhatsoever. He statesthat a readingof orderdated September 16, 2005 must also be made in the context of the fact that defendant No.l2-Surinder Kumar (respondentNo.17 herein) was never in possessionof any part of the suit premises. He was only one of the legal heirs of Late Smt. Shanti Devi and he alone FAO(OS)385/2014Aconnectedmatter Page 13 of61 could not have transferredthe entireshare ofLate Smt. ShantiDevi. His brothers being defendants9to 11 and 13 (respondentNo.l2 to 16 and 18) were declined reliefon August 22, 2007. Accordingto him, d,e direction in the order dated September16, 2005 is in two parts;(a) statusquo was quapossessionofthe parties to the suitproperty;(b) defendantNo.l2-SurinderKumar(respondentNo.17herein) will be entitledto deal with his undividedsharebut no fetterswereputon him.

¶8Mr. Nigam would also state that the order dated November24, 2009 was passed for modificationoforderdated IVIay 7, 1997 and orderdated September16, 2005 and also for recalloforderdatedAugust22, 2007. The orderhas to be read in referenceto the prayersmade in lA No. 12948/2008. Accordingto him, vide order datedNovember24, 2009 the applicationofSmt. PushpaDevi was allowedwithout any conditionor restriction. It is the submissionofMr. ArvindNigamthatthe order dated November24, 2009 clarifiesand crystallizesthe position(i) that plaintiffs claim IS only with regardto 1/3"* shareoftheirgrandmother-lateSmt. BimlaDevi;

(2) there is no disputewith respectof 1/3'" share each of Shanti Devi Group and Smt. Pushpa Devi; (3) defendantswho inheritedfrom late Smt. Shanti Devi and Smt. Pushpa Devi are proforma defendantsand are at liberty to deal with their respectiveundividedshare in the suit property,which categoricallymeans that the lis remains only inter-se legal heirs of late Smt. Bimla Devi alone; (4) only conditionis that since the suit propertywas not divided,defendantsshall be entitled FaO(OS)385/2014&connectedmatter Page 14of6! to undividedsliare only. Logic for this last caveat was that partitionshould be required to be made by metes and bounds and parties cannot claim preferential rightsmany specifiedarea. Caravanwas neverapartydefendantin CS (OS) No. 1561/1994 when the orders dated May 7, 1997 and September 16, 2005 were passed. Caravanwas only impleadedas apartydefendantby orderdatedMay 13, 2008. He would rely upon provisionsof Section21(1)ofLimitationAct, 1963 to * contendthatthe Caravanhavmgbeenaddedin the suiton May 13, 2008 deemedto have been instituted on that date only and not on any earlier date. Hence, applicabilityofthe earlierordersdatedMay 07, 1997 or September16, 2005 cannot be read intothe orderdatedNovember24, 2009 for purposesofcontemptas alleged by respondents 1 and 2.

¶9He also states, there is an unexplaineddelay and laches of one year and six months m filmg of the application,which would not be maintainableunder the ^ Contemptof Courts Act. The families of the two sons of late Smt. Simla Devi includingthe respondents1and 2(plaintiffsin the suit)neveroccupiedany part of the ground floor of suit property. Their possessionof the first floor and terrace remainedundisturbedsince 1994. The said floor is aseparateand independentunit having Its own entry/exitpoint, driveway, servant quarters etc. Even though Caravanis the rightfulownerof2/3''*ofthe suitpropertyit is at bestoccupyingonly ofthe same. He wouldstatethatSection44 ofthe TransferofPropertyAct has FAO(OS)385/2014& connectedmatter "Page 15 of61 if no application. The suit property was never nor is the dwelling house of an undividedfamily. One branch ofthe family i.e late Smt. Shanti Devi or her legal heirs never residedin the property. In any event this plea has been raisedonly in CS(OS) 1587/2011and is not relevantin the contextoforderunderchallengein the presentappeal and furtherCaravanhas been restrainedfrom transferringthe ground floor of the suit property in CS(OS) 1587/2011. Caravan is ready and willingto undertaketo be bound by the decision in the said suit and upon division ofthe property(ifpermissible)acceptany part ofthe suitpropertyas its share. He would also urge that where more than one interpretationofan order is possible,the party acting bona fide on its own interpretationof the order cannot be held guilty of willfuldisobedience.In this regard,he wouldreferto thejudgmentsofthe Supreme Courtreportedas AII^ 1961 SC221 StateofBihar v. SonabatiKumariand (2008) 14see 392 SushilaRajeHolkarv. AnilKak. That apart, he also relied upon the judgmentofthe SupremeCourt reportedas (2008) 15 SCC 529 TamilMercantile Bank v. TamilnadBank to contend that willful disobedienceneeds to be proved beyond reasonable doubt.

¶10It is the submissionof Mr. Nigam, at the highest and withoutprejudice,the order dated November 24, 2009 is capable of two inteipretations. As such. Caravan'sactionscannotbe saidto be deliberateand willfulin any manner. It is not such acase where the learnedSingleJudge could have held the appellantguiltyof FAO(OS)385/2014 & connected matter contempt. In this regard, he refers to the judgmentreportedas (2009) 5SCC 417 AllIndiaAnnaDravidaMunnetrav. L.K. Tripathi.

¶11Mr. Nigam would vehementlyargue that the plaintiffshave institutedthe suit only to frustrate the suit of specific performance filed by the Caravan and the applicationunderOrder39 Rule 2AofCPC was filed by the plaintiffswithulterior motives. Accordingto him, it is an admittedfact that legalheirsoflate Smt. Bimla Devi i.e her sons and grandsonsand their families are all residingtogetherin the first floor ofthe suit propertyeven as on date. Also the plaintiffsas minordid not institutethe suit throughtheir father or motheror legal guardianbut institutedthe suit through their aunt. He states that the dispute inter-se as alleged by plaintiff among Smt. Bimla Devi Group is only a camaflougeto overcome the admitted documents i.e Agreementsto Sell dated November 15, 1991 and November 16, 1992 whereby,theirfatheri.e RakeshKumarstoodas witnessand signedthe same. It was the endevourofMr. Nigamto canvassthatthe factumofthe transactionsand handingover of possessionwas broughtto knowledgeof learned SingleJudge on June 02, 2011 by Mr. J.P. Gupta,Advocatecounselfor Smt. PushpaDevi, who was also counsel for the plaintiff(respondents1and 2herein). He states, the ulterior motive is apparentfrom the fact despitelate Smt. Bimla Devi categoricallystating mher writtenstatementthat the suitpropertyis aselfacquiredpropertyofhers but even respondents1and 2hereinin applicationNo. 3710/2015as well as theirfather FAO(OS)385/2014& connectedmatter Page 17 of61 Rakesh Aggarwal,both have set up acase that the suit propertywas selfacquired property of late Smt. Bimla Devi. It is only to delay the suit for specific performance filed by Caravan, they have been taking contradictorystands in differentproceedings. He also states,that theirstandthat late Smt. BimlaDevi has left a RegisteredWill dated July 30, 2003 is without basis, neither the plaintiff master Yash nor father Rakesh Aggarwal have produced the said Will despite directionsof the Court. Mr. Nigam would also urge, it was incumbentupon the learned Single Judge to decide the applicationbeing lA No. 15875/2013 under Order VII Rule 11 CPC relatingto issue ofmaintainabilityofsuit first as the same goes to the root of the matter. The relianceupon the order dated August 1, 2013 passedin suit No. 1578/1992by the counselfor respondents3and 4to buttresshis pointthat it was agreedby partiesthat all pendingapplicationsshall be takenup for hearingat the time offinal argumentsis completelymisleading. The saidorderdoes not relMe to suit in questioni.e CS(OS) 1561/1994. He also statessufficienttime was not givento put forththe arguments.

¶12On the aspectof Section44 of the TransferofPropertyAct is concerned,he statesthe said submissionis not germaneto the presentappeal. The familiesofthe three co-ownersdo not constitutean undividedfamilyin law. In any event,the suit propertywas neverthe 'dwellinghouse'ofall the threeco-ownersand theirfamilies have never ever residedtogetherin the suit property. Even the familiesof two of FAO(OS)385/2014& connectedmatter Page 18 of61 A the threeco-ownersnamelylate Smt. BimlaDeviand Smt. PushpaDevi livedin the suit property,there was no common kitchen or prayerroom. In the last, it is his submissionthat the present appeals need to be allowed and the impugned order datedAugust4, 2014 needsto be set aside.

¶13Mr. DeepakSahni, learnedcounselappearingfor appellantSmt. PushpaDevi in FAO(OS)386/2014,wouldsubmitthatthe appellanthas not violatedany orderof statusquo passedby the learnedSingleJudgevide orderdatedNovember24, 2009. He states, that the appellant was given complete liberty to deal with her 1/3'^'' undividedshare mthe suit property.Accordingto him, an applicationfiled by the appellantin the suit, being LA. No. 12948/2008under Order 39 Rule 4read with Sections 94 &151 CPC was allowed by the learned Single Judge, as a whole, withoutattachingany fetterson her 1/3''''sharein the suitproperty. He wouldstate, thatmthe replyfiledby the plaintiffs(respondents1and 2) to I.A. No. 12948/2008, they have admittedthat order dated May 7, 1997 has been merged in order dated September16, 2005. In the same manner, after passingof order dated November 24, 2009, the previousorders have merged in the said order dated November24, 2009. He states, the learned Single Judge vide order dated November24, 2009, clarifiesthe tact that the dispute is only with regard 1/3'" share of late Smt. Bimla Devi. Accordingto him, Smt. Shanti Devi Group and the appellantherein, were given libertyto deal withtheirrespectiveundividedsharesin the suitproperty. The FAO(OS)385/2014& connectedmatter Page 19 of61 Court duly consideredthe fact that the appellantis aproformadefendant,against whom no reliefwas actuallyprayed.The factum ofthe said liberty,so grantedby the Court,was also duly recordedin the Agreementto Sell datedMay 25, 2011.He would state,smce mception,the appellanthad been in the possessionofthe ground floor ofthe suit propertyand BimlaDevi Group had been in the possessionofthe first floorand terrace/secondfloor. Thepossessionofthe plaintiffs(respondents1 and 2) is not disturbedsince 1994 till today, as the entirepropertyas awhole has separatedrive way / gate / ingress/ egress / kitchen/ worship place etc. for the groundflooroccupantswhereby,it is ensuredthatno disturbanceis causedand / or no privacyis infringedby /ofthe occupantsoffirst floor, i.e., BimlaDevi Group. He would state, the appellant, who is presently 88 years old, only settled her disputes with Caravan to put an end to protractedlitigations,which were / are pendingsince 1992,to havepeacein restofherlife.She did not warnthisprotracted litigationto be passed on to her childrenand grand-children. It is his submission thatthe AppellanthereinexecutedsaledocumentswithCaravanin the year2011,in continuationofthe previousadmittedAgreementsto Sell datedNovember15, 1991 and November 16, 1992, by getting enhanced consideration.Caravan merely steppedintothe shoesofSmt. PushpaDevipursuantto an out ofcourtcompromise, which in fact was nothingbut honoringthe previousAgreementsdated November 15, 1992 and November 16, 1992 emered into by all co-owners on one hand l'.'iO(OS)385/2014& connectedmatter Page 20 of61 % a (includingLate Smt. BimlaDevi)and Caravanon the otherhand. In the end, it is his submissionthat no prejudicehas been caused to Bimla Devi Group with the said transferofthe groundfloorand no thirdpartyto the Us was inductedin the property.

¶14Mr. Dayan Krishnan,learnedSeniorCounselappearingfor respondents1and 2 would justifythe impugned order, inasmuch as the appellantsin these appeals have violatedthe injunctionorderwhereby,the partieswere restrainedfrom parting with possessionofground floor ofpropertybearingNo. 42-44, SunderNagar, New Delhi inasmuchas the possessionofthe groundfloorofthe suitpropertywas parted with by Smt. Pushpa Devi in favour of the appellant. It is his submissionthat the propertyis an undividedresidential/dwellinghouse being used for the residenceof only the family members/relativesof the respondents1 and 2 until the Caravan enteredinto illegalpossessionofthe groundfloorofthe undivideddwellingunits in violationof the injunctionorder and also in violationof Section44 ofthe Transfer > ofPropertyAct. He statesthat the partitionis yet to take place. Until suchtime the propertyis not dividedand partitionedby metesand bounds,the familymembersas co-ownershave arighton each and everysquareinchofentirepropertybearingNo. 42-44, SunderNagar, New Delhi. He would refer to the applicationbeing lA No. 4108/1997and orderdated May 07, 1997passedby the Court. He wouldalso refer to the applicationfiled by the defendantNo.12 in the suit i.e the respondentNo.17 in FAO (OS) No. 385/2014being lA No. 4696/2005seekingmodificationoforder FAO(OS)385/2014&connectedmatter 2/ of61 % / dated May 07, 1997. Accordingto him, vide order dated September16, 2005, the injunction order dated May 07, 1997 was modified to a limited extent on the applicationof the respondentNo. 17 herein. Accordingto him, the respondent No.17 was not in physical possessionof the suit propertyon the date of the said order,despitethis Courtwas clearand categoricalin its directionthatthe statusquo will be maintainedin respectof possessionofthe partiesto property. There is no doubt or ambiguityor any confusionon the orderpassed by this Court as the order is absolutelyclearand speaksfor itself He statesthatthe orderdated September16, 2005 has two parts. The part 1 includes "thatthe status quo will be maintainedin respectofpossessionof the parties to propertybearingNo.42-44, SunderNagar, New Delhi". Part 2 includes "however defendant No.12 shall be entitled to exercisehis rightsanddeal with his undividedshare in the suitproperty". It is the submissionof Mr. Krishnanthat the expression 'deal' has to be read in the context of undividedshare in the property,which can be sold but withoutpartingwith the possessionof the property. Accordingto him, this is consistentwith Section44 of the Transferof PropertyAct. He would referto Section44 ofthe said Act. He also states, that if the submissionmade by Mr. Nigam that the expression 'deal' also includesthe powerand rightto partwith possessionthen the earlierpartofthe order becomes meaninglessand amounts to renderingotiose/negatingthe said direction directingthe parties to maintain status quo of possession. Accordingto him, the FAO(OS)385/2014&connectedmatter 22 of61 % onlycorrectand fairinterpretationofthe orderdatedSeptember16, 2005 is that the Courtpermittedthe applicantto deal with his undividedsharei.e to sell the same. However,not onlythe applicantbut all the partieswere directedto maintainstatus quo ofthe possession. He would rely upon the judgmemofthis Courtin the case reportedas ^ the expression'ho.e.er'has to be givenameaning. He statesthatthepartieswere .0 maintainstatusquo qua possessionofthe suit property,which is clearfrom the languageofthe order. He also states,no appealwas filed againstthe order. Smt. PushpaDevi wasapartyto the proceedingsin the suitat the timeofpassingofthe orderand was bound by the same. He also states,tite fact that Smt. PushpaDevi had prayed for vacationofinterimordersdated May 07, 1997 and September16, 2005.asawhole,clearlyshowsthat Smt, PushpaDevi was awarethattherewas an interim order operatingagainstthe parties in respect of the suit property,which includedthe injunctionrestrainingthe partiesfrom partingwith possession. Thus, clearlythe partieswere awareand consciousthat the first interimorderdatedMay 07, 1997 was completeand absolute,inasmuchas the partieshad to maintainboth statusquooftitleas well as possessionoftheproperty. VideorderdatedSeptember 16, 2005, the earlierorderdated May 07, ,997 was modifiedto tire limitedextent that one of the parties had been permitted to deal with his undivided share. However, ail the parties have been restrained, injuncted from parting with FAOfOSj385/2014&connectedmatter Page 23of6! if possessionofthe property. Hence,therewas no doubtor ambiguityin the orderor in the mind ofthe partiesthat defendantNo.12 could deal with his undividedshare in the propertyand injunctionorderwas existing,whichrestrained/preventedall the parties including defendant No.12 from parting with the possessionof the suit property. It is for thisreason,appellantSmt. PushpaDevi madeacategoricalprayer in IA No. 12948/2008for discharge,vacation,modificationofthe status quo order • dated May 07, 1997,whichhas been latermodifiedvide orderdated September16, 2005 as a whole.

¶15Accordingto Mr. Krishnan,therewas no reasonfor the appellantSmt. Pushpa Devi to includethe word 'as a whole' ifthere was no injunctionorder operating againstpartingwith possession. Thus, all the partieswere awarethat there was an injunctionorder operatingagainst all the partiesto the suit restrainingthem from partingwith possessionofthe propertyand also title exceptdefendantNo.12, who / was permittedto sell his undividedsharebut withoutpartingwith possession. He has drawn our attention to the order dated November 24, 2009, both in lA No.12948/2008and in CS(OS) No. 1561/1994. It is his submissionthat from the orderdatedNovember24, 2009, it is clearthat the appellantSmt. PushpaDevi had asked for larger reliefs in the application. But at the time of the argumentshad prayed for, beinggrantedthe same libertyas has been grantedto defendantNo.12 (respondentNo.17 herein) in the order dated September 16, 2005, to which the FAO(OS)385/2014&connectedmatter counselfor the respondents1and 2 had conveyedhis no objectionto the appellant Smt. PushpaDevi beinggrantedthe same liberty. This v^as done primarilybecause there was no dispute qua the undivided share. Accordingly,the appellant Smt. Pushpa Devi was allowed to deal with her 1/3''' undividedshare in the property. There was no adjudicationon the merits. The orderwas passedon the basis ofthe concessionstatementmade by the learnedcounselfor the parties. In the suit also, the learned Single Judge has made it clear that the order being passed for the appellantSmt. Pushpa Devi was the same order, as was passed in favour of the defendant No.12. There is no doubt/ambiguityin the order. Mr. Krishnan further states that Caravan was a party to the suit at the time of the passing of the order dated November24, 2009 and was duly representedat the hearingon the said date. Therefore, the appellant cannot feign ignorance of the said order dated November 24, 2009 or the proceedingsthat transpiredon that date. Accordingto him, there is no disputethatthe appellantSmt. PushpaDevi had partedwiththe possessionofthe ground floor of the propertybearingNo. 42-44, SunderNagar, New Delhi despite the existenceofthe injunctionorderpassedby this Courtrestrainingthe partiesfrom partingwith possession,whichmakesit apparentthatthe appellantand Smt. Pushpa Devi committedcontemptof the Courtby violatingthe injunctionorder.

¶16Mr. Krishnan would state there is another aspect of the matter, inasmuchas the appellant Smt. Pushpa Devi was the owner of only 1/3'"'' undivided share in the FAO(OS)385/2014&connectedmatter Page 25 of61 propertyand at best, she was entitledto partwith possessionof 1/3"*of her share in the property under order dated November 24, 2009, whereas she has transferred possessionofthe entiregroundfloorofthe propertytothe appellantCaravan,which is in excess of her 1/3"^ share. Therefore,the appellant Smt. Pushpa Devi and Caravan had clearly violated the injunction order. If there was any doubt or ambiguityin the mindsofthe parties,it was incumbentupon them to approachthis Court, seeking clarification, rather than to act in a manner, which suited their commercialconveniencewhich was in violationof the injunctionorder passed by this Court. He would rely upon the judgment reported as (2009) 2 SCC 166 K.A. Ansari and Anr. v. Indian Airlines Ltd. in support of his contention that if there was any doubt with regardto the interpretationof an orderthen the appellantswere within their rights to approachthe Court seekingclarification. He states,the very fact that lengthyargumentshad been advancedby the appellantsin their appeal on the meritswould, itselfshow there was no confiisionbut now a case is soughtto be built up to avoidthe consequencesofviolationofthe injunctionorderon the ground that there was some confusion. He would rely upon the judgmentreportedas AIR 1961 SC 221 State of Bihar v. SonabatiKumari. Alternatively,he would argue, even if there was some confusion,that is a factorto be consideredonly at the time ofsentence. Therefore,the appellantswere rightlydirectedto deliverthe possession of the ground floor of the propertyin question. This cannot be avoided,denied or FAO(OS)385/2014&connectedmatter p^gg26 of61 1^ escaped by the appellants herein. He would also rely upon the judgments in the case reported as AIR 2004 SC 4419 State ofBihar and Ors v. Rajendra Singh and Anr., AIR 2006 SC 909 Union ofIndia and Ors v. Subedar Devassy. In the last, it is his submissionthatthe respondents1and 2, had agreedthat 1/3'"'^undividedsharecanbe sold without parting with possession because insofar as title of the said defendants in the suit was concerned there was no dispute. However, for possession the propertyis yet to be partitioned. Therefore,the injunctionorderrestrainingparting with possession was never modified/vacated. He would also contend that the presentappealsbeingintra-courtappeals,on a findingofa fact, unlessthe Appellate Bench reaches a conclusionthat a findingof the learned SingleJudge is perverse,it shouldnot disturbthe same merelybecauseanotherview is possible. In this regard, he would rely upon the judgment reportedas (2016) 1 Scale 320 The Management of Narendra & Company Private Limited v. The Workmen of Narendra & Company. He seeksthe dismissalof the appeals.He states,his submissions,be read as submissions to the appeal filed by Smt. Pushpa Devi as well.

¶17Mr. Manish Vashisht learned counsel appearing for the respondents3 and 4 in the appealswould submitthat the plea of Mr. Nigam that the learnedSingleJudge, instead of deciding an application under Order 7 Rule 11 CPC, decided the applicationunder Order 39 Rule 2A CPC, which is inappropriateis concerned,the applicationunderOrder39 Rule 2A was filed by the respondents1and 2 inthe year FAO(OS)385/2014 & connected matter 2012 and the applicationunderOrder7Rule 11 CPC by the appellantCaravan filed as an afterthoughtonly in the month of December,2013. He states,that the appellantCaravanwas impleadedas adefendantin the suit vide order dated May 13, 2008 and it is highlysurprisingthat no such applicationfor dismissalofthe suit was filed for aperiodoffive and ahalfyears. The issueofnon maintainabilityhas no bearing on the disobedienceof the orders passed by the Court even though, ultimatelyit is found thatsuch a suitwas not maintainable.

¶18With regardto the submissionofMr. Nigam that the learnedSingleJudge did not decide the applicationbearing CCP No. 70/1994 against the appellant Smt. PushpaDevi and respondents3to 4, which was filed by the appellantin CS (OS) No. 2443/1993and thus committedan errorby takingup an application,which was filed under Order 39 Rule 2A CPC is concerned,the application,which was filed was never listed before the learned Single Judge when the arguments on the applicationunder Order 39 Rule 2A were heard and the matter was reserved for orders. He states,to the contraiyvide order dated August 01, 2013 passed in CS

(OS) No. 2443/1993 the counsel for the appellant Caravan stated that all the remainingpending applicationsmay be taken up for hearing at the time of final arguments-ofthat suit filed by the appellantCaravan. Therefore,on the face of it, this argumenton the partofthe appellantis fallacious. FAO(OS)385/2014& connectedmatter Page 28 of61 was

¶19Insofaras the plea of Mr. Nigam that the appellantCaravan was under the impression that there was no embargo on Smt. Pushpa Devi to transfer the possessionofthe propertyas the orderdatedNovember24, 2009 did not specifyor put any restrictionson the transferof possessionis concerned,Mr. Vashishthad submittedthe following;-

(i) The Courtwas adjudicatingupon an undividedresidentialpropertyvizaviz its co-owners and a stranger.

(n) The Court from time to time in order to protect the intrinsiccharacterand natureofthe undividedpropertypassedvariousfollowingorders: a. OrderdatedOctober27, 1993 passedin CS (OS) No. 2443/1993; b. OrderdatedAugust25, 1995 confirmingthe aboveorder. c. OrderdatedMay 07, 1997 in the presentsuit; d. OrderdatedSeptember16, 2005; e. OrderdatedOctober12, 2006passedin CS (OS) No. 690/2006; f OrderdatedAugust22, 2007; g. OrderdatedNovember24, 2009.

(iii) All the parties to the suit were fully aware that injunctionorders restricted them from transferringthe possessionof the property to any person outside the family. There was no occasionfor any of the parties to have misunderstoodthe import of the injunctionorders or to have arrived at a differentunderstandingor FAO(OS)385/2014&connectedmatter "Page 29 of61 reasoningrelatingto the aforesaidorderswhichwerepassed.

(iv) That a reading of the documents dated May 25, 2011 and May 30, 2011 establishesthe express knowledge of the appellantCaravan about CS (OS) No. 690/2006. In this suit an orderdatedOctober12, 2006 was passedto the following effect: "The counselfor defendantstates that he has no objection if the said applicathnis allowedsubjectto the statusquo order with regardto the title. \ possession and state of construction regarding the suit property being equallyapplicableto theplaintiff In the circumstances,partiesare directed to maintainstatus quo with resardto the title, possessionand the state of constructionregardingthe suitpremisesaforesaidtill thefinal disposalof the suit. To this extent,ordersdatedApril22, 2006aremodified."

(v) The orders which were passed in CS (OS) No. 690/2006 and CS (OS) No. 2443/1993 as stated supra were also passed in the present suit from which the Appeal has arisen.

(vi) The order dated September16, 2005 was passed in the presentsuit whereby ^ the Court,whilepermittingthe defendantNo.12 to exercisehis rightsand deal with his undivided share without parting with the possession of any portion of the propertyalso directedall the partiesto maintainstatusquo as qua possessionofthe property. The relevantportionofthe orderis reproduced: view ofthe statementmade by the counselfor the plaintiffs,the order dated May 07, 1997 is modifiedto the extent that the status quo will hp maintainedin respect ofpossessionofthe parties to propertyNo. 42-44 Sunder Nagar, NewDelhi." ' FAOfOS)385/2014 & connected mailer "Page 30 of61

(vii) The other appellantSmt. PushpaDevi did not impugnor challengethis order before the Appellate Court. However, after 3 years Pushpa Devi filed lA No. 12948/2008 under Order 39 Rule 4 CPC for vacation of the order dated May 07, 1997 and September 16, 2005.

(viii) The presentappellanthad alreadybecomethe party when Smt. PushpaDevi filed the lA No. 12948/2008. The said applicationwas never opposed by the appellantherein,even though, admittedlyas on that day, the appellantand Pushpa Devi were adversaries and fighting tooth and nail.

(ix) Duringthe argumentsSmt. PushpaDevi restrictedher prayerraisingthe plea of parity as recordedin the order dated September16, 2005. The counsel for the respondents 1 and 2 also conceded when the plea of parity was pressed and accordinglyorder dated November 24, 2009 was passed permittingSmt. Pushpa Devi to exerciseher rights in the undividedpropertyas were accordedto the other defendantNo.12. Thefollowingorderwas passedonNovember24, 2009: "It is submittedby learnedcounselfor defendantNo.8 thatdefendantNo.8was entitledto undividedl/3rd share in the property. This court vide order dated 16thSeptember,2005 hadgiven libertyto defendantNo.12, who was similarly placedthat defendantNo.12 shall be entitledto exercisehis rights and deal with his undividedshare in hisproperty.Restates that defendantNo.8 is also entitledfor the same liberty. Learned counselfor the plaintiffsstates that as far as defendantNo.8 is concerned,her l/3rdshare in thepropertyis not disputedand counselfor the plaintiffshas no objectionin case, the similarorderas in respectofdefendant No.12 has been passed is also passedin favour of defendantNo.8. In view of FAO(OS)385/2014&connectedmatter 31 of61 41-this submission,the applicationfor modifyingthe statusquo orderdated16th September, 2005 is allowedand it is observedthat defendantNo.8 shall be entitledto exerciseher rights and deal with her undividedl/3rd share in the property. "

(x) The mandate of the order dated November 24, 2009 so as to maintain the sanctityof possessionis furtherclear from the readingof the latterportionof the order, wherein while concluding,the learned Single Judge further observed that ''since the property is not dividedso far, the defendantshall remain entitledto undividedshareandtheymay dealonlywith undividedshare."

(xi) No applicationseekingany clarificationor allegingany misunderstanding of the order dated November24, 2009 was filed by the appellantor even by Smt. Pushpa Devi.

(xii) The aforesaidchainofsequenceoffacts categoricallyand withoutany iota of doubt establishthat at no pointoftime since 1993 till date, the Courtshad allowed any co-ownerof the propertyto transferthe possessionor to change the nature of the propertyby inductingany personoutsidethe familyorastrangerin it.

(xiii)TheorderdatedNovember24, 2009 was furtherclearto the effectthat the co-sharerscan deal with theirundividedshare only as the propertywas not partitioned by metesand boundsbut cannottransferthe possession.

(xiv)Therefore,there could not have been any scope for any party to the suit to allege that the orders dated September 16, 2005 or November 24, 2009 were FAO(OS)385/2014 connectedmatter Page 32 of61 incapableofcommunicatingthe clearmandateand restrictionimposedby the Court whilekeepingin viewthe natureofthe propertywhichwas an undividedone.

¶20On the pleaofMr. ArvindNigamthatthe appellantCaravanwas notapartyin the suittill May 13, 2008, it was not awareofthe orderswhichwere passedand the orders were not applicableto it, it is the contentionofMr. Vashishtthat the order dated November 24, 2009 was passed in the presence of the counsel for the appellant in which clearly the order dated September 16, 2005 was discussed. Accordingto him, till November24, 2009 the appellantwas an adversaryto the otherco-sharersand the remainingpartiesto the suit and since 1993 the endeavour ofthe appellantwas to securethe statusquo orderin respectofthe suitpropertyso that the possessionand title could not be transferredor the nature ofthe property couldnot be changedtill the decisionofits suitofspecificperformance.Therefore, when the orderdatedNovember24, 2009 was passed,the appellantwas not affected by the same and had no reasonsofany grouseagainstthe observationswhichwere passed by the learned Single Judge directing the parties not to deal with the possessionor transferofpossession. The prayerallowedwas only with respectto a permissionto deal with the undividedshare. No appeal or any modificationofthe orderdatedNovember24, 2009 was soughtby the appellantor Smt.PushpaDevi.

¶21Even on the plea ofMr. Nigam that the orderdated November24, 2009 was FAO(OS)385/2014&connectedmatter Page 33 of61 very ambiguousand was confusingone, Mr, Vashishtwould submitthat the same was clearand unambiguous. Nothingprecludedthe appellantCaravanfrom filing an appropriateapplicationbefore the Court seeking clarificationon the presumed ambiguity. He states, aparty who pleads ambiguityhas to act above board by approachingthe Court which has passed such an order and to seek necessary clarification. The plea that the applicationunderOrder39 Rule 2A CPC was filed as an afterthought,when the respondents3and 4failedto get any injunctionorders in their suit bearing CS (OS) No. 1587/2011 is concerned,Mr, Vashisht would submitthat the CS(OS) No. 1587/2011 is an independentremedy which has been filed in terms of Section 44 of Transferof PropertyAct, 1882 and the cause of action urged in the said suit is also supportedand approvedby numerousjudicial pronouncementincludingthejudgmentofthe SupremeCourtin the casereportedas

(1990)2see117Domb CawasjiWardenand thejudgmentofthe CalcuttaHigh Court,OrissaHigh Court and AllahabadHigh Court, He states,that an injunction order dated July 04, 2011 was also passed in favour of the respondents3and 4, Nevertheless,the saidsuitand the impugnedorderhas no connectionat all and both are independent of each other.

¶22Even on the plea of appHcationunder Order 39 Rule 2A CPC is barred by limitation,Mr. Vashishtwouldsubmitthatthereis no limitationprescribedto file an applicationunderOrder39 Rule 2A and furtherthe disobediencebeingarecurring FAOfOS)385/2014&connectedmatter Page 34 of61 cause, no party can raise immunity from punishment on the ground of delay. Accordingto Mr. Manish Vashisht,even the plea on behalfof the appellantthat appellanthas paid Rs.20 Croresto the two co-sharersand that the appellanthas an inherentrightto occupythe groundfloorofthe propertyis misconceived,inasmuch as the law does not permitthe purchaserofan undividedshare to intrudeinsidea dwellmg house without seeking reliefof partition. The appellantought to have impleadedhimselfas aplaintiffin CS (OS) No. 690/2006 after purchasingthe undividedrightsoftwo co-sharersand prayedforadecreeofpartitionby metesand bounds. No partytoalis can be permittedto evenargueequitywhensuchapartyis guilty of disobeyingthe orders of the Court. On the plea of Mr. Nigam that the contestingrespondentson the first floorare in possessionofpeaceful,separateand mexcessoftheirshareis amisconceivedargument,inasmuchas whenasharein an undividedhouse is purchased,no portionofthe same can be said to be adividedor aseparateone. The differentexit and entry is created by the appellantafter the orderdated July 04, 2011 passed in CS{OS)No. 1587/2011. It was held that any renovationwork on the ground floor would be at the risk and cost of appellant Caravan. Mr. Vashisht would submit that the respondentsare not sitting in any excessive share, because till such time property is partitioned, they have an mdisputablerightto enjoy every inch ofthe property. Mr. Vashishtwouldsubmit thatthe relianceplacedon the reportofthe LocalCommissionerby the appellantto FAO(OS)385/2014&connectedmatter Page 35 of61 suggestthe occupationofdifferentfloors by the co-ownersis misplacedin view of the reportitselfas areadingofthe LocalCommissioner'sreportwouldshowthat it recordsthe name ofthe nine persons,who were in physicaloccupationofthe entire property. The argumenton behalfofthe appellantthatthe interpretationas sought to be given by the appellantis tjie only right argument is also misconceivedand contemptuous.He states,thatundersimilarcircumstances,the learnedSingleJudge has takenaconsistemview. He would rely upon thejudgmentreportedas (201S) 147DRJ 563 titled Vera Ruth Rego Consalvisv. ManinderPa! Singh, against whichappealwas filed beforethe DivisionBench,whichwas alsodismissedby the Division Bench as reported in 20IS (DLTSOFT) 158 (DB) Vinay Chhabm& Othersv. VeraRuth Rego Gonsalvis.

¶23Mr. ManishVashishtwouldalsosubmitthatthe appellanthas notcontroverted in the rejoinder,the submissionsmade on behalfofrespondents3and 4, inasmuch as the appellamwas purchasingundividedsharesin the residentialhouse, whichi apparemfrom the readingof its own documents. The SupremeCourt in the reportedas (2009) 7SCC444Ramdasv. SitaBai&Othersand in (2009)10SCC 654 Gajara Vishnu v. PrakashNansahebhas held thatan undividedshareofaco-sharermay be asubjectmatterofsale but possessioncannotbe handedoverto the vendeeunlessthe propertyis partitionedby metesand bounds. In the end, it is his submissionthatthe appellantcannotbe permittedto perpetuatethe illegality,which FAO(OS)385/2014&connectedmatter IS case Page 36 of61 accordingto him is apparentfrom the submissionsmade by him as reflectedabove. He would rely upon the judgment in the case of All BengalExcise Licensee's Associationv. RaghabendraSingh&Others(2007)11 SCC374and (1999)7SCC 569KapildeoPrasadSah v. StateofBihar. He praysthat the appealfiled is liable to be dismissed.

¶24Insofar as the appeal filed by Smt. Pushpa Devi is concerned, it is the submissionof Mr. Vashisht that the same need to be dismissed in view of the admission of the appellaM Smt. Pushpa Devi at page 40 (paragraph27) of the appeal,whereinshe has pleadedas under:- 'thatlegalopinionwassoughtbytheappellantbeforedealingwithhershare in the saidpropertyand the appellantwas clearlyadvisedby her counsels thatthereis absolutelyno barin the appellantdealingwith hershareand/or TJgrouLfloo"^'' transferringofpossessionof

¶25He would also state that the appeal is misconceivedin view of the following admitted facts i. The litigationensued qua the subject matter i.e propertyNo.42-44, Sunder Nagar,NewDelhirelatingto the partiesto the presentappealin the year 1993. n. That subjectpropertyadmittedlyis an undividedresidentialhouse. No actual physicalpartitionby metesand boundshas takenplacetill date. ni. That various interim orders to protect transferof title and possession were FAO(OS)385/2014& connecledmatter Page 37 of61 •0 1} passed by this Court in its ordinary civil jurisdictionin respect of tlie subject property, iv. Tliat the appellantSmt. Pushpa Devi was impleaded as adefendant in the followingsuits/proceedings:- m a. CS(OS) No. 2443/1993 titled "Carvan Commercial Company Limited v, PushpaDevi&Ors". (as defendantNo.l). b. CS(OS) No.1561/1994"Master Yashaswi Aggarwal &Another v. Rakesh Aggarwal&Others' PushpaDevi was impleadedas defendantNo.8. C. CS(OS)No. 690/2006titled"MahenderKumarGupta&Ors v. PushpaDevi& Ors.Asuitfor partitionin whichPushpaDeviwas DefendantNo.1. d. Suit bearingNo.l578/I992titled "Arun Batra v. Bimla Devi &Ors. Pushpa Devi" was defendantNo.7 in the said suit. (Forthe purposesofdecidingthe presentappealthis suithas no relevance).

¶26Accordingto him, the submissionsmade by learnedcounselfor PushpaDevi are misconceivedand untenablein viewofthe following:-

(i) Thatthis Courtwhileadjudicatingupon the suit was seizedwith an issue ofpartitionquaaresidentialhouseamongits co-owners.

(ii)To protect the intrinsiccharacterand nature of the undividedproperty variousfollowingorderswere passedby this Court: a. 07.05.1997,@199 b. 16.09.2005,@213-214 FAO(OS)385/2014&connectedmatter Page 38 of6! c. 22.08.2007, @216-218 d. 24.11.2009,@233-236.

(iii) That all the partiesto the suit were also aware ofthe fact thatthey were restrictedby the aforesaidinteriminjunctionorders which was passed from transferringthe possessionto any third party. There was no occasion for any ofthe partiesto have misunderstoodthe importofthe orders or to have arrived at a different understanding or reasoning relating to the aforesaidfour orderswhichwerepassedand modified.

(iv) That besides above, the appellant Smt. Pushpa Devi was also contestingtwo differentsuits as a defendantbefore this Court wherein she and the otherco-defendantswere restrainedfrom alienating,transferringor partingwith possessionin respectofthe suitproperty.

(v)In CS(OS) No. 2443 of 1993 she was restrainedalong with other co-defendantsto deal with the propertyand to maintainstatusquo. This order was confirmedon 25.08.1995and is in operationtill date.

(vi) Thatin anothersuit for PartitionCS(OS)No. 690 of2006 an Order dated 12.10.2006was passedin CS(OS)No. 690/2006where the appellant PUshpaDevi was defendantNo.l to the followingeffect: ''The counselfor defendantstates that he has no objectionifthe said applicationis allowedsubjectto the status quo order with regardto the title,possessionandstateofconstructionregardingthesuitpropertybeing equally applicable to the plaintiff In the circumstances,parties are directedto maintainstatusquo with regardtn the title. and the state of constructionregardingthe suitpremisesaforesaidtill thefinal disposalofthesuit. To thisextent,ordersdated22.4.2006aremodified." FAO(OS)385/2014& connectedmatter Page 39 of61

(vii) The orders which were passed in CS(OS) No. 690 of 2006 and CS

(OS) No.2443 of 1993 as stated supra were also passed in the presentsuit from which the Appeal had arisen.

(viii) The order dated 16.9.2005was passed in the presentsuit whereby the Hon'ble Court, while permitting the defendant No.12 to exercise his rightsand deal with his undividedsharewithoutpartingwith the possession of any portionof the propertyalso directedall the partiesto maintainstatus quo as qua possession of the property. The relevant portion of the order is reproduced: "In view of the statementmade by the counselfor theplaintiffs,the order dated 7.5.1997 is modified to the extent that the status quo will be maintainedin respect of possessionof the parties to propertyNo.42-44, Sunder Nagar, New Delhi."

(ix) The appellantSmt. PushpaDevi did not impugnor challengethis orderbeforethe AppellateCourt. However,after3 years Appellantfiled lA No. 12948 of 2008 under Order 39 Rule 4 CPC for vacation of the order dated 7.5.1997 and 16.9.2005.

(x)Thatduringthe argumentsthe Appellantrestrictedher prayerraisingthe plea of parity as recordedin the orderdated 16.9.2005. The counselfor the respondents1and 2 also concededwhen the plea ofparitywas pressedand accordinglyorder dated 24.11.2009was passedpermittingthe Appellantto exerciseher rights in the undividedpropertyas were accordedto the other DefendantNo.12. The followingorderwas passedon24.11.2009: "It is submittedby learnedcounselfor defendantNo.8 that defendantNo.8 was entitledto undividedl/3rd share in theproperty. This courtvide order dated16th September,2005 hadgiven libertyto defendantNo.12, who was FAO(OS)385/2014Aconnectedmatter j similarlyplaced that defendantNo.12 shall be entitled to exercisehis rights and deal with his undividedshare in hisproperty. He states that defendant No.8 is also entitledfor the same liberty. Learned counselfor the plaintiffs states that as far as defendant No.8 is concerned, her l/3rd share in theproperty is not disputed and counselfor the Plaintiffs has no objection in case, the similar order as in respect of defendant No.12 has been passed is also passed in favour ofdefendant No.8. In view ofthis submission,the applicationfor modifyingthe statusquo order dated 16th September, 2005 is allowedand it is observedthat defendant No.8 shall be entitled to exercise her rights and deal with her undivided l/3rd share in theproperty.

(xi) That the mandate of the order dated 24.11.2009 so as to maintain the sancity of possession is further clear from the reading of the latter portion of the order @ page 235, wherein while concluding,the learned Single Judge furtherobservedthat "sincethe propertyis not dividedso far, the defendantshall remain entitledto undivided share and they may deal only with undivided share."

(xii) The aforesaidchainof sequenceof facts categoricallyand without any iota of doubt establishthat at no point of time since 1993 till date, the Courts had allowed any party to transferthe possessionor to change the natureofthepropertybyinductingany thirdpartyor a strangerin it.

(xiii) Instead of purging the contemptand correctingthe illegality,the present appellant has the audacity to raise frivolous objections and argumentsby takingshelterofher old age. This is a calculatedmove by her at the behest of another appellantCarvan CommercialCompany Limited, whichhas intrudedinsidethepropertydespiteinjunctionorders.

(xiv) That the argumentsof the appellantare also misconceivedfor the FAO(OS)385/2014&connectedmatter Page4!of6! v simple reason that throughoutthe orders dated September 16, 2005 and November24, 2009 remindedeveryonethat the orderswere beingpassedin respectof an undividedproperty.

(xv) That the actionsofthe Appellantwere calculatedand motivatedso as to overreachthe processoflaw. The actionis also in defianceoflaw. An erringpartycannotraisethe pleaofignoranceoflaw to his/herdefence. It is well settledlaw that aco-sharercannotdeliverpossessionofany portionof an undivided property to any stranger or an outsider. Section 44 of the TransferPropertyAct, 1882prohibitsthe same.

(xvi) The Hon'bleSupremeCourt in (2009) 7 SCC 444 titled"Ramdas V. Sita Bai &Other" and in (2009) 10 SCC 654 titled "GajaraVishnu v. PrakashNansaheb" has categoricallyheld that an undividedshare of a r,r>- sharermay be a subjectmatterofsale but possessioncannotbe handedover to the vendeeunlessthe propertvis partitionedbv metesand bounds

(xvii) As stated above it is an admittedpositionthat the suit propertyis an undividedone and thereforeshe couldnot havetransfen-edthe possession to Caravan Commercial Property Ltd because of Orders dated 7.5.1997,

16.9.2005 and 24.11.2009. (xviii) Althoughthe ordersdated 7.5.1997,16.9.2005and 24.11.2009are very clear,unambiguousand constantlyremindedall the partiesto the suitto only deal with their undividedshare of the property and not to part with possessionofthe property,yet the appellantcannotbe heard to contendthat even by the usage of the term undividedin the orders, she was under an impressionthat she had been permittedto transfer the possessionof the FAO(OS) 385/2014 & connected matter 7<f property to a stranger.

(xix) This wouldbe preposterouson her part even to allegethatthe term "undivided"wouldmeandividedand includesthe transferofpossession." He prays that the appeal be dismissed.

¶27Havingheard the learnedcounselfor the parties,to understandand decidethe -V issue whetherthe learnedSingle Judge was justifiedin holdingthat the appellants herein were guilty of committingContemptof Court by disobeyingthe status quo order dated May 07, 1997, subsequentlymodified by orders dated September16, 2005 and November24, 2009, it is necessaryto note the said orders. For the said purpose, we reproduce the orders as under: I " 07.05.1997 xxxxx xxxxx xxxxx Notice returnable on November, 1997. Learned counselfor the DefendantsNo.l and 2 and DefendantNo.2 accept notice. Noticebe issueonlyto the remainingdefendants. The parties will maintainstatus quo as of today in respectofproperty NO.42-44, Sunder Nagar, Delhi till the next date. In the meantime,pleadings be completed." "16.09.2005 XXXXX xxxxx xxxxx FAOfOS)385/2014&connectedmatter p^ge43 of61 CS(OS)No.l561/1994 lA No.4108/1997and4696/2005 / statethathis clientswillhaveno objectionin sZ1 exerciseshis rightsanddeals with his undivided sharewithoutpartingwiththepossessionofanyportionoftheproperty In 771997t "mod7ne"drtt 'heplaintiffstheorderdated /.XI997IS modifiedto the extentthatthestatusquo will be maintainedin New DdhrT'""" T""' No.42-44, SunderNagar. New Delhu However, defendantNo.12 shall be entitledto exercise his rights and deal with his undividedshare in the property. With these disp7sfd''of" " Nos. 4108/1997and 4696/2005 are "24.11.2009 xxxxx xxxxx I.A. No. 12948/2008 This applicationhas been made under Order39 Rule4CPCon behalfof defendantNo^S with aprayerthat the courtshouldmodifythe statusquo orderdated7th ^ay 1^997whichwas earliermodifiedon 16thSeptember, OOJ. IS submittedby learnedcounselfor defendantNo.8thatdefendant . was entitledto undividedl/3rdsharein theproperty. This courtvide orderdated 16th September.2005 hadgiven libertyto defendantNo.12 who was smihrlyplacedthatdefendantNo12shallbe entitledto exercise dJ'f ,« / ""'""Idedsharein hisproperty.He statesthat defendantNo.8is alsoentitledfor thesameliberty.Learnedcounselfor the plaintiffsstatesthatasfar as defendantNo.8is concerned,her I/irdshare 'nhi^ ^ disputedand counselfor the plaintiffs has no objectionin case the similarorderas in respectof defendantNo.12 has beenpassedis alsopassedinfavourofdefendantNo.8 ord"j'Zf ''PP'"""">''f'"-'modifyingthe statusquo ord^ dated 16th September, 2005 is allowed and it is observedthat ulZided dh undividedl/3rdsharein theproperty. The applicationstandsdisposedof. FAO(OS)385/2014&connectedmatter Page 44 of61 C.S. (OS) No. 1561/1994 The plaintiffs havefiled this suit claiming l/3rd undividedshare in the property No.42-44, Sunder Nagar, New Delhi. The plaintiffs are grandsonsof Smt. Simla Devi, defendantNo.3 (deceased)and defendant Nos.l and 2 arefather and uncle of theplaintiffsrespectively.Smt. Bimla Devi had entered into a sale agreement along with co-owners of the property with defendantNo.14. The other defendantsare defendants in respectofother two co-ownersoftheproperty,namely, Smt. PushpaDevi and Smt. ShantiDevi (sincedeceased). They are defendantNos.8and9 to

¶13There is no disputein respectofundividedl/3rdshare, one ofLRs of Smt. ShantiDevi or undividedshare ofSmt. Pushpa Devi. The dispute is only in respect ofl/3rd undividedshare oflate Smt. BimlaDevi. I, therefore,considerthat all the defendants,who inheritpropertyfrom Smt. Pushpa Devi or Smt. ShantiDevi, beingperforma defendants,are at liberty to deal with their respectiveundividedshare of the property. The court had passed similar order in respect of defendant No.12 earlier and defendantNo.8 today. I consider that the other defendantssimilarlyplaced cannot be treated differently qnd the earlier order of dismissing the application made by the defendants is, therefore, recalled. However, since the property is not divided so far, the defendants shall remain entitled to undivided share and they may deal only with undivided share. "

¶28That apart, we also note the conclusionof the learned Single Judge in the impugnedorderholdingthe appellantsguiltyofcontemptof court was primarilyon the following findings "12. There is no dispute about the proposition of law as has been urgedby the learnedSr. Counselfor DefendantsNo. 4 to 8 and Defendant No. 14 that when an order of the Court is ambiguousand is reasonably capable of more than one interpretation,proceedingsfor contemptshould not be entertained. Can it be said that the order dated 07.05.1997 read with subsequentorders dated 16.09.2005and 24.11.2009was capableof two interpretations? The learned Sr. Counselfor Defendants No. 8 and Defendant No. 14 have stressed that there is no specific mention in the order dated 24.11.2009thatDefendantNo. 8 willnot be entitledto transfer FAO(OS)385/2014&connectedmatter Page45of61 possessionofthe suitpropertywhile dealingwith the propertyand thus, even iforder dated 16.09.2005is taken into consideration,at the most it will show that the order dated 24.11.2009 was capable of two interpretationsand thus, no action of contempt can be taken against Defendants No. 8 and 14.

¶13I have already extractedearlier the orders dated 16.09.2005and

24.11.2009.Orderdated16.09.2005categoricallyrecordsno objectionof the Plaintiffsin respectofthe right ofDefendantNo. 12 to deal with his undividedshare withoutpartingwith thepossessionofanyportionofthe property. The order dated 07.05.1997 was modified by order dated ^

16.09.2005to the extentthat DefendantNo. 12 may deal in his share but status quo was to be maintainedin respect ofpossession ofproperty bearing no. 42-44, Sunder Nagar by the parties. By a subsequent applicationLA. No. 12948/2008,DefendantNo. 8wanteddischargeofthe statusquo orderdated07.05.1997,which was grantedto DefendantNo. 8 recordingthat l/3rd share ofDefendantNo. 8 is not disputedand the counselfor the Plaintiffshas no objectionin case the order as passedin respectofDefendantNo. 12 ispassedin respectofDefendantNo. 8. Thus, everybodywas aware that concessionwhich had been given to Defendant No. 8 was similar to the one grantedto DefendantNo. 12 by the order dated16.09.2005.Hence, the contentionraisedon behalfofDefendantNo. 8 and DefendantNo. 14 that the order dated24.11.2009with regardto dealingwith the propertywith or withoutpossessionwas ambiguousand capableoftwo interpretationsis unfoundedIt may be mentionedthat in ^ theproceedingsunder Order39 Rule 2A CPC, the Court is simplyto see whether there is disobedienceofthe orderpassedby the Court. It is not permissiblefor the Courtto examinethe correctnessofthe earlierdecision which is statedto be violated(SeeStateofBihar&Ors. v. RajendraSingh &Anr., AIR 2004SC 4419and UnionofIndia&Ors. v. SubedarDevassy PV, AIR 2006SC 909). Thejudgmentsin TamilnadMerchantileBankand Sushila Raje Holkar (supra) and K.K. Puri (supra) relied upon by the learnedSr. Counselfor DefendantNo. 14 and DefendantNo. 8 will not come to the rescue ofthe Defendantsas there was no ambiguityin the order. The contentionthat DefendantNo. 8 was in possessionof only groundfloor ofwhichpossessionwas deliveredto DefendantNo. 14 and the Plaintiffsand DefendantsNo. 1to 3were in possessionofmore than l/3rdshare in the propertyand thus, there will not be any contemptis noted to be rejectedfor two reasons. First, as statedearlier, the orderas modifiedby thesubsequentorderswas clearthatpossessionoftheproperty FAO(OS)385/2014Aconnectedmatter " j/- Page 46 of61 IS not to be disturbed. Second, even ifit is assumed that Plaintiffsand DefendantsNo. 1 to 3were in possessionofabout 50% of the built-up portion,DefendantNo. 8was also inpossessionofthe entiregroundfloor which must be more than I/3rdshare ofDefendantNo. 8. Thus, even if DefendantNo. 8 had been permittedto part with the possessionof the 1/3rdportionofthe propertybelongingto him (though it was not done), she could not have deliveredthe possession of entire groundfloor to showing of Defendant No. 8 about 50% ofthe property. "

¶29The order dated November24, 2009 was primarilypassed botli in lA No. 12948/2008and CS(OS) No. 1561/1994. The prayerin lA No. 12948/2008under Order 39 Rule 4 CPC was as under;- "a. Discharge,vacate,modifythestatusquo orderdated07.05.1997which has laterbeen modifiedvideordersdated16.09.2005,as a whole; b. Discharge and vacate the status quo order dated 07.05.1997 and

16.09.2005in sofar as it relatesto one-third(1/3'^^)undividedshareofthe applicant/defendant No.8 or, c. In anycase the operationofthestatusquo ordermay kindlybe restricted in respectofthe one-third(1/3''')undividedshareofLateSmt. BimlaDevi i.e defendantNo.3 only; d Pass any otherandfurtherorder(s) as this Hon'bleCourtmay deemfit andproperin thefactsandcircumstancesofthepresentcase."

¶30The prayersmade in the saidlA were inter-aliafor seekingdischarge,vacation, modificationofthe statusquo orderdatedMay 07, 1997 as modifiedon September 16, 2005 as a whole, insofaras it relatesto the appellantSmt. PushpaDevi's 1/3'''' undividedshare. When the said applicationwas listed on November24, 2009, it was representedby the counselfor Smt. PushpaDevi that Smt. PushpaDevi being FAO(OS)385/2014 & connected matter similarlyplacedas defendantNo.12, shall be entitledto the same liberty, Aperusal oforderdated September16, 2005 wouldrevealthatthe orderdatedMay 07, 1997 was modifiedto the extent,statusquo was requiredto be maintainedwithrespectto the possession of the parties to property no.42-44. Sunder Nagar, New Delhi. However,the defendantNo.l2(respondentNo.l7, in FAO(OS)385/2014)shall be entitledto exercisehis rightsand deal withhis undividedsharein the property. The learnedSingleJudge,on November24, 2009acceptedthe statememmadeon behalf ofthe plaintiffsin the suit, respondents1and 2hereinthat he has no objectionin case similarorder, as in respect of defendantNo,12 be passed in favour of Smt. Pushpa Devi, The Court made it clear that Smt, PushpaDevi shall be entitledto exerciseherrightsand deal withher undivided1/3"'sharein the property. We agree with the submissionmade by Mr, DayanKrishnanthatthe relief,as prayedfor in lA No,12948/2008was seekingdischarge,vacation,modificationof status quo order dated May 07, 1997 as modifiedon September16, 2005 as awhole would surely depictthat the appellantSmt, PushpaDevi was consciousofthe fact that she could not have transferredthe possessionofthe groundfloor ofthe propertyin question, otherwise,she would have only sought asimplicitorprayer that the liberty, as granted to defendant No,12, be granted to her. In fact, during the hearing on November24, 2009, it is notedthatthe counselfor the appellantSmt, PushpaDevi has statedthat his clientis entitledto the same libertyas was givento the defendant FAO(OS)385/2014&connectedmatter Page 48 of61 No.12 to exerciseher rights and deal with her "undivided"share in the property. That apart, we note, the Court while passing an order in the suit, has stated as under:- "However,sincethepropertyis not dividedsofar, the defendantsshall remain entitled to undivided share and they may deal only with undivided share. "

¶31The aforesaidobservationunderlinesthe fact that there is no dispute with regardto the undividedshare of Smt. PushpaDevi and Late Smt. ShantiDevi (her legalheirs)and they are requiredto deal withthe undividedshareonly. Thatapart, there is no express order of the learned Single Judge on November 24, 2009 grantinglibertyto the appellantSmt. PushpaDevi to partwith the possessionofher undividedshare. In fact, this appearsto be the understandingofthe Smt. Pushpa Devi, as is clear from para 27, of her appeal, whereinshe has referredto alegal opinionsoughtby her, whereinshe was advised,that there is no bar for her to deal with her shareincludingtransferringthe possession. In otherwords,on legaladvise she has transferredthe possession,whichpre supposesher understandingthat order dated November24, 2009 may not have directedthe transferof possession. The plea ofMr. Nigam, that orderdated November24, 2009 does not bar or put fetters on Smt. Pushpa Devi and the legal heirs of Smt. Shanti Devi for transferringthe possessionbeing performaparties is concerned,the same is aselectivereadingof the order. The said submission is primarily because, the Court in the earlier I^AO(OS)385/2014&connectedmatter "Page 49 of61 f sentencerecords''Thedisputeis only in respectof1/3'''undividedshareoflateSmt. SimlaDevi". Butifthe orderis read in totahty,the lastline,wherein,the Courthas said -howeversince thepropertyis not dividedsofar, the defendantsshallremain entitledto undividedshareandtheymay dealwith undividedshare"wouldbecome relevant. Surely in a suit for partition,every legal heir has an undivided share without demarcation. The Court was consciousof the fact that demarcationby metes and bound is yet to take place. Preciselyfor this reason it did not direct, transfer of possessionand it could not have, as that would have made the suit infructuous. The relianceplaced by Mr. Vashiston the judgmentof the Supreme Court in the case of Ramdas v. Sita Bai and ors (supra) and Gajara Vishnu (supra), wherein the Supreme Court has held that undividedshare of a co-sharer may be subjectmatterof sale but possessioncannotbe handedover to the vendee (purchaser)unlessthe propertyis partitioned,is appealing. The pleaofMr. Arvind Nigam that by necessaryimplication,the prayersin the lA were allowedand Smt. PushpaDevi was entitledto deal with and part with possessionofthe groundfloor ofthe suitproperty,is also withoutany merit.

¶32The relianceplacedby Mr. Nigamon thejudgmentofthis Courtin the caseof Banne Singh v. State ofRajasthan(supra), to contend that the word 'Vo deal" impliesthat the offenderhas certainconcernwith the propertyby keepingit, in his possessionor partingwith ownershipor possessionof the propertythroughany of FAO(OS)385/2014&connectedmatter Page 50 of61 the modesoftransferofpropertyis concerned,the same wouldnot be ofany help to the appellantCaravan,inasmuchit is the principlefound out upon a reading of a judgmentas a whole in the light of the questionsbefore the Court that forms the ratio. In the said case, the High Court was dealingwith variousprovisionsof the IPC includingSection413 IPC, which relatesto an offenceofhabituallydealingin ^ stolenproperty. It was in that context,the High Court has culledout adifference between "retaining"and "dealing"and held "to deal"impliesthatthe offenderhas certainconcernwith the propertyeitherby keepingit in his possession,or parting with the ownership,or possessionof the property through any of the modes of transferofproperty. It was in the contextofSection413, the High Court has held the verb "to deal"is broaderin its scopethan the verb"retain". Whereas,in the case mhand, the word ''deal"has been referredto by the learned Single Judge in the orderdated September16, 2005 and also in the orderdated November24, 2009 in the context,to deal with "undividedshare" in the propertywithoutpartingwith the possession. The saidjudgmenthas no application. Furtherit may be statedthat, it is aconcededpositionthat SurinderKumar,defendantNo.12, was not in possession ofsuitproperty,and couldnot havepartwiththe possession. Ifthatbe so, the parity grantedto Smt. Pushpa Devi, must be read to mean, that she could not have part with possession. The plea that defendant No.l2-SurinderKumar was never in possessionofany part ofthe suit premisesand as such, no fetterswere put on him, t FAOfOS)385/2014A connectedmailer " c, Page 51 of61 wouldnot be tenable,inasmuchas on areadingoforderdatedSeptember16, 2005, it was clearlydirectedthat^'statusquo willbemaintainedin respectofpossessionof theparties,topropertyNo.42-44.SunderNagar,NewDelhi"itselfclarifiesthatthe partiescouldnot havepartedwiththe possession. We agreewith the submissionof Mr. KnshnanthatifMr. Nigam'sinteipretationofthe word"deal"is acceptedthen this directionofstatusquo shallbe renderotiose. Hence,thepleaofMr. Nigamthat Surmder Kumar was never in the physical occupation of the property is inconsequential/irrelevant.It would be irrelevantfor these proceedings,the factum thatmodificationofstatusquo order was soughtby the brothersofSurinderKumar was denied. The pleaofMr. Nigam,that Smt. PushpaDevi had soughtfull reliefs in her applicationfiledunderorder39 Rule4CPC and her applicationwas allowed asawholevideorderdatedNovember24, 2009and not on concessionis concerned, the same is untenable,as is seen from prayersmadeand orderpassed,it is clearthat the counselfor Smt. PushpaDevi restrictedthe prayer,seekingparityqua defendant No.12 mview of order dated September16, 2005. Surely, such aplea suggest concession,as he had not pressedthe reliefas soughtfor in the application. The plea of Mr. Nigam, that the order datedNovember24, 2009, places not fetters on Smt. PushpaDevi regardingtransferofpossessionand the orderdated September 16, 2005 stood subsumed in the order dated November24, 2009 and camiot be interpretedto controlthe scope or widthofthe orderdated November24, 2009, is FAO(OS)385/2014&connectedmatter Page52 of61 without merit.

¶33Insofar as the plea of limitationis concerned,there is no dispute that lA 22682/2012was filedunderOrder39 Rule2A CPC onlywithoutanyreferenceto or under the provisionsof the Contempt of Courts Act. The limitation becomes relevantin viewofthe provisionsofSection20 ofthe ContemptofCourtsAct and not when an applicationunder Order 39 Rule 2A CPC is filed. Even otherwise, when the allegationis ofviolationofan interimorderofthe Court,the application would not be hit by delay and laches. We may note in this regardthejudgmentof the Gujarat High Court in the case of BharatbhaiJivrajbhai v. Chaganbhai Samabhai and Anr. passed in MiscellaneousCivil ApplicationNo. 1751/2011 decidedon December14, 2012,whereinGujaratHighCourt,on an identicalpleaof limitationraisedby the respondents2, 4and5thereinand has rejectedsuchaplea and observedthat merely becausethe proceedingsunderOrder 39 Rule 2A ofthe CPC for breachofinjunctionare consideredto be akin to the proceedingsunderthe ContemptofCourtsAct, the periodoflimitation,as prescribedunderSection20 of the ContemptofCourtsAct wouldnot be applicable. The Court also held that the SupremeCourtin the caseofPallavSheth v. Custodianandors (2001) 7SCC549 has not held that the period of limitationprescribed under Section 20 of the Contempt of Courts Act would be applicable in a proceeding for breach of injunction under Order 39 Rule 2A CPC. We are in agreement with such a FAO(OS)385/2014&connectedmatter Page 53 of61 conclusion. Suffice to state, no period of limitation is prescribedfor initiating proceedings for breach of injunction under Order 39 Rule 2A CPC, which is providedunder Section20 ofthe ContemptofCourts Act. It must be held that so longas the breachofinjunctioncontinues,the aggrievedpartyin whosefavourthere is an injunction,can initiatethe proceedingsfor breachofinjunctionunderOrder39 Rule 2A ofthe CPC. That apart, it must also be held that Order39 Rule 2A CPC beingaspecialprovisioninsertedin the Code, shallprevailoverthe generallaw of contemptcontainedin the ContemptofCourtsAct. Further,the submissionofMr. Arvind Nigam that the provisionsof Section 21(1) of LimitationAct, 1963, to contendthat Caravan,having been added in the suit on May 13, 2008 deemed to have been institutedon that date only and not earlierdate and the orderdated May 07, 1997or September16, 2005 cannotbe read into orderdatedNovember24, 2009 for the purposes of contemptis concerned,the same is also without any merit. There is no disputethat orderdated November24, 2009 was passedafterMay 13, 2008 when Caravanwas impleadedas apartyin the suit. Further,on November24, 2009 when the orderwas passedby the Court,Caravanwas dulyrepresentedby the counsel. The saidorderexplicitlyrecordsthe statementmade on behalfofappellant Smt. Pushpa Devi herein, defendant No.8 in the suit that Smt. Pushpa Devi defendantNo.8 is also entitledto similarlibertyas was given to defendantNo.12 that is, in the orderdated September16, 2005. On suchsubmission,the counselfor FAO(OS)385/2014&connectedmatter Page 54 of61 Caravancouldhave statedbeforethe Court,thatSmt. PushpaDevi is alsoentitledto part with the possession of the ground floor of the suit property. No such submission was made and the said order dated November 24, 2009 must be understood that the appellant Smt. Pushpa Devi was entitled to deal with the propertyin the samemanneras defendantNo.12 and nothingmore.

¶34Insofaras the submissionmade by Mr. Nigamthat the orderdatedNovember 24, 2009 is susceptibleto two inte»onsis concerned,the same is also without any merit. We have alreadyreproducedthe orders passed by the learnedSingle Judgefrom time to time in the suit. The ordersare veryclearand explicit. Thereis nothingin the orderdated November24, 2009, which suggeststhat the prayersas made in lA 12948/2008have been grantednor there is any expressorder giving libertyto theappellantSmt.PushpaDevito partwiththepossessionoftheproperty. The learnedSingleJudgewas rightin rejectingthisplea in paras 12 and 13, which we have alreadyreproducedabove.

¶35The relianceplacedby Mr. Nigam on thejudgmentsofthe SupremeCourt in the case of State of Bihar v. SonabatiKumari (supra), SushilaRaje Holkar (supra)and TamilMercantileBank (supra)are not applicablein the facts ofthis case, as there is no ambiguityin the order and the same is capable of only one interpretationand not more than one interpretation,as soughtto be contendedby FAO(OS)385/2014&connectedmatter Page55 of61 Mr. Nigam. Theprayersmade in the apphcationsuggestthatit is the understanding ofSmt. PushpaDevi alsothatthereis abaron herto partwith the possessionofthe ground floor ofthe propertyin question,which surelywould make the actionas a deliberate and willful.

¶36Insofaras the pleaofMr. Nigam that the legal heirs of late Smt. Bimla Devi have occupiedmore than M'- of the suit property,much above the share of late Smt. Bimla Devi is also withoutmerit, as the natureofpropertybeing undivided, and not partitioned,the sharesare not determined. In any case,suchan argumentis not tenablewhen the allegationis ofviolationoforderspassedby the Court.

¶37Insofar as the plea of Mr. Nigam that two sons of late Smt. Bimla Devi mcludmgthe respondems1and2neveroccupiedany partofthe groundfloorofthe suitpropertyand theirpossessionon the firstfloorand terraceremainedundisturbed • smce 1994withaseparateentry/exitpointisalsowithoutanymerit,as thesuitis for partitionmay be inter-sebetweenthe legalheirsoflate Smt. BimlaDevi but thereis no partitionby metes and boundsbetweenthe legal heirsof late Smt. BimlaDevi, Smt. PushpaDevi and the legalheirsofSmt. ShantiDevi. So, it was not conclusive that Smt. Pushpa Devi had aclear tifle of the ground floor so as to part with the possessionofthe same. Therightwas onlyan undividedrightand occupationofthe first floor cannot be construedto mean that Smt. Pushpa Devi has aright to part FAO(OS)385/2014d-connectedmatter Page 56 of61 1l withpossessionofthe groundfloor.

¶38The pleaofMr. Nigam,thatCaravanhas been restrainedfrom transferringthe ground floor of the suit propertyin CS(OS) 1587/2011and the appellantis ready and willing to undertaketo be bound by the decisionof the said suit and upon divisionofthe propertyacceptany partofthe suitpropertyas it sharealso doesnot appealus, as we are in thiscaseconcernedwiththe violationoforderspassedin suit being CS(OS) No.1561/1994and it is the legalityof the impugnedorder of the learnedSingleJudge, which needs to be adjudicatedand nothingmore. An order passedin anothersuitbeingCS(OS)No. 1587/2011againstM/s Caravanrestraining it from transferringthe groundfloorwouldhave no bearingon these appeals. The said order in CS(OS) No. 1587/2011 is to the effect that M/s Caravanwould not createthirdparty rightsby transferringit fiirther,which has no bearingon the fact whether Smt. Pushpa Devi could have parted with the possessionof the ground floor.

¶39The plea of Mr. Nigam that the plaintiffinstitutedthe suit only in order frustratethe suit ofspecificperformancefiled by M/s Caravanand the application under Order 39 Rule 2A CPC was filed by the plaintiffwith ulteriormotives is inconsequentialwhen the Courtbelowand thisCourtis concernedwith violationof the orderspassedin the suit. FAO(OS)385/2014&connectedmatter Page57 of61 to

¶40Similarly,the plea of Mr. Nigam that the plaintiffhas institutedthe suit to overcomethe Agreementsto Sell datedNovember15, 1991 and November16, 1992 is also inconsequential,whichhas no bearingon the plea ofthe respondents1and 2 allegingviolationof orderdatedNovember24, 2009.

¶41Further,the plea ofMr. Nigam that it was incumbenton the learned Single Judge to decide applicationbeing lA No. 15875/2013under Order 7 Rule 11 CPC relatingto the issueofmaintainabilityofthe suitfirst as the same goesto the rootof the matter also does not appeal us, when the issue relates to non-complianceof ordersin the suit where the said lA has been filed. The non considerationof the lA is no ground for violatingorders alreadypassed. The plea that sufficienttime was not grantedto put forth the argumentsbefore the learned Single Judge is also not tenable, as we find that the appellants had in fact violated/overreachedthe orders. Further while hearing the appeals, this Court has granted sufficienttime to the learned counsel for the parties to argue the appeals and as the final conclusion would determine, the appeals are without any merit, impugned order cannot be faulted on that ground.

¶42On the submissionrelatableto Section 44 of the Transfer of Property Act, sufficeto state the possessionof the ground floor could not have been partedwith, in violation of orders passed. FAO(OS)385/2014&connectedmatter Page58 of61 1%

¶43Insofaras the submissionmade on behalfof appellantSmt. Pushpa Devi by Mr. Deepak Sahni that the appellantbeing of old age, decidedto settle the matter with M/s Caravan and agreed to sell her 1/3^'' undividedshare in the propertyto Caravanwith deliveryofpossessionofthe groundflooron the adviseofher counsel is not convincmg. No argumenthas been made during the appeal neitherby the counsel of the Caravan or the appellantherein that they are ready to reverse the possession. Her right to sell her 1/3'''^share is not disputed/contestedbut she could not have partedwith possessionin view oforderdated November24, 2009, which was passed on her asking whereby she was permittedto deal with her undivided share. The contentionthat she had an absoluteright includingdelivery/transferof possession of the ground floor is not acceptable as the mandate of the orders including order dated November 24, 2009 was to maintain the sanctity of possession.

¶44Insofaras thejudgmentsreferredto by Mr. Nigam are concerned,in Sahdev@ Sahdo Singh (supra), is concerned, in the said case in para 16 and para 20, on which reliancewas placed,the SupremeCourt held that punishmentunder the law ofcontemptis calledfor when the lapse is deliberateand action cannotbe taken in an unclearcase and the charge has to be proved beyond reasonabledoubt. In the case in hand,there is no doubtthatthe Courthad not permittedSmt. PushpaDevi to part with possessionof the ground floor. In fact, it was also the understandingof FAO(OS)385/2014 & connected matter Smt. PushpaDevi thatthereis no such order. It is her case thaton legal advise,the possessionwas partedwith. No attemptwas made, at leastnot broughtto ournotice to give/take back the possession of the ground floor, surely suggest the contumaciousconduct and act, which is not bonafide. The judgment has no applicability in the facts of this case.

¶45Insofaras the judgmentin the case ofStateofBihar v. UshaDevi (supra)is concerned,the same has no applicabilityto the facts of this case. More so, when prejudicehas been caused to the plaintiffs(respondents1and 2) with the parting with possessionofthe ground floor when partitionhas not been effectedbetween the legal heirs of Late SimlaDevi, Smt. PushpaDevi and the legal heirs of Shanti Devi.

¶46In view ofour discussionabove, we are ofthe view that the appealsfiled devoidofany merit. The sameare dismissed. Timeto deliver/fortakingpossession ofthe entiregroundfloorofthe suit propertyby Caravanand Smt. PushpaDevi is extendedby eightweeks from today.

¶47As the Learned Single Judge has observed that the matter of awarding punishmentwill be dependanton the complianceofimpugnedorder, whichperiod, we have extendedby eight weeks, list beforethe learnedSingleJudge on May 15, 2017 for compliance. FAO(OS)385/2014 clj connected mailer are CM No. 14139/2014in FAO(QS^385/2014fforstay) CM No. 14143/2014in FAOfOS^386/2014fforstny) Dismissed as infructuous. MARCH 08, 2017/ak FAO(OS)385/2014 & connected matter •I &£> V. KAMESWARRAO,J INDIRABANERJEE,J Page 61 of61

IN THE HIGH COURT OF DELHI AT NEW DELHI Judsment reserved on: September 30. 2016 Judsment delivered on: March 08. 2017 + FAO(OS) 386/2014 & CM Nos. 14143/2014 & 14145/2014 SMT. PUSHPA DEVI Appellant Through: Mr. Deepak Sahni, Adv. versus SHRI YASHASHWIAGGARWAL& ORS .... Respondents Through: Mr. Dayan Krishnan, Sr. Adv. with Mr.Jeevesh Nagrath, Ms.Monica Manchanda, Mr.ChetanGautam& Ms.MeghnaBal, Advs. forR-l&2. Mr. Manish Vashist, Adv. for R-3 & 4 Mr. Arvind Nigam, Sr. Adv. with Mr.K. Datta, Mr.Manish Srivastava, Advs. for R-9. Mr.Lalit Gupta with Mr.Gaurav Lavaria, Advs. for R-11 to 17. CORAM: HON'BLE MS JUSTICE INDIRA BANERJEE HON'BLE MR JUSTICE V. KAMESWAR RAO