The main legal point established is that the suit for mandatory injunction was maintainable, and the issue of title could be decided in a suit for injunction.

Valmiki J. Mehta, J. (Oral)

1. This Regular Second Appeal is filed against the concurrent judgments of the courts below; of the trial court dated 22.2.2010 and the first appellate court dated 31.01.2012; by which the suit filed by the respondent/ plaintiff for permanent and mandatory injunction and mesne profits was decreed by granting the following reliefs:-

“13. Relief

In view of the findings given in the above issues, the plaintiff is entitled to the following reliefs:

1. Plaintiff is entitled to the decree of mandatory injunction against the defendant in respect of unbuilt area of the suit property, as delineated and shaded in the red in the site plan and exhibited as Ex.PW1/4. The defendants are directed to remove their goods and material from the aforesaid unbuilt area of the suit property forthwith.

2. A decree of permanent injunction is hereby passed in favour of the plaintiff, thereby permanently restraining the defendants from using the unbuilt area of the suit property and for permanently restraining the defendants for using the built area of the suit property for any commercial purpose or for any purpose other than residential.

3. The plaintiff is entitled for recovery of mesne profits @ Rs.15,000/- per month since 10.11.01 till the vacation of the suit property. Further, plaintiff is also entitled to future interest @ 9% per annum on the principal amount that is calculated in respect of mesne profit till the passing of decree.

Decree sheet be prepared accordingly after court fees in respect of the mense profit is deposited. Plaintiff is also entitled to cost. File be consigned to record room after due compliance.”

2. The issue in the present case is with respect to an open area of about 1140 sq. ft. adjoining the constructed area of about 1110 sq. ft. situated on the barsati floor/ third floor of the residential unit at 71, Paschimi Marg, Vasant Vihar, New Delhi-110057. There is no dispute that so far as the constructed area of the third floor admeasuring 1110 square ft. is concerned and that the appellant/ defendant is the owner of the same, but, the dispute is with respect to the adjoining open space of approximately 1140 sq. ft. Appellant no.2 claims that this open space unbuilt area of 1140 sq. ft. forms part of the property which she had purchased from one Ms.Savita Narayan under an Agreement to Sell etc dated 28.01.1994. Ms. Savita Narayan had purchased the same from the original owner late Lieutenant General Rajender Singh Paintal, and whose widow Veena Paintal was the plaintiff in the suit. Smt. Veena Paintal, expired during the pendency of the suit and is now represented by her legal heirs.

3. The issue in this case is as to whether Lieutenant General Rajender Singh Paintal sold and transferred the open space of about 1140 square feet to Ms. Savita Narayan under the Agreement to Sell dated 25.03.1991, inasmuch as, only if Ms.Savita Narayan, the predecessor-in-interest of the appellant no.2 was given ownership rights of this open space of 1140 sq. ft. under the Agreement to Sell dated 25.3.1991, then the appellant no.2 could have purchased the same from Savita Narayan.

4. Both the courts below have referred to the Agreement to Sell dated 25.03.1991 executed between the predecessor-in-interest of the appellant no.2/Ms. Savita Narayan and late Lieutenant General Rajender Singh Paintal, and have held that what is transferred under the Agreement dated 25.03.1991 is only the constructed area of 1110 sq. ft. of the third floor and not the additional adjoining open space of 1140 sq. ft. This Agreement to Sell has been proved and Exhibited as Ex.PW-1/3 in the trial court.

5. I have gone through the Agreement to Sell dated 25.03.1991 (Ex.PW-1/3), and found that the transfer of interest by the same was only in the constructed area/third floor/barsati floor comprising of 1110 sq. ft. and the agreement is not for the additional adjoining area of 1140 sq. ft. The relevant portion of this Agreement showi