The court emphasized that the burden to prove encroachment lies with the claimant, and ad interim mandatory injunctions are granted only in exceptional circumstances, reaffirming their limited application.

JUDGMENT :

ANIL KSHETARPAL, J.

1. Through this Appeal, filed under Order XLIII Rule 1(r) of the Code of Civil Procedure, 1908 [hereinafter referred to as "CPC"] read with Section 10 of the Delhi High Court Act, 1966, the Appellants [Plaintiffs in CS(OS) 339/2022 and Defendants in CS(OS) 340/2022 and CS(OS) 793/2022] assail the correctness of the Order dated 20.05.2025 [hereinafter referred to as "Impugned Order"] passed by the learned Single Judge while issuing ad interim mandatory injunction, directed the Appellant No.1 to demolish the boundary wall and vacate 92 sq. yds. portion of the land forming part of plot no.D-1, Khasra No. 17/2/2 situated in Mehrauli, Delhi.

2. Smt. Gayatri Devi [hereinafter referred to as "Smt. Gayatri"] is stated to be the owner of 1 bigha land measuring 1008 sq. yds. Out of this 1008 sq. yds., she sold a 200 sq. yds plot to Smt. Zohra Fatima [hereinafter referred to as "Smt. Zohra"]. Thereafter, she sold another plot measuring 200 sq. yds. to one Sh. M.B. Pandey in the year 1994. Both sales were executed by a set of documents, including General Power of Attorney, Will, Agreement to Sell, Affidavit, etc. Subsequently, she executed a Registered Sale Deed dated 19.01.1998, with respect to this 1008 sq. yds., in favour of her husband, Respondent No.2/Sh. Mahesh Kaushik, and Respondent No.1/Sh. Anil Kumar Jain [Plaintiff in CS(OS) 340/2022 and CS(OS) 793/2022].

3. A bare perusal of the Sale Deed proves that 1 bigha land comprised in Rectangle No.29, Khasra No. 17/2/2 is alleged to have been sold for Rs.1,60,000/-, however, no payment was made before the Sub-Registrar, Mehrauli. Smt. Gayatri is claimed to have purchased this 1 bigha land from Sh. Ram Prakash Gupta on 28.05.1992. Neither have any dimensions of the plots been given in the sale deed, nor has a layout plan been attached. Further, Smt. Zohra purchased the plot measuring 200 sq. yds. from Sh. M.B. Pandey, thus, she became the owner of a total of 400 sq. yds., which she later sold in favour of the Appellant No.1 vide Registered sale deed dated 27.02.1997. The Appellant No.1 also purchased 12 biswas of land from M/s Nova Agencies.

4. This Court has been given to understand that the total area of 1 bigha is 1008 sq. yds, which comprises 20 biswas of land. In other words, the area of each biswa is a little more than 50 sq. yds.

5. Initially, the Appellant No.1 filed a suit bearing CS(OS) 339/2022 for grant of decree of permanent injunction, whereas Respondent No.1 filed two suits bearing CS(OS) 340/2022 and CS(OS) 793/2022 for grant of decree of possession, permanent, mandatory and prohibitory injunction, restraining the Appellants from encroaching upon 50% of the property being 504 sq. yds. (including the area of 92 sq. yds.). In paragraph no.2, the Respondent No.1 claims that the Appellant No.1 illegally encroached upon the area and constructed the same. Subsequently, it was claimed that Appellant No.1 has precisely encroached upon 150 sq. yds., in the front portion of the plot, and the Respondent No.1 has not been left with any passage. During the pendency of the proceedings before the learned Single Judge, the Respondent No. 1 filed a fresh site plan prepared by a draughtsman duly identifying the disputed area admeasuring 92 sq. yds.

6. The Respondent No.1 claims that he has had an uninterrupted easementary right through the property for the last 24 years. The joint property purchased by him along with the Respondent No.2 was divided, and he came into possession of 504 sq. yds. He shifted to the United States of America [hereinafter referred to as "USA"] in the year 2000 and