# Sachin Kumar v. Smt. Nidhi Dohre & Anr

- **Citation:** (2026) 2 ILRA 1183
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-10
- **Case number:** First Appeal No. 95 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sachin-kumar-v-smt-nidhi-dohre-anr-54117
- **Pages:** 7

## Text

2 All. Sachin Kumar Vs. Smt. Nidhi Dohre & Anr.
1183
regarding the disputed property. There is no perversity in the impugned judgment of the trial court
warranting interference by this Court in exercise of its appellate jurisdiction.

16. Accordingly, the instant appeal is meritless and is liable to be dismissed at the admission
stage.

17. The appeal is dismissed at the admission stage under Order 41 Rule 11 CPC.

18. Consequently, the impugned judgment and decree dated 09.10.2025 is hereby affirmed.
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(2026) 2 ILRA 1183
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 95 of 2026

Sachin Kumar ...Appellant
Versus
Smt. Nidhi Dohre & Anr. ...Respondents

Issue for Consideration
Matter pertains to whether the suit seeking mandatory injunction for execution of a sale deed in respect of
property jointly held by husband and wife, essentially involving inter se property rights between spouses, is
maintainable before a civil court, or is exclusively triable by the Family Court, and consequently, whether the
impugned decree suffers from lack of inherent jurisdiction.

Headnotes
Code of Civil Procedure, 1908 - s. 96 - Family Courts Act, 1984 - s. 7 - Jurisdiction of Family Court
- Validity of - Property dispute between spouses - Res judicata - Applicability - The plaintiff -
appellant, husband of defendant No.1, instituted a suit seeking a decree of mandatory injunction
directing defendant No.2 (the builder) to execute the sale deed of the disputed flat exclusively in
his favour and restraining his estranged wife from causing obstruction, asserting that although
the property was allotted in their joint names, the entire sale consideration was paid by him
alone and the wife was included merely as a benami co-owner out of love and affection; it was
further pleaded that the property had been purchased through a housing loan for which both
were co-borrowers, but the loan was being repaid solely by the plaintiff, and following
matrimonial discord and separation, the wife neither contributed financially nor cooperated in
execution of the sale deed, compelling the plaintiff to institute the suit, which was dismissed by
the trial court on the ground that the property stood in joint ownership and no direction could be
issued to execute the sale deed solely in favour of the plaintiff.

Held:. In the instant case, the suit was not instituted before the Family Court but was adjudicated by the
Court of Additional Civil Judge (Senior Division), Court No. 10, Ghaziabad, which lacked inherent jurisdiction to
entertain and decide the matter - Accordingly, the judgment and decree passed by Trial Court is without
jurisdiction and is a nullity, in the eye of law - On this ground alone, the impugned judgment and decree is
1184 INDIAN LAW REPORTS ALLAHABAD SERIES
liable to be set aside - It is apparent that any finding recorded by a court lacking inherent jurisdiction, does
not operate as res judicata, between the parties - Since the dispute relates to property rights between
husband and wife, the suit is exclusively cognizable by Family Court - Thus, appeal allowed and
impugned judgment and decree dated 19.10.2024 set aside. [Paras 17, 21, 22, 24] (E-13)

Case Law Cited
Prem Kishore and others v. Brahm Prakash and others (2023) 19 SCC 244; Sushil Kumar Mehta v. Gobind
Ram Bohra (Dead) Thr. LRS. (1990) 1 SCC 193 (By 3 Judges) - referred to

List of Acts
Code of Civil Procedure, 1908; Family Courts Act, 1984

List of Keywords
Appeal u/s 96 CPC; Mandatory injunction; Execution of sale deed; Joint ownership/joint allottee; Benami coowner; Real and absolute owner; Consideration amount; Allotment letter; Housing loan/co-borrower,
Possession; Necessary party; Ex-parte proceedings; Substituted service; Dismissal of suit; Lack of
documentary evidence; Entitlement to relief; Estranged wife; Pending litigations (divorce, maintenance,
criminal proceedings), Property dispute between spouses; Inherent lack of jurisdiction; Family Court
jurisdiction; s. 7 of Family Courts Act; Exclusive cognizance; Civil court lacking jurisdiction; Nullity of decree;
Restoration of suit; Return of plaint ; Competent court; Adjudication on merits, Direction to decide suit afresh;
Appeal allowed

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 95 of 2026

From the Judgment and Decree dated 19.10.2024 passed by the Additional Civil Judge (S.D.) Court No.10,
Ghaziabad in O.S. No.544 of 2020

Appearances for Parties
Advs. for the Appellant:
Naveen Kumar, Raj Kumar Gupta, Satish, Shanu Bhatt

Advs. for the Respondent:
Gulab Chand Bharati, Ishwar Chandra Srivastava, Kaushlendra

(Delivered by Hon'ble Sandeep Jain, J.)

1. The instant appeal has been filed under Section 96 CPC against the impugned judgment and
decree dated 19.10.2024 passed by the Additional Civil Judge (S.D.) Court No.10, Ghaziabad in
O.S. No.544 of 2020 (Sachin Kumar Vs. Smt. Nidhi Dohre and another), whereby the plaintiff's
suit for the relief of mandatory injunction for directing the defendant No.2 Agrawal Associates
(Promoters) Ltd, for executing the sale deed of the disputed property solely in favour of the
plaintiff and for restraining the estranged wife-defendant No.1 from creating any hindrance, has
been dismissed.

2. The appeal is admitted.

3. The factual matrix is that the plaintiff-appellant, Sachin Kumar, and defendant No.1, Smt.
Nidhi Dohre, are husband and wife, whose marriage was solemnized on 14.02.2015 in accordance
2 All. Sachin Kumar Vs. Smt. Nidhi Dohre & Anr.
1185
with Hindu rites and rituals. After the marriage, they resided at Flat No. C-306, Neelgiri
Apartment, Kaushambi, Ghaziabad.

4. It is the case of the plaintiff that in the year 2017 he booked flat No. K/C.A.1002, having a
carpet area of 723.761 square feet, Type-4, in Block (A) on the tenth floor in Aditya World City,
village Shahpur Bamheta, Ghaziabad, for a total consideration of Rs.26,11,607/- from defendant
No.2. It was further averred that, since defendant No.1 was his wife, due to love and affection, he
included her as a joint/benami owner of the said flat at the time of booking of the flat. Accordingly,
an advance amount of Rs.1,46,250/- was paid through cheque on 15.11.2017, and thereafter, on
21.11.2017, the remaining amount was paid from the plaintiff?s bank account No. 072201501425
to defendant No.2. Subsequently, on 06.01.2018, an allotment letter with respect to the flat,
hereinafter referred to as disputed property, was issued by defendant No.2.

5. It was further averred that the disputed property was purchased by obtaining a loan from
Indiabulls Housing Finance Limited, Delhi, in which defendant no. 1 was co-borrower, since in the
allotment letter she was benami joint owner. It was further averred that on 17.02.2018, an amount
of Rs.22,56,536/- was paid by cheque/DD No. 663631, and further, on 27.03.2018, an amount of
Rs.1,33,867/- was paid by cheque/DD No. 699666 to defendant No.2 by plaintiff. It was also
averred that the housing loan was being repaid by the plaintiff alone through EMIs of Rs.22,097/-,
from his salary account.

6. It is the case of the plaintiff that his wife/defendant No.1 has not paid any amount towards
the purchase of the disputed property and that only due to love and affection he included her as a
benami co-owner at the time of allotment, whereas he is the real and absolute owner of the
property. Therefore, he claims entitlement to have the sale deed of the disputed property executed
solely in his favour.

7. It was further averred that subsequently the intention of defendant No.1 turned malafide and
ideological differences arose between the husband and wife, due to which on 05.12.2018 the
defendant No.1 left the matrimonial home and deserted the plaintiff. Thereafter, criminal litigation
was also initiated by the estranged wife against the plaintiff. It was also averred that the plaintiff
filed a suit under Section 9 of the Hindu Marriage Act for restitution of conjugal rights, which is
pending before the competent court. It was also averred that the plaintiff was in possession of the
disputed property since 09.04.2019, which was handed by defendant no.2.

8. In this background, the plaintiff requested defendant No.2 to execute the sale deed of the
disputed property solely in his favour. However, when defendant No.2 refused to do so, the
plaintiff filed the present suit seeking the following reliefs:-

(i) That a decree of mandatory injunction be granted in favour of the plaintiff and against
the defendants, directing defendant No.2 to execute the sale deed of the disputed property solely in
favour of the plaintiff, and defendant No.1 be restrained from causing any hindrance therein;

(ii) That the cost of the suit be awarded to the plaintiff against the defendants; and
1186 INDIAN LAW REPORTS ALLAHABAD SERIES

(iii) Any other relief which the Court may deem fit and proper in the facts and
circumstances of the case.

9. The written statement was filed by defendant No.2 before the Trial Court, wherein it was
averred that the disputed property is in joint ownership of the plaintiff and defendant No.1 and,
therefore, defendant No.2 was legally bound to execute the sale deed in favour of both joint
allottees. It was further averred that the plaintiff had no cause of action to file the suit against
defendant No.2. Indiabulls Housing Finance Ltd. is a necessary party to the suit. The plaintiff and
defendant no.1 are liable to pay outstanding amount of Rs. 4,64,189/- to it.

10. It is apparent from the record that defendant No.1 failed to appear before the Trial Court,
and consequently substituted service was effected upon her through publication in a local
newspaper, which was deemed sufficient. Thereafter, by order dated 06.02.2023, the suit was
proceeded ex-parte against defendant No.1.

11. The Trial Court concluded that since the disputed property was purchased jointly by
plaintiff and defendant No.1, the plaintiff was not entitled to seek execution of the sale deed solely
in his favour, being bound by the terms and conditions of the agreement. The Trial Court further
held that the plaintiff failed to produce any documentary evidence to establish payment of the entire
sale consideration to defendant No.2. It was also held that, as the allotment of the disputed property
was made jointly, defendant No.2 cannot be directed to execute the sale deed solely in favour of the
plaintiff. On these grounds, the suit was dismissed.

12. Aggrieved by the said judgment and decree, the plaintiff has filed the present appeal.

13. It is undisputed that the disputed property stands in the joint names of the plaintiff and
defendant No.1. The assertion of the plaintiff is that he purchased the property benami in the joint
name of his wife purely out of love and affection and that the entire consideration was paid by him
alone. The plaintiff seeks execution of the sale deed exclusively in his favour on this basis.

14. It is also apparent that several litigations relating to divorce, maintenance, and criminal
proceedings regarding demand of dowry are pending between the husband and wife before
different courts. The core dispute pertains to property rights between the spouses, and jurisdiction
for adjudication of such disputes vests in the Family Court constituted under the Family Courts
Act, 1984.

15. Section 7 of The Family Courts Act,1984, reads as under:-

7. Jurisdiction.----(1) Subject to the other provisions of this Act, a Family Court shall?

(a) have and exercise all the jurisdiction exercisable by any district court or any
subordinate civil court under any law for the time being in force in respect of suits and proceedings
of the nature referred to in the Explanation; and
2 All. Sachin Kumar Vs. Smt. Nidhi Dohre & Anr.
1187

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a
district court or, as the case may be, such subordinate civil court for the area to which the
jurisdiction of the Family Court extends.

Explanation.?The suits and proceedings referred to in this sub-section are suits and
proceedings of the following nature, namely:?

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of
marriage (declaring the marriage to be null and void or, as the case may be, annulling the
marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage;

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the
matrimonial status of any person;

(c) a suit or proceeding between the parties to a marriage with respect to the property of
the parties or of either of them;

(d) a suit or proceeding for an order or injunction in circumstances arising out of a
marital relationship;

(e) a suit or proceeding for a declaration as to the legitimacy of any person;

(f) a suit or proceeding for maintenance;

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or
access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and
exercise?

(a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX
(relating to order for maintenance of wife, children and parents) of the Code of Criminal
Procedure, 1973 (2 of 1974); and

(b) such other jurisdiction as may be conferred on it by any other enactment.

16. Explanation (c) of Section 7(1) of the Family Courts Act,1984 provides that suits or
proceedings between the parties to a marriage with respect to the property of the parties or of either
of them, are only cognizable by the Family Court.

17. In the present case, the suit was not instituted before the Family Court but was adjudicated
by the Court of the Additional Civil Judge (Senior Division), Court No. 10, Ghaziabad, which
lacked inherent jurisdiction to entertain and decide the matter. In view of the above patent defect,
this Court is not required to examine the impugned judgment on merits.
1188 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Learned counsel for the plaintiff/appellant submitted that the findings recorded by the trial
court, be set aside, otherwise they will operate as res judicata.

19. The Apex Court in the case of Prem Kishore and others vs Brahm Prakash and others
(2023) 19 SCC 244, reiterating the essential principles for application of res judicata, held as
under:-

33. ......(iii) To determine whether a suit is barred by res judicata, it is necessary that (a)
the ?previous suit? is decided, (b) the issues in the subsequent suit were directly and substantially
in issue in the former suit; (c) the former suit was between the same parties or parties through
whom they claim, litigating under the same title; and (d) that these issues were adjudicated and
finally decided by a court competent to try the subsequent suit;....

(emphasis supplied)

20. The Apex Court in the case of Sushil Kumar Mehta vs Gobind Ram Bohra (Dead) Thr.
LRS. (1990) 1 SCC 193 (By 3 Judges), held as under:-

26. Thus it is settled law that normally a decree passed by a court of competent
jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a
subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest
from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In
subsequent proceedings its validity cannot be questioned. A decree passed by a court without
jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or
jurisdiction, lacks inherent jurisdiction. It is a coram non judice. A decree passed by such a
court is a nullity and is non est. Its invalidity can be set up whenever it is sought to be enforced
or is acted upon as a foundation for a right, even at the stage of execution or in collateral
proceedings. The defect of jurisdiction strikes at the authority of the court to pass a decree which
cannot be cured by consent or waiver of the party. If the court has jurisdiction but there is defect in
its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial
could be waived by the party. They could be corrected by way of appropriate plea at its inception
or in appellate or revisional forums, provided law permits. The doctrine of res judicata under
Section 11 CPC is founded on public policy. An issue of fact or law or mixed question of fact and
law, which are in issue in an earlier suit or might and ought to be raised between the same parties
or persons claiming under them and was adjudicated or allowed uncontested becomes final and
binds the parties or persons claiming under them. Thus the decision of a competent court over the
matter in issue may operate as res judicata in subsequent suit or proceedings or in other
proceedings between the same parties and those claiming under them. But the question relating to
the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or
law or mixed questions does not operate as res judicata even between the parties or persons
claiming under them. The reason is obvious; a pure question of law unrelated to facts which are
the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res
judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded
on fact in issue would operate as res judicata. But when the law has since the earlier decision been
altered by a competent authority or when the earlier decision declares a transaction to be valid
2 All. Smt. Usha Vs. Sri Kalau Ram & Ors.
1189
despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a
court or of a procedure or a pure question of law unrelated to the right of the parties founded
purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A
question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be
deemed to have been finally determined by an erroneous decision of a court. Therefore, the
doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks
jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare
legislation are created, the doctrine of waiver also does not apply to a case of decree where the
court inherently lacks jurisdiction.

(emphasis supplied)

21. Accordingly, the judgment and decree passed by the Trial Court is without jurisdiction and
is a nullity, in the eye of law. On this ground alone, the impugned judgment and decree is liable to
be set aside. It is apparent that any finding recorded by a court lacking inherent jurisdiction, does
not operate as res judicata, between the parties.

22. Since the dispute relates to property rights between husband and wife, the suit is
exclusively cognizable by the Family Court.

23. In view of the aforesaid facts and circumstances, the appeal is liable to be allowed.

24. Accordingly, the appeal is allowed. The impugned judgment and decree dated
19.10.2024 is hereby set aside.

25. Original Suit No. 544 of 2020 is restored to its original number, and the Trial Court is
directed to return the plaint to the plaintiff under Order VII Rule 10 CPC for presentation before the
competent Family Court.

26. The concerned Family Court is directed to decide the suit afresh, within a period of six
months, from the date the plaint is presented to it, without affording unnecessary adjournment to
either of the parties, in accordance with law, on merits.
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(2026) 2 ILRA 1189
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 168 of 2026

Smt. Usha ...Appellant
Versus
Sri Kalau Ram & Ors. ...Respondents