# Smt. Zaibunisha v. Sanjeev Kumar

- **Citation:** (2026) 2 ILRA 1173
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2026-02-05
- **Case number:** First Appeal No. 29 of 2026
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-zaibunisha-v-sanjeev-kumar-54114
- **Pages:** 11

## Text

2 All. Smt. Zaibunisha Vs. Sanjeev Kumar
1173

24. The present criminal revision is allowed subject to the directions/observations made
above.

25. There shall be no order as to costs.
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(2026) 2 ILRA 1173
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 05.02.2026

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 29 of 2026

Smt. Zaibunisha ...Appellant
Versus
Sanjeev Kumar ...Respondent

Issue for Consideration
Matter pertains to whether a suit for permanent injunction simpliciter is maintainable, and relief thereof
grantable, on the strength of an unregistered agreement to sell which does not confer any right, title, or
interest in immovable property, in light of the bar u/s 41(h) of Specific Relief Act, 1963 and the statutory
mandate regarding registration in the State of Uttar Pradesh.

Headnotes
Code of Civil Procedure, 1908 - s. 96 - Registration Act, 1908 - s. 49 - Specific Relief Act, 1963 -
ss. 38, 41(h) - Permanent Injunction - Maintainability of - No enforceable right - Unregistered
Agreement to Sell - The plaintiff - appellant instituted a suit seeking a decree of permanent
injunction restraining the defendant from interfering with her alleged peaceful possession over
the disputed immovable property and from alienating the same, asserting rights on the basis of
an agreement to sell dated 16.01.2020, whereby the defendant had purportedly agreed to
transfer the property for a total consideration of Rs. 65,00,000/-, out of which Rs. 5,00,000/-
was paid as earnest money, with the stipulation that the sale deed would be executed by
15.09.2022 after obtaining requisite permission from the competent authority, the defendant
being a member of a Scheduled Caste, however, upon the defendant's failure to execute the sale
deed, the plaintiff, claiming readiness and willingness to perform her part of contract, sought to
protect her possession through the instant First Appeal, which came to be dismissed by the High
Court on the ground that the agreement to sell was unregistered and unstamped and, therefore,
inadmissible in evidence and incapable of conferring any enforceable right.

Held: The trial court has considered all the facts and has rightly concluded that the plaintiff/appellant cannot
be granted the relief of permanent injunction against the true owner on the basis of unregistered agreement
to sell, which does not confer any right title or interest in the plaintiff/appellant regarding the disputed
property - There is no perversity in the impugned judgment of trial court warranting interference by Court in
exercise of its appellate jurisdiction - Accordingly, the instant appeal meritless and dismissed at the
admission stage. [Paras 15, 16] (E-13)

Case Law Cited
1174 INDIAN LAW REPORTS ALLAHABAD SERIES
Balram Singh v. Kelo Devi (2024) 12 SCC 723; Prem Kumar and Others v. Gurudev Singh and others 2024
SCC OnLine All 7420; Padhiyar Prahladji Chenaji (Deceased) Thr. LRS. v. Maniben Jagmalbhai (Deceased)
Thr. LRS. And others (2022) 12 SCC 128; Yellapu Uma Maheshwari and another v. Buddha
Jagadheeswararao and others (2015) 16 SCC 787; Vinod Kumar and others v. Sudha Land Ventures and
Homes Pvt. Ltd. 2015 SCC OnLine All 8778 - referred to

List of Acts
Code of Civil Procedure, 1908; Registration Act, 1908; Specific Relief Act, 1963

List of Keywords
Appeal u/s 96 CPC; Permanent injunction; Peaceful possession; Encroachment; Alienation/transfer of
property; Agreement to sell; Earnest money; Execution of sale deed; Readiness and willingness; Competent
authority permission; Unregistered and unstamped document; Inadmissibility in evidence; No right title or
interest; Defect in stamp duty; Specific performance as efficacious remedy; Simpliciter suit for injunction; Bar
u/s 41(h) of Specific Relief Act; Applicability of ss. 38 and 41; True owner; No perversity; Meritless appeal;
Dismissal at admission stage; O. XLI R. 11 CPC; Affirmation of trial court decree.

Case Arising From
APPELLATE JURISDICTION: First Appeal No. - 29 of 2026

From Judgment and Decree dated 09.10.2025 passed by J.S.C.C./Civil Judge (S.D.), Saharanpur in O.S.
No.108 of 2025 (Old Original Suit No.1330 of 2024)

Appearances for Parties

Adv. for the Appellant:
Birendra Kumar

Adv. for the Respondent:
Nil

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

1. The instant appeal has been filed by the plaintiff under Section 96 C.P.C. against the
impugned judgment and decree dated 09.10.2025 passed by J.S.C.C./Civil Judge (S.D.),
Saharanpur in O.S. No.108 of 2025 (Old Original Suit No.1330 of 2024) (Smt. Zaibunisha vs.
Sanjeev Kumar) whereby the plaintiff's suit for the relief of permanent injunction for restraining the
defendant from interfering in her peaceful possession and encroachment of the disputed property
and for restraining the defendant from alienating or

2. Learned counsel for the plaintiff-appellant submitted that it was agreed upon between the
plaintiff and defendant by agreement dated 16.01.2020 that the disputed property would be sold for
a consideration of Rs.65,00,000/- to the plaintiff and out of that amount the plaintiff also paid
Rs.5,00,000/- in cash towards earnest money to the defendant. It was also agreed that the defendant
would execute the sale deed till 15.09.2022 but subsequently the defendant failed to execute the
sale deed in favour of the plaintiff. It was further submitted that the defendant belongs to scheduled
caste, as such, it was incumbent for the defendant to obtain permission from the competent
authority for selling the disputed land and thereafter, the defendant was supposed to execute the
sale deed in favour of the plaintiff, but the defendant failed to do so. It was further submitted that
2 All. Smt. Zaibunisha Vs. Sanjeev Kumar
1175
the plaintiff always remained ready and willing to fulfill the terms of the contract but since the
defendant failed to execute the sale deed in favour of the plaintiff, as such, in order to protect her
possession of the disputed property, the plaintiff was compelled to file the suit for the relief of
permanent injunction, which has been erroneously rejected by the trial court on the ground that the
alleged agreement on the basis of which the plaintiff was asserting her rights in the disputed
property was unregistered and unstamped, therefore, on its basis, the plaintiff cannot claim any
right and interest in the disputed property. Learned counsel further submitted that the above finding
of the trial court is perverse because even if the alleged agreement was unregistered even then, it
was admissible for collateral purposes under Section 49 of the Registration Act, 1908 but this fact
has not been considered by the trial court. With these submissions, it was prayed that the appeal be
admitted for hearing.

3. I have heard the learned counsel for the appellant and perused the impugned judgment and
documents submitted with the appeal.

4. The Apex Court in the case of Balram Singh vs Kelo Devi (2024) 12 SCC 723, wherin the
plaintiffs sought relief of permanent injunction restraining the defendant from disturbing her
possession in the suit property in Uttar Pradesh on the basis of unregistered agreement to sell, held
as under:-

"6. At the outset, it is required to be noted that the original plaintiff instituted a suit
praying for a decree of permanent injunction only, which was claimed on the basis of the
agreement to sell dated 23-3-1996. However, it is required to be noted that the agreement to sell
dated 23-3-1996 was an unregistered document/agreement to sell on ten rupees stamp paper.
Therefore, as such, such an unregistered document/agreement to sell shall not be admissible in
evidence.

7. Having been conscious of the fact that the plaintiff might not succeed in getting the
relief of specific performance of such agreement to sell as the same was unregistered, the
plaintiff filed a suit simpliciter for permanent injunction only. It may be true that in a given case,
an unregistered document can be used and/or considered for collateral purpose. However, at the
same time, the plaintiff cannot get the relief indirectly which otherwise he/she cannot get in a
suit for substantive relief, namely, in the present case the relief for specific performance.

8. Therefore, the plaintiff cannot get the relief even for permanent injunction on the basis
of such an unregistered document/agreement to sell, more particularly when the defendant
specifically filed the counterclaim for getting back the possession which was allowed by the
learned trial court. The plaintiff cleverly prayed for a relief of permanent injunction only and did
not seek for the substantive relief of specific performance of the agreement to sell as the agreement
to sell was an unregistered document and therefore on such unregistered document/agreement to
sell, no decree for specific performance could have been passed. The plaintiff cannot get the relief
by clever drafting.

9. In view of the above and for the reasons stated above, both, the learned first appellate
court and the High Court have committed a grave error in passing a decree for permanent
1176 INDIAN LAW REPORTS ALLAHABAD SERIES
injunction in favour of the plaintiff as against the defendant and dismissing the counterclaim filed
by the original defendant."

(emphasis supplied)

5. This Court in the case of Prem Kumar and Others vs Gurudev Singh and others 2024 SCC
OnLine All 7420, held as under:-

"Re :- First Question : - Whether a decree for specific performance based upon an
unregistered for sale dated 31.05.1977 is at all sustainable"

18. In view of the questions framed by this Court, it is not necessary to comment upon
requirement or no requirement of getting the AFS re-registered in the State of U.P. and whether the
plaintiff was obliged or not obliged to do that, is irrelevant as the Court has to examine validity of
the decree based upon unregistered agreement, whatever might have been the reason behind its
non-registration.

19. As regards requirement of registration of an AFS, it is to note that the U.P. Civil
Laws (Reforms and Amendment) Act, 1976 (U.P. Act No. 57 of 1976) came into force w.e.f. 1-11977. This Act amended the Registration Act, 1908 as well as the Transfer of Property Act, 1882,
besides several other enactments. Section 54 of the Transfer of Property Act, 1882, as applicable to
the State of U.P., w.e.f. 1-1-1977, reads as under:

"Section 54. "Sale" is a transfer of ownership in exchange for a price paid or promised
or part-paid and part-promised.

Sale how made- Such transfer, in the case of tangible immovable property [***], or in
the case of a reversion or other intangible thing, can be made only by a registered instrument.

Contract of Sale- A contract for the sale of immovable property is a contract that a sale
of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

Such contract can be made only by a registered instrument."

20. Section 3 of the Transfer of Property Act, 1882 defines-

"Instrument- as a non testamentary instrument

"Registered- means registered in any part of the territories to which this Act extends
under the law for the time being in force regulating the registration of documents."
2 All. Smt. Zaibunisha Vs. Sanjeev Kumar
1177

21. Section 17 of the Registration Act, 1908 Act provides that certain documents are
required to be compulsorily registered and, other documents are exempted from being registered.
Section 17(1)(b) of the Registration Act, 1908, as applicable in the State of U.P., reads as under:

"Section 17(1)- The following documents shall be registered- (1) The following
documents shall be registered, if the property to which they relate is situate in a district in which,
and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian
Registration Act, 1877, or this Act came or comes into force, namely:"

................

(b) other non-testamentary instruments which purport or operate to create, declare,
assign, limit or extinguish, whether in present or in future, any right, title or interest, whether
vested or contingent to in immovable property."

22. Section 17(2)(v) of the Act of 1908 reads as under:

"Section 17(2)- Nothing in clauses (b) and (c) of sub-section (1) applies to-

(v) any documents other than documents specified in sub-section (1-A)] [other than
contract for sale] not itself creating, declaring, assigning, limiting or extinguishing any right, title
or interest to or in immovable property, but merely creating a right to obtain another document
which will, when executed, create, declare, assign, limit or extinguish any such right, title or
interest or;

The words "other than contract for sale" occurring in Section 17(2)(v) of the
Registration Act have been inserted by U.P. Act No. 57 of 1976 w.e.f. 1-1-77.

23. Section 4 of the Transfer of Property Act, 1882 reads as under:

"4. Enactments relating to contracts to be taken as part of Contract Act and
supplemental to the Registration Act. - The chapters and sections of this Act which relate to
contracts shall be taken as part of the Indian Contract Act, 1872 (IX of 1872).

[And Section 54, Paragraphs 2 and 3, 59, 107 and 123 shall be read as supplemental to
the Indian Registration Act, 1908 (XVI of 1908).]"

24. Thus, from a combined reading of Sections 3, 4 and 54 of the Act of 1882 and, Section
17 of the Act of 1908, as applicable to the State of U.P., as amended by U.P. Act 57 of 1976, it is
clear that every contract of sale of an immovable property situated in any district of U.P. shall be
made only by a registered instrument. Even though a contract for sale of immovable property does
not by itself create any interest in or charge on such property and only creates a right to obtain
another document which will, when executed, create, declare, assign, limit or extinguish any such
right, title or interest, nonetheless, the said contract for sale of an immovable property is required
to be registered in the State of U.P. w.e.f. 1-1-1977.
1178 INDIAN LAW REPORTS ALLAHABAD SERIES

25. The next question which arises for consideration is whether an unregistered
document for sale of an immovable property, could still be enforced in a suit for specific
performance. At this stage, the Court may refer to Section 49 contained in the Registration Act,
1908 alongwith U.P. Amendments made therein by U.P. Act No. 57 of 1976, w.e.f. 01.01.1977. A
careful perusal of the amendments made would reflect that certain provisions relating to
admissibility of an unregistered agreement in a suit for specific performance have been "omitted"
and requirement of registration has been "inserted." The provision reads as under:"

Central Act

"49. Effect of non-registration of documents required to be registered.- No document
required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be
registered shall-

(a) affect any immovable property comprised therein, or

(b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such
power,

unless it has been registered:

[Provided that an unregistered document affecting immovable property and required by
this Act, or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as
evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief
Act, 1877 (3 of 1877) [***] or as evidence of any collateral transaction not required to be effected
by registered instrument.]

In Uttar Pradesh:

In Section 49,-

(i) in the first paragraph, after the words "or by any provision of the Transfer of Property
Act, 1882", insert the words "or of any other law for the time being in force";

(ii) for clause (b), substitute the following clause, namely : -

(b) confer any power or create any right or relationship, or";

(iii) in clause (c), after the words "such power", insert the words "or creating such right
or relationship";

(iv) in the proviso, omit the words "as evidence of a contract in a suit for specific
performance under Chapter II of the Specific Relief Act, 1877, or."
2 All. Smt. Zaibunisha Vs. Sanjeev Kumar
1179

[Vide Uttar Pradesh Act 57 of 1976, sec. 34 (w.e.f. 1--1-1977).]"

26. The result of these amendments is, that, prior to 01.01.1977, an unregistered contract
for sale qua immovable property situated in U.P. could be enforced in a suit for specific
performance of a contract, but after the amendment in Section 49 of the Registration Act w.e.f.
01.01.1977, an unregistered agreement cannot be enforced in a suit for specific performance of a
contract nor can it be read in evidence."

6. The Apex Court in the case of Padhiyar Prahladji Chenaji (Deceased) Thr. LRS. vs.
Maniben Jagmalbhai (Deceased) Thr. LRS. And others (2022) 12 SCC 128, held as under:-

"18. Even otherwise on merits also, the courts below have erred in passing the decree of
permanent injunction restraining Defendant 1 from disturbing the alleged possession of the
plaintiff. Assuming for the sake of argument that the plaintiff is found to be in possession, in that
case also, once the plaintiff has lost so far as the relief of declaration and title is concerned and
Defendant 1 is held to be the true and absolute owner of the property in question, pursuant to the
execution of the sale deed dated 17-6-1975 in his favour, the true owner cannot be restrained by
way of an injunction against him. In a given case, the plaintiff may succeed in getting the
injunction even by filing a simple suit for permanent injunction in a case where there is a cloud
on the title. However, once the dispute with respect to title is settled and it is held against the
plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable
against the true owner. In such a situation, it will not be open for the plaintiff to contend that
though he/she has lost the case so far as the title dispute is concerned, the defendant " the true
owner still be restrained from disturbing his/her possession and his/her possession be protected."

(emphasis supplied)

7. The Apex Court in the case of Yellapu Uma Maheshwari and another vs. Buddha
Jagadheeswararao and others (2015) 16 SCC 787, while analysing Section 17 and 49 of the
Registration Act,1908, has held that a document which has the effect of creating and taking away
the rights in respect of an immovable property, is compulsorily registrable and if not registered, is
not admissible in evidence, however, it can be relied upon for collateral purpose, subject to
payment of stamp duty, penalty, proof and relevancy.

8. A Division Bench of this Court in the case of Vinod Kumar and others vs. Sudha Land
Ventures and Homes Pvt.Ltd. 2015 SCC OnLine All 8778 has also considered the issue whether
on the basis of unregistered agreement to sell, temporary interim injunction under Order 39 Rule 1
CPC or perpetual injunction under Specific Relief Act,1963 can be granted to the plaintiff. The
relevant paragraphs of the above judgment read as under:-

"14. In the case of K.B. Saha and Sons Pvt. Ltd. v. Development Consultant Ltd., [2008
(72) ALR 638 (SC).] the Hon'ble Apex Court noticed following facts as stated by Mulla in his
Indian Registration Act, 7th Edition, at page 189.
1180 INDIAN LAW REPORTS ALLAHABAD SERIES

"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam,
Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu and Kashmir; the former Chief Court of
Oudh; the Judicial Commissioner's Court of Peshawar, Ajmer and Himachal Pradesh and the
Supreme Court have held that a document which requires registration under section 17 and which
is not admissible for want of registration to prove a gift or mortgage or sale or lease is
nevertheless admissible to prove the character of the possession of the person who holds under it."

15. The Apex Court culled out the following principles:

1. "A document required to be registered is not admissible into evidence under section 49
of the Registration Act.

2. Such unregistered document can however be used as an evidence of collateral purpose
as provided in the Proviso to section 49 of the Registration Act.

3. A collateral transaction must be independent of, or divisible from, the transaction to
effect which the law required registration.

4. A collateral transaction must be a transaction not itself required to be effected by a
registered document, that is, a transaction creating, etc. any right, title or interest in immoveable
property of the value of one hundred rupees and upwards.

5. If a document is inadmissible in evidence for want of registration, none of its terms can
be admitted in evidence and that to use a document for the purpose of proving an important clause
would not be using it as a collateral purpose."

16. The word, "collateral transaction" has been interpreted as transaction in itself not
required to be effected by a registered document, i.e., a transaction creating any right, title or
interest in immovable property of the value of Rs. 100/- and onwards.

17. Learned Counsel for the respondent contends that even if the two sale-deeds were not
registered, but they should certainly be looked into for collateral purpose and a bare perusal of two
sale-deeds reveals that on 21.2.2014 and 22.2.2014, the respondent/plaintiff was put on possession
of plots in suit and in view of above, learned Counsel tried to justify the impugned order.

18. This proposition is correct that if a document is invariably registrable and has not
been registered, it will be admissible in evidence only for collateral purposes but collateral
purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed
created or declared or assigned or limited or extinguish the right to immovable property. If the
document is unregistered then it could not be used for showing that it created, declared, assigned
or extinguish a right to immovable property. The term collateral purpose could not permit the party
to establish any of these acts from the deed.

19. In our opinion, the contention that it could be used for collateral purpose for delivery
of possession does not support the case of the plaintiff-respondent at all because by way of State
2 All. Smt. Zaibunisha Vs. Sanjeev Kumar
1181
Amendment in Order XXXIX, Rule 2, Sub Rule (2) proviso (a), C.P.C., a bar has been created w.e.f.
1.2.1977.

20. In Rule 2, in sub-rule (2), the following proviso has been added by State Amendment:

"Provided that no such injunction shall be granted"

(a) where no perpetual injunction could be granted in view of the provisions of section 38
and section 41 of the Specific Relief Act, 1963."

21. A bare perusal of Order XXXIX, Rule 2, Sub Rule (2) proviso (a), C.P.C., reveals that
temporary injunction shall not be granted where no perpetual injunction could be granted in view
of provisions of sections 38 and 41 of Specific Relief Act, 1963.

22. Section 38 of Specific Relief Act deals with provisions when temporary injunctions
can be granted and section 41 deals with provisions when injunction can be refused.

23. Provisions of section 41 of Specific Relief Act is as under:

41. Injunction when refused.-An injunction cannot be granted"

"(a) to restrain any person from prosecuting a judicial proceeding pending at the
institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent
a multiplicity of proceedings;
(b) to restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that from which the injunction is sought;

(c) to restrain any person from applying to any Legislative body;

(d) to restrain any person from instituting or prosecuting any proceeding in a criminal
matter;

(e) to prevent the breach of a contract the performance of which would not be specifically
enforced;

(f) to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it
will be a nuisance;

(g) to prevent a continuing breach in which the plaintiff has acquiesced;

(h) when equally efficacious relief can certainly be obtained by any other usual mode of
proceeding except in case of breach of trust;

(i) when the conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the Court;
1182 INDIAN LAW REPORTS ALLAHABAD SERIES

(j) when the plaintiff has no personal interest in the matter."

24. A perusal of provisions of section 41(h) of Specific Relief Act reveals that when
equally efficacious relief can certainly be obtained by any other usual mode of proceeding except
in case of breach of trust, then there is no ground to grant injunction."

9. The plaintiff-appellant has annexed with the appeal the copy of the alleged agreement to sell
dated 16.01.2020, which was executed between the defendant/vendor Sanjeev Kumar and
plaintiff/vendee Smt. Zaibunisha, which disclosed that it was agreed between the parties that for a
sale consideration of Rs.65 lacs, out of which Rs.5 lacs was received as earnest money by the
vendor, a sale deed regarding the disputed land would be executed by 15.09.2022, after obtaining
the balance sale consideration of Rs.60 lacs by the vendor.

10. It is further apparent that since the vendor belongs to scheduled caste community, as such,
as per the relevant statutory provisions, he was required to obtain permission from the competent
authority for selling the disputed land to the vendee and after that, the sale deed was to be executed
in favour of the vendee.

11. It is apparent that the above alleged agreement to sell is an unstamped and unregistered
document, which is inadmissible in evidence, on the basis of which, no relief can be granted to the
plaintiff. It is further apparent that the plaintiff could have cured the defect by making good the
deficiency of stamp duty on the agreement and could have also got it registered and then the
plaintiff was certainly entitled to file the suit for the relief of specific performance of the agreement
to sell, but the plaintiff has not chosen to do so.

12. It is further apparent that after curing the defect in the agreement to sell, an equally
efficacious remedy for specific performance of the agreement to sell was available to the plaintiff,
but instead of availing that remedy, the plaintiff has filed the suit for the relief of permanent
injunction, which is legally not maintainable and is barred under Section 41(h) of the Specific
Relief Act,1963. It is further apparent that on the basis of the above alleged agreement, no right
title or interest is vested in the plaintiff insofar as the disputed land is concerned.

13. It is apparent that in the instant case, since the provisions of Section 38 and 41 (h) of the
Specific Relief Act, 1963 are attracted, as such, no perpetual injunction can be granted by any
court.

14. It is further evident that the defendant is the true owner of the disputed property and
against the true owner, the plaintiff is not entitled to the relief of permanent injunction more
particularly when no right title or interest is vested in the plaintiff on the basis of the alleged
unregistered and unstamped agreement to sell dated 16.01.2020.

15. The trial court has considered all the above facts and has rightly concluded that the
plaintiff cannot be granted the relief of permanent injunction against the true owner on the basis of
unregistered agreement to sell, which does not confer any right title or interest in the plaintiff
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