# Subodh Kumar Agarwal v. Sri Manoj Kumar Agarwal

- **Citation:** (2025) 11 ILRA 1104
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-11-18
- **Case number:** First Appeal No. 623 of 2019
- **Bench:** Sandeep Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subodh-kumar-agarwal-v-sri-manoj-kumar-agarwal-52621
- **Pages:** 38

## Text

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1104 INDIAN LAW REPORTS ALLAHABAD SERIES

20. On the pointed query, being made
to the learned counsel for the revisionist, as
to whether there was any jurisdictional
error committed by the court below in
rejecting the application moved by the
revisionist/applicant under Section 319
Cr.P.C. Learned counsel for the revisionist
only argued on factual score.

21. This Court in exercise of the
revisional jurisdiction cannot embark upon
the inquiry with regard to the facts of the
case, particularly when the Court below
had applied its mind and taken a view
which does not appears to be perverse and
palpable while rejecting application under
Section 319 Cr.P.C.

22. The applicant in the present
revision, is trying to insist this revisional
Court to go into the factual issues, which
cannot be gone into in the present facts of
the case, as this Court is of firm opinion
that there exist sufficient material which
itself shows that the powers exercised by
the Court below while rejecting his
application, does not suffer from any
illegality and infirmity.

23. The learned counsel for the
revisionist has also not disputed the legal
position, so culled out by Apex Court in
relation to the scope and ambit of the
powers under Section 319 Cr.P.C., and
further he has not been able to bring on
record, any material to show that the
findings recorded by Court below while
rejecting
the
application
of
the
revisionist/applicant,
suffers
from
any
perversity or illegality. No good ground is
made out, so as to justify interference by
this Revisional Court.

24. Accordingly, the present revision
lacks merit and the same is dismissed.
----------
(2025) 11 ILRA 1104
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.11.2025

BEFORE

THE HON'BLE SANDEEP JAIN, J.

First Appeal No. 623 of 2019

Subodh Kumar Agarwal ...Appellant
Versus
Sri Manoj Kumar Agarwal ...Respondent

Counsel for the Appellant:
Anil Kumar Paney, Arvind Srivastava

Counsel for the Respondent:
Chhaya Gupta, Sujeet Kumar, Udayan
Nandan

ISSUE FOR CONSIDERATION
1. Whether the mother the sole owner of the
disputed property, and were the gift deeds
executed in favour of the plaintiff valid, or void
due to fraud, coercion, undue influence, or
interpolations.
2. Whether the defendant a co-owner of the
property or merely a licensee, and did the
alleged permanent constructions make the
licence irrevocable.

1. Whether the plaintiff entitled to
possession of the property through mandatory
injunction after revocation of licence.

2. Whether the appellate court could
award damages under Order 41 Rule 33 CPC.

HEADNOTES
Civil Law - Code of Civil Procedure, 1908 -
Section 96, Order 6 Rule 4, Order 13 Rule
4, Order 41 Rule 33, Section 99 - Transfer
of Property Act, 1882 - Section 123 -
Indian Easements Act, 1882 - Section 54 -
Indian Registration Act, 1908 - Sections
58, 60 - Specific Relief Act, 1963 - Section
6 - First Appeal U/section 96 of the CPC -
challenging the impugned judgment and decree
- Gift deeds - plaintiff filed an original Suit -
seeking mandatory injunction and mesne profits
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1105
against his real brother - claiming ownership of
the House in question, on the strength of
registered gift deeds executed by their mother -
the defendant challenged the suit - alleging the
gift deeds were fraudulent - and he further
claimed
co-ownership
and
permanent
constructions in the property - The trial court,
after considering pleadings, documents, and
oral evidence, held that mother was the sole
owner, the gift deeds were valid, the defendant
was only a licencee whose licence had been
revoked, and that mandatory injunction was
maintainable
-
The
trial
court
decreed
possession in favour of the plaintiff but refused
mesne profits - defendant filed a first appeal -
Court observed that ownership was conclusively
proved by sale deed, building plans, and the
mother's will - and allegations of fraud and
coercion were vague and unsupported - licence
was duly terminated - constructions were raised
by
the
mother,
not
the
defendant
-
interpolations and non-exhibition of documents
were procedural issues without merit - and
gratuitous possession confers no rights - held,
Court dismissed the appeal, affirmed the trial
court's decree of mandatory injunction, and
directed the defendant to pay damages from the
date of the trial court's decree until vacant
possession is handed over to the plaintiff.(Para
103, 104, 105, 106)

 Appeal Dismissed. (E-11)

CASE LAW CITED
Ramesh B. Desai v. Bipin Vadilal Mehta (2006) 5
SCC 638 - Sant Lal Jain v. Avtar Singh - Gowri
v. Subramaniam - Vimla Devi v. Shriram - Maria
Margarida Sequeira Fernandes v. Erasmo Jack
De Sequeira (2012) 5 SCC 370 - Behram Tejani
v. Azeem Jagani (2017) 2 SCC 759.

LIST OF ACTS
Code of Civil Procedure, 1908 (CPC) - Transfer
of Property Act, 1882 - Indian Easements Act,
1882 - Indian Registration Act, 1908 - Specific
Relief Act, 1963.

LIST OF KEYWORDS
Suit for Specific performance - Agreement to sell
- Limitation period - Fraud and date of
knowledge - Order 7 Rule 11 CPC - Mutation
entries - Earnest money - Cause of action -
Triable issue - Rejection of plaint
CASE ARISING FROM
Original Suit No. 1213 of 2014: Manoj Kumar
Agarwal (Plaintiff) vs. Subodh Kumar Agarwal
(Defendant) - Decided by Additional Judge,
Small Causes Court, Agra on 01.07.2019.

APPEARANCE OF PARTIES
Counsel for Appellant(s): Shri Anil Kumar
Pandey, Arvind Srivastava.
Counsel for Respondent(s): Shri Chhaya Gupta,
Sujeet Kumar, Udayan Nandan.

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

1. The instant appeal under section 96
of the CPC has been preferred by the
defendant in O.S. no. 1213 of 2014 Manoj
Kumar Agarwal versus Subodh Kumar
Agarwal against judgment and decree dated
1.7.2019 passed by the court of Additional
Judge Small Causes Court, Agra, whereby
plaintiff 's suit for the relief of mandatory
injunction has been partially decreed.

Plaint Case

2. The plaintiff-respondent Manoj
Kumar Agarwal filed O.S.no.1213 of 2014
with the averments that he was the owner
of the entire property No. 25/161, Santosh
Bhawan, Gandhinagar, By-pass road, Agra
by virtue of the registered gift deeds dated
6.7.2009 and 9.5.2014 executed by his
mother Smt. Santosh Kumari, in his favour.
He further submitted that much before
execution of the above registered gift
deeds, the defendant had been occupying a
portion of the above property on first floor
towards South shown by letters 'ABCDEF'
and a staircase, as shown in the map
attached with the plaint, as licencee on
behalf of his mother Smt. Santosh Kumari.
After the execution of the above registered
gift deeds, the plaintiff became owner of
the
entire
above-mentioned
property
including the property in the occupation of
the defendant, in which the defendants
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
occupation was under the permission of
plaintiff, merely as licencee. The defendant
is the real brother of the plaintiff. For the
past some time, the plaintiff was asking the
defendant to vacate the property in suit but
the defendant was not willing as such,
plaintiff through his counsel Shri Navin
Kumar Gupta, Advocate served upon the
defendant by registered post A.D. a notice
dated
4.8.2014,
revoking
the
permission/licence granted to the defendant
in respect of the disputed property, which
was duly served upon the defendant but he
failed to comply as such, the plaintiff was
compelled to file the suit for the relief of
mandatory injunction.

3. The plaintiff further averred that at
present, the disputed premises could be
easily let out at the rent of ₹ 30,000/- per
month, as such, pendentilite and future
mesne profits were claimed by the plaintiff
at the above-mentioned rate.

4. The plaintiff claimed the following
reliefs: -

(A) A decree for mandatory
injunction, directing the defendant to
vacate the property in suit and to restore
back its actual vacant possession to the
plaintiff within the time fixed by this
Hon'ble court.

(B) A decree for pendentilite and
future mesne profits @ ₹ 30,000/- per
month with 10% increase every year
alongwith 18% interest be passed in favour
of the plaintiff against the defendant. Court
fees on this amount shall be paid at the time
of execution.

(C) Costs of the suit be awarded
to the plaintiff against the defendant.

(D) Any other relief, which the
court thinks fit and proper, be also granted
to the plaintiff against the defendant.

Written Statement of defendant

5. The defendant - appellant Subodh
Kumar Agarwal submitted his written
statement in the trial court in which he
denied the plaint averments. He averred
that the plaintiff was not the full owner of
the alleged property. The gift deeds dated
6.7.2009
and
9.5.2014
were
illegal,
fraudulent and void document because his
mother Smt. Santosh Kumari had no right
to execute the alleged gift deeds. It was
further averred that he was residing in the
disputed property since childhood and he
was not a licencee on behalf of his mother.
He further submitted that at the relevant
time, his mother was not the owner of the
property. The defendant admitted that the
plaintiff was his real brother. It was further
averred that no request was ever made by
the plaintiff to him to vacate the disputed
property. The plaintiff had no right to file
the suit against him. The notice, if any, was
unauthorised and without title to the
property. Question of mesne profits does
not arise. No cause of action had accrued to
the plaintiff to file the suit. The property
was worth more than ₹ 5 crores. Since, as
per the plaint allegations, the defendant was
a trespasser therefore, the plaintiff ought to
have paid court fees on the valuation of the
house. The suit was undervalued and the
court fees paid was insufficient. The
plaintiff should have sought the relief of
possession. The plaintiff was not entitled to
the relief of mandatory injunction as the
defendant was in possession, as the coowner of the disputed property. The
plaintiff 's suit was barred by principle of
estoppel and acquiescence.
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1107

6. It was further averred that relief of
mandatory injunction can only be claimed
when the defendant was in possession to
some obligation with the plaintiff. The
plaintiff was also like the defendant, coowner of the disputed property. The alleged
licence was never granted, which was a
cock and bull story as the defendant was
residing
in
the
premises
since
his
childhood. The alleged gift deeds were
invalid,
unauthorised
and
had
been
executed
under
coercion
and
undue
influence. Smt. Santosh Kumari was
bedridden, had a fragile health and was not
having senses, was hard of hearing and had
almost lost vision. No gift could have been
executed through power-of-attorney. In
fact, power-of-attorney itself showed the
physical and mental disability of Smt.
Santosh Kumari and it also showed that
under duress and coercion her husband got
power-of-attorney executed in his favour,
as she was not even able to move, in
collusion with the plaintiff. She was an old
and infirm person.

7. It was further averred that since the
plaintiff admitted that the defendant was in
possession
of
the
disputed
property,
therefore, the essential ingredients of the
gift were missing and therefore, the gifts
were void. The gift deed dated 6.7.2009
was incomplete since, it was a partial gift,
therefore, subsequently gift deed dated
9.5.2014
was
executed.
It
was
not
explained by the plaintiff why two gifts of
the same property were executed at two
different times and that too, after a gap of 5
years. The circumstances proved that the
gifts were got executed in suspicious
circumstances, which were void. The
defendant had constructed one room, one
latrine, one kitchen, staircase and lobby
from his own funds in the disputed
premises, without any objection as coowner thereof and therefore, question of
alleged licence does not arise. The details
of licence were wanting. The suit filed by
the plaintiff was frivolous, vexatious and
liable to be dismissed with costs of ₹
50,000/- to the defendant.

Issues framed by the trial court

8. The trial court framed the following
issues: -

(A) Whether the plaintiff was the
owner of the disputed property described in
the plaint? OPP

(B) Whether the defendant was in
occupation in the disputed property as a
licencee of the plaintiff? OPP

(C) Whether the plaintiff was
entitled to get the possession of disputed
property mentioned in the plaint through
decree of mandatory injunction? OPP

(D) Whether the plaintiff was
entitled to get pendentilite and future
mesne profit from the defendant regarding
the disputed property at the rate of ₹
30,000/- per month alongwith interest?
OPP

(E) Whether any cause of action
has arisen to the plaintiff to file the present
suit? OPP

(F)
Whether
the
suit
was
insufficiently valued? OPD

(G) Whether the court fees paid
was insufficient? OPD

(H) Whether the suit was barred
by
the
principle
of
estoppel
and
acquiescence? OPD
1108 INDIAN LAW REPORTS ALLAHABAD SERIES

(I) Whether the court lacked
jurisdiction to hear and decide the suit?
OPD

(J) Whether the plaintiffs' suit
was not legally maintainable? OPD

(K) Whether plaintiff was entitled
to any relief?

Documents filed by
the parties

9. In the trial court the plaintiff filed
the original sale deed dated 15.9.1969
executed
by
Deoki
Nandan
Bibhab,
Managing Director of the Development
Trust(P) Ltd, Agra in favour of Smt.
Santosh Kumari Agarwal, the sanctioned
building plan of the year 1969-70 and
another dated 28.7.1984, original gift deeds
dated 06.7.2009 and 9.5.2014, copy of
registered legal notice dated 4.8.2014 given
by plaintiff to the defendant, original postal
receipt, house tax receipt, carbon copy of
FIR, etc.

10. In the trial court the defendant
filed his original passport, ration card, his
marriage card, original life insurance
premium receipt, certified copy of the will
dated 1.5.2002 executed by his mother Smt.
Santosh Kumari, original legal notice dated
25.11.2013 sent by plaintiffs' counsel
Navin Kumar Gupta, Advocate to the
defendant, photo copy of his driving
licence,
voter
card,
bank
passbook,
electricity bills, certified copy of the gift
deed dated 9.5.2014,etc.

Oral evidence by the parties

11. In the trial court the plaintiff
Manoj Kumar Agarwal examined himself
as PW-1 and Prakash Kaushal as PW-2.
The defendant Subodh Kumar Agarwal
examined himself as DW-1.

Findings of the trial court

12. Issue No. 6,7 & 9: These issues
were decided by the trial court on
28.3.2017. The trial court opined that the
plaintiff had valued the suit at ₹ 40,000/-,
against which no contra evidence was
submitted by the defendant to prove that
the valuation was erroneous, as such the
trial court concluded that the valuation
made by the plaintiff was proper. The trial
court concluded that since the plaintiff had
paid the maximum court fees payable for
the relief of mandatory injunction of ₹
500/-as such, the court fees paid by the
plaintiff was sufficient. The trial court
concluded that since the disputed property
was situated in Agra, as such, the court had
the jurisdiction to hear and decide the suit.
All the 3 issues were decided against the
defendant.

13. Issue no.1 & 2 : The trial court
decided both these issues jointly. The trial
court opined that the land of the disputed
property was purchased by Smt. Santosh
Kumari and she had the right to execute the
gift deeds regarding the disputed property
in favour of the plaintiff. The trial court
further opined that Dr. Mohan Lal
Agarwal, who was the husband of Smt.
Santosh Kumari, was not the owner of the
disputed property. It was further opined
that the second gift deed was executed after
a gap of about five years from the first gift
deed and through the second gift deed, the
remaining disputed property was gifted to
the plaintiff. The trial court further opined
that since the defendant had made life of
his mother miserable, as such, no property
was gifted to the defendant by his mother.
It was further opined that the other siblings
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1109
of the defendant had not objected to the gift
deeds, which proved that the gift deeds
were genuine and were not influenced by
coercion and fraud. The trial court opined
that the burden was upon the defendant to
prove that the gift deeds were illegal and
fraudulent, but the defendant failed to
prove the same. It was also opined that
Smt. Santosh Kumari had earlier executed a
will, which was cancelled at the time of
executing the gift deed in favour of the
plaintiff. It was further held that the
defendant was the licencee of Smt. Santosh
Kumari in the disputed property, which was
subsequently gifted by her to plaintiff and
till the licence of defendant was revoked by
the plaintiff, by giving legal notice, he was
residing as a licencee in the disputed
property. Accordingly, both the issues were
decided in favour of the plaintiff.

14. Issue no.3: It was opined by the
trial court that defendant was not the coowner in the disputed property. It was also
opined that all the constructions in the
disputed property were made by Smt.
Santosh Kumari after getting the building
plan sanctioned. There was no proof that
the defendant got any building plan
sanctioned in his name and had made a
permanent construction on the disputed
property. It was concluded by the trial court
that the plaintiff was entitled to get the
possession of the disputed property through
decree of mandatory injunction.

15. Issue no.4: The trial court
concluded that plaintiff failed to prove that
he was entitled to get ₹ 30,000/- per month
as pendentelite mesne profit alongwith
interest from the defendant. The issue was
decided against the plaintiff.

16. Issue no.5,8,10 & 11: The trial
court opined that since plaintiff was the
owner of the disputed property, in which
the defendant was residing as licencee, the
plaintiff was entitled to file the suit for
obtaining possession of the disputed part of
the property, which was in possession of
the defendant. The trial court also opined
that after giving legal notice to the
defendant, the instant suit was filed by the
plaintiff, which shows that there was no
estoppel or acquiescence on the part of the
plaintiff. The trial court also opined that
plaintiff 's suit was legally maintainable.
The trial court concluded that the plaintiff
proved that he was the owner of the
disputed property on the basis of gift deeds
executed in his favour and the defendant
was only licencee in the above property, as
such, plaintiff 's suit for the relief of
mandatory injunction was decreed against
the defendant, aggrieved against which, the
defendant is in appeal before this Court.

Submissions of the learned
counsel of defendant-appellant

17. Shri Arvind Srivastava, learned
counsel for the appellant submitted that the
trial court has erred in decreeing the suit.
Learned counsel submitted that the plaintiff
cannot claim the relief of possession in the
garb of mandatory injunction. If the
defendant was in possession of the disputed
property, then the plaintiff should have
claimed the relief of possession and paid
court fees on advalorem basis. In this case
the plaintiff has not paid the court fees on
advalorem basis, which is illegal, as such,
no relief of possession in the garb of
mandatory injunction would have been
granted to the plaintiff. Learned counsel
further submitted that Smt. Santosh Kumari
was not the owner of the disputed property,
she was only the benami owner, as such,
she had no right to execute the alleged gift
deeds in favour of plaintiff.
1110 INDIAN LAW REPORTS ALLAHABAD SERIES

18. Learned counsel further submitted
that at the time of alleged execution of gift
deeds, Smt. Santosh Kumari was old,
infirm,
mentally
incapacitated,
under
influence of plaintiff and under the
coercion of plaintiff had executed the
alleged gift deeds in favour of the plaintiff,
which are illegal and void, on the basis of
which no title is conveyed to the plaintiff in
the disputed property.

19. It was further submitted that the
defendant was living since childhood in the
disputed property and after the death of his
parents, the defendant became co-owner of
the disputed property along with his
siblings, as such, defendant was not
licencee in the disputed property. It was
further submitted that since, defendant was
not the licencee in the disputed property as
such, no licence whatsoever could have
been terminated by the plaintiff by giving
legal notice to the defendant and such
termination, has got no legal sanctity in the
eye of law.

20. It was further submitted that since
defendant was a co-owner in the disputed
property as such, the plaintiff had no cause
of action to file the instant suit. It was
further
submitted
that
as
co-owner,
defendant
had
raised
permanent
constructions in the disputed property. It
was further submitted that the sale deeds
and the gift deeds submitted by the plaintiff
were forged and fabricated, in which there
were several interpolations, which renders
them illegal, on the basis of which no title
vested in the plaintiff or his predecessors. It
was further submitted that the documents
during trial were not exhibited by the court,
as such, could not be read in evidence. It
was further submitted that since the
defendant had raised constructions in the
disputed property, as such, his licence was
irrevocable. The appellate Court cannot
grant pendentelite and mesne profit to the
plaintiff in exercise of its power under
Order 41 Rule 33 CPC. With these
submissions it was prayed that the appeal
be allowed and the suit be dismissed.

Submissions of the learned
counsel of plaintiff-respondent

21. Shri P.K.Jain learned Senior
Counsel for the respondent assisted by Ms.
Chhaya Gupta, Advocate submitted that the
land beneath the disputed house was
purchased by Smt. Santosh Kumari in the
year 1969. Thereafter, a building plan was
got
sanctioned
from
the
competent
authority in the year 1969-70 and 1984 and
constructions were raised on the land.
Learned
counsel
submitted
that
the
defendant had made the life of his mother
Smt. Santosh Kumari miserable, as such,
she willingly decided to gift the whole
property to his son- plaintiff through two
gift deeds. Learned counsel submitted that
in the gift deed executed in the year 2009
whole property was not gifted to the
plaintiff. Some property was remaining
with Smt. Santosh Kumari, which was
gifted through subsequent gift deed in the
year 2014. Learned counsel submitted that
the defendant was not having any right
whatsoever in the disputed house because
his mother was the absolute owner of the
disputed property, which was gifted to the
plaintiff. Learned counsel submitted that
the defendant was residing as licencee in
the disputed house, which was revoked by
the plaintiff by giving legal notice and
when the defendant failed to hand over the
vacant possession of the disputed property
to the plaintiff, the plaintiff was compelled
to file the instant suit. Learned counsel
submitted that since there was relationship
of licensor-licencee between the plaintiff
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1111
and defendant, as such, the plaintiff
revoked the licence by giving legal notice
and thereafter, the plaintiff claimed the
possession
of
the
disputed
property.
Learned
counsel
submitted
that
the
defendant has himself filed certified copy
of the will executed by his mother, which
mentions that Smt. Santosh Kumari was the
absolute owner of the disputed property.
Learned counsel submitted that since the
defendant was relying on the above will
executed by his mother, as such, the
defendant cannot take a plea, that his
mother was not the absolute owner of the
disputed property.

22. Learned counsel submitted that the
defendant has alleged that a fraud was
committed by the plaintiff upon Smt.
Santosh Kumari. The gift deeds were
allegedly executed by her under coercion
and undue influence since she was old,
infirm and mentally incapacitated at the
time of executing the gift deeds in favour
of the plaintiff, but, the specific averments
of fraud were missing from the written
statement submitted by the defendant.
Learned
counsel
submitted
that
the
defendant was bound to disclose when,
how, by whom and in which manner fraud
was committed by the plaintiff, but the
written statement was silent on these facts.
Learned counsel submitted that there
cannot be a vague and general allegation of
fraud.

23.
Learned
counsel
further
submitted
that
there
was
no
interpolations in the sale deed and gift
deeds. The above documents were
registered
in
accordance
with
the
Registration Act and as such, there was a
presumption regarding their genuineness
and authenticity, which has not been
rebutted by the defendant. The plaintiff
has duly proved the execution of gift
deeds by examining the attesting witness
PW-2.

24.
Learned
counsel
further
submitted
that
no
permanent
constructions
were
raised
by
the
defendant on the disputed property. All
the constructions were raised by Smt.
Santosh
Kumari
after
getting
the
building
plan
sanctioned
from
the
competent authority. There was no
evidence on record to prove that any
building plan was got sanctioned by the
defendant. Learned counsel submitted
that in the absence of sanctioned
building plan in favour of defendant, it
cannot be presumed that the defendant
had raised constructions on the disputed
property.

25. Learned counsel submitted that
even if the trial court has rejected the
plaintiffs claim for pendentelite mesne
profits at the rate of ₹ 30,000/- per
month but, even then, the appellate court
can in exercise of its power under Order
41 Rule 33 CPC grant the above relief to
the plaintiff. Learned counsel submitted
that at the time of admission of this
appeal this Court had ordered the
defendant appellant to pay ₹ 10,000/- per
month towards use and occupation of the
disputed property, and the plaintiff
respondent is entitled to get the above
amount, which is being deposited by the
defendant during the pendency of this
appeal. With these submissions, it was
prayed that the appeal is meritless and
be dismissed.

26. I have heard the learned counsel of
both the sides, perused the pleadings,
documents, evidence on record and the case
law submitted by them.
1112 INDIAN LAW REPORTS ALLAHABAD SERIES

27. On the basis of the submissions of
the
learned
counsel
of
the
parties,
pleadings, documents and evidence on
record, the following issues arise for
determination in this appeal: -

(a)Whether Smt. Santosh Kumari
was the sole owner of the disputed
property, which was gifted to the plaintiff
by disputed gift deeds?

(b)Whether
the
gift
deeds
executed by Smt. Santosh Kumari in favour
of plaintiff were void due to fraud, coercion
and undue influence exercised by plaintiff?

(c)Whether the defendant was coowner of the disputed property?

(d)Whether the defendant was
residing as a licencee in the disputed
property?

(e)Whether the plaintiff was
entitled to claim the possession of the
disputed part of the property, which was in
the occupation of defendant as licencee, by
filing the suit for the relief of mandatory
injunction?

(f)Whether the defendant had
raised permanent constructions in the
disputed part of the property, which was in
his occupation, rendering the licence
irrevocable?

(g)Whether
there
were
interpolations in the sale deed and gift
deeds executed in favour of the plaintiff
and his predecessor Smt. Santosh Kumari,
so
as
to
render
them
illegal
and
inadmissible?

(h)Whether
the
documents
submitted by the plaintiff were not
exhibited by the trial court, which rendered
them inadmissible in evidence?

(i)Whether the appellate court in
exercise of its power under Order 41 Rule
33 CPC can award damages @ ₹ 10,000/-
per month to the plaintiff-respondent,
against the defendant-appellant for its
unauthorised use and occupation of the
disputed property, during the pendency of
this appeal, till its actual vacant possession
is not handed to the plaintiff ?

Oral evidence of the parties

28. The
plaintiff
Manoj
Kumar
Agarwal PW-1 in his examination-in-chief
affidavit proved the plaint averments. He
proved that the land of house No. 25/161
was purchased by his mother Smt. Santosh
Kumari through registered sale deed dated
15.9.1969 from Development Trust Private
Limited, and thereafter, according to the
sanctioned building plan, from her own
funds constructed two storeyed house on it.
Dr. Mohanlal Agarwal was the father of
plaintiff and defendant. He further deposed
that Smt. Santosh Kumari without any
coercion, willingly, executed a registered
gift deed of a part of above property on
6.7.2009 in his favour, which was accepted
by him. In this gift deed his father was one
of the executant, along with his mother. He
further deposed that again his mother gifted
the remaining part of the above property
through gift deed dated 9.5.2014. This gift
deed was also executed willingly and
without coercion in his favour. This gift
was also accepted by him. He further
deposed that through the above gift deeds
he became the sole owner of the above
property.

29. He further deposed that prior to the
execution of gift deeds, the defendant was
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1113
in possession of a portion on the first floor
of
the
above
property
denoted
by
'ABCDEF' along with a staircase, which
was shown in the map annexed with the
plaint, with the permission of his mother
Smt. Santosh Kumari. The portion of the
property in possession of the defendant was
the disputed property of the suit. He further
deposed that after the execution of the
above gift deeds in his favour, the
defendant's possession was of a licencee in
the
disputed
property,
because
the
defendant was the real brother of the
plaintiff. He further deposed that he
requested the defendant to vacate the
disputed property but when he refused, he
gave a legal notice through his advocate
Shri Navin Kumar Gupta terminating the
licence of the defendant, which was sent by
registered post AD on 4.8.2014, which was
received by the defendant, but was not
complied with, as such, he was compelled
to file the suit.

30.
PW-1
further
proved
the
documents submitted by him in the suit.
He identified the signature and thumb
impression of his parents on the gift
deeds. He further deposed that the gift
was duly accepted by him. He further
deposed that Prakash Kaushal, Sardar
Singh and Jal Singh were the attesting
witnesses of the gift deeds. He identified
the signature and thumb impression of the
attesting witnesses of the gift deeds. He
further deposed that on the basis of the
above gift deeds, he was mutated as
owner of the property in the records of
Nagar Nigam, Agra. He was paying the
house tax of the property. His father Dr.
Mohanlal Agarwal has died. He denied
that the defendant was the co-owner of
the property. He further denied that the
defendant had raised any construction
with his own funds in the disputed
property. The constructions were raised
by his mother from her own funds.

31.
PW-1
in
cross-examination
admitted that in the year 2002 is mother
had executed a registered Will in which it
was mentioned that the three brothers
continue to reside in the portion in which
they were residing. Till the year 2009,
two brothers Subodh Kumar and Sudhir
Kumar, resided in the upper portion and
one brother resided in the lower portion.
He admitted that the defendant was
residing in the upper portion in three
rooms, one latrine, one bathroom, one
kitchen and one courtyard. He further
deposed that around the year 1970 first
storey was constructed, second storey
was constructed near the year 1991 - 92.
Besides this, no other construction was
raised. In the kitchen of upper portion,
meals of defendant were cooked. He
admitted that the meals of all the brothers
were prepared separately.

32. He further admitted that since the
last 10 years his mother was bedridden
since her hip bone was fractured, she was
unable to move. She used to walk with the
help of walker. Her mental capacity was
intact. Since, she was about 90 years old,
she had age-related problems. She was
having good vision, good hearing capacity,
her mother was literate, at present her
mother
cannot
write
and
sign
any
document. She was having this problem
since the last two years.

33. He further disclosed that his father
had executed the gift deed willingly, to
show his consent. He denied the suggestion
that gift deed dated 9.5.2014 was a
fabricated document. He further disclosed
that in the gift deed executed in the year
2009, the vacant possession of the disputed
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
property, which was in the occupation of
the defendant was not handed to him. He
further disclosed that her mother had not
executed any power-of-attorney. He further
disclosed that his name has been mutated in
the records of Nagar Nigam. His mother
had a bank account, she was a pensioner,
how much pension she was getting he was
not aware. His mother had permitted the
defendant to reside for a short duration. He
denied the suggestion that the gift deeds
were executed by his mother, due to the
pressure exerted by him and his father.

34. Prakash Kaushal PW-2 deposed in
his examination-in-chief that Smt. Santosh
Kumari had executed a registered gift deed
in favour of plaintiff on 9.5.2014, which is
paper No. 41-A and Dr. Mohanlal Agarwal
and Smt. Santosh Kumari had executed
another registered gift deed on 6.7.2009,
which is paper No.42-A in favour of the
plaintiff. He is one of the witnesses of the
above gift deeds and was well conversant
with the facts. The gift deed dated 9.5.2014
was executed in favour of plaintiff in his
presence and another witness Jal Singh.
This gift deed was executed willingly,
without
coercion,
after
reading
and
understanding it, which was signed by the
donor Smt. Santosh Kumari and the donee
Manoj Kumar Agarwal. This witness
identified the signature, photographs and
thumb impression of Santosh Kumari and
Manoj Kumar Agarwal on paper No. 41-A.
He
further
deposed
that
prior
to
registration, the concerned sub-registrar
had read and explained the gift deed to the
donor and donee, in his presence and Jal
Singh. The gift deeds were signed and
thumb impression was affixed on it, in the
presence of concerned sub registrar.

35. PW-2 also deposed that Dr.
Mohanlal Agarwal and Smt. Santosh
Kumari had executed a registered gift deed
in respect of a part of the house No. 25/161,
Gandhi Nagar, Hariparwat Ward, Agra on
6.7.2009 in his presence, which is paper
No. 42-A, in favour of the plaintiff. He
deposed that the donor and the donee had
signed
the
above
gift
deed,
their
photographs,
affixed
their
thumb
impression on it, in his presence and
another
witness
Sardar
Singh.
The
concerned sub registrar at the time of
registration of the gift deed, had read and
explained its contents to the donor and
donee, its execution was accepted by the
donor and donee in his presence.

36.
PW-2
in
cross-examination
deposed that in the year 2014 he met Smt.
Santosh Kumari, at that time she used to
walk a lot, she had a good vision and used
to give her blessings to him, like a son. She
had no problem with her vision and
hearing. He admitted that at the time of
execution of gift deed on 9.5.2014 besides
Smt. Santosh Kumari and Manoj Kumar
Agarwal, no other family member was
present. Smt. Santosh Kumari willingly
executed the above gift deed and she
willingly went to the sub- registrar office
with plaintiff.

37. He further deposed that the gift
deed registered in the year 2009, was
executed both by Dr. Mohanlal Agarwal
and Smt. Santosh Kumari. He clarified that
in the gift deed executed in the year 2009,
Smt. Santosh Kumari had retained a small
portion in the house for her self use, which
was not gifted to the plaintiff, but was
subsequently gifted to the plaintiff in the
year 2014.

38. Subodh Agarwal DW-1 deposed in
his examination-in-chief that the land of the
house No. 25/161, Santosh Bhawan,
11 All. Subodh Kumar Agarwal Vs. Sri Manoj Kumar Agarwal
1115
Gandhi Nagar, Agra was purchased by his
father Mohanlal Agarwal from his selfearned money, in the name of his wife Smt.
Santosh Kumari on 15.9.1969 from Deoki
Nandan
Vaibhav,
Managing
Director,
Development Trust, which is paper No. 38A and 40-A, on which in the year 1970,
construction
on
ground
floor
was
undertaken. In the above property, he
constructed one room, one latrine, one
kitchen, staircase and lobby from his selfearned money in the year 1989, which was
never objected to by anyone. He was
residing in the above property since
childhood, was its co-owner and as coowner, he was residing in the above
property with his family and was in its
possession also. His mother Smt. Santosh
Kumari had no right to execute the gift
deed regarding the disputed property since,
she was not the sole owner.

39. He further deposed that her mother
Smt. Santosh Kumari had previously on
1.5.2002 had executed a registered will in
favour of her three sons, in which separate
share of each son was disclosed, the
certified copy of which has been filed by
him, which is paper no. 51-C/9 to 51-C/18.
The defendant has proved the above will.
He further deposed that orally also, his
mother had made him co-owner of the
house. The plaintiff never resided in the
disputed house. His mother was educated
up to class II, was unable to think and
understand, and was ill for quite sometime.

40. He further deposed that the gift
deed dated 6.7.2009 was an incomplete,
illegal and void document, which was got
fraudulently executed because his mother
was unable to walk, her condition was not
good, she was under treatment. The alleged
gift deed was not executed by his mother
but was executed by her husband Dr.
Mohanlal Agarwal on the basis of powerof-attorney which was mentioned at paper
no. 42-A/23. The gift deed cannot be
executed on the basis of power-of-attorney,
as such the alleged property has not been
gifted on the basis of the above gift deed.
Further, since the plaintiff does not reside
in the disputed house, as such, its
possession has not been handed to the
plaintiff, in which the defendant along with
his family was residing since inception.
There are several cuttings in the gift deed,
regarding which there was no explanation,
which have not been signed by Smt.
Santosh Kumari. The plaintiff concealed
the first gift deed for five years and didn't
disclose it to any family member. The
notice dated 25.11.2013, which was paper
number 52-C/1, was sent by speed post by
the plaintiff through his advocate Navin
Kumar Gupta to him, the original of which
has been filed by him in the court.

41. He further deposed that the second
gift deed dated 9.5.2014 executed by Smt.
Santosh Kumari in favour of plaintiff was
wrong, false and void, which was executed
after five years from the first gift deed, in
which it was not disclosed what was the
need of its execution. From the inception,
he was in possession of his share in the
ground floor and first storey. His mother
had not kept any share separately for her
residence. There was no mention of this
fact in the map of the will and the first gift
deed, which are paper number 51-C/10 and
42-A/29. The plaintiff was a clever person,
who intended to usurp his share, and for
this reason, the gift deeds were prepared
fraudulently. The signature of witnesses on
the gift deeds were forged and for proving
this, he has filed the certified copy of the
gift deeds.