Mr. Deepak Sahni, Adv. v. SHRI YASHASHWI AGGARWAL & ORS ....

12. On the aspect of Section 44 of the Transfer ofProperty Act is concerned, he states the said submission is not germane to the present appeal. The families ofthe three co-owners do not constitute an undivided family in law. In any event, the suit A the three co-owners namely late Smt. Bimla Devi and Smt. Pushpa Devi lived in the suit property, there was no common kitchen or prayer room. In the last, it is his submission that the present appeals need to be allowed and the impugned order dated August 4, 2014 needs to be set aside.

13. Mr. Deepak Sahni, learned counsel appearing for appellant Smt. Pushpa Devi in FAO(OS) 386/2014, would submit that the appellant has not violated any order of status quo passed by the learned Single Judge vide order dated November 24, 2009. He states, that the appellant was given complete liberty to deal with her 1/3'^'' undivided share mthe suit property. According to him, an application filed by the appellant in the suit, being LA. No. 12948/2008 under Order 39 Rule 4read with Sections 94 &151 CPC was allowed by the learned Single Judge, as awhole, without attaching any fetters on her 1/3'''' share in the suit property. He would state, that mthe reply filed by the plaintiffs (respondents 1and 2) to I.A. No. 12948/2008, they have admitted that order dated May 7, 1997 has been merged in order dated September 16, 2005. In the same manner, after passing of order dated November 24, 2009, the previous orders have merged in the said order dated November 24,

2009. He states, the learned Single Judge vide order dated November 24, 2009, clarifies the tact that the dispute is only with regard 1/3'" share of late Smt. Bimla Court duly considered the fact that the appellant is aproforma defendant, against whom no reliefwas actually prayed. The factum ofthe said liberty, so granted by the Court, was also duly recorded in the Agreement to Sell dated May 25, 2011. He would state, smce mception, the appellant had been in the possession ofthe ground floor ofthe suit property and Bimla Devi Group had been in the possession ofthe first floor and terrace /second floor. The possession ofthe plaintiffs (respondents 1 and 2) is not disturbed since 1994 till today, as the entire property as awhole has separate drive way / gate / ingress / egress / kitchen / worship place etc. for the ground floor occupants whereby, it is ensured that no disturbance is caused and /or no privacy is infringed by /ofthe occupants offirst floor, i.e., Bimla Devi Group. He would state, the appellant, who is presently 88 years old, only settled her disputes with Caravan to put an end to protracted litigations, which were / are pending since 1992,to have peace in rest ofher life. She did not warn this protracted litigation to be passed on to her children and grand-children. It is his submission that the Appellant herein executed sale documents with Caravan in the year 2011, in continuation ofthe previous admitted Agreements to Sell dated November 15, 1991 and November 16, 1992, by getting enhanced consideration. Caravan merely stepped into the shoes ofSmt. Pushpa Devi pursuant to an out ofcourt compromise, which in fact was nothing but honoring the previous Agreements dated November % a (including Late Smt. Bimla Devi) and Caravan on the other hand. In the end, it is his submission that no prejudice has been caused to Bimla Devi Group with the said transfer ofthe ground floor and no third party to the Us was inducted in the property.

14. Mr. Dayan Krishnan, learned Senior Counsel appearing for respondents 1and 2 would justify the impugned order, inasmuch as the appellants in these appeals have violated the injunction order whereby, the parties were restrained from parting with possession ofground floor ofproperty bearing No. 42-44, Sunder Nagar, New Delhi inasmuch as the possession ofthe ground floor ofthe suit property was parted with by Smt. Pushpa Devi in favour of the appellant. It is his submission that the property is an undivided residential/dwelling house being used for the residence of only the family members/relatives of the respondents 1 and 2 until the Caravan entered into illegal possession ofthe ground floor ofthe undivided dwelling units in violation ofthe injunction order and also in violation of Section 44 ofthe Transfer > ofProperty Act. He states that the partition is yet to take place. Until such time the property is not divided and partitioned by metes and bounds, the family members as co-owners have aright on each and every square inch ofentire property bearing NO. 42-44, Sunder Nagar, New Delhi. He would refer to the application being lA NO. 4108/1997 and order dated May 07, 1997 passed by the Court. He would also refer % / dated May 07, 1997. According to him, vide order dated September 16, 2005, the injunction order dated May 07, 1997 was modified to a limited extent on the application of the respondent No. 17 herein. According to him, the respondent No.17 was not in physical possession of the suit property on the date of the said order, despite this Court was clear and categorical in its direction that the status quo will be maintained in respect ofpossession ofthe parties to property. There is no doubt or ambiguity or any confusion on the order passed by this Court as the order is absolutely clear and speaks for itself He states that the order dated September 16, 2005 has two parts. The part 1 includes "that the status quo will be maintained in respect ofpossession of the parties to property bearing No.42-44, Sunder Nagar, New Delhi". Part 2 includes "however defendant No.12 shall be entitled to exercise his rights and deal with his undivided share in the suitproperty". It is the submission of Mr. Krishnan that the expression 'deal' has to be read in the context of undivided share in the property, which can be sold but without parting with the possession of the property. According to him, this is consistent with Section 44 of the Transfer of Property Act. He would refer to Section 44 ofthe said Act. He also states, that if the submission made by Mr. Nigam that the expression 'deal' also includes the power and right to part with possession then the earlier part ofthe order becomes meaningless and amounts to rendering otiose/negating the said direction % onlycorrectand fair interpretationoftheorderdated September 16,2005 isthat the Court permitted the applicant to deal with his undivided share i.e to sell the same. However, not only the applicant but all the parties were directed to maintain status quo ofthe possession. He would rely upon thejudgmemofthis Court in the case reported as ^ the expression 'ho.e.er'has to begivenameaning. He statesthatthepartieswere.0 maintain status quo qua possession ofthe suit property, which is clear from the language ofthe order. He also states, no appeal was filed against the order. Smt. Pushpa Devi was aparty to the proceedings in the suitatthe time ofpassing ofthe order and was bound by the same. He also states, tite fact that Smt. Pushpa Devi had prayed for vacation ofinterim orders dated May 07, 1997 and September 16,

2005. as awhole, clearly shows that Smt, Pushpa Devi was aware that there was an interim order operating against the parties in respect ofthe suit property, which included the injunction restraining the parties from parting with possession. Thus, clearlythe parties were aware and consciousthat the first interim orderdated May 07, 1997 was complete and absolute, inasmuch as the parties had to maintain both statusquooftitleas well aspossessionoftheproperty. Vide orderdatedSeptember 16, 2005, the earlier order dated May 07,,997 was modified to tire limited extent that one of the parties had been permitted to deal with his undivided share. if possession ofthe property. Hence, there was no doubt or ambiguity in the order or in the mind ofthe parties that defendant No.12 could deal with his undivided share in the property and injunction order was existing, which restrained/prevented all the parties including defendant No.12 from parting with the possession of the suit property. It is for this reason, appellant Smt. Pushpa Devi made acategorical prayer in IA No. 12948/2008 for discharge, vacation, modification ofthe status quo order • dated May 07, 1997, which has been later modified vide order dated September 16, 2005 as a whole.

15. According to Mr. Krishnan, there was no reason for the appellant Smt. Pushpa Devi to include the word 'as a whole' ifthere was no injunction order operating against parting with possession. Thus, all the parties were aware that there was an injunction order operating against all the parties to the suit restraining them from parting with possession ofthe property and also title except defendant No.12, who / was permitted to sell his undivided share but without parting with possession. He has drawn our attention to the order dated November 24, 2009, both in lA No.12948/2008 and in CS(OS) No. 1561/1994. It is his submission that from the order dated November 24, 2009, it is clear that the appellant Smt. Pushpa Devi had asked for larger reliefs in the application. But at the time of the arguments had counsel for the respondents 1and 2had conveyed his no objection to the appellant Smt. Pushpa Devi being granted the same liberty. This v^as done primarily because there was no dispute qua the undivided share. Accordingly, the appellant Smt. Pushpa Devi was allowed to deal with her 1/3''' undivided share in the property. There was no adjudication on the merits. The order was passed on the basis ofthe concession statement made by the learned counsel for the parties. In the suit also, the learned Single Judge has made it clear that the order being passed for the appellant Smt. Pushpa Devi was the same order, as was passed in favour of the defendant No.12. There is no doubt/ambiguity in the order. Mr. Krishnan further states that Caravan was a party to the suit at the time of the passing of the order dated November 24, 2009 and was duly represented at the hearing on the said date. Therefore, the appellant cannot feign ignorance of the said order dated November 24, 2009 or the proceedings that transpired on that date. According to him, there is no dispute that the appellant Smt. Pushpa Devi had parted with the possession ofthe ground floor of the property bearing No. 42-44, Sunder Nagar, New Delhi despite the existence ofthe injunction order passed by this Court restraining the parties from parting with possession, which makes it apparent that the appellant and Smt. Pushpa Devi committed contempt of the Court by violating the injunction order. property and at best, she was entitled to partwith possession of 1/3"* of her share in the property under order dated November 24, 2009, whereas she has transferred possession ofthe entire ground floor ofthe property tothe appellant Caravan, which is in excess of her 1/3"^ share. Therefore, the appellant Smt. Pushpa Devi and Caravan had clearly violated the injunction order. If there was any doubt or ambiguity in the minds ofthe parties, it was incumbent upon them to approach this Court, seeking clarification, rather than to act in a manner, which suited their commercial convenience which was in violation of the injunction order passed by this Court. He would rely upon the judgment reported as (2009) 2 SCC 166 K.A. Ansari and Anr. v. Indian Airlines Ltd. in support of his contention that if there was any doubt with regard to the interpretation of an order then the appellants were within their rights to approach the Court seeking clarification. He states, the very fact that lengthy arguments had been advanced by the appellants in their appeal on the merits would, itselfshow there was no confiision but now a case is sought to be built up to avoid the consequences ofviolation ofthe injunction order on the ground that there was some confusion. He would rely upon the judgment reported as AIR 1961 SC 221 State of Bihar v. Sonabati Kumari. Alternatively, he would argue, even if there was some confusion, that is a factor to be considered only at the time ofsentence. Therefore, the appellants were rightly directed to deliver the possession 1^ escaped by the appellants herein. He would also rely upon the judgments in the case reported as AIR 2004 SC 4419 State ofBihar and Ors v. Rajendra Singh and Anr., AIR 2006 SC 909 Union ofIndia and Ors v. Subedar Devassy. In the last, it is his submission that the respondents 1and 2, had agreed that 1/3'"'^ undivided share canbe sold without parting with possession because insofar as title of the said defendants in the suit was concerned there was no dispute. However, for possession the property is yet to be partitioned. Therefore, the injunction order restraining parting with possession was never modified/vacated. He would also contend that the present appeals being intra-court appeals, on a finding ofa fact, unless the Appellate Bench reaches a conclusion that a finding of the learned Single Judge is perverse, it should not disturb the same merely because another view is possible. In this regard, he would rely upon the judgment reported as (2016) 1 Scale 320 The Management of Narendra & Company Private Limited v. The Workmen of Narendra & Company. He seeks the dismissal of the appeals. He states, his submissions, be read as submissions to the appeal filed by Smt. Pushpa Devi as well.

17. Mr. Manish Vashisht learned counsel appearing for the respondents 3 and 4 in the appeals would submit that the plea of Mr. Nigam that the learned Single Judge, instead of deciding an application under Order 7 Rule 11 CPC, decided the 2012 and the application under Order 7Rule 11 CPC by the appellant Caravan filed as an afterthought only in the month of December, 2013. He states, that the appellant Caravan was impleaded as adefendant in the suit vide order dated May 13, 2008 and it is highly surprising that no such application for dismissal ofthe suit was filed for aperiod offive and ahalfyears. The issue ofnon maintainability has no bearing on the disobedience of the orders passed by the Court even though, ultimately itis found that such asuit was not maintainable.

18. With regard to the submission ofMr. Nigam that the learned Single Judge did not decide the application bearing CCP No. 70/1994 against the appellant Smt. Pushpa Devi and respondents 3to 4, which was filed by the appellant in CS (OS) No. 2443/1993 and thus committed an error by taking up an application, which was filed under Order 39 Rule 2A CPC is concerned, the application, which was filed was never listed before the learned Single Judge when the arguments on the application under Order 39 Rule 2A were heard and the matter was reserved for orders. He states, to the contraiy vide order dated August 01, 2013 passed in CS (OS) No. 2443/1993 the counsel for the appellant Caravan stated that all the remaining pending applications may be taken up for hearing at the time of final arguments-of that suit filed by the appellant Caravan. Therefore, on the face of it, was

19. Insofar as the plea of Mr. Nigam that the appellant Caravan was under the impression that there was no embargo on Smt. Pushpa Devi to transfer the possession ofthe property as the order dated November 24, 2009 did not specify or put any restrictions on the transfer of possession is concerned, Mr. Vashisht had submitted the following;-

(i) The Court was adjudicating upon an undivided residential propertyviz aviz its co-owners and a stranger. (n) The Court from time to time in order to protect the intrinsic character and nature ofthe undivided property passed various following orders: a. Order dated October 27, 1993 passed in CS (OS) No. 2443/1993; b. Order dated August 25, 1995 confirming the above order. c. Order dated May 07, 1997 in the present suit; d. Order dated September 16, 2005; e. Order dated October 12, 2006 passed in CS (OS) No. 690/2006; f Order dated August 22, 2007; g. Orderdated November 24, 2009.

(iii) All the parties to the suit were fully aware that injunction orders restricted them from transferring the possession of the property to any person outside the reasoning relating to the aforesaid orders which were passed.

(iv) That a reading of the documents dated May 25, 2011 and May 30, 2011 establishes the express knowledge of the appellant Caravan about CS (OS) NO. 690/2006. In this suit an order dated October 12, 2006 was passed to the following effect: "The counsel for defendant states that he has no objection if the said applicathn is allowed subject to the status quo order with regard to the title. \ possession and state of construction regarding the suit property being equally applicable to the plaintiff In the circumstances, parties are directed to maintain status quo with resard to the title, possession and the state of construction regarding the suit premises aforesaid till thefinal disposal of the suit. To this extent, orders datedApril 22, 2006 are modified."

(v) The orders which were passed in CS (OS) No. 690/2006 and CS (OS) NO. 2443/1993 as stated supra were also passed in the present suit from which the Appeal has arisen.

(vi) The order dated September 16, 2005 was passed in the present suit whereby ^ the Court, while permitting the defendant No.12 to exercise his rights and deal with his undivided share without parting with the possession of any portion of the property also directed all the parties to maintain status quo as qua possession ofthe property. The relevant portion ofthe order is reproduced: view ofthe statement made by the counselfor the plaintiffs, the order dated May 07, 1997 is modified to the extent that the status quo will hp maintained in respect ofpossession ofthe parties to property No. 42-44

(vii) The other appellant Smt. Pushpa Devi did not impugn or challenge this order before the Appellate Court. However, after 3 years Pushpa Devi filed lA NO. 12948/2008 under Order 39 Rule 4 CPC for vacation of the order dated May 07, 1997 and September 16, 2005.

(viii) The present appellant had already become the party when Smt. Pushpa Devi filed the lA No. 12948/2008. The said application was never opposed by the appellant herein, even though, admittedly as on that day, the appellant and Pushpa Devi were adversaries and fighting tooth and nail.

(ix) During the arguments Smt. Pushpa Devi restricted her prayer raising the plea of parity as recorded in the order dated September 16, 2005. The counsel for the respondents 1 and 2 also conceded when the plea of parity was pressed and accordingly order dated November 24, 2009 was passed permitting Smt. Pushpa Devi to exercise her rights in the undivided property as were accorded to the other defendant No.12. Thefollowing order was passed onNovember 24, 2009: "It is submitted by learned counselfor defendant No.8 that defendant No.8 was entitled to undivided l/3rd share in the property. This court vide order dated 16th September, 2005 had given liberty to defendant No.12, who was similarly placed that defendant No.12 shall be entitled to exercise his rights and deal with his undivided share in his property. Restates that defendant No.8 is also entitledfor the same liberty. Learned counsel for the plaintiffs states that as far as defendant No.8 is concerned, her l/3rdshare in the property is not disputed and counselfor the 41this submission, the applicationfor modifying the status quo order dated 16th September, 2005 is allowed and it is observed that defendant No.8 shall be entitled to exercise her rights and deal with her undivided l/3rd share in the property. "

(x) The mandate of the order dated November 24, 2009 so as to maintain the sanctity of possession is further clear from the reading of the latter portion of the order, wherein while concluding, the learned Single Judge further observed that ''since the property is not divided so far, the defendant shall remain entitled to undividedshareandthey may deal only with undividedshare. "

(xi) No application seeking any clarification or alleging any misunderstanding of the order dated November 24, 2009 was filed by the appellant or even by Smt. Pushpa Devi.

(xii) The aforesaid chain ofsequence offacts categorically and without any iota of doubt establish that at no point oftime since 1993 till date, the Courts had allowed any co-owner of the property to transfer the possession or to change the nature of the property by inducting any person outside the family or astranger in it. (xiii)The order dated November 24, 2009 was further clear to the effect that the cosharers can deal with their undivided share only as the property was not partitioned by metes and bounds but cannot transfer the possession. (xiv)Therefore, there could not have been any scope for any party to the suit to incapable ofcommunicating the clear mandate and restriction imposed by the Court while keeping in view the nature ofthe property which was an undivided one.

20. On the plea ofMr. Arvind Nigam that the appellant Caravan was not aparty in the suit till May 13, 2008, it was not aware ofthe orders which were passed and the orders were not applicable to it, it is the contention ofMr. Vashisht that the order dated November 24, 2009 was passed in the presence of the counsel for the appellant in which clearly the order dated September 16, 2005 was discussed. According to him, till November 24, 2009 the appellant was an adversary to the other co-sharers and the remaining parties to the suit and since 1993 the endeavour ofthe appellant was to secure the status quo order in respect ofthe suit property so that the possession and title could not be transferred or the nature ofthe property could not be changed till the decision ofits suit ofspecific performance. Therefore, when the order dated November 24, 2009 was passed, the appellant was not affected by the same and had no reasons ofany grouse against the observations which were passed by the learned Single Judge directing the parties not to deal with the possession or transfer ofpossession. The prayer allowed was only with respect to a permission to deal with the undivided share. No appeal or any modification ofthe orderdated November 24, 2009 was sought by the appellant or Smt. Pushpa Devi. very ambiguous and was confusing one, Mr, Vashisht would submit that the same was clear and unambiguous. Nothing precluded the appellant Caravan from filing an appropriate application before the Court seeking clarification on the presumed ambiguity. He states, aparty who pleads ambiguity has to act above board by approaching the Court which has passed such an order and to seek necessary clarification. The plea that the application under Order 39 Rule 2A CPC was filed as an afterthought, when the respondents 3and 4failed to get any injunction orders in their suit bearing CS (OS) No. 1587/2011 is concerned, Mr, Vashisht would submit that the CS(OS) No. 1587/2011 is an independent remedy which has been filed in terms of Section 44 of Transfer of Property Act, 1882 and the cause of action urged in the said suit is also supported and approved by numerous judicial pronouncement including thejudgment ofthe Supreme Court in the case reported as (1990) 2see117Domb Cawasji Warden and the judgment ofthe Calcutta High Court, Orissa High Court and Allahabad High Court, He states, that an injunction order dated July 04, 2011 was also passed in favour of the respondents 3and 4, Nevertheless, the said suit and the impugned order has no connection at all and both are independent of each other.

22. Even on the plea of appHcation under Order 39 Rule 2A CPC is barred by cause, no party can raise immunity from punishment on the ground of delay. According to Mr. Manish Vashisht, even the plea on behalf of the appellant that appellant has paid Rs.20 Crores to the two co-sharers and that the appellant has an inherent right to occupy the ground floor ofthe property is misconceived, inasmuch as the law does not permit the purchaser ofan undivided share to intrude inside a dwellmg house without seeking relief of partition. The appellant ought to have impleaded himself as aplaintiff in CS (OS) No. 690/2006 after purchasing the undivided rights oftwo co-sharers and prayed for adecree ofpartition by metes and bounds. No partyto alis can bepermittedto even argue equity when such aparty is guilty ofdisobeying the orders of the Court. On the plea ofMr. Nigam that the contesting respondents on the first floor are in possession ofpeaceful, separate and mexcess oftheir share is amisconceived argument, inasmuch as when ashare in an undivided house is purchased, no portion ofthe same can be said to be adivided or aseparate one. The different exit and entry is created by the appellant after the order dated July 04, 2011 passed in CS{OS) No. 1587/2011. It was held that any renovation work on the ground floor would be at the risk and cost of appellant Caravan. Mr. Vashisht would submit that the respondents are not sitting in any excessive share, because till such time property is partitioned, they have an mdisputable right to enjoy every inch ofthe property. Mr. Vashisht would submit suggest the occupation ofdifferent floors by the co-owners is misplaced in view of the report itselfas areading ofthe Local Commissioner's report would show that it records the name ofthe nine persons, who were in physical occupation ofthe entire property. The argument on behalfofthe appellant that the interpretation as sought to be given by the appellant is tjie only right argument is also misconceived and contemptuous. He states, that under similarcircumstances, the learned Single Judge has taken aconsistem view. He would rely upon the judgment reported as (201S) 147DRJ 563 titled Vera Ruth Rego Consalvis v. Maninder Pa! Singh, against which appeal was filed before the Division Bench, which was also dismissed by the Division Bench as reported in 20IS (DLT SOFT) 158 (DB) Vinay Chhabm & Others v. Vera Ruth Rego Gonsalvis.

23. Mr. Manish Vashisht would also submit that the appellant has not controverted in the rejoinder, the submissions made on behalfofrespondents 3and 4, inasmuch as the appellam was purchasing undivided shares in the residential house, which i apparem from the reading of its own documents. The Supreme Court in the reported as (2009) 7SCC444 Ramdas v. Sita Bai&Others and in (2009) 10SCC 654 Gajara Vishnu v. Prakash Nansaheb has held that an undivided share ofacosharer may be asubject matter ofsale but possession cannot be handed over to the IS case according to him is apparent from the submissions made by him as reflected above. He would rely upon the judgment in the case of All Bengal Excise Licensee's Association v. RaghabendraSingh &Others (2007) 11 SCC374 and (1999) 7SCC 569 Kapildeo PrasadSah v. State ofBihar. He prays that the appeal filed is liable to be dismissed.

24. Insofar as the appeal filed by Smt. Pushpa Devi is concerned, it is the submission of Mr. Vashisht that the same need to be dismissed in view of the admission of the appellaM Smt. Pushpa Devi at page 40 (paragraph 27) of the appeal, wherein she has pleaded as under:- 'thatlegalopinion was soughtbythe appellant before dealing with hershare in the said property and the appellant was clearly advised by her counsels that there is absolutely no bar in the appellant dealing with her share and/or TJgrouLfloo"^'' transferring ofpossession of

25. He would also state that the appeal is misconceived in view ofthe following admitted facts i. The litigation ensued qua the subject matter i.e property No.42-44, Sunder Nagar, New Delhi relating to the parties to the present appeal in the year 1993. n. That subject property admittedly is an undivided residential house. No actual physical partition by metes and bounds has taken place till date. •0 1} passed by this Court in its ordinary civil jurisdiction in respect of tlie subject property, iv. Tliat the appellant Smt. Pushpa Devi was impleaded as adefendant in the following suits/proceedings:m a. CS(OS) No. 2443/1993 titled "Carvan Commercial Company Limited v, Pushpa Devi &Ors". (as defendant No.l). b. CS(OS) No.1561/1994 "Master Yashaswi Aggarwal &Another v. Rakesh Aggarwal &Others' Pushpa Devi was impleaded as defendant No.8.

C. CS(OS) No. 690/2006 titled "MahenderKumar Gupta&Ors v. Pushpa Devi &

Ors. Asuit for partition in which Pushpa Devi was Defendant No.1. d. Suit bearing No.l578/I992 titled "Arun Batra v. Bimla Devi &Ors. Pushpa Devi" was defendant No.7 in the said suit. (For the purposes ofdeciding the present appeal this suit has no relevance).

26. According to him, the submissions made by learned counsel for Pushpa Devi are misconceived and untenable in view ofthe following:-

(i) That this Court while adjudicating upon the suit was seized with an issue ofpartition qua aresidential house among its co-owners. (ii)To protect the intrinsic character and nature of the undivided property various following orders were passed by this Court: a. 07.05.1997, @199 c. 22.08.2007, @216-218 d. 24.11.2009, @233-236.

(iii) That all the parties to the suit were also aware ofthe fact that they were restricted by the aforesaid interim injunction orders which was passed from transferring the possession to any third party. There was no occasion for any ofthe parties to have misunderstood the import ofthe orders or to have arrived at a different understanding or reasoning relating to the aforesaid four orders which were passed and modified.

(iv) That besides above, the appellant Smt. Pushpa Devi was also contesting two different suits as a defendant before this Court wherein she and the other co-defendants were restrained from alienating, transferring or parting with possession in respect ofthe suit property. (v)In CS(OS) No. 2443 of 1993 she was restrained along with other codefendants to deal with the property and to maintain status quo. This order was confirmed on 25.08.1995 and is in operation till date.

(vi) That in another suit for Partition CS(OS) No. 690 of2006 an Order dated 12.10.2006 was passed in CS(OS) No. 690/2006 where the appellant PUshpa Devi was defendant No.l to the following effect: ''The counsel for defendant states that he has no objection ifthe said application is allowed subject to the status quo order with regard to the title, possession andstate ofconstruction regarding the suitproperty being equally applicable to the plaintiff In the circumstances, parties are directed to maintain status quo with regard tn the title. and the

(vii) The orders which were passed in CS(OS) No. 690 of 2006 and CS

(viii) The order dated 16.9.2005 was passed in the present suit whereby the Hon'ble Court, while permitting the defendant No.12 to exercise his rights and deal with his undivided share without parting with the possession of any portion of the property also directed all the parties to maintain status quo as qua possession of the property. The relevant portion of the order is reproduced: "In view ofthe statement made by the counselfor theplaintiffs, the order dated 7.5.1997 is modified to the extent that the status quo will be maintained in respect of possession of the parties to property No.42-44, Sunder Nagar, New Delhi."

(ix) The appellant Smt. Pushpa Devi did not impugn or challenge this order before the Appellate Court. However, after 3 years Appellant filed lA No. 12948 of 2008 under Order 39 Rule 4 CPC for vacation of the order dated 7.5.1997 and 16.9.2005. (x)That during the arguments the Appellant restricted her prayer raising the plea of parity as recorded in the order dated 16.9.2005. The counsel for the respondents 1and 2 also conceded when the plea ofparity was pressed and accordingly order dated 24.11.2009 was passed permitting the Appellant to exercise her rights in the undivided property as were accorded to the other Defendant No.12. The following order was passed on24.11.2009: "It is submitted by learned counselfor defendant No.8 that defendant No.8 similarlyplaced that defendantNo. 12 shall be entitled to exercise his rights and deal with his undivided share in hisproperty. He states that defendant No.8 is also entitledfor the same liberty. Learned counselfor the plaintiffs states that as far as defendant No.8 is concerned, her l/3rd share in theproperty is not disputed and counselfor the Plaintiffs has no objection in case, the similar order as in respect of defendant No. 12 has been passed is also passed in favour ofdefendant No.8. In view ofthis submission, the applicationfor modifying the status quo order dated 16th September, 2005 is allowed and it is observed that defendant No.8 shall be entitled to exercise her rights and deal with her undivided l/3rdshare in theproperty.

(xi) That the mandate of the order dated 24.11.2009 so as to maintain the sancity of possession is further clear from the reading of the latter portion of the order @ page 235, wherein while concluding, the learned Single Judge further observed that "since the property is not divided so far, the defendant shall remain entitled to undivided share and they may deal only with undivided share."

(xii) The aforesaid chain of sequence of facts categorically and without any iota of doubt establish that at no point of time since 1993 till date, the Courts had allowed any party to transfer the possession or to change the nature oftheproperty byinducting any third party or a stranger in it.

(xiii) Instead of purging the contempt and correcting the illegality, the present appellant has the audacity to raise frivolous objections and arguments by taking shelter ofher old age. This is a calculated move by her at the behest of another appellant Carvan Commercial Company Limited, which has intruded inside theproperty despite injunction orders. v simple reason that throughout the orders dated September 16, 2005 and November 24, 2009 reminded everyone that the orders were being passed in respect of an undivided property.

(xv) That the actions ofthe Appellant were calculated and motivated so as to overreach the process oflaw. The action is also in defiance oflaw. An erring party cannot raise the plea ofignorance oflaw to his/her defence. It is well settled law that aco-sharer cannot deliver possession of any portion of an undivided property to any stranger or an outsider. Section 44 of the Transfer Property Act, 1882 prohibits the same.

(xvi) The Hon'ble Supreme Court in (2009) 7SCC 444 titled "Ramdas

V. Sita Bai &Other" and in (2009) 10 SCC 654 titled "Gajara Vishnu v.

Prakash Nansaheb" has categorically held that an undivided share of a r,r>sharer may be a subject matter ofsale but possession cannot be handed over to the vendee unless the propertv is partitioned bv metes and bounds

(xvii) As stated above it is an admitted position that the suit property is an undivided one and therefore she could not have transfen-ed the possession to Caravan Commercial Property Ltd because of Orders dated 7.5.1997, 16.9.2005 and 24.11.2009.

(xviii) Although the orders dated 7.5.1997, 16.9.2005 and 24.11.2009 are very clear, unambiguous and constantly reminded all the parties to the suit to only deal with their undivided share of the property and not to part with possession ofthe property, yet the appellant cannot be heard to contend that even by the usage ofthe term undivided in the orders, she was under an 7<f property to a stranger.

(xix) This would be preposterous on her part even to allege that the term

27. Having heard the learned counsel for the parties, to understand and decide the -V issue whether the learned Single Judge was justified in holding that the appellants herein were guilty of committing Contempt of Court by disobeying the status quo order dated May 07, 1997, subsequently modified by orders dated September 16, 2005 and November 24, 2009, it is necessary to note the said orders. For the said purpose, we reproduce the orders as under: I " 07.05.1997 xxxxx xxxxx xxxxx Notice returnable on November, 1997. Learned counsel for the Defendants No.l and 2 and Defendant No.2 accept notice. Notice be issueonlyto the remaining defendants. The parties will maintain status quo as of today in respect ofproperty NO.42-44, Sunder Nagar, Delhi till the next date. In the meantime, pleadings be completed. " "16.09.2005 CS(OS)No.l561/1994 lA No.4108/1997 and4696/2005 / state that his clients will have no objection in sZ[1] exercises his rights anddeals with his undivided sharewithoutpartingwith thepossessionofanyportionoftheproperty In 771997 t "mod7ne"drtt 'heplaintiffs theorderdated /.XI997 IS modified to the extent that the status quo will be maintained in New DdhrT'""" T""' No.42-44, Sunder Nagar. New Delhu However, defendant No.12 shall be entitled to exercise his rights and deal with his undivided share in the property. With these disp7sfd''of" " Nos. 4108/1997 and 4696/2005 are "24.11.2009 xxxxx xxxxx I.A. No. 12948/2008 This application has been made under Order 39 Rule 4CPC on behalfof defendant No^S with aprayer that the court should modify the status quo orderdated 7th ^ay 1^997 which was earliermodifiedon 16thSeptember, OOJ. IS submittedby learnedcounselfor defendant No.8 that defendant. was entitled to undivided l/3rdshare in theproperty. This court vide order dated 16th September. 2005 had given liberty to defendant No.12 who was smihrlyplacedthat defendantNo12shall be entitledto exercise dJ'f,« / 7 ""'""Idedshare in hisproperty. He states that defendantNo.8 is also entitledfor thesame liberty. Learnedcounselfor the plaintiffs states that asfar as defendant No.8is concerned, her I/irdshare 'nhi^ ^ disputed and counsel for the plaintiffs has no objection in case the similar order as in respect of defendant No.12 has beenpassed is alsopassed infavour ofdefendant No.8 ord"j'Z f ''PP'"""">''f'"- 'modifying the status quo ord^ dated 16th September, 2005 is allowed and it is observed that C.S. (OS) No. 1561/1994 The plaintiffs have filed this suit claiming l/3rd undivided share in the property No.42- 44, Sunder Nagar, New Delhi. The plaintiffs are grandsons of Smt. Simla Devi, defendant No.3 (deceased) and defendant Nos.l and 2 arefather and uncle of the plaintiffs respectively. Smt. Bimla Devi had entered into a sale agreement along with co-owners of the property with defendant No. 14. The other defendants are defendants in respect ofother two co-owners ofthe property, namely, Smt. Pushpa Devi and Smt. Shanti Devi (since deceased). They are defendant Nos.[8] and[9] to

13. There is no dispute in respect ofundivided l/3rdshare, one ofLRs of Smt. Shanti Devi or undivided share ofSmt. Pushpa Devi. The dispute is only in respect ofl/3rd undivided share oflate Smt. Bimla Devi. I, therefore, consider that all the defendants, who inherit propertyfrom Smt. Pushpa Devi or Smt. Shanti Devi, being performa defendants, are at liberty to deal with their respective undivided share of the property. The court had passed similar order in respect ofdefendant No. 12 earlier and defendantNo.8 today. I consider that the other defendants similarlyplaced cannot be treated differently qnd the earlier order of dismissing the application made by the defendants is, therefore, recalled. However, since the property is not divided so far, the defendants shall remain entitled to undivided share and they may deal only with undivided share. "

28. That apart, we also note the conclusion of the learned Single Judge in the impugned order holding the appellants guilty ofcontempt of court was primarily on the following findings "12. There is no dispute about the proposition of law as has been urged by the learnedSr. Counselfor Defendants No. 4 to 8 and Defendant No. 14 that when an order of the Court is ambiguous and is reasonably capable ofmore than one interpretation, proceedings for contempt should not be entertained. Can it be said that the order dated 07.05.1997 read with subsequent orders dated 16.09.2005 and 24.11.2009 was capable of possession ofthe suit property while dealing with the property and thus, even iforder dated 16.09.2005 is taken into consideration, at the most it will show that the order dated 24.11.2009 was capable of two interpretations and thus, no action ofcontempt can be taken against Defendants No. 8 and 14.

13. I have already extracted earlier the orders dated 16.09.2005 and 24.11.2009. Order dated 16.09.2005 categorically records no objection of the Plaintiffs in respect ofthe right ofDefendant No. 12 to deal with his undivided share without parting with the possession ofany portion ofthe property. The order dated 07.05.1997 was modified by order dated ^ 16.09.2005 to the extent that Defendant No. 12 may deal in his share but status quo was to be maintained in respect ofpossession ofproperty bearing no. 42-44, Sunder Nagar by the parties. By a subsequent application LA. No. 12948/2008, Defendant No. 8wanted discharge ofthe status quo order dated 07.05.1997, which was granted to Defendant No. 8 recording that l/3rd share ofDefendant No. 8 is not disputed and the counselfor the Plaintiffs has no objection in case the order as passed in respect ofDefendant No. 12 is passed in respect ofDefendant No. 8. Thus, everybody was aware that concession which had been given to Defendant No. 8 was similar to the one granted to Defendant No. 12 by the order dated 16.09.2005. Hence, the contention raised on behalfofDefendant NO. 8 and Defendant No. 14 that the order dated 24.11.2009 with regard to dealing with the property with or without possession was ambiguous and capable oftwo interpretations is unfounded It may be mentioned that in ^ the proceedings under Order 39 Rule 2A CPC, the Court is simply to see whether there is disobedience ofthe order passed by the Court. It is not permissiblefor the Court to examine the correctness ofthe earlier decision which is stated to be violated (See State ofBihar &Ors. v. Rajendra Singh &Anr., AIR 2004 SC 4419 and Union ofIndia &Ors. v. Subedar Devassy PV, AIR 2006 SC 909). Thejudgments in Tamilnad Merchantile Bank and Sushila Raje Holkar (supra) and K.K. Puri (supra) relied upon by the learned Sr. Counselfor Defendant No. 14 and Defendant No. 8 will not come to the rescue ofthe Defendants as there was no ambiguity in the order. The contention that Defendant No. 8 was in possession of only groundfloor ofwhich possession was delivered to Defendant No. 14 and the Plaintiffs and Defendants No. 1to 3were in possession ofmore than IS not to be disturbed. Second, even ifit is assumed that Plaintiffs and Defendants No. 1to 3were in possession ofabout 50% of the built-up portion, Defendant No. 8was also inpossession ofthe entire groundfloor which must be more than I/3rd share ofDefendant No. 8. Thus, even if Defendant No. 8 had been permitted to part with the possession of the 1/3rdportion ofthe property belonging to him (though it was not done), she could not have delivered the possession of entire ground floor to showing of Defendant No. 8 about 50% ofthe property. "

29. The order dated November 24, 2009 was primarily passed botli in lA NO. 12948/2008 and CS(OS) No. 1561/1994. The prayer in lA No. 12948/2008 under Order 39 Rule 4 CPC was as under;- "a. Discharge, vacate, modify the status quo order dated 07.05.1997 which has later been modified vide orders dated 16.09.2005, as a whole; b. Discharge and vacate the status quo order dated 07.05.1997 and 16.09.2005 in sofar as it relates to one-third (1/3'^^) undividedshare ofthe applicant/defendant No.8 or, c. In any case the operation ofthe status quo order may kindly be restricted in respect ofthe one-third (1/3''') undivided share ofLate Smt. Bimla Devi i.e defendantNo.3 only; d Pass any other andfurther order(s) as this Hon'ble Court may deemfit andproper in thefacts and circumstances ofthepresent case. "

30. The prayers made in the said lA were inter-alia for seeking discharge, vacation, modification ofthe status quo order dated May 07, 1997 as modified on September 16, 2005 as awhole, insofar as it relates to the appellant Smt. Pushpa Devi's 1/3'''' undivided share. When the said application was listed on November 24, 2009, it similarly placed as defendant No.12, shall be entitled to the same liberty, Aperusal oforder dated September 16, 2005 would reveal that the order dated May 07, 1997 was modified to the extent, status quo was required to be maintained with respect to the possession of the parties to property no.42-44. Sunder Nagar, New Delhi. However, the defendant No.l[2] (respondent No.l[7], in FAO(OS) 385/2014) shall be entitled to exercise his rights and deal with his undivided share in the property. The learned Single Judge, on November 24, 2009 accepted the statemem made on behalf ofthe plaintiffs in the suit, respondents 1and 2herein that he has no objection in case similar order, as in respect of defendant No,12 be passed in favour of Smt. Pushpa Devi, The Court made it clear that Smt, Pushpa Devi shall be entitled to exercise her rights and deal with her undivided 1/3"' share in the property. We agree with the submission made byMr, Dayan Krishnan that the relief, as prayed for in lA No,12948/2008 was seeking discharge, vacation, modification of status quo order dated May 07, 1997 as modified on September 16, 2005 as awhole would surely depict that the appellant Smt, Pushpa Devi was conscious ofthe fact that she could not have transferred the possession ofthe ground floor ofthe property in question, otherwise, she would have only sought asimplicitor prayer that the liberty, as granted to defendant No,12, be granted to her. In fact, during the hearing on November 24, 2009, it is noted that the counsel for the appellant Smt, Pushpa Devi No.12 to exercise her rights and deal with her "undivided" share in the property. That apart, we note, the Court while passing an order in the suit, has stated as under:- "However, since theproperty is not divided sofar, the defendants shall remain entitled to undivided share and they may deal only with undivided share. "

31. The aforesaid observation underlines the fact that there is no dispute with regard to the undivided share of Smt. Pushpa Devi and Late Smt. Shanti Devi (her legal heirs) and they are required to deal with the undivided share only. That apart, there is no express order of the learned Single Judge on November 24, 2009 granting liberty to the appellant Smt. Pushpa Devi to part with the possession ofher undivided share. In fact, this appears to be the understanding ofthe Smt. Pushpa Devi, as is clear from para 27, of her appeal, wherein she has referred to alegal opinion sought by her, wherein she was advised, that there is no bar for her to deal with her share including transferring the possession. In other words, on legal advise she has transferred the possession, which pre supposes her understanding that order dated November 24, 2009 may not have directed the transfer of possession. The plea ofMr. Nigam, that order dated November 24, 2009 does not bar or put fetters on Smt. Pushpa Devi and the legal heirs of Smt. Shanti Devi for transferring the f sentence records ''The dispute is only in respect of1/3'''undividedshare oflate Smt. Simla Devi". But ifthe order is read in totahty, the last line, wherein, the Court has said -however since the property is not divided sofar, the defendants shall remain entitled to undividedshare and they may deal with undividedshare"would become relevant. Surely in asuit for partition, every legal heir has an undivided share without demarcation. The Court was conscious of the fact that demarcation by metes and bound is yet to take place. Precisely for this reason it did not direct, transfer of possession and it could not have, as that would have made the suit infructuous. The reliance placed by Mr. Vashist on the judgment of the Supreme Court in the case of Ramdas v. Sita Bai and ors (supra) and Gajara Vishnu (supra), wherein the Supreme Court has held that undivided share of a co-sharer may be subject matter of sale but possession cannot be handed over to the vendee (purchaser) unless the property is partitioned, is appealing. The plea ofMr. Arvind Nigam that by necessary implication, the prayers in the lA were allowed and Smt. Pushpa Devi was entitled to deal with and part with possession ofthe ground floor ofthe suit property, is also without any merit.

32. The reliance placed by Mr. Nigam on the judgment ofthis Court in the case of Banne Singh v. State ofRajasthan (supra), to contend that the word 'Vo deal" the modes oftransfer ofproperty is concerned, the same would not be ofany help to the appellant Caravan, inasmuch it is the principle found out upon a reading of a judgment as a whole in the light of the questions before the Court that forms the ratio. In the said case, the High Court was dealing with various provisions of the IPC including Section 413 IPC, which relates to an offence ofhabitually dealing in ^ stolen property. It was in that context, the High Court has culled out adifference between "retaining" and "dealing" and held "to deal" implies that the offender has certain concern with the property either by keeping it in his possession, or parting with the ownership, or possession of the property through any of the modes of transfer ofproperty. It was in the context ofSection 413, the High Court has held the verb "to deal" is broader in its scope than the verb "retain". Whereas, in the case mhand, the word ''deal" has been referred to by the learned Single Judge in the order dated September 16, 2005 and also in the order dated November 24, 2009 in the context, to deal with "undivided share" in the property without parting with the possession. The said judgment has no application. Further it may be stated that, it is aconceded position that Surinder Kumar, defendant No.12, was not in possession ofsuit property, and could not have part with the possession. Ifthat be so, the parity granted to Smt. Pushpa Devi, must be read to mean, that she could not have part with possession. The plea that defendant No.l2-Surinder Kumar was never in t would not be tenable, inasmuch as on areading oforder dated September 16, 2005, it was clearlydirected that ^'status quo willbemaintainedin respectofpossession of theparties, toproperty No.42-44. SunderNagar, New Delhi" itselfclarifies that the parties could not have parted with the possession. We agree with the submission of Mr. Knshnan that ifMr. Nigam's inteipretation ofthe word "deal" is accepted then this direction ofstatus quo shall berenderotiose. Hence, the plea ofMr. Nigamthat Surmder Kumar was never in the physical occupation of the property is inconsequential/irrelevant. It would be irrelevant for these proceedings, the factum that modification ofstatus quo order was sought by the brothers ofSurinder Kumar was denied. The plea ofMr. Nigam, that Smt. Pushpa Devi had sought full reliefs in her application filed under order39 Rule 4CPC and her application was allowed as awhole vide orderdated November24, 2009 and not on concession isconcerned, the same is untenable, as is seen from prayers made and order passed, it is clearthat the counsel for Smt. PushpaDevi restricted the prayer, seekingparity qua defendant No.12 mview of order dated September 16, 2005. Surely, such aplea suggest concession, as he had not pressed the reliefas sought for in the application. The plea ofMr. Nigam, that the order dated November 24, 2009, places not fetters on Smt. Pushpa Devi regarding transfer ofpossession and the order dated September 16, 2005 stood subsumed in the order dated November 24, 2009 and camiot be without merit.

33. Insofar as the plea of limitation is concerned, there is no dispute that lA 22682/2012 was filed under Order 39Rule 2A CPC only without anyreference to or under the provisions of the Contempt of Courts Act. The limitation becomes relevant in view ofthe provisions ofSection 20 ofthe Contempt ofCourts Act and not when an application under Order 39 Rule 2A CPC is filed. Even otherwise, when the allegation is ofviolation ofan interim order ofthe Court, the application would not be hit by delay and laches. We may note in this regard thejudgment of the Gujarat High Court in the case of Bharatbhai Jivrajbhai v. Chaganbhai Samabhai and Anr. passed in Miscellaneous Civil Application No. 1751/2011 decidedon December14, 2012, wherein Gujarat High Court, on an identical pleaof limitation raised by the respondents 2, 4and 5therein and has rejected such aplea and observed that merely because the proceedings under Order 39 Rule 2A ofthe CPC for breach ofinjunction are considered to be akin to the proceedings under the Contempt ofCourts Act, the period oflimitation, as prescribed under Section 20 of the Contempt ofCourts Act would not be applicable. The Court also held that the Supreme Court in the case ofPallavSheth v. Custodian andors (2001) 7SCC549 has not held that the period of limitation prescribed under Section 20 of the conclusion. Suffice to state, no period of limitation is prescribed for initiating proceedings for breach of injunction under Order 39 Rule 2A CPC, which is provided under Section 20 ofthe Contempt ofCourts Act. It must be held that so long as the breach ofinjunction continues, the aggrieved party in whose favour there is an injunction, can initiate the proceedings for breach ofinjunction under Order39 Rule 2A ofthe CPC. That apart, it must also be held that Order 39 Rule 2A CPC being aspecial provision inserted in the Code, shall prevail over the general law of contempt contained in the Contempt ofCourts Act. Further, the submission ofMr. Arvind Nigam that the provisions of Section 21(1) of Limitation Act, 1963, to contend that Caravan, having been added in the suit on May 13, 2008 deemed to have been instituted on that date only and not earlier date and the order dated May 07, 1997 or September 16, 2005 cannot be read into order dated November 24, 2009 for the purposes of contempt is concerned, the same is also without any merit. There is no dispute that order dated November 24, 2009 was passed after May 13, 2008 when Caravan was impleaded as aparty in the suit. Further, on November 24, 2009 when the order was passed by the Court, Caravan was duly represented by the counsel. The said order explicitly records the statement made on behalfofappellant Smt. Pushpa Devi herein, defendant No.8 in the suit that Smt. Pushpa Devi defendant No.8 is also entitled to similar liberty as was given to defendant No.12 Caravan could have stated beforethe Court, that Smt. PushpaDevi isalso entitled to part with the possession of the ground floor of the suit property. No such submission was made and the said order dated November 24, 2009 must be understood that the appellant Smt. Pushpa Devi was entitled to deal with the property in the same manneras defendant No.12 and nothing more.

34. Insofar as the submission made by Mr. Nigam that the order dated November 24, 2009 is susceptible to two inte»ons is concerned, the same is also without any merit. We have already reproduced the orders passed by the learned Single Judge from time to time in the suit. The orders are very clear and explicit. There is nothing in the order dated November 24, 2009, which suggests that the prayers as made in lA 12948/2008 have been granted nor there is any express order giving libertytotheappellantSmt. PushpaDevitopartwiththepossession oftheproperty. The learned Single Judge was right in rejecting this plea in paras 12 and 13, which we have already reproduced above.

35. The reliance placed by Mr. Nigam on thejudgments ofthe Supreme Court in the case of State ofBihar v. Sonabati Kumari (supra), Sushila Raje Holkar (supra) and TamilMercantile Bank (supra) are not applicable in the facts ofthis case, as there is no ambiguity in the order and the same is capable ofonly one Mr. Nigam. Theprayers made in the apphcation suggest that it is the understanding ofSmt. Pushpa Devi also that there is abar on her to part with the possession ofthe ground floor ofthe property in question, which surely would make the action as a deliberate and willful.

36. Insofar as the plea ofMr. Nigam that the legal heirs of late Smt. Bimla Devi 4 have occupied more than M'- ofthe suit property, much above the share oflate Smt. Bimla Devi is also without merit, as the nature ofproperty being undivided, and not partitioned, the shares are not determined. In any case, such an argument is not tenable when the allegation is ofviolation oforders passed by the Court.

37. Insofar as the plea of Mr. Nigam that two sons of late Smt. Bimla Devi mcludmg the respondems 1and 2never occupied any part ofthe ground floor ofthe suit property and their possession on the first floor and terrace remained undisturbed • smce 1994withaseparateentry/exitpointisalsowithoutanymerit,asthesuitisfor partition may be inter-se between the legal heirs oflate Smt. Bimla Devi but there is no partition by metes and bounds between the legal heirs oflate Smt. Bimla Devi, Smt. Pushpa Devi and the legal heirs ofSmt. Shanti Devi. So, it was not conclusive that Smt. Pushpa Devi had aclear tifle of the ground floor so as to part with the possession ofthe same. The right was only an undivided right and occupation ofthe 1l with possession ofthe ground floor.

38. The pleaofMr. Nigam, that Caravan has been restrained from transferring the ground floor ofthe suit property in CS(OS) 1587/2011 and the appellant is ready and willing to undertake to be bound by the decision of the said suit and upon division ofthe property accept any part ofthe suit property as it sharealso does not appeal us, as we are inthis case concernedwiththe violation oforderspassed in suit being CS(OS) No.1561/1994 and it is the legality of the impugned order of the learned Single Judge, which needs to be adjudicated and nothing more. An order passed in another suit being CS(OS)No. 1587/2011 against M/s Caravanrestraining it from transferring the ground floor would have no bearing on these appeals. The said order in CS(OS) No. 1587/2011 is to the effect that M/s Caravan would not create third party rights by transferring it fiirther, which has no bearing on the fact whether Smt. Pushpa Devi could have parted with the possession of the ground floor.

39. The plea ofMr. Nigam that the plaintiff instituted the suit only in order frustrate the suit ofspecific performance filed by M/s Caravan and the application under Order 39 Rule 2A CPC was filed by the plaintiff with ulterior motives is inconsequential when the Court below and this Court is concerned with violation of to

40. Similarly, the plea of Mr. Nigam that the plaintiff has instituted the suit to overcome the Agreements to Sell dated November 15, 1991 and November 16, 1992 is also inconsequential, which has no bearing on the plea ofthe respondents 1and 2 alleging violation of order dated November 24, 2009.

41. Further, the plea ofMr. Nigam that it was incumbent on the learned Single Judge to decide application being lA No. 15875/2013 under Order 7 Rule 11 CPC relating to the issue ofmaintainability ofthe suit first as the same goes to the root of the matter also does not appeal us, when the issue relates to non-compliance of orders in the suit where the said lA has been filed. The non consideration of the lA is no ground for violating orders already passed. The plea that sufficient time was not granted to put forth the arguments before the learned Single Judge is also not tenable, as we find that the appellants had in fact violated/overreached the orders.

0 Further while hearing the appeals, this Court has granted sufficient time to the learned counsel for the parties to argue the appeals and as the final conclusion would determine, the appeals are without any merit, impugned order cannot be faulted on that ground.

42. On the submission relatable to Section 44 of the Transfer of Property Act, suffice to state the possession ofthe ground floor could not have been parted with, 1%

43. Insofar as the submission made on behalf of appellant Smt. Pushpa Devi by Mr. Deepak Sahni that the appellant being of old age, decided to settle the matter with M/s Caravan and agreed to sell her 1/3^'' undivided share in the property to Caravan with delivery ofpossession ofthe ground floor on the advise ofher counsel is not convincmg. No argument has been made during the appeal neither by the counsel of the Caravan or the appellant herein that they are ready to reverse the possession. Her right to sell her 1/3'''^ share is not disputed/contested but she could not have parted with possession in view of order dated November 24, 2009, which was passed on her asking whereby she was permitted to deal with her undivided share. The contention that she had an absolute right including delivery/transfer of possession of the ground floor is not acceptable as the mandate of the orders including order dated November 24, 2009 was to maintain the sanctity of possession.

44. Insofar as the judgments referred to by Mr. Nigam are concerned, in Sahdev@ Sahdo Singh (supra), is concerned, in the said case in para 16 and para 20, on which reliance was placed, the Supreme Court held that punishment under the law ofcontempt is called for when the lapse is deliberate and action cannot be taken in an unclear case and the charge has to be proved beyond reasonable doubt. In the Smt. Pushpa Devi that there is no such order. It is her case that on legal advise, the possession was parted with. No attempt was made, at least not brought to our notice to give/take back the possession of the ground floor, surely suggest the contumacious conduct and act, which is not bonafide. The judgment has no applicability in the facts ofthis case.

45. Insofar as the judgment in the case ofState ofBihar v. Usha Devi (supra) is concerned, the same has no applicability to the facts of this case. More so, when prejudice has been caused to the plaintiffs (respondents 1and 2) with the parting with possession ofthe ground floor when partition has not been effected between the legal heirs of Late Simla Devi, Smt. Pushpa Devi and the legal heirs of Shanti Devi.

46. In view of our discussion above, we are ofthe view that the appeals filed devoid ofany merit. The same are dismissed. Time to deliver/for taking possession ofthe entire ground floor ofthe suit property by Caravan and Smt. Pushpa Devi is extended by eight weeks from today.

47. As the Learned Single Judge has observed that the matter of awarding punishment will be dependant on the compliance of impugned order, which period, are CM No. 14139/2014 in FAO(QS^ 385/2014 ffor stay) CM No. 14143/2014 in FAOfOS^ 386/2014ffor stny) Dismissed as infructuous.

MARCH 08, 2017 •I &£>

V. KAMESWARRAO,J

INDIRA BANERJEE, J