Delhi High Court
Vasudev vs Roop Kumar (Deceased) Thr Lrs & Ors on 4 March, 2025
Author: Sanjeev Narula
Bench: Sanjeev Narula
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20th January, 2025
Pronounced on: 04th March, 2025
+ RFA 674/2014 & CM APPL. 51785/2022, CM APPL. 72603/2024
VASUDEV .....Appellant
Through: Mr. Rakesh Saini, Advocate.
versus
ROOP KUMAR (DECEASED) THR LRS & ORS. .....Respondents
Through: Mr. Tarun Diwan and Ms. Pyari,
Advocates.
CORAM:
HON'BLE MR. JUSTICE SANJEEV NARULA
JUDGMENT
SANJEEV NARULA, J.:
1. This judgment would resolve the dispute pertaining to possession of a
Suit Property,1 mired in conflicting claims of ownership, that has entangled
the parties in an unrelenting legal battle, that has stretched across nearly four
decades. Both sides steadfastly assert their rights through contested
documents. Over the years, the parties have made repeated rounds of courts,
one relying on a sale deed and a Will, the other on a receipt as a transfer
deed. The litigation has meandered through various courts, with neither side
willing to cede ground. As a result, what is before this Court today is not
merely a question of possession, but the culmination of a prolonged and
exhausting legal struggle.
1
Described in Paragraph No. 3.
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By:AKANSHA SINGH
Signing Date:06.03.2025
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2. Moreover, the Suit property, originally a vacant plot of land, is now
fully constructed upon and inhabited. Thus, the Court is not oblivious to the
consequences of this judgment. If the Respondents succeed, the Appellant’s
long-settled possession will inevitably be disrupted. However, prolonged
occupation, in and of itself, cannot override the fundamental principles of
ownership and legal entitlement. The mere passage of time does not confer
legitimacy upon an unlawful possession, nor can it be a ground to deny
relief to a rightful owner who has persistently pursued her claim.
Recognizing the protracted nature of the dispute and the high likelihood that
any judicial outcome would be challenged by the unsuccessful party, the
Court actively encouraged mediation as a potential avenue for resolution. A
negotiated settlement would have been the most pragmatic solution, sparing
both parties further legal battles and uncertainty. However, despite best
efforts, no settlement materialized. This Court, therefore, is left with no
option but to adjudicate the matter on its legal and factual merits. It is
nonetheless hoped that this judgment will bring long-overdue finality to a
dispute that has persisted for over 37 years, resisting resolution at every
stage. The cycle of litigation will hopefully now end.
3. For convenience, Mr. Vasu Dev, the Appellant and Defendant No.1 in
the original suit, will be referred to as the ‘Defendant’. Mrs. Roop Kumari,
the Plaintiff in the original suit, has since passed away and is now
represented by her Legal Representatives, the Respondents, and will be
collectively referred to as the ‘Plaintiff’.
The Appeal
4. The Defendant seeks setting aside of the Judgement and Decree dated
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By:AKANSHA SINGH
Signing Date:06.03.2025
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9th September, 2014,2 passed by the Additional District Judge, in Suit No.
141/2014.3 The suit was instituted by the Plaintiff seeking possession of
property bearing no. J-21, Pandav Nagar, Near Mother Diary, Patparganj,
New Delhi,4 along with damages. Through the Impugned Judgement the
Trial court has decreed the suit in favour of the Plaintiff, granting them
possession of the Suit Property. Additionally, pendente lite and future
damages at the rate of ₹1,000/- per month, until the delivery of vacant
possession of the Suit Property, have been awarded in their favour. The
costs of the suit (₹9,701/-) were also awarded in favour of the Plaintiff.
The Controversy
5. The Defendant, Mr. Vasu Dev, and the Plaintiff, Mrs. Roop Kumari@
Banarsoo Devi, trace their ownership to the same original owner–Mr.
Kishan Chand Jain. The Plaintiff asserts that her father, Mr. Kishan Chand
Jain, sold half of the Suit Property to her through a sale deed dated 6th
October, 1954. Additionally, she relies on a Will dated 25th February, 1969,
executed by Mr. Kishan Chand Jain, through which the remaining 50% of
the Suit Property, along with other assets, was bequeathed to her and other
legal heirs. Conversely, the Defendant claims ownership through a different
chain of title, asserting that he purchased the Suit Property from Mr. Kailash
Chand by virtue of agreement to sell dated 9th January, 1984. According to
him, Mr. Kailash Chand had earlier acquired the Suit Property from Mr.
Kishan Chand Jain vide a receipt dated 10th July, 1953. The Defendant
further contends that this receipt was executed by Mr. Kishan Chand at the
behest of late Mr. Lala Rati Ram Jain, who had purchased the property in
2
“Impugned Judgement”
3
Renumbered: [Old Suit No. 694/88]
4
“Suit Property”
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By:AKANSHA SINGH
Signing Date:06.03.2025
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the name of his grandson, Mr. Kailash Chand.
6. The dispute thus emanates, with one party relying on an unregistered
sale deed and a Will, while the other anchors his claim in an unregistered
receipt and subsequent transfers of ownership rights. However, beyond the
issue of title, the question of delivery of possession also assumes
significance, as it plays a crucial role in determining the Plaintiff’s claim of
ownership.
Procedural History
7. The suit was initially decreed in favour of the Plaintiff by the Trial
Court vide judgment dated 29th August, 2001. The said judgment was
assailed by the Defendant in Regular First Appeal [484/2001] before this
Court. Furthermore, a separate proceeding to determine mesne profits was
held following the judgment dated 29th August, 2001, during which both
parties adduced evidence to support their respective claims. The Trial Court,
after considering the evidence, awarded mesne profits/damages in favour of
the Plaintiff. This award was then challenged by the Defendant through RFA
No. 246/2008, wherein the execution of the awarded damages/mesne profits
was stayed. In these appellate proceedings, this Court by its common order
dated 01st February, 2012, allowing an application under Order 41 Rule 27
of the Code of Civil Procedure, 1908,5 remanded the matter to the Trial
Court for fresh consideration. The remand order, while setting aside the
earlier judgment dated 29th August, 2001, restricted the scope of fresh
evidence strictly to the aspect of possession of the Suit Property from 1953
until the filing of the suit in 1988. The order of remand reads as follows:
5
“CPC”
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By:AKANSHA SINGH
Signing Date:06.03.2025
19:56:42
“RFA No.246/2008, RFA No.484/2001 and CM No.7176/2008(u/O.41
R.27CPC)
1. This application being CM No.7176/2008 is an application under
Order 41 Rule 27 CPC to file on record the certified copies of the revenue
records, and which are public documents under Section 74 of the Indian
Evidence Act, 1872.
2. Counsel for the parties agree that the appeals be remanded back
after allowing the application under Order 41 Rule 27 CPC, however, both
the parties be allowed to lead documentary evidence on the aspect of
possession of the suit property from 1953 till the date of filing of the suit.
It is clarified that no other evidence will be allowed to be led by any of the
parties in the Trial Court. Both the parties can however cross-examine
the witnesses of the other party with respect to the documentary evidence
which is led and filed in the case including the documentary evidence
which has been filed along with the present application under Order 41
Rule 27 CPC.
3. Counsel for the respondents agrees to allowing the application,
subject to payment of costs of `25,000/-, and therefore, the application is
allowed and costs of `25,000/- shall be positively paid within a period of 4
weeks from today to the counsel for the respondents.
4. Parties to appear before the District and Sessions Judge, Tis
Hazari, Delhi on 1.3.2012, and on which date, the District and Sessions
Judge, Tis Hazari, Delhi will mark the suit limited to disposal after leading
of evidence on the aspects within the narrow compass as stated in the
present order. The Trial Court will after be hearing both the parties,
again pass a fresh judgment in accordance with law. It is clarified that
none of the parties will be entitled to delay the case by moving applications
including amendment applications with respect to their pleadings. The
Trial Court will be entitled to impose heavy costs on the party seeking
unnecessary adjournments.
5. The concerned Court is directed to complete the evidence of the
parties in a period of approximately about one year from the date it receives
the copy of the present order, and thereafter, the Trial Court will proceed to
urgently hear the final arguments and pass the judgment in accordance with
law. It is also clarified that none of the parties will be entitled to more than
3 opportunities to lead evidence. The documents in power and possession of
the parties, which is proposed to be led as evidence, be filed within a period
of 4 weeks from the first date which is fixed before the competent Court for
disposal of the suit. Nothing contained in today’s order is a reflection on
merits of the case of either of the parties, and the Trial Court will dispose of
the suit after the evidence is led by both the parties in terms of today’s order
and in accordance will law.
6. Appeals and the application are disposed of accordingly by setting
aside the impugned judgments.
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By:AKANSHA SINGH
Signing Date:06.03.2025
19:56:42
7. Parties are left to bear their own costs. Trial Court record be sent
back so as to be available to the District and Sessions Judge, Tis Hazari,
Delhi on 1.3.2012.”
8. Both parties were thus granted an opportunity to adduce documentary
evidence exclusively on the aspect of possession of the Suit Property from
1953 until the date of filing of the suit, i.e., 10 th August, 1988. The scope of
evidence was strictly confined to this issue, and it was expressly clarified
that no additional evidence beyond this aspect would be permitted.
However, both parties retained the right to cross-examine the opposite side’s
witnesses on the documentary evidence produced. Further, the Trial Court
was directed to adjudicate afresh, considering the additional evidence, and
pass a fresh judgment after hearing both parties. Pursuant to these directions,
the Trial Court proceeded to determine the case based on the issues initially
framed on 3rd May, 1989, which are extracted below:
“1) Whether this Court has no pecuniary jurisdiction to decide the
suit as alleged in preliminary objection No.1 & 2 of the Written
Statement filed by the defendant no. 1? OPD
2) Whether the suit has not been properly valued for the purposes
of Court fee and jurisdiction? OPD
3) Whether the plaint has been signed, verified and the suit
instituted by a duly authorized person? OPP
4) Whether the suit is barred by time? OPD
5) Whether the defendant has become the owner of the suit
property as alleged in para-5 of the preliminary objection of the
written statement of defendant no. 1? 0PD
6) Whether the plaintiff is the co-owner of the suit property as
alleged in para – 1 of the paint? OPP
7) To what amount by way of damages, at what rate and for what
period, is the plaintiff entitled to recover from the defendant no.1?
OPP
8) Whether the plaintiff in entitled to recover the possession of the
suit property from defendant no. 1? OPP
9) Relief.”
9. On consideration of the oral and documentary evidence adduced by
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By:AKANSHA SINGH
Signing Date:06.03.2025
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the parties, the Trial Court arrived at the following findings:
“Issues no. 1 and 2 :
12. Perusal of the record of the case reveals that the Ld. Predecessor
of this Court had decided issues no. 1 and 2 in favour of the plaintiff vide
orders dated 21.05.1999. The plaintiff was directed to pay the deficient
court fees. As per the orders dated 03.06.1999, the plaintiff had
relinquished her claim of damages of Rs. 18,000/- only in order to bring
the suit within the pecuniary jurisdiction of this Court. The Ld.
Predecessor of this Court vide orders dated 21.08.1999 has further held
that since the part of the claim, which was beyond the jurisdiction of the
Court was relinquished by the plaintiff, this Court had the jurisdiction to
try and entertain the present suit. Perusal of the record of the case
further reveals that the said orders dated 21.08.1999 were challenged by
the defendant no.1 vide CR no. 874/99, but the said Revision Petition was
also dismissed by the Hon’ble High Court of Delhi vide orders dated
12.07.2001. As such, both the above said issues stand already decided
vide orders dated 21.05.1999 and 21.08.1999.
Issue no. 3 :
13. The defendant no.1 in the written statement has taken the
objection that the present suit has not been signed, verified and filed by a
competent person.
14. The present suit has been filed by Sh. R.L. Kumar, Husband and
Attorney of the deceased plaintiff on the basis of the GPA executed by the
deceased plaintiff in his favour. Perusal of the plaint reveals that the
plaint has been signed by the deceased plaintiff as well as her husband
and GPA holder Sh. R.L. Kumar. The verification to the plaint has also
been duly signed by the plaintiff herself as well as by the GPA, who has
appeared as PW1 in the present suit. PW1, in his examination-in-chief,
has categorically stated that the original GPA was filed alongwith the
suit and the same bears his signatures as well as the signatures of his
wife and the same was attested by a Notary Public. Perusal of the cross-
examination of PW1, to my mind, reveals that PWI has not been cross-
examined so far as the GPA in favour of the PWI is concerned. Perusal
of the record of the case reveals that the original GPA dated 10.08.1988
is there on record and the same is attested by a Notary Public as well.
Relying upon the ratio of the authority cited as JT 2004(10) Supreme
Court 264 titled as Janki Vashdeo Bhojwani and Anr. v. Indusind
Bank Ltd. and Ors, Ld. Counsel for the defendant has argued that the
GPA, in the case in hand, cannot be relied upon as the same was neither
tendered in evidence, nor proved as per Section 85 of the Indian
Evidence Act. It has been further argued that the plaintiff failed to
appear in the witness box and as such, the testimony of GPA cannot be
relied upon. Whereas on the other hand, Ld. Counsel for the Plaintiff has
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Signing Date:06.03.2025
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relied upon the authority titled as Mankaur Singh Vs. Hartar Singh
Sangha cited as 2010(10) SCC 512.
15. If the pleadings of the parties and the evidence led as a whole, is
carefully gone through, I am of the opinion that in the case in hand, it
becomes apparently clear that the husband and Attorney of the plaintiff
has the personal knowledge of the things and as such, to my mind, the
plaintiff has been able to prove that the suit has been instituted by a duly
authorized person. As stated by me herein above, the plaint has not only
signed and verified by the plaintiff herself, but by her husband and
Attorney as well. As such, the above said issue no.3 is decided in favour
of the plaintiff and against the defendant no.1.
Issues no. 5,6 &8
16. All these issues are taken up together as the same are connected
interse and over lap each other.
17. PW1 has placed on record the original Sale Deed dated
26.03.1953 executed by Delhi Housing Company in favour of Sh. Kishan
Chand. The said Sale Deed has been proved by PW 5 Sh. Brij Nandan
Lal. PW5, in his evidence, has stated that the said Sale Deed pertains to
the suit property and this witness has signed the said sale deed Ex.PW1/6
as an attesting witness. The defendant no.1, on the other hand, has relied
upon the document dated 10.07.1953 to prove that Sh. Kailash Chand
Jain through his grandfather Late Sh. Lala Rati Ram Jain had purchased
the suit property from Sh. Kishan Chand S/o Sh. Thakur Dass. The
defendant no.1 has further stated that in turn, he had purchased the said
property from the said Kailash Chand Jain vide documents i.e. receipt as
Ex.DW3/1, the agreement dated 09.01.1984 as Ex.DW3/2, the Will dated
09.01.1984 as Ex.DW3/3, the affidavit as Ex.DW3/4 and the GPA as
Ex.DW3/5.
18. From the above mentioned documents, it is apparently clear that the
plaintiff and the defendant no.1, both derived their title from Sh. Kishan
Chand Jain S/o Sh. Thakur Dass, who was the original owner of the suit
property. As per the case of the plaintiff, her father Sh. Kishan Chand S/o
Sh. Thakur Dass vide Sale Deed dated 06.10.1954 had sold the half of
the suit property to the deceased plaintiff Smt. Roop Kumari for a
consideration of Rs. 98/- only. The said Sale Deed dated 06.10.1954 has
been filed on record as Ex.P1. The plaintiff has examined PW2 Sh.
Gurditta Mal, who is the attesting witness to the said Sale Deed as PW2.
PW2, in his examination-in-chief has categorically stated that Ex.Pl was
scribed by Sh. Kishan Chand, the deed writer in his presence and he has
identified the handwriting of the said deed writer. PW2 has further stated
that Sh. Kishan Chand, the executant of the said sale deed has put his
signatures at point A in his presence. If the examination in-chief and the
cross examination of PW2 is carefully gone through it becomes evidently
clear that the testimony of this witness is not shaken even in the cross-
examination. No suggestion has been given to the above said witness to
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the effect that Ex.P1 was not scribed by the Deed Writer Sh. Kishan
Chand. I am of the opinion that the plaintiff has been able to prove the
due execution of the above said Sale Deed Ex. P1.
19. The plaintiff has further relied upon the certified copy of the Will
EXPW/1 vide which the suit property as well as the other properties and
assets of Sh. Kishan Chand are said to have been probated in favour of
the plaintiff and other legal heir of Sh. Kishan Chand. Certified copy of
the orders dated 05.07.1995 of the Probate Court in the form of Ex.P2 is
there on record. The said certified copy reveals that the Succession
Certificate has to be issued in terms of the orders dated 29.02.1980.
Perusal of the said document Ex. P2 reveals that the Probate was sought
by the attorney of the plaintiff and the Probate Court after perusing the
orders dated 29.02.1980 passed by the then Ld. Sub-Judge ordered the
issuance of the Succession Certificate as there was an agreement
between the parties vide Ex.P1. The certified of the orders dated
21.02.1980 in the form of Ex. PW 1/3 is there on record, which was
relied upon in the order Ex. P2. The compromise application Ex. P1/2 is
also there on record. Half of the portion of the suit property has been
mentioned therein. It has been stated that in the said compromise
application, half portion of the suit property shall vest with the plaintiff
and her son Sh. Bhushan Kumar (defendant no.2) and two other legal
Representatives of late Sir. Kishan Chand in equal shares.
20. In the written final arguments filed on record by the Ld. Counsel for
the defendant no.1, it has been argued that the original Will was neither
produced before the Ld, Probate Court, nor it has been produced before
this Court and in the absence of the original Will, its execution cannot be
proved.
21. It has to be seen that the Will Ex. PW1/1 stand probated vide orders
Ex. P2 of the Probate Court. This Court cannot loose sight of the fact
that Ex.P2 i.e. the orders passed by the Ld. Probate Court have attained
finality because the said orders have neither been challenged nor been
set aside. The orders passed by the Probate Court Ex.P2 is a judgment in
rem and the same operates as a conclusive finding on the validity of the
Will Ex. P1/1. In the judgment reported in AIR 1984 SC 1866, it has been
held that:
“it is well settled that the decision of the Probate Court is a
judgment in rem and grant of certificate by the Probate Court is
conclusive of the validity of such Will until it is revoked and no
evidence can be admitted to impeach it except in the proceedings
taken for revoking the probate.”
22. Whereas, on the other hand, the defendant no. 1 claims the
ownership of the property in question on the basis of the documents.
Ex.DW3/1 to Ex DW3/5. As per the case of the defendant no.1, he
purchased the property from Sh. Kailash Chand by virtue of the said
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documents dated 09.01.1984. It has been further stated that Sh. Kailash
Chand had purchased the suit property in question from Sh. Kishan
Chand S/o Late Sh. Thakur Dass vide receipt dated 10.07.1953. A copy
of the said receipt has been placed on record in the form of Mark A,
Except the abovesaid receipt Mark A, there is no other document
showing the sale of the suit property by Sh. Kishan Chand to Sh. Kailash
Chand Jain through his grandfather Late Sh. Rati Ram Jain.
23. The vital question to be considered by this Court is as to whether
the defendant no.1 has been able to prove the said receipt Mark A in
accordance with the provisions of the Indian Evidence Act or not. This
Court has to consider as to whether the said receipt can be looked into
by the Court for collateral, purposes as has been argued by the Ld.
Counsel for the defendant.
24. First of all, it has to be seen that the said receipt contains a
recital to the effect that the suit property was sold for a sum of Rs, 150/-.
As per Section 17 of the Indian Registration Act, 1908, any non-
testamentary instrument which purports or operates to create, declare or
assign any right, title or interest in immovable property of the value of
Rs. 100/- or more is required to be compulsory registered. This is not the
case of the defendant no. 1 that the document Mark A falls in any of the
causes as contained in Section 17(2) of the Indian Registration Act.
Admittedly, the said receipt Mark A is unregistered and is on a plain
piece of paper. As such, I am of the opinion that the said document Mark
A cannot confer any valid title on Sh. Rati Ram Jain or on Sh. Kailash
Chand Jain in respect of the suit property.
25. Furthermore, it has to be seen that Sh. Kailash Chand, who has
been examined as DW5, has stated that the document Mark A was not
executed in his presence and he has not even identified the signatures of
Sh. Kishan Chand on the said document. DW5, Sh. Kailash Chand Jain
has not stated in his evidence that how this document Mark A has come
in his possession. As such, I am of the opinion that it cannot be said that
the document Mark A has come from proper custody. I am of the opinion
that the document Mark A has not been proved at all by the defendant
no.1.
26. Ld. Counsel for the defendant no 1 has vehemently argued that
this document can be looked into by the Court at least for collateral
purposes. It has been argued that at least for the purposes of verifying
the possession of the defendant no. 1 or his successor-in-interest over the
suit property from the year 1953 the document Mark A can be looked
into by the Court. I am of the opinion that the abovesaid submission of
the Ld. Counsel for the defendant no. 4 is absolutely fallacious. To my
mind, the document Mark A has not been proved at all by the defendant
no. 1 and as such, the said document cannot be looked into by the Court
even for collateral purposes. Otherwise also, I am of the opinion that the
transfer of the possession of the suit property by virtue of the document
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Mark A has also not been proved as there is no evidence on record to
show that the suit property was in physical possession of Sh. Kailash
Chand Jain at any point of time.
27. The present suit was remanded back to this Court vide orders
dated 01.02.2012 passed by the Hon’ble High Court of Delhi with the
observations that both the parties were allowed to lead the documentary
evidence on the aspect of the possession of the suit property from 1953
till the date of the filing of the present suit. As such, this Court has to
consider as to whether the defendant no.1 has been able to prove on
record that either he himself, or his successor-in-interest was in
continuous and uninterrupted possession of the suit property right from
the year 1953. In para no.5 of the written statement, the defendant no. l
has taken the stand that Sh. Kailash Chand Jain was in possession of the
suit property since 1953 and he was enjoying the property in question as
an absolute owner thereof.
28. After the passing of the orders, dated 01.02.2012 by the Hon’ble
High Court of Delhi, the defendant no 1 has examined as many as six
witnesses as DW6 to DW12. DW6 has placed on record the Khatoni of
Khasra no. 1/125(0-2) of village and Revenue Estate Gharonda Neen Ka
Bangar, Delhi pertaining to the years 1964-65 and 1968-69. Certified
copies of the said Khatonies have been placed on record as Ex.DW6/1
and DW6/2. In the cross-examination, DW6 has categorically stated that
he cannot tell as to whether the said entries pertained to the property in
question in the present suit. Ld. Counsel for the plaintiff, during the
course of the arguments and in the written final arguments as well, has
vehemently argued that the defendant no.1 has failed to establish any
link in between Khasra no. 1/125 and the suit property which bears no.
as J-21, Pandav Nagar, Delhi. I am of the opinion that if the cross-
examination of DWs is carefully gone through, it becomes apparently
clear that none of the DWs has established any link in between Khasra
no. 1/125 and the suit property. None of the DWs have proved that the
suit property, which has been mentioned as J-21, Pandav Nagar. Delhi
by the plaintiff and stand admitted by the defendant no. l in the written
statement forms part of Khasra no. 1/125 or falls under Khasra no.
1/125. D6, who has been examined by none other, but by the defendant
no. 1 has categorically stated in his cross-examination that he cannot tell
whether the entries as mentioned in the revenue record Ex. DW6/1 and
Ex. DW6/2 pertains to the property in question. I am of the opinion that
the onus was upon the defendant no. l to establish on record that Khara
no. 1/125 actually pertained to the suit property, which bears the number
as J-21, Pandav Nagar, Delhi. As such, I am of the opinion that by the
testimonies of DW6 to DW12, the defendant no.1 has not been able to
prove on record that either the defendant no.1 or his successor-in-
interest was in continuous and uninterrupted possession of the suit
property right from the year 1953. Perusal of the House Tax receipt in
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the form of Ex. DW3/6 to Ex.DW3/8 and Ex. PW3/9 as well also revealed
that the same pertains to the period after the filing of the present suit and
as such, the said receipts are of no help to the defendant no.1.
29. The defendant no. 1, in the written statement, has taken the stand
that he was put into the physical possession of the suit property by Sh.
Kailash Chand Jain in the year 1983 and the sale transaction in between
them was completed on 09.01.1984. The defendant no.1 has further
stated that nobody disputed the title and the possession of the
defendant no. 1 over the suit property.
30. I am of the opinion that the defendant no.1 has vehemently failed
to prove that Sh. Kailash Chand Jain was in uninterrupted possession of
the suit property from the year 1953. So far as the possession of the
defendant no. is concerned, the plaintiff himself in the plaint has
categorically asserted that he came to know in the year 1983 that the
defendant no.1 occupied the property illegally and wrongfully in the year
1983. The plaintiff has placed on record a notice dated 01.03.1988 in the
form of Ex.PW1/4, AD Card has also been placed on record as Ex
PW1/5, In para no.6 of the plaint it has been pleaded that the notice
dated 01.03.1983 was sent by the plaintiff to the defendant no.1 and after
non-compliance of the notice by the defendant no. 1, the present suit has
been filed. In the corresponding para no.6 of the written statement of the
defendant no.1, there is no denial of the receipt of the notice dated
01.03.1983. As such, I am of the opinion that the defendant no.1 has
failed to prove that either he himself or his successor-in-interest has been
in continuous and uninterrupted possession of the property in question
right from the year 1953.
31. The sale deed Ex.P1 specifically states that half portion of J-21,
Pandav Nagar with vacant possession was sold to the plaintiff by her
father and by virtue of the Will Ex.PW1/1, all the movable and
immovable property by the father of the plaintiff were divided equally
amongst the legal heirs as mentioned in the Will
32. In the light of the above said discussion. I am of the opinion that the
defendant no.1 bas failed to prove issue no,5 in his favour and
accordingly, issue no.5 is decided against the defendant no 1. I am also
of the opinion that the plaintiff has been able to prove that she is co-
owner of the suit property and as such issue nod is decided in flour of the
plaintiff. I am also of the opinion that the plaintiff is entitled to recover
the possession of the suit property from the defendant no.1, Accordingly,
issue no. 8 is decided in favour of the plaintiff and against the defendant
no.1.
Issue no. 4 :
33. The onus to prove this issue has been placed upon the defendant
no.1. The categorical assertion of the plaintiff in the plaint is that he
came to know in the year 1988 that the defendant no.1 had illegally
occupied the property in question in the year 1983. The legal notice
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Ex.PW1/4 dated 01.03.1988 was issued by the plaintiff to the defendant
no.1. The receipt of the said legal notice is not denied. As such, I am of
the opinion that the defendant no.1 has failed to establish on record as to
how the present suit is barred by the Law of Limitation. Accordingly,
this issue is decided against the defendant no.1 and in favour of the
plaintiff.
Issue no.7 :
34. Issue no.7 pertains to the claim of the damages. If the pleadings and
the evidence led by the parties is carefully gone through, it becomes
evidently clear that the superstructure on the plot was raised by the
defendant no.1 and the plaintiff merely raised the boundary wall on the
plot and affixed the gate on it. Keeping in view the entirety of the facts
and the evidence led by the parties, I am of the opinion that if the
damages are awarded to the plaintiff @ Rs. 1,000/ – per month, the same
would be sufficient to meet the ends of justice. As such, I hereby award
the damages to the plaintiff @ Rs. 1,000 per month from the date of the
filing of the present suit till the date of the delivery of the vacant and
peaceful possession of the suit property by the defendant no. 1 to the
plaintiff.
Relief:
35. In the light of my findings on the foregoing issues, the suit of the
plaintiff is hereby decreed for possession in favour of the plaintiff and
against the defendant no.1 in respect of the plot no. J-21, Pandav Nagar,
Near Mother Dairy, Patparganj, New Delhi. The pendente-lite and future
damages till the date of the delivery of the vacant possession of the suit
property are also granted to the plaintiff @ Rs, 1,000/- per month. The
costs of the suit are also awarded is favour of the plaintiff
Decree sheet be prepared accordingly by the Reader.
File be consigned to record room after necessary compliance.”
10. Aggrieved by the Impugned Judgment, the Defendant has preferred
the present appeal. By an order dated 4 th May, 2016, this Court granted a
conditional stay on the execution of the Impugned judgement and decree,
subject to the Defendant’s compliance with the payment of past decretal
amounts at the rate of ₹1,000/- per month from August 1988 to June 2016,
and an enhanced amount of ₹10,000 per month from July 2016 onwards.
Additionally, the Defendant was directed to maintain status quo with respect
to both possession and construction on the Suit Property.
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11. Alleging non-compliance with the Court’s directions, the Respondents
herein filed an application [CM Appl. 51783/2022] under Section 12 of the
Contempt of Courts Act, 1971, contending that the Defendant had
undertaken fresh construction on the Suit Property and inducted new tenants
in clear violation of the status quo order. Taking cognizance of these
allegations, this Court, vide order dated 30th November, 2022, issued notice
in the contempt application and appointed a Local Commissioner to inspect
the property. The Commissioner was tasked with ascertaining the extent of
existing construction, identifying the current occupants, and determining the
date and nature of their occupation.
12. On 28th March, 2023, in light of a substantive contempt petition
[Contempt Case No. 1319/2022] having been instituted, the counsel for the
LRs of Mrs. Roop Kumari, withdrew the contempt application [CM Appl.
51783/2022] filed in the present appeal. On the same date, with the consent
of both parties, the matter was referred to the Delhi High Court Mediation
and Conciliation Centre to explore a settlement. However, the mediation
proved unsuccessful, and the case proceeded for final arguments.
Contentions on behalf of the Appellant
13. Mr. Rakesh Saini, counsel for Mr. Vasu Dev, contends as follows:
13.1. The suit, in its present form, was not maintainable before the
Trial court. The Defendant had raised serious disputes regarding Plaintiff’s
ownership, possession, and title, which required the Plaintiff to institute a
suit seeking a declaration of title along with possession. A mere suit for
possession, without seeking declaratory relief, was not maintainable in light
of the judgment in Anathula Sudhakar V P. Buchi Reddy by Lrs and Ors.66
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13.2. Pursuant to the remand order dated 1st February, 2012, the
specific issue before the Trial Court was to determine which party had been
in continuous physical possession of the Suit Property from 1953 until the
filing of the suit. However, the Impugned Judgment does not explicitly
record any conclusive finding on this aspect. This omission renders the
decision incomplete and flawed, as the conclusions rest on conjecture rather
than a definitive assessment of possession.
13.3. The issue of physical possession is fundamental as the
Plaintiff’s claim of ownership of the Suit Property is based on an
unregistered sale document. Although such a document may not be required
to be compulsorily registered under Section 17 of the Registration Act,
1908, but it must still satisfy Section 54 of the Transfer of Property Act,
1882. Under Section 54 of the Transfer of Property Act, 1882, in cases
where the value of tangible immovable property is below ₹100, a sale may
be effectuated either through a registered instrument or by delivery of
possession. However, the Plaintiff has failed to produce any evidence before
the Trial Court to establish that she was ever placed in physical possession
of the Suit Property, whether at the time of the alleged sale in 1953 or at any
point thereafter. Trial Court misinterpreted the remand order by placing the
entire onus of proving possession from 1953 solely on the Defendant,
thereby absolving the Plaintiff of any burden to prove her own possession.
This approach is an erroneous reading of the remand order, which did not
relieve the Plaintiff of her obligation to substantiate her claim of physical
possession. The Impugned Judgment thus overlooks a fundamental flaw–
that the Plaintiff failed to demonstrate possession of the Suit Property from
1953 until the filing of the suit.
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13.4. In contrast to the Plaintiff’s unsubstantiated claim of
possession, the Defendant placed revenue records from 1964-65, 1968-69,
and 1970-71 on record, establishing that the suit land was recorded in the
name of his predecessor-in-interest, Mr. Kailash Chand. These records
demonstrate that the alleged sale in favour of the Plaintiff could not have
been completed, as the transferor (Mr. Kishan Chand) was not in possession
of the property since 1953. The Trial Court, while acknowledging the
presence of Mr. Kailash Chand’s name in the revenue records of Gharonda
Neem Ka Bangar, Khasra No. 1/125, Ilaka-Patparganj, Delhi, nonetheless
refused to assign any evidentiary value to these records (Exhibits DW-6/1-2
to DW-12), concluding that they bore no connection to the Suit Property, J-
21, Pandav Nagar, Delhi. It is submitted that this finding is erroneous and
inconsistent with the report of the Tehsildar, Preet Vihar, dated 10 th August
2007 (Ex. DW3/X), which explicitly states that J-21, Pandav Nagar, falls
within Khasra Nos. 1/125 and 1/126. The Trial Court’s conclusion,
disregarding the clear link between Khasra No. 1/125 and the Suit Property,
is contradictory to the evidence on record and demonstrates a
misappreciation of material documents.
13.5. The Plaintiff has taken contradictory stands regarding the
factum of possession, thereby weakening her case. In her legal notice dated
1st March 1988, she asserted that she was the absolute owner of the Suit
Property by virtue of a registered sale deed dated 06th October 1954. On the
other hand, in her suit, she claimed ownership over 50 sq. yards of the Suit
Property through an unregistered sale deed dated 06th October, 1954, while
asserting ownership over the remaining 50 sq. yards through an unprobated
Will dated 25th February, 1969, allegedly executed in favour of herself and
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her son. These shifting claims undermine the credibility of the Plaintiff’s
case and demonstrate inconsistencies that the Trial Court failed to address
appropriately.
13.6. The testimonies of the Plaintiff’s own witnesses cast serious
doubt on her claim of possession and ownership. PW-2, Sh. Gurditta Mal,
who claimed to be a witness to the document dated 6th October, 1954,
(unregistered sale deed) conceded during cross-examination that he had
never seen the Suit Property, no site plan or map was prepared, and he could
not provide any details regarding its area or any existing construction at the
time of execution. Furthermore, the Plaintiff’s attorney and husband, Shri
R.L. Kumar, testified that there was no demarcation of the plot at the time
the sale deed was executed. He also confirmed that he had not filed any
objection with the MCD’s House Tax Department and was unaware of any
mutation of the Suit Property in the Defendant’s name. Additionally, he
stated that no complaint regarding possession had been made to the police.
PW-8, Shri Bhushan Kumar, son of the Plaintiff and co-owner of the
property, further testified that he had never been in possession of the Suit
Property for the past 35 to 40 years. This admission, coming from a co-
owner of the property, directly contradicts the Plaintiff’s claim that she had
been in possession of the property after the alleged sale on 6 th October,
1954.
13.7. The Defendant’s claim of ownership is fully supported by
documentary evidence, establishing an unbroken chain of transactions dating
back to 1953. The Defendant purchased the property from Mr. Kailash
Chand through document dated 09th January, 1984. Prior to this, Mr. Kailash
Chand purchased the Suit Property from Mr. Kishan Chand via a receipt
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dated 10th July, 1953. This receipt was executed by Mr. Kishan Chand at the
request of the late Lala Rati Ram Jain, who had purchased the property in
the name of his grandson, Mr. Kailash Chand. The document dated 10th July,
1953 whereby Late Mr. Lala Rati Ram purchased the Suit Property from Mr.
Kishan Chand, records the factum of delivery of possession of the Suit
Property. This document styled as “Receipt” therefore, is not compulsory
registrable under Section 17(2)(v) of the Registration Act, 1908 as it does
not create or extinguish any right/ title of the value of ₹100/- or above and it
is only a memorandum to enable the predecessor-in-interest of the
Defendant to obtain any other document. Since the document dated 10th
July, 1953 [Mark A] is an acknowledgement of the receipt of payment and
delivery of possession, its registration is optional under section 18(b) of
Registration Act. These pleas were specifically taken by the Defendant in
their written arguments filed on 19th July, 2013, at para (f), however, the
Trial Court failed to consider the same and incorrectly observed at para 24
of the Impugned judgment, that no such plea has been pleaded. Furthermore,
even unregistered sale deed or document of transfer could be admissible in
evidence under Section 49 proviso of Registration Act.
13.8. The Trial Court failed to consider that if the Plaintiff is declared
the rightful owner, the Defendant, as a bona fide purchaser who made
improvements in good faith, is entitled to compensation under Section 51 of
the Transfer of Property Act, 1882. The Supreme Court in J. Narayana Rao
v. V.G. Basavarayappa,7 has held that a person who makes improvements in
good faith is entitled to the value of those improvements as of the date of
their dispossession. Since the Plaintiff neither holds ownership nor has
7
AIR 1956 Supreme Court 727
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constructed any superstructure on the Suit Property, she is not entitled to
claim damages in respect thereof. Moreover, the assessment of damages is
both unreasonable and arbitrary.
Contentions on behalf of the Respondents
14. On the other hand, counsel for the Respondents, contends that the
remand proceedings did not alter the evidentiary position in any material
respect and that the Impugned Judgment rightly affirms the judicial findings
of the earlier trial. His submissions are summarised as follows:
14.1 Although the matter was remanded for the limited purpose of
leading additional evidence, the evidence recorded during the initial trial
remains undisturbed. The Defendant has failed to produce any material
evidence that could that could justify interference with the prior judicial
findings or the Impugned Judgment. The findings rendered in the previous
proceedings continue to hold evidentiary value and reinforce the Plaintiff’s
case. Both the initial judgment and the Impugned Judgment have
adjudicated upon the same core issues comprehensively, and no new
evidence has been introduced that would warrant a different conclusion.
14.2 There is no valid objection regarding the institution of the suit.
The Plaint was duly signed/verified, and the suit was instituted by a lawfully
constituted attorney. The Defendant has led no evidence to disprove the
validity of the Plaint, nor has any suggestion to the contrary been put to the
Plaintiff’s witnesses in cross-examination. It is emphasized that the suit was
signed and verified not only by the Plaintiff herself but also by her husband,
PW-1 (Sh. R.L. Kumar), who had deposed as a material witness in support
of the Plaintiff’s claim. PW-1, being both the power of attorney holder and
the husband of the Plaintiff, testified in his examination-in-chief as well as
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cross-examination that the Sale Deed (Ex. P1) was executed in his presence.
He further stated that he was the executor of the Will and that the
compromise application entered between the parties bore his signature. He
also proved that he had visited the Suit Property along with Defendant No.2,
and thereafter, a legal notice was sent demanding possession from
Defendant No.1. He was thus well-aware of the facts of the Plaintiff’s case.
The Plaintiff’s case is squarely covered by the judgment in Mann Kaur vs
Hartar singh Sangha.,8 which recognizes the competence of an attorney-
holder to depose on matters within their personal knowledge. Moreover,
Mrs. Roop Kumari’s statement was duly recorded before the Trial Court
during the proceedings for the assessment of mesne profits and damages,
where she was subjected to cross-examination by the Defendant. This
negates the allegation that the Plaintiff did not personally participate in the
proceedings.
14.3 The Plaintiff has conclusively established ownership through
the testimonies of witnesses, including PW-1 R.L. Kumar (the Plaintiff’s
husband and Power of Attorney), PW-2 Gurditta Mal, PW-5 Brij Nandan
Lal, and others.
14.4 In particular, PW-1 proved Ex PW 1/6 (the Sale Deed dated
26th March, 1953, in favour of Kishan Chand) as follows:
“I have seen the original sale deed executed by Delhi Housing Company in
favour of my father-in-law Sh. Kishan Chand, of dt. 26.3.53, the same was
executed and signed by Sh. Banwari Lal, partner in my presence. I have
also seen the signature of Sh. Banwari Lal and attesting witnesses on it, the
same was executed by Sh. Banwari Lal in my presence and it was attested
by the witnesses in my presence.”
PW-1 also proved following documents:
8
(2010)10SCC512
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Ex. P1 – Sale Deed dated 6th October, 1954 in favor of Roop Kumari
Ex. PW1/1 – Certified copy of Will dated 25th February, 1969
Ex. PW1/2 – Compromise Agreement dated 21st February, 1980
Ex. PW1/3 – Order dated 21st February, 1980, recording the compromise in
succession proceedings
Ex. PW1/4 – Carbon copy of the legal notice
Ex. PW1/5 – Acknowledgment (AD) card of service of the legal notice
Ex. PW1/6 – Original Sale Deed dated 26th March, 1953, in favour of
Kishan Chand
14.5 PW-1 also deposed that the original Sale Deed dated 6 th
October, 1954, was scribed in his presence, and that the vendor, Kishan
Chand, as well as the attesting witnesses, signed the document in his
presence. He also identified the signatures of the witnesses and the executor,
thereby validating the transfer of half of the Suit Property in favour of the
Plaintiff.
14.6 PW-1 has further substantiated the Plaintiff’s ownership by
proving the probate order in Case No. 355/1985, granted in her favour by the
probate court. This order, based on the Will dated 25th February, 1969,
executed by the late Mr. Kishan Chand, was exhibited as P-2. By virtue of
this probate, the Plaintiff, Roop Kumari, along with her son, Bhushan
Kumar, became the rightful owners of the remaining half share of the Suit
Property.
14.7 The Defendant has not filed any petition or pursued any
appropriate legal remedy seeking revocation of the probate granted in favour
of the Plaintiff. Calling for the probate case file, during trial was merely a
weak attempt to bolster the Defendant’s case, without any substantive
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challenge to the probate order itself. Reliance is also placed on Crystal
Developers vs Smt. Asha Lata Ghosh (Dead)Thr.Lrs.Ors,9 where the
Supreme Court held that a probate, once granted, attains the status of a
judgment in rem and cannot be revoked merely on vague allegations. To
seek revocation on the ground of fraud, specific pleadings and proof must be
furnished in accordance with law. In the absence of such a foundation, the
probate remains conclusive, rendering any challenge to it legally untenable.
14.8 The Defendant’s allegations of fabricated title documents are
not only improbable but entirely devoid of merit. The record establishes that
proceedings for a succession certificate and grant of probate were initiated in
1973, following the demise of Kishan Chand in 1969. The court, after due
consideration, granted the succession certificate in 1980, recognizing the
Plaintiff’s rights over both movable and immovable properties, including the
Suit Property. The suggestion that the Plaintiff would have fabricated title
documents as early as 1969 or 1980 is preposterous and defies logic. In stark
contrast, the Defendant’s claim to ownership rests on a purported sale deed
of 1984, allegedly executed by Kailash Chand, who himself claims to have
acquired the property from Kishan Chand. The inherent flaw in this
assertion is self-evident–the Defendant’s chain of title is premised on a
transaction by Kishan Chand despite the Plaintiff having already secured
recognition of ownership years earlier.
14.9 PW2 Gurditta Mal [attesting witness] has also proved the
execution of sale deed dated 06th October,1954 in respect of half portion of
Suit Property in favour of Plaintiff. He had deposed that Kishan Chand has
signed the sale deed in English and possession of the property was also
9
2005 (9) SCC 375
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given to Mrs Roop Kumari. No suggestion was given by the Defendant that
Kishan Chand was not signing in English (this aspect gains significance
since in the alleged document Mark A the alleged signatures of Kishan
Chand are in Hindi script).
14.10 Based on the evidence on record, the Plaintiff has successfully
proved her ownership over the Suit Property. The ownership of the Plaintiff
over one undivided half share in the Suit Property was proved through the
valid Sale Deed EX P1 executed by Kishan Chand and for the remaining
half in the Suit Property, the Plaintiff had duly proved the Will executed by
Kishan Chand.
14.11 The legal notice dated 1st March,1988 [EX PWl/4] issued on
behalf of the Plaintiff to the Defendant stands duly proved to be served. The
AD card placed on record before the Trial Court marks the name of ‘Maya’
as receiver. Ms. Maya is wife of the Defendant as evident from the copy of
the Ration card placed on record by the Defendant. The Defendant’s failure
to reply to the legal notice issued by the Plaintiff warrants an adverse
inference.
14.12 The Defendant has examined himself as DW-3 and has placed
on record various documents along with list of documents dated 7th January,
1998 in his examination in chief. No application for filing the documents
listed in the list dated 7th January, 1998 has been submitted, nor had any
permission been requested from the Trial Court. Furthermore, no reference
was made to the earlier list of documents dated 3 rd May, 1989, nor was it
mentioned in the Written Statement filed by the Defendant. Thus, such
documents cannot be looked into for any purpose whatsoever. Interestingly,
none of the documents filed by the Defendant were put to any of the
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witnesses of the Plaintiff. Neither the alleged receipt, nor any other alleged
purchase documents of the Defendant were put to the witnesses to setup the
case of the Defendant.
14.13 On the careful scrutiny of the document Mark A (filed along
with list of documents dated 7th January, 1998), it clearly transpires that
even the same does not mention the sale of J-21 Pandav Nagar, Delhi, from
Kishan Chand to Kailash Chand Jain. The same only sought to prove the
alleged sale of J-21 Pandav Nagar from Kishan Chand to Lala Rati Ram
Jain.
14.14 Moreover, the documents filed by the Defendant and the
alleged transactions mentioned therein, have not even been pleaded in the
Written Statement, which clearly evidences that the alleged
transaction/documents are clearly by way of an afterthought to defeat the
claim of the Plaintiff.
14.15 Even otherwise the document Mark A is incapable of being
relied on various grounds, including the following reasons:
a. The Written Statement was filed on 6th January, 1989, but Mark A
was not included in the list of documents filed by the Defendant, nor was it
mentioned in the Written Statement itself. On 3rd May, 1989, documents
were filed along with a list, but Mark A was conspicuously absent from both
the list of documents, as well as from the Written Statement. The document
was produced by DW 3 on 7th January, 1998 in the absence of the Plaintiff,
and without any permission and thereafter it was marked as Mark A.
b. DW 5 Kailash Chand Jain did not say in his evidence that his
grandfather had given Mark A, to him and in turn, he has given this to the
Defendant, at the time of handing over the documents of transfer ofSignature Not Verified
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property. It is also not the case of the Defendant, that on the basis of this
document Mark A, Kailash Chand Jain has ever applied for mutation in the
revenue record or with any other government department.
c. The Mark A is not in the form of an agreement to sell. DW-5 in his
examination mentions that “Sh. Kishan Chand executed one receipt in 1953
& in 1953 the possession of plot was handed over by grandfather Sh. Ratti
Ram. I can see the signature of Kishan Chand written in Hindi (Q. of
exhibition left open.” Similarly, the Defendant, in his evidence recorded as
DW-3, states that “Sh. Kailash Chand Jain purchased the abovementioned
property to grandfather who purchased for Kishan Chand S/o Thakur Dass
to him. The said original document was handed over to him by Kailash
Chand, in respect of the, property bearing No. J-21 measuring 100 sq. yds.
Pandav Nagar, Delhi.”
d. The document Mark A is on plain piece of paper and if it is a
document for sale of immoveable property then it is required to be
compulsorily registered under Section 17 of the Registration Act as the sale
consideration of the property is more than Rs. 100/-.
e. DW-5 does not say that he has given this receipt to the Defendant.
The document Mark A has not been proved by any of the witnesses
produced by the Defendant. The document does not bear the signature of
Kishan Chand. The receipt does not even mention for what purpose the same
was being executed.
f. There is no prior chain of ownership documents in possession of
Kailash Chand Jain, which shows that the property was purchased by
Kailash Chand from Delhi Housing Company. If the Defendant is the bona
fide purchaser of the property in question, then as a reasonable and prudentSignature Not Verified
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man, he would have obtained the possession of the title document of the
previous owner(s). The original of the Title documents are in custody of the
Plaintiff, and the Plaintiff had produced the same in the court.
g. In the cross-examination of PW-2 or PW-1, who have respectively
proved the signature of Kishan Chand, stating that Kishan Chand signed the
Sale Deed in their presence in English, were never confronted with Mark A.
Furthermore, not even a suggestion was given to the effect that Mr. Kishan
Chand has not been signing in English or that he was signing in Hindi also.
h. Mark A had not been proved in accordance with law by the Defendant
in his evidence. Mark A was never admitted by the Plaintiff either in
pleading or examination in chief or in cross-examination. Therefore, Mark A
not being an admitted document, has no evidentiary value even for the
collateral purposes. The Mark A was set up by the Defendant after the
conclusion of the evidence of the Plaintiff, therefore it cannot be relied upon
for any purposes by the Defendant to prove his case.
i. Thus, the argument of the Defendant that the physical possession of
the property was handed over to Lala Rati Ram by virtue of document Mark
A is baseless and without any material on record. Document Mark A has
been manipulated for illegal and malafide purposes. There is no material on
record to show that Kailash Chand Jain was in actual possession of the Suit
Property since the execution of the said documents.
14.16 Moreover, in the documents (Agreement to sell and General
power of attorney), it is explicitly recorded that Kailash Chand Jain
purchased the Suit Property from Kishan Chand, son of Late Shri Thakur
Dass, vide receipt dated 10th July, 1953. However, this directly conflicts with
the Defendant’s primary contention that Kailash Chand did not purchase theSignature Not Verified
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property himself but instead received it through his grandfather, Lala Rati
Ram Jain.
14.17 Afterthought version of Defendant that the Suit Property J-21
falls in/has connection with Khasra No. 1/125:
a. It was not the case of the Defendant that the Suit Property description
is Khasra No. 1/125 Village Neem ka Bangar Delhi, either in the pleading or
in the evidence deposed by the witness of the Defendant.
b. Besides the aforesaid, in the Khatoni for the year 1964-1965 there is
an endorsement that Khasra No. 1/125 stands mutated in name of Kailsah
Chand Jain, son of Rich Pal Singh, from Delhi Housing Company. As per
the case of the Defendant, the Suit Property was purchased by Rati Ram Jain
from Kishan Chand, if the said contention of the Defendant is correct then
the mutation in Revenue record should have been a straight endorsement
from Kishan Chand to Rati Ram Jain or Kailash Chand Jain. Whereas the
document filed and relied upon by the Defendant, the mutation, seems to
have been done from Delhi Housing Company in favour of Kailash Chand
Jain, which is highly improbable and defies logic.
c. The said mutation has taken place from Delhi Housing to Kailash
Chand though admittedly Delhi Housing has sold the property J-21 to
Kishan Chand. Kailash Chand in examination in chief does not aver that he
was in the possession of property since 1953. He also does not say as to
when his grandfather Rati Ram has gifted/conveyed the property to him.
There is no statement that Rati Ram gifted the property J-21 Pandav Nagar
to Kailash Chand. Moreover, even assuming the allegations and false
deposition of Kailash Chand, to be true for a moment, in the year 1953, he
was a minor in the eyes of law and was incapable of accepting theSignature Not Verified
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possession of immoveable property.
d. Similarly, in the Written Statement, it has not been disclosed as to
how Kailash Chand Jain became owner of the Suit Property, and it has also
not been stated that the property was purchased by his grandfather for his
benefit.
e. There is absolutely nothing on record to substantiate that the said
property No. J-21 Pandav Nagar relates to or falls within the Khasra No.
1/125 Village Neem ka Bangar.
14.18 The Defendant has taken inconsistent and mutually destructive
Plea throughout the proceedings as can be noted from the following:
a. In RFA number 484 of 2001, the Defendant in his grounds of appeal
has laid a claim over the Suit Property by virtue of Adverse Possession. On
the one hand the Defendant claims to be deriving title from Kishan Chand
and at the same time endeavours to strengthen his alleged title by virtue of
adverse possession. Both these pleas of the Defendant are self-contradictory
and mutually destructive. No reliance can be placed upon the version and the
position taken on behalf of the Defendant.
15. In the alleged agreement deed dated 9th January, 1984, produced by
the Defendant, it is recorded that “the first party has handed over the
previous concerning documents to the title of the said property to the second
party”. This clearly shows that the Defendant, as per his own claims, was
having the previous chain of documents concerning the title of the property
in his possession. However, during the trial, it was the Plaintiff who had
produced the original documents of title of the property from her possession
and custody.
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Analysis and Findings
16. This Court has considered the submissions advanced by counsel for
parties. The first objection for determination is the maintainability of the
suit. The Defendant argues that since he had seriously challenged the
Plaintiff’s ownership, possession, and title, the suit in its present form was
not maintainable. He argues, the Plaintiff ought to have instituted a suit for
declaration with possession, rather than a simplicitor suit for possession. In
support of this argument, reliance has been placed on the judgment of the
Supreme Court in Anathula Sudhakar V P. Buchi Reddy (Dead) by Lrs.
And Ors.,10 wherein it was observed as follows:
“17. To summarize, the position in regard to suits for prohibitory
injunction relating to immovable property, is as under:
(a) Where a cloud is raised over plaintiff’s title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff’s title is not in
dispute or under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is merely an
interference with plaintiff’s lawful possession or threat of dispossession, it is
sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession,
normally the issue of title will not be directly and substantially in issue. The
prayer for injunction will be decided with reference to the finding on
possession. But in cases where de jure possession has to be established on
the basis of title to the property, as in the case of vacant sites, the issue of
title may directly and substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction,
unless there are necessary pleadings and appropriate issue regarding title
[either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there
is no issue relating to title, the court will not investigate or examine or
render a finding on a question of title, in a suit for injunction. Even where
there are necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate the parties
to the remedy by way of comprehensive suit for declaration of title, instead
of deciding the issue in a suit for mere injunction.
10
(2008) 4 SCC
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(d) Where there are necessary pleadings regarding title, and appropriate
issue relating to title on which parties lead evidence, if the matter involved
is simple and straight-forward, the court may decide upon the issue
regarding title, even in a suit for injunction. But such cases, are the
exception to the normal rule that question of title will not be decided in suits
for injunction. But persons having clear title and possession suing for
injunction, should not be driven to the costlier and more cumbersome
remedy of a suit for declaration, merely because some meddler vexatiously
or wrongfully makes a claim or tries to encroach upon his property. The
court should use its discretion carefully to identify cases where it will
enquire into title and cases where it will refer to plaintiff to a more
comprehensive declaratory suit, depending upon the facts of the case.”
17. The Defendant’s reliance on Anathula Sudhakar is misplaced for two
primary reasons. First, the judgment pertains to suits for prohibitory
injunctions, whereas the present case is a suit for possession. The legal
principles set out in Anathula Sudhakar, particularly in paragraph 17,
address different situations which have no application to a suit for
possession, where the very relief sought inherently involves an adjudication
of title. Second, even assuming that the principles in Anathula Sudhakar
are relevant, they do not advance the Defendant’s case. In Para 17(d) of the
judgment, the Supreme Court expressly recognized that a Court may decide
on the issue of title even in a suit for injunction, provided there are necessary
pleadings and appropriate issues framed, and the matter does not involve
complex factual or legal questions. The rationale behind this principle is to
prevent frivolous litigation from obstructing legally recognized property
rights. In the present case, the Plaintiff’s claim, is not for an injunction but
for substantiative relief of possession based on title, which inevitably entails
an examination of ownership. The Trial Court, accordingly framed specific
issues on title, and adjudicated them on the basis of the evidence led by both
parties. Hence, the suit for possession is maintainable, and the Defendant’s
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objection is without merit.
The Significance of Possession: Applying the Principle of ‘Possession
Follows Title’
18. Next, the Defendant contends that, despite specific directions in the
Impugned Judgment, the Trial Court, after remand, failed to make a clear
finding on which party was in physical possession of the Suit Property from
1953 until the suit was filed in 1988. Before addressing this argument, it is
essential to consider scope of the remand order which explicitly limited the
scope of the reconsideration to the following effect:
“2. Counsel for the parties agree that the appeals be remanded back
after allowing the application under Order 41 Rule 27 CPC, however, both
the parties be allowed to lead documentary evidence on the aspect of
possession of the suit property from 1953 till the date of filing of the suit. It
is clarified that no other evidence will be allowed to be led by any of the
parties in the Trial Court. Both the parties can however cross-examine the
witnesses of the other party with respect to the documentary evidence which
is led and filed in the case including the documentary evidence which has
been filed along with the present application under Order 41 Rule 27 CPC.
3. Counsel for the respondents agrees to allowing the application,
subject to payment of costs of `25,000/-, and therefore, the application is
allowed and costs of `25,000/- shall be positively paid within a period of 4
weeks from today to the counsel for the respondents.
4. Parties to appear before the District and Sessions Judge, Tis
Hazari, Delhi on 1.3.2012, and on which date, the District and Sessions
Judge, Tis Hazari, Delhi will mark the suit limited to disposal after leading
of evidence on the aspects within the narrow compass as stated in the
present order. The Trial Court will after hearing both the parties, again
pass a fresh judgment in accordance with law. It is clarified that none of
the parties will be entitled to delay the case by moving applications
including amendment applications with respect to their pleadings. The
Trial Court will be entitled to impose heavy costs on the party seeking
unnecessary adjournments.”
19. Furthermore, the determination of possession was not meant to
establish possessory title, as the real dispute between the parties concerned
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the ownership. In cases where both parties assert ownership, the decisive
factor is not mere possession, but the validity of title. Possession, though a
relevant consideration, cannot take precedence over the requirement to
prove lawful ownership. Possession becomes determinative only in cases
where neither party can establish a clear title. In such cases, the Court must
decide the dispute solely on the basis of possession. However, when
ownership is established through valid legal documents, possession naturally
follows title. The Defendant’s attempt to make possession the sole
determining factor is legally untenable.
20. During the hearing on 16th January, 2025, counsel for Mr. Vasu Dev
was specifically asked whether the Defendant asserted any claim of ‘adverse
possession’. In response, Mr. Rakesh Saini, categorically stated that their
claim was grounded on ownership, not adverse possession. This admission
is decisive, as it completely negates any argument that possession alone
should determine ownership in this case. Having expressly refuted adverse
possession, the Defendant cannot now insist that the Trial Court was
required to render an independent finding on possession. The Trial Court’s
mandate was to adjudicate title, and once ownership is established,
possession is a mere consequence.
21. In view of the above, it is clear that the purpose of allowing additional
evidence on possession, after remand, was not to examine continuous
possession over the years, but to ascertain whether there was credible
evidence to establish that possession was transferred to the Plaintiff when
she acquired title. Accordingly, the Trial Court rightly prioritized
adjudication of ownership rather than limiting its inquiry to possession.
22. We now turn to an analysis of the title documents presented by both
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parties. To establish ownership, the Plaintiff primarily relied on two key
documents:
(i) A Sale Deed dated 06th October, 1954, [Ex. P1] executed by Mr.
Kishan Chand Jain, her father, through which she purchased half of the Suit
Property.
(ii) A Will dated 25th February, 1969, [Ex. PW-1/1] executed by Mr.
Kishan Chand Jain, bequeathing the Suit Property, along with other
properties and assets, in favour of Roop Kumari and other legal heirs.
23. The Sale Deed dated 06th October, 1954 [Ex. P1] (translated copy)
records the following:
“SALE DEED
I Kishan Chand S/o Thakur Dass cast Arora Resident of Ajmeri Gate Gali
Shahdara Delhi.
That the detail of the property is as under :-
A plot No. 21, land white (vacant) measuring area 100 sq. yard situated
at block J. village Gharonda Neem K Bagar alias Patparganj New
Colony named Pandav Nagar Delhi state bounded plot No. East 22J-
West 20 J, North Road, south Road which is purchased by myself
executant a plot No. 6 land (white) vacant measuring area 169/10 Sq
yard situated at Block C Krishna Nagar extension village Ghandley,
near Jheel Khureji, Delhi state Bounded as under, East land (vacant)
west Road North Plot suit-land (vacate) is purchased by myself executant
through registered document No. 919 Book No. 1 and volume No. 218 at
Page No. 22 & 23 dated 20.2.1953 From Delhi Housing Finance
Company. I am the absolute owner and in possession of this plot. I am
the complete owner.
Now I executant has sold all the rights of the half portion of the above
said land of plot No. 21 and plot No. 6 in favour of Smt Roop Kumari W/o
Ramlal Kumar cast Arora resident of Ajmeri Gate Gali Shahdara. Handed
over the possession half portion of these two plots mentioned above to
the purchaser (vendee). Now the purchaser become the complete owner
and possessor of sold half portion of these two sold plots. Now I and my
legal heirs have or will have no concern regarding the sold half portion of
these two plots. Receive the sale price of Rs. 98 from the vendee
(purchaser). I assure to the vendee (purchaser) that sold land I had
purchased and is free and safe from are types of buden, mortgaged,
transfer, if there is any proof against my above written and the vende
(purchaser) suffer any loss than I vendor will be responsible to pay all theSignature Not Verified
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damages. Therefore his sale deed is executed as a proof.
Date: 6.10.1954 SD/Kishan Chand
Kinari Bazar, Delhi"
(sic)
24. The execution of Ex. P1 has been duly proved in evidence. Gurditta
Mal (PW2), the attesting witness categorically affirmed that Ex. P1 was
scribed by Kishan Lal, the deed writer, in his presence. He further identified
the handwriting of the said deed writer and affirmed that Sh. Kishan Chand,
the executant, had signed this sale deed at point ‘A’ in his presence after the
document, Ex. P1, was read over to him. This document unequivocally
records that possession of the Suit Property was handed over to the Plaintiff,
Mrs. Roop Kumari, at the time of execution of the sale. This recital satisfies
the statutory requirement under Section 54 of the Transfer of Property Act,
1882, which mandates that in cases where a sale is effected without a
registered document, the transfer must be accompanied by delivery of
possession. Since the Sale Deed itself confirms the transfer of possession,
the legal requirement under Section 54 stands duly fulfilled. Accordingly,
this Court finds that the Plaintiff has successfully established both the sale
and the corresponding transfer of possession, thereby affirming her
ownership over the Suit Property.
25. It must also be emphasised that at the time of execution of the
Plaintiff’s Ex. P1, the Suit Property was an undeveloped vacant plot of land,
making it inherently difficult to establish physical delivery of possession in a
tangible manner. In such cases, the recorded recital of possession in the Sale
Deed carries significant weight. The principle that “possession follows title”
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is particularly relevant here, as in the case of open, vacant land, mere
physical occupation does not serve as a conclusive indicator of ownership.
Therefore, the delivery of possession recorded in Ex. P1 not only
substantiates the Plaintiff’s title but also affirms her actual possession at the
time of sale.
26. The Defendant’s objections to the credibility of PW2’s testimony are
inconsequential. The inability of PW2 to describe the precise area or
physical attributes of the Suit Property does not undermine the reliability of
his testimony, especially when the existence of the Suit Property itself is
undisputed. More importantly, the execution of Ex. P1 has been proved
through direct testimony. Once the execution of a document is established,
the document itself must be read in evidence, rendering oral testimony
regarding the physical description of the property largely insignificant.
27. In addition to the Sale Deed dated 06th October, 1954 [Ex. P1], the
Plaintiff also relies on a Will [Ex. PW1/1] to substantiate her claim over the
remaining portion of the Suit Property. Paragraph 4 of the Will explicitly
directs that upon the testator’s demise, all his movable and immovable
properties shall be shared equally among his seven legal heirs, including
Mrs. Roop Kumari. This express bequest in favour of the Plaintiff
establishes her ownership over the remaining half of the Suit Property, along
with other legal heirs of the testator. The Plaintiff also produced the certified
copy of the order dated 5th July, 1975 [Ex. P2] whereby the Court issued a
succession certificate in terms of an earlier order dated 21st February,
1980,11 [PW1/3] affirming the Plaintiff’s claim. A perusal of the order dated
5th July, 1975 [Ex. P2] and order dated 21st February, 1980, [PW1/3] reveals
11
Inadvertently mentioned as 29th February, 1980
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that the parties had entered into an agreement regarding the estate of Kishan
Chand. Pursuant to this agreement, a compromise application [Ex. PW1/2]
was filed, which specified that the remaining 50% of the Suit Property
would vest jointly in the Plaintiff, her son Bhushan Kumar, and two other
legal representatives of Kishan Chand in equal shares. Paragraph 7(b) on
page 2 of the compromise application states as follows:
“7. The following properties, both moveable and immovable shall
vest with i) Smt. Banarso Devi alias Roop Kumari ; ii) Smt. Bimla Devi
alias Kusum Lata; iii) Smt. Kamla Rani alias Bina Kumari; iv) Sh.
Bhushan Kumar, in equal shares
..xx.. ..xx.. ..xx..
b) Half Plot No.21-J, Pandav Nagar, Delhi which was jointly owned
by the deceased and Smt. Banarso Devi."
To this effect, the compromise application in paragraph 2 also specifically
notes as follows:
“That some of the parties had objected to the grant of Succession
Certificate. The executors have already closed their case and have
proved the execution of the Will by the deceased. The Objecting parties
have satisfied themselves of the due execution of the Will by Shri Kishan
Chand. In order to maintain the family harmony they do not intend to
contest the issue of the execution of the Will by the deceased. They accept
the Will as it is.”
28. Pursuant to this compromise, the Probate Court, by order dated 21st
February, 1980 issued the succession certificate. Thus, the objecting parties
have accepted the Will in its entirety. The Plaintiff’s rights, under the Will,
have been recognized not only by the Court but also by the other legal heirs
of Kishan Chand, who have supported her claim.
29. The Defendant contends that the original Will was neither produced
before the Probate Court nor before this Court, and therefore, its execution
remains unproven. However, this argument is misconceived and untenable.
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The Plaintiff has placed on record a certified copy of the Will [Ex. PW1/1],
which was duly produced before the Trial Court. Under Section 65 of the
Indian Evidence Act, 1872, secondary evidence, including certified copies,
is admissible when the original document is unavailable, provided that the
document is of a nature that the law permits to be proved by secondary
evidence. In the present case, the Will was not merely relied upon by the
Plaintiff but was also adjudicated upon in probate proceedings, where the
court, after noting the compromise between the contesting parties, issued a
succession certificate in favour of the Plaintiff and other legal heirs. The
certified copy of the Will, being admissible as secondary evidence,
establishes the Plaintiff’s title. Furthermore, the certified copy of the Probate
Court’s order [Ex. P2] confirms that the executors duly proved the execution
of the Will, forming the basis for the issuance of the succession certificate.
30. To conclude, the Plaintiff has successfully established ownership over
the Suit Property–50% through the Sale Deed [Ex. P1] and a portion of the
remaining 50% through the Will [Ex. PW1/1], as affirmed in the probate
court’s order [Ex. P2].
The Burden of Proof
31. In civil litigation, the burden of proof is not static–it shifts depending
on the nature of the claims and defences raised. Under Section 101 of the
Indian Evidence Act, 1872, the party that asserts a fact bears the initial
burden to prove it. However, once initial burden is discharged, it shifts to the
opposing party to disprove the claim or establish a valid defence.
32. It is a well-settled principle that a person in possession of land, acting
as the assumed owner and peacefully exercising the rights of ownership, has
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a legal right against the entire world except the rightful owner.12
Consequently in order to dispossess the Defendant, the Plaintiff had to
establish a better title and rights over the Suit Property. In the present case,
where the Plaintiff, admittedly sought possession based on ownership, she
discharged her initial burden by producing documentary evidence to support
her title–the Sale Deed [Ex. P1] and the probated Will [Ex. PW1/1]–
which substantiated her ownership. The burden then shifted to the Defendant
to justify his possession, either by proving a valid title or by raising an
alternative legal defence. The Trial Court correctly required the Defendant
to substantiate his occupation, in the face of the Plaintiff’s clear
documentary evidence of ownership. However, as discussed above, the
Defendant failed to produce any credible proof of ownership. His reliance
on Mark A–an unregistered receipt introduced belatedly–and revenue
records [Ex. DW6/1, DW6/2, DW-7/X1], which bore no direct nexus to the
Suit Property, did not establish any legally enforceable right. Accordingly,
the Trial Court correctly concluded that the Defendant’s occupation lacked
lawful basis, and the Plaintiff, having successfully established her title, was
entitled to reclaim possession of the Suit Property.
In-depth analysis of the Defendant’s Claim of Ownership
33. The Defendant’s assertion of ownership over the Suit Property hinges
on a series of documents, primarily relying upon an agreement to sell dated
9th January 1984 [Ex. DW3/2], purportedly executed by Kailash Chand Jain
in his favour. In support of this agreement, the Defendant has also relied
upon an affidavit [Ex. DW3/4], a receipt [Ex. DW3/1], a Will [Ex. DW3/3],
and a General Power of Attorney [Ex. DW3/5], all purportedly executed by
12
Poona Ram v. Moti Ram (Dead) through Legal Representatives. (2019) 11SCC 309
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Kailash Chand Jain in respect of the Suit Property.
34. This claim of ownership is predicated on an alleged sale of the Suit
Property by Kishan Chand, son of Late Sh. Thakur Das, to Kailash Chand
Jain. The sole document produced to support this alleged transfer is a
handwritten receipt dated 10th July 1953 (Mark A), which is written on a
plain piece of paper. Significantly, this receipt is unregistered, lacks
attestation by witnesses, and does not contain any supporting documentation
such as a contemporaneous sale deed or mutation entry pertaining to the
year 1953. Apart from Mark A, there is no evidence on record on record to
establish that Kishan Chand ever transferred ownership to Kailash Chand
Jain, either directly or through his grandfather, Lala Rati Ram Jain. A
translated and typed copy of the Mark A is reproduced herein below for
reference:
“I, Kishan Chand son of late Shri Thakur Das R/o of H-824, Katra
Neel, Chandni Chowk, Delhi, I sold my plot situated at J-21, Pandav
Nagar, village Gharonda Neema Ka Bangar at Patpar Ganj, Road,
admeasuring 100 sq. yards to Shri/Lala Rati Ram Jain son of Late
Hardwari Lal Jain, R/o Deputy Ganj, Sadar Bazar, Delhi, against a
cash receipt of Rs. 150/- of which half is Rs.75/- on the spot. I have
handed over the possession of the same. Plot No. J-21 situated at
Pandav Nagar, Delhi is purchased by Shri Lala Rati Ram Jain son
of late Hardwari Lal Jain for his grand son Shri Kailash Chand
Jain son of Shri Rishpal Singh Jain. From today onwards I as well
as any of my legal heirs will not have any claim over the plot No. J-
21, Pandav, Delhi. I have executed this without any pressure with full
of my conscious and voluntarily. Though this receipt has been
executed that it may be used at times for any purpose/requirement. At
any date after appearing before the Registrar, Delhi I will get the
same registered.
Kishan Chand Kishan Chand
Sd/- In Hindi Dt. 10.7.53 S/D in Hindi On revenue Ticket
Dt. 10.7.53"
(sic)
35. A plain reading of Mark A reveals that it purports to record a sale
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transaction in favour of Lala Rati Ram Jain for the benefit of his grandson,
Kailash Chand, for a sum of Rs. 150/-. The document suffers from multiple
legal infirmities. First, it has never been proved in accordance with law, as
no witness has deposed to its execution, nor has the Defendant led any
corroborative evidence to authenticate its legitimacy. Second, and more
significantly, under Section 17(1) of the Registration Act, 1908, any non-
testamentary instrument that creates, assigns, or transfers rights in
immovable property valued at Rs. 100/- or more must be compulsorily
registered. Since Mark A purports to document the sale of immovable
property and exceeds the statutory threshold of Rs. 100/-, its non-registration
renders it inadmissible in evidence as proof of ownership.
36. Even assuming, for the sake of argument, that Mark A records a sale
transaction, the document itself does not establish delivery of possession to
the Defendant’s predecessor-in-interest. No contemporaneous record, such
as mutation entries, revenue records, or even tax receipts, has been presented
to show that possession changed hands in 1953. The Trial Court was,
therefore, correct in rejecting Mark A as a proof of ownership over the Suit
Property.
37. The Defendant, seeks to circumvent this requirement by contending
that Mark A merely records the factum of delivery of possession, making it
an acknowledgement of payment, rather than a transfer of title. According to
the Defendant, this would bring Mark A within the ambit of Section 17(2)(v)
of the Registration Act, which exempts certain receipts from compulsory
registration. He further argues that even if registration was optional, it could
still be relied upon under Section 18(b) of the Registration Act as an
evidentiary document. This argument, however, is untenable. Firstly, MarkSignature Not Verified
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A clearly recites that the property was ‘sold,’ and thus purports to transfer
ownership of an immovable property. Therefore, it was mandatory for the
transaction to be registered. Secondly, if it is treated as a mere receipt of
payment, it does not satisfy the legal requirements to serve as proof of
ownership. The Defendant’s contention that the Trial Court failed to
consider these arguments is also misplaced. The Trial Court expressly
specifically addressed the legal effect of Mark A in para 24 of the Impugned
Judgment and correctly held that it could not confer ownership.
Analysis of the Defendant’s Reliance on Revenue Records
38. The Defendant places heavy reliance on revenue records from 1964-
65, 1968-69, and 1970-71 [Ex. DW-6/1-2 and Ex DW-7/X1], asserting that
these documents establish that the Suit Property was recorded in the name of
his predecessor, Kailash Chand Jain. On this basis, he contends that the
alleged sale in favour of the Plaintiff could not have been valid, as the
Plaintiff’s predecessor-in-title, Kishan Chand, was not in possession of the
Suit Property at the time of transfer in 1954. The Trial Court, while
acknowledging that Kailash Chand’s name appeared in the revenue records
for Gharonda Neem Ka Bangar, Khasra No. 1/125, Ilaka-Patparganj, Delhi,
found these entries to be of no probative value in the present case. The
primary reason for this conclusion was that the Defendant failed to establish
any direct correlation between these records and the Suit Property, J-21,
Pandav Nagar, Delhi. Mere entries in revenue records do not confer
ownership rights unless supported by legally admissible title documents.
The Defendant challenges this finding, relying on the report of the Tehsildar,
Preet Vihar, dated 23rd August, 2007 [Ex. DW3/X], which purportedly
confirms that J-21, Pandav Nagar, falls within Khasra Nos. 1/125 and 1/126.
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The Exhibits DW-6/1-2 and DW-7/X1 (Translated copies) are reproduced
herein below:
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39. This Court finds no merit in the Defendant’s reliance on revenue
records to dispute the Plaintiff’s title. Firstly, revenue records primarily
serve fiscal and administrative purposes and do not confer proprietary title
over immovable property. The Supreme Court has consistently held that
mutation entries in revenue records are not conclusive proof of ownership
and nor does it have any presumptive value on title.13 Secondly, the revenue
records relied upon by the Defendant pertain to the period from 1964
onward, whereas the Plaintiff’s Sale Deed was executed a decade earlier, in
1954.
40. Nonetheless, the Defendant contends that these records undermine the
validity of the Plaintiff’s sale, arguing that the transferor, Mr. Kishan Chand,
was not in possession of the property since 1953. However, this argument is
misconceived. The Defendant did not produce any revenue record from
1953-1954 to contradict the Plaintiff’s claim that the possession was
delivered at the relevant time. As a result, these records do not undermine
the Plaintiff’s title or the validity of her sale deed. Additionally, the revenue
records relied upon by the Defendant indicate that Khasra No. 1/125 was
recorded in the name of Kailash Chand, purportedly transferred by the Delhi
Housing Company. However, this assertion directly contradicts the
Defendant’s own case. The Defendant has consistently maintained that the
Suit Property was originally purchased by Lala Rati Ram from Kishan
Chand, in the name of his grandson, Kailash Chand. If that were true, there
would be no occasion for the property to have been transferred by the Delhi
Housing Company to Kailash Chand. This glaring inconsistency remains
unexplained and therefore, the Court finds no reason to place reliance on13
Sawarni vs. Inder Kaur and Ors (1996) 6 SCC 223Signature Not Verified
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these inconsistent documents, as they fail to establish any clear chain of
ownership in the Defendant’s favour.
Effect of Long and Continuous Possession
41. The Defendant’s mere assertion of continued possession is
insufficient to establish lawful possession of the Suit Property. Possession,
in itself, is not a substitute for ownership. It is well-settled that possession,
to have any legal sanctity, must be either lawful or adverse in nature. The
Defendant, however, has failed to establish either. Mere long-standing
occupation, does not automatically confer ownership rights, especially when
the Plaintiff has successfully demonstrated her title through legally
recognized documents. Defendant’s documentary evidence, particularly
Mark A, was unregistered, unproven, and failed to establish any lawful right
to retain possession. On this issue, it would apposite to rely on the Judgment
of the Supreme Court in Indira v. Arumugam and Another14 where it was
observed:
“It is, therefore, obvious that when the suit is based on title for possession, once
the title is established on the basis of relevant documents and other evidence
unless the defendant proves adverse possession for the prescriptive period, the
plaintiff cannot be non-suited.”
Plea for value of improvements under section 51 of the Transfer of
Property Act
42. Regarding the Defendant’s claim for compensation under section 51
of the Transfer of Property Act, it is important to note that in paragraph 34
of the Impugned Judgement, the Trial Court has specifically noted that the
superstructure on the plot was raised by the Defendant and the Plaintiff
merely raised the boundary wall. It was only after considering the
14
Indira v. Arumugam and Another (1998) 1 SCC 614
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By:AKANSHA SINGH
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19:56:42
aforenoted facts that damages for the modest sum of Rs.1000/- per month,
from the date of filing of the Suit till the date of delivery of possession were
awarded to the Plaintiff. In such circumstances, the court finds no merit in
the Defendant’s argument, to interfere with the Impugned judgement on this
ground.
On Limitation
43. The Defendant, in their brief note of submissions, contends that the
Plaintiff was never in physical possession of the Suit Property and has failed
to produce any evidence of prior possession. On this basis, they argue that
the suit is barred under Section 27(2) of the Limitation Act, 1963. This
argument is fundamentally flawed. It must be highlighted that the counsel
for Appellant, on instructions, has stated that they are not basing their claim
on Adverse possession. The Plaintiff has specifically averred in the plaint
that she became aware of the Defendant’s illegal occupation in or around
14th February, 1988. Upon discovering the encroachment, she promptly
issued a legal notice (Ex. PW1/4) on 1st March, 1988. The Defendant has not
denied receipt of this notice. In these circumstances, the Defendant has
failed to demonstrate that the suit is time-barred.
CONCLUSION:
44. In view of the foregoing analysis, this Court finds no infirmity in the
Trial Court’s finding that the Plaintiff is the rightful owner of the Suit
Property. The Plaintiff has successfully established her title through a sale
deed and probated Will, whereas the Defendant has failed to substantiate his
claim of ownership with legally admissible documents. Although the
Defendant has remained in possession of the Suit Property for over three
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By:AKANSHA SINGH
Signing Date:06.03.2025
19:56:42
decades, this is a consequence of prolonged litigation rather than any lawful
entitlement. In light of the above, this Court finds no merit in the present
appeal. The Impugned Judgment of the Trial Court is upheld in its entirety.
Consequently, the stay on execution of the Impugned Judgment, granted by
this Court on 4th May, 2016 stands vacated. Consequently, the amount
deposited with the Court, along with interest accrued, is directed to be
released to the Respondents.
45. To facilitate the release of the amount deposited, all the Respondents/
Legal Representatives of Roop Kumari, must submit an affidavit detailing
their respective shares in the aforenoted amount. Upon receipt of such
affidavits, the Registry shall release the said amount to the Respondents, in
proportion to the share specified in the said affidavits.
46. It is noticed that there is an error in the cause title. The deceased
Respondent is Roop Kumari and not Roop Kumar. Registry is accordingly
directed to correct the cause title.
47. Appeal Dismissed.
SANJEEV NARULA, J
MARCH 04, 2025
nk
Signature Not Verified
Digitally Signed RFA 674/2014 Page 46 of 46
By:AKANSHA SINGH
Signing Date:06.03.2025
19:56:42
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