Delhi District Court
Het Ram vs Kamla Devi on 12 June, 2026
IN THE COURT OF SH. SUNIL KHATRI, CIVIL JUDGE-06
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS SCJ 600367/2016
CNR No. DLCT03-000300-2009
IN THE MATTER OF:-
1. Smt. Kamla Devi W/o Late Sh. Babu Lal (since deceased)
Now being represented through plaintiff no. 2-4,
2. Sh. Sunder Lal
3. Sh. Daulat Ram
4. Sh. Khem Chand
Sons of Late Sh. Babu Lal
All R/o 476, Katra Rewri, Muqeem Pura,
Subzi Mandi, Delhi-110007.
........Plaintiffs
Versus
1. Sh. Het Ram (since deceased)
(a) Shri Gian Chand
S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(b) Shri Dalip Kumar
S/o Late Shri Het Ram
R/o H. No. 3181, Shivaji Katra,
Punjabi Basti, Delhi-110007.
(c) Shri Durga Prasad
S/o Late Shri Het Ram
R/o H. No. 3181, Shivaji Katra,
Punjabi Basti, Delhi-110007.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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(d) Shri Ved Prakash
S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(e) Shri Kedarnath
S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
2. Sh. Kishan Lal (since deceased)
Through LRs
(a) Smt. Rajo Devi
Wd/o Late Sh. Kishan Lal
(b) Sh. Gopal
S/o Late Sh. Kishan Lal
(c) Sh. Jaspal
S/o Late Sh. Kishan Lal
(d) Ms. Madhu @ Anjun
D/o Late Sh. Kishan Lal
(e) Ms. Preeti @ Vedwati
D/o Late Sh. Kishan Lal
All R/o House No. 88, Gali no.5,
Sanjay Nagar, Near Mahindra Park,
New Delhi-110033.
......Defendants
3. S.H.O
P.S. Subzi Mandi,
Delhi-110007.
4. Municipal Corporation of Delhi
Through its Commissioner, Town Hall,
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SUNIL
SUNIL KHATRI
KHATRI Date:
2026.06.12
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Chandni Chowk, Delhi-110006.
......(Defendants deleted vide order dated 11.02.2016).
SUIT FOR POSSESSION, PERMANENT INJUNCTION &
RECOVERY OF RS.1200/-
Date of Institution : 09.09.2009
Date of Reserving for Judgment : 13.05.2026
Date of Judgment : 12.06.2026
XXXXXXXX............XXXXXX.........XXXXXXX..........XXXXXXXXX
AND
CS SCJ No. 597169/2016
CNR No. DLCT03-000680-2012
IN THE MATTER OF:-
1. Sh. Het Ram (Since Deceased)
Through his Legal Heirs/ Representatives
(a) Shri Gian Chand
S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(b) Shri Dalip Kumar
S/o Late Shri Het Ram
R/o H. No. 3181, Shivaji Katra,
Punjabi Basti, Delhi-110007.
(c) Shri Durga Prasad
S/o Late Shri Het Ram
R/o H. No. 3181, Shivaji Katra,
Punjabi Basti, Delhi-110007.
(d) Shri Ved Prakash
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SUNIL
SUNIL KHATRI
KHATRI Date:
2026.06.12
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S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(e) Shri Kedarnath
S/o Late Shri Het Ram
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
2. Sh. Kishan Lal
S/o Late Sh. Nathauli Mal @ Nathauli Ram
R/o 476, Katra Rewri, Muqeem Pura,
Subzi Mandi, Delhi-110007. ........Plaintiffs
Versus
1. Smt. Kamla Devi W/o Late Sh. Babu Ram (Since deceased)
Through his Legal Heirs/ Representatives
(a) Sh. Sunder Lal
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(Already as defendant no.2)
(b) Sh. Daulat Ram
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(Already as defendant no.3)
(c) Sh. Khem Chand
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
(Already as defendant no.4)
2. Sh. Sunder Lal
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
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SUNIL
SUNIL KHATRI
KHATRI Date:
2026.06.12
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Sabzi Mandi, Delhi-110007.
3. Sh. Daulat Ram
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
4. Sh. Khem Chand
S/o Late Shri Babu Ram and Smt. Kamla Devi
R/o H. No. 476, Katra Rewari,
Sabzi Mandi, Delhi-110007.
......Defendants
SUIT FOR SPECIFIC PERFORMANCE AND INJUNCTION
Date of Institution : 31.08.2012
Date of Reserving for Judgment : 13.05.2026
Date of Judgment : 12.06.2026
JUDGMENT
1. Vide present judgment, both the above titled suits shall
be disposed of. Vide order dated 11.02.2016, both the suits were
consolidated for the purpose of evidence and Civil Suit no.
600367/2016 titled ‘Kamla Devi & Ors. vs. Het Ram & Ors.‘ was
directed to be treated as leading case. To avoid any confusion parties
are referred as ‘plaintiffs’ and ‘defendants’ in terms of leading case.
1.1 Plaintiffs have filed the Civil Suit no. 367/2016 seeking
following reliefs against the defendants:
“(a) pass a decree for possession in respect of four
rooms, two rooms on the ground floor, one room on the
first floor and one room on the second floor of property
no. 476, Katra Rewri, Muqueem Pura, Subzi Mandi,
Delhi-110007, as shown in rel colour in the site-plan
attached with the plaint in favour the plaintiffs and
against the defendants no.1 and 2.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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(b) pass a decree for Rs. 1200/- in favour of the plaintiffs
and against the def enl an ts 1 & 2 on account of damages
for unauthorised and illegal use of four rooms.
(c) pass a decree for damages for pendente-lite and
future damages of Rs.1200/- per month against the
defendants in the year 2009.
(d) pass a decree for permanent injunction in favour of
the plaintiffs and against the defendants restraining the
defendants no.1 and 2 permanently from carrying out
any construction and defendants no.3 and 4 from
permitting any such construction in property bearing
No. 476, Katra Rewri, Muqu.com Pura, Subzi Mandi,
Delhi-7.”
1.2 Defendants have filed the cross Civil Suit No.
97169/2016 titled ‘Het Ram & Ors. Vs. Kamla Devi & Ors.’ seeking
following reliefs against the plaintiffs:
“(i) decree for specific performance in Plaintiffs and
against the Defendants, directing the Defendants to
receive the balance sale consideration of Rs.2,000/- and
thereafter execute the sale deed in respect of an
undivided half share in the suit property bearing No.
476, Katra Rewari, Muqueem Pura, Subzi Mandi,
Delhi-110007 in favour of the Plaintiffs. In the
alternative, in the event of the specific performance not
being granted for any reason whatsoever, this Hon’ble
Court may grant a decree for damages as may be
determined by this Hon’ble court and refund Rs.3,000/
with interest @ 24% per annum from the date of
institution of this suit till the date of decree and future
interest @ 24% per annum from the date of the decree
till the date of realization;
(ii) decree for permanent injunction restraining the
Defendants, their agents, attorneys, representatives
whosoever from transferring, alienating, assigning,
constructing, encumbering or in any manner dealing
with the suit property bearing No. 476, Katra Rewari,
Muqueem Pura, Subzi Mandi, Delhi-110007.”
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SUNIL
SUNIL KHATRI
KHATRI Date:
2026.06.12
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2. Brief facts of both the cases, as culled out from the
pleadings of the parties, are as follows:
PLAINTIFFS’ CASE
2.1 Late Sh. Babu Lal S/o Sh. Nathauli Ram, who was the
husband of plaintiff no. 1 and father of other plaintiffs, purchased the
property bearing no. 476, Katra Rewri, Muqueem Pura, Subzi mandi,
Delhi-110007 (hereinafter referred to as ‘suit property’), vide
registered sale deed dated 26.03.1971. He was lawful owner and in
possession of the suit property since the day of its purchase.
2.2 Defendant no. 1 and 2 are real brothers of late Sh. Babu
Lal and as such in natural love and affection he permitted them to
occupy four rooms (Two rooms on ground floor, one room on the first
floor and one room on the second floor).
2.3 There is no other legal heirs of Late Sh. Babu Lal apart
from plaintiffs, as such the entire suit property was inherited by them
and they are its owner in possession.
2.4 Defendant no. 1 and 2 have started creating problems to
the plaintiffs since last 5-6 years and they also started picking up
quarrels with the plaintiffs. Therefore, plaintiffs asked the defendants
to vacate the suit property. Initially, both the defendants agreed to
vacate their respective portion but later on they refused to do so and
started threatening plaintiffs.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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2.5 Defendants without any right, title or interest tried to
construct their portions about 2-3 days back and when plaintiffs
prohibited them, they reported the matter to the police. Police also
colluded with the defendants and started extending threats to the
plaintiffs that if plaintiffs did not permit the defendants to carry out
construction then they will be booked under section 107/151 Cr.P.C.
2.6 The suit property is in dilapidated condition and in case
any construction is raised in the house, it may damage the other
portion and the adjoining portion may also collapse at any point of
time which may cause harm to life and property of the plaintiffs.
2.7 Defendants have been occupying four rooms jointly
and as such they are liable to pay Rs. 1200/- per month for
unauthorised, illegal use and occupation of the said rooms. However,
plaintiffs are claiming only one month’s damages i.e. the month of
August, 2009 along with pendente-lite and future damages.
DEFENDANTS’ CASE
3. Per contra, defendant no. 1 & 2 (defendants hereinafter)
denied the averments made by the plaintiffs and set up a case of
specific performance in their favour. Defendant no. 3 and 4 were
deleted from the array of parties vide order dated 11.02.2016.
Defendant no.1 and 2 made following averments in their WS:-
3.1 It is the case of the defendants that suit property was
owned by Shir Radhakrishan and Shri Brij Raj Kishore both sons of
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SUNIL
SUNIL KHATRI
KHATRI Date:
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Sh. Nand Kishore under whom late Sh. Nathauli Man (father of
defendants and Sh. Babu Lal, husband of plaintiff no. 1) was a tenant
at a monthly rent of Rs. 5.31 p, exclusive of water and electricity
charges.
3.2 The rent was regularly paid by Late Sh. Nathauli Man
to the said owner and his family i.e. defendants and late Shri Babu
Lal and their respective families have been in possession of the suit
property for the last more than 60 years i.e. much before year 1971.
3.3 In or around year 1971 it was decided to purchase the
suit property and same was purchased in the name of late Sh. Babu
Lal. Late Sh. Babu Lal was in the business of sale of vegetables and
he did not have the financial capacity to pay the sale consideration.
Therefore, defendant no. 1 provided entire sale consideration and it
was agreed upon that all the three brothers i.e. defendants and late Sh.
Babu Lal would continue to reside in the suit property together.
3.4 At the time of purchase, suit property consisted of a
two-room kaccha structure (khaprail). With the passage of time,
further construction was made in the suit property. In 1975, entire
property was substantially reconstructed/renovated. Two rooms were
constructed on first floor, one of which one was occupied by
defendant no. 2 and his family and other room by late Sh. Babu Lal
and his family. Defendant no. 2 provided all the funds for the
construction of the room on the first floor, which was and is still, in
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SUNIL
SUNIL KHATRI
KHATRI Date:
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his possession. Defendant no. 1 and his family occupied the two
rooms on the ground floor.
3.5 In the year 1983, when late Sh. Babu Lal was in need of
financial assistance, defendant no. 1 and 2 provided financial
assistance to their brother. In consideration thereof and for the
purpose of securing rights in the suit property, an agreement to sell
was executed by late Sh. Babu Lal on 29.08.1983 in favour of
defendants in respect of undivided half share in the suit property for
a total consideration of Rs. 5,000/-. A sum of Rs. 2,000/- was handed
over at the time of the execution of the aforesaid agreement to sell
and remaining sale consideration of Rs. 3,000/- was to be paid to him
on execution and registration of sale deed. No time was fixed in the
agreement to sell for execution of and registration of the sale deed.
Plaintiff no. 1 was also aware of execution of said agreement to sell,
as it was executed in her presence.
3.6 Later in the year 1983, defendants paid further amount
of Rs. 1000/- to late Sh. Babu Lal, leaving an amount of Rs. 2000/-
out of the sale consideration. No receipt was given by late Sh. Babu
Lal by saying that since the matter was between brother receipt is not
necessary.
3.7 Sh. Nathauli Mal, father of defendants and late Sh.
Babu Lal expired in August, 1984 and as such, the tenancy in respect
of suit property devolved upon defendants.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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3.8 In the year 1984-1985, the second floor of the suit
property was constructed. One room on second floor was occupied
by Shri Gyan Chand i.e. son of defendant no.1, whose family is still
residing there. Entire funds for the construction of the room on second
floor was provided by defendant no. 1. Late Sh. Babu Lal and/or his
family, including the plaintiffs, never objected or protested the
construction raised by defendant no. 1 and 2.
3.9 Defendants on several occasions and from time to time
offered to tender the remaining sale consideration to late Sh. Babu
Lal and requested him to execute the sale deed. However, he delayed
the execution of sale deed by saying that since the matter was between
real brothers, execution of sale deed was a mere formality which
could be done any time in the future. Late Sh. Babu Lal was suffering
from diabetes and he passed away in the year 1999. Defendants
several times offered to pay remaining sale consideration to plaintiff
no. 1 and other plaintiffs and requested them to execute the sale deed,
however they had been putting off the said execution for reasons best
known to them. Defendants have been and are still ready and willing
to perform their part of the agreement and and are ready to pay the
balance sale consideration in terms of agreement to sell dated
29.08.1983. The intention of the plaintiffs has turned dishonest and
they have poisoned the amicable relations that existed between the
close relations and they are now seeking to grab the entire property.
3.10 Defendants are not seeking to made any new
construction in the suit property. On 31.08.2009, the roof ( chajja) inCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 11/47
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SUNIL
SUNIL KHATRI
KHATRI Date:
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front of the room on the second floor, occupied by son of defendant
no. 1, has collapsed due to rain. When defendants intended to repair
the said fallen roof, they were prevented by the plaintiffs from doing
so. Even after the direction of Junior Engineer (B), MCD, plaintiffs
have prevented the urgent repairs in the suit property.
3.11 Without prejudice, the suit of the plaintiffs is barred by
Section 50 of the Delhi Rent Control Act, 1958 as defendants are
tenants in the suit property at monthly rent of Rs. 5.31p. Neither the
said tenancy was determined nor possession surrendered by
defendants. Similarly, the suit of plaintiffs is barred by Section 19 of
Slum Areas (Improvement and Clearance) Act, 1956, because suit
property is situated in slum area and no prior permission has been
sought from the Competent Authority. Plaintiffs’ suit is also barred by
Section 53A of the Transfer of Property Act, 1882 because defendants
have been in possession of the suit property even prior to execution
of Agreement to Sell dated 29.08.1983 and continued to be in
possession of the same in part performance of the said agreement.
Even assuming, that defendants were only permitted to live/reside in
the suit property on license basis by late Sh. Babu Lal . Defendants
acting upon such licenses had constructed the property in their
possession and have incurred expenses on such construction out of
their own funds, without any protest or objection from late Sh. Babu
Lal or plaintiffs. Further in the alternative, defendants have become
owner of the portion of the property in their possession by adverse
possession because they are in continuous, open, settled and peaceful
possession in their own right for more than 12 years.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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REPLICATION
4. Replication was filed by the plaintiffs to the written
statement (hereinafter WS) making following averments:
4.1 It was submitted that entire storey with regard to
agreement to sell has been concocted by the defendants. It was denied
that sale consideration for the suit property was paid by the defendant
no. 1. It was reiterated that defendants were only permitted to reside
in the suit property being real brothers of late Sh. Babu Lal. Hence,
possession of defendants was permissive and they were allowed to
reside as a result of natural love and affection and as such no right
was created or vested with them.
4.2 It was denied that any agreement to sell as alleged was
executed at any point of time by late Sh. Babu Lal in favour of
defendants in respect of suit property. The said document has been
forged and fabricated by the defendants. It bears signature as ‘Babu
Ram’, while father of plaintiff no. 2 to 4 only signed as ‘Babu Lal’. It I
is denied that said document was executed in the presence of plaintiff
no. 1.
4.3 It was stated that no pakka construction was carried out
by the defendants as alleged, because condition of the entire building
was so dilapidated that it may fall at any time. Construction in the
suit property was an old one and allegation of arranging funds etc.
were absolutely concocted by the defendants.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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4.4 No consideration was tendered by the defendants
anytime because there was no agreement to sell executed between
late Sh. Babu Lal and defendants.
4.5 The rest of the contents of the WS were denied and
averments of the pliant were reiterated by the plaintiffs.
ISSUES
5. On the basis of pleading of parties following issues
were framed on 10.08.2011 in Civil Suit no. 600367/2016 titled
‘Kamla Devi & Ors. vs. Het Ram & Ors.‘:
(1) Whether the suit is barred by limitation? OPD1&2
(2) Whether the suit is not maintainable in the present form?
OPD1&2
(3) Whether this court has no jurisdiction to try the present suits
in view of Sec. 50 of the D.R.C. Act? OPD1&2
(4) Whether the present suit is barred under Sec. 19 of the Slum
Areas (Improvement & Clearance) Act, 1956? OPD1&2
(5) Whether the suit is not maintainable under Sec. 477/478 of
the D.M.C. Act? OPD4
(6) Whether the plaintiff is entitled for decree of possession as
prayed? OPP
(7) Whether the plaintiff is entitled to decree of permanent
injunction as prayed ? OPP
(8) Whether the plaintiff is entitled to decree of Rs. 1200/- as
prayed ? OPP
(9) Relief.
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SUNIL
SUNIL KHATRI
KHATRI Date:
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5.1 Similarly, following issues were framed on 15.11.2014
in Civil Suit no. 97169/2016 titled ‘Het Ram & Ors. vs. Kamla Devi
& Ors. ‘ filed by the defendants against the plaintiffs :-
(1) Whether the plaintiff is entitled for relief of specific
performance as prayed for ? OPP(2) Whether the plaintiff is entitled for relief of permanent
injunction as prayed for ? OPP(3) Whether the present suit is filed within the period of
limitation ? OPP(4) Relief.
PLAINTIFFS’ EVIDENCE
6. At the cost of repetition, it may be observed that vide
order dated 11.02.2016 both the present suits were consolidated for
the purpose of evidence and hence entire evidence was led by the
parties in the lead matter titled ” ‘Kamla Devi & Ors. vs. Het Ram &
Ors.“.
6.1 Plaintiffs examined their sole witness Plaintiff no. 2 as
PW-1, who filed his evidence by way of affidavit Ex. PW-1/1 on
record, reiterating the averments made in the plaint. He relied upon
documents such as sale deed dated 10.03.1971 and site plan, Ex.
PW-1/A and Mark X respectively, in his evidence.
6.2 PW-1 was cross-examined at length by the Ld. Counsel
of the defendants. In his cross-examination he stated he is sixth Class
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SUNIL
SUNIL KHATRI
KHATRI Date:
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pass and does not understand English language. He further stated that
his grandfather used to reside in some other property Katra Lohan,
Subzi Mandi, Delhi and denied the suggestion that his grandfather
used to reside in the suit property since 1950 till his death. He also
denied the suggestion that when suit property was purchased in the
year 1971, his grandfather and family members used to reside in suit
property. He admitted that his grandfather expired somewhere in
1984-1985 and died intestate. He stated that he did not remember
whether draftsman visited the suit property for preparation of site plan
Mark X. He conceded that he was not born when the suit property
was purchased in the year 1971. He further stated that he does not
know the extent of construction at the time when suit property was
purchased. He also stated that he does not know whether construction
on first and second floor of the suit property was done in the year
1975 and 1984 respectively and whether expenses of said
construction was borne by defendants. He admitted that his mother is
alive as on date and she resides with him in suit property. He further
admitted that he and other plaintiffs have not filed any complaints
against defendants after the death of his father till August, 2009. He
also admitted that there was a quarrel between defendants and his
family on 31.08.2009 when a chajja had fallen off, upon which case
u/s 107/151 Cr.P.C. was registered against him. He conceded that
plaintiffs have not issued any written letter/notice to defendants for
vacating the suit property. He denied the suggestion regarding
obligation to execute sale deed by the plaintiffs in favour of
defendants in pursuance to agreement to sell dated 29.08.1983 andCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 16/47
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SUNIL
SUNIL KHATRI
KHATRI Date:
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also the suggestion that defendants were ready and willing to perform
their part of contract.
DEFENDANTS’ EVIDENCE
7.1 Defendants examined three witnesses in support of
their case. Son of defendant no. 1 i.e. Sh. Gyan Chand was examined
as DW-1. He tendered his evidence by way of affidavit which was
exhibited as Ex. DW-1/A. He also relied upon several documents
which are as follows:
i. Ex. DW1/1 (colly 02 pages) are rent receipts.
ii. Ex. DW1/2 is photocopy of Agreement to Sell dt.
29.08.1983.
iii. Ex. DW1/3 is original site plan.
iv. Ex. DW1/4 (i) is photocopy of water bill of 1978.
v. Ex. DW1/4 (ii) is photocopy of electricity bill of March,
1979.
vi. Ex. DW1/4 (iii) is photocopy of electricity bill of May,
1979.
vii. Mark A is photocopy of birth certificate of Vedwati.
viii. Mark B (colly) is photocopy of ration card of Late Het Ram
issued on 01.01.1983.
ix. Mark C (colly) is photocopy of ration card of Kishan Lal
issued on 01.01.1983.
x. Mark D (colly) is photocopy of television license dated
05.01.1983 of Sh. Gyan Chand.
xi. Ex. DW1/4 (ix) is photocopy of electricity bill of December,
1984.
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SUNIL KHATRI
KHATRI Date:
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xii. Mark E is photocopy of passport of Sh. Gyan Chand.
xiii. Ex. DW1/4 (xi) is photocopy of electricity bill of January,
1987.
xiv. Ex. DW1/4 (xii) is photocopy of electricity bill of March,
1987.
xv. Mark F is photocopy of birth certificate of Vedwati.
xvi. Mark G is photocopy of birth certificate of Yash Pal.
xvii. Ex. DW1/4 (xv) is photocopy of electricity bill of November,
1989.
xviii. Ex. DW1/4 (xvi) is photocopy of electricity bill of February,
1990.
xix. Mark H is photocopy of ration card of Gyan Chand.
xx. Mark I is photocopy of electoral card of Gyan Chand.
xxi. Mark J is photocopy of electoral card of Kishan Lal.
xxii. Mark K is photocopy of electoral card of Atro Devi.
xxiii. Mark L is photocopy of electoral card of Rajjo.
xxiv. Mark M is photocopy of electoral card of Het Ram.
xxv. Mark N is photocopy of Driving License of Gyan Chand.
xxvi. Mark O is photocopy of ration card of Gyan Chand.
xxvii. Mark P is photocopy of translation of agreement to sell dated
29.08.1983.
7.2 DW-1 was cross examined by the Ld. Counsel for the
plaintiffs. In his cross-examination he stated that he does not know
complete facts of the case, however he know most of them. He
conceded that he had been told about the facts of the present case by
his father. He also admitted that agreement to sell in question i.e. Ex.
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DW-1/2 was not executed in front of him and he was told about the
same by his father long back. He further stated that his advocate has
written his evidence by way of affidavit i.e. Ex. DW1/A upon his
instructions, however its contents were not read over to him. Further,
he stated that he cannot understand or read Ex. DW1/A because he
does not understand English language. He further stated one munshi
had prepared Ex. DW-1/2 and power of attorney was given by Sh.
Babu Lal in favour of defendants. He admitted that no such power of
attorney has been placed on record. He stated that renovation in the
year 1975 in the suit property by late Sh. Het Ram and late Sh. Kishan
Lal was done before him and both of them paid for renovation of their
respective portions. However, he could not show any document
which show that Sh. Het Ram had paid for renovation of his portion.
He conceded that Smt. Kamla Devi i.e. plaintiff no. 1 had refused to
execute Ex. DW-1/2 after the year 1996. He also conceded that his
grandfather Sh. Natholi Ram was having property no. 293, Katra
Gülhan, Main bazar, Subzi mandi and he used to reside in the said
property.
7.3 Sh. Kedar Nath S/o Late Sh. Het Ram was examined as
DW-2. He tendered his evidence by way of affidavit Ex. DW-2/A on
record and relied upon documents relied upon in evidence of DW-1
except Mark P. DW-2 was cross examined on behalf of Ld. Counsel
for plaintiff. He admitted that facts mentioned in his evidence by way
of affidavit Ex. DW2/A were told to him by his father and chacha ji
and he gained the knowledge qua DW1/2 subsequently through his
father. He stated that he does not have any receipt of payment madeCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 19/47
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to Sh. Babu Lal as mentioned in Ex. DW-2/A. He further stated that
no notice was issued to legal heirs of late Sh. Babu Lal qua execution
and registration of Ex. DW1/2 and he never went to plaintiff no. 1
regarding Ex. DW1/2. He admitted that his grandfather never lived in
the suit property.
7.4 Sh. Gopal S/o Sh. Kishan Lal was examined as DW-3.
He tendered his evidence by way of affidavit Ex. DW-3/A and relied
upon documents relied upon in evidence of DW-1 except Mark P. He
was cross-examined by the Ld. Counsel for the plaintiffs. He stated
that he has left the suit property 5-6 years ago and his parents are still
residing at the same. He further stated that after the death of late Sh.
Babu Lal his legal heirs threatened the defendants for dispossessing
them from the suit property. He admitted that entire facts mentioned
in his evidence by way of affidavit was told to him by his father and
the said facts are not in his personal knowledge and he was not
witness to the same. He stated that Mark X is correct site plan of the
suit property. He further stated that after 2-3 years from the death of
late Sh. Babu Lal, his legal heirs started threatening the defendants to
dispossess them.
ISSUE-WISE FINDINGS IN CIVIL SUIT NO. 367/2016 TITLED
‘KAMLA DEVI & ORS. VS. HET RAM & ORS.’:
Issue no.1
“Whether the suit is barred by limitation? OPD1&2”
8.1 The onus to prove the present issue was on defendants.
It is the case of the defendants that sale deed in favour of late Sh.
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Babu Lal was executed in the year 1971 and defendants were residing
in the suit property prior to the execution of sale deed. Therefore, if
the plaintiffs have any difficulty or dispute with the defendants then
late Sh. Babu Lal or plaintiffs could have filed the suit for possession
after execution of the sale deed. However, they failed to do so. As per
Article 65 of the Limitation Act, 1963, limitation period for filing suit
for possession is 12 years. Hence, present suit is barred by limitation.
8.2 On the other hand, it was contented by the Ld. Counsel
for the plaintiffs that present suit is well within limitations and
defendant have not led any evidence on this aspect.
8.3 In the opinion of the court, limitation is a mixed
question of fact and law. The limitation period for filing a suit of
possession is 12 years as per Article 65 of the Limitation Act, 1963.
However, the limitation period begins to run when the possession of
the defendant becomes adverse to the plaintiff. It is the case of the
plaintiffs that defendants were allowed to reside in the suit property
as gratuitous licencee being brothers of late Sh. Babu Lal i.e. their
predecessor in interest. Therefore, it cannot be said that possession of
the defendant had became adverse from the date of the execution of
sale deed in favour of late Sh. Babu Lal. As per the plaint, defendants
starting creating problems in the possession of the plaintiffs for the
last 5-6 years and they also tried to raise construction in the suit
property without the permission of the plaintiffs about 2-3 days
before the filing of the suit. No evidence has been led to the contrary
by the defendants. Various documents filed by them on record likeCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 21/47
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copies of birth certificate, ration card, utility bill etc. only show their
possession which has already been admitted by the plaintiffs. Nothing
has come on record which proves that defendants have acted as owner
of the suit property. Admittedly, neither any court proceeding was
initiated on the basis of Ex. DW1/2 i.e. agreement to sell dated
29.09.1983 by the defendants nor any attempt was made by them to
create third party interest in the suit property before filing the suit for
specific performance against the plaintiffs. Therefore, it cannot be
said that possession of the defendants become adverse to the plaintiffs
after the execution of Ex. PW1/A i.e. sale deed.
8.4 In view of the aforesaid, present issue is decided
against the defendants and in favour of the plaintiffs.
Issue no. 2
“Whether the suit is not maintainable in the present form? OPD1&2”
9. The onus to prove the aforesaid issue was on the
defendants. However, no evidence has been led by the defendants to
prove that how the suit is not maintainable or what is wrong in the
form of the suit. The said objection seems to be taken as a matter of
routine by the defendants. Accordingly, present issue is decided
against the defendants and in favour of the plaintiffs.
Issue no. 3
“Whether this court has no jurisdiction to try the present suits in view
of Section 50 of the D.R.C. Act? OPD1&2”
and
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Issue no. 4
“Whether the present suit is barred under Sec. 19 of the Slum Areas
(Improvement & Clearance) Act, 1956? OPD1&2″
10.1 Both the aforesaid issues are taken up together as they
are interconnected. Defendants have contended that suit property was
originally owned by Sh. Radha Krishan and Sh. Brij Raj Kishore
under whom Sh. Nathauli Mal i.e. ancestor of plaintiffs and
defendants, was a tenant at a monthly rent of Rs. 5.31p. They relied
upon the rent receipts Ex. DW1/1 issued in favour of Sh. Nathauli
Mal by the then owners. Sh. Nathauli Mal expired on August, 1984,
hence tenancy of the suit property devolved upon defendants.
Therefore, rent of the property being less than Rs. 3500/- only Rent
Controller has jurisdiction to decide the present suit for possession.
Further, the suit property lies in the area notified under the Slum Areas
(Improvement & Clearance) Act, 1956 (Slums Act in short), therefore
present suit could not be filed without the permission of the
Competent Authority, as prescribed under the said act.
10.2 Per Contra, Ld. Counsel for the plaintiffs argued that
the aforesaid stand taken by the defendant is itself contradictory to
their own averments as on one hand, they are claiming themselves to
be owner of the suit property by virtue of agreement to sell Ex.
DW1/2, however on the other hand, the objection qua Delhi Rent
Control Act, 1958 (DRC in short) and Slums Act has been raised. In
their cross-examination DW-1, DW-2 and DW-3 have admitted that
late Sh. Nathauli Mal was residing in some another property,
therefore there is no question of there being any tenancy in his favour.
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Objection was also taken regarding the proof of rent receipts Ex.
DW1/1 by the Ld. Counsel for the plaintiffs on the ground that none
of the witnesses is either the author or the executor the the said
receipts and apart from the same there is no documents to prove the
alleged tenancy of the ancestor of the parties.
10.3 Perusal of the rent receipts Ex. DW1/1 shows that they
were purportedly issued in favour of late Sh. Nathauli Mal in the year
1963 and 1966. Hence, they are more than 30 year old when they
were filed in the court. In this regard it will be relevant to reproduce
Section 92 of the Bharatiya Sakhsya Adhiniyam, 2023 (earlier
Section 90 of Indian Evidence Act, 1972) which deals with
presumption regarding 30 year old documents:
” 92. Presumption as to documents thirty years old.
Where any document, purporting or proved to be thirty
years old, is produced from any custody which the Court in
the particular case considers proper, the Court may pre-
sume that the signature and every other part of such docu-
ment, which purports to be in the handwriting of any par-
ticular person, is in that person’s handwriting, and, in the
case of a document executed or attested, that it was duly
executed and attested by the persons by whom it purports
to be executed and attested.
Explanation. – The Explanation to section 80 shall also ap-
ply to this section.
Illustrations.
(a) A has been in possession of landed property for a long
time. He produces from his custody deeds relating to the
land showing his titles to it. The custody shall be proper.
(b) A produces deeds relating to landed property of which
he is the mortgagee. The mortgagor is in possession. The
custody shall be proper.
(c) A, a connection of B, produces deeds relating to lands
in B’s possession, which were deposited with him by B for
safe custody. The custody shall be proper.”
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10.4 In view of the aforesaid provision court may presume
that any document which is purportedly 30 years old, bears signature
and handwriting of any person by whom the same was purportedly
signed or written. It is necessary that such document should be
produced from proper custody.
10.5 In the present case, the alleged rent receipts Ex. DW1/1
are purportedly 30 years old. Further the same were produced by the
son and grandson of late Sh. Nathauli Mal in the court. Therefore, it
cannot be said that the custody was improper. Hence, it can be
presumed that the said rent receipts Ex. DW1/1 were handwritten by
the then owner of the suit property.
10.6 However, merely by proof of rent receipts Ex. DW1/1,
it cannot be said that the tenancy of the suit property devolves upon
defendants in the year 1984 after the death of Sh. Nathauli Mal. It is
the case of the defendant that though the suit property was purchased
in the name of late Sh. Babu Lal, the sale consideration was paid by
defendant no. 1. Further, defendant have sought specific performance
of agreement to sell Ex. DW1/2 through the cross suit filed by them
against the plaintiffs and also sought protection of section 53 A of
Transfer of Property Act, 1882 citing part performance of said
contract. Therefore, there is merit in the argument of Ld. Counsel for
plaintiffs that defendants are blowing hot and cold in the same breath
by claiming protection of tenancy laws and at the same time seeking
ownership of suit property on the basis of agreement to sell Ex.
DW1/2. Nothing has come on record to show that tenancy of Sh.
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Nathauli Mal continued after the purchase of suit property by late Sh.
Babu Lal. On the contrary, DW-1 conceded that his grandfather Sh.
Nathauli Ram was having property no. 293, Katra Gulhan, Main
bazar, Subzi mandi and he used to reside in the said property. DW-2
and DW-3 also stated that late Sh. Nathauli Ram used to reside in
another property and not suit property. Defendants have not filed any
rent receipts, rent agreement or proof of payment of rent to late Sh.
Babu Lal or plaintiffs.
10.7 Under the aforesaid circumstances, it can be safely
concluded that tenancy of late Sh. Nathauli Mal came to end with the
purchase of suit property by his son late Sh. Babu Lal. Hence, there
is no question of inheritance of tenancy of the suit property by the
defendants. Resultantly, no permission is required from the
Competent Authority under Slums Act for filing the present suit for
possession by the plaintiffs and also this court has jurisdiction to try
the suit. Accordingly, present issues are decided against the
defendants and in favour of the plaintiffs.
Issue no.5
“Whether the suit is not maintainable under Sec. 477/478 of the
D.M.C. Act? OPD4”
11. The onus to prove the present issue was on defendant
no. 4. Vide order dated 11.02.2016, defendant no. 4/MCD has been
deleted from the array of parties. Therefore, present issue has become
infructuous. Even otherwise, sub-section (3) of 478 of DMC Act,
1957 provides that the two-month advance notice requirement may
be waived if the relief claimed is injunction where giving notice
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would defeat the object of the suit. Accordingly, the present issue is
decided against the defendants and in favour of the plaintiffs.
Issue no.6
“Whether the plaintiff is entitled for decree of possession as prayed?
OPP”;
Issue no.7
“Whether the plaintiff is entitled to decree of permanent injunction as
prayed ? OPP”;
and
Issue no.8
“Whether the plaintiff is entitled to decree of Rs. 1200/- as prayed ?
OPP”
12.1 All these issues are taken up together because they are
inter related and common evidence has been led by the parties in
respect of them. The onus to prove the aforesaid issue was on the
plaintiffs. In brief it is the case of the plaintiff that their predecessor
in interest late Sh. Babu Lal purchased the suit property vide
registered sale deed dated 26.03.1971 Ex. PW1/A. Defendants no. 1
and 2 who are his real brothers, were allowed in live in four rooms
i.e. two rooms on the ground floor, one room on the first floor, one
room on the second floor, of the suit property without any charges.
Late Sh. Babu Lal died interstate leaving behind plaintiffs as his legal
heirs and as such they became owner of the suit property. Defendant
started picking up quarrels with the plaintiffs, therefore their licence
to live in the suit property was terminated and upon their refusal to
vacate the property present suit was filed.
12.2 Per contra, defendants contented that late Sh. Babu Lal
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had no funds to purchase the suit property and defendant no. 1
provided the necessary funds for purchase of the suit property to him.
After the purchase of the suit property in the name of late Sh. Babu
Lal, defendants along with him continued to reside in the property
which consisted of two kachha rooms and construction was raised
from time to time. Defendant no. 1 and 2 made construction in the
suit property and all the fund for the same was also provided by them.
In the year 1983 late Sh. Babu Lal was in need of financial assistance
and he executed agreement to sell Ex. DW-1/2 in favour of defendants
in respect of half undivided share in the suit property for the
consideration of Rs. 5000/-, out of which Rs. 2,000/- was paid at the
time of execution. Later on another Rs. 1000/- was paid, but no
receipt was given.
12.3 It is argued by the Ld. Counsel for the plaintiffs that
defendant have filed a suit for specific performance against the
plaintiffs in respect of half undivided share in suit property.
Therefore, ownership of Late Sh. Babu Lal who is husband/father of
plaintiffs is not disputed by the defendants. Further, objection
regarding giving of funds for the purchase of suit property by
defendant no. 1 is misplaced, as the same is barred by section 4 of
Prohibition of Benami Property Transactions Act, 1988. Moreover,
the deposition of all the witnesses of the defendants are based upon
hearsay and as such inadmissible in evidence. Defendants have not
produced their best witness i.e. Defendant no. 2 namely Sh. Kishan
Lal. He was stated to be bedridden, however no document was filed
to substantiate the said averment.
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12.4 Ld. Counsel for defendants argued that no authority has
been placed on record by the PW-1 to depose on behalf of other
plaintiffs. Therefore, his testimony should be discarded. Further,
plaintiffs have created confusion by referring to their predecessor as
‘Babu Lal’, whereas in the sale deed his name was recorded as ‘Babu
Ram’. Moreover, the site plan Mark X, relied upon by the plaintiffs
has only been marked and not exhibited, therefore same cannot be
read into evidence. Therefore, plaintiffs have failed to establish their
entitlement for possession of the suit property. It is also argued that
defendants have duly proved all the ingredients of Section 53 A of
Transfer of Property Act, 1882 such as existence of agreement to sell,
payment of part consideration, handing over of possession in
pursuance to the contract etc. Hence, they are entitled to protection of
their possession against the transferor.
12.5 In the present case, defendants’ have taken various
defences like suit property’s tenancy being inherited by them on the
demise of late Sh. Nathauli Mal; possession of suit property in part
performance of agreement to sell Ex. DW1/2; perfection of title by
way of adverse possession etc.. However, all those defences are
without any merit due to following reasons.
12.6 In the opinion of the court, a plaintiff does not need
prior authorization on behalf of other co-plaintiffs for deposing in the
court on their behalf. No such requirement has been mentioned in the
Code of Civil Procedure, 1908. Further, In the preceding issue it has
already been adjudicated that suit property was not inherited by theCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 29/47
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defendants after the demise of late Sh. Nathauli Mal, hence same is
not being discussed here again to avoid repetition.
12.7 Defendants have claimed that they are in possession of
suit property in part performance of agreement to sell Ex. DW1/2 so
they are entitled to protection of their possession under Section 53A
of Transfer of Property Act, 1882 (TP Act in short). Section 53A of
TP Act provides as follows:
“53-A. Part performance. –Where any person contracts
to transfer for consideration any immovable property by
writing signed by him or on his behalf from which the terms
necessary to constitute the transfer can be ascertained with
reasonable certainty: and the transferee has, in part perfor-
mance of the contract, taken possession of the property or
any part thereof, or the transferee, being already in posses-
sion, continues in possession in part performance of the
contract and has done some act in furtherance of the con-
tract, and the transferee has performed or is willing to per-
form his part of the contract, then, notwithstanding that,
where there is an instrument of transfer, that the transfer has
not been completed in the manner prescribed therefor by
the law for the time being in force, the transferor or any
person claiming under him shall be debarred from enforc-
ing against the transferee and persons claiming under him
any right in respect of the property of which the transferee
has taken or continued in possession, other than a right ex-
pressly provided by the terms of the contract: Provided that
nothing in this section shall affect the rights of a transferee
for consideration who has no notice of the contract or of the
part performance thereof.”
12.8 Hon’ble Apex Court laid down essential conditions
which has to be fulfilled by a perspective buyer to take benefit of
aforesaid provision in the case of Nathulal v. Phoolchand(1969) 3
SCC 120 which are as follows:
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“9. The conditions necessary for making out the defence
of part performance to an action in ejectment by the owner
are:
(1) that the transferor has contracted to transfer for con-
sideration any immovable property by writing signed by
him or on his behalf from which the terms necessary to
constitute the transfer can be ascertained with reasonable
certainty;
(2) that the transferee, has, in part performance of the
contract, taken possession of the property or any part
thereof, or the transferee, being already in possession con-
tinues in possession in part performance of the contract;
(3) that the transferee has done some act in furtherance of
the contract; and
(4) that the transferee has performed or is willing to per-
form his part of the contract.”
12.9 In the present case, plaintiffs have argued that
defendants have failed to prove agreement to sell Ex. DW-1/2 in
accordance with law. DW-1 in his cross-examination stated that the
said agreement was made by a Munshi, however this fact was never
incorporated in the pleadings and no such person/munshi was
produced to substantiate the same.
12.10 Perusal of the aforesaid Ex. DW-1/2 shows that it was
purported to be made in the year 1983. Therefore, at the time of its
tendering in evidence in the year 2024 by DW-1, it was more than 30
years old. In terms of Section 92 of Bharatiya Sakshya Adhiniyam,
2023 (supra) court may presume that signatures appearing in the said
agreement were made by the persons who purported to sign them.
Therefore, it can be said that agreement to sell Ex. DW-1/2 has been
duly proved on record in the testimony of DW-1. In the opinion of
court, omission to tell about munshi in the pleadings or his non
examination cannot invalidate the said agreement.
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12.11 Further, defendants were admittedly in the possession
of the part of the suit property. Hence, second condition has also been
met by them.
12.12 However, it is necessary that transferee has done some
act in furtherance of the contract. Defendants have claimed that they
have paid part consideration of Rs. 2000/- to late Sh. Babu Lal at the
time of execution of Ex. DW-1/2. In the agreement also it has been
mentioned that receipt of the transaction was given to the
GPA/vendee by the vendor. However, no such receipt was filed on the
record by the defendants. DW-2 admitted in his cross-examination
that he does not have receipt of payment and the fact regarding such
receipt as mentioned in his evidence by way of affidavit Ex. DW-2/A
was told to him by his father. The evidence regarding such payment
was merely hearsay and hence cannot be relied upon. Apart from the
testimony of defendants’ witnesses which is hearsay, neither any
document/receipt/bank statement was filed nor any witness to the said
transaction was examined on record. Therefore, defendants have
failed to prove the payment of part consideration to late Sh. Babu Lal
as alleged by them. Accordingly, they have also failed to prove the
conditions mentioned above, which are pre-requisite for protection of
possession under section 53A of TP Act, in part performance of the
contract.
12.13 Defendants have also alleged that sale consideration for
the Sale Deed Ex. PW-1/A was provided by defendant no. 1 and
property was purchased in the name of late Sh. Babu Lal. PlaintiffsCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 32/47
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argued that such claim is barred by section 4 of Prohibition of Benami
Property Transactions Act, 1988. Suffice it is to say that defendants
have failed to prove any such payment by defendant no. 1. All the
witnesses examined on behalf of defendants were not privy to the said
transaction, if any. Further they were either not born or have not
achieved the age of maturity in the year 1971 i.e. year of execution of
sale deed Ex. PW-1/A. No documentary proof of any such transaction
was also filed on behalf of the defendants. Therefore, the averment
regarding providing sale consideration by the defendant no. 1 at the
time of execution of sale deed remained bald assertion without any
proof.
12.14 A feeble attempt was made by the defendants at the
time of final arguments to claim that they have perfected their title by
way of adverse possession. However, no evidence was led by them
on the aforesaid point of adverse possession. Even otherwise,
defendants have failed to show as to when their possession became
adverse to the plaintiffs’. Hence, there is no merit in the said argument
of the defendants which is otherwise also mutually destructive to the
case of specific performance set up by them.
12.15 It is settled principle of law that in respect of relief
claimed by a plaintiff, he has to stand on his own legs by proving his
case and he cannot taken any benefit from the weakness of the
defendant’s case. In the present case defendants’ have admitted the
ownership of plaintiffs over the suit property. Therefore, sale deed
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document, has been proved on record. The only other document filed
on behalf of the plaintiffs’ is site plan Mark-X. The said site plan has
been filed in original and PW-1 has stated that same was prepared
upon his instructions. Even defendant’s witnesses admitted the same
to be correct barring minor inconsistencies. Moreover Mark X is
similar to site plan of the suit property Ex. DW1/3 filed on behalf of
the defendants. Therefore, the said Mark X has been duly proved and
exhibited as PW-1/B.12.16 The entire case of the plaintiffs is founded upon the
assertion that the suit property comprises a built up structure, out of
which four rooms were given to defendants on license basis being
brother of late Sh. Babu Lal. On the other hand, defendants have
asserted that Property was a khaprail at the time of its purchase in the
year 1971 by late Sh. Babu Lal, which consisted of a two-room
kaccha structure (khaprail). In 1975, entire property was substantially
reconstructed/renovated and Defendant no. 2 provided all the funds
for the construction of the room on the first floor, which is still, in his
possession. Defendant no. 1 and his family occupied the two rooms
on the ground floor. In the year 1984-1985, the second floor of the
suit property was constructed. One room on second floor was
occupied by Shri Gyan Chand i.e. son of defendant no.1, whose
family is still residing there. Entire funds for the construction of the
room on second floor was provided by defendant no. 1. Late Sh. Babu
Lal and/or his family, including the plaintiffs, never objected or
protested the construction raised by defendant no. 1 and 2.
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12.17 The site plan Ex. PW1/B and DW-1/3 filed by parties
depicted the suit property as two storey house. It is pertinent to
mention here that original sale deed Ex. PW-1/A was filed on record
by the plaintiffs. However, no such site plan was part of it. In the sale
deed Ex. PW1/A it was categorically stated that site map enclosed
with the same will remain part of the said document.
12.18 Later on translated version of the sale deed ( from Urdu
to English language) was filed on behalf of the plaintiffs in the court
along copy of the original sale deed. Surprisingly, in the copy of sale
deed filed in the court along with its translated version site map was
also present. For the sake of reference, same has been exhibited as
Ex. C-1.
12.19 In the case of A.Shanmugam v. Ariya Kshatriya
Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam,
(2012) 6 SCC 430 Hon’ble Apex Court has observed as follows:
“ENTIRE JOURNEY OF A JUDGE IS TO DISCERN THE
TRUTH .
24. The entire journey of a Judge is to discern the
truth from the pleadings, documents and arguments of the
parties. Truth is the basis of the justice delivery system….”
12.20 In the present case, it appears plaintiffs have tried their
best to conceal the site map Ex. C-1 from the court. The reason for
the same is that the said site map can completely demolish the case
setup by them that suit property was built up property out of which
four rooms were given to the defendants for residence. As the said
document has been filed by the plaintiffs themselves, they cannot
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dispute its accuracy and authenticity. Bare perusal of site map Ex. C-1
shows that at the time of sale suit property consisted of one Kotha and
one room of khaprail along with terrace over Kotha. This new finding
gives credence to the case of the defendants that construction was
made in the suit property later on. DW-1 has remained firm in his
testimony that renovation in the suit property in the year 1975 by
defendants was done before him and defendant no. 1 paid for his
portion and Sh. Babu Lal paid for his portion. In their replication also
plaintiffs have gave evasive denials to the averments made by the
defendants regarding making construction in the suit property without
any objection by late Sh. Babu Lal and also spending their funds for
the said purpose. Plaintiff no. 2/PW-2 has not denied the question of
construction on first and second floor of the suit property in the year
1975 and 1984 respectively and expenses of same being borne by
defendants. Instead he merely feigned ignorance about it.
12.21 Not only this, plaintiffs have made vague averments
regarding giving the four rooms in the suit property on license basis
to the defendants. No date, month or year of the alleged licences was
mentioned. No witness was cited in whose presence the said license
was created. No duration of the license was mentioned. The pleadings
of the plaintiffs are also silent regarding any construction in the suit
property. On the contrary, it has been stated by them that being old
construction and property being in dilapidated condition no
construction as stated by defendants could take place in the suit
property.
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KHATRI
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Date: 2026.06.12
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12.22 There is also no averment to the effect that late Sh.
Babu Lal or plaintiffs constructed the suit property. Merely execution
of sale deed Ex. PW-1/A in favour of late Sh. Babu Lal is not a proof
regarding his ownership over any construction made over the same in
the absence of any supporting evidence to the said effect.
12.23 Plaintiffs have been very negligent in pursing the
present case. They have not filed any document to show their
relationship with late Sh. Babu Lal. No ration card or surviving
member certificate was filed on record. Even the death certificate of
late Sh. Babu Lal was not filed on record. Plaintiffs have also created
confusion regarding the identity of late Sh. Babu Lal as in he sale
deed Ex. PW-1/A, Written Statement of Defendant no. 1 & 2 his name
was mentioned as ‘Babu Ram’ whereas in the pleadings of the
plaintiffs his name was mentioned as ‘Babu Lal’. No explanation was
given as to what is the correct name of late Sh. Babu Lal. In the
absence of identity documents like Voter id card, Aadhar Card,
Passport etc. his correct name could not be ascertained. Instead of
filing complete documents on record, plaintiffs tried to discredit the
agreement to sell Ex. DW1/2 by stating that signatures of late Sh.
Babu Lal was done purportedly as ‘Babu Ram’ which he never used
to sign. They seemed to forget that even in the Sale Deed Ex. PW-1/A
late Sh. Babu Lal has been referred as ‘Babu Ram’.
12.24 Plaintiffs have examined only one witness PW-1/
plaintiff no. 2 on record. PW-1 was not a witness to the sale deed or
the alleged license given by his father to defendants. The best
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evidence/witness regarding the license/transaction/construction was
Smt. Kamla Devi/ Plaintiff no. 1, who never stepped into the witness
box to depose in favour of her case. His son i.e. plaintiff no. 2/ PW-1
admitted that his mother was alive on the date of his examination in
court and and she resides with him in suit property. No reason or
explanation was given for non examination of Smt. Kamla Devi or
any other plaintiff on record. Therefore, in the absence of any
corroboration, the averments made by PW-1 remained bald
averments with no evidence to substantiate them.
12.25 Therefore, plaintiffs have failed to discharge the onus
placed upon them. Even if for the sake of arguments it is assumed that
suit property was given on license to the defendants as gratuitous
licensee, then also defendants cannot be evicted from the suit property
in view of bar of Section 60 (b) of India Easements Act, 1882. In the
case of Ram Sarup Gupta v. Bishun Narain Inter College (1987) 2
SCC 555, Hon’ble Supreme Court of India laid down three conditions
for taking benefit of said provision which are as follows:
” A license is irrevocable under section 60(b) of the Act
only if three conditions are fulfilled, namely,
(i) the licensee executed work of a permanent character,
(ii) he did so acting upon the license, and
(iii) he incurred expenses in doing so.”
12.26 In the present case, though defendants have not taken
the plea of Section 60 (b) of the Indian Easements Act expressly, yet
the same is covered by implication in the pleadings regarding
construction made in the suit property and expense borne by them for
the same. The onus was on the defendants to prove that they have
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made construction of permanent nature in the suit property and they
incurred expenses in doing so. Direct evidence of proving such
construction and expenses is very difficult in view of the fact that
same was done more than 40 years ago. However, in view of the
testimony of DW-1 and the circumstances of the case, defendants
have discharged the burden placed upon them on the basis of
preponderance of probabilities. Further, it was specifically stated by
the defendants’ witnesses in their testimony that late Sh. Babu Lal or
plaintiff had not objected to the said construction. Hence, it cannot be
said that defendant have made any breach of the license. The said
averments and testimony have not been displaced by the plaintiffs.
No complaint or civil suit was filed by late Sh. Babu Lal or plaintiffs
before the present suit. In view of these facts and circumstances,
license, if any of the defendants has become irrevocable.
12.27 Plaintiffs have also sought permanent injunction against
the defendants to retrain them from carrying out any construction in
the suit property. It is their case that defendants tried to illegally made
construction in the suit property. However, no evidence has come on
record regarding any attempt to do alleged fresh construction by the
defendants in the suit property. Plaintiff no. 2/PW-1 has admitted in
his testimony that on 31.08.2009 a chajja had fallen off in the suit
property due to which quarrel had taken place between the parties and
a case u/s 107/151 Cr.P.C was also registered against him by the
defendants. It appears that present suit is a retaliatory measure taken
by plaintiffs against the defendants due to registration of aforesaid
case. Otherwise, there was no need to disturb the peace in the familyCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 39/47
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SUNIL KHATRI
KHATRI Date:
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by filing the present suit after about four decades of purchasing the
suit property by late Sh. Babu Lal. When the plaintiffs have failed to
prove their entitlement to the suit property occupied by the
defendants, there is no question of going into issue regarding recovery
of any mesne profits from the defendants.
In view of the aforesaid discussion, the aforesaid issues
are decided against the plaintiffs and in favour of defendants.
ISSUE-WISE FINDING IN CIVIL SUIT NO. 97169/2016 TITLED
‘HET RAM & ORS. VS. KAMLA DEVI & ORS.’ FILED BY THE
DEFENDANTS AGAINST THE PLAINTIFFS:-
Issue no.1
“Whether the plaintiff is entitled for relief of specific performance as
prayed for ? OPP”
13.1 The onus to prove this issue was on Sh. Het Ram and
Ors./ plaintiffs (referred to as ‘defendants’ to avoid confusion). The
facts of the case already mentioned in the preceding issues in
connected case are not being mentioned again to avoid repetition.
13.2 It is the case of the defendants that during the time of
late Sh. Babu Lal i.e. predecessor of plaintiffs, an agreement to sell
Ex. DW-1/2 was executed by him in favour of defendants in the year
1983 in respect of undivided half portion of suit property for a total
consideration of Rs.5,000/-. Defendants already paid part sale
consideration of Rs.2,000/- at the time of execution of said agreement
to sell and further Rs.1,000/- was paid to late Sh. Babu Lal later in the
year 1983, leaving a sum of Rs.2,000/- only out of sale consideration.
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SUNIL KHATRI
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Defendants have been ready and willing to perform their part of
contract, however, Late Sh. Babu Lal delayed the matter on on pretext
or another by saying that it is matter between brother and sale deed
can be executed any time. After the death of late Sh. Babu Lal his
legal heirs also failed to executed the sale deed and defendants came
to know about their refusal, when a civil suit for possession was filed
by them against the defendants in the year 2009.
13.3 Per contra, plaintiffs have argued that agreement to sell
Ex. DW-1/2 is a forged and fabricated document and no such
agreement was arrived between late Sh. Babu Lal and defendants.
Further defendants have miserably failed to prove the said agreement
to sell Ex. DW-1/2 on record as all the witnesses produced by the
defendants were neither the author nor witness to the execution of
said agreement to sell. Their deposition regarding them same is thus
merely hearsay which cannot be relied upon.
13.4 In a suit for specific performance of contract
plaintiffs/defendants herein have to aver and prove their readiness and
willingness to perform the contract as provided under Section
16(c) in The Specific Relief Act, 1963. For reference, the said
provision is reproduced as follows:
“16. Personal bars to relief.
Specific performance of a contract cannot be enforced
in favour of a person–(a) who has obtained substituted
performance of contract under section 20;
(b)who has become incapable of performing, or violates
any essential term of, the contract that on his part re-
mains to be performed, or acts in fraud of the contract,
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or wilfully acts at variance with, or in subversion of, the
relation intended to be established by the contract; or
(c) who fails to prove that he has performed or has al-
ways been ready and willing to perform the essential
terms of the contract which are to be performed by him,
other than terms of the performance of which has been
prevented or waived by the defendant.
Explanation.–For the purposes of clause (c),–
(i) where a contract involves the payment of money, it
is not essential for the plaintiff to actually tender to the
defendant or to deposit in court any money except when
so directed by the court;
(ii) the plaintiff must prove performance of, or readiness
and willingness to perform, the contract according to its
true construction.”
13.5 In this connection, it is apposite to reproduce the obser-
vations of Hon’ble Supreme Court of India in the case of P.-
Daivasigamani vs S.Sambandan 2022 INSC 1070 which are as fol-
lows:
“15. Readiness and willingness are not one, but two
separate elements.
Readiness means the capacity of the plaintiff to perform
the contract, which would include the financial position
to pay the purchase price. Willingness refers to the in-
tention of the plaintiff as a purchaser to perform his part
of the contract. Willingness is inferred by scrutinising
the conduct of the plaintiff/purchaser, including at-
tending circumstances. Continuous readiness and will-
ingness on the part of the plaintiff/purchaser from the
date the balance sale consideration was payable in terms
of the agreement to sell, till the deci- sion of the suit, is
a condition precedent for grant of relief of specific per-
formance.
********
18. In Sukhbir Singh v. Brij Pal Singh3 this Court had
laid down that Law is not in doubt and it is not a con-
dition that the respondents (Plaintiffs) should have
ready cash with them. It is sufficient for the respondents
to establish that they had the capacity to pay the saleCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 42/47
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consideration. It is not necessary that they should al-
ways carry the money with them from the date of the
suit till the date of the decree. The said principle was
followed in case of A. Kanthamani v. Nasreen Ahmed4,
in case of C.S. Venkatesh v. A.S.C. Murthy etc.”
13.6 In view of the above, for proving readiness the plaintiff
has to show his financial capacity to pay the remaining consideration
amount and for willingness he has to prove his continuous interest in
purchasing the property. Further, the intention of the parties have to
be seen in spirit and substance rather in letter and form. Moreover, it
is not necessary for the plaintiff to always carry with him the re-
maining sale consideration from the date of suit till date of decree. It
is enough to show that she has capacity to pay the sale consideration.
13.7 Applying the aforesaid law to the facts of the case, it
can be said without any hesitation that defendants have failed to make
out a case of specific performance in their favour. Even if the
agreement to sell Ex. DW-1/2 is deemed to be proved on record, be-
ing a 30 year old document as discussed before. Defendants have not
placed on record any document/ receipt regarding the payment of part
sale consideration to late Sh. Babu Lal. In the agreement to sell Ex.
DW-1/2 it had been mentioned that receipt of the transaction of Rs.
2,000/- was given to the defendants. However, no such receipt was
ever filed on the record for the reasons best known to the defendants.
Further, DW-2 admitted in his cross-examination that he does not
have receipt of payment and the fact regarding such receipt as men-
tioned in his evidence by way of affidavit Ex. DW-2/A was told to
him by his father i.e. Defendant no. 1. Hence, the evidence regarding
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such payment was merely hearsay. Defendants have neither filed any
other document/receipt/bank statement nor any witness was exam-
ined with respect to their financial capacity at the relevant time in the
year 1983. Defendant no. 2 who can give direct evidence regarding
the said fact was never examined on record. No cogent reason was
given for his non examination. Hence, best evidence has been with-
held by the defendants and adverse inference is raised against them
that case set up by them is not true. Moreover, no legal notice was
given by the defendants to the plaintiffs/ Legal heirs of late Sh. Babu
Lal for the execution of sale deed after death of late Sh. Babu Lal
which has happened more than 10 years before filing of the suit for
specific performance by them. Since defendants have failed to prove
the payment of Rs. 3,000/- as part payment to late Sh. Babu Lal, no
ground is made out to grant any damages or refund of said amount to
them.
13.8 Therefore, defendants have miserable failed to prove
part payment and also their readiness and willingness to fulfil the
contract. Accordingly, present issue is decided against the defendants
and in favour of the plaintiffs.
Issue no.2
“Whether the plaintiff is entitled for relief of permanent injunction as
prayed for ? OPP”
14. The onus to prove the present issue was on the defendants.
Defendants have sought permanent injunction to restrain plaintiffs
from creating third party rights or making any construction in the suit
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property. Since the defendants have failed to prove their entitlement
of specific performance in the preceding issue no such permanent
injunction can be granted in their favour. Accordingly, present issue
is decided abasing the defendants and in favour of plaintiffs.
Issue no. 3
“Whether the present suit is filed within the period of limitation?
OPP”
15.1 The onus to prove the present issue was on the defendants.
The limitation period for filing a suit for specific performance is 3
years as prescribed by Article 54 of the Limitation Act, 1963. Article
54 of the said act provides as follows:
“Article 54 of the Schedule of the Limitation Act, 1963
Description of suit: For specific performance of a con-
tract.
Period of limitation: Three years.
Time from which period begins to run: The date fixed
for the performance, or, if no such date is fixed, when
the plaintiff has notice that performance is refused.”
15.2 In view of the aforesaid provision, the limitation period
of 3 years begins to run from the date fixed for the performance or in
case where no such date is fixed, it begins to run when the plaintiff
came to know that performance has been refused.
15.3 In the present case agreement to sell dated Ex. DW-1/2
bears date of 29.08.1983. However, it is settled law that time is not
the essence of contract in case of contract of immovable property
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unless parties specifically made it so expressly. In the Ex. DW-1/2 no
time limit for execution of sale deed was prescribed, however it is
mentioned that power of attorney has to take permission and within
one month of getting permission sale deed has to be executed. It is
not clear what kind of permission was required to be taken.
15.4 Defendants contented that the limitation period to file
the present suit for specific performance would begin to run from the
date of receipt of summons of suit filed by plaintiffs against them i.e.
09.09.2009. The present suit was filed on 01.09.2012, therefor if the
09.09.2009 is taken as the commencement of limitation period, the
suit is within limitation. However, the testimony of witnesses
examined on behalf of defendants will leave no doubt that defendants
were aware about the refusal of execution of sale deed by the legal
heirs of late Sh. Babu Lal. DW-3 has stated in his cross examination
that after 2-3 years from the death of late Sh. Babu Lal, his legal heirs
started threatening the defendants to dispossess them. Therefore, it
can be presumed that under those kind of circumstances no sane
person would expect execution of sale deed. DW-1, who is the son of
defendant no. 1 also admitted in his cross examination that Smt.
Kamla Devi i.e. plaintiff no. 1 refused to execute sale deed in favour
of defendants after the year 1996. Therefore, plaintiffs have made
their intentions clear after the death of late Sh. Babu Lal, hence
limitation period to file suit for specific performance would run from
the year 1996 and not 2009 as claimed by the defendants. Accordingly
present issue is decided against the defendants and in favour of theCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 46/47
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SUNIL KHATRI
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plaintiffs. Resultantly, the present suit for specific performance is
barred by limitation.
RELIEF
16. In view of the aforesaid discussion, both civil suit
bearing no. CS SCJ 600367/2016 titled ‘Kamla Devi & Ors vs. Het
Ram & Ors‘ filed by the plaintiffs and CS SCJ 97169/2016 titled ‘Het
Ram & Ors. Vs. Kamla Devi & Ors.’ filed by the defendants are
dismissed. No order as to costs.
17. Separate decree sheets be prepared for both the
aforesaid suits accordingly.
18. Copy of present judgment be placed in connected case
titled ‘Het Ram & Ors. Vs. Kamla Devi & Ors.’
19. File be consigned to record room after due compliance.
Pronounced in the open court Digitally
signed by
SUNIL
on 12.06.2026. SUNIL KHATRI
KHATRI Date:
2026.06.12
17:48:55
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Civil Judge-06/Central
Tis Hazari Courts/DelhiPresent judgment consists of 47 pages and each page is signed by me. Digitally
signed by
SUNIL
SUNIL KHATRI
KHATRI Date:
2026.06.12
17:49:00
+0530(SUNIL KHATRI)
Civil Judge-06/Central
Tis Hazari Courts/DelhiCS SCJ 600367/2016 & CS SCJ 597169/2016 Page no. 47/47
