Harmesh Kumar vs Smt. Kamlesh Arora And Ors on 8 May, 2026

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May 23, 2026

Delhi District Court

Harmesh Kumar vs Smt. Kamlesh Arora And Ors on 8 May, 2026

IN THE COURT OF DISTRICT JUDGE-08 WEST, TIS HAZARI
COURTS, DELHI
Presided by: Ms. Susheel Bala Dagar

Civ DJ 612163/16 and 612219/16
CNR Number: DLWT01-000224-2009 and DLWT01-000263-2010

In the matter of: Harmesh Kumar v. Kamlesh Arora and Kamlesh Arora v.
Harmesh Kumar

Sh. Harmesh Kumar
S/o Late Sh. Sant Ram
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi. ..... Plaintiff

Versus

Smt. Kamlesh Arora (now deceased)
W/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi
Through her Legal Representatives -
(a) Ms. Ruchi Arora
D/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi
(b) Ms. Ritu Puri
W/o Sh. Dinesh Puri
D/o Late Sh. Harjinder Pal
R/o B-14/445, Ram Nagar,
Near Shimla Pahari Chowk,
Hoshiarpur, Punjab-146001
(c) Ms. Monika Arora
D/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi

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SUSHEEL BALA DAGAR
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(d) Ms. Parul Arora
D/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi
(e) Karan Arora
S/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi ..... Defendants

Connected with
Civ DJ No. 612219/16

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BALA DAGAR
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S/o Late Sh. Harjinder Pal
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi ..... Plaintiffs
Versus
Sh. Harmesh Kumar
S/o Late Sh. Sant Ram
R/o C-3/19, Ground Floor,
Janakpuri, New Delhi ..... Defendant

Date of institution in Civ DJ 612163/16 : 27.03.2009
Date of institution in Civ DJ 612219/16 : 29.11.2010
Date of reserved for judgment : 24.04.2026
Date of common judgment : 08.05.2026

I. Suit for declaration and permanent injunction
connected with
II. Suit for possession and damages

Common Judgment
1. By this common judgment, the Court shall decide two connected
civil suits arising out of disputes between close family members
regarding property bearing No. C-3/19, Janakpuri, New Delhi measuring
270 sq. meters (hereinafter referred to as "the suit property").
2. The first suit has been filed by Late Sh. Harmesh Kumar, now
represented through legal representatives, seeking declaration, partition,
mandatory injunction and permanent injunction on the basis of
Memorandum of Understanding dated 31.05.2000.
3. The second suit has been filed by Smt. Kamlesh Arora, widow of
Late Sh. Harjinder Pal, seeking possession of portions under occupation

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of the defendant and damages/mesne profits.
4. Since both suits arise from common facts, involve common
evidence and concern the same property and Memorandum of
Understanding dated 31.05.2000, both matters are being decided together
by this common judgment.
Part I : Suit for declaration and permanent injunction
Brief facts of the case
5. The plaintiff submitted that he and the late husband of defendant
no. 1 were real brothers who were jointly engaged in the business of
timber trading from their shop in Chirag Delhi, New Delhi. The suit
property bearing No. C-3/19, Janakpuri, New Delhi, measuring 270 sq.
meters, is described along with its boundaries. The plaintiff asserted that
disputes arose between the parties, which led to the execution of a
Memorandum of Understanding (MOU) dated 31.05.2000 in the presence
of witnesses to settle their rights and obligations concerning joint
properties.
6. Under the terms of the MOU, it was agreed that Late Shri
Harjinder Pal would get the suit property converted from leasehold to
freehold, and thereafter transfer the first floor, third floor, terrace rights,
and one-half share in the land to the plaintiff through proper sale deeds. It
was also agreed that a commercial property at Kirti Nagar would be sold
and the proceeds divided equally between the parties. The plaintiff
contended that the MOU was executed as part of a family arrangement
since the parties were holding different properties in their individual

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names despite being part of a joint family.
7. The plaintiff submitted that he fulfilled his obligations under the
MOU by cooperating in the sale of the Kirti Nagar property in July 2001.
However, Late Shri Harjinder Pal allegedly failed to honour his
commitments and did not transfer the agreed portion of the suit property
to the plaintiff. Consequently, the plaintiff issued a legal notice dated
12.07.2004 calling upon him to comply with the MOU, and upon
receiving an unsatisfactory reply, invoked the arbitration clause contained
in the MOU.
8. Arbitration proceedings were initiated before the named arbitrator,
who assumed jurisdiction and passed an award dated 05.01.2005
directing Late Shri Harjinder Pal to execute sale deeds in favour of the
plaintiff for the agreed portions of the suit property. During this period,
interim orders for maintaining status quo were also passed by the Court.
However, Late Shri Harjinder Pal challenged the arbitral award under
Section 34 of the Arbitration and Conciliation Act, and the Hon'ble High
Court, by its judgment dated 02.02.2009, set aside the award on the
ground of lack of a valid arbitration agreement, while granting liberty to
the plaintiff to seek appropriate remedies regarding enforcement of the
MOU.
9. The plaintiff emphasized that the existence and execution of the
MOU have never been disputed, and the relationship between the parties
continues to be governed by its terms. It is alleged that despite accepting
the MOU, the defendants have acted dishonestly by refusing to comply

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with its terms, particularly in not executing the sale deed for the suit
property. The plaintiff further claimed that the suit property was jointly
acquired and that he holds a one-half share, but had agreed to take only
the upper floors and terrace rights in order to maintain family harmony.
10. The plaintiff also referred to an earlier family settlement following
the death of another brother, under which various business interests and
properties were distributed among family members. After that settlement,
the remaining joint properties between the parties included the suit
property at Janakpuri and the commercial property at Kirti Nagar, which
were subsequently addressed in the MOU dated 31.05.2000.
11. The plaintiff submitted that despite having performed his
obligations, the defendants have failed to transfer his share in the suit
property and are now acting with ulterior motives, possibly due to the rise
in property values. The plaintiff relied on the liberty granted by the High
Court in its order dated 02.02.2009 to pursue appropriate legal remedies
for enforcement of the MOU.
12. The cause of action is stated to have arisen from the issuance of the
legal notice in July 2004, subsequent arbitration proceedings, the passing
and setting aside of the arbitral award, and the continued refusal of the
defendants to honour the MOU. The cause of action is described as
continuing in nature. The plaintiff asserted that the Court has jurisdiction
as the property and parties are located in Delhi.
13. Accordingly, the plaintiff prays for a decree declaring him as the
owner of the first floor, third floor, terrace rights, and one-half share in

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the land of the suit property in terms of the MOU, for directions to the
defendants to execute the necessary documents and for a permanent
injunction restraining them from creating third-party interests.
Written Statement of defendant.
14. The defendants raised several preliminary objections challenging
the maintainability of the suit. They contended that the suit is barred by
limitation, as the cause of action first arose on 22 nd July 2004 when the
plaintiff's claim was denied, and therefore any suit for declaration should
have been filed within three years, i.e., by July 2007. Since the present
suit was filed in February 2009, it is argued to be time-barred. The
defendants further asserted that the plaintiff has no ownership rights in
the suit property and cannot seek a declaration of ownership based solely
on the Memorandum of Understanding (MOU) dated 31st May 2000,
which did not create any enforceable ownership rights. They also argued
that the MOU is void for uncertainty because essential terms such as sale
consideration were not finalized and were dependent on a future
contingency, making it incapable of enforcement.
15. Additionally, the defendants claimed that the plaintiff himself
breached the MOU by dishonestly appropriating funds from a jointly held
flat in Dwarka without informing the deceased Harjinder Pal, thereby
causing financial loss and discharging both parties from their obligations
under the agreement. It is further argued that the MOU required
compulsory registration under the Registration Act, and being
unregistered, it is invalid and unenforceable with respect to immovable

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property. The defendants also alleged that the plaintiff has acted
fraudulently by tampering with the MOU, fabricating arbitration
proceedings, and obtaining a void arbitral award, which was later set
aside by the High Court. On these grounds, they submitted that the
plaintiff has not approached the Court with clean hands and is not entitled
to any relief. They also object that the suit has been improperly valued
and insufficient Court fees have been paid.
16. On merits, the defendants admitted that the plaintiff and late
Harjinder Pal were brothers and jointly carried on business, but clarified
that such joint business arrangements evolved over time through different
partnerships. They asserted that the Janakpuri property (C-3/19) was
exclusively owned by Harjinder Pal, having been purchased and
constructed entirely from his personal funds, and that the plaintiff had no
ownership interest in it. The plaintiff's occupation of part of the property
is described as permissive, merely as a licensee due to family relations.
The defendants denied that the MOU created any joint ownership or
enforceable right in the property and maintain that any alleged alterations
to the MOU were fraudulently made by the plaintiff without consent.
17. The defendants further denied that Harjinder Pal failed to perform
any obligations, instead alleging that the plaintiff's own conduct,
including breach of mutual understandings and fraudulent acts, rendered
the MOU void and unenforceable. They emphasized that the arbitral
award obtained by the plaintiff was declared invalid for lack of
jurisdiction and that the High Court did not uphold the validity of the

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MOU. They also rejected the plaintiff's claims of joint ownership, family
settlement covering the disputed property, and continuing cause of action,
reiterating that no legal right accrued to the plaintiff.
18. The defendants maintained that the plaintiff has no legal or
equitable claim over the suit property, that the suit is barred by limitation,
based on an invalid and unenforceable agreement, and tainted by fraud
and suppression of material facts. Accordingly, they prayed that the suit
be dismissed with costs as the plaintiff is not entitled to any relief.
Replication by the plaintiff to the WS of defendants.
19. The plaintiff, in reply to the preliminary objections, denied all
allegations made by the defendants and asserted that the suit is
maintainable and within limitation. It is submitted that the dispute
remained pending before the High Court of Delhi until 02.02.2009, when
the arbitral award was set aside; however, the Court granted liberty to the
plaintiff to pursue remedies based on the MOU in an appropriate forum
and directed maintenance of status quo. Therefore, the present suit is not
time-barred. The plaintiff further maintained that he is entitled to
ownership rights in the suit property as per Clause 2 of the MOU dated
31.05.2000 and that the defendants have themselves admitted the
execution of the MOU by participating in arbitration proceedings and
raising objections under Section 16 of the Arbitration and Conciliation
Act.
20. The plaintiff contended that the defendants are acting dishonestly
by refusing to comply with the agreed terms of the MOU despite having

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accepted it earlier. It is also argued that the objections raised by the
defendants are irrelevant to the present dispute and are intended only to
delay proceedings. The plaintiff reiterated that the MOU was validly
executed and subsequently modified by mutual consent through
discussions and written alterations. He also asserted that proper Court
fees have been paid and denied all allegations questioning the validity of
the suit.
21. In the replication on merits, the plaintiff denied all adverse
statements made by the defendants and reaffirmed the contents of the
plaint. He rejected allegations of fraud, manipulation, or interpolation in
the MOU and maintained that any modifications were mutually agreed
upon by both parties. The plaintiff emphasized that the MOU was entered
into as part of a family arrangement involving joint properties, and that
the defendants have acknowledged its existence and validity. He further
submitted that the arbitration proceedings were validly initiated with the
consent of both parties, including the appointment of the arbitrator.
22. The plaintiff also disputed the defendants' claim that his possession
of the property is merely permissive, asserting instead that his possession
is based on rights arising from the MOU and protected by the status quo
order of the Court. He reiterated that the property forms part of a joint
family pool and that the MOU clearly provides for transfer of specified
portions in his favor through execution of sale deeds. The plaintiff
maintained that the defendants have deliberately backed out of their
obligations due to ulterior motives and rising property values.

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23. Further, the plaintiff argued that the High Court, by allowing
parties to seek remedies based on the MOU, has effectively recognized its
legal validity. He denied that the suit lacks cause of action or is barred by
limitation, asserting that the cause of action is continuous and subsisting.
All objections regarding valuation and Court fees are also denied as
baseless.
24. The plaintiff denied the defendants' prayer for dismissal of the suit
and reiterates his own claims. He prayed that the Court grant reliefs as
sought in the plaint, including enforcement of the MOU, declaration of
ownership rights, and other appropriate orders in the interest of justice.
Issues :-
25. From the pleadings of the parties and material on record, following
issues were framed vide order dated 29.01.2013: -
Issue no. 1 What is the effect of Clause 2 of the Memorandum of
Understanding (MOU) dated 31st May 2000? OPP
Issue no. 2 Whether the plaintiff is entitled to partition and possession
of the entire first floor (with second mezzanine room) and the entire top /
third floor (with third mezzanine room) and roof / terrace rights of the
property at C-3/19, Janakpuri, New Delhi in terms of the aforesaid
MOU?
Issue no. 3 Whether the suit is barred by limitation? OPD
Issue no. 4 Whether the suit has been improperly valued for the purpose
of jurisdiction and the effect thereof? OPD
Issue no. 5 Whether the MOU dated 31st May 2000 is unenforceable as

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alleged by the defendant? OPD
Issue no. 6 Whether the plaintiff has tampered with the MOU dated 31 st
May 2000? OPD
Issue no. 7 Relief

Part II : Suit for possession and damages
Brief facts of the case
26. The plaintiff Kamlesh Arora is the lawful owner of the entire first
floor (including the second mezzanine room) and the entire third floor
(including the third mezzanine room) along with roof/terrace rights of
property bearing No. C-3/19, Janakpuri, New Delhi (hereinafter referred
to as the suit property). She inherited the same from her husband, Late
Shri Harjinder Pal, under his Will dated 18th September 2006. The
present suit has been filed to seek possession of the suit property from the
defendant Harmesh Arora, who was permitted to occupy it only as a
licensee being the brother of the plaintiff's husband. The plaintiff
contended that the license has been revoked and also seeks damages for
unauthorized occupation from the date of filing of the suit until
possession is restored.
27. The suit property forms part of a larger property measuring 270 sq.
meters, originally purchased by Late Shri Harjinder Pal from the Delhi
Development Authority (DDA) in an auction held in 1972, with
possession granted in 1973 and leasehold rights formalized through a
perpetual lease deed executed in 1974. The entire purchase and
subsequent construction of the property were funded solely by Late Shri

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Harjinder Pal from his personal resources, without any contribution from
family members. Construction of the ground floor was completed around
1979-80, and the remaining floors were constructed in 1988-89.
28. The defendant, being the younger brother of Late Shri Harjinder
Pal, was permitted to reside on the first floor purely as a matter of family
arrangement and convenience, without any ownership or legal interest
being created in his favor. Similarly, another brother was permitted to
occupy the second floor, which was later vacated. The defendant's
occupation was thus purely permissive in nature as a licensee.
29. In 1996, the defendant and Late Shri Harjinder Pal entered into a
joint business arrangement and jointly held certain properties. Due to
disputes, they executed a Memorandum of Understanding (MOU) dated
31st May 2000 to resolve their differences. The MOU provided for sale of
jointly held properties and division of proceeds, and it contemplated a
possible future sale of the suit property to the defendant after conversion
to freehold, subject to terms and price to be decided later.
30. The plaintiff alleges that the defendant committed fraud by making
unauthorized interpolations in the MOU, initiating fraudulent arbitration
proceedings, and obtaining an invalid award, which was subsequently set
aside by the Hon'ble High Court. The defendant was also found guilty of
contempt for violating Court orders and unlawfully letting out parts of the
suit property. Additionally, the defendant is alleged to have withdrawn
funds relating to a jointly held property in violation of the MOU. Due to
these actions, the MOU became void, unenforceable, and uncertain, as

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essential terms such as price were never finalized.
31. The plaintiff asserted that the defendant has lost any right to remain
in the suit property due to his misconduct, and his license stands revoked.
Despite this, the defendant has filed a separate suit claiming ownership
based on the disputed MOU, which the plaintiff is contesting. The
defendant continues to occupy the property unlawfully even after
revocation of the license and Court proceedings.
32. The plaintiff claimed that the current market rent of the suit
property is approximately Rs. 50,000/- per month and seeks damages at
this rate (or as determined by the Court) from the date of filing of the suit
until possession is handed over. The cause of action arose through a series
of events, including fraudulent acts by the defendant, invalid arbitration
proceedings, Court judgments, and revocation of license, and continues
due to the defendant's ongoing unauthorized occupation.
33. The suit property is located in Delhi, and the entire cause of action
has arisen within the jurisdiction of the Court, which therefore has the
authority to adjudicate the matter. The suit has been properly valued for
the purposes of jurisdiction and Court fees. The plaintiff prays for a
decree directing the defendant to hand over vacant possession of the suit
property, to pay damages for unauthorized use and occupation along with
interest and to bear the costs of the suit.
Written Statement of defendant.
34. The defendant contended that the present suit is devoid of merit
and is not maintainable in law, as the dispute between the parties has

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already been adjudicated by the judgment dated 02.02.2009. It is argued
that the suit is barred by the principles of res judicata and constitutes an
abuse of the process of law. The defendant further submitted that the
plaintiff has not approached the Court with clean hands and has
suppressed material facts, particularly the existence and execution of a
Memorandum of Understanding (MOU) dated 31.05.2000 between the
parties.
35. According to the defendant, the MOU clearly recorded an
understanding that upon conversion of the property bearing No. C-3/19,
Janakpuri into freehold, the first floor, third floor, and terrace rights along
with one-half share in the land would be transferred in favour of the
defendant. The defendant asserted that the plaintiff has already admitted
the existence of the MOU in earlier proceedings, including in the
judgment dated 02.02.2009 passed by the Hon'ble High Court, and
therefore cannot now dispute or avoid its terms.
36. The defendant denied the plaintiff's claim of exclusive ownership
and instead asserted that the suit property is jointly owned by both
parties. It is submitted that both the defendant and the plaintiff's late
husband were real brothers and were jointly engaged in the business of
timber trading. The MOU was executed as part of a family settlement to
divide their jointly held assets, including the suit property and a
commercial property at Kirti Nagar. The defendant claimed to have
fulfilled his obligations under the MOU by selling the commercial
property and sharing the proceeds equally, whereas the plaintiff has failed

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to perform her corresponding obligations.
37. The defendant further submitted that disputes arose due to the
plaintiff's failure to comply with the MOU, leading to arbitration
proceedings and an arbitral award in his favour. Although the award was
later set aside by the High Court on technical grounds relating to the
arbitration clause, the Court acknowledged the existence of the MOU and
granted liberty to seek appropriate remedies. Accordingly, the defendant
has already filed a separate suit (CS (OS) No. 589/2009) seeking
enforcement of the MOU, which is currently pending, and the present suit
has been filed as a counterblast to that proceeding.
38. The defendant denied all allegations of fraud, interpolation, and
misconduct, stating that any changes in the MOU were made with
consent. He also denied that he is a licensee or unauthorized occupant,
asserting instead that he is a co-owner with equal rights in the suit
property. The defendant maintained that there was no revocation of any
license, as no such license ever existed.
39. It is further contended that the plaintiff's claims for possession and
damages are baseless, as the defendant is lawfully entitled to remain in
possession of the property. The defendant also challenged the valuation of
the suit and the adequacy of Court fees, and raised additional legal
objections including estoppel, waiver, and acquiescence. He asserted that
the suit is liable to be rejected under Order VII Rule 11 CPC.
40. The defendant concluded that no cause of action has arisen in
favour of the plaintiff and that the present suit is frivolous, vexatious, and

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filed with malafide intent to dispossess him of his rightful share in the
property. Accordingly, the defendant prayed that the suit be dismissed
with exemplary costs.
Replication by the plaintiff to the WS of defendant.
41. The plaintiff denied all preliminary objections raised by the
defendant and asserted that the present suit is maintainable and not barred
by law. It is specifically denied that the issues in the present suit have
already been settled by the judgment dated 02.02.2009, and the plaintiff
contended that the said judgment was limited in scope and did not
adjudicate the present disputes. The plaintiff further denied any
suppression of material facts and maintained that she has approached the
Court with clean hands. The contents and legal position regarding the
Memorandum of Understanding (MOU) dated 31.05.2000, as stated in
the plaint, are reiterated, and any contrary assertions made by the
defendant were denied.
42. The plaintiff submitted that the reliance placed by the defendant on
the judgment dated 02.02.2009 is misconceived, as the said judgment
only dealt with the issue of interpolation in the MOU and the invalid
arbitral award, which was set aside. It did not decide the substantive
rights of the parties in relation to the suit property. The plaintiff denied
that the defendant has any ownership rights in the suit property or that the
plaintiff is attempting to illegally dispossess him. It is also denied that the
suit is improperly valued or that insufficient Court fees have been paid.
43. In response to the defendant's preliminary submissions, the

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plaintiff admitted that the defendant and her late husband were brothers
but clarified that their joint business commenced only in 1996. While
acknowledging that an MOU was executed on 31.05.2000, the plaintiff
contended that the defendant deliberately misrepresented its contents and
suppressed the fact of alleged interpolations. The plaintiff asserted that
the MOU contemplated a possible future sale of the property at market
value upon conversion to freehold, and not an automatic transfer as
claimed by the defendant. The plaintiff also disputed the existence of any
joint family arrangement or joint ownership of the suit property.
44. The plaintiff reiterated that the defendant committed fraud by
tampering with the MOU and initiating invalid arbitration proceedings,
which resulted in an award that was subsequently set aside by the Court.
It is denied that the plaintiff or her late husband failed to perform any
obligations. The plaintiff maintained that the MOU is void, uncertain, and
unenforceable for the reasons already stated in the plaint. The filing of the
defendant's separate suit for enforcement of the MOU is acknowledged,
but it is contended that the same is not maintainable and did not affect the
present suit.
45. On merits, the plaintiff denied that the suit property was jointly
acquired or that the defendant has any share or ownership interest in it. It
is reiterated that the property was exclusively owned by the plaintiff's late
husband and subsequently devolved upon the plaintiff. The plaintiff
denied all allegations of falsehood, misrepresentation, or mala fide intent,
and asserted that it is the defendant who is making baseless claims over

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the property.
46. The plaintiff further denied that the defendant is a co-owner or has
any rights arising from the MOU, and reiterated that the defendant was
merely a permissive occupant whose right to occupy the property has
been terminated. All claims of the defendant regarding ownership,
compliance with the MOU, and entitlement to remain in possession are
denied. The plaintiff also denied the defendant's objections regarding
damages, cause of action, and Court fees. The plaintiff reiterated all
averments made in the plaint and denied the entire defence raised by the
defendant.
Issues :-
47. From the pleadings of the parties and material on record, following
issues were framed vide order dated 23.09.2011: -
Issue no. 1 Whether the suit has not been properly valued for the purpose
of Court fee, if so its effect? OPD
Issue no. 2 Whether the suit is without any cause of action? OPD
Issue no. 3 Whether Memorandum of Understanding dated 31st May,
2000 is invalid and unenforceable in view of the interpolation made
therein? OPP
Issue no. 4 Whether the plaintiff is entitled to a decree of possession of
the suit property? OPP
Issue no. 5 Whether the plaintiff is entitled to damages, if so at what rate
and for which period? OPP
Issue no. 6 Whether the plaintiff is entitled to interest, if so at what rate?

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OPP
Issue no. 7 Relief
Court Proceedings
48. Vide Order dated 29.01.2013 both the above suits having same
subject matter and the parties were consolidated for the purpose of trial
and the evidence led in CS(OS) No.854 of 2009 presently Civ DJ No.
612163/16 titled Harmesh Kumar v. Kamlesh Arora & ors is to be read in
the other suit Civ DJ No. 612219/16 titled Kamlesh Arora v. Harmesh
Kumar. Thus, both suits were consolidated for the purpose of trial.
Common Evidence
Plaintiff Evidence (recorded in Harmesh Kumar v. Kamlesh Arora)
PW1/Rajat Kumar
49. PW1/Rajat Kumar has tendered his evidence by way of affidavit
Ex. PW1/X and relied upon the following documents: family settlement
dated 31.05.2000 Ex. PW2/A, MOU / family settlement dated 20.05.1996
Ex. PW2/B, order dated 18.12.2004 of Ld. Arbitrator Ex. PW2/C and
order dated 05.10.2005 of Ld. Arbitrator Ex. PW2/D. (Court observation:
Mr. Harmesh Kumar's/plaintiff's affidavit is filed as affidavit of PW-1 but
he expired after filing of the suit. Though Mr. Rajat Kumar has been
examined as PW-1, however, his affidavit on record is that of PW-2 and
to avoid confusion the documents tendered by him have been allowed to
be tendered by the exhibit mark as given in affidavit of Mr. Rajat Kumar.
Ex.PW2/A had already been exhibited as Ex.P-1 at the stage of
admission/denial of documents and shall be referred by the same exhibit

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number i.c. Ex.P-1. Ex.PW2/C and Ex.PW2/D were de-exhibited and
marked as mark A and mark B with liberty to the plaintiff to prove the
same by summoning the relevant record or by any other mode.)
50. During cross examination, PW1/Rajat Kumar stated that he is 12th
pass and working in the interior business for five years, and admitted that
his affidavit of evidence was prepared by his Counsel based on his
instructions, with some statements derived from personal knowledge and
others from information given by his late father. He admitted uncertainty
about several foundational facts, including the exact commencement of
the alleged joint business, the existence and details of earlier partnership
deeds, and the ownership basis of various properties mentioned in his
affidavit.
51. He identified his father's signatures on the 1976 partnership deed
Ex. PW1/DX1, but said he did not know about the 1973 partnership deed
Mark C. He conceded that many statements in his affidavit are based on
hearsay from his father and not personal knowledge. He confirmed that
he had not seen any title document showing joint ownership of property
C-3/19, Janakpuri, except its mention in the MOU.
52. PW1 admitted that the Kirti Nagar property was jointly owned by
family members and was sold in 2001, and that he signed related release
deeds. He further admitted that he has no proof that his father alone paid
for the Layalpur Society flat, no receipt existed for alleged payments, and
ultimately accepted that payments for that flat were contributed by both
brothers. He also conceded that no documentary proof existed for the

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alleged distribution of cancellation money.
53. He stated that he did not know key details about the partnership
structure, ownership history, or whether earlier claims made in his
affidavit are correct, including the role of Suresh Kumar in earlier firms.
He confirmed he was not present when the MOU dated 31.05.2000 was
executed and was also not present when alleged amendments to the MOU
were made. He admitted partial presence during discussions but
acknowledged that nothing was finalized in his presence. He denied
suggestions that he is deposing falsely.
PW2/Davinder Ajmani
54. He tendered his evidence by way of affidavit Ex. PW2/A and he
identified the signature of his father on Ex.P-1 i.e MOU dated 31.05.2000
at point A.
55. During cross examination, PW2/Davinder Ajmani stated that he
had earlier filed an affidavit dated 30.03.2013 and subsequently filed the
present affidavit Ex. PW2/A on his own, which was drafted by his
Counsel Mr. Kanwal Choudhary after change of lawyer and because the
earlier affidavit had not been tendered.
56. He stated that his knowledge about alleged scams in Dwarka
societies, including Layalpur CGHS, is based on newspaper reports from
2000-2003, and not direct personal knowledge. However, he also asserted
that a discussion between the two brothers regarding cancellation of the
society flat took place in his presence in 2002, and that the refund was
received in 2003.

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57. He further claimed that on 31.03.2003, a payment of Rs. 1,15,000/-
was made by Sh. Harmesh Kumar to Late Sh. Harjinder Pal at their Kirti
Nagar showroom in the presence of several persons, and he specifically
recalled the date due to its significance as the financial year-end. He
admitted he did not accompany them to collect the refund cheque from
the society and acknowledged that more accurate information about the
flat would have been with Late Sh. Harmesh Kumar.
58. He denied the suggestion that the flat belonged to the family of late
Suresh Kumar after his death, stating instead that Suresh Kumar had
already settled his share about 10 years earlier and had no concern with
the refund. He also disputed another witness's statement that the refund
was shared in 2001, insisting it was received and distributed in 2003. He
maintained that the payment of Rs. 1,15,000/- was made in cash in the
presence of several named witnesses, without any receipt being taken. He
denied all suggestions that his testimony is false and reiterated that the
payment and settlement between the brothers occurred as stated by him.
59. PW3/Sanjay Kumar Chaudhary, Caretaker / Manager from Great
Lalyallpur Housing Society, proved to be appearing pursuant to an
authority letter dated 18.10.2023 Ex. PW3/A on behalf of The Great
Lyallpur Co-operative Group Housing Society Limited and produced the
summoned records. He stated that he has been working as a
caretaker/manager of the society since December 2021. As per the
society's records, Late Mr. Harmesh Kumar, son of Late Sh. Sant Ram
and resident of Janakpuri, New Delhi, was enrolled as a member under

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membership No. 23 but resigned from the society on 28.02.2003, as
reflected in the membership register Ex. PW3/B. He further deposed that
Late Sh. Harmesh Kumar had issued a cheque of Rs. 2,30,000/-, which
was credited to his account as shown in the ledger Ex. PW3/C,
representing a refund amount. It was also stated that the draw of lots for
allotment of flats by DDA took place in 2008, which was five years after
his resignation from the society.
60. During cross examination, PW3/Sanjay Kumar Chaudhary stated
that he is not certain whether Smt. Kamlesh Arora filed an RTI
application dated 17.01.2010 regarding the status, allotment, or
withdrawal of membership of a flat in The Great Lyallpur Co-operative
Group Housing Society and admitted that he would need to verify the
record to confirm the details of the society's reply.
61. He conceded that in document Ex. PW3/A, the date of cheque no.
931912 is not mentioned, but on checking the original ledger, it is shown
as 22.03.2003. He also admitted that Ex. PW3/C did not reflect the debit
date of cheque no. 931912 issued in favour of Sh. Harmesh Kumar and
stated that he would need to examine the bank statement for confirmation.
62. PW3 produced a request letter dated 10.12.2023 along with a
photocopy of a cheque issued by The Great Lyallpur Co-operative
Society in favour of Aggarwal Iron and Steel, mentioning a bank account
number allegedly belonging to the society at United Bank of India, Karol
Bagh. He stated that he could not obtain the bank statement because the
bank refused, stating that no such account exists in their records, and the

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request letter with endorsement is exhibited as Ex. PW3/D. He admitted
that he did not include complete account details in the request letter to
obtain the bank statement and also noted that the bank's endorsement did
not bear the name, signature, or designation of the concerned official.
Finally, he confirmed that the RTI letter Ex. PW3/E was duly
acknowledged by the society, which he verified from the society's stamp
on the document.
After cross examination, the plaintiff evidence was closed.
Defendant Evidence (recorded in Harmesh Kumar v. Kamlesh Arora and
ors)
DW1/Parul Arora
63. She tendered her evidence affidavit Ex. DW1/A and relied upon the
following documents : original receipt dated 10.3.1972 issued by DDA to
Sh. Harjinder Pal Ex.DW1/1, original letters dated 28.4.1972 &
02.06.1972 of late Harjinder Pal to DDA Ex.DW1/2 & Ex.DW1/3,
original letters dated 20.06.1972 & 29.7.1972 from DDA to late Harjinder
Pal Ex.DW1/4 & Ex.DW1/5, original letter dated 03.08.1972 Ex.DW1/6,
original receipts of payment issued by DDA dated 12.9.1972 &
25.09.1972 Ex.DW1/7 & Ex.DW1/8, letter dated 11.01.1973 of DDA to
late Harjinder Pal regarding handing over possession Ex.DW1/9, original
certificate dated 29.01.1973 certifying that possession of the property no.
C-3/19, Janakpuri, New Delhi has been taken by Late Shri Harjinder Pal
Ex.DW1/10, original correspondence between DDA and Harjinder Pal
with regard to stamping of perpetual lease dated 07.03.1973, 17.12.1973

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& 21.02.1974 Ex.DW1/11 to Ex.DW1/13, original Perpetual lease dated
06.08.1974 Ex.DW1/14, original letter dated 06.09.1974 from DDA to
late Shri Harjinder Pal requesting to come for registration of the perpetual
lease Ex.DW1/15, sanction letter dated 31.05.1979 for construction of the
property Ex.DW1/16, original receipts dated 22.09.1980 & 30.09.1982
issued by B.R.B. Carriers, A.C.C. Cement Stockists to late Shri Harjinder
Pal on account of supply of cement Ex.DW1/17 & Ex.DW1/18, original
receipts for payment of sewer and water dated 27.01.1982 issued by DDA
to late Shri Harjinder Pal Ex.DW1/19 & Ex.DW1/20, original letter dated
07.03.1983 from DDA to late Shri Harjinder Pal for inspection of the
property with respect to occupancy certificate Ex.DW1/21, occupancy
certificate dated 30.09.1986 issued by DDA to late Shri Harjinder Pal
Ex.DW1/22, original sanction plan dated 19.05.1988 from DDA to late
Shri Harjinder Pal Ex.DW1/23, notice dated 27.03.1982 & Notice dated
17.08.1994 issued by MCD to late Shri Harjinder Pal for payment of
house tax Ex.DW1/24 & Ex.DW1/25, nine Property Tax receipts dated
19.10.2004, 25.06.2008, 19.06.2007, 06.02.2007, 07.08.2006.
31.07.2006, 26.07.2006, 22.06.2009 & 28.06.2005 Ex.DW1/26 to
Ex.DW1/34, self-Assessment Property Tax Form Mark-A, original office
copy of representation dated 21.04.1982 of late Shri Harjinder Pal
Ex.DW1/36, original receipt dated 06.08.1974 and 07.09.1998
Ex.DW1/37 & Ex.DW1/38, original letter dated 20.05.1981 Ex.DW1/39,
original Notice dated 23.02.1984 relating to ground rent issued by DDA
to Late Shri Harjinder Pal Ex.DW1/40, original valuation report dated

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14.11.2009 of the 1st and 3rd floor portion of C-3/19, Janakpuri, Delhi
Ex.DW1/41, copy of Will dated 18.9.2006 executed by late Harjinder Pal
Mark-B, original letter dated 08.02.2007 from the assessment &
collection Department, Municipal Corporation of Delhi to late Smt.
Kamlesh Arora mutating the property in her name Ex.DW1/44.
64. During cross examination, DW1/Parul Arora stated that her
grandfather was Sh. Sant Ram, who had three sons namely Sh. Harjinder
Pal, Sh. Harmesh Kumar, and Sh. Suresh Kumar. She stated that her
father, late Sh. Harjinder Pal, initially carried on partnership business
with Sh. Mulakh Raj in M/s Royal Timber Traders under a partnership
deed dated 01.04.1970, and that Sh. Harmesh Kumar was later inducted
as a partner in 1973. She further stated that another partnership firm,
Royal Timber Trading Company, was constituted in 1976 involving all
family members including her grandfather and uncles, and that the
business structure changed multiple times through various partnership
deeds over the years.
65. She deposed that an industrial plot in Kirti Nagar was allotted in
1980 in the joint names of her grandfather, father, and uncle Sh. Harmesh
Kumar, and that later reconstitutions of firms took place in 1985 and
1992. She also stated that another firm, M/s Timber Sales Corporation,
was constituted in 1984 involving her mother and uncles, and was later
reconstituted in 1992 and again in 1996 after the death of Sh. Suresh
Kumar. She admitted that various partnership deeds bore signatures of her
father and other family members, though some documents were objected

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to as unregistered or beyond pleadings.
66. She further deposed that after the death of Sh. Suresh Kumar, some
settlements were made regarding capital accounts, including payment of
Rs. 2,40,000/- and transfer of certain properties and assets, though she
denied some suggestions regarding relinquishment of rights in the
Janakpuri property. She stated that Royal Timber Trading Company was
dissolved and thereafter business continued mainly in M/s Arora Timber
Store, which eventually ceased around 2001.
67. She admitted that the Kirti Nagar property was jointly owned by
family members and that it was sold after obtaining release deeds from
relatives, with sale proceeds being shared. She also stated that she was
aware of various family arrangements and settlements but denied several
suggestions regarding fraud, misappropriation, or lack of contribution
towards properties like C-3/19, Janakpuri.
68. She deposed that the Janakpuri property was converted from
leasehold to freehold in 2003 under documents issued by DDA, and that
her father had applied for conversion in 2000. She stated that possession
and occupancy of portions of the property by different family members
was permissive. She further admitted that a notice was issued in 2004
demanding execution of sale documents in terms of the MOU dated
31.05.2000.
69. She denied all allegations suggesting that the property was
exclusively owned or funded by one party, and denied that the MOU
created an unconditional obligation to transfer property without dispute.

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She also denied allegations of fraud, concealment, or wrongful conduct
and maintained that she was deposing truthfully, while asserting that
many suggestions put to her were incorrect.
70. DW2/Mukesh Kumar, Junior Secretariat Assistant from MCD
brought the record with respect to house tax of property bearing no.
C-3/19, Janakpuri, New Delhi 110058 and proved the following
documents : notice dated 27.03.1982 Ex DW1/24, notice dated
21.04.1982 Ex. DW1/36, assessment order dated 17.08.1994 Ex DW1/25,
mutation letter dated 08.02.2007 Ex. DW1/44, photocopy of Tax Receipt
dated 06.02.2007 Ex DW1/31, carbon Copy of Tax Receipt dated
19.06.2007 Ex. DW1/32. carbon copy of Tax Receipt dated 07.08.2006
Ex DW1/30. carbon copy of Tax Receipt dated 25.06.2008 Ex DW1/33,
photo copy of Tax Receipt dated 22.06.2009 Ex DW1/34, photocopy of
Tax Receipt dated 19.10.2004 Ex DW1/26, photocopy of Tax Receipt
dated 28.06.2005 Ex. DW1/27, photocopy of Tax Receipt dated
26.07.2006 Ex DW1/28.
71. During cross examination, DW2/Mukesh Kumar stated that
although he had brought the summoned record, he had neither personal
nor official knowledge regarding the property tax assessment of property
bearing No. C-3/19, Janakpuri, New Delhi-110058, as he was not the
concerned dealing person.
72. DW2/Chaman Lal, Record Keeper from Office of Sub-Registrar II,
Basai Darapur, Delhi brought the original record (along with the certified
copy of the same) of release deed dated 03.05.2021 executed by Smt.

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Kanta Sachdevi, W/o Sh. Ashwani Kumar Sachdeva, R/o C4E-8/23,
Janakpuri, New Delhi and Smt. Nirmal Saluja, W/o Shri Vijay Kumar
Saluja, R/o B-259, Yojna Vihar, Delhi in favour of Shri Harjinder Pal and
Shri Harmesh Kumar both sons of Late Sant Ram, C/o C-3/19, Janakpuri,
New Delhi with respect to property no. A36, Kirti Nagar W.H.S., Delhi
registered on 3rd May, 2001 document no. 4486 in Additional Book no. 1,
Volume no. 9894 on pages 179 to 180 dated 03.05.2001 with the office of
Sub Registrar II, Delhi, Ex. DW2/1.
73. DW4/Balwant Singh, Junior Secretariat Assistant from DDA
brought the record with respect to property bearing no. C-3/19, Janakpuri,
New Delhi-110058 and proved the following documents : original letter
dated 28.04.1972 and 02.06.1972 of Late Harjinder Pal to DDA Ex.
DW1/2 and Ex. DW1/3, original letter dated 20.06.1972 and 29.07.1972
from DDA to Late Harjinder Pal Ex. DW1/4 and Ex. DW1/5, original
letter dated 03.08.1972 Ex. DW1/6, carbon copy of Letter dated
11.01.1973 of DDA to Late Harjinder Pal Ex. DW1/9, original certificate
dated 29.01.1973 Ex. DW1/10, correspondence between DDA and Late
Harjinder Pal letter dated 07.03.1973 and 21.02.1974 Ex. DW1/11 and
Ex. DW1/13, original perpetual lease dated 06.08.1974 Ex. DW1/14,
letter dated 06.09.1974 Ex. DW1/15, photocopy of Sanction letter dated
31.05.1979 issued by building section of DDA Ex. DW1/16, copy of
receipt dated 07.09.1998 Ex. DW1/38, copy of conveyance deed dated
09.09.2003 Ex. DW1/A5 and original letter dated 04.04.1972 from Land
sale office of DDA to Late Harjinder Pal Ex DW4/1.

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74. DW5/Pooja, HKP, Staff no. 72076, Canara Bank Branch Meera
Bagh, Delhi proved the statement of saving account for the period from
01.08.2002 to 30.12.2006 in the name of Harmesh Kumar Arora which
was duly certified by Manager Canara Bank, Meera Bagh Delhi,
Ex.DW5/1.
After cross examination, the defendant evidence was closed.
Final arguments (common for both the cases)
75. I have heard Shri Kanwal Chaudhary and Sh. Ankit Kumar Ld.
Counsel for plaintiff in Harmesh Kumar v. Kamlesh Arora and defendant
in Kamlesh Arora v. Harmesh Kumar (herein after known as Ld. Counsel
for plaintiff) and Shri Rajnish Kumar, Sh. Hemant Kaushik, Sh. Devansh
Bhargava and Sh. Himanshu Gupta, Ld. Counsel for defendant in
Harmesh Kumar v. Kamlesh Arora and plaintiff in Kamlesh Arora v.
Harmesh Kumar (herein after known as Ld. Counsel for defendant) and
perused the record.
Arguments by Ld. Counsel for plaintiff
76. The plaintiff submitted that the deceased plaintiff had filed a suit
seeking enforcement of the Memorandum of Understanding dated
31.05.2000, declaring ownership of the specified portions of property
bearing no. C-3/19, Janakpuri, Delhi, along with a direction to the
defendants to execute the necessary conveyance documents and a
permanent injunction restraining them from creating third-party rights in
the said property.
77. It is submitted that the property originally belonged to three

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brothers who carried on joint business and resided together, but after the
death of one brother in 1996, disputes were settled through a family
settlement dated 20.05.1998, under which his legal heirs vacated their
portion and relinquished claims. Subsequent disputes between the
remaining brothers were resolved through the MOU dated 31.05.2000,
under which it was agreed that upon conversion of the property from
leasehold to freehold, the plaintiff's father would execute proper sale
deeds transferring the first floor (with mezzanine), third floor (with
mezzanine), roof rights, and half share in land beneath the property to the
deceased plaintiff.
78. The plaintiff asserted that the MOU was partly performed, as other
properties mentioned in it were acted upon and proceeds were shared. It
is further stated that the leasehold property was later converted into
freehold in 2003, but the defendants failed to inform or execute the
conveyance in favour of the plaintiff despite notice issued in 2004.
Arbitration proceedings initiated earlier culminated in the arbitral award
being set aside by the Delhi High Court in 2009, which nevertheless
upheld the validity of the MOU and granted liberty to seek enforcement
through appropriate proceedings.
79. The plaintiff contended that the MOU is a binding family
settlement, not a sale agreement requiring market consideration, and must
be interpreted according to its plain terms. It is argued that the defendants
cannot introduce extraneous conditions such as market price or
uncertainty, and having taken benefits under the MOU, they are estopped

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from denying its enforceability.
80. The suit is also stated to be within limitation as prior arbitration
proceedings were pursued in good faith, and therefore the benefit of
exclusion under Section 14 of the Limitation Act applies. The defendants'
objections regarding limitation, valuation, unenforceability of the MOU,
alleged tampering, and ownership claims are denied. It is further
contended that the MOU has already been acted upon and its validity has
attained finality through earlier Court proceedings. The plaintiff
concluded that under the MOU, the disputed portion of the property has
already fallen to his share, and seeks a decree directing execution of
conveyance in his favour, along with permanent injunction, while praying
for dismissal of the defendants' suit for possession and damages.
81. Ld. Counsel for the plaintiff has relied upon the following case
laws in support of his arguments: Narayan Diwakar v. CBI, 2006
LAWPACK (Del) 29551, DLF Universal Ltd & Anr. v. Director T. & C.
Planning Haryana & Ors., 2010 AIOL 796, Rajasthan State Industrial
Development & Ors. v. Diamond & Gem Development Corporation Ltd.
& Anr., 2013 AIOL 94, Bank of India & Anr. v. K.Mohandas & Ors.,
2009 (4) Supreme 538, Laxmibai (dead) thr. LRs & Anr. v.
Bhagwantbuva (Dead) Thr. LRs & Ors., 2013 (123) AIC 77, Bhagwat
Sharan (Dead Thr. LRs.) v. Purushottam & Ors., 2020 AIR (SC) 2361,
Consolidated Engg. Enterprises v. Principal Secretary, Irrigation Deptt.
& Ors., 2008 AIOL 453, Satyadhyan Ghosal v. Deorajin Debi, 1960
Legal Eagle (SC) 118, Mangala Waman Karandikar (D) Tr. LRs v.

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Prakash Damodar Ranade, 2021 (223) AIC 108, Kale & Ors. v. Deputy
Director of Consolidation & Ors., 1976 AIR (SC) 807.
Arguments by Ld. Counsel for defendant.
82. It is argued that two consolidated civil suits were filed before the
Hon'ble High Court of Delhi relating to property bearing No. C-3/19,
Janakpuri, New Delhi -one filed by late Harmesh Kumar (through legal
representatives) seeking declaration, injunction, and enforcement of an
alleged MOU dated 31.05.2000, and the other filed by Kamlesh Arora
(widow of late Harjinder Pal) seeking possession and damages on the
basis of ownership and revocation of licence. It is stated that the suits
were consolidated, with the declaration suit treated as the lead case, and
evidence in both matters is to be read together.
83. The defendants' core case is that the MOU dated 31.05.2000 was
tampered with by late Harmesh Kumar by inserting an arbitration clause
without consent, leading to allegedly fraudulent arbitration proceedings
and an award dated 05.01.2005, which was later set aside by the High
Court on 02.02.2009, recognizing interpolation and holding the
arbitration proceedings without jurisdiction. It is further alleged that the
plaintiffs have made false and misleading statements regarding ownership
and family settlement, particularly concerning earlier settlements of 1998
and the ownership of various properties, including A-36, WHS Kirti
Nagar and C-3/19, Janakpuri.
84. The defendants contend that the suit for declaration and injunction
is barred by limitation under Article 58 of the Limitation Act, as the cause

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of action arose in July 2004 when the defendants refused execution of the
documents, while the suit was filed in March 2009, well beyond the
prescribed three-year period. It is argued that a later Court observation
granting liberty to approach the appropriate forum does not extend or
revive limitation.
85. The defendants also argue that the relief of specific performance is
barred under Article 54 of the Limitation Act since refusal occurred in
July 2004, and that the MOU is unenforceable due to absence of essential
terms such as consideration, making it uncertain and not a valid contract.
It is further submitted that the MOU is void due to material alterations,
specifically the interpolation of the arbitration clause, which vitiates the
entire document under settled principles of law. It is argued that the
plaintiff failed to perform obligations under the MOU, including
distribution of proceeds from another settlement, thereby breaching its
terms.
86. On facts, the defendants asserted that Harjinder Pal was the
absolute owner of the suit property, having acquired it through DDA
auction and subsequent conveyance, and that Harmesh Kumar was
merely a licensee permitted to reside in the property out of family
affection, with such licence having been revoked.
87. In the possession suit, the defendants rely on documentary
evidence including lease deeds, municipal records, tax receipts, and bank
statements to establish exclusive ownership and entitlement to possession
and mesne profits at Rs. 50,000/- per month with interest.

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88. The defendants also argue that the plaintiff's witnesses gave
contradictory statements regarding alleged payments and ownership, and
that their testimony lacks credibility. It is further submitted that there was
no joint family nucleus to claim joint ownership of the property.
89. On valuation and Court fees, it is argued that the plaintiff
undervalued the suit for declaration and injunction, whereas the
defendants' valuation based on a government-approved report reflects the
correct market value.
90. The defendants seek dismissal of the plaintiff's suit for declaration
and injunction on grounds of limitation, lack of enforceability of the
MOU, fraud, and absence of title, and seek decree of possession and
damages in their favour with interest.
91. Ld. Counsel for defendant has relied upon the following case laws
in support of his arguments: Sugandhi (dead) by LRs & Anr. v. P. Raj
Kumar Rep. By his power agent Imam Oli, Civil Appeal No. 3427 of
2020, Levaku Pedda Reddamma & Ors. v. Gottumukkala Venkata
Subbamma & Anr., SLP (C) No. 7452/2022, Yasin Khan & Ors. v. Ajit
Developers Pvt. Ltd. & Ors., 2025, BHC, AS 8423, Roop Kumar v.
Mohan Thedani, AIR 2003 SC 2418, Provash Chandra Dalui & Ors. v.
Biswanath Banerjee & Ors., AIR 1989 SC 1834, Loonkaran Sethiya &
Ors. v. Ivan E. John & Ors., AIR 1977 SC 336, Khatri Hotels Private
Limited & Ors. v. Union of India (UOI) & Ors., AIR 2011 SC 3590,
Bhim Sain & Ors. v. Mohinder Kumar & Ors., 2019: DHC 3917,
Ahmmadsahab Abdul Milla (Dead) by proposed LRs v. Bibijan & Ors.,

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AIR 2009 SC 2193, Rabindra Nath Sahu v. Maya Devi & Ors., AIR 1991
Pat192, Mayawanti v. Kaushalya Devi, 1990(2) CCC 142, Shikha Misra
& Anr. v. S. Krishnamurthy, 2016: DHC 111-DB, Mujeeb Rehman v.
Mohd Nabi & Ors, 2017: DHC 6125, Arifa & Ors. v. Abhiman Apartment
Cooperative Housing Society Ltd. & Ors., 2025 (273) AIR 36, Kewal
Krishan v. Rajesh Kumar & Ors, SLP (C) Nos. 2033-2026 of 2016,
Sandeep Sethi & Anr. v. Rajinder Kumar Sethi Deceased Through LRs,
RFA (OS) 5/2017.
Court observation and findings:
Part no. I : Suit for declaration and permanent injunction
Issue No. 1 What is the effect of Clause 2 of the Memorandum of
Understanding (MOU) dated 31.05.2000? OPP
92. The onus to prove this issue was upon the plaintiff. The present
issue strikes at the root of the controversy between the parties, for the
plaintiff has founded his entire claim for declaration, partition, possession
and consequential reliefs substantially upon Clause 2 of the
Memorandum of Understanding dated 31.05.2000 (hereinafter referred to
as "the MOU"). The plaintiff has asserted that by virtue of the said clause,
he acquired enforceable rights in respect of property bearing No. C-3/19,
Janakpuri, New Delhi, particularly concerning the first floor, third floor,
terrace rights and one-half undivided share in the land beneath the
property. The defendants, on the other hand, have categorically disputed
the legal effect of the said clause and contended that the MOU neither
created nor transferred any proprietary right in favour of the plaintiff.

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93 The principal question requiring determination under the present
issue is whether Clause 2 of the MOU dated 31.05.2000 created any
present, vested, enforceable or equitable right in favour of the plaintiff in
respect of the suit property and, if so, to what extent.
94. At the outset, it becomes necessary to examine the nature of title in
the suit property. It is not in dispute that property bearing No. C-3/19,
Janakpuri, New Delhi was originally allotted by the Delhi Development
Authority exclusively in the name of Late Sh. Harjinder Pal. The
defendants have placed on record documentary evidence comprising Ex.
DW1/1 to Ex. DW1/15, including the perpetual lease deed dated
06.08.1974 Ex. DW1/14, correspondence with the Delhi Development
Authority, allotment-related documents and payment records, all of which
consistently reflect Late Sh. Harjinder Pal as the sole allottee and
recorded owner of the property. The aforesaid documentary evidence was
duly proved through DW4/Sh. Balwant Singh, summoned from the Delhi
Development Authority, who produced the official record pertaining to
the suit property. Significantly, despite adequate opportunity, the plaintiff
chose not to cross-examine DW4. Consequently, the testimony of DW4
and the official records produced by him remained substantially
unrebutted and unchallenged. It is well settled that official records
maintained in the ordinary course of public business carry considerable
evidentiary value unless effectively impeached through cross-
examination or contrary evidence.
95. The evidence further reveals that subsequent conversion of the suit

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property from leasehold to freehold was also affected exclusively in
favour of Late Sh. Harjinder Pal. Municipal and taxation records
produced through DW2/Sh. Mukesh Kumar likewise record the property
in his sole name. Property tax documents and related municipal records
placed on record by the defendants consistently establish uninterrupted
documentary title of Late Sh. Harjinder Pal over the suit property. In
contrast, the plaintiff has failed to produce any independent title
document demonstrating co-ownership, joint acquisition, coparcenary
interest, benami arrangement, contribution towards purchase
consideration or any legally recognizable proprietary interest in the suit
property. No sale deed, relinquishment deed, family partition document,
mutation entry, municipal record, tax assessment, revenue record or any
other document evidencing co-ownership has been placed on record by
the plaintiff.
96. During cross-examination, PW1/Sh. Rajat Kumar made material
admissions which substantially weaken the plaintiff's case. He
categorically admitted that he had not seen any title document reflecting
joint ownership of property bearing No. C-3/19, Janakpuri, New Delhi,
except its mention in the MOU dated 31.05.2000. He further admitted
lack of personal knowledge regarding the original acquisition of the
property and conceded that several assertions contained in his affidavit
were based upon information allegedly received from his deceased father
rather than his own direct knowledge. The evidentiary value of such
testimony is necessarily limited. Hearsay assertions, particularly

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concerning title to immovable property, cannot displace unimpeachable
documentary evidence. The Court is therefore constrained to observe that
the plaintiff has failed to establish, through cogent and admissible
evidence, that the suit property was ancestral property, joint family
property, or property jointly acquired by the parties through common
funds. The documentary evidence on record overwhelmingly establishes
that Late Sh. Harjinder Pal remained the exclusive and recorded owner of
the suit property throughout his lifetime.
97. Having considered the question of title, I now examine the legal
effect of Clause 2 of the MOU dated 31.05.2000, upon which the plaintiff
has placed principal reliance. The plaintiff has argued that the MOU
constituted a binding family settlement and therefore deserves liberal
construction in law. Reliance has been placed upon the settled principle
that bona fide family arrangements entered into to preserve family
harmony ought ordinarily to be upheld by Courts. There can be no quarrel
with the proposition that Courts generally lean in favour of family
settlements honestly arrived at for resolution of family disputes. The law
in this regard stands authoritatively recognized in judicial precedents,
including the decision in Kale (supra).
98. However, while bona fide family arrangements are indeed favoured
in law, such liberality cannot override mandatory statutory requirements
governing transfer of immovable property. Even a family settlement must
disclose certainty of rights created and cannot be interpreted so as to
effect transfer of title contrary to substantive legal requirements. Clause 2

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of the MOU, as relied upon by the plaintiff himself, records that after
conversion of the suit property from leasehold to freehold, Late Sh.
Harjinder Pal would execute "proper sale deeds" in favour of the plaintiff
with respect to the first floor, third floor, terrace rights and one-half share
in the land beneath the property.
99. The language employed in the clause indicates that no present
transfer of ownership was intended or effected under the MOU itself. On
the contrary, the clause expressly contemplated that transfer of rights
would take place at a future stage upon occurrence of a specified
contingency, namely conversion of the property into freehold, followed
by execution of appropriate sale deeds. The MOU thus recognized the
necessity of separate conveyance instruments for transfer of proprietary
rights. In other words, the parties themselves did not treat the MOU as an
instrument of conveyance or completed transfer. Rather, it merely
recorded a future arrangement under which formal legal documentation
was to be executed subsequently.
100. The distinction between a completed transfer and a future promise
to transfer assumes significance in view of Section 54 of the Transfer of
Property Act, 1882, which expressly provides that a contract for sale of
immovable property does not, by itself, create any interest in or charge
upon such property. Thus, even assuming the plaintiff's case to be
accepted at its highest, Clause 2 of the MOU could, at best, amount to an
agreement contemplating future transfer and not an instrument creating
present proprietary rights.

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101. Admittedly, no registered sale deed or conveyance deed was ever
executed by Late Sh. Harjinder Pal in favour of the plaintiff pursuant to
Clause 2 of the MOU. No registered document transferring ownership of
any portion of the suit property exists in favour of the plaintiff.
Consequently, no legal title ever vested in the plaintiff. Nevertheless, the
plaintiff has argued that the MOU was partly acted upon, particularly
insofar as another family property situated at Kirti Nagar was sold and
sale proceeds allegedly distributed amongst family members. However,
partial implementation of one aspect of a broader family arrangement
cannot automatically result in transfer of ownership in another
immovable property in absence of compliance with legal formalities
mandated by statute. Mere performance of collateral portions of an
arrangement cannot dispense with the requirement of a valid conveyance
where transfer of immovable property is concerned. Rights in immovable
property cannot be presumed merely because parties may have acted
upon some independent aspects of a family understanding.
102. The Court further finds that Clause 2 lacks certainty regarding
several material particulars ordinarily expected in an enforceable
arrangement concerning immovable property. The clause neither specifies
consideration nor provides any valuation mechanism. No clear timeline
for execution of sale deeds after conversion has been prescribed. The
clause is equally silent regarding stamp duty, registration expenses,
reciprocal obligations, or consequences of non-performance. The
language employed is indicative of a future intention rather than a

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completed and certain obligation immediately enforceable in praesenti.
The Hon'ble Supreme Court in Mayawanti (supra) held that agreements
lacking certainty regarding essential terms are incapable of specific
enforcement. Likewise, in Kewal Krishan (supra), it was reiterated that
ownership in immovable property cannot pass except in accordance with
legally recognized modes of transfer satisfying statutory requirements.
103. The plaintiff has also sought to derive support from the arbitral
award dated 05.01.2005, whereby directions had allegedly been issued for
execution of sale deeds pursuant to the MOU. However, the said arbitral
award admittedly came to be set aside by the Hon'ble High Court vide
order dated 02.02.2009.
104. Much emphasis has been laid by the plaintiff upon liberty granted
by the Hon'ble High Court to pursue remedies in accordance with law.
However, in the opinion of the Court, such liberty cannot be construed as
judicial affirmation of the validity, enforceability or legal effect of Clause
2 of the MOU. An order granting liberty to avail remedies merely
preserves the right of a litigant to approach a competent forum and cannot
be interpreted as adjudication upon substantive rights. The Hon'ble High
Court neither declared the plaintiff owner of the suit property nor upheld
any proprietary entitlement arising from the MOU. Consequently, no
advantage can be derived by the plaintiff from the said proceedings for
purposes of establishing title.
105. The Court must also advert to deficiencies in the plaintiff's oral
evidence. PW1/Sh. Rajat Kumar admitted that he was not present at the

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time of execution of the MOU and had no personal knowledge regarding
alleged modifications or implementation thereof. His testimony is
therefore substantially derivative and hearsay in nature. Likewise,
PW2/Sh. Davinder Ajmani merely identified signatures appearing on the
document and did not depose regarding execution of transfer obligations
contemplated under Clause 2. Conversely, the defendants have produced
consistent and reliable documentary evidence establishing exclusive
ownership of Late Sh. Harjinder Pal over the suit property for several
decades. Such documentary title cannot be displaced merely on the basis
of an unregistered understanding contemplating future execution of sale
deeds.
106. Upon cumulative appreciation of pleadings, evidence and legal
position, the Court is of the opinion that Clause 2 of the Memorandum of
Understanding dated 31.05.2000 did not create any present ownership
right, co-ownership interest, partition right or vested proprietary
entitlement in favour of the plaintiff in respect of property bearing No.
C-3/19, Janakpuri, New Delhi. At best, the said clause recorded a future
understanding whereby formal sale deeds were contemplated upon
occurrence of specified contingencies. In absence of execution and
registration of any conveyance deed, no title or enforceable ownership
right accrued to the plaintiff solely on the strength of the MOU.
107. Accordingly, it is held that Clause 2 of the Memorandum of
Understanding dated 31.05.2000 did not by itself transfer title in favour
of the plaintiff nor create any enforceable proprietary right in praesenti.

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The issue is, therefore, decided against the plaintiff and in favour of the
defendants.
Issue No. 2 Whether the plaintiff is entitled to partition and possession of
the entire first floor (with second mezzanine room) and the entire
top/third floor (with third mezzanine room) and roof/terrace rights of
property bearing no. C-3/19, Janakpuri, New Delhi in terms of the
aforesaid MOU? OPP
108. The onus to prove this issue was upon the plaintiff. By way of the
present suit, the plaintiff seeks partition, possession and consequential
proprietary rights in respect of the first floor, second mezzanine room,
third floor, third mezzanine room and terrace rights of property bearing
No. C-3/19, Janakpuri, New Delhi (hereinafter referred to as "the suit
property"). The foundation of the plaintiff's claim rests upon the assertion
that the MOU dated 31.05.2000 constituted a binding family arrangement
under which Late Sh. Harjinder Pal had agreed to transfer the aforesaid
portions of the suit property in favour of the plaintiff upon conversion of
the property from leasehold to freehold. The plaintiff has further
contended that the suit property formed part of a broader family
arrangement and that the MOU crystallized pre-existing family rights. It
has been argued that the MOU stood partly acted upon and therefore
deserves enforcement in equity. The defendants, on the contrary, have
disputed the plaintiff's claim and asserted that the plaintiff never acquired
any legal right, title or interest in the suit property and, at best, occupied
portions thereof as a permissive user owing to close family relations.

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109. Since the plaintiff's claim for partition and possession is
substantially founded upon Clause 2 of the MOU, the findings already
returned under Issue No. 1 assume direct relevance. Under Issue No. 1,
the Court has already held that Clause 2 of the MOU did not create any
present ownership, co-ownership or vested proprietary right in favour of
the plaintiff and merely contemplated future execution of sale deeds
subject to fulfilment of specified contingencies. The findings recorded
therein shall, to the extent relevant, be read as part of the present issue.
110. A decree for partition presupposes existence of a legally
recognizable share or co-ownership interest in the suit property. Unless
the plaintiff first establishes ownership, co-ownership, coparcenary
interest or some legally enforceable share in the property sought to be
partitioned, no question of partition can arise. The settled position of law
is that partition is not an independent right separated from title. It is
merely a mode of separation of existing rights amongst persons already
having joint interest in property. Therefore, the initial burden lies squarely
upon the plaintiff to establish the legal basis of his claim to a share in the
suit property.
111. In the present matter, the plaintiff has failed to discharge this
burden. The documentary evidence led by the defendants conclusively
establishes that the suit property stood allotted by the Delhi Development
Authority exclusively in the name of Late Sh. Harjinder Pal. The
defendants have proved on record documents Ex. DW1/1 to Ex. DW1/15,
including the perpetual lease deed dated 06.08.1974 Ex. DW1/14,

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correspondence exchanged with the Delhi Development Authority,
allotment-related records, payment receipts and conversion documents.
All such records consistently reflect Late Sh. Harjinder Pal as the sole
allottee and recorded owner of the suit property.
112. The aforesaid documentary evidence stands corroborated by
testimony of DW4/Sh. Balwant Singh from the Delhi Development
Authority, who produced official records pertaining to the suit property.
The plaintiff chose not to cross-examine DW4 despite opportunity. The
consequence thereof is that the official documentary evidence led through
DW4 remained unrebutted and carries considerable evidentiary value.
Further corroboration emerges from municipal and taxation records
produced through DW2/Sh. Mukesh Kumar, which also reflect the suit
property in the sole name of Late Sh. Harjinder Pal. Property tax receipts
and municipal records placed on record further strengthen the defendants'
case regarding exclusive ownership.
113. On the other hand, the plaintiff has not produced any title
document evidencing co-ownership or any legally recognizable
proprietary interest in the suit property. No conveyance deed,
relinquishment deed, partition deed, mutation record, revenue entry,
municipal record or public document has been filed showing ownership
rights of the plaintiff over the portions claimed. There is absence of any
evidence demonstrating that the suit property was acquired through joint
family funds or out of a coparcenary nucleus. No account books, financial
records, bank statements, contribution receipts or contemporaneous

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documents have been produced showing any monetary contribution by
the plaintiff towards purchase, allotment or acquisition of the property.
114. During cross-examination, PW1/Sh. Rajat Kumar admitted that he
had never seen any title document showing joint ownership of property
bearing No. C-3/19 except its mention in the MOU. He further admitted
lack of personal knowledge regarding acquisition of the property and
acknowledged that many assertions contained in his affidavit were based
upon information allegedly conveyed by his deceased father. Such
admissions weaken the plaintiff's claim. Assertions based upon hearsay
cannot prevail over documentary title standing in the exclusive name of
another person for decades.
115. The plaintiff has also failed to establish existence of any joint
Hindu family nucleus or coparcenary arrangement from which acquisition
of the suit property could be presumed. Mere relationship between family
members or participation in joint business ventures does not ipso facto
convert self-acquired property into joint family property. The burden of
proving existence of joint family property lies upon the person asserting
such claim. In the absence of cogent evidence demonstrating blending of
separate property with joint family assets or acquisition from joint funds,
no presumption of joint ownership can arise merely on account of
familial relationship.
116. The plaintiff has emphasized upon the MOU dated 31.05.2000 as
constituting a binding family settlement. It has been argued that family
arrangements are to be construed liberally and enforced in order to

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preserve domestic harmony. There can be no dispute regarding the
proposition that bona fide family settlements deserve liberal consideration
in law. However, even a family arrangement cannot operate to confer
proprietary rights in immovable property contrary to statutory
requirements. Particularly where the arrangement itself contemplates
future execution of conveyance instruments, the Court cannot ignore the
legal distinction between a completed transfer and a future promise to
transfer.
117. As already discussed under Issue No. 1, the language of Clause 2
of the MOU contemplated execution of "proper sale deeds" after
conversion of the property into freehold. The MOU thus did not itself
operate as an instrument of partition or transfer of title. Rather, it merely
contemplated future conveyance of specified portions through legally
recognized documentation. Admittedly, no registered sale deed or
conveyance deed was ever executed by Late Sh. Harjinder Pal in favour
of the plaintiff. In absence of such transfer instrument, the plaintiff cannot
claim partition on the assumption that title already vested in him.
118. Section 54 of the Transfer of Property Act expressly declares that a
contract for sale does not, by itself, create any interest in or charge upon
immovable property. Therefore, even assuming the MOU to be genuine
and binding inter se the parties, the same could not by itself create
proprietary rights entitling the plaintiff to seek partition and possession.
119. Further, the plaintiff has contended that the MOU stood partly
acted upon because another family property situated at Kirti Nagar was

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allegedly sold and sale proceeds distributed amongst family members.
However, implementation of one aspect of an arrangement cannot
automatically result in transfer of ownership in another immovable
property in absence of compliance with mandatory legal formalities. The
release deed concerning the Kirti Nagar property, relied upon by the
plaintiff, merely establishes that certain transactions took place amongst
family members in relation to another property. It does not establish that
the Janakpuri property thereby became jointly owned by the plaintiff and
Late Sh. Harjinder Pal.
120. The plaintiff has not produced any independent material showing
actual partition by metes and bounds of the suit property at any stage. No
sanctioned plan, site demarcation, municipal partition record, house tax
division, electricity connection, water connection or any public document
showing exclusive ownership or recognized possession of the plaintiff
over the portions claimed has been produced. The defendants have
consistently maintained that the plaintiff was merely permitted to occupy
portions of the property as a permissive user due to close familial ties.
The plaintiff has failed to place any cogent evidence on record sufficient
to rebut this assertion. Mere residence or occupation in a portion of a
property does not, by itself, create ownership rights. Possession,
howsoever long, cannot substitute legal title where documentary
ownership unequivocally stands in the name of another person.
121. The Court also finds force in the defendants' submission that the
plaintiff has not sought appropriate relief in consonance with the nature of

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rights allegedly arising from the MOU. If the plaintiff intended
enforcement of obligations arising from an agreement contemplating
future transfer, the proper remedy would ordinarily have been one
seeking enforcement in accordance with law through execution of
conveyance instruments. However, the plaintiff has directly claimed
declaration of ownership and partition as though title already stood vested
in him. Such relief is legally untenable in absence of any completed
transfer of ownership.
122. The plaintiff had also earlier relied upon the arbitral award dated
05.01.2005 directing execution of sale deeds pursuant to the MOU.
However, the said award admittedly stood set aside by the Hon'ble High
Court on 02.02.2009. The liberty granted by the Hon'ble High Court to
pursue remedies in accordance with law cannot be construed as
recognition of partition rights or proprietary entitlement in favour of the
plaintiff.
123. The plaintiff has also failed to establish readiness and willingness
concerning reciprocal obligations allegedly arising under the family
arrangement. Material contradictions remain regarding distribution of
monies relating to other family transactions, including the Great Lyallpur
Housing Society flat and allied financial arrangements. The evidence of
PW1 and PW2 does not inspire confidence sufficient to dislodge the
documentary title established by the defendants.
124. Upon cumulative appreciation of pleadings, evidence and legal
position, the Court is of the opinion that the plaintiff has failed to

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establish any legal right, title or co-ownership interest in property bearing
No. C-3/19, Janakpuri, New Delhi entitling him to seek partition or
possession of any portion thereof. The plaintiff has further failed to
establish that the MOU dated 31.05.2000 effected any completed transfer
or partition of the suit property or created enforceable proprietary rights
in his favour. In absence of proof of title or legally recognizable share, no
decree for partition or possession can follow.
125. Accordingly, the plaintiff is held not entitled to partition and
possession of the first floor, second mezzanine room, third floor, third
mezzanine room, terrace rights or any portion of property bearing No.
C-3/19, Janakpuri, New Delhi. The issue is decided against the plaintiff
and in favour of the defendants.
Issue No. 3 Whether the suit is barred by limitation? OPD
126. The onus to prove this issue was upon the defendants. The
defendants have contended that the present suit, instituted in the year
2009, is hopelessly barred by limitation inasmuch as the cause of action
first accrued in July 2004 when the plaintiff admittedly issued a legal
notice demanding implementation of the MOU dated 31.05.2000 and
execution of sale deeds, which demand was denied by Late Sh. Harjinder
Pal. According to the defendants, once refusal of the plaintiff's alleged
claim became known, the limitation period commenced and expired long
prior to institution of the present suit.
127. Per contra, the plaintiff has argued that the suit cannot be held
time-barred since the plaintiff had bona fide pursued arbitral proceedings

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arising out of the same dispute and thereafter contested proceedings
before the Hon'ble High Court until the arbitral award dated 05.01.2005
came to be set aside on 02.02.2009. It has been submitted that the time
spent in prosecuting such proceedings deserves exclusion under Section
14 of the Limitation Act, 1963, as the plaintiff had pursued remedies
before a forum ultimately held to lack jurisdiction. The plaintiff has
further pleaded existence of a continuing cause of action.
128. Before adverting to rival submissions, it becomes necessary to
determine the true nature of the reliefs sought in the suit. Though the
plaint has been couched as one for declaration, injunction and
consequential reliefs, the substance of the plaintiff's case rests upon
alleged obligations arising from Clause 2 of the MOU dated 31.05.2000,
under which Late Sh. Harjinder Pal was allegedly required to execute sale
deeds in favour of the plaintiff after conversion of the property into
freehold. Therefore, the question of limitation cannot be examined merely
on the basis of nomenclature assigned to the reliefs. Rather, the Court
must ascertain the date on which the plaintiff's alleged rights were first
denied or when performance under the alleged arrangement was first
refused.
129. In the plaint itself, the plaintiff has specifically averred that after
conversion of the property into freehold, Late Sh. Harjinder Pal failed to
execute the sale deeds contemplated under the MOU, compelling the
plaintiff to issue a legal notice dated 12.07.2004 calling upon him to
honour the alleged obligations. The plaint further discloses that an

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unsatisfactory response was received from Late Sh. Harjinder Pal,
following which arbitration proceedings were initiated. The aforesaid
pleadings unequivocally establish that by July 2004 the plaintiff had clear
notice that the obligations allegedly arising under the MOU were being
denied or refused. Thus, the plaintiff had knowledge of a clear and
unequivocal threat to his asserted rights at least in July 2004.
130. Article 58 of the Limitation Act prescribes a limitation period of
three years for suits seeking declaration, commencing from the date when
the "right to sue first accrues." The expression "first accrues" has
consistently been interpreted to mean the first clear and unequivocal
denial of rights. It is settled that once the right to sue accrues, subsequent
or repeated denials do not furnish fresh causes of action so as to
repeatedly extend limitation. Likewise, if the suit is viewed in substance
as one seeking enforcement of obligations arising from the MOU through
execution of sale deeds, Article 54 of the Limitation Act becomes
relevant. Under Article 54, limitation commences either from the date
fixed for performance or, where no date is fixed, when refusal of
performance becomes known to the plaintiff. In the present case,
admittedly no fixed calendar date was prescribed under the MOU for
execution of sale deeds. Consequently, limitation would begin from the
point at which refusal of performance became known to the plaintiff.
131. From the plaintiff's own pleadings and evidence, such refusal
became known, at the latest, in July 2004 upon receipt of denial to the
legal notice dated 12.07.2004. Therefore, whether viewed under Article

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58 or Article 54 of the Limitation Act, limitation would ordinarily expire
in or about July 2007. Since the present suit admittedly came to be
instituted only in the year 2009, the suit would prima facie appear to be
barred by limitation unless the plaintiff succeeds in establishing
entitlement to statutory exclusion of time.
132. The plaintiff has raised the plea under Section 14 of the Limitation
Act. Section 14 embodies a principle of justice, equity and good
conscience by protecting a litigant who, with due diligence and in good
faith, prosecutes proceedings before a forum which ultimately turns out to
be incompetent or lacking jurisdiction. The provision seeks to ensure that
a litigant acting bona fide is not penalized merely on account of technical
defects relating to forum competency.
133. The plaintiff has relied upon arbitration proceedings initiated
pursuant to the MOU and subsequent challenge proceedings before the
Hon'ble High Court. It is not in dispute that arbitral proceedings were in
fact initiated between the parties and culminated in an arbitral award
dated 05.01.2005 directing execution of sale deeds. It is also undisputed
that the said award was ultimately set aside by the Hon'ble High Court
vide order dated 02.02.2009 upon finding absence of a valid arbitration
agreement. Although certified copies of judicial proceedings were not
formally exhibited and documents Ex. PW2/C and Ex. PW2/D were de-
exhibited and marked only for identification, the existence of arbitration
proceedings and subsequent setting aside of the award are admitted facts.
134. The crucial question is whether the plaintiff prosecuted the arbitral

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remedy bona fide and with due diligence so as to attract Section 14 of the
Limitation Act. Upon consideration of the material on record, the Court
finds the answer in the affirmative. The plaintiff invoked arbitration
shortly after the dispute arose in 2004. The arbitral forum entertained the
matter and proceeded to adjudicate upon disputes between the parties,
ultimately culminating in an award dated 05.01.2005. The said award
remained operative and continued to be the subject matter of proceedings
before the Hon'ble High Court till 02.02.2009. There is nothing on record
suggesting want of bona fides, negligence or lack of diligence on the part
of the plaintiff in pursuing the arbitral remedy. Merely because the
arbitration clause was eventually found legally invalid does not
automatically imply absence of good faith on the plaintiff's part. A
litigant who approaches a forum which itself entertains jurisdiction and
adjudicates upon disputes cannot be faulted merely because jurisdiction is
subsequently negatived by a superior forum.
135. The defendants have argued that liberty granted by the Hon'ble
High Court to pursue remedies in accordance with law cannot revive
limitation. There is no quarrel with this legal proposition. Mere liberty
granted by a Court does not extend limitation or revive an otherwise time-
barred claim. However, the plaintiff's case does not rest solely upon
liberty granted by the Hon'ble High Court. The plaintiff specifically
invokes statutory exclusion under Section 14 of the Limitation Act for the
period spent in prosecuting proceedings before a forum which ultimately
lacked jurisdiction. In view of the Court, the plaintiff is entitled to such

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exclusion.
136. The dispute first crystallized in July 2004. Arbitration proceedings
commenced shortly thereafter and culminated in the award dated
05.01.2005. The challenge proceedings remained pending before the
Hon'ble High Court till 02.02.2009, when the award came to be set aside.
The present suit was instituted immediately thereafter. Excluding the
period during which the plaintiff bona fide prosecuted arbitral and
connected proceedings, the suit cannot be said to be barred by limitation.
137. The Court, however, finds no merit in the plaintiff's plea of
"continuing cause of action." Once refusal of rights became known in
July 2004, the right to sue clearly accrued. Repeated denials or continued
possession by the defendants cannot create a fresh cause of action every
day so as to indefinitely postpone limitation. A continuing wrong cannot
be invoked to defeat statutory limitation where the cause of action had
already first accrued and the plaintiff had full knowledge of denial of
rights. Nevertheless, the plaintiff succeeds independently on the basis of
statutory exclusion available under Section 14 of the Limitation Act.
138. Accordingly, the Court holds that although the right to sue first
accrued in July 2004, the plaintiff is entitled to exclusion of the period
spent bona fide in prosecuting arbitration proceedings and connected
proceedings before the Hon'ble High Court. Consequently, the suit
cannot be held barred by limitation. The issue is decided in favour of the
plaintiff and against the defendants.
Issue No. 4 Whether the suit has been improperly valued for the purpose

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of jurisdiction and the effect thereof? OPD
139. The onus to prove this issue was upon the defendants. The
defendants have contended that the present suit has been deliberately
undervalued for purposes of Court fees and pecuniary jurisdiction despite
the plaintiff seeking substantive proprietary rights in an immovable
property situated in Janakpuri, New Delhi, admittedly possessing
substantial market value. It has been argued that the plaintiff ought to
have valued the suit on the prevailing market value of the property and
paid ad valorem Court fees thereon.
140. Per contra, the plaintiff has contended that the suit is substantially
one for declaration and consequential injunction arising out of a family
arrangement embodied in the MOU dated 31.05.2000 and that the
valuation adopted in the plaint is in accordance with law. The plaintiff has
further argued that the defendants have failed to establish either statutory
violation or prejudice arising out of the valuation adopted.
141. In order to adjudicate the present issue, the true nature and
substance of the reliefs claimed in the plaint are to be examined, as the
law is well settled that valuation of a suit cannot be determined merely by
its drafting or nomenclature but must depend upon the real character of
the relief sought. A perusal of the plaint shows that the plaintiff has
sought:
(i) a declaration to the effect that he is entitled to ownership rights in
respect of the first floor, third floor, terrace rights and one-half undivided
share in the land beneath property bearing No. C-3/19, Janakpuri, New

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Delhi in terms of the MOU dated 31.05.2000;
(ii) consequential directions for execution of documents in his favour; and
(iii) permanent injunction restraining the defendants from creating third-
party interest in the suit property.
142. Though the suit has been styled as one for declaration and
injunction, the substance of the relief sought substantially concerns
assertion of rights in immovable property and consequential enforcement
of obligations allegedly arising from the MOU. Thus, the objection raised
by the defendants regarding valuation cannot be dismissed outright
without scrutiny.
143. The defendants have argued that the suit ought necessarily to have
been valued on the market value of the suit property. In support of their
contention, reliance has been placed upon valuation report Ex. DW1/41.
However, mere production of a valuation report does not, by itself,
establish improper valuation in law. The burden lay upon the defendants
not only to prove the market value of the property but also to establish the
precise statutory basis under which the plaintiff was legally bound to
value the suit at such market value. The defendants have failed to
discharge this burden satisfactorily.
144. In suits seeking declaratory relief coupled with consequential
relief, valuation ordinarily falls within the ambit of Section 7(iv)(c) of the
Court Fees Act, wherein the plaintiff is, to a certain extent, entitled to
place his own valuation upon the relief claimed, subject to judicial
scrutiny where such valuation appears arbitrary, illusory or designed to

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evade jurisdiction. Such discretion, however, is not absolute. The Court
retains authority to examine whether the relief has been intentionally
undervalued so as to avoid payment of proper Court fees or to artificially
invoke a particular pecuniary forum. The Court is required to look at the
substance of the relief rather than the cleverness of drafting. Where a
plaintiff substantially seeks proprietary rights in immovable property, the
Court is entitled to pierce the form of pleadings and examine the real
nature of the claim.
145. In the present matter, although the plaintiff asserted rights
concerning immovable property, the claim was not framed as one for
direct possession on the basis of title simpliciter or recovery of the entire
property at market value. Rather, the plaintiff sought declaration and
consequential relief founded upon an alleged family arrangement and
obligations allegedly arising from the MOU. The defendants have not
produced cogent material demonstrating the exact valuation adopted by
the plaintiff or establishing how the same violated any statutory provision
under the Court Fees Act or the Suits Valuation Act. Ex. DW1/41, relied
upon by the defendants, is merely a valuation report allegedly prepared in
the year 2009. However, the author of the said report was not examined
before the Court. Consequently, the report has not been proved in
accordance with law and cannot be treated as substantive evidence
regarding actual market valuation of the suit property.
146. Mere marking of a document does not amount to proof of its
contents. In absence of examination of its author or other admissible

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evidence supporting valuation, Ex. DW1/41 carries limited evidentiary
weight. Moreover, no official circle rate notification, government
valuation guideline, assessment order, registered comparable sale deed or
statutory valuation record has been produced by the defendants to
conclusively establish the prevailing market value of the property or
demonstrate material undervaluation. The Court further finds merit in the
plaintiff's submission that objections concerning pecuniary jurisdiction or
valuation cannot be sustained in vacuum without demonstrating
consequential prejudice or failure of justice.
147. Section 11 of the Suits Valuation Act specifically provides that
objections relating to overvaluation or undervaluation do not
automatically vitiate proceedings unless it is shown that such defect has
prejudicially affected disposal of the suit on merits. In the present case,
the defendants have failed to demonstrate any prejudice occasioned by
the valuation adopted by the plaintiff. The suit has remained pending for
considerable time, parties have led extensive evidence, witnesses have
been examined and cross-examined, and the matter has been adjudicated
on merits after full opportunity to both sides. No material has been placed
before the Court showing that valuation prejudicially affected
jurisdiction, prevented proper adjudication, or resulted in failure of
justice.
148. The findings have already been returned under Issues No. 1 and 2
against the plaintiff on merits, wherein the Court has held that the
plaintiff failed to establish any enforceable legal right, title or interest in

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the suit property. Thus, even assuming arguendo that some deficiency or
irregularity existed in valuation, such irregularity would not alter the
substantive outcome of the litigation. Defects concerning valuation,
unless shown to strike at inherent jurisdiction or occasion prejudice,
cannot automatically render proceedings void or liable to dismissal.
149. Upon cumulative appreciation of pleadings, evidence and law, the
defendants have failed to establish that the suit was materially or
deliberately undervalued in contravention of statutory provisions so as to
affect pecuniary jurisdiction or warrant rejection or return of the plaint.
Consequently, the defendants have failed to prove improper valuation in a
manner attracting adverse legal consequences against the plaintiff.
Accordingly, the issue is decided against the defendants and in favour of
the plaintiff.
Issue No. 5 Whether the MOU dated 31st May 2000 is unenforceable as
alleged by the defendant? OPD
150. The onus to prove this issue was upon the defendants. The
defendants have contended that the Memorandum of Understanding dated
31.05.2000 (hereinafter referred to as "the MOU") is legally
unenforceable and incapable of conferring any enforceable rights upon
the plaintiff. The challenge to enforceability has been founded upon
several grounds, namely: (i) uncertainty of essential terms; (ii)
contemplation of future execution of sale deeds, thereby negativing any
present transfer; (iii) non-registration of the document despite its alleged
effect upon rights in immovable property; (iv) alleged breach of

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reciprocal obligations by the plaintiff; and (v) allegations of material
alteration and interpolation in the document.
151. Per contra, the plaintiff has argued that the MOU constituted a
bona fide family settlement arrived at between closely related family
members and had been partly acted upon. It has been submitted that
family arrangements are to be construed liberally in order to preserve
domestic peace and avoid prolonged disputes. The plaintiff has further
contended that the defendants, having participated in arbitration
proceedings arising from the MOU, are estopped from disputing its
binding character.
152. The question before the Court is not merely whether a document
styled as an MOU existed between the parties, but whether the same
constituted a legally enforceable instrument capable of conferring or
compelling transfer of proprietary rights in immovable property. From the
pleadings and evidence on record, the existence of a document styled as
an MOU dated 31.05.2000 is not seriously disputed. However, the
defendants have consistently challenged its legal enforceability and have
also questioned certain alleged alterations therein. The question of
tampering shall be dealt with separately under Issue No. 6. For present
purposes, the Court confines itself to the question of enforceability.
153. The findings already returned under Issues No. 1 and 2 bear direct
relevance. The Court has already held that Clause 2 of the MOU did not
create any present ownership, co-ownership or vested proprietary interest
in favour of the plaintiff and merely contemplated future execution of sale

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deeds after conversion of the suit property into freehold. The findings
recorded therein shall be read as part of the present issue to the extent
relevant. Clause 2 of the MOU records that after conversion of the suit
property from leasehold to freehold, Late Sh. Harjinder Pal would
execute "proper sale deeds" in favour of the plaintiff concerning specified
portions of the property. The language of the clause indicates that the
MOU itself was not intended to operate as a completed instrument of
transfer. Rather, it contemplated a future stage at which formal
conveyance documents would be executed. Thus, the parties themselves
recognized that further legal formalities remained necessary before any
proprietary rights could vest.
154. The distinction between a completed transfer and a future promise
to transfer is fundamental. Section 54 of the Transfer of Property Act,
1882 expressly provides that a contract for sale of immovable property
does not, by itself, create any interest in or charge upon such property.
Consequently, even assuming the plaintiff's case to be accepted at its
highest, the MOU could at best be construed as recording an
understanding contemplating future transfer and not as an instrument
creating immediate proprietary rights. Admittedly, no registered sale deed
or conveyance deed was ever executed pursuant to Clause 2 of the MOU.
The plaintiff has not produced any registered instrument transferring
ownership of the suit property or any portion thereof in his favour. Thus,
the legal mechanism contemplated by the MOU itself admittedly never
came into existence.

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155. The Court further finds that the MOU neither specifies any definite
consideration nor provides any valuation methodology. It contains no
clear timeline for execution of sale deeds after conversion of the property.
It is equally silent regarding liability for stamp duty, registration
expenses, reciprocal obligations or consequences arising from default.
The document lacks clarity regarding enforceable obligations and remains
substantially contingent upon future acts. It is well settled that agreements
lacking certainty of material terms are ordinarily incapable of specific
enforcement.
156. The plaintiff has sought to overcome such deficiencies by
characterizing the MOU as a family settlement. Undoubtedly, Courts
ordinarily lean in favour of upholding bona fide family settlements
honestly arrived at to preserve harmony amongst family members.
However, such liberality cannot extend to dispensing with mandatory
legal requirements governing transfer of immovable property. Even a
family arrangement must disclose certainty regarding the rights sought to
be created, acknowledged or relinquished. Moreso, where the document
itself contemplates execution of formal conveyance instruments in future,
the Court cannot disregard the intention of the parties reflected therein. In
the present case, the MOU itself expressly contemplated future execution
of "proper sale deeds," thereby demonstrating that the parties did not treat
the MOU as a completed transfer instrument.
157. Another important aspect concerns registration. The plaintiff seeks
declaration and enforcement of rights concerning immovable property.

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Section 17 of the Registration Act mandates compulsory registration of
instruments purporting or operating to create, declare, assign, limit or
extinguish rights in immovable property of value exceeding Rs.100/-.
Admittedly, the MOU dated 31.05.2000 remained unregistered.
Therefore, even assuming for the sake of argument that the document
purported to create or declare proprietary rights in immovable property,
the same could not be relied upon as an instrument effecting transfer of
title in absence of registration.
158. The plaintiff has strongly relied upon the fact that portions of the
family arrangement were allegedly acted upon, particularly concerning
the Kirti Nagar property, where sale proceeds are stated to have been
distributed amongst family members. The Court does not dispute that
certain family dealings and arrangements may have taken place between
the parties. However, partial implementation of one aspect of an
arrangement cannot automatically render every clause thereof legally
enforceable in respect of immovable property in absence of compliance
with statutory requirements. The plaintiff was still required to establish
that the MOU constituted a complete, definite and legally enforceable
arrangement concerning the suit property. That burden has not been
discharged.
159. Considerable reliance has also been placed upon the arbitral award
dated 05.01.2005 directing execution of sale deeds pursuant to the MOU.
However, the said award admittedly came to be set aside by the Hon'ble
High Court vide order dated 02.02.2009. The plaintiff's contention that

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the Hon'ble High Court thereby recognized or affirmed enforceability of
the MOU cannot be accepted. Liberty granted by a Court to pursue
remedies in accordance with law cannot be equated with judicial
recognition of enforceable proprietary rights or contractual obligations.
The Hon'ble High Court neither affirmed transfer of title nor upheld
enforceability of Clause 2 of the MOU.
160. The defendants have further alleged breach of reciprocal
obligations on the part of the plaintiff concerning distribution of monies
allegedly received from the Great Lyallpur Housing Society and other
family transactions. The evidence led in this regard remains inconsistent
and inconclusive. PW2/Sh. Davinder Ajmani deposed regarding alleged
payment of certain monies by Harmesh Kumar to Late Sh. Harjinder Pal,
whereas PW1 admitted absence of receipts or documentary proof
concerning distribution of funds. Such inconsistencies weaken the
plaintiff's case regarding performance of reciprocal obligations. The
Court also finds absence of cogent evidence establishing readiness and
willingness on the plaintiff's part concerning complete implementation of
mutual obligations allegedly flowing from the arrangement.
161. However, notwithstanding the aforesaid deficiencies, the Court is
not inclined to hold that the entire MOU was void ab initio or wholly
non-existent. The material on record indicates existence of certain family
understandings and arrangements amongst the parties. The MOU may
therefore be looked into for collateral purposes, surrounding
circumstances or evidence of family negotiations. The crucial question,

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however, remains whether the MOU was legally enforceable so as to
compel transfer of ownership rights in immovable property through
decree of Court. In the opinion of the Court, the answer must be in the
negative.
162. In view of (i) absence of registration; (ii) uncertainty of material
terms; (iii) express contemplation of future execution of sale deeds; (iv)
non-execution of any conveyance instrument; and (v) failure to establish
immediate creation of proprietary rights, the Court holds that the MOU
dated 31.05.2000 was not legally enforceable as an instrument effecting
or compelling transfer of ownership rights in respect of property bearing
No. C-3/19, Janakpuri, New Delhi. Consequently, the defendants have
succeeded in establishing that the MOU, insofar as it relates to
enforcement of transfer of immovable property rights, was legally
unenforceable. The issue is accordingly decided in favour of the
defendants and against the plaintiff.
Issue No. 6 Whether the plaintiff has tampered with the MOU dated 31st
May 2000? OPD
163. The onus to prove this issue lay upon the defendants. The
defendants alleged that the plaintiff had tampered with the MOU dated
31.05.2000 by inserting the words "He shall be Sole Arbitrator between
the parties" in Clause 6 without the consent, knowledge or signatures of
Late Sh. Harjinder Pal, and that the arbitral proceedings were thereafter
initiated on the basis of such altered document. However, a careful
reading of the judgment of the Hon'ble High Court shows that while the

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Court held the arbitration clause to be unproven and the award to be
without jurisdiction, it did not record a specific finding that the plaintiff
had committed forgery or deliberate fabrication.
164. The Hon'ble High Court examined the rival versions and found
that the respondent therein(plaintiff in this suit) had failed to establish the

existence of a valid arbitration agreement. The Court noticed that the
alleged arbitration clause appeared to have been inserted later, was not
countersigned or initialled by the parties, and that the supporting evidence
was unreliable and inconsistent. On that basis, the award was set aside as
being without jurisdiction. However, these findings were directed to the
validity and enforceability of the arbitration clause, and not to a definitive
adjudication that the plaintiff had fraudulently tampered with the
document.

165. It is, therefore, clear that the High Court’s judgment cannot be read
as a conclusive judicial determination that the plaintiff materially altered
the MOU by fraud or interpolation. At best, the judgment supports the
conclusion that the alleged arbitration clause was not satisfactorily proved
as part of a valid and binding arbitration agreement. The distinction
between a clause being legally unproved or unenforceable and a clause
having been fraudulently inserted is material and must be maintained. The
former relates to enforceability in law, whereas the latter requires strict
proof of intentional fabrication.

SPONSORED

166. In the present case also, the defendants were required to lead
cogent, reliable and convincing evidence to prove not only that the MOU

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contained alterations, but also that such alterations were made unilaterally
and without authority. Merely relying upon the setting aside of the arbitral
award by the High Court is not sufficient to establish deliberate tampering
or fabrication. In the present case, apart from the observations contained
in the High Court judgment, the defendants have not led any independent,
scientific, or forensic evidence to establish that the arbitration clause was
inserted subsequently by tampering with the original document. No
forensic, expert, or independent documentary evidence has been produced
to conclusively prove unauthorized interpolation by the plaintiff.

167. Accordingly, while the High Court judgment lends support to the
defendants’ contention that the arbitration clause was not proved to be
part of a valid agreement and appears to have been introduced in disputed
circumstances, it does not by itself prove that the plaintiff tampered with
the MOU. In view of the aforesaid, the defendants have failed to
discharge the burden of proving that the plaintiff materially altered or
tampered with the Memorandum of Understanding dated 31.05.2000 by
fraudulent insertion of the arbitration clause. Accordingly, the issue is
decided against the defendants and in favour of the plaintiff.
Part no. II : Suit for possession and damages
Issue No. 1 Whether the suit has not been properly valued for the purpose
of Court fee, if so its effect? OPD

168. The onus to prove this issue was upon the defendant. The
defendant has contended that the present suit has not been properly
valued for the purposes of Court fees and pecuniary jurisdiction and that

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the plaintiff deliberately undervalued the suit despite seeking possession
of valuable immovable property situated at property bearing No. C-3/19,
Janakpuri, New Delhi. It has been argued that appropriate ad valorem
Court fees ought to have been paid upon the market value of the suit
property. Per contra, the plaintiff has maintained that the suit has been
correctly valued in accordance with the provisions of law and that
requisite Court fees have been duly affixed.

169. The present suit is one seeking recovery of possession of
immovable property along with damages/mesne profits on account of
alleged unauthorized occupation by the defendant. The plaintiff has
valued the relief of possession separately and has also claimed damages
independently. It is settled law that for purposes of valuation and Court
fees, the Court must examine the real substance of the relief claimed and
not merely the form or nomenclature employed in the pleadings. The
inquiry must therefore be directed towards whether the valuation adopted
by the plaintiff is arbitrary, mala fide, or contrary to any statutory
prescription governing suits of the present nature.

170. The burden to establish improper valuation rested squarely upon
the defendant. Mere assertion that the suit property is of considerable
value or that higher Court fees ought to have been paid cannot by itself
discharge such burden. The defendant was required to demonstrate with
specificity the legal basis upon which the suit was allegedly undervalued
and the precise deficiency in valuation or Court fees. In the present case,
the defendant has failed to place any cogent or reliable material on record

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establishing the alleged deficiency. Though reference has been made to a
valuation report, namely Ex. DW1/41, in connected proceedings, the said
document does not materially advance the defendant’s case.

171. Firstly, the author of the valuation report was never examined
before the Court. Consequently, the contents of the document remained
unproved in accordance with the settled rules of evidence and cannot be
treated as substantive proof of the prevailing market value of the property.
Secondly, no official circle rate notification, statutory valuation guideline,
government assessment record or comparable material has been produced
to demonstrate that the valuation adopted by the plaintiff was legally
impermissible or grossly deficient.

172. The defendant has not identified any specific provision under the
Court Fees Act or the Suits Valuation Act allegedly violated by the
plaintiff while valuing the present suit. A vague or generalized objection
regarding undervaluation, unsupported by evidence and statutory
foundation, cannot be sustained. The Hon’ble Supreme Court in
Shamsher Singh v. Rajinder Prashad, 1974 SCR (1) 322, held that while
determining Court fees and valuation, the Court must examine the true
nature and substance of the relief sought rather than the drafting
employed by the parties. Likewise, it is settled that objections concerning
valuation cannot succeed merely on technical assertions in absence of
proof of actual prejudice.

173. Section 11 of the Suits Valuation Act specifically contemplates that
objections relating to overvaluation or undervaluation do not

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automatically invalidate proceedings unless consequent prejudice or
failure of justice is demonstrated. Similarly, in Kiran Singh v. Chaman
Paswan 1954 AIR SC 340, the Hon’ble Supreme Court held that defects
relating to pecuniary jurisdiction or valuation do not render proceedings
void unless it is affirmatively shown that prejudice or failure of justice
has resulted therefrom.

174. In the present matter, the defendant has failed to establish that the
valuation adopted by the plaintiff occasioned any prejudice whatsoever.
The suit proceeded to full trial. The parties led extensive oral and
documentary evidence over a considerable period and the matter was
contested comprehensively on merits. No material has been placed on
record suggesting that the Court lacked pecuniary jurisdiction or that the
adjudication stood affected due to any alleged defect in valuation. The
objection appears to have remained largely technical in nature and
unsupported by substantive evidence. Mere assertion that the suit
property commands substantial market value cannot, in itself, establish
improper valuation unless correlated with statute and supported by
evidence.

175. In view of the aforesaid discussion, the defendant has failed to
discharge the burden cast upon him of proving that the suit was
improperly valued for purposes of Court fees or jurisdiction. Accordingly,
the issue is decided against the defendant and in favour of the plaintiff.
Issue No. 2 Whether the suit is without any cause of action? OPD

176. The onus to prove this issue was upon the defendant. The

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defendant has contended that the present suit is devoid of any cause of
action on the ground that he is not an unauthorized occupant or licensee
but a co-owner in possession of the suit property by virtue of rights
allegedly flowing from the Memorandum of Understanding dated
31.05.2000. It has been argued that since the defendant possessed a
legitimate proprietary interest in the property, no legal cause of action
ever accrued to the plaintiff for seeking possession or damages.

177. Per contra, the plaintiff has asserted that the defendant was merely
a permissive occupant who had been allowed to occupy portions of the
property owing to close family relations with Late Sh. Harjinder Pal.
According to the plaintiff, such permissive occupation stood terminated
and revoked, whereafter the defendant continued in unauthorized
possession, thereby giving rise to a continuing and subsisting cause of
action for recovery of possession and consequential reliefs.

178. A cause of action comprises every bundle of material facts which a
plaintiff must prove, if traversed, in order to obtain a decree in his or her
favour. The inquiry at this stage is not whether the plaintiff will ultimately
succeed on merits, but whether the plaint discloses facts constituting a
right to sue. Thus, while deciding an objection concerning absence of
cause of action, the Court is required to examine the averments made in
the plaint and determine whether such pleadings, if assumed to be correct
for purposes of adjudication, disclose a legally enforceable grievance
requiring judicial determination.

179. In the present case, the plaintiff has specifically pleaded that:

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(i) the suit property originally belonged exclusively to Late Sh. Harjinder
Pal;

(ii) after his demise, the plaintiff acquired rights therein through
testamentary succession;

(iii) the defendant had been permitted to occupy portions of the property
owing to close family relations and permissive indulgence;

(iv) such permission stood revoked; and

(v) despite termination of permissive possession, the defendant failed to
vacate and continued to occupy the suit property without lawful authority.

180. These pleadings are accompanied by reliance upon documentary
title records including DDA allotment documents, perpetual lease deed,
conveyance records, municipal documents and other ownership records
standing in the name of Late Sh. Harjinder Pal. Evidently, therefore, the
plaint discloses material facts constituting a clear and complete cause of
action for seeking possession and consequential reliefs.

181. The principal objection of the defendant is founded upon the plea
of co-ownership arising from the MOU dated 31.05.2000. However, the
sustainability of such defence must necessarily be tested in light of
findings already returned by the Court in the connected suit for
declaration and permanent injunction (Part 1). Under Issues No. 1, 2 and
5 of the connected proceedings, the Court has already held that the
defendant failed to establish any ownership, co-ownership, coparcenary
interest or vested proprietary right in the suit property on the basis of
Clause 2 of the MOU dated 31.05.2000. It has further been held that the

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MOU neither effected transfer of title nor created any present enforceable
ownership rights and remained legally unenforceable insofar as transfer
of immovable property was concerned.

182. Once the plea of co-ownership fails, the very foundation of the
defendant’s objection concerning absence of cause of action necessarily
collapses. The plaintiff’s assertion that the defendant continued to occupy
the property without legal title, after revocation of permission, discloses a
valid cause of action for recovery of possession. The Hon’ble Supreme
Court in Liverpool & London S.P. & I Association Ltd. v. M.V. Sea
Success I 2003 INSC 580 held that so long as the plaint discloses material
facts constituting a right to sue, the suit cannot be rejected on the ground
that the plaintiff may ultimately fail on merits. The Court must
distinguish between absence of cause of action and failure to prove the
claim after trial.

183. In the present matter, the plaint clearly sets out facts disclosing
ownership, permissive occupation, revocation of licence and continued
possession by the defendant. These averments unquestionably constitute a
triable cause of action. The Court further finds that the defendant’s
objection is, in substance, not one relating to absence of cause of action
but rather a defence on merits concerning alleged co-ownership. Such
defence has already been adjudicated upon and rejected. Merely because
a defendant disputes the plaintiff’s claim or sets up a competing defence
does not render the suit devoid of cause of action.

184. Upon cumulative consideration of the pleadings, evidence and

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findings returned in the connected proceedings, the Court is satisfied that
the plaint discloses a cause of action for institution of the present suit.
Accordingly, the issue is decided against the defendant and in favour of
the plaintiff.

Issue No. 3 Whether Memorandum of Understanding dated 31st May,
2000 is invalid and unenforceable in view of the interpolation made
therein? OPP

185. The onus to prove this issue was upon the plaintiff. The plaintiff
has contended that the Memorandum of Understanding dated 31.05.2000
(hereinafter referred to as “the MOU”) stood rendered invalid and
unenforceable on account of unauthorized interpolations and material
alterations allegedly made by the defendant, particularly in relation to
insertion of the arbitration clause, which subsequently formed the basis of
arbitral proceedings and an arbitral award that ultimately came to be set
aside by the Hon’ble High Court.

186. It has been argued on behalf of the plaintiff that the defendant
relied upon an altered version of the MOU and sought to derive
advantage from a document which no longer reflected the original
understanding between the parties. According to the plaintiff, such
alleged interpolation materially affected the integrity and enforceability
of the document and consequently disentitled the defendant from
asserting any rights thereunder.

187. The defendant, on the other hand, has denied all allegations of
fabrication, interpolation or unauthorized alteration and has maintained

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that the MOU represented a consensual family arrangement executed
between the parties. It has been submitted that the arbitral proceedings
themselves demonstrate acknowledgment of the document by the parties
and that allegations of tampering have been raised merely as an
afterthought.

188. It becomes necessary to note that the issue under consideration
overlaps with findings already returned by the Court in the connected suit
(Part 1) for declaration and permanent injunction, particularly while
deciding Issue No. 6 therein concerning alleged tampering of the MOU.

Upon appreciation of oral and documentary evidence, the Court had
concluded that allegations of tampering, fabrication or interpolation had
not been conclusively established through cogent and reliable evidence.
The said reasoning be read as part of adjudication of this issue as well.
Consequently, the allegation that the MOU became invalid solely by
reason of interpolation remains unsupported by cogent evidence.

189. However, the matter does not end there. While allegations of
interpolation have not been conclusively proved, the enforceability of the
MOU itself has already been examined extensively by this Court in the
connected suit (Part 1). Under Issues No. 1, 2 and 5 of the connected
proceedings, the Court has categorically held that the MOU dated
31.05.2000 was legally unenforceable insofar as transfer of proprietary
rights in immovable property was concerned. The Court had held that:

(i) the MOU did not create any present proprietary interest;

(ii) it merely contemplated future execution of sale deeds;

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(iii) no registered conveyance instrument was ever executed;

(iv) the document lacked certainty regarding essential terms; and

(v) statutory requirements governing transfer of immovable property
remained unfulfilled.

190. It was further held that an agreement contemplating future transfer,
without compliance of statutory requirements, cannot by itself operate to
confer enforceable ownership rights in immovable property. Thus, even
though interpolation has not been affirmatively proved, the MOU remains
legally unenforceable in relation to transfer of proprietary rights for
reasons independent of alleged tampering. The Court therefore finds
merit in the plaintiff’s contention only to the limited extent that the
defendant cannot derive enforceable proprietary rights from the said
document.

191. However, the plaintiff has failed to establish that the MOU stood
invalidated solely on account of interpolation or unauthorized alteration.
In other words, unenforceability of the MOU flows not from proved
tampering, but from legal deficiencies already discussed in connected
proceedings, including absence of registration, uncertainty of terms and
non-execution of conveyance instruments. Accordingly, this issue is
partly decided in favour of the plaintiff and partly against the defendant,
to the limited extent that while interpolation has not been conclusively
proved, the MOU is held legally unenforceable in respect of transfer of
immovable property rights.

Issue No. 4 Whether the plaintiff is entitled to a decree of possession of

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the suit property? OPP

192. The onus to prove this issue was upon the plaintiff. The plaintiff
has sought recovery of possession of the suit property on the basis of
ownership allegedly inherited through Late Sh. Harjinder Pal, who,
according to the plaintiff, remained the exclusive owner of property
bearing No. C-3/19, Janakpuri, New Delhi during his lifetime. It has been
pleaded that after the demise of Late Sh. Harjinder Pal, the defendant
continued to occupy portions of the property without any legal right
despite revocation of permission earlier extended owing to close family
relations. The defendant has resisted the claim by asserting co-ownership
and possessory rights under the Memorandum of Understanding dated
31.05.2000. According to the defendant, his possession was not
permissive but flowed from an independent proprietary entitlement
arising under Clause 2 of the MOU.

193. In order to succeed in a suit for possession founded upon title, the
plaintiff is required to establish a better legal right to possession than the
defendant. Where ownership is proved and the defence of competing title
fails, recovery ordinarily follows unless possession is protected under
some independent legal entitlement. The Court has examined the oral and
documentary evidence available on record. The documentary material
adduced during trial conclusively establishes that property bearing No.
C-3/19, Janakpuri, New Delhi stood allotted by DDA exclusively in the
name of Late Sh. Harjinder Pal. The DDA allotment documents, perpetual
lease deed, conveyance records, municipal documents and property tax

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records consistently reflect Late Sh. Harjinder Pal as the sole allottee and
recorded owner of the suit property.

194. The official records produced through competent witnesses
remained substantially unrebutted. No contrary title document has been
produced by the defendant demonstrating joint acquisition, co-ownership,
contribution towards purchase consideration or creation of title in his
favour. In the connected suit for declaration and permanent injunction
(Part 1), the Court has already adjudicated the defendant’s claim of co-
ownership in detail. Under Issues No. 1, 2 and 5 of the connected
proceedings, the Court has categorically held that the defendant failed to
establish any ownership, co-ownership, coparcenary interest or
enforceable proprietary right in the suit property on the basis of the MOU
dated 31.05.2000.

195. It has further been held that Clause 2 of the MOU neither effected
transfer of title nor created any present proprietary interest in favour of
the defendant and merely contemplated future execution of sale deeds
upon occurrence of contingencies. No registered sale deed or conveyance
document was admittedly executed in favour of the defendant.
Consequently, the defendant failed to establish any legal entitlement
capable of defeating the plaintiff’s superior title. Once the defendant’s
plea of ownership fails, the character of his possession requires
examination.

196. The evidence on record demonstrates that the defendant’s
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Harjinder Pal. The surrounding circumstances indicate permissive use and
occupation rather than possession founded upon independent title. No
public document such as mutation record, municipal entry, electricity
record, property tax document or title instrument has been produced by
the defendant showing recognition of exclusive ownership or possessory
rights in his favour. Mere long possession, residence in portions of a
family property or permissive occupation does not by itself ripen into
ownership in absence of legally recognizable title. Once the alleged basis
of co-ownership under the MOU has failed, no independent right survives
enabling the defendant to continue occupying the suit property against the
wishes of the lawful owner.

197. The Hon’ble Supreme Court in Sant Lal Jain v. Avtar Singh 1985
INSC 51 held that where possession originated permissively under a
licence, the licensee becomes liable to vacate upon revocation of such
licence and the true owner is entitled to seek recovery of possession
through due process of law. Similarly, in Union of India v. Vasavi
Cooperative Housing Society Ltd.(2014) 2 SCC 269, the Hon’ble
Supreme Court reiterated that title must be affirmatively proved by the
person asserting proprietary rights and that a claimant cannot succeed
merely on weakness of the opposite party’s case.

198. In the present case, the defendant has failed to establish any better
or competing title against the plaintiff. The documentary ownership of
Late Sh. Harjinder Pal stands conclusively established, while the defence
of co-ownership has already been rejected. The Court further finds that

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the plaintiff has successfully proved a superior legal entitlement to
possession of the portions under occupation of the defendant.
Consequently, the continued occupation of the defendant, after failure of
his claim of ownership and termination of permissive occupation, cannot
be protected in law.

199. Accordingly, the plaintiff is held entitled to recovery of vacant and
peaceful possession of the portions forming subject matter of the suit,
namely:

(i) the entire first floor including the second mezzanine room;

(ii) the entire third floor including the third mezzanine room; and

(iii) the roof/terrace rights of property bearing No. C-3/19, Janakpuri,
New Delhi.

The issue is accordingly decided in favour of the plaintiff and
against the defendant.

Issue No. 5 Whether the plaintiff is entitled to damages, if so at what rate
and for which period? OPP

200. The onus to prove this issue was upon the plaintiff. The plaintiff
has claimed damages/mesne profits on the assertion that after revocation
of permission to occupy the suit property, the defendant continued in
unauthorized possession and thereby became liable to compensate the
plaintiff for use and occupation of the premises. The plaintiff has
accordingly sought damages at the rate of Rs.50,000/- per month from the
date of institution of the suit till delivery of possession. The defendant has
opposed the claim by contending that he was not an unauthorized

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occupant but a co-owner in possession under the Memorandum of
Understanding dated 31.05.2000 and therefore no liability towards mesne
profits could arise.

201. Under Section 2(12) CPC, mesne profits signify profits which a
person in wrongful possession of property actually received or might with
ordinary diligence have received therefrom together with interest on such
profits, but excluding profits attributable to improvements made by the
person in wrongful possession. Thus, in order to succeed on a claim for
mesne profits, the plaintiff is required to establish:

(i) wrongful occupation of the property by the opposite party;

(ii) the period during which such occupation remained unauthorized; and

(iii) the reasonable rental or market value constituting the basis of
compensation.

202. In view of findings already recorded under Issue No. 4, the Court
has held that the defendant failed to establish any enforceable proprietary
right in the suit property and that his continued occupation became
unauthorized after revocation of permissive possession. Consequently, the
first requirement for grant of mesne profits stands substantially satisfied.
However, entitlement to damages does not automatically result in grant of
the amount claimed. The plaintiff must independently establish the
quantum of mesne profits through cogent and reliable evidence.

203. The Court has examined the evidence led by the plaintiff on this
aspect. Despite claiming damages at the rate of Rs.50,000/- per month,
the plaintiff has not produced any documentary or oral evidence

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establishing prevailing rental value of comparable properties in the
locality. No lease deeds, rent agreements, market surveys, property dealer
testimony, circle rate assessment, valuation material, municipal rental
assessment or expert evidence has been placed on record for determining
fair compensation for use and occupation. No independent witness
conversant with prevailing rental rates in Janakpuri, New Delhi was
examined to substantiate the monthly amount claimed. Even during oral
testimony, no witness explained the basis upon which damages were
quantified at Rs.50,000/- per month. Mere assertion in pleadings or
affidavit evidence, unsupported by independent proof, cannot constitute
sufficient basis for determination of mesne profits.

204. It is a settled proposition that mesne profits cannot be awarded on
conjectures or arbitrary assumptions in absence of foundational evidence
regarding prevailing market rent. The burden squarely rested upon the
plaintiff under Section 104 BSA to prove the quantum of damages
claimed. The Hon’ble Supreme Court in Union of India v. Ibrahim Uddin
(2012) 8 SCC 148 reiterated that pleadings are not evidence and that a
party asserting a claim must substantiate the same through legally
admissible evidence. Likewise, in Ravinder Kumar Sharma v. State of
Assam 1999 INSC 34, it was held that where no evidence is led on an
issue, the party upon whom the burden lies must necessarily fail. The
Hon’ble High Court of Delhi in M.C. Agrawal (HUF) v. Sahara India AIR
2008 SC 2887 emphasized that mesne profits should ordinarily be
determined upon objective evidence regarding market rent and cannot be

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granted solely on unsubstantiated assertions.

205. In the present case, although the plaintiff has succeeded in
establishing entitlement to possession, the Court finds complete absence
of reliable evidence regarding the market rental value of the suit property.
The Court cannot arbitrarily assume rental income merely because the
property is situated in Janakpuri, New Delhi or because unauthorized
occupation has been established. Judicial discretion in determination of
mesne profits must rest upon evidence and not speculation. The Court
also finds no material enabling appointment of a notional or approximate
rental value on judicial guesswork in the peculiar facts of the present
case, particularly when no evidentiary foundation whatsoever has been
laid by the plaintiff.

206. Consequently, though the defendant’s occupation is held
unauthorized after revocation of permission, the plaintiff has failed to
discharge the burden of proving the rate, period, and quantum of damages
claimed. Accordingly, the plaintiff is held not entitled to damages/mesne
profits as prayed for. The issue is therefore decided against the plaintiff
and in favour of the defendant.

Issue No. 6 Whether the plaintiff is entitled to interest, if so at what rate?
OPP

207. The onus to prove this issue was upon the plaintiff. The plaintiff
has sought interest upon the amount claimed towards damages/mesne
profits. However, the claim of interest is consequential and dependent
upon successful establishment of entitlement to damages. Since the

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plaintiff has failed to prove entitlement to mesne profits under Issue No.
5, no independent basis survives for grant of interest.

208. Further, no evidence has been led by the plaintiff regarding any
contractual stipulation, mercantile usage, statutory entitlement or other
legal basis warranting grant of interest at any particular rate. Section 34
CPC empowers the Court to award interest in appropriate cases.
However, such discretion must be exercised upon established liability and
proved monetary entitlement. The Hon’ble Supreme Court in State of
Rajasthan v. Ferro Concrete Construction Pvt. Ltd. AIRONLINE 2009
SC 279 held that interest cannot be awarded in absence of proved
principal liability unless supported by contract, statute or usage. Since the
plaintiff has failed to establish the foundational claim for damages, the
relief of interest also cannot be granted. Accordingly, Issue No. 6 is
decided against the plaintiff and in favour of the defendant.
Issue No. 7 Common Relief/Final Order (Part I & Part II)

209. In view of the detailed findings returned in Part I (Suit for
Declaration and Permanent Injunction) and Part II (Suit for Possession
and Damages), the Court deems it appropriate to pass a common order on
reliefs arising from both sets of proceedings, as the issues in both suits are
interlinked and arise from the same set of facts, documents, and the
Memorandum of Understanding dated 31.05.2000.

210. Upon appreciation of the entire oral and documentary evidence on
record, this Court has recorded the following material conclusions:

(i) that property bearing No. C-3/19, Janakpuri, New Delhi stood

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exclusively allotted and owned by Late Sh. Harjinder Pal;

(ii) that the defendant failed to establish any co-ownership, coparcenary
right, or independent proprietary interest in the suit property;

(iii) that Clause 2 of the Memorandum of Understanding dated
31.05.2000 did not create any present, vested, or enforceable right in
favour of the defendant/plaintiff (as the case may be in connected
proceedings), and merely contemplated execution of future sale deeds;

(iv) that the said MOU did not affect transfer of title in immovable
property in absence of a registered conveyance;

(v) that the claim based upon alleged family arrangement failed to satisfy
legal requirements for enforcement of rights in immovable property;

(vi) that the defendant’s possession, after failure of his claim of title, is
without lawful authority;

(vii) that the plaintiff is entitled to recovery of possession; however, claim
for mesne profits/damages remains unproved.

211. It is well-settled that in a suit for declaration of title or proprietary
rights, the plaintiff must succeed on the strength of his own case and not
on the weakness of the defence, as reiterated by the Hon’ble Supreme
Court in Union of India v. Vasavi Cooperative Housing Society Ltd.
(supra). It is further settled that an agreement for sale or memorandum of
understanding, even if proved, does not create any interest in immovable
property, in view of Section 54 of the Transfer of Property Act, 1882, and
therefore cannot form the sole basis for declaration of ownership or
partition. In the present case, the entire foundation of the rival claims

Civ DJ 612163/16 Harmesh Kumar v. Kamlesh Arora & ors
Civ DJ 612219/16 Kamlesh Arora v. Harmesh Kumar Page no. 88 of 90
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:

DAGAR 2026.05.08
17:59:43
+0530
rested upon the alleged MOU dated 31.05.2000. However, this Court has
already held that the said document, even if assumed to be valid, did not
operate as a conveyance and did not confer any present proprietary rights
in immovable property.

212. Consequently, the plaintiff in the declaratory proceedings has failed
to establish any legal entitlement to ownership, partition, or injunction in
respect of the suit property, whereas in the possession proceedings, the
plaintiff has succeeded in proving better title and consequent entitlement
to recovery of possession. However, insofar as monetary relief is
concerned, the Court has found that no sufficient evidence has been led to
determine mesne profits or damages, and therefore such relief cannot be
granted on the basis of conjecture or assumption. Accordingly, and in the
interest of justice, both suits are disposed of by way of the following final
common operative order:

Final Operative Order

213. (i) The suit for declaration, partition, possession and permanent
injunction (Part I proceedings) is hereby dismissed in entirety.

(ii) The suit for possession (Part II proceedings) is hereby decreed partly,
and a decree of possession is passed in favour of the plaintiff and against
the defendant, directing the defendant to hand over vacant and peaceful
possession of: entire first floor (including second mezzanine room); entire
third floor (including third mezzanine room); and roof/terrace rights, in
respect of property bearing No. C-3/19, Janakpuri, New Delhi.

(iii) The reliefs of damages/mesne profits and interest are declined in

Civ DJ 612163/16 Harmesh Kumar v. Kamlesh Arora & ors
Civ DJ 612219/16 Kamlesh Arora v. Harmesh Kumar Page no. 89 of 90
Digitally signed
SUSHEEL by SUSHEEL
BALA DAGAR
BALA Date:

DAGAR 2026.05.08
17:59:51 +0530
absence of proof.

(iv) Parties are left to bear their own costs.

Decree sheets be prepared accordingly in both matters. Both files
be consigned to the Record Room after due compliance.

                                                                Digitally signed
                                                    SUSHEEL by SUSHEEL
                                                            BALA DAGAR
                                                    BALA    Date:
                                                    DAGAR   2026.05.08
                                                                17:59:55 +0530


Announced in open Court                          (Susheel Bala Dagar)
on 08th Day of May 2026                          District Judge-08, West
                                                 Tis Hazari Courts, Delhi.
(This judgment contains 90 pages.)




Civ DJ 612163/16         Harmesh Kumar v. Kamlesh Arora & ors
Civ DJ 612219/16         Kamlesh Arora v. Harmesh Kumar              Page no. 90 of 90

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