RFA 474/2013 & RFA 475/2013 Page 1 of 49

$~

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 18

th

December, 2025

Pronounced on: 12

th

January, 2026

+ RFA 474/2013, CM APPL. 10983/2022, CM APPL. 44079/2023, CM

APPL. 39143/2024 & CM APPL. 65771/2024

KALYAN DASS THROUGH LR'S .....Appellant

Through: Mr. Naresh K. Daksh, Adv.

Mob: 9810539912

Email: nareshdaksh_adv@yahoo.com

versus

PRAVEEN CHAWLA .....Respondent

Through: Mr. Charu Sharma and Mr. Nishant

Nain, Advs.

Mob: 9599515369

Mob: charusharma3637@gmail.com

4

+ RFA 475/2013, CM APPL. 60422/2023, CM APPL. 39140/2024 &

CM APPL. 65702/2024

KALYAN DASS THROUGH LR'S .....Appellant

Through: Mr. Naresh K. Daksh, Adv.

Mob: 9810539912

Email: nareshdaksh_adv@yahoo.com

versus

PRAVEEN CHAWLA .....Respondent

Through: Mr. Charu Sharma and Mr. Nishant

RFA 474/2013 & RFA 475/2013 Page 2 of 49

Nain, Advs.

Mob: 9599515369

Mob: charusharma3637@gmail.com

CORAM:

HON'BLE MS. JUSTICE MINI PUSHKARNA

JUDGEMENT

MINI PUSHKARNA, J.

Introduction:

1. The Regular First Appeals being RFA 474/2013 and RFA 475/2013 are

filed under Section 96 of the Code of Civil Procedure, 1908 (“CPC”),

seeking to set aside the common judgment and decree dated 16

th

May, 2023

(“impugned judgment”), passed by the District and Sessions Judge (North),

Rohini Courts, Delhi in Civil Suit No. 355/10 and Counter Claim No.

633/10, titled as ―Sh. Parveen Chawla Versus Sh. Kalyan Dass‖ as regards

the findings on ownership, possession, mesne profits and permanent

injunction.

2. ⁠The suit was filed by the plaintiff/respondent for possession, mesne

profits/damages, and permanent injunction with respect to the property

bearing no. B-25A, Vijay Nagar, Delhi – 110009 (“suit property”). The Trial

Court decreed the suit by granting possession of the suit property in favor of

the plaintiff/respondent, on the ground that the plaintiff/respondent is the

owner of the suit property. The Trial Court dismissed the Counter Claim of

the defendant/appellant, wherein, the appellant sought for declaration of

ownership in relation to the portion of property in possession of the

appellant. However, the Trial Court granted 90 days’ time to the

defendant/appellant to vacate the suit property. A decree of damages @ Rs.

5000/- per month, along with pendente lite and future interest @ 12% p.a.

RFA 474/2013 & RFA 475/2013 Page 3 of 49

from 01

st

June, 2010 till delivery of possession of the suit property, was

passed in favor of the plaintiff/respondent. A decree for permanent

injunction was also passed in favor of the plaintiff/respondent, thereby,

restraining the defendant/appellant herein from alienating or creating third

party rights with respect to the suit property.

Brief Facts:

3. The factual matrix as canvassed in the appeals, is as follows:

3.1. The appellant, along with his elder brother, i.e., Ladha Ram and other

family members, migrated to India in 1947. As the Hindu Undivided Family

(“HUF”) left all their properties and assets at their ancestral place, the

family was allotted the suit property, by way of an allotment card dated 25

th

June, 1950 under the policy of the Government of India. Pursuant to a

family understanding, a portion of the suit property, constructed in an area of

15’ X 22’ was allotted to the appellant for his residence and for carrying his

business. Thus, the appellant, along with his family, has been in possession

of the said portion of the suit property since the year 1960, and is therefore,

the owner of the said suit property.

3.2. Shri Ladha Ram demised on 25

th

October, 1977 and was survived by his

wife, i.e., Smt. Ram Devi, along with five daughters and two sons.

Thereafter, Smt. Ram Devi also demised on 07

th

January, 1996 and was

survived by five daughters and two sons.

3.3. Subsequently, the respondent herein executed a Will dated 24

th

September, 1996 in favour of the appellant herein. Additionally, an

Agreement dated 24

th

September, 1996 was also executed by the respondent.

Thereafter, on 09

th

July, 2009, the respondent cancelled the said Will dated

24

th

September, 1996 and claimed title and rights over the suit property.

RFA 474/2013 & RFA 475/2013 Page 4 of 49

3.4. Aggrieved by this, the appellant filed a Civil Suit, i.e., CS No. 558/09

for permanent injunction with respect to the suit property on the basis of the

Will and Agreement dated 24

th

September, 1996, wherein, the appellant

prayed for restraining the respondent from illegally and unlawfully

dispossessing the appellant from the suit property.

3.5. Thereafter, the appellant filed an application under Order VI Rule 17

read with Section 151 of the CPC in CS No. 558/09, seeking amendment of

the plaint with the prayer to declare appellant as the owner of the portion of

the suit property under his possession. The said application was dismissed

vide order dated 20

th

April, 2010 in CS No. 558/09, on the grounds that it

would change the nature of the suit. The said suit filed by the appellant was

ultimately dismissed, as the same was not pursued by the appellant.

3.6. Subsequently, in 2010, the respondent herein filed a suit for possession,

mesne profits and permanent injunction with respect to the suit property, on

the grounds of being the exclusive owner of the suit property and having

given the suit property on a license to the appellant.

3.7. In response thereto, the appellant registered the Counter Claim No.

633/10, seeking a declaration that he is the rightful owner of the portion of

the suit property under his possession.

3.8. The Trial Court tried both the suit and the Counter Claim together, and

framed the following issues on 15

th

March, 2011:

―xxx xxx xxx

1. Whether the plaintiff is the owner of suit property i.e. bearing

no. B-25A, Vijay Nagar, Delhi-110009, as shown in red colour in

site plan annexed with the plaint? OPP.

2. Whether the plaintiff is entitled to a decree of possession of the

suit premises as per prayer clause (a) of the plaint? OPP.

RFA 474/2013 & RFA 475/2013 Page 5 of 49

3. Whether the plaintiff is entitled to a decree of recover of arrears

of license fee amounting to Rs. 25,000/- along with pendentelite

and future interest @ 24% p.a. as per prayer clause (b) of the

plaint? OPP.

4. Whether the plaintiff is entitled to a decree to recover

pendentelite and future damages for use and occupation of suit

premises@ Rs.25,000/- per month or at what other rate? OPP

5. Whether the plaintiff is also entitled to recover interest @ 24%

pa. or at what other rate? OPP.

6. Whether the plaintiff is entitled to a decree of permanent

injunction as per prayer clause (e) of the plaint? OPP.

7. Whether the suit is barred by limitation as per PO No. 2 of WS?

OPD.

8. Whether the suit does not disclose any cause of action and is

liable to be rejected tinder Order VII Rule 11 CPC as per PO No. I

of WS? OPD.

9. Whether the defenc1an/counter claimant is entitled to a decree of

declaration as owner of the Suit property? OPD.

10. Relief.

xxx xxx xxx‖

3.9. The Trial Court decreed the suit by granting possession of the suit

property in favor of the respondent, thereby holding that the respondent is

the owner of the suit property. Further, the Trial Court held that execution of

the Agreement dated 24

th

September, 1996 itself demonstrates that the

appellant herein has himself admitted that the respondent is the owner/lessee

of the said property. Had the appellant been the owner of the portion of the

suit property under his possession, he would not have sought permission of

the respondent to allow him to carry on his business in the portion under his

possession, by way of the Agreement dated 24

th

September, 1996. In

addition, the Trial Court also came to the finding that the appellant was

unable to prove the existence of the HUF. The Court held that the appellant

was a licensee in respect of the suit property.

RFA 474/2013 & RFA 475/2013 Page 6 of 49

3.10. Further, a decree of possession and damages @ Rs. 5000/- per month,

along with pendente lite and future interest @ 12% p.a. from 01

st

June, 2010

till delivery of possession of the suit property, was passed in favor of the

plaintiff/respondent.

3.11. In view of the finding that the respondent is the owner of the suit

property and the license in favour of the appellant stands terminated, a

decree for permanent injunction was also passed in favor of the

plaintiff/respondent, thereby, restraining the defendant/appellant from

alienating or creating third party rights with respect to the suit property.

3.12. Further, the Trial Court dismissed the counter claim of the appellant.

However, the Trial Court granted 90 days’ time to the defendant/appellant to

vacate the suit property.

3.13. Aggrieved by the aforesaid findings of the Trial Court, the appellant

herein has filed the present appeals challenging the impugned judgment.

Appellant’s Submissions:

4. The appellant has made the following submissions:

4.1 The Trial Court erroneously rejected the defence of appellant and

Counter Claim on the ground of Res Judicata. The Trial Court did not

decide the suit on merits, nor any issues regarding ownership, were framed

and decided by the Trial Court. Further, for invoking the principles of Res-

Judicata, it is necessary that issues raised in the suit be adjudicated and

decided by the Court on merits.

4.2 The Trial Court erroneously concluded that the appellant has not

proved allotment of the subject property, despite the appellant having

examined the official from Land and Development Office (“L&DO”) and

proving the allotment card. Further, once the allotment card proves that the

RFA 474/2013 & RFA 475/2013 Page 7 of 49

property was allotted to the family which includes the appellant being minor,

and the property being HUF/Joint Hindu Property and appellant having his

title, right and share therein, the Counter Claim ought to have been allowed

and the suit of respondent ought to have been dismissed.

4.3 The suit of the respondent was barred by limitation. Once the

respondent had executed the Will and Agreement dated 24

th

September, 1996

recognising the title and right of the appellant, a Cancellation of Will and

filing of suit for possession after expiry of more than 12 years, is barred

under Section 65 of the Limitation Act, 1963. Further, respondent has

admitted in his evidence that the suit property was given by his father to the

appellant, therefore, the suit filed after 28 years seeking eviction, is also

barred by limitation.

4.4 During the course of arguments, the respondent contended that the

appellant has taken plea of adverse possession and same is destructive to the

plea of ownership. However, the appellant nowhere either in Suit or in the

instant appeal, has taken the plea of adverse possession.

4.5 It is settled law that unless there is a clause for cancellation, a mutual

agreement cannot be cancelled unilaterally by a party and only remedy is to

approach the Court. Further, it is admitted that there is no mutual

cancellation, and the appellant not being a party to purported cancellation of

Agreement dated 24

th

September, 1996, is not required to seek declaration as

the purported cancellation is void, non-est and non-enforceable. Further,

limitation for the same is only for a period of three years under Article 59 of

the Limitation Act, 1963. Therefore, in absence thereof, suit of the

respondent is not maintainable.

RFA 474/2013 & RFA 475/2013 Page 8 of 49

4.6 The suit property was given to the appellant by his brother pursuant to

the oral partition. Further, it is an admitted fact that an Agreement and Will

dated 24

th

September, 1996 was executed by the respondent in favour of the

appellant recognising the appellant’s share in the property. Thus, the said

documents are in recognition of partition and family settlement, which holds

legal sanctity and binds the parties.

4.7 The Trial Court erred in not considering the evidence of material

witnesses, i.e., brother and sister of respondent, on the mere ground that the

said parties do not have a good relation with the respondent, despite the fact

that they had relinquished their share in favour of the respondent.

4.8 Even assuming that the Agreement dated 24

th

September, 1996 is a

License Agreement, there is no clause about revocation, and further the Will

of the same date is also in favour of the appellant. Moreover, the appellant

has a ration card, water bill, license by Municipal Corporation of Delhi

(“MCD”), verification certificate from Government of NCT of Delhi

(“GNCTD”) and house tax receipt in his favour for the subject property,

which prove that the appellant had taken steps for permanent status without

any objection from the respondent.

4.9 The respondent in regard to his ownership relied upon a Conveyance

Deed registered on 08

th

July, 1971. However, a bare perusal of the same

shows that there is no document in favour of the respondent, which is

registered on the said date. Therefore, the respondent has not been able to

prove the ownership over the subject property.

4.10 The respondent has nowhere made the pleading about allotment of the

subject property under settlement of claim and purchase of property, but

clandestinely in its evidence affidavit tendered documents in evidence in

RFA 474/2013 & RFA 475/2013 Page 9 of 49

that regard. As there is no averment regarding the said documents, the same

are beyond the pleadings and cannot be considered by this Court.

4.11 The respondent has claimed that the suit property was given to the

appellant by way of the Agreement dated 24

th

September, 1996. However,

the agreement clearly states that the appellant is already in possession.

Further, the respondent has admitted that the father of the respondent gave

the property to the appellant, therefore, the claim that the property was given

on basis of license is unsustainable.

Respondent’s Submissions:

5. The respondent has made the following submissions:

5.1 The appellant has not been able to prove that the subject property is a

joint property/HUF but has only made bald statements. A bare perusal of the

order dated 07

th

May, 1957 passed by the Settlement Officer which clearly

states that as per the copy of the rough plan produced by Sh. Khota Ram

(cousin of the father of the respondent herein), there is a mention of the

home of Sh. Ladha Ram on the western side of the house claimed by Sh.

Khota Ram making it evidently clear that Sh. Ladha Ram was living in his

own self-acquired property and not an ancestral property even in Pakistan,

and thus the appellant can’t be said to be a coparcener in the property.

Therefore, averments of the appellant, his legal heirs and interested

witnesses should not be taken as evidence, that too in the presence of

concrete documentary proof and evidence produced by the respondent

regarding his legal right, title or interest in the suit property.

5.2 The plea of the appellant that he was a minor at the time of allotment

of property is false, as by way of appellant’s own documents, admissions

and submissions, i.e., Affidavit, Special Power of Attorney, Civil Suit No.

RFA 474/2013 & RFA 475/2013 Page 10 of 49

558/2009 and Discharge Report, it is seen that the appellant must be 18-19

years of age in the year 1947 and 20 years old at the time of allotment in the

year 1950.

5.3 The appellant as well as his legal heirs have themselves pleaded their

case by relying on the Agreement dated 24

th

September, 1996 and have also

admitted the execution and the contents of the said Agreement, registered

Will and Cancellation of Will, the contents of which, specifically state that

the respondent is the owner/lessee of the property. Further, the appellant had

in the said Agreement specifically admitted that the respondent is the

owner/lessee of the said property. Therefore, the appellant is bound by his

own submissions and admissions.

5.4 The case of the appellant relies upon the testimony provided by

interested witnesses, out of which, the brother and sister of respondent

provided their testimony, with whom, the respondent does not share a good

relation. Further, even the Trial Court has reached the conclusion, that the

said witnesses are adversarial interested witnesses and therefore, discarded

their testimony. Further, it is a settled law that the testimonies of the

related/interested witnesses have to be scrutinized with greater care and

circumspection and as such should be analysed with greater caution for its

credibility.

5.5 The appellant has taken mutually destructive pleas, as on the one hand

the appellant has taken a plea of being a coparcener and on the other hand he

has claimed ownership on the basis of adverse possession. Further, the

appellant has relied on the Will as well, therefore, the appellant cannot both

assert ownership independent of the respondent (by adverse possession or as

coparcener) and simultaneously admit respondent’s ownership by admitting

RFA 474/2013 & RFA 475/2013 Page 11 of 49

the Will and License Agreement dated 24

th

September, 1996. Such mutually

destructive pleas are not permissible in a coherent pleading and must be

rejected.

5.6 The appellant had filed the Civil Suit 558/2009. However, during the

course of the suit the appellant attempted to amend the plaint to seek a

prayer for being declared as the owner of the subject property, but the same

was rejected by the Trial Court vide order dated 20

th

April, 2010, which has

never been challenged by the appellant, and has therefore attained finality.

Therefore, appellant is barred by Principles of Estoppel and Res Judicata for

raising the said plea of ownership in a subsequent suit.

5.7 The license given to the appellant to live in the suit property was a

revocable license as it was granted without any interest, and the appellant

had never incurred any expense for construction nor was any license fee

charged by the respondent or his father. Further, the said licence/agreement

clearly mentions that the legal heirs of the appellant will have no right/title

or interest in the said property.

5.8 The respondent seeks mesne profits as the appellant and his legal heirs

have been earning rent from the subject property for the last 12 years.

Proceedings before this Court:

6. Notice was issued in both the present appeals on 04

th

October, 2013.

Vide the same order, the appeals were admitted and this Court directed that

there shall be stay of execution on the impugned judgment and decree dated

16

th

May, 2013, subject to the common appellant depositing the entire

decretal amount towards mesne profits, i.e., with interest till the date of

deposit.

RFA 474/2013 & RFA 475/2013 Page 12 of 49

7. Subsequently, the aforesaid stay was vacated on 24

th

February, 2014,

as the appellant failed to deposit the decretal amount, despite being granted

an extension of time for complying with the directions passed in order dated

04

th

October, 2013. Accordingly, the applications seeking stay in both the

appeals were dismissed on 24

th

February, 2014.

8. Thereafter, again an application was filed by the appellant for stay of

the impugned judgment, whereby, the appellant sought to deposit the up-to-

date interest and costs, in terms of the impugned judgment. Accordingly, this

Court, on 30

th

April, 2014, stayed the operation of the impugned judgment

and decree, subject to aforenoted deposit by the appellant, within one week.

9. Pursuant thereto, the respondent filed an application, i.e., CM APPL.

4099/2015 in the year 2015, seeking release of the decretal amount. The said

application was allowed vide order dated 02

nd

September, 2015, subject to

the respondent furnishing a solvent security. It was also recorded vide order

dated 06

th

October, 2015, that the respondent has failed to furnish the

security, and the matter be placed before the Registrar General in that

regard, when the same has been furnished.

10. Further, on 20

th

November, 2023 and 22

nd

November, 2023, on

account of demise of the appellant on 13

th

September, 2023, the applications

of Legal Representatives (“LRs”) of the deceased appellant, i.e., his widow,

two sons and two daughters were allowed, and they were brought on record.

11. It is noted that subsequently, appellant no. 1(A) and appellant no. 1(D)

had passed away, and this Court, while recording the factum of their death,

had noted that the appeal was capable of being prosecuted by the remaining

surviving appellants. In this regard, the remaining appellants nos. 1(B), (C),

RFA 474/2013 & RFA 475/2013 Page 13 of 49

and (E), stood registered as appellants nos. 1(A), (B) and (C), respectively,

as recorded in the order dated 23

rd

February, 2024, passed in RFA 475/2013.

12. It is further noted that this Court vide order dated 21

st

October, 2024

recorded the statement of the appellant that they are not altering the position

of the suit property.

13. Accordingly, the final arguments were heard by this Court, and the

judgment in the present connected appeals was reserved on 18

th

December,

2025.

Analysis and Findings:

14. I have heard learned counsels for the parties and have perused the

record. By way of the present appeals, the appellant has challenged the

common judgment/decree dated 16

th

May, 2013 passed by the Trial Court,

whereby, the suit filed by the respondent, Civil Suit no. 355/2010, seeking

recovery of possession, mesne profits and permanent injunction in respect of

front portion of the suit property, i.e., property no. B-25A, Vijay Nagar, New

Delhi-110009, measuring 15’ X 22’, was decreed in favor of the respondent.

Further, the Counter Claim filed on behalf of the appellant, Counter Claim

no. 633/2010, seeking declaration as regards ownership in the suit property,

was dismissed.

15. Civil Suit no. 355/2010 was filed by the respondent herein, claiming

himself to be the absolute owner of the suit property. In response, the

appellant herein filed the Counter Claim no. 633/2010, claiming to be the

owner of the front portion of the suit property.

16. As regards the claim of the respondent herein as plaintiff in the suit,

for ownership of the suit property, the Trial Court had framed issue nos. 1, 2

and 6 in relation thereto, which read as under:

RFA 474/2013 & RFA 475/2013 Page 14 of 49

―xxx xxx xxx

21. From the pleadings of the parties and documents on record,

following issues were framed on 15.03.2011 :-

1. Whether the plaintiff is the owner of suit property i.e. bearing no. B-

25A, Vijay Nagar, Delhi-110009, as shown in red colour in site plan

annexed with the plaint? OPP.

2. Whether the plaintiff is entitled to a decree of possession of the suit

premises as per prayer clause (a) of the plaint? OPP.

xxx xxx xxx

6. Whether the plaintiff is entitled to a decree of permanent injunction

as per prayer clause (e) of the plaint? OPP.

xxx xxx xxx‖

17. The appellant, as defendant in the suit, raised the objection that the

suit did not disclose any cause of action and was liable to be rejected. While

raising this objection, the appellant herein claimed right and title over the

suit property. Further, the appellant also filed the Counter Claim claiming

ownership over the suit property. Thus, in this regard issue nos. 8 and 9 were

framed by the Trial Court and onus of proving the said issues was laid upon

the appellant herein. The said issue nos. 8 and 9, are extracted as below:

―xxx xxx xxx

8. Whether the suit does not disclose any cause of action and is liable to

be rejected under Order VII Rule 11 CPC as per PO No. 1 of WS? OPD.

9. Whether the defendant/counter claimant is entitled to a decree of

declaration as owner of the suit property? OPD.

xxx xxx xxx‖

18. Regarding the issue of ownership of the suit property, the facts and

documents on record point out as to how the said property came to be in

possession of the parties. On the basis of the facts, evidence and documents

on record, it is established that the deceased father of the respondent,

namely, Shri Ladha Ram along with his wife and two children, migrated to

India in the year 1947 at the time of partition of the country. The younger

RFA 474/2013 & RFA 475/2013 Page 15 of 49

brother, i.e., appellant herein, and sister of the deceased father of respondent,

also migrated to India and they all resided in the same tent, i.e., Tent No. 40.

19. Thereafter, as per the scheme of Government, allotment of quarters

was being made on rental basis. Thus, in the year 1950, father of the

respondent, Shri Ladha Ram also got allotted one quarter purely on rental

basis, i.e., the suit property vide allotment card dated 25

th

June, 1950.

Subsequently, in the year 1957, the father of the respondent, Shri Ladha

Ram applied to the Ministry of Rehabilitation to purchase the suit property.

Thus, letter dated 30

th

September, 1957 was issued by the Ministry of

Rehabilitation, Government of India, wherein, documents viz. original

allotment letter, rent receipt, ground rent receipts, water charges receipts,

etc. were directed to be deposited by a stipulated date.

20. Subsequently, upon the completion of the various formalities,

including, deposit of full amount towards purchase of the suit property, a

Perpetual Lease Deed dated 21

st

June, 1971 was registered in the name of

father of the respondent, Shri Ladha Ram on 08

th

July, 1971. Thus, it is

apparent that father of the respondent, Shri Ladha Ram became the absolute

owner of the suit property upon execution of the said Perpetual Lease Deed

in his favour.

21. The allotment letter/card dated 25

th

June, 1950, Ex. DW6/A, issued

initially for occupation of the suit property, conferred only the right to reside

in the suit property upon payment of rent. The said allotment letter did not

confer any right or title over the suit property and that the possession in the

suit property, pursuant to the allotment letter, was only in the nature of a

tenant, for which rent was to be paid to the Government. Accordingly, the

mere fact that name of the appellant was also reflected in the said allotment

RFA 474/2013 & RFA 475/2013 Page 16 of 49

letter, does not inure to the benefit of the appellant in any manner, as the said

allotment letter did not create any proprietary right over the suit property.

22. It was only upon the option given by the Government for purchase of

the suit property and upon deposit of the requisite documents and the

purchase amount, that proprietary rights were conferred qua the suit

property. Before conferment of the proprietary right qua the suit property

upon father of the respondent, Shri Ladha Ram, the suit property vested in

the Government, for occupation of which, rent was payable to the

Government. Mere issuance of allotment letter did not create any proprietary

right in the suit property. Therefore, the appellant cannot seek to secure any

right in his favour in respect of the suit property on the basis of his name

being reflected in the allotment letter.

23. It is to be noted that Shri Ladha Ram who deceased intestate on 25

th

October, 1977, was survived by seven children and his wife. Upon the death

of his wife, Smt. Ram Devi on 07

th

January, 1996, the seven children

became the only legal heirs of Late Shri Ladha Ram. Subsequently, the other

six legal heirs/children of Shri Ladha Ram, relinquished and released their

right, title, interest and share in the suit property in favour of the respondent

herein vide Release Deed dated 14

th

August, 1996, Ex. PW1/3.

24. This Court also notes that the suit property was converted into

freehold and vide Conveyance Deed dated 25

th

August, 1999, Ex. PW1/2, the

suit property was registered in the name of Shri Parveen Chawla, the

respondent herein. Accordingly, the respondent became the absolute and

registered owner of the suit property.

25. It is also relevant to note that the Conveyance Deed dated 25

th

August,

1999, Ex. PW1/2, executed in favour of the respondent clearly mentions that

RFA 474/2013 & RFA 475/2013 Page 17 of 49

no person had objected to the mutation/substitution of the name of the

lessee, i.e., the respondent. Thus, it is clear that the appellant who was in

occupation of some portion of the suit property did not challenge the

execution of Conveyance Deed in favour of the respondent.

26. The contention of the appellant that ownership of the respondent is

not proved is wholly unpersuasive. The Conveyance Deed dated 25

th

August, 1999, Ex. PW1/2, categorically makes reference to the Perpetual

Lease Deed dated 21

st

June, 1971 registered on 08

th

July, 1971, in favour of

late Shri Ladha Ram. Furthermore, once a Conveyance Deed has been

validly registered by the Government, no reference to any prior Lease Deed

is required to be done. Even otherwise, the appellant has not challenged the

Conveyance Deed dated 25

th

August, 1999 in favour of the respondent,

which is a legal and valid ownership document in favour of the respondent.

The plea of admissibility of the document, Ex. PW-1/1 has been taken by the

appellant only now. The objection of the appellant is to the mode of proof of

the document, which cannot be entertained at this stage. Even otherwise, a

licensee is estopped from questioning the title of the owner, i.e., respondent

in the present case. It is pertinent to note that the Conveyance Deed in

favour of the respondent dated 25

th

August, 1999, has been duly exhibited as

Ex. PW-1/2. It is settled law that registered title documents have a

presumption of validity attached to it (See: Prem Singh and Others Versus

Birbal and Others, (2006) 5 SCC 353, Para 27). Therefore, the contention

of the appellant in this regard is totally baseless and is hereby rejected.

27. From the facts on record, it is established that the deceased appellant

was in occupation of front portion of the suit property admeasuring 15’ x

22’. After securing full right over the suit property, the respondent executed

RFA 474/2013 & RFA 475/2013 Page 18 of 49

an Agreement dated 24

th

September, 1996, Ex. PW1/5, in favour of the

deceased appellant, wherein the deceased appellant, being uncle of the

respondent, was allowed to stay/occupy the said portion of the suit property,

during his lifetime. Further, it was clearly mentioned in the said Agreement

that the legal heirs of the deceased appellant will have no right, title or

interest in the said portion of the suit property after the death of the

appellant. The said Agreement dated 24

th

September, 1996, Ex. PW1/5, as

also Ex. DW1/3, is reproduced as under:

―xxx xxx xxx

‗AGREEMENT‘

THIS AGREEMENT is made at Delhi, on this 24

th

Day of September

1996, BETWEEN Shri Parveen Chawla son of Late Shri Ladha Ram

resident of B-25A, Vijay Nager, Delhi, hereinafter called the FIRST

PARTY…..AND…..Shri Kalyan Dass son of Late Shri Gela Ram

resident of B-25A, Vijay Nagar, Delhi, hereinafter called the SECOND

PARTY.

The expressions of the first party and the second party shall

mean and include the parties, their respective heirs, successors,

executors, administrators, legal representatives and assignees.

THAT WHEREAS the first party is the owner/lessee of Property

bearing No. B-25A, area measuring 100 Sq.Yds., situated at Vijay

Nagar, Delhi, by virtue of Release Deed registered as Document No.

6471, in Additional Book No. I, Volume No. 7300, on pages 171 to

174, dated 14.8.1996, with the office of the Sub-Registrar, Sub-

District No. I, Delhi.

AND WHEREAS the second party is in possession of front

portion measuring 15‘ x 22‘ of the said property.

THAT the second party will not sell or transfer the said portion

of the property in any manner to any outsider, if the second party

leaves the possession of the said portion of the property then he shall

hand over the possession of the property to the first party. The legal

heirs of the second party shall have no right title or interest in the

said portion of the property after the death of second party.

This agreement is final and binding of both of the parties.

xxx xxx xxx‖

RFA 474/2013 & RFA 475/2013 Page 19 of 49

(Emphasis Supplied)

28. The aforesaid Agreement dated 24

th

September, 1996 categorically

states that the respondent herein is the owner of the suit property by virtue of

the Release Deed dated 14

th

August, 1996. Further, in the Agreement it is

clearly stipulated that the deceased appellant will not sell or transfer the

front portion of the suit property occupied by him, in any manner to any

outsider. The aforesaid Agreement stipulates in categorical terms that the

legal heirs of the deceased appellant shall have no right, title or interest in

the said portion of the suit property, after the death of the appellant.

29. Further, a Will dated 24

th

September, 1996, Ex. PW1/4, as also Ex.

DW1/4, was also made by the respondent in favour of the deceased

appellant. The said Will dated 24

th

September, 1996 is extracted as below:

―xxx xxx xxx

THIS IS THE FIRST AND FINAL WILL AND TENTAMENT of Shri

Parveen Chawla son of Late Shri Ladha Ram resident of B-25A, Vijay

Nagar, Delhi, made at Delhi on this 24

th

day of Sept. 1996.

Life is uncertain and evanescent nobody knows when one's end

may come, I, therefore made this WILL in my perfect state of health

and sound disposing mind without the pressure or persuation of

anybody.

I hereby bequeath that after my death all my rights, title and interests

Front portion measuring 15‘ x 22‘ of property bearing No. B-25A with

its leasehold rights, situated at Vijay Nagar, Delhi, and bounded as

under-

NORTH: Property No. B-25B. SOUTHs Property No. B-24B.

EAST: Remaining part of West: Road.

The said P.No.B-25A.

should go and devolve upon Shri Kalyan Dass son of Late Shri Gela

Ram resident of B-25A, Vijay Nagar, Delhi, to the exclusion of any of

my heirs or successors.

Nobody should challenge this WILL and if anybody does so the

same should be treated as Null Void Ineffective and Inoperative. This

RFA 474/2013 & RFA 475/2013 Page 20 of 49

WILL embodying my last wishes should be given effect strictly in

terms laid down herein.

In witness whereof this WILL is made at Delhi on the day of the

month and year first above written, in presence of the following

witnesses.

WITNESSES.

xxx xxx xxx‖

30. The aforesaid Agreement dated 24

th

September, 1996 and the Will of

the same date, i.e., dated 24

th

September, 1996, have been duly admitted by

the deceased appellant. Reference in this regard may be made to the

Evidence by way of Affidavit, Ex. DW-1/A of deceased appellant, as DW-1,

relevant portions of which is reproduced as under:

―xxx xxx xxx

7. That the defendant and his son is residing and doing his aforesaid

business in the property in dispute as per mutual understanding

between Late Sh. Ladha Ram and the defendant which is duly

recognized by the plaintiff and in this regard he has executed the

agreement as well as the Will. Now the plaintiff has been dishonest

and wants to dispossess the defendant from the front portion of the

property bearing No. 25-A, Single Storey, Vijay Nagar, Delhi, which

shall be hereinafter referred as a disputed property.

8. That after the demise of Late Sh. Ladha Ram, the plaintiff being a

son and in occupation of the remaining portion of the said and also

recognized the right and occupation of the deponent over his portion

has executed an agreement on 24

th

September, 1996 in Delhi and

recognized the possession of the plaintiff in an front portion of the

said joint property and allowed to carry on his business in the said

portion and deponent was also residing in the said portion after

partition till the date as he was owner of the 1/2 share of the allotted

property. The agreement dated 24.09.1996 is already exhibit in the

court of Sh. V.K. Jha, Civil Judge, Delhi and the photocopy of the

same are marked as DW-1/3.

xxx xxx xxx‖

(Emphasis Supplied)

31. The aforesaid documents viz. Agreement and Will dated 24

th

September, 1996 were relied upon by the deceased appellant as DW-1 during

RFA 474/2013 & RFA 475/2013 Page 21 of 49

the course of his examination-in-chief and the same were exhibited as Ex.

DW1/3 and Ex. DW1/4, respectively. The examination-in-chief of deceased

appellant as DW-1, is reproduced as under:

―DWI, Sh. Kalyan Dass recalled for further examination in chief (in

continuation to earlier statement dated 24.05.2012).

On S.A.

I also rely upon documents which are exhibited as Exs. DW1/l to

DW1/8. Documents Ex. DW1/l is the certified copy of site plan. Ex.

DW1/2 is the certified copy of Spl. Power of Attorney. Ex. DW1/3 is

the certified copy of Agreement dated 24.09.1996. Ex. DW1/4 is the

certified copy of Will dated 24.09.1996. Ex. DW1/5 (colly) are the

certified copies of my ration card and voter card. Ex. DW1/6 (colly -

2) are the certified copy of water connection bills. Ex. DWI/7 is the

certified copy of license issued by MCD. Ex. DW 1/8 is the certified

copy of Certificate of Verification issued by GNCTD.

xxx xxx xxx‖

(Emphasis Supplied)

32. It is also to be noted that during his cross examination, the deceased

appellant categorically admitted that he was residing in the suit property

only on the basis of document Ex. DW1/3, i.e., the Agreement dated 24

th

September, 1996. Further, the appellant also admitted that the suit property

was allotted to the father of the respondent herein. Relevant portions of the

cross examination of the deceased appellant, are reproduced as under:

―xxx xxx xxx

XXXXXXXX by Sh. A.P. Dubey, Counsel for plaintiff.

It is wrong to suggest that in Government records, plaintiff is the

owner of property bearing no. B-25-A, Single Storey, Vijay Nagar,

Deihi-110009. It is correct that the document Ex. DW1/3 bears my

signatures at point X & Y. It is correct that since the plaintiff

became owner of property bearing no. B-25-A, Single Storey, Vijay

Nagar, Delhi- 110009, I am residing at that property only on the

basis of document Ex. DW1/3.

I reached India after partition on 02.12.1947. It is correct that after

coming India, I resided at tents at Kingsway Camp, Delhi-110009. It

RFA 474/2013 & RFA 475/2013 Page 22 of 49

is correct that the property bearing no. B-25-A, Single Storey, Vijay

Nagar, Delhi- 110009, was allotted to father of the plaintiff……..

xxx xxx xxx‖

(Emphasis Supplied)

33. Likewise, son of the deceased appellant, i.e., Gulshan Kumar, as DW-

2, in his Evidence by way of Affidavit, Ex. DW-2/A, while admitting that the

respondent allowed the appellant to carry on the business in the front portion

of the suit property, stated as follows:

―xxx xxx xxx

9. That after the demises of Late Sh. Ladha Ram, the plaintiff being a

son and in occupation of the remaining portion of the said property

and also recognized the right and occupation of the defendant over his

portion has executed an agreement on 24.09.1996 in Delhi and

recognized the possession of the defendant in the front portion of the

said joint property and allowed to carry the business in the said

portion. The defendant was also residing in the said portion after

partition till the date of filing of the suit. The agreement dated

24.09.1996 is already on record.

10. That the plaintiff also executed a registered Will in favour of the

defendant regarding the said portion in which the defendant is

residing and doing his business. The defendant shall have all rights

over the property after the demise of the plaintiff. The Will is already

on record. It is submitted that the plaintiff has cancelled the Will

with his malafide intention and ulterior motive and the deponent has

only knowledge after receiving the legal notice, however, the suit was

filed prior to receiving the notice.

xxx xxx xxx‖

(Emphasis Supplied)

34. In his cross examination, DW-2, son of the deceased appellant has

admitted that the suit property was in the name of Parveen Chawla, i.e.,

respondent herein and that his father, i.e., the deceased appellant, entered in

an Agreement dated 24

th

September, 1996 with the respondent. The relevant

portion of the cross examination of DW-2, is extracted as below:

―DW-2: Sh. Gulshan Kumar (Recalled for cross-examination in

continuation of earlier statement dated 24.05.2012).

RFA 474/2013 & RFA 475/2013 Page 23 of 49

On SA

XXXXXX By Sh. A.P. Dubey, counsel for plaintiff.

It is correct that the suit property is in the name of Sh. Parveen

Chawla (sic), plaintiff. It is correct that my father, who is defendant

in this case, entered in an agreement dated 24.09.1996 with plaintiff.

I do not know whether the legal notice dated 03.05.2010 was received

by my father or not. It is incorrect that Ex.PW-1/14 bears my

signatures. It is correct that I and defendant resides under address

mentioned in Ex.PW-1/11. It is correct that if anybody wants to send a

letter to me or defendant,

he will send on the address mentioned in Ex.PW- 1/11 which is the

copy of legal notice. It is correct that defendant did not file any reply

to that legal notice Ex.PW- 1/11. Vol. same are not received by me

and defendant.

xxx xxx xxx

(Emphasis Supplied)

35. From the aforesaid, it is manifest that the deceased appellant as well

as son of the appellant, deposing as DW-1 and DW-2 respectively, have

unequivocally acknowledged the execution of the Agreement and Will dated

24

th

September, 1996. As noted above, the Agreement dated 24

th

September,

1996 explicitly stated that the respondent herein was the owner of the suit

property. Further, the fact that the Will dated 24

th

September, 1996 was

executed by the respondent in favour of deceased appellant and the said Will

has been admitted by the deceased appellant as well as his son, evidences

the fact of ownership of the respondent in the suit property. It is res integra

that a will would be executed only by owner of a property and having

admitted the said will, the deceased appellant as well as his son, have clearly

recognized and admitted to the ownership of the respondent in the suit

property. Thus, admission of the aforesaid documents and their execution

thereof, is a clear indication to the recognition of the ownership of the

respondent in the suit property.

RFA 474/2013 & RFA 475/2013 Page 24 of 49

36. Further, it is also to be noted that an earlier suit filed by the deceased

appellant, i.e., Civil Suit No. 558/2009 was premised on the aforesaid

Agreement and Will dated 24

th

September, 1996. The relevant portions of

the plaint in Civil Suit No. 558/2009, filed by the deceased appellant, are

extracted as below:

―xxx xxx xxx

5. That after the demises of late Sh. Ladha Ram, the Defendant being

a son and in occupation of the remaining portion of the said and also

recognized the right and occupation of the Plaintiff over his portion

has executed an agreement on 24

th

September,1996 in Delhi and

recognized the possession of the plaintiff in an front portion of the

said property and allowed to carry on his business in the said portion

and Plaintiff was also residing in the said portion after partition till

the date of filing of suit. Photostat copy of the agreement is attached

herewith and marked as Annexure P-3.

6. That the Defendant also executed a registered Will in favour of

the plaintiff regarding the said portion in which the Plaintiff is

residing and doing his business.

xxx xxx xxx‖

(Emphasis Supplied)

37. Further, it is also to be noted that the said suit was filed by the

deceased appellant claiming only right of possession and averring that the

respondent herein had no right to dispossess the deceased appellant from the

property without due process of law. Para 15 of the plaint in Civil Suit No.

558/2009, filed by the deceased appellant, reads as under:

―xxx xxx xxx

15. That the Plaintiff and his son is in occupation of the disputed

property from the very beginning without any interruption for and on

behalf of Sh. Ladha Ram and after his demise, his son Defendant. The

Plaintiff is in possession and occupation of the disputed property,

therefore, the plaintiff has right, title and interest over the said

property to continue in possession and the Defendant has no legal

RFA 474/2013 & RFA 475/2013 Page 25 of 49

rights to evict dispossessing (sic) him from the property in question

in any manner without any due process of law.

xxx xxx xxx‖

(Emphasis Supplied)

38. At this stage, it is also worth mentioning that while deciding the plea

of the deceased appellant herein regarding ownership over the suit property,

the Trial Court relied upon an order dated 20

th

April, 2010 in the earlier suit

filed by the appellant herein, i.e., Civil Suit No. 558/2009. The said suit had

been filed by the appellant for restraining the respondent herein from

illegally and unlawfully dispossessing the appellant from the suit property.

Subsequently, the appellant sought to amend the said suit seeking

declaration as owner of the suit property under his possession. Vide the

aforesaid order dated 20

th

April, 2010 passed in Civil Suit No. 558/2009, the

application of the appellant was dismissed, thereby, holding that the

appellant as plaintiff in the said suit, cannot be allowed to change the nature

of the suit by claiming the ownership right instead of the possessory rights

as claimed earlier.

39. Considering the fact that no appeal was filed against the aforesaid

order dated 20

th

April, 2010, the Trial Court held that the said order had

attained finality. On the said basis, it was held that the plea of the appellant

herein regarding ownership was barred by Principles of Res Judicata.

40. In this regard, this Court notes that the aforesaid suit was not pressed

by the appellant and was not pursued thereafter. As regards the order dated

20

th

April, 2010, the said order merely dismissed the application of the

deceased appellant for amendment of the plaint on the ground that the

deceased appellant, as the plaintiff therein, cannot be allowed to change the

nature of the suit by claiming ownership right, instead of possessory rights

RFA 474/2013 & RFA 475/2013 Page 26 of 49

as claimed in the suit. However, there was no finding by the Court in the

said suit, i.e., Civil Suit No. 558/2009, regarding the claim of ownership in

the suit property by the deceased appellant. Therefore, the finding of the

learned Trial Court that the aforesaid order dated 20

th

April, 2010 in Civil

Suit No. 558/2009, operated as Res Judicata, cannot be accepted.

41. However, on the basis of documents and evidence on record, the

ownership of the respondent in the suit property has been established.

42. Further, this Court notes that the appellant herein was unable to prove

that the suit property was a joint property of an HUF. It is no longer res

integra that burden to prove that a property is a joint property of an HUF, is

on the person who asserts the same. In this regard, reference may be made to

the judgment of the Supreme Court in the case of Bhagwat Sharan Versus

Purushottam and Others, (2020) 6 SCC 387, wherein, it has been held as

follows:

―xxx xxx xxx

10. At the outset we may note that a lot of arguments were addressed

and judgments were cited on the attributes of HUF and the manner in

which it can be constituted. In view of the facts narrated above, in our

view, a large number of these arguments and citations need not be

considered. The law is well settled that the burden is on the person

who alleges that the property is a joint property of an HUF to prove

the same. Reference in this behalf may be made to the judgments of

this Court in Bhagwan Dayal v. Reoti Devi [Bhagwan Dayal v. Reoti

Devi, AIR 1962 SC 287]. Both the parties have placed reliance on this

judgment. In this case, this Court held that the general principle is

that a Hindu family is presumed to be joint unless the contrary is

proved. It was further held that where one of the coparceners

separated himself from other members of the joint family there was no

presumption that the rest of coparceners continued to constitute a joint

family. However, it was also held that at the same time there is no

presumption that because one member of the family has separated, the

rest of the family is no longer a joint family. However, it is important

to note that this Court in Bhagwati Prasad Sah v. Dulhin Rameshwari

RFA 474/2013 & RFA 475/2013 Page 27 of 49

Kuer [Bhagwati Prasad Sah v. Dulhin Rameshwari Kuer, 1951 SCC

486 : 1951 SCR 603] , it held as follows : (SCC p. 491, para 10)

―10. … Except in the case of reunion, the mere fact that

separated coparceners chose to live together or act jointly for

purposes of business or trade or in their dealings with

properties, would not give them the status of coparceners under

the Mitakshara law.‖

11. The Privy Council in Randhi Appalaswami v. Randhi

Suryanarayanamurti [Randhi Appalaswami v. Randhi

Suryanarayanamurti, 1947 SCC OnLine PC 42 : ILR 1948 Mad 440]

held as follows : (SCC OnLine PC)

―… The Hindu law upon this aspect of the case is well settled.

Proof of the existence of a joint family does not lead to the

presumption that property held by any member of the family is

joint, and the burden rests upon anyone asserting that any

item of property was joint to establish the fact. But where it is

established that the family possessed some joint property which

from its nature and relative value may have formed the nucleus

from which the property in question may have been acquired,

the burden shifts to the party alleging self-acquisition to

establish affirmatively that the property was acquired without

the aid of the joint family property.‖

12. In D.S. Lakshmaiah v. L. Balasubramanyam [D.S.

Lakshmaiah v. L. Balasubramanyam, (2003) 10 SCC 310] this Court

held as follows : (D.S. Lakshmaiah case [D.S. Lakshmaiah v. L.

Balasubramanyam, (2003) 10 SCC 310] , SCC p. 317, para 18)

―18. The legal principle, therefore, is that there is no

presumption of a property being joint family property only on

account of existence of a joint Hindu family. The one who

asserts has to prove that the property is a joint family property.

If, however, the person so asserting proves that there was

nucleus with which the joint family property could be

acquired, there would be presumption of the property being

joint and the onus would shift on the person who claims it to

be self-acquired property to prove that he purchased the

property with his own funds and not out of joint family

nucleus that was available.‖

Similar view was taken in Rukhmabai v. Lala

Laxminarayan [Rukhmabai v. Lala Laxminarayan, (1960) 2 SCR 253 :

AIR 1960 SC 335] and Appasaheb Peerappa Chamdgade v. Devendra

Peerappa Chamdgade [Appasaheb Peerappa Chamdgade v. Devendra

RFA 474/2013 & RFA 475/2013 Page 28 of 49

Peerappa Chamdgade, (2007) 1 SCC 521]. The law is thus well

settled that the burden lies upon the person who alleges the

existence of the Hindu Undivided Family to prove the same.

xxx xxx xxx

21. An admission made by a party is only a piece of evidence and not

conclusive proof of what is stated therein. It is in this light that we

have to examine the admission made by Hari Ram and his brothers

while filing the written statement to the suit filed by Seth Budhmal. In

Para 6, the averment was that the defendants constituted trading joint

Hindu family. It is obvious that the admission was with regard to a

trading family and not HUF. In view of the law cited above, it is clear

that not only jointness of the family has to be proved but burden lies

upon the person alleging existence of a joint family to prove that the

property belongs to the joint Hindu family unless there is material on

record to show that the property is the nucleus of the joint Hindu

family or that it was purchased through funds coming out of this

nucleus. In our opinion, this has not been proved in the present case.

Merely because the business is joint would not raise the presumption

that there is a joint Hindu family. As far as Para 8 is concerned, in our

view, there is no clear-cut admission. The allegation made was that

the minors were represented by Defendants 1 to 3, who were head of

their respective branches. In reply to this it was stated that Defendants

1 to 3 were neither the head or the karta, nor was the mortgage

transaction made in that capacity. This admission cannot be said to be

an unequivocal admission of there being a joint family.

xxx xxx xxx‖

(Emphasis Supplied)

43. In the present case, apart from bald and verbal averments made by the

appellant regarding status of the suit property as an HUF, there is no material

on record to prove that the suit property is an HUF property.

44. The appellant additionally contends that since he was a minor at the

time of allotment of property, the said property was allotted in the name of

father of respondent being the Karta of HUF. However, as noted

hereinabove, the allotment card, Ex. DW-6/A, in no way conferred

ownership on any person. The father of the respondent later purchased the

suit property from the Government of India, upon which, Perpetual Lease

RFA 474/2013 & RFA 475/2013 Page 29 of 49

Deed dated 21

st

June, 1971 was executed in favour of the father of the

respondent, Shri Ladha Ram and was registered on 08

th

July, 1971. Further,

as noted above, subsequently a Conveyance Deed dated 25

th

August, 1999

was executed in favour of the respondent. Thus, the plea of the appellant to

claim ownership in the suit property claiming the same to be HUF by relying

upon the allotment card, is liable to be rejected.

45. Reliance by the appellant on the testimony of witnesses, DW-3 and

DW-4, who are the siblings of the respondent herein, to submit that the suit

property was a joint property, again, cannot be accepted and has rightly been

rejected by the learned Trial Court as interested witnesses. It has come on

record that the respondent and the said siblings of the respondent are not in

talking terms with each other since last many years. DW-3, brother of

respondent and DW-4, sister of respondent, have categorically deposed in

their respective cross-examination that they are not in talking terms with the

respondent. Further, DW-3 has stated that his affidavit was prepared by the

counsel for the appellant herein at the instance of the appellant, which is a

pointer to the fact that DW-3 is an interested witness and his testimony has

rightly been discarded by the Trial Court. The cross-examination of DW-3

and DW-4, in this regard is reproduced as under:

―xxx xxx xxx

DW3, Sb. S.K. Chawla, s/o Late Sh. Lada Ram, aged 63 years, r/o Rites

Flats, C/4/3, Ashok Vihar, Phase-3, Delhi - 110052.

xxx xxx xxx

It is correct that since then I and the plaintiff are not in talking terms.

It is wrong to suggest that as the relation between me and the plaintiff is

not good, so I have come to the Court today to depose against him. It is

correct that my affidavit is prepared by the Counsel for the defendant

on the instance of defendant……

xxx xxx xxx

RFA 474/2013 & RFA 475/2013 Page 30 of 49

DW4, Mrs. Sudershan Gambhir, w/o Sh. Vinod Gambhir, aged 58 years,

r/o Flat No. 95, Ramprastha Green, Sector-7, Vaishali, Ghaziabad, UP.

xxx xxx xxx

It is correct that Sh. Praveen Chawla is my real brother. I am not on

talking terms with Praveen Chawla for the last about 2 years. It is

wrong to suggest that as my relations with my brother are strained and

that is why I have come to depose as a false witness. It is wrong to

suggest that I am deposing falsely and that my affidavit is false.

xxx xxx xxx‖

(Emphasis Supplied)

46. It is settled law that testimonies of the related/interested witnesses

have to be scrutinized with greater care and circumspection and as such have

to be analyzed with greater caution for its credibility. Thus, the Supreme

Court in the case of Mohd. Jabbar Ali and Others Versus State of Assam,

(2023) 19 SCC 672, has held as follows:

―xxx xxx xxx

49. It is noted that great weight has been attached to the testimonies of

the witnesses in the instant case. Having regard to the aforesaid fact

that this Court has examined the credibility of the witnesses to rule

out any tainted evidence given in the court of law. It was contended by

the learned counsel for the appellant that the prosecution failed to

examine any independent witnesses in the present case and that the

witnesses were related to each other. This Court in a number of cases

has had the opportunity to consider the said aspect of

related/interested/partisan witnesses and the credibility of such

witnesses. This Court is conscious of the well-settled principle that

just because the witnesses are related/interested/partisan witnesses,

their testimonies cannot be disregarded, however, it is also true that

when the witnesses are related/interested, their testimonies have to be

scrutinised with greater care and circumspection. In Gangadhar

Behera v. State of Orissa [Gangadhar Behera v. State of Orissa, (2002)

8 SCC 381 : 2003 SCC (Cri) 32], this Court held that the testimony of

such related witnesses should be analysed with caution for its

credibility.

50. In Raju v. State of T.N. [Raju v. State of T.N., (2012) 12 SCC 701 :

(2012) 4 SCC (Cri) 184], this Court observed: (SCC pp. 709-10, para

29)

RFA 474/2013 & RFA 475/2013 Page 31 of 49

―29. The sum and substance is that the evidence of a related or

interested witness should be meticulously and carefully

examined. In a case where the related and interested witness

may have some enmity with the assailant, the bar would need

to be raised and the evidence of the witness would have to be

examined by applying a standard of discerning scrutiny.

However, this is only a rule of prudence and not one of law, as

held in Dalip Singh [Dalip Singh v. State of Punjab, (1953) 2

SCC 36 : AIR 1953 SC 364] and pithily reiterated in Sarwan

Singh [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 :

1976 SCC (Cri) 646] in the following words : (Sarwan Singh

case [Sarwan Singh v. State of Punjab, (1976) 4 SCC 369 : 1976

SCC (Cri) 646] , p. 376, para 10)

‗10. … The evidence of an interested witness does not

suffer from any infirmity as such, but the courts require as a rule

of prudence, not as a rule of law, that the evidence of such

witnesses should be scrutinised with a little care. Once that

approach is made and the court is satisfied that the evidence of

interested witnesses have a ring of truth such evidence could be

relied upon even without corroboration.‘ ‖

xxx xxx xxx

52. It is thus settled that the evidence of the related witnesses have to

be considered by applying discerning scrutiny. ………….

xxx xxx xxx‖

(Emphasis Supplied)

47. It is also relevant to note that there are inherent contradictions in the

statement of DW-3. On the one hand DW-3 stated in the affidavit that the

suit property is a joint family property. On the other hand, DW-3 has stated

that the said property was allotted in the name of Sh. Ladha Ram under

settlement claim which later devolved on the legal heirs of Sh. Ladha Ram.

The relevant portion of the deposition of DW-3 in this regard, is reproduced

as under:

―xxx xxx xxx

It is correct that the suit property was allotted to my father under

settlement claim. It is correct that after death of our father Late Sh.

Ladha Ram, my mother became owner of the suit property and

subsequently, the suit property was devolved upon legal heirs of Sh.

Ladha Ram i.e. Smt. Ram Pyari, Sh. S.K. Chawla, Smt. Sudershan

RFA 474/2013 & RFA 475/2013 Page 32 of 49

Gambhir, Smt. Kanchan Dhingra, Smt. Neeru, Smt. Manju and the

plaintiff. There was an agreement between the plaintiff and defendant

which is Ex. PW1/5 and I was a witness in that agreement. It is incorrect

that in Ex. PW 1/5, it is written that the defendant only has right to reside

in the part portion of the suit property and he has to hand over the same

to the plaintiff as and when demanded.

xxx xxx xxx‖

(Emphasis Supplied)

48. Furthermore, during cross-examination, DW-3 himself admitted to the

fact that the suit property was allotted to the father of the respondent and

that the same devolved upon various legal heirs of Late Sh. Ladha Ram.

Therefore, the statement of DW-3 in the affidavit that the suit property was a

joint property, or an HUF property, was not established during the course of

evidence of the said witness. Rather the said witness deposed to the contrary,

which defeats the case as set up in the evidence affidavit by the said witness.

49. Further, the said witnesses, i.e., DW-3 and DW-4 admitted that they

along with other legal heirs of Late Sh. Ladha Ram, i.e., father of the

respondent and the said witnesses, had relinquished their respective share in

favour of the respondent herein. Thus, it is established that the respondent

herein exclusively had right over the suit property, as other legal heirs of

Late Sh. Ladha Ram had relinquished their respective shares in favour of

respondent herein.

50. Once, on the basis of the documents and evidence on record, it is

established that the respondent is the owner of the suit property, no right can

be claimed by the appellant through the Will and Agreement dated 24

th

September, 1996 executed by the respondent in favour of the appellant,

since the said documents already stand cancelled/revoked by the respondent.

51. It is clear and settled position of law that a Will qua a property can

only be made by the owner of the property. Since the appellant has admitted

RFA 474/2013 & RFA 475/2013 Page 33 of 49

the Will, the same connotes the admission of the appellant to the ownership

of the respondent in the suit property. Even otherwise, a Will does not come

into effect during the lifetime of the maker, and in the present case the maker

of the Will, i.e., the respondent, is still alive. The appellant, in whose favour

the said Will was made has already expired. Further, the said Will already

stands cancelled on 08

th

July, 2009, Ex. PW-1/9. Therefore, no right can be

said to flow in favour of the appellant from the said Will.

52. As regards the Agreement dated 29

th

September, 1996, Exhibit PW

1/5, the said Agreement itself recognized the respondent herein as the owner

of the property. Besides, the said Agreement already stands revoked by the

respondent. The appellant has disputed the status of the said Agreement as

license, on the ground that the respondent has admitted that his father had

given the suit property to the appellant. However, the said contention

advanced by the appellant is fundamentally flawed. As noted hereinabove,

the appellant has been unable to establish that the suit property was a joint or

HUF property and has been unable to establish his title over the suit

property. Rather, by admitting and relying upon the said Agreement dated

24

th

September, 1996, the appellant has recognized the ownership of the

respondent, as the said Agreement clearly states the respondent herein to be

the owner of the suit property.

53. The terms of the Agreement dated 24

th

September, 1996, Ex. PW-1/5,

explicitly set forth the status of ownership and possession of the parties in

the suit property. The condition enumerated in the said Agreement is that the

appellant as a second party, if vacates the suit property, has to handover the

premises to the respondent herein, i.e., the first party in the said Agreement.

Further, the Agreement clearly stipulated that in the event of the death of the

RFA 474/2013 & RFA 475/2013 Page 34 of 49

appellant, there would be no right, title or interest of the LRs of the appellant

in the suit property, and the possession would be handed over to the

respondent.

54. With regard to the Agreement dated 24

th

September, 1996, it was the

case of the respondent that the said Agreement was a License Agreement,

and therefore, rights inured under the same allowed for the respondent to

revoke the license granted to the appellant in the suit property. This

submission of the respondent was accepted by the Trial Court.

55. In contrast, the appellant had contended that even if it is assumed that

the Agreement dated 24

th

September, 1996 was a License Agreement, the

same was irrevocable. For this purpose, the appellant pleaded that there was

a Will of the same date in his favour and that the appellant had taken steps

for permanent status of the said license on account of ration card, water bill,

license by MCD, certificate of verification by GNCTD and house tax receipt

in his favour. Thus, it is contended that once there is document to transfer,

i.e., Will in favour of the appellant and no objection by respondent in

procuring the aforesaid documents, the same proves that the License

Agreement was irrevocable.

56. The aforesaid submissions raised by the appellant claiming the

License Agreement to be irrevocable, are liable to be rejected. The claim of

the appellant regarding transfer of interest in the property in his favour on

account of the Will dated 24

th

September, 1996 is entirely without merit. As

noted hereinabove, the said Will already stands cancelled by way of Deed of

Cancellation of Will dated 08

th

July, 2009, i.e., Exhibit PW 1/9. Thus, no

transfer can be said to have been effected in favour of the appellant. Even

otherwise, as noted above, a Will comes into operation only after the demise

RFA 474/2013 & RFA 475/2013 Page 35 of 49

of the maker of the Will. However, in the present case, the maker of the

Will, i.e., the respondent, is alive, while the beneficiary of the Will, i.e., the

appellant, has already expired. Besides, the ownership of the respondent in

the suit property stands established, while the appellant has been unable to

establish his right over the property in the absence of any evidence or

document to suggest that the suit property was a joint property. Therefore,

the said contention of the appellant does not hold water.

57. It is pertinent to note that the Agreement dated 24

th

September, 1996

only allows for the appellant to occupy a portion of the subject premises.

The said Agreement clearly envisages that no right, title or interest is given

to the appellant or his legal heirs, but merely permission to allow for

occupation of a part of the suit property during the lifetime of the appellant.

There is clear provision in the said Agreement that the occupation of a part

of the suit property was subjected to the condition stipulated in the said

Agreement, i.e., in the scenario of death of the appellant or if the appellant

vacates the property, then the possession was to be handed back over to the

respondent. Therefore, in these circumstances it cannot be said that the

agreement in question created an irrevocable license in favour of the

appellant.

58. At this stage, this Court finds it appropriate to make reference to the

judgment of Supreme Court in the case of Pradeep Oil Corporation Versus

Municipal Corporation of Delhi and Another, (2011) 5 SCC 270, wherein,

the Supreme Court discussed the characteristics of a license. The relevant

portions of the said judgment are reproduced as under:

―xxx xxx xxx

RFA 474/2013 & RFA 475/2013 Page 36 of 49

13. A licence may be created on deal or parole and it would be

revocable. However, when it is accompanied with a grant it becomes

irrevocable. A mere licence does not create an interest in the property to

which it relates. A licence may be personal or contractual. A licence

without the grant creates a right in the licensor to enter into a land and

enjoy it.

xxx xxx xxx

16. It is quite clear that the distinction between lease and licence is

marked by the last clause of Section 52 of the Easements Act as by

reason of a licence, no estate or interest in the property is created.

xxx xxx xxx

18. A licence, inter alia, (a) is not assignable; (b) does not entitle the

licensee to sue the stranger in his own name; (c) it is revocable and (d)

it is determined when the grantor makes subsequent assignment. The

rights and obligations of the lessor as contained in the Transfer of

Property Act, 1882 are also subject to a contract to the contrary. Even

the right of assignment of leasehold property may be curtailed by an

agreement.

xxx xxx xxx

28. Similarly, in Vayallakath Muhammedkutty v. Illikkal Moosakutty

[(1996) 9 SCC 382 : JT (1996) 6 SC 665] where the defendant was given

exclusive possession of the disputed premises for running a hotel but was

not given the permission to sub-lease the property, the document was

held to be a licence: (SCC pp. 386-87, para 9)

―9. … this Court has indicated that for a consideration as to

whether a document creates a licence or lease, the substance of the

document must be preferred to the form. It is not correct to say that

exclusive possession of a party is irrelevant, but at the same time it

is also not conclusive. The other tests, namely, intention of the

parties and whether the document creates any interest in the

property or not, are important considerations.‖

xxx xxx xxx

30. In Swarn Singh v. Madan Singh [1995 Supp (1) SCC 306] it was

held: (SCC pp. 307-08, paras 3-4)

―3. On a careful consideration of the above arguments, we feel

that there is no substance in any one of them. To our mind it is

very clear that the right granted under the above document is

nothing but a licence. Our reasons are as under:

RFA 474/2013 & RFA 475/2013 Page 37 of 49

(1) the nomenclature of the document is licence. Of course, we

hasten to add that nomenclature is not always conclusive;

(2) the document in question in no unambiguous terms says

that the possession and control shall remain with the owner.

This is a clear indication of the fact that no interest in

immovable property has been conferred on the grantee. If it

were to be a case of lease under Section 105 of the Transfer of

Property Act, there must be an interest in the immovable

property. On the contrary, if it were to be a licence under

Section 52 of the Easements Act, no such interest in

immovable property is created. The case on hand is one of

such.

xxx xxx xxx

31. In Lilawati H. Hiranandani v. Usha Tandon [1995 Supp (4) SCC 158

: AIR 1996 SC 441] an assignment made to the effect that the owner

permitted the licensee to occupy a portion with no right or interest

created in his favour and also undertaken to vacate the premises within

one month, was held to be a case of licence.

xxx xxx xxx

32. In view of the aforesaid well-settled legal position, whether a

particular document will constitute ―lease‖ or ―licence‖ would inter alia

depend upon certain factors which can be summarised as follows:

(a) whether a document creates a licence or lease, the substance

of the document must be preferred to the form;

(b) the real test is the intention of the parties—whether they

intended to create a lease or a licence;

(c) if the document creates an interest in the property, it is a lease;

but if it only permits another to make use of the property, of which the

legal possession continues with the owner, it is a licence; and

(d) if under the document a party gets exclusive possession of the

property, prima facie, he is considered to be a tenant; but circumstances

may be established which negative the intention to create a lease.

xxx xxx xxx‖

(Emphasis Supplied)

59. Considering the law laid down by the Supreme Court in the aforesaid

judgment and considering the covenants of the Agreement dated 24

th

RFA 474/2013 & RFA 475/2013 Page 38 of 49

September, 1996, it is manifest that the said Agreement was in the nature of

a license, which was revocable. The License Agreement dated 24

th

September, 1996 was not an irrevocable license, as the intention of the

parties is clearly evident from the terms of the Agreement, and the same did

not create any interest in favour of the appellant in the property.

60. The Supreme Court in the case of Yazdani International Private

Limited Versus Auroglobal Comtrade Private Limited and Others, (2014) 2

SCC 657, has held that a license does not transfer any interest in the

property and the grantor of the license can revoke the same at his will. The

relevant portions of the aforesaid judgment are extracted as follows:

―xxx xxx xxx

43. As rightly pointed out by Shri Nariman, a licence by definition

does not create any interest in the property. A licence only gives a

right to use the immovable property of the grantor, to the grantee.

There is no transfer of any interest in such property in favour of the

grantee. On the other hand, under the Transfer of Property Act, an

interest either limited or unlimited is created in favour of the

transferee depending upon the nature of the transfer (sale, mortgage

or lease, etc.). Under Section 60, a licence is revocable at the will of

the grantor which is the essence of a licence. The Easements Act

categorically declares that a licence can be revoked by the grantor

except in the two contingencies specified under Sections 60(a) and

(b). No such exceptions are pleaded or demonstrated by the

appellants. Therefore, it must be held that none of the appellants

have any indefeasible right of renewal either under the Easements

Act or under the abovementioned policy.

xxx xxx xxx‖

(Emphasis Supplied)

61. Likewise, this Court in the case of Planet M Retail Ltd. Versus Select

Infrastructure Pvt. Ltd., 2014 SCC OnLine Del 4869, held that a license

does not create any interest in the property, and merely permits the licensee

to use the property. Therefore, the legal possession of the property still vests

with the licensor. Thus, it was held as follows:

RFA 474/2013 & RFA 475/2013 Page 39 of 49

―xxx xxx xxx

….. … ….

26. The nature of occupancy is clearly permissive. In fact it does

not amount to possession at all. The relationship between the

plaintiff and the defendant in terms of the compromise decree

was that of Licensor and licensee and not Lessor and Lessee.

The plaintiff had use of the two rooms under a license. A license

does not create any interest in the property. It merely permits

another person to make use of the property. There is no

parting with possession as the legal possession continues with

the owner (licensor). In C.M. Beena v. P.N. Ramachandra Rao,

III (2004) SLT 36 = II (2004) CLT 112 (SC) = (2004) 3 SCC

595, the Supreme Court held: -

―Only a right to use the property in a particular way or

under certain terms given to the occupant while the owner

retains the control or possession over the premises results in a

license being created; for the owner retains legal possession

while all that the licensee gets is a permission to use the

premises for a particular purpose or in a particular manner

and but for the permission so given the occupation would have

been unlawful (see Associated Hotels of India Ltd. v. R.N.

Kapoor, AIR 1959 SC 1262).‖

What is meant by parting with legal possession has been

explained by the Supreme Court in the context of sub-letting in

the case of Delhi Stationers and Printers v. Rajendra

Kumar, (1990) 2 SCC 331 (paragraph 5) in the following words:

-

―Parting of the legal possession means possession with

the right to include and also a right to exclude others. Mere

occupation is not sufficient to infer either subtenancy or

parting with possession.‖

xxx xxx xxx

33. From the above case laws, it, therefore, is apparent that under the

licence, the licensee is only given the permission to use the property in a

particular way and that after the termination of the licence, the licensee

has no right to continue in the said premises and that the possession of

the said premises all along remain with the licensor.

xxx xxx xxx‖

(Emphasis Supplied)

62. In the present case, the appellant has been in possession of the suit

property, wherein, the License Agreement clearly envisaged that the

RFA 474/2013 & RFA 475/2013 Page 40 of 49

occupation of part of the property by the appellant, was permissible only

during his lifetime, and after the death of the appellant, his legal heirs had no

right in the suit property and the possession of the same was to be returned

to the respondent. Thus, it is apparent that the License Agreement merely

allowed the appellant to occupy the premises, and there was no grant of any

interest in the suit property. As noted above the Will dated 24

th

September,

1996 executed by the respondent in favour of the appellant already stands

revoked. Accordingly, the Agreement dated 24

th

September, 1996 was a

License Agreement and the same was revocable, which already stands

revoked by the respondent. Thus, the appellant cannot seek any right in the

suit property on the basis of the Agreement and the Will dated 24

th

September, 1996.

63. Considering the aforesaid discussion, it stands established that the

Agreement dated 24

th

September, 1996 was a revocable License Agreement.

Thus, the contention of the appellant that the same was a mutual agreement

which could not have been cancelled unilaterally by a party, is erroneous and

is accordingly rejected.

64. In view of the clear finding on the basis of the evidence and

documents on record that the suit property is owned by the respondent and

in the absence of any evidence that the suit property was a joint property, the

plea of the appellant regarding oral partition and family settlement, cannot

be accepted, and the same is also rejected. In the absence of the appellant

establishing his right, title and interest over the property, the plea regarding

any oral partition and family settlement, cannot be entertained.

65. Another plea raised by the appellant is that the suit filed by the

respondent was barred by limitation. In this regard, it is to be noted that the

RFA 474/2013 & RFA 475/2013 Page 41 of 49

respondent cancelled his Will dated 24

th

September, 1996 executed in favour

of the appellant, vide Deed of Cancellation of Will dated 08

th

July, 2009,

Exhibit PW 1/9. Further, the respondent also sent notice dated 03

rd

May,

2010, Exhibit PW 1/11, thereby, cancelling the license of the appellant and

requesting the appellant to handover the legal peaceful possession of the

property to the respondent. Since the appellant refused to hand over the

possession of the part of the suit property occupied by him, the respondent

filed the Civil Suit in the year 2010 for possession, mesne profits, damages

and permanent injunction.

66. Merely because the appellant had been allowed to occupy the property

by father of the respondent earlier, in no way affected the right of the

respondent to file the suit in the year 2010. In this regard, it is to be noted

that by virtue of the Perpetual Lease Deed dated 21

st

June, 1971, registered

on 08

th

July, 1971, Shri Ladha Ram, father of the respondent became

absolute owner of the suit property. Shri Ladha Ram died intestate on 25

th

October, 1977 leaving behind his wife and seven children, including, the

respondent herein. The mother of the respondent died on 07

th

January, 1996

and the suit property devolved upon the seven legal heirs, i.e., the children

of Shri Ladha Ram, including, the respondent herein. As established by way

of evidence, all the other six legal heirs voluntarily and with free will,

relinquished and released their right, title, interest and share in the property

in favour of the respondent vide Release Deed dated 14

th

August, 1996,

Exhibit PW 1/3.

67. Thereafter, the suit property was converted into freehold vide

Conveyance Deed dated 25

th

August, 1999, Exhibit PW 1/2, and the property

got registered in the name of the respondent herein. Thus, the respondent

RFA 474/2013 & RFA 475/2013 Page 42 of 49

became the absolute and registered owner of the suit property. After

becoming the sole and absolute owner, the respondent executed a License

Agreement dated 24

th

September, 1996, Exhibit PW 1/5; Exhibit DW 1/3.

The said License Agreement clearly stated the respondent to be the owner of

the suit property and the deceased appellant was allowed to occupy front

portion of the suit property for his lifetime. A Will dated 24

th

September,

1996, Exhibit PW 1/4; Exhibit DW 1/4, was also executed by the respondent

in favour of the deceased appellant.

68. However, the Will dated 24

th

September, 1996 was cancelled on 08

th

July, 2009. As regards the License Agreement dated 24

th

September, 1996

the same was revoked vide notice dated 03

rd

May, 2010, Exhibit PW 1/11,

thereby, requesting the appellant to handover the portion of the suit property

occupied by him. Since the appellant did not comply with the said request,

suit came to be filed by the respondent in the year 2010.

69. Considering the aforesaid facts and circumstances, it cannot be said

that the suit was barred by limitation, as the cause of action for filing the suit

arose in the year 2009, when the Will was cancelled on 08

th

July, 2009.

Cause of action in favour of the respondent for filing the suit further arose in

the year 2010 when the respondent revoked the License Agreement dated

24

th

September, 1996 vide notice dated 03

rd

May, 2010, Exhibit PW 1/11.

Thus, the suit having been filed by the respondent in the year 2010, was well

within limitation. The plea of the appellant in this regard is accordingly

rejected.

70. Reliance by the appellant on Section 29 of The Displaced Persons

(Compensation and Rehabilitation) Act, 1954 (“Displaced Persons Act”) is

also misplaced. The suit property is not an evacuee property. As held in the

RFA 474/2013 & RFA 475/2013 Page 43 of 49

case of Jagmohan Lal & Ors. Versus Harkishan Lal, 1994 SCC OnLine

Del 171, a person who was a tenant under the custodian of evacuee property

which ultimately formed part of the compensation pool or was an allottee

thereof under the Evacuee Property Act, would be covered under Section 29

of the Displaced Persons Act. Thus, in the said case, it was held as follows:

―xxx xxx xxx

20. Another submission by the defendants and yet again in the

alternative was that since the defendants were in lawful occupation

of the suit property and on its transfer to the plaintiff, the defendants

will be protected under section 29 of the Act from dispossession. This

section 29, so far as it is relevant, is as under:—

―29. Special protection from ejectment to certain classes of

persons.—

(1) Where any person to whom the provisions of this section apply, is

in lawful possession of any immovable property of the class notified

under sub-section (2), which is transferred to another person under

the provisions of this Act, then, notwithstanding anything contained

in any other law, such person shall, without prejudice to any other

right which he may have in the property, be deemed to be a tenant of

the transferee on the same terms and conditions as to payment of

rent or otherwise on which he held the property immediately before

the transfer:

Provided……..

(2) The Central Government may, from time to time by notification

in the Official Gazette, specify the class of persons to whom, and the

class of immovable property in the compensation pool, other than

agricultural land, in respect of which, the provisions of this section

shall apply and in issuing any such notification the Central

Government shall have regard to the following matters, that is to

say,-

(a) the length of the period for which any such persons may have

been in lawful possession of the property;

(b) the difficulty of obtaining alternative accommodation;

(c) the availability of any other suitable residential accommodation

for the use of the transferee; and

(d) such other matters as may be prescribed.

RFA 474/2013 & RFA 475/2013 Page 44 of 49

From this section one thing is quite clear that the transferee of

immovable property from the compensation pool constituted under

section 14 of the Act cannot proceed against the lawful occupant

unless perpetual lease deed and conveyance deed have been

executed in his favour. Moreover, the lawful occupant has to be of

the authorities appointed under the Act to manage the properties in

the compensation pool. That is not the case here. The defendants, as

noted above, have claimed that their predecessor Mela Ram was

licensee of the plaintiff. We have not been shown by the defendants

any notification issued under sub-section (2) of section 29 of the Act

by the Central Government for us to hold otherwise. Mr. Aggarwal

referred to a decision of the Punjab and Haryana High Court in Kesar

Das v. Jatsa Ram, (1967) Vol. 69 P.L.R. 499. We are afraid this

judgment does not help the defendants at all. In this case it was held

that a person who was a tenant under the custodian of evacuee

property which ultimately formed part of the compensation pool, or

was an allottee thereof under the Evacuee Property Act, would be

covered under section 29 of the Act. The suit property was not an

evacuee property. It was built by the Central Government for the

purpose of granting rehabilitation relief to the displaced persons

who had migrated from Pakistan and formed part of the

compensation pool. It was a Government built property. It is not the

case of the defendants that they were either the tenants or the

licensees under the Act.

xxx xxx xxx‖

(Emphasis Supplied)

71. Reliance by the appellant on Article 59 of the Limitation Act, 1963, is

again misplaced, as the said Article pertains to limitation for filing of suit for

cancellation of an instrument and creates no bar in cancellation of an

instrument executed by a party. When a license has been acquired for an

agreed term, the same would not affect the right of the licensor to revoke it

at any time, where it is only a bare license. In this regard, the findings of the

learned Trial Court are reproduced as under:

―xxx xxx xxx

57. It is a case where I have to keep in mind that here the

plaintiff and before that his father held the land. They continued

to have an interest in the subject matter of the contract. It is well

settled preposition that the fixing of tenure of license by contract,

RFA 474/2013 & RFA 475/2013 Page 45 of 49

does not make the license irrevocable. It can still be revoked by

the licensee/guarantor. In that event, guarantee at best can be

entitled to recovery of compensation. The plaintiff has not taken

the plea in the pleadings or otherwise in the arguments that he is

permanent licensee, therefore, cannot be evicted from the Suit

property. Though it is apparent from the document Ex. PW1/5, the

position is different, It is fact that when a license has been

acquired for an agreed term that would not affect the right of the

licensor to revoke it at any time where it is only a bare license. In

the present case, it is fact that the plaintiff or before that his

father had not charged any fees or rent from the defendant and

they had only given the possession of the suit property to the

defendant. Ex. PW1/5 demonstrates that only possession was

given to the defendant of the built up portion which was nothing

but a bare license to use and occupy the suit premises on license

basis. A license to occupy the existing house is only a bare

license which can be revoked at the will of the licensor. It is not a

case that the defendant had built the house under a grant of land

to him. It was a case where the defendant has a possession of

built up portion, it is nothing but a bare license which can be

revoked at the will of the licensor i.e. the plaintiff, hence, the

defendant has no valid defence to the suit. Even otherwise, in

order to claim benefits of Sec. 60(a), the license should relate to

the property of the licensor and it should also enable the licensee

to secure a transfer of the property of the licensor from out of that

property to enter upon which the license was granted. There is no

force in the contention of Counsel for the defendant/counter

claimant that the plaintiff is not entitled for the relief of possession,

in view of above discussions. There is also no force in the

contention of Counsel for the defendant that the property in

question is an HUF property and the defendant is the co-owner

thereof, in view of above discussions. In view of the later

execution of Ex. PW1/6, the status of the defendant is nothing

but a bare licensee. It is a well settled proposition of law that

there are no provisions under the law for issuance of any notice

as in the case of leases before a license, can be revoked.

However, in this case, the plaintiff has proved the legal notice as

Ex. PW1/11, its UPC receipt as Ex. PW1/12, AD receipt as Ex.

PW1/13 and AD card as Ex. PW1/14.

xxx xxx xxx‖

(Emphasis Supplied)

72. Considering the detailed discussion hereinabove, no merit is found in

the present appeal.

RFA 474/2013 & RFA 475/2013 Page 46 of 49

73. This Court also takes note of the submission made by respondent that

the suit property is situated in a commercial area in the heart of North Delhi,

near the North Campus of University of Delhi. It is the case of the

respondent that the appellant, by subletting the property to third parties for

running commercial establishment, has earned hefty amounts. Thus, the

respondent has claimed enhanced mesne profits for the period from passing

of the impugned judgment dated 16

th

May, 2013 till date, over and above the

damages of Rs. 5000/- per month that has been allowed by the Trial Court.

74. In this regard, it is to be noted that though averments regarding

enhanced mesne profits and damages have been made by the respondent,

there is no evidence that has been led by the respondent, nor any document

has been placed before this Court, on the basis of which enhanced mesne

profits could be granted to the respondent, by calculating prevailing market

rate of rent in the same locality in respect of similar portions. In this regard,

reference is made to the case of Sarvinder Singh and Ors. Versus Vipul

Tandon, MANU/DE/5067/2025, wherein this Court has held as follows:

―xxx xxx xxx

21. Section 2(12) of Code of Civil Procedure, 1908 defines mesne

profits which reads as under:-

"Section 2(12) "mesne profits" of property means those profits

which the person in wrongful possession of such property

actually received or might with ordinary diligence have received

therefrom, together with interest on such profits, but shall not

include profits due to improvements made by the person in

wrongful possession."

22. The Madras High Court in Ramakka v. V. Negasam,

MANU/TN/0241/1923, has held that:

"On the second point, I am of opinion that the Commissioner

and the District Judge were in error in requiring the plaintiff to

open her case. Order XVIII, rule 1, Civil Procedure Code, which

is applicable to miscellaneous proceedings through section 141,

RFA 474/2013 & RFA 475/2013 Page 47 of 49

lays down that the plaintiff has the right to begin unless the

defendant admits the facts alleged by the plaintiff. In a case like

the present, where the fourth defendant is the person claiming

mesne profits, he is in the position of a plaintiff, as it is his

petition, that is the foundation of the proceedings and, if he

adduces no evidence at all, no mesne profits can be awarded to

him. Section 2, clause (12) defines mesne profits as those

profits which a person in wrongful possession of such property

actually _ received or might, with ordinary diligence, have

received. The profit which a person actually received is a

matter within the peculiar knowledge of that person and,

under section 106 of the Evidence Act, the burden of proving

the amounts actually received will lie on the person who

received them; but the burden of proving the profits that the

person in occupation might have received will lie on the

person who claims them ..."

(emphasis supplied)

23. The landlord is entitled to the mesne profits against a tenant who

continues to stay in the tenanted premises after the termination of the

tenancy. It is now well accepted that the amount which a landlord is

entitled to receive on the termination of tenancy is the amount which

the premises can fetch if let out on rent during the period of its illegal

occupation by the tenant.

24. The rent which the premises can fetch during the period of the

illegal occupation by the erstwhile tenant is a fact which can be

easily demonstrated in a suit for possession and mesne profits

against the tenants by leading evidence. In the present case, the

Plaintiffs have not led any evidence with respect to rent of similar

premises within the locality.

25. The Plaintiffs in this case are claiming mesne profit from the date

of filing of suit, i.e., 06.08.2015 till possession, i.e., 17.07.2018, at the

rate of Rs.2,00,000/- per month along with interest @ 15% p.a. It is an

admitted position that the probate of Will was not granted in favour of

the Defendant, and therefore, the Defendant is not the owner of the

said premises. It is also admitted that Plaintiffs are Class-I heirs of the

owner of the property. However, the Plaintiffs in the present case

have not presented any evidence to show that the said amount of

mesne profits claimed is as per the prevailing market rate of rent in

the same locality in respect of similar portions.

26. Mere guess work cannot be used for ascertaining the rent. This

Court cannot make a guess work in thin air. Guess work cannot take

the form of evidence. Coming to a figure which might be the rent of

RFA 474/2013 & RFA 475/2013 Page 48 of 49

the area on its own without any material is not permissible in law.

Thus, in the absence of any evidence, either oral or documentary,

this Court is not in a position to calculate any mesne profits.

27. This Court is of the opinion that, in the absence of any evidence

to ascertain the mesne profit, it cannot calculate the amount to be

awarded as mesne profit on its own. Therefore, the claim of mesne

profits cannot be granted.

xxx xxx xxx‖

(Emphasis Supplied)

75. Consequently, in the absence of any evidence to ascertain mesne

profits, this Court cannot make any calculations towards the mesne profits to

be granted in favour of the respondent. Accordingly, the respondent is

granted liberty to initiate appropriate legal proceedings for seeking mesne

profits from the appellant for the period from passing of the impugned

judgment dated 16

th

May, 2013, till handing over of the possession of the

suit property to the respondent.

76. The suit was decreed by the Trial Court in favour of the respondent,

thereby, granting possession of the suit property in favour of the respondent.

Accordingly, the appellant is directed to forthwith handover the portion of

the suit property occupied by him, to the respondent.

77. The respondent has further been held entitled to a decree of damages

@ Rs. 5,000/- per month along with pendente lite and future interest @ 12%

per annum from 01

st

June, 2010, till delivery of possession of the suit

property to the respondent. Pursuant to directions of this Court, decretal

amount along with interest up to the date of deposit, has been deposited by

the appellant, with this Court. Though vide order dated 02

nd

September,

2015, directions were issued to release the decretal amount in favour of the

respondent subject to furnishing a solvent security, in the absence of

RFA 474/2013 & RFA 475/2013 Page 49 of 49

furnishing such security by the respondent, the said amount continues to lie

deposited with this Court.

78. Accordingly, the decretal amount along with the interest accrued shall

be released in favour of the respondent.

79. The present appeals are accordingly dismissed, with the aforesaid

directions.

80. The pending applications also stand disposed of.

MINI PUSHKARNA

(JUDGE)

JANUARY 12, 2026

KR/AU/AK/SK