RFA 393/2026 Page 1 of 16

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on 13

th

July, 2026

Pronounced on: 28

th

September, 2026

Uploaded on: 28

th

September, 2026

# CNR No. DLHC010170072026

+ RFA 393/2026

SH. GOPAL GUPTA

S/o Late Sh. Shiv Dayal

R/o H.No.417, Pocket-D-16,

Sector-7, Rohini, Delhi-110085.

Also at:

SH. GOPAL GUPTA

Proprietor of M/s Gupta Stores,

B-4A/3, Rana Pratap Bagh,

Delhi-110007.

.....Appellant

Through: Ms. Seema Tiwari, Advocate.

versus

SH. MAHAVIR PRASAD

S/o Late Sh. Bishambar Dayal

R/o B-4A/3, Rana Pratap Bagh,

Delhi-110007.

.....Respondent

Through:

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

RFA 393/2026 Page 2 of 16

1. The present Regular First Appeal, under Section 96 read with

Order XLI Rule 1 of the Code of Civil Procedure, 1908 (hereinafter

referred to as “CPC”), assails the Judgment and Decree dated 07.02.2026

passed by the learned District Judge, Delhi, whereby the CS-DJ/1149/2023

of the plaintiff for Declaration of Ownership in respect of a shop forming

part of property bearing No. B-4A/3, Rana Pratap Bagh, Delhi (hereinafter

referred to as the “suit shop”) and a Permanent Injunction, was rejected

under Order VII Rule 11 CPC.

2. The facts, as stated in the Plaint, are that the Appellant/Plaintiff, Sh.

Gopal Gupta, and the Respondent/Defendant, Sh. Mahavir Prasad, are

cousins and grandsons of Late Sh. Roop Ram. The Plaintiff is carrying on

business under the name and style of M/s Gupta Stores, from the suit shop

situated on the ground floor of the aforesaid property.

3. The Plaintiff stated that, under the Will dated 28.02.1964 executed by

Late Sh. Jai Narain, his mother, Smt. Kesar Devi, and Smt. Jarawali Devi,

wife of Late Sh. Jai Narain, together owned two-thirds of property bearing

No. B-4A/3, Rana Pratap Bagh, Delhi. Smt. Revati Devi, wife of late Sh.

Bishambar Dayal, was the owner of the remaining one-third share in the

property in question.

4. He asserted that he was a co-owner through his mother until October

1992 and according to him, the original Will was in the possession of the

Defendant.

5. A Partition Deed dated 19.10.1992 was executed amongst Smt.

Revati Devi, wife of late Sh. Bishambar Dayal and Smt. Jarawali Devi,

mother of the Defendant, and Smt. Kesar Devi. The Deed divided the

RFA 393/2026 Page 3 of 16

property measuring 213.3 square yards; the front portion fell to the share of

Smt. Revati Devi, while the rear portion was allotted jointly to Smt. Jarawali

Devi and Smt. Kesar Devi.

6. The Plaintiff had further averred that he was the youngest among his

cousins and had been kept unaware of his asserted share in the property. His

father had died in 1982 and his mother, Smt. Kesar Devi, on 16.02.1993.

According to him, the family had given him the suit shop in 1990, when he

was about 17 years of age, as his share and as a source of livelihood. He had

accepted the small shop, to avoid discord in the family.

7. It was further stated that, over time, the Plaintiff’s elder brother, Late

Sh. Mani Ram Gupta, and the Defendant sought to deprive Smt. Jarawali

Devi and the other co-sharers of their respective interests. Smt. Jarawali

Devi had resided with the Plaintiff until her demise on 08.01.2008.

Whenever the Plaintiff sought his share in the property, the Defendant and

his elder brother would rebuke him, by saying: “Faltu Kamo Mei Dhyan

Mat De, Tujhe Dukan De Rakhi Hei, Tu Use Chala, Aur Bado Ke Beech

Mei Dakhalndaji Karna Band Kar.”

8. The Plaintiff had also pleaded that, upon learning of The Partition In

October 1992, He Told Smt. Revati Devi In November 1992: “Tai Aage Ka

Hissa To Tere Pass Hei, Lekin Dukan Khali Na Karunga, Dukan To Meri

Roz-Roti Hei.” According to him, she replied: “Dukan To Bhai Teri Hei,

Koi Na Khali Karwa Raha Tujhse, Bol Kaha Gutha Lagaun, Mahre Pass

Birla Mill Wali Dukan Hein, Yo To Tere Vaste Hi Kholi Thi.” The

Defendant then stated: “Bhai Tu Sabse Chhota Hei, Lekin Maa Ne Tujhe

To Dukan Ka Malik Bana Diya.”

RFA 393/2026 Page 4 of 16

9. It was the Plaintiff’s case that neither Smt. Revati Devi nor the

Defendant had asked him to vacate the suit shop after execution of the

Partition Deed, and that the Deed contained no stipulation treating him as a

tenant. He claimed that an oral family arrangement in 1990, had made him

the absolute owner of the suit shop. He further asserted that his possession

had become open, hostile and uninterrupted from November 1992, and that

the suit shop remained the source of livelihood for him and his family.

10. The Plaintiff had stated that the Defendant issued a Legal Notice

dated 28.01.2022 seeking possession of the suit shop and rent for the period

from January 2019 to January 2022, while alleging that rent had remained

unpaid since January 2004. By reply dated 05.02.2022, the Plaintiff denied

the existence of any landlord-tenant relationship. He also asserted that the

Notice did not disclose when he had allegedly been inducted as a tenant,

whereas the Defendant’s Eviction Petition referred to an alleged tenancy

commencing about 25 years earlier, without specifying the initial rate of

rent.

11. The Plaintiff had further stated that the Defendant instituted an RC-

ARC/133/2022 (E-29/2022) Eviction Petition under Section 14(1)(e) of the

Delhi Rent Control Act, 1958 The Plaintiff’s Application for Leave to

Defend was allowed by Order dated 17.07.2023, and the Petition was

pending before the learned Rent Controller. The Defendant had also filed

another RC-ARC/311/2022 Eviction Petition under Section 14(1)(a) of the

Act.

12. According to the Plaintiff, he had been running the suit shop without

interference, until 16.06.2022. Since September 2002, he had been using

RFA 393/2026 Page 5 of 16

commercial electricity connection bearing CA No. 60004014738, which

stood in the Defendant’s name. As the relations between the parties were

cordial, he had not sought a connection in his own name and had paid the

electricity charges, according to his consumption. Prior to September 2002,

he had used electricity through connection bearing CA No. 60008200770,

on a sharing basis.

13. It was alleged that, during the pendency of the Eviction Petition, the

Defendant got the commercial meter removed on 16.06.2022 through

TPDDL personnel, thereby disrupting the electricity supply to the suit shop.

The Plaintiff claimed that the Defendant threatened to remove him from the

shop and that his requests for restoration of the connection went unheeded.

14. Consequently, the Plaintiff instituted CS/SCJ/1728/2022, seeking

Mandatory and Permanent Injunctions. Vide Order dated 27.08.2022, the

learned Civil Judge directed restoration of the electricity supply, which was

restored on 27.11.2022. The Defendant’s Appeal, RCA/137/2022, was

dismissed on 13.04.2023.

15. The Plaintiff, in the present suit, has sought a Declaration that he had

become the owner of the suit shop by adverse possession, and Permanent

Injunction for restraining the Defendant and persons claiming through him,

from forcibly dispossessing him. In support of his claim, he relied upon

Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729; Gurtej Singh v.

Zora Singh (Dead) through LRs, Civil Appeal No. 8424/2009, decided on

26.02.2020; Des Raj v. Bhagat Ram, (2007) 9 SCC 641; and Nair Service

Society v. K.C. Alexander, AIR 1968 SC 1165.

RFA 393/2026 Page 6 of 16

16. In the Written Statement, the Defendant raised preliminary

objections of concealment of material facts, non-payment of rent and

absence of a cause of action. He asserted that he was the owner of the suit

shop; that the Plaintiff was his tenant, and that the suit was barred under

Section 50 of the Delhi Rent Control Act.

17. The Defendant alleged that, before execution of the Partition Deed

dated 19.10.1992, the Plaintiff had executed a registered Relinquishment

Deed dated 15.10.1992 in favour of his mother, Smt. Kesar Devi. He further

relied upon a registered Sale Deed dated 06.12.1995, stated to have been

executed by the Plaintiff and other co-sharers, in favour of Smt. Saroj Goel,

for a consideration of Rs.2,60,000/-. According to the Defendant, the

Plaintiff had thereby acknowledged the Defendant’s exclusive rights over

the property.

18. The Defendant also relied upon rent counterfoils which, according to

him, bore the Plaintiff’s signatures and acknowledged rent @ Rs.500/- per

month. He claimed that the tenancy had commenced about 26 years earlier

and that the Plaintiff had been using the electricity connection in the

Defendant’s name, with the permission of the Defendant’s mother.

19. The Defendant further contended that the Suit was barred under

Order II Rule 2 CPC, as the Plaintiff could have sought the reliefs claimed

herein in the earlier suit, CS/SCJ/1728/2022, titled Gopal Gupta v. Mahavir

Prasad. In the said suit, the Plaintiff had sought restoration of the electricity

connection and an Injunction against interference with his use and

enjoyment of the suit shop.

RFA 393/2026 Page 7 of 16

20. The Defendant also objected that the site plan did not disclose the

dimensions of the suit shop and that the Suit is hit by Order VII Rule 3

CPC. Also, the requisite court fee had not been paid. It was also contended

that the Plaint had not been properly verified, in accordance with Order VI

Rule 15 CPC.

21. It was further contended, that the oral family arrangement could not

prevail over the registered documents, reliance is placed on Abhishek Gupta

v. Shashi Kumar Shukla, 283 (2021) DLT 183, wherein it was held that a

written document shall prevail over oral contentions.

22. It was asserted that specific allegations have been made against his

brother Mani Ram Gupta, though he has not been impleaded as a party,

rendering the Suit liable for rejection, on account of non-joinder of

necessary parties.

23. It was contended that the Plaintiff had not challenged the

Relinquishment Deed dated 15.10.1992 or the Sale Deed dated 06.12.1995.

Nor had he disputed the counterfoils bearing his signatures, as a tenant. The

Suit was, therefore, barred under Sections 31 and 34 of the Specific Relief

Act.

24. Reliance was placed on Kamleshwar Kishore Singh v. Paras Nath and

Others, (2002) 1 SCC 304. It was further submitted that, in Padhiyar

Prahladji Chenaji v. Maniben Jagmalbhai, (2022) 12 SCC 128, the Supreme

Court held that no injunction could be granted against the true owner and

that the relief of declaration, as sought, was not maintainable.

25. On merits, the Defendant denied that the Plaintiff had been given the

suit shop, in 1990. He asserted that the Plaintiff was then a minor and a

RFA 393/2026 Page 8 of 16

student, that the Partition Deed did not allot the suit shop to him, and that

the shop did not exist until 1995. He denied having removed the electricity

connection or threatened the Plaintiff and relied upon the alleged rent

counterfoils, to dispute the Plaintiff’s denial of tenancy.

26. In the Replication, the Plaintiff denied having concealed any material

fact. He stated that he did not dispute the execution of the Relinquishment

Deed, Partition Deed or Sale Deed, but maintained that he had been given

the suit shop in 1990 and had remained in possession even after the

partition and sale. He denied signing the rent counterfoils or paying rent. He

also stated that he was not a signatory to the Partition Deed and, therefore,

could not comment upon whether the suit shop was reflected in the site plan

or upon the contents of the Deed. According to him, its terms had been

settled by the Defendant and his late brother, Mani Ram Gupta, while he

was still a teenager. He claimed to have seen the Deed for the first time, in

the Eviction proceedings and to have then found its terms, faulty.

27. The Plaintiff reiterated that CS/SCJ/1728/2022 had been instituted

urgently to restore electricity during the summer and arose from a distinct

cause of action. He denied that Order II Rule 2 CPC applied and reaffirmed

the averments made in the Plaint.

28. The Defendant thereafter, filed an Application under Order VII Rule

11 read with Section 151 CPC, seeking rejection of the Plaint. The grounds

urged therein substantially reiterated the preliminary objections in the

Written Statement, including the alleged registered Partition Deed,

Relinquishment Deed and the Sale Deed, the rent counterfoils, insufficiency

of the pleadings of adverse possession, the bar under Order II Rule 2 CPC,

RFA 393/2026 Page 9 of 16

the deficit court-fee and the failure to seek appropriate relief against the

registered deeds.

29. The learned District Judge, vide Order dated 29.07.2026, observed

that the Plaintiff had not made a claim of ownership by adverse possession

and the Plaint also did not disclose when the rightful owner was

dispossessed or when the Plaintiff’s title allegedly stood perfected by

adverse possession. Instead, the Plaintiff claimed absolute ownership on the

basis of an oral family settlement preceding the Partition Deed dated

19.10.1992. In the absence of the necessary pleadings and particulars, the

claim of adverse possession was not made out, and the Order VII Rule 11

application was allowed.

30. The learned District Judge further noted that the Plaintiff had not

disputed the execution of the registered documents concerning the suit shop,

including the Relinquishment Deed dated 15.10.1992.

31. The learned District Judge also considered the Defendant’s objection

under Order II Rule 2 CPC. Since the Plaintiff had not pleaded that he was

unaware of his alleged claim to ownership by adverse possession when he

filed the earlier Suit No. 1728 of 2022, for Mandatory and Permanent

Injunction, the Court held that he could have sought a Declaration on that

basis, in the earlier suit. The present Suit was, therefore, held to be barred

under Order II Rule 2 CPC.

32. Aggrieved by the rejection of the Plaint, the Plaintiff has preferred

the present appeal.

33. The principal grounds of challenge, are that the learned Trial Court

misapplied Vasantiben Prahladji Nayak v. Somnath Muljibhai Nayak, Civil

RFA 393/2026 Page 10 of 16

Appeal No. 6432 of 1998, decided on 09.03.2004, and misunderstood

Hanangowda v. Irgowda, AIR 1925 Bom 9.

34. It is contended that the Plaint, particularly in paragraph 8,

specifically pleads an oral family arrangement in 1990 and hostile

possession from November 1992, pursuant to the Partition Deed dated

19.10.1992. Further, it was contended that, averments in paragraph 6 of the

Plaint, concerning the Partition Deed dated 19.10.1992 and Smt. Revati

Devi’s taking possession of the front portion, were not rightly appreciated,

as the Plaintiff had remained in exclusive possession of the suit shop.

35. The Appellant further asserted that the finding that the true owner, is

contrary to the pleadings, since the front portion had been stated to have

come to the share of Smt. Revati Devi and the Plaintiff claimed exclusive

possession of the suit shop.

36. It was contended that the learned Trial Court, while deciding the

Application under Order VII Rule 11 CPC, failed to confine its

consideration to the Plaint and relied on the Defendant’s defence and

documents. The Plaintiff had pleaded long, continuous possession, but had

not alleged wrongful dispossession of the rightful owner. The findings on

dispossession and tenancy, including the alleged admission of rent at ₹500

per month, were therefore disputed. It was further submitted that the

Electricity connection standing in the Defendant’s name could not, by itself,

establish a tenancy.

37. The Plaintiff also challenged the Trial Court’s reliance on the

registered documents and its finding of concealment, and submitted that the

Partition Deed dated 19.10.1992, had been referred to in the Plaint. Their

RFA 393/2026 Page 11 of 16

validity and effect, as well as any adverse inference from their alleged non-

disclosure, could not be determined without a trial. Reliance on Hemlata v.

Tukaram, 2026 INSC 82, was accordingly stated to be misplaced. Any

defects in the Plaint were also said to be curable.

38. As to adverse possession, it was contended that the Plaint pleaded

possession since 1992 and disclosed the essential elements of the claim.

Whether the possession was open, continuous, exclusive, hostile and

uninterrupted, involved questions of fact and law requiring a trial and that

the absence of a specific date on which it became adverse, could not justify

rejection of the Plaint.

39. The finding under Order II Rule 2 CPC, was also challenged. The

earlier Suit sought an Injunction against interference with possession, while

the present Suit sought a Declaration based on adverse possession and

consequential relief. It was submitted that the suits did not arise from an

identical cause of action and that the Plaintiff was unaware of the asserted

right when the earlier Suit was filed. Reliance was placed on Rathnavathi v.

Kavita Ganashamdas, State of Madhya Pradesh v. State of Maharashtra,

(1977) 2 SCC 288, and Inacio Martins v. Narayan Hari Naik.

40. Written arguments were submitted on behalf of the Appellant,

wherein the grounds taken in the Appeal, were reiterated.

Submissions heard and record perused.

41. The Plaintiff has instituted the suit seeking a Declaration of

ownership of the property in question, comprising a shop forming part of

the built-up property, and a Permanent Injunction restraining the

Defendant from interfering with his possession.

RFA 393/2026 Page 12 of 16

42. In order to comprehend the controversy, it would be first be pertinent

to refer to the transaction through which the property in question, was

purchased.

43. It was explained that late Shri Bishambar Dayal, Jai Narayan, Rampat

and Shiv Dayal were the real brothers and sons of late Roop Ram. The

Family Tree/Pedigree Table of Late Sh. Roop Ram is as under:

44. It is evident from recitals in the Partition Deed dated 19.10.1992

and Will dated 28.02.1964, that the plot in question measuring 213.3 sq.

yards bearing No. B-4A/3, Rana Pratap Bagh, was purchased by Late Roop

Ram, by way of registered Sale Deed dated 27.03.1953. Thereafter,

construction on the ground, mezzanine, first and Barsati floors had been

raised with contributions from Sh. Jai Narain and his brothers, Bishambar

Dayal, Ram Pat and Shiv Daya, who all inherited the property in question,

on demise of Sh. Roop Ram.

45. Sh. Jai Narain died on 04.01.1966. Sh. Ram Pat died unmarried and

issueless on 14.12.1989, while Sh. Shiv Dayal died on 03.10.1982. The

RFA 393/2026 Page 13 of 16

Partition Deed recites that Smt. Revati Devi inherited the interest of Late Sh.

Bishambar Dayal, while Smt. Jarawali Devi and Smt. Kesar Devi inherited

the respective interests of Late Sh. Jai Narain and Late Sh. Shiv Dayal. It

further records that the children of Late Sh. Bishambar Dayal and Late Sh.

Shiv Dayal relinquished their rights in favour of their respective mothers.

46. The Plaintiff asserted that he had been running the shop peacefully,

since 1990. From his own averments, it is evident that he got the shop for his

livelihood, at which time no partition had taken place. The relations interse

the parties, were admittedly cordial.

47. Thereafter, admittedly, the Partition Deed dated 19.10.1992, was

executed between the three ladies/co-owners and the front portion of the

property, comprising the ground, mezzanine, first and Barsati floors, was

allotted to Smt. Revati Devi, while the rear portion was allotted jointly to

Smt. Jarawali Devi and Smt. Kesar Devi. The Deed records delivery of

separate possession of the respective portions.

48. The rear portion was thereafter, was conveyed by Smt. Jarawali Devi

and Smt. Kesar Devi, under the Partition Deed dated 19.10.1992. These

two Ladies sold their share in the suit property by a Sale Deed dated

06.12.1995, whereas Smt. Revati Devi retained the front portion.

49. It has also emerged from the admission of the Plaintiff in the

Replication that the portion allotted to Jarawali Devi (his mother) and Smt.

Kesar Devi was sold in 1995, vide Sale Deed dated 06.12.1995.

50. A reading of the Plaint and the Partition Deed dated 19.10.1992,

relied upon by the Plaintiff, shows that the suit shop in the possession of

Plaintiff, forms part of the property which came to the share of Revati

RFA 393/2026 Page 14 of 16

Devi. The Plaintiff may have got this shop in 1990, prior to the Partition, but

after the partition, he ceased to have any ownership right, as the property

came to the share of Smt. Revati Devi.

51. The Plaintiff has also asserted that before September 2002, he used

electricity through the Defendant’s connection on a sharing basis; a separate

commercial meter was installed in the Defendant’s name in 2002, through

which the Plaintiff consumed the electricity and paid the bills. He explained

that he did not seek a connection in his own name because relations between

the parties were cordial.

52. These averments show the Plaintiff’s long-standing occupation of

the shop, but does not, by itself, establish ownership. Pertinently, his own

assertions of electricity connection being in the name of the defendant and

even when Meter connection was changed to commercial, it was again

installed in the name of the defendant and that he had been enjoying the

electricity from the connection in the name of the defendant, establish that

plaintiff enjoyed no proprietary rights in the suit property.

53. The Plaintiff’s claim to ownership rests substantially on his long

possession. Long possession, by itself, does not confer title. To claim

ownership by adverse possession, the Plaintiff must plead and establish

possession that is not merely continuous, but is hostile to the true owner’s

title.

54. The Supreme Court, recently in Bhag Singh (Dead) through Mahant

Kashmir Singh v. Basant Kaur (Dead) through LRs., 2026 INSC 983,

reiterated that adverse possession requires clear and unequivocal evidence

that possession was actual, open, continuous and hostile, amounting to a

RFA 393/2026 Page 15 of 16

denial of the true owner’s title. Mere long or uninterrupted possession is

insufficient unless accompanied by hostile animus. Where possession can

be traced to a lawful or permissive origin, lapse of time alone does not make

it adverse.

55. The Supreme Court further held that the commencement of hostile

possession, must be pleaded and proved. There must be a pleaded date

from which the true owner’s title was openly repudiated, along with an overt

assertion of hostility to the owner’s knowledge. These are foundational

requirements: unless the commencement of hostile possession is established,

the statutory period cannot begin to run. Long possession cannot be equated

with adverse possession; the possession must involve a conscious and

hostile assertion of ownership in denial of the true owner’s rights

56. In the present case, the Plaintiff’s own pleadings do not establish the

required hostile assertion. He pleaded that he had been running the shop

peacefully since 1990, that he used the Defendant’s electricity connection on

a sharing basis, and that he did not obtain a separate connection because

relations were cordial. These pleaded circumstances are inconsistent with

the assertion that his occupation constituted an open and unequivocal

denial of the title of the defendant, who got the ownership in the

property, after the admitted partition, vide the Partition Deed dated

19.10.1992.

57. Even if all the averments made in the Plaint are admitted, then too,

what emerges is that the entire property was owned jointly by his mother

Jarawali Devi, Kesar Devi, and Revati Devi. The rear portion of the property

in question, which came to the share of his mother Jarawali Devi and Kesar

RFA 393/2026 Page 16 of 16

Devi, has already been sold, and the Plaintiff had been running his shop

from the portion which came to the share of Revati Devi, mother of the

Defendant.

58. Significantly, neither the Plaint specifically averred the date nor was it

claimed that Plaintiff has acquired ownership by adverse possession, as

rightly observed by the ld. District Judge. The Plaintiff merely on his long

possession, cannot set up a plea of adverse possession, in view of his own

admission that the shop is located in the portion of the property, which came

to the share of Revati Devi, mother of the Defendant, by virtue of Partition

Deed dated 19.10.1992.

59. The Plaintiff has, therefore, failed to disclose a cause of action for a

Declaration of ownership or for protection of possession founded on claim

of ownership. The learned Trial Court rightly rejected the Plaint under

Order VII Rule 11 CPC.

60. There is no merit in the present appeal, which is hereby, dismissed.

61. The pending Applications, if any, are accordingly, disposed of.

(NEENA BANSAL KRISHNA)

JUDGE

SEPTEMBER 28, 2026/VA