RFA 453/2025 Page 1 of 30

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 31

st

August, 2026

Pronounced on: September 22, 2026

Uploaded on: September 22, 2026

# CNR No. DLHC010319592025

+ RFA 453/2025

SMT. CHANDRAWATI SHAH

W/0 LATE SH. ANIRUDH SHAH

R/0 1/2494, MOTI RAM MARG

MUKHERJEE MARG, G.T. ROAD

SHAHDARA, DELHI-110032 .....Appellant

Through: Mr. O. P. Mishra, Adv.

versus

SMT. RAJINDER KAUR

W/O LATE SH. JOGA SINGH .....Respondent

Through: Mr. Himanshu Buttan, Mr. Shivam

Handa and Mr. Ojasvi Annadi

Shambhu, Advs.

CORAM:

HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA

J U D G M E N T

NEENA BANSAL KRISHNA, J.

1. The Regular First Appeal under Section 96 of the Code of Civil

Procedure, 1908 (hereinafter referred to as „CPC‟), has been filed on behalf

of the Appellant/Defendant assailing the Judgment and Decree dated

09.07.2024, whereby the learned District Judge decreed the Suit of the

Respondent/Plaintiff for possession and awarded a sum of Rs.1,00,000/-

towards damages/mesne profits along with future interest @ 6% per annum,

till handing over of possession.

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2. The Plaintiff had instituted Civil Suit bearing CS No.363/2018 for

Possession along with damages/compensation of Rs.5,00,000/- for its

alleged unauthorised occupation, further damages @ Rs.15,000/- per

month till handing over of the vacant possession thereof, and costs of

Rs.1,00,000/- against the Defendant.

3. The facts in brief, as narrated in the Plaint, are that the Plaintiff, Smt.

Rajinder Kaur, is the owner of Property bearing No.1/2494, Moti Ram

Marg, Mukherjee Marg, G.T. Road, Shahdara, Delhi-110032, forming part

of Khasra No.2854/21-120-104, situated in the area of Village Chandrawali

@ Shahdara, Delhi (hereinafter referred to as the „suit property‟), having

purchased the same from Sh. Sarwan Singh vide Receipt, General Power of

Attorney and Agreement to Sell,dated 18.07.1988.

4. The husband of the Defendant, Sh. Anirudh Shah, had initially joined

the Plaintiff, as a domestic help. Subsequently, on his request, the Defendant

also started assisting the Plaintiff and her family in the domestic work, in the

suit property. It was asserted that salary was being paid to the Defendant and

her husband for the services rendered by them and that no amount remained

outstanding towards either of them.

5. The Plaintiff had been residing in the suit property along with her

husband, Late Sh. Joga Singh and after his demise, she temporarily went to

Canada, to reside with her son. Since the Defendant and her husband had

been rendering services to the Plaintiff and had represented that they had no

other place to reside, they were permitted to reside in the suit property

without payment of rent, damages or other charges, with the understanding

that they would take care of the property and would hand over its peaceful

possession to the Plaintiff, as and when called upon to do so. It was also

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made clear that the arrangement was temporary and did not create any right,

title or interest in their favour.

6. The Plaintiff continued to visit India from time to time and also

resided in the suit property, on various occasions. The electricity connection,

the water connection and house tax charges in respect of the suit property,

were in her name and the bills were being paid by her.

7. In January, 2018, the Plaintiff returned to India, and decided to

reconstruct the suit property and to raise pucca construction over the suit

property, for her own use and convenience. She, therefore, requested the

Defendant to vacate the suit property.

8. By that time, the husband of the Defendant, Sh. Anirudh Shah had

expired and, upon learning of his demise, the Plaintiff expressed her

sympathy to the Defendant, but nevertheless requested her to hand over

possession of the suit property. The Defendant, however, declined to vacate

the suit property. Instead, she threatened the Plaintiff that in case she

persisted with her demand for vacation of the suit property, she would be

implicated in a false case.

9. Consequently, the Plaintiff sent a Legal Notice dated 21.02.2018 to

the Defendant through Speed Post as well as Courier, asking her to vacate

the suit property.

10. Subsequently, in the first week of March, 2018, the Plaintiff learnt

from persons in the locality that the Defendant had approached a builder

with a view to dispose of the suit property.

11. The Plaintiff, thus, instituted the present Suit seeking possession of the

suit property, damages/compensation of Rs.5,00,000/- for its unauthorised

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occupation along with further damages @ Rs.15,000/- per month till

handing over of the vacant possession thereof; and costs of Rs.1,00,000/-.

12. The Defendant, in her Written Statement, took the preliminary

objections that the Plaintiff had suppressed material facts; that the Suit

disclosed no cause of action and was liable to be rejected under Order VII

Rule 11 of the CPC, and that the requisite Court Fee had not been affixed.

13. On merits, The Defendant admitted that she and her husband, had

been assisting the Plaintiff and her husband in their domestic work and had

also been paying the electricity charges in respect of the suit property, since

last about 40 years and, after the demise of the husband, she along with her

children, had continued to reside therein.

14. The principal defence of the Defendant was that about thirty five

years ago, the Plaintiff and her husband, Late Sh. Joga Singh, had orally

gifted the suit property to the Defendant and her husband out of love and

affection, on account of the care and assistance rendered by them to the

Plaintiff and her family. It was claimed that during the Sikh riots of 1984,

the Defendant’s husband had saved the lives of the Plaintiff and her family

members, and that the aforesaid circumstances formed part of the

background in which the suit property came to be gifted to the Defendant

and her husband.

15. The Plaintiff shifted to Canada, and there was no one to look after the

suit property, which had already been gifted to the Defendant and her

husband. She and her husband had thereafter, been residing in the suit

property as its owners and that the Plaintiff had no right to seek recovery of

its possession.

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16. The Defendant further alleged that the present Suit had been instituted

at the instance of local property dealers, who had an evil eye upon the suit

property and had instigated the Plaintiff to recover the same for its sale. With

the increase in the value of the property, the intention of the Plaintiff had

also become mala fide and she was seeking to dispossess the Defendant and

her children, despite having already gifted the suit property to them.

17. The Defendant, also disputed the title of the Plaintiff by asserting that

the documents relied upon by her, namely the General Power of Attorney,

Agreement to Sell and Receipt, dated 18.07.1988 were unregistered and

notarised documents and did not confer ownership, in view of the decision

of the Supreme Court in Suraj Lamp & Industries Pvt. Ltd. v. State of

Haryana(2012) 1 SCC 656.It was also alleged that the Plaintiff had not

produced the complete chain of title documents and that the documents

relied upon by her, were forged and fabricated.

18. On merits, the assertion that the Defendant and her husband were

being paid salary for their domestic work, was specifically denied. The

Defendant also denied that the suit property had been entrusted to her and

her husband, merely for its care or that their occupation thereof, was

temporary. It was reiterated that the suit property had been gifted to them

and the Defendant was residing therein along with her children, in her own

right.

19. It was also denied that the Plaintiff had continued to reside in the suit

property from time to time or had regularly paid the electricity, water and

house tax charges. According to the Defendant, she and her husband had

been paying the electricity charges, and the Plaintiff had paid the electricity

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bill only for the month of January, 2018 with a view to create a cause of

action for institution of the Suit.

20. The Defendant denied that she had been called upon to vacate the suit

property for its reconstruction or that she was in unauthorised occupation

thereof. The allegations of threats having been extended to the Plaintiff,

were also denied. The receipt of the Legal Notice dated 21.02.2018, was also

denied. The Defendant further denied having approached any builder for

disposal of the suit property.

21. The Defendant, thus, prayed for dismissal of the Suit with exemplary

costs.

22. On the basis of the pleadings of the parties, the following Issues,

were framed on 05.12.2018:

“(i) Whether the Plaintiff is entitled to a decree of

possession of the suit property? OPP

(ii) Whether the Plaintiff is entitled for mesne profits and

damages as prayed for? OPP

(iii) Whether the Plaintiff is entitled to cost of the Suit as

prayed for? OPP

(iv)Relief.”

23. In support of her case, the Plaintiff examined herself as PW-1 and

tendered her evidence by way of Affidavit Ex.PW1/A. She relied upon the

Receipt, General Power of Attorney and Agreement to Sell, all dated

18.07.1988, collectively exhibited as Ex.PW1/1; Electricity Bill as Mark

PW1/2; Legal Notice dated 21.02.2018 as Ex.PW1/3; Postal and Courier

Receipts collectively as Ex.PW1/4; and Tracking Reports collectively as

Ex.PW1/5.

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24. The Plaintiff further examined PW-2,Sh. Babu Shankar Yadav,

Assistant Personnel Officer, BSES Yamuna Power Ltd., Dilshad Garden,

Delhi, who produced the record pertaining to the electricity connection in

respect of the suit property, exhibited as Ex.PW2/A.

25. PW-3,Sh. Dhan Pal Singh, Assistant Zonal Inspector, Shahdara

North Zone, produced the original Rectification/Assessment Order dated

26.02.2018 in respect of the suit property bearing municipal No.1/2494,

Ground Floor and First Floor, Ram Nagar, Shahdara, Delhi, passed in favour

of the Plaintiff.

26. PW-4,Sh. Nitin Tomar, LDC from the Zonal Revenue Office,

Shahdara, Delhi, produced the computer-generated Water Bill Ex.PW4/A,

for the period July to September, 2019 in the name of Sh. Jagjeet Singh, son

of son of the Plaintiff and Late Sh. Joga Singh, in respect of the suit

property.

27. The Defendant examined herself as DW-1 and tendered her evidence

by way of Affidavit Ex.DW1/A. She relied upon her Aadhaar Card

Ex.DW1/1 (OSR), the Birth Certificates of her children, Water Bills,

educational record of her son and Electricity Bills in support of her

possession and residence in the suit property.

28. The Defendant further examined,DW-2, Sh. Sunil, her son, DW-3

Ms. Sunita, daughter of the Defendant, and DW-5 Ms. Sangeeta, daughter

of the Defendant,in their respective testimony, supported the case of the

Defendant regarding their long possession of the suit property and the

alleged oral gift thereof, in favour of his parents, when the Plaintiff and her

family shifted to Canada.

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29. DW-4,Sh. Deepak Sharma, childhood friend of DW-2 Sunil, in his

evidence of Affidavit Ex.DW4/A, deposed that he used to visit the suit

property and had been told by Sh. Sunil that the Plaintiff and her family had

orally gifted the suit property to the Defendant and her family, before

shifting to Canada.

30. The learned Trial Court, after considering the rival pleadings and

evidence, noted that the Receipt, General Power of Attorney and Agreement

to Sell dated 18.07.1988, collectively exhibited as Ex.PW1/1, stood in

favour of the Plaintiff. The electricity connection and the municipal

assessment record also stood in her name, while the Water Bill stood in the

name of her son, Sh. Jagjeet Singh. The plea that the suit property had been

orally gifted to the Defendant and her husband, was not accepted, as no

document in respect thereof, had been executed by the Plaintiff or her

husband in their favour.

31. As regards the nature of possession, though the Plaintiff had admitted

that there was no document showing payment of salary or appointment of

the Defendant and her husband as caretakers, the Defendant herself had

stated in the Written Statement that she and her husband used to assist the

Plaintiff and her husband, in their domestic work.

32. The plea of adverse possession, raised during final arguments, was

also rejected, as no such plea had been taken in the Written Statement and no

evidence had been led to establish that the possession of the Defendant was

hostile to the rights of the Plaintiff, for the requisite period. The Plaintiff

was, accordingly, held entitled to recover possession of the suit property.

33. Insofar as the claim for damages/mesne profits was concerned, the

learned Trial Court noticed that no specific evidence had been led to

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establish the quantum claimed. Relying upon Suman Verma v. Sushil Mohini

Gupta, (2014) 140 DRJ 595, a lump sum amount of Rs.1,00,000/- was

awarded towards damages/mesne profits, along with future interest @ 6%

per annum till handing over of possession. The Suit was, accordingly,

decreed for possession and damages/mesne profits, along with costs.

34. Aggrieved by the impugned Judgment and Decree dated 09.07.2024,

the Defendant has preferred the Regular First Appeal.

35. The grounds of challenge are that the learned Trial Court failed to

appreciate the evidence, in its correct perspective. The Plaintiff, in her cross-

examination, admitted that the Defendant had been residing in the suit

property since the year 1988. Though she also stated that the Defendant had

earlier vacated the suit property and was again permitted to reside therein in

the year 2008, there was no material to establish when or in what manner,

the Defendant had allegedly vacated the property.

36. It is asserted that the Defendant and her family members had remained

in peaceful, continuous and uninterrupted possession of the suit property for

about 40 years and that the documents produced by them also established

their possession for a period exceeding 12 years, without any interruption.

Such possession, being open and within the knowledge of the Plaintiff, had

become hostile and adverse to her, and with the passage of the statutory

period, the Defendant had perfected her title by adverse possession.

37. It is further asserted that the Defendant and her family had, for several

decades, looked after the suit property and attended to its renovation,

construction and maintenance and had, therefore, acquired rights therein.

38. Though the Plaintiff pleaded that the Defendant and her husband were

working as domestic helps and were being paid salary, she admitted in her

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cross-examination, that she had no document evidencing payment of any

such salary.

39. The Defendant has further relied upon the payment of electricity

charges, to contend that she and her husband had been maintaining the suit

property. According to her, the Plaintiff had paid the electricity bill only for

the month of January, 2018 to create a cause of action for institution of the

Suit. The Plaintiff having herself stated that she returned to India from

Canada in January, 2018, her assertion of having regularly paid the

electricity charges, was stated to be unsupported by the record.

40. The Defendant stated in her cross-examination that after the riots of

the year 1984, the suit property had been gifted to her husband, who had

saved the family of the Plaintiff during the said riots. According to the

Appellant, the learned Trial Court failed to appreciate the said circumstance

and the long-standing possession of her family, while rejecting her claim

over the suit property.

41. The Appellant has also questioned the very title of the Plaintiff. The

General Power of Attorney, Agreement to Sell, Receipt all dated18.07.1988

relied upon by her had been executed by Sh. Sarwan Singh, who himself was

stated to be only a General Power of Attorney holder of Sh. Jai Bhagwan,

without any pleading or evidence, to show that he was authorised to execute

a further General Power of Attorney or transfer the suit property. The

Agreement to Sell relied upon by the Plaintiff also did not, by itself, confer

any title.

42. It is thus, asserted that the Plaintiff had neither established her title nor

her prior possession and could not succeed merely on the basis of any

weakness in the case of the Defendant or any admission made by her.

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43. It is, therefore, contended that the impugned Judgment and Decree is

liable to be set aside.

44. The Appellant in its Writtem submissions, in addition to the aforesaid

grounds, has submitted that the documents relied upon by the Plaintiff, could

not acquire the character of title documents, merely because the Defendant

had not challenged them.

45. Whether the General Power of Attorney, Agreement to Sell and

Receipt dated 18.07.1988 relied upon by the Plaintiff conveyed any title in

her favour was stated to be a question of law, which had to be independently

determined by the learned Trial Court. Reliance has been placed upon

Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506, to contend that in a

Suit for possession founded on title, the Plaintiff must succeed on the

strength of her own title and cannot derive any advantage merely from the

weakness of the Defendant’s case.

46. It has further been submitted that the learned Trial Court erred in

treating the statement in the Written Statement that the Defendant and her

husband used to assist the Plaintiff and her husband in domestic work, as an

admission of an employer-employee relationship. According to the

Appellant, mere assistance in domestic work, did not establish such a

relationship, particularly when the payment of salary had been specifically

denied in the Written Statement and the Plaintiff admitted in her cross-

examination that she had no documentary proof of having paid any salary to

the Defendant or her husband. The Written Statement was required to be

read as a whole and could not be accepted in part, while disregarding the

accompanying denial.

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47. The Appellant has also referred to an Application under Order VIII

Rule 1A(3) read with Section 151 of the CPC filed on 16.05.2024, for

bringing on record certain documents stated to demonstrate the harmonious

relationship between the families, including documents in which the

Plaintiff’s son, Sh. Jagjeet Singh, had allegedly acted as guardian of Ms.

Sunita, daughter of the Defendant. The said Application was dismissed, vide

Order dated 18.05.2024 by the learned Trial Court.

48. Per contra, in the Written Submissions filed on behalf of the

Respondent, it was submitted that the Defendant herself had set up a case of

an oral gift of the suit property in her favour and, therefore, the burden was

upon her to establish the same. However, in her cross-examination, DW-1

categorically admitted that she had no documentary proof of ownership; that

no written document or Gift Deed had ever been executed in respect of the

suit property; and that the suit property continued to stand in the name of the

Plaintiff.

49. It has further been pointed out that the documents relied upon by the

Defendant, also did not support her claim of ownership, inasmuch as the

water bills stood in the name of Sh. Jagjeet Singh, son of the Plaintiff, while

the electricity bills stood in the name of the Plaintiff.

50. Reliance has been placed upon Section 123 of the Transfer of Property

Act, 1882 to contend that the alleged oral gift could not create any right, title

or interest, in favour of the Defendant.

51. It is, therefore, submitted that the learned Trial Court has rightly,

decreed the Suit in favour of the Plaintiff.

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52. During the pendency of the present Appeal, the Plaintiff initiated

Execution Petition No.124/2024, and the possession of the suit property

already stands delivered to the Plaintiff, on 26.11.2024.

Submissions heard and record perused.

53. The rival contentions of the parties give rise to the following questions

for consideration:

(i) Whether the Defendant has established ownership by the

alleged oral gift;

(ii) Whether the Long possession of the Defendant created

any proprietary Rights in the suit property;

(iii) Whether the Defendant has acquired ownership by

adverse possession; and

(iv) Whether the grant of Rs.1,00,000/- towards

damages/mesne profits, is sustainable.

I. Whether the Defendant has established ownership by the alleged oral

gift:

54. The defendant’s first line of defence is that the Plaintiff has claimed

the ownership on the basis of notarised GPA, Agreement to Sell, etc. dated

18.07.1988, which are incapable of conferring ownership on the plaintiff.

55. The Plaintiff traces her right in the suit property on the basis of the

Agreement to Sell, General Power of Attorney and Receipt, all dated

18.07.1988, Ex.PW1/1 (colly.), executed in her favour, by Sh. Sarwan Singh.

56. The proprietary rights of the Plaintiff, on the basis of Agreement to

Sell, etc. 18.07.1988 Ex.PW1/1 (colly.) are corroborated by PW-2, Sh. Babu

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Shankar Yadav, who proved that the electricity connection of the suit

property is in the name of the Plaintiff; PW-3, Sh. Dhan Pal Singh, Assistant

Zonal Inspector, who proved the Rectification/Assessment Order dated

26.02.2018, Ex.PW3/A (OSR), in favour of the Plaintiff; and by PW-4, Sh.

Nitin Tomar, who proved that the water connection is in the name of the

Plaintiff's son, Sh. Jagjeet Singh.

57. These electricity, water and municipal records are, relevant

corroborative circumstances reflecting the proprietary rights of the Plaintiff

and her family with the suit property.

58. Significantly, the Defendant also claims her occupation of the suit

property was through the Plaintiff and has admitted that she and her

husband, had been assisting the Plaintiff and her husband in their domestic

work.

59. The Defendant has assailed the aforesaid documents on the ground

that they are not registered instruments of conveyance and, therefore, do not

confer ownership upon the Plaintiff, relying upon Suraj Lamp & Industries

Pvt. Ltd. v. State of Haryana, (2012) 1 SCC 656.

60. At the outset, it may be noted that the very defence set up by the

Defendant, is fatal to this contention. The Defendant’s claim to ownership

does not rest on any independent or competing source, but is claimed by

virtue of Oral Gift of suit property to her and her husband, Late Sh. Anirudh

Shah, by none other than the Plaintiff and her husband, Late Sh. Joga Singh.

Therefore, the very premise of her defence is that the Plaintiff and her

husband were owners of the suit property, who possessed an ownership,

capable of being transferred. Having thus, founded her own case upon an

alleged transfer made from the Plaintiff, the Defendant cannot, in the same

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breath, contend that the very documents by which the Plaintiff traces her

title, are non-est or confer no right whatsoever.

61. The judgement of Suraj Lamp (supra), does not render an Agreement

to Sell, General Power of Attorney or Receipt void, non-est or devoid of all

legal and evidentiary significance; what it precludes is treating such

documents as a substitute for a registered conveyance so as to confer

absolute ownership.Equally, however, such documents cannot be discarded

as legally irrelevant, while determining the origin and comparative rights in

the property, asserted by the parties.

62. Tested on these principles, the reliance upon Suraj Lamp (supra), does

not assist the Defendant. The property documents Ex.PW1/1 (colly.), read

with the electricity, municipal and water records and, significantly, the

Defendant's owncase tracing her asserted right through the Plaintiff,

cumulatively establish the ownership of the Plaintiff, superior to that

asserted by the Defendant.

63. The challenge to the Plaintiff's title is, therefore, completely

unfounded and without merit. The Plaintiff has established a better right to

the suit property vis-à-vis the Defendant.

64. The principal defence of the Defendant is founded upon an alleged

oral gift of the suit property. According to the Defendant, about 35 years

prior to the institution of the Suit, the Plaintiff and her husband, Late Sh.

Joga Singh, out of love and affection and on account of the care and

assistance rendered to them, had orally gifted the suit property to the

Defendant and her husband, Late Sh. Anirudh Shah. The burden to establish

the said oral gift, therefore, squarely lay upon the Defendant.

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65. The Defendant, who examined herself as DW-1, however, was unable

to produce any document evidencing the alleged gift or any

contemporaneous record showing that any right, title or interest in the suit

property was ever transferred to her or her husband. Pertinently, in her cross-

examination dated 04.01.2024, she categorically admitted that “There is no

documentary proof in my possession to claim that I am the owner of the

suit property.”

66. She further admitted that “It is correct that there is no written

document qua the above said averment. It is correct that the suit property

is still in the name of the plaintiff ….. It is correct that there no written gift

deed executed between the plaintiff as well as defendant”. The oral gift set

up by the Defendant, allegedly spanning a period of over three decades, is

thus unsupported by even a single contemporaneous document.

67. The Defendant’s explanation for the absence of any mutation in her

favour, is equally unconvincing. When questioned on this aspect, DW-1

volunteered that "we could not mutate the records of the suit property in

our name as we could not find the occasion for it."No particulars

whatsoever were furnished as to what prevented the Defendant or her

husband from seeking mutation, or from taking any other step to have the

alleged transfer reflected in the public or private records concerning the suit

property, or otherwise even documenting the alleged transfer in their favour.

The explanation put forth is thus vague, and wholly unsubstantiated. The

absence of any such contemporaneous conduct assumes significance, given

that the Defendant now seeks to establish an alleged transfer of ownership

said to have taken place, more than three decades earlier.

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68. More importantly, the admissions elicited in cross-examination,

further establish that DW-1 was unable to substantiate even the pleas raised

in the Written Statement regarding her possession and maintenance of the

suit property. DW-1 admitted even the documents relied upon by her, do not

support her claim of any right in the suit property. The water bills relied

upon by her as Mark C to Mark K were admittedly not in her name, but in

the name of Sh. Jagjit Singh, son of the Plaintiff. Likewise, the electricity

bills relied upon as Mark M to Mark R were admittedly not in her name,

but in the name of the Plaintiff, Smt. Rajinder Kaur. The relevant admission

is reproduced hereunder:

“It is correct that Mark C to Mark K are not in my name

however, the same is in the name of Jagjit Singh. It is also

correct that Mark M to Mark R are not in my name

however, the same is in the name of the plaintiff namely

Rajinder Kaur.”

69. These admissions of DW -1 are not merely her concessions but they

corroborate by the evidence led by the Plaintiff. PW-2,appearing from

BSES Yamuna Power Ltd., proved that the electricity connection in respect

of the suit property stood in the name of the Plaintiff, while PW-4, from the

Zonal Revenue Office, proved that the water connection stood in the name

of Sh. Jagjeet Singh, son of the Plaintiff.

70. This assumes further significance because the Written Statement

specifically pleaded that the Defendant and her husband had been regularly

paying the electricity charges in respect of the suit property. However, when

confronted with her own evidence affidavit, DW-1 denied having stated

therein that she and her husband had been regularly paying the electricity bill

of the suit property, thereby further eroding the very plea set up by her. The

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Defendant has, therefore, failed to substantiate even the surrounding

circumstances relied upon by her, to lend credibility to her claim of

ownership.

71. While these documents, by themselves, do not conclusively establish

the Plaintiff‟s ownership of the suit property, they are, however, relevant as

corroborative circumstances, as the electricity and water records relied upon

by the Defendant, continue to be in the name of the Plaintiff or her son.

They, therefore, lend no support to the Defendant’s assertion that ownership

had been transferred to her and her husband decades earlier; on the contrary,

are consistent with the Plaintiff‟s assertions of continuing to be the owner of

the suit property.

72. The testimony of the other witnesses examined by the Defendant, also

does not establish the alleged gift. DW-2, Sh. Sunil, son of the Defendant,

admitted that he was born in the year 1988 and that his knowledge that the

suit property had been given to his father, was based upon what had been

verbally conveyed to him. His testimony regarding the alleged gift was,

therefore, evidently not based upon any personal knowledge of the

transaction.

73. The other witnesses examined by the Defendant, fare no better.DW-3,

Ms. Sunita, and DW-5, Ms. Sangeeta, daughters of the Defendant, merely

supported the version of an oral gift, but had no personal knowledge of the

alleged transaction. DW-4, Sh. Deepak Sharma, a childhood friend of DW-

2, admitted that he had come to depose at the request of Sh. Sunil and that he

had no personal knowledge of the case. Thus, none of these witnesses could

prove the factum or circumstances of the alleged gift.

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74. Thus, while the Defendant sought to assert ownership on the basis of

an alleged oral gift, neither she nor any of the witnesses examined by her

could prove when, how, or in what manner the alleged gift was made and

accepted. No specific date of the alleged gift has been pleaded or proved;

nor is there any document evidencing such gift, any record standing in the

name of the Defendant or her husband, or any other contemporaneous act

evidencing the alleged transfer of the suit property in their favour.

75. Even assuming that the Defendant or her husband had paid the

consumption charges while residing in the suit property, such payment is an

incident of occupation and does not create or evidence ownership.

Significantly, even the electricity and water bills relied upon by the

Defendant herself, admittedly stand in the name of the Plaintiff for her son.

76. The legal position governing a gift of immovable property is

contained in Section 123 of the Transfer of Property Act, 1882, which

provides that such a gift can be effected only by a registered instrument

signed by or on behalf of the donor and attested by at least two witnesses.

77. The distinction between the position under traditional Hindu law and

that prevailing after the application of the Transfer of Property Act, 1882 is

also noticed in paragraph 358 of Mulla’s Hindu Law, wherein it has been

observed as under:

(i)A gift under pure Hindu Law need not be in writing;

however, such a gift is not valid unless it is accompanied

by delivery of possession of the subject matter of the gift

from the donor to the donee. Mere registration of a Gift

Deed is not equivalent to delivery of possession and is,

therefore, not sufficient to pass title in the property from

the donor to the donee. Where, from the nature of the

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property, physical possession cannot be delivered, it is

sufficient to validate the gift if the donor has done all that

he could do to complete the gift so as to entitle the donee

to obtain possession.

(ii) As regards Hindu gifts to which the Transfer of

Property Act, 1882 applies, the rule of pure Hindu Law

that delivery of possession is essential to the validity of a

gift stands abrogated by Section 123 of the said Act.

Under the Transfer of Property Act, delivery of

possession is no longer necessary to complete the gift, nor

is mere delivery of possession sufficient to constitute a

valid gift, except in the case of movable property.

78. It is, therefore, evident that, while under the traditional Hindu law an

oral gift accompanied by delivery of possession was sufficient to constitute a

valid gift, the position got abrogated by introduction of Section 123 of the

Transfer of Property Act, 1882 which requires a gift of immovable property

to be effected by a registered instrument. The Supreme Court in Gomtibai v.

Mattulal, (1996) 11 SCC 681, observed as under:

“4. Thus, it is seen that the gift of immovable property

should be made only for transferring the right, title and

interest by the donor to the donee by a registered instrument

signed by or on behalf of the donor and must be attested by

at least two witnesses. The preexisting right, title and interest

of donor thereby stand divested in the donee by operation of

Section 17 of the Registration Act only when the gift deed is

duly registered and thereafter the donor would lose title to

the property. It must also be proved that the donee had

accepted the property gifted over under the instrument. In this

case, though the transfer of gift was acted upon by Kusturibai

as per the correspondence and evidence on record, but,

admittedly, there is no written instrument executed by the

donor, namely, the plaintiff and the defendant in favour of

their cousin sister Kusturibai and it was got attested by at

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least two witnesses and registered in accordance with the

provisions of the Stamp Act and the Registration Act. In the

absence of compliance of these formalities, at best what could

be seen from the partition deed is that the original plaintiff

and the defendant have expressed their intention to gift over

the land to their cousin sister Kusturibai. As held earlier, in

the absence of any registered instrument of gift and

acceptance thereof by the donee, the said property could not

be said to have been legally transferred in favour of their

cousin sister; in other words, the gift is not complete in the

eye of law. Therefore, the District Court has rightly set aside

the decree of the trial court which was later confirmed by the

High Court. We do not find any error of law warranting

interference.”

79. Likewise, the coordinate Bench of this Court in R.N. Dawar vs.

Ganga Ram Saran Dhama 1992 SCC OnLine Del 446 had also held as

under :

“......Under Section 123 of the Transfer of Property Act, a

gift of immoveable property which is not registered is bad in

law and cannot pass any title to the donee. Any oral gift of

immoveable property cannot be made in view of the

provisions of Section 123 of the Transfer of Property Act.

Mere delivery of possession without written instrument

cannot confer any title. The plea of the defendants that

defendant No. 2 of this plot of land became owner by virtue of

the gift from Pritam Singh is not tenable reject the same.”

80. It is thus the settled position, in respect of a gift of immovable

property governed by Section 123 of the Transfer of Property Act, 1882, that

the transfer must be effected through a registered instrument executed in the

manner prescribed by law. Admittedly, no such registered gift deed exists in

the present case. Consequently, the assertion of the Defendant/Appellant

that she acquired ownership of the suit property by virtue of an alleged oral

gift cannot, be sustained.

RFA 453/2025 Page 22 of 30

81. In view of the foregoing admissions, the Defendant has failed to

discharge the burden to establish the alleged oral gift of the suit property.

Apart from her own interested testimony and her children, there is no

document or circumstance, however slight, to corroborate the existence of

such a gift. The plea of oral gift was, accordingly, rightly rejected by the

Ld. Trial Court.

II. Whether the Long possession of the Defendant created any proprietary

Rights in the Suit property:

82. Thus, what remains for consideration is whether the Defendant's

admitted possession of the suit property, extending over several decades,

independent of the un-proved Gift, confers upon her any ownership right

capable of resisting recovery.

83. The origin of Defendant’s occupation, is evident from the pleadings

itself. The Defendant admitted in the Written Statement that she and her

husband “had been assisting the Plaintiff and her husband in their

domestic work”. She further pleaded that the alleged gift had been made

“due to love and affection, as the defendant and her late husband used to

take complete care of the plaintiff and her family members.”

84. PW-1 similarly deposed that the Defendant and her husband, initially

engaged for domestic work, were thereafter, permitted to occupy the suit

property to look after it during her absence in Canada. Such assistance even

without formal salaried employment, is sufficient to establish the permissive

occupation of the Defendant, in the suit property.

85. What emerges is that the Defendant and her husband came into

occupation of the suit property for rendering care and assistance to the

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Plaintiff and her family, and not under any independent source of right and

their continuation therein for whatever period, was as the caretakers and

nothing more.

86. The legal character of possession arising in such circumstances, was

considered by the Supreme Court in Maria Margarida Sequeria Fernandes

and Others v. Erasmo Jack de Sequeria (Dead) through LRs., (2012) 5 SCC

370. In that case also, the owner, while residing away from the property, had

permitted her brother to occupy and look after the premises. Upon recovery

of possession being sought after a considerable period, the occupant relied

upon long possession and a family arrangement, to resist the claim. The

Supreme Court held that a person who is permitted to occupy property

gratuitously or for its care, does not acquire any right or interest therein

merely on account of prolonged occupation.

87. The Apex Court crystallized the governing principles, as follows:

(i) No one acquires title to the property if he or she

was allowed to stay in the premises gratuitously;

even by long possession of years or decades,

such person would not acquire any right or

interest in the said property;

(ii) A caretaker, watchman or servant can never

acquire interest in the property, irrespective of

his long possession, and is required to give

possession forthwith on demand;

(iii) The Courts are not justified in protecting the

possession of a caretaker, servant or any person

who was allowed to live in the premises for

RFA 453/2025 Page 24 of 30

some time either as a friend, relative, caretaker

or as a servant;

(iv) The protection of the Court can only be granted

or extended to a person who has a valid,

subsisting rent agreement, lease agreement or

licence agreement in his favour; and

(v) The caretaker or agent holds the property of the

principal only on behalf of the principal and

acquires no right or interest whatsoever for

himself in such property, irrespective of his long

stay or possession.”

88. The Supreme Court in Maria Margarida (supra) thus, held, inter alia,

that gratuitous occupation, even for years or decades, does not confer title

and a caretaker, servant, friend or relative permitted to occupy the premises

does not acquire an interest merely by reason of such occupation. A

caretaker or agent merely holds the property on behalf of the principal and

cannot claim an independent right merely from the duration of possession.

89. The aforesaid principles apply squarely to the present case. The

Defendant has established no independent source under which she or her

husband, entered the suit property. The only subsequent proprietary right

asserted by her was the alleged oral gift, which she has miserably failed to

prove. Mere continuance in occupation for several decades, therefore,

cannot by itself convert the original permissive occupation, into an

independent proprietary right.

RFA 453/2025 Page 25 of 30

90. Consequently, neither the alleged oral gift, which remains wholly

unsupported by any surrounding circumstance, nor the Defendant's long

possession of the suit property as a caretaker, howsoever protracted, has

conferred upon her any right, title or interest therein.

III. Whether the Defendant has acquired ownership by way of adverse

possession:

91. The next question is: Whether such permissive possession,

subsequently assumed a hostile character and ripened into a right by

adverse possession.

92. The Defendant has also sought to resist the claim for possession on

the ground that she and her family have remained in continuous occupation

of the suit property for about four decades and have thereby, perfected their

title by adverse possession. Significantly, no plea of adverse possession was

raised in the Written Statement and the contention was urged only at the

stage of final arguments before the learned Trial Court.

93. The law on adverse possession is well settled. A person claiming title

on this basis must establish possession which is nec vi, nec clam, nec

precario, i.e., peaceful, open and continuous, and which is hostile to the title

of the person against whom such possession is asserted. Such possession

must commence with the wrongful denial of the rightful owner's title, and

must be actual, visible, exclusive, hostile accompanied by the requisite

animus possidendi throughout the statutory period of twelve years.

94. In Karnataka Board of Wakf v. Government of India, (2004) 10 SCC

779, the Supreme Court further held that the claimant must specifically plead

and establish, inter alia, when possession commenced, its nature, whether it

RFA 453/2025 Page 26 of 30

was known to the other party, the period for which it continued and that it

was open and undisturbed.

95. Equally, mere possession, however long, does not ripen into title

unless accompanied by the requisite hostile animus. In Konda Lakshmana

Bapuji v. Government of A.P., (2002) 3 SCC 258, the Supreme Court has

explained that mere possession of land, however long, does not ripen into

title unless the possessor has the requisite animus possidendi to hold the land

adverse to the title of the true owner, and that where, at the commencement

of possession, there is no such animus, the period for adverse possession

commences only from the date when both the fact of possession and the

assertion of hostile title are shown to exist.

96. The Supreme Court, in Ravinder Kaur Grewal v. Manjit Kaur, (2019)

8 SCC 729, has reiterated that a claim of adverse possession succeeds only

where the claimant establishes these ingredients of hostility, continuity and

openness against the true owner throughout the statutory period, and that it

is only upon completion of that period that even the true owner's right to

eject the possessor stands extinguished.

97. The aforesaid position has recently been reiterated by the Supreme

Court in Bhag Singh (D) through Mahant Kashmir Singh v. Basant Kaur (D)

through LRs., 2026 INSC 983. It was observed that where possession is

referable to a lawful or permissive origin, mere lapse of time does not render

it adverse; there must be clear and unequivocal evidence of the point at

which such possession became hostile to the true owner. Significantly, the

Supreme Court further held that the absence of pleadings identifying the

commencement of hostile possession is not a mere technical defect, since

RFA 453/2025 Page 27 of 30

unless such commencement is pleaded and proved, the statutory period for

adverse possession cannot even begin to run.

98. Further, in Narasamma v. A. Krishnappa (Dead) through LRs., AIR

2020 SC 4178, the Supreme Court held that a claim of title from a particular

date and a plea of adverse possession from the very same date, cannot

simultaneously be sustained. Upon failure of the asserted title, the claimant

must independently plead and prove the subsequent point of time from

which possession became hostile.

99. Tested on these principles, the plea fails at the threshold. Admittedly,

adverse possession was not pleaded in the Written Statement and was raised

only at the stage of final arguments, before the learned Trial Court. There is

consequently no pleading identifying when the Defendant's possession

allegedly became hostile, what act constituted such hostile assertion, or

when it was brought to the knowledge of the Plaintiff.

100. As already discussed above, the Defendant's occupation was

permissive in origin and arose through her association with the Plaintiff and

her family. There is no evidence of any subsequent point in time, at which

such permissive occupation was repudiated and converted into a hostile

assertion of title. Mere continuance in possession thereafter, even for a

considerable period, would not by itself alter its juridical character.

101. The plea is also inconsistent with the substantive case set up by the

Defendant in the Written Statement. Her case throughout, is that the suit

property had been orally gifted to her and her husband by the Plaintiff and

her husband and that she thereafter, occupied the property as owner. Having

asserted ownership derived from the Plaintiff, she could not, from the same

point of time, simultaneously claim possession hostile to and in denial of the

RFA 453/2025 Page 28 of 30

Plaintiff's title. Nor has any later date of hostile assertion, been pleaded or

proved.

102. This accords with the view of the Supreme Court in Narasamma v. A.

Krishnappa (Dead) through LRs, AIR 2020 SC 4178, that a claim of title

from a particular date and a plea of adverse possession from the very same

date cannot simultaneously be sustained, and that upon failure of the plea of

title, it becomes necessary to independently plead and prove the date from

which possession turned hostile, a burden not even attempted to be

discharged here.

103. Even otherwise, the reliance placed upon the length of possession

does not advance the Defendant's case. Long possession, howsoever

protracted, does not by itself ripen into title unless shown to have been

hostile, to the knowledge of the true owner, for the entire statutory period;

mere continuance of possession, without more, remains possession

simplicitor.

104. As recently reiterated by the Supreme Court in Bhag Singh (D)

through Mahant Kashmir Singh v. Basant Kaur (D) through LRs., 2026

INSC 983, long possession may establish physical occupation, but does not,

by itself, establish adverse possession; what must additionally be proved is a

conscious and hostile assertion of ownership in denial of the rights of the

true owner. The Defendant has led no such evidence.

105. Thus, whether the Defendant's possession is examined from its

permissive origin, or from the footing of her own pleaded case of an oral

gift, as examined hereinabove, no time frame emerges at which such

possession can be said to have assumed a hostile character against the

Plaintiff, nor has any such point been pleaded or proved.

RFA 453/2025 Page 29 of 30

106. In view of the foregoing discussion, it is held that the Defendant has

failed to establish any essential ingredients of adverse possession.

IV. Whether the direction for payment of Rs.1,00,000/- towards

damages/mesne profits is sustainable:

107. The learned Trial Court has awarded a lump sum amount of

Rs.1,00,000/- towards damages/mesne profits, along with future interest @

6% per annum till handing over of possession.

108. Admittedly, no evidence whatsoever was led by the Plaintiff before

the learned Trial Court to establish the quantum of damages or mesne

profits, or the prevailing rental value of the suit property on the basis of

which such compensation could be determined.

109. The reliance upon Suman Verma v. Sushil Mohini Gupta, (2014) 140

DRJ 595, also does not carry the matter further. In that case, while observing

that assessment of mesne profits necessarily involves some element of

estimation, the Court nevertheless proceeded on the basis of the material

available on record, including the nature, size and location of the property,

the evidence of the parties and the absence of any rebuttal to the rental value

asserted.

110. In the present case, however, no evidence has been led as to the

prevailing rental value of the suit property, nor is there any other material in

regard to Mesne profits. In the circumstances, considering the possession

over more than three decades, the Ld. Trial Court was justified in granting a

lump sum amount of Rs.1,00,000/-, as damages.

111. During the pendency of the Appeal, vide Order dated 07.05.2025,

learned counsel for the Respondent/Plaintiff, on instructions, categorically

RFA 453/2025 Page 30 of 30

stated before this Court that the Respondent was “not interested in receiving

any such damages/mesne profits from the appellant/applicant”. The

Respondent has, thus, given up the monetary relief granted to her under the

impugned Decree.

Conclusion:

112. It may be observed that the possession of the suit property has already

been delivered to the Plaintiff on 26.11.2024 in the execution proceedings.

113. In so far as grant of Rs.1,00,000/- towards damages/mesne profits

along with interest, is concerned, the respondent has given up the right to

seek its recovery, as per the statement made in the Court, on 07.05.2025.

114. In view of the foregoing discussion, it is held that there is no merit in

the present Appeal, which is hereby, dismissed.

115. The pending Application(s), if any, are also disposed of, accordingly.

(NEENA BANSAL KRISHNA)

JUDGE

SEPTEMBER 22, 2026/R