Shri Dhanpat Rai Gupta vs Shri Kashmiri Lal & Ors

* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
% Reserved on: 16 March, 2026
th
Pronounced on: 29 June, 2026

+ RSA 266/2013 & CM APPL. 19811/2013
SHRI DHANPAT RAI GUPTA
S/o Late Sh. Chiranji Lal
R/o F-120, Ashok Vihar, Phase- I
Delhi- 110052
.....Appellant
Through: Mr. Dalip Kumar Malhotra and
Mr. Rajesh Kumar Malhotra, Advs.

versus

1. SHRI KASHMIRI LAL GUPTA (SINCE DECEASED)
Represented Through Legal Heirs/Representatives

1(a) SMT. JAGDISH GUPTA
W/o Late Shri Kashmiri Lal Gupta
R/o Khasra No.429/135/1,
Adarsh Nagar Extension,
G.T. Karnal road,
Delhi-110033.

1(b) SHRI BHARAT GUPTA
S/o Late Shri Kashmiri Lal Gupta
R/o Khasra No.429/135/1,
Adarsh Nagar Extension,
G.T. Karnal road,
Delhi-110033.

1(c) SHRI NISHANT GUPTA
S/o Late Shri Kashmiri Lal Gupta
R/o Khasra No.429/135/1,
Adarsh Nagar Extension,
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Signing Date:29.06.2026
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G.T. Karnal road,
Delhi-110033.

2. SMT. ANGOORI DEVI (SINCE DECEASED)
Through Legal Representatives

3. SHRI JAGAT NARAIN GUPTA
S/o Late Shri Ram Gopal Gupta
R/o D-50, Bhagat Singh Road,
Gali No.5, Majlis Park, Adarsh Nagar,
Delhi-110033.

4. SHRI LAJPAT RAI GUPTA
S/o Late Sh. Ram Gopal Gupta
R/o Khasra No.429.135/1,
Adarsh Nagar Extension,
G.T. Karnal Road, Delhi-110033.

5. SHRI BHARAT BHUSHAN GUPTA
S/o Late Sh. Ram Gopal Gupta
R/o Khasra No.429.135/1,
Adarsh Nagar Extension,
G.T. Karnal Road, Delhi-110033.

6. SMT. SHAKUNTALA DEVI
D/o Late Sh. Ram Gopal Gupta
R/o D-50, Bhagat Singh Road,
Gali No.5, Majilis Park, Adarsh Nagar,
Delhi-110033.

7. SMT. VIJAY BANSAL (SINCE DECEASED)
(Ordered to be deleted in terms of
Order dated 23.03.2015)

8. Ms. CHARU BANSAL
D/o Late Smt. Usha Bansal
(D/o Late Sh. Ram Gopal Gupta)
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R/o A-10, Adarsh Nagar,
Delhi-110033.

9. SHRI SAHIL BANSAL
S/o Late Smt. Usha Bansal
(D/o Late Sh. Ram Gopal Gupta)
R/o A-10, Adarsh Nagar,
Delhi-110033.

10. SMT. SAVITRI GUPTA
W/o Late Sh. Raghu Nath Gupta
R/o Block No. E-3, House No. 31
Sector- 7, Rohini,
Delhi-110085.

11. SH. MUKESH CHAND GUPTA
S/o Late Sh. Raghu Nath Gupta
R/o Block No. E-3, House No. 31
Sector- 7, Rohini,
Delhi-110085.

12. SH. NARESH CHAND GUPTA
S/o Late Sh. Raghu Nath Gupta
R/o Block No. E-3, House No. 31
Sector- 7, Rohini,
Delhi-110085.

13. SMT. AARTI GOEL
W/o Late Sh. Ajay Goel
(S/o Late Sh. Raghu Nath Gupta)
R/o 25-1/8, Shakti Nagar, Delhi
.....Respondent
Through: Mr. Kunwar Karan and Sourabh
Dhall, Advs. for R-4 & R-5. Mr.
Shekhar Dasi, Mr. Mohd Talha, Mr.
Ayush Dassi and Mr. Divyansh
Malhotra, Advs. for LR‟s R-1.
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CORAM:
HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA
J U D G M E N T
NEENA BANSAL KRISHNA, J.
1. The present Regular Second Appeal under Section 100 of the Code
of Civil Procedure, 1908 (CPC) has been filed against the Judgment and
Decree dated 17.09.2013 passed in RCA No. 10/2010, whereby the learned
ADJ set aside the Judgment and Decree dated 21.01.2008 of the learned
Civil Judge decreeing the Suit of the Plaintiff/Appellant for possession,
Injunction, Damages and in alternative for partition.
2. The Plaintiff had filed a Suit bearing No. 44/2001 for Possession,
Damages, Injunction and in alternative for Partition, under Section 6 and 9
of the Specific Relief Act, 1963.
3. The facts as narrated in the Plaint, are that the plaintiff Sh. Dhanpat
Rai Gupta, defendant no. 1, Sh. Kashmiri Lal Gupta, defendant no. 2, Sh.
Ram Gopal Gupta and Late Sh. Raghu Nath Gupta (husband of Defendant
no. 3(a) and father of Defendants no. 3(b) to Defendant no. 3(d)) were four
real brothers, who jointly purchased land admeasuring 18 bighas and 6
biswas situated in Village Pipal Thala, Delhi, out of which 11 bighas and 6
biswas comprised Khasra No. 429/135/1, vide Sale Deed dated 14.07.1954.
It is asserted that the land was purchased for residential purposes. After
developing and levelling the land, the brothers reserved approximately 1
bigha and 2 biswas (subsequently increased to about 1300 sq. yards) for
their own use, while the remaining portion was divided into residential plots
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and sold to various persons. The sale consideration of all the plots sold, was
divided amongst the brothers.
4. The Plaintiff further asserted that in order to avoid future disputes, the
brothers entered into an oral family settlement, whereby each brother
became entitled to exclusive ownership and possession of the portion of the
land under his occupation. Each of the brothers occupied separate portions
of the property. Sh. Dhanpat Rai deposited development charges in respect
of the portion claimed by him, on 20.10.1986. Defendant No. 2 and the
husband/father of Defendants Nos. 3(a) to 3(d) also deposited development
charges, concerning their respective portions.
5. It was further asserted that the parties submitted building plans to the
concerned Authorities, paid development charges and house tax in respect
of their respective portions, and that municipal records reflected them as
owners of their respective shares.
6. Thereafter, they all raised constructions thereon, to meet their
residential and commercial requirements. Defendant No. 1 and Defendant
No. 2 raised constructions on separate portions of the property, to meet their
residential requirements. Sh. Raghu Nath Gupta, husband/father of
Defendants Nos. 3(a) to 3(d) also constructed upon a separate portion of the
land. The Plaintiff, on his part, constructed two shops and laid the
foundation of a hall and other structures up to the plinth level, on the portion
occupied by him. The construction raised by Plaintiff and defendants was
reflected in the site plan filed along with the Plaint, by the plaintiff.
7. It was also claimed that electricity connections in his portion, stood in
the names of his wife and son, except for one small shop for which
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installation charges had already been deposited by him, vide Receipt No.
159880 dated 30.12.1987.
8. The Plaintiff asserted that though no formal partition by metes and
bounds was affected, each party acted upon the Settlement, by raising
construction on the portion allotted to him, ensuring that every brother had
access to at least two shops or an equivalent area facing the road.
9. The Plaintiff claimed that he had constructed two shops, marked as
Shop 'A' and Shop 'B', along with a hall up to the plinth level, while the
remaining area was left vacant. Shop 'B' was being used by his son, Sh.
Kailash Chand Gupta, as an office for carrying on his profession as a
Chartered Accountant, whereas Shop 'A' remained vacant.
10. According to the Plaintiff, Defendant No. 1, being his brother,
occasionally took the keys of Shop 'A' for temporary storage purposes and
returned them, after use. While Defendant No. 1 resided within the same
property, the Plaintiff was residing at Ashok Vihar, Phase-I, Delhi.
11. The Plaintiff alleged that in July 1990, the Defendant No. 1 attempted
to assert rights over Shop marked 'A', by placing his own lock thereon,
without the Plaintiff's consent. The matter was reported to the Police by the
Plaintiff's son, on 07.07.1990. It is stated that upon intervention by family
members, Defendant No. 1 removed the lock and agreed not to interfere
with the Plaintiff‟s possession.
12. However, on 24.07.1990, Defendant No. 1 allegedly made another
attempt to dispossess the Plaintiff from Shop marked 'A,' by breaking open
the existing lock and placing his own lock on the premises, though such
attempt was resisted by the Plaintiff's son. The Plaintiff asserts that Shop
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marked 'A' exclusively fell to his share under the oral Family Settlement and
that Defendant No. 1 had no right, title, or interest therein. In view of the
aforesaid incidents, the Plaintiff instituted a Suit for Permanent Injunction
against the Defendant No. 1 .
13. It was further alleged that during the pendency of the said
proceedings, Defendant No. 1, taking advantage of the disruption of court
work on account of a lawyers' strike, forcibly dispossessed the Plaintiff from
Shop 'A' and the adjoining portion marked 'AA' on the night of 20.02.1992
by breaking open the lock of Shop 'A'. According to the Plaintiff, the portion
marked 'AA', situated behind Shop 'A', had no independent access and could
be approached only through Shop 'A'. The Plaintiff, therefore, claimed that
Defendant No. 1 was in unauthorized possession of the said portions.
14. On the basis of the aforesaid averments, the Plaintiff sought recovery
of possession of Shop 'A' and portion 'AA' ( hereinafter referred as „Suit
property‟ ), claiming that he had been dispossessed therefrom, within six
months prior to the institution of the suit and was therefore, entitled to relief
under Sections 6 and 9 of the Specific Relief Act.
15. The Plaintiff also claimed damages of Rs. 5,000/- against the
defendant no. 1 and future damages along with it. In the alternative, it was
prayed that if the oral Family Settlement was not accepted, the suit property
be partitioned by metes and bounds. The Plaintiff, therefore, filed a Suit for
Possession, Damages, Injunction for shop marked „A‟ and portion marked
„AA‟ as shown YELLOW in the site plan, forming part of premises No. K-
429/135, Sarai Pipal Thala Extension, Adarsh Nagar, Delhi.
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16. Defendant No. 2, Sh. Ram Gopal Gupta and Defendant Nos. 3(a)
to 3(d), filed a joint Written Statement wherein they substantially
supported the case of the Plaintiff. They admitted the factual averments
made in the plaint and asserted that an oral Family Settlement was arrived
amongst the brothers, pursuant to which each brother had been allotted
approximately equal portion.
17. It was further stated that the brothers entered into an Oral Family
Settlement, keeping in view the family relationship and with a view to
avoiding future disputes and inconvenience, which had been fully acted
upon by the parties. The said Defendants also asserted that a Memorandum
recording the terms of the family settlement, was subsequently executed
amongst the parties, which was signed by all the brothers.
18. Defendant No. 2 and Defendant Nos. 3(a) to 3(d) further endorsed
that Defendant No. 1 was a trespasser in respect of the portion claimed by
the Plaintiff. According to them, the construction existing over the disputed
portion, had been raised by the Plaintiff and the Plaintiff was the exclusive
owner and in possession thereof, pursuant to the family settlement. It was
further admitted that Defendant No. 1 had illegally dispossessed the Plaintiff
from the said portion.
19. Defendant No. 2 and Defendant Nos. 3(a) to 3(d), thus, supported the
Plaintiff's claim for recovery of possession, against Defendant No. 1.
However, they opposed the alternative relief of partition sought by the
Plaintiff, contending that the property already stood divided amongst the
brothers under the oral Family Settlement, which had been duly acted upon.
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20. In the amended Written Statement , Defendant No.1 denied the
averments made in the Plaint. Defendant No. 1 contended that the Suit was
not maintainable and was barred under Order IX Rule 9 CPC, as an earlier
Suit on the same cause of action, had been withdrawn without liberty to
institute a fresh Suit. It was further pleaded that the alternative relief of
Partition had already been rejected by Order dated 08.05.1995, and
therefore, could not be reagitated in the present proceedings.

21. It was also contended that the Suit was barred under Order II Rule 2
CPC and had been filed in collusion with the other Defendants, with a view
to defeat the rights of Defendant No. 1.
22. It was further claimed that the Suit had not been properly valued for
the purposes of court fee and jurisdiction; that the plaint disclosed no cause
of action, and that the site plan filed by the Plaintiff was incorrect and
fabricated.
23. Defendant No. 1 also claimed to be the owner and person in
continuous, uninterrupted possession of the disputed property, for more than
23 years.
24. On merits, it was admitted that the Plaintiff, Defendant Nos. 1 and 2,
and the husband/father of Defendant Nos. 3(a) to 3(d) had jointly purchased
land measuring 18 bighas and 6 biswas, but contended that purchased 5
bigha 12 biswas of land was falling in Khasra no. 120, 122, 124 and 126 and
admitted that the total land purchased by all the four brothers made a total to
18 bigha 6 biswas . According to Defendant No. 1, the parties had purchased
different parcels of land, portions of which were sold over time, and the
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remaining land had already been divided amongst the four brothers in equal
shares, prior to 1966.
25. Defendant No. 1 asserted that he and Defendant No. 2 had developed
and occupied their respective portions between the years 1973 and 1975,
whereas the Plaintiff and the predecessor-in-interest of Defendant Nos. 3(a)
to 3(d) failed to occupy or protect their portions. It was further alleged that
encroachments had taken place over certain portions of land and that
disputes arose only after the area acquired substantial commercial value.
26. It was further contended that the Plaintiff had constructed only Shop
'B' and that Shop 'A' as well as the adjoining portion „AA‟ had always
belonged to and remained in the possession of Defendant No. 1. He further
claimed to have been carrying on business from the said premises for several
years and asserted that he had relevant Municipal and Electricity records,
supporting his possession. While admitting that the son of the Plaintiff, Sh.
Kailash Chand Gupta was operating his Chartered Accountant's office from
Shop 'B', Defendant No. 1 denied that the Plaintiff was ever in possession of
Shop 'A' or portion 'AA'.
27. Defendant No. 1 specifically denied the allegations of dispossession
and asserted that he had been in continuous possession of Shop 'A' and
portion 'AA', since 1960.
28. All the averments made in the Plaint were denied and it was claimed
that the Suit was liable to be dismissed.
29. The Plaintiff in his Replication, denied the preliminary objections
and averments contained in the amended Written Statement of Defendant
No. 1 and reiterated the case set up in the plaint. It was asserted that the
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parties were real brothers and that the oral Family Settlement had been
accepted and acted upon by all concerned, except Defendant No. 1.
30. The Plaintiff further contended that Defendant No. 1 was estopped
from disputing the family settlement and the extent of the suit property,
having previously taken a contrary stand before various authorities,
including the documents submitted for obtaining electricity connections. The
allegations regarding unequal distribution of land, encroachments, and
acquisition of additional land by Defendant No. 1, pursuant to settlement of
partnership accounts, were specifically denied.
31. It was further pleaded that the portions marked 'A' and 'AA' did not
form part of the property claimed by Defendant No. 1 and that his
occupation thereof, was unauthorized. The Plaintiff also alleged that
Defendant No. 1 had let out the disputed premises during the pendency of
the Suit and was deriving rental income therefrom, thereby rendering
himself liable to pay damages/mesne profits. The Plaintiff reaffirmed their
assertions, as made in the Plaint.
32. Upon consideration of the pleadings of the parties, the Issues were
framed on 10.10.2001, as under:
“(1.) Whether the suit has been properly valued for the
purpose of Court fees and jurisdiction? OPP
(2.) Whether the suit is barred by Order 2 Rule 2 CPC?
OPD
(3.) Whether the plaintiff has no locus standi to file the
present suit? OPD
(4.) Whether the defendant is owner and in possession of the
suit property as alleged in preliminary objection no. 8?
OPD
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(5.) Whether the property has already been partitioned by
oral family settlement? OPP
(6.) Whether the plaintiff is entitled to relief of possession as
prayed? OPP
(7.) Whether the plaintiff is entitled to the relief of damages,
if so at what rate? OPP
(8.) Whether the plaintiff is entitled to the relief of
injunction or in the alternative for partition as prayed?
OPP
(9.) Relief.”

33. The Plaintiff examined five witnesses to support his contentions
including himself.
34. PW-1, Sh. Ajay Jain, Clerk, Assistant Grade-I O/O DVB, 1,
Rajasthani Udyog, produced the summoned record relating to the electricity
connection. He proved the copy of the Application of Sh. Kashmiri Lal, the
Agreement and Receipt pertaining to the electricity connection, as Ex. PW-
1/1 (Colly), and his affidavit as Ex. PW-1/2.
35. PW-2, Sh. Satbir Singh, Halka Patwari, produced the summoned
revenue record, namely the Khasra Girdawari and Jamabandi pertaining to
Village Pipal Thala in respect of Khasra No. 429/135/1. His examination-in-
chief was, however, deferred at the request of learned counsel for the
Plaintiff.
36. PW-3, Sh. Dinesh Mittal, LDC, Office of Sub-Registrar-I proved the
certified copy of the said Sale Deed registered on 19.04.1966, in favour of
Ch. Kali Ram as Ex. PW-3/1.
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37. PW-4 (sic) Sh. Dhanpat Rai Gupta, the Plaintiff tendered his
affidavit of evidence, Ex. PW-4/A and deposed about the facts as narrated in
the pleadings.
38. PW-4, Sh. Brij Mohan, LDC, produced the summoned record
pertaining to an application filed by Sh. Kailash Chander Gupta under the
Ad-hoc Registration Scheme, 1990 in respect of property bearing No. K-
429/135/1A, Adarsh Nagar Extension, Delhi. He deposed that an ad-hoc
Licence bearing No. 1818 dated 11.04.1991 was granted, after verification.
He proved the copy of the licence as Ex. PW-4/1 and the site plans filed by
the Applicant, as Ex. PW-4/2 and Ex. PW-4/3.
39. In Defence, Defendant No. 1 examined himself as DW-1 and tendered
his affidavit by way of evidence, Ex. DW-1/A. Defendant No. 1 deposed on
similar lines as his defence in the Written Statement. He affirmed that the
partition had taken place in the year 1966 and denied the Plaintiff‟s case
regarding the oral Family Settlement of 1986.
40. Defendant no. 2 and Defendant Nos. 3(a) to 3(d) did not lead any
evidence.
41. The learned Civil Judge upon appreciation of pleadings and evidence,
held that the Plaintiff had succeeded in establishing the existence of the oral
Family Settlement amongst the brothers, pursuant to which each brother
came into exclusive possession of the portion allotted to him. The Ld. Civil
Judge observed that the said arrangement had been acted upon by the parties
for several years and found support from the conduct of the parties,
municipal records, payment of development charges, and other
contemporaneous documents.
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42. It was further held that Defendant No. 1 had failed to substantiate his
plea of an oral partition allegedly effected in the year 1966, as the alleged
partition was neither reduced into writing nor reflected in any revenue or
official record. The Court also took note that Defendant No. 2 and
Defendant Nos. 3(a) to 3(d) had supported the Plaintiff's case and admitted
the oral family settlement pleaded in the plaint.
43. It was further found that the Defendant No. 1 had failed to produce
cogent evidence to establish either his ownership thereof or his possession
prior to the alleged dispossession. The Court accordingly, concluded that
Defendant No. 1 had unlawfully occupied the disputed portions and was
liable to restore possession thereof to the Plaintiff. The Suit of the Plaintiff
for possession of the suit property was consequently decreed with costs,
vide Judgment dated 21.01.2008.
44. Aggrieved by the aforementioned judgement, Regular Civil Appeal
RCA No. 10/2010 was filed by the Defendant No. 1. The Learned ADJ,
upon re-appreciation of the evidence on record, held that the findings by the
learned Tral Court, were not sustainable. The Plaintiff's claim was founded
upon an alleged oral family settlement, but no cogent evidence had been
produced to establish either the terms of such settlement or the exclusive
allotment of the disputed portions marked 'A' and 'AA,' in favour of the
Plaintiff.
45. It was further held that the suit property originally belonged jointly to
the four brothers and that the Plaintiff had failed to establish that the
disputed portion, had exclusively fallen to his share. The Ld. ADJ held that
Defendant No. 1 had been in long and settled possession of the suit property
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and that the evidence led by the Plaintiff was insufficient, to establish
dispossession in the manner alleged. The learned ADJ, vide Judgment dated
17.09.2013, allowed the Appeal and set aside the impugned Judgment and
decree dated 21.01.2008.
46. Being aggrieved thereby, the present Regular Second Appeal has
been preferred.
47. The grounds of challenge are that the learned First Appellate Court
erred in reversing the Judgment and Decree passed by the learned Trial
Court, despite the same being founded upon a proper appreciation of the oral
and documentary evidence. It was contended that the findings returned by
the First Appellate Court, were based on surmises and conjectures and
ignored material evidence supporting the Plaintiff's case.
48. It was further contended that the learned First Appellate Court failed
to appreciate that the parties had acted upon the oral family settlement
arrived at in October, 1986, whereby the remaining land measuring
approximately 1300 sq. yards was divided amongst the four brothers.
According to the Appellant/Plaintiff, the said settlement stood corroborated
by the site plan, affidavits filed before public authorities, municipal records
and the long-standing conduct of the parties.
49. It was asserted that the learned First Appellate Court wrongly
discarded the Plaintiff's case regarding the Family Settlement of 1986,
despite the fact that Defendant No. 2 and Defendant Nos. 3(a) to 3(d) had
supported the Plaintiff's version and admitted the settlement, in their Written
Statement. The Appellant contended that the evidence and admissions
supporting the settlement, were ignored without any valid justification.
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50. It was further contended that both the courts below had rejected the
defence of Defendant No. 1 regarding the alleged partition of 1961/1966.
Therefore, having accepted that only about 1300 sq. yards remained
available amongst the brothers, the learned First Appellate Court erred in
discarding the Plaintiff's case of the Family Settlement of 1986 .
51. It was further contended that the learned First Appellate Court failed
to consider the evidence which supported the family settlement, partition
and possession and also several material documents viz. Memorandum of
Settlement Ex. PW-3/5, Khasra Girdawari, Revenue Records, Site plan Ex.
PW-3/6 depicting the partition, Affidavits of Defendant No. 1 Ex. PW-1/1
and Ex. PW-1/2, acknowledging the extent of his possession, House tax
assessment records, MCD Inspection Report, Receipts of payment of
development charges and electricity installation charges, as well as the
admissions made by Defendant No. 2 and Defendant Nos. 3(a) to 3(d), in
support of the Plaintiff's case.
52. The aforesaid evidence established the oral family settlement of 1986,
the Plaintiff's possession over the disputed portions and the subsequent
encroachment by Defendant No. 1. According to the Appellant, the failure
of the learned First Appellate Court to consider the said material evidence,
rendered the impugned judgment perverse and unsustainable in law.
53. Reliance was placed on Haran Haldar & Ors. vs. Union of India, 150
(2008) DLT 277, wherein the Hon‟ble Court has held that where two view
are possible, the one accepted by the trial court would bind the First
Appellate Court.
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54. The Appellant also relied on the case of L.N. Aswathama & Anr. vs.
P. Prakash (2009) 13 SCC 229, wherein it was held that where the Trial
Court has considered the entire evidence and recorded reasoned findings, the
first Appellate Court cannot reverse the same without independently
examining the evidence in its entirety.
55. The substantial question of law, which arise for consideration, are
proposed as under:
“a. Whether the findings recorded by First Appellate Court,
contrary to findings recorded by Trial Court valid without
considering the material evidence, documents and
admission on record are perverse and illegal?
b. Whether the Ld. First Appellate Court was legally
justified in interfering with finding of fact recorded by Ld.
Trail Court based on pleading, evidence & documents on
record, particularly when same is a plausible view?
c. Whether the Memorandum recording the Family
Settlement executed between brothers is admissible in
evidence in suit where Oral Family Settlement between
brothers is pleaded and month with year of partition is
pleaded in Replication?
d. Whether the averments in replication filed by
Appellant/Plaintiff is part of pleadings and same could be
ignored in law?
e. Whether the admission of one of the Defendant are
binding and can be used against Respondent unless same is
proved by party making admission as false or untrue under
Section 17 of Evidence Act even without proving in view of
Section 58 of Evidence Act.
f. Whether admission of one of the Defendant to suit in its
pleading can be used Plaintiff in support of its case only if
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the party making admission appears as a witness and not
otherwise?
g. Whether Memorandum recording family settlement is
evidence in support of oral family settlement between
brothers and need not be pleaded as a fact in pleadings?”
h. Whether the First Appellate Court in Appeal is legally
justified in rejecting the documents admitted in evidence
during trial and Exhibited without any objection?
i. Whether an issue No.4 framed by Court could be decided
in favour of party who failed to prove the same during trial.

56. It is therefore, submitted that the impugned Judgment dated
17.09.2013, be set aside.
57. Written submission filed on behalf of the Appellant reiterate the
averments and contentions urged in the present Appeal.
58. Written submission has also been filed by the LR’s of Respondent
No. 1, setting out the chronology of events, that have transpired in the
present proceedings. It is contended that the Appellant, under the guise of
raising substantial questions of law, seeks a re-appreciation of the evidence
and factual findings recorded by the courts below.
59. Reliance has been placed on Krishna Devi v. Kartar Singh Bidhuri ,
2014 (208) DLT 517, wherein it was held that re-appreciation of facts and
evidence, does not give rise to a substantial question of law within the
meaning of Section 100 CPC.
60. The Respondents have also placed reliance upon Nazir Mohamed v. J.
Kamala & Ors. , Civil Appeal Nos. 2843-2844 of 2010, and Chandrabhan
(Deceased) through LRs v. Saraswati & Ors. , Civil Appeal No. 6857 of
2022.
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Submissions heard and record perused.
61. It is an admitted case of the parties that Plaintiff, Sh. Dhanpat Rai
Gupta, Defendant No.1, Sh. Kashmiri Lal Gupta, Defendant No.2, Sh. Ram
Gopal Gupta, and their brother, Sh. Raghu Nath Gupta ( husband of
Defendant No.3(a) and father of Defendant No.3(b) to (d) ), were four real
brothers who had jointly purchased land admeasuring 18 bighas and 6
biswas in village Pipal Thala, Delhi. Out of this land, 11 bighas and 6
biswas was in Khasra No.429/135/1. The said land was purchased for
residential purposes, vide Sale Deed dated 14.07.1954.
62. Thereafter, the four brothers, for the purpose of improving,
developing, and levelling the land, reserved about 1 bigha 2 biswas
(approx.1100 sq. yards which was subsequently increased to 1300 sq.
yards), out of the purchased land for their own use, while the remaining land
was divided into residential plots and were sold to different persons. The
sale consideration so realized, was equally divided amongst the four
brothers. Shri Raghu Nath Gupta died on 27.08.1989, after which Defendant
No.3(a) to (d), his legal heirs, became the joint owners of his share in the
subject property.
63. Defendant No.2 and 3 essentially admitted the facts, as stated by the
Plaintiff.
64. However, Defendant No.1, in his Written Statement , explained that
the total land purchased jointly was 18 bighas 6 biswas, out of which the
land admeasuring 12 bighas and 14 biswas, formed part of Khasra
No.429/135 which was purchased from the erstwhile owner, Shri Ram
Swaroop and his son, Shri Braham Prakash Aggarwal and was duly mutated
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in the Revenue Records in 1954 vide document Ex.DW1/1, in the name of
all the four brothers.
65. Thereafter, the four brothers purchased 5 bighas and 12 biswas of
land falling in Khasra No.120, 122, 124 and 126 , which was situated away
from the main road. It was thus, explained how the total land admeasuring
18 bighas and 6 biswas, was purchased by the four brothers.
66. It is further not denied that the Plaintiff as well as the three brothers,
sold the entire land of 5 bighas and 12 biswas jointly in the year, 1966 vide
Sale Deed Ex.PW1/8, and no land remained with the parties, in the said
Khasra No.120, 122, 124 and 126 .
67. It was further explained by Defendant No.1, in his Written Statement,
that four plots of 200 sq. yards each i.e. total land of 800 sq. yards, was
carved out of Khasra No.429/135 admeasuring 12 bighas and 14 biswas, and
the sale proceeds were divided amongst the four brothers, prior to 1966.
The Defendant No.1 got land admeasuring 2975 sq. yards while Plaintiff,
Defendant No.2 and Late Shri Raghu Nath Gupta also got land admeasuring
2975 sq. yards each.
68. Defendant No. 1 further explained that the Plaintiff and Defendant
No.2, Ram Gopal Gupta, sold their respective share of 2500 sq. yards each
whereas Defendant No.1 and Shri Raghu Nath Gupta sold 2000 sq. yards
land separately, vide Sale Deeds Ex.DW1/3 to Ex.DW1/6.
69. The Defendant No.1 and Defendant No.2 raised construction of their
portion of land after developing it, between 1973 to 1975, and occupied their
portion. However, Plaintiff and Late Shri Raghu Nath Gupta did not occupy
and protect their portions. The Plaintiff was residing in his own house in
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Ashok Vihar since 1968, while Raghu Nath Gupta was residing in Shakti
Nagar, much prior to 1966.
70. Out of the land admeasuring 975 sq. yards, some portion is lying open
as a thada/compound in the front portion of Defendant No.1, while some
portion of land belonging to Defendant No.1, has been encroached with
passage of time, by Plaintiff and Defendant No.2 and 3. It was claimed that
it was possible that the shares of Plaintiff and Defendant No.3, have been
encroached by land grabbers, as they were not in possession of their entire
portion and were not taking care of their lands. Defendant No.1 intimated
them several times, but they did not bother as they were living in their own
respective houses. It is only because of shifting of Azadpur Mandi and
development of Adarsh Nagar near the property in question, that it acquired
value, which increased the lust and greed of Defendant No.3 Raghu Nath
Gupta and Plaintiff, who initiated litigation against Defendant No.1, instead
of taking care of their land which had been lost due to their own negligence.
71. Defendant No.1 further claimed that the land got divided by metes
and bounds, between the parties. In his Affidavit of evidence Ex.DW1/A,
Defendant No. 1 had explained that after the sale of 5 bighas and 12 biswas
of land in Khasra No.120, 122, 124 and 126 in the year 1966 and further sale
of 4 plots of 200 sq. yards each in Khasra No.429/135/1, and sale of
individual plots by the four brothers, there were 4 plots of 200 sq. yards each
that remained, which were divided between the four brothers in equal share,
prior to1966. However, DW1 in his cross-examination further stated that
“ at present approx. area of 1300 sq. yards of land is in the possession of the
brothers including me wherein I have possession 775 sq. yards. Plaintiff,
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Defendant No.2 and Defendant No.3 are in occupation of 200 sq. yards of
area belonging to me and they are also in possession of 325 sq. yards of
land belonging to them ”.
72. The Plaintiff asserted that the Suit property was never partitioned and
was always in joint possession of all four brothers; the Plaintiff in the
alternative had sought partition of the Suit property by metes and bounds.
However, as is admitted by the Plaintiff as well as the Defendant No.1, that
while 5 bighas and 11 biswas of Khasra No.122 had been sold jointly, the
Plots in Khasra No.429/135 had been sold vide separate Sale Deeds
Ex.DW1/3 to Ex.DW1/6, by the four brothers.
73. This reflects that the four brothers had mutually divided the property
orally and had sold the land separately, by virtue of the individual Sale
Deeds. Had the property not been so agreed to be divided amongst the
brothers, there would not have been separate Sale Deeds executed by the
four brothers.
74. It is not in dispute that about 1300 sq. yds. were remained from the
entire plot of land, that was purchased by them. It is also an admitted case
that the remaining land was divided into plots of 200 sq. yards each, which
were respectively in possession of the four brothers, a fact admitted by
Defendant No.1 in his cross-examination.
75. The Plaintiff explained that while Defendant No.1 and 3 had been
residing in the area, they both had constructed their residential premises.
The Plaintiff had constructed two shops and left other area open. Likewise,
Ram Gopal Gupta, who was also residing in Shakti Nagar, had raised
limited construction, on his portion. The plaintiff further deposed that
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because the shops were lying vacant and they were not residing there, the
portion of their property, i.e. Shop A and the portion behind it, ( which is the
suit property ) had been encroached by Defendant No.1.
76. Admittedly, the parties had entered into a Memorandum of Oral
Partition in October, 1986 Ex.PW3/5, which bears the signatures of all four
brothers. Therein, it was specifically recorded that for the better use and
enjoyment of the property that had been purchased jointly in equal shares
admeasuring 1027.005 sq. mtrs., had been divided equally. Ram Gopal
Gupta on partition, had accepted 256.26 sq. mtrs., Dhanpat Rai Gupta
(Plaintiff) got 242.09 sq. mtrs., Raghu Nath Gupta got 251.38 sq. mtrs. and
Kashmiri Lal Gupta got 277.30 sq. mtrs. It was further recorded in the
Settlement, that there was no formal Deed of Partition that was executed by
the parties and the property had been partitioned by metes and bounds
amongst the above-named parties, by their conduct.
77. It has been explained by the Plaintiff that since the construction of
residential houses had been done by Defendant No.1 and 2, the parties
recorded the Memorandum of Partition specifying the areas which were not
exactly the same, because the parties had agreed to not disrupt the residential
houses, which had already been constructed by Defendant No.1 and 2. This
explains the minor variation in the size of plots that came to the share of
four brothers.
78. Along with this Memorandum of Oral Partition, was the Site Plan
Ex.PW3/6 which also identified the share of Plaintiff as in yellow colour;
while that of Defendant No.1 Kashmiri Lal Gupta in Red colour; the portion
in the share of Ram Gopal Gupta was indicated in Brown colour; and that
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coming to the share of Raghu Nath Gupta was indicated in green colour.
Essentially, there is no challenge to this site plan Ex.PW3/6, annexed along
with the Memorandum of Settlement Ex.PW3/5.
79. The Plaintiff further deposed that Memorandum of Settlement had
been duly acted upon, as in response to Public Notice Ex.PW3/8 issued by
MCD in the newspaper for approval of building in regularized unauthorized
colonies, the Plaintiff and his two brothers Ram Gopal Gupta and Raghu
Nath Gupta had submitted this site plan, which was duly certified by
registered Architect. The Plaintiff had deposited first instalment of
Development Charges @ Rs.50/-, in the office of MCD. The copy of the
documents including the site plan submitted in MCD, are collectively
Ex.PW3/7.
80. The Plaintiff further stated that Defendant No.1 while applying for
electricity connection pursuant to this Family Settlement, he had submitted
an Affidavit dated 05.08.1985 for his plot area and deposited the
Development Charges @ Rs.12 per sq. yard amounting to Rs.3,000/- in
DESU, for obtaining the electricity connection dated 07.08.1985, confirming
that Defendant No.1 was the owner of the Plot admeasuring 250 sq. yds.
81. The Defendant No.1 had also been paying House Tax for the four
rooms constructed by him on his plot of 250 sq. yards, which had fallen to
his share in the Family Settlement. The copy of Inspection Form „A‟, on the
basis of which the House Tax had been assessed, is Ex.PW3/9.
82. The Plaintiff had explained that he had constructed two shops Mark A
and B in the Site Plan Ex.PW3/6, besides the hall up to plinth level shown in
Yellow colour and the remaining portion was left open. The Plaintiff also
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had applied for electricity connection for his portion of the property
comprising of two shops in the name of his wife, Prem Lata Gupta and son
Kailash Chand Gupta. His son Kailash Chand Gupta had also deposited
Electricity Development Charges with DESU, vide Receipt dated
23.09.1987 and Receipt dated 05.02.1988 Ex.PW3/11 collectively.
83. The electricity connection was given in respect of one shop, where his
son Kailash Chand Gupta had the ad-hoc registration license for running his
shop, by the MCD vide Sanction Letter dated 16.02.1991 Ex.PW3/10. The
DESU issued a Certificate dated 01.02.1989 Ex.PW3/12, sanctioning the
electricity connection.
84. The Plaintiff further explained that the electricity connection in
respect of second shop had been sanctioned in the name of his wife, but was
not installed as the shop was lying vacant, as per the Report of the Inspector.
The copy of the Letter dated 16.03.1988 received by his wife is Ex.PW3/13.
85. In the shop Mark B, his son was running his office as a practising
Chartered Accountant, whereas the Shop No. A was lying vacant since long.
The keys of the shop Mark A were kept by him and his son, but at times it
was used by Defendant No.1 for storage, which he did not object since he
was his brother. The Defendant No.1 would return the key after a few days
of using the shop. The Defendant No.1 was having his residence in his plot,
while Plaintiff was residing in Ashok Vihar, Phase-I, Delhi and keeping
their relations, he often obliged Defendant No.1 and let him use the shop
which was lying vacant, though it was in his possession.
86. The Plaintiff had thus, explained that he and Defendant No.1 were
having separate electricity connections in their respective portions, except
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one small shop for which he had deposited the charged vide Receipt dated
30.12.1987 Ex.PW3/14. He further deposed that all the brothers were
enjoying their respective plots which had fallen to their share as owners
exclusively, without any interference of the other party.
87. The Plaintiff claimed that somewhere in July, 1990 the intentions of
Defendant No.1 became mala fide and without authority, consent or
approval of the Plaintiff, he broke open the lock of shop A in the portion
marked in yellow colour in site plan Ex.PW3/6, which belonged exclusively
to the Plaintiff. The matter was reported to the Police on 07.07.1990 but
with the intervention of the family members, Defendant No.1 agreed not to
raise a claim to the shop and to remove his lock, in order to settle the
dispute.
88. However, in the evening of 24.07.1990, the Defendant No.1 again
alleged that the shop Mark A belonged to him and tried to dispossess the
Plaintiff by breaking open the lock and putting his own lock, on Shop Mark
A. The son of the Plaintiff did not allow Defendant No.1 to do so, but the
Defendant No.1 left with a threat that he would take the possession of the
shop and dispossess the Plaintiff.
89. The Plaintiff further explained in his evidence, that because there
were threats from Defendant No.1 to dispossess the Plaintiff from the suit
st
shop, he filed a Suit for Permanent Injunction before the Sub-Judge, 1
Class, Delhi. The Defendant No.1 took advantage as no hearing took place
for a long time because of the Lawyer‟s strike, and on the night of
20.02.1992 dispossessed the Plaintiff from the shop Mark A and the portion
behind it, shown as Mark AA, in site plan Ex.PW3/6, by unauthorizedly
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breaking open the lock on the door of shop Mark A. It was further
explained that the portion Mark AA was behind the shop Mark A and had
not other opening wall for ingress and egress, as the door for its entrance
was provided through shop Mark A, only. The Plaintiff thus, claimed that
though he is the rightful owner of the Suit property, but he has been illegally
dispossessed.
90. From the Memorandum of Settlement Ex.PW3/5 and also the evidence
of the Plaintiff as well as Defendant No.1 , it is established that their
properties stood partitioned and the suit shop had come to the share of
Plaintiff, who was the rightful owner of the Suit property. Admittedly, the
possession of the Suit shop is with the Defendant, which proves that his
possession was unauthorized and illegal, since the suit shop belonged to the
Plaintiff. The learned Civil Judge had rightly decreed the Suit of the
Plaintiff and directed the Defendant No.1 to restore the possession of
portion Mark A and AA to the Plaintiff/Respondent within two months.
91. The Learned ADJ in his Judgment dated 17.09.2013 in the Regular
First Appeal, however, found fault in the reasoning of the learned Civil
Judge and asserted that there was no evidence to prove the partition or that
the Suit shop had come to the share of the Plaintiff. Consequently, the
Appeal was allowed and the Suit of the Plaintiff was dismissed.
92. However, the learned ADJ fell in error in overlooking the admitted
facts and the overwhelming documents produced by the Plaintiff, that
admittedly the plots of land though purchased jointly, were sold vide
separate Sale Deeds. Not only this, each brother had divided the remaining
land equally and raised independent construction. While Defendant No.1
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and Defendant No. 2 had constructed their residential houses, Plaintiff
Dhanpat Rai and Raghunath were residing in Ashok Vihar/Shakti Nagar
thus, had raised partial construction. Plaintiff had constructed two shops. All
this is well documented in the site plan Ex.PW3/6, which was submitted
along with development charges, in the MCD. There were overwhelming
evidence and documents, which are admitted by defendant No.1, to establish
that the partition had taken place way back in 1966.

93. This oral partition is further evidenced by the formal Memorandum
of Partition Ex.PW3/5 which was prepared in October, 1986 which
admittedly had the signatures of all the four brothers. The Site Plan
Ex.PW3/6 annexed with the Memorandum of Settlement, defined the
respective portions of the property which came to the share of the four
brothers. Not only this, the brothers acted upon this Settlement and even
obtained electricity connection for their respective plots. Moreover, the
House Tax was also been paid separately by all the brothers. The parties
had been thus, dealing with their respective shares independently, which is
established that they obtained separate electricity metres for their respective
portions and were paying house tax separately.
94. The Defendant No.1 has contended that the Memorandum of Partition
Ex. PW3/5, is not registered and is inadmissible in evidence . The next
pertinent issue for adjudication in the present Appeal, is : whether the
Family Arrangement dated October, 1986 required compulsory
registration and whether dehors the registration, is not enforceable.
95. The significance and the importance of a Family Settlement was
highlighted in the case of Mathuri Pullaiah vs. Maturi Narasimham and
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Ors ., AIR 1966 SC 1836, wherein it was observed that a family arrangement
resolves family disputes, and that even disputes based upon ignorance of
parties as to their rights, may afford a sufficient ground to sustain it.
96. Likewise, in the case of Ram Charan Das vs. Girjanandini Devi And
Ors. , (1965)3 SCR 841, the Apex Court observed that the consideration for
such a family settlement, is the expectation that such a settlement will result
in establishing or ensuring amity and goodwill amongst persons bearing
relationship with one another. The settlement consisting of recognition of
the right asserted by each other, cannot be permitted to be impeached
thereafter.
97. In the case of S. Shanmugam Pillai and Others vs. K. Shanmugam
Pillai and Others , (1973) 2 SCR 312, the importance of family settlement
was again emphasized by observing that if it is in interest of family peace
and that the family members have settled their disputes amicably. In such
circumstances, the Court would generally lean in favour of the family
arrangement and would be reluctant to disturb the same.
98. The sanctity of the family arrangement can therefore, never be
questioned and once the parties have arrived at a settlement, the general
tendency is to uphold such family settlements.
99. The first aspect is to understand is what arrangement can be termed as
family settlement. Halsbury‟s Laws of England , Vol. 17, Third Edition,
defined a family arrangement as an agreement between members of the
same family, intended to be generally and reasonably for the benefit of the
family either by compromising doubtful or disputed rights or by preserving
the family property or the peace and security of the family by avoiding
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litigation or by saving-its honour. Family arrangements are governed by
principles, which are not applicable to dealings between strangers.
100. Further , Sahu Madho Das and Others vs. Pandit Mukand Ram and
Another, AIR 1955 SC 481 explained the basic eligibility for parties to enter
into a Family Settlement, as under:
“It is well settled that compromise or family arrangement is
based on the assumption that there is an antecedent title of
some sort in the parties and the agreement acknowledges and
defines what that title is, each party relinquishing all claims
to property other than that falling to his share and
recognising the right of the others, as they had previously
asserted it, to the portions allotted to them respectively. That
explains why no conveyance is required in these cases to
pass the title from the one in whom it resides to the person
receiving it under the family arrangement. It is assumed
that the title claimed by the person receiving the property,
under the arrangement had always resided in him or her so
far as the property falling to his or her share is concerned
and therefore no conveyance is necessary.”

101. The Full Bench of Allahabad High Court in Ram Gopal vs. Tulshi
Ram, AIR 1928 All. 641 (FB), observed that a family arrangement could be
oral and if it is followed by a petition in Court containing a reference to the
arrangement and if the purpose was merely to inform the Court regarding
the arrangement, no registration of the said Arrangement was necessary. In
this connection, the Full Bench adumbrated the following propositions in
answering the reference:
“(1) A family arrangement can be made orally.

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(2) If made orally, there being no document, no question of
registration arises.

(3) If though it could have been made orally, it was in fact
reduced to the form of a “document”, registration (when the
value is Rs. 100 and upwards) is necessary.

(4) Whether the terms have been “reduced to the form of a
document” is a question of fact in each case to be
determined upon a consideration of the nature and
phraseology of the writing and the circumstances in which
and the purpose with which it was written.

(5) If the terms were not "reduced to the form of a
document", registration was not necessary (even though the
value is Rs. 100 or upwards); and, while the writing cannot
be used as a piece of evidence for what it may be worth, e.g.
as corroborative of other evidence or as an admission of the
transaction or as showing or explaining conduct.

(6) If the terms were "reduced to the form of a document"
and, though the value was Rs. 100 or upwards, it was not
registered, the absence of registration makes the document
inadmissible in evidence and is fatal to proof of the
arrangement embodied in the document.”

102. The aforesaid principles were analysed and upheld by the Supreme
Court in the landmark Judgment of Kale and Others vs. Deputy Director of
Consolidation and Ors., (1976) 3 SCC 119, wherein, it was observed that the
object of such an arrangement is to protect the family from long drawn
litigation and perpetual disputes, which affect the unity and solidarity of the
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family and create hatred and bad blood between various members of the
family. However, the bonafide and propriety of a family arrangement has to
be judged by the circumstances prevailing at the time when such settlement
was made. The onus of proving the family settlement, lies solely on the
person claiming that a family Agreement existed.
103. Thus, the Supreme Court in Kale and Others (supra) created two
categories of family settlements, one being oral settlement and the other
being written settlements. It was held that the prior does not require
registration however, the latter would be a compulsorily registerable
document. However, in the second category, an exception was carved out,
i.e. if the Memorandum of Family Settlement was reduced to writing only
for the purpose of record or for information of the court for making
necessary mutation, then it would be exempt from registration as the
Memorandum itself does not create or extinguish any rights in the
immovable properties.
104. In Lieutenant Col. Gaj Singh Yadav vs. Satish Chander Yadav, 1999
(51) DRJ 240 , it was explained that if a party had a share in the property,
enlargement of such share by relinquishment or gift by the other defendant,
would not require registration. It is only when a right in the property is
created for the first time by a particular document, that it would require
registration. Therefore, mischief of Section 49 of the Registration Act, 1908
would not fall on an oral settlement.
105. The Apex Court has analysed the effect of non-registration of a
Kharurnama (family arrangement recording past transaction ) in the case
of Korukonda Chalapathi Rao v. Korukonda Annapurna Sampath Kumar ,
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2021 SCC OnLine SC 847 and opined that whether a document by itself
„affects‟, i.e., by itself creates, declares, limits or extinguishes rights in the
immovable properties in question and it is found that the document merely
records past transactions which have been entered into by the parties, and
does not purport to by itself create, declare, assign, extinguish or limit right
in properties, it would not attract Section 49(1)(a) of the Registration Act,
1908. Therefore, a mere recital of what has already taken place, cannot be
held to declare any right and there would be no necessity of registering
such a document.
106. Similarly, in a recent judgement of K. Arumuga Velaiah (Supra) while
emphasizing upon the distinction between Section 17(2) Clause (iv) and
Clause (v) of the Registration Act. 1908, the Court observed that a document
of partition which provides for effectuating a division of properties in future,
would be exempt from registration. It was further crystallized that by virtue
of Section 17(2) Clause (v) Registration Act 1908, any document which
does not in itself create a right, title or interest in any immovable property
but rather creates a right to obtain a subsequent document which when
executed, would create a right in the property, the same does not require
mandatory registration.
107. Similarly , while relying upon the above judgments in the case of
Ravinder Kaur Grewal (Supra), the Supreme court emphasized that since
the parties having acted upon the terms of a disputed Family settlement to
the prejudice of the other party, it was not open to them to resile from the
said arrangement and they were estopped from disowning the arrangement.
The court observed that even in the event a family arrangement has not
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been registered, it would not prejudice its binding nature upon the
members of the family and would continue to act as an estoppel to prevent
members from revoking the family arrangement, if the members have
acted upon it.
108. It is therefore, been well-settled in the light of the Judgments referred
above, that where there is a bona fide dispute between the parties, which is
eventually compromised by each party recognizing an antecedent title in the
other, it is not required to be registered, as it does not purport to create,
assign, limit, extinguish or declare within the meaning of these expressions,
as used in Section 17(1)(b) of the Registration Act, 1908. It is merely a
recital of fact, between the parties, recording that they have come to an
arrangement.
109. The learned ADJ, therefore, erroneously held that there was no
partition or that the possession of the entire area remained joint.
110. The learned Civil Judge had not only rightly appreciated the evidence
but had given cogent reasons, to conclude that the partition had indeed taken
place and the Suit property i.e. the Shop Mark „A‟ and „AA‟ had come
exclusively to the share of the Plaintiff and was being enjoyed by him, and
that the Defendant No.1 had forcibly dispossessed the Plaintiff, in 1992.
111. The impugned Judgment dated 17.09.2013 of learned ADJ in
Regular First Appeal is hereby, set aside and the Decree passed by
learned Civil Judge decreeing the Suit for Possession of the Plaintiff, is
hereby, restored.
112. The Appeal is accordingly, allowed and the Suit of the
Plaintiff/Appellant for possession, is hereby decreed.
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113. The pending Application(s) are disposed of accordingly.

(NEENA BANSAL KRISHNA)
JUDGE
JUNE 29, 2026/R

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