Raj Kumar Aggarwal vs Krishna Devi And Ors

* IN THE HIGH COURT OF DELHI AT NEW DELHI
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% Reserved on: 10 August, 2026
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Pronounced on: 27 October, 2026
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Uploaded on: 29 October, 2026

# CNR No. DLHC010781322023

+ RSA 104/2024 & CM APPL. 35995/2024

SHRI RAJ KUMAR AGGARWAL
S/o Late Shri Suresh Chand
R/o 343, Gali Bajrang Bali,
Chawri Bazar, Delhi-6 .....Appellant
Through: Mr. Siddharth Aggarwal, Adv.

versus

1. KRISHNA DEVI
W/o Late Shri Ashok Kumar .....Respondent No.1

2. SHRI RAVI
S/o Late Shri Ashok Kumar
Both R/o C-7, Ground Floor,
New Police Line, Kingsway Camp,
Delhi-110009. ....Respondent No. 2

3. MUNICIPAL CORPORATION OF DELHI
District Central, Delhi
Through:
Chief Vigilance Officer
Vigilance Department of Delhi (City Zone)
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26 Floor, Civic Centre, Dr. Mukherjeet Marg,
Minto Road,
New Delhi-2 ...Respondent No. 3

4. S.H.O.
P.S. Hauz Qazi,
Delhi-110006. ...Respondent No. 4
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 1 of 23

Through: Ms. Radhika Bishwajit Dubey, CGSC
with Ms. Gurleen Kaur Waraich, Mr.
Kritarth Upadhyay, Mr. Vivek
Sharma, Mr. Amulya Dev Mishra,
Mr. Saksham Sharma and Mr. Ayush
Dogra, Advs. for R-3 & R-4.
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 ( hereinafter referred to as ‘CPC’ ), has been filed
on behalf of the Plaintiff/Appellant against the Judgment dated 21.08.2023
in RCA DJ No. 70/2020, whereby the learned Additional District Judge,
had upheld the Judgment of the learned Civil Judge in Civil Suit No.
98148/2016 (Old CS No. 26/2015) whereby the Suit of the Plaintiff for
Permanent and Mandatory Injunction, was dismissed vide Judgment dated
20.12.2019 .

2. The Plaintiff/Appellant, Mr. Raj Kumar Aggarwal had filed Suit No.
98148/2016 for Permanent and Mandatory Injunction for restraining
Defendants No. 1 to 4 from entering in suit premises and removal of the
encroachment made by them in the suit gallery i.e. First Floor of Property
No. 410-414, Bazar Sita Ram, Delhi-110006 and also to direct the
Defendant Nos. 5 & 6 for removal of the chabutra and the tea stall erected
there over and also for Permanent Injunction to restrain the Defendant Nos.
1 to 4, from creating any nuisance in the suit property and adjoining tea stall
in the Gali.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 2 of 23

3. The facts in brief , as stated in the Plaint, are that Plaintiff, Shri. Raj
Kumar Aggarwal is the co-owner of the suit property having right, title and
interest as a co-owner and is in occupation of the property. The Defendant
No. 1 at first tried to encroach in the suit premises on 05.02.2013 for which,
a Complaint was lodged and she was removed. Thereafter again, on
05.01.2014, Smt. Krishna Devi i.e. the Defendant No. 1, forcibly kept her
belongings in the gallery on First Floor of the suit premises and has also
started staying in the gallery. Apart from this, the Defendant Nos. 1 to 4 had
made an encroachment on the main gate of the suit property. They have
installed a tea stall and have made a pucca chabutra in the street adjoining to
the suit property.
4. It was claimed that even prior to it, the aforesaid Defendants had
broken open the locks of the shop of the Plaintiff in the suit premises and
had committed theft in the shop for which, FIR No. 11 under Section
448/380/34 of the Indian Penal Code, was registered against the Defendant
Nos. 2 to 4. Thereafter, the Defendant No. 1 encroached over the gallery by
putting her belongings in huge quantity and has even started residing in the
gallery.
5. The Plaintiff had lodged a number of complaints at Police Station
Hauz Quzi, Delhi/Defendant No. 6, as well as, to the Municipal Corporation
of Delhi/Defendant No. 5 but no action has been taken. The Plaintiff sent a
Legal Notice dated 25.09.2014 to both the Defendant Nos. 5 and 6 and a
copy to the Defendant Nos. 1 to 4. A request was also made to the
Defendant Nos. 5 and 6 for removal of the tea stall and the chabutra , which
was an unauthorised construction. Despite service of the Notice, the
Defendant Nos. 1 to 4 failed to vacate the gallery or remove the
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 3 of 23

encroachment rather they have been threatening the Plaintiff that they would
capture the entire property. Hence, the Plaintiff filed the Suit for Permanent
and Mandatory Injunction for restraining Defendants Nos. 1 to 4 from
entering in suit premises and removal of the encroachment made by them in
the suit gallery and also to direct the Defendant Nos. 5 & 6 for removal of
the chabutra and the tea stall erected there over. The Plaintiff also sought
Permanent Injunction to restrain the Defendant Nos. 1 to 4 from creating any
nuisance in the suit property.

6. The Defendant Nos. 1 and 2 in their Written Statement , took the
preliminary objections that they have neither invaded nor extended any
threat to invade the legal rights of the Plaintiff. The Suit was claimed to be
not maintainable on the ground that the Plaintiff had no locus standi to
institute the Suit. It was stated that one Smt. Sudha Gupta claimed herself to
be the owner of the suit property and the Plaintiff was a stranger to the
Defendants.
7. It was further asserted that the relief by way of Permanent and
Mandatory Injunction, in fact amounts to asking for Possession. The
Hon’ble Court is not to be guided by the nomenclature of the Suit but by the
contents of the plaint and prayer made therein. The Plaintiff has alleged that
the Defendant No. 1 is a rank trespasser and the Suit for Mandatory
Injunction, therefore, is not maintainable. The value of the subject matter of
the suit is more than Rs. 20 Lakhs, which is beyond the pecuniary
jurisdiction of the Civil Court. Furthermore, the Suit has been instituted by
affixing the fixed court fees, which is not as per law as this being a Suit for
Recovery of Possession. The Suit has neither been valued correctly nor has
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 4 of 23

the court fee been paid properly. The Suit has been undervalued for the
purpose of court fees and the jurisdiction.
8. It is further claimed that the Suit is bad for misjoinder of the
Defendant Nos. 3 and 4, who have nothing to do in the present case.
Furthermore, the Plaintiff has not approached the Hon’ble Court with clean
hands and has concealed material facts. The Defendant No. 1 is in
possession of the gallery in question for last more than 35 years, a fact,
which has not been disclosed in the Plaint.

9. The Suit is barred by limitation since she is in occupation of the
gallery since last more than 35 years. Her possession is hostile and adverse
to that of the real owner and, therefore, she has become owner of the suit
portion by fiction of law and she cannot be dispossessed form the suit
property. It is further claimed that the Plaint does not disclose any cause of
action and is liable to be rejected under Order VII Rule 11 CPC.
10. On merits , the Defendant Nos. 1 and 2 reiterated that one Smt. Sudha
Gupta , had represented herself as the owner of the suit property and denied
that the Plaintiff was the occupier or the co-owner. It was further denied that
Defendant No. 1 tried to encroach the gallery on 05.02.2013 or that a
Complaint was lodged. It is claimed that this averment has been made only
to give semblance that she has recently occupied the premises but in fact,
she has been in occupation for last 35 years. It is falsely alleged that the
Defendant No. 1 had again occupied the premises on 05.01.2014. It is
further denied that the Defendant Nos. 1 to 4 have installed a tea stall and
have made a pucca chabutra . It is claimed that the tea stall is an old one,
which was being run by the husband of the Defendant No. 1, for last 40
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 5 of 23

years. The husband expired in the year 2006 and thereafter, Defendant Nos.
1 and 2 have been running the tea stall for their livelihood.
11. It was further denied that the Defendants broke open the locks of the
shop of the Plaintiff or committed theft. It is asserted that the FIR has been
registered falsely in order to put pressure on the Defendants, to vacate the
portion in their occupation. All the other averments were denied and it was
asserted that the Suit of the Plaintiff was liable to be rejected.
12. The Defendant No. 5/North DMC in its Written Statement claimed
that the Suit was barred under Sections 477 and 478 of the Delhi Municipal
Corporation Act, 1957 Act for want of service of statutory notice. It was
further claimed that as per the record, a raid was conducted by the Food
Hygienic Department, City Zone, North DMC Delhi, in the area of Chawri
Bazar and Sita Ram Bazar on 13.04.2015 with the help of Police of Police
Station Hauz Qazi, Delhi. During the raid, some articles from the site in
question i.e 410-414, Bazar Sita Ram, Delhi, were seized vide a Seizure
Memo by the concerned officials and deposited in the Malkhana City Zone.
13. The suit property was inspected on 18.04.2015 and during the
inspection, the chabutra was found to have been removed by the
owner/occupier of the property in question. It was further claimed that the
Plaint does not disclose any cause of action. It was further asserted that the
Defendant No. 5 has been impleaded through Chief Vigilance Officer,
Department of MCD, New Delhi, which is not the proper impleadment. It is
North DMC through its Commissioner, Civic Centre, Minto Road, New
Delhi, who should have been made a party. On merits , the defence as
narrated in the preliminary objections, was reiterated.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 6 of 23

14. The Defendant No. 6/SHO, P.S. Hauz Quzi was deleted vide Order
dated 01.04.2015 and Amended Memo of Parties was filed on behalf of the
Plaintiff.
15. The Defendant Nos. 3 and 4 were deleted vide Order dated
25.04.2016 as no relief was claimed against them and since the year 2016,
none had been appearing on their behalf but no Amended Memo of Parties
was filed on behalf of the Plaintiff.
16. The following Issues were framed vide Order dated 05.06.2015 ,
which are as under:-
(i) Whether plaintiff is entitled to the decree of
permanent injunction, as prayed for? OPP

(ii) Whether plaintiff is entitled to the decree of
mandatory injunction, as prayed for? OPP

(iii) Relief

17. Further, the following Additional Issues were framed vide Order
dated 05.09.2016 are as under:-
2A Whether the Suit of the plaintiff is barred by limitation?
OPD
2B Whether the Suit of the plaintiff is properly valued for the
purpose of court fees and jurisdiction? OPD
2C Whether the defendants No. 1 and 2 have become owner
of the red portion of the suit property as shown in the site plan
by way of adverse possession? OPD
2D Whether the plaintiff is the co-owner of the suit
premises? OPP
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 7 of 23

2E Whether the suit is maintainable in the present from?
OPD
18. The Plaintiff, Shri. Raj Kumar Aggarwal , examined himself as PW-1
and tendered his evidence by way of Affidavit Ex.PW1/A . He proved the
Site Plan as Ex.PW-1/1 , Legal Notice dated 25.09.2014 as Ex.PW-1/2 , the
postal receipts as Ex.PW-1/3 to Ex.PW-1/8 . He also produced complaint
dated 17.07.2014 as Mark A , FIR dated 07.01.2014 as Mark B , complaint
dated 05.01.2014 as Mark C , complaint dated 05.02.2013 as Mark D ,
Registered Will dated 08.10.1989 as Mark E , Death Certificate of his father
as Mark F and Sale deed dated 17.07.1972 as Mark G . The photographs of
the site are Ex.PW-1/16 to Ex.PW-1/21 . In his cross-examination, he
proved compromise deed between him and his stepmother, Smt. Sudha
Gupta dated 10.06.2016 , which is exhibited as Ex.PW-1/D1 (Colly) .
19. The Defendant No. 2, Shri Ravi Gupta , examined himself as DW-1
and tendered his evidence by way of Affidavit, Ex.DW-1/A . No evidence
was led on behalf of the Defendant No. 5.
20. The learned Civil Judge , on appreciation of the evidence , vide
Judgment dated 20.12.2019 held that the Plaintiff had failed to produce any
kind of admissible evidence to establish his co-ownership in the suit
property. The only document produced was the Settlement Deed dated
10.06.2016 , Ex.PW-1/D1 but being an unregistered document, it was
inadmissible in evidence. The alleged Will of the grandmother of the
Plaintiff, whereby half of the share in the suit property, was bequeathed in
favour of the Plaintiff, had also not been proved. Therefore, it was held that
the Plaintiff has not been able to prove his co-ownership in the suit property.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 8 of 23

Consequently, it was held that the Plaintiff was not entitled to the relief of
Permanent and Mandatory Injunction.
21. The learned Civil Judge further considered the plea of adverse
possession taken by the Defendant No. 1, to claim their ownership in the suit
gallery but it was found that the Defendants were unable to prove their
possession of the suit property for a long time. Also, it was held that they
were not able to prove that the Suit was barred by limitation. In regard to the
suit valuation, it was held that the relief of Mandatory Injunction was not
maintainable as no relief of possession had been sought and the Suit had not
been filed in the appropriate forum. The Suit of the Plaintiff was
consequently dismissed.
22. The Plaintiff filed First Regular Appeal bearing RCA DJ 70/2020 to
challenge the judgment and decree dated 20.12.2019 whereby the learned
Civil Judge dismissed the Suit. However, the learned Additional District
Judge , re-appreciated the evidence and concurred with the findings of the
learned Civil Judge, that the original Sale Deed or the certified copy of the
ownership documents had not been produced by the Plaintiff.
23. Furthermore, the Plaintiff had placed reliance on the Will of his
grandmother but the same was not proved, in accordance with Section 67
and 68 of the Indian Evidence Act. It was also found that the Plaintiff had
relied upon a Deed of Family Settlement with his step mother, Smt. Sudha
Gupta but there was no evidence led in respect of this Family Settlement.
The learned ADJ , therefore, concurred with the findings of the learned Civil
Judge that the Plaintiff had failed to prove the documents of his title.
24. The Plaintiff had claimed that he and his sister had purchased a
remaining portion of the suit property from Smt. Sudha Gupta but then, the
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 9 of 23

document creating any new rights in respect of immovable property
apparently of value of Rs. 100 or upwards required compulsory registration
under Section 17 of the Indian Registration Act, 1908. No such registered
document had been produced by the Plaintiff. It was further noted that it was
not the case of the Plaintiff that the Defendant No. 1 was a licensee or that
her license was terminated compelling her to vacate the property by way of
Mandatory Injunction under Section 39 of the Specific Relief Act, 1963.
25. In fact, as per the assertions of the Plaintiff, the Defendant No. 1 was
a trespasser in the Suit in gallery. Therefore, the appropriate remedy
available to the Plaintiff was to file a Suit for Possession and pay the
appropriate court fees for the relief and that the Suit for Mandatory
Injunction was not maintainable. It was thus held on reappreciation of the
evidence that the Suit of the Plaintiff had been rightly dismissed.
Consequently, the First Appeal was also dismissed.
26. Aggrieved by the dismissal of the Suit as well as the First Regular
Appeal, the present Regular Second Appeal has been preferred under
Section 100 CPC .
27. The first challenge is that the right to challenge a Will is of the
natural heirs of the deceased testator. Here all the natural heirs of Late Smt.
Kiran Devi had admitted her last registered Will dated 08.10.1989 which is
evident from the Memorandum of Understanding/Deed of Family
Settlement dated 10.06.2016 . When all the natural heirs including Smt.
Sudha Gupta ( whom the Defendant Nos. 1 and 2 were claiming to be the
owners of the property in dispute) admitted that by virtue of the said Will,
undivided half share of Late Smt. Kiran Devi was bequeathed in favour of
her grandson, i.e. the Plaintiff herein. Furthermore, it is admitted that the
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 10 of 23

other undivided half share of the property in question was owned by Shri.
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Suresh Chand and the Appellant being his son, inherited 1/7 undivided
share of Mr. Suresh Chand. The Memorandum of Understanding was duly
proved as Ex.PW-1/D1 . Therefore, it did not lie with the Defendant Nos. 1
and 2, who were not the natural heirs of deceased testator Smt. Kiran Devi ,
to allege that the Will dated 08.10.1989 had not been proved. In fact, this
Will was not disputed and was thus proved in the facts and circumstances of
this case.

28. The second challenge is that the First Appellate Court erred in
holding that when the Plaintiff and his sister purchased the remaining
portion of the suit property from Smt. Sudha Gupta , the new set of rights in
respect of immovable property apparently of value more than Rs. 100/-, had
been created in their favour. Moreover, it was erroneously held that the
Plaintiff had not produced the registered document to prove that he and his
sister, had purchased the share of Smt. Sudha Gupta in the Suit Property.
29. It has not been appreciated that the Plaintiff and his sister had not
purchased the share of Smt. Sudha Gupta . However, they had entered into an
understanding with her and had given her money in lieu of her share in the
suit property. The Memorandum was duly proved and it is on the basis of
this Memorandum that the Suit No. 222/2016 for Partition was disposed of
as settled and the parties held to be bound by their statements recorded in the
Suit, as well as, by the terms of MOU dated 10.06.2016 . In view of the
settled law, this Memorandum of Understanding/Family Settlement did not
require any registration. Even otherwise, it could be read for collateral
purpose.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 11 of 23

30. Even assuming for the sake of arguments that the MOU required
registration, the terms regarding payment of money by the Plaintiff and his
sister to Smt. Sudha Gupta in lieu of a share in the suit property, may not
have been read in evidence but the other terms of the MOU in respect of the
admission of the last registered Will of Smt. Kiran Devi , could still be
considered. Similarly, factum that Shri. Suresh Chand died intestate and his
undivided share devolving upon the Plaintiff could very well be read in
evidence as collateral purpose as per Section 49 of the Indian Registration
Act.
31. The reading of the terms would show that Smt. Kiran Devi died
leaving behind her last Will, bequeathing her undivided half share in favour
of the Plaintiff and that Mr. Suresh Chand also died intestate leaving behind
his one half undivided share in the suit property in favour of the Plaintiff and
the others. It was thus, duly established that the Plaintiff was the co-owner
of the suit property.
32. The Plaintiff had established by way of the evidence, his title in the
suit property. The Defendants, on the other hand, had not produced any
document to establish their right in the suit property. Thus, the Defendants
were not able to prove a title better than that of the Plaintiff in the suit
property.
33. The third challenge is that the learned First Appellate Court
erroneously held that Suit for Mandatory Injunction was not maintainable, in
the facts and circumstances of the case. It is a settled principle of law that
the relief of possession would be inherent in a Suit for Mandatory Injunction
and the decree of eviction could be passed in a Suit for Mandatory
Injunction.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 12 of 23

34. The First Appellate Court erroneously referred to Section 41(h) of the
Specific Relief Act and held that the appropriate remedy available with the
Plaintiff was to seek the relief of possession and not mandatory injunction.
The main relief sought by the Plaintiff was a direction to the Defendants to
remove their belongings from the gallery, which could have been directed
under the Mandatory Injunction. Furthermore, it has been erroneously held
that once the relief of Mandatory Injunction, was not maintainable, the relief
of Permanent Injunction to restrain the Defendant from entering into the
premises was also not maintainable. The Defendants to have shown their
right title and interest in the suit properties, which they have failed to prove.
35. It is claimed that the facts and the evidence have not been rightly
appreciated by both the Courts. Therefore, the prayer is made that the
impugned Judgment dated 21.08.2023 be set-aside and the Suit of the
Plaintiff/Appellant be decreed in their favour.
36. The Plaintiff/Appellant had filed the written arguments essentially on
the same grounds as stated in the Appeal.
37. The Respondent Nos. 1 and 2 had initially appeared through counsel
on 09.09.2025 but thereafter, they stopped appearing and were proceeded
ex-parte vide order dated 18.05.2026 .
Submissions heard and the record perused.
38. The substantial question that arises, in the present Regular Second
Appeal, is as under:-
(i) Whether the findings of the learned First Appellate
Court, were based on incorrect appreciation of the evidence
and thus perverse?

Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 13 of 23

39. The Plaintiff had filed a Suit for Mandatory Injunction and Permanent
Injunction for directing the Defendant, Smt. Krishna Devi and Shri. Ravi , to
be removed from the gallery from the Suit Premises as being encroachers
and also, for directions to the Defendant Nos. 5 and 6 for breaking the
Chabutra installed by the Defendant Nos. 1 & 2, outside the property and
also to remove the Tea Stall installed therein.
40. The learned Civil Judge , as well as, the First Appellate Court , non
suited the Plaintiff/Appellant essentially on the ground that he was unable to
establish his ownership in the suit premises.
41. The case of the Plaintiff was that the property was purchased by Smt.
Kiran Devi , paternal grandmother of the Plaintiff and Shri. Suresh Chand ,
his father from one Smt. Angoori Devi, vide registered Sale Deed dated
17.07.1972 , Mark ‘G’ . Thereafter, Smt. Kiran Devi , who was the owner of
half of suit property, bequeathed it to the Plaintiff, Mr. Raj Kumar s/o Shri.
Suresh Chand, vide Will dated 08.10.1989 , Mark ‘E’ . Shri. Suresh Chand ,
father of the Plaintiff, who was the owner of the remaining half of the
property in question, died intestate and, therefore, his legal heirs became
entitled to equal share in the half property of Shri. Suresh Chand .
42. The Plaintiff thereafter, filed a Civil Suit bearing CS(OS) No.
1303/2011 , titled Raj Kumar Aggarwal & Others vs. Smt. Sudha Gupta &
Others (New CS No. 222/2016 ) for Partition in respect of the half share of
his father. During the pendency of the said Suit, the parties arrived at a
Settlement vide Memorandum of Understanding dated 10.06.2016 , Ex.PW-
1/D1 . The authenticity of this MOU has not been challenged by any of the
co-owners or even by the Defendant Nos. 1 and 2.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 14 of 23

43. In the said Memorandum of Understanding, not only was the
inheritance of the property through Smt. Kiran Devi by virtue of the Will
dated 08.10.1989 to the Plaintiff was recorded, but it was also stated that the
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share of Shri. Suresh Chand , was inherited by his family members in 1/7
share each. Smt. Kiran Devi expired on 17.05.1997 while Shri. Suresh
Chand expired on 22.09.1999 . Shri. Radhey Lal , husband of Smt. Kiran
Devi , expired somewhere in 1970.
44. Admittedly, Shri. Suresh Chand had married twice and the second
wife was Smt. Sudha Gupta , stepmother of the Plaintiff. The Memorandum
of Understanding/Deed of Family Settlement dated 10.06.2016 was effected
between Shri. Raj Kumar Aggarwal, Smt. Lata Aggarwal, Smt. Nirmal
Gupta and Smt. Laxmi Gupta as one party and Smt. Sudha Gupta , second
wife of Shri. Suresh Chand, Shri. Lalit Aggarwal and Smt. Silky Goel as
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second party, who were having 1/7 each share in half of the property in
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question. The Second Party jointly owing 3/7 share together, agreed that for
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their 3/7 share, Shri. Raj Kumar Aggarwal i.e. the Plaintiff and Smt. Lata
Aggarwal i.e. two members of First Party would pay Rs. 25,00,000/- jointly
to Smt. Sudha Gupta , who in turn, shall disburse the money to Shri. Lalit
Aggarwal and Smt. Silky Goel .
45. In the said Memorandum of Understanding, further details were
mentioned in respect of the division and Settlement in respect of the other
properties, jointly owned by the legal heirs. It was also agreed that the
possession of the suit property, part of which was in occupation of the
tenants against whom the eviction Petition had been filed, shall hand over
the possession to Shri. Raj Kumar Aggarwal, the Plaintiff herein. The
Memorandum of Understanding was presented in the Suit for Partition (CS
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 15 of 23

222/16) wherein the Statements of all the legal heirs were recorded, who
admitted and endorsed the MOU as Ex. P-1 along with the Site Plan as Ex.
P-2 . In view of the Settlement, an Application under Order XXIII Rule 1
and 3 CPC was jointly filed by all the legal heirs, whose Statements were
recorded separately.
46. The learned ADJ vide Order dated 15.07.2016 recorded that the
parties have arrived at an amicable Settlement pursuant to the Memorandum
of Understanding/Deed of Family Settlement dated 10.06.2016 and
accordingly, disposed of the Suit as settled, with the direction that the parties
shall remain bound by the terms of the MOU. The MOU thus, got endorsed
and became a part of the decree, the certified copy of which has been placed
on record. It being a judgement of the Court, judicial notice can be taken of
the final Order of the learned ADJ, in terms of Section 74 and 77 of the
Indian Evidence Act. Both the Courts, however, failed to appreciate that not
only was the MOU put to PW-1 in the cross-examination and was exhibited
as PW-1/D1, but it also formed the part of the Order dated 15.07.2016 of the
learned ADJ in the Partition Suit.
47. It is also pertinent to observe that the Defendants had never
questioned the authenticity either of the MOU or of the Plaintiff having
become the owner of the suit property in question. The Defendants never
claimed any independent right in the suit property and, therefore, the First
Appellate Court erroneously appreciated the evidence and upheld the
findings of the learned Civil Court that the Plaintiff did not have any right,
title to maintain the present Suit. Not only was the MOU proved as Ex.PW-
1/D1, but it also found endorsement in the Order dated 15.07.2016 of the
learned ADJ in Partition Suit.
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
RSA 104/2024 Page 16 of 23

48. Furthermore, it was held that the MOU/Settlement Deed dated
10.06.2016 , Ex.PW-1/D1 , cannot considered as it is an unregistered
document and is not admissible in evidence. However, in the case of Kale
and Others vs. Deputy Director of Consolidation and Ors., (1976) 3 SCC
119 , it is held that if the Memorandum of Family Settlement was reduced to
writing only for the purpose of record or for information to the Court for
making necessary mutation, then it would be exempt from registration as it
is only a Memorandum of Understanding, which does not create or
extinguish any rights in the immovable property.
49. Likewise, in the case of 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 or
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.
50. The Apex Court while considering the effect of non-registration of
Kharurnama ( Family Arrangement recording past transaction ) in the case
of Korukonda Chalapathi Rao vs. Korukonda Annapurna Sampath Kumar ,
2021 SCC OnLine SC 847 , observed that where a document by itself does
not create, declare, limit or extinguish rights in the immovable properties in
question but merely records past transactions, which have been entered into
between the parties, 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.
Signature Not Verified
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KUMAR BHATT
Signing Date:29.10.2026
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51. Similarly, in the case of Ravinder Kaur Grewal & Ors. vs. Manjit
Kaur & Ors. , 2020 INSC 473 , the Hon’ble Supreme Court of India
emphasised that where the parties have acted upon the Family Settlement, it
would not be open to them to resile from the said arrangement. In the event,
a family arrangement has not 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 Agreement, if
the members have acted upon it.

52. Therefore, the MOU/Deed of Family Settlement, Ex.PW-1/D1 clearly
defined the share of the Plaintiff as the owner of the suit property and
therefore, the Plaintiff/Appellant had the locus standi to file the Suit for
Permanent and Mandatory Injunction.
53. The next aspect was whether the Plaintiff was entitled to seek
removal of the encroachment made by the Defendant No. 1. In this context,
it is not denied by the Defendants that they had kept their belongings in the
gallery; the only defence was that she had been in occupation for last more
than 35 years. From the very description of the property, it is evident that the
suit property in which the encroachment has been made, is the gallery of the
shops on either side and by its very nature, it is evident that the Defendants
had no right of any kind to occupy the suit premises. It was clearly a case of
encroachment for which, the Mandatory Injunction was well
maintainable.
54. The Defendant Nos. 1 and 2 in their Written Statement had asserted
that the possession of Defendant No. 1 qua the suit premises, is legal and
she had been in occupation of the same for the last more than 35 years. Her
possession is hostile and adverse to that of the real owner and therefore, she
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KUMAR BHATT
Signing Date:29.10.2026
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had become owner of the suit property by fiction of law and she cannot be
dispossessed.
55. 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.
56. 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 was known to the other party, the period for which it continued
and that it was open and undisturbed.
57. 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.
58. 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
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KUMAR BHATT
Signing Date:29.10.2026
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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.
59. In T. Anjanappa and Others vs. Somalingappa and Another , (2006) 7
SCC 570, this Court reiterated that adverse possession contemplates
possession which is hostile to the title of the true owner. A person asserting
such a plea must establish by clear and unequivocal evidence that his
possession was actual, open, continuous and hostile, so as to amount to a
denial of the true owner's title. Mere long possession, however
uninterrupted, is insufficient unless accompanied by the requisite hostile
animus. Where possession can be referred to a lawful or permissive origin, it
cannot be regarded as adverse merely by lapse of time.
60. 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.
61. 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 to establish their
possession to be adverse to that of the plaintiff .
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KUMAR BHATT
Signing Date:29.10.2026
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62. Applying the aforesaid principles to the facts of the present case, it is
evident that the Defendant Nos. 1 and 2 have failed to discharge the burden
of establishing their plea of adverse possession.
63. Although they asserted that Defendant No. 1 had been occupying the
suit gallery for more than 35 years, no cogent evidence has been brought on
record to establish that such possession was hostile to the title of the lawful
owner throughout the statutory period . The mere fact that Defendant No. 1
had placed her belongings in the suit gallery and was occupying the same
does not, by itself, establish the requisite animus possidendi .
64. The Defendants have failed to establish, by cogent evidence, that the
possession of Defendant No. 1 was continuous, open and hostile to the title
of the Plaintiff for the requisite period of twelve years . Their assertion of
long-standing occupation, unsupported by evidence establishing the
commencement and hostile character of such possession, is insufficient to
sustain the plea of adverse possession. Accordingly, the claim that
Defendant No. 1 had acquired ownership of the suit gallery by operation of
law is liable to be rejected.
65. It may also be observed that on the other hand, the Plaintiff had
deposed that the Defendant No. 1 had first tried to encroach on 05.02.2013
for which a complaint was lodged and Defendant No. 1 was removed.
Thereafter, that she again encroached on 05.01.2014 .
66. Therefore, the Plaintiff is entitled to the relief of Mandatory
Injunction for directing the Defendant No. 1 and 2 to remove the entire
encroachment from the suit gallery.
67. The next relief sought by the Plaintiff was that there was an illegal
Chabutra built by the Defendant Nos. 1 and 2 outside the suit property and
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KUMAR BHATT
Signing Date:29.10.2026
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installed a Tea Stall, which was liable to be removed. The Plaintiff had made
Complaints to the MCD and Police for removal of the Chabutra, as well as,
the encroachment by the Defendants.
68. The Plaintiff himself, PW-1 was confronted by the counsel for
Defendant No. 2 in the cross-examination with the photographs, Ex.PW-
1/19 , which showing the Chabutra outside the premises of the Plaintiff. He
further clarified that the Defendant No. 2 had been selling tea from the said
Chabutra since last 5 to 7 years. It is clearly evident that the Chabutra had
been constructed illegally outside the premises of the Plaintiff, thereby,
causing nuisance at the entry of the property of the Plaintiff.
69. An objection has been taken on behalf of the Respondent that under
the garb of Mandatory Injunction, the Plaintiff is seeking the possession of
the Suit premises. It is pertinent to observe that it is the Respondent No.1
and 2 who have kept their belongings in the gallery on the First Floor,
forming part of the property of the Plaintiff and are ranked encroachers.
Therefore, the Suit for Mandatory Injunction for directing them to remove
their belongings is maintainable .
70. From the aforesaid discussion, it is evident that the finding of the
learned Civil Judge as well as the learned Additional District Judge are
contrary to the settled preposition of law and the findings on the evidence
are per se perverse, which are liable to be set aside.
71. Therefore, the Plaintiff is entitled to the Mandatory Injunction for
removal of the Chabutra and Tea Stall from the Gali.
72. For the same reason, the Plaintiff is also entitled to Permanent
Injunction and the Defendant Nos. 1 and 2 are restrained from entering
into the premises of the Plaintiff or creating any nuisance therein.
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KUMAR BHATT
Signing Date:29.10.2026
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Conclusion:
73. In view of the aforesaid discussion, the Appeal is allowed and the
defendants No. 1&2 are directed to remove their belongings from the
gallery/space inside the suit property with three months. Also, the
Defendant No.1 and 2 are directed to demolish the Chabutra with the Tea
stall installed on it which is an encroachment on the public land just
outside the property of the Appellants, be also demolished within three
months. In case the Respondent No.1 and 2 failed to remove the
Chabutra, the Respondent No.3 and 4 are directed to do the needful in
accordance with law. Further, the Defendants are restraint from entering
into the premises of the Plaintiff or to create nuisance therein.
74. The Suit of the Plaintiff for Mandatory Injunction and Permanent
Injunction, is hereby, decreed .
75. The Appeal is disposed of accordingly. The pending Application is
also disposed of.

(NEENA BANSAL KRISHNA)
JUDGE
OCTOBER 27, 2026/ RS
Signature Not Verified
Signed By:ANIL
KUMAR BHATT
Signing Date:29.10.2026
16:06:42
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