Charanjeet Gulati And Anr vs Inder Kumar Gulati
- Court
- Delhi High Court
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
Reserved on: 29 September 2026.
th
Pronounced on: 15 October 2026.
th
Uploaded on: 16 October 2026.
# CNR No. DLHC010492872023
+ C.R.P. 363/2023
CHARANJEET GULATI AND ANR .....Petitioners
Through: Mr. Rajesh Yadav, Sr. Advocate
with Mr. Vaibhav Sethi,
Advocate.
versus
INDER KUMAR GULATI .....Respondent
Through: Mr. S.K. Sharma, Advocate with
Mr. Tejas Yadav, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANISH DAYAL
JUDGMENT
%
ANISH DAYAL, J.
th
1. This revision petition has been filed assailing order dated 05 July
2023 passed by the ADJ, North-West District, Rohini Courts [‘ Trial
Court ’] in Civil Suit being CS (DJ) No. 66/2020 titled as “ Charanjeet
Gulati v. Inder Kumar Gulati ”, by which application filed under Order
XII Rule 6 of the Code of Civil Procedure, 1908 (‘ CPC’ ) by petitioners
( original plaintiffs ) was rejected.
2. Petitioners filed the suit under Sections 37 and 39 of the Specific
Relief Act, 1963 (‘ SRA’ ) seeking permanent and mandatory injunction
against respondent ( original defendant ) in relation to property bearing
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 1 of 22
No. 187, Sainik Vihar, First Floor, Pitampura, New Delhi-110034 (‘ said
property’ ) along with mesne profits, damages and other consequential
property.
3. Petitioner no.1 and respondent are brothers. Petitioner no.2 is the
wife of petitioner no.1.
4. The said property was purchased from Jatinder Kumar , Anju
Chawla and Ashok Kumar through a registered General Power of
th
Attorney dated 24 April 2000, registered in the name of petitioner no.2,
Agreement to Sell and Purchase, receipt of payment and registered Will
of the same date. Petitioners remained in physical possession of the
property from the year 2000 to 2001.
5. Parents of petitioner no.1 and respondent, Sh. Gobind Ram Gulati
and Smt. Lajwanti Gulati, advised petitioner no.1 to temporarily shift to
the second floor and permit respondent and his family to occupy the first
floor, as respondent had undergone heart surgery and would find it
difficult to climb two floors. Accordingly, petitioner no. 1 permitted
respondent and his family to occupy the suit property as gratuitous
st
licensees. Sh. Gobind Ram Gulati passed away on 21 February 2002.
Thereafter, at the instance of their mother, Smt. Lajwanti Gulati , and
upon respondent's request, petitioner no. 1 permitted respondent to
continue occupying the premises.
th
6. Smt. Lajwanti Gulati passed away on 27 April 2014. After about
three months thereafter, petitioner no. 1 requested respondent to vacate
the suit property. Respondent, however, sought further time on the
th
ground that his daughter's wedding was scheduled for 26 October 2015.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 2 of 22
7. Even after the wedding, respondent failed to vacate the premises
and sought a further period of six months, until April 2016. Upon
th
respondent's continued refusal to vacate, a legal notice dated 14 March
2019 was issued, calling upon him to hand over peaceful possession of
th
the suit property by 30 April 2019. However, the said notice was not
replied to.
th
8. A reminder legal notice dated 06 June 2019 was sent to vacate
th
the said property by 30 June 2019. However, it is alleged that the said
notice was neither replied to nor did he hand over the physical
possession of the property. Accordingly, the said suit was filed seeking
permanent and mandatory injunction directing respondent to vacate the
possession of the premises in favour of petitioner no. 1, along with
mesne profits, damages, costs of the suit and litigation expenses.
Submissions on behalf of parties
9. Mr. Rajesh Yadav , Senior Counsel for petitioner, stated that
respondent had admitted the documents relating to the suit property. In
his written statement, respondent had stated that, pursuant to a family
arrangement and in accordance with the wishes of his late father, Sh.
Gobind Ram Gulati , the property at Sainik Vihar had been purchased
with the ground floor being in the names of Rajesh Gulati and his wife,
the first floor in the names of Charanjeet Gulati and his wife, and the
second floor in the names of Kishan Gulati and his wife.
10. It was also admitted that the property had been purchased from the
proceeds of the sale of property bearing No. WZ-1091, Rani Bagh,
Shakur Basti, Delhi . Respondent had further admitted that he had
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 3 of 22
purchased flat No. F-106, Rashmi Apartments, Pitampura, Delhi , from
his own funds in 1995 and had shifted there with his wife and children.
11. To this extent, Mr. Rajesh Yadav , Senior Counsel, contended that
there was a clear admission on the part of respondent that the first floor
was owned by petitioners.
12. As regards the ownership of the property, being in the name of
petitioners, even the counsel for respondent did not have any dispute.
13. In paragraph (v) of the written statement, respondent asserted that
petitioner no. 1 and his family had shifted to the first floor, Rajesh Gulati
and his family had shifted to the ground floor along with their parents,
and respondent had continued to reside in his flat at Rashmi Apartments .
It is further submitted that Kishan Gulati refused to shift to the second
floor since he was a heart patient and could not climb stairs for his
portion of the second floor and, therefore, never shifted.
14. According to respondent, an oral family settlement was arrived
that too in the presence of their father, Sh. Gobind Ram Gulati , and
provided that Rajesh Gulati and his family would continue to reside with
their parents on the ground floor, with the sale deed, whenever executed,
being in favour of Rajesh Gulati and his wife. Respondent would
become the owner of the entire first floor and shift there, with the sale
deed executed in his favour. Kishan Gulati and his family would shift to
the flat at Rashmi Apartments, Delhi, and respondent would execute the
necessary transfer documents in his favour. Petitioner no. 1, having
opted for the second-floor terrace rights instead of the first floor, would
own the second floor.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 4 of 22
15. Respondent further contended in his written statement that the
alleged family settlement had been partly acted upon and that the title to
the respective portions was to be perfected in favour of the persons
occupying them. Following the death of Sh. Gobind Ram Gulati , efforts
were made to resolve the disputes between the family members through
K.L. Gulati , brother of Sh. Gobind Ram Gulati.
16. Mr. S.K. Sharma , counsel for respondent, relied upon a letter of
th
assurance dated 10 April 2019, signed by all four brothers, recording
their mutual decision to resolve the property disputes and authorising
K.L. Gulati, Subhash Mehta, Madan Khurana and Raju Chachda to take
a decision, which the parties undertook to abide by. He also relied upon
an undated communication which, according to him, formed part of a
larger settlement and indicated that the Sainik Vihar property had been
accounted for in 2000, when Kishan Gulati acquired Rashmi Apartments.
17. Mr. Rajesh Yadav , Senior Counsel, raised two objections to these
two communications. First, as far as the letter of assurance was
concerned, it does not take away from the fact that the said property is
owned by petitioner. Secondly , as regards the undated letter purportedly
signed by petitioner, there is a mention of MCD Election in 2017, which
would mean that the letter was executed after 2017 and had merely
stated that the Sainik Vihar property had been accounted for in 2000 at
best. Therefore, he states that the same, in any event, did not give any
crystallised rights in favour of respondent.
18. Mr. S.K. Sharma, counsel for the respondent contended that the
respondent had possessory rights over the property by virtue of an oral
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 5 of 22
family settlement arrived at in 2001. Therefore, the suit cannot be
decreed in favour of the petitioner, particularly since the respondent
disputed the claim regarding possession and there was no unequivocal
admission to the contrary.
19. Mr. Rajesh Yadav , Senior Counsel, also drew attention of the
Court to the electricity bills for the first floor/said property issued in the
name of Simmi Gulati , petitioner no.2.
20. He further rejoined by stating that the alleged oral settlement, even
if presumed to be genuine, dated back to 2001, whereas ownership of the
property had already passed to the petitioner in 2000, a fact that had been
unequivocally admitted.
21. He further pointed out that the property tax receipts relating to the
first floor had also been issued in the name of Simmi Gulati, petitioner
no.2. The said document had been filed by the respondent himself
through an application for bringing on record additional evidence.
22. It was further pointed out that, in 2022, respondent filed a suit,
being CS(OS) 600/2022, before this Court seeking declaration that he is
the owner of the subject property and sought specific performance of the
th
alleged oral family settlement dated 15 April 2001, thereby admitting
that no title exists in favour of respondent.
23. It was further alleged by Mr. Yadav, Senior Counsel , that Kishan
Gulati and Anju Gulati, in their written statement in the said suit, had
also apparently denied the existence of the alleged oral family
settlement.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 6 of 22
Analysis
24. In light of these facts, the impugned order is to be assessed, since
this is a revision petition and the Court has to look at material
irregularities. It is well settled that the Court in a revisional jurisdiction
cannot re-appreciate the evidence. It is only to interfere if the findings
are perverse, or there has been a non-appreciation or non-consideration
of the material evidence on record. The Court has to, therefore, examine
whether there is irregular exercise or non-exercise of jurisdiction and
that assessment is not directed against the conclusion of law or fact
unless they go to the root of the issue of jurisdiction. These aspects have
been categorically settled in various decisions, inter alia, in Prabhat
Kumar Mahapatra v. Madhavika Datta Biswas (2007) 14 SCC 719.
25. It is evident from the plaint and the written statement that the
plaintiffs’ assertion of ownership and possession of the premises, based
on a set of documents executed in 2000, is clear and categorical. The
written statement does not deny the same. On the contrary, there is an
unequivocal admission that the first floor of the property was purchased
by the petitioners.
26. Further, documents such as electricity bills and property tax
receipts indicate that the premises are owned by the petitioners. The
written statement also admits that the subject property stands mutated in
the name of petitioner no. 2. The respondent has not filed any document
establishing a legal right, title, or interest in the subject property.
27. The primary defence raised by respondent/defendant is on the oral
th
family settlement of 15 April 2001, which, even if assumed to have
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 7 of 22
been arrived at, is after the ownership was already acquired by
petitioners.
28. At best, even if the oral family settlement is accepted at face
value, it may confer some form of possessory rights upon the defendant,
though there is a stark absence of documentary or other corroborative
evidence establishing the terms of the alleged settlement. Also, the
existence of the oral family settlement itself appears to be disputed, a
separate suit, being CS(OS) 600/2022 , filed before this Court
approximately 21 years after the alleged settlement. Moreover, no stay
order has been passed in the said suit.
29. In the opinion of this Court, the impugned order reflects an
irregular exercise of jurisdiction. While exercising its jurisdiction under
Order XII Rule 6 of CPC, the Trial Court ignored the clear and
unequivocal admission made by the defendant regarding ownership of
the property.
30. The Trial Court incorrectly recorded that the defendant had
specifically claimed ownership of the suit property by virtue of an oral
th
family settlement dated 15 April 2001. The Trial Court failed to
consider the significance of the separate suit for declaration, in which the
respondent himself seeks specific performance of the alleged oral family
settlement. In that suit, the respondent has asserted that, under the
settlement, the respective parties were placed in possession of their
shares, but the requisite documents effecting the transfer of those shares
had yet to be executed, following which disputes arose between the
parties.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 8 of 22
31. Therefore, at the present moment it cannot be asserted by
defendant that they have any right or title to the first floor of the property
except an inchoate right purportedly arising out of an alleged oral family
settlement which is yet to receive legal fructification. In fact, the suit
CS(OS) 600/2022 seeks a direction to petitioners herein to execute the
sale deed, in respect of the first floor of the property, in favour of the
respondent. At best, therefore, respondent is merely in possession, and if
so, they are clearly at the behest of the petitioners, who have ownership
rights to the property as admitted.
32. Respondent received two legal notices in this regard in 2019;
however, he failed to respond to either of them. Moreover, the
respondent is asserting existence of an oral family settlement allegedly
arrived at 18 years prior. In these circumstances, the defence raised, if
any, appears to be specious, sham and moonshine. In this regard, the
reference to various decisions relied upon by petitioner may be relevant:
I. In Urmila Sharma v. Jai Bhagwan 2021 SCC OnLine Del 4552, a
Coordinate Bench of this Court, while deciding an application
under Order XII Rule 6 of CPC seeking a decree for possession,
considered the contention that the contesting defendants had raised
a sham defence based on an alleged oral agreement entered into
prior to the father’s death, under which the plaintiff had
purportedly relinquished rights in the father’s estate. The Court
held that the defence of oral relinquishment could not be accepted
in view of the settled law, relying upon the decisions of this Court
in Sushila v. Vijay Kumar Bhardwaj 2014 SCC OnLine Del
1948, and the Madras High Court in Prema Suryanarayanan v. S.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 9 of 22
Venkataramanan , (2018) 2 CTC 715. The Court referred to these
decisions, particularly Vijay Kumar Bhardwaj ( supra ), which
observed as follows:
“ 13. The defence of alleged oral family settlement
and oral relinquishment of shares taken by the
defendant No. 1 is totally in contradiction of his
earlier admission in the abovementioned civil suit.
The defendant No. 1 cannot be permitted to take a
false defence as an afterthought just to prolong
the present suit and to delay the grant of
legitimate rights of the plaintiffs. The alleged plea
of the family settlement of the defendant No. 1 is
false as the defendant No. 1 has not given any
details or date of any alleged family settlement.
Moreover, there cannot be any oral
relinquishment of the share in an immoveable
property as it requires compulsory registration .”
(emphasis added)
II. The Court in Urmila (supra), then noted as under:
“ 12. This defence is clearly sham and is of no
consequence; it is ambiguous and self-
contradictory. On the one hand, the Contesting
Defendants deny the share of the Plaintiff and
Defendant No. 6 and contend that they have
relinquished their share, on the other hand it is
averred that there has been an oral partition, and
thereafter she received her share. This plea of
oral partition is an acknowledgment of pre-
existing rights of the Plaintiff and Defendant No.
6 in the suit properties and further the defence is
vague and has to be rejected at the threshold. The
written statement does not set out necessary facts
and circumstances of the alleged ‘oral partition’.
The suit properties continue to be in the name of
the deceased father. There are no documents
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 10 of 22
enclosed alongwith the written statement that
could indicate the properties were partitioned and
this was recorded in any public records. In
Vineeta Sharma v. Rakesh Sharma5, the Supreme
Court was seized of the question surrounding
conflicting interpretations of Section 6(5) of the
HAS dealing with rights of a daughter in a
coparcenary property. In the context of Section
6(5), the Court made certain observations
regarding a plea of ‘oral partition’ and observed
as follows :
“ 127……..The provisions of Section 6(5) are
required to be interpreted to cast a heavy
burden of proof upon proponent of oral
partition before it is accepted such as
separate occupation of portions,
appropriation of the income, and consequent
entry in the revenue records and invariably
to be supported by other contemporaneous
public documents admissible in evidence,
may be accepted most reluctantly while
exercising all safeguards.
…………….When such a defence is taken, the
Court has to be very extremely careful in
accepting the same, and only if very cogent,
impeccable, and contemporaneous
documentary evidence in shape of public
documents in support are available, such a
plea may be entertained, not otherwise. We
reiterate that the plea of an oral partition or
memorandum of partition, unregistered one
can be manufactured at any point in time,
without any contemporaneous public
document needs rejection at all costs .”
(emphasis supplied)
13. In Sandeep Kohli v. Vinod Kohli, a coordinate
Bench of this Court, while dealing with an Order
12 Rule 6 application in a partition suit, made
certain observations as to how ‘oral partitions’
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 11 of 22
are to be dealt with. These observations may be
germane to the present discussion:
“22. Though undoubtedly a plea of oral
partition is required to be put to trial but
when it is pitted against documents executed
on oath and on solemn affirmation by the
person taking the said plea of co-ownership,
in my view to still put such plea to trial
would amount to the Court allowing its
process to be abused by the person taking
such a plea and assisting him to abuse the
process of the Court and the implicit delays
in trial to reap unfair advantage to himself
and to the prejudice of the other party. Not
only has the counsel for the defendant No. 1
failed to state as to what the defendant No. 1,
even if given an opportunity to lead evidence
can prove to renege out of the situation but I
am also unable to fathom any get away for
the defendant No. 1, even if granted such an
opportunity.
23. Though undoubtedly there is no
admission of the defendant No. 1 in his
written statement filed in this suit of co-
ownership and rather the defendant No. 1 in
the written statement in this suit has pleaded
a prior oral partition but Courts have in
Uttam Singh Duggal & Co. Ltd. v. United
Bank of India (2000) 7 SCC 120, Vivek
Narayan Pal v. Sumitra Pal 2010 SCC
OnLine Del 433, C.N. Ramappa Gowda v.
C.C. Chandregowda (2012) 5 SCC 265 and
Maj. (Retd.) Sukesh Behl v. Koninklijke
Phillips Electronics 2014 SCC OnLine Del
2313 invoked the provisions of Order XII
Rule 6 CPC to negate such improbable pleas
which have no chance of succeeding on the
face of the admitted material on record and
which pleas are taken merely to lengthen
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 12 of 22
litigation and to use the said time to coerce
the plaintiff into settling for less than his due.
24. Not only Order XII Rule 6 CPC but
Order XV CPC also requires and empowers
the Court to put a suit to trial only if a
material proposition of fact or law is
submitted by one party and denied by the
other. The plea of the defendant No. 1 of oral
partition of the property, though if proved
can certainly defeat the claim of the plaintiffs
of partition but is not found to be a material
one, since the defendant No. 1 who has taken
the said plea has in an earlier statement on
oath stated contrary thereto.”
14. In Virender Kumar Garg v. Ravinder Kumar
Garg, a Division Bench of this Court, while
deciding an appeal from a Single Judge's order
whereby Appellant's suit was dismissed, noted
that while the plaint disclosed an oral partition,
no particulars re: the oral partition were on
record; nothing was brought on record to support
the plea of oral partition.
*
16. It is well settled in law that transfer of
immovable property can only by registered
instrument and not by way of an oral agreement.
The pleas raised by Contesting Defendants are
therefore clearly untenable and the Court sees no
reason to put the suit to trial. The Court does not
find any fetter in passing a preliminary decree
determining the rights of the parties since the
relationship between the parties and their shares
are evident from the pleadings on record.
Accordingly, a preliminary decree is passed
declaring that the Plaintiff and Defendant Nos. 1
to 6 shall each have a 1/7 share in the suit
properties .”
(emphasis added)
III. Reliance was also placed on Vineeta Sharma v. Rakesh Sharma
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 13 of 22
(2020) 9 SCC 1, where a three-Judge Bench was dealing with
daughter’s right in coparcenary property and stated that the intent
of Section 6 of the Hindu Succession Act, 1956, is to accept
genuine partitions that might have taken place and not set up as a
false defence and only oral ipse dixit is to be rejected outrightly.
The objective of preventing false or frivolous defences from
defeating the benefits conferred by the amended provisions must
be given full effect. When such a defence is raised, the Court must
exercise great caution in accepting it. Such a plea may be
entertained only where cogent, impeccable, and contemporaneous
documentary evidence, preferably in the form of public
documents, supports it. Relevant paragraph of Vineeta ( supra ) is
extracted as under:
“ 135. A special definition of partition has been
carved out in the Explanation. The intendment of
the provisions is not to jeopardise the interest of
the daughter and to take care of sham or frivolous
transaction set up in defence unjustly to deprive
the daughter of her right as coparcener and
prevent nullifying the benefit flowing from the
provisions as substituted. The statutory provisions
made in Section 6(5) change the entire
complexion as to partition. However, under the
law that prevailed earlier, an oral partition was
recognised. In view of change of provisions of
Section 6, the intendment of the legislature is
clear and such a plea of oral partition is not to be
readily accepted. The provisions of Section 6(5)
are required to be interpreted to cast a heavy
burden of proof upon proponent of oral partition
before it is accepted such as separate occupation
of portions, appropriation of the income, and
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 14 of 22
consequent entry in the revenue records and
invariably to be supported by other
contemporaneous public documents admissible in
evidence, may be accepted most reluctantly while
exercising all safeguards. The intendment of
Section 6 of the Act is only to accept the genuine
partitions that might have taken place under the
prevailing law and are not set up as a false
defence and only oral ipse dixit is to be rejected
outrightly. The object of preventing, setting up of
false or frivolous defence to set at naught the
benefit emanating from amended provisions, has
to be given full effect. Otherwise, it would become
very easy to deprive the daughter of her rights as
a coparcener. When such a defence is taken, the
court has to be very extremely careful in
accepting the same, and only if very cogent,
impeccable, and contemporaneous documentary
evidence in shape of public documents in support
are available, such a plea may be entertained, not
otherwise. We reiterate that the plea of an oral
partition or memorandum of partition,
unregistered one can be manufactured at any
point in time, without any contemporaneous
public document needs rejection at all costs. We
say so for exceptionally good cases where
partition is proved conclusively, and we caution
the courts that the finding is not to be based on
the preponderance of probabilities in view of
provisions of gender justice and the rigour of very
heavy burden of proof which meets the intendment
of Explanation to Section 6(5). It has to be
remembered that the courts cannot defeat the
object of the beneficial provisions made by the
Amendment Act. The exception is carved out by us
as earlier execution of a registered document for
partition was not necessary, and the court was
rarely approached for the sake of family prestige.
It was approached as a last resort when parties
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 15 of 22
were not able to settle their family dispute
amicably. We take note of the fact that even
before 1956, partition in other modes than
envisaged under Section 6(5) had taken place .”
(emphasis added)
IV. Reliance was also placed on a decision of this Court in Mohd.
Ansar Siddiqui v. Varun Sachdeva , 2025 SCC OnLine Del 2201.
While deciding the first appeal, the Court held that the defence set
up by the defendant was ex facie specious, untenable and mala
fide . Further, noting that since the sale deed was not denied, the
suit property will be considered as ownership of the respondent,
and occupancy by the appellant would be at best a month-to-
month tenancy. For ease of reference, relevant paragraphs of the
judgment are extracted as under:
“ 18….
(viii) The sale deed having been not denied, the
suit property would certainly be considered as
ownership of the respondent and the occupancy
by the appellant, would undoubtedly be at best, as
a month-to-month tenancy. The assertion that they
had entered into an oral agreement to sell, as
noted above, cannot come to the benefit of the
appellant, as per law. The written statement is,
therefore, bereft of any legal defence that the
appellant can have.
(ix) In this regard, the following passages of PPA
Impex (supra) are instructive, which are extracted
as under. In the said decision by Division Bench
of this Court, it is highlighted that no document
has been filed evidencing an agreement to sell
between the appellant and the respondent or even
the predecessor-in-title. Importantly, the Division
Bench notes that if pleadings of this nature, which
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 16 of 22
are total moonshine, are taken note of, the
provision of Order XII Rule 6 of CPC, would be
virtually annihilated.”
(emphasis added)
V. In Sunil Kapoor v. Himmat Singh 2010 SCC OnLine Del 354, the
defendant had filed a petition under Article 227 of the Constitution
of India challenging an order passed in a pending suit that
dismissed an application under Section 10 CPC. It was not
disputed that the defendant was a tenant. However, before the
institution of the eviction suit, the defendant had filed a suit
seeking specific performance of an Agreement to Sell concerning
the immovable property. The Court held as under:
“ 15. What follows is that even if the
petitioner/defendant were to succeed in his suit
for specific performance of agreement to sell, till
the execution of a conveyance deed in pursuance
to the decree, if any, in favour of the petitioner,
the petitioner has no ground in law to save his
possession of the premises. The status of the
petitioner would continue to be as before i.e. of a
tenant whose tenancy has been determined.
16. Once that is found to be the position in law,
the defence of the agreement to sell is not a legal
defence available to the petitioner in the suit for
ejectment. If that be so, there is no common
question involved in the previously instituted suit
for specific performance and the subsequently
instituted suit for ejectment.
20. Though the aforesaid two judgments of the
Division Bench of this Court are on injunction
application in suits for specific performance, but
the principles laid down therein would apply here.
The jurisdiction, if any, to stay eviction pending a
suit for specific performance is of the court where
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 17 of 22
the suit for specific performance is pending and
the court where the suit for ejectment/eviction is
pending ought not to restrain its hands merely
because the suit for specific performance has been
filed .”
(emphasis added)
VI. Reliance by the counsel for respondent was placed on S.M. Asif v.
Virender Kumar Bajaj , (2015) 9 SCC 287, where the Supreme
Court had held as under:
“ 9. In the suit for eviction filed by the respondent
landlord, the appellant tenant has admitted the
relationship of tenancy and the period of lease
agreement; but resisted the respondent-plaintiff's
claim by setting up a defence plea of agreement
for sale and that he paid an advance of Rs 82.50
lakhs, which of course is stoutly denied by the
respondent landlord. The appellant-defendant
also filed the suit for specific performance, which
of course is contested by the respondent landlord.
When such issues arising between the parties
ought to be decided, mere admission of
relationship of landlord and tenant cannot be said
to be an unequivocal admission to decree the suit
under Order 12 Rule 6 CPC. ”
(emphasis added)
VII. However, the facts in S.M. Asif ( supra ) are distinguishable
because, in that case, the defendant had raised a defence based on
an Agreement to Sell and claimed to have paid an advance of Rs.
82.5 lakh. In that case, the benefit of Order XII Rule 6 of CPC was
not granted.
VIII. Reliance was placed on Karan Kapoor v. Madhuri Kumar , (2022)
10 SCC 496, where the Court had adumbrated on the issue of
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 18 of 22
discretionary power under Order XII Rule 6 of CPC and that it
cannot be claimed as a matter of right, and reliance had been
placed on S.M. Asif ( supra ). Relevant paragraph is extracted as
under:
“ 26. On the issue of discretion of Court to pass
judgment on admission, a three-Judge Bench of
this Court in S.M. Asif v. Virender Kumar Bajaj
made the legislative intent clear to use the word
“may”, which clearly stipulates that the power
under Order 12 Rule 6 CPC is discretionary and
cannot be claimed as a matter of right. In the said
case, the suit for eviction was filed by the
respondent landlord against the appellant tenant.
The relationship of tenancy was admitted
including the period of lease agreement. The
plaintiffs' claim was resisted by the defendant
setting up a plea that the property in question was
agreed to be sold by an agreement and the
advance of Rs 82,50,000 was paid.
27. The defendant in course of taking the defence
stoutly denied that the respondent-plaintiff has
continued to be the landlord after entering into
agreement to sell. The suit for specific
performance was also filed which of course was
contested by the plaintiff. In the said case, this
Court was of the view that deciding such issues
requires appreciation of evidence. Mere
relationship of landlord and tenant cannot be said
to be an unequivocal admission to decree the suit
under Order 12 Rule 6CPC. Resultantly, this
Court by setting aside the judgment [S.M. Asif v.
Virender Kumar Bajaj, 2014 SCC OnLine Del
7564] , passed by the High Court remitted the
matter back to the trial court subject to deposit of
the arrears of the rent and the compensation for
use of occupation of the suit premises. Such
deposit was subject to final outcome of the
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 19 of 22
eviction as well as suit for specific performance .”
(emphasis added)
IX. Reliance was further placed on Himani Alloys Ltd. v. Tata Steel
Ltd (2011) 15 SCC 273. The Supreme Court held that a judgment
cannot be given if the admission is not categorical. Order XII Rule
6 of CPC is not mandatory or peremptory but discretionary, and it
mandates that the Court exercise its judicial discretion, keeping in
mind that a judgment on admission is a judgment without trial,
which may permanently deny any remedy to the respondent. It is
noted that the facts of the matter related to a claim for recovery
based on an alleged admission of liability, wherein the respondent
had pleaded that the agreement was merely tentative and intended
to allow the accounts to be verified, rather than constituting a final
settlement. Even otherwise, the principle of law laid down in
paragraph 11 of Himani Alloys ( supra ) cannot be doubted and is,
in fact, also accepted by this Court. Relevant paragraph of Himani
Alloys ( supra ) is extracted as under:
“ 11. It is true that a judgment can be given on an
“admission” contained in the minutes of a
meeting. But the admission should be categorical.
It should be a conscious and deliberate act of the
party making it, showing an intention to be bound
by it. Order 12 Rule 6 being an enabling
provision, it is neither mandatory nor peremptory
but discretionary. The court, on examination of
the facts and circumstances, has to exercise its
judicial discretion, keeping in mind that a
judgment on admission is a judgment without trial
which permanently denies any remedy to the
defendant, by way of an appeal on merits.
Therefore unless the admission is clear,
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 20 of 22
unambiguous and unconditional, the discretion of
the Court should not be exercised to deny the
valuable right of a defendant to contest the claim.
In short the discretion should be used only when
there is a clear “admission” which can be acted
upon. There is no such admission in this case .”
(emphasis added)
33. The respondent is, therefore, at best, merely a permissive licensee
in the property and is estopped under Section 116 of the Indian Evidence
Act, 1872 from disputing the title of the petitioners. The Trial Court
ought to have appreciated that the plea of contribution from joint family
funds was unsubstantiated, as the respondent had not pleaded any details
regarding the alleged contribution, including the amount contributed
towards the purchase of the property.
34. Based on the decision in Sunil Kapoor ( supra ), the Court is
inclined to exercise its discretion in favour of the petitioners, particularly
since ownership of the property stands admitted and the respondent’s
possession is based, at best, on the alleged oral family settlement, in
respect of which a declaratory suit has been filed.
35. Respondent may have rights that crystallise post the decree in the
said suit. Until then, however, the permissive licence to occupy the
property has been revoked by the petitoners, inter alia , through two legal
notices that were neither denied nor left unanswered.
36. Accordingly, the impugned order is set aside, and application
under Order XII Rule 6 of CPC is allowed, and the relief is granted in
favour of petitioners with respect to prayer (A) of the suit and be decreed
to that extent.
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 21 of 22
37. As regards prayer (B), (C) and (D), the matter is remanded back to
the Trial Court or to consider the same basis the evidence of the parties.
38. Accordingly, the petition is disposed of. Pending applications, if
any, are rendered infructuous.
39. Judgment be uploaded on the website of this Court.
(ANISH DAYAL)
JUDGE
OCTOBER 15, 2026/MK/ bp
Signature Not Verified
Digitally Signed By:RAHUL
KUMAR CHOUDHARY
Signing Date:16.10.2026
15:16:02
C.R.P. 363/2023 Page 22 of 22