Delhi District Court
Smt Motia Rani vs Gurbaksh Singh And Ors on 16 March, 2026
IN THE COURT OF NAVEEN GUPTA, DISTRICT JUDGE-09
WEST DISTRICT, TIS HAZARI COURTS, DELHI
CNR No.DLWT01-003926-2022
CS DJ No. 378/2022
In the matter of :-
Motia Rani
W/o Sh. Bhupender Singh,
R/o 19/3, First Floor,
Back Side, Ashok Nagar, Tilak Nagar,
Delhi-110018.
..... Plaintiff
VERSUS
1. Gurbaksh Singh,
S/o Late Sh. Sunder Singh,
R/o H. No. 10/10, Ashok Nagar,
Behind Thana Tilak Nagar,
Delhi-110018.
2. Chanchal
D/o Late Sh. Sunder Singh,
R/o H. No. 10/10, Ashok Nagar,
Behind Thana Tilak Nagar,
Delhi-110018.
3. Poonam
D/o Late Sh. Sunder Singh,
R/o H. No. 10/10, Ashok Nagar,
Behind Thana Tilak Nagar,
Delhi-110018.
..... Defendants
Date of institution : 29.04.2022
Reserved for judgment : 14.03.2026
Judgment pronounced on : 16.03.2026
Digitally signed
by NAVEEN
NAVEEN GUPTA
Date:
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Page no. 1/24
SUIT FOR PARTITION AND INJUNCTION
JUDGMENT
1. This is a suit for decree of partition and injunction filed by the plaintiff against the defendants. Succinctly put, the case of plaintiff, as per amended plaint, is that Smt. Karmawali was the mother of plaintiff and defendants. She expired on 28.08.1972. The father of plaintiff and defendants namely Sh. Sunder Singh had expired in the year 1967. One another sister of plaintiff namely Ms. Kanchan Bala was unmarried and expired in the year 1981. Her another brother namely Mr. Inderjeet was also unmarried, who left the house in the year 1968 and his whereabouts were not known to the parties since then.
2. It has been further averred by the plaintiff that Smt. Karmawali had purchased a property no. 10/10, Ashok Nagar, behind Thana Tilak Nagar, Delhi-110018 (hereinafter referred as 'suit property'), during her lifetime from Smt. Mohan Devi. Thus, Smt. Karmawali was the sole and exclusive owner of the suit property and defendant no. 1 (D-1) was in custody and possession of its title documents. Her mother died intestate, leaving behind plaintiff and defendants as her legal heirs. Accordingly, all her (Smt. Karmawali) legal heirs became the owner of suit property to the extent of 1/4th share each. The plaintiff requested the defendants for partition of the suit property in the month of July 2021. At that time, the defendants admitted that plaintiff was having 1/4 th share in the suit property. Further, in the month of October 2021, the plaintiff again requested the defendants to partition the suit property, but they stated that they would do the same by the end of December 2021. Thereafter too, despite her requests, the defendants did not CS DJ 378/2022 Page no. 2/24 Digitally signed by NAVEEN GUPTA NAVEEN Date:
GUPTA 2026.03.16
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partition the suit property. A few days back, she came to know that D-1 was trying to sell the suit property to some third person. In the first week of March 2022, D-2 in collusion with other defendants, refused to partition the suit property. Thus, the plaintiff has filed the present suit praying for decree of partition of the suit property and of permanent injunction restraining the defendants from creating third party interest over it.
3. In their amended written statement, the defendants have raised preliminary objections that the suit property did not belong to late Smt. Karmawali. However, it was earlier allotted to Smt. Mohan Devi by the Office of Regional Settlement Commissioner (Central), Jamnagar House, New Delhi. Thereafter, the record of suit property was transferred to Land and Development Office, Nirman Bhawan, New Delhi. As such, a lease deed dated 20.12.1971 was executed in favour of Smt. Mohan Devi, which was got registered in the office of Sub- Registrar, Delhi on 23.02.1972 through her attorney/SPA late Smt. Karmawali. She was living in the suit property alongwith her family i.e. her husband and children. Though her two children namely Sh. Inderjeet and Ms. Kanchan Bala have died.
4. It has been further averred that after the death of Smt. Karmawali on 28.08.1972, the defendants continued to stay/occupy the suit property as their residence. While the plaintiff had permanently left the suit property after her marriage on 01.08.1971 and lived at Gohana, Haryana. Further, she deserted her earlier husband and started living with some another person in Delhi. The plaintiff was having no link or relation with the defendants. She had never participated in any function, CS DJ 378/2022 Page no. 3/24 Digitally signed by NAVEEN NAVEEN GUPTA GUPTA Date:
2026.03.16 15:07:59 +0530 ceremony or death rituals of the relatives of defendants including that of her sister Kanchan Bala [who died on 07.07.1981]. The defendant no. 3 (D-3) had got married in July 2010 and also moved out of the suit property. Thus, the suit property had been in continuous occupation/ under continuous possession of D-1 and D-2. Further, D-1 had got the electricity connection in his name from DESU (now BSES Rajdhani) over the suit property since 07.03.1989. He had also got water connection from Delhi Jal Board since 16.03.1989. He had been paying electricity and water bills of the suit property.
5. It has been further averred that D-1 had applied with the office of L & DO, Nirman Bhawan for substitution of leasehold rights in his name and received the acknowledgment dated 31.01.1992. Thus, he had perfected his title over the suit property by adverse possession as against actual owner Smt. Mohan Devi. D-1 and D-2 were having bank accounts with the same address of the suit property.
6. It has been further averred that the defendants or any of their relatives did not have any relationship or contact with the plaintiff since 1972-73 after the death of their mother. Accordingly, the present suit is time barred as it has been filed beyond the period of 12 years. The plaintiff was not aware of proper names and details of the defendants and their relatives. It has been further averred that the plaintiff has not properly valued her suit and did not pay the requisite Court fees, as the market value of the suit property is more than Rs.1,40,00,000/-. The defendants have further denied all the allegations made by the plaintiff in her plaint. They have prayed for dismissal of the present suit.
Digitally
signed by
CS DJ 378/2022 NAVEEN
GUPTA
NAVEEN
GUPTA
Date:
Page no. 4/24
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7. In her replication, the plaintiff has inter-alia submitted that D-1 alone cannot be allowed to claim ownership rights over the suit property. The leasehold rights cannot be transferred in the name of D-1 alone, because the plaintiff is also one of the co-owners of the suit property. She submitted that she was earlier married with Sh. Kashmiri Lal Manuja and after taking divorce from him, she got married with Sh. Bhupinder Singh. She has further denied all the allegations leveled by the defendants in their written statement.
8. From the pleadings of the parties, following issues were framed on 29.10.2024:-
1. Whether late Ms. Karamawali was the owner of the suit property or had any other right in the same, which can be made subject matter of partition? OPP
2. Whether the suit has been filed within the period of limitation? OPP
3. Whether the Defendant No.1 has become owner of the suit property by adverse possession? OPD-1.
4. Whether the suit has not been valued properly? OPD
5. Whether the Plaintiff is entitled to a preliminary decree of partition, as prayed for? OPP
6. Whether the Plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
7. Relief
9. To prove her case, the plaintiff examined three witnesses. PW-1 is the plaintiff herself. She tendered her evidence affidavit as PW-1/A. CS DJ 378/2022 Digitally signed Page no. 5/24 by NAVEEN GUPTA NAVEEN Date:
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She submitted on the similar lines as stated by her in the plaint. She relied upon the following documents:-
1. Ex.PW-1/1: Copy of Aadhar Card of plaintiff.
2. Ex.PW-1/2: Site plan.
PW-1 was cross-examined on behalf of the defendants.
10. PW-2 is Sh. Sevajit, Record Attendant, Department of Delhi Archives, 18A, Satsang Vihar Marg, Spl. Institutional Area, New Delhi-110067. He tendered the lease deed dated 20.12.1971 in respect of the suit property, which was registered in the name of Mohan Devi, as Ex.PW-2/1.
11. PW-3 is Ashok Kumar Rohella, Consultant, Property Section-III, Land and Development Office, Ministry of Urban Development, Nirman Bhawan, New Delhi. He tendered complete file bearing ID No. 28745 in respect of the suit property available with the concerned department, as Ex.PW-3/1 (Part-I) and Ex.PW-3/1A (Part-II). He tendered authorization letter issued by his department as Ex.PW-3/2. Thereafter, plaintiff's evidence was closed vide order dated 25.09.2025.
12. To prove their defence, the defendants examined one witness. DW-1 is the defendant no. 1. He tendered his evidence affidavit as DW-1/A. He submitted on the similar lines as stated by him in his written statement. DW-1 relied upon the following documents:-
1. Lease deed dated 20.12.1971, already exhibited as Ex.PW-1/1.
2. Correspondence related with the allotment of suit property available with the department i.e. L&DO, as Ex.PW3/1.
CS DJ 378/2022 Digitally signed
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by NAVEEN
NAVEEN GUPTA
GUPTA Date:
2026.03.16
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3. First page of Bank passbook of DW1 as well as passbook of defendant no. 2, as Ex.DW1/2.
4. Copy of electricity and water connection order and bills, as Ex.DW1/3.
5. Copy of telephone bills, as Ex.DW1/4.
6. Copy of death certificate and birth certificate of sisters namely, Poonam Lata, Kanchan Bala and of his father namely Sunder Singh and of his mother Karmawali, as Ex.DW1/5.
7. Photographs showing possession of DW-1 in the suit property, as Ex.DW1/6.
8. Copy of Aadhar Card and Election Identity Card of DW-1, as Ex.DW1/7.
9. Copy Aadhar Card of Chanchal Rani, as Ex.DW1/8.
10.Copy of Aadhar card of Poonam Lata, as Mark-A. DW-1 was cross-examined on behalf of the plaintiff. Thereafter, defendant's evidence was closed on 16.01.2026.
13. Final arguments were heard from Ld. Counsels for the parties. Record as well as written arguments filed on behalf of the defendants have been perused. Ld. Counsel for the plaintiff has argued that admittedly, leasehold rights over the suit property were in the name of Smt. Mohan Devi. Smt. Karmawali/mother of the parties was her SPA Holder. Thus, D-1 did not have any independent right over the suit property. He was merely claiming right over it through mother of parties. Further, in her special power of attorney dated 01.07.1971 executed by Smt. Mohan Devi in favour of Smt. Karmawali, she had CS DJ 378/2022 NAVEEN by Digitally signed NAVEEN Page no. 7/24 GUPTA GUPTA Date: 2026.03.16 15:08:20 +0530 inter-alia authorized her SPA (Smt. Karmawali) to receive the sale deed from the Ministry of Rehabilitation on her behalf and subsequently sell the same to anyone else for and on her behalf after obtaining the requisite permission from the relevant department or authority. This recital in SPA leads to infer that Smt. Mohan Devi had transferred all her rights in the suit property in favour of Smt. Karmawali. Moreover, challan was also deposited by husband of Smt. Karmawali namely Sh. Sunder Singh with the concerned department. Ld. Counsel has further argued that rather plaintiff had filed an application, Ex.DW-1/X-1 with the Land and Development Officer, Nirman Bhawan, New Delhi requesting for transfer of suit property in his name. He annexed a false affidavit, Ex.DW-1/X-2 with the said application, wherein he claimed that Smt. Karmawali left behind him as her sole legal heir. Ld. Counsel has lastly argued that even if, it is accepted that D-1 has only the possessory rights over the suit property, the plaintiff is entitled to seek partition and get her share in the suit property. He has relied upon following precedents laid down by Hon'ble Delhi High Court in Surjit Singh v. Ekta Gulati, in RFA No. 166/2012 decided on 16.08.2012 and Neelu Chadha v. Sunil Sethi, in CS(OS) 2046/2015 decided on 27.01.2026 and another precedent laid down by the Hon'ble Himachal Pradesh High Court in Virender Sharma v. Uma Devi, in Civil Revision No. 119/2014 decided on 26.02.2016.
14. Ld. Counsel for defendants has argued that first of all, admittedly, Smt. Karmawali was not the owner of suit property. She was merely an SPA of the leaseholder namely Smt. Mohan Devi. Even the lease deed dated 20.12.1971 issued in the name of Smt. Mohan CS DJ 378/2022 Digitally signed by NAVEEN Page no. 8/24 NAVEEN GUPTA Date:
GUPTA 2026.03.16 15:08:25 +0530 Devi depicts Smt. Karmawali as her Special Attorney. The plaintiff has not placed on record any document of transfer of rights over the suit property by Smt. Mohan Devi executed in favour of Smt. Karmawali. Even otherwise, the plaintiff had left the suit property after her marriage in the year 1971. The defendant no. 1 has become owner of the suit property by adverse possession. Further, the present suit is barred by limitation too. Ld. Counsel has argued that the present suit shall also be rejected on the ground of non-identification of suit property, as the plaintiff did not file accurate site plan. Further, the plaintiff did not value the suit appropriately and file the Court fees accordingly. He has relied upon following precedents in support of his arguments i.e. Amrit Kaur v. Sarabjeet Singh, in CS (OS) No. 1574/2006 decided by the Hon'ble Delhi High Court on 29.08.2008, Saroj Salkan v. Capt. Sanjeev Singh, 155 (2008) DLT 300, Anita Anand v. Gargi Kapur, decided by the Hon'ble Delhi High Court on 19.09.2018, Mary Pushpam v. Telvi Curusumary, in Civil Appeal No. 9941/2016 decided by the Hon'ble Supreme Court on 03.01.2024 and M.Radheyshyamlal v. V. Sandhya, in Civil Appeal No. 4322-4324 decided by the Hon'ble Supreme Court on 18.03.2024.
15. Issue wise findings:-
Issue no. 1 Whether late Ms. Karamawali was the owner of the suit property or had any other right in the same, which can be made subject matter of partition? OPP The onus to prove this issue was upon the plaintiff. In her plaint, the plaintiff has claimed that her mother Smt. Karmawali had purchased the Digitally signed by NAVEEN NAVEEN GUPTA CS DJ 378/2022 GUPTA Date:
2026.03.16 Page no. 9/24 15:08:30 +0530 suit property during her lifetime from Smt. Mohan Devi. She has further submitted that her mother was the sole and exclusive owner of the suit property. But, during her cross-examination conducted on behalf of the defendants, PW-1 deposed that she had placed on record the sale documents pertaining to the suit property executed by Smt. Mohan Devi in favour of Smt. Karmawali i.e. GPA. However, at that time, Ld. Counsel for plaintiff apprised the Court that no such GPA had been placed on record by the plaintiff. She (PW-1) admitted that suit property was allotted by Regional Settlement Commissioner to Smt. Mohan Devi and thereafter, the lease deed was executed in her favour on 20.12.1971 by the said Commissioner.
16. In this regard, the defendants have submitted in their written statement that the suit property had earlier been allotted to Smt. Mohan Devi by Regional Settlement Commissioner (Central). Thereafter, the record of the suit property was transferred to Land and Development Office, Nirman Bhawan, New Delhi. A lease deed dated 20.12.1971 was executed in favour of Smt. Mohan Devi by the lessor/on behalf of the President of India, which got registered in the Office of Sub- Registrar Delhi on 23.02.1972 through her attorney/SPA late Smt. Karmawali. During his cross-examination conducted on behalf of the plaintiff, DW-1 deposed that he did not know in what capacity his mother was residing in the suit property. He denied the suggestion that Smt. Karmawali had purchased the suit property from one Mohan Devi for a consideration amount of Rs.500/-. He could not tell as to why Smt. Mohan Devi had made Smt. Karmawali as her SPA holder. He denied the suggestion that Smt. Karmawali was the owner of the suit property.
CS DJ 378/2022 NAVEEN by Digitally signed NAVEEN Page no. 10/24 GUPTA GUPTA Date: 2026.03.16 15:08:35 +0530
17. The above pleadings of the plaintiff in her plaint show that the plaintiff has claimed her mother as owner of the suit property. But, during her testimony as PW-1, she admitted that suit property was allotted to Smt. Mohan Devi and a lease deed was also executed in her favour. The said aspect has also been so stated by the defendants in their written statement. The lease deed dated 20.12.1971, Ex.PW-2/1 also reflects that the lease of the suit property had been executed in favour of Smt. Mohan Devi through her SPA Smt. Karmawali.
18. Ld. Counsel for plaintiff has argued that the SPA dated 01.07.1971 executed by Smt. Mohan Devi in favour of Smt. Karmawali, which is part of record produced by the concerned department as Ex.PW-3/1A, shows that SPA had been authorized to receive the sale deed from the Ministry of Rehabilitation and subsequently sell the same to anyone else for and on behalf of Smt. Mohan Devi. The Court is of the view that the said recital in SPA does not confer any ownership rights to Smt. Karmawali over the suit property.
19. It is pertinent to note that the defendant no. 1 had filed several applications before the concerned department for transferring the suit property in his name. The record produced by the concerned department, Ex.PW-3/1 reflects that one application dated 31.01.1992, Ex.DW-1/X-1 was filed by D-1 whereby he requested for transfer of property in his name. The record contains an internal noting dated 23.12.1994 of Sh. B. L. Nimesh, L & DO at page 15 to the effect that 'Sh. Gurbaksh Singh repeatedly pressed his claim for transferring ownership of the property (substitution) in his name. Perusal of record CS DJ 378/2022 Digitally signed by NAVEEN Page no. 11/24 NAVEEN GUPTA GUPTA Date:
2026.03.16 15:08:39 +0530 shows that property is leased in the name of one Smt. Mohan Devi. He, thus, has no claim on this property. He has already been advised about this position by the office. I gave him long patient hearing but he failed to produce any document in support of his claim. However, he has been again explained the legal factual position of the case. Action under rule be taken against him for being in unauthorized occupation of the property...'. A letter dated 21.03.1995 is also on record at page no. 49, which was sent to D-1 by Dy. Land and Development Officer mentioning therein that 'the property continue to be in the name of Smt. Mohan Devi. It has come to our notice that you are in occupying this property, without any valid claim. You are, therefore, requested to clarify the position, failing which, action under rule be taken against you for being in unauthorized occupation of the property'. Earlier too, vide letter dated 22.10.1992, it was informed to D-1 by Dy. Land and Development Officer (letter at page 28) that 'as per record of this office, the property referred to above stand in the name of Smt. Mohan Devi. Smt. Karmawali who has been stated by you as your mother in the affidavit, has acted as Special Attorney while executing the lease deed in favour of Smt. Mohan Devi and she did not acquire any right under the terms of lease deed. So, the legal heirs of the attorney can not acquire the property of lessee died intestate in succession'.
20. The above communications to D-1 from Land and Development Office clarify/explain that Smt. Karmawali did not have any right over the suit property. She was merely a Special Power of Attorney of the lessee Smt. Mohan Devi. The plaintiff has failed to prove that late Smt. Karmawali was the owner of the suit property or had any other right in CS DJ 378/2022 Digitally signed by NAVEEN NAVEEN GUPTA Page no. 12/24 GUPTA Date:
2026.03.16 15:08:44 +0530 the same. She has further failed to lead any evidence to the effect that Smt. Mohan Devi had transferred rights over the suit property to Smt. Karmawali in any manner, in accordance with the applicable provisions of law. Merely a suggestion put to DW-1 that Smt. Karmawali had purchased the suit property from Mohan Devi for a consideration amount of Rs.500/- does not serve the purpose. Accordingly, the plaintiff has failed to prove any right of Smt. Karmawali over the suit property, which can be made subject matter of partition.
21. Ld. Counsel for plaintiff has relied upon the precedent laid down in the case of Surjit Singh (supra). But, with utmost respect, the Court is of the view that the facts and circumstances of the said case were peculiar in nature and are distinguishable from the present case. In the present case, the concerned department/lessor has already conveyed to D-1 and thereby, to the legal heirs of Smt. Karmawali that 'legal heirs of the attorney cannot acquire the property of lessee died intestate in succession'. Surprisingly, neither D-1 nor plaintiff nor other legal heirs of Smt. Karmawali had ever challenged the said decision of the concerned department till date. The plaintiff did not implead the concerned department in the array of parties to provide it a chance to clarify or defend its position as lessor in this regard. Accordingly, the issue no. 1 is decided against the plaintiff.
22. Issue no. 2 Whether the suit has been filed within the period of limitation? OPP Though the Court has already observed that the plaintiff has failed to prove any right of late Smt. Karmawali over the suit property, which Digitally signed CS DJ 378/2022 by NAVEEN NAVEEN GUPTA Page no. 13/24 GUPTA Date:
2026.03.16 15:08:49 +0530 can be made subject matter of the partition. However, the Court has proceeded to decide this issue as it is trite law that the Court shall give findings on every issue at the time of final adjudication.
23. The onus to prove this issue was upon the plaintiff. Ld. Counsel for the plaintiff has argued that it is trite law that partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides to separate his share from the co-sharers. Thus, present suit has been filed within limitation period.
24. On other hand, Ld. Counsel for defendants has argued that Smt. Karmawali expired on 28.08.1972. Thus, the limitation for seeking partition of the suit property commenced on the said date. The limitation for filing a suit for partition is 12 years from the date of cause of action. But, the plaintiff has filed the present suit on 29.04.2022 i.e. after almost 50 years of death of her mother. It has been so held in the case of Amrit Kaur (supra) that Article 110 of the Schedule to the Act [the Limitation Act] provides that a suit by a person excluded from a joint family property, to enforce a right to share therein is twelve years.
The starting point is when the exclusion becomes known to the plaintiff.
25. The Court is conscious of the precedent laid down by the Hon'ble Delhi High Court in Samir Sharma v. Sterre Sharma, 2025 SCC OnLine Del 1511, wherein the Court has held that:
37. In so far as limitation period for a suit for partition is concerned, it is trite that no period of limitation has been CS DJ 378/2022 Page no. 14/24 Digitally signed NAVEEN by NAVEEN GUPTA GUPTA Date: 2026.03.16 15:08:54 +0530 prescribed therefor and there is always a running cause of action for seeking partition by one of the co-sharers. However, the limitation for suit for partition would be governed by Article 65 of the Limitation Act only when a co-sharer or joint owner in possession of the property, professes a hostile title as against the other co-sharers openly and to the knowledge of the other co-
owners, in which case the limitation period will be 12 years from the date when possession of a co-sharer becomes adverse to that of other co-sharers. The reference in this regard may be had to the decision of the Hon'ble Supreme Court in Vidya Devi (supra) wherein it was observed thus:
"20. The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other to co-sharers. Since the filing of the suit is wholly dependent upon the will of the co- sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the court as a plaintiff seeking partition of his share in the joint property.
21. Normally, where the property is joint, co-sharers are the representatives of each other. The co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of other joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition." (emphasis supplied) Digitally signed by NAVEEN NAVEEN GUPTA Date: GUPTA 2026.03.16 15:09:00 +0530 CS DJ 378/2022 Page no. 15/24
26. Ld. Counsel for the plaintiff has pointed out that in the case of Neelu Chadha (supra), the case of Vidya Devi has been relied upon. Now, it is required to examine as to when the plaintiff had sought her share in the suit property. Though in her plaint, the plaintiff has claimed that she had sought partition of the suit property in the month of July 2021. But, during her cross-examination as PW-1, she categorically deposed that she left the suit property in the year 1973. She voluntarily stated that she used to visit the suit property now and then. She denied the suggestion that she never visited the suit property after her first marriage. She voluntarily stated that after the year 1973, the defendants did not allow her to enter the suit property. She further deposed that in the year around 1978-79, she asked the defendants for partition of the suit property. She did not mention this fact in her evidence affidavit.
27. The above version of PW-1/plaintiff makes out that she had been excluded from the suit property in the year 1973 itself. Further, in the year 1978-79, she had asked for partition of the suit property. By applying the above precedents, in such circumstances, the plaintiff must have filed the suit for partition within 12 years of denial by the defendants for partition of the suit property i.e. by the year 1990-91. Accordingly, the present suit has been filed beyond the period of limitation. The issue no. 2 is decided against the plaintiff.
28. Issue no. 3.
Whether the Defendant No.1 has become owner of the suit property by adverse possession? OPD-1.
The onus to prove this issue was upon the defendants. Ld. Counsel for Digitally signed CS DJ 378/2022 by NAVEEN NAVEEN GUPTA Page no. 16/24 Date:
GUPTA 2026.03.16 15:09:07 +0530 the defendants has argued that the plaintiff had never resisted the possession of defendants. She admitted that after the year 1973, the defendants did not allow her to enter the suit property. Thus, there was exclusion of plaintiff from the suit property. The defendants were in uninterrupted possession of the suit property. Accordingly, the defendants became owner of the suit property by way of adverse possession.
29. Firstly, the Court stands guided by the precedent laid down by the Hon'ble Supreme Court in P.T. Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, wherein the Court has discussed the aspect of adverse possession. The excerpts of observations of the Court are that:
5. Adverse possession in one sense is based on the theory or pre-
sumption that the owner has abandoned the property to the ad- verse possessoror on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, con- tinuous and hostile. [See Downing v. Bird, 100 So. 2d 57 (Fla. 1958), Arkansas Commemorative Commission v. City of Little Rock, 227 Ark. 1085, 303 S.W.2d 569 (1957); Monnot v. Murphy, 207 N.Y. 240, 100 N.E. 742 (1913); City of Rock Springs v. Sturm, 39 Wyo. 494, 273 P. 908, 97 A.L.R. 1 (1929).]
6. Efficacy of adverse possession law in most jurisdictions depend on strong limitation statutes by operation of which right to access the court expires through effluxion of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse posses- sor who has, for a long period of time, cared for the land, devel- oped it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of prop- erty that has been in the adverse possession of another for a speci- fied time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property Digitally signed CS DJ 378/2022 by NAVEEN NAVEEN GUPTA Page no. 17/24 Date:
GUPTA 2026.03.16 15:09:12 +0530 for the time specified by the statute under claim of right or color of title. (See American Jurisprudence, Vol. 3, 2d, Page 81). It is important to keep in mind while studying the American notion of Adverse Possession, especially in the backdrop of Limitation Statutes, that the intention to dispossess can not be given a com- plete go by. Simple application of Limitation shall not be enough by itself for the success of an adverse possession claim.
8. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially "willful neglect" element on part of the owner established.
Successful application in this regard distances the title of the land from the paper- owner.
2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
11. This brings us to the issue of mental element in adverse possession cases-intention.
1. Positive Intention
12. The aspect of positive intention is weakened in this case by the sale deeds dated 11.04.1934 and 5.07.1936. Intention is a mental element which is proved and disproved through positive acts. Existence of some events can go a long way to weaken the presumption of intention to dispossess which might have painstakingly grown out of long possession which otherwise would have sufficed in a standard adverse possession case. The fact of possession is important in more than one ways : firstly, due compliance on this count attracts limitation act and it also assists the court to unearth as the intention to dispossess.
13. At this juncture, it would be in the fitness of circumstances to discuss intention to dispossess vis-a-vis intention to possess. This distinction can be marked very distinctively in the present circumstances.
Digitally signedCS DJ 378/2022 NAVEEN by NAVEEN
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GUPTA Date: 2026.03.16
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14. Importantly, intention to possess can not be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialize.
15. The High Court observed :
"It is seen from the pleadings as well in evidence that the plaintiff came to know about the right of the defendants', only when disturbances were sought to be made to his possession."
18. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that inten- tion of the adverse user gets communicated to the paper owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hos- tile enough to give rise to a reasonable notice and opportunity to the paper owner.
2. Inquiry into the particulars of Adverse Possession
29. Inquiry into the starting point of adverse possession i.e. dates as to when the paper owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and Other facts such as the manner in which the possession operationalized, nature of possession: whether open, continuous, uninterrupted or hostile possession - have not CS DJ 378/2022 Digitally signed by NAVEEN NAVEEN GUPTA Page no. 19/24 GUPTA Date:
2026.03.16 15:09:22 +0530 been disclosed. An observation has been made in this regard in S.M. Karim v. Mst. Bibi Sakina [AIR 1964 SC 1254] :
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
30. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
30. The principles laid down in the case of M. Radheyshyamlal (supra) have also been taken into consideration. It is pertinent to note that in their written statement, the defendants claimed that D-1 had perfected his title over the suit property by adverse possession against actual owner Smt. Mohan Devi as he had been in actual, open, continuous, absolute, adverse and hostile possession of the suit property since March 1989. From the above version of defendants, it is made out that the defendant no. 1 has claimed ownership by adverse possession against the lessee Smt. Mohan Devi, not against the co-sharers of the suit property including the plaintiff, if at all, Smt. Karmawali had any right over the suit property which could have been made subject matter of partition.
31. So far as the plea of adverse possession against Smt. Mohan Devi is concerned, she is not one of the parties of the present suit to defend such plea. Moreover, during his cross-examination, DW-1/D-1 deposed that he did not remember whether Smt. Mohan Devi had ever visited to CS DJ 378/2022 Page no. 20/24 Digitally signed NAVEEN by NAVEEN GUPTA GUPTA Date: 2026.03.16 15:09:27 +0530 claim the suit property during the lifetime of Smt. Karmawali, as he was minor at that time. He did not know the present whereabouts of Smt. Mohan Devi. He could not tell as to why Smt. Mohan Devi had made Smt. Karmawali as her SPA Holder.
32. At this stage, the record of concerned department is again relevant, extract of which has already been mentioned by the Court while deciding the issue no. 1. D-1 had been applying to the concerned department for transferring the suit property in his name. He had even filed a false affidavit, Ex.DW-1/X-2 claiming that Smt. Karmawali left behind him as her sole legal heir. The said request of D-1 was rejected by the department. Rather, the department has considered him to be in unauthorized occupation of the suit property. It has already been observed by the Court that the concerned department has also not been impleaded in the array of parties. Accordingly, the defendant no. 1 has failed to prove the ingredients laid down in the above precedents for declaring him to be owner of the suit property by way of adverse possession. Thus, the issue no. 3 is decided against the defendant no. 1.
33. Issue no. 4 Whether the suit has not been valued properly? OPD The onus to prove this issue was upon the defendants. Ld. Counsel for the defendants has argued that the plaintiff during her cross- examination has admitted that at the time of filing of the suit, the market value of the suit property was Rs.1,40,00,000/-. The plaintiff has admitted her exclusion from the joint possession of the suit property since the year 1973. Hence, she should have paid ad valorem Court fees on market value of her share. He has relied upon the precedent laid CS DJ 378/2022 Page no. 21/24 Digitally signed by NAVEEN NAVEEN GUPTA GUPTA Date:
2026.03.16 15:09:32 +0530 down in the cases of Saroj Salkan (supra) and Anita Anand (supra) in this regard.
34. The Hon'ble Delhi High Court in Tara Chand Gaur v. Satish Chand Sharma, 2018 SCC OnLine Del 12923, has held that:
6. So far as the third aspect of the court-fee having not been paid is concerned because the appellant/plaintiff has only affixed a court fee of Rs. 20/-, once again, the trial court has erred in holding that since the appellant/plaintiff had valued the suit at Rs. 1 crore, and he was not in possession of the suit property, therefore, the appellant/plaintiff was liable to pay court-fee on his 1/3rd share. In law, when a partition is sought by a co-owner, court-fee which is payable is a fixed court-fee in terms of Schedule II, Article 17(vi), of the Court-fees Act, 1870 in as much as every co-owner is either in actual physical possession of whole or part of the property or in law has to be taken in deemed possession or constructive possession of the co-owned property. If a defendant is a co-owner who is in actual physical possession of the complete property, even then, the possession of one or more such co-owners who are defendants in possession, the possession is for and on behalf of all co-owners including the plaintiff(s), and whether there exists exclusive possession of the respondents/defendants and the same acts as an ouster of the plaintiff(s) is a question of fact, and only when this question of fact is proved by the respondents/defendants by leading evidence, it can be held that the appellant/plaintiff was not in possession, physical or constructive, of the suit property, so that court-fee is payable for the 1/3rd share as claimed by the appellant/plaintiff. In fact, this issue of court-fee is very much inter-linked with the issue of limitation because the appellant/plaintiff is not in possession, and both are factual issues which will have to be proved by the respondents/defendants that the appellant/plaintiff was not in physical possession of the suit property and ouster has been proved against the appellant/plaintiff by respondents/defendants after leading evidence.
35. The Court has already observed that the plaintiff has filed the present case beyond the period of limitation. It has already come on record that she had been excluded from the fruits of suit property since CS DJ 378/2022 Page no. 22/24 Digitally signed NAVEEN by NAVEEN GUPTA GUPTA Date: 2026.03.16 15:09:37 +0530 the year 1973. Thus, following the above precedents, the plaintiff is liable to pay ad valorem court fees on the market value of her share as provided under Section 7 (iv) (b) of the Court fees notwithstanding the fact that plaintiff has pleaded that she was in constructive possession. The plaintiff has paid court fees of Rs.40/- only. Moreover, in her plaint, the plaintiff has valued the suit property as Rs.1,00,00,000/-, while deposing as PW-1, she admitted the suggestion that at the time of filing of the suit, the market value of the suit property was Rs.1,40,00,000/-. She must have paid ad valorem court fees on the market value of her share out of the suit property valued at Rs.1,40,00,000/-. Accordingly, this issue is decided against the plaintiff.
36. Issue no. 5 and 6
5. Whether the Plaintiff is entitled to a preliminary decree of partition, as prayed for? OPP
6. Whether the Plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP Though after deciding the issues no. 1 and 2, there is no need to further deliberate upon these issues. However, the Court proceeds to consider a plea raised by Ld. Counsel for the defendant that the present suit shall be rejected as the plaintiff did not file accurate site plan of the suit property. He has relied upon a precedent laid down in the case of Mary Pushpam (supra) in this regard.
37. The plaintiff/PW-1 has tendered site plan of the suit property as Ex.PW-1/2. During her cross-examination conducted on behalf of the defendants, merely a suggestion was put to her that she did not file the site plan as mandated in the present nature of suit. It is not explained by CS DJ 378/2022 Page no. 23/24 Digitally signed by NAVEEN NAVEEN GUPTA GUPTA Date:
2026.03.16 15:09:41 +0530 the defendants as to in what manner, the said site plan was not accurate. The defendants did not file any site plan to controvert the descriptions of the suit property as shown in the site plan tendered by the plaintiff. It is not the case of defendants that the suit property is not identifiable through its address i.e. 10/10, Ashok Nagar, behind Thana Tilak Nagar, Delhi, which has been leased by the Regional Settlement Commissioner vide lease dated 20.12.1971. The precedent of the case of Vijender Sharma (supra) is also applicable herein. Thus, this argument of Ld. Counsel for the defendants is not tenable.
38. As the issues no. 1 and 2 have been decided against the plaintiff, she is not entitled to decree of partition of the suit property. Simultaneously, she is not entitled to decree of permanent injunction as well. The issues no. 5 and 6 are decided against the plaintiff.
Relief
39. In view of the findings on above issues, the plaintiff is not entitled to the reliefs claimed in the plaint. This suit is dismissed. Decree-sheet be prepared accordingly. The parties shall bear their own costs.
File be consigned to record room after due compliance.
Announced in the open Court on the 16th day of March, 2026 Digitally signed NAVEEN by NAVEEN GUPTA GUPTA Date: 2026.03.16 15:09:47 +0530 (Naveen Gupta) District Judge-09, West District, Tis Hazari Courts, Delhi.
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