Delhi District Court
Nand Kumar Newar vs Kamal Kumar Newar on 10 October, 2025
IN THE COURT OF SH.ABHITOSH PRATAP SINGH RATHORE,
DISTRICT JUDGE-04, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI.
Old Suit No.:CS (OS)No. 362/2009
New Suit No.: CS DJ 537/2025
CNR No.:DLST 01-012558-2025
IN THE MATTER OF :
Nand Kumar Newar
S/o Shri Trilok Chand Newar
R/o A-1/281, Safdarjung Enclave
New Delhi. .....Plaintiff.
Versus
Kamal Kumar Newar
S/o Sh. Trilok Chand Newar
R/o A-1/281, Safdarjung Enclave,
New Delhi .....Defendant
Date of Institution of Suit : 25.02.2009
Date of arguments : 24.09.2025.
Date of Pronouncement : 10.10.2025
SUIT FOR RECOVERY OF POSSESSION AND DAMAGES
JUDGMENT
1. The brief facts as averred in the plaint are that plaintiff and defendant are real brothers. Plaintiff is the owner and landlord of property bearing No. A-1/281, Safdarjung Enclave, New Delhi. The said plot of land was purchased by the plaintiff from Delhi Development Authority vide Perpetual Lease dated 11.01.1979. The property is bounded as under:
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 1 / 32 North - Plot No.280 East -Plot No.286 South -Plot No.282 West - Road Plaintiff has been carrying on the business in the name and style of M/s Imperial Refractories. After purchase of the said plot, plaintiff from his income has raised the construction of house No.A-1/281, Safdarjung Enclave, New Delhi. The construction was completed during the assessment year of 1981-82. Plaintiff is assessed to income tax and has been regularly paying the income tax showing the said property in his income tax returns. The property is assessed by the Municipal Corporation of Delhi in the name of plaintiff for which plaintiff is regularly paying the house tax. The BSES Rajdhani Power Ltd. connection and water connection from Delhi Jal Board are also in plaintiff's name.
As per the plaint, defendant being the younger brother was permitted by the plaintiff to use two rooms on the ground floor, one room on the mezzanine floor with common bath and kitchen of the plaintiff's property bearing No.A-1/281, Safdarjung Enclave, New Delhi. The possession of the defendant in the said property is purely permissive. Defendant has no right or interest in the said portion of the property belonging to the plaintiff in any manner. The defendant alongwith his wife, two sons and the wife of his elder son are living in the said portion of the property. Defendant's son is carrying on the business separately and defendant has also acquired his own residential accommodation.
When the plaintiff asked the defendant to vacate the premises as the possession was only permissive, defendant CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 2 of 32 instead of vacating the premises began using unparliamentary language and even attempted to assault the plaintiff and his family members. Hence, the plaintiff was compelled to send a legal notice dated 09.04.2008 through his counsel whereby he terminated the defendant's license and asked him to vacate the premises by the end of April, 2008. It was also made clear in said notice, in case defendant failed to handover the vacant possession of the portion of the said property, he shall be liable to pay damages by way of mesne profit @ Rs.25,000/- per month on account of illegal use and occupation. Despite receipt of said notice, defendant has not vacated the premises. Hence, the present suit.
WRITTEN STATEMENT
2. Written statement was filed on behalf of the defendant in which defendant has taken preliminary objection that the plaintiff has not approached the court with clean hands and based his claim on totally incorrect facts in order to gain illegal advantage over the other coparceners including the defendant for whom he is holding the property as trustee. It is submitted that plaintiff is not the exclusive owner of the suit property bearing no. A-1/281, Safdarjung Enclave, New Delhi. It is submitted that the plaintiff in whose name the property is held is a coparcener in a Hindu undivided family (HUF) comprising of plaintiff, defendant, Sh.
Vijay Kumar, Late Basant Kumar (all brothers) and their father Late Trilok Chand Newar. The property is held for the benefit of all the coparceners in the family. There was never a partition amongst the members of HUF, which initiated various businesses CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 3 / 32 in different names from time to time with joint Hindu family funds. Plaintiff never had any independent source of income.
In parawise reply, it is submitted that in 1969-70 a partnership firm namely Vimu Industrial Corporation was formed and a plot bearing no.175, Sector 24, Faridabad was purchased. It is submitted that in or about the year 1974, a partnership concern under the name and style of M/s Imperial Refractories was formed at Calcutta. All the aforesaid four brothers and their father were partners in it.
As the business extended, plaintiff got settled in Delhi in or about the year 1974 to look after the said HUF business. It is submitted that plaintiff manipulated to get the plot in question in his name. The money invested in the purchase of the said plot and the construction thereon was raised from HUF funds. The other members of the family trusted the plaintiff-he being the most educated amongst all. Plaintiff represented that it will always be HUF property and the said plot has been taken in his name only to deal with the authorities concerned. It is submitted that all the concerned documents pertaining to HUF businesses and properties are in the custody of plaintiff. It is submitted that there were other HUF businesses in which wives of all the aforesaid four brothers were partners and money invested therein was from HUF. It is submitted that defendant is in the exclusive possession of the ground floor and the mezzanine floor of the suit property in his own right as the co-owner thereof. The valuation for the purpose of suit for possession is very low and as such no proper court fee has been affixed.
REPLICATION
3. Replication was filed by plaintiff. In replication plaintiff CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 4 of 32 denied that the suit property is a HUF property. It is submitted that the suit property is self acquired property of the plaintiff. It is submitted that plaintiff started his own business in the year 1964 in the name of Rajasthan Textile Corporation, as the sole proprietor. Plaintiff shifted to Delhi and started the work of resale of refactories at plot no.35, Sector 25 Faridabad in 1973 in the name and style of Imperial Refractories and operated from a rented accommodation at 42A/UA, Jawahar Nagar, Delhi. Plaintiff was the sole proprietor of Imperial Refactories, Delhi. It is submitted that plaintiff also booked the duplex flat in the name of the defendant in the year 1980-81 or so and the said flat bearing no.9282, Pocket C-9, Vasant Kunj, New Delhi now stands in the name of the defendant. It is submitted that defendant was never a partner nor a member of HUF with the plaintiff.
ISSUES
4. On the basis of the pleadings of the parties, the following issues were framed on 09.08.2010:
1. Whether the Plaintiff is entitled to recover the possession of the suit property, as shown in red in the site plan, attached to the plaint? OPP
2. Whether the Plaintiff is entitled to recover damages for use and occupation of the suit property?If so, at what rate, for what period and with what rate of interest?OPP
3. Whether the suit is not properly valued for the purpose of Court fee and jurisdiction of this Court? OPD
4.Whether the suit property is a HUF property?
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 5 / 32 OPD
5.Relief PLAINTIFF'S EVIDENCE
5. Plaintiff in support of his case has examined himself as PW1. PW1 has tendered his evidence by way of affidavit, which is Ex.PW1/X. He has relied upon the documents:
(1) Copy of Assessment order as Ex.PW1/1; (2) Copy of the balance sheet as Ex.PW1/2(Colly) [PW-1/2(a) to PW-1/2(d)] (3) Original House Tax Receipt as Ex.PW1/3; (4) The postal receipt of the notice as Ex.PW1/4.
(5) The AD receipt as Ex.PW1/5.
PW-2 Mr. Kirti Kumar Newar has tendered his evidence by way of affidavit, which is Ex.PW2/X. He has relied upon the following documents:
(1) Copy of Assessment order as Ex.PW3/1; (2) Photocopy of letter as Ex.PW3/2.
DEFENDANT'S EVIDENCE
6. Defendant in support of his case has examined himself as DW1. He has tendered his evidence by way of affidavit, which is Ex.DW1/A. DW1 has also tendered his additional evidence affidavit as Ex.DW1/B. He has relied upon the following documents:
(1) The documents referred to as Ex.D1 and Ex.D2 in the affidavit Ex.DW1/A CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 6 of 32 have not been filed on record by the defendant.
(2) Photocopy of the fixed deposit receipt of Oriental Bank of Commerce dated 08.05.1985 referred to as Ex.D3 in the affidavit Ex.DW1/A is marked as Mark A1.
(3) Document referred to as Ex.D4 in the affidavit is a photocopy of locker No.724A. The same is marked as Mark A2.
(4) Document referred to as Ex.D5 has not been filed on record.
(5)Document referred to as Ex.D6 is already Mark PW2/X-B. (6) The document referred to as Ex.D7 is marked as Mark A3 and the document referred to as Ex.D8 is marked as Mark A4.
(7)The document referred to as Ex.D9 in the affidavit, Ex.DW1/B is marked as Mark A5.
DW2 Mahavir Prasad Rathi has tendered his evidence by way of affidavit as Ex.D2/A. DW-3 Mr. Rajesh Bagri has tendered his evidence by way of affidavit as Ex.DW3/A. DW-4 Smt. Shobha Newar has tendered her evidence by way of affidavit as Ex.DW4/A. DW-5 Mr. Surinder Kumar Saboo has tendered his evidence by way of affidavit as Ex.DW5/A.
7. Arguments heard. Record perused.
FINDING CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 7 / 32
8. My finding on the Issues are as follows:
ISSUE NO.1 &4:
1. Whether the Plaintiff is entitled to recover the possession of the suit property, as shown in red in the site plan, attached to the plaint? OPP.
4. Whether the suit property is a HUF property?
OPD The answer to 'whether the Plaintiff is entitled to recover the possession of the suit property' is dependant on the answer to 'whether the suit property is an HUF property or not'. Hence, Issue No.1 and 4, as being interconnected in nature, are taken up together.
Law On the Point as settled by the Hon'ble High Court of Delhi Hon'ble High Court of Delhi in a number of matters has clarified the law on the point of HUF property. Two of the most prominent judgments passed by Hon'ble High Court of Delhi on this issue are Sunny Minor Vs. Raj 2015 DHC 9359 and Arshiya Gulati vs. Kuldeep Gulati 2019 DHC 712 In Arshiya Gulati's case Hon'ble High Court of Delhi exhaustively discussed the case law pertaining to the Hindu Undivided Family as well as Co-parcenery property. Hon'ble High Court observed that there is a presumption that every Hindu Family which is joint in food & worship is a HUF but there is no presumption that the estate is joint or the property is the Hindu Joint Family Property. The party who asserts that the given property is Hindu Joint Property has to prove it.
Before proceeding further, it would be pertinent to discuss plaintiff's case in a nutshell, as well as defendant's response to it, CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 8 of 32 and also the admissions made in the course of pleadings.
In the present case, Plaintiff has mainly prayed for two reliefs: A decree of possession in his favour and decree of mesne profits ( a consolidated sum of Rs.2 lakhs as being the damages for use and occupation) including future damages.
Plaintiff's case in brief is that the he is the owner/landlord of the property bearing No. A-1/281, Safdarjung Enclave, New Delhi (The suit property) as it was purchased by him from the Delhi Development Authority by means of a Perpetual Lease dated 11.01.1979.
The fact that the property stands in Plaintiff's name is not denied by the defendant in his written statement. Although defendant has admitted, that the property is held in the plaintiff's name, it is stated that it is held by him as a co-parcener in a Hindu undivided family and the property is held for the benefit of all the undivided family.
Plaintiff has stated that defendant's possession of the said property is purely permissive, which has been denied by the defendant stating that defendant is the co-owner of the suit property.
Plaintiff's case is that the plaintiff has been carrying on business in the name and style of M/s Imperial Refractories and from this income he bought the property. He also raised the construction of the house at the same property bearing no.A-1/281, Safdarjung Enclave, New Delhi.
The narrative put forward is that the construction on the property was completed in 1981-82 and as the plaintiff was an Income Tax assesee at the relevant point in time, the same property has also been declared in his income tax returns of the CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 9 / 32 relevant year.
Defendant on the other hand has taken a stand that the property pertains to the HUF, which comprised plaintiff, defendant, Vijaya Kumar Newar, Late Basant Kumar Newar and their father Late Trilok Chand Newar. There was never a partition amongst the members of the HUF and it was HUF which had initiated various businesses in the names of members of HUF with joint Hindu Family funds. Plaintiff never had any independent source of income.
Defendant's case is that various businesses were being run for the proper planning of taxation and the entire income from the different businesses used to be pooled/blended and expenses of HUF used to be met with it.
Some illustrations of this arrangement have been provided in written statement.
1. 1969-70 a partnership firm namely Vimu Industrial Corporation was formed and it purchased a plot in Faridabad bearing Plot No.175, Sector 24, Faridabad.
2. In 1984 Prontos Ltd. Parwanoo (HP) was taken over.
3. In 1984 Newar Carbon and Ceramics (P) Ltd., and Newar Steels (P) Ltd. were formed.
4. There was another family business which was Imperial Carbon and Ceramics, Faridabad in which all the brothers were partners.
5. Santosh Industrial Corporation in which wives of all the aforesaid brothers were partners.
6. In 1994 another private limited company under the CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 10 of 32 name and style of Imperial Refractories (P) Ltd. was incorporated of which all the four brothers were the Directors.
As far as plaintiff's claim of ownership of the Imperial Refractories in Delhi is concerned, defendant has portrayed it as an extension of the family business. It is stated that in or about the year 1974 a partnership concern in the name of Imperial Refractories was formed at Calcutta and all the four brothers & their father were partners in it. Its business was extended and after some time plaintiff got settled in Delhi around the year 1974 to look after the said HUF business.
In the replication that was filed it was denied by the plaintiff that he is a member of the HUF and it was also denied that other members of the family joined the business. It is denied that there have been any HUF of the plaintiff, K.K. Newar, V.K. Newar, B.K. Newar and T.C. Newar.
APPRECIATION OF THE EVIDENCE Evidence Affidavit of Plaintiff Plaintiff was examined as PW1. He tendered his evidence by way of affidavit and tendered certain documents which are Ex.PW1/1 to Ex.PW1/5. In the evidence affidavit of plaintiff, the contents of the plaint have been reiterated. It is stated that he is the owner of the land bearing no. A-1/281, Safdarjung Enclave, New Delhi.
CROSS-EXAMINATION OF THE PLAINTIFF Plaintiff was cross-examined on several dates by the CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 11 / 32 defendant.
In his cross-examination he has stated that he had started the business in the year 1964. From 1964-1970 he was in the business of cotton tape trading, When he started business in 1964 it was on credit though he might have invested some of his savings which he did not remember.
He has also stated that some financial help might have been received from his brother from Hyderabad. It is stated that he cannot produce documents of his cotton tape business. In the year 1964 he was residing in a small room with his father and two brothers in a Swallow Lane, Calcutta. He has stated that his father, brothers and he himself used to have a common mess. He has stated that his father was a sub-broker, who was employed with M/s Panna Lal Kejriwal and his father worked with the broker till 1968 and he had a very meager income as they could barely make their ends meet.
It is stated that defendant started living with him in Calcutta in 1969 and prior to it he was in Rajasthan. In Rajasthan defendant was residing in ancestral property in village Nohar. It is stated that after defendant joined, his brother B.K. Newar got married and took a flat on rent at 87, Chaurangi Road, Calcutta. He has stated that at that time his father and all brothers had common mess. It is stated that all the brothers used to contribute to the household expenses. He has stated in his cross-examination that his brothers B.K. Newar, V.K. Newar and K.K. Newar were residing with him and his father till he was in Calcutta. It is stated that as far as he can recall S.M. Newar was always living separately in Hyderabad. He has denied the suggestion that S.M. Newar did not have sound financial CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 12 of 32 condition and has not helped him financially. He has stated that in the year 1964, S.M. Newar was a manager in a company. He denied the suggestion that S.M. Newar was drawing salary of Rs.400/- per month only in the year 1964.
He has denied the suggestion that even prior to leaving Calcutta his father was an income tax payee. He has also denied the suggestion that his father had started business of cotton tape and had helped him financially out of the common pool of money of the family. He has denied the suggestion that T.C Newar HUF was formed in the year 1945 after the death of his grand father and has deposited Rs.8000/- in Imperial Refractories.
He has admitted that Grah Pravesh of the suit property and the invitation card was issued in the name of his father. However, he has given voluntary statement that it was out of regard. He has denied the suggestion that income from all the businesses were kept in common pool and also that business used to be run out of HUF funds. He has admitted that he had joined Imperial Refractories Calcutta in 1977. He has stated that he is not aware that on 01.04.1981, fresh partnership deed of Imperial refractories was executed. He has admitted that a joint fixed deposit in the name of Sh. B.K. Newar, N.K. Newar and K.K. Newar was made with Oriental Bank of Commerce on 08.05.1985 for 36 months. He had denied the suggestion that wives of all the brothers had no source of income. He has given a voluntary statement that all of them had independent source of earnings and were filing income tax returns.
It has come in the cross examination of the plaintiff that premises situated in Taj Apartments opposite Safdarjung Hospital are in the joint names of his son and wives of his brothers. It is CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 13 / 32 denied that the said premises were acquired out of HUF funds. It is stated that in the year 1994 a private limited company namely Imperial Refractories Pvt. Ltd. was incorporated in which all brothers were directors. However, he has denied that Prontos Ltd. Parwanoo, Newar Carbon and Ceramics Pvt. Ltd. and Newar Steel Ltd. were started with HUF funds. He has admitted the daughters of B.K. Newar used to reside with him in the suit property and had mess with him. He has stated that he does not remember as to who were the directors of Newar Steels Pvt. Ltd. which got converted into Newar Steels Ltd. He has voluntarily stated that it was founded by himself and V.K. Newar. He has stated that the directors of Newar Steel Ltd. are V.K. Newar, himself, K.K. Newar and his son A.V. Newar. He has stated that the directors of Imperial Refractories Pvt. Ltd. Calcutta are B.K. Newar, V.K. Newar, himself and K.K. Newar. Directors of Prontos Pvt. Ltd. are himself, V.K. Newar and A.V. Newar however Prontos was a limited company but subsequently it was converted into Pvt. Ltd. Company after completing all the formalities.
The documents produced by the plaintiff are as follows; Ex.P1 is the notice that was given by Nand Kumar Newar to Kamal Kumar Newar dated 09.04.2008.
In this notice, it is stated that Kamal Kumar Newar as being younger brother is living in the property no. A1/281, Safdarjung Enclave, New Delhi and he was permitted to use two rooms on the ground floor, one room on the mezzanine floor. It is stated that Kamal Kumar Newar's son is also carrying on business separately and Kamal Kumar Newar had also acquired his own residential accommodation. Vide this notice the licence CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 14 of 32 to remain in premises was to come to an end on 30.04.2008. It is stated that if defendant fails to handover peaceful vacant possession of the suit premises to Nand Kumar Newar, damages at rate of Rs.25,000/- per month on account of illegal use and occupation of the said property shall be payable by the defendant.
Ex.P4 which is an admitted document is perpetual lease deed issued by Delhi Administration (Land & Housing Department) dated 11.01.1979, which shows that it has been issued in the name of Nand Kumar Newar who is the lessee for a consideration of Rs.99,000/-.
Ex.PW1/1 is an income tax notice under Section 143(3) issued to Nand Kumar Newar in the year 1981-1982. The address of Nand Kumar Newar is shown as A1/182, Safdarjung Enclave, New Delhi. It records that return was filed declaring total income at Rs.30,780/-. It is also stated that during the year construction was completed of House No.A1/182 Safdarjung Enclave, New Delhi and the cost of the construction was supported by the report of registered valuer.
There is another document Ex.PW1/2(a), which is the balance sheet of Imperial Refractories as on 31.03.81, the land for the property has been mentioned and the address of the company is given as A1/281, Safdarjung Enclave.
In the balance sheet of 31.03.1978, which is on record and exhibited as Ex. PW-1/2(c) the Safdarjung Enclave residential plot has been mentioned.
PW-2 was Kirti Kumar Newar S/o late Sh. S. M Newar. In his evidence affidavit, he has stated that his grand father T.C Newar used to work as Sub Broker in the sharemarket of Kolkata and he had very limited income. He has stated that Sh. Nand Kumar CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 15 / 32 Newar never had any HUF business and the business of M/s Imperial Refractories, Delhi was his sole proprietory concern. He has stated that there was no HUF of Sh. T. C Newar at any stage till 1985-1986. He has stated that his father had given loan to the plaintiff. He has produced a document Ex. PW-3/2. He has stated in his cross examination that he does not know the exact amount of loan given to the plaintiff by his father but he knows that the loan was given.
DEFENDANT'S EVIDENCE AFFIDAVIT AND THE CROSS- EXAMINATION Defendant was examined as DW1. In the evidence affidavit certain documents have been referred such as Ex.D1 and Ex.D2 which have not been filed on record. Photocopy of the fixed deposit receipt of Oriental Bank of Commerce dated 08.05.1985 referred to as Ex.D3 is marked as Mark A1. Document referred to as Ex.D4 in the affidavit is photocopy of locker no. 724A, the same is marked as Mark A2.
Document referred to as D5 has not been filed on record and document referred to D6 is already marked as PW2/XB. During his cross-examination, defendant has stated that he cannot tell what was the income of his father when he went to Calcutta. He has also stated that his father started paying income tax around 1969-70. It is stated that he was studying in Calcutta and also working with his father in the business of cotton tape which was started by his father from the HUF funds. Nand Kumar Newar was a student at that time and had no income. Business was started in the name of Nand Kumar Newar.
He has stated that he has no document to show that CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 16 of 32 business was started by his father in the name of Nand Kumar Newar or that it was from HUF funds. He has denied the suggestion that after coming to Delhi Nand Kumar Newar started business of Imperial Refractories as sole proprietor. It is voluntarily stated that the business was started by his father from HUF funds but it was in the name of Nand Kumar Newar. It is stated that no income tax return of HUF during the year 1972 to 1980 was filed. He has stated that he does not have any document to show that the suit property is HUF property.
It is stated that his father was filing income tax return in the name of T.C. Newar HUF from 1984-89. He has also stated that the suit property was purchased in 1979-80 and this property was never shown in the income tax return of HUF as it was purchased in the name of Nand Kumar Newar. He has admitted the suggestion that the property was purchased in 1979-80 for Rs.99,000/-. However, he denied the suggestion that money was paid by Nand Kumar Newar. He has stated that he does not know from where the auction money was paid. He has admitted that plaintiff had given him a notice before filing of suit and also that he had not filed reply to the notice.
In his cross-examination he has also admitted that house tax has always been paid by the plaintiff by cheque. However, he has given a voluntary statement that money is transferred from the HUF account lying in the family business.
He has admitted that sale deed is in the name of Nand Kumar Newar. He has given a voluntary statement that DDA does not recognize HUF but only recognizes KARTA and since his father was the KARTA of HUF who was in Calcutta he asked the plaintiff to get the property in his name but it was a mutual CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 17 / 32 understanding that the property belonged to all the co-parceners.
He has denied the suggestion that property mentioned in the affidavit pertains to various companies. He has also denied the suggestion that none of the company of the property was purchased from the HUF although he has admitted that he has no document to show that the property pertains to HUF or the property was purchased from the HUF funds. He has stated that he does not have any document to show that he had given money to plaintiff to start the business or to construct the house in dispute.
He has stated in his cross examination that his two sons Siddharth and Ashok have their separate flats. The one with Siddharth was gifted by Defendant to him. He has also admitted that his wife has a Flat No. 201, Mahavir Enclave.
In his cross-examination he has stated that after the death of T.C.Newar, B.K.Newar became the Karta of the family, whereas the S.M.Newar was the eldest member.
Defendant in his cross examination on 30.09.2019 has admitted on 05.04.1977 a partnership firm was created by B.K.Newar, V.K.Newar, N.K.Newar and K.K.Newar. He has admitted that each partners were free to carry out their independant business.
The letter dated 10.04.1994 in on record as Ex.DW1/X-2. It is written by T.C.Newar stating that the HUF came in being in November 1945 on the death of his father. This letter is admitted by the Defendant No.1. He has stated that this letter was written by his father to Income Tax Officer.
The said letter is reproduced below. (Emphasis supplied is CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 18 of 32 mine) "Dated : 10-4-1994 The Income Tax Officer, Refund Circle, New Delhi.
Re : T.C. Newar (H.U.F.) Assessment Year : 1984-85 Dear Sir, This HUF came into existence in November, 1945 on the death of my father. The amount received by me on the death was used for the purchase of animals and the dairy farming activity was started.
Income from the aforesaid dairy farming has been estimated at Rs. 18,000/- to Rs. 25,000/- per year since 1976. No books of accounts are maintained.
The H.U.F. utilized the amount by giving advances to various persons as per details enclosed. These were recovered in full in 1983- 84 and deposited in Saving Bank Account No. 451 in Oriental Bank of Commerce, Safdarjang Enclave, New Delhi in the joint names of Sh. Vijay Kumar and Kamal Kumar. The members of the H.U.F. as on 31st March 1984. There is a balance of Rs. 2,32,535.90.
The Balance Sheet of the H.U.F. as on 31st March 1984 is enclosed.
The H.U.F. also had a deposit of Rs. 8,000/- with M/s Imperial Refractories, Calcutta and interest income of Rs. 1,200/- accrued thereon on which T.D.S. of Rs. 120/- has been deducted for which refund is due.
I hope the above will meet your requirements in finalising the case.
Thanking you, Yours faithfully, (Sd/-) T.C. Newar (T.C. Newar, Karta)"
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 19 / 32 Defendant has examined Mr.Mahavir Prasad Rathi as DW2. He has stated that he has not seen any document that would show that the businesses were HUF businessses. He has further stated that the talk about his sister's marriage to Mr. K.K.Newar took place at Jawahar Nagar. He has stated that all the businesses were looked after by Late T.C.Newar.
DW-3 Rajesh Bagri is a CA. He has stated businesses were jointly by Newar brothers. And there was a HUF comprising of them. He has stated that his sister is married to the brother of defendant's wife. He has also stated that he has not seen any documment relate HUF property or their Income tax return.
DW-4 is Shobha Newar, sister in law of both Plaintiff and Defendant. She has admitted that Nand Kumar Newar had executed a Power of Attorney in favour of her husband which was subsequently revoked. She has admitted that a property at Rohini was bought by her father in law in the name of her husband. Which was subsequently sold by him and money was received by him. Although she has stated voluntarily that the said money was invested in family businesses and some was spent in the marriage of the daughter of N.K.Newar. She has submitted that with respect to HUF she just has one document that is Mark X-1.
Mark X-1 is a letter written by T.C.Newar to Income Tax officer dated 26th JULY, 1976 stating that his son Vijay Kumar Newar is residing with his family and T.C.Newar has to bear all his expenses to maintain his family under HUF.
DW-5 is Surinder Kumar Saboo. He has stated that he used to supply iron to the Newar Carbon & Ceramics Pvt.Ltd. which was owned by Newars jointly.
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 20 of 32 JUDGEMENTS RELIED UPON BY THE DEFENDANT Counsel for defendant has relied upon judgment passed by Hon'ble Supreme Court of India in "Shreya Vidyarthi Vs. Ashok Vidyarthi, AIR 2016 SC 139".
Counsel for defendant during the course of oral arguments has submitted that in the aforesaid judgment Hon'ble Supreme Court of India had observed that for a family that has been residing peacefully for almost seven years after purchase of the suit property, there is a presumption that the property was joint family property.
I have gone through the judgment referred to by the counsel for defendant.
Hon'ble Supreme Court of India in para no.16 of the said judgment observed that:
"The fact that the family was peacefully living together at the time of the demise of Hari Shankar Vidyarthi; the continuance of such common residence for almost 7 years after purchase of the suit property in the year 1961; that there was no discord between the parties and there was peace and tranquility in the whole family were also rightly taken note of by the High Court as evidence of existence of a joint family. The execution of sale deed dated 27.9.1961 in the name of Rama Vidyarthi and the absence of any mention thereof that she was acting on behalf of the joint family has also been rightly construed by the High Court with reference to the young age of the plaintiff- respondent (21 years) which may have inhibited any objection to the dominant position of Rama Vidyarthi in the joint family, a fact also evident from the other materials on record. Accordingly, there can be no justification to cause any interference with the conclusion reached by the High Court on the issue of existence of a joint family".
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 21 / 32 Perusal of the judgment shows that in this matter the issue before court was whether the widow of father of the plaintiff had bought the property from her own funds or from joint family funds. In the aforesaid matter, there was an admission that some insurance money following the death of the father of plaintiff was received and some of it was used for the purchase of said property along with the other funds. Court noted that virtual admission by the predecessor in interest of the appellant, as stated in her affidavit, that she had received the insurance money following the death of her husband and some of it was used for the purchase of suit property along with other funds, was significant. It was observed that the claim of absolute ownership of the said property made by the Rama Vidyarthi was belied by the true legal position that all the legal heirs were entitled to the insurance amount though the same have been received by the Rama Vidyarthi as the nominee of her husband.
It is evident that the facts of the present case are different. There is no admission by the plaintiff at any stage that suit property was bought from HUF funds. Hence, the present situation is not covered by the judgment referred to.
Counsel for defendant has also relied upon another judgments such as "Captain Rajesh Singh Vs. Colonel P. C Sethi (2024) Delhi Law Times 362". I have gone through the said judgment.
In this matter Hon'ble High Court of Delhi in para 95 CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 22 of 32 observed that:
"The HUF was admittedly never dissolved and continued even after the enactment of the Hindu Succession Act,1956. This is countenanced by the fact that the suit property was registered with the Income Tax Authority in the year 1970 'on account of rental income accruing from the suit property resulting in higher tax liabilities for him'. The Income Tax Returns were filed by Col. P.C. Sethi in the capacity of Karta of the HUF; some of the Income Tax Challans for the Assessment years 1992-1993, 1993-1994 are Ex D1-W1/F7 and D1- W1/F10. The filling of these Returns have also been proved by PW6 T.S. Kakkar who was appointed as the Chartered Accountant for the HUF in the year 1975.".
In the present case the situation is different as there are no income tax challan or any documentary evidence, for that matter, to show that the said property was ever a part of HUF property.
Another judgment quoted by defendant is "Vineeta Sharma Vs. Rakesh Sharma & Ors, AIR 2020 SC 3717".
The said judgment clarified the law on the point of rights of daughters to obtain their share in the co-parcenery property. It observed that where an oral paritition has been claimed, contemporaneous documentary evidence has to be led and the plea of such oral partition that seeks to deny right of daughters, should not be readily accepted.
Another judgment quoted by the Ld Counsel for defendant is "Surender Kumar vs. Phool Chand, AIR 1996 SC 1148". Perusal of the said judgment shows that in this judgment Hon'ble Supreme Court of India observed that it is no CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 23 / 32 doubt true that there is no presumption that a family because it is joint possessed joint property and therefore the person alleging the property to be joint has to establish that the family was possessed of some property with the income of which the property could have been acquired. But such a presumption is a presumption of fact which can be rebutted. But where it is established or admitted that the family which possessed joint property which from its nature and relative value may have formed sufficient nucleus from which the property in question may have been acquired, the presumption arises that it was the joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was acquired without the aid of the joint family.
In the present case, there is no evidence regarding the nucleus of the alleged HUF. The document that has been stressed upon by the counsel for defendant i.e. the letter written by T.C Newar to Income Tax Officer dated 10.04.1994 states that the HUF came into existence in November, 1945 and carried on dairy farming. The income from which was estimated to be of Rs.18, 000/- to Rs. 25,000/- per year. The HUF utilised the amount by giving advances to various persons. This document only mentions Vijay Kumar and Kamal Kumar as members of HUF. In light of the fact that the oldest son S. M Newar was admittedly not a part of the HUF, there cannot be any presumption that all the male members including Nand Kumar Newar were a member of the said HUF. Besides, CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 24 of 32 there is no mention of the subject matter property in any of the HUF document.
Plaintiff has relied upon following judgments:-
JUDGMENTS RELIED UPON BY PLAINTIFF Counsel for plaintiff has referred to certain judgments such as "SUNNY (MINOR) VS. RAJ SINGH & ORS 2016 154 DRJ 196", YUDHISTIR V. ASHOK KUMAR, (1987) 1 SCC 204, COMMISSIONER OF WEALTH TAX, KANPUR AND ORS V. CHANDER SEN AND ORS MANU/SC/0265/1986; [1986] 161 ITR 370 (SC), SURENDER KUMAR V. DHANI RAM AND OTHERS AIR 2016 DELHI 120, R.K RAMETRA & ANOTHER V. PRAKASH CHAND KAUSHIK, V.N DHANWATEY V. THE COMMISSIONER OF INCOME TAX, AIR 1968 SC 683 A recent judgment passed by the Hon'ble High Court of Delhi in "Anchit Sachdeva & Anr Vs. Smt. Sudesh Sachdeva, 2024 DHC 9629" has also been pointed out during oral arguments.
Perusal of the said judgment shows that in the judgment Hon'ble High Court of Delhi has extensively discussed the law pertaining to HUF property and co-parcenery property. Hon'ble High Court of Delhi in this case reiterated that there is no presumption that a family, because it is joint, possesses joint property or any property. When in a suit for partition, a party claims that any particular item of the CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 25 / 32 property is joint family property, the burden of proving it rests on the party asserting it.
From The Appreciation Of Evidence And Application Of The Legal Principles Deduced From The Above-Discussed Case Laws To The Facts Of Present Case, Following Factual Propositions Are Evident
1. Conveyance deed regarding the property executed on
11.01.1979 is in the favour of the plaintiff. It is admitted by defendant as well. There is no dispute either with respect to the legality of the document or to its execution.
2. Onus to prove that the suit property was a part of HUF properties was on defendant, as there is a presumption the favour of plaintiff in whose name exists a document that has been lawfully executed by a Government authority. Defendant has failed to show any contemporaneous document that would suggest that the property in question was ever HUF property. No income tax return, no audit records or balance sheet has been filed of the HUF that could show that the said property was part of HUF property.
3. Defendant himself has admitted that he has no evidence to show that the money was provided by the HUF for the purchase of the Property.
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 26 of 32
4. Defendant in his cross examination on 30.09.2019 has admitted on 05.04.1977 a partnership firm was created by B.K.Newar, V.K.Newar, N.K.Newar and K.K.Newar. He has admitted that each partners were free to carry out their independant business, which shows that member of the family were permitted to have their individual businesses. And it also raises doubt on the premise that the family was a HUF, for, if that was so, there was no need to form a partnership between the members of HUF.
5. The letter written by father of the plaintiff to Income Tax authorities which is admitted by defendant himself is the only document that somehow refers to HUF. It states that the amount received by T.C.Newar on the death of his father was used for the purchase of animals and the dairy farming activity was started. And income from the aforesaid dairy farming was estimated at Rs. 18,000/- to Rs. 25,000/- per year since 1976. It is further stated that the H.U.F. utilized the amount by giving advances to various persons. And they were recovered in full in 1983- 84 and deposited in Saving Bank Account No. 451 in Oriental Bank of Commerce, Safdarjang Enclave, New Delhi in the joint names of Sh. Vijay Kumar and Kamal Kumar. The members of the H.U.F. as on 31st March 1984. There is not even a passing reference of the various businesses that were allegedly started by the funds of HUF. Besides, it only mentions the names of Vijay Kumar and Kamal Kumar as members of HUF. The only business mentioned is M/s Imperial Refractories, Calcutta. This CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 27 / 32 document supports the case of Plaintiff that there was no HUF involving Plaintiff.
6. Testimonies of DW-2, DW-3, DW-4 and DW-5 are of no use in absence of any credible evidence regarding the presence of HUF and the property in question being a HUF property. There evidence at best could be a corroborative evidence but it can't make up for the complete absence of credible/ documentary evidence to show the presence of HUF. Oral testimonies of these witnesses can't dismantle the case of plaintiff which is based on contemporaneous documentary evidence.
7. There is no explanation as to why the eldest member of the family S.M.Newar was not made the Karta of the family after the death of the father of the parties. A HUF comprises all the male members of a family. After the death of father T.C.Newar, S.M.Newar should have been the Karta but that is not the case. It further supports the case of the plaintiff who has denied the existense of any HUF.
8. Plaintiff on his part has produced credible documents such as Income Tax returns for the relevant year in which the said property is shown as the property of Plaintiff's commercial concern. There is also a presumption in the favour of the plaintiff, as a result of which onus has been placed on defendant.
CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 28 of 32
9. DECLARATION BY S.M NEWAR Counsel for defendant has pointed out that plaintiff in his account sheet of 31.03.1978 had shown a loan of Rs.46,800/- from S.M Newar. However, the same had been denied by Late S.M Newar. He has pointed out that S.M Newar has filed not only written statement in CS(OS) 150/2010 but also filed a declaration stating that the loans of Rs.46,800/- and Rs.75,260/- shown in the balance sheet dated 31.03.1978 and 31.03.1981 by his brother N.K. Newar were never advanced by him.
This court is of the opinion as the said witness never deposed before the court, the said declaration cannot be treated as a gospel truth. Besides, the son of late S.M Newar i.e. Kirti Kumar Newar who appeared as PW-2 has stated in his evidence affidavit that he had seen Sh. Nand Kumar Newar carrying out the business as the sole proprietor of M/s Imperial Refractories and there wasn't any HUF of Sh. T.C Newar at any stage till 1985-1986. He has also stated that late Sh. S.M Newar had given loan to the plaintiff. He was cross examined and in his cross examination he has stated that he does not know the exact amount of loan given to the plaintiff but he knows that the loan was given. On the point of 'loan being given' his testimony remained unimpeached.
Besides, even if for the sake of arguments, the alleged declaration by S.M Newar is treated as true and correct it would only show that the property was purchased from some un-accounted income. However, in absence of any cogent CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 29 / 32 evidence showing that money was actually supplied by the said HUF for the purchase of the property, this alone would not be sufficient to dismantle the case of the plaintiff and return a finding in the favor of defendant.
10. As far as the averment of various properties being formed from the funds of HUF, as detailed in written statement is concerned, defendant has not produced any contemporaneous evidence / document to show the same. Defendant's case is mostly based on oral averments unsupported by any credible documentary evidence. Whatever has come out of the cross-examination of plaintiff merely shows that family was a closely knit family but it cannot prove that it was HUF that acquired HUF properties with suit property being one of them.
FINDINGS ON ISSUE NO. 4 & 1.
This Court is of the considered opinion that defendant has failed to discharge the onus on him. Defendant has failed to show that subject matter property is HUF property. In view thereof, Issue. No 4 is decided against the defendant.
As defendant has failed to show that the suit property is HUF , plaintiff on the basis of admitted perpetual lease executed by Delhi Administration(Land & Housing Department), is the only person entitled to the possession of the suit property. Notice of Termination of license has already been served on defendant which he has admitted. Defendant's possession after the expiry of time provided in the notice, became unlawful. Hence, plaintiff is entitled to recover the possession of the suit property as shown in CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 30 of 32 Red Colour in the site plan.
Issue No.1 is decided in favour of the plaintiff.
ISSUE NO.2.
2. Whether the Plaintiff is entitled to recover damages for use and occupation of the suit property?If so, at what rate, for what period and with what rate of interest?OPP Plaintiff has claimed mense profits at the rate of 25,000/- per month as the occupation charges of the property. However plaintiff has not produced anything in his evidence on this point. Neither the evidence of prevailing market rent of similar property has been provided nor any rent deeds of similar properties have been produced in evidence.
It is a settled position of law that for assessing mense profits, court can take judicial notice of prevailing rent and there is always some guess work involved. This court can take judicial notice of the fact that in a posh area like Safdarjung Enclave, a two room set would fetch atleast a rent of Rs.10,000/- in 2008.
This court considers it fit to award Plaintiff mesne profits at the rate of 10,000/- per month from May, 2008 till the recovery of possession with 5% increase every year alongwith 6% per annum interest from the date of accrual till the satisfaction of decree.
ISSUE NO.3 Whether the suit is not properly valued for the purpose of Court fee and jurisdiction of this Court? OPD CS (OS) No.362/2009, New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 31 / 32 No evidence has been led on this issue by the defendant. Plaintiff has valued the suit at 20 Lakhs for the relief of possession and Two Lakhs for the relief of mesne profits. Defendant, although took objection that the valuation is improper, produced no evidence to show the same. Onus to prove this issue was on defendant, which defendant has failed to discharge.
The issue, therefore, is decided against the defendant.
RELIEF:
In view of findings of issue no. 1, 2, 3 & 4, plaintiff is held entitled to a decree of possession in his favor and against the defendant in respect of two rooms on the ground floor and one room on the mezzanine floor with common bathroom and common kitchen as shown in red in the site plan of the property bearing no. A-1/281, Safdurjung Enclave, New Delhi.
Plaintiff is also held entitled to recover mesne profits @ Rs.10,000/- per month with 5% annual increment from May, 2008 till the recovery of possession along with interest @ 6% per annum from the date of accrual till its realization.
Cost of the suit is also awarded to the plaintiff. Decree sheet be prepared accordingly on filing of deficient court fees, if any.
File be consigned to Record Room.
abhitosh Digitally signed
by abhitosh
Typed to the dictation directly, pratap pratap singh
rathore
singh Date:
2025.10.10
corrected and pronounced in the rathore 16:47:09 +0530
open Court on 10.10.2025 (Abhitosh Pratap Singh Rathore)
District Judge-04, South District,
Saket Courts, New Delhi
CS (OS) No.362/2009,
New CS DJ 537/2025 Nand Kumar Newar Vs. Kamal Kumar Newar Page 32 of 32