Delhi District Court
Kundan Lal Gera vs Chandan Aggarwal on 28 May, 2026
IN THE COURT OF DISTRICT JUDGE-08 WEST, TIS HAZARI
COURTS, DELHI
Presided by: Ms. Susheel Bala Dagar
Civ DJ 612085/2016
CNR Number: DLWT01-000136-2008
In the matter of:
1. Shri Kundan Lal Gera
S/o Late Shri Ram Kishan Gera
2 Smt. Adarsh Gera
W/o Shri Kundal Lal Gera
Both R/o C-IV/147, Dayanand Colony,
Lajpat Nagar, New Delhi ..... Plaintiffs
Versus
Shri Chandan Aggarwal
S/o Shri Ram Lal Aggarwal
R/o B-1/6, Mianwali Nagar,
New Delhi-110087. ..... Defendant
Date of institution : 19.02.2008
Date of reserved for judgment : 12.05.2026
Date of judgment : 29.05.2026
Suit for possession, damages, declaration and permanent injunction
JUDGMENT
Brief facts of the case
1. The plaintiffs submitted that they are the owners of property bearing No. 11, Road B-2, Mianwali Nagar, New Delhi, measuring 352.26 square yards, which they purchased in 1986 through documents such as Agreement to Sell, General Power of Attorney, Will, Affidavit, Possession Letter, and other related documents. They claimed to have become the exclusive owners of the property with full rights attached to it.
2. The plaintiffs further submitted that the defendant approached them Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 1 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:03:12 +0530 for purchase of the property, and after negotiations, an Agreement to Sell dated 29.01.2003 was executed between the parties for a total sale consideration of Rs. 80,00,000/-. Under the agreement, the defendant paid Rs. 8,00,000/- as earnest money, while the balance amount of Rs. 72,00,000/- was to be paid on or before 30.04.2003. The agreement specifically provided that time was the essence of the contract and that upon payment of the balance amount, the plaintiffs would execute the sale and transfer documents and hand over vacant possession of the property. It also provided that in case of default by the defendant, the earnest money would stand forfeited, and if the plaintiffs failed to perform, the defendant could seek specific performance or double the earnest money.
3. The plaintiffs alleged that the defendant failed to pay the balance amount of Rs. 72,00,000/- by the stipulated date of 30.04.2003 and made no effort to complete the transaction. Consequently, the plaintiffs issued a letter dated 30.07.2003 cancelling the agreement, informing the defendant that the earnest money of Rs. 8,00,000/- stood forfeited due to his default. The plaintiffs further admitted that they had received an additional amount of Rs. 10,00,000/- from the defendant on 05.04.2003, which they offered to return through the same cancellation letter since it was over and above the earnest money.
4. The plaintiffs alleged that the defendant thereafter sent a backdated reply dated 30.07.2003 containing false allegations that the plaintiffs had failed to obtain DDA clearance and therefore could not execute the transfer documents. According to the plaintiffs, the agreement clearly Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 2 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:03:16 +0530 provided that DDA clearance was to be obtained by the defendant through the property broker, while the plaintiffs were only required to obtain a no dues certificate from the society. The plaintiffs maintained that the defendant himself failed to fulfill his contractual obligations and that the agreement automatically expired on 30.04.2003.
5. The plaintiffs further submitted that despite the expiry of the agreement, the defendant served legal notices in 2004 falsely blaming the plaintiffs for non-performance and alleging interpolation in the agreement. The plaintiffs denied all allegations of interpolation and asserted that the original agreement always remained with the defendant, who had himself filed photocopies of the same in Court proceedings. The plaintiffs replied to the defendant's notices and consistently maintained that they were ready and willing to perform their part of the contract, but the defendant failed to pay the balance consideration.
6. The plaintiffs also alleged that the defendant forged and fabricated a backdated possession letter dated 05.04.2003 and illegally trespassed into the property without their consent. They asserted that under the agreement, possession was to be handed over only upon payment of the entire balance amount of Rs. 72,00,000/- and execution of the transfer documents. According to the plaintiffs, the defendant unlawfully entered the property and later relied upon the fabricated possession letter in Court proceedings to justify his possession. The plaintiffs claimed that the alleged possession letter was never mentioned in the defendant's earlier notices and appeared to have been fabricated later to support his unlawful occupation of the property.
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7. The plaintiffs submitted that the defendant's possession of the property was illegal and unauthorized, and therefore he was liable to hand over possession to the plaintiffs. They further claimed that the defendant was liable to pay damages for unauthorized occupation at the rate of Rs. 50,000/- per month from 05.04.2003 onwards. The plaintiffs calculated damages up to 31.10.2007 at Rs. 27,50,000/- and, after adjusting the Rs. 10,00,000/- paid by the defendant, claimed a balance amount of Rs. 17,50,000/- as recoverable damages.
8. The plaintiffs also alleged that the defendant was threatening to create third-party rights in the property despite having no legal interest in it. They contended that the Agreement to Sell dated 29.01.2003 had become unenforceable and barred by limitation after 28.01.2006 and therefore sought a declaration from the Court that the agreement was void, non-existent, and incapable of enforcement. They also sought a declaration that the alleged possession letter dated 05.04.2003 was forged and fabricated.
9. The plaintiffs also submitted that the original owner, Shri Kishan Lal, had no right to cancel the General Power of Attorney executed in their favour in 1986 because the power of attorney was coupled with consideration and therefore irrevocable under Section 202 of the Indian Contract Act. They mentioned that they had already filed a separate suit challenging the cancellation deed executed by Shri Kishan Lal.
10. The plaintiffs prayed for a decree of possession directing the defendant to hand over the property, recovery of damages of Rs. 17,50,000/- along with future damages and interest, a declaration that the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 4 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:03:26 +0530 Agreement to Sell dated 29.01.2003 and the alleged possession letter dated 05.04.2003 were void and unenforceable, and a permanent injunction restraining the defendant from creating third-party interests in the property.
Written Statement of defendant.
11. The defendant, in the written statement, alleged that the suit was a misuse of the process of law and had been filed only to harass and pressurize the defendant. It was further submitted that the present suit was merely a counterblast to the earlier suit for specific performance filed by the defendant being CS(OS) No. 1525/2007, in which the present plaintiffs had already been proceeded ex parte. The defendant also contended that the plaintiffs had concealed material facts and made false statements before the Court. It was further pleaded that the suit was bad for non-joinder of necessary party because Shri Kishan Lal, the original allottee of the property, whose GPA had allegedly been revoked, had not been impleaded. The defendant asserted that there existed a valid and subsisting Agreement to Sell dated 29.01.2003 under which the plaintiffs had received Rs. 18 lakhs in total and had also handed over possession of the property to the defendant through a possession letter dated 05.04.2003. Therefore, the defendant claimed that the suit for possession and other reliefs was false and not maintainable. The defendant further submitted that the plaintiffs had no locus standi to file the present suit and that it was actually the plaintiffs who failed to execute the title documents despite the defendant always being ready and willing to pay the balance sale consideration.
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12. On merits, the defendant admitted that the plaintiffs had acquired rights in the suit property through Agreement to Sell, GPA, Will and Possession Letter executed by Shri Kishan Lal on 30.10.1986, though it was pointed out that the GPA had later been revoked. The defendant admitted the execution of the Agreement to Sell dated 29.01.2003 and payment of earnest money of Rs. 8 lakhs but denied the allegations that he failed to perform his obligations. The defendant submitted that in April 2003, on the request of the plaintiffs, he paid an additional amount of Rs. 10 lakhs due to their financial need, and in consideration thereof the plaintiffs handed over possession of the property and executed a possession letter dated 05.04.2003. It was further pleaded that the defendant had thereafter learnt about disputes with DDA regarding extension of time for construction and revocation of the GPA by Shri Kishan Lal, because of which the plaintiffs were not capable of executing valid title documents. The defendant asserted that the plaintiffs had assured him that they would resolve the dispute and inform him once DDA clearance and no-dues certificate were obtained. Accordingly, the defendant claimed that time was never intended to be the essence of the contract under these circumstances.
13. The defendant denied having received any cancellation letter dated 30.07.2003 from the plaintiffs and contended that the plaintiffs themselves had prevented completion of the transaction because they were unable to provide valid title and obtain the required DDA clearance. It was further alleged that the plaintiffs had later requested the defendant to deposit Rs. 1,68,748/- with DDA towards composition fee for Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 6 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:03:34 +0530 extension of construction time, which amount the defendant deposited on 23.02.2004 on the assurance that it would be adjusted against the sale consideration.
14. The defendant denied the allegations that the possession letter dated 05.04.2003 was forged or fabricated and asserted that the same had been voluntarily executed by plaintiff no.1 in the presence of property dealer Shri Dharamvir. The defendant maintained that he was lawfully occupying the property in part performance of the Agreement to Sell and had even been paying maintenance charges and house tax. The allegations of trespass, illegal possession, fabrication of documents and forcible occupation were specifically denied.
15. The defendant further contended that the plaintiffs had no right to claim possession, damages or mesne profits because the defendant was in lawful possession under the agreement. It was denied that the defendant had ever threatened to create third-party interests in the property. The defendant also submitted that the agreement dated 29.01.2003 had not become void or time-barred and that the plaintiffs first disclosed their unwillingness to perform only through their reply dated 01.02.2005, therefore the defendant's suit for specific performance was within limitation.
16. The defendant additionally challenged the maintainability and valuation of the suit by contending that the plaintiffs had not paid proper Court fees and had undervalued the suit. It was argued that the market value of the property was around Rs. 1.6 crores and therefore ad valorem Court fees were payable on the proper valuation. The defendant prayed Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 7 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:03:38 +0530 for dismissal of the suit with exemplary costs. Replication by the plaintiff to the WS of defendant.
17. The plaintiffs filed a replication denying all the preliminary objections and assertions made by the defendant in the written statement.
The plaintiffs maintained that the suit was genuine and had been filed because the defendant breached the Agreement to Sell dated 29.01.2003 by failing to perform his obligations within the stipulated time. They denied that the suit was filed to harass or blackmail the defendant or that it was a counterblast to the defendant's suit for specific performance. The plaintiffs submitted that they were initially unaware of the defendant's suit and that they had later succeeded in getting the ex parte order set aside after learning about the defendant's alleged fraudulent conduct.
18. The plaintiffs denied concealing any material facts or making false statements before the Court. They further denied that Shri Krishan Lal was a necessary party to the suit, asserting that he had already transferred all his rights in the property to the plaintiffs after receiving full consideration in 1986. According to the plaintiffs, the cancellation of the General Power of Attorney by Shri Krishan Lal on 17.12.2003 was illegal because, under Section 202 of the Indian Contract Act, a power of attorney coupled with consideration is irrevocable. The plaintiffs also submitted that they had already filed a separate suit challenging the cancellation of the GPA.
19. The plaintiffs denied the existence of any valid or subsisting agreement after 30.04.2003 and asserted that the Agreement to Sell expired on that date because time was expressly made the essence of the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 8 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:03:44 +0530 contract. They admitted receiving Rs.18 lakhs from the defendant, including Rs.10 lakhs paid in April 2003, but denied executing any receipt or possession letter dated 05.04.2003. They alleged that the possession letter was forged and fabricated and that the defendant, in collusion with property dealer Shri Dharamvir, had fabricated the document to falsely claim possession. According to the plaintiffs, the defendant unlawfully trespassed upon the vacant plot after the agreement had lapsed and illegally constructed a temporary kacha structure on the property.
20. The plaintiffs reiterated that the defendant failed to pay the balance sale consideration of Rs.72 lakhs within the agreed time and did not take any effective steps toward completion of the transaction before 30.04.2003. They denied that they ever informed the defendant about any dispute with DDA regarding extension of time for construction or that they assured the defendant they would obtain DDA clearance or no-dues certificates. The plaintiffs maintained that obtaining DDA permission and clearances was the responsibility of the defendant under the terms of the agreement. They also denied asking the defendant to deposit money with DDA or promising adjustment of such amounts toward sale consideration.
21. The plaintiffs asserted that the defendant was never ready and willing to perform his obligations under the agreement and that his later claims of readiness and willingness were meaningless because the agreement had already expired and stood cancelled through letters dated 30.07.2003, 31.08.2004, and notice dated 01.02.2005. They further alleged that the defendant colluded with Shri Krishan Lal to engineer Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 9 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:03:49 +0530 cancellation of the GPA to create complications and avoid his contractual obligations.
22. The plaintiffs denied all allegations that possession had been voluntarily handed over to the defendant. They claimed that the defendant illegally entered the property without consent and that the alleged possession letter first came to their knowledge when the defendant filed it along with an application under Order 1 Rule 10 CPC in another pending suit. They maintained that the defendant was merely a trespasser with no legal right, title, or interest in the suit property.
23. The plaintiffs also denied that the defendant had any lawful claim for specific performance. They reiterated that time was the essence of the contract and that the agreement became unenforceable after 30.04.2003.
They contended that the defendant's suit for specific performance was barred by limitation and lacked merit.
24. Regarding damages, the plaintiffs asserted that the defendant's illegal occupation deprived them of the use and enjoyment of the valuable property and caused significant loss. They claimed entitlement to damages at the rate of Rs.50,000/- per month from 05.04.2003 onward. They submitted that the earnest money of Rs.8 lakhs stood forfeited under the agreement and that the additional Rs.10 lakhs paid by the defendant had been adjusted toward damages already suffered by the plaintiffs. Accordingly, they claimed that the defendant remained liable to pay Rs.17.5 lakhs along with continuing damages.
25. The plaintiffs denied that the present suit lacked cause of action and maintained that the suit for possession, declaration, damages, and Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 10 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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injunction was properly instituted. They also denied the defendant's objections regarding valuation and Court fees, asserting that the suit had been properly valued and requisite Court fees had been paid. Issues :-
26. From the pleadings of the parties and material on record, following issues were framed by the Hon'ble High Court on 25.11.2008: -
Issue no. 1 Whether the plaintiff is entitled to a decree for possession of the suit property? OPP Issue no. 2 Whether the plaintiff is entitled to damages from the defendant for use and occupation of the suit property, if so, at what rate and for which period? OPP Issue no. 3 Whether the plaintiff is entitled to a decree for declaration to the effect that the possession letter dated 05.04.2003 is forged and fabricated and has got no sanctity in the eyes of law? OPP Issue no. 4 Whether the suit is bad for non-joinder of necessary party, i.e. the original allottee of the suit property? OPD Issue no. 5 Relief.
Plaintiff Evidence PW1/ Shri Kundan Lal Gera
27. He tendered his evidence by way of affidavit Ex. PW1/A and relied upon the following documents :site plan of the suit property Ex. PW1/1, agreement dated 21.10.1986 between Shri Krishan Lal and Smt. Adarsh Gera Ex. PW1/2, general power of attorney dated 21.10.1986 by Shri Krishan Lal in favour of Shri Kundan Lal Gera Ex. PW1/3, Will dated 21.10.1986 of Shri Krishan Lal Ex. PW1/4, the receipt of Rs. 48,000/-
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dated 21.10.1986 Ex. PW1/5, SPA dated 21.10.1986 executed by Shri Krishan Lal in favour of Shri Kundan Lal Gera Ex. PW1/6, affidavit of Shri Krishan Lal dated 21.10.1986 Ex. PW1/7, second affidavit dated 21.10.1986 of Shri Krishan Lal Ex. PW1/8, third affidavit of Shri Krishan Lal Ex. PW1/9, agreement to sell dated 29.01.2003 executed between Shri Kundan Lal Gera and Smt. Adarsh Gera Ex. PW1/10, copy of letter dated 30.07.2003 sent by Shri Kundan Lal Gera to Shri Chandan Aggarwal Ex. PW1/11, UPC receipt Ex. PW1/12, letter dated 30.07.2003 sent by Shri Chandan Aggarwal to Shri Kundan Lal Gera Ex. PW1/13, copy of notice dated 17.08.2004 given by Counsel for defendant to Shri Kundan Lal Gera and Smt. Adarsh Gera Ex. PW1/14, copy of letter dated 31.08.2004 given by Shri Kundan Lal Gera to Shri Chandan Aggarwal Ex. PW1/15, postal receipt Ex. PW1/16, UPC receipt Ex. PW1/17, reminder dated 11.09.2004 sent by the Counsel for defendant to the plaintiffs Ex. PW1/18, copy of reply dated 01.02.2005 given by plaintiff to the defendant Ex. PW1/19, its postal receipt Ex. PW1/20, UPC receipt Ex. PW1/21, AD card Ex. PW1/22, notice/ reminder dated 05.04.2005 given by defendant to the plaintiff Ex. PW1/23, reply dated 03.05.2005 given by defendant to plaintiff Ex. PW1/24, postal receipt Ex. PW1/25, UPC receipt Ex. PW1/26, possession letter of the suit property Ex. PW1/27.
28. During cross-examination, PW1 stated that at the time of filing the present suit, he had no knowledge of the defendant's earlier suit for specific performance but later became aware of it. He deposed that the property was purchased in 1986 from Shri Kishan Lal through documents Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 12 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:04:00 +0530 such as Agreement to Sell, GPA, receipt, Will, and affidavits. He clarified that although the purchase was in his wife's name, the power of attorney was in his favor. He further stated that while he handled correspondence with DDA, it was done through the original allottee, and although letters bore his address, he denied receiving certain communications allegedly sent by DDA.
29. Regarding the issue of cancellation of GPA, PW1 stated that he became aware of it only after execution of the agreement to sell and after 30.04.2003, though he could not initially recall the exact date. He denied receiving letters dated 03.04.2003 and 08.08.2003 from DDA despite those letters bearing his address. He also denied informing the defendant about any such letters or stating that the balance payment would be accepted only after DDA clearance. He admitted filing a separate suit CS (OS) No. 260/2007 against Kishan Lal after learning in February 2004 that the GPA had been cancelled, and acknowledged that he did not take action for nearly three years prior to that.
30. PW1 denied that the GPA cancellation was done with his consent or that he had asked the defendant to deposit Rs. 1,68,748/- with DDA. He stated that he became aware of such deposit only after litigation began. He admitted receiving Rs. 10 lakhs from the defendant in addition to Rs. 8 lakhs earnest money but denied that it was demanded by him or that possession was handed over in return. He specifically denied executing any possession letter dated 05.04.2003 and claimed that the document shown to him was forged and fabricated.
31. PW1 further stated that he came to know about the defendant's Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 13 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:04:04 +0530 possession of the property only through an intervention application filed by the defendant in another suit. He denied that the defendant had been in possession since April 2003 or that such possession was lawful. He maintained that under the agreement, the responsibility to obtain DDA clearance lay with the defendant and not with him. He also denied inserting any handwritten changes in the agreement after execution.
32. PW1 admitted sending a letter dated July 2003 to the defendant but clarified that it was sent through UPC rather than registered post. He was unable to recall details such as the exact date of preparation of the site plan and stated that it was only meant to identify the property. Regarding damages claimed, he stated that he had consulted a few property dealers to estimate the rental value but could not recall their names.
33. PW1 further admitted that he had not applied to DDA for transfer of the property in his name and had not approached Kishan Lal for execution of a sale deed after entering into the agreement with the defendant. He denied suggestions that the defendant was in lawful possession or that he was not entitled to recover possession or damages. Certain questions relating to DDA demands and records were disallowed by the Court. PW1 denied all suggestions that he was deposing falsely and maintained his stand that the defendant's possession was unauthorized and based on forged documents.
After cross examination plaintiff evidence was closed. Defendant Evidence
34. DW1/Sh. Harish Kumar Parmar Official from DDA, Vikas Sadan, Delhi produced the original file of property No. B-2/11, Mianwali, Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 14 of 43 SUSHEEL Digitally by SUSHEEL signed BALA BALA DAGAR Date: 2026.05.29 DAGAR 17:04:08 +0530 Paschim Vihar, Delhi. The photo copy of complete file running into 136 sheets is Ex. DW1/1. He admitted that some of the pages in the original file brought by him were photocopies or carbon copies or certified copies.
35. During cross-examination DW1 identified and clarified the nature of various documents placed on record. He stated that several pages, including P1/N and P3/N to P34/N, were original documents. The perpetual lease deeds dated 31.03.1981 along with the site plan were confirmed to be originals with identical contents. He further explained that some documents were photocopies, carbon copies, or office copies of letters, including correspondence dated between 1987 and 2007, and that certain documents like the GPA dated 21.10.1986 were attested photocopies.
36. DW1 was specifically questioned about letters bearing dispatch numbers, including internal page 27 dated 03.04.2003 and page N dated 08.08.2003. He stated that the presence of a dispatch number indicates that the letters were dispatched, as per general office practice. However, he admitted that he could only presume dispatch on that basis and volunteered that actual verification could be done from official records.
37. He further identified other documents, including office copies of letters dated 29.12.2003, 22.01.2004, 03.03.2004, and 07.12.2007, as well as a certified copy of a Court order dated 10.11.2009. DW2/Shri Chandan Aggarwal
38. He tendered his evidence by way of affidavit Ex.DW2/A and relied upon the following documents: agreement to sell dated 29.01.2003 between Shri Kundan Lal Gera and Smt. Adarsh Gera Ex.DW2/1, receipt Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 15 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:04:12 +0530 of Rs. 10 lacs dated 05.04.2003 Ex.DW2/2, possession letter of the suit property Ex.DW2/3, letter dated 03.04.2003 given by DDA to Shri Krishan Lal Ex.DW2/4, letter dated 08.08.2003 given by DDA to Shri Krishan Lal Ex.DW2/5, cancellation of General Power Attorney executed by Shri Krishan Lal in favour of Shri Kundan Lal Mark D-1, challan of State Bank of India dated 23.02.2004 Ex.DW2/6, acknowledgment receipt dated 23.02.2004 of DDA Ex.DW2/7, letter dated 03.03.2004 issued by DDA to Shri Krishan Lal Ex.DW2/8, legal notice dated 17.08.2004 given by defendant to plaintiff Mark D-2, reply to legal notice dated 01.02.2005 given by plaintiff to defendant Mark D-3, legal notice dated 05.04.2005 given by defendant to plaintiff Mark D-4, reply to legal notice dated 03.05.2005 Mark D-5, receipts from Jal Board, Electricity Board and Municipal Corporation Ex. DW2/9, plaint and WS in suit for declaration, cancellation and permanent injunction Ex.DW2/10, application under Order 1 Rule 10 r/w Section 151 CPC moved on behalf of defendant Mark D-6, complaint given by defendant to the police station Paschim Vihar dated 01.09.2004 Ex.DW2/11, anticipatory bail application of plaintiff dated 08.11.2004 Ex.DW2/12.
39. DW2 stated that his father primarily handled the negotiations and settlement of terms for the agreement to sell, and he personally met the plaintiff for the first time at the time of execution of the agreement in January 2003. He met the plaintiff again around April 2003 when a payment of Rs. 10 lakhs were made and, according to him, a possession letter was also executed. However, he admitted that he had not given any formal written authority to his father to act on his behalf, and that most Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 16 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:04:16 +0530 financial and transactional matters, including payment arrangements, were managed by his father. He also acknowledged limited personal knowledge about his financial affairs during the relevant period, including bank accounts and income tax filings.
40. DW2 maintained that the possession letter was genuine and bore the signatures of the concerned parties, including himself and the broker, and denied allegations that it was forged or fabricated. Simultaneously, he admitted that in earlier notices sent prior to the suit, no mention of the possession letter was made, and he had also not annexed any such document in his complaint to the police. He further admitted that no FIR was registered on his complaint and that he was unaware of the outcome of the police proceedings. He also acknowledged that the original agreement to sell contained alterations and cuttings that were not signed or initialed by either party, which he claimed were made unilaterally by the plaintiff.
41. Regarding performance of the contract, DW2 admitted that the full sale consideration was not paid by the stipulated date of 30.04.2003. He contended, however, that such payment was contingent upon the plaintiff fulfilling certain obligations, including obtaining necessary permissions, clear title, and extension from the DDA. He admitted that no written communication was made to the plaintiff before the deadline raising these issues, and that any such communication was only verbal. He also acknowledged that he did not issue any formal notice alleging breach before the expiry of the stipulated period.
42. DW2 further stated that he came to know in April 2003 that the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 17 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:04:20 +0530 DDA had asked the original allottee to revoke the power of attorney in favour of the plaintiff, and that this information was conveyed to him verbally by the plaintiff. He admitted that he had no documentary proof of such communication and that he did not receive any direct correspondence from the DDA. He also confirmed that although he later raised objections in legal proceedings, no written communication regarding these issues was made at the relevant time.
43. On the issue of possession and construction, DW2 asserted that possession of the property was handed over to him in April 2003 and that he subsequently carried out construction on the property without obtaining any written permission from the plaintiff or approval from authorities. He admitted that there was no documentary evidence authorizing such construction and that no written intimation was given to the plaintiff. He justified the construction as necessary for maintenance and security purposes.
44. DW2 reiterated that he was ready and willing to perform his part of the contract but claimed that the plaintiff's failure to fulfill certain conditions prevented him from doing so. However, he admitted that there was no written record of such readiness or of any objections raised at the relevant time. He denied all suggestions that the possession letter was fabricated, that he lacked funds, or that he had no right to remain in possession, and maintained that his deposition was truthful.
After cross examination, defendant evidence was closed. Final arguments
45. I have heard Shri Ankur Mahindro, Ld. Counsel for plaintiff and Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 18 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:04:40 +0530 Shri Naresh Kaushik, Ld. Counsel for defendants and perused the record. Ld. Counsels for both the parties have filed written synopsis of their arguments.
Arguments by Ld. Counsel for plaintiff.
46. It is submitted that the plaintiffs filed the suit on 30.01.2008 seeking possession of property bearing No. 11, Road B-2, Mianwali Nagar, New Delhi, damages for unauthorized use and occupation, declaration that the Agreement to Sell dated 29.01.2003 had become unenforceable and void, declaration that the alleged Possession Letter dated 05.04.2003 was forged and fabricated, and permanent injunction restraining the defendant from creating third-party rights in the suit property.
47. With respect to Issue No. 3 regarding the possession letter dated 05.04.2003, the plaintiffs argued that plaintiff no. 1 categorically denied executing the alleged possession letter and consistently described it as forged, fabricated, and backdated. The plaintiffs emphasized that the defendant failed to prove execution of the document through reliable evidence. Although the defendant claimed that the document was witnessed by property dealer Shri Dharamvir Khanduja, he failed to examine the said witness without explanation, inviting an adverse inference under Section 114(g) of the Indian Evidence Act. The plaintiffs further pointed out that the defendant's legal notices dated 17.08.2004 and 11.09.2004, as well as his police complaint dated 01.09.2004, contained no mention of any possession letter, which severely weakened his claim. The defendant also admitted during cross-examination that the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 19 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:04:45 +0530 signatures appearing on the receipt and possession letter were in different inks despite allegedly being signed during the same transaction. Additional contradictions emerged from the defendant's earlier statements where he admitted that no talks took place with the plaintiffs in April 2003. The plaintiffs further argued that Clause 2 of the Agreement to Sell provided that possession would be delivered only upon full payment, whereas only Rs. 18 lakhs out of Rs. 80 lakhs had been paid by 05.04.2003, making the defendant's version inherently improbable.
Accordingly, the plaintiffs contended that the possession letter was forged and fabricated and deserved to be declared invalid.
48. On Issue No. 4 regarding non-joinder of necessary party, the plaintiffs argued that Shri Kishan Lal was not a necessary party because no relief was sought against him and the entire dispute could be effectively adjudicated between the plaintiffs and the defendant alone.
49. Regarding Issue No. 1 on entitlement to possession, the plaintiffs submitted that they had established valid title through the chain of documents executed by Shri Kishan Lal on 21.10.1986, including a registered GPA. They further relied upon the decree passed in C.S.(OS) No. 260/2007 dated 10.11.2009, whereby the cancellation of GPA by Shri Kishan Lal was declared null and void. The plaintiffs argued that the defendant's possession could only be lawful if supported by a valid legal right. Since the Agreement to Sell expressly made time the essence of the contract and the defendant admittedly failed to pay the balance amount by 30.04.2003, the agreement stood validly terminated through the cancellation letter dated 30.07.2003. The plaintiffs further argued that the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 20 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:04:49 +0530 defendant's plea regarding oral extension of time was barred under Section 92 of the Indian Evidence Act because the written agreement could not be varied by oral evidence. The plaintiffs relied upon judicial precedents holding that where time is expressly made the essence of a contract and the purchaser fails to perform within time, the seller is entitled to cancel the agreement and recover possession. They also argued that once the defendant's suit for specific performance fails, protection under Section 53A of the Transfer of Property Act cease to apply and his possession would become unauthorized.
50. On Issue No. 2 concerning damages and mesne profits, the plaintiffs submitted that the defendant had remained in unauthorized possession since April 2003 and had deprived them of the use and enjoyment of the property for more than twenty-two years. Plaintiff no. 1 stated that after consulting property dealers, the fair rental value of the property was assessed at Rs. 50,000/- per month. The defendant did not lead any contrary evidence regarding market rent. The plaintiffs therefore claimed damages amounting to Rs. 27.5 lakhs for the period from 05.04.2003 to 31.10.2007, after adjusting Rs. 10 lakhs already received from the defendant, leaving a balance claim of Rs. 17.5 lakhs. They further sought mesne profits at the rate of Rs. 50,000/- per month from the institution of the suit until actual delivery of possession. Finally, the plaintiffs prayed that the suit be decreed in their favour with possession, declaration regarding the forged possession letter, damages, mesne profits, and injunction against the defendant.
51. Ld. Counsel for plaintiff has relied upon the following case laws in Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 21 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:04:54 +0530 support of his arguments: Ussein Gazi v. Razia Sheaikh 2013 (2) Mh.L.J. Arguments by Ld. Counsel for defendant
52. The defendant has filed a written synopsis contending that the plaintiff's suit for possession is wholly misconceived, legally untenable, and liable to be dismissed. According to the defendant, the plaintiff has failed to establish lawful ownership, maintainability of the suit, valid cancellation of the agreement to sell, or any legal basis for recovery of possession.
53. The defendant first argued that the suit was not maintainable at the time of its institution because the plaintiff himself did not possess perfected ownership rights or lawful authority over the suit property when the suit was filed. It is submitted that the plaintiff's rights flowed only through a GPA arrangement originating from the original allottee and that disputes regarding title and authority over the property remained unresolved until proceedings before the Hon'ble High Court culminated in 2009. Therefore, according to the defendant, the plaintiff could not maintain a suit for possession when he himself lacked complete and crystallized title at the relevant time.
54. The defendant further submitted that possession of the suit property was lawfully delivered pursuant to the Agreement to Sell dated 29.01.2003, under which the plaintiff received substantial consideration of Rs. 18,00,000/-. It is also pointed out that the defendant subsequently paid Rs. 1,68,748/- towards DDA extension charges on 23.02.2004, which demonstrates that the parties continued acting upon the transaction even after the alleged expiry date of 30.04.2003. According to the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 22 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:04:58 +0530 defendant, the plaintiff's claim of "superior title" is unsustainable because the plaintiff himself did not possess absolute title or perfected ownership rights at the time of filing the suit.
55. The defendant also contended that the suit is ex facie barred by limitation. It is argued that the plaintiff himself pleaded in the plaint that the cause of action arose on 30.04.2003, when the agreement allegedly came to an end and the defendant's possession allegedly became unauthorized. Since the suit was filed only in 2008, more than five years later, the defendant submits that the suit is hopelessly barred by limitation. The defendant further argued that Article 65 of the Limitation Act does not apply because the defendant's possession originated from a contractual arrangement and not from adverse possession or trespass.
56. Another objection raised by the defendant is that the suit is bad for non-joinder of a necessary party, namely Shri Krishan Lal, the original allottee of the suit property. The defendant stated that the entire chain of rights claimed by the plaintiff originates from Shri Krishan Lal and the GPA arrangement in favour of Shri K.L. Gera. It is argued that disputes concerning DDA permissions, GPA validity, extension proceedings, and alleged collusion cannot be effectively adjudicated without impleading Shri Krishan Lal. The defendant also pointed out that the plaintiff himself alleged collusion between Shri Krishan Lal and the defendant but still failed to implead him in the suit.
57. The defendant further submitted that the plaintiff failed to establish lawful cancellation of the Agreement to Sell dated 29.01.2003. It is argued that mere unilateral assertions by the plaintiff cannot amount to Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 23 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:03 +0530 lawful rescission of the agreement, especially when substantial consideration had already been accepted and both parties continued acting upon the transaction even after 30.04.2003. The defendant emphasizes that the payment of DDA extension charges in February 2004 clearly proves continued subsistence of the agreement and ongoing interaction between the parties.
58. The defendant also disputed the plaintiff's challenge to the possession letter and contended that once delivery of possession pursuant to the agreement was pleaded and supported by documents, the burden shifted upon the plaintiff to prove that the possession letter was fabricated. According to the defendant, the plaintiff failed to produce any handwriting expert, forensic evidence, or contemporaneous complaint alleging fabrication, and merely issued bald denials without proof.
59. Relying upon Section 53A of the Transfer of Property Act and judicial precedents, the defendant argued that possession delivered in part performance of an agreement to sell is legally protected and that the plaintiff cannot seek automatic recovery of possession while retaining benefits received under the transaction. It is submitted that the defendant's possession cannot be treated as unauthorized or trespassory because it arose from a concluded contractual arrangement acted upon by both parties.
60. The defendant further accused the plaintiff of adopting contradictory, evasive, and self-destructive stands throughout the proceedings. It is argued that the plaintiff gave inconsistent versions regarding how and when he came to know of the defendant's possession.
Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 24 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:05:07 +0530 The defendant pointed out that in various proceedings and cross- examinations, the plaintiff alternatively claimed knowledge through an intervention application, a legal notice dated 17.08.2004, and by physically seeing someone residing in the property. According to the defendant, these shifting stands seriously undermine the credibility of the plaintiff's case.
61. The defendant also highlighted contradictions in the plaintiff's stand regarding DDA correspondence and disputes. It is argued that despite attempting to deny active involvement with DDA before execution of the agreement, the plaintiff admitted during cross-
examination that DDA communications in 2002 and 2003 had been addressed to him and bore his signatures. The defendant submitte that these admissions demonstrate that the plaintiff was fully aware of DDA disputes and GPA-related complications before entering into the agreement to sell.
62. The defendant raised allegations regarding handwritten interpolations and alterations in the Agreement to Sell. It is argued that despite repeated objections raised by the defendant, the plaintiffs failed to provide any satisfactory explanation regarding when the alterations were made, why no revised typed agreement was prepared, or why the changes were not separately authenticated by signatures of both parties.
63. The defendant submitted that the plaintiff has failed to establish any lawful basis for recovery of possession, failed to prove valid cancellation of the agreement, and failed to approach the Court with clean hands. According to the defendant, the suit is barred by limitation, suffers Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 25 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:11 +0530 from non-joinder of a necessary party, and is devoid of merit. The defendant therefore prays that the suit be dismissed with costs.
64. Ld. Counsel for defendant has relied upon the following case laws in support of his arguments: Mahadeo Nathuji Patil v. Surjabai Khushal Chand Lakkad 1994 Mh.L.J 1145, Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi (dead) by LRs. (2002) 3 SCC 676 and Kishan v. Shivaji Second Appeal no. 247 of 1992 decided on 21.03.2022 of the Hon'ble High Court of Bombay (Aurangabad Bench). Court observation and findings I shall adjudicate issue no.4 (non- joinder) and issue no.3 (possession letter) first, since these affect the remaining reliefs. Issue no.4 Whether the suit is bad for non-joinder of necessary party, i.e. the original allottee of the suit property? OPD
65. The onus to prove this issue was upon the defendant. The defendant has contended that the present suit is bad for non-joinder of a necessary party, namely Shri Krishan Lal, who was the original allottee of the suit property and from whom the plaintiffs derived their rights through a set of documents executed in the year 1986. According to the defendant, disputes concerning cancellation of the General Power of Attorney, DDA correspondence, title complications, and alleged collusion between the plaintiffs and Shri Krishan Lal could not be effectively adjudicated in his absence. It has further been argued that since the plaintiffs themselves alleged collusion between the defendant and Shri Krishan Lal in the plaint and replication, the latter necessarily became an indispensable party to the proceedings.
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2026.05.29 DAGAR 17:05:15 +0530
66. Per contra, the plaintiffs have contended that no substantive relief has been claimed against Shri Krishan Lal in the present proceedings and the dispute raised herein pertains only to entitlement to possession, declaration regarding the alleged possession letter dated 05.04.2003, damages, and injunction vis-à-vis the defendant alone. It is submitted that rights flowing from Shri Krishan Lal already stood transferred in favour of the plaintiffs through documents executed in 1986 and, in any event, cancellation of the GPA executed by Shri Krishan Lal had already been challenged in independent proceedings.
67. Under Order I Rule 9 CPC, no suit shall be defeated by reason of mis-joinder or non-joinder of parties except in the case of non-joinder of a necessary party. The distinction between a "necessary party" and a "proper party" is well settled. A necessary party is one in whose absence no effective decree can be passed, whereas a proper party is one whose presence may assist complete adjudication but whose absence is not fatal to maintainability.
68. The Hon'ble Supreme Court in Mumbai International Airport Pvt. Ltd. v. Regency Convention Centre and Hotels Pvt. Ltd. AIR 2010 SC 3109 explained that a necessary party is a person who ought to have been joined and in whose absence no effective order can be made, while a proper party is one whose presence enables the Court to completely, effectively and adequately adjudicate upon all matters in dispute though no relief is claimed against such person.
69. Tested on the aforesaid principles, the Court is unable to accept the defendant's contention that Shri Krishan Lal was a necessary party to the Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal PageDigitally no. 27 of 43 signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:20 +0530 present proceedings. The principal controversy in the suit concerns: (i) entitlement of plaintiffs to recovery of possession from defendant; (ii) legality of defendant's possession pursuant to Agreement to Sell dated 29.01.2003; (iii) validity of alleged possession letter dated 05.04.2003;
and (iv) entitlement to damages and injunction. These disputes are essentially inter se between the contracting parties to Agreement to Sell dated 29.01.2003, namely the plaintiffs and defendant.
70. No relief has been sought against Shri Krishan Lal. Neither cancellation of any document executed by him nor enforcement of any right against him has been prayed for in the present suit. Merely because the plaintiffs trace their title through him does not by itself make him a necessary party. The test is not whether he has some connection with the property, but whether an effective decree can be passed in his absence.
71. The controversy regarding cancellation of GPA by Shri Krishan Lal stood independently adjudicated in CS(OS) No.260/2007, wherein the Hon'ble High Court by judgment dated 10.11.2009 declared the cancellation deed dated 17.12.2003 null and void. Thus, the uncertainty sought to be projected by defendant regarding authority of plaintiffs stood resolved in independent proceedings.
72. Even otherwise, the defendant himself has admitted in written statement as well as evidence that the plaintiffs had acquired rights through Agreement to Sell, GPA, Will, possession letter and other documents executed by Shri Krishan Lal in 1986. Defendant also admittedly entered into Agreement to Sell dated 29.01.2003 with the plaintiffs and paid substantial consideration to them. Having contracted Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 28 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:23 +0530 with the plaintiffs and acted upon the agreement, the defendant cannot simultaneously contend that adjudication of contractual disputes between parties is impossible in absence of Shri Krishan Lal. At the highest, presence of Shri Krishan Lal may have assisted fuller adjudication of ancillary factual disputes concerning DDA correspondence or GPA cancellation. However, that would only render him a proper party and not a necessary party within meaning of Order I Rule 9 CPC.
73. Thus, effective adjudication of controversy was possible between existing parties and the suit is not liable to fail for non-joinder of Shri Krishan Lal. Issue No.4 is accordingly decided against the defendant and in favour of the plaintiffs.
Issue no. 3 Whether the plaintiff is entitled to a decree for declaration to the effect that the possession letter dated 05.04.2003 is forged and fabricated and has got no sanctity in the eyes of law? OPP
74. The onus to prove this issue was upon the plaintiffs. The plaintiffs have alleged that the possession letter dated 05.04.2003 relied upon by the defendant is a forged and fabricated document, allegedly prepared subsequently to justify unauthorized occupation of the suit property. According to the plaintiffs, under Clause 2 of Agreement to Sell dated 29.01.2003, possession was agreed to be delivered only upon payment of entire balance consideration and execution of title documents. Since only Rs.18 lakhs out of total consideration of Rs.80 lakhs had been paid by April 2003, delivery of possession, according to plaintiffs, was inherently improbable. Heavy emphasis has also been placed upon the circumstance that defendant failed to mention the possession letter in his earlier legal Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 29 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:05:28 +0530 notices and police complaint.
75. Per contra, defendant has maintained that possession was voluntarily delivered on 05.04.2003 when additional payment of Rs.10 lakhs was made at request of plaintiffs and a written possession letter was executed in presence of property dealer Shri Dharamvir.
76. Since declaration of forgery is sought, burden squarely rests upon plaintiffs. Mere denial of signatures or allegations of fabrication would not suffice unless supported by cogent evidence. A declaration that a document is forged carries serious civil consequences and cannot be granted on conjectures or suspicion.
77. The plaintiffs admittedly received Rs.18 lakhs from defendant, consisting of Rs.8 lakhs earnest money and further Rs.10 lakhs paid on 05.04.2003. Receipt of said amount is admitted by PW1 in cross-
examination. Thus, transaction between parties admittedly continued beyond mere execution of Agreement to Sell dated 29.01.2003 and substantial payments were exchanged.
78. PW1, while denying execution of possession letter Ex.PW1/27, admitted that additional payment of Rs.10 lakhs was received on 05.04.2003. However, apart from bald denial, plaintiffs did not lead any expert evidence to challenge signatures appearing on possession letter. No handwriting expert was examined. No application for scientific comparison of signatures was moved. No independent witness was produced to rebut defendant's version. Although expert evidence is not mandatory in every case, where specific allegation of fabrication is raised against a signed document, absence of any corroborative challenge Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 30 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:05:32 +0530 assumes significance.
79. Plaintiffs have argued that defendant failed to examine property dealer Shri Dharamvir, allegedly an attesting witness to possession letter, and therefore adverse inference ought to be drawn under Section 114 illustration (g) of the Evidence Act {Section 119 (g) BSA}. Undoubtedly, examination of such witness would have strengthened defendant's case.
However, adverse inference by itself cannot substitute substantive proof required from plaintiffs upon whom burden lies to establish forgery. Weakness in defence cannot relieve plaintiffs of their initial burden.
80. The Court also finds merit in plaintiffs' submission that possession letter was not specifically referred to in earliest legal notices issued by defendant in August-September 2004 or police complaint dated 01.09.2004. DW2 admitted such omission during cross-examination. Ordinarily, had written possession already been delivered, one would expect specific reference thereto in earliest correspondence. This omission certainly creates some doubt and constitutes a circumstance affecting evidentiary weight.
81. However, suspicion, however strong, cannot replace proof. It is equally material that plaintiffs failed to establish circumstances showing actual trespass. No complaint of criminal trespass immediately after alleged illegal entry was produced. No contemporaneous protest contemporaneous to April 2003 has been shown. PW1 himself admitted that he came to know of defendant's possession only subsequently through litigation/intervention proceedings. Such conduct appears inconsistent with allegation of forcible and unauthorized entry into a Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 31 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:36 +0530 valuable urban property.
82. Importantly, in the connected suit for specific performance between same parties, the Court has already held that plaintiff therein (present defendant) was placed in possession of the suit property in part performance of Agreement to Sell dated 29.01.2003 and remained in settled possession. The finding regarding possession arises from same evidence and same set of documents presently under consideration. Judicial consistency requires that contradictory findings on identical evidence between same parties concerning same transaction ought to be avoided unless compelling reasons exist.
83. Further, the connected suit has already culminated in a decree of specific performance holding that time was not the essence of contract, cancellation dated 30.07.2003 was not proved, and possession continued in part performance of contract protected under Section 53A of the Transfer of Property Act. In such circumstances, declaration sought by plaintiffs that possession letter is wholly fabricated becomes difficult to sustain.
84. Even assuming some suspicion exists regarding circumstances surrounding execution of possession letter, the plaintiffs have sought a declaration of forgery, which requires proof to the standard of preponderance of probabilities supported by affirmative material. Plaintiffs have failed to discharge such burden. Accordingly, the plaintiffs have failed to establish that possession letter dated 05.04.2003 is forged, fabricated, or devoid of legal sanctity. Issue No.3 is decided against the plaintiffs and in favour of the defendant.
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DAGAR 2026.05.29 17:05:40 +0530 Issue no. 1 Whether the plaintiff is entitled to a decree for possession of the suit property? OPP
85. The onus to prove this issue was upon the plaintiffs. The plaintiffs seek recovery of possession of property bearing No. B-2/11, Road B-2, Mianwali Nagar, New Delhi on the plea that the defendant failed to comply with the terms of Agreement to Sell dated 29.01.2003, defaulted in payment of balance sale consideration of Rs.72 lakhs by 30.04.2003, and thereafter illegally trespassed into the suit property by relying upon a fabricated possession letter dated 05.04.2003. According to the plaintiffs, time was expressly made the essence of contract, agreement automatically expired on 30.04.2003, earnest money stood forfeited, and defendant's occupation became wholly unauthorized.
86. Defendant, on the other hand, contended that possession was voluntarily delivered on 05.04.2003 in part performance of Agreement to Sell after payment of further amount of Rs.10 lakhs, that plaintiffs themselves were unable to complete title formalities because of DDA disputes and cancellation of GPA by Shri Krishan Lal, and that time was never intended to be essence of contract. Defendant further asserted protection of possession under Section 53A of the Transfer of Property Act.
87. The controversy concerning entitlement to possession requires examination of four interlinked questions:
(i) Whether plaintiffs had a better possessory title than defendant;
(ii) Whether defendant entered possession lawfully or as a trespasser;
(iii) Whether Agreement to Sell stood validly terminated rendering Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 33 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:05:44 +0530 defendant an unauthorized occupant; and
(iv) Effect of findings rendered in the connected suit for specific performance.
A. Whether plaintiffs established a superior right to possession
88. Plaintiffs rely upon documents executed by Shri Krishan Lal in 1986, namely Agreement to Sell, GPA, Will, possession letter, receipt and affidavits (Ex.PW1/2 to Ex.PW1/9), to assert ownership and entitlement to possession. Defendant does not dispute that plaintiffs acquired rights through said documents. Defendant admittedly entered into Agreement to Sell dated 29.01.2003 with plaintiffs treating them as persons competent to transfer the property. Thus, for purposes of inter se dispute between parties, plaintiffs possessed a better antecedent title than defendant.
89. However, in a suit for possession, proof of superior title alone is not always sufficient. Where possession of defendant originated under authority of plaintiffs themselves pursuant to a contractual arrangement acted upon by parties, Court must examine legal character of such possession and whether right to continue has ceased. B. Whether defendant's possession was unauthorized or pursuant to contract
90. Plaintiffs have argued that defendant trespassed into property and never received possession from them. This plea has already been considered while adjudicating Issue No.3 and has not been accepted. Defendant proved on record possession letter dated 05.04.2003 Ex.DW2/3 and receipt acknowledging payment of additional Rs.10 lakhs Ex.DW2/2. Receipt of total sum of Rs.18 lakhs by plaintiffs stands Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 34 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:05:48 +0530 admitted.
91. Though plaintiffs questioned genuineness of possession letter and pointed to omission in earlier notices, they failed to establish fabrication through cogent evidence. The overall circumstances probabilize defendant's version to an extent sufficient on preponderance of probabilities. PW1 admitted that additional sum of Rs.10 lakhs was received on 05.04.2003. Defendant thereafter admittedly deposited Rs.1,68,748/- with DDA on 23.02.2004 towards composition and extension charges Ex.DW2/6 and Ex.DW2/7. Such conduct, though not conclusive, is consistent with a purchaser acting under an ongoing transaction rather than rank trespasser.
92. Plaintiffs further admitted absence of any immediate complaint of trespass, police report, injunction action, or recovery proceedings proximate to April 2003. If defendant had illegally occupied a valuable urban property without consent, ordinary human conduct would reasonably suggest prompt resistance or legal recourse. Instead, plaintiffs admittedly continued exchange of correspondence relating to agreement and did not initiate immediate possession proceedings.
93. PW1 gave inconsistent versions regarding knowledge of defendant's possession. At one stage, he claimed to have learnt through intervention application filed by defendant in another suit. Elsewhere legal notices of 2004 disclosed defendant's stand regarding possession. In pleadings it was suggested that illegal occupation itself had become known earlier. Such inconsistencies diminish reliability of plaintiffs' assertion that defendant was a rank trespasser.
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94. Accordingly, defendant's possession cannot be characterized as one originating in unlawful trespass. On balance of probabilities, possession originated pursuant to contractual arrangement between parties and in furtherance of Agreement to Sell dated 29.01.2003. C. Whether Agreement to Sell stood validly terminated
95. Plaintiffs' principal submission is that time was expressly made the essence of contract and therefore defendant's failure to pay balance amount by 30.04.2003 automatically rendered agreement unenforceable. This contention, however, cannot be examined in isolation because identical issue already stood adjudicated in connected suit for specific performance bearing Civ. DJ No. 611983/2016 titled Chandan Aggarwal v Kishan Lal & ors. between same parties arising from same Agreement to Sell dated 29.01.2003. In connected suit, the Court has already given findings that:
(a) time was not essence of contract;
(b) plaintiffs (present plaintiffs/defendants therein) failed to prove lawful cancellation of agreement dated 30.07.2003;
(c) defendant/plaintiff therein continuously remained ready and willing to perform obligations;
(d) Agreement to Sell dated 29.01.2003 remained specifically enforceable; and
(e) defendant was put in possession in part performance of contract.
96. Once specific performance of same agreement has already been decreed and validity of alleged cancellation rejected, foundation of present claim for possession substantially disappears. Findings arising Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 36 of 43 SUSHEEL Digitally by SUSHEEL signed BALA BALA DAGAR Date: 2026.05.29 DAGAR 17:05:56 +0530 from same transaction and same evidence between same parties must be harmoniously construed. Contradictory decrees would otherwise create impossible legal consequences.
97. Plaintiffs heavily relied upon Clause 2 of Agreement to Sell and argued that possession could only be delivered upon complete payment. However, merely because contractual stipulation contemplated delivery after full payment does not conclusively negate possibility of earlier consensual possession, especially where substantial amount admittedly changed hands and parties acted beyond stipulated date. Parties to a contract may by conduct relax strict timelines or modify manner of performance.
98. Plaintiffs further contended that oral extension pleaded by defendant is barred under Section 92 of the Evidence Act. Though written contract ordinarily prevails, subsequent conduct of parties remains relevant in determining whether contractual stipulations regarding time were waived or treated as non-essential. In the connected suit, Court has already held on appreciation of evidence that time was not intended to be strictly essential. Defendant's possession therefore cannot be termed unauthorized merely because full sale consideration had not been paid by 30.04.2003.
D. Applicability of Section 53A of the Transfer of Property Act
99. Defendant has also claimed protection under Section 53A of the Transfer of Property Act. Section 53A embodies doctrine of part performance and protects possession of transferee who has taken possession in pursuance of written contract and is willing to perform his Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 37 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:06:02 +0530 part of bargain. In connected suit, Court has already held that defendant (plaintiff therein) continuously remained ready and willing to perform obligations under contract and is entitled to decree of specific performance. Court has also recognized defendant's possession in part performance.
100. Once these findings stand returned, defendant's possession could not be treated as unauthorized during subsistence of contractual relationship. Plaintiffs argued that protection under Section 53A ceased because agreement allegedly expired and stood cancelled. However, this plea has already been rejected in connected proceedings wherein cancellation dated 30.07.2003 was held not proved and ineffective.
101. Reliance placed by plaintiffs upon case laws concerning agreements where purchaser defaulted despite time being essence is distinguishable on facts because in present case Court has already concluded that time was not essence and purchaser remained ready and willing. Thus, defendant's possession remained juridically protected and could not be recovered by plaintiffs in absence of lawful termination or failure of purchaser's rights.
E. Limitation objection
102. Defendant argued that suit itself is barred by limitation as cause of action allegedly arose in 2003 whereas suit was instituted in 2008. The Court is unable to agree with said objection. Defendant admittedly entered possession pursuant to contractual arrangement and not as hostile trespasser. Suit for possession based on title would ordinarily attract Article 65 of the Limitation Act, providing limitation of twelve years Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 38 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:06:07 +0530 from date possession becomes adverse. Present suit filed in 2008 cannot be held barred merely because agreement arose in 2003. However, finding on limitation does not assist plaintiffs because failure of claim arises on merits.
103. Consequently, in light of findings already rendered in connected specific performance suit, failure of plaintiffs to prove trespass or lawful termination, and legal protection available to defendant's possession, plaintiffs are not entitled to recovery of possession. Issue No.1 is accordingly decided against the plaintiffs and in favour of the defendant. Issue no. 2 Whether the plaintiff is entitled to damages from the defendant for use and occupation of the suit property, if so, at what rate and for which period? OPP
104. The onus to prove this issue was upon the plaintiffs. Plaintiffs have claimed damages/mesne profits at the rate of Rs.50,000/- per month from 05.04.2003 onwards on the allegation that defendant remained in illegal and unauthorized occupation of the suit property after lapse of Agreement to Sell dated 29.01.2003. According to plaintiffs, defendant unlawfully occupied the property and thereby deprived them of its use and enjoyment. Plaintiffs computed damages up to 31.10.2007 at Rs.27,50,000/- and, after adjustment of Rs.10 lakhs already received from defendant, claimed Rs.17,50,000/-.
105. Defendant has denied liability for damages on the ground that possession was lawfully delivered in part performance of Agreement to Sell and cannot be treated as unauthorized. It is also argued that defendant remained ready and willing to complete transaction and continued in Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 39 of 43 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2026.05.29 DAGAR 17:06:13 +0530 possession under a subsisting contractual arrangement.
106. Entitlement to mesne profits necessarily depends upon proof that possession of defendant was wrongful or unauthorized. Under Section 2(12) CPC, mesne profits signify profits which person in wrongful possession actually received or might with ordinary diligence have received together with interest thereon. The foundational requirement therefore is wrongful possession.
107. In preceding discussion under Issue No.1, the Court has already held that defendant's possession did not originate in trespass but arose pursuant to contractual arrangement between parties and continued in part performance of Agreement to Sell dated 29.01.2003. Court has further held that plaintiffs failed to establish lawful termination of agreement and that defendant's possession stood protected under Section 53A of the Transfer of Property Act.
108. Once possession itself is held not unauthorized, claim for damages or mesne profits necessarily fails. A person in juridically protected possession under part performance cannot simultaneously be branded an unauthorized occupant liable to pay occupation charges as a trespasser. In connected suit for specific performance, Court has already decreed specific performance in favour of defendant (plaintiff therein) and directed execution of conveyance documents upon payment of balance consideration with interest. Such decree further reinforces legal character of defendant's possession in reference to enforceable contractual rights.
109. Even otherwise, plaintiffs failed to prove rate of damages claimed. PW1 stated during evidence that he consulted certain property dealers and Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 40 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:06:17 +0530 estimated fair rental value at Rs.50,000/- per month. However, names of such property dealers were not disclosed. No witness from market was examined, no rent deed of comparable property was produced, no valuation report was filed, and no independent documentary material regarding prevailing rental value was placed on record.
110. It is settled law that mesne profits cannot be awarded on speculation or conjecture. Though Court may make reasonable assessment where some evidence exists, complete absence of reliable material disentitles claimant from arbitrary quantification. Furthermore, plaintiffs themselves admitted receipt of Rs.18 lakhs from defendant under transaction. Their claim that Rs.10 lakhs stood adjusted towards damages is unsupported by any contractual stipulation or contemporaneous acknowledgment. Agreement to Sell only contemplated forfeiture of earnest money subject to contractual consequences; it did not authorize unilateral appropriation of additional payment towards alleged damages.
111. Plaintiffs also failed to prove precise date on which possession allegedly became wrongful. Their case vacillated between alleged automatic lapse of agreement on 30.04.2003, cancellation through letter dated 30.07.2003, subsequent notices of 31.08.2004 and 01.02.2005, and later knowledge of possession through intervention proceedings. Such inconsistency itself renders computation of damages uncertain. In these circumstances, Court finds no legal or evidentiary basis for award of damages or mesne profits. Issue No.2 is accordingly decided against the plaintiffs and in favour of the defendant.
Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 41 of 43
Digitally signed
SUSHEEL by SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2026.05.29
17:06:21 +0530
Relief
112. In view of the above observations and discussions on Issues No.1, 2 and 3 against the plaintiffs, though Issue No.4 has been decided in their favour, the plaintiffs have failed to establish entitlement to substantive reliefs sought in the plaint. It is held that:
(i) defendant's possession of suit property did not originate through trespass but pursuant to contractual arrangement embodied in Agreement to Sell dated 29.01.2003;
(ii) plaintiffs failed to establish that possession letter dated 05.04.2003 is forged or fabricated;
(iii) plaintiffs failed to prove lawful termination or valid cancellation of Agreement to Sell;
(iv) defendant's possession remained protected under doctrine of part performance embodied in Section 53A of the Transfer of Property Act; and
(v) plaintiffs are not entitled either to recovery of possession or damages/mesne profits.
113. In connected suit for specific performance arising from same transaction, the Court has already decreed specific performance of Agreement to Sell dated 29.01.2003 in favour of defendant (plaintiff therein) subject to payment of balance consideration with interest. It has therein been held that time was not the essence of contract, cancellation pleaded by present plaintiffs was not proved, and defendant continuously remained ready and willing to perform contractual obligations.
114. Plaintiffs also sought declaration that Agreement to Sell dated Civ DJ 612085/2016 Kundan Lal Gera and ors. v. Chandan Aggarwal Page no. 42 of 43 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
DAGAR 2026.05.29 17:06:25 +0530 29.01.2003 had become void, unenforceable and incapable of performance. However, in view of decree for specific performance already passed, such relief has become wholly untenable and cannot survive. Similarly, prayer seeking declaration that possession letter dated 05.04.2003 is forged and fabricated stands rejected for reasons already recorded under Issue No.3.
115. Relief of permanent injunction restraining defendant from creating third-party interest also cannot survive in present form. Once specific performance has already been decreed in favour of defendant in connected proceedings and defendant's possession recognized under contract, injunction sought against him loses independent basis.
116. Thus, the suit filed by plaintiffs for possession, declaration, damages and permanent injunction deserves dismissal. Accordingly, the suit of the plaintiffs stands dismissed. However, considering long- standing contractual relationship between parties, admitted payments, pendency of connected proceedings for considerable period, and peculiar facts of case, parties are left to bear their own costs. Decree sheet be prepared accordingly.
File be consigned to Record Room. Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
DAGAR 2026.05.29
17:06:29
+0530
Announced in open Court (Susheel Bala Dagar)
on 29th Day of May 2026 District Judge-08, West
Tis Hazari Courts, Delhi.
(This judgment contains 43 pages.)
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