Delhi District Court
Ashok Sharma vs Suresh Kumar Sharma on 30 March, 2026
IN THE COURT OF MOHAMMAD EHTESHAM, ASJ-07,
SOUTH EAST DISTRICT, SAKET COURTS, DELHI
(THEN DISTRICT JUDGE-03, SHAHDARA DISTRICT, KARKARDOOMA COURTS,
DELHI)
[Vide Transfer Order No. 09/D-3/Gaz.IA/DHC/2026 dated 25.02.2026 the
undersigned was transferred to the present court and the arguments in the present
matter was already heard by the undersigned and judgment was reserved]
CS No.1595/2016
CNR NO. DLSH010009342016
Sh.Ashok Sharma
11-C, Una Enclave,
Mayur Vihar, Phase-I, Delhi-110091
Also at -F-35, DDA HIG Flats, Pocket-9A,
Jasola, New Delhi-110025
........Plaintiff
Versus
1. Sh. Suresh Kumar Sharma (Since deceased)
a. Mrs. Uma sharma (Wife)
b. Ms. Shikha Sharma(Daughter)
c. Ms. Sarika Sharma(Daughter)
d. Mr. Sandeep Sharma(Son)
All Residents of H No.26, New Layallpur Extension,
Chander Nagar, Delhi-110051
2. Satish Kumar Sharma (Since deceased)
Through Legal Heirs
(a) Mrs. Asha Sharma(Wife)
(b) Ms. Sradha Sharma (Daughter)
(c) Mr. Ashish Shrama (Son)
(d) Mr.Jai Sharma (Son)
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 1 of 27
All R/o H No.26, New Layallpur Extension,
Chander Nagar, Delhi-110051
3. MCD Commissioner
Jawahar Lal Nehru Marg, Firoz Shah Kotla Stadium,
New Delhi.
4. Land and Development Office
Ministry of Urban Development
Gate 4, 'A' Wing, 6th floor, Moulana Azad Road,
Nirman Bhawan New Delhi-110011
...........Defendants
Date of Institution of suit : 13.12.2011
Final Arguments heard on : 20.11.2025
Date of pronouncement of judgment : 30.03.2026
JUDGMENT
1. Originally the present suit was filed before the Hon'ble High Court of Delhi bearing CS (OS) No. 3119/2011 titled as 'Ashok Sharma v. Suresh Kumar Sharma and ors'. Thereafter, in view of Notification No. 27187/DC/Orgl. Dated 24.11.2015 of the Hon'ble High Court of Delhi, the present suit was transferred to District Courts, Shahdara District vide order dated 01.02.2016.
2. The present was filed by the Plaintiff for partition, declaration and for permanent and mandatory injunctions against the Defendants. Perusal of records shows that on 07.09.2015 issues were framed in this CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 2 of 27 case only for the relief of injunction and Hon'ble High Court of Delhi recorded in its order of the same date that "Counsel for plaintiff rightly does not press for the relief of partition in view of the fact that it is the plaintiff's own case that partition took place of the suit property vide agreement dated 16.09.1998."
3. Briefly stated, the facts of the present suit are as under:-
a) that Plaintiff and Defendants No. 1 and 2 are sons of late Sh.
Jagat Narayan Sharma and Late Smt. Gyan wati Sharma; that apart from the Plaintiff and Defendants No. 1 and 2 Late Sh Jagat Narayan Sharma also has one daughter Smt. Sushila Chaturvedi, who has since being married and does not claim any share in the suit property.
b) that during his lifetime, father Sh. J.N. Sharma had purchased a plot bearing No. 26, New Layallpur Extension, Chander Nager, Delhi- 110051, admeasuring 200 sq. yds. (hereinafter referred as suit property) in the name of his wife Smt. Gyan Wati Sharma (now deceased), in which one house containing 5 rooms, WC/Bathroom was constructed by the father; that the said structure was demolished by Defendant No.1 and 2, who had constructed two houses on their respective portions therein; that the suit property is still in the name of the deceased mother.
c) Plaintiff alleged that the attitude of Defendant No. 1 towards him was hostile since the beginning and Defendant No. 2, being of a different temperament and nature, used to get carried away by the Defendant No. 1.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 3 of 27
d) Plaintiff alleged that since April 1996, health of mother was not good and around June-July 1997 her health considerably declined and was treated to Lok Nayak Jaiprakash Hospital, New Delhi on 07.07.1998 for treatment of Cancer. The mother passed away on 17.07.1998. During her entire stay in the hospital, apart from some help from Defendant No. 1 (who used to come and go from his busy schedule), the mother was looked after by the Plaintiff, who also provided the finance for expenses towards hospital bills and medicines. Plaintiff alleged that he never asked any of Defendants for any financial help or contribution towards the expenses meted out for the treatment of the mother, nor did they offer any help. Plaintiff alleged that Defendants were more involved and interested in accumulating all the documents and evidence of the assets of the deceased mother and also in patching up their own differences.
e) that after the demise of mother, Agreement Deed dated 16.09.1998 was executed between the Plaintiff and Defendants No. 1 and 2 regarding mutual distribution of the suit property in the presence of the father and uncle of the parties. Plaintiff alleged that father had given jewellery, fix deposits and hard cash to Defendant No. 1 and 2. Plaintiff alleged that the suit property was divided amongst the Plaintiff and Defendants no 1 and 2 in terms of said Agreement, the relevant extract of the same showing the respective share/portion of the parties are as under:-
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 4 of 27 'Shri Ashok Sharma, First Party will take the share adjoining to Plot no.27A, measuring 15' x 39' =585 Sq.ft. front 15 feet from West Road side and 39' feet inside.
Shri Suresh Kumar Sharma, Second Party will take the share adjoining to Plot no.25A, measuring 15' x 39'=585 Sq.ft. front 15 feet from West Road side and 39' feet inside.
Shri Satish Sharma, Third Party will take the share of East side road just adjoining the above portion and Plot no.27A, in north and plot no.25 A in south and front size 30' in length towards Road and 21' feet in width.'
f) After execution of above Agreement, Plaintiff and Defendants no.1 and 2 took possession of their respective portions. Plaintiff alleged that Defendants No.1 and 2 constructed their houses in their respective portions. Plaintiff alleged that he took the possession of his share but due to lack of funds and resources, he did not construct his portion.
Plaintiff alleged that he is the owner and in the physical possession of his portion in Property no 26, New Layallpur Extension, Chander Nager, Delhi-110051 since 16.09.1998.
g) Plaintiff alleged that on 05.12.2011, he was shocked to receive the court notice/summon from the Karkardooma Court, Delhi of the suit filed by Defendant no. 1 against him for Declaration with consequential relief of Injunction, by alleging that he had always being in possession of the portion of the Plaintiff and had been given the same on rent from time to time. In the said suit, Defendant No.1 further alleged that there are two rooms in said portion, which was given on rent by him. Plaintiff alleged that as per photographs filed by him, the said portion is a vacant portion of land contains nothing but debris and no rooms. Thus, it is clear that that Defendant No.1 has filed the above CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 5 of 27 suit on false grounds. Defendant No. 1 also alleged that he is owner of the said portion being in adverse possession since a long time.
h) Plaintiff alleged that on 06.12.2011, he was informed that Defendant no.1 is intending to break the locks on the gate of portion of the plaintiff in the suit property, to which, Plaintiff along with his sons and some relatives reached the property. At first, Defendant No.1 pleaded innocence, but all of sudden Defendant No. 1 begin to hurl abuses at the Plaintiff and told that he is the owner of the said portion and Plaintiff had nothing to do with that portion. In a fit of anger Defendant No.1 took a hammer and broke upon the lock of the Plaintiff. The Plaintiff was left with no alternative but to call the police. In the meanwhile, Plaintiff also locked his premises with a fresh lock. In the police station, a settlement was arrived at that both the parties shall settle the issue between them. However as soon as they left the Police Station, Defendant No.1 warned the Plaintiff not to interfere in the said portion of land as it now belongs to Defendant No.1.
i) Plaintiff alleged that the suit property stands in the name of deceased mother. Plaintiff further alleged that Defendant No.1 refused to acknowledge all request of Plaintiff to have the property transferred in their name. Plaintiff alleged that initially, Defendant No.1 used to request to the Plaintiff to wait for some time to arrange funds for such transfer/mutation and only now he realises that Defendant No. 1 was buying time to take illegal action of usurping Plaintiff's portion.
Hence, the present suit.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 6 of 27
4. Defendant no. 1 has filed written statement, wherein he took the following preliminary objections:-
(a) that Plaintiff himself has admitted that entire property measuring 200 sq.yds. has been partitioned by metes and bounds and Memorandum of Understanding was reduced into writing in the shape of mutual agreement between the parties on 16.09.1998 and same was duly signed by plaintiff and Defendant No.1 & 2; the same was witnessed by the father and one of his friend; that Plaintiff has also admitted that Defendant No.1 & 2 have constructed their respective portions thereafter.
(b) Defendant no. 1 alleged that in the year 1995, in order to financially assist the Defendant no. 2, mother had mortgaged the suit property with Punjab National Bank; that on default of repayment of bank outstanding, the said Bank served notice to all of three legal heirs & sons of late mother; that after the death of mother, dispute arose between Defendant No.2 and Defendant No.1 as both were residing in said property; that father of the parties with the help of his friend and in order to keep peace and harmony between the family members got a Memorandum of Understanding/Agreement dated 16.09.1998 executed amongst the Plaintiff and Defendant no. 1 and 2 so that parties may not be hostile.
(c) Defendant No. 1 alleged that Plaintiff cannot seek partition again, when it took place, as stated above and as such, his claim is barred by CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 7 of 27 principle of Estopple under Section 115 of Evidence 1872 and present suit is liable to be dismissed.
(d) Defendant No. 1 alleged that he installed an iron gate on the suit property on 15.01.1999. Defendant no. 1 point out that Plaintiff has stated cause of action on 16.09.1998 when partition MOU was reduced in to writing. Defendant No. 1 alleged that on 06.12.2011, Plaintiff with his two sons & 10-15 persons came to the suit property and tried to break open the lock of Defendant No.1 on the main gate of suit property, even otherwise there was/is no cause of action of physical possession of property in question between the said interval period; that the plaintiff was not in physical possession prior to 16.09.1998/15.01.1999 nor after that and further on 06.12.2011 up to 4.00 pm. approx. Defendant no. 1 alleged that Plaintiff never came in physical possession of suit property at any time, either on own 16.09.1998 or thereafter till date, hence no cause of action arose and suit is liable to be dismissed for want of cause of action.
(e) Defendant no. 1 alleged that when the Plaintiff received notices of the court on 05.12.2011, regarding filing of the suit by defendant No.1 against the plaintiff, then the plaintiff had come alongwith 10-15 persons including his two sons, Sh. Rajiv Sharma & one "Goldy" who is in Delhi Police services residing in Una Enclave, Mayur Vihar, Phase-I, besides other mussle-men on 06.12.2011 at about 4 P.M., who had tried to break open the lock of Defendant No.1 which was put on the main gate of suit property, on the noise of breaking the lock, the daughter of CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 8 of 27 Defendant No.1 had dialed "100" for Police assistance from landline Phone No. 22439703 twice/ thrice. The story of plaintiff that one of the neighbour informed him, whose name is not mentioned in the suit, is fabricated story; that Plaintiff had never been in physical possession of suit property till Defendant No.1 filed Civil suit; that Plaintiff has wrongly assessed the value of property for partition, whereas the defendant No.1 in his suit has assessed correct value of the property in question.
(f) Defendant No.1 alleged that present suit is barred by Section 27 of Limitation Act, 1963, and Article 64 & 65 of Limitation Act, 1963, as the Plaintiff has failed to claim possession of suit property within 12 years from 16.09.1998.
(g) Defendant No.1 alleged that the entire property has been divided in three parts and further Plaintiff has also admitted that defendant No.1 & 2 have already constructed their respective portions, document is on record and severed the connection between each other after the said oral partition by metes and bounds, Plaintiff cannot resile from his own statement, who himself compelled the father for division of property and excess land given to the Defendant No.2 on his request, because bank had sent notices for recovery of outstanding against mortgage of said property.
(h) Defendant No.1 alleged that Plaintiff never came in physical- possession of portion/plot in question and that the Plaintiff has not resided in the entire property measuring 200 sq.yds. since September CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 9 of 27 1978, when entire family of Shri Jagat Narain Sharma had shifted from rented accommodation / Qtr. No.335, B-Line, Gaushala Marg. Delhi- 110006, the Plaintiff with his family remained in the said rented accommodation/Quarter allotted to the father of the parties, then after some years, shifted to other rented accommodations in the same locality but never visited in the property.
(i) On merits, Defendant no. 1 admitted execution of mutual agreement of partition dated 16.09.1998 and reiterated that after the said partition Plaintiff cannot seek partition again. He also admitted that he and Defendant No.2 had constructed their respective portions. Defendant No. 1 denied that suit property was purchased by father in the name of his wife, rather, mother out of her self acquired funds and stridhan and with the consent of her husband had purchased the suit property in the year 1957 vide regd. Sale Deed & then raised constructions of four rooms, latrine, bath and open & covered verandah therein in or about year 1970-71. Defendant no. 1 asserts that Plaintiff has no knowledge about the structure / construction on said plot because entire family of mother, her husband who was in service of Delhi Cloth Mills, except plaintiff and his wife, shifted to this constructed plot in September 1978.
(j) Defendant no. 1 alleged that even after retirement of the father, Plaintiff illegally did not leave Quarter No.335, B-Line, Gaushala Marg, Delhi-110006 because plaintiff severed his connections with other CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 10 of 27 family members due to his adamant behaviour towards other family members.
(k) Defendant no. 1 alleged that mother raised constructions on the rest of the portion of the plot with slabs and asbestos-sheets with the financial assistance of Defendant No.1 & 2, who were earning members of the family and then she letted out constructed portion on 100 sq.yds. on rent, which was assessed by House-Tax department as entire premises with tenanted portion on the basis of disclosure of rent by the tenants, entire present & old dues of the property have been cleared and paid by Defendant No.1. Defendant No.1 submitted that during year 1981 mother had further constructed one room with lintel roof and latrine on roof of first-floor and bath-room on ground-floor with stairs upto first-floor for which the Defendant No.1 provided some financial help in making constructions.
(l) Defendant no. 1 alleged that after oral partition by metes and bounds, the Defendant No.2 had raised construction on his portion by demolition of portion and Defendant No. 1 construction on his own portion, by demolishing old construction structure in his portion, the Defendant No.1 had also demolished old construction of the rest of the portion in the beginning of the year 2006, under compulsion circumstances and complaint of gali persons. D-1 has filed copy of initial site plan year'1998 as Annexure-B.
(m) Defendant no. 1 submitted that the Plaintiff himself severed his connections with other family members after his marriage in the year CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 11 of 27 1977. D-1 alleged that Plaintiff was neither employed anywhere nor was doing any business prior to the year 1976-1977 thereafter and in order to settle the Plaintiff, father had applied for Industrial Plot in NOIDA (UP) with the intention that the Plaintiff may do some work with the help of his other two brothers, who were already engaged in industrial services and with this intention in mind, the father of the parties paid the application money out of the family funds provided by Defendant No.1 and 2, a corner plot No.B-110, Sector 6, NOIDA was allotted and the entire remaining price of the plot and other registration and incurring expenses were paid and borne by the father.
(n) Defendant No.1 alleged that an Industrial Unit under the name & style of 'M/s. Jagat Industries' was started for metal-casting & fabrication but Plaintiff could not run the same because he severed his connection with the father & Defendant No.1 & 2 who were very much co-operative towards Plaintiff, it was then leased out on monthly rent by the Plaintiff, who earned handsome monthly rent and by the said rented income, the Plaintiff further invested in acquisition of factories, residential plots/flats either in his own name or in the name of his spouse in Delhi & Noida (U.P.), to defraud parents and Defendant No.1 & 2.
(o) Defendant No.1 submitted that parents were residing with Defendant No.1and Defendant No.2 in the suit property and after their death, Defendant No.1 and Defendant No.2 are residing in their respective portions. Defendant No.1alleged that he looked after his CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 12 of 27 ailing father and provided all sorts of facilities and medical aid to him, and after the death of mother, the Plaintiff never cared nor visited, except he attended the last rites / cremation of the father who died on 16.03.2005.
(p) Defendant No.1 alleged that mother had not left any assets or movable property because she had sold all her ornaments & jewellery when the said plot was purchased and during the marriage of the Plaintiff what she purchased had given to the Plaintiff's wife, further, rest of the jewellery she sold for establishing & running factory at Noida. as Plaintiff needed for its construction, no jewellery was purchased except by the father out of earning of answering defendant and Defendant No.2, same have also been sold for family need by the parents, except present plot, no other assets was with deceased mother so there is no question of accumulating of documents evidence of the assets of deceased; Defendant No. 1 further alleged that Plaintiff being elder-son, who had given false assurance to the of parents, has got the plot at Noida from the earnings of other two Defendants, has earned huge monthly rents & earnings from said factory, has further purchased factories (sheds) & plots, residential flats / plots etc. from time to time under entrepreneurship quotas from Noida Authority without disclosing to the parents from the earnings of said factory and not disclosed other own sources which have been created out of earning of said factory.
(q) Defendant No.1 submitted that plaintiff had no knowledge about structures. One room was existing at the beginning in 1970-71 and CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 13 of 27 second room was constructed in 1981 by his financial assistance and said two rooms and covered verandah were let out by him and one separate gate/door was fixed for separate entry to the tenant. Defendant No.1 further alleged that ever when tenant vacated he had put his lock on the said door/iron gate. That in the beginning of January, 2006 some of the part of cement lintel was fell down on the motor cycle of Defendant No.1 which was parked inside and damaged fuel tank. Being in dilapidated condition and other compulsive reasons and the anti- social elements usually took shelters for smack, theft etc; and dangers for society, the same was demolished and now it is plot which was used for motor-cycle / scooty parking by Defendant No.1.
(r) Defendant No. 1 alleged Plaintiff had never visited said portion/ plot in question, so he has no knowledge about its structural condition, further, the plaintiff has used a copy of initial site plan of the entire property which was filed by him before Ld. Addl. District Judge, Karkardooma Court, Delhi, said site was prepared with physical verification construction.
(s) Defendant No. 1 alleged that he installed a new iron gate on the portion of suit property on 15.01.1999 and put his lock there and he is in adverse possession of the portion of Plaintiff in the suit property since then.
Defendant No.1 prayed for the dismissal of the present suit.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 14 of 27
5. Replication to the written statement of the Defendant No.1 filed, wherein Plaintiff denied the contents of the same and reiterated the averments made in the plaint.
6. Perusal of record shows that Defendant no. 2 to 4 were proceeded ex-parte vide Order dated 23.04.2012.
7. During the pendency of the present suit, Defendant no. 1 Sh. Suresh Kumar Sharma expired on 24.03.2022 and vide Order dated 06.02.2023, his legal heirs were impleaded on record.
8. Perusal of record shows that LR no. 4 Sh. Sandeep Sharma of deceased Defendant no. 1 was also proceeded ex-parte vide Order dated 05.04.2024.
9. Record revels that during the pendency of the present suit, Defendant No.2 Sh. Satish Kumar Sharma expired on 22.08.2014. The Plaintiff had moved an application for impleadment of his legal representatives, which was later dismissed as withdrawn vide order dated 10.11.2014. Record reveals that another application to implead legal heirs of Defendant No.2 was filed along with condonation of delay application, however, these applications were never argued. It is noted that Defendant no. 2 had already been proceeded ex-parte at the time of his death, had not filed his written statement, and had not contested the CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 15 of 27 suit. In view of the pleadings, where the Plaintiff in his plaint has made material allegations only against Defendant No.1 and the real controversy has effectively narrowed to the Plaintiff's claim for injunction against Defendants, whereas Defendant no.1 has opposed the same claiming his adverse possession against the Plaintiff on his portion of suit property. This Court, therefore, is satisfied that, on the facts of the present case, the legal representatives of deceased Defendant no.2 are not required to be brought on record in terms of Order XXII, Rule 4(4), Code of Civil Procedure, 1908. It is clarified that the legal heirs of Defendant No. 2, Sh. Satish Kumar Sharma (deceased), are shown in the memo of parties for record purposes only.
Issues
10. After completion of pleadings following issues were framed, by the Hon'ble High Court of Delhi vide Order dated 07.09.2015:-
i. Whether the Plaintiff is entitled to the relief of injunction with respect to the suit property being plaintiff's share in the suit property bearing H. No. 26, New Layallpur Extension, Chander Nagar, Delhi -110051 being the area adjoining plot bearing no. 27-A, measuring 15 ft. x 39 ft. = 585 sq. ft. from 15ft from West Road Side and 39 ft. inside? OPP ii. Relief.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 16 of 27
11. Record shows that Hon'ble High Court of Delhi also recorded in its order dated 07.09.2015 that "Counsel for plaintiff rightly does not press for the relief of partition in view of the fact that it is the plaintiff's own case that partition took place of the suit property vide agreement dated 16.09.1998.". It has further been observed by the Hon'ble High Court of Delhi that Plaintiff's claim to be in possession, is disputed by the defendants and therefore, plaintiff to establish that he was in possession on the date of filing of the suit and continues to be in possession therefore. Hon'ble High Court of Delhi further cleared that with respect to the possession, the onus will be on the respective parties, who allege possession with them.
Plaintiff's Evidence
12. In evidence, Plaintiff has examined himself as PW-1, who deposed on affidavit Ex PW 1/A in evidence. He relied and proved the documents viz. Site plan as EX PW 1/1; copy of letter dated 18.08.1998 as Mark A; copy of mutual agreement deed dated 16.09.1998 as Ex. PW1/3; Site plan as Ex. PW1/4; copy of plaint of C.S no. 348/2011 titled as 'S.K Sharma vs Ashok Sharma' as Ex. PW 1/5; copy of police report dated 06.12.2011 as Ex PW 1/6; photographs of the suit property as Ex. PW 1/7.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 17 of 27 Defence Evidence
13. In defence, LRs of D-1 have examined two witnesses i.e. DW-1 Ms. Sarika Sharma and DW-2 Ms. Shikha Sharma, who have filed their affidavits Ex. DW1/A and Ex. DW2/A respectively in their evidence.
14. I have heard the final arguments as addressed by Ld. counsel for Plaintiff as well as Ld. counsel for LRs No. 1 to 3 of the deceased Defendant no. 1. I have also perused the written arguments filed on behalf of Plaintiff. I have carefully gone through the material available on record.
Plaintiff's Final Arguments:
15. Ld. Counsel for Plaintiff has argued that all the allegations of the Defendant No.1/ his legal heirs are oral and no documentary evidence have been proved in support of such allegations, therefore, only the admitted written document MOU Ex. PW3 can be read which clearly shows that the Plaintiff is entitled for his portion as Defendant No.1 and Defendant No. 2 have already constructed on their portions. Ld. Counsel further argued that the Defendant No. 1 had filed a civil suit (Civil Suit No. 591/2017) for declaration with consequential relief of permanent injunction on the ground of adverse possession regarding the same suit property was filed against the Plaintiff (defendant therein). Ld counsel further submits that during the pendency of the said suit the Plaintiff (defendant no.1 herein) expired on 24/02/2022 and since no application CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 18 of 27 seeking impleadment of LRs was filed within the limitation period the suit was abated by operation of law vide order dated 10.11,2022. Ld. Counsel points out para 9 of the plaint filed by the Defendant No.1 in the said suit which is on court file at page no. 1123 and submits that the Defendant No.1 has admitted the possession of Plaintiff therein as he averred that Defendant (plaintiff herein) took the possession on 16.09.1998 of his portion shown in red colour as per the site plant annexed with the mutual agreement.' Ld counsel further argued that the Plaintiff has also filed photographs showing his possession. Ld Counsel further argued that the testimony of defence witnesses are mostly hearsay. Ld. Counsel submits that the DW1- Sarika Sharma identified the signature of his father Defendant No. 1 on partition document on Ex.PW1/3.
Final Arguments on behalf of LRs no. 1 to 3 of deceased Defendant No. 1:
16. Ld. counsel for LRs no. 1 to 3 of deceased Defendant No.1 has argued that the issue was framed and it was directed to prove the possession and testimony of DW1 and DW2 has proved the possession.
Ld. Counsel further argued that although the partition agreement was signed but Plaintiff never took the possession and Defendant No.1 remained in possession of the suit property. Ld. Counsel further argued that in the said suit the Plaintiff (defendant herein) had filed written statement and in para 6 he 'denied that any formal partition by metes CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 19 of 27 and bound has occurred of the property left behind by the deceased'. Ld. Counsel for Plaintiff submits that the Ld counsel for Plaintiff has only read a selective part of para 9 of the said suit whereas in the said the case consistent stand of the Plaintiff (defendant no.1) was that Defendant (plaintiff herein) is not in possession.
Issue-wise Findings:
17. Issue no. (i): Whether the Plaintiff is entitled to the relief of injunction with respect to the suit property being plaintiff's share in the suit property bearing H. No. 26, New Layallpur Extension, Chander Nagar, Delhi -110051 being the area adjoining plot bearing no. 27-A, measuring 15 ft. x 39 ft. = 585 sq. ft. from 15ft from West Road Side and 39 ft. inside? OPP i. The onus to prove this issue was upon the plaintiff. ii. Both the parties i.e. Plaintiff and Defendant No.1 have made allegation and counter allegation against each other regarding their evil conduct in the family affairs and towards parents and their wealth. However, to decide controversy involved in the present suit they are not relevant; moreover, no evidences have been led by the parties in respect of these allegations.
iii. Defendant No. 1 has specifically admitted in his written statement that the partition MOU dated 16.09.1998, Ex. PW1/3, was executed and signed by all three brothers, namely, the Plaintiff, Defendant No. 1 and Defendant No. 2, and was also signed by their father, Late Sh. J. N. Sharma.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 20 of 27 iv. The Defendant No.1 has repeatedly stated in his written statement that the property was orally partitioned by metes and bounds and that the said partition MOU was reduced into writing with a site plan on 16.09.1998, duly signed by the parties, so that none of them could resile from the same, and that Defendant No.1 and Defendant No. 2 constructed on their respective portions. However, he has taken inconsistent stands regarding background of the execution of the said MOU. In paragraph 12 of the reply on merits, Defendant No. 1 stated that the Plaintiff compelled the partition as the mother had mortgaged the entire property with Punjab National Bank for security/loan for the factory of Defendant No. 2 and there were outstanding bank liabilities for repayment of the loan, and that the said MOU dated 16.09.1998 was executed to maintain peace, tranquillity, and harmony amongst the family members. Further, in paragraph 1 of the reply on merits, Defendant No. 1 alleged that the property was partitioned by metes and bounds in order to maintain peace, tranquillity, and harmony when Defendant No.2 had attempted to dispossess Defendant No.1 from the said property, and that the MOU dated 16.09.1998 was executed for that reason. Learned Counsel for Defendant No.1, in the cross-examination dated 09.06.2023, suggested to PW1 that Ex. PW1/3 was a fictitious document created to defeat the claim of PNB, which was denied. Learned counsel for the LRs No. 1 to 3 of Defendant No.1, in the cross-examination dated CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 21 of 27 05.04.2024, suggested to PW1 that the partition was only on paper and was never acted upon, which was also denied.
v. Further, Defendant No. 1 has stated in his written statement that on 16.09.1998, i.e., the date of the MOU, there was no gate, and therefore there could not have been any lock; he further stated that he installed a new iron gate on 15.01.1999 in the outer wall and put his lock thereon, and since then he has been in continuous, uninterrupted, and peaceful physical possession of the property/plot in question. However, this is in complete contradiction to the suggestion made by Ld. Counsel for Defendant No.1 to PW1 in cross examination dated 09.06.2023 that Defendant No.1 had purchased the Plaintiff's portion. Such inconsistency in Defendant No.1's stand further weakens his defence of adverse possession.
vi. The PW1, despite lengthy cross-examinations spread over seven dates, remained unrebutted in his testimony. He denied that the iron gate was installed by Defendant No.1 and deposed that the gate was installed by him on his property. DW1 and DW2 deposed that the iron gate was installed by Defendant No.1 through one Mr. Usman. However, Ld. Counsel for the Defendant admitted that the name of Mr. Usman does not find mention in the written statement or the list of witnesses. DW1 also admitted in her cross-examination dated 23.01.2025 that no document has been placed on record to show that the gate was installed by Mr. Usman. Neither the Plaintiff nor Defendant No.1 led any independent evidence to establish who CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 22 of 27 installed the gate on the plot. However, considering that the gate was installed on the portion allotted to the Plaintiff and no dispute, police complaint, or other contemporaneous objection has been shown regarding its installation, the preponderance of probabilities suggests that the gate was installed by the Plaintiff himself. Moreover, on the one hand, Defendant No. 1 states that the MOU dated 16.09.1998 was executed through the intervention of their father in order to maintain peace, tranquility, and harmony; yet within four months thereafter, i.e., on 15.01.1999, he is said to have installed an iron gate on the Plaintiff's portion with an intention to assert hostile possession, even though he himself stated in paragraph 12 of the reply on merits that his father continued to reside with him after the partition till March 2005, when he expired. In such circumstances, it is not believable that in the presence of the father he installed the said gate with a hostile intention and no one objected. On the contrary, the test of common sense suggests that after the partition and demarcation of the respective portions of the three brothers, the gate on the plot in question must have been installed by the Plaintiff himself. Further after the execution of partition MOU/Ex.PW1/3, the act of Defendant No.1 and Defendant No.2 in constructing their houses only on their respective portions leaving the portion of the plaintiff also suggests their implied acceptance of the Plaintiff's possession over the Plaintiff's share in the suit property. The terms of the settlement as per MOU/ EX.PW1/3 was arrived after a conscious deliberations CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 23 of 27 between the parties is also clear from the assertion of Defendant No. 1 in his written statement that excess land was given to the Defendant No.2 on his request, because bank had sent notices for recovery of outstanding against mortgage of said property.
vii. The DW1 and DW2 has not tendered or proved any other document along with their evidence affidavit. The oral testimony of DW1 and DW2 has been denied by the suggestions given by the counsel for Plaintiff. Both DW1 and DW2 admitted that Defendant No.1 signed partition document Ex.PW1/3. It has been contended in the written statement of Defendant No.1, and stated by DW1 and DW2,in their deposition that the Plaintiff's portion was also used for parking by Defendant No.1 and that, in the beginning of January 2006, some part of the cement lintel fell on the motorcycle of Defendant No.1, which was parked inside, and damaged the fuel tank. The insurance documents mentioned the same address. DW2 also deposed in her affidavit that she got married on 11.05.2011 and that the suit property was used for family functions such as haldi, mehndi, and food preparation by the halwai. Even if such use by the family of Defendant No. 1 is assumed to be true, mere use of the Plaintiff's portion by Defendant No. 1 for parking or for family functions, without any clear denial of the Plaintiff's title, is not sufficient to prove adverse possession. No proof that Defendant No. 1 openly asserted exclusive ownership and excluded the Plaintiff to his knowledge has been placed on record. To prove adverse possession, CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 24 of 27 the possession must be hostile, exclusive, continuous, and adverse for the statutory period of 12 years. Mere permissive or occasional possession being family member for some function etc is not enough. The absence of reliable and independent evidence showing that the Plaintiff was ever expressly excluded, or that the Defendants openly denied his rights, is fatal to the plea of adverse possession. viii. Defendant No. 1 has not shown any clear acts such as exclusive title documents, mutation in his name, explicit refusal to recognize the Plaintiff's rights, or other open hostile acts to prove his adverse possession claim. The Defendant No.1 has not even pleaded such hostile acts in his pleadings. Mere allegation of the Plaintiff's absence and non-visiting of the suit property regularly by itself will not take away the Plaintiff's possession and will not convert Defendant No. 1's occasional use or occupation into adverse possession over the suit property, especially when there is an admitted partition MOU, Ex. PW1/3, and the same has been acted upon, as Defendant No.1 and Defendant No.2 have constructed only on their respective portions and started residing therein.
ix. Hon'ble Supreme Court held in the case of "P. Lakshmi Reddy vs L. Lakshmi Reddy"; AIR 1957 SUPREME COURT 314 held that "It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 25 of 27 x. The admitted MOU dated 16.09.1998, Ex. PW1/3, clearly establishes that the arrangement was family-based, as the same was signed by all three brothers, namely, the Plaintiff, Defendant No.1 and Defendant No.2, and was also admittedly signed by their father. It is also an admitted fact that Defendant No.1 and Defendant No.2 constructed their respective portions. As such, very strong evidence of ouster of the Plaintiff was required to be proved by the Defendant in order to succeed.
xi. Moreover, admittedly, Civil Suit No.591/2017 filed by Defendant No. 1 for declaration with consequential relief of permanent injunction on the ground of adverse possession has already abated. This fact may not, by itself, conclusively bar the plea in the present proceedings, but it certainly weakens their case and deprives them of any independent adjudication in support of their claim.
xii. In view of the foregoing discussion, it is concluded that the Plaintiff has proved his entitlement to injunctive protection in respect of his demarcated portion and the Defendants are liable to be restrained from interfering with Plaintiff's peaceful possession and enjoyment thereof. Defendant No.1 has failed to prove that he exercised open and hostile possession over the Plaintiff's portion exclusively, and therefore the Plaintiff's possession over his portion cannot be defeated by the colourable plea of adverse possession raised by Defendant No.1.
CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 26 of 27 xiii. Accordingly issue no. (i) is decided in the affirmative and in favour of Plaintiff.
18. Issue No. (ii): Relief i. In view of the findings above, the suit is decreed in favour of the Plaintiff and against the Defendants. The Defendants, along with their legal representatives, agents, servants, and persons claiming through them, are permanently restrained from interfering with the Plaintiff's peaceful possession and enjoyment of the plaintiff's share in the suit property bearing H. No. 26, New Layallpur Extension, Chander Nagar, Delhi -110051 being the area adjoining plot bearing no.27-A, measuring 15 ft. x 39 ft. = 585 sq. ft. from 15ft from West Road Side and 39 ft. inside as shown in the annexed site plan of MOU/Ex.PW1/3.
ii. Cost of the suit is also awarded.
19. Decree sheet be prepared accordingly.
20. Pending applications, if any, stands disposed of.
21. File be consigned to record room after due compliance. Digitally signed by MOHAMMAD MOHAMMAD EHTESHAM Announced in open Court today EHTESHAM Date:
2026.03.30 on 30.03.2026 16:10:13 +0530 (Mohammad Ehtesham) ASJ-07, South East, Saket Courts, Delhi (Then District Judge-03, Shahdara District, Karkardooma Courts,Delhi) 30.03.2026 CS No. 1595/16 Ashok Sharma v. Suresh Kumar Sharma (deceased) through LRs and Ors. Page no. 27 of 27